Navtej Singh Ahluwalia of the Garden Court Chambers Immigration Team appeared for the intervener, Coram Children’s Legal Centre. The judgment was handed down by the Supreme Court on 14 February 2018.
This is an important Supreme Court judgment about the rights of children who are adopted in other countries and whose adoptions are not recognised in English law. The appellant, Susana, was an Algerian child who had been abandoned after her birth. A French couple, Mr and Mrs M, who were living in the United Kingdom pursuant to their rights as European Union citizens, travelled to Algeria and became Susana’s legal guardians under the “kefalah” system, a process in Algerian law similar to our special guardianship orders.
Where a European Union citizen is exercising their right under the European Union Treaties to live in another Member State, the Citizens Directive confers a right to enter and live in the UK on some family members of the Union citizen who are themselves citizens of countries outside the Union. Under Article 2 of the Directive, this includes the Union citizen’s “direct descendants who are under the age of 21 or are dependants,” such as children and grandchildren. Article 3 of the Directive also requires Member States to facilitate, in accordance with their national legislation, the entry and residence of “other family members” (known in UK law as “extended family members”), including “dependants or members of the household of the Union citizen having the primary right of residence.” These were implemented in the UK by regulations 7 and 8 of the Immigration (European Economic Area) Regulations 2006 (as in force at the time of the original decision in this case). “Family members” have an automatic right to enter and reside in the UK. By contrast, although “extended family members” can apply for a residence card, the Home Office has a discretion as to whether they should be granted one.
Susana applied for entry clearance as the adopted child of a European Economic Area (EEA) national, which was refused. She appealed. The Upper Tribunal allowed this – it held that she was not a “family member” under regulation 7 because she was not a direct descendant of Mr and Mrs M, due to her adoption not being recognised, but that she was instead an “extended family member” of Mr and Mrs M under regulation 8. The Court of Appeal allowed the Entry Clearance Officer’s appeal, however, holding that the Directive allowed Member States to restrict the forms of adoption they would recognise, and that as her adoption was not recognised in English law, she did not qualify as an “extended family member” of Mr and Mrs M.
The Supreme Court disagreed with the Court of Appeal. It had little doubt that Susana would fall within Article 3 if she did not fall within Article 2. The UK’s 2006 Regulations had confused the issue by introducing the term “relative”, which nowhere appeared in Article 3.2(a) of the Directive. The Court’s view was that the child for whom the Union citizen has parental responsibility under the law of the child’s country of origin is clearly capable of being regarded as a family member, and that Susana was both a dependant and a member of the household of Mr and Mrs M. A refusal of entry and residence would, in principle, be justified if there were reason to believe that the child was a victim of exploitation, abuse or trafficking, or that the claims of the birth family had not been respected. However, the fact that the arrangements did not comply in every respect with the stringent requirements of UK adoption law would not be determinative. Thus, Susana’s appeal was successful. Nonetheless, the Court could not simply allow Susana’s appeal on that basis – it also had to consider whether she could instead qualify as a “family member” under Article 2 as a direct descendant of Mr and Mrs M, which would give her an automatic right to live in the UK. It considered that this issue was not clear, and made a preliminary reference to the Court of Justice of the European Union (CJEU) which will now decide how Article 2 should be interpreted.
The Supreme Court also had to consider whether they had jurisdiction to hear the appeal. Previously, the Upper Tribunal in Sala (EFMs: Right of Appeal)  UKUT 00411 (IAC) had decided that there was no right of appeal to the Tribunal, under the Immigration (European Economic Area) Regulations 2006, when the Secretary of State decides to refuse a residence card to an “extended family member” of an EEA national. However, in Khan v Secretary of State for the Home Department  EWCA Civ 1755 the Court of Appeal decided that Sala was wrong. In the present case the Supreme Court decided definitively that Khan was right and that Sala should not be followed. This is of great practical importance to anyone with an “extended family member” appeal still outstanding under the 2006 Regulations.
The Court also observed that the Upper Tribunal in Banger (Unmarried Partner of British National)  UKUT 00125 had made a reference to the Court of Justice of the European Union (CJEU) as to whether taking away rights of appeal from extended family members was compatible with EU law. This question was not moot, since the 2006 Regulations have now been replaced with the Immigration (European Economic Area) Regulations 2016 which expressly take away the right of appeal from extended family members. However, for the purposes of this case the Court did not need to comment further on that issue.
The blog above was written by David Neale, Legal Researcher at Garden Court Chambers.