Doc. 9195
10 September 2001

Right to family life for migrants and refugees

Report

Committee on Migration, Refugees and Demography

Rapporteur: Mrs Manuela Aguiar, Portugal, Group of the European People's Party

Summary

The right to family life is one of the basic human rights secured by international legal instruments, and in particular by Article 8 of the European Convention on Human Rights. The reconstitution of migrants’ and refugees’ families by means of family reunion is a humane solution in keeping with human rights principles and in the interest of social cohesion.

Some Council of Europe member states impose restrictive conditions on family reunion, which is a cause for concern. These are not harmonised between the states and no minimum standards have been defined. Governments have wide discretion and often examine applications for family reunion on a case-by-case basis using different and often restrictive definitions of the family.

The present report combines two subjects: reunion of migrants’ and refugees’ families and forced separation of families in the event of the repatriation of illegal immigrants or rejected asylum seekers. It recommends the introduction of legal guarantees to safeguard the right to family reunion and protect individuals from arbitrary acts and decisions on the part of the public authorities, as well as the harmonisation of regulations at the European level according to the highest standards. It refers to the position taken by the Assembly on the concept of “family” and eligibility for family reunion on previous occasions.

I.       Draft recommendation

1. The Parliamentary Assembly recalls that the right to family life is one of the basic rights secured by international legal instruments, and in particular by Article 8 of the European Convention on Human Rights.

2. The reconstitution of families of legally established immigrants and refugees as defined by 1951 Geneva Convention relating to the status of refugees, by means of family reunion as well as the prevention of the forced separation of families are important elements of any policy of integration in the host society, and serve the interest of social cohesion.

3. The Assembly is concerned by the fact that the regulations governing family reunion in Council of Europe member states are not harmonised at the European level and do not include minimum standards, thus giving wide discretion to the national authorities.

4. Even the notion of "family" underlying the family reunion concept has not been defined at the European level and differs between Council of Europe member states. The Assembly recalls its own interpretation of the concept of family as including de facto family members (natural family)(Recommendation 1327(1997). The Assembly also welcomes the European Commission’s broad interpretation of the concept of family in its recent proposal for a Council Directive on minimum standards for giving temporary protection.

5. Furthermore, the Assembly notes with concern that the policies and procedures applied in some member states impose restrictive conditions on family reunion. Applications are often examined on a case by case basis using different and frequently restrictive definitions of the family.

6. Moreover, incoherent and unjustifiably lengthy procedures, in particular combined with the lack of transparency resulting from the large number of applicable decrees and circulars, may cause undue hardship to those concerned.

7. The Assembly notes with particular concern that the rules governing family reunion have tended to be modified along with changes of government or political philosophy.

8. The Assembly regrets that despite its efforts to secure the right to family reunion for persons who have been granted temporary protection, this right has not been widely established. In this context the Assembly particularly welcomes the European Commission’s proposal for a Council Directive providing for the right to family reunion for persons enjoying temporary protection.

9. The Assembly is alarmed by the extremely restrictive standards underlying the regulations governing family reunion in the United States of America.

10. The Assembly reiterates its earlier position on different aspects of family reunion, concerning in particular the concept of family and eligibility as defined in Recommendation 1082 (1988) on the right of permanent residence for migrants workers and members of their families, Recommendation 1261 (1995) on the situation of immigrant women in Europe, Recommendation 1327 (1997) on the protection and reinforcement of the human rights of refugees and asylum-seekers in Europe, and Recommendation 1348 (1997) on the temporary protection of persons forced to flee their country.

11. The Assembly recommends that the Committee of Ministers:

i. step up the monitoring of member states' compliance with international legal instruments with reference to family reunion, and in particular with the European Convention on Human Rights and with the relevant recommendations of the Committee of Ministers;

ii. instruct its appropriate steering committee to intensify exchanges of views and information on family reunion with a view to bringing the policies of the member states into line on the basis of the highest common denominator, and keeping in mind that a positive and generous attitude to the problem would be in accordance with the fundamental values of the Council of Europe;

iii. urge the member states to:

a. fully implement Resolution (78) 33 of the Committee of Ministers of the Council of Europe on the reunion of families of migrant workers in Council of Europe member states and Recommendation No. R (99) 23 on family reunion for refugees and other persons in need of international protection;

b. devise a clear legal framework for family reunion taking into account the human rights of refugees and migrants and in accordance with UNHCR's recommendations and guidelines as defined in the Handbook on procedures and criteria for determining refugee status;

c. apply a broad interpretation of the concept of "family" and in particular include in the definition the members of the natural family and dependent relatives;

d. provide for the right to family reunion for persons enjoying temporary protection;

e. impose fewer conditions with regard to financial guarantees and housing as a requirement to be met by applicants;

f. not use the absence of some required documents such as marriage certificates as grounds for refusing applications by refugees, who have left their country in dramatic circumstances;

g. facilitate administrative procedures, keeping them as simple and transparent as possible, and reducing any waiting period to a maximum of 12 months;

h. examine applications in a positive and humane spirit without unnecessary delays and applying special assistance measures to refugees in view of their economic difficulties;

i. allow, in justified cases, for the possibility of family reunion already at the stage of the refugee status determination procedure, which may last a very long time;

j. reserve special support for all vulnerable groups;

k. not return illegal immigrants or rejected asylum seekers if their family unity would be endangered as a result, and seek rather to solve the problem by legalising their situation on humanitarian grounds;

l. grant such legal status to reunited family members as would allow them to fully integrate within the host society;

m. introduce special programmes for the integration of families which have been reunited;

n. keep statistics on the number of persons admitted or refused admission to the country on grounds of family reunion.

