Rainbow families and the right to freedom of movement – the V.М.А.v Stolichna obshtina, rayon ‘Pancharevo’ case

Chiara De Capitani, Linguist agent at the European Commission and honorary fellow European Union law at the University of Naples "L'Orientale". The information and views set out in this article are those of the author and do not necessarily reflect the official opinion of the European Commission.

Introduction

‘A child is in no way responsible for the differences in the scales of values in society between EU Member States’, notes Advocate General Juliane Kokott in her opinion (AG’s opinion). Yet, unfortunately, children of rainbow families face the very real risk to have their legal ties to one or both parents disappear once they cross the border of their Member State of residence. A recent study by the European Parliament (the ‘EP Study’ by Tryfonidou, Wintemute) found that in at least 11 EU Member States same-sex couples with children may not be legally recognised as the joint parents of their children.

The present Grand Chamber ruling, C‑490/20 V.М.А. v Stolichna obshtina, rayon ‘Pancharevo’ (Sofia municipality, Pancharevo district, Bulgaria) tackles a recurring problem faced by rainbow families: the refusal from an EU Member State to recognise a birth certificate issued in another Member State that indicates two parents of the same sex as the legal parents of a child. This Court of Justice of the European Union (CJEU) ruling builds on the 2019’s C‑673/16 Coman and others ruling (discussed here) and allows the AG and the CJEU to explore and clarify several aspects of the tension between the cross-border protection of family life and the best interests of the child with a Member States’ protection of its national identity.

Facts of the case

A same-sex couple composed of a Bulgarian national (V.M.A, the applicant) and a British national (K.D.K) have been residing in Spain since 2015 and built their family life there: they married in 2018 and welcomed a baby daughter (S.D.K.A) in 2019. The Spanish authorities issued the child a birth certificate recognising both partners as her mothers and not disclosing who gave birth to her.

V.M.A requested the Bulgarian authorities issue her daughter a Bulgarian birth certificate, a pre-condition under Bulgarian law to issue identity documents certifying the latter’s Bulgarian citizenship. However, Bulgarian law only recognises heterosexual marriages and the parentage of children as composed of a father and a mother. Therefore, Bulgarian authorities rejected the application for the issuing of a Bulgarian birth certificate on two grounds: the absence of information concerning the child’s birth mother and the fact that the registration of two same-sex parents in a birth certificate is contrary to Bulgarian public policy. The applicant brought an action against the refusal decision before the Administrative Court of the City of Sofia (the referring court).

Analysis

The Court’s answer to the recast ‘judgment of Solomon’

This already complex case is off to a rocky start when, at the hearing, the Bulgarian Government refutes the referring court’s claim that the child is a Bulgarian national. The referring court considers that the child has Bulgarian nationality under Article 25(1) of the Constitution of Bulgaria stating that ‘a person is a Bulgarian national if at least one of the parents is a Bulgarian national’. On the other hand, the Bulgarian government considers that the Bulgarian mother, to be recognized as such, has either to disclose that she gave birth to the daughter or proceed to become the “legal mother” following Article 64 of the Family Code.

These hypothetical possibilities offered by the government create a twisted “judgment of Solomon”-type of situation for both mothers: they can either sacrifice their daughter’s claim to Bulgarian citizenship and the derived family law rights this implies with the Bulgarian mother or they can defend their daughter’s right to Bulgarian citizenship by claiming the Bulgarian mother is the sole mother, severing the British mother’s parent-child relationship to her daughter in Bulgaria.

The Court, however, did not believe that the threat of splitting the child in two should have been the way to reach a fair compromise, quite the contrary.

Firstly, the Court claims that the referring court alone has jurisdiction in this matter, so the CJEU’s ruling will consider that S.D.K.A. has Bulgarian nationality by birth due to the Bulgarian constitution.

Secondly, the Court clarifies, the daughter - in her capacity as a Union citizen - can rely on the rights pertaining to Union citizenship, including Article 21(1) of the Treaty on the Functioning of the European Union (TFEU) also against her Member State of origin and even she was born in another Member State and has never travelled to her State of origin.

Thirdly, since every citizen of the Union has the right to move and reside freely within the territory of the Member States, Article 4(3) of Directive 2004/38/EC (the ‘Freedom of movement’ Directive) requires Member States to issue their nationals identity documents and, the Court clarifies ‘this document has to be issued regardless a of whether a new [Bulgarian] birth certificate is drawn up’.

Fourthly, such identity document must enable the daughter to move and reside freely within the territory of the Member States with each of her two mothers.

Lastly, since Article 21(1) TFEU includes the right to lead a normal family life with ones’ family members and the Spanish authorities have lawfully established the parent-child relationship between S.D.K.A and her two parents all Member States have to recognize V.M.A and K.D.K as having the right to accompany that child within the territory of Member States when exercising her freedom of movement. Whether one of the mothers gave birth to the daughter or whether her parents are biological or legal does not seem to be of interest to the Court: the fact that one Member States has recognised them as parents is sufficient to require all other Member States to mutually recognize this birth certificate for the purpose of freedom of movement. In practical terms also the same-sex parents of a child are entitled to a document which mentions them as being entitled to travel with their child: this document can be drawn up also by the host Member State and may be a birth certificate (like the present case).

The fragile balance between national identity, public policy and fundamental rights, including the right to respect for family life

The Court proceeds with analysing whether Article 4(2) of the Treaty on European Union (‘TEU’) protecting Member States’ national identity could serve as a justification for the Bulgarian authorities’ refusal to issue a birth certificate and an identity document to S.D.K.A.

Building on the Coman case, the Court recalls that the concept of public policy as a ‘justification for a derogation from a fundamental freedom must be interpreted strictly’. Recognizing the parent-child relationship between the child and each of her parents in the context of the child’s exercise of her rights under Article 21 TFEU does not undermine the national identity or pose a threat to the public policy of that Member State (which is thus still free to decide whether or not to allow same-sex marriage and parenthood under its national law).

The reverse of the medal is that ‘a national measure that is liable to obstruct the exercise of freedom of movement of persons may be justified only where such a measure is consistent with the fundamental rights guaranteed by the Charter’ and, the Court finds, Bulgaria’s “judgment of Solomon”-style proposals would be contrary to several fundamental rights of each mother and their daughter. For instance, the right to respect for private and family life, guaranteed by Articles 7 Charter of Fundamental Rights of the European Union (the Charter) and 8 of the European Convention on Human Rights (ECHR) and following the case-law of the European Court of Human Rights (ECtHR) and the CJEU, cover both the mutual enjoyment by parent and child of each other’s company and the relationship of same-sex couples.

