SM (Algeria) v Entry Clearance Officer, UK Visas Section
Lisa Tang acting as solicitor for the Respondent, SM. Ramby de Mello and Jessica Smeaton from No5 Chambers, and Tony Muman and Katie Wilkinson from 43 Temple Row Chambers as Counsel.
The Respondent in this matter was ‘Susana’, a seven year old girl who was abandoned at birth outside a hospital in Algeria and soon after, placed into the long-term care of Mr and Mrs M, a French couple who had been living and working in the UK for almost ten years.
Mr and Mrs M became the legal guardians of Susana under the Islamic Kefalah system meaning they were granted full legal custody and parental responsibility of Susana. All the correct procedures had been adhered to in accordance to Algerian law. Mr M returned to the UK to reassume employment and had hoped for Mrs M and Susana to join him. Susana and Mrs M decided to first come for a visit and therefore applied for a visitor visa, this was refused. Susana proceeded to apply for an EEA family permit under the Immigration (EEA) Regulations 2006 to enter the UK as the family member of Mr and Mrs M, she was just under 2 years old. However, this was refused on the basis that Kefalah guardianship was not recognised as an adoption under UK law, and that Mr and Mrs M had not made appropriate arrangements under s 83 of the Adoption and Children Act 2002 for Susana to be adopted once in the UK.
An appeal to the First-Tier Tribunal was dismissed. Susana then appealed further to the Upper Tribunal, who dismissed the appeal under the Immigration (EEA) Regulations 2006 but allowed it on the basis of Article 8 of the European Convention on Human Rights. The Entry Clearance Officer then appealed to the Court of Appeal and was successful, ruling that Susana did not qualify either as a family member or an extended family member under Immigration (EEA) Regulations 2006.
The matter was then brought before the Supreme Court which identified two points. Firstly, the Sala issue. Secondly, the Kefalah issue.
In Sala  UKUT 411 (IAC, the Deputy President of the Upper Tribunal raised a preliminary issue of whether Mr Sala had a right of appeal in the first place and accordingly whether the tribunal had jurisdiction to hear the appeal.
The Upper Tribunal decided to appoint counsel to act as a friend to the Court specifically to argue that there was no jurisdiction to hear the appeal despite both the Home Office and Mr Sala having already agreed that there was a right of appeal. The Upper Tribunal proceeded to dismiss the appeal holding that the decision to refuse to issue a residence card to an extended family member was not a decision that attracted a right to appeal, and that the tribunal had no jurisdiction to consider these such appeals. The consequences of this decision were severe, it had meant that extended family members could not appeal if their applications for a residence card/EEA family permit were refused.
Permission to appeal to the Supreme Court had been granted for Susana before the Sala case was an issue. The issue of Sala was first mentioned by the Home Office in their written case ‘for the Court’s information only’ prior to the first part of the hearing which took place on 23 March 2017. The court was invited to determine, as a preliminary issue, whether it had jurisdiction to hear the appeal and new hearing date was set for 29 November 2017. At this point, The AIRE Centre and Coram Children’s group had been granted permission to intervene.
Prior to the hearing on 29 November 2017, the matter of Khan  EWCA Civ 1755 was heard in the Court of Appeal. In its judgment handed down on 9 November 2017, the Court of Appeal came to the conclusion that the Upper Tribunal had been wrong to decide that extended family members do not have the right to appeal.
In effect, the hearing on 29 November 2017 of SM (Algeria) at the Supreme Court acted as an appeal hearing to the case of Khan. The Supreme Court held that the Court of Appeal was clearly correct in Khan to decide that the Upper Tribunal’s decision in Sala had been incorrect.
Interestingly, in France, Susana had been recognised as a family member of Mr and Mrs M. Under French law and had been granted entry clearance to travel to France in this capacity. Susana had the right to live in France with Mr and Mrs M as their family member and eventually become a French citizen.
Kefalah is a voluntary undertaking to provide for a child and take care of his or her welfare, education and protection. It was never possible for Susana to be ‘adopted’ under the UK system and this is not because Mr and Mrs M could not meet the criteria. It was a decision in line with their religious beliefs since ‘adoption’ is in fact prohibited in Islam. Kafalah, is however regarded as the highest form of protection and alternative care for orphans and abandoned children in Islam. It also represents a form of social security for such children and kafalah’s unlimited nature creates a permanent bonding relationship between the child and the family who has undertaken their care. The child becomes part of the family and is raised in the same manner as the natural children of the family. This is important since kafalah is seen not only as a meritorious deed, but also as a religious duty.
The key differences between Kefalah and traditional adoption could be summarised as: –
1. non-severance of family ties;
2. non-transference of inheritance rights; and
3. No change in the child’s family name.
Susana had been cared for by Mr and Mrs M since she was 3 months old and unquestionably, she was a member of their household and was, in their eyes, their daughter. However, the question before the court was whether Susana is a direct family member, an extended family member or neither under EU law.
The Supreme Court found that Susana is an extended family member but also recognised the possibility she may in fact be a direct family member.
The following Questions have therefore been referred by The Supreme Court to the European Court of Justice; –
(1) Is a child who is in the permanent legal guardianship of a Union citizen or citizens, under “kefalah” or some equivalent arrangement provided for in the law of his or her country of origin, a “direct descendant” within the meaning of the Citizens Directive?
(2) Can other provisions in the Citizens Directive be interpreted so as to deny entry to such children if they are the victims of exploitation, abuse or trafficking or are at risk of such
(3) Is a member state entitled to inquire, before recognising a child who is not the direct blood-related descendant of the EEA national as a direct descendant into whether the procedures for placing the child in the guardianship or custody of that EEA national was such as to give sufficient consideration to the best interests of that child?
The Supreme Court has made a request for the matter to be expedited by the ECJ and we now await an answer to the questions.
If you have been affected by the Sala judgment (refused right of appeal as an extended family member), please feel free to contact us on 020 7439 4675 to book an initial consultation with Mr David Tang or Ms Lisa Tang to discuss.