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Family Unity: The New Geography of Family Life
By Kate Jastram
University of California at Berkeley
May 2003
When the most intimate and enduring of human relationships are lived across
international borders, states trying to manage migration flows must balance
border control concerns with their international obligations to respect and
support family life. While it is sometimes thought that state sovereignty over
borders is complete, non-citizens can in certain cases, depending on
immigration status and the nature of the relationship, claim the right to
family unity in their host states.
A "right to family unity" is not expressed as such in international
treaties. Rather, the term is shorthand for the sum of several interlocking
rights, discussed below. In the migration context, family unity covers issues
related to admission, stay, and expulsion. Family unity can also have a more
specific meaning relating to constraints on state discretion to separate an
existing intact family through the expulsion of one of its members. In
contrast, family reunification, or reunion, refers to the efforts of family
members already separated by forced or voluntary migration to regroup in a
country other than their country of origin, and so implicates state discretion
over admission. This article uses family unity in its broader meaning, unless
the more limited one is clearly implied.
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As the
fundamental unit of society, the family is entitled to
respect, protection, assistance, and support |
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The Right to Family Unity
A family's right to live together is protected by international human
rights and humanitarian law. There is universal consensus that, as the
fundamental unit of society, the family is entitled to respect, protection,
assistance, and support. A right to family unity is inherent in recognizing the
family as a group unit. The right to marry and found a family also includes
the right to maintain a family life together.
The right to a shared family life draws additional support from the
prohibition against arbitrary interference with the family. Finally, states
have recognized that children have a right to live with their parents. Both the
father and the mother, irrespective of their marital status, have common
responsibilities as parents and share the right and responsibility to
participate equally in the upbringing and development of their children.
The right to family unity is not limited to citizens living in their
own state. Cross-border family unity issues arise most frequently when a host
state either moves to deport a non-citizen family member, or denies entry to an
individual seeking to join family members already residing in the state. The
corollary problem, that of a state of origin denying exit permission to an
individual attempting reunification with family in another country, has become
a less salient issue with the end of the Cold War.
The right to family unity across borders intersects with the
prerogative of states to make decisions on the entry or stay of non-citizens.
These interests seem increasingly often to clash. Today's migratory movements
are fueled by the economic pressures and opportunities of globalization, the
prevalence of war and other human rights violations, and the existence of
kinship networks created by earlier migration. At the same time, many states
have been struggling to address real and perceived migration management
problems by enacting restrictive laws and increasing enforcement efforts, a
trend that has intensified now that national security considerations have come
to the forefront of the immigration debate.
The pressures can be enormous, both on policymakers trying to craft
orderly immigration procedures, and on families who find it hard to accept that
a border has come between them. The problems are widespread; forced and
voluntary migrants alike grapple with these issues. Because it is so common
for refugee families to be divided, the Office of the United Nations High
Commissioner for Refugees devotes much time and attention to refugee family
unity and reunification, for obvious humanitarian reasons and also because both
protection and solutions are immeasurably easier for intact families. The
United Nations Special Rapporteur on the Human Rights of Migrants, Gabriela
Rodriguez Pizarro, has emphasized the pervasive nature of the problem in
observing that families separated by migration "are becoming increasingly
common, and will become a defining characteristic of societies in many
countries in the twenty-first century."
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Family
reunification is increasingly understood as a positive means of promoting
integration and securing the rights of migrants |
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Equally defining will be the efforts of families to reunite through
migration, and the ways in which states will choose to respond. The rights on
which family unity is based are often qualified with provisions for the state
to limit the right under certain circumstances. It should be noted, however,
that the most important, and sometimes only, qualifier is the imperative to act
in the best interests of the child. The nature of the family relationship
shapes the right to family unity, with minor dependent children and their
parents having the strongest claim to remain together or to be reunited.
Maintaining the unity of an intact family poses different issues than
reconstituting a separated family. Finally, the immigration status of the
various family members has an impact on how the right to family unity should be
implemented.
