SM (Algeria) v Entry Clearance Officer, UK Visa Section

For the purposes of Article 2 of Directive 2004/38/EC, a direct descendant includes a legally adopted child. The Directive nevertheless leaves Member States to determine which overseas adoptions they will recognise. National rules may protect children and reflect international obligations, provided they are reasonable and proportionate. Article 3(2)(a) concerns other family members by reference to relative proximity, not legal formalities. It does not require recognition of an adoption excluded under Article 2. Shared family life alone does not make a person a relative under Regulation 8. Section 3 of the Human Rights Act applies only where the unmodified legislation would breach a Convention right.

The respondent, an Algerian child placed with French sponsors under the Algerian kafalah system, sought an EEA family permit to join them in the United Kingdom. The Entry Clearance Officer refused the application, concluding that she was not a family member and did not satisfy the domestic adoption requirements.

The First-tier Tribunal dismissed her appeal, finding that she was not a family member, extended family member or adopted child, and that refusal was proportionate under Article 8. The Upper Tribunal agreed that she was not a family member under Regulation 7 but allowed the appeal after treating her as an extended family member under Regulation 8. The central issues were whether she was a direct descendant under Article 2 of Directive 2004/38/EC, and, alternatively, whether Article 3(2)(a) and Regulation 8 applied.

Appeal allowed. Laws LJ gave the leading judgment. Kitchin LJ and Christopher Clarke LJ agreed.

1. The court rejected the argument that section 3 of the Human Rights Act required a Convention-compatible construction of Regulation 8. Section 3 is relevant only where, without that interpretive approach, there would be a breach of the Convention. The unappealed finding that refusal of entry clearance was proportionate meant that no such breach arose.
2. Article 2(2)(c) of Directive 2004/38/EC extends the ordinary concept of direct descendants to legally adopted children. EU law, however, provides no common lexicon determining which overseas adoptions Member States must recognise. The matter is left to Member States, subject to their obligations to protect children and to the requirements of EU law.
3. The United Kingdom’s adoption arrangements, including the routes identified in MN (India) [2008] EWCA Civ 38, were a reasonable and proportionate means of protecting children. They were not inconsistent with EU law. The respondent did not satisfy those arrangements and was therefore not a family member under Article 2 or Regulation 7.
4. Article 3(2)(a) does not provide an alternative route for recognition of an adoption excluded under Article 2. The distinction between family members and other family members turns on relative proximity to the EEA national, rather than on legal formalities. Collateral relatives may fall within Article 3, as illustrated by Secretary of State v Rahman Case C-83/11, but shared family life alone did not make this respondent a relative for Regulation 8 purposes.
5. The court allowed the Entry Clearance Officer’s appeal. The respondent was not entitled to an EEA family permit on the grounds advanced.

1. Court of Appeal (Civil Division): allowed the Entry Clearance Officer’s appeal. [2015] EWCA Civ 1109
2. Upper Tribunal: allowed the respondent’s appeal against the First-tier Tribunal and remade the decision, holding that she could qualify as an extended family member under Regulation 8.
3. First-tier Tribunal: dismissed the appeal against refusal of the EEA family permit, finding that the respondent was not a family member, extended family member or adopted child, and that refusal was proportionate under Article 8.