SM v Entry Clearance Officer, UK Visa Section

A child placed in the permanent legal guardianship of a Union citizen under a foreign kefalah arrangement may fall within the wider concept of a family member under article 3.2(a) of Directive 2004/38/EC. The child must have been dependent upon, or a member of the household of, the Union citizen in the country from which the child comes.

The state must examine the personal circumstances extensively. Adoption safeguards, risks of exploitation, abuse or trafficking, the individual child’s best interests and the effectiveness of free movement are material considerations.

Whether such a child is instead a direct descendant under article 2.2(c), with automatic rights of entry and residence, requires an autonomous and uniform EU interpretation. A decision whether to grant an entitlement under the EEA Regulations concerns that entitlement and attracts the statutory right of appeal.

The appellant was an Algerian child placed permanently in the legal guardianship of two French citizens under Algerian kefalah. The guardians had parental responsibility under Algerian law, but the arrangement was not an adoption recognised under the law of England and Wales. An Entry Clearance Officer refused her application for an EEA family permit.

The First-tier Tribunal dismissed her appeal. The Upper Tribunal held that she was not a family member but was an extended family member, and returned the matter for exercise of the discretion under regulation 12(2)(c) of the Immigration (European Economic Area) Regulations 2006. The Court of Appeal allowed the Entry Clearance Officer’s appeal in [2015] EWCA Civ 1109.

The Supreme Court had to determine whether it possessed appellate jurisdiction and whether a child subject to permanent kefalah guardianship was a direct descendant under article 2.2(c), or another family member under article 3.2(a), of Directive 2004/38/EC.

1. Jurisdiction upheld and preliminary reference made. Lady Hale, with whom Lord Kerr, Lord Wilson, Lord Reed and Lord Hughes agreed, held that the courts and tribunals had jurisdiction. The Court referred three questions concerning article 2.2(c) of Directive 2004/38/EC to the Court of Justice of the European Union for an urgent preliminary ruling. The appeal’s substantive disposal awaited that ruling.

2. If the child did not fall within article 2.2(c), she was capable of falling within article 3.2(a). “Family member” in that provision was wider than “relative” and could include a person unrelated by consanguinity or affinity. It was sufficient that the child fell within the broad family concept, had been dependent upon or part of the Union citizen’s household, and that the dependency or household membership existed in the country from which she would come. A child for whom the Union citizen held parental responsibility under the law of that country was clearly capable of satisfying the family requirement: paras 17–18.

3. Article 3.2(a) required the host state to facilitate entry, examine the personal circumstances extensively and justify any refusal. Foreign-adoption safeguards were relevant, particularly where exploitation, abuse or trafficking was suspected. Non-compliance with every requirement of domestic adoption law was not determinative. The individual child’s best interests had to be a primary consideration alongside the protection of children generally. Decision-makers also had to consider whether family separation would deter the Union citizen’s exercise of free movement: paras 18–21.

4. The meaning of “direct descendant” in article 2.2(c) could not safely be treated as governed by the host state’s adoption law. The absence of a reference to national law indicated an autonomous and uniform EU concept. The Court could not regard it as acte clair that permanent kefalah guardianship fell outside that concept. A broad interpretation nevertheless created concerns about exploitation, trafficking and unsuitable placements. The Court therefore also asked whether articles 27 and 35 permitted refusal on those grounds and whether the state could examine whether the guardianship procedure had sufficiently protected the child’s best interests: paras 22–33.

5. A decision whether to grant an entitlement was a decision which “concerns” that entitlement within regulation 2(1) of the Immigration (European Economic Area) Regulations 2006. The presence of administrative discretion did not remove the right of appeal because the discretion had to be exercised lawfully. The Court approved Khan and overruled Sala: paras 34–39.

1. United Kingdom Supreme Court: Held unanimously that it had jurisdiction and referred three questions concerning Directive 2004/38/EC to the Court of Justice of the European Union: [2018] UKSC 9.
2. Court of Appeal: Allowed the Entry Clearance Officer’s appeal, holding that the child was neither a direct descendant under article 2.2(c) nor entitled to circumvent domestic adoption restrictions through article 3.2(a): [2015] EWCA Civ 1109; [2016] Imm AR 239.
3. Upper Tribunal: Upheld the conclusion that the child was not a family member under regulation 7, but held that she was an extended family member under regulation 8 and returned the case for exercise of the regulation 12(2)(c) discretion.
4. First-tier Tribunal: Dismissed the child’s appeal, holding that she did not qualify under the Immigration Rules or the Immigration (European Economic Area) Regulations 2006.