- Two spouses of French nationality resident in the United Kingdom applied to the United Kingdom authorities for entry clearance, as an adopted child, for an Algerian child placed in their guardianship (recueil legal) in Algeria under the kafala system.
- Following the refusal of the United Kingdom authorities to grant clearance, a decision which was appealed by the child, the Supreme Court of the United Kingdom has asked the Court of Justice, in essence, whether, under Directive 2004/38/EC, the child can be classed as a ‘direct descendant’ of the individuals in whose guardianship she was placed under kafala. This would facilitate her family reunification in the Member State where those individuals are resident.
In line with the arguments set out above, I suggest that the Court of Justice should reply to the Supreme Court of the United Kingdom in the following terms:
- Article 2(2)(c) 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 amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC is to be interpreted as meaning that a child cannot be classed as a ‘direct descendant’ of a Union citizen where the child is only in the legal guardianship of that Union citizen under the institution of recueil legal (kafala) that applies in the Republic of Algeria.
That child may, however, fall within the category of ‘other family members’ if the other requirements are satisfied and following completion of the procedure laid down in Article 3(2) of Directive 2004/38, in which case the host Member State must facilitate his or her entry and residence in that Member State in accordance with national legislation, having weighed the protection of family life and the defence of the child’s best interests.
- Articles 27 and 35 of Directive 2004/38 can be applied in any of the situations referred to in that directive where grounds of public policy, public security or public health apply, and in the event of abuse of rights or fraud.
- In applying Article 3(2) of Directive 2004/38, the authorities of the host Member State may enquire into whether sufficient regard was had, in the procedure for awarding guardianship or custody, to the best interests of the child.