Opinion of General Advocate Campos Sanchez Bordona, SM v. Entry Clearance Officer, UK Visa Section, Case C-129/18, CJEU, 26 February 2019

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

 

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.

The notion of "direct descendant" of a citizen of the Union contained in art. 2, of Directive 2004/38 / EC, relating to the rights of Union citizens and their family members to move and reside freely within the territory of the Member States, must be interpreted as meaning that it does not include a minor placed under the permanent legal protection of a citizen of the Union under the Algerian kafala, as such subjection does not create any relationship of filiation between them. However, it is up to the competent national authorities to facilitate the entry and stay of that minor as another family member of a Union citizen, pursuant to art. 3, par. 2, of that directive, read in the light of art. 7 and art. 24, of the Charter of Fundamental Rights, carrying out a balanced assessment of all the current and relevant circumstances of the case, taking into account the various interests present and, in particular, the best interests of the child in question. In the event that, following this assessment, it is found that the minor and his / her guardian, a citizen of the Union, are intended to lead an effective family life and that such minor is dependent on his / her guardian, the related requirements apply. the right to respect for family life, considered together with the obligation to take into account the best interests of the child. In principle, it is therefore necessary for the minor to be granted a right of entry and residence in order to allow him to live with his guardians in the host Member State.

(Two spouses of French citizenship residing in the United Kingdom had applied to the British authorities to issue an entry permit for an adopted child in favor of an Algerian minor entrusted to them for guardianship in Algeria under the kafala regime. This institution of family law, common to some countries of Islamic tradition, provides for the assumption of the maintenance, education and protection of a minor by one or more adults and the submission of said minor to their permanent legal protection. The British authorities denied this permit.)