II.       Explanatory memorandum by Mrs Aguiar

1.       Introduction

1.       The right to family life is one of the basic rights secured by international legal instruments. Over the past few decades, economic migration and the flow of refugees and asylum-seekers to Europe and the return of illegal immigrants to their countries of origin have given rise to the problem of the forced separation of families. The reconstitution of families by means of family reunion is a humane solution in keeping with human rights principles and in the interests of social cohesion. However, the procedures employed in some European states, imposing restrictive conditions on family reunion, might be a cause for concern.

2.       The term "family reunion" is normally used to describe the situation in which a family comes to join one of its members living on a temporary or permanent basis in a foreign country. Family reunion is an important element in the application of the right to family life although it is not in itself universally recognised as a fundamental right. It concerns foreign nationals in a variety of situations and is not necessarily applied by all states to all categories of possible beneficiaries, such as couples of different nationalities, migrant workers, refugees, asylum-seekers whose application has been rejected but who have been granted a humanitarian or other status, persons under temporary protection, unaccompanied minors, etc1. In the past family reunion was thought to concern mainly women; however, estimates now show that the number of women refugees and women economic migrants is steadily rising.

3.       Family reunion must be analysed within the context of both migratory flows and European migration and asylum policies. There have been several waves of migration in Western Europe since the last world war. They were followed by the reunion of migrant workers' families, a phenomenon which was the direct consequence of the exclusively male labour migration between 1960 and 1970 to countries with sustained economic growth. Family reunion was at that time encouraged by both employers and the host countries. After 1974 the economic crisis brought labour migration to a halt. There is currently an economic revival in Europe while the working population is decreasing; some demographers forecast a shortage of labour and the resumption of labour migration towards 2010.

4.       The countries of Western Europe have also taken in refugees and their families on ideological and humanitarian grounds, in accordance with the 1951 Geneva Convention on the Status of Refugees and its 1967 Protocol.

5.       During the nineteen-nineties, Europe became the focus of extremely complex migration flows, which took on new forms and established a new migration context. As a result of fundamental changes in Europe, there was a spectacular rise in applications for asylum in Western Europe: in 1992 the number reached a record level of 700 000. Illegal immigration became a major concern for European governments and the difficult economic context exacerbated certain xenophobic trends.

6.       This situation encouraged European countries to reconsider their immigration policies and impose tighter restrictions. As labour migration is extremely limited, refugee status and family reunion are now the main legal ways of settling in a European country. It is, however, becoming increasingly difficult to obtain refugee status, within the meaning of the 1951 Geneva Convention, to the extent that some critics are even talking of a crisis in the very institution of asylum. In this connection, it is worthwhile referring to the recent report of the Committee on Migration, Refugees and Demography on restrictions on asylum in the member States of the Council of Europe and the European Union (Rapporteur: Mr Boriss Cilevičs).

7.       Family reunion is also subject to restrictions because the authorities presume that most applications for family reunion are made for economic reasons. Family reunion is also one of the main stages in the transition from temporary to permanent migration, which states are seeking to reduce. Indeed, in some cases the family reunion concept has been misused by migrants. For example in certain countries there is a big trade in marriages of convenience. In order to combat abuse of the possibility of family reunion, governments often impose strict conditions and introduce complicated and lengthy administrative procedures.

8.       The regulations governing family reunion in Council of Europe member states are not harmonised and do not include minimum standards. There are both differences and similarities in the various countries (see below). Governments have wide discretion and often examine applications for family reunion on a case-by-case basis using different and often restrictive definitions of the family.

9.       There have been cases where the European Court of Human Rights found that the expulsion of foreign nationals constituted a violation of Article 8 of the European Convention of Human Rights which guarantees everyone the right to respect for his private and family life. Council of Europe member states should not return illegal immigrants or unsuccessful asylum seekers if their return threatens their family unity.

10.       It is worth mentioning that in the United States of America which enjoys observer status in the Council of Europe, no family reunion comparable with European standards exists. In consequence, numerous migrants and refugees including a great number of refugees from former Yugoslavia cannot be reunited with their families.

11.       There are several legal and social aspects to family reunion; it should therefore be studied from the standpoint of the individual, the family and society. The purpose of this report is to draw attention to the problem and give an overview of member states' polices and procedures so as to evaluate the extent of family reunion and the impact of restrictive tendencies.

12.       The present report combines two subjects: reunion of migrants' and refugees' families and forced separation of families in the event of the repatriation of illegal immigrants or rejected asylum seekers. In the rapporteur's opinion, they constitute different aspects of the principal issue: the right to family life guaranteed by many international instruments, and in particular by the European Convention on Human Rights. The report is based on the conclusions of the hearing on the subject held by the Committee on Migration, Refugees and Demography on 21 May 1999, as well as the information provided by the relevant national authorities and the international organisations active in this field.

