Doc 9224

24 September 2001

Right to family life for migrants and refugees¹

Opinion

Committee on Legal Affairs and Human Rights

Rapporteur: Mr Göran Magnusson, Sweden, Socialist Group

I.       Conclusions of the Committee

1.       The Committee can express its support for the draft recommendation in the report presented by the Committee on Migration, Refugees and Demography. It nevertheless wishes to put forward the following amendments:

Amendment A

In the draft recommendation, move paragraph 11 i. and make it into a new paragraph 11 iii. a., and replace the existing text by: “comply fully with the international legal instruments relating to the reuniting of families, particularly the provisions of the European Convention on Human Rights and the relevant recommendations of the Committee of Ministers”.

Amendment B

In paragraph 11 iii. c. of the draft recommendation, replace the words “and in particular include in the definition the members of the natural family and dependent relatives” with “and in particular include in the definition the partner, natural children and persons who are elderly or infirm or who are dependents for any other reason”.

Amendment C

In paragraph 11 iii. g. of the draft recommendation, replace the words “and reducing any waiting period to a maximum of 12 months” with “and restricting the duration of the family reunion authorisation procedure to a maximum of 12 months”.

2.       A large number of proposals made in the draft recommendation are taken from the Parliamentary Assembly’s previous text, Recommendation 1327 (1997). The Committee asked to produce the report thus took the view that these remained valid, including the definition given of the family concept and the recommendation that it be made possible for persons under temporary protection to benefit from the reuniting of their family.

3.       The Committee can agree with the request for greater humanity to be introduced into the processing of migrants’ applications and into the acts and decisions of national authorities, in the absence of legal harmonisation, as well as with the need to simplify and shorten the procedures.

* * * * *

II.       Explanatory memorandum

      by Mr Magnusson, Rapporteur

1.       Mrs Aguiar’s excellent report condemns the absence of harmonisation and the severity of the conditions for the reuniting of the families of migrant workers and asylum-seekers, on the one hand, and, on the other, the cases in which family unity is jeopardised by the sending back to their countries of origin of illegal migrant workers and rejected asylum-seekers.

2.       In order for arbitrary action and decisions by the authorities to be able to be countered, legal provisions safeguarding the right to family life need to be included in national legislation. These must in the first instance draw on the most favourable relevant international legal standards, given that there is to date no harmony between the existing legal instruments, which first and foremost need to be fully applied (meaning, in our view, that an assurance is needed that the bodies which supervise application of the treaties should effectively monitor these instruments), or even between the bodies of different institutions. This is the intention of the first amendment, which seeks to amend the proposal to “step up the monitoring of member states’ compliance with international legal instruments”. That proposal is not accompanied in either the draft recommendation or the explanatory memorandum by any reference to the means which should be used to do so.

3.       The concept of the “family”, in particular, is not uniform in the different national legal systems, or even in the various international treaties, where the reuniting of families is concerned. In the light of developments in society, and for the sake of the principle of humanity, the scope of this definition should include the partner, natural children, and dependent descendants and ascendants.

4.       The often demanding financial and accommodation guarantees required by the national authorities of certain states seem a serious obstacle to the aim of reuniting families, and the relevant recommendations and guidelines issued by the UN High Commissioner for Refugees should be complied with, as rightly requested by the Committee to which the report has been referred. A common minimum standard for national legislation should therefore be based on the approach advocated by the UNHCR.

5.       The Community approach to immigration and asylum for which the European Union is striving will not necessarily lead to “harmonisation at the highest level”, and it is legitimate to express fears about the gulf that could soon separate Community legislation as interpreted by the European Court of Justice from the case-law of the European Court of Human Rights relating to Article 8 of the ECHR.

6.       Finally, there is justification for asking the United States to recognise the principle of family reunion, and it seems offensive that a traditional country of immigration prevents families afflicted by misfortune from reuniting on its soil.

7.       The purpose of the final amendment is to make clear what is meant by “waiting period”, a term which does seem rather imprecise.

Reporting committee: Committee on Migration, Refugees and Demography

Committee for opinion: Committee on Legal Affairs and Human Rights

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

Opinion approved by the committee on 24 September 2001

Secretaries to the committee: Mr Plate, Ms Coin, Ms Kleinsorge and Mr Ćupina

¹ See Doc 9195 presented by the Committee on Migration, Refugees and Demography.