Family Unity: The New Geography of Family Life

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.

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."

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.

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)

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.

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.