Supreme Court: Reference to CJEU on Kefalah Childrenasad-khan

This appeal concerning legal guardianship under the Islamic “kefalah” system provided the Supreme Court the opportunity to refer three questions to the CJEU. The justices also held, as the Court of Appeal had done in Khan [2017] EWCA Civ 1755, that Sala [2016] UKUT 0411 (IAC) was wrongly decided and that an extended family member (EFM) does indeed enjoy a statutory right of appeal against the refusal of a residence card. Pursuant to Algerian law “Susana” was placed into Mr and Mrs M’s legal guardianship. She had been abandoned at birth and parental responsibility was transferred to them by decree. The couple hold French passports and sought entry clearance for Susana as the adopted child of an EEA national under reg 12(1), or alternatively 12(2) of the Immigration (European Economic Area) Regulations 2006. However, entry clearance was refused on two grounds. Firstly, Algerian guardianship was not recognised as an adoption in UK law as Algeria was not a party to the Hague Convention on Intercountry Adoption 1993 and was not named in the Adoption (Designation of Overseas Adoptions) Order 1973 then in force. Secondly, no application had been made for intercountry adoption under s 83 of the Adoption and Children Act 2002 Act. The First-tier Tribunal upheld the decision.

But the Upper Tribunal allowed Susana’s appeal. FK and MK [2007] UKAIT 00038 precluded Susana from being a direct descendent because she was not legally adopted. She was also not a family member. However, UTJ Allen and DUTJ Bruce were attracted to interpreting EU law purposively and found that Susana was an EFM. Applying the Human Rights Act 1998, s 3(1), they construed reg 8 in conformity with ECHR, art 8. Laws, Kitchin and Christopher Clarke LJJ allowed the ECO’s onward appeal. They held that Susana was not entitled to entry clearance because under the provisions of the 2006 Regulations she could not be categorised as a family member, EFM or relative of her adoptive parents. In the Court of Appeal’s view the refusal did not breach European or international obligations concerning children’s welfare. The court concluded that the UK’s rules regarding inter-country adoptions are wholly consistent with EU law and are a reasonable and proportionate means of giving effect to international obligations relating to children’s welfare. Laws LJ declined to make a reference to the CJEU.

Legislative Context

At the material time, art 7 of the 2006 Regulations transposed art 2 of the Directive which includes “direct descendants who are under the age of 21 or are dependants”. Moreover, art 8 of the 2006 Regulations transposed art 3 which obliges member states to facilitate, in accordance with their national legislation, the entry and residence of EFMs. Family members have automatic rights of entry and residence whereas other family members (or EFMs) may apply for a residence card, the grant of which is discretionary.

The Supreme Court

Lady Hale and Lords Kerr, Wilson, Reed and Hughes unanimously held that they had jurisdiction to hear the appeal because the outcome in Sala was plainly incorrect. The justices also referred a trio of questions to the CJEU for a preliminary ruling. Lady Hale’s presidential judgment first addressed the substantive issues in Susana’s appeal and then disposed of the jurisdictional issue.

(i) Substantive Issues

After examining the Citizens’ Directive (2004/38/EC), art 3.2(a), the court found that its transposition into reg 8 of the 2006 Regulations is inaccurate because it erroneously imposes a requirement for the dependant or member of the household to be a “relative” of the EEA national. She discerned that another error in transposition – warranting that they both live or have lived in the same country outside the UK – had been corrected in November 2012 when the words “in which the EEA national also resides” were deleted from reg 8(2)(a).

Little doubt existed in Lady Hale’s mind that art 3.2(a) would provide coverage to Susana in the event she did not fall within art 2.2(c). In that regard, she thus distanced herself from Laws LJ’s inflexible stance. She interpreted “family member” generously to include people unrelated by consanguinity or affinity. The expression is “clearly capable” of covering a child such as Susana for whom the EU citizen has parental responsibility pursuant to law of the child’s country of origin. Domestic legislation relating to foreign adoptions is relevant to the examination of whether to exercise the discretion to facilitate entry and residence. Acknowledging that refusal would be justified in principle where the child is the victim of exploitation, abuse or trafficking, or the birth family’s rights have been breached, Lady Hale held:

  1. But the fact that the arrangements did not comply in every respect with the stringent requirements of UK adoption law would not be determinative.

In light of the statutory duty owed to children under the Borders, Citizenship and Immigration Act 2009, s 55 and the obligation owed by member states under the Charter of Fundamental Rights of the European Union, art 24.2 her Ladyship opined:

  1. In a case such as this, the need to safeguard and promote children’s welfare would obviously encompass the need to protect all children from the dangers of exploitation, abuse and trafficking. But the best interests of the individual child must also be a primary consideration.

To that end, the court listed detailed factors such as Susana’s abandonment by her birth family; the prospects of her upbringing in Algeria without kefalah guardianship; whether her guardians underwent a suitability assessment in Algeria; whether all the legal procedures in Algeria had been followed; the reasons behind her guardians’ failure to adhere to the UK’s intercountry adoption procedures; the cultural and religious background of both the child and her guardians and the compatibility of UK adoption with their religious beliefs; the guardians’ commitment to meeting their legal obligations to the child; and the degree of integration of the child into the guardians’ family and household and how close and beneficial their relationships are with one another.

To make the correct evaluation first instance decision-makers and appellate tribunals must remember that the Directive’s purpose is to simplify and strengthen the right of free movement and residence for all EU citizens. Notably, freedom of movement is one of the fundamental freedoms of the internal market and living in separation from family members – or members of the wider family – presents a powerful deterrent to exercising that freedom.

Please see Part Two here.

This article was originally posted here.