SM v Entry Clearance Officer, UK Visa Section

This judgment is in two parts. One part considers whether this Court has jurisdiction to hear this appeal. This is a question of United Kingdom law, depending upon the meaning of an “EEA decision” in regulation 2(1) of the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003) (“the 2006 Regulations”) which transposed Parliament and Council Directive 2004/38/EC 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 Citizens Directive”) into UK law. Logically this question should come first. But as we have concluded that we do have jurisdiction, it will be simpler and clearer to explain our reasoning after we have considered the substantive issues in the case. These are questions of European Union law. Briefly, they concern the position under the Directive of a child who is a third country national but has been placed in the legal guardianship of European Union citizens under the Islamic “kefalah” system in her own country.

Accordingly, Part 1 of this judgment discusses the substantive issues and refers three questions to the Court of Justice of the European Union. Part 2 discusses the jurisdiction issue.

It is convenient to set out the applicable provisions of both EU and UK law before turning to the detailed facts and the history of this litigation.

Article 1 of the Citizens Directive explains its subject matter thus:

Regulation 7 of the 2006 Regulations transposes article 2.2(c) into UK law as follows:

Under regulation 12(1), an Entry Clearance Officer (“ECO”) must issue an EEA family permit to a “family member” if certain conditions are met. Under regulation 12(2), an ECO may issue an EEA family permit to an “extended family member” if those conditions are met and “(c) in all the circumstances, it appears to the Entry Clearance Officer appropriate to issue the EEA family permit. …”

Also relevant and important in this appeal are the requirements of the law of England and Wales (there is separate but largely equivalent legislation in Scotland and Northern Ireland) relating to the adoption of children from abroad. The object is (i) to ensure, so far as possible, that such adoptions are in the best interests of the children concerned and attended by safeguards equivalent to those in UK law; (ii) to protect such children from the risk of exploitation, abuse and trafficking; and (iii) to ensure that the rights of the birth family are protected.

By section 83 of the Adoption and Children Act 2002 (“the 2002 Act”), it is an offence to bring a child into the UK for the purpose of adoption here or having been adopted in another country, unless the Adoption with a Foreign Element Regulations 2005 (SI 2005/392) have been complied with. These require, inter alia, an assessment by a UK adoption agency of the suitability of the adopters to adopt. This does not apply to adoptions under the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (1993) (“the Hague Convention”), implemented in UK law by the Adoption (Intercountry Aspects) Act 1999, because these children are protected by the safeguards in the Convention itself. In particular, article 4 requires that the state of origin should have determined that the child is adoptable; that an inter-country adoption is in the child’s best interests; that the required consents have been given freely and with proper information and counselling; and that consideration has been given to the child’s own wishes and opinions, having regard to his age and degree of maturity, and his consent given where required.

Section 66(1) of the 2002 Act lists those adoptions which are recognised by the law of England and Wales as conferring the status of adoption on the child. These are (a) an adoption order made in England and Wales, Scotland or Northern Ireland; (b) adoption by an order made in the Channel Islands or Isle of Man; (c) an adoption effected under the law of a Hague Convention country outside the British Islands and certified as having complied with the Convention requirements; (d) an “overseas adoption”; that is an adoption order made in one of the countries listed in (currently) the Adoption (Recognition of Overseas Adoptions) Order 2013 (SI 2013/1801), provided for in section 87 of the 2002 Act; and (e) an adoption recognised by the law of England and Wales and effected under the law of any other country; these will only be recognised if they satisfy the criteria for recognition at common law.

For the sake of completeness, it should be mentioned that a child who does not qualify for entry under the Citizens Directive may qualify for entry as an adopted or de facto adopted child under the Immigration Rules. For a convenient account of the four routes available under the Rules as they then stood, see MN (India) v Entry Clearance Officer (New Delhi) [2008] EWCA Civ 38; [2010] 2 FLR 87, per Wilson LJ at paras 13-18. However, this judgment is concerned only with entry and residence under the Citizens Directive and the 2006 Regulations.

The appellant, whom I shall call Susana, was born in Algeria on 27 June 2010, so is now seven years old. She is a national of Algeria. Her male guardian, Mr M, is a French national of Algerian origin who has a permanent right of residence in the United Kingdom. Her female guardian, Mrs M, is a French national by birth. They married here in 2001. Finding themselves unable to conceive naturally, in 2009 they travelled to Algeria to be assessed as to their suitability to become guardians under the kefalah system. The First-tier Tribunal judge found that this was “a choice they made having learned that it was easier to obtain custody of a child in Algeria than it would be in the United Kingdom” (para 35).

