The CJEU has confirmed AG Campos Sánchez-Bordona’s opinion that a child in the guardianship of an EU citizen under the kafala system in Algeria cannot be regarded as a “direct descendant” of that citizen within the meaning of article 2(2)(c) of Directive 2004/38/EC (the Citizens’ Directive). The court held that the EU citizen’s member state of residence must facilitate, following an assessment, the minor’s entry to and residence in its territory pursuant to article 3(2)(a). The eight-year-old child in question, SM, or “Susana” as Lady Hale preferred to call her when making the reference in SM (Algeria)  UKSC 9 (see here), was left in a period of lengthy legal limbo because her case has been in litigation since 2012. Earlier she was placed into the legal guardianship of Mr and Mrs M, French nationals resident in the UK unable to have children, pursuant to Algerian law. She had been abandoned at birth and parental responsibility was transferred to them by decree and they were deemed “suitable” to take a child and pursuant to a judicial act they undertook to give Susana “an Islamic education … keep her fit morally and physically, supplying her needs, looking after her teaching, treating her like natural parents, protect her, defend her before judicial instances [and] assume civil liability for detrimental acts.” They are entitled to remove her from Algeria and the surname on her birth certificate was changed to their surname.
She was refused entry clearance to the UK as the adopted child of an EEA national because guardianship under the Algerian kafala system is not recognised as an adoption under UK law. The Supreme Court had referred a trio of questions to the CJEU seeking clarification on important issues such as whether Susana can be classed as a “direct descendant” within the meaning of article 2(2)(c), whether such children can be denied entry clearance if they are the victims of exploitation, abuse or trafficking or are at such risk, and whether it is possible for member states to enquire about whether the procedure for placing the child in the guardianship/custody of the EU citizen was such as to provide sufficient consideration to the child’s best interests. Overall, in light of its answer to the first question, the CJEU did not find it necessary to provide an answer to the second question about abuse and trafficking or the third question. The judgment approves AG Campos Sánchez-Bordona’s views and endorses his analysis of the ECtHR cases of Harroudj v France and Chbihi Loudoudi v Belgium and the CJEU advances a telling analysis regarding the Charter of Fundamental Rights of the European Union and the pivotal role it plays in this case.
The Court of Justice (Grand Chamber)
Under Algerian law, kafala is where an adult undertakes to assume responsibility for the care, education and protection of a child, in the same way a parent would for their child, and to assume legal guardianship of that child. Notably, Algerian law prohibits adoption and placing a child under kafala does not mean that the child becomes the guardian’s heir. The CJEU pointed out, as AG Campos Sánchez-Bordona had observed, kafala comes to an end when the child attains the age of majority. Moreover, it may be revoked at the request of the biological parents or the guardian. Under the directive, two routes are available to a child who is not an EU citizen for entering and residing in a member state together with those with whom she or he has a family life. For direct descendants the right of entry and residence is practically automatic. For other family members (or in UK parlance extended family members), who are dependants or members of the household of the EU citizen having the primary right of residence, a prior assessment of the situation is required for the purpose of granting such rights. These proceedings provided the court the opportunity to shed important light on the meaning of the concept of “direct descendant” under article 2(2)(c) of the directive.
(i) Direct descendant
In distinction to the views of numerous governments, the Coram Children’s Legal Centre, AIRE Centre and the European Commission shared the view that the concept of a “direct descendant” is surely capable of including a child in relation to whom an EU citizen has assumed permanent legal guardianship, such as Algerian kafala. Albeit unsuccessfully, they argued that interpretation of this nature is necessary so as to preserve, in the best interests of that child, the family life which she or he has with her or his guardian. Article 2(2)(c) makes no express reference to the law of the member states for the purpose of determining the meaning and scope of the concept of a “direct descendant”.
