Most Muslim-majority countries do not permit adoption but rather allow for kafala. Children under kafala arrangements are called makfuls and their guardians kafils. Kafala has been recognised as a child protection measure in Article 20 of the Convention on the Rights of the Child (CRC) alongside adoption. However, while in most cases adopted children are included on an equal footing to biological children in European Directives, such as the Family Reunification Directive, makfuls are left in a more precarious position.

In a world where the CRC enjoys almost unanimous ratification worldwide, and where many are fleeing their country of origin as refugees, I ask, what about the makfuls? Can they be reunited with their refugee kafils under the Family Reunification Directive? Should States have an obligation to allow this in light of the (debatable) increased children’s rights perspective in the European legal system?

What is kafala?

The practice of kafala has an Islamic basis, where it is seen as the highest form of alternative care for children. Under Islam, adoption may be seen as a sin and it is often prohibited by Islamic States (Assim & Sloth-Nielsen, 2014).

Notwithstanding its different forms, generally, kafala is a type of long-term guardianship of a child who is either abandoned or unable to be cared for by their parents. The kafil assumes responsibility for the care, education and protection of the makful, just as a parent does for their child. However, unlike adoption, there is no severing of the ties between the biological parents and the child, due to strong beliefs about maintaining filial relations. Therefore, the child will not be entitled to the kafil’s family name or inheritance (Duca, 2014). But in practice, the possibility remains for such a child to be assigned inheritance through testamentary succession (Sonneveld, Presentation 2019). Kafala is also said to be highly rewarded in the afterlife if done with the right intention and sincerity (Assim & Sloth-Nielsen, 2014).

Kafala is often seen as less regulated than adoption, especially because inter-country adoption is regulated by the Hague Intercountry Adoption Convention. There are, however, certain safeguards for international kafala outlined in the Hague Protection Convention. It should also be noted that in the case of a refugee, one would usually be talking about domestic adoption and domestic kafala as States may require that family relationships have taken place before the refugee left their country of origin (Article 9(2) of the Family Reunification Directive).

Has the CJEU come to the rescue?

The recent decision of the CJEU in SM v. Entry Clearance Officer, UK Visa Section, involved Directive 2004/38. This Directive deals with the right of European Union (EU) citizens and their family members to reside and move freely within the EU and European Economic Area. In this case, the CJEU held that while the term ‘direct descendent’ in Directive 2004/38 includes an adopted child but not a makful, the latter would be included under Article 3(2) of that Directive. This Article provides for State facilitation of entry and residence of ‘any other family members who are dependants or members of the household of the citizen having the primary right of EU residence’.

Under Article 3(2), States are not necessarily obligated to allow these persons entry and residence on their territory. They are only obligated to confer a certain advantage on applications submitted by such persons compared to those submitted by other third country nationals. They must make it possible for such persons to obtain a decision on their application, which must be founded on a thorough investigation of their circumstances, taking all relevant factors into account. If their application is refused, such refusal must be justified by reasons (Rahman and Others, § 21-23).

The factors to take into account are at the discretion of the State as long as the criteria are consistent with the normal meaning of ‘facilitate’ and do not deprive Article 3(2) of its effectiveness (Rahman, § 24). However, the CJEU pointed out that such discretion must be exercised in line with the Charter of Fundamental Rights of the European Union as stated in Recital 31 of Directive 2004/38. This includes the right to respect for private and family life set out in Article 7 of the Charter and the best interests of the child set out in Article 24(2) of the Charter. The right to respect for private and family life has the same meaning and scope as that enshrined in Article 8 of the ECHR (see Article 53(2) of the Charter).

ECHR case law has shown that the relationship between a kafil and a makful can be seen as family life, in terms of ‘the time spent living together, the quality of the relationship, and the role which the adult assumes in respect of the child’ (Chbihi Loudoudi and Others v. Belgium, § 78). Furthermore, Article 8 ECHR requires that where the existence of family life has been found, the State must ‘enable that tie to develop’ and must ‘establish legal safeguards that render the child’s integration in their family possible’ (Harroudj v. France, § 40 and 41).

The CJEU held that in order to comply with the right to respect for family life and the best interests of the child when implementing Article 3(2), the national authorities must ‘make a balanced and reasonable assessment of all the current and relevant circumstances of the case’ (SM, para 68). This includes accounting for ‘all the interests in play’ and particularly ‘the best interests of the child concerned’ (SM, para 68). Factors that must be considered in the assessment are the age at which the child was placed under the care of the kafil, whether the child has continued to live with his/her guardians since that time, the closeness between the kafil and makful, as well as the financial and legal dependency of the makful on the kafil. Possible abuses such as exploitation and trafficking should also be considered, but they cannot be assumed just because kafala arrangements may, though not necessarily, be subject to lesser requirements than adoption procedures (see the case of Morocco, where it is not easy to formally become a kafil).

The CJEU concluded that if, following the assessment, it is established that a genuine family relationship is found between the makful and the kafil; including dependency, States are obligated, in principle, due to the right to respect for family life and the best interests of the child, to allow the entry and residence of the makful under Article 3(2) of Directive 2004/38, notwithstanding their discretion (S.M. § 71).

Implications from the interpretation of the Family Reunification Directive?

Similarly to Directive 2004/38, Recital 2 of the Family Reunification Directive states that the Directive ‘respects the fundamental rights and observes the principles recognised in particular [the right to respect for family life enshrined in] Article 8 of the [ECHR] and in the Charter….’ Furthermore, Recital 11 states that the Directive should be exercised in proper compliance with the rights of children. In addition, Article 5(5) requires due regard to be given to the best interests of the child when examining applications for family reunification.

While the CJEU judgement addresses a different Directive, the reasoning used could support an argument that States, whilst exercising discretion, are obligated to reunify makfuls and refugee kafils under the Family Reunification Directive. This obligation would apply if there is a genuine family relationship involving dependency. This is because, as stated above, where the existence of family life has been found, Article 8 of the ECHR requires States to ‘enable that tie to be developed’ and must ‘establish legal safeguards that render possible the child’s integration in their family’ (Harroudj, § 40 and 41). The fact that refugee status has been granted would indicate that this family life could not continue in the country of origin and, assumingly, in no other country either. The rejection of a family reunification application would mean that the family could not continue to function, and potentially result in State interference in family life (Gül v. Switzerland, § 42). Additionally, in most cases, it is hard to argue that it would be in the best interests of the child to live in their country of origin without the people they are dependent on, especially if the country is just as unsafe for the child.

Therefore, a strong argument could be made that where a genuine and dependent relationship exists resulting in family life between a makful and a refugee kafil, States may have a duty to exercise their discretion to allow family reunification in the European host State. However, whether States will agree with this - one can only wait and see. So as for the question ‘What about the makfuls?’ only time will tell.