Having been assessed as suitable, in a process described by the judge as “limited”, they were informed in June 2010 that Susana had been abandoned after her birth. They applied to become her guardians. There was then a three-month waiting period, during which under Algerian law the birth parents were able to reclaim the child. On 28 September 2010, the Algerian Ministry of National Solidarity and Family in the province of Tizi Ouzou made a decree placing Susana, then aged three months, under their guardianship. On 22 March 2011, a legal custody deed was issued, having regard to the opinion of the public prosecutor, awarding them legal custody of Susana and transferring parental responsibility to them under Algerian law. The deed requires them:

In October 2011, Mr M left Algeria and returned to the United Kingdom to resume his employment here as a chef. Mrs M remained in Algeria with Susana. In January 2012, Susana applied for a visa to visit the United Kingdom, which was refused. In May 2012, she applied for entry clearance as the adopted child of an EEA national under regulation 12(1), or alternatively 12(2) of the 2006 Regulations. The ECO refused this on the basis (i) that as Algeria was not a party to the 1993 Hague Convention on Intercountry Adoption and was not named in the Adoption (Designation of Overseas Adoptions) Order 1973 then in force, the Algerian guardianship was not recognised as an adoption in UK law; and (ii) no application had been made under section 83 of the 2002 Act for intercountry adoption.

The First-tier Tribunal dismissed Susana’s appeal. The judge held that she did not qualify as either a legal or a de facto adopted child under the Immigration Rules, nor did she fall within the definitions of “family member”, “extended family member” or adopted child of an EEA national under the 2006 Regulations. On her appeal, the Upper Tribunal upheld the decision that she was not a “family member” under regulation 7 of the 2006 Regulations. However, it allowed her appeal on the basis that she did fall within the definition of “extended family member” under regulation 8. The case was therefore returned to the Secretary of State for her to exercise the discretion conferred upon her by regulation 12(2)(c).

The Court of Appeal allowed the ECO’s appeal: [2015] EWCA Civ 1109; [2016] Imm AR 239. The court correctly observed that the real question was not whether Susana fell within the definition of “family member” in regulation 7 or the definition of “extended family member” in regulation 8. Rather, it was whether she was a “direct descendant” within the definition of “family member” in article 2.2(c) of the Citizens Directive; or alternatively whether she fell within “any other family members, …, who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence …” in article 3.2(a). The court held that the Directive permitted Member States to restrict the forms of adoption which they would recognise for the purpose of article 2.2(c). Not having been adopted in a manner recognised by UK law, Susana could not fall within that article; and that being so, those restrictions could not be undermined by recognising that she might fall within article 3.2(a).

This Court gave permission to appeal, initially only on the issues relating to article 3.2(a) of the Citizens Directive and regulation 8. However, in the course of the hearing before us on 23 March 2017, it emerged that there might also be issues relating to article 2.2(c) and regulation 7 which this Court should consider. The hearing was therefore adjourned for written submissions relating to those issues, as well as to the issue of jurisdiction which had been mentioned for the first time by the Secretary of State in her written case. After the adjournment, Coram Children’s Legal Centre (CCLC) and the Advice on Individual Rights in Europe (AIRE) Centre applied for and were given permission to intervene on both issues. In the light of written submissions from them and from the appellant, the court granted formal permission to appeal in relation to article 2.2(c) on 26 July 2017. Once the Secretary of State’s submissions on that issue had been received in October 2017, a further hearing was arranged for 29 November 2017.

This Court has little doubt that Susana would fall within article 3.2(a) if she does not fall within article 2.2(c). The 2006 Regulations have caused confusion by introducing the word “relative” which nowhere appears in article 3.2(a). “Family member” is a wider term than “relative” as it is well capable of including people who are not related by consanguinity or affinity. All that is required is that the person (i) falls within the broad concept of “family member”; (ii) was either a dependant or a member of the household of the Union citizen; and (iii) that dependency or household membership was in the country from which the person has or would come. A 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; Susana was both a dependant and a member of the household of Mr and Mrs M; and this was in Algeria, the country from which she would be coming to this country.

The obligation of the host member state is to facilitate entry and residence in accordance with its national legislation, to undertake an extensive examination of the personal circumstances, and to justify any denial of entry and residence. UK legislation relating to foreign adoptions is clearly relevant to that examination. A refusal of entry and residence would, in principle, be justified if there were reason to believe that the child was the victim of exploitation, abuse or trafficking, or that the claims of the birth family had not been respected.

But the fact that the arrangements did not comply in every respect with the stringent requirements of UK adoption law would not be determinative. The Secretary of State and her officials are required by section 55 of the Borders, Citizenship and Immigration Act 2009 to discharge their functions in relation to immigration, asylum and nationality “having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom”. This duty was imposed in the light of the UK’s obligation under article 3.1 of the United Nations Convention on the Rights of the Child (1989) that “In all actions concerning children … the best interests of the child shall be a primary consideration”. Under article 2.1 the rights set out in the Convention are to be secured to children within the jurisdiction, but the Secretary of State has made it clear that section 55 will also be observed in relation to children applying to enter this jurisdiction. The same obligation arises under article 24.2 of the Charter of Fundamental Rights of the European Union, which applies whenever a member state is implementing EU law.