The right to have the best interests of the child taken into account, guaranteed by article 24 of the Charter translates also in obligations for Member States deriving from the UN Convention on the Right of the Child not to discriminate the latter (Article 2) including on the basis of the sexual orientation of the child’s parents when registering their name and nationality (Article 7).

Interestingly, with regards to the need to take due account to the provisions of the Convention on the rights of the Child when interpreting article 24 of the Charter, the Court refers to its previous M.A.v État belge ruling. With regards to the return of irregularly staying third country nationals, the Court has ruled twice in the past 18 months that family unity must be taken into account before adopting a return decision, even where the person to whom the return decision is addressed is not a minor but their father. The M.A.v État belge ruling concerned a father who was considered a threat to public order due to having committed  several offences whereas the LM v Centre public d’action sociale de Seraing ruling concerned a father who was unable to meet his or his adult seriously-ill daughter’s needs without receiving social assistance. In both cases the Court found that the need to protect the family life of these children under Articles 5 (a) and 14 (1) (a) of Directive 2008/115/EC (the ‘Returns’ Directive) overrode the State’s prerogative to return their fathers.

Lastly, these rights would risk being violated also whether S.D.K.A did not have Bulgarian nationality. In that case, both her and her mother K.D.K would fall under the definition of ‘spouse’ and ‘direct descendant’ within the meaning of article 2 of Directive 2004/38/EC due to the fact that V.M.A is a Union citizen and is therefore also protected by Article 21(1) TFEU.

The finding by the Court that the definition of ‘direct descendant’ covers the child of a same-sex couple will likely extend to the right to family reunification of third country nationals currently provided by several EU instruments. For instance, various directives concerning certain types of workers from third countries (researchers, highly skilled workers, workers in the field of intra-corporate transfers) refer to the definition of family pursuant to art. 4 par. 1 of Directive 2003/86/EC (the ‘Family Reunification’ Directive) and allow Member States to recognize more favourable provisions with respect to family reunification. As Directive 2003/86/EC includes in its list of family members the ‘spouse’ and ‘minor children’ of the applicant, by analogy, same-sex migrant couples with or without children should benefit from these provisions.

According to various reports (EMN) a dozen Member States currently allow same-sex couples to apply for family reunification and several Member States extend this right also to highly qualified workers (ICF) and to workers in the context of intra-corporate transfers.

Implementation of the rights recognized by the present case

The impact this ruling will have on the day-to-day life of this family is unclear at this stage.

Firstly, there is no exhaustive list of the ‘rights under Article 21 TFEU and secondary legislation relating thereto’ to which S.D.K.A has a right to nor a precise definition of the rights that the “right to lead a normal family life” under Article 21 (1) TFEU would entail. The AG clarifies that, since the definition of ‘direct descendant’ under Directive 2004/38/EC must also be adopted with regard to the concept of the ‘family members’ of a migrant worker for the purposes of Regulation 492/2011/EU (the ‘freedom of movement for workers’ Regulation) S.D.K.A may claim, for example the social and tax advantages associated with V.M.A. By the same reasoning, said Regulation could also cover her admission to that Member State’s general educational, apprenticeship and vocational training courses according to Professor Steve Peers.

Secondly, unfortunately, neither the Court nor the AG elaborate on which parental rights K.D.K is entitled to as a non-EU citizen but as the ‘spouse’ of one. The AG notes that preventing K.D.K  from being recognized as a parent would exclude her from “all the parental duties requiring proof of parental status […], medical decisions or any type of administrative procedure on behalf of the child”. Indeed, the fundamental rights granted by the European Union on many of these issues could vary greatly depending on whether they fall partially inside or outside of the EU’s competences.

(For instance, as the EP Parliament’s study points out, if the legal parent that dies, ‘the child becomes an orphan and it is then up to the family of the legally recognised parent or, in the absence of that, the State, to determine whether the non-recognised parent will even be allowed to maintain links with the child or, ideally, be recognised as the child’s parent. The child, also, does not have any (legal) ties with the family of origin of the parent who is not legally recognised as a parent. Hence, the failure to legally recognise the parent-child relationship creates uncertainty and, with it, insecurity both for the parents and the child as it, in effect, denies their relationship’.)

Her rights as a ‘spouse’ of an EU citizen are also limited. As the EP study found with regards to the implementation of the Coman case: ‘the CJEU does not yet require [the Member State of origin] to recognise a same-sex married couple […] for instance in relation to family, tax, social security, pensions, inheritance, citizenship/nationality, and medical law, e.g. hospital visitation and consultation’.

Finally, as noted by ILGA’s Head of Litigation Arpi Avetisyan: ‘implementation is the crucial part, which often is also the difficult and time-consuming one.  […] In practice the referring court in Bulgaria will have to apply the CJEU judgment and the family will continue the process in Bulgaria. It can also mean further litigation, as it happened in the Coman case […], however in short – if Bulgaria or other countries that don’t recognise same-sex unions refuse to implement the CJEU judgment, the European Commission can take legal action – namely infringement procedures. Just to reiterate, the Court specifically mentioned that MS cannot rely on protection of national identity (i.e. non-recognition of same-sex unions) to refuse the child and her family their rights to free movement’. 

Conclusions

This landmark ruling fills a series of gaps with regards to LGBTIQ* rights, freedom of movement and the protection of ‘family life’ and will likely serve as inspiration for the Commission’s upcoming proposal for a horizontal legislative initiative to support the mutual recognition of parenthood between Member States announced in its LGBTIQ Equality Strategy 2020-2025 the 12 November 2020.

According to the EP Study, said Commission proposal could go even beyond the present ruling and ‘on the legal bases of Articles 18, 21(2), 46, 50(1), and 59(1) TFEU, require[e] all Member States to recognise, for all purposes of national law […] the adults mentioned in a birth certificate issued in another Member State as the legal parents of the child mentioned in that birth certificate, regardless of the sexes or the marital status of the adults’.

This, the EP Study believes, ‘will ensure that when a rainbow family moves, the familial ties among the members of the family – as legally established and reflected in a birth certificate issued by another Member State – will automatically be recognised in the host Member State for all purposes of national law (including family reunification under Directive 2004/38)’.

