The ‘right’ of a child placed under Kafala care to reside within the EU with his guardian(s) : the emergence of a European Family Law? : Case note to SM v. Entry Clearance Officer, UK Visa Section (C-129/18)

SM is a case of the Court of Justice which concerns the question whether a child placed in kafala care can be regarded as a family member under European law for the purpose of family reunification in the context of free movement rights under Directive 2004/38. Kafala is a child protection measure and the recognition of a kafala agreement is governed by the 1996 Hague Child Protection Convention.3 Algeria is not a Contracting Party to this Convention. Consequently, the recognition of kafala agreements from Algeria is dealt with by domestic private international law rules. Neither the 1996 Hague Child Protection Convention, nor the domestic private international law rules, however, deal with the consequences in terms of residence rights, which impact the right of EU citizens and their family members to move and reside freely within the EU. A tension thus exists between the interest of the State to determine which personal status it recognizes under private international law and the rights it attaches to this recognition, and the interest of the EU to ensure the effectiveness of EU free movement rights. The judgment of the CJEU in SM illustrates this tension, as well as the difficulty to appropriately assess which approach is best to guarantee the interest and protection of the child placed under kafala. Both private international law and European law are taken aboard in this analysis