SM (Algeria) (Appellant) v Entry Clearance Officer, UK Visa Section (Respondent)

[2018] UKSC 9

UKSC 2015/0243
SM (Algeria) (Appellant) v Entry Clearance Officer, UK Visa Section (Respondent)
On appeal from the Court of Appeal Civil Division (England and Wales)

The issue in this case is whether the Appellant is a “direct descendant” or “extended family member” within the meaning of Regulations 7 and 8 of the Immigration (European Economic Area) Regulations 2006.

Mr and Mrs M are French nationals exercising free movement rights. In 2011 in Algeria Mr and Mrs M became legal guardians of the Applicant under the Kafalah system (Islamic equivalent to adoption). The Applicant later applied for entry clearance to come to the UK as a family member of an EEA national exercising free movement rights under the Immigration (European Economic Area) Regulations 2006. Her application was refused.

The Supreme Court unanimously holds (1) that it does have jurisdiction to hear the appeal, Sala having been wrongly decided; and (2) refers three questions to the Court of Justice of the European Union for a preliminary ruling.

Is a child who is in the permanent legal guardianship of a Union citizen or citizens, under ‘kefalah’ or some equivalent arrangement provided for in the law of his or her country of origin, a ‘direct descendant’ within the meaning of article 2.2(c) of the Directive?
Can other provisions in the Directive, in particular articles 27 and 35, be interpreted so as to deny entry to such children if they are the victims of exploitation, abuse or trafficking or are at risk of such?
Is a member state entitled to enquire, before recognising a child who is not the consanguineous descendant of the EEA national as a direct descendant under article 2.2(c), into whether the procedures for placing the child into the guardianship or custody of that EEA national was such as to give sufficient consideration to the best interests of the child?