It’s important to note that, with regards to issues of cross-border mobility relating to gender identity, the Court has not yet had the opportunity to rule on the rights of parental couples where one or both parents are transgender or non-binary. A 2020 report from Transgender Europe (Karsay) notes that - in addition to the obstacles discussed above - these couples suffer from additional obstacles to freedom of movement and recognition of parental bond. For example, the absence or bureaucratic complexity of the legal procedures for gender recognition can also preclude the recognition of marriage, the birth certificate and the filiation relationship between parents and children.

It is also worth recalling that several interesting cases concerning the cross-border recognition of LGBTIQ* couples and families are still pending before the CJEU and the ECtHR.

With regards to the legal recognition of the right to marry of same-sex couples, three appeals have been registered before the ECtHR, two against Poland (1, 2), the other against Romania. The first two cases concern same-sex couples to whom the Polish authorities refused to register their marriage (celebrated abroad), thus depriving them of the rights normally recognized to married couples in Poland. The third case is an appeal presented by the Coman-Hamilton couple, applicants of the CJEU Coman ruling referred to above. With this appeal currently pending, the couple considers the protracted refusal of the Romanian authorities to recognize their marriage and its legal effects as a violation of the right to marry (Article 12 of the ECHR) and discrimination due to sexual orientation (Article 14) read in conjunction with articles 6, par. 1, 8, 12 and 13 of the ECHR).

With regard to the rights of same-parent couples in cross-border situations, the ECtHR will be called upon to rule on the case of a couple challenging Poland for the non-recognition of the civil union and the birth certificate of the child born in England (NELFA).  

Photo credit: Bjoertvedt, via wikicommons 

Protecting the right to a nationality for children of same-sex couples in the EU – A key issue before the CJEU in V.M.A. v Stolichna Obsthina (C-490/20)

 

Patrícia Cabral, Legal Policy Officer, European Network on Statelessness*

The enjoyment of LGBTIQ* rights varies across Europe, including the recognition of same-sex partnerships or marriages and the recognition of legal parentage between children and those who raise them as parents – regardless of biology, gender or sexual orientation. As a result, rainbow families in Europe (families where a child has at least one parent who identifies themselves as lesbian, gay, bisexual, trans, intersex or queer) can face problems with recognition of civil status, birth registration and access to birth certificates, leaving some children in these families either stateless or at risk of statelessness.

Such cases have occurred across several countries in Europe and reflect a wider concerning trend within the EU, where LGBTIQ*-related discriminatory laws and practices by Member States impact on the child’s right to a nationality and their access to EU citizenship. The Court of Justice of the European Union (CJEU) will now have an opportunity to address this issue in a pending case concerning a child born to same-sex parents in Spain.

The case before the CJEU

The case before the CJEU, V.M.A. v Stolichna Obsthina, Rayon ‘Pancharevo’ (C-490/20), concerns a child born in Spain, to a British mother and a Bulgarian mother, who had entered into a civil marriage in the UK before the birth of the child. Spain issued a birth certificate, which recorded both mothers as the child’s parents, but which does not specify whether one of the women is the biological mother. The Bulgarian mother subsequently applied for the issuance of a birth certificate for the child in Bulgaria. The Bulgarian authorities refused to issue a birth certificate, on the grounds that no evidence was provided about the child’s parentage with respect to her biological mother, and that the registration of a birth certificate with two female parents was contrary to public policy, as same-sex marriages are not permitted in Bulgaria.

One of the questions asked by the domestic court to the CJEU is whether the Bulgarian authorities can refuse to issue a birth certificate on the grounds that the applicant refuses to provide information on who is the biological mother. The CJEU is also asked to consider how to strike a balance between the national and constitutional identity of the Member States (protected by Article 4(2) TEU) on the one hand, and the right to respect for private and family life and the best interests of the child on the other (Articles 7 and 24(2) of the EU Charter of Fundamental Rights).

The domestic court noted that the refusal to issue a birth certificate by Bulgaria constitutes an obstacle to the issuance of identity documents and may impede the exercise of the child’s rights as an EU citizen, asking the CJEU whether this affects the interpretation of EU law. Even though it recognises that without a birth certificate the child would be unable to acquire identity documents and exercise EU citizenship rights, the domestic court does not explicitly address the impact that this may have on the child’s right to a nationality and the risk of statelessness in its request for a preliminary ruling.

In the request for a preliminary ruling, the domestic court assumes that the child would be entitled to British nationality, considering the impact that Brexit would have in the exercise of her rights as an EU citizen. However, new evidence has subsequently been submitted to the court that the UK has since refused nationality to the child (based on special provisions that do not allow a parent who acquired British nationality by descent to pass on their nationality to a child born outside the UK). As neither of the mothers holds Spanish nationality, although she was born in Spain, the child did not acquire Spanish nationality at birth. She would need to rely on a safeguard in law which ensures that children born in Spain who would otherwise be stateless can acquire Spanish nationality. However, to apply this safeguard it must be demonstrated that the child is unable to acquire any other nationality. The Bulgarian authorities’ denial of access to identity documents, which are essential for the child to evidence her Bulgarian nationality and effectively enjoy her right to Bulgarian nationality, contradict the fact that according to Bulgarian law, the child is entitled to Bulgarian nationality (see below for further elaboration on this point).

This poses a particular and paradoxical challenge in this case, in terms of the ability of the child to provide evidence that she is effectively prevented from acquiring another nationality in order for her to be able to take advantage of the Spanish safeguard. Furthermore, had the child been born in a country without a safeguard that protects children born stateless on the territory, the situation would remain unresolved and the child would be stateless due to discriminatory birth registration practices by the Bulgarian authorities. Given that the UK and Spain have both confirmed the child is neither a British nor a Spanish national, the child is currently stateless, or at least at risk of statelessness. While it is unfortunate that the domestic court did not address the impact on the child’s right to a nationality, the CJEU is free to reformulate the questions referred to it and provide all the elements of interpretation of EU law relevant to the case, including those related to access to EU citizenship and statelessness. This is a fundamental issue that the CJEU must resolve in this case.

In its request for a preliminary ruling, the court asks whether Member States have broad discretion as regards the rules for establishing parentage, however the issue is not the establishment of parentage but rather the recognition in Bulgaria, of the legal parentage established in Spain. In line with caselaw from the CJEU and the European Court of Human Rights (ECtHR), the margin of discretion that Members States have in the recognition of parentage, particularly when this impacts on the child’s best interests and identity, is narrower than for the establishment of parentage. As further explained in this piece, doubts remain as to whether the domestic authorities are refusing to recognise the legal parentage established between the child and her mothers as evidenced by the Spanish birth certificate, or whether they recognise the parentage but refuse to issue a birth certificate. Whichever position the authorities are taking, it has a severe impact on the child’s rights and the refusal to issue a birth certificate results in denying her Bulgarian nationality and thus access to EU citizenship.

