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Lady Hale found reason to consider that Susana qualified for automatic rights of entry and asad-khanresidence as a “direct descendant” which includes consanguineous children, grandchildren and other blood descendants in the direct line. The parties agreed that the expression must include those descendants who have been lawfully adopted in accordance with the requirements of the host member state. Yet the court opined that its reach is wider than that. “Direct descendant” is an autonomous term in EU law and it needs to be uniformly interpreted throughout the EU. Four points confirmed this analysis.

First of all, guidance on the Directive’s better transposition and application (Com (2009) 313 final) extends the notion of direct relatives in the descending and ascending lines to adoptive relationships or minors in custody of a permanent legal guardian. The degree of relatedness in unrestricted. Secondly, it was clear from AG Bot’s reasoning in Rahman (C-83/11, EU:C:2012:174) that “direct descendant” is an autonomous term in EU law which must be given a uniform interpretation throughout the EU. Thirdly, AG Wathelet’s opinion in Coman (C-673/16, ECLI:EU:C:2018:2, see here) confirmed the accuracy of that analysis in the context of the ability of same-sex partners to count as spouses. Fourthly, such a uniform interpretation accords with the Directive’s purpose.

The inconsistent recognition of kefalah children as direct descendants among member states erects barriers to free movement for EU citizens with such children. Equally, discrimination arises against persons unable to accept the western concept of adoption, i.e. the complete transfer of a child from one family and lineage to another. Conversely, construing “direct descendant” autonomously was different from construing the expression broadly. It was not acte clair that a child in Susana’s position is not to be regarded as a direct descendant of her guardians under art 2.2(c). In addition to highlighting the problems of exploitation, abuse and trafficking in children, Lady Hale also expressed concerned that conferring an automatic right of entry for kefalah children might result in some of them being placed in homes which would have been rejected as unsuitable domestically.

The existing authorities were unclear whether art 2.2 was capable of accommodating a child such as Susana. The Directive’s abuse of rights provisions might be ineffective to prevent a child being the victim of exploitation, abuse or trafficking whether that child was a third country national or a national of another member state. Observing that Susana’s entry clearance matter had been in litigation since 2012, the Supreme Court referred the following question to the CJEU as a matter of urgency:

(1) Is a child who is in the permanent legal guardianship of a Union citizen or citizens, under “kefalah” or some equivalent arrangement provided for in the law of his or her country of origin, a “direct descendant” within the meaning of article 2.2(c) of Directive 2004/38?

(2) Can other provisions in the Directive, in particular articles 27 and 35, be interpreted so as to deny entry to such children if they are the victims of exploitation, abuse or trafficking or are at risk of such?

(3) Is a member state entitled to inquire, before recognising a child who is not the consanguineous descendant of the EEA national as a direct descendant under article 2.2(c), into whether the procedures for placing the child in the guardianship or custody of that EEA national was such as to give sufficient consideration to the best interests of that child?

(ii) Jurisdiction

The justices also held that the decision in Sala is to be deprecated and that Irwin LJ’s reasoning in Khan is to be followed on the interpretation of reg 26 of the 2006 Regulations. Indeed, the Supreme Court had no doubt that the outcome in Khan is correct “and that Sala should be overruled.” Therefore, Susana enjoyed a right of appeal in relation to both arts 2.2 and 3.2 of the Directive.

As for the reference made to the CJEU in Banger [2017] UKUT 125, Lady Hale said that the justices keenly await the response to the four questions referred, especially the issue regarding the compatibility with the Directive of a national rule precluding an appeal to a court or tribunal against a decision of the executive refusing to issue a residence card to a person claiming to be an EFM.

Irrespective of the ratio of Khan, the question is not moot because the Immigration (European Economic Area) Regulations 2016 have supplanted the 2006 Regulations. Significantly, decisions to refuse to issue an EEA family permit, a registration certificate or a residence card to an EFM have been expressly excluded from the definition of an “EEA decision” in reg 2(1). Thus, rights of appeal for EFMs still continue to hang in the balance.

Comment

Islamic law prohibits adoption. But it uses the concept of kefalah to promote the welfare of abandoned and orphaned children. Through this judgment, Lady Hale not only sought to emphasise the importance of protecting all children from the dangers of exploitation, abuse and trafficking but also took the opportunity to remind us of her historic statement in ZH (Tanzania) [2011] UKSC 4 that “the best interests of the child must be a primary consideration.” Conversely, the Supreme Court’s reluctance to expand the scope of Khan is problematic because immigration judges are using the justices’ keen interest in Banger – and their intransigence to decide the issue conclusively – as an excuse to hold that EFMs do not have a right of appeal against the refusal of a residence card under the 2016 Regulations.

Tribute must be paid to the late Navtej Singh Ahluwalia who, together with Manjit Gill QC, spearheaded Coram Children’s Legal Centre’s intervention in this appeal. In addition to Susana’s case, by fighting for justice for the underprivileged in other historic cases such as MM (Lebanon) [2017] UKSC 10 (see here), he shaped the practice of human rights in the UK over the past decade.

Please see Part One here.

This article was originally posted here.