Georgios Milios, lecturer on immigration law at the University of Barcelona and researcher at CER-M

Our second activity under the framework of the project “Rights, Education, Health, Labour: efforts for the integration of refugees” funded by Fundació La Caixa-Palau Macaya, took place on the 30th of October. It was dedicated to the refugees’ access to rights in view to achieve their integration. Experts from different European countries exposed their respective legal framework and context; these were Silvia Adamo (University of Copenhaguen), Viola Bex-Reimert (University of Groningen) and David Moya (University of Barcelona). This comparative perspective of the different asylum systems was complemented by the insight of a third sector organisation working in the field of refugees accommodation (Catalan Commission for Refugees) and the presentation of Georgios Milios on family reunification – presented below.

The issue of the right to family life has been crucial during the refugee crisis for several reasons and is expected to be in the centre of the debate in the near future, given that once refugees are settled in European States, issues related to their right to family reunification will become central in the political agenda at EU and international level. In the first part of the present post, I will focus on international law, and more particularly on the European Convention on Human Rights (ECHR) and the UN Conventions, whereas in the second part I will focus on EU rules on asylum seekers and refugees that relate to the protection of their families.   

The protection of the refugees and asylum seekers’ right to family life under the ECHR

The ECHR under its Article 8 (right to family life) receives a high number of immigration cases, a rather limited number of which are either asylum or refugee cases. These cases follow the typical distinction between entrance or reunification and expulsion cases. First, the number of family reunification cases that have reached the European Court of Human Rights is marginal. In short, the Strasbourg Court applies the so-called ‘elsewhere approach’ which means that if family reunification can take place in the country of origin, there is no violation of the ECHR (see, among others, Ahmut v. the Netherlands, Sen v. the Netherlands and Berisha v. Switzerland). This principle is rather restrictive for the so-called economic migrants who, according to the Court’s reasoning, would not face any real obstacles in reunifying with their families in their countries of origin. On the contrary, the applicable principle is rather favourable for forced migrants as in the majority of the cases the situation that led them to flee from their country of origin does not allow for reunification to take place there. Nevertheless, the number of asylum and refugee cases that reach the Strasbourg Court is still limited. This is probably because, as for the moment, the reunification systems that European States dispose are rather flexible regarding refugees.

Second, speaking about expulsion cases and forced migrants whose asylum applications have been rejected is even more complicated, as in expulsion cases the Strasbourg Court applies the so-called ‘connections criteria’ and founds no violation of Article 8 of the ECHR in case the applicants do not prove to have strong and solid linguistic, social and family connections with the host country. Above all, the duration of the stay in the host country plays a key role in the Court’s decision (see, criteria established in case Boultif v. Switzerland).  These criteria will in the vast majority of the cases not be met by forced migrants who are faced, for whatever reason, with an expulsion order and, therefore, most of them would rather invoke Article 3 of the Convention and the prohibition of torture and inhuman or degrading treatments. The fact that Article 8 is applied by the Court in a way that indirectly discriminates between migrants and refugees or asylum seekers is one of the most problematic issues that concern the protection of family life under the ECHR.   

The protection of refugees and asylum seekers’ family life in the United Nations system

The 1951 Geneva Convention, which constitutes by far the most significant international convention regarding refugees, does not make an explicit reference to the right to family reunification. Nevertheless, this right derives from the interaction of the Geneva Convention with other human rights conventions. In any event, if family reunification was not allowed under the Geneva Convention this would be a violation of Article 12 of the same Convention. Article 12 speaks about rights attaching to marriage and reinforces the idea that there exists an implicit right to family unity or reunification in the Convention. In any case, asylum seekers and refugees’ family life is protected by the International Covenant on Civil and Political Rights (ICCPR), the Committee of which, however, follows the case law of Strasbourg Court on Article 8 cases. Lastly, reference should be made to the Convention on the Rights of the Child (CRC) which constitutes the only UN core human rights conventions that explicitly refers to family reunification (and not ‘family life’) and also makes a reference to refugee children in particular. Even though its scope is limited to reunification only between parents and children, its importance should not be underestimated given that the CRC is the most widely ratified human rights Convention.