13.       The Parliamentary Assembly on a few occasions has taken a clear position on some aspects of the subject of the present report. In particular it has reached a consensus on a definition of a concept of family as “ including de facto family members (natural family), for example asylum seeker’s concubine or natural children as well as elderly, infirm or otherwise dependent relations” (Recommendation 1327(1997). Furthermore, the Assembly has agreed that persons under temporary protection schemes should be eligible for family reunion (Recommendation 1348(1997).

2.       Statistics concerning family reunion

14.       It is sometimes difficult to obtain precise information on migratory movements on account of the difficulty of harmonising definitions. Several Council of Europe member states claim that they do not have any separate statistics for persons admitted to the country to join their family. The available data is sometimes contradictory.

15.       There is no doubt that the number of immigrants admitted on grounds of family reunion in Council of Europe member states differs considerably from one country to the next. In some countries a few dozen applications and residence permits are issued every year on grounds of family reunion - in other countries there are tens and sometimes hundreds of thousands of applications. At 1 January 1999 there were over 230 000 immigrants in Italy with valid residence permits obtained on grounds of family reunion, 30 000 of which were issued in 1998, and there were 150 000 foreign minors in Italy for the purpose of family reunion. 22 000 immigrants were admitted to Sweden on these grounds, 22 400 to Switzerland and 10 320 to Austria; these figures represent 81%, 31% and 50% respectively of total annual immigration to these countries. 44 000 applications for family reunion were submitted in Germany in 1997.

16.       In another group of European countries numbers are lower. The available figures concerning the number of immigrants reunited with their families in 1997 are: Norway - 7117; Belgium - 4000; Denmark - 2025 (3400 applications are still being processed and 8484 were granted between 1991 and 1995); France 1793; Latvia - 1200; Finland - 464 admissions and 947 applications, 52% of which were successful; and Ireland - 380 (1991-1997). In a third group of Council of Europe member countries there are only about a dozen applications per year: Iceland, the Czech Republic, Bulgaria and Hungary.

3.       The legal basis for family reunion

17.       Family reunion is based on the principle of family unity. Most international human rights instruments contain provisions for the protection of the family without expressly mentioning family reunion. The 1948 Universal Declaration of Human Rights states that "The family is the natural and fundamental group unit of society and is entitled to protection by society and the State." (Article 16 para.3). The same provision is to be found in the United Nations International Covenant on Civil and Political Rights, 1966, (Article 23 para. 1). The European Convention on Human Rights (ECHR) guarantees everyone the right to respect for his private and family life (Article 8); certain texts of the International Labour Organisation focus on preserving the unity of migrant workers' families (Recommendations No 86 and 151).

18.       However, some texts, including those drawn up by the Council of Europe, do recognise the right to family reunion, in particular the 1961 European Social Charter (Article 19), the 1996 revised European Social Charter and the 1977 European Convention on the Legal Status of Migrant Workers (Article 12). These rights are also echoed in the provisions of the 1989 International Convention on the Rights of the Child, which establishes the right of children not to be separated from their families and to family reunification, the Convention on Migrant Workers (ILO) and the 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (Part IV).

19.       The 1951 Geneva Convention Relating to the Status of Refugees and its 1967 Protocol do not include the principle of family unity and do not mention family reunion whereas they do deal with questions such as employment and education. Whether or not a refugee family can be reunited is therefore determined mainly by national asylum and immigration policies and admission criteria, which may or may not take account of the UNHCR's recommendations and guidelines.

20.       The Final Act of the United Nations Conference of Plenipotentiaries, which adopted the 1951 Convention, recommends that governments preserve the unity of refugees' families. This principle is also stated in the Handbook on procedures and criteria for determining refugee status prepared by the United Nations High Commissioner for Refugees (UNHCR) for governments; the Handbook is not binding but is a useful reference.

21.       The UNHCR has been untiring in its efforts to promote the preservation of the family unit and the reunification of refugees' families. It assists family reunification in two ways:

–        by providing direct, practical assistance to refugees in tracing their families;

–        by defending the concept of family reunion, without applying criteria which are too rigid and too general: the UNHRC encourages states to apply a broad interpretation of the concept of "family" and recommends that they impose fewer conditions with regard to financial guarantees and housing. The members of the family of a refugee, within the meaning of the 1951 Convention, are usually granted the same status, provided this is not inconsistent with their personal legal status.

22.       In several of its Conclusions, the Executive Committee of the UNHCR Programme (EXCOM) upholds the importance of the principle of family unity, expresses its concern at subsisting problems and urges states to facilitate family reunion by examining applications in a positive and humane spirit, without unnecessary delays and with special assistance measures in view of the economic difficulties of refugees: Conclusions No.9 (XXVIII)-1977, No.15 (XXX)-1979, No.22 (XXXII)-1981 and No.24 (XXXII)-1981.

23.       Several of the EXCOM Conclusions concern the specific problems of women refugees: No.64 (XLI)-1990; No.60 (XL)-1989; No.54 (XXXIX)-1988; No.39 (XXXVI)-1985; and the problems of child refugees: No.59 (XL)-1989 and No. 47 (XXXVIII)-1987. The problems of family reunion, and of refugee women and children are also mentioned in Conclusion No. 85 (XLIX)-1998, and in several other conclusions concerning the international protection of refugees. EXCOM encourages states to devise a legal framework for family reunion which takes account of the human rights of refugees and their families.

