Regulations give effect to Kafala judgment in SM (Algeria)

The Immigration (European Economic Area) (Amendment) Regulations 2019, which came into force on 15 August 2019, amend the Immigration (European Economic Area) Regulations 2016  (“the 2016 Regulations”) and give effect to the judgment of the Court of Justice of the European Union (“CJEU”) in the case of SM (Algeria) v ECO, UK Visa Section (C-129/18, EU:C:2019:248, discussed here). The new regulations also address issues concerning the practical application of the 2016 Regulations. In SM (Algeria) the CJEU found 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 child in question, SM, or “Susana” as Lady Hale named her when making the reference in SM (Algeria) [2018] UKSC 9 (discussed here), was left in a period of lengthy legal limbo because her case had been in litigation since 2012. The CJEU approved of AG Campos Sánchez-Bordona’s views and endorsed his analysis of the ECtHR cases of Harroudj v France and Chbihi Loudoudi v Belgium.

Susana’s case also represented a major development in relation to the principles of the Charter of Fundamental Rights of the European Union and the CJEU held that the Charter also further obliged the UK to grant Susana entry and residence if the assessment of her best interests is positive (which it indeed was since she was abandoned at birth and she has no other family except her guardians). First of all, regulation 2(2) amends regulation 2 of the 2016 Regulations to bring a decision to grant an EEA family permit within the definition of “EEA decision”. It also clarifies that applications rejected as invalid will not fall within the definition. Moreover, regulation 2(3) amends regulation 5 of the 2016 Regulations to make it clear that workers and self-employed persons who have ceased activity due a permanent incapacity to work, or who are now active abroad, must have lived in the UK continuously immediately prior to, respectively, becoming permanently incapacitated or taking up work or self-employment abroad.

Furthermore, regulation 2(4) and 2(5) make provision for the judgment in SM (Algeria) by amending regulation 8 of the 2016 Regulations by (i) making it clear that the category of extended family member can include relatives of an EEA national’s spouse or civil partner, and (ii) setting out the conditions under which a child placed in a system of non-adoptive legal guardianship can be an extended family member for the purpose of the 2016 Regulations. Moreover it also sets out the criteria to be considered when performing an extensive examination of an applicant’s circumstances, as envisaged by the CJEU and of course the decision of the CJEU is important for people such as Mr and Mrs M, Susana’s legal guardians pursuant to Algerian law who are French nationals resident in the UK unable to have children. She had been abandoned at birth and parental responsibility was transferred to them by decree in Algeria 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.”

Regulation 2(6) amends the application of regulation 9 of the 2016 Regulations to ensure that the family member of an EEA national can rely upon time spent as an extended family member of that EEA national in another EEA State when making an application under regulation 9, as long as the family member was legally resident as an extended family member in the other EEA State.

The judgment in Baigazieva [2018] EWCA Civ 1088 (discussed here) is given effect by regulation 2(7) which amends regulation 10 of the 2016 Regulations and provides that, in the case of family members who have retained the right of residence, a family member who was previously married to, or the civil partner of, an EEA national need only demonstrate that that EEA national was a qualified person until the time immediately prior to the initiation of proceedings for the termination of the marriage or the civil partnership.

In Baigazieva the Home Office had conceded that for a third country national to retain residence rights in the UK under article 13(2)(a) of the Citizens’ Directive (2004/38/EC) as a former spouse of an EEA national, the EEA spouse must have resided in the UK until the date of commencement of divorce proceedings. However, it is not necessary for the EEA spouse to have resided in the UK until the divorce is granted. Singh LJ stated that “on this analysis, it is not a question of the third country national ‘needing’ to rely on article 13(2) while she can still rely on article 7(1). On this analysis, it is accepted that article 13(2) does not take effect until the point of divorce. However, this does not mean that the third country national has to show that the qualified person status of her former spouse continued up until that point.” 

Next, regulation 2(8) clarifies regulation 21(4) of the 2016 Regulations by setting out that invalid applications must be rejected, rather than refused. Moreover, regulation 2(2)(a)(ii) makes a connected amendment to the definition of “EEA decision”. Finally, regulation 2(9) makes amendments to regulation 36 of the 2016 Regulations in order to clarify the operation of the right of appeal for extended family members that was reintroduced by the Immigration (European Economic Area Nationals) (EU Exit) Regulations 2019. This ensures that extended family members are able to exercise their right of appeal where they meet the relevant definition at regulation 8 of the 2016 Regulations.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Adoption, Article 8, Citizens Directive, CJEU, ECHR, Entry Clearance, European Union, Free Movement and tagged , , , , , . Bookmark the permalink.

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