Barristers win positive ruling in intercountry adoption case at the CJEU

Fri, 10 May 2019

Counsel at No5 Barristers’ Chambers have won a positive ruling at the Court of Justice of the European Union in an intercountry adoption appeal concerning an Algerian child.

The child, ‘SM’, was placed in the care of her French national guardians, who live in the UK as EEA nationals, under the Algerian ‘Kafalah’ system. They were refused entry clearance for her by UK authorities.

Mr Ramby De Mello and Abid Mahmood, both of No5 Barristers’ Chambers, appeared for the appellant ‘SM’, instructed by David Tang and Co Solicitors.

The child had argued that she met the requirements of Regulation 12 of the Immigration (European Economic Area) Regulations 2006.

The Upper Tribunal had, in part, allowed ‘SM’s appeal. However, the Court of Appeal had reversed the Upper Tribunal’s decision.

The Supreme Court of the United Kingdom had referred the matter to the Court of Justice of the European Union for a preliminary ruling pursuant to Article 267 TFEU. 

The Supreme Court had concluded that it was not acte clair that a child in the instant situation was not to be regarded as a direct descendant of her guardians within art.2.2(c).

However, such an interpretation might create opportunities for exploitation, abuse and trafficking in children.

The Court of Justice of the European Union was asked to make a preliminary ruling on whether a child who is in the permanent legal guardianship of an EU citizen or citizens, under "kafalah" 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)?

It ruled, given that the placing of a child under the Algerian kafala system does not create a parent-child relationship between the child and its guardian, a child who is placed in the legal guardianship of citizens of the EU under that system cannot be regarded as a “direct descendant” of a citizen of the EU. However, it added that a child in such a situation falls under another concept referred to in the directive of the freedom of movement, namely that of one of the “other family members”.

As a consequence the Court stated: “It is for the competent national authorities to facilitate the entry and residence of a child placed in the legal guardianship of citizens of the EU under the Algerian kafala system as one of the “other family members” of a citizen of the EU, 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.”

Once a satisfactory assessment is completed the court added “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.”

The Court of Justice of the European Union heard detailed submissions from the appellant, but in view of the importance of the case, there were interventions from several other European countries by way of both oral and written submissions.

Manjit Gill QC, also of No5, instructed by the Coram Children’s Legal Centre, appeared as intervenor. Various other counsel and solicitors from England, Wales and Scotland were also involved in the proceedings.

Manjit Gill QC, Ramby de Mello and Abid Mahmood are all members of the Immigration, Asylum and Nationality group at No5 Barristers’ Chambers.

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