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On appeal from: [2015] EWCA Civ 1109

This appeal considered whether the appellant is a ‘direct descendant’ or ‘extended family member’ within the meaning of the Immigration (European Economic Area) Regulations 2006, Regs 7 and 8.

The substantive issues in this case concerned the position under the Directive 2004/38/EC of a child who is a third country national but has been placed in the legal guardianship of EU citizens under the Islamic “kefalah” system in her own country.

Lady Hale referred the following three questions to the CJEU for a preliminary ruling:

(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 Directive 2004/38, art 2.2(c)?

(2) Can other provisions in the Directive, in particular arts 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 art 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?

On the question of jurisdiction, it was held that Sala v SSHD [2016] UKUT 411 had rightly been overruled by the Court of Appeal in a subsequent decision on the interpretation of the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003), reg 26. Accordingly, the appellant did enjoy a right of appeal in respect of both arts 2(2c) and 3(2a).

For judgment, please download: [2018] UKSC 9
For Court’s Press Summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII

To watch the hearing, please visit: Supreme Court Website (23 Mar 2017 morning session) (29 Nov 2017 morning session) (29 Nov 2017 afternoon session)