An Algerian minor is not a “direct descendant” of the European citizens who took her in under the kafala system but can, after a thorough examination, obtain a residence permit in the European Union as one of her guardians’ “other family members”, the Court of Justice of the European Union confirmed in a judgment delivered on Tuesday, 26 March (case C-129/18).
An Algerian minor challenged the United Kingdom authorities’ refusal to grant her an entry clearance as a child taken in under the kafala system by two spouses of French nationality.
By virtue of Algerian law, kafala is where an adult undertakes to assume responsibility for the care, education, and protection of a child and to act as that child’s legal guardian. Nevertheless, placement under kafala does not make the child the guardian’s heir. Kafala ends when the child reaches the age of majority and may be revoked at the request of the biological parents or the guardian.
Referred to by the British supreme court, the Court of Justice examined whether the concept of a “direct descendant” of an EU citizen, set forth in Directive (2004/38) on the freedom of movement of European citizens, applies in this case.
Adopting the Advocate General’s reasoning (see EUROPE 12202/26), the EU judge responded in the negative. In his opinion, the kafala system does not create a biological or legal parent-child relationship between the child and his or her guardian.
However, the Court considers that a child taken in under the kafala system falls under the concept of “other family members” set forth in the directive insofar as the guardians provide for his or her care, education, and protection by virtue of an undertaking based on Algerian law.
The judge notes that the Charter of Fundamental Rights requires respect for the best interests of the child. In addition, the applicable European directive aims to maintain family unity.
The Court concludes that Member States must promote the entry and residence of a child placed under the legal guardianship of EU citizens under the kafala system by carrying out a balanced and reasonable examination of the relevant circumstances and considering the best interests of the child. (Original version in French by Mathieu Bion)