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Immigration and family reunification: The international legal framework

by Torsten Heinemann and Ursula Naue
(November 2010)

In this section we provide detailed information on the legal framework and administrative practices of family reunification. Firstly, we give an overview of the right to family reunification in the Universal Declaration of Human Rights and other international covenants and treaties. Secondly, we focus on European legislation and regulations regarding family reunification. Founding a family is a basic right regulated in international and national law, and so is family reunification. There are several international charters, covenants and treaties that deal with the right to have a family and that call for family reunification as a basic right. Following you can find a list of international legislations that we find important in the case of family reunification. For details of the respective charters, covenants and treaties please see below.

International level
Universal Declaration of Human Rights
International Covenant on Economic, Social and Cultural Rights
International Covenant on Civil and Political Rights
Declaration on Social and Legal Principles relating to the Protection and Welfare of Children and Convention on the Rights of the Child
United Nations International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families
Charter of the Rights of the Family

European level
Charter of Fundamental Rights of the European Union
European Convention on Human Rights
Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Communities
Council Regulation No 343/2003 and Council Directive 2003/86/EC

 

Family reunification and Human Rights

Universal Declaration of Human Rights

Having a family is thought to be a human right. Article 16 of the Universal Declaration of Human Rights states: “(1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution. (2) Marriage shall be entered into only with the free and full consent of the intending spouses. (3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.”[1] In a working paper, the UNHRC states: “Family unity is a fundamental principle of international law. For refugees and those who seek to protect them, this principle has several important facets. The integrity of the refugee family is a legal principle and a humanitarian goal; it is also an essential framework of protection and a key to the success of durable solutions that can restore a refugee to something approximating a normal life.”[2] The right to family reunification is derived from the basic and inalienable right to found a family: refering to Article 16 of The Universal Declaration of Human Rights, Human Rights Education Associates (HREA) argues that “[H]uman rights law upholds the positive right of all peoples to marry and found a family. It upholds the ideal of equal and consenting marriage and tries to guard against abuses which undermine these principles. It is not prescriptive as to the types of families and marriages that are acceptable, recognising tacitly that there are many different forms of social arrangements around the world. The family unit can be made vulnerable to social, economic, and political pressures. Human rights law seeks to bolster the family unit by specifying state obligations to keep families together and to reunify them when they have become separated e.g. as a result of refugee crises.“”[3] In this context, the right to family reunification affects cases where “parents and children are residing in different countries, states are obliged to facilitate contacts and deal with requests to enter or leave a state party for the purpose of reunification in a humane and expeditious manner. Such rights are only to be restricted for reasons of national security and public order. This is a particularly important right for refugees and special procedures exist in most countries to reunify refugee parents with their children. Human rights treaties oblige states to take special measures to trace the parents of an unaccompanied refugee child and to reunite them together.“”[4]

International Covenant on Economic, Social and Cultural Rights

The International Covenant on Economic, Social and Cultural Rights (ICESCR), which was drafted in 1955 and came into effect in 1976, states that the family is the natural and fundamental group unit of society and deserves the highest possible protection: “1. The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children. Marriage must be entered into with the free consent of the intending spouses. 3. Special measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions. Children and young persons should be protected from economic and social exploitation. Their employment in work harmful to their morals or health or dangerous to life or likely to hamper their normal development should be punishable by law. States should also set age limits below which the paid employment of child labour should be prohibited and punishable by law. [emphasis TH]” (ICESCR, Art 10 Sec 1 & 3) This covenant was signed by 160 nations and ratified by almost all of them apart from the US and South Africa; all European countries have signed and ratified it.

International Covenant on Civil and Political Rights

The International Covenant on Civil and Political Rights (ICCPR) is another multilateral treaty that deals with general civil and political rights; it was ratified by 166 nations including all advanced industrialised countries. It became effective together with the International Covenant on Economic, Social and Cultural Rights. Article 23 is dedicated to the protection of the family on similar lines to the International Covenant on Economic, Social and Cultural Rights: “1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State. […] 4. States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children. [emphasis TH]” (ICCPR, Art 23) Art. 23. Sec. 4 does not explicitly mention the right to family reunification, but it is one obvious measure among others.