The court cited Ziolkowski and Szeja (C‑424/10 and C‑425/10, EU:C:2011:866) and explained that the need for a uniform application of EU law and the principle of equality require that, in the absence of a reference to the law of the member states, the terms of the directive must normally be given an independent and uniform interpretation throughout the EU. Furthermore, since the directive does not define a “direct descendant” for the purposes of article 2(2)(c), the court applied Lassal (C‑162/09, EU:C:2010:592) and said that it is necessary, for the purposes of interpreting that concept, to take account both of the wording of the provision in question and also of the context in which it occurs and the objectives pursued by the rules of which it is part. Because of its view that the institution of kafala is distinct from adoption, it was not possible to expand the scope of article 2(2)(c) to accommodate Susana, the CJEU instead holding that:
52. … it should be noted that the concept of a “direct descendant” commonly refers to the existence of a direct parent-child relationship connecting the person concerned with another person. Where there is no parent-child relationship between the citizen of the Union and the child concerned, that child cannot be described as a “direct descendant” of that citizen for the purposes of Directive 2004/38.
The primary focus of the concept of “direct descendant” is aimed at the existence of a biological parent-child relationship but important cases such as O and B (C‑456/12, EU:C:2014:135) and Coman (C‑673/16, EU:C:2018:385, discussed here) are clear that the directive’s aim is to facilitate the exercise of the primary and individual right to move and reside freely within the territory of the member states, which is conferred directly on EU citizens by article 21(1) TFEU and indeed one of the directive’s objectives is to strengthen that right. In light of these objectives, and in light of decided authorities such as Reyes (C‑423/12, EU:C:2014:16) and Ogieriakhi (C‑244/13, EU:C:2014:2068) the directive’s provisions such as article 2(2) must be construed broadly. Guided by these principles, the CJEU held that:
54. Therefore it must be considered that the concept of a “parent-child relationship” as referred to in paragraph 52 above must be construed broadly, so that it covers any parent-child relationship, whether biological or legal. It follows that the concept of a “direct descendant” of a citizen of the Union referred to in article 2(2)(c) of Directive 2004/38 must be understood as including both the biological and the adopted child of such a citizen, since it is established that adoption creates a legal parent-child relationship between the child and the citizen of the Union concerned.
However, the need for a broad interpretation does not justify an interpretation such as the one contained in paragraph 2.1.2 of Communication (Com (2009) 313 final) whereby a child placed in the legal guardianship of an EU citizen is included in the definition of a direct descendant for the purpose article 2(2)(c).
Since placing a child under kafala guardianship does not create a parent-child relationship between the child and its guardian, a child who is placed in the legal guardianship of EU citizens under that system cannot be regarded as a “direct descendant” of theirs.
(ii) Other family members
However, it was still possible for a child such as Susana to benefit from the fabled law of free movement by falling within the alternative provision laid down in article 3(2)(a) as an other family member. As Lady Hale and her fellow justices had observed, a child in Susana’s position is capable of falling within the concept of “other family members”. According to the CJEU, the wording of article 3(2)(a) is sufficiently capacious to cover the situation of a child who has been placed under a legal guardianship system such as kafala with EU citizens and in respect of whom the concerned EU citizens assume responsibility for its care, education and protection, in accordance with an undertaking given on the basis of the law of the child’s country of origin.
The court stressed that recital 6 of the Citizens’ Directive leaves no doubt that the objective of article 3(2)(a) is to “maintain the unity of the family in a broader sense” by facilitating entry and residence for persons who do not fall within the head of family member under article 2(2) but who still maintain very close and stable family ties with an EU citizen on account of specific factual circumstances, such as economic dependence, being a member of the household or serious health grounds.
The court also highlighted the important cases of Rahman (C‑83/11, EU:C:2012:519) and Banger (C‑89/17, EU:C:2018:570, discussed here) to make a series of points on freedom of movement. First, compared with applications for entry and residence of other third-country nationals, article 3(2)(a) imposes a duty on the member states to confer a certain advantage on applications made by the third-country nationals captured by that provision.
Consequently, the member states must make it possible for the persons falling within article 3(2)(a) to obtain a decision on their application that is founded on an extensive examination of their personal circumstances, accounting for various factors that may be relevant and any refusal must be justified by reasons.
While each member state enjoys a wide discretion over the selection of the factors to be taken into account, any national legislation must contain criteria which are consistent with the normal meaning of the term “facilitate” used in article 3(2) and that provision must not be deprived of its effectiveness.
(iii) The EU Charter
In addition, applying by analogy the judgment in O and Others (C‑356/11 and C‑357/11, EU:C:2012:776), the wide discretion must, having regard to recital 31 of the directive, be exercised in the light of and in line with the provisions of the Charter. The right to respect for private and family life enshrined in article 7 of the Charter has the same scope and meaning as those guaranteed by article 8 of the ECHR.
