Human Rights Comment – Ending restrictions on family reunification: good for refugees, good for host societies

ADVERTISEMENT Global Offer 728x90
Photo: COE

Many refugees have to leave family members behind when they flee their homes. This adds more hardship to the trauma of exile. Once they have found safety in Europe, being reunited with their family members is often the first priority of refugees. It takes little imagination to realise how horrible it is for them to be deprived of this possibility. Unfortunately, thousands of refugees and persons with other forms of international protection status in Europe face long-term separation from their spouses, children and other loved ones. This is due to increasingly tough laws and policies restricting family reunification, which are often incompatible with the letter or spirit of human rights standards and need to be addressed urgently.

Asia 728x90

Family reunification as a right for refugees

When states adopted the UN Refugee Convention in 1951 they stressed in their Final Act that the unity of the family is an essential right of the refugee. The European Court of Human Rights has underlined the importance of family unity for refugees and that family reunification is a vital element in enabling persons who have fled persecution to resume a normal life. It has made clear that the decision-making process should guarantee flexibility, promptness and effectiveness in order to secure refugees’ right to respect for family life under Article 8 of the European Convention on Human Rights (Tanda-Muzinga v. France, 2014).

The European Social Charter (ESC), in its Article 19, paragraph 6, provides for the contracting states’ obligation to facilitate the family reunion of migrant workers who reside legally in the country. The European Committee of Social Rights (ECSR) has noted that this is also applicable to refugees. This requires states to provide for “the liberal administration of the right to family reunion” (ECSR Conclusions 2015).

Furthermore, the UN Convention on the Rights of the Child imposes particular obligations on states in family reunification cases that involve children. It requires states to protect children against separation from their parents against their will (Article 9), and to ensure that applications of a child or his or her parents to leave a country for the purpose of family reunification are dealt with “in a positive, humane and expeditious manner” (Article 10, paragraph 1).

All European countries have laws and policies that allow migrants, including refugees, and citizens to bring over family members from abroad if they meet certain conditions. These often include that the person already in Europe must have a certain income and suitable housing. As long as they cannot meet these requirements, family reunification cannot happen. However, the sponsor will normally be able to travel and enjoy his or her right to family life by joining family members abroad. This is not possible for refugees. The dangers they face prevent them from returning to be with their families. Therefore, they are often exempted from the family reunification requirements that are the most difficult to meet.

European states’ policies keeping refugee families separated

This is the theory. In practice, many European countries, in response to the migration policy crisis of 2015-2016, have introduced new laws and policies that make family reunification considerably more difficult for refugees and especially those with subsidiary protection, a status that is supposedly more temporary.

In June this year, I published an issue paper on these restrictions. I found that several countries, such as Sweden and Germany, have suspended the possibility to apply for family reunification for persons with subsidiary protection. Other countries, like Denmark, Austria and Switzerland, have introduced waiting periods, as long as three years, before such persons would be allowed to apply for family reunification. These suspensions and waiting periods can keep families separated for many years, especially considering that attempts at family reunification can only start after asylum has been granted, itself an often very drawn-out process. I have noted that policies that clearly disadvantage persons with subsidiary protection may be ill-founded and discriminatory. Often, the assumption that persons with subsidiary protection only remain in Europe for a short while does not reflect reality. Rather, with conflicts across the world being protracted, their temporary situation often turns into a permanent one.

But even those with ‘full’ refugee status may suffer from restrictive policies. For example, because they are only granted a very short period to complete their applications for family reunification after recognition as a refugee. In certain countries, if refugees do not start the process within this deadline, they are subject to additional, hard-to-meet, conditions. I also identified other limitations, such as very narrow definitions of family members eligible for reunification. Because of this, some families may be torn apart because children under 18 are eligible, but a child that has just turned 19 is not allowed to join their family. There are also considerable differences in the extent to which dependent family members, such as elderly (grand)parents are allowed to join a refugee in Europe. Many more barriers are outlined in the above issue paper.