Declaration on Social and Legal Principles relating to the Protection and Welfare of Children and Convention on the Rights of the Child

The Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with special reference to Foster Placement and Adoption Nationally and Internationally and the Convention on the Rights of the Child (CRC) also affirm the importance of the family. The Convention on the Rights of the Child, in particular, explicitly expresses the need for family reunification and was signed by 194 nations. Article 3 of the Declaration on Social and Legal Principles relating to the Protection and Welfare of Children states that: “The first priority for a child is to be cared for by his or her own parents.” The Convention on the Rights of the Child is much more detailed regarding the necessity of family and family reunification. Art. 9 and Art. 10 stress the importance to a child of regular, personal relations and direct contact with both parents: “States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests.” (CRC, Art. 9, Sec. 4) Article 10 provides some more details on the process of family reunification: “1. In accordance with the obligation of States Parties under Article 9, Paragraph 1, applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner. States Parties shall further ensure that the submission of such a request shall entail no adverse consequences for the applicants and for the members of their family. 2. A child whose parents reside in different States shall have the right to maintain on a regular basis, save in exceptional circumstances personal relations and direct contacts with both parents. Towards that end and in accordance with the obligation of States Parties under article 9, paragraph 1, States Parties shall respect the right of the child and his or her parents to leave any country, including their own, and to enter their own country. The right to leave any country shall be subject only to such restrictions as are prescribed by law and which are necessary to protect the national security, public order, public health or morals or the rights and freedoms of others and are consistent with the other rights recognized in the present Convention.” [emphasis TH] Additionally, family reunification is mentioned in Articles 20 to 22.

United Nations International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families

In December 1990 the United Nations General Assembly adopted the United Nations International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (resolution 45/158). Articles 44 and 50 of The United Nations International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families. Article 44 of the resolution states that: “1) States Parties, recognizing that the family is the natural and fundamental group unit of society and is entitled to protection by society and the State, shall take appropriate measures to ensure the protection of the unity of the families of migrant workers. 2) States Parties shall take measures that they deem appropriate and that fall within their competence to facilitate the reunification of migrant workers with their spouses or persons who have with the migrant worker a relationship that, according to applicable law, produces effects equivalent to marriage, as well as with their minor dependent unmarried children. [emphasis TH]”

Article 50 argues that “In the case of death of a migrant worker or dissolution of marriage, the State of employment shall favourably consider granting family members of that migrant worker residing in that State on the basis of family reunion an authorization to stay; the State of employment shall take into account the length of time they have already resided in that State.“

Two things are especially noteworthy in association with the Convention on the Protection of the Rights of All Migrant Workers and Members of their Families. Firstly, the term “family” as used in this resolution according to Art. 4 does not only imply marriages but relationships that are equivalent to a marriage: “For the purposes of the present Convention the term ‘members of the family’ refers to persons married to migrant workers or having with them a relationship that, according to applicable law, produces effects equivalent to marriage, as well as their dependent children and other dependent persons who are recognized as members of the family by applicable legislation or applicable bilateral or multilateral agreements between the States concerned.” However, as the resolution refers to national laws and regulations for the details on the family concept it is not technically a covenant. Secondly and more importantly, the United Nations Convention on the Protection of the Rights of All Migrant Workers and Members of their Families was neither signed nor ratified by any advanced industrialised country. It was primarily signed and ratified by countries of origin of migration.[5] This means that in practice, the United Nations Convention on the Protection of the Rights of All Migrant Workers and Members of their Families has no relevance to immigration or to the right to family reunification in the European Union member states or the USA. To put it bluntly, this resolution has almost no effect on the status of immigrants in the host countries.

Charter of the Rights of the Family

Finally, the Pontifical Council for the Family of the Catholic Church has adopted a Charter of the Rights of the Family. This charter is meant to be a universal declaration of family rights that applies not only to Catholics but to mankind in general. Article 12 of the charter states that: “The families of migrants have the right to the same protection as that accorded other families. a) The families of immigrants have the right to respect for their own culture and to receive support and assistance towards their integration into the community to which they contribute. b) Emigrant workers have the right to see their family united as soon as possible. c) Refugees have the right to the assistance of public authorities and International Organizations in facilitating the reunion of their families.”

Even though the importance of family unity and family reunification is endorsed in several international covenants and agreements, as we have seen above, international institutions have failed to establish a generally binding right to family reunification in international law.

European legislation

Charter of Fundamental Rights of the European Union

The Charter of Fundamental Rights of the European Union, which is based on the Universal Declaration of Human Rights, reinforces the right to have a family in articles 7 and 9: “Article 7. Everyone has the right to respect for his or her private and family life, home and communications. […] Article 9. The right to marry and the right to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights.” (European Parliament, Council of the European Union, and European Commission, 2007: 4) In addition, article 33 guarantees the legal, economic and social protection of the family as well as the right to maternity and parental leave after the birth or adoption of a child (9).

European Convention on Human Rights

European Convention on Human Rights (formally the Convention for the Protection of Human Rights and Fundamental Freedoms) refers to the right to respect for private and family life (Article 8) and to the right to marry (Article 12). Article 8 states that “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.“

 

Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Communities

Article 63a of the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Communities also includes a paragraph on family reunification measures. All European Union member states aim at establishing a common practice regarding immigration, and will therefore adopt the necessary measures in the areas of “the conditions of entry and residence, and standards on the issue by Member States of long-term visas and residence permits, including those for the purpose of family reunification. [emphasis TH]”[6] The details, consequences and administrative practices are not specified further, so it is up to the member states to implement procedures that are in line with the treaty.

