Language of document : ECLI:EU:C:2018:191


14 March 2018 (*)

(Expedited procedure)

In Case C‑129/18,

REQUEST for a preliminary ruling under Article 267 TFEU from the Supreme Court of the United Kingdom, made by decision of 14 February 2018, received at the Court on 19 February 2018, in the proceedings



Entry Clearance Officer, UK Visa Section,


Coram Children’s Legal Centre,

The AIRE Centre,


after hearing the Judge-Rapporteur, K. Jürimäe, and the Advocate General, M. Campos Sánchez-Bordona,

makes the following


1        This request for a preliminary ruling concerns the interpretation of Article 2(2)(c) and Articles 27 and 35 of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77, and corrigenda OJ 2004 L 229, p. 35, and OJ 2005 L 197, p. 34).

2        The request has been made in the context of proceedings between SM, an Algerian national, and the Entry Clearance Officer, UK Visa Section (‘the Entry Clearance Officer’), concerning the latter’s refusal to grant SM entry clearance for the territory of the United Kingdom as an adopted child of a national of the European Economic Area (EEA).

3        SM, who was born in Algeria on 27 June 2010, was abandoned by her parents at birth. By deed of 22 March 2011, the competent authorities of that country placed her, pursuant to the ‘kefalah’ system, in the guardianship of Mr and Mrs M., French nationals who had married in the UK in 2001. Pursuant to that deed, parental responsibility was transferred to Mr and Mrs M., who undertook to provide her with an Islamic education, attend to her needs, watch over her, treat her as natural parents would treat their child, protect her, defend her before judicial instances and assume civil liability for any detrimental acts on her part.

4        In October 2011, Mr M. returned to the United Kingdom, where he has a permanent right of residence. Mrs M. remained in Algeria with SM.

5        In May 2012, SM applied for UK entry clearance as the adopted child of an EEA national. Her application was rejected by a decision of the Entry Clearance Officer on the ground that, inter alia, guardianship under the ‘kefalah’ system was not recognised as an adoption in UK law.

6        Following the dismissal of the action brought by SM at first instance, she appealed to the Upper Tribunal (United Kingdom). That tribunal allowed her appeal and found that she was a member of the extended family of an EU citizen under national law.

7        The Entry Clearance Officer brought an appeal before the Court of Appeal (England & Wales) (Civil Division) (United Kingdom). By judgment of 4 November 2015, that court upheld the appeal and found, inter alia, that SM was not a direct descendant of an EU national within the meaning of Article 2(2)(c) of Directive 2004/38 and also did not come within the field of application of Article 3(2)(a) of that directive.

8        Having been given permission to appeal, SM has brought the matter before the referring court.

9        It is apparent from the order for reference that the referring court seeks, in essence, to determine whether SM has a right of entry into the United Kingdom as a direct descendant of an EU national within the meaning of Article 2(2)(c) of Directive 2004/38.

10      In particular, the referring court raises the question of whether a child placed under a guardianship system such as the ‘kefalah’ system comes within the concept of a ‘direct descendant’ of an EU national within the meaning of Article 2(2)(c) of Directive 2004/38 and whether, for the purposes of the application of that provision, a Member State may check that the child’s best interests were taken into account when he or she was placed under guardianship. In addition, it raises the question of whether the right of entry of such a child may be limited pursuant to Articles 27 and 35 of that directive when the child is a victim of exploitation, abuse or trafficking or is at risk of such.

11      The referring court has also requested that the Court of Justice apply an expedited procedure to the present case pursuant to Article 105(1) of the Rules of Procedure of the Court of Justice.

12      Under that provision, at the request of the referring court or tribunal or, exceptionally, of his own motion, the President of the Court may, where the nature of the case requires that it be dealt with within a short time, after hearing the Judge-Rapporteur and the Advocate General, decide that a reference for a preliminary ruling is to be determined pursuant to an expedited procedure derogating from the provisions of the Rules of Procedure.

13      In this respect, point 34 of the Recommendations to national courts and tribunals, in relation to the initiation of preliminary ruling proceedings (OJ 2016 C 439, p. 1), states that, in order to enable the Court to decide quickly whether the expedited procedure should be applied, the request must set out precisely the matters of fact and law which establish the urgency and, in particular, the risks involved in following the ordinary procedure.

14      In the present case, the referring court stated, in support of its request that the present case be determined pursuant to an expedited procedure, that the dispute in the main proceedings concerns a young child and that her application for UK entry clearance dates back to May 2012.

15      In that regard, although the referring court has thus highlighted both the young age of the child and the long period of time that has elapsed since the introduction of her application for UK entry clearance, that court has not, however, put forward any specific matter relating to the circumstances of the case capable of establishing that the nature of the present case requires that it be dealt with within a short time following the introduction of its request for a preliminary ruling.

16      In particular, the referring court has not provided any information on the psychological state of the child, on any possible impact on her relationship with her male guardian or on her situation in Algeria, the country in which the child appears to be living with her female guardian. The referring court has thus made no mention of any particular factor that significantly affects the child’s welfare.

17      In those circumstances, the legal uncertainty affecting the child is not capable, in itself, of constituting an exceptional circumstance that justifies the use of the expedited procedure (see, to that effect, order of the President of the Court of 29 January 2014, E., C‑436/13, not published, EU:C:2014:95, paragraph 25 and the case-law cited).

18      It follows that the request of the Supreme Court of the United Kingdom that the present case be determined pursuant to an expedited procedure cannot be granted.

On those grounds, the President of the Court hereby orders:

The request of the Supreme Court of the United Kingdom that Case C129/18 be determined pursuant to the expedited procedure provided for in Article 105(1) of the Rules of Procedure of the Court of Justice is rejected.

Luxembourg, 14 March 2018.

A. Calot Escobar


K. Lenaerts




*      Language of the case: English.