SM (Algeria) v Entry Clearance Officer, UK Visa Section [2018] UKSC 9

A child placed with EU citizen guardians in Algeria under the Islamic kefalah system sought entry to the UK. The Supreme Court referred questions to the CJEU on whether she qualifies as a 'direct descendant' under the Citizens Directive, and confirmed appeal jurisdiction.

Facts

Susana, an Algerian national born in June 2010, was abandoned at birth and placed under the legal guardianship of Mr and Mrs M, French nationals resident in the UK, pursuant to the Islamic ‘kefalah’ system. An Algerian legal custody deed transferred parental responsibility to them, requiring them to provide Islamic education, care for the child, and treat her as natural parents. Mr M returned to the UK in October 2011, and Susana applied for entry clearance in May 2012 as the adopted child of an EEA national under regulation 12 of the Immigration (European Economic Area) Regulations 2006.

The Entry Clearance Officer refused on the basis that Algeria was not party to the 1993 Hague Convention on Intercountry Adoption and not designated under UK adoption recognition legislation, and no section 83 application under the Adoption and Children Act 2002 had been made. The First-tier Tribunal dismissed Susana’s appeal. The Upper Tribunal found she qualified as an ‘extended family member’ under regulation 8. The Court of Appeal reversed, holding that because she had not been adopted in a form recognised by UK law, she could not qualify under article 2.2(c) of Directive 2004/38/EC, and the UK’s restrictions could not be circumvented via article 3.2(a).

Issues

The Supreme Court identified two substantive EU law issues and one jurisdictional issue:

• Whether a child placed in permanent legal guardianship under kefalah is a ‘direct descendant’ within article 2.2(c) of the Citizens Directive.
• Whether, if not a direct descendant, the child falls within article 3.2(a) as an ‘other family member’ whose entry the host state must facilitate.
• Whether the Supreme Court had jurisdiction to hear the appeal, given the Upper Tribunal’s decision in Sala that there was no statutory right of appeal against refusals concerning extended family members.

Arguments

The appellant and interveners (Coram Children’s Legal Centre and the AIRE Centre) contended that ‘direct descendant’ in article 2.2(c) is an autonomous concept of EU law, capable of including children in permanent legal guardianship such as kefalah, and that a narrower interpretation discriminated against those whose religious or cultural beliefs are incompatible with adoption as understood in UK law. Alternatively, Susana fell within article 3.2(a).

The Secretary of State argued that the Directive permitted member states to restrict the forms of adoption recognised for the purposes of article 2.2(c), and that recognising Susana under article 3.2(a) would undermine domestic safeguards in the Adoption and Children Act 2002 and the Hague Convention. On jurisdiction, the Secretary of State initially drew attention to Sala suggesting no appeal lay.

Judgment

Article 3.2(a)

Lady Hale (with whom Lord Kerr, Lord Wilson, Lord Reed and Lord Hughes agreed) held that Susana would clearly fall within article 3.2(a) if not within article 2.2(c). The 2006 Regulations’ use of ‘relative’ introduced a narrower test than the Directive’s broader concept of ‘family member’. All that is required is that the person falls within the broad concept of family member, was a dependant or member of the household, and that this was in the country from which they have come. Susana satisfied all three conditions. The host member state’s duty is to facilitate entry and conduct an extensive examination, informed by section 55 of the Borders, Citizenship and Immigration Act 2009, article 3.1 UNCRC, and article 24.2 of the EU Charter. Refusal would be justified where there was risk of exploitation, abuse, trafficking, or failure to respect the birth family’s rights.

Article 2.2(c)

The Court could not simply allow the appeal on article 3.2(a) if Susana actually fell within article 2.2(c), which would confer automatic rights of entry and residence. Several factors indicated that ‘direct descendant’ may extend beyond consanguineous or lawfully adopted children: the Commission’s 2009 guidance suggests it extends to ‘minors in custody of a permanent legal guardian’; EU terminology normally requires autonomous and uniform interpretation (citing Advocate General Bot in Rahman and Advocate General Wathelet in Coman); and a uniform interpretation advances the Directive’s purpose of facilitating free movement. However, a broader interpretation risks opening routes to exploitation, abuse and trafficking, concerns the Hague Convention sought to prevent. Articles 27 and 35 might not adequately protect against such risks.

The Court held that the position was not acte clair and referred three questions to the CJEU: whether a kefalah child is a ‘direct descendant’; whether articles 27 and 35 permit refusal where there is risk of exploitation, abuse or trafficking; and whether a member state may inquire into whether the guardianship procedure gave sufficient consideration to the child’s best interests.

Jurisdiction

The Court addressed the Sala point, which held there was no statutory right of appeal for extended family members because the grant involved a discretion rather than an ‘entitlement’. Shortly before the second hearing, the Court of Appeal in Khan v Secretary of State [2017] EWCA Civ 1755 had overruled Sala, holding that a decision which ‘concerns’ an entitlement naturally includes a decision whether to grant such an entitlement, and that even discretionary decisions must be made lawfully. The Supreme Court agreed with Khan, endorsed its reasoning, and overruled Sala. Lord Wilson observed during argument that jurisdiction cannot depend on fine judgments as to the proportionality of refusal.

Implications

The decision confirms that refusals relating to extended family members under the 2006 Regulations were appealable, overruling Sala. This aspect is, however, of reduced ongoing significance because the 2016 Regulations expressly exclude such decisions from the definition of ‘EEA decision’ – an issue pending before the CJEU in Banger.

On the substantive EU law issues, the Court’s reasoning indicates a willingness to construe ‘family member’ in article 3.2(a) broadly, untethered from the narrower domestic concept of ‘relative’, and to require a holistic welfare-based examination informed by section 55, the UNCRC, and the EU Charter. Relevant factors include whether the child was abandoned, the suitability assessment of guardians, the reasons for not using UK intercountry adoption procedures, cultural and religious background, and the closeness of family relationships.

By referring the article 2.2(c) question, the Court recognised the tension between respect for diverse legal and religious traditions (particularly those in which adoption as a full transfer of lineage is impermissible) and the child protection objectives of the Hague Convention and UK adoption law. The outcome of the reference will significantly affect the position of children placed under kefalah or equivalent guardianship arrangements with EU citizens, and the ability of member states to impose safeguards while respecting free movement rights.

Verdict: The Supreme Court held that it had jurisdiction to hear the appeal (overruling Sala and endorsing Khan), and referred three questions to the Court of Justice of the European Union concerning the interpretation of articles 2.2(c), 27 and 35 of Directive 2004/38/EC in relation to children placed under kefalah guardianship. The substantive appeal was adjourned pending the CJEU’s preliminary ruling.

Source: SM (Algeria) v Entry Clearance Officer, UK Visa Section [2018] UKSC 9