Advocate General’s Opinion in Case C-129/18SM v Entry Clearance Officer, UK Visa Section
However, following an assessment, the Member State in which the EU citizen is resident must facilitate the entry and residence of the child in its territory
Two spouses of French nationality resident in the UK applied to the UK authorities for entry clearance for an Algerian child placed in their guardianship in Algeria under the kafala system. In their application the spouses requested that the child be granted entry clearance as an adopted child. The kafala system is an institution in the family law of some countries that follow the Koranic tradition. The child had been abandoned after her birth. Legal custody of the child was awarded to the couple by decisions of the Algerian authorities. Following the refusal of the UK authorities to grant clearance, a decision which was appealed by the child, the Supreme Court of the UK asked the Court of Justice, in essence, whether, under the directive on the freedom of movement, 1 that child could be classed as a ‘direct descendant’ of the individuals in whose guardianship she was placed under kafala.
The directive establishes two routes by which a child who is not an EU citizen may enter and reside in a Member State in the company of the persons with whom he or she has a ‘family life’. In the case of direct descendants, the continuity of family life occurs practically automatically, whereas, in the case of any other family member who is a dependant or member of the household of the EU citizen having the primary right of residence, a prior evaluation of the circumstances is required.
In yesterday’s Opinion, Advocate General Manuel Campos Sánchez-Bordona considers that a child who is merely under the legal guardianship of an EU citizen, under the Algerian Kafala system, cannot be classed as a ‘direct descendant’ of that citizen within the meaning of the directive.
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