Supreme Court referral to CJEU – is a child adopted under the ‘kefalah’ system a ‘direct descendant’ under Directive 2004/38/EC


Re: SM (Algeria) v Entry Clearance Officer, UK Visa Section [2018] UKSC 9

The substantive issues in this case concern the position under the Directive 2004/38/EC of a child who is a third country national but has been placed in the legal guardianship of European Union citizens under the Islamic “kefalah” system in her own country.

Lady Hale referred the following three questions to the CJEU for a preliminary ruling:

(1) Is a child who is in the permanent legal guardianship of a Union citizen or citizens, under ‘kefalah’ 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) of the Directive?

(2) Can other provisions in the Directive, in particular articles 27 and 35, be interpreted so as to deny entry to such children if they are the victims of exploitation, abuse or trafficking or are at risk of such?

(3) Is a member state entitled to enquire, before recognising a child who is not the consanguineous descendant of the EEA national as a direct descendant under article 2.2(c), into whether the procedures for placing the child into the guardianship or custody of that EEA national was such as to give sufficient consideration to the best interests of the child?

On the question of jurisdiction, it was held that Sala v SSHD [2016] UKUT 411 had rightly been overruled by the Court of Appeal in a subsequent decision on the interpretation of the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003), reg 26. Accordingly, the appellant did enjoy a right of appeal in respect of both arts 2(2c) and 3(2a).

Aidan O’Neil QC was involved in this case.