The world community has agreed in a number of declarations that the family is the fundamental group unit in society(1). From this follows the right to family unity which in turn places certain obligations on state authorities. For refugees this right is particularly crucial as in many cases refugees have been forced to leave family members behind when fleeing.
Prolonged separation from close family members can cause severe stress and prevent a normal life for both those who have left and those who remain at home. Indeed, many refugees and other migrants live isolated lives, cut off from social relations. As a consequence, they face even more difficulties to integrate, while those left behind – often women and children – tend to be vulnerable, often stand without the protection of male family members and seldom can work towards durable solutions.
Though States retain their right to regulate and control the entry of non-nationals, there has been a progressive development in international law on the right to family reunification across borders. Nowadays, the respect of the right to family unity requires not only that States refrain from action which would split families, but also to take measures to reunite separated family members when they are unable to enjoy the right to family unity somewhere else.
This development started when the 1951 UN Convention relating to the Status of Refugees was adopted and the diplomatic conference in a Final Act stated that the unity of the family was an ‘essential right’ and recommended governments to take the necessary measures to protect the refugee’s family especially with the view to:
1) ensuring that the unity of the refugee’s family is maintained particularly in cases where the head of the family has fulfilled the necessary conditions for admission to a particular country;
2) the protection of refugees who are minors, in particular unaccompanied children and girls with special reference to guardianship and adoption’.
Since then the Executive Committee of the UN High Commissioner for Refugees has adopted several authoritative statements promoting family reunification as both a human right and a humanitarian principle. It has encouraged governments to adopt legislation to implement ‘a right to family unity for all refugees, taking into account the human rights of the refugees and their families´(2).
In the Council of Europe both the Committee of Ministers and the Parliamentary Assembly have used similar language in several recommendations and resolutions(3). Notions of family and family reunification also enjoy protection under the European Convention on Human Rights and the European Social Charter.
The 1989 UN Convention on the Rights of the Child stipulates that children should not be separated from their parents against their will (article 9) and that governments should deal with cases of family reunification across borders ‘in a positive, humane and expeditious manner’ (article 10).
However, concrete policies have not always been positive, humane and expeditious – neither for children nor for adults. A number of governments have chosen to interpret their obligations narrowly which was also reflected in the 2003 EU Council Directive on the Right to Family Reunification. Only spouses and unmarried minors were to benefit from favourable treatment while other family members would not. Only persons with full refugee status would be accepted as sponsors while those with subsidiary protection or other migrants were not.
In reality the policies have differed between European countries, but many have used a strictly limited definition of family to include only parents and their immediate children. This ignores the obvious fact that the shape of the core family differs depending on traditions and situations. In war-torn and HIV affected areas, for instance, it is not unusual for orphaned children to be cared for by other relatives. Often grandparents, or other members of the extended family, depend on the active generation. A positive and humane policy should consider the real family pattern in each individual case.
Some governments argue that family unity could be reached in many cases if the newcomers go back to their family members in the country of origin; the implied message is that the family separation is self-inflicted. However, many just cannot go back home for the same reasons which forced them once to flee. This is the case not only for those who have been granted asylum but also for those who are seeking such status and a great number of those who have temporary or subsidiary protection. Again, a positive and humane policy would give room for considering the real situation.
Requirements of self-support are used in some cases to refuse family reunification. Bars are put on sponsorship if the sponsor is receiving social assistance. This is a policy which also ignores the reality in many cases. As family unification is a human right, the poverty of the resident family member is no reason to prevent the application.
Official attitudes to quests for family reunification across borders have been strikingly negative. The response has often been marked by suspicion - as if applicants try to deceive the authorities and obtain undeserved favours. There have, of course, been cases where people have given wrong information in order to get entry, but it is a great mistake to allow such cases to influence the overall policy.
Significantly, DNA testing has been introduced in several countries as a key instrument to assist government decisions in spite of the resulting time loss. The purpose is to verify whether the applicant really is the child or the parent of the residing family member. This method excludes by definition any other relations, for instance adopted children, and is not adjusted to the real family pattern in cultures from where many refugees are coming to Europe.
The UN High Commissioner has also rightly warned that DNA testing can have serious implications for the right to privacy. Though voluntary testing can be accepted in certain circumstances in order to prevent fraud, this activity should be carefully regulated and the sharing of obtained data should be bound by the principle of confidentiality. When testing is considered necessary the costs should be born by the requesting authorities.
Some governments adopt even more restrictive rules as a response to public perception of foreigners as a danger. Very often, these measures are discriminatory. For example, in my follow-up Memorandum to the Danish authorities, I took issue with the requirement that a person must be a citizen in the country for 28 years before obtaining the right for his or her foreign partner to get a residence permit. This clearly discriminates against those who have not lived in the country since childhood. I was also concerned that the right to family reunification of children ends when the child turns 15. The fact that this rule violates the UN Convention on the Rights of the Child has only made the government declare that exceptions could be considered.
The administrative processing of applications is far from ‘expeditious’ in a number of countries. In fact, the tendency is that they are extremely slow and unnecessarily bureaucratic. Some countries require that applications are made at the embassies or consulates in the country of origin which is not always easy or even possible. In other cases documents and proven data are requested which can be very difficult for applicants to obtain from the authorities in their countries of origin. Requirements to provide evidentiary proof of relationship for the purpose of family reunification have therefore to be realistic.
Those who have seen the pain suffered by separated families realise what a mistake it is to deny the right to family unity - for the refugees, for the family members left behind and for the host country. Facilitating reunification helps to ensure the physical care, protection, emotional well-being and often also the economic self-sufficiency of the refugee communities.
1. See Article 16 of the Universal Declaration of Human Rights, Article 8 of the European Convention on Human Rights (this right emphasizes the importance of protecting the family circle, the social unit that nurtures most children to adulthood); Art 16 of the 1961 European Social Rights; Art. 17 and 23 of the International Covenant on Civil and Political Rights; Art 74 of Additional Protocol of 1977 to the Fourth Geneva Convention Relative to the Protection of Civilians in Times of War; Art. 9, 10 and 22 of the Convention on the Rights of the Child;and Article 9 of the Charter of Fundamental Rights of the European Union.
2.UNHCR Executive Committee’s Conclusions 1, 9, 24, 84, 85 and 88.
3. See Recommendation No. (99) 23 of the Committee of Ministers on family reunion for refugees and other persons in need of international protection and Recommendation Rec(2002)4 of the Committee of Ministers to member states on the legal status of persons admitted for family reunification