Parliamentary Assembly
Assembl�e parlementaire

Human mobility and the right to family reunion

Doc. 10179
6 May 2004

Opinion[1]
 Committee on Equal Opportunities for Women and Men
Rapporteur:  Mr Giuseppe Gaburro, Italy, Group of the European People’s Party

I.          Conclusions of the Committee:

1.         The Committee on Equal Opportunities for Women and Men supports the draft recommendation presented by the Committee on Migration, Refugees and Population. The Committee wishes, however, to propose four amendments to the draft recommendation with a view to strengthening it and making it reflect some key concerns as regards the rights and needs of women migrants and refugees.

II.         Proposed amendments to the draft recommendation:

Amendment A

In the draft recommendation, add the following words at the end of sub-paragraph 12.ii.:

“based on the recommendations set out in sub-paragraph 12 iii.;”.

Amendment B

In the draft recommendation, add the following words at the end of sub-paragraph 12.iii.d.:

“and, in particular, to avoid any discrimination against women migrants and refugees which could result from their imposition;”.

Amendment C

In the draft recommendation, add the following new sub-paragraph after sub-paragraph 12.iii.h.:

“not to return lawfully resident migrants and refugees to their countries of origin after they have served sentences for criminal behaviour, provided their main family ties are in the host country and not to reject applications for family reunion solely on the grounds that the applicant (be it the “sponsor” or the “sponsored”) has a criminal record;“

Amendment D

In the draft recommendation, add the following new sub-paragraph after sub-paragraph 12.iii.i.:

“to ensure that cases of abusive relationships within reunited families are detected and dealt with in a fair and humane manner, and that, in particular, women victims of domestic violence or forced marriage are not sent back to their countries of origin against their will;“.

III.        Explanatory memorandum by the Rapporteur, Mr Gaburro

1.         The right to family life is a fundamental human right, recognised and protected by international law (including the European Convention on Human Rights). The right to family reunion, while not itself a recognised human right, derives from the right to family life and is, in many cases, fundamental to its effective exercise. As such, the right to family reunion should be granted to all lawfully resident migrants and refugees, irrespective of their nationality and gender.  

2.         All member states of the Council of Europe should seek to ensure that the right to family reunion is granted to lawfully resident migrants and refugees on an equal footing with their nationals. Discrimination (for example, on the basis of European Union citizenship) is not acceptable in this sphere which touches the heart of European society – the family. Keeping families separated for more than 12 months (at the most) is an unacceptable hardship for all family members concerned and should be avoided at all costs. I thus strongly support paragraph 12.iii. e. of the draft recommendation, which seeks to harmonise waiting periods at European level, limiting them to a maximum of 12 months.

3.         It is interesting to note in this context that the “traditional” model of family reunion – a man who has left his country (either fleeing persecution or migrating in search of a better life), and who is subsequently reunited with his dependent wife and children in the host country – no longer applies in all cases. There are a growing number of women refugees, some persecuted because of their political activity, some fleeing serious threats to their physical and mental integrity (e.g. female genital mutilation or other gender-based violence). There are also a growing number of women migrating on their own, leaving their husbands and children behind to take up job opportunities overseas, for example as maids, nannies and care-givers (but also, let us be honest, as workers in the sex-industry).

4.         While the rights of women refugees to family reunion are apparently respected more or less to the same degree as those of their male counterparts, this is, unfortunately, not always the case for women migrants. The nature of their work in the host country often involves, for example, the obligation to “live in” (e.g. in the case of nannies and care-givers), so that there is often literally “no room” for a dependent family to come and join the woman migrant. In addition, many employers find it not in their interest to allow women migrants to reunite with their families (even if they “live out”), as they fear that caring for their own families would “distract” them from their employment duties. These problems are especially acute in the United States of America, which applies extremely restrictive standards for family reunion, but they also exist in Europe, in particular when states make family reunion applications subject to financial and housing-related conditions – thus indirectly discriminating against many women migrants. I would like to propose Amendment B to encourage states to avoid this type of (unintended) discrimination.    

