The Supreme Court recently considered the case of SM (Algeria) v Entry Clearance Officer, UK Visa Section [2018] UKSC 9 (“SM (Algeria) v ECO”). The appeal concerns the right for family members of EU citizens to move to the UK with an EU citizen exercising the right of free movement under EU law and legal guardianship under the Islamic ‘Kefalah’ system. Family members have automatic rights of entry and residence in the UK whereas extended family members may apply for an EEA Residence Card, which is granted at the discretion of the Home Office.
Background to the Extended Family Members Case: SM (Algeria) v ECO
The Appellant is an Algerian child who had been placed in the legal guardianship of two EU citizens under the Islamic ‘Kefalah’ system. The legal guardians are French nationals of Algerian ethnicity who were married in the UK in 2001. The legal guardians travelled to Algeria in 2009 and were assessed as suitable to become legal guardians. In 2010 they became the legal guardians of the Appellant after she was abandoned by her blood family after birth. A legal custody deed was then issued in Algeria. In May 2012 the Appellant applied for Entry Clearance as the adopted child of an EU national under regulation 12(1) (as a family member) or 12(2) (as an extended family member) of the Immigration (European Economic Area) Regulations 2006 (“the EEA Regulations”). The EEA Regulations moved Directive 2004/38/EC into UK law. The Appellant’s application was refused on the basis that the Algerian guardianship was not recognised as a legal adoption under UK law.
Facts and Issues in the Extended Family Members Case: SM (Algeria) v ECO
The Appellant’s appeal was refused by the First Tier Tribunal but allowed at the Upper Tribunal. The Court of Appeal held that EU member states are allowed to restrict the forms of adoption that they recognise as falling within the definition of ‘family member’ but those restrictions could not be undermined by recognising a child as an extended family member. The definition of ‘Family member’ means either:
- the spouse; or
- the partner with whom the EU citizen has contracted a registered partnership, on the basis of the legislation of a member state, if the legislation of the host member state treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host member state; or
- the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point.
‘Direct Descendants’ refers to consanguineous children, grand-children and other blood descendants in the direct line. In this case that must also include those descendants who have been lawfully adopted in accordance with the requirements of the host country. The issue then is whether legal guardianship under ‘Kefalah’ is lawful. The Appellant then appealed to the Supreme Court.
Further, the Upper Tribunal in Sala v SSHD [2016] held that there was no statutory right of appeal against the refusal of an EEA Residence Card for Extended Family Members as it was not an ‘EEA decision’ for the purposes of regulation 26(1) of the EEA Regulations. Thus the issues arose as to whether or not he Supreme Court had jurisdiction to hear the appeal in the Appellant’s case.
The Judgement in the Extended Family Members Case: SM (Algeria) v ECO
The judgement was given in two parts. Firstly, it was unanimously held that Sala v SSHD [2016] had been wrongly decided. The Court of Appeal overruled the decision in Sala v SSHD [2016] in the subsequent case of Khan v SSHD [2017] which therefore meant that the Supreme Court did have the jurisdiction to hear the Appellant’s appeal.
Secondly, the Supreme Court refers three questions to the Court of Justice for the European Union (“CJEU”) for a preliminary ruling:
- 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?
- 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?
- 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 that child.
The full judgement can be found here: SM (Algeria) v Entry Clearance Officer, UK Visa Section [2018] UKSC 9 | LEXVISA Immigration Solicitors London
What does this mean for Extended Family Members?
As we have previously written, there is good news for Extended Family Members following the decision in Khan v SSHD [2017], in which it has been confirmed that it may be possible to appeal a Home Office decision as an Extended Family Member to the First Tier Tribunal. This has now been demonstrated in SM (Algeria) v ECO [2018]. With regard to the question of legal guardianship under ‘Kefalah’ being recognised by the UK as legitimate, that remains a question for the CJEU.
Using Legal Representation to submit a successful Extended Family Members Appeal
Legal representatives, such as our specialist immigration and visa law firm, are qualified to advise you on immigration law and your immigration matter. You can instruct one of our immigration and visa legal representatives to successfully assist you with an appeal as an Extended Family Member of an EEA national. Our solicitors and Barristers will help you comply with the tribunal requirements/directions.
Caseworkers at the Home Office are trained to reject applications which are improperly prepared, for example by failing to provide the correct supporting evidence. If your application has been erroneously refused, our solicitors and barristers will ensure your appeal as an Extended Family Member has the best prospects of success.
The UK Immigration Rules are complex and a legal representative can help ensure that your appeal as an Extended Family Member meets the Rules.
Successfully submit an Extended Family Members Appeal
Our team of solicitors and barristers are specialist immigration lawyers who act in your best interest. We offer a client-tailored approach from the outset. From the very first meeting, we will be able to advise you in respect of your prospects of submitting an Extended Family Member appeal before your appeal even reaches the Tribunal. We can assist you with the preparation and submission of an Extended Family Member appeal and ensure that you meet all the requirements of the relevant rules.
We are based in the legal epicentre of London, just across the road from the Royal Courts of Justice in order to ensure we get the best results for our clients. We are minutes away from the Immigration and Asylum Tribunal, the Royal Courts of Justice and other central London courts.
Preparation is the key to successful immigration applications and appeals. Our UK immigration and visa solicitors are here to guide you through the complex immigration rules and requirements. If you wish to meet one of our lawyers, please call our Immigration Team so we can assess your case and arrange your legal consultation to discuss Extended Family Members appeals.
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