A small amendment to UK law could soon make a big difference to European families resident here who are struggling to bring home children adopted in Muslim countries abroad.
A change to the legal definition of who counts as an EEA citizen’s “family member” should end the uncertainty over the status of children in kafala arrangements. Kafala is a system of permanent legal guardianship operating in many Muslim countries, where full adoption is usually prohibited.
While some families here view the arrangement as permanent, others consider it a stepping stone to full adoption in the UK, as kafala is sometimes the only way to gain legal custody of a child in his or her birth country.
The amendment to the Immigration (European Economic Area) Regulations 2016, which takes effect on 15 August 2019, explicitly recognises relationships where the child is under 18 and “is subject to a non-adoptive legal guardianship order in favour of an EEA national that is recognised under the national law of the state in which it was contracted”.
This provision means that EEA citizens living in the UK, who have entered a kafala adoption overseas, can now apply for a visa to bring their child home.
The case behind the change
The development was prompted by the case of SM (Algeria) v Entry Clearance Officer  UKSC 9. This involved a French couple living in the UK who adopted an abandoned baby girl in Algeria through a kafala arrangement. They struggled for many years to obtain permission for their daughter to move to the UK, where kafala adoptions are not recognised.
The case eventually made its way to the Supreme Court, which referred it to the European Court of Justice, as discussed in this helpful article by Nath Gbikpi. The Court of Justice said the girl should be allowed to enter the UK as the couple’s family member but it was only a partial victory. The Court found the relationship was not on a par with full adoption, as it was not intended to permanently sever a child’s ties with its biological family and lasted only until the age of 18.
This means that kafala-adopted children are to be treated as “other family members” rather than “direct descendants” – or in the language of UK law, “extended family members” rather than “direct family members”. This matters because the latter have an automatic right to enter the UK, while the former are treated less favourably, subject to a vetting process to assess the relationship before being issued with a visa.
Some adoptions are more equal than others
This distinction is reflected in the wording of the new provision. While adopted applicants need only provide the adoption order to prove their relationship, kafala arrangements require substantial evidence on top of the guardianship order.
The new regulation 8(1A), introduced by the Immigration (European Economic Area) (Amendment) Regulations 2019, also requires applicants to show that the child:
(c) has lived with the EEA national since their placement under the guardianship order;
(d) has created family life with the EEA national; and
(e) has a personal relationship with the EEA national that involves dependency on the EEA national and the assumption of parental responsibility, including legal and financial responsibilities, for that person by the EEA national.
In most families, the above requirements will almost certainly be met. But finding evidence to actually prove this will be harder where the arrangement is new and the child is very young.
Nevertheless, this development will undoubtedly make life easier for some families. Previously EEA citizens had no clear route to bring home kafala-adopted children – or indeed a child under any kind of guardianship order. One recent example was Norwegian UK resident Nina Saleh, who had multiple visa applications for her Pakistan-born baby refused despite having gone through a UK adoption approval process.
These provisions for EEA citizens is distinct from the two measures available under the Immigration Rules for children in the care of British citizens or those with a permanent right to reside. The first is where the child has been in the care of the parent(s) overseas for an 18-month period, even where there has been no formal legal transfer of parental responsibility. This is known as a “de facto” adoption. The second is where a family wishes to bring a child here for the purpose of adoption. These complicated rules are discussed further in our post on Immigration and nationality law for adopted children.
Will this development bring permanent change?
While the change to the EEA Regulations is to be welcomed, its future is uncertain. The regulations will soon cease operating for new applications – possibly as early as 31 October 2019 if we leave the EU without a deal. This will leave only the Settlement Scheme for EEA citizens and their family members, which is problematic for children in kafala arrangements.
At present, the Scheme only recognises guardianship orders made in the UK, Guernsey, Jersey or the Isle of Man. In such cases, children are to be treated as “direct descendants”. No parallel provision exists for legal guardianship orders made overseas, meaning children in kafala arrangements will not be treated as the EEA citizen’s “child”.
Technically, there is nothing to stop children applying as a general “dependant relative” of the EEA citizen under the Scheme, the equivalent of an “extended family member” under the EEA Regulations. The problem here is that applicants will only qualify as dependent relatives if they already hold residence documentation under the EEA Regulations. In other words, once the regulations end, “new” dependant relatives cannot apply under the Scheme.
The ultimate purpose of the Settlement Scheme is to transition the UK out of EU free movement law, and so it is peppered with deadlines after which certain applications are impossible. But there is some precedent for a more flexible approach. For example, there are no deadlines for the biological or adopted children of EEA citizens.
It is to be hoped the government will amend the Scheme to make explicit allowance for children in kafala arrangements — perhaps by incorporating some of the wording from the new regulation, which reflects their unique position.
But in a worst case scenario, families might be left with no choice but to wait until the EEA citizen has acquired settled status, at which point they can apply under the Immigration Rules. This is clearly a far from ideal solution from any perspective — particularly for the child in question, who may be separated from would-be parents for months if not years.