Summaries of judgments made in collaboration with the Portuguese judge and référendaires of the CJEU (Nuno Piçarra, Mariana Tavares and Sophie Perez)
Judgment of the Court (Grand Chamber) of 26 March 2019, SM v Entry Clearance Officer, UK Visa Section (Case C-129/18, EU:C:2019:248)
Reference for a preliminary ruling — Citizenship of the European Union — Right of citizens of the Union and their family members to move and reside freely within the territory of the Member States — Directive 2004/38/EC — Family members of a citizen of the Union — Article 2(2)(c) — ‘Direct descendant’ — Child in permanent legal guardianship under the Algerian kafala (provision of care) system — Article 3(2)(a) — Other family members — Article 7 and Article 24(2) of the Charter of Fundamental Rights of the European Union — Family life — Best interests of the child
The request for a preliminary ruling was made in proceedings between a couple of French nationals and the Entry Clearance Officer, UK Visa Section, concerning the latter’s refusal to grant SM entry clearance for the territory of the United Kingdom as an adopted child. Abandoned by her biological parents at birth, SM was placed in the guardianship of the couple in 2011 under the Algerian kafala system. The application for entry clearance for the United Kingdom was refused on the ground that guardianship under the Algerian kafala system was not recognised as an adoption under United Kingdom law and that no application had been made for intercountry adoption.
The Supreme Court of the United Kingdom was called upon to hear the case on appeal and referred to the Court of Justice questions for a preliminary ruling on the interpretation of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (OJ 2004 L 158, p. 77).
The Court of Justice clarified that the concept of a ‘direct descendant’ of a citizen of the Union referred to in Article 2(2)(c) of Directive 2004/38 must be interpreted as not including a child who has been placed in the permanent legal guardianship of a citizen of the Union under the Algerian kafala system, because that placement does not create any parent-child relationship between them.
The Court of Justice stressed, however, that, pursuant to Article 3(2)(a) of that directive, read in the light of Articles 7 and 24(2) CFREU, it is for the competent national authorities to facilitate the entry and residence of such a child as one of the ‘other family members’ of a citizen of the Union by carrying out a balanced and reasonable assessment of all the current and relevant circumstances of the case which takes account of the various interests in play and, in particular, of the best interests of the child concerned. In the event that it is established, following that assessment, that the child and its guardian, who is a citizen of the Union, are called to lead a genuine family life and that that child is dependent on its guardian, the requirements relating to the fundamental right to respect for family life, combined with the obligation to take account of the best interests of the child, demand, in principle, that that child be granted a right of entry and residence in order to enable it to live with its guardian in his or her host Member State.