Family Reunification Under International Law

Author: Giovanni Giudetti

Family reunification can be seen as “on the one hand, as a humanitarian or human rights issue, and, on the other hand, as an immigration matter which might place a strain on the labour market and social facilities, such as housing, education and medical facilities”[1].

The right to family unity constitutes an advantage for both the family unit as a whole and each of its components. Depending on the national legislation of each hosting country, the migrant applying for family reunion may be either granted their rights or be subject to prejudice.  At the same time this may directly affect the social fabric of the receiving country[2].

A natural distinction is made between the members of a family unit: a child asking to join his/her family certainly enjoys a privileged position in comparison with the spouse or any other family member. In accordance with the Convention on the Rights of the Child and  with due regard to European and national regulations, migrant children are to be provided with a number of guarantees of ensuring reunion with the applying family member and protecting the child against any prejudice arising out of their condition[3].

Minors, as well as many elderly people, are totally dependent on their guardians. This relationship cannot be simply cut at the discretion of the hosting country on the grounds of internal politics or economic necessities. It is exactly in these circumstances that the right to family reunification has to be considered inviolable and fundamental for the life of the person, as it represents a method to support the primary needs of the child as well as of those individuals who live with particular conditions due to their legal, economic and cultural status[4].

The lawmakers want to reduce inputs of migrants with the rules on family reunification. So it would be appropriate to better define the scope for implementation, through international regulation.

At the international level the means for the protection of human rights in relation to family reunification, can be distinguished into three groups. The first group consists of Conventions that establish a general protection of the family, but does not explicitly dictate any rules covering the reunion. These conventions have followed the footsteps of the Universal Declaration of Human Rights, Art. 16 par. 3 states: “the family is the natural and fundamental group unit of society” as a principle subsequently reiterated in Art. 23 of the International Covenant on Civil and Political Rights.

 

The second group, which is identified in the instruments of protection of human rights at the regional level[5], also promotes the European Convention on Human Rights. “The inviolable rights of the family”, as stated in Art. 8, “Everyone has the right to respect his/her family life” is realized as a compromise between the interests of the individual and those of society. The rules of the Convention on the Protection of the family are the source for the united obligations of both negative, both positive nature, as is clear from that case-law of the Court.[6]

Finally, reference must be made of the provisions contained in the Charter of Fundamental Rights of the European Union 2000: Art. 7 is inserted into a general rule that essentially follows the prior art cited 8 ECHR. The Charter is also states that “in all actions relating to children, whether taken by public authorities or private institutions, the child’s interest (at any stage of reunification and beyond) should be a primary consideration”. The European Council, on 22 September 2003 adopted the Directive 2003/86 on the right to family reunification.

This institute is recognized as the only means through which it can secure the right to family life for all non-European foreigners who have left the country of origin. The institute reunification helps to create sociocultural stability facilitating the integration of third-country nationals within the territory of the member states, promoting economic and social cohesion (objective of the EU). The Directive 2003/86 , which does not apply to family members of EU citizens, represents an important point of reference for a progressive harmonization of the laws of the member states relating to family reunification, carrying out a comparative analysis of the internal systems of States.

The Directive, although innovative, is not without its shortcomings and points for improvement[7], [for example when authorizing the reunification of the unmarried partner (art. 3, 4 ) or when it permits a State to specific conditions reunification with minor children, or when does not recognize the granting of special rights to foreign legal institutions such as the Islamic Kafalah and polygamy].

Italy implements the Directive in January 2007 with the Leg. Decree n.5 making changes, mostly regarding the beneficiaries of the law, Legislative Decree No. 286 of July 1998 (Immigration Act ), refer, to a more specific and careful analysis of the Consolidated Law [8].

The third group of international instruments is formed by certain conventions relating to specific categories of migrants, who impose on states the obligation not to allow family reunification, but only to facilitate it[9]. In these conventions there is no prediction as to whether or not foreigners have a right of entry for family reunification, but the protection of their interest, however, is enhanced as a result of the rights which they derive from the obligations imposed on the states.

In order to better balance the interest, the Human Rights Committee has defined the structure of the control of reasonableness to be applied the refusal by the state. The Committee took over as the subject of this evaluation the conflicting interests of the host community and the immigrant[10].

In fact there not should be a break between the state and subject migrant. The rights of all migrants are recognized by every civil state and civil society, and especially those that fall into the category of promoters of human rights, through the institutional bodies. Therefore each state must ensure that it respects the right to family reunification because the law is accepted from within the state. Which means it is then accepted as a right for social-cultural growth, for nations, and the host society.

However the right to family reunification will still be subject to the regulatory principles established by each Country on the basis of the political,[11] social, and cultural rights of the migrant worker and his family. The state cannot prevent the reunification in abstract line, in contravention with the principles of international human rights.[12] We just have to trust in a better action by the international community and bodies to achieve concrete changes affecting.

[1] BRINKMANN G., Family reunion, third country nationals and the community’s new power, in Implementing Amsterdam: Immigration and asylum rights in EC law, GUILD E., HARLOW C.(edited by), Oxford, 2001, p. 241 et seq.

[2] Compare BENVENUTI P., Flussi migratori e fruizione dei diritti fondamentali, 2008, L’Aquila, Il Sirente.

[3] Compare VERTOVEC S., Migrant transnationalism and modes of transformation, in International Migrant Review, 2004, no. 38, pp. 970-1001.

[4] Compare WALLACE R., International Human Rights: The Protection Afforded to Potentially Vulnerable Persons Under International Law,2001, Sweet & Maxwell, 2nd Edition.

[5] MOROZZO DELLA ROCCA P., Il diritto all’unità famigliare in Europa tra allargamento dei confini e restringimento dei diritti, in Diritto Immigrazione e cittadinanza, 2004, folder 1, pp. 321-356.

[6] For a review of the decisions of the European institutions in the field, cfr. GUILT E., The developing Immigration and Asylum policies of European Union, 2000, The Hague, London-Boston.

[7] Cfr. ZANFRINI L., “The Ethics of Migration. Reflection on recent migration policies an non policies in Italy and Europe”, in BAGGIO F. e ZANFRINI L. (edited by), Migration Management and Ethics. Envisioning a different approach, Polimetrica Milano, 2006.

[8] Cfr. ZORZELLA N., Modifica e restrizione del diritto all’unità famigliare nella nuova legge 189/2002, in Diritto Immigrazione e cittadinanza, 2002,  n.3, pp. 218-242.

[9] About specific categories compare KOSTAKOPOULOU T., Long-term resident third-country nationals in the European Union: normative expectations and institutional openings, in Journal of ethnic and migration studies, 2002, folder 28, n.3, pp. 278-295.

[10] Cfr. CARTA M., Immigrazione frontiere esterne e diritti umani. Profili internazionali, europei ed interni, 2009, Rome.

[11] Compare DIANGITUKWA F., Migrations internationales, codéveloppement et coopération décentralisée, 2008, Paris, Ed. Harmattan.

[12] CHETAIL V., Mondialisation, migration et droits de l’homme: le droit International en question, in collection de l’Académie de droit International humanitaire et des droits humaines à Gèneve, 2007, folder II, Bruxelles, Bruylant, p.16.

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