Different Kinds of Families and the Right to Unity
There is not a single, internationally accepted definition of the
family, and international law recognizes a variety of forms. Some observers
have noted that in many countries, traditional family patterns characterized by
duties of care and concern for elders and members of the extended family are
giving way to a more "western" or "nuclear" model, and caution against
making outdated assumptions that favor these more distant relatives in
reunification schemes. Others have pointed out that families are also evolving
in more expansive ways, with the increasing acceptance of same-sex unions, and
the growing phenomenon of AIDS orphans resulting in child-headed households, as
just two examples. Given the variety of families, the existence of a family
tie is a question of fact, best determined on a case-by-case basis.
The right to family unity applies universally to all persons. The
question, then, is not whether various categories of persons have the right to
family unity, but rather which state(s) must act to ensure the right. A look
at the various categories of people who might claim a right to family unity
demonstrates some of the issues that can arise.
Nationals: The right to marry is not limited to persons of the
same nationality. However, for a citizen marrying a non-citizen, issues can
arise when arbitrary restrictions are imposed or significant delays are
encountered, or when female citizens have fewer rights than male citizens, for
example, in obtaining entry for their non-citizen spouses or in transmitting
citizenship to their children.
Migrants: Under the International Convention on the Protection
of the Rights of All Migrant Workers and Members of their Families, which is
under consideration in the United Nations General Assembly and is soon to come
into force, states shall "take measures they deem appropriate" to facilitate
reunification. The degree of discretion retained by states with respect to
migrant workers reflects an expectation that workers can return to their home
countries if they wish to rejoin family members, although this does not take
into account economic realities that keep most migrant workers firmly tied to
the host country. It is far more common for migrant workers to have, or wish
to have, their families join them. Although some states have been reluctant to
make generous provisions for family reunification, it is increasingly
understood as a positive means of promoting the integration and securing the
rights of migrants in their host societies.
Refugees: Refugees recognized under the 1951 Convention relating
to the Status of Refugees are usually in the most advantageous position of all
non-citizens with respect to family unity. Family unity in the refugee context
means granting refugee or a similar secure status to family members
accompanying a recognized refugee. The country of asylum must likewise provide
for family reunification, at least of close family members, since the refugee
cannot by definition return to the country of origin to enjoy reunification
there. The right to family unity applies equally in situations of mass influx,
whether managed under a temporary protection scheme or under international
agreement, such as the OAU Refugee Convention. UNHCR's Executive Committee has
specifically concluded that respect for family unity is a "minimum basic human
standard" in such situations and has called for family reunification for
persons benefiting from temporary protection. There is an emerging consensus
for the need for prompt reunification during periods of temporary protection.
Others in need of international protection: Those whose claims
under the 1951 Refugee Convention have been rejected after an individual
determination, but who have nevertheless been found to be in need of
international protection (under the Convention against Torture, for example) are
entitled to respect for their fundamental human rights, including the right to
family unity. The justification for refugee family reunification in a country
of asylum derives from the refugee not being able to return home, and not from
the Refugee Convention itself. Persons in an analogous situation of inability
to return home should benefit from the same application of the right in the
host country.
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States
should find it difficult to rely solely on their interest in immigration enforcement
to justify separating an intact family |
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Asylum seekers: Since asylum seekers are, by definition, people
whose legal status has not yet been determined, it may be difficult to
determine where they should enjoy the right to family reunification, or which
state bears responsibility for giving effect to that right. The length of
proceedings in many countries causes tremendous hardship, particularly when
children are apart from parents. There is a general recognition, at least in
principle, that separated children should benefit from expedited procedures,
but such measures do not even begin to address the right of children left in a
country of origin or in transit to family reunification; no state has adopted
expedited procedures for asylum-seeking parents separated from their children.
States are understandably not eager to process family reunification
applications for asylum seekers whose asylum applications they are having
difficulty processing. Given the scarcity of state resources, however, it
would be helpful to pursue possibilities for reuniting family members who are
seeking asylum in various countries, particularly if determination of the claim
has been pending, or is expected to take longer than, six months. The grouping
together of potentially related claims, witnesses, and evidence would be more
cost effective than parallel procedures in different jurisdictions, would
promote more consistent decision-making, and would hasten the provision of a
durable solution for the family.