Council Regulation No 343/2003 and Council Directive 2003/86/EC

Additional European legislation can be found in the Council Regulation No 343/2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national and Council Directive on the right to family reunification. Both the regulation and the directive were amended in September 2003. In the year 1999, the European Union summit in Tampere decided to adopt binding guidelines within five years for all Member States of the European Union regarding asylum and migration.[7]

Interestingly, they contradict each other regarding the practice of family reunification. Article 2 of the Council Regulation No 343/2003 clearly states that family has to be understood in a broader sense than just a nuclear family: “‘family members’ means insofar as the family already existed in the country of origin, the following members of the applicant's family who are present in the territory of the Member States:(i) the spouse of the asylumseeker or his or her unmarried partner in a stable relationship, where the legislation or practice of the Member State concerned treats unmarried couples in a way comparable to married couples under its law relating to aliens;(ii) the minor children of couples referred to in point (i) or of the applicant, on condition that they are unmarried and dependent and regardless of whether they were born in or out of wedlock or adopted as defined under the national law;(iii) the father, mother or guardian when the applicant or refugee is a minor and unmarried. [emphasis TH]”

In contrast to this, the Council Directive 2003/86/EC states, in its preface article 10, that it is up to the member state to define whether two persons need to be married to be treated as a family or not. Most EU member states seem to prefer a rather strict definition of the family where family reunification only applies to married couples and children under the age of 18 or sometimes even 16.[8] The Council Directive 2003/86/EC is the most important European legal document with regard to family reunification. It not only contains legal information on the rights of the applicant and the family, but also provides a framework for administrative practice, e.g. how to prove the family relation of an unmarried couple (Art. 5, Sec. 2, Sentence 2). This framework leaves considerable room for interpretation, however. This becomes especially apparent in the official report on family reunification published by the European Migration Network.[9] In the preamble of this Council Directive, it is argued under subparagraph (2) that “Family reunification is a necessary way of making family life possible.“ In subparagraph (6) it is furthermore stated that “To protect the family and establish or preserve family life, the material conditions for exercising the right to family reunification should be determined on the basis of common criteria.“ And in subparagraph (9), it is defined who should be subject to family reunification: “Family reunification should apply in any case to members of the nuclear family, that is to say the spouse and the minor children.“ In Chapter II, Article 4 (2) a and b, family members who should be allowed entry and residence are defined as “(a) first-degree relatives in the direct ascending line of the sponsor or his or her spouse, where they are dependent on them and do not enjoy proper family support in the country of origin; (b) the adult unmarried children of the sponsor or his or her spouse, where they are objectively unable to provide for their own needs on account of their state of health.“

In a report on the application of Directive 2003/86 on family reunification of third country nationals, the key problems of implementation at national levels are discussed (European Union 2008): “Overall, the Directive has been transposed satisfactorily in the majority of Member States. A few horizontal issues of incorrect transposition or misapplication of the Directive need to be highlighted; the fact that some Member State do not grant proper visa facilitation for those family members whose application are already accepted, others do not grant autonomous residence permit to the family members in all the given cases of the Directive or not take into account satisfactory enough the best interest of the child or does not adequately apply the more favourable provisions for the family reunification of refugees. In addition the main application problem is that some "may" provisions of the Directive enabling Member States to introduce or maintain certain requirements for the exercise of the right to family reunification (fees, possible waiting period, stable and regular resources as an economic condition and possible integration measures such as language and other test should be mentioned in particular) are applied in a too broad or excessive way having the effect to restrict the given right to family reunification to an extent which runs counter the effet utile of the Directive.“[10]

Article 16 and also Article 2 (e) of the Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents refers to Directive 2003/86/EC when defining family members in Article 2 (e): “‘family members’ means the third-country nationals who reside in the Member State concerned in accordance with Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification“. In the preamble it is argued under subparagraph (20) that “[F]amily members should also be able to settle in another Member State with a long-term resident in order to preserve family unity and to avoid hindering the exercise of the long-term resident's right of residence. With regard to the family members who may be authorised to accompany or to join the long-term residents, Member States should pay special attention to the situation of disabled adult children and of first-degree relatives in the direct ascending line who are dependent on them.“

Also relevant for family reunification cases, Council Decision 2007/435/EC of 25 June 2007 establishing the European Fund for the integration of third-country nationals for the period 2007 to 2013 as part of the General Programme ’Solidarity and Management of Migration Flows’ contributes “to the strengthening of the area of freedom, security and justice and the application of the principle of solidarity between the Member States.“ (Article 1 (1)).

 

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