Opinion of the Advocate General — ECLI:EU:C:2019:140
Date: 2019-02-26
Language of the case: English
Subject matter: Citizenship of the Union;Right of entry and residence
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - decision unnecessary
Origin: United Kingdom

summary, the referring court wishes to ascertain whether, before recognising a child in SM’s situation ‘as a direct descendant under Article 2(2)(c)’ of Directive 2004/38 the United Kingdom authorities can investigate or enquire into whether ‘the procedures for placing the child in … guardianship or custody … was such as to give sufficient consideration to the best interests of that child’. 119. Since, in my view, the premiss on which this question is based does not apply in the case of SM, who cannot be classed as a direct descendant within the meaning of that provision, it is not necessary to answer the question. 120. Moreover, if one were to accept that SM is a direct descendant by virtue of the family ties inherent in kafala and, therefore, that her entry into a Member State should benefit from the automatic recognition granted to such descendants under Article 2(2)(c) of Directive 2004/38, it would not be possible to undertake the enquiry about which the referring court harbours doubts. 121. By contrast, that enquiry is possible if one accepts the route provided for in Article 3(2) of Directive 2004/38 as a means of facilitating the entry and residence of the child in the United Kingdom, thus enabling her to enjoy family life in the company of the Union citizens who took her into their custody. 122. Indeed, in undertaking ‘an extensive examination of the personal circumstances’ of the family members, as required under the final part of that article, the competent authorities in the United Kingdom must have regard to the best interests of the child, as a ‘primary consideration’. Without needing to repeat the comments I made on this point in my analysis of the first question, (90) that assessment can include, among other points, an examination of the substantive and procedural circumstances under which custody of the child was granted. VII. Conclusion 123. In line with the arguments set out above, I suggest that the Court of Justice should reply to the Supreme Court of the United Kingdom in the following terms: (1) Article 2(2)(c) of 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 amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC is to be interpreted as meaning that a child cannot be classed as a ‘direct descendant’ of a Union citizen where the child is only in the legal guardianship of that Union citizen under the institution of recueil legal (kafala) that applies in the Republic of Algeria. That child may, however, fall within the category of ‘other family members’ if the other requirements are satisfied and following completion of the procedure laid down in Article 3(2) of Directive 2004/38, in which case the host Member State must facilitate his or her entry and residence in that Member State in accordance with national legislation, having weighed the protection of family life and the defence of the child’s best interests. (2) Articles 27 and 35 of Directive 2004/38 can be applied in any of the situations referred to in that directive where grounds of public policy, public security or public health apply, and in the event of abuse of rights or fraud. (3) In applying Article 3(2) of Directive 2004/38, the authorities of the host Member State may enquire into whether sufficient regard was had, in the procedure for awarding guardianship or custody, to the best interests of the child. 1 Original language: Spanish. 2 On the characteristics of this arrangement, see points 35 to 39 below. 3 Directive 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 amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77). 4 UN Convention of 20 November 1989. 5 Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (‘the 1993 Hague Convention’). 6 Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (‘the 1996 Hague Convention’). 7 OJ 2000 C 364, p 1. 8 SI 2006/1003. 9 2002 c. 38. 10 Paragraphs 11 to 15. 11 Based on the order for reference, paragraphs 14 and 15. 12 Paragraph 22 of the order for reference. 13 COM(2009) 313 final; ‘the Communication’. 14 In support of this position it cites the Opinions of Advocate General Wathelet in Coman (C‑673/16, EU:C:2018:2), point 32, and of Advocate General Bot in Rahman and Others (C‑83/11, EU:C:2012:174). 15 Final part of paragraph 27 of the order for reference. 16 Ibid. 17 Although the referring court refers to ‘“kafala” or some equivalent arrangement provided for in the law of his or her country of origin’ it does not give any indication of this latter arrangement, and I will therefore restrict myself to an analysis of kafala, which is the only guardianship mechanism used in this case. 18 Article 118 of the AFC. 19 This is included in SM’s custody deed (paragraph 12 of the order for reference). 