The need for a long-term outlook on the impact of family separation

Regrettably the discussion about the right to family reunification has been hijacked by short-term political considerations. This became evident from the sharp reactions I received from some states when I recommended that restrictions on family reunification should be lifted. During a round table I organised last June with expert NGOs, the difficulty of addressing this issue was also emphasised. Their calls to respect the right to family reunification have often been met with harsh rhetoric and hostility. This is not only the case in countries where governments have thrived on anti-migrant rhetoric, but also in states that have mostly shown openness and hospitality to refugees, such as Germany and Sweden. Too often, the main focus has become the narrow question of how to reduce the number of newcomers entering a country, which makes lifting restrictions on family reunification an unappealing option.

But simply playing the numbers game is short-sighted. Not only for refugees and their families, but also for host societies. The integration of refugees and other asylum recipients in our societies has become a key political and social question. The arrivals in 2015-2016 have only made focusing on this issue more crucial. Many who came will stay, especially as peace and security in their homelands remain elusive. This should prompt states to rethink their approach to family reunification.

Long-term separation from their families has an immensely negative impact on refugees. Uncertainty over the fate of family members left behind, often in dangerous circumstances or in destitution, can lead to severe stress, sleeping disorders and depression. These get in the way of essential steps on the path to integration, such as language learning and labour market orientation. Keeping refugees separated from family members is an ill-advised policy that adversely affects their integration efforts.

Separation has an especially severe impact on children, whether they are in Europe as unaccompanied minors or outside Europe waiting to join parents of siblings already here. We should particularly bear in mind the ‘lost generation’ of Syrian children displaced in their home country or living as refugees in neighbouring countries. Many have been waiting for years to restart their education. For them, every day that they are denied the opportunity to restart their lives with family members in Europe counts.

The denial of family reunification also clashes with the goal of states to ensure orderly migration, and to prevent people from coming in an irregular way. Cutting off or restricting legal routes to come to Europe, such as by preventing family reunification, only leads people desperate to be with their families to find alternative, irregular and dangerous options, such as being smuggled by sea.

Making the right to family reunification a reality

Given the importance of refugee family reunification, it is encouraging to see that political debate on lifting certain restrictions is not completely impossible, if the right actors can be mobilised. Recently, I had very useful discussions with representatives of national human rights institutions, many of which are concerned about restrictions on the right to family reunification and have provided legal and practical guidance to governments. NGOs and others, such as religious groups, have also been very influential in making sure politicians understand the impact of restrictions on refugees. Both the Swiss and German parliaments, for example, have been engaging in lively discussions about the usefulness and impact of such restrictions, and whether they should be lifted. In the latter country, this issue is now the subject of post-election coalition talks. At the same time, however, it is hard to break through the numbers game. It is for this reason that challenging restrictions through litigation, in my view, will be particularly important. During the aforementioned round table with expert NGOs, it was encouraging to see that many efforts are on-going at the national level to address unnecessary restrictions, and to explore how European human rights law or EU law can be mobilised to challenge restrictions.

The results appear to be mixed so far. For example, a judgment of the Danish Supreme Court on  the different rights accorded to refugees and persons with subsidiary protection will be delivered soon, after the Danish Eastern High Court ruled this distinction was not discriminatory. Last month in Germany, the Administrative Court of Wiesbaden found that the delay preventing a Syrian asylum seeking family in Greece from reunifying with one of its children who was minor and seeking asylum in Germany violated the timeframe provided for by the ‘Dublin Regulation’. In the United Kingdom, the reunification of migrant children stranded in and around Calais with family members across the Channel has been the subject of a series of court cases. The litigation road is one to be explored much further, but also a long and winding one. It will take time for legal challenges to newly adopted restrictions to reach the highest domestic and international courts.

But European states should not just keep restricting refugees’ family reunification rights until they are finally forced to make a U-turn by courts. If European states are serious about their commitment to protecting families, they should take action now. Prolonging family separation not only creates more hardship for refugees and their families, but by hampering their integration and creating incentives for irregular migration, adversely affects their host societies as well. In view of this, I call on all European states to:

  • review laws and policies making distinctions between refugees and persons with subsidiary protection in the area of family reunification;
  • incorporate broad definitions of eligible family members in their laws and policies;
  • strengthen the position of children in the family reunification process;
  • end unnecessarily long waiting times and suspensions of the right to apply for reunification;
  • lift other barriers, such as short deadlines for applications and age limits, and put in place practical measures to ensure quick and effective access to family reunification procedures.

Nils Muižnieks