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 placed in the legal guardianship of European Union citizens under the Islamic ‘kefalah’ system in her own country.
Held: The Court had jurisdiction to hear the matter but referred three questions to the European Court of Justice.
S would fall within article 3.2(a) if she does not fall within article 2.2(c). The 2006 Regulations have caused confusion by introducing the word ‘relative’ which nowhere appears in article 3.2(a). ‘Family member’ is a wider term than ‘relative’ as it is well capable of including people who are not related by consanguinity or affinity. All that is required is that the person (i) falls within the broad concept of ‘family member’; (ii) was either a dependant or a member of the household of the Union citizen; and (iii) that dependency or household membership was in the country from which the person has or would come. A child for whom the Union citizen has parental responsibility under the law of the child’s country of origin is clearly capable of being regarded as a family member; S was both a dependant and a member of the household of Mr and Mrs M; and this was in Algeria, the country from which she would be coming to this country.
‘If some member states recognise ‘kefalah’ children as direct descendants but others do not, this clearly places barriers to free movement for those European Union citizens who have such children. It also discriminates against those who, for religious or cultural reasons, are unable to accept the concept of adoption as it is understood in the UK and some other European countries, that is, as the complete transfer of a child from one family and lineage to another. On the other hand, the fact that the term ‘direct descendant’ may have an autonomous meaning does not necessarily entail that it should have a broad meaning.
We therefore cannot consider it acte clair that a child in Susana’s position is not to be regarded as a direct descendant of her guardians for the purpose of article 2.2(c). At the same time, we are concerned that such an interpretation could, in some cases, create opportunities for exploitation, abuse and trafficking in children, which it was the object of the Hague Convention to prevent and deter. We are also concerned that an automatic right of entry for ‘kefalah’ children might lead to some of them being placed in homes which domestically would have been rejected as unsuitable.’

Lady Hale, President, Lord Kerr, Lord Wilson, Lord Reed, Lord Hughes
[2018] UKSC 9, [2018] 1 WLR 1035, [2018] 3 All ER 177, [2018] INLR 368, [2018] WLR(D) 91, UKSC 2015/0243
Bailii, Bailii Summary, WLRD, SC, SC Summary,
Immigration (European Economic Area) Regulations 2006 (SI 2006/1003), Council Directive 2004/38/EC, Adoption and Children Act 2002 83, Adoption with a Foreign Element Regulations 2005
England and Wales
At AITIM240192005 (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. . .
Appal from (CA)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 . .
CitedSecretary of State for The Home Department v Islam and Another ECJ 5-Sep-2012
ECJ Directive 2004/38/EC – Right of citizens of the Union and their family members to move and reside freely within the territory of the Member States – Article 3(2) – Obligation to facilitate, in accordance with . .
CitedSala (EFMS: Right of Appeal : Albania) UTIAC 19-Aug-2016
UTIAC There is no statutory right of appeal against the decision of the Secretary of State not to grant a Residence Card to a person claiming to be an Extended Family Member. Because decisions concerning . .
CitedComan and Others v Inspectoratul General Pentru Imigrari and Others ECJ 11-Jan-2018
(Opinion) Reference for a preliminary ruling – Citizenship of the Union – Directive 2004/38/EC – Article 2(2)(a) – Concept of ‘spouse’ – Right of citizens of the Union to move and reside within the territory of the Union – Marriage between persons . .
CitedKhan v Secretary of State for The Home Department and Another CA 9-Nov-2017
The Secretary of State had refused to grant a residence card to the Pakistani nephew of a German national. The Court was asked whether there is jurisdiction for the First-tier Tribunal to hear an appeal from a refusal by the Secretary of State for . .
ECJ decision awaitedBanger (Unmarried Partner of British National : South Africa) UTIAC 30-Mar-2017
The Upper Tribunal has referred the following questions to the CJEU for a preliminary ruling under Article 267 TFEU:
(1) Do the principles contained in the decision in Immigration Appeal Tribunal and Surinder Singh, ex parte Secretary of State . .

Lists of cited by and citing cases may be incomplete.

Immigration, European, Children, Adoption

Updated: 04 January 2022; Ref: scu.604792