24.       Family reunion is mentioned in some of the texts of the Conference on Security and Cooperation in Europe (CSCE). In the Helsinki Final Act, 1975, the provision concerning reunification of migrant workers with their families, included in the Second Basket, has very little impact, but the provisions concerning family reunification under column b of the Third Basket, concerning contacts on the basis of family ties, constitutes a definite political commitment. The participating States undertake to deal with applications for family reunion in a positive spirit and "to examine them favourably". The same ideas are reiterated in the final documents of the follow-up meetings in Madrid, 1983, and Vienna, 1989, as well as in the 1991 Paris Charter. These texts have prompted states to be more flexible but this is only a sensitive aspect of a policy designed to facilitate freedom of movement between Eastern and Western Europe. One might therefore wonder whether the restrictions on the freedom of movement currently imposed by the very same countries are justified.

25.       Prior to the entry into force of the Treaty of Amsterdam on 1 May 1999, immigration and asylum policies in EU member states formed part of intergovernmental co-operation; they are now gradually coming within the purview of the Community. Family reunion and asylum - the main two legal means of entry to the European Union - were among the first EU policies to be harmonised. For example, in June 1993 the ministers responsible for immigration adopted a resolution designed to restrict the family reunion of non-Community nationals, ignoring recommendations by the European Commission and the European Parliament that the exercise of this right should be made more flexible and that it be more widely applied2. Family reunion is one of the elements of a European Commission proposal for joint action concerning temporary protection of displaced persons, COM (1998) 372, Article 7. Reference should also be made to Articles 35 and 36 of the 1990 Schengen Agreement and Article 4 of the 1990 Dublin Convention on the determination of the state responsible for examining applications for asylum.

4.       Texts drafted by the Council of Europe

4.1       European Social Charter and the revised European Social Charter

26.       Under Articles 18 and 19 of the European Social Charter, the counterpart of the European Convention on Human Rights in the social and employment field, Contracting Parties must undertake to provide minimum guarantees for migrant workers and their families. The right to family reunion is provided for under Article 19 para. 6: States undertake "to facilitate as far as possible the reunion of the family of a foreign worker permitted to establish himself in the territory". The appendix to this article defines the family as "understood to mean at least his wife and dependent children under the age of 21 years".

27.       The revised Social Charter introduces important changes to the concept of family: the first change is that the word "wife" has been replaced by "spouse", thus extending the scope of family reunion. On the other hand, the second amendment concerning children introduces a restriction: for the purposes of family reunion, children must be unmarried; the age limit of 21 has also been altered and children must now be considered minors by the receiving state.

28.       The application of the Charter has made a substantial contribution to family reunion. In this connection the Committee of Independent Experts responsible for the initial supervision of the application of the Charter has substantial case law concerning mainly two points: the determination of the family members eligible for family reunion and the various conditions and restrictions.

29.       Over several supervision cycles the Committee concluded that the age limit for children set by states was at variance with the requirements of the Charter and some governments gradually relaxed their regulations in this respect (Norway, Austria and Sweden). With regard to dependent family members, the Committee was pleased to note that, for purposes of family reunion, some states admitted dependent persons from not only the immediate family but also the extended family (Norway and Spain).

30.       The Committee criticised several existing restrictions, pointing out, that in order to meet the requirements of the Charter, states needed to introduce special measures to help foreign workers. Applications were refused according to the category of worker (Conclusions I-IX, United Kingdom), on grounds of health (Austria, Ireland, Cyprus, the Netherlands and Greece), length of residence and marriage (Germany), financial resources and housing (France, Italy, Belgium, Finland, Portugal and Turkey), etc. The case law shows that states are often obliged to take account of the Charter's supervisory machinery.

31.       The Committee has stressed that the aim of paragraph 6 is to oblige states to create the conditions which make family reunion possible and easier, as "separation of members of a family, contrary to the requirements of the Charter gives rise to serious personal distress as well as social disorders" (Conclusions XIII-2). It asked governments to ensure that administrative delays and complications did not impede family reunion.

32.       In its Opinion 156 on the eleventh supervision cycle, the Parliamentary Assembly called on Contracting Parties to eliminate all direct and indirect obstacles to family reunion and to extend this basic right to all foreign nationals lawfully resident in their territory. This recommendation can only be reiterated.

4.2       European Convention on the Legal Status of Migrant Workers

33.       The right to family reunion is provided for under Article 12 of the Convention on the Legal Status of Migrant Workers. Only the members of the immediate family, i.e. the spouse and unmarried children, considered minors under the relevant law of the receiving state and dependent on the migrant worker, are eligible for family reunion (Article 12 para. 1).

34.       The migrant worker is also obliged to have available for the family housing considered as normal; the requirement of steady resources sufficient to meet the needs of his family is, however, optional and the Contracting Parties must address a declaration that they wish to avail themselves of this possibility of derogation to the Secretary General of the Council of Europe.