Constraints on State Decisions to Expel and Admit Family Members
Expulsion
As a procedural matter, host states must consider the family interests
involved before expelling a non-citizen family member. As a substantive
matter, respect for the right to family unity requires balancing the state's
interest in deporting the family member with the family's interest in remaining
intact. The inquiry is focused whether the effects on the family of the
separation would be disproportionate to the state's objectives in removing the
individual. Considerations such as length of stay in the host country, age,
and the degree of the family's financial and emotional interdependence should
be weighed against the state's interests in promoting public safety and in
enforcing immigration laws. The best practice suggests that, particularly when
expulsion is threatened for immigration violations only, as opposed to criminal
law convictions, and citizen children will be affected, states should find it
difficult to rely solely on their interest in immigration enforcement to
justify separating an intact family.
In assessing family unity cases involving children, states must also
take into account the best interests of the child. States seeking to separate
families through deportation face significant constraints in the Convention on
the Rights of the Child (CRC), which requires in article 9 that states "shall
ensure that a child shall not be separated from his or her parents against
their will, except when...such separation is necessary for the best interests of
the child." (emphasis added)
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Children
and parents have equal status in a mutual right;
either may be entitled to join the other |
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There are both procedural and substantive aspects to the best interests
requirement. To ensure an adequate procedure, professional opinions regarding
the impact on the child must be taken into account where deportation will mean
the separation of a child from his or her parent. The substantive content of
the best interests principle is not explicitly defined in the CRC.
Nevertheless, certain elements emerge from other provisions of the Convention.
In the case of actions and decisions affecting an individual child, it is the
best interests of that individual child that must be taken into account. It is
in the child's best interests to enjoy the rights and freedoms set out in the
CRC, such as contact with both parents (in most circumstances). Best interests
must be determined on a case-by-case basis, taking into account the totality of
the circumstances. The views of the child shall be heard 'in any judicial and
administrative proceedings affecting the child' and be given due weight in
accordance with his or her age and maturity. It is certainly not always in the
best interests of the child to remain with parents, as recognized in CRC
article 9. However, it should be noted that the CRC does not recognize a
public interest to be weighed against the involuntary separation of the family.
The only exception allowed is when separation is necessary for the best
interests of the child.
Admission
Family reunification requires a state affirmatively to allow entry to a
person, as opposed to refraining from deporting someone, and thus is a right
more encumbered by state discretion. Nevertheless, states are bound by
international obligations toward the family in this context, as well.
These obligations are most pronounced in the CRC, but support can also
be found in other human rights treaties, in humanitarian law and in refugee
protection principles. In looking at the situation for minor children and
their parents, several elements of the CRC are important. First, the
obligation imposed to ensure the unity of families within the state also
determines the state's action regarding families divided by its borders.
Second, reunification may require a state to allow entry as well as departure.
Third, children and parents have equal status in a mutual right; either may be
entitled to join the other. Nor is it sufficient that the child be with only
one parent in an otherwise previously intact family; the child has the right to
be with both parents, and both parents have the right and responsibility to
raise the child.
While the CRC does not expressly mandate approval of every
reunification application, it clearly contemplates that there is at least a
presumption in favor of approval. States cannot maintain generally restrictive
laws or practices regarding the entry of aliens for reunification purposes
without violating the CRC. Nor can states fail to provide and promote a
procedure for reunification.
Conclusion
Globalization has expanded the realm in which families live and work,
and created a new geography of family life. Few migrants, even those who have
made the choice to travel and to do so alone, intend a permanent, or even
long-term, separation from their loved ones. Immigration policymakers will
increasingly be called upon to recognize the rights and realities of families
living across borders.
Kate Jastram is Acting Clinical Professor of Law at the International Human Rights Law Clinic, Boalt Hall School of Law, University of California, Berkeley. She is on a leave of absence from UNHCR; the opinions reflected in this article do not necessarily reflect the views of UNHCR.
Sources
Abram, E.F., 1995. "The Child's Right to Family Unity in International
Immigration Law" 17(4) Law and Policy.
Bhabha, J., 2001. "Minors or Aliens?" Inconsistent State Intervention
and Separated Child Asylum Seekers' 3 European Journal of Migration and Law.
Jastram, K. and Newland, K., 2003. "Family Unity and Refugee
Protection," in E. Feller, V. Turk, and F. Nicholson (eds.) Refugee Protection
in International Law: UNHCR's Global Consultations on International Protection,
Cambridge University Press.
Van Krieken, P.J., 2001. "Family Reunification" in The Migration
Acquis Handbook.
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