SM (Algeria) v Entry Clearance Officer, UK Visa Section
| Jurisdiction | England & Wales |
| Judge | Lord Wilson,Lord Hughes,Lord Kerr,Lady Hale,Lord Reed |
| Judgment Date | 14 February 2018 |
| Neutral Citation | [2018] UKSC 9 |
| Court | Supreme Court |
[2018] UKSC 9
Lady Hale, President
Lord Kerr
Lord Wilson
Lord Reed
Lord Hughes
Appellant
Ramby de Mello
Tony Muman
Katie Wilkinson
Jessica Smeaton
(Instructed by David Tang & Co)
Respondent
Brian Kennelly QC
Ben Lask
(Instructed by The Government Legal Department)
Intervener (Coram Children's Legal Centre)
Manjit Singh Gill QC
Navtej Singh Ahluwalia
(Instructed by Coram Children's Legal Centre)
Intervener (The AIRE Centre)
Aidan O'Neill QC
David Chirico
Catherine Robinson
(Instructed by Herbert Smith Freehills LLP)
Heard on 23 March and 29 November 2017
( with whom Lord Kerr, Lord Wilson, Lord Reed and Lord Hughes agree)
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:
“This Directive lays down:
(a) the conditions governing the exercise of the right of free movement and residence within the territory of the member states by Union citizens and their family members;
(b) the right of permanent residence in the territory of the member states for Union citizens and their family members;
(c) the limits placed on the right sets out in (a) and (b) on grounds of public policy, public security or public health.”
Article 2 contains definitions, including that of a “family member”, who enjoys the right to move with and reside with the Union citizen. This includes:
“(2) ‘Family member’ means:
(a) the spouse;
(b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a member state, if the legislation of the host member state treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host member state;
(c) the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b);
…” (Emphasis supplied.)
Article 3 defines who are to be “beneficiaries” of the Directive, and makes in article 3.2 more limited and discretionary provision for those who do not qualify as family members within the meaning of article 2.2:
“1. This Directive shall apply to all Union citizens who move to or reside in a member state other than that of which they are a national, and to their family members as defined in point 2 of article 2 who accompany or join them.
2. Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host member state shall, in accordance with its national legislation, facilitate entry and residence for the following persons:
(a) any other family members, irrespective of their nationality, not falling under the definition in point 2 of article 2 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, or where serious health grounds strictly require the personal care of the family members by the Union citizen;
(b) the partner with whom the Union citizen has a durable relationship, duly attested.
The host member state shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people.” (Emphasis supplied.)
Regulation 7 of the 2006 Regulations transposes article 2.2(c) into UK law as follows:
“(1) Subject to paragraph (2), for the purpose of these Regulations the following persons shall be treated as the family members of another person —
…
(b) direct descendants of his, his spouse or his civil partner who are —
(i) under 21; or
(ii) dependants of his, his spouse or his civil partner;”
Regulation 8 makes provision for “extended family members”. At the time when this case was heard in the First-tier Tribunal it provided as follows:
“(1) In these Regulations ‘ extended family member’ means a person who is not a family member of an EAA national under the regulation 7(1)(a), (b) or (c) and who satisfies the conditions in paragraph (2), (3), ( 4) or (5).
(2) A person satisfies the condition in this paragraph if the person is a relative of an EEA national, his spouse or his civil partner and —
(a) the person is residing in [a country other than the United Kingdom] in which the EEA national also resides and is dependent upon the EEA national or is a member of his household;
(b) the person satisfied the condition in paragraph (a) and is accompanying the EEA national to the United Kingdom or wishes to join him there; or
(c) the person satisfied the condition in paragraph (a), has joined the EEA national in the United Kingdom and continues to be dependent upon him or to be a member of his household.
(3) A person satisfies the condition in this paragraph if the person is a relative of an EEA national or his spouse or his civil partner and, on serious health grounds, strictly requires the personal care of the EEA national his spouse or his civil partner.
(4) A person satisfies the condition in this paragraph if the person is a relative of an EEA national and would meet the requirements in the immigration rules (other than those relating to entry clearance) for indefinite leave to enter or remain in the United Kingdom as a dependent relative of the EEA national were the EEA national a person present and settled in the United Kingdom.
(5) A person satisfies the condition in this paragraph if the person is the partner of an EEA national (other than a civil partner) and can prove to the decision maker that he is in a durable relationship with the EEA national.
(6) In these Regulations ‘ relevant EEA national’ means, in relation to an extended family member, the EEA national who is or whose spouse or civil partner is the relative of the extended family member for the purpose of paragraph (2), ( 3) or (4) or the EEA national who is the partner of the extended family member for the purpose of paragraph (5).”
We doubt whether this regulation accurately transposed article 3.2 of the Directive in at least two respects. First, it imposed (and still imposes) a requirement that the dependant or member of the household be a “relative” of the EEA national. Second, it required that they both live or have lived in the same country outside the United Kingdom: however, that was rectified in November 2012 by the deletion of the words “in which the EEA national also resides” from regulation 8(2)(a).
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...
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