Court of Appeal provides guidance on the meaning of “family member” for the purposes of EU free movement rights: Entry Clearance Officer v SM (Algeria) [2015] EWCA Civ 1109

In a judgment handed down on 4 November 2015, the Court of Appeal allowed an appeal against a decision of the Upper Tribunal concerning the rights of EU citizens to bring non-EU family members into the UK.  In doing so, it clarified the scope of the term “family member” in EU law as it applies to adoptive relationships, in particular those with an inter-country element.
The case concerned an application by an Algerian child (“SM”) to enter the UK as the family member of a French national who had assumed guardianship of her under Algerian law.  Rights of entry and residence are conferred on EU citizens and their family members by Directive 2004/38/EC (“the Citizenship Directive”), as implemented in the UK by the Immigration (European Economic Area) Regulations 2006 (“the Regulations”).  SM’s application had been refused on the basis that, since the Algerian arrangement was not recognised as an adoption under UK law, she did not qualify as a family member for the purposes of the Citizenship Directive and the Regulations.

The Upper Tribunal had allowed SM’s appeal, holding that the 2006 Regulations needed to be interpreted in conformity with the Article 8 of the ECHR and that, adopting such a construction, SM qualified as a family member of her sponsor.
The Court of Appeal overturned the Upper Tribunal’s decision.  It held that:

1. It was unnecessary and inappropriate to adopt an Article 8 construction of the 2006 Regulations where there had been no finding that, absent such a construction, there would be a contravention of SM’s Article 8 rights.
2. SM was not a “family member” within the meaning of Article 2 of the Directive.  The EU legislator had left it to Member States to decide on the terms upon which adopted children would be recognised as direct descendants under Article 2 of the Directive.  It had done so in the expectation that the international obligations relating to the welfare of children (such as those contained in the UN Convention on the Rights of the Child and the Hague Convention on Inter-Country Adoption) would be respected.  The UK’s rules – which SM did not satisfy – were a reasonable and proportionate means of giving effect to its international obligations, and did not contravene EU law.
3. SM was not an “other family member” under Article 3 of the Directive either.  The distinction between Articles 2 and 3 was not one of legal formality, but of the relative proximity of the individual to the EEA sponsor.  Moreover, since the purpose of the Directive (to strengthen and support the EU right of free movement) was distinct from the ECHR, the fact that SM enjoyed family life with her sponsor did not make her a “family member” for the purposes of EU law.

Ben Lask acted for the Entry Clearance Officer.

To read the full judgment please click here Entry Clearance Officer v SM (Algeria)