EU Law Analysis: Guardianship, free movement and the rights of the child: the SM judgment


Professor Steve Peers,
University of Essex
*This blog post builds on
research which contributed to the forthcoming second edition of The
EU Citizenship Directive
(OUP, 2019), co-authored by me, Elspeth Guild
and Jonathan Tomkin
When is a child a ‘family member’?
Many people regard others they love dearly as children, parents or other
relatives, but the law is rather stricter. This strictness is particularly
important where children are involved, in order to ensure their welfare, and
where it impacts on immigration law. Moreover, different countries have
different approaches to the legal definition of family members. All these
issues come to a head in today’s judgment
of the CJEU in SM, a case concerning the
intersection between EU free movement law and the family law of non-EU countries.
The EU’s citizens’
Directive
sets out the main rights of EU citizens and their family members
to move to other EU countries. It defines family members as including, in Article
2(2)(c):  
the direct
descendants who are under the age of 21 or are dependants and those of the
spouse or partner as defined in point (b)
It also refers separately to ‘beneficiaries’ of the
Directive, in Article 3(2):
2.      Without
prejudice to any right to free movement and residence the persons concerned may
have in their own right, the host Member State shall, in accordance with its
national legislation, facilitate entry and residence for the following persons:
(a)      any
other family members, irrespective of their nationality, not falling under the
definition in point 2 of Article 2 who, in the country from which
they have come, are dependants or members of the household of the Union citizen
having the primary right of residence, or where serious health grounds strictly
require the personal care of the family member by the Union citizen;

(b) the partner with whom the Union citizen has a durable relationship, duly attested.

The host
Member State shall undertake an extensive examination of the personal
circumstances and shall justify any denial of entry or residence to these
people.
The people listed in Article 3(2)
are referred to in UK law implementing the Directive as ‘extended family
members’, and I will use that term for brevity’s sake. In contrast, I’ll refer
to the Article 2 family members, including ‘direct descendants’, as ‘core’
family members.
CJEU case law has touched on the
definition of core family members several times, for instance clarifying the
concept of ‘dependants’ in Article 2(2)(c): see most recently the CJEU judgment
in Reyes, discussed here).
But the Court had never been asked to clarify the meaning of ‘direct
descendants’, although it had ruled when interpreting previous free movement
legislation that children include an EU citizen’s step-children (Baumbast).
As for extended family members,
previous CJEU case law (Rahman
and Banger)
clarified that they have in principle a less far-reaching right than core
family members. While core family members have a right to enter and reside, for
extended family members ‘entry and residence has only to be facilitated by that
Member State’. So the Directive ‘does not oblige the Member States to grant
every application for entry and residence submitted by persons who show’ that
they fall within the scope of Article 3(2). However, the Court said it was ‘clear
from the use of the words “shall facilitate” that that provision imposes an
obligation on the Member States to confer a certain advantage, compared with
applications for entry and residence’ by other third-country nationals, on
applications by extended family members. This obligation meant that Member
States had to ‘make it possible’ for the extended family members to ‘obtain a
decision on their application that is founded on an extensive examination of