Refugees and EU rules on family reunification

Recognised refugees have the right to family reunification with their family members as the Family Reunification Directive (Directive 86/2003) is applicable to them. On the contrary, it should be mentioned that beneficiaries of subsidiary protection do not have this right guaranteed by EU law. Special attention should be paid to the favourable rules referred to in Chapter V of the Directive which concerns refugees. It should be highlighted that refugees, along with the EU Blue Card holders, are the only third-country nationals who are explicitly exempted from the strict rules set out in the Family Reunification Directive. It should be reminded that Member States are allowed to confine the application of this Chapter only to refugees whose family relationships predate their entry to the EU.    

The derogations from the strict rules of the Family Reunification Directive are the following: Refugees are exempted from meeting the material conditions for family reunification (accommodation, regular and stable resources and health insurance) -at least if the application is lodged within the first three months since arrival in a Member States and family reunification is not possible in a third country- and they are also exempted from the requirement of a minimum period of prior lawful residence. Furthermore, integration measures (such as language courses or exams) should be applied to family members only after admission to the Member State and not before as a pre-requirement. As regards the family members that may be accepted for family reunification, the Directive in principle adopts the narrow definition of family applicable to all third-country nationals (namely, minor children and the spouse) but provides that Member States may optionally authorise family reunification of other family members, if they are dependent on the refugee. Lastly, as regards unaccompanied minors, the directive provides that Member States shall authorise reunification with the parents or optionally with any other member of the family, when the minor has no parents.   

Asylum Seekers and EU rules related to their families

Unlike it is the case with recognised refugees, asylum seekers do not have a right to family reunification guaranteed by EU law as they are explicitly exempted from the Family Reunification Directive. Nonetheless, important issues related to asylum seekers’ right to family life may rise under the Dublin III Regulation, which determines the responsible Member State to examine the asylum application. In particular, one of the exceptions of the general rule that the ‘Member State of first entry’ should be the one responsible for examining the application concerns asylum seekers who have family members in a different Member State.

In that respect, it should be noted that the Dublin III Regulation adopts a narrow definition of family according to which family relations are considered only those between spouses or partners and parents with their minor children. This means that in case a young adult (for example, of 19 or 20 years old) arrives in a Member State and his or her parents or siblings are present in another Member State, he or she cannot make use of the Dublin Regulation exception. The Regulation is also strict in the sense that it requires family members to be seekers or beneficiaries of international protection, exempting the possibility that these family members may have another immigration status or even be nationals of that other Member State. It also requires the family relationship to already exist in the country of origin, excluding situations of marriages after departure from the country of origin. The legislator seems to be more flexible only in the case that the asylum seeker is an unaccompanied minor, permitting the asylum seeker to be reunified with members of a more extended family such as siblings, aunts and uncles.

The situation does not seem to be a lot better as regards the Commission’s proposal for the reform of the Dublin system. It is true that the Commission’s proposal includes siblings in the definition of family members but the Commission is clearly reluctant in broadening the definition of family considerably, although a more flexible definition of family could have helped in the direction of a fairer distribution of asylum seekers which is the reason why the entire system is currently under reform. In any event, the inclusion of siblings is a modest step in the right direction.  Finally, as regards the relocation programmes, the Council decisions of 2015 provided that relocation measures did not absolve Member States from applying the Dublin regulation as regards family reunification, while the same decisions provided that family members should be relocated to the territory of the same Member State. Nevertheless, the definition of family was still the one adopted by the Dublin III Regulation.

Concluding remarks

Although international courts have up until today only marginally being used by asylum seekers and refugees in order to protect their rights related to their family, it is probable that depending on the future policies on family migration at European level, the Strasbourg Court becomes an important player for forced migrants and their right to family reunification. If this becomes the case, it will be important to see what the reaction of this Court will be and whether there will be a restrictive turn in its case law on family reunification. As regards EU rules on family migration, the main problem remains the strict definition of family that the EU legislation has adopted in all legal instruments that relate to asylum seekers and refugees. There is definitely a need for a different approach in that respect, especially as regards the reform of the Dublin rules and the fairer distribution of asylum seekers among EU Member States. In that respect, a different approach as regards the definition of family members may result more than important.