I'm saying your comment seemed to suggest that you thought that the kernel licence automatically granted *any* user-space code a get-out from the kernel GPL licence, but that such an interpretation is not justified by the actual licence. The kernel licence foreword clearly constrains the exception to apply only to userspace programmes that use "normal system calls".
Now, whether some specific bit of user-space code does or does not meet the criteria, I don't know. I couldn't tell you either with any authority. You should consult a good lawyer specialising in this kind of thing, if there is doubt that matters to you. ;)