Discriminatory birth registration practices negatively impact the fulfilment of children’s rights

Most, but not all of us, have had our births registered. Birth registration involves the official recording of a birth within the civil registry, which records both the fact of the birth and its characteristics. It often results in a birth certificate issued by the civil registrar that provides proof that the child has had their birth registered and is essential evidence of a child's family ties as well as their place of birth. These are key aspects of legal identity and can be critical to establishing the child’s nationality, as nationality is usually acquired either through the parents (jus sanguinis), the place of birth (jus soli), or a combination of the two.

Lack of birth registration is not the same as statelessness, yet it heightens the risk of leaving children without a nationality. Given the key information birth registration provides about individuals and their links to a State, either through the parents or place of birth, not having a birth registered or a birth certificate evidencing registration can contribute to difficulties establishing these links and consequently expose them to the risk of statelessness. Children in this situation face severe obstacles in exercising the rights to which they are entitled under international law such as the 1961 Convention on the Reduction of Statelessness and the 1989 Convention on the Rights of the Child (CRC), including access to education, healthcare and social security. In the case of children born to EU citizens, lack of birth registration and consequent impacts on acquiring a nationality will also impede on their ability to exercise their rights as EU citizens, including free movement rights.

Ultimately, it is never in the child’s best interests to be left stateless, even for a short period of time. As stressed by UNHCR in its Guidelines on Statelessness No. 4, “it follows from Articles 3 and 7 of the CRC that a child must not be left stateless for an extended period of time: a child must acquire a nationality at birth or as soon as possible after birth”.

In its concluding observations to the Bulgarian government in 2018 (CCPR/C/BGR/CO/4), the UN Human Rights Committee noted with concern that same-sex couples married abroad and their children are denied access to civil registration, and made recommendations towards eliminating discrimination on the basis of sexual orientation or gender identity. Such discriminatory birth registration practices against same-sex couples often have a serious impact on the child’s right to a nationality and may render a child stateless, leading to other violations of the child’s rights. This is the situation in the current case, where the Bulgarian authorities have refused to issue a Bulgarian birth certificate for the child on the basis of birth, gender and sexual orientation.

Somewhat paradoxically, in the current case the domestic court has seemingly recognised the legal parentage between the child and the Bulgarian mother, as evidenced by the Spanish birth certificate, through its conclusion that the child would anyway be a Bulgarian national by virtue of having a Bulgarian mother (although see below why this assertion is questionable). Given the legal parentage has been recognised by the Bulgarian authorities in this way, the refusal to issue a birth certificate on the basis of establishing parentage constitutes direct discrimination based on birth, sexual orientation and gender. According to Article 60(2) of the Bulgarian Family Code, the mother of the child is the woman who gave birth to the child, therefore the woman who has not given birth is not considered a mother. However, in a similar situation of an opposite sex couple this issue would not arise, as both parents would be included in the birth certificate without requiring proof of parentage. Such discrimination is not justifiable and requesting information on the biological parentage in this case therefore constitutes a violation of Article 21(1) EU Charter of Fundamental Rights (CFR).

This discrimination based on the sexual orientation of the parents and its impact on the child’s acquisition of nationality is further at odds with the Convention on the Rights of the Child, ratified by all EU Member States, as all children have the right to be registered immediately after birth and the right to acquire a nationality without discrimination of any kind and irrespective of the child’s or their parent’s status (Articles 2 and 7 CRC). The case also raises other important questions beyond the scope of this commentary, but which have been discussed by other experts.

Denial of a child’s nationality in practice, despite entitlement in the law, leads to statelessness

According to the 1954 Convention relating to the Status of Stateless Persons, a stateless person is somebody who is not considered as a national by any State under the operation of its law. This has been authoritatively interpreted by UNHCR as requiring “a mixed question of fact and law”, meaning that statelessness is not just about the letter of the law, but about how the competent authorities apply the law in a specific case. UNHCR also asserts that “under the operation of its law” is not synonymous with “by operation of law”, a term which signifies that acquisition of nationality is automatic in nature, as opposed to other non-automatic mechanisms to acquire nationality (such as through naturalisation).

According to the Bulgarian court, the question of the child’s right to a nationality does not arise in this case as a result of the authorities’ refusal to issue a Bulgarian birth certificate for the child. The court states that the child is still a “Bulgarian national by operation of law”. This suggests that the child would be automatically considered a national under Bulgarian law, but it must be noted that nationality cannot be established by court (Article 4 of the Law on Bulgarian Nationality) and regard must be given to how the law is applied in practice. According to UNHCR’s guidance, asserting whether a person is considered a national under a State’s law and practice requires evaluating evidence issued by the competent authorities. When nationality is acquired automatically, i.e. “by operation of law”, birth registration is usually the document that provides evidence of acquisition of nationality. By refusing to issue a birth certificate, which provides evidence of the legal parentage between the child and her Bulgarian mother, the authorities are also denying the child access to identity documents which are essential for her to evidence her Bulgarian nationality and to effectively enjoy her right to a nationality and all rights derived from it. By extension, the child is also prevented from enjoying her EU citizenship, which the CJEU has reiterated to be “the fundamental status of nationals of the Member States”.

As noted by UNHCR, “where the competent authorities treat an individual as a non-national even though he or she would appear to meet the criteria for automatic acquisition of nationality” – as in the case at hand, where the authorities are preventing access to identity documents – “it is their position rather than the letter of the law that is determinative in concluding that a State does not consider such an individual as a national”.

Denial of EU citizenship and related rights

Refusing to issue a birth certificate should therefore be interpreted as a refusal to recognise Bulgarian nationality, rendering the child stateless. This would also automatically impact on the child’s access to EU citizenship and on the enjoyment of the rights derived from it. As the CJEU held in the Zambrano case, Article 20 TFEU “precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union”. The refusal to issue a birth certificate means she would be unable to evidence the acquisition of Bulgarian nationality and has no entitlement to any other nationality of an EU Member State, which would result in a denial to acquire EU citizenship and entirely deprive the child from enjoying her rights as an EU citizen.

