European Citizenship and Family Reunification of Minors on which have been established a Kafala


  • Nuria Marchal Escalona


Directive 2004/38/EC, Concept of “direct descendant”, Child under permanent legal guardianship under the kafala regime


The mobility of persons within the European Union is inherent
to the status of citizenship. The essential content of this status requires
adequate protection of their right to family life. The objectives of this
paper are: firstly, to analyse to what extent the best interests of the child
and the right to family life oblige the competent authorities of the Member
States of the European Union to facilitate the entry and residence of
a child over whom European citizens have constituted a kafala. Secondly,
to analyse, in the event that such an obligation exists, the influence it has
on the aliens law of the Member States and, in particular, on Spanish law.
And, thirdly, to determine whether or not consideration as a member of
the family for the purposes of entering a certain EU Member State should
be conditional on the prior recognition of the judicial decision of the State
where the kafala has been constituted. The methodology employed
in this work is that of legal research: a selection of normative materials,
case law of the Court of Justice of the European Union and doctrine that
has been considered sufficiently relevant is analysed. The results achieved
are: 1) To demonstrate that the competent authorities of the Member
States have the obligation to facilitate the entry and residence of a minor
who has formed a kafala, provided that there is a reasonable expectation
of family life and that it does not derive from a manifestly fraudulent
situation. 2) Analyse the consequences that this obligation generates in
Spanish immigration law. 3) To show how the model based on mutual
recognition is imposed in this area, where the only thing to be done is to
check the regularity of the document.