Ricongiungimento familiare, diritti fondamentali e kafala islamica nella sentenza M.S. della Corte di giustizia dell’Unione europea

The paper critically comments on the M.S. judgment delivered on 26 March 2019 by the Court of Justice of the European Union. It is here argued that this judgment represents another piece of evidence of the influence of EU Law on the solution to the private international law problems concerning the continuity of family status established abroad. Indeed, according to the M.S. judgment, the family status resulting from an Islamic kafala passed in Algeria (to the benefit of an Algerian child and two French spouses who had moved to the United Kingdom for working reasons) must be recognised in the British legal system. Otherwise, the United Kingdom would violate EU Law on family reunification – which of course is highly related to the free movement of persons and thus to the European economic integration – in addition to both the right to respect for private and family life and the best interests of the child as enshrined in the Charter of Fundamental Rights of the European Union. The value of the M.S. judgment is also assessed against the relevant international treaty provisions and case law of the European Court of Human Rights concerning the Islamic kafala.