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European Observer on fundamental right's respect

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Case Law C-129/18 (26/03/2019)

Type: Judgment

Authority: European Authorities: Euopean Union' Court of Justice

Date: 03/26/2019

Subject: According to the Court, the concept of a ‘direct descendant’ of a citizen of the Union referred to in Article 2(2)(c) of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, does not include 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, the Court affirmed that 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, 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

Parties: SM (Enfant placé sous kafala algérienne)

Classification: Freedoms - Art. 7 Privacy - Equality - Art. 24 Children’s rights - Citizens’ rights - Art. 45 Freedom of movement - Freedom of residence

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