Furthermore, the CJEU has held that the concept of public policy as justification for a derogation from a fundamental freedom must be interpreted strictly. In the Coman ruling (discussed here), it noted that the obligation to recognise same-sex marriages, for the purpose of granting a derived right of residence to a third-country national, does not undermine the national identity of Member States protected by Article 4(2) TEU or pose a threat to public policy. While Member States are free to decide whether to allow marriage between persons of the same sex, they are precluded from imposing national measures which may obstruct the exercise of free movement rights and such measures must comply with the EU Charter of Fundamental Rights. Although in Coman the CJEU addressed the granting of a derived right of residence to a third-country national who was married to an EU citizen, the principles outlined in the judgment could be applied to the present case in V.M.A. v Stolichna Obsthina.

Upholding EU commitments to equality for rainbow families

The EU has made important strides towards recognising and upholding the rights of children of rainbow families and their parents in recent years, not least with the recent introduction of a five-year LGBTIQ Equality Strategy, which includes protecting the rights of rainbow families as one of four key pillars for action between 2020-2025. As President von der Leyen asserted in her State of the Union address, “if one is parent in one country, one is parent in every country”. As part of the strategy, the European Commission commits to bringing forward a legislative initiative on the mutual recognition of parenthood and to explore possible measures to support the mutual recognition of same-sex partnership between Member States. This builds on work in recent years by the Commission under its List of Actions to advance LGBTIQ equality to address free movement and cross-border issues, through its dialogue with Member States to remove obstacles concerning the recognition of birth certificates of children born to same-sex couples in another Member State.

Furthermore, in order to improve legal certainty for EU citizens exercising their free movement rights, and to ensure a more effective and uniform application of the free movement legislation across the EU, the European Commission committed in the LGBTIQ Equality Strategy (as also described in the EU Citizenship Report 2020) to review the 2009 guidelines on free movement in 2022 and to ensure that the updated guidelines reflect the diversity of families, and to help all families, including rainbow families, to exercise their right to free movement.

Through these initiatives, the EU demonstrates the responsibility of both the EU and its Member States to remove barriers to birth registration and to ensure the recognition of birth certificates of children born to rainbow families, the legal parentage of the children and any consequences on the child’s right to a nationality.

In 2021, the EU will publish a 2021-24 strategy on the rights of the child, providing a comprehensive framework for EU action to promote and protect children’s rights, and including recommendations for action by other EU institutions, EU Member States and stakeholders. This presents a further opportunity for the EU to outline action to protect the rights of children of rainbow families, including the right to a nationality.

The role of the courts in respecting the best interests of the child and upholding the child’s right to a nationality

Nationality law usually falls within a Member State’s competency. However, as the CJEU emphasised in Rottman, when exercising their powers in the sphere of acquisition and loss of nationality, Member States must have due regard to EU law, including upholding the EU’s values and the rights enshrined in the EU Charter of Fundamental Rights. (See discussion of later CJEU case law here)

Under its Article 53, the level of protection granted by the provisions of the EU Charter of Fundamental Rights is at least equivalent to the protection granted by the European Convention on Human Rights (ECHR) and international law, including the CRC. It is therefore essential for the CJEU to draw from international jurisprudence on the right to respect for private and family life in the consideration of this case, as well as to consider the right to a nationality, the principle of non-discrimination and the best interests of the child in line with international human rights law.

Case law from the ECtHR affirms that the recognition of parentage and acquisition of nationality fall within the ambit of the right to respect for private and family life (e.g. Mennesson and Genovese), as protected by Article 8 ECHR and Article 7 CFR, and provides guidance to its interpretation. Particularly in Mennesson, the ECtHR has stressed that respect for private life requires that everyone should be able to establish details of their identity as individual human beings, which includes the legal parent-child relationship, emphasising that children have a right to legal identity.

The child’s right to a nationality is further protected under Article 15 UDHR, Article 24(2) ICCPR, and Articles 3 and 7 of the CRC. The UN Human Rights Committee has recently found that failure to identify statelessness and assess a child’s nationality status led to a violation of the right to a nationality (Zhao v Netherlands). Furthermore, in their General Comment No 14, the Committee on the Rights of the Child recognises that the best interests of the child might conflict with other interests, including the public interest, and notes that authorities must bear in mind that the right of the child to have their best interests taken as a primary consideration means that the child's best interests are not just one of several considerations, nor should they be considered on the same level as all other considerations. Rather, they take priority in all circumstances, “especially when an action has an undeniable impact on the children concerned” (CRC General Comment No 14 para 40), as is the situation in this case.

The courts play a key role in interpreting national legislation and thus aligning domestic practice with the regional and international human rights framework. While domestic courts must not lose sight of their international obligations, the regional courts have a further responsibility to ensure that the diversity of national jurisdictions does not compromise respect for fundamental rights or the best interests of the child. Cases similar to the one presently before the CJEU have been reported across Europe, with children born to same-sex couples facing discrimination in recognition of civil status documents and in access to birth registration and identity documents, particularly in Poland, Bulgaria and Ireland. The nationality laws of all Member States must be applied in a non-discriminatory manner and with respect for fundamental rights, especially when they have a direct impact on the enjoyment of EU citizenship. Currently, children are being born stateless or at risk of statelessness in the EU and denied EU citizenship, solely because of a prejudice towards their parents’ sexual orientation. The CJEU therefore has an essential role to play in supporting progress towards a seamless implementation of international standards on statelessness and human rights law in all EU Member States, and towards a Europe where no child is born stateless.

*Reblogged from the European Network on Statelessness blog

Barnard & Peers: chapter 13

Photo credit: Laurent Verdier, via Wikimedia Commons

Family reunion,the rights of the child and effective remedies: latest CJEU judgment

Professor Steve Peers, University of Essex

For parents of teenagers, it’s always later than you think, and time is forever slipping through your fingers. But imagine what it’s like for parents who can never live with their children, due to the arbitrary viciousness of immigration law. A first step unseen. A first word unheard. A school play unwitnessed. And even if the immigrant parent moves heaven and earth to comply with the conditions for family reunion in immigration law, it’s possible that just as the children might be able to join their parents, time runs out for their application because they come of age – leaving only the unbearable emptiness of a nest that was never full.

Family reunion for non-EU families in the EU is governed by the EU’s family reunion Directive, which provides for admission of children who are not at the age of majority. But what if an application is made before the child reaches that age, but is decided later?

Two years back, the Court of Justice decided such a case as regards an unaccompanied minor with refugee status, who turned 18 just after applying for asylum: the A and S judgment, discussed here. The Court ruled that as long as an asylum seeker applied for asylum before turning 18, the special rules in the Directive which provide for obligations to admit the parents of unaccompanied minor refugees still apply (assuming, of course, that refugee status was granted). However, that left open the question of what approach to take to other family reunion applications, where there is no such special rule, and in any event the date of an application for asylum would be irrelevant. (While the Directive does apply to refugee parents, it doesn’t logically follow from A and S that the date of their application for asylum should be decisive).

