Article 24 - The rights of the child
Key facts of the case:
Mr and Mrs M are both French nationals of Algerian origin living in the UK, where they married in 2001. Because they were unable to conceive, they decided to adopt a child in Algeria under the Islamic “kefalah” system. Mr and Mrs M travelled to Algeria where they applied to become the legal guardians of Susana, a newborn who had been abandoned by her parents. Susana was placed under their guardianship when she was three months, in September 2010. In March 2011, Mr and Mrs M were awarded the legal custody of Susana and they were transferred parental responsibility under Algerian law. In 2012, Susana applied for a visa to enter the United Kingdom. Her application was refused, inter alia; on the ground that the Algerian guardianship was not recognised as an adoption in UK law.
The First Tier Court rejected the claim of Susana on the ground that she was not a “family member” nor an “extended family member” under the 2006 Regulations (which transposes the EU Citizens Directive into UK law). The decision that Susana was not a “family member” was upheld by the Upper Court. However, the Upper Court authorised the appeal regarding her qualification as an “extended family member”. The Court of Appeal considered that the debate was not whether Susana fell under the definition of “family member” or “extended family member” under the 2006 Regulations; but whether she was a “direct descendant” within the definition of “family member” under the Citizens Directive (Art. 2.2(c)), or whether she was “any other family member”, under Art. 3.2(a). The Court of Appeal held that Susana could not be considered as a “direct descendant” (Art. 2.2(c)) on the ground that she was not adopted in compliance with UK laws and that Member States were allowed by the Directive to restrict the forms of adoptions they would recognise for the purpose of this article. However, the Court of Appeal recognised that she might fall within Art. 3.2(a) as “any other family member”.
The Supreme Court allowed the appeal. Recognising that the principle of the best interest of the child applied in this situation, the Supreme Court considered that the question of the arrangements of the adoption and of its compliance with UK laws would not be determinative. The Supreme Court stated that the EU Citizens Directive’s purpose was to simplify and strengthen the right of free movement and that having to live apart from family members would deter the exercise of this freedom.
Key legal question raised by the Court:
The question arising from this is whether Susana can be considered as a “family member” (Art. 2.2(c) of the Directive) or under “direct descendant” (Art. 3.2(a)). Although the Supreme Court was of the opinion that Susana could fall under the latter definition, it considered that the term “direct descendant” was an autonomous term in EU law, “which should be given a uniform interpretation throughout the Union.” Further, should she be considered as a “direct descendant”, the Court considered that such an interpretation could create an opportunity for exploitation, trafficking in children and abuse. According to the Citizens Directive, restrictions can be imposed on freedom of movement for the protection of “public policy, public security and public health”. or in case of abuse of rights or fraud.
Outcome of the case:
Therefore, the Court referred three questions to the Court of Justice of the European Union:
“19. […] The Secretary of State and her officials are required by section 55 of the Borders, Citizenship and Immigration Act 2009 to discharge their functions in relation to immigration, asylum and nationality “having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom”. This duty was imposed in the light of the UK’s obligation under article 3.1 of the United Nations Convention on the Rights of the Child (1989) that “In all actions concerning children … the best interests of the child shall be a primary consideration”. Under article 2.1 the rights set out in the Convention are to be secured to children within the jurisdiction, but the Secretary of State has made it clear that section 55 will also be observed in relation to children applying to enter this jurisdiction. The same obligation arises under article 24.2 of the Charter of Fundamental Rights of the European Union, which applies whenever a member state is implementing EU law.”