Judgment of the Court (Grand Chamber) of 26 March 2019

International law

European Union law

11 Recitals 5, 6 and 31 of Directive 2004/38 are worded as follows:

‘(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. ...

(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.

...

(31) This Directive respects the fundamental rights and freedoms and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union ...’

12 Article 2 of that directive, entitled ‘Definitions’, provides, in point 2(c) thereof:

‘For the purposes of this Directive:

...

1. “family member” means:

...

1. 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)’.

13 Article 3 of that directive, entitled ‘Beneficiaries’, provides:

‘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:

1. 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;

...

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.’

14 Article 7(2) of that directive provides:

‘The right of residence provided for in paragraph 1 shall extend to family members who are not nationals of a Member State, accompanying or joining the Union citizen in the host Member State, provided that such Union citizen satisfies the conditions referred to in paragraph l(a), (b) or (c).’

15 Article 27 of Directive 2004/38 sets out the general principles relating to restrictions on the right of entry and the right of residence on grounds of public policy, public security or public health.

16 Article 35 of that directive, headed ‘Abuse of rights’, states:

‘Member States may adopt the necessary measures to refuse, terminate or withdraw any right conferred by this Directive in the case of abuse of rights or fraud, such as marriages of convenience. Any such measure shall be proportionate and subject to the procedural safeguards provided for in Articles 30 and 31.’

United Kingdom law

The first question

44 By its first question, the referring court asks, in essence, whether the concept of a ‘direct descendant’ of a citizen of the Union referred to in Article 2(2)(c) of Directive 2004/38 is to be interpreted as including a child who has been placed in the permanent legal guardianship of one or more citizens of the Union under Algerian kafala.

45 As a preliminary point, it is apparent from the evidence in the file submitted to the Court that, as the Advocate General noted in points 36 to 38 of his Opinion, under Algerian law kafala is where an adult undertakes to assume responsibility for the care, education and protection of a child, in the same way a parent would for their child, and to assume legal guardianship of that child. Unlike adoption, which is prohibited by Algerian law, the placing of a child under kafala does not mean that the child becomes the guardian’s heir. In addition, kafala comes to an end when the child attains the age of majority and may be revoked at the request of the biological parents or the guardian.

46 All the governments who have filed written observations emphasise that the concept of a ‘direct descendant’ referred to in Article 2(2)(c) of Directive 2004/38 requires there to be a parent-child relationship, either biological or adoptive, between the child and the citizen of the Union. According to those governments, that concept cannot therefore include a child placed under the Algerian kafala system, given that that guardianship system does not create such a relationship between the child and its guardian.

47 By contrast, SM, Coram Children’s Legal Centre (CCLC), AIRE Centre and the European Commission are of the view that the concept of a ‘direct descendant’ may include a child in respect of whom a citizen of the Union has assumed permanent legal guardianship, such as Algerian kafala. They argue that such an interpretation is necessary, in essence, in order to preserve, in the best interests of that child, the family life which he or she has with his or her guardian.

48 In that regard, it should be borne in mind that, under Article 3(1) thereof, Directive 2004/38 is to 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 Article 2(2) of that directive who accompany or join them.

49 Those family members of the citizen of the Union include, inter alia, under Article 2(2)(c) of Directive 2004/38, his or her ‘direct descendants’ who are under the age of 21 or are dependants.

50 That provision makes no express reference to the law of the Member States for the purpose of determining the meaning and scope of the concept of a ‘direct descendant’. In those circumstances, 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 (see, to that effect, judgment of 21 December 2011, Ziolkowski and Szeja , C‑424/10 and C‑425/10, EU:C:2011:866, paragraph 32 ).

51 In addition, Directive 2004/38 does not contain any definition of the concept of a ‘direct descendant’ for the purposes of Article 2(2)(c) thereof. In those circumstances, according to the settled case-law of the Court, in interpreting that provision of EU law, it is necessary to consider not only its wording, but also the context in which it occurs and the objectives pursued by the rules of which it is part (judgment of 7 October 2010, Lassal , C‑162/09, EU:C:2010:592, paragraph 49 ).

52 In that regard, it should be noted that 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.

53 Although that concept primarily focuses on the existence of a biological parent-child relationship, it should nonetheless be borne in mind that, according to settled case-law, the aim of Directive 2004/38 is to facilitate the exercise of the primary and individual right to move and reside freely within the territory of the Member States, which is conferred directly on citizens of the Union by Article 21(1) TFEU, and that one of the objectives of that directive is to strengthen that right (judgments of 12 March 2014, O. and B., C‑456/12, EU:C:2014:135, paragraph 35 , and of 5 June 2018, Coman and Others , C‑673/16, EU:C:2018:385, paragraph 18 ). In view of those objectives, the provisions of Directive 2004/38, including Article 2(2) thereof, must be construed broadly (see, to that effect, judgments of 16 January 2014, Reyes , C‑423/12, EU:C:2014:16, paragraph 23 , and of 10 July 2014, Ogieriakhi , C‑244/13, EU:C:2014:2068, paragraph 40 ).