The recent judgment in BMM has addressed this issue – taking a humane approach to the issue of what happens when a child comes of age during the application process.

The basic EU rules on family reunion

The EU’s family reunion Directive sets minimum standards, so states can be more generous if they wish. It mainly concerns reunion of spouses and minor children with a non-EU sponsor; admission of further family members is optional in most cases. It does not apply to the UK, Ireland and Denmark. However, it will apply to family reunion of UK citizens in the EU (besides those living in Ireland and Denmark) after the post-Brexit transition period, when the UK is no longer covered by EU free movement law, unless (a) they are covered by the withdrawal agreement, if the sponsor moved before the end of the transition period (see discussion here), or (b) EU free movement law still applies, because the UK citizen is a family member of an EU citizen who has moved between Member States; or (c) national law only applies, because the UK citizen is a family member of an EU citizen who has not moved between Member States (a French citizen in France, for instance).

The standard rules in the Directive require that: the sponsor has a residence permit valid for at least one year, and has “reasonable prospects” of obtaining permanent residence; the family members must reside outside the territory when the application is made (although Member States can derogate from that rule); “public policy, public security or public health” are grounds for rejection; conditions relating to accommodation, sickness insurance and “stable and regular resources” may be imposed; Member States may require “integration measures”; and there can be a waiting period of two years of lawful stay of the sponsor before family reunion takes place.

There are also exclusions from the scope of the Directive. It does not apply at all to: asylum seekers; persons with temporary protection; persons with subsidiary protection on the basis of national or international law; and, as noted above, family members of EU citizens (whether they have moved within the EU or not). Implicitly it does not apply to irregular migrants, since by definition they do not have a residence permit with the prospect of long-term residence, until and unless Member States decide to regularise their status.  Member States can choose to extend the Directive to those categories of persons (except those covered by free movement law) if they wish. 

Member States can set lower standards than the Directive, where it allows for such derogations, although this is subject to detailed conditions. These derogations exist as regards: children over 12, who arrive separately from the rest of the family; minimum ages for the sponsor or spouse; children over 15; and a waiting period of three years.

The Court of Justice has ruled on the Directive several other times, as regards: its validity in light of human rights concerns (EP v Council); its application to dual EU/non-EU citizens (O and S); the sufficient resources condition (Chakroun and Khachab); the minimum age of spouses (Noorzia, discussed here); integration conditions (K and A, discussed here, and K); the application of the Directive by analogy to family reunion with “home State” EU citizens (C and A) and persons with subsidiary protection (K and B, discussed here); loss of a residence permit due to fraud which the family member was unaware of (YZ and others); documentation in refugee cases (E); the public policy exception (GS and VG); the definition of dependent family members of refugees (TB); and the consequences of a late decision by the administration (X).

As well as the special rules for refugee family reunion set out in the original Directive, subsequent EU legislation contains more favourable rules for the family reunion of other groups of non-EU citizens: holders of an EU Blue Card for highly-skilled workers (discussed here); intra-corporate transferees (discussed here); and researchers (discussed here). The proposal to amend the Blue Card law (discussed here) would enhance these rules further.

The judgment

The sponsor in the MBB case is a citizen of Guinea with refugee status – although the case concerns the general rules in the Directive, rather than the special rules on applications by refugees. Applications for family reunion with the sponsor’s three children were rejected, and the sponsor challenged those rejections in court. The first instance court refused to consider the legal challenges, on the grounds that the children were now grown up. On appeal, the appellate court decided to ask the CJEU questions about the interpretation of EU law in the circumstances, given the differences between the position of unaccompanied minor refugees in the AS case and the general rules in the Directive.

According to the CJEU, while the Directive left it to Member States to determine the age of majority as regards the general rules on applications (it’s set at 18 where the applicant is an unaccompanied minor refugee), it does not refer to national law as regards when to determine when that condition is satisfied. Member States should not have any discretion on the latter point, because EU law should have a uniform interpretation when it does not refer to national law, taking account of the context and objective of the legislation. The objective of this law is ‘to promote family reunification’, and it respects fundamental rights, including the right to family life and the rights of the child (to maintain a relationship with parents) in the EU Charter of Rights. So the Directive ‘must be interpreted and applied in the light of’ the Charter, including the best interests of the child.

If applications ‘timed out’ once a child became an adult, national authorities and courts might be tempted to run down the clock, ‘and could thus act in a way which would jeopardise the very rights of those minors to family reunification’, following the A and S judgment. Indeed, in this case, it took three years and nine months for the first instance court to rule; and ‘such processing times do not appear to be exceptional in Belgium’: the Belgian Government admitted that the average court waiting time is three years, and this case ‘had not been regarded as a priority by that court’ despite the ages of the children concerned. So using the date of the administrative decision would not be in accordance with the best interests of the child. Nor would applicants be treated equally, since the success of their application would be determined by how fast the administration or court decided the application.

Next, the Court ruled on a remedies point. Did the right to bring a legal challenge to a rejection, interpreted in light of the right to an effective remedy in the Charter, mean that a national court cannot simply dismiss a claim as inadmissible purely because a child ‘has reached majority in the course of the court proceedings’?

The Court ruled this out. In its view, the child still had an interest in proceedings, since the application had to take account of the age of the child at the time when the application was made. While there was no time limit for the court to give its ruling, and Member States have ‘some discretion’ as regards rules on legal challenges to rejections of an application for family reunion, Member States are still required to comply with the Charter right to an effective remedy before a tribunal. This meant that legal challenges must be ‘effective and real’. Therefore they ‘cannot be dismissed as inadmissible solely on the ground that the child concerned has reached majority in the course of the court proceedings’.

Comments

Both the substantive and procedural elements of the Court’s judgment give strong protection to family life. Its unqualified ruling that the age of the child when the application is made is decisive will guarantee that parents of teenagers cannot lose the right to family reunion purely because of national administrative or judicial tardiness. This compensates somewhat for the Court’s own decision in X, which failed to provide for an effective remedy (the automatic grant of a residence permit) in the event of a late decision on a family reunion application by the administration.