When viewed through the prism of the Strasbourg authorities, it was clear from Chbihi Loudoudi v Belgium that the actual relationship which a child placed under the kafala system maintains with its guardian may constitute family life, having regard to the time spent living together, the quality of the relationship, and the role which the adult assumes in respect of the child. Equally, Chbihi Loudoudi and Harroudj v France are also clear that article 8 protects the individual against arbitrary action by public authorities and, where the existence of a family tie has been established, requires those authorities to enable that tie to be developed and to establish legal safeguards that enable the child’s integration in his family.
A string of weighty CJEU authorities ending in Chavez-Vilchez (C‑133/15, EU:C:2017:354, discussed here) require article 7 of the Charter to be interpreted in line with the obligation to take the best interests of the child into consideration, as recognised in article 24(2). Furthermore, Rendón Marín (C‑165/14, EU:C:2016:675) and CS (Morocco) (C‑304/14, EU:C:2016:674, discussed here) require the national authorities to make a balanced and reasonable assessment of all the current and relevant circumstances of the case, taking into account of the various interests in play and, in particular, of the best interests of the child. Overall, according to the CJEU:
69. That assessment must take into consideration, inter alia, the age at which the child was placed under the Algerian kafala system, whether the child has lived with its guardians since its placement under that system, the closeness of the personal relationship which has developed between the child and its guardians and the extent to which the child is dependent on its guardians, inasmuch as they assume parental responsibility and legal and financial responsibility for the child.
Despite acknowledging the wide discretion available to the member states to refuse entry and residence, the court’s treatment of the situation can be read as shorthand for the proposition that in circumstances where, as in the present case, the assessment is positive and not negative, the availability of discretion to the member state is minimised if not altogether removed.
The court also said that the assessment must also consider possible tangible and personal risks that the child concerned will be the victim of abuse, exploitation or trafficking. On the other hand, such risks cannot be assumed solely in the light of the fact that procedure for placement under the kafala system in Algeria is less stringent than the more robust procedure carried out in the host member state for the purposes of an adoption or the placement of a child under the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children 1996 (in which all member states of the EU participate). Instead, issues of abuse, exploitation or trafficking need to be weighed against the all other relevant elements of fact, such as those contained in paragraph 69 of the CJEU’s judgment.
Therefore, if after such an assessment it is established that the child and her EU guardians “are called to lead a genuine family life” and the child is dependent on the guardians (as indeed Susana is on Mr and Mrs M), the right to family life and the duty to account for the best interests of the child require that the child should be granted a right of entry and residence in order to enable her to live with her guardians in the host member state. This conclusion is further strengthened in a case such as the present where the refusal of entry clearance creates a situation where the EU citizen guardians are in fact prevented from living together in the host member state because one of them (Mrs M) is required to remain, with the child, in that child’s third country of origin in order to care for the child.
The CJEU found it unnecessary to answer the Supreme Court’s second question about the refusal of entry to a child on the basis of risk of abuse, exploitation or trafficking because of the reason that Susana was an extended/other family member and not a family member with an automatic right of entry and residence in the EU citizen’s host member state.
Since Susana’s case has been in litigation for the vast majority of her life (i.e. in the First Tier Tribunal, the Upper Tribunal, the Court of Appeal, the Supreme Court and in the CJEU), Mr and Mrs M must be given a huge round of applause for their determination and her lawyers must also be equally applauded for fighting this hard battle for seven long years to finally emerge victorious.
The outcome in Susana’s case is likely to have an impact on other cases involving extended family members who have been refused entry and residence in blatant breach of their free movement rights. Overall, the Supreme Court did not doubt that the ECO was wrong to refuse Susana entry clearance. Now the CJEU has vitally held that the Charter also further obliges the UK to grant her entry and residence if the assessment of her best interests is positive (which it indeed is since she was abandoned at birth and she has no other family except her guardians). So from that angle, Susana’s case represents a major development in relation to the principles of the Charter and as Professor Peers remarked: “If you seek its monument, look at this little girl’s case”. But, because of Brexit, he also lamented that this is likely to be the last case from the UK on the Charter.