tag:blogger.com,1999:blog-8704899696538705849.post1642707253620744300..comments2024-03-28T02:32:17.979-07:00Comments on EU Law Analysis: Guardianship, free movement and the rights of the child: the SM judgmentSteve Peershttp://www.blogger.com/profile/05869161329197244113noreply@blogger.comBlogger5125tag:blogger.com,1999:blog-8704899696538705849.post-81991800554112461062022-10-07T02:47:54.646-07:002022-10-07T02:47:54.646-07:00This comment has been removed by a blog administrator.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-17557410519586998082022-08-04T00:05:17.918-07:002022-08-04T00:05:17.918-07:00This comment has been removed by a blog administrator.Focus Lawhttps://www.blogger.com/profile/08677001842595492122noreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-43118198807390486802021-09-02T02:21:29.937-07:002021-09-02T02:21:29.937-07:00This comment has been removed by a blog administrator.Brian Taylorhttps://www.blogger.com/profile/08670564386511451912noreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-37814752831163284642019-04-09T10:06:48.750-07:002019-04-09T10:06:48.750-07:00Thanks for your comments. On (1) the problem I hav...Thanks for your comments. On (1) the problem I have with this line of argument is that the notion of adoption is ruled out by the religious beliefs in question. So to treat this process as an adoption would actually be to disregard those beliefs. Any discrimination might stem from treating those children under kafala guardianship differently from those adopted; and as far as free movement law goes, the Court's approach at least narrows the gap. (2) What part of the judgment suggests some distinction as regards the length of the residence permit? In any event those covered by the Directive are not issued 'residence permits' as such. The application in this case was for entry clearance. Steve Peershttps://www.blogger.com/profile/05869161329197244113noreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-52854521017581876672019-04-09T02:55:08.068-07:002019-04-09T02:55:08.068-07:00Dear Professor Peers,
thank you for this very inf...Dear Professor Peers,<br /><br />thank you for this very informative note.<br /><br />I was wondering whether you consider that this judgment actually leads to (1) indirect discrimination based on religion and origin and (2) two different set of rights under 3(2) of the Directive dependent on the age of the applicant?<br /><br />(1) while the Court does refer to the ECtHR judgments Harroudj v. France and Chbihi Loudoudi and Others v. Belgium, it only refers to the parts that suit it. These judgments, especially Haroudj, stated specifically that an adoption may be refused on the ground that the child is already under kafala. The reason for this was that kafala is intended not to separate to orginal parent-child relationship and the adoption would do exactly this. A kafala can therefore only be recognised as a guardianship. The applicants therefore are completely unable to change the situation since they cannot adopt Susana. Since they are unable to change the legal situation to make it fall under Art. 2(2)(c) because of this case law, solely on the ground of the origin and religion of the child, is this not a matter of indirect discrimination?<br />(2) Both Rahman and Banger do not grant a right to a long term residence permit, but only a facilitation which can be in the form of easier access to short term residence permits. Both cases concerned however adult persons. In SM it seems that the facilitation should be for a long term residence permit, but for a child. Do you think this is the case?<br /><br />I am looking forward to your answersDavid de Grootnoreply@blogger.com