20 Article 116 of the AFC. 21 Islamic legal systems are based on the principle of the preservation of blood ties and the exclusion of adoption, which is prohibited in most (but not all) Muslim countries. The written observations by The AIRE Centre and SM note the differences in the regulations of the various different countries (paragraphs 51 and 65 respectively). 22 Article 46 of the AFC. 23 Article 123 of the AFC. 24 Articles 124 and 125 of the AFC. 25 The AIRE Centre, SM and Coram Children’s Legal Centre. 26 General Assembly of the United Nations, Sixty-fourth Session, 24 February 2010 (A/RES/64/142). Their purpose is to enhance the implementation of the Convention on the Rights of the Child (paragraph 1). 27 One of its purposes is ‘to support efforts to keep children in, or return them to, the care of their family, or failing this, to find another appropriate and permanent solution, including adoption and kafala of Islamic law’. 28 According to paragraph 123 of the Guidelines, which is part of the section on ‘Residential care’, the objective is to secure the child’s stable care in an alternative family setting. Paragraph 152, on ‘Provision of care for a child already abroad’ treats kafala as comparable to placement with a view to adoption. Paragraph 161, dealing with ‘care in emergency situations’ and situations where family reintegration is impossible, advises that consideration should be given to ‘stable and definitive solutions, such as adoption or kafala of Islamic law’, but also refers to other ‘long-term options …, such as foster care or appropriate residential care, including group homes and other supervised living arrangements’. 29 In countries where it is permitted, simple, or less than full, adoption usually allows family ties with the previous family to be maintained, without prejudice to this kind of relationship between the adopter and the adoptee. 30 Text adopted by the Eighteenth Session of the Hague Conference on Private International Law. Paris, 15 January 1997. 31 https://www.hcch.net/en/instruments/conventions/full-text/?cid= 39. 32 ECtHR, judgment of 4 October 2012, Harroudj v. France (CE:ECHR:2012:1004JUD004363109), § 48, which repeats the comments made in paragraph 21: ‘Out of the 22 Contracting States of which a comparative law study has been made …, none of them regard kafala established abroad as adoption. In cases where the domestic courts have recognised the effects of kafala granted in a foreign country, they have always treated it as a form of guardianship or curatorship, or as placement with a view to adoption.’ 33 Ibid., § 41. 34 Ibid., §§ 46 to 52. 35 Judgment of 16 December 2014, Chbihi Loudoudi v. Belgium (CE:ECHR:2014:1216JUD005226510). 36 Ibid., §§ 78 and 79. 37 Ibid., §§ 101 and 102. 38 Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (OJ 2003 L 338, p. 1). 39 In defining its scope of application, Article 1 refers to parental responsibility with reference to rights of custody and rights of access; guardianship, curatorship and similar institutions; the designation and functions of any person or body having charge of the child’s person or property, representing or assisting the child; the placement of the child in a foster family or in institutional care; and measures for the protection of the child relating to the administration, conservation or disposal of the child’s property. Like the 1996 Hague Convention, it immediately goes on to exclude matters relating to parent-child relationships and adoption from its scope of application. 40 View in Health Service Executive (C‑92/12 PPU, EU:C:2012:177), point 17: ‘In connection with the interpretation of Regulation No 2201/2003 having regard to its drafting history and its scheme, [the Lagarde Report] may offer guidance to the interpretation of the relevant provisions of the regulation. The provisions on custody in the regulation are based on the preparatory work for the Child Protection Convention and are identical in large parts, including with regard to the provisions on scope to be interpreted here. Furthermore, the provisions of the Regulation and corresponding provisions in other conventions ought, so far as possible, to be interpreted in the same way, in order to avoid different results according to whether a case concerns another Member State or a third country.’ 41 While the Polish and United Kingdom Governments maintain that the definition of the term falls within the exclusive competence of the Member States, the other interveners argue in favour of an autonomous interpretation for the whole of the European Union. 42 Judgment of 18 October 2016, Nikiforidis (C‑135/15, EU:C:2016:774), paragraph 28 and the case-law cited. The Polish Government underlines the use of the adverb ‘normally’ in that case-law, but does not explain why, in spite of the fact that the aforesaid precept in Directive 2004/38 makes no express reference to national law, the general rule should not apply in this case. 43 Judgment of 27 September 2017, Nintendo (C‑24/16 and C‑25/16, EU:C:2017:724), paragraph 70 and the case-law cited. This guidance is referred to in relation to Directive 2004/38 by Advocates General Bot and Wathelet in their respective Opinions in Rahman and Others (C‑83/11, EU:C:2012:174), point 39, and Coman and Others (C‑673/16, EU:C:2018:2), points 34 and 35. 