In a case such as this, the need to safeguard and promote children’s welfare would obviously encompass the need to protect all children from the dangers of exploitation, abuse and trafficking. But the best interests of the individual child must also be a primary consideration. This would depend upon factors such as whether the child had been abandoned by her birth family; whether if she had not been the subject of a kefalah arrangement she would have continued to be brought up in an institution; whether her guardians had been assessed as suitable by the authorities in her birth country; whether they had gone through all the appropriate legal procedures in that country; their reasons for not going through the appropriate procedures for intercountry adoption here; the cultural and religious background of both the child and her guardians, including whether adoption in the UK sense is compatible with their religious beliefs; how well her guardians are fulfilling their legal obligations towards her; and perhaps above all how well integrated she is into their family and household and how close and beneficial their relationships are with one another.

In making that evaluation, the decision-makers, whether in the Home Office or in the appellate system, would also have to bear in mind that the purpose of the Directive is to simplify and strengthen the right of free movement and residence for all Union citizens, freedom of movement being one of the fundamental freedoms of the internal market. Having to live apart from family members or members of the family in the wider sense may be a powerful deterrent to the exercise of that freedom.

However, this Court cannot simply allow the appeal and restore the order of the Upper Tribunal, on the basis that Susana’s case should be considered under article 3.2(a), if in reality she falls within the definition of “family member” in article 2.2(c). In that event she enjoys the automatic rights of entry and residence conferred by the Directive. What then does “direct descendant” mean?

Obviously, it refers to consanguineous children, grand-children and other blood descendants in the direct line (query whether it also refers to step-descendants). It has also been common ground in this case that it must include those descendants who have been lawfully adopted in accordance with the requirements of the host country. But there is reason to think that it goes further than that.

Firstly, there is the Communication from the Commission to the European Parliament and the Council on guidance for better transposition and application of Directive 2004/38/EC … (Com (2009) 313 final). Paragraph 2.1.2 is headed “Family members in direct line” and thus apparently refers to article 2.2(c). It says this:

Secondly, as Advocate General Bot reminded us in his opinion in Secretary of State for the Home Department v Rahman (Case C-83/11) [2013] QB 249, at point 39:

Thirdly, that view is supported by the recent opinion of Advocate General Wathelet in Coman v Inspectoratul General pentru Imigrări (Case C-673/16) (ECLI EU:C:2018:2, as yet unreported), point 32: that the word “spouse” in article 2(1)(a) must be given an autonomous meaning and applies to a third country national of the same sex as the citizen of the European Union to whom he or she is married.

Fourthly, such a uniform interpretation would accord with the purpose of the Directive. Again, as Advocate-General Bot reminded us in Rahman’s case, at point 36, albeit in the context of article 3.2:

We therefore cannot consider it acte clair that a child in Susana’s position is not to be regarded as a direct descendant of her guardians for the purpose of article 2.2(c). At the same time, we are concerned that such an interpretation could, in some cases, create opportunities for exploitation, abuse and trafficking in children, which it was the object of the Hague Convention to prevent and deter. We are also concerned that an automatic right of entry for “kefalah” children might lead to some of them being placed in homes which domestically would have been rejected as unsuitable.

Article 1(c) of the Citizens Directive recognises that limits may be set on the rights of free movement and residence “on grounds of public policy, public security or public health”. But these limits are restricted by the later substantive provisions. The relevant articles appear to us to be article 27 and article 35.

Article 27 is subject to the procedural safeguards in articles 30 and 31. So far as immediately relevant, it provides:

Article 35 provides for “Abuse of rights”:

It also appears to us that the answers to the questions posed must be the same whether the child involved is a third country national or a national of another Member State. The relevant provisions do not distinguish between them.

Thus, the Court refers the following three questions to the Court of Justice of the European Union for a preliminary ruling:

The Court of Appeal handed down judgment in this case on 4 November 2015 [2015] EWCA Civ 1109; [2016] Imm AR 239. This Court gave permission to appeal on 28 April 2016. At neither stage was it suggested that there was no right of appeal against the ECO’s decision and thus that neither the tribunals or the courts had any jurisdiction to hear this case. Nor was the issue raised in the Statement of Facts and Issues agreed between the parties for the purpose of this appeal. However, on 6 June 2016, the Upper Tribunal held, in Sala v Secretary of State for the Home Department [2016] UKUT 411; [2017] Imm AR 141, paras 85, 87, that there was no statutory right of appeal against the refusal of a residence card to a person claiming to be an “extended family member” under the 2006 Regulations. This was first drawn to our attention “for information” in the Secretary of State’s written case dated 8 March 2017. We took the view, however, that we could not proceed with the issue relating to article 3.2(a) of the Directive and regulation 8 of the 2006 Regulations without determining whether we had jurisdiction to do so. It is a matter of great regret that the point was not drawn to our attention immediately after the Sala decision, because it could then have been dealt with as a matter of urgency and the delay in these proceedings avoided.