35.       The Convention gives states the freedom to temporarily refuse to authorise family reunion. The declaration must state the special reasons justifying the derogation. However, the Convention obliges states to ensure that applications are processed within 12 months.

5.       National policies and procedures in Council of Europe member states

36.       Although there is a wide range of family reunion policies and procedures in Council of Europe member states, there are some common features. Family reunion is usually governed by provisions concerning the admission and residence of foreign nationals, immigration, refugees, the right of asylum and by a large number of decrees, circulars, etc, which sometimes means there is little transparency. It must also be said that legislation in this field, and legislation on immigration as a whole, is often redrafted when there is a change of government or of political philosophy.

5.1       Categories of persons eligible for family reunion

37.       Almost all Council of Europe member states grant the right to family reunion to refugees recognised as such under the 1951 Convention, even if the concept of family reunion has not yet been legally established (e.g. in Poland). However, the relevant procedure cannot be initiated until the asylum seeker has secured refugee status, which may take years. According to the HCR, the average time taken to process an application for asylum is three years. Meanwhile the family is separated, with all the negative repercussions pertaining to this state of affairs. Under the Schengen Agreement, members of a family who arrive in different receiving countries are obliged to remain separated until their applications for refugee status have been examined. Few countries allow asylum seekers to send for their families before their application has been processed and in some countries applications are examined on a case-by-case basis (e.g. Iceland and Belgium).

38.       Despite the efforts of the UNHCR and the Parliamentary Assembly to secure the right to family union for persons who have been granted temporary protection, this right has not been widely established. Such persons are eligible for family reunion in some receiving countries (Austria, Belgium, Sweden, Switzerland, etc) but not in others (France, the Netherlands, Hungary and Bulgaria). Sometimes the decisions are taken on an ad hoc, case-by-case basis (Denmark and the Czech Republic) or there is no such status as temporary protection (Latvia, the "Former Yugoslav Republic of Macedonia" and the United Kingdom). An EU proposal for joint action provides for the right to family reunion for persons who have been granted temporary protection.

39.       Asylum seekers, whose application for refugee status has been refused but who have been granted a residence permit on humanitarian grounds, by way of exception, or in some other guise, are entitled to family reunion in most countries (except Bulgaria, Hungary and Estonia), or decisions are taken on a case-by-case basis, according to the person's circumstances (Denmark and France).

5.2       The concept of "the family" for the purposes of family reunion

40.       As a rule the applicant's immediate family are eligible for family reunion. The meaning of "family" varies from one state to the next but generally includes the spouse and unmarried dependent children under the age of majority. This was the position taken by the European Union in the Schengen and Dublin Conventions. There are, however, many questions which remain unanswered, e.g. what about the children of only one member of the couple, elderly parents or grandparents, under-age brothers and sisters, orphans, etc.? All of these questions have to be settled by national legislation.

41.       In the proposal for a Council Directive on minimum standards for giving temporary protection, the European Commission proposes to consider as family “the spouse or unmarried partner, the children and, subject to certain conditions, other family members”.

42.       The UNHCR recommends that the concept of family be more widely interpreted so as to include members of the natural family and dependent relatives, and even members of polygamous families.

43.       During discussion in the Committee on Migration, Refugees and Demography, the question of polygamous families was looked at more closely. This complicated problem resulting from the differences in cultures and traditions should be given more attention by the national authorities and international organisations. We can imagine a situation in which the children of an ineligible spouse are reunited with their father at the same time being separated from their mother. And what about this woman, often totally dependent on her husband and left without the means to live?

44.       And what about the common law spouse or partner with whom the applicant has been cohabiting? This question is particularly relevant given that cohabitation is now widespread in Europe. Most countries require couples to be legally married and do not admit partners, whether heterosexual or homosexual. Some countries, i.e. mainly the Nordic countries, have more liberal legislation in this respect and authorise family reunion between partners: Denmark (provided partners have lived together for at least 1 1/2 years), Sweden (2 years), the Netherlands, Switzerland and the United Kingdom (4 years of a relationship similar to marriage). Some countries take the decision on a case-by-case basis (e.g. Belgium and Iceland).

45.       It is surprising that most European countries, except Sweden, Iceland and Norway, do not allow dependent children who are no longer minors to be reunited with their families. In the Netherlands, Latvia and Romania the decision is taken on a case-by-case basis, according to humanitarian considerations. For example, imagine the situation of a financially dependent 19 year old who has been separated from his/her family. The same applies to dependent parents or grandparents; they are only admitted by some countries on a case-by-case basis (Denmark, for example, accepts parents over 60 years of age but under a recent law the application of this provision has been limited to Danish and Nordic nationals and to refugees). Brothers and sisters are not admitted either, except by some countries on exceptional humanitarian grounds (France, the Netherlands, Latvia, Norway, Iceland and Ireland (refugees only).

46.       The question of whether the procedure of family reunion is applicable to members of the family of a minor who has been granted refugee status is left to the discretion of the various governments, which apply different criteria: some admit the parents, others do not. Sometimes applications are processed on a case-by-case basis. The United Kingdom, for example, considers that if the parents of an unaccompanied minor are in another receiving country the child should be sent there.

47.       Given the personal and social problems caused by the separation of families, it would be preferable if Council of Europe member states applied a broad and generous interpretation in deciding which family members are eligible for family reunion.