44 Coman and Others (C‑673/16, EU:C:2018:385). 45 Opinion of Advocate General Wathelet in Coman and Others (C‑673/16 EU:C:2018:2), points 33 to 42. 46 Judgment of 5 June 2018, Coman and Others (C‑673/16, EU:C:2018:385), paragraph 35: ‘it should be pointed out, first of all, that the term “spouse” within the meaning of Directive 2004/38 is gender-neutral and may therefore cover the same-sex spouse of the Union citizen concerned’. 47 Ibid., paragraph 36. 48 The adverb automatically must be qualified in that, under Article 10 of Directive 2004/38, ‘the right of residence of family members of a Union citizen who are not nationals of a Member State shall be evidenced by the issuing of a document called “Residence card of a family member of a Union citizen”’. The issue of this document is conditional on presentation, among other documents, of a document ‘attesting to the existence of a family relationship or a registered partnership’ and ‘in cases falling under points (c) [direct descendants] and (d) of Article 2(2), documentary evidence that the conditions laid down therein are met’. 49 These include being dependants or members of the household of the Union citizen having the right of residence, which is the case in these proceedings. 50 First subparagraph of Article 3(2) of Directive 2004/38. Third-country nationals who belong to the extended family therefore have an advantage as a result of their family relationship with Union citizens, as Member States are required (albeit not unconditionally) to facilitate their entry and residence. 51 Final subparagraph of Article 3(2) of Directive 2004/38. 52 ‘Whilst … Article 3(2) of Directive 2004/38 does not oblige the Member States to accord a right of entry and residence to persons who are family members, in the broad sense, dependent on a Union citizen, the fact remains, as is clear from the use of the words “shall facilitate” in Article 3(2), that that provision imposes an obligation on the Member States to confer a certain advantage, compared with applications for entry and residence of other nationals of third States, on applications submitted by persons who have a relationship of particular dependence with a Union citizen.’ Judgment of 5 September 2012, Rahman and Others (C‑83/11, EU:C:2012:519), paragraph 21. 53 Paragraph 21 of the order for reference. 54 Council Directive of 22 September 2003 on the right to family reunification (OJ 2003 L 251, p. 12). 55 Article 4(1)(b)(c) and (d) of Directive 2003/86 (emphasis added). 56 Directive of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (OJ 2011 L 337, p. 9). 57 Regulation of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (OJ 2013 L 180, p. 31). 58 See Regulation (EC) No 1931/2006 of the European Parliament and of the Council of 20 December 2006 laying down rules on local border traffic at the external land borders of the Member States and amending the provisions of the Schengen Convention (OJ 2006 L 405, p. 1), Article 3(4)(i); Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ 2016 L 77, p. 1), Article 2(5)(a); or Directive (EU) 2016/801 of the European Parliament and of the Council of 11 May 2016 on the conditions of entry and residence of third-country nationals for the purposes of research, studies, training, voluntary service, pupil exchange schemes or educational projects and au pairing (OJ 2016 L 132, p. 21), Article 3, number 24. 59 Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (OJ 2004 L 166, p. 1), Article 1(i). 60 The AIRE Centre, Coram Children’s Legal Centre, SM and the Commission itself. 61 Point 28. 62 ‘Without prejudice to issues related to recognition of decisions of national authorities, the notion of direct relatives in the descending and ascending lines extends to adoptive relationships or minors in custody of a permanent legal guardian. Foster children and foster parents who have temporary custody may have rights under the Directive, depending upon the strength of the ties in the particular case. There is no restriction as to the degree of relatedness. National authorities may request evidence of the claimed family relationship’ (emphasis added). 63 Points 40 to 47 of this Opinion. 64 This point is made by the United Kingdom Government (paragraph 52 et seq. of its observations) and the German Government (paragraph 32 et seq. of its observations). 65 In point 56 of her written observations, SM herself (or rather, those appointed to defend her) declare that ‘it will be abominable for Mr and Mrs M to (or for them to be expected to) disregard their promise given to the Algerian Court that they give [SM] an Islamic education and adopt her under the [1993] Hague Convention, which is forbidden by Algerian law’. 