their personal circumstances and, in the event of refusal, is justified by
reasons’. When examining such an application, the authority concerned had to ‘take
into account of the various factors that may be relevant in the particular
case, such as’ the factors specifically listed in the preamble to the Directive
– namely ‘their relationship with the Union citizen or any other circumstances,
such as their financial or physical dependence on the Union citizen.’
Moreover, in light of the
reference to national legislation in Article 3(2), and in the absence of more
specific rules in the Directive, the Court ruled that each Member State ‘has a
wide discretion as regards the selection of factors to be taken into account’.
But there is a core substantive obligation for Member States: their legislation
must ‘contain criteria which are consistent with the normal meaning of the term
“facilitate” ’—presumably as defined by the Court—‘and of the words relating to
dependence used in Article 3(2), and which do not deprive that provision of its
effectiveness’. Finally, the Court conceded that Article 3(2) was not directly
effective, although ‘an applicant is entitled to a judicial review of whether the
national legislation and its application have remained within the limits set by
that Directive’. The subsequent judgment in Banger
elaborated upon these procedural rights.
According to the UK Supreme Court
judgment
which referred questions to the CJEU, this case concerns a French couple married
in the UK, who were married in 2001 but were unable to have children of their
own. They went to Algeria and applied for the guardianship of a child by means
of application of the kafala family
law system (the term is also used to refer to a controversial system of migrant
worker sponsorship, but this case only concerns family law). Under the Islamic
approach to family law, adoption as such is not permitted, but kafala instead provides for a form of
guardianship, and is particularly applied for the benefit of orphaned or
abandoned children.
The Algerian authorities deemed
the French couple suitable guardians, and they were soon accorded guardianship
of a girl abandoned at birth (called ‘Susana’ by the Supreme Court: I’ll use
that name rather than the impersonal ‘SM’). The husband returned to the UK to
work, while the wife stayed in Algeria to look after Susana, seeking to obtain
entry clearance for her. The UK authorities refused on the grounds that this
was not an adoption as such, and so a long dispute through the legal system got
underway.
At first instance, the
immigration tribunal ruled in favour of the UK authorities, holding that Susana
was neither a core family member or extended family member. On appeal, the
Upper Tier tribunal ruled that she was an extended family member. The
authorities appealed in turn to the Court of Appeal, which ruled that she was
neither. The Supreme Court gave leave to appeal on the ‘extended family member’
point, but subsequently decided to consider both points. Ultimately, Lady Hale’s
judgment (with which the other judges agreed) concluded that it was obvious
that Susana was an extended family member, but decided to ask the CJEU whether
she was a core family member.
First of all, the
Court noted that the Directive ‘makes no express reference to the law of
the Member States for the purpose of determining the meaning and scope of’ the term
‘direct descendant’. Next, it followed (in line with the Court’s usual
approach) that ‘the need for a uniform application of EU law and the principle
of equality require that the terms of that provision must normally be given an
independent and uniform interpretation throughout the European Union’. In the
absence of any definition of ‘direct descendant’, the term should be
interpreted considering ‘not only its wording, but also the context in which it
occurs and the objectives pursued by the rules of which it is part’.