5.3       Family reunion procedures

48.       In some receiving countries applications may be made by the applicant in the country itself (e.g. Czech Republic and Estonia) or lodged with diplomatic representations in other countries (Denmark, Sweden and the United Kingdom) or, as in most cases, both possibilities exist. The alternative chosen should be the safest one for the families still residing in the country of origin.

49.       As a rule, applications are lodged with the national office responsible for asylum and immigration. This office may be answerable to the Ministry of the Interior, the Ministry of Justice, the Ministry of Foreign Affairs or directly to the Council of Ministers. The same office usually both takes the decision and issues the authorisation, though this may be the responsibility of a higher authority.

50.       In most countries, the refusal to authorise family reunion may be challenged before an independent body. The time it takes to complete these procedures can make subsequent family reunion impossible, as one of the family members may have died or the children may no longer be minors. Sometimes the departure of the persons concerned has to be authorised by the country of origin and this may also take several months. Administrative procedures and the need to meet all the conditions for family reunion can absorb large amounts of time, money and emotional energy.

51.       In most countries the UNHCR does not participate directly in the procedure of family reunion, which is the sole jurisdiction of the national authorities concerned. However, the latter may consult the UNHCR and ask for its opinion and assistance.

5.4       Conditions set by national authorities

52.       Governments expect applicants for family reunion to meet increasingly demanding requirements. Different categories of applicants are sometimes treated differently and applications from refugees generally have greater chances of success. Family reunion is often made conditional on the head of the family achieving financial self-sufficiency and securing adequate accommodation for his family. It is not always easy for refugees to satisfy these conditions in view of their difficult circumstances. Foreign nationals are not always entitled to welfare assistance and benefits such as housing.

53.       In some countries, applicants for family reunion must have lawfully resided in the country for a specified number of years; the residence requirement may be 1 year (France), 3 years (Denmark), 4 years (the United Kingdom) or even 5 years (Greece). Is it really reasonable and humane to separate families for such a long time?

54.       Some states impose further conditions: the members of the family must not have entered the country before family reunion is authorised and all the family members concerned must enter the country at the same time and not separately. If the family cannot provide documentary proof of marriage and relationship by descent, their application may be refused. It is sometimes difficult for refugees who have left their country of origin in dramatic circumstances to produce all the documents required. The UNHCR and the Committee of Ministers3 have recommended that the absence of such documents should not be grounds for refusing their application.

5.5       Reasons for refusing to authorise family reunion

55.       Failure to meet one single requirement can constitute grounds for refusal. Under the 1951 Convention and the procedures applied by states, refugee status may be refused to a member of the family who falls into one of several specified categories4. On the other hand, if the family unit is broken up by divorce, separation or death, the family members keep the acquired status, unless they cease to be considered refugees under the specific clauses of the Convention5.

56.       National security, public order and public health may be cited as reasons for refusing applications. In some countries applications may be refused if there is reason to believe that the sole purpose of marriage is to obtain a residence permit. The constitutional nature of this provision is disputed.

57.       States are finding it increasingly difficult to balance the need to prevent abuse of the institution of family reunion (marriages of convenience, applications without identity papers, etc) and the danger of gradually eroding rights relating to family reunion. This is not an easy task but the requirements that applicants have to meet should always be reasonable and humane.

58.       Once the family has been reunited, the residence permit issued to family members is usually the same as that already issued to the applicant. Newcomers are also entitled to a number of social rights - work, education, social security and medical care. These rights and benefits vary from one country to the next, as do the categories of beneficiaries. Very often the benefits are lower than those granted to nationals despite the equal treatment provisions set out in international instruments.

59.       The grounds on which a person admitted to a country for the purpose of family reunion can be deported are the same as apply to all foreign nationals - serious threat to national security and public order, the conditions for exclusion set out in the 1951 Convention, making false statements during the admission procedure, crimes, terrorism, etc.

6.       Council of Europe activities

6.1       The Committee of Ministers

60.       The Committee of Ministers of the Council of Europe has adopted two texts concerning family reunion: Resolution (78) 33 on the reunion of families of migrant workers in Council of Europe member states and the recent Recommendation No. R (99) 23 on family reunion for refugees and other persons in need of international protection (15.12.1999). In its 1978 Resolution, the Committee of Ministers recommended that member states recognise family union in their domestic legislation, keep the administrative procedures as simple as possible, reduce waiting periods to 12 months and limit admission conditions to housing regarded as normal and adequate resources to provide for the family's needs.

61.       The aim of Recommendation No. (99) 23 is to preserve and defend the principle of family unity while fully respecting the fundamental human rights and dignity of refugees. It stresses that states should promote family reunion through appropriate measures. Applications should be dealt with in a positive, humane and expeditious manner, giving special attention to unaccompanied minors and persons who are in a vulnerable position. The family members concerned are the spouse and minor children; it is left to the states to decide whether other persons should be admitted "according to domestic legislation and practice". The Committee of Ministers therefore also adopts the concept of the immediate family and does not explicitly recommend applying a wider interpretation.