66 In the case of France, the ECtHR held that the choice of law rule in Article 370(3) of the Civil Code (‘An order for the adoption of a foreign child may not be made where his personal law prohibits that institution, unless the child was born and habitually resides in France’) which, when applied to Algerian makfuls, prevented them from being adopted in France because of the prohibition in Algeria, could open the door to the possibility of adoption once the child had obtained French nationality. See the judgment of 4 October 2012, Harroudj v. France (CE:ECHR:2012:1004JUD004363109), § 51. 67 Judgments of 4 October 2012, Harroudj v. France (CE:ECHR:2012:1004JUD004363109), and of 16 December 2014, Chbihi and Others v. Belgium (CE:ECHR:2014:1216JUD005226510). 68 With the qualification already noted in footnote 48. 69 Paragraph 13 of the order for reference. 70 Judgment of 16 December 2014 (CE:ECHR:2014:1216JUD005226510), § 89. 71 Judgment of 4 October 2012 (CE:ECHR:2012:1004JUD004363109). 72 Judgment of 16 December 2014 (CE:ECHR:2014:1216JUD005226510), § 92. 73 Ibid., § 93. 74 The ECtHR refers to paragraphs 64 and 65 of its own judgment, where it describes the unofficial guardianship arrangements by transcribing Article 475 bis of the Belgian Civil Code: ‘Where a person who is at least 25 years of age undertakes to maintain an unemancipated child, to educate him and to place him in a position where he can earn his living, that person may become his unofficial guardian by means of an agreement between the persons whose consent is required for the adoption of children.’ 75 Ibid., paragraph 102. 76 Judgment of 20 November 2018, Sindicatul Familia Constanţa and Others (C‑147/17, EU:C:2018:926), paragraph 71. This case concerned a Romanian institution which ‘aims to integrate the foster child on a continuous and long-term basis, into the home and family of his or her foster parent’ (paragraph 62). The content of this type of fostering arrangement is similar to that of kafala as regards care for the child. 77 Articles 4 and 5, and Article 14 et seq. 78 Paragraph 2 adds that ‘the decision on the placement or provision of care may be made in the requesting State only if the Central Authority or other competent authority of the requested State has consented to the placement or provision of care, taking into account the child’s best interests’. Cooperation between the authorities of the various States is of the utmost importance given that, by contrast with the general rule that measures taken by the authorities of a Contracting State shall be recognised by operation of law, recognition may be refused, amongst other cases, where the procedure in Article 33 has not been followed (see Article 23 of the 1996 Hague Convention). 79 ‘The aim of Article 56(2) of the regulation is, first, to enable the competent authorities of the requested State to give or refuse their consent to the possible admission of the child concerned and, secondly, to allow the courts of the requesting State to be satisfied, before taking the decision to place a child in institutional care, that measures will be taken in the requested State to permit placement in that State. … The placement must have the consent of the competent authority in the requested Member State before the court of the requiring Member State makes the placement order. The fact that consent is mandatory is underlined by the fact that Article 23(g) of the regulation provides that a judgment relating to parental responsibility is not to be recognised if the procedure laid down in Article 56 has not been complied with.’ Judgment of 26 April 2012, Health Service Executive (C‑92/12 PPU, EU:C:2012:255), paragraphs 80 and 81. 80 Where the direct descendants are adopted, the interests of the child have already been verified in accordance with the procedural rules for giving effect to the adoption under the legislation of the country concerned (or, in the case of an international adoption, under the 1993 Hague Convention). 81 Naturally, this restriction on freedom of movement and residence must satisfy the rigorous requirements laid down by the case-law of the Court of Justice. 82 That does not render the question referred inadmissible, as some parties have argued, since only the referring court is in a position to know whether the facts of the case have a bearing on the matter raised in that question. 83 Paragraph 30 of the order for reference. 84 Recital 23 of Directive 2004/38 invokes the principle of proportionality where an expulsion measure is to be applied, noting that it should ‘take account of the degree of integration of the persons concerned, the length of their residence in the host Member State, their age, state of health, family and economic situation and the links with their country of origin’. 85 See the judgment of 18 December 2014, McCarthy (C‑202/13, EU:C:2014:2450), paragraphs 43 to 58, on the guarantees and limits on the application of Article 35 of Directive 2004/38. 86 Paragraphs 76 and 77 of its observations. 87 Directive of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA (OJ 2011 L 101, p. 1). 88 Recital 11 of Directive 2011/36 makes reference to ‘illegal adoption or forced marriage’. 89 These are the forms of exploitation cited in a non-exhaustive list in Article 2(3) of Directive 2011/36. 90 Points 58 to 108 of this Opinion.