The argument is a simple one. Under regulation 26(1) of the 2006 Regulations:

In Sala , the Upper Tribunal decided that, because decisions concerning “extended family members” involve, not only a determination as to whether a person falls within the definition of extended family member, but also the exercise of a discretion whether to admit or grant a residence card to that person, they did not concern that person’s “entitlement” to either. The Tribunal acknowledged that the point was not an easy one. It had long been assumed, both by appellants and by the Secretary of State, that there was such an appeal. Both parties maintained that position before the Tribunal: only an amicus appearing at the Tribunal’s request argued the contrary. (Indeed, regulation 26 had been amended in 2012 to introduce paragraph 26(2A), which made no sense if extended family members did not have a right of appeal; but that could not change the meaning which the Regulations already bore.) In the Tribunal’s view, the “natural and ordinary meaning” of paragraph (b) in the definition of “EEA decision” did not cover the refusal of a residence card (para 48) (which was the issue in that case).

Shortly before the second hearing before us, the Court of Appeal handed down judgment in Khan v Secretary of State for the Home Department [2017] EWCA Civ 1755, in which the Secretary of State had refused to grant a residence card to the Pakistani nephew of a German national. The arguments were wide-ranging, the Secretary of State now contending that Sala was correct. Nevertheless, the principal point at issue was whether the decision in question was one which “concerns … an entitlement” to enter and be granted a residence card (para 42). In Sala , the Upper Tribunal had proceeded on the basis that this meant an existing entitlement ( Khan , para 43). Both the appellant and the Secretary of State had argued then that there was a two stage process: first the factual decision whether the appellant fell within the definition of an extended family member; and second the decision whether it was appropriate to grant entry and a residence card; once granted, this would result in an entitlement to enter and reside; hence the decision “concerns” that entitlement because it “is relevant to or important to”, “relates to” or “is about” the entitlement to a residence card (see para 24). Irwin LJ held that “a decision which ‘concerns’ an entitlement appears to me naturally to include a decision whether to grant such an entitlement” (para 45). Longmore LJ, agreeing, added that, even where there was a discretion, it had to be exercised in accordance with the correct legal principles: a litigant was entitled to a decision exercised in that way (para 48). Sir Terence Etherton MR agreed with both judgments. The decision in Sala was therefore overruled.

That now being the interpretation of the 2006 Regulations as they stood at the date when this appeal was launched, it is for the Secretary of State to persuade us that the Court of Appeal was wrong to reach the conclusion that it did. That she has been unable to do. On the contrary, in our view the Court of Appeal was clearly correct and there is no need for us to rehearse the very wide-ranging arguments put before them. Despite the breadth of the discretion in article 3.2 cases, there is nevertheless a duty to facilitate entry, to make full enquiries and to justify refusal. There will therefore be cases in which a refusal cannot be justified. Such a person will be entitled to a family permit and thereafter to be treated as a “family member”. As Lord Wilson pointed out in the course of argument, jurisdiction cannot depend upon fine judgments as to the proportionality of refusal. It also makes no practical sense in a case such as this, which turns on whether the appellant has a present entitlement under article 2.2(c) or a potential entitlement under article 3.2(a): on the Secretary of State’s present case and in the light of our conclusions on article 3.2(a) above, Susana would have a right of appeal to the tribunal in relation to her claims under article 2.2(c), but would have to bring judicial review proceedings in relation to her claim under article 3.2(a).

We are satisfied, therefore, that the Court of Appeal’s decision in Khan was correct and that Sala should be overruled.

For completeness, it should be recorded that on 20 February 2017, in Secretary of State for the Home Department v Banger ([2017] UKUT 125, unreported), a differently constituted Upper Tribunal referred a number of questions concerning the claim of the unmarried partner of a British national to the Court of Justice of the European Union. Among those questions, in the light of Sala, was this:

We understand that the oral hearing in Banger took place in January 2018. The issue is whether the procedural safeguards laid down in articles 15, 20 and 21 of the Directive require a full merits appeal to a court or tribunal or whether they can be satisfied by the UK’s procedure for judicial review of administrative action: is that an effective remedy for this purpose? Given the conclusion we have reached in this case, it would be inappropriate for us to comment further on this issue. We shall await with interest the outcome of the reference in Banger .