62.       Over the years, and often on the basis of the Parliamentary Assembly's recommendations, the Committee of Ministers has adopted several texts designed to improve the protection of refugees and asylum seekers, migrant workers and their families, namely Recommendations No. R (99) 12, No. R (98) 13, No. R (97) 22, No. R (94) 5, No. R (84) 1, No. R (81) 16 and No. R (79) 10, Resolutions (67) 14 and (70) 2, and the Declaration on Territorial Asylum, etc. A Committee of Experts is now studying the question of the residence status and other rights of persons admitted to the territory of a country for the purposes of family reunion.

6.2       The Parliamentary Assembly

63.       The Parliamentary Assembly has adopted several texts on immigrants, asylum, refugees and displaced persons, rejected asylum seekers, women refugees and the protection of children, in which it reiterates the principle of family unity and the importance of family reunion, namely Recommendations 1082 (1988), 1151 (1991), 1261 (1995), 1327 (1997), 1348 (1997) and 1404 (1999), Resolutions 1010 (1993) and 1050 (1994).

64.       In its Recommendation 1327 (1997) on the protection and reinforcement of the human rights of refugees and asylum-seekers in Europe, the Assembly recommends that the Committee of Ministers urge member states to interpret the concept of asylum-seekers' families as including de facto family members (natural family), for example the asylum-seeker's concubine or natural children as well as elderly, infirm or otherwise dependent relatives; to allow members of the same family to be reunited from the start of the refugee status determination procedure, which sometimes lasts a very long time, and reconsider policy on family reunion in respect of persons granted temporary protection or permission to stay on humanitarian grounds. In its reply to Recommendation 1327 (1997), the Committee of Ministers did not comment on the Assembly's recommendations6. The need for the family reunion of persons under temporary protection was also reaffirmed in Recommendation 1348 (1997).

65.       In most member states, procedures with regard to family reunion show that the Assembly's recommendations are still of current concern and can only be reiterated.

7.       The separation of families in the light of the ECHR and the case law of the European Court of Human Rights

66.       Studies show that 80% of unsuccessful asylum seekers remain in the receiving country and become illegal immigrants. The number of illegal immigrants in European countries is very high. Deportation in itself often results in human rights violations. This problem is dealt with in another report under preparation by the Committee7. However, in many cases it leads to further abuse, concerning the right to family life. Some illegal immigrants marry nationals or have children who are granted the nationality of the country in which they are born. If these persons are forced to return to their country of origin, for one reason or another, the family may be forced to separate. Either the deported persons are obliged to abandon their wives and children or the latter have to follow them to a country which is often totally unknown to them.

67.       Cases of forced separation following refusal to authorise the reunion of refugees' families and as a result of deportation have been brought before the European Court of Human Rights. The Court's case law includes 65 cases alleging a violation of Article 8 of the European Convention on Human Rights, which guarantees everyone respect for his private and family life; 14 of them concern family reunion and deportation, and in 4 cases the Court held that there had been a violation of Article 8.

68.       Article 8 of the ECHR does not secure the right to family reunion as such or protect families against separation. It does, however, limit the exercise of states' discretionary powers with regard to controlling the entry of foreigners and deporting them. The Court seeks to strike a balance between the rights of the individual and the interests of society by considering that interference by the public authorities in a person's private and family life may be justified if "necessary in a democratic society". The Court distinguishes between cases concerning the entry of foreign nationals on to the territory of a state for the purposes of family reunion and those concerning the deportation of foreigners leading to the break-up of the family.

69.       The Abdulaziz, Cabales and Balkandali and the Nsona and Ahmut judgments concern family reunion. In all of these cases the Court held that there had been no violation of Article 8, sometimes with forthrightly dissenting opinions on the part of some judges (eg Judges Martens and Russo in Gül v. Switzerland). The Court states that Article 8 cannot be considered to impose a general obligation on a State to respect immigrants' choice of country of residence if their family life can be developed in another country.

70.       With regard to the preservation of existing family unity, the Court's case law appears to be more liberal. In the Berrehab, Moustaquim and Beldjoudi judgments, the Court found that there had been a violation of Article 8. It held that interference in a person's private and family life is unjustified if his family life is upset or disrupted as a result of his deportation (Moustaquim judgment).

71.       On the basis of the Court's case law on this subject, it could be concluded that Council of Europe member states should not return illegal immigrants or rejected asylum seekers to their country of origin if their family unity would be endangered as a result. They should seek to solve the problem by legalising the person's situation on humanitarian grounds. Reference could also be made, in this connection, to the report being prepared by the Committee on Migration, Refugees and Demography referred to in footnote 7 and to Recommendation 1237 (1994) of the Assembly on the situation of asylum seekers whose application has been rejected.

72.       With regard to the Court's case law, some countries have made efforts to relax their regulations; for example the French Minister of Justice issued a circular in November 1999 with instructions to avoid, where possible, imposing the "dual penalty" of deportation and forced separation from their family, and therefore to carefully examine the offenders' personal and family situation; attention should also be drawn to the new immigration law adopted by the Spanish Congress of Deputies on 22.12.1999.

8.       Social and economic aspects of family reunion

73.       The integration of foreign nationals is currently one of the most sensitive issues in several European receiving countries. At the Second Summit of the Council of Europe in October 1997, the Heads of State and Government expressed their determination to protect the rights of migrant workers and to facilitate their integration in the societies in which they live.

