Key facts of the case:
Request for a preliminary ruling from the Supreme Court of the United Kingdom.
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.
Outcome of the case:
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:
(1) 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.
(2) 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.
(3) 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.
89) The (interim) conclusion I have reached above must successfully pass through the filter of the rights and principles safeguarded by the Charter. Indeed, it could be thought that the interpretation that I am advancing is overly formalistic, and that the requirement to respect the right to family life and the child’s best interests as a ‘primary consideration’ (Article 7 and Article 24(2) of the Charter, respectively) requires kafala to be equated to adoption.
98) According to Article 24(2) of the Charter, the protection of the child’s best interests must be the ‘primary consideration’ in decisions made by public authorities or private institutions when making orders concerning that child.
101) With regard to the substance, custody within a family satisfies the requirements to protect the child’s best interests, as understood by the Court of Justice: ‘The integration, on a continuous and long-term basis, into the home and family of a foster parent, of children who on account of their difficult family situation are particularly vulnerable, constitutes an appropriate measure to safeguard the best interests of the child, as enshrined in Article 24 of the Charter of Fundamental Rights of the European Union.’ ( 76 )