SM (Algeria) v Entry Clearance Officer, UK Visa Section
| Jurisdiction | England & Wales |
| Judge | Laws LJ,Lord Justice Kitchin,Lord Justice Christopher Clark |
| Judgment Date | 04 November 2015 |
| Neutral Citation | [2015] EWCA Civ 1109 |
| Date | 04 November 2015 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2014/3105 |
[2015] EWCA Civ 1109
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(UTJ Allen and DUTJ Bruce)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Laws
Lord Justice Kitchin
and
Lord Justice Christopher Clarke
Case No: C5/2014/3105
Mr R De Mello and Ms J Smeaton (instructed by David Tang & Co) for the Appellant
Mr B Lask (instructed by Government Legal Department) for the Respondent
Hearing dates: 8 October 2015
INTRODUCTION
This is the appeal of the Entry Clearance Officer, with permission granted by Richards LJ on 8 December 2014, against the decision of the Upper Tribunal (the UT: UTJ Allen and DUTJ Bruce) promulgated on 14 May 2014. The UT allowed the respondent's appeal against the determination of the First-tier Tribunal (the FTT) on 7 October 2013. The FTT had dismissed the respondent's appeal against the refusal of the ECO to issue her with an EEA family permit to enter the United Kingdom as a family member of an EEA national exercising free movement rights. The core of the ECO's appeal to this court as formulated in the Grounds and counsel's skeleton argument was directed at the UT's reliance on Article 8 of the European Convention on Human Rights (ECHR) in construing Regulation 8 of the Immigration (European Economic Area) Regulations 2006 (the Regulations) which led it to conclude at paragraph 21 that the respondent was an "extended family member" under Regulation 8(2) so that she might claim an EEA family permit under Regulation 12. But that issue disappeared, in effect by concession (at least by silence) on the respondent's part. The real questions in the case concerned the interpretation of Articles 2 and 3 of Directive 2004/38/EC (the Citizenship Directive). Paragraphs 7 and 8 of the Regulations give effect to Articles 2 and 3 of the Directive respectively. I will explain the background and set out the legislation directly. There is also a respondent's notice which I will introduce in due course.
The respondent is an Algerian national born on 27 June 2010. Her application for an entry clearance to come to the United Kingdom as a family member of an EEA national exercising free movement rights arose in circumstances described by the UT as follows:
"2. The EEA nationals whom the Appellant [now the respondent] wishes to live with in the UK are Mr and Mrs M. They are both French, of Algerian origin, and have been living in the UK for many years. Mr M has a permanent right of residence in the UK. In 2009 the couple both travelled to Algeria in order to undergo assessment for their suitability to be legal guardians under the kafalah system, the Islamic alternative to adoption. Mr and Mrs M obtained the necessary approval and in June 2010 they were told that the Appellant had been born and abandoned by her birth mother at hospital. Mr and Mrs M applied to be her legal guardians and after the three month period stipulated by Algerian law (in which birth parents are able to reclaim their child) she was handed over to Mr and Mrs M. On the 28 th September 2010 they attended court in order to sign the necessary papers, and on the 22 nd March 2011 a Legal Custody Deed was issued by the Algerian Courts.
3. In October 2011, having lived with his wife and daughter for just over a year in Algeria, Mr M returned to the UK to resume his full time occupation as a chef. Attempts to bring the Appellant to the UK as a visitor failed and in May 2012 an application was made on her behalf for a family permit conferring a right of entry as the family member of Mr M."
The ECO refused the respondent's application for entry clearance, stating:
"I am not satisfied that your adoption is legally recognised in the UK and therefore I am not satisfied that under UK law you are related as claimed or that the national of whom you claim to be a family member is a qualified person."
Accordingly the ECO concluded that the respondent was not a "family member" within paragraph 7 of the Regulations. The ECO also observed that no application for inter-country adoption had been made nor had a "Certificate of Eligibility to Adopt" been issued by the Department for Children, Schools and Families, so that the respondent was not eligible for entry clearance under paragraph 310 of the Immigration Rules.
THE DIRECTIVE, THE REGULATIONS AND THE IMMIGRATION RULES
It is convenient to set out these materials at this stage before turning to the decisions of the FTT and the UT. I will start with the Citizenship Directive.