74.       Family reunion helps to foster the integration of foreign nationals. Several governments of Council of Europe member states have launched special programmes for the integration of families which have been reunited. Specific problems arise with regard to the social, economic and political aspects of such integration, access to employment, welfare benefits and education. Social and cultural integration often presents special problems for women immigrants. Assembly Recommendation 1261 (1995) on the situation of women immigrants in Europe and Recommendation 1206 (1993) on the integration of immigrants and community relations are useful references on these problems.

75.       The question of status granted to family members once they have been admitted, is a crucial element in the integration in the new migrants in the host society. The rapporteur recommends that this issue be examined in detail in a separate report.

9.       Conclusions

76.       The right of every human being to family life is enshrined in international treaties. Nevertheless the attitude of some countries towards family union is ambivalent. Whereas most countries consider family reunion to be a corollary of the obligations flowing from such treaties, it is often subject to restrictions.

77.       As family reunion is one of the measures for managing immigration, legal guarantees are required to safeguard this right and protect individuals from arbitrary action on the part of the public authorities. Member states might consider the need to bring their policies into line with one another without seeking the lowest common denominator. A positive and generous attitude to the problem would be in keeping with the fundamental values of the Council of Europe.

Reporting committee: Committee on Migration, Refugees and Demography.

Committees for opinion: Committee on Legal Affairs and Human Rights, Committee on Equal Opportunities for Women and Men.

Reference to committee: Doc. 8985 and Reference No. 2626 of 25 June 2001.

Draft recommendation unanimously adopted by the committee on 5 September 2001.

Members of the committee: Mr Iwiński (Chairperson), Mrs Vermot-Mangold (1st Vice-Chairperson), Mrs Bušić (2nd Vice-Chairperson), Mr Einarsson (3rd Vice-Chairperson), Mrs Aguiar, MM. Akhvlediani, Aliev, Aliyev G., Amoruso (Alternate: Olivo), Mrs van Ardenne-van der Hoeven, Mr de Arístegui, Mrs Arnold, MM. Begaj, Bernik, Mrs Björnemalm, MM. van den Brande, Branger, Brînzan (Alternate: Tudose), Brunhart, Mrs Burataeva, MM. Christodoulides, Cilevičs, Connor, Debarge, Díaz de Mera (Alternate: Fernández Aguilar), Dmitrijevas, Mrs Dumont, Mr Ehrmann, Mrs Err, Mr Evangelisti (Alternate: Brunetti), Mrs Fehr, Mrs Frimannsdóttir, MM. Hordies, Hovhannisyan, Ilaşcu, Ivanov, Jařab, Lord Judd, MM. Karpov, Kolb, Koulouris, Kozlowski, Laakso, Lauricella, Liapis, Libicki, Mrs Lörcher, MM. Loutfi, Luís, Mrs Markovska, MM. Mularoni, Mutman, Norvoll, Oliynyk, Mrs Onur, MM. Ouzký, Popa, Pullicino Orlando, Risari, Rogozin, Rusu, Saglam, von Schmude, Schweitzer, Mrs Shakhtakhtinskaya, Mr Slutsky, Mrs Smith, Mrs Stoisits, MM. Szinyei, Tabajdi, Tahir, Telek, Tkáč, Udovenko (Alternate: Gaber), Wilkinson, Wray, Yáñez Barnuevo, Mrs Zwerver.

N.B. The names of those members present at the meeting are printed in italics.

Secretaries of the committee: Mr Lervik, Mrs Nachilo, Ms Sirtori.


1 The terminology used in the field of immigration and asylum legislation is somewhat inconsistent. Many expressions use various legally distinct terms to refer to one and the same thing; the concepts applied in the various countries are also different. In this study we use the term refugee as defined in Article 1 of the 1951 Geneva Convention on the status of refugees. "Migrant" refers to a person who voluntary leaves his/her country to settle elsewhere for different reasons than a refugee, whose reasons are set forth in the 1951 Convention. Migrants may leave their country of origin for family or personal reasons. If their reasons are purely economic then they are economic migrants and not refugees. The concept "migrant worker" is defined in the European Social Charter and the European Convention on the Legal Status of Migrant Workers. Persons who apply for refugees status, but whose case is still under examination, are referred to as "asylum-seekers".

2 Family reunion in the light of international law, Community law and the legislation and/or practice of member states, Report of the Commission of the European Communities, May 1992; Report on European immigration policy, rapporteur Mr Van den Brink, EP, October 1992.

3 Recommendation No. R (99)23; 15.12.1999.

4 Persons who are already receiving protection from the United Nations, who are not considered applicants for international protection or who do not deserve such protection because they have committed war crimes, serious non-political crimes or acts contrary to the purposes and principles of the United Nations - 1951 Convention , Article 1, Sections D, E, and F.

5 A change of situation brought about by the refugee himself/herself or changes which have taken place in the country of origin - 1951 Convention, Article 1, Section C, paras. 1-6.

6 Committee of Ministers' reply to Recommendation 1327(1997), Doc. 8444, 18 June 1999.

7 "Rendering more humane the procedures for expelling illegal immigrants and rejected asylum seekers" (Rapporteur: Mrs Vermot-Mangold).