Case C‑129/18
SM
v
Entry Clearance Officer, UK Visa Section
(Request for a preliminary ruling from the Supreme Court of the United Kingdom)
Judgment of the Court (Grand Chamber), 26March 2019
(Reference for a preliminary ruling— Citizenship of the European Union— Right of citizens of the Union and their family members to move and reside freely within the territory of the Member States— Directive 2004/38/EC— Family members of a citizen of the Union— Article2(2)(c)— ‘Direct descendant’— Child in permanent legal guardianship under the Algerian kafala (provision of care) system— Article3(2)(a)— Other family members— Article7 and Article24(2) of the Charter of Fundamental Rights of the European Union— Family life— Best interests of the child)
1.Citizenship of the Union— Right to move and reside freely in the territory of the Member States— Directive 2004/38— Beneficiaries— Dependent family member— Direct descendants— Concept— Biological or adopted child of a citizen of the Union— Included— Child placed in the permanent legal guardianship of a citizen of the Union under the Algerian kafala system— Not included
(European Parliament and Council Directive 2004/38, Art.2(2)(c))
(see paragraphs 52, 54-56, 73, operative part)
2.Citizenship of the Union— Right to move and reside freely in the territory of the Member States— Directive 2004/38— Beneficiaries— Other family members of a citizen of the Union, who are third-country nationals, not covered by the definition in Article2(2) of the directive— Concept— Child placed in the permanent legal guardianship of a citizen of the Union under the Algerian kafala system— Included— Obligation for the Member States to facilitate the entry and residence of such a child— Obligation to take into consideration the best interests of the child
(Charter of Fundamental Rights of the European Union, Arts7 and 24(2); European Parliament and Council Directive 2004/38, Art.3(2)(a))
(see paragraphs 57-65, 67-71, 73, operative part)
Résumé
A minor for whom a citizen of the Union assumes responsibility under the Algerian kafala system may not be regarded as a ‘direct descendant’ of that citizen
In the judgment SM (Child placed under Algerian kafala) (C‑129/18), delivered on 26March 2019, the Court, sitting as the Grand Chamber, gave a ruling on whether a minor for whom citizens of the Union assume responsibility under the Algerian kafala system is included in the concept of a ‘direct descendant’ of a citizen of the Union as referred to in Article2(2)(c) of Directive 2004/38.(1) Two spouses of French nationality residing in the United Kingdom had applied to the United Kingdom authorities for entry clearance for an adopted child on behalf of an Algerian minor who had been placed in their guardianship in Algeria under the kafala system. That institution in the family law of some countries that follow the Koranic tradition provides for the assumption by one or more adults of responsibility for the care, education and protection of a child and for the placing of that child in their permanent legal guardianship. The United Kingdom authorities refused to grant that clearance.
The Court first of all emphasised that, although the concept of a ‘direct descendant’ of a citizen of the Union referred to in Article2(2)(c) of Directive 2004/38 primarily focuses on the existence of a biological parent-child relationship, it must also be understood, having regard to the requirement for that concept to be construed broadly which derives from the objective of that directive, namely to facilitate and strengthen the freedom of movement and residence of citizens of the Union, as also including 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. By contrast, it held that, as the Algerian kafala system does not create a parent-child relationship between the child and its guardian, a child who is placed in the legal guardianship of a citizen of the Union under that system cannot be regarded as a ‘direct descendant’ of a citizen of the Union for the purposes of Article2(2)(c) of that directive.
However, the Court considered that such a child does fall under the definition of one of the ‘other family members’ referred to in Article3(2)(a) of that directive. That concept is capable of covering the situation of a child who has been placed with citizens of the Union under a legal guardianship system such as Algerian kafala and in respect of whom those citizens assume responsibility for its care, education and protection, in accordance with an undertaking entered into on the basis of the law of the child’s country of origin.
In that regard, the Court then clarified the burden on national authorities under that provision. It thus stated that it is for those authorities, under Article3(2)(a) of Directive 2004/28, read in the light of Article7 and Article24(2) of the Charter of Fundamental Rights of the European Union, to facilitate the entry and residence of such a child as one of the other family members of a citizen of the Union by carrying out a balanced and reasonable assessment of all the current and relevant circumstances of the case which takes account of the various interests in play and, in particular, of the best interests of the child concerned. In the context of that assessment, it is also necessary to take account of possible tangible and personal risks that the child concerned will be the victim of abuse, exploitation or trafficking, on the understanding that such risks cannot, however, be assumed solely in the light of the fact that the procedure for placement under the Algerian kafala system is based on an assessment of the suitability of the adult and of the interests of the child which is less extensive than the procedure carried out in the host Member State for the purposes of an adoption or the placement of a child.
The Court concluded that, in the event that it is established, following such an assessment, that the child and its guardian, who is a citizen of the Union, are called to lead a genuine family life and that that child is dependent on its guardian, the requirements relating to the fundamental right to respect for family life, combined with the obligation to take account of the best interests of the child, demand, in principle, that that child be granted a right of entry and residence in order to enable it to live with its guardian in his or her host Member State.
1Directive 2004/38/EC of the European Parliament and of the Council of 29April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L158, p.77).