On that point, the Court’s insistence on effective remedies in the context of this Directive is relevant above and beyond the issue of timing out applications by children. The confirmation that the Charter applies to effective remedies in the context of family reunion is not surprising in light of other recent judgments (on asylum law and on visa applications, for instance), but it is always useful to put to rest any doubt on the issue. This principle has general application – so, for instance, strict time limits, or limitations on the scope of judicial review or the remedies which courts can order, could be challenged as a violation of the Charter, in any family reunion case within the scope of the Directive, not just those involving children. Again, the Court has reaffirmed its interpretation of EU law based on a rights-based reasoning, rather than the control-based approach taken by many Member States and the EU institutions during the supposed “migration crisis”.

More broadly, the Court’s reaffirmation of the importance of the rights of the child when interpreting the legislation could be relevant to interpreting other aspects of the family reunion law, as well as many other EU immigration and asylum laws: for instance, the returns Directive, the asylum procedures Directive, the reception conditions Directive, and the Dublin rules on responsibility for asylum seekers. (Note that conversely, EU criminal law legislation on child suspects’ rights – discussed here – does explicitly address this issue, setting out rules on this point similar to the Court’s family reunion judgments in its Article 2(3)).

Barnard & Peers: chapter 26

JHA law: chapter I:5, I:6

Photo credit: Ackah law

Guardianship, free movement and the rights of the child: the SM judgment

Professor Steve Peers, University of Essex

*This blog post builds on research which contributed to the forthcoming second edition of The EU Citizenship Directive (OUP, 2019), co-authored by me, Elspeth Guild and Jonathan Tomkin

When is a child a ‘family member’? Many people regard others they love dearly as children, parents or other relatives, but the law is rather stricter. This strictness is particularly important where children are involved, in order to ensure their welfare, and where it impacts on immigration law. Moreover, different countries have different approaches to the legal definition of family members. All these issues come to a head in today’s judgment of the CJEU in SM, a case concerning the intersection between EU free movement law and the family law of non-EU countries.

EU law background

The EU’s citizens’ Directive sets out the main rights of EU citizens and their family members to move to other EU countries. It defines family members as including, in Article 2(2)(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)

It also refers separately to ‘beneficiaries’ of the Directive, in Article 3(2):

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 member 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.

The people listed in Article 3(2) are referred to in UK law implementing the Directive as ‘extended family members’, and I will use that term for brevity’s sake. In contrast, I’ll refer to the Article 2 family members, including ‘direct descendants’, as ‘core’ family members.

CJEU case law has touched on the definition of core family members several times, for instance clarifying the concept of ‘dependants’ in Article 2(2)(c): see most recently the CJEU judgment in Reyes, discussed here). But the Court had never been asked to clarify the meaning of ‘direct descendants’, although it had ruled when interpreting previous free movement legislation that children include an EU citizen’s step-children (Baumbast).

As for extended family members, previous CJEU case law (Rahman and Banger) clarified that they have in principle a less far-reaching right than core family members. While core family members have a right to enter and reside, for extended family members ‘entry and residence has only to be facilitated by that Member State’. So the Directive ‘does not oblige the Member States to grant every application for entry and residence submitted by persons who show’ that they fall within the scope of Article 3(2). However, the Court said it was ‘clear from the use of the words “shall facilitate” that that provision imposes an obligation on the Member States to confer a certain advantage, compared with applications for entry and residence’ by other third-country nationals, on applications by extended family members. This obligation meant that Member States had to ‘make it possible’ for the extended family members to ‘obtain a decision on their application that is founded on an extensive examination of their personal circumstances and, in the event of refusal, is justified by reasons’. When examining such an application, the authority concerned had to ‘take into account of the various factors that may be relevant in the particular case, such as’ the factors specifically listed in the preamble to the Directive – namely ‘their relationship with the Union citizen or any other circumstances, such as their financial or physical dependence on the Union citizen.’

Moreover, in light of the reference to national legislation in Article 3(2), and in the absence of more specific rules in the Directive, the Court ruled that each Member State ‘has a wide discretion as regards the selection of factors to be taken into account’. But there is a core substantive obligation for Member States: their legislation must ‘contain criteria which are consistent with the normal meaning of the term “facilitate” ’—presumably as defined by the Court—‘and of the words relating to dependence used in Article 3(2), and which do not deprive that provision of its effectiveness’. Finally, the Court conceded that Article 3(2) was not directly effective, although ‘an applicant is entitled to a judicial review of whether the national legislation and its application have remained within the limits set by that Directive’. The subsequent judgment in Banger elaborated upon these procedural rights.

Background to the case

According to the UK Supreme Court judgment which referred questions to the CJEU, this case concerns a French couple married in the UK, who were married in 2001 but were unable to have children of their own. They went to Algeria and applied for the guardianship of a child by means of application of the kafala family law system (the term is also used to refer to a controversial system of migrant worker sponsorship, but this case only concerns family law). Under the Islamic approach to family law, adoption as such is not permitted, but kafala instead provides for a form of guardianship, and is particularly applied for the benefit of orphaned or abandoned children.

The Algerian authorities deemed the French couple suitable guardians, and they were soon accorded guardianship of a girl abandoned at birth (called ‘Susana’ by the Supreme Court: I’ll use that name rather than the impersonal ‘SM’). The husband returned to the UK to work, while the wife stayed in Algeria to look after Susana, seeking to obtain entry clearance for her. The UK authorities refused on the grounds that this was not an adoption as such, and so a long dispute through the legal system got underway.

At first instance, the immigration tribunal ruled in favour of the UK authorities, holding that Susana was neither a core family member or extended family member. On appeal, the Upper Tier tribunal ruled that she was an extended family member. The authorities appealed in turn to the Court of Appeal, which ruled that she was neither. The Supreme Court gave leave to appeal on the ‘extended family member’ point, but subsequently decided to consider both points. Ultimately, Lady Hale’s judgment (with which the other judges agreed) concluded that it was obvious that Susana was an extended family member, but decided to ask the CJEU whether she was a core family member.

Judgment of the CJEU

First of all, the Court noted that the Directive ‘makes no express reference to the law of the Member States for the purpose of determining the meaning and scope of’ the term ‘direct descendant’. Next, it followed (in line with the Court’s usual approach) that ‘the need for a uniform application of EU law and the principle of equality require that the terms of that provision must normally be given an independent and uniform interpretation throughout the European Union’. In the absence of any definition of ‘direct descendant’, the term should be interpreted considering ‘not only its wording, but also the context in which it occurs and the objectives pursued by the rules of which it is part’.

In the Court’s view:

the concept of a ‘direct descendant’ commonly refers to the existence of a direct parent-child relationship connecting the person concerned with another person. Where there is no parent-child relationship between the citizen of the Union and the child concerned, that child cannot be described as a ‘direct descendant’ of that citizen for the purposes of Directive 2004/38.

