Family Unity in Migration Law: The evolution of a more unified approach in Europe
Migration is generally triggered by armed conflicts and human rights violations, climate change, economic pressure and global opportunities, and the existence of kinship created by earlier migration. Many States have enacted restrictive laws on immigration and strengthened the enforcement of these laws, particularly to minimize their responsibilities under international law towards migrants and their families. Principles of international law regarding the family emerged relatively recently. In the nineteenth and early twentieth centuries, issues concerning families and family law were dealt with by international law 'only insofar as it established the choice-of-law principles for cases in national courts involving immigrant families or families of mixed nationality' .2 Back then, disputes relating to the personal status of individuals were governed by the law of the individual's domicile, under 'the domicile-based principle' .3 The rise in human rights treaties in the second half of the twentieth century led to the recognition of substantive principles relating to States' treatment of families and the protection of children.4 It is now generally recognized that the family 'is entitled to respect, protection, assistance, and support' .5 This chapter examines the centrality of the family, both nuclear and extended, in the international legal framework in a migration context. It focuses particularly on family unity and family reunification of persons in need of protection, that is, on already established families of refugees and asylum-seekers and the resulting legal issues arising from the refusal to enter or the proposed deportation of a family member. This chapter does not therefore discuss families in formation or immigration for the purpose of marriage. 6 It is divided into five sections. Section 2 examines the international legal framework that establishes the protection of the family as a human right. It argues that a subjective right to family clearly exists under international human rights law but that the status of a 'right' to family unity/reunification is less clear in international law for two main reasons: first, the lack of a universal definition of 'family' underlying the concept of family reunification, and two, the protection of family reunification requires positive steps on the part of States. Sections 3 and 4 explore the contributions of the European Court of Human Rights and the European Union (EU), respectively, to the enjoyment of a right to family reunification, and discuss the relationship between the two courts in this context. In a concluding Section 5, this chapter draws on selective comparisons with other regional legal systems and identifies areas of controversy that require further development in law and practice.