54 Therefore it must be considered that the concept of a ‘parent-child relationship’ as referred to in paragraph 52 above must be construed broadly, so that it covers any parent-child relationship, whether biological or legal. It follows that the concept of a ‘direct descendant’ of a citizen of the Union referred to in Article 2(2)(c) of Directive 2004/38 must be understood as including both the biological and the adopted child of such a citizen, since it is established that adoption creates a legal parent-child relationship between the child and the citizen of the Union concerned.

55 By contrast, that requirement for a broad interpretation cannot justify an interpretation, such as that which is apparent from point 2.1.2 of Communication COM(2009) 313 final, whereby a child placed in the legal guardianship of a citizen of the Union is included in the definition of a ‘direct descendant’ for the purposes of Article 2(2)(c) of Directive 2004/38.

56 Given that the placing of a child under the Algerian kafala system does not create a parent-child relationship between the child and its guardian, a child, such as SM, who is placed in the legal guardianship of citizens of the Union under that system cannot be regarded as a ‘direct descendant’ of a citizen of the Union for the purposes of Article 2(2)(c) of Directive 2004/38.

57 That being said, such a child does fall, as was emphasised by the referring court, under the definition of one of the ‘other family members’ referred to in Article 3(2)(a) of Directive 2004/38.

58 Under that provision, Member States are, in accordance with their national legislation, to facilitate entry and residence for ‘any other family members ... 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’.

59 The words used in that provision are thus 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.

60 As follows from recital 6 of Directive 2004/38, the objective of Article 3(2)(a) thereof is to ‘maintain the unity of the family in a broader sense’ by facilitating entry and residence for persons who are not included in the definition of ‘family member’ of a Union citizen contained in Article 2(2) of that directive but who nevertheless maintain close and stable family ties with a Union citizen on account of specific factual circumstances, such as economic dependence, being a member of the household or serious health grounds (judgment of 5 September 2012, Rahman and Others , C‑83/11, EU:C:2012:519, paragraph 32 ).

61 According to the case-law of the Court, Article 3(2) of Directive 2004/38 imposes an obligation on the Member States to confer a certain advantage on applications submitted by the third-country nationals referred to in that article, compared with applications for entry and residence of other third-country nationals (see, to that effect, judgments of 5 September 2012, Rahman and Others , C‑83/11, EU:C:2012:519, paragraph 21 , and of 12 July 2018, Banger , C‑89/17, EU:C:2018:570, paragraph 31 ).

62 Thus, the Member States must, in accordance with that provision, make it possible for the persons envisaged therein to obtain a decision on their application that is founded on an extensive examination of their personal circumstances, taking account of the various factors that may be relevant, and, in the event of refusal, is justified by reasons (see, to that effect, judgments of 5 September 2012, Rahman and Others , C‑83/11, EU:C:2012:519, paragraphs 22 and 23 , and of 12 July 2018, Banger , C‑89/17, EU:C:2018:570, paragraphs 38 and 39 ).

63 It is true that each Member State has a wide discretion as regards the selection of the factors to be taken into account, provided that their legislation contains criteria which are consistent with the normal meaning of the term ‘facilitate’ used in Article 3(2) of Directive 2004/38 and which do not deprive that provision of its effectiveness (see, to that effect, judgments of 5 September 2012, Rahman and Others , C‑83/11, EU:C:2012:519, paragraph 24 , and of 12 July 2018, Banger , C‑89/17, EU:C:2018:570, paragraph 40 ).

64 However, that discretion must, having regard to recital 31 of Directive 2004/38, be exercised in the light of and in line with the provisions of the Charter of Fundamental Rights of the European Union (‘the Charter’) (see, by analogy, judgment of 6 December 2012, O and Others , C‑356/11 and C‑357/11, EU:C:2012:776, paragraphs 79 and 80 and the case-law cited).

65 In that regard, Article 7 of the Charter recognises the right to respect for private and family life. As is apparent from the Explanations relating to the Charter of Fundamental Rights (OJ 2007 C 303, p. 17), in accordance with Article 52(3) of the Charter, the rights guaranteed by Article 7 thereof have the same meaning and the same scope as those guaranteed by Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (see, to that effect, judgments of 5 October 2010, McB., C‑400/10 PPU, EU:C:2010:582, paragraph 53 , and of 5 June 2018, Coman and Others , C‑673/16, EU:C:2018:385, paragraph 49 ).

