SM v. Entry Clearance Officer, UK Visa Section, Case C-129/18, CJEU, 26 March 2021

Issue of an entry permit for an adopted child of a Union citizen in favor of a minor entrusted to custody under the kafala regime (legal reception). Best interests of the child.

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.

Artt. 7 and 24 of the Charter of Fundamental Rights of the European Union. 

1. The notion of "direct descendant" of a citizen of the Union, pursuant to art. 2, of Directive 2004/38, concerns the existence of a link of biological parentage, taking into account the need for a broad interpretation of that concept resulting from the objective of the directive, namely to facilitate and strengthen the freedom of movement and residence citizens of the Union, it must also be understood as also including the adopted child of that citizen, when it is demonstrated that the adoption creates a link of legal filiation between the minor and the Union citizen concerned.

2. Given that the Algerian kafala regime does not create a parentage link between the minor and the guardian, a minor placed under the legal custody of a citizen of the Union under that regime cannot be considered 'Direct descendant' of a citizen of the Union. Instead, the notion of "other family member" referred to in art. 3, of Directive 2004/38, in fact, is such as to include the situation of a minor who has been placed, with citizens of the Union, under a regime of legal protection such as the Algerian kafala and of which these citizens are responsible for the maintenance, education and protection, by virtue of a commitment undertaken on the basis of the law of the child's country of origin.

3. It is the responsibility of the national authorities, pursuant to art. 3, of Directive 2004/38, read in conjunction with art. 7 and art. 24 of the Charter of Fundamental Rights of the European Union, to facilitate the entry and stay of a minor as another family member of a citizen of the Union, by making a balanced and reasonable assessment of all the current and relevant circumstances of the case, which takes into account the various interests present and, in particular, the best interests of the child in question. As part of this assessment, it is also necessary to take into account any risks that the child concerned is the victim of child abuse, exploitation or trafficking, it being understood that such risks cannot be presumed in consideration of the fact that the subjection to the Algerian kafala regime is based on an assessment of the suitability of the adult and the interests of the child which would be less thorough than the procedure conducted in the host Member State for the purpose of adopting or placing a child in a household familiar.