Professor Steve Peers, University of Essex

*This blog post expands on research that informed the upcoming revised edition of The EU Citizenship Directive (OUP, 2019), co-authored by myself, Elspeth Guild, and Jonathan Tomkin.

Defining a “family member” legally can be complex, especially when it comes to immigration law and child welfare. The recent Court of Justice of the European Union (CJEU) judgment in the SM case highlights these complexities, particularly where EU free movement law intersects with the family law of non-EU nations.

EU Law Context

The EU’s Citizens’ Directive outlines the movement rights of EU citizens and their families within the EU. It designates “family members” as those listed in Article 2(2)(c), including “direct descendants” under 21 or dependent children of a spouse or partner.

Article 3(2) introduces the concept of “beneficiaries,” encompassing individuals who may not meet the Article 2(2)(c) “core family member” definition but are still granted facilitated entry and residence in a host Member State. This group includes other dependent family members or those who require care from an EU citizen residing in the host country. The Directive grants Member States flexibility in determining entry for these “extended family members” while obligating them to thoroughly review personal circumstances and provide justification for any denial.

While previous CJEU cases have clarified aspects like “dependency,” the interpretation of “direct descendants” remained unaddressed. This case presented an opportunity to clarify the term, particularly regarding a child’s guardianship under the Algerian kafala system.

Case Background

The case, as detailed in the UK Supreme Court judgment, involves a French couple residing in the UK who, unable to conceive, obtained guardianship of a child (referred to as “Susana”) in Algeria through the kafala system. This Islamic legal framework offers a form of guardianship distinct from traditional adoption.

When the husband returned to the UK, his attempts to secure entry clearance for Susana were denied, as the UK authorities did not recognize kafala as legal adoption. This sparked a legal battle culminating in the UK Supreme Court referring the question of whether Susana constituted a “core family member” to the CJEU, while acknowledging her status as an “extended family member.”

CJEU Judgment

The CJEU clarified that “direct descendant,” while not explicitly defined in the Directive, should be interpreted uniformly across the EU to ensure legal consistency. The Court determined that this term, typically signifying a direct parent-child relationship, encompasses both biological and legal parent-child connections, including adoption, for the Directive’s purpose. However, guardianship arrangements like kafala, which do not establish a legal parent-child bond, were deemed outside this definition.

The CJEU confirmed that Susana qualified as an “extended family member” based on the Directive’s broad definition. However, the Court significantly limited Member State discretion in such cases, citing Article 7 of the EU Charter of Rights (right to family life) and drawing parallels with the European Convention on Human Rights. The CJEU emphasized that national authorities must conduct a balanced assessment considering the child’s best interests, including factors like the duration of the guardianship, the nature of the relationship, and the child’s dependency on the guardians.

Significantly, the CJEU stressed that if the assessment confirms a genuine family life and dependency between the child and the EU citizen guardians, granting entry and residence to the child becomes essential, particularly if refusal would hinder the guardians’ free movement rights.

Concluding Thoughts

The CJEU’s clarification that “direct descendants” include adopted children, while excluding guardianship arrangements like kafala, carries significant implications. The ruling also underscores the limitations on Member State discretion in “extended family member” cases, especially when a child’s well-being and right to family life are paramount. This is particularly noteworthy considering the potential for reduced discretion in future cases concerning children or partners where refusal might impede the exercise of free movement rights.

Susana’s case exemplifies the intricacies of navigating legal systems and the importance of safeguarding children’s rights in cross-border family situations. The CJEU’s judgment serves as a potent reminder of the impact of the EU Charter of Rights, even in cases concerning individuals like Susana who may seem peripheral at first glance.

Barnard & Peers: chapter 13

Photo credit: newstarkafala.org