Elaborating further, ‘[a]lthough that concept primarily focuses on the existence of a biological parent-child relationship,’ the aim of the citizens’ Directive is to facilitate free movement rights, and so therefore it must be ‘construed broadly’, including the core family member definition. That meant ‘it covers any parent-child relationship, whether biological or legal’, including adopted children. However, it did not extend to a guardianship system which did not create a legal parent-child relationship.

However, the Court went on to confirm that Susana fell within the concept of an extended family member, as the relevant definition in the Directive is ‘capable of covering the situation of a child who has been placed with citizens of the Union under a legal guardianship system such as Algerian kafala and in respect of whom those citizens assume responsibility for its care, education and protection, in accordance with an undertaking entered into on the basis of the law of the child’s country of origin’. The Court reiterated Member States’ discretion in such cases as referred to in previous cases, but considerably narrowed the discretion on the facts of this case.

This was because of the right to family life in Article 7 of the EU Charter of Rights, which has the ‘same meaning and scope’ of the corresponding right in the European Convention on Human Rights. Case law of the European Court of Human Rights had confirmed that the child-guardian relationship under the kafala system ‘may fall under the definition of family life, having regard to the time spent living together, the quality of the relationship, and the role which the adult assumes in respect of the child’ (referring to Chbihi Loudoudi and Others v. Belgium). Article 8 ECHR ‘protects the individual against arbitrary action by the public authorities and requires those authorities, where the existence of a family tie has been established, to enable that tie to be developed and to establish legal safeguards that render possible the child’s integration in his family’ (referring to Harroudj v. France and Chbihi Loudoudi).

Furthermore, Article 24 of the Charter obliges Member States to ‘take into consideration the best interests of the child’. It followed that when exercising their discretion as regards admission of extended family members, national authorities have to make ‘a balanced and reasonable assessment of all the current and relevant circumstances of the case, taking account of all the interests in play and, in particular, of the best interests of the child concerned’. This assessment has to ‘take into consideration, inter alia, the age at which the child was placed under the Algerian kafala system, whether the child has lived with its guardians since its placement under that system, the closeness of the personal relationship which has developed between the child and its guardians and the extent to which the child is dependent on its guardians, inasmuch as they assume parental responsibility and legal and financial responsibility for the child.’

Conversely, the assessment has to ‘take account of possible tangible and personal risks that the child concerned will be the victim of abuse, exploitation or trafficking’. But these risks can’t simply ‘be assumed’ just because the process of the Algerian kafala system ‘is less extensive’ than the adoption procedure in the State where the EU citizens are living, or because Algeria has not signed up to the 1996 Hague Convention on parental responsibility. Rather, it was necessary to weigh such factors up against the other factors which the Court set out.

If this assessment establishes that

the child placed under the Algerian kafala system and its guardians, who are citizens of the Union, are called to lead a genuine family life and that that child is dependent on its guardians, the requirements relating to the fundamental right to respect for family life, combined with the obligation to take account of the best interests of the child, demand, in principle, that that child be granted a right of entry and residence as one of the other family members of the citizens of the Union for the purposes of Article 3(2)(a) of [the citizens’ Directive], read in the light of Article 7 and Article 24(2) of the Charter, in order to enable the child to live with its guardians in their host Member State.

This analysis ‘applies a fortiori’ where the refusal to admit the child meant that one of the child’s guardians is in practice prevented from living together in a Member State because one of them needs to stay in a non-EU State to care for the child. As noted above, these were the facts in this case.

Finally, the Court declined to answer the Supreme Court’s separate question about refusing to admit a child if there was a risk of abuse, exploitation or trafficking, because the question was only raised in the event that Susana was considered a core family member. In any event, it should be noted that the Court referred to such issues being considered as part of the assessment of the application to admit Susana as an extended family member.

Comments

The Court’s confirmation that adopted children are covered by the concept of ‘direct descendant’ is not surprising, although it raises the question as to what happens if there are divergences between the adoption rules in the State where the child was adopted and the Member State in which the child lives now. Then again, the previous case law applying free movement law to cover step-children already raised questions (not yet answered) about the interaction between family law and free movement law (ie, who has custody of the step-child), on top of the long-standing case law about the impact of divorce and separation upon free movement rights (see most recently the CJEU’s NA judgment of 2016, which I discussed critically here). One quite striking feature of the Court’s ruling is its apparent assertion that only a parent-child relationship could fall within the concept of ‘direct descendant’: this is, with respect, not consistent with the obvious meaning of the words, as evidenced by the Supreme Court’s assumption that it could also cover grand-children.

The ruling that the term ‘direct descendants’ could not apply to guardianship followed from the Court's definition of ‘direct descendants’ to mean a parent-child relationship, given that the kafala system deliberately does not classify the child’s guardians as parents. Despite that, the French couple in this case understandably sought to bring Susana within the scope of the ‘direct descendants’ concept, because they believed that otherwise the UK would retain residual discretion not to admit her as an extended family member.

This brings us to the most remarkable aspect of the Court’s ruling: the removal of the Member State’s discretion to admit Susana, on condition that the assessment of the factors was positive. Susana’s case appears to fall within the scope of the factors the Court refers to as part of that assessment (the age at which the child was placed under the Algerian kafala system, whether the child has lived with its guardians since its placement under that system, the closeness of the personal relationship with the guardians, the degree of dependency, and the assumption of responsibility for the child). It’s impossible from the outside of this case to know if the risks of abuse or trafficking exist, although of course in the best interests of the child the Court was right to confirm that the assessment should examine whether such factors are present. In other cases with different circumstances, the factors may point to a different conclusion than they do in this case. And today’s judgment raises the interesting question of whether there might be reduced discretion to refuse entry in other extended family cases too – notably cases involving children or partners, and where the impact of refusal might similarly be to prevent free movement rights from being exercised.

Finally, it’s worth putting this case in the broader context. For eight-year old Susana, abandoned at birth by her parents, her guardians have been litigating nearly her entire life to secure her right to stay with them in the UK. It took six years of litigation before four levels of the judicial system before they could confirm that the UK was even obliged to consider her application.  Now the CJEU rules that (depending on the assessment) the UK may be obliged to let her stay. But that’s mainly because of the EU Charter of Rights; and this may be the last judgment concerning the UK and the Charter. If you seek its monument, look at this little girl’s case.   

Barnard & Peers: chapter 13

Photo credit: newstarkafala.org