5.         Even the “traditional” model of family reunion is not without its problems. Often, women being reunited with their “sponsor” husbands come from a culture different to that of the country in which they are to settle – cultures which often do not fully recognise women’s rights to equality of treatment. This can lead to problems in the host country: such women have often not received the same level of education as their husbands, may not speak the language of the host country, and thus find accessing the labour market and integrating into society difficult – especially if they are, in addition, not treated equally by their husbands and within their own community.

6.         Host countries should thus make a particular effort to integrate such women into economic life and society at large. All members of families being reunited should benefit of state-sponsored measures favouring their integration. In particular, host countries should:

7.         Polygamous marriages pose a particular problem with regard to family reunion. The Assembly already pointed out in Resolution 1293 (2002) on the situation of women in the Maghreb that the practices of repudiation and polygamy violate the principle of human dignity. Polygamous marriages cannot, thus, be recognised by Council of Europe member states. The Directive of the Council of the European Union of 2003 – quite rightly – stipulates that “where the sponsor already has a spouse living with him in the territory of a MemberState, the MemberState concerned shall not authorise the family reunification of a further spouse”. Nevertheless, it is a fact that the application of this provision (which, at the same time, authorises the reunion of under-age children with the polygamous father), can result in situations where a woman in the country of origin in a polygamous marriage (which she has not necessarily entered into of her own free will) has her children taken away from her and reunited with their father (and another wife) in a distant country, while she herself has to stay in the country of origin without husband, children or even a means to live – a clear violation of HER right to family life. 

8.         I think that the only way of solving this problem is to put pressure to bear on those countries which allow polygamous marriages to outlaw them. The same applies, incidentally, to the repugnant practice of repudiation (and any type of divorce which does not require the consent of the wife), which can impact dramatically on (monogamous) reunited families in host countries. As such wives often hold only secondary residence permits which depend on their relation with the “sponsor”, wives who find themselves repudiated or otherwise divorced without their consent may well find they no longer have the right to residence in the host country, and may even be deported. This could entail a violation of their right to family life, in particular if the couple’s children stay with the sponsor in the host country. I thus strongly support paragraph 12. iii. i. of the draft recommendation, which encourages states to issue autonomous residence permits to reunited family members to avoid such situations. But I also consider that pressure needs to be applied to those countries which allow repudiation or divorce without a party’s consent to outlaw these practices.

9.         In fact, the threat of “being sent home” in case of divorce or separation might even deter women in abusive relationships from reporting domestic violence to the authorities of the host country, or might discourage women in forced marriages to try and leave them. By withholding autonomous residence rights, states can thus become complicit in violence against women. For this reason, I would like to propose Amendment D, in order to encourage member states to ensure that cases of abusive relationships within reunited families are detected and dealt with in a fair and humane manner, and that, in particular, women victims of domestic violence or forced marriage are not sent back to their countries of origin against their will.

10.        Perpetrators of domestic violence or other crimes should not be sent back to their countries of origin either, if their main family ties are in the host country; nor should applications for family reunion be rejected simply on the grounds that the applicant (be it the “sponsor” or the “sponsored”) has a criminal record. Subjecting lawfully resident migrants and refugees to deportation after they have, for example, served a prison sentence, is tantamount to imposing a “double” punishment – in violation of their right to family life. I would thus like to propose Amendment C to ensure equal justice for all.   

11.        In conclusion, I would like to strongly support the draft recommendation tabled by Mrs Zapfl-Helbling on behalf of the Committee on Migration, Refugees and Population, and hope that it will be carried in the Assembly. I hope the Committee will accept the amendments I propose in order to further strengthen the text and make it reflect some key concerns as regards the rights and needs of women migrants and refugees who are all too often forgotten.

Reporting committee: Committee on Migration, Refugees and Population

Committee seized for opinion : Committee on equal opportunities for women and men

Reference to Committee: Doc. 9436, reference N� 2724 of 29 May 2002

Draft opinion unanimously adopted by the Committee on 27 April 2004

Secretaries of the Committee: Mrs Kleinsorge, Mrs Entzminger

[1] See Doc. 10123 tabled by the Committee on Migration, Refugees and Population.