The Directive consolidated earlier regulations and directives. Mr Lask for the ECO first referred to a number of the Recitals. I will set out Recitals (3), (5) and (6):
"(3) Union citizenship should be the fundamental status of nationals of the Member States when they exercise their right of free movement and residence. It is therefore necessary to codify and review the existing Community instruments dealing separately with workers, self-employed persons, as well as students and other inactive persons in order to simplify and strengthen the right of free movement and residence of all Union citizens.
(5) The right of all Union citizens to move and reside freely within the territory of the Member States should, if it is to be exercised under objective conditions of freedom and dignity, be also granted to their family members, irrespective of nationality. For the purposes of this Directive, the definition of 'family member' should also include the registered partner if the legislation of the host Member State treats registered partnership as equivalent to marriage.
(6) In order to maintain the unity of the family in a broader sense and without prejudice to the prohibition of discrimination on grounds of nationality, the situation of those persons who are not included in the definition of family members under this Directive, and who therefore do not enjoy an automatic right of entry and residence in the host Member State, should be examined by the host Member State on the basis of its own national legislation, in order to decide whether entry and residence could be granted to such persons, taking into consideration their relationship with the Union citizen or any other circumstances, such as their financial or physical dependence on the Union citizen."
Recitals (5) and (6) prefigure Articles 2 and 3 respectively. Those Articles provide so far as relevant:
"2(2) 'family member' means:
(a) the spouse;
(b) the partner with whom the Union citizen has contracted a registered partnership…
(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);
(d) the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b)…
3(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…;
(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."
Now I may turn to the Regulation. Paragraph 7:
"… [F]or the purposes of these Regulations the following persons shall be treated as the family members of another person —
(a) his spouse or his civil partner;
(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…"
Paragraph 8 (in the form having effect at the material time):
"(1) In these Regulations 'extended family member' means a person who is not a family member of an EEA national under 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…"
Paragraph 12 provides (in essence) for the issue of an EEA family permit to persons who qualify under the Regulations.
I will next set out paragraphs 309A and 309B of the Immigration Rules. I need not recite the detail of paragraph 310, though it is referred to in the ECO's decision and I will have to refer to it again. It sets out a series of requirements to be met "in the case of a child seeking indefinite leave to enter the United Kingdom as the adopted child of a parent or parents present and settled or being admitted for settlement in the United Kingdom". Paragraphs 309A and 309B provide:
"309A. For the purposes of adoption under paragraphs 310–316C a de facto adoption shall be regarded as having taken place...
To continue reading
Request your trial
-
SM (Algeria) v Entry Clearance Officer, UK Visa Section
...[2018] UKSC 9 THE SUPREME COURT Hilary Term On appeal from: [2015] EWCA Civ 1109 Lady Hale, President Lord Kerr Lord Wilson Lord Reed Lord Hughes SM (Algeria) (Appellant) and Entry Clearance Officer, UK Visa Section (Respondent) Appellant Ramby de Mello Tony Muman Katie Wilkinson Jessica Sm......
-
SM (Algeria) v Entry Clearance Officer, UK Visa Section
...[2018] UKSC 9 THE SUPREME COURT Hilary Term On appeal from: [2015] EWCA Civ 1109 Lady Hale, President Lord Kerr Lord Wilson Lord Reed Lord Hughes SM (Algeria) (Appellant) and Entry Clearance Officer, UK Visa Section (Respondent) Appellant Ramby de Mello Tony Muman Katie Wilkinson Jessica Sm......
-
Hamid Saeed v SSHD
...nieces are outside the scope of what is meant by “direct relative”. 46 Mr Gill QC relied heavily upon the judgments of the Supreme Court in SM Algeria [2018] UKSC 9, where one of the issues was the meaning of the expression “direct descendant” in Article 2 of the Citizens Directive. The es......
-
Upper Tribunal (Immigration and asylum chamber), 2019-03-14, EA/01658/2017
...the outcome of that decision is known the decision of the Court of Appeal is clearly binding on me and it was decided in SM (Algeria) [2015] EWCA Civ 1109 that the kind of arrangement here is not an adoption for the purposes of the EEA I regard that point as entirely unarguable before me be......
-
Small Happy Family? An Analysis of Irish Family Reunification Law as it Applies to Beneficiaries of International Protection
...Right to Family Life (Martinus Nijhoff Publishers 1996), 79. 65 SM v Entry Clearance Officer, UK Visa Section [2018] UKSC 9 [27]. 66 [2015] EWCA Civ 1109. 67 Citizens’ Rights Directive 2004/58/EC. 68 See Article 3 of the Citizenship Directive. 69 ibid. 186 Trinity College Law Review [Vol 22......