SM (Algeria) v Entry Clearance Officer, UK Visa Section: CA 4 Nov 2015

The Entry Clearance Officer appealed from a decision that a child assigned to be under guardianship under the Islamic ‘kefalah’ system in her own country was to be treated on the basis that she did fall within the definition of ‘extended family member’ under regulation 8. The case was therefore returned to the Secretary of State for her to exercise the discretion conferred upon her by regulation 12(2)(c).
Held: The ECO’s appeal succeeded. The real question was not whether S fell within the definition of ‘family member’ in regulation 7 or the definition of ‘extended family member’ in regulation 8. Rather, it was whether she was a ‘direct descendant’ within the definition of ‘family member’ in article 2.2(c) of the Citizens Directive; or alternatively whether she fell within ‘any other family members, . . , who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence . . ‘ in article 3.2(a). The Directive permitted Member States to restrict the forms of adoption which they would recognise for the purpose of article 2.2(c). Not having been adopted in a manner recognised by UK law, S could not fall within that article; and that being so, those restrictions could not be undermined by recognising that she might fall within article 3.2(a).

Laws, Kitchin, Christopher LJJ
[2015] EWCA Civ 1109, [2016] Imm AR 239, [2015] CN 1756
Immigration (European Economic Area) Regulations 2006 (SI 2006/1003)
England and Wales
Appeal fromIM240192005 (Unreported) AIT 12-Feb-2007
Reconsideration of the appeal of the appellant, a citizen of India, against the decision of the respondent on 12 March 2004 refusing her entry clearance to the United Kingdom as an adoptive child.
Held: The case was ordered to be reviewed. . .
CitedMN (India) v Entry Clearance Officer (New Delhi) v Secretary of State for the Home Department CA 5-Feb-2008
The Court set out four avenues for entry to the UK provided by the Rules in respect of a child adopted or intended to be adopted from abroad. . .

Cited by:
Appal from (CA)SM (Algeria) v Entry Clearance Officer, UK Visa Section SC 14-Feb-2018
The Court was asked two questions, first as to its jurisdiction according to the meaning of an ‘EEA Decision’ within the 2006 Regulations, and second as to the position under the Directive of a child who is a third country national but has been . .

Lists of cited by and citing cases may be incomplete.

Immigration, Adoption, European

Updated: 27 December 2021; Ref: scu.554279