A restrictive refugee policy in European countries has undermined the principle that separated families should be allowed to reunify. Where refugees already reside in a country, governments try to limit the arrival of their close relatives. The result is unnecessary human suffering especially in those cases where dependent family members have been kept apart. This policy violates the right to family reunification stipulated in international human rights standards.
In a number of declarations, the world community has agreed that the family is the fundamental group unit in society. From this follows the right to family unity which in turn places certain obligations on state authorities. For refugees, this right is particularly crucial since they are often 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 normal social relationships and, as a consequence, they face even more difficulties in integrating into their new environment. Those left behind – often women and children – tend to be vulnerable emotionally, economically and often physically.
Though states must be able to retain their right to regulate and control the entry of non-nationals, there has been a progressive development in international law as regards the right to family reunification across borders. Nowadays, respect of the right to family life requires not only that states refrain from direct action which would split families, but also that measures be taken 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. The diplomatic conference stated in a final act that the unity of the family was an “essential right” and recommended that governments take the necessary measures to protect the refugee’s family especially to:
• ensure 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; and
• protect refugees who are minors, in particular unaccompanied children and girls with special reference to guardianship and adoption.
The Executive Committee of the UN High Commissioner for Refugees has since adopted several authoritative statements promoting family reunification as both a human right and as a humanitarian principle. The agency 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”.
In the Council of Europe, both the Committee of Ministers and the Parliamentary Assembly have used similar language to the UNHCR in several recommendations and resolutions. Notions of “family” and “family reunification” also enjoy protection under the European Convention on Human Rights and the European Social Charter.
The 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, in practice, government policies have not always been positive, humane and expeditious – either for children or for adults. A number of governments have chosen to interpret their obligations narrowly, and increasingly so. Several define “family” as including only parents and their immediate children. This ignores the obvious fact that the shape of the core family differs depending on different 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. Elsewhere, it is often grandparents, or other members of the extended family, who depend on younger family members. A positive and humane policy should consider the family pattern in each specific case.
Some governments argue that family unity could be achieved if the newcomers would go back to their family members in the country of origin: the implied message is that the family separation is self-inflicted. However, many cannot go back home for the very same reasons which forced them to flee. This inability to return applies not only to those granted asylum, but also to those seeking such status, and indeed to many of those with temporary or subsidiary protection. Again, a positive and humane policy would allow for individual cases to be considered on their own merits.
Other obstacles are frequently placed in the way of family reunification. For example, reunification is sometimes refused because of strict requirements imposed on individuals to be financially self-supporting, and those receiving social assistance are often barred from acting as sponsors. Yet this policy ignores the reality in many cases. It certainly ignores the fact that – as family unification is a human right – the poverty of the resident family member should not hinder an application.
Official attitudes to requests for family reunification across borders have been strikingly negative. The response has often been marked by suspicion – as if applicants want to deceive the authorities and to obtain undeserved favours. There have, of course, been cases where people have provided inaccurate information in order to secure entry for others, but it is a great mistake to allow such cases to dictate overall policy.
Significantly, DNA testing has been introduced in several countries as a key means of assisting government decision-making. The purpose is to verify whether the applicant really is either the child or the parent of the resident family member. By definition, this method excludes consideration being given to any other relations, for instance adopted children. Nor is this procedure adjusted to reflect the actual family pattern in those cultures from which many refugees fleeing to Europe come.
The UN High Commissioner for Refugees has also rightly warned that DNA testing can have serious implications for the right to privacy. Though voluntary testing can be acceptable in certain circumstances in order to prevent fraud, this should be carefully regulated, and the sharing of any data thus obtained should be bound by principles of confidentiality. When testing is considered necessary, the costs should be borne by the requesting authorities.
Some governments have adopted even more restrictive rules in response to the popular public perception that foreigners constitute a danger. Some years ago a decision was taken in Denmark that a person must be a citizen of the country for 28 years before obtaining the right for his or her foreign partner to secure a residence permit. This clearly discriminates against those who have not lived in the country since childhood. At that time the Danish Government also introduced a “points system” to the effect that less educated relatives would be further disadvantaged when seeking family reunification.
The administrative processing of applications is far from “expeditious” in many countries. In fact, the process is often both extremely slow and unnecessarily bureaucratic. Some countries require that applications be made at the embassies or consulates in the country of origin which is not always easy or even possible. In other cases, the authorities request documents or information offering hard proof of various facts which can be very difficult for applicants to obtain from the authorities in their countries of origin. Requirements to provide evidentiary proof of family relationships for the purpose of reunification have therefore to be realistic.
Those who have seen the pain suffered by separated families realise how much of a mistake it is to deny the right to family unity – for the refugees, for the family members left behind, and indeed for the host country. Facilitating family reunification helps to ensure the physical care, protection, emotional well-being and often also the economic self-sufficiency of refugee communities. This is in the interests of everyone.