66 It is apparent from the case-law of the European Court of Human Rights that the actual relationship which a child placed under the kafala system maintains with its guardian 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 (see, to that effect, ECtHR, 16 December 2014, Chbihi Loudoudi and Others v. Belgium, CE:ECHR:2014:1216JUD005226510, § 78). According to that case-law, Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 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 (see, to that effect, ECtHR, 4 October 2012, Harroudj v. France, CE:ECHR:2012:1004JUD004363109, § 40 and 41, and ECtHR, 16 December 2014, Chbihi Loudoudi and Others v. Belgium, CE:ECHR:2014:1216JUD005226510, § 88 and 89).

67 Article 7 of the Charter must, moreover, be read in conjunction with the obligation to take into consideration the best interests of the child, which are recognised in Article 24(2) thereof (see, to that effect, judgments of 27 June 2006, Parliament v Council , C‑540/03, EU:C:2006:429, paragraph 58 ; of 23 December 2009, Detiček , C‑403/09 PPU, EU:C:2009:810, paragraph 54 ; and of 10 May 2017, Chavez-Vilchez and Others , C‑133/15, EU:C:2017:354, paragraph 70 ).

68 Accordingly, in order to comply with those provisions when exercising their discretion, it is for the competent national authorities, when implementing the obligation to facilitate entry and residence for the other family members laid down in Article 3(2)(a) of Directive 2004/38, 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 (see, by analogy, judgments of 6 December 2012, O and Others , C‑356/11 and C‑357/11, EU:C:2012:776, paragraph 81 ; of 13 September 2016, Rendón Marín , C‑165/14, EU:C:2016:675, paragraph 85 ; and of 13 September 2016, CS , C‑304/14, EU:C:2016:674, paragraph 41 ).

69 That assessment must 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.

70 In the context of that assessment, it is also necessary to take account of possible tangible and personal risks that the child concerned will be the victim of abuse, exploitation or trafficking. Such risks cannot, however, be assumed in the light of the fact that the procedure for placement under the Algerian kafala system is based on an assessment of the suitability of the adult and of the interests of the child which is less extensive than the procedure carried out in the host Member State for the purposes of an adoption or the placement of a child or in the light of the fact that the procedure provided for in the 1996 Hague Convention has not been applied because that convention was not ratified by the third country concerned. Such facts must, on the contrary, be weighed against the other relevant elements of fact, such as those set out in paragraph 69 above.

71 In the event that it is established, following the assessment of the elements referred to in paragraphs 69 and 70 above, 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 Directive 2004/38, 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.

72 This applies a fortiori where, as a result of a refusal to grant the child placed under the Algerian kafala system a right of entry and residence in the host Member State of its guardians, who are citizens of the Union, those guardians are in fact prevented from living together in that Member State because one of them is required to remain, with the child, in that child’s third country of origin in order to care for the child.

73 In the light of all of the foregoing, the answer to the first question referred is as follows:

• the concept of a ‘direct descendant’ of a citizen of the Union referred to in Article 2(2)(c) of Directive 2004/38 must be interpreted as not including a child who has been placed in the permanent legal guardianship of a citizen of the Union under the Algerian kafala system, because that placement does not create any parent-child relationship between them;

• however, it is for the competent national authorities to facilitate the entry and residence of such a child as one of the other family members of a citizen of the Union pursuant to Article 3(2)(a) of that directive, read in the light of Article 7 and Article 24(2) of the Charter, by carrying out a balanced and reasonable assessment of all the current and relevant circumstances of the case which takes account of the various interests in play and, in particular, of the best interests of the child concerned. In the event that it is established, following that assessment, that the child and its guardian, who is a citizen of the Union, are called to lead a genuine family life and that that child is dependent on its guardian, 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 in order to enable it to live with its guardian in his or her host Member State.

The second question

74 By its second question, the referring court seeks, in essence, to ascertain whether Articles 27 and 35 of Directive 2004/38 are to be interpreted as meaning that, in the event that there is a risk that a child placed under the Algerian kafala system may be subject to abuse, exploitation or trafficking, that child may be refused the right of entry or residence as a family member of a citizen of the Union in that citizen’s host Member State.

75 It is apparent from the request for a preliminary ruling in the present case that that question is raised in the event that a child, such as SM, placed in the legal guardianship of a citizen of the Union under Algerian kafala falls under the definition of a ‘direct descendant’ of that citizen for the purposes of Article 2(2)(c) of Directive 2004/38, which in principle provides it with an automatic right of entry and residence in that citizen’s host Member State under Article 7(2) of that directive. However, it follows from the answer to the first question that such a child cannot fall under that definition.

76 In those circumstances, there is no need to answer the second question put by the referring court.

The third question

77 In the light of the answer to the first question, there is no need to answer the third question.