the concept of
a ‘direct descendant’ commonly refers to the existence of a direct parent-child
relationship connecting the person concerned with another person. Where there
is no parent-child relationship between the citizen of the Union and the child
concerned, that child cannot be described as a ‘direct descendant’ of that
citizen for the purposes of Directive 2004/38.
Elaborating
further, ‘[a]lthough that concept primarily focuses on the existence of a
biological parent-child relationship,’ the aim of the citizens’ Directive is to
facilitate free movement rights, and so therefore it must be ‘construed broadly’,
including the core family member definition. That meant ‘it covers any
parent-child relationship, whether biological or legal’, including adopted
children. However, it did not extend to a guardianship system which did not create
a legal parent-child relationship.
However, the Court went on to
confirm that Susana fell within the concept of an extended family member, as the relevant definition in the Directive
is ‘capable of covering the situation of a child who has been placed with
citizens of the Union under a legal guardianship system such as Algerian kafala and in respect of whom those
citizens assume responsibility for its care, education and protection, in
accordance with an undertaking entered into on the basis of the law of the
child’s country of origin’. The Court reiterated Member States’ discretion in
such cases as referred to in previous cases, but considerably narrowed the
discretion on the facts of this case.
Furthermore,
Article 24 of the Charter obliges Member States to ‘take into consideration
the best interests of the child’. It followed that when exercising their
discretion as regards admission of extended family members, national
authorities have to make ‘a balanced and reasonable assessment of all the
current and relevant circumstances of the case, taking account of all the
interests in play and, in particular, of the best interests of the child
concerned’. This assessment has to ‘take into consideration, inter alia, the
age at which the child was placed under the Algerian kafala system, whether the child has lived with its guardians
since its placement under that system, the closeness of the personal
relationship which has developed between the child and its guardians and the
extent to which the child is dependent on its guardians, inasmuch as they
assume parental responsibility and legal and financial responsibility for the
child.’
Conversely, the assessment has to
‘take account of possible tangible and personal risks that the child concerned
will be the victim of abuse, exploitation or trafficking’. But these risks can’t
simply ‘be assumed’ just because the process of the Algerian kafala system
‘is less extensive’ than the adoption procedure in the State where the EU
citizens are living, or because Algeria has not signed up to the 1996
Hague Convention
on parental responsibility. Rather, it was necessary to
weigh such factors up against the other factors which the Court set out.
If this assessment
establishes that
the child
placed under the Algerian kafala system
and its guardians, who are citizens of the Union, are called to lead a genuine
family life and that that child is dependent on its guardians, 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 as one of
the other family members of the citizens of the Union for the purposes of
Article 3(2)(a) of [the citizens’ Directive], read in the light of
Article 7 and Article 24(2) of the Charter, in order to enable the
child to live with its guardians in their host Member State.
This
analysis ‘applies a fortiori
where the refusal to admit the child meant that one of the child’s guardians is
in practice prevented from living together in a Member State because one of
them needs to stay in a non-EU State to care for the child. As noted above,
these were the facts in this case.
Finally, the Court declined to
answer the Supreme Court’s separate question about refusing to admit a child if
there was a risk of abuse, exploitation or trafficking, because the question
was only raised in the event that Susana was considered a core family member. In
any event, it should be noted that the Court referred to such issues being
considered as part of the assessment of the application to admit Susana as an
extended family member.
The Court’s confirmation that adopted
children are covered by the concept of ‘direct descendant’ is not surprising,
although it raises the question as to what happens if there are divergences
between the adoption rules in the State where the child was adopted and the
Member State in which the child lives now. Then again, the previous case law
applying free movement law to cover step-children already raised questions (not
yet answered) about the interaction between family law and free movement law
(ie, who has custody of the step-child), on top of the long-standing case law about
the impact of divorce and separation upon free movement rights (see most
recently the CJEU’s NA judgment of
2016, which I discussed critically here).
One quite striking feature of the Court’s ruling is its apparent assertion that
only a parent-child relationship could fall within the concept of ‘direct
descendant’: this is, with respect, not consistent with the obvious meaning of
the words, as evidenced by the Supreme Court’s assumption that it could also
cover grand-children.
The ruling that the term ‘direct
descendants’ could not apply to guardianship followed from the Court’s definition of ‘direct
descendants’ to mean a parent-child relationship, given that the kafala system deliberately does not classify
the child’s guardians as parents. Despite that, the French couple in this case
understandably sought to bring Susana within the scope of the ‘direct
descendants’ concept, because they believed that otherwise the UK would retain
residual discretion not to admit her as an extended family member.
This brings us to the most remarkable
aspect of the Court’s ruling: the removal of the Member State’s discretion to
admit Susana, on condition that the assessment of the factors was positive. Susana’s
case appears to fall within the scope of the factors the Court refers to as
part of that assessment (the age at which the child was placed under the
Algerian kafala system,
whether the child has lived with its guardians since its placement under that
system, the closeness of the personal relationship with the guardians, the degree
of dependency, and the assumption of responsibility for the child). It’s
impossible from the outside of this case to know if the risks of abuse or
trafficking exist, although of course in the best interests of the child the
Court was right to confirm that the assessment should examine whether such
factors are present. In other cases with different circumstances, the factors
may point to a different conclusion than they do in this case. And today’s
judgment raises the interesting question of whether there might be reduced
discretion to refuse entry in other extended family cases too – notably cases
involving children or partners, and where the impact of refusal might similarly
be to prevent free movement rights from being exercised.
Finally, it’s worth putting this
case in the broader context. For eight-year old Susana, abandoned at birth by
her parents, her guardians have been litigating nearly her entire life to
secure her right to stay with them in the UK. It took six years of litigation before
four levels of the judicial system before they could confirm that the UK was even
obliged to consider her application.  Now the CJEU rules that (depending on the
assessment) the UK may be obliged to let her stay. But that’s mainly because of
the EU Charter of Rights; and this may be the last judgment concerning the UK
and the Charter. If you seek its monument, look at this little girl’s case.   
Photo credit: newstarkafala.org



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