SM v Entry Clearance Officer, UK Visa Section (C-129/18 SM 26 March 2019)
The UK Supreme Court asked the CJEU to clarify whether an Algerian child resident in Algeria but guardianship of whom had been awarded to a French couple residing in the UK under the (informal adoption) Kafala system was entitled to join the parents in the UK under the EEA family permit rules.
The CJEU confirmed that the concept of a ‘direct descendant’ of an EU citizen does not include a child who has been placed in the permanent legal guardianship of an EU citizen under the Algerian Kafala system since it does not create any parental-child relationship and the child does not automatically become the guardian’s heir.
The CJEU, however, did find that the child is an ‘other family member’ under Article 3(2)(a) Directive 2004/38. The court stressed that the existence of a family tie once established, must be enabled to develop and it is for the state to establish legal safeguards that render possible the child’s integration in his or her family. This decision limits the discretion of Member states to exclude kafala children under Article 3(2)(a) Directive 2004/38. The CJEU call on the state authorities to assess whether the family is leading a genuine family life, that the child is dependent on the guardians in the light of the duty to respect family life and to take account of the best interests of the child.
Finally, this CJEU decision warns the Member States no to seek to rely on the effectiveness of the obstacles which they themselves have created to the enjoyment of family life between parents and a Kafala child to justify finding that family life has not been sufficiently evidenced.