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Resolution 2243 (2018)
Family reunification of refugees and migrants in the Council of Europe member States
1. The Parliamentary Assembly is deeply
concerned about growing political discourse and action against foreigners,
which are a real threat to the protection of refugees and in particular
their family life. Families must not be torn apart and should not
be prevented from reuniting after an often dangerous and challenging departure
from their country of origin, where their fundamental rights to
safety and security were threatened.
2. Recalling that member States are committed to protecting the
right to family life under Article 8 of the European Convention
on Human Rights (ETS No. 5), the Assembly emphasises that this right
applies to everyone, including refugees and migrants. Member States
should provide for safe and regular means of family reunification,
thus reducing the recourse to smugglers and mitigating the risks
associated with irregular migration.
3. The Assembly points out that there is no common definition
of family with respect to the right to family reunification. While
member States may enjoy a broad margin of appreciation in matters
concerning morals and religion, family rights require a higher level
of protection under the European Convention on Human Rights. National
authorities should therefore adopt an enabling approach to family
reunification beyond the traditional definition of family which
does not necessarily correspond to the multitude of ways in which
people live together as a family today.
4. Children must not be discriminated against because their parents
are unmarried, divorced or remarried, because they live in “rainbow”
families or because they have been adopted by another person or
brought up by grandparents or siblings. National authorities should
pay particular attention to vulnerable persons, such as young children
and family members with special physical or mental needs, who have
a higher need for family reunification. Refugees must also be allowed
to demonstrate family links formed in exile or while fleeing.
5. People fleeing persecution or war have the right to international
protection, and their separated family members have the right to
the same protection in accordance with the 1951 United Nations Convention Relating
to the Status of Refugees. States should therefore ensure consistency
in granting refugee status to members of the same family and thereby
ensure that family life is protected, as required under Article
8 of the European Convention on Human Rights. Beneficiaries of international
protection should have access to information about family reunification
procedures, application forms and legal assistance in a language
they can understand. Member States should consider establishing
a revolving fund through bilateral agreements or national or European
schemes, in order to cover the family reunification costs of beneficiaries
of international protection who cannot afford it.
6. The Assembly notes with concern that national law often refuses
the delivery of visas to family members of individuals who have
not been granted refugee status but have been given subsidiary or
temporary protection on humanitarian grounds. The protection of
family life and the requirements of the best interest of the child
under Article 10 of the United Nations Convention on the Rights
of the Child necessitate, however, that such persons be able to
maintain their family unity or to reunite with family members. Such
subsidiary or temporary protection status must not be considered
as an “alternative refugee status” with fewer rights. States should
thus not substitute subsidiary or temporary protection status for
refugee status, in order to limit family reunification due to the
temporary and personal nature of this subsidiary status.
7. Regarding migrants, the Assembly emphasises that, in order
to respect the protection of their family life and the best interest
of the child, visa requirements for family members of migrants must
not be a de facto obstacle
to maintaining family unity. The Assembly particularly regrets that
some States have high financial requirements or long waiting periods
for migrants who wish to apply for visas for their family members.
Where States are members of the European Union, European Union legislation
on the freedom of movement of persons, including family members,
must also be respected.
8. Under Article 10.2 of the Convention on the Rights of the
Child, a child whose parents reside in different States shall have
the right to maintain, on a regular basis, personal relations and
direct contacts with both parents. The Assembly regrets that this
right is often disregarded in the case of refugees and migrants.
National authorities must duly protect this right by ensuring that
both parents of a child are identified and contacted and enjoy equal
rights to family reunification with their children. No parent must
be discriminated against and discriminatory foreign laws must not
be implemented by member States, if such laws grant more rights
to one parent, for instance on gender or religious grounds.
9. Regarding minors who apply for refugee status abroad, the
Assembly calls on national authorities to respect the Hague Convention
on the Civil Aspects of International Child Abduction, because abduction
can also refer to trafficked or smuggled minors or minors accompanied
by only one parent. As this convention applies to children up to
the age of 16, national authorities should have a distinct procedure
for refugees and migrants below this age. This convention must also
be respected where unaccompanied children are put under the guardianship
of other persons, in order to ensure the protection of the family
life of those children. Divorce proceedings should not be a hindrance
to family reunification, as family reunification must serve primarily
the best interests of the child.
10. The Assembly recalls that child refugees and minors have rights
under the revised European Social Charter (ETS No. 163), including
the right to financial and other support by the authorities of the
States in which they reside. Therefore, family reunification should
not be dependent on the financial situation of a parent who is a
migrant or refugee. In this context, the Assembly notes with concern
that children are sometimes left behind in another country for financial
reasons and the fact that, under European Union legislation and
national laws, child allowances are often paid irrespective of the
actual residence of children. In accordance with the European Social
Charter, responsibility rests with the national authorities where
a child resides.
11. The Assembly also underlines that migrant and refugee children
belong to the most vulnerable groups, especially those who are unaccompanied
and separated from their families. They frequently suffer persistent violations
of their human rights and fall through loopholes in child-protection
frameworks. One of the vital measures is for an effective guardian
to be appointed.
12. Family reunification is often hindered by the fact that the
whereabouts of family members are unknown. National authorities
must therefore ensure that all refugees and migrants are registered
upon arrival and that such data is shared with competent authorities
in other member States, in particular through the European Union’s
Schengen Visa Information System. This is crucial for unaccompanied
minors in order to trace and find their parents and other family
members. Without such data, family reunification might become a
matter of chance, which is in violation of the right to protection
of family life. In this context, the Assembly welcomes the long-standing
work of the International Committee of the Red Cross (ICRC) in tracing
missing family members and encourages greater co-operation between
the ICRC and national authorities.
13. Family reunification also requires the competent authorities
to set up adequate and functioning administrative procedures, including
by consular services abroad. Countries of origin must deliver or
reissue identification documents without delay and receiving countries
must issue Refugee Convention Travel Documents or migrant visas,
which allow the bearer to travel to family members and maintain
family unity also across borders, in accordance with the European
Agreement on the Abolition of Visas for Refugees (ETS No. 31) and,
where applicable, European Union legislation. Member States should
accept ICRC travel documents for family reunification purposes.
14. The Assembly calls on all member States to draw up and respect
common guidelines for the implementation of the right to family
reunification, in order to ensure that refugees and migrants are
not forced to go to those countries where family reunification is
easier. Hindrances to the protection of family life are not admissible
under Article 8 of the European Convention on Human Rights to deter
migrants or refugees and their family members.