1 FAMILY REUNIFICATION FOR MIGRANTS AND REFUGEES: A FORGOTTEN HUMAN RIGHT? A Comparative Analysis of Family Reunification under Domestic Law and Jurisprudence, International and Regional Instruments, ECHR Caselaw and the EU 2003 Family Reunification Directive ∗ Arturo John ∗∗ INTRODUCTION With the entry into force on 1 July 2003 of the 1990 United Nations (UN) International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families 1 and the adoption in the European Union on 27 February 2003 of the Council Directive on the Right to Family Reunification 2 , the year 2003 has already witnessed two important events in the recognition of aliens’ and their families’ right to fair treatment in receiving States. The UN Convention took thirteen years to acquire the 20 ratifications necessary for it to come into force and has yet to be ratified by a single country of net immigration 3 , while EU States similarly took longer than expected in agreeing upon the harmonisation of family reunification. The content of the two texts have also been criticised for not going far enough in recognising migrants’ rights to family reunification 4 . What these similarities highlight is the tension between States’ duty to recognise and respect the human rights of aliens and States’ interests in curbing such rights and controlling immigration, a tension that is particularly strong in the context of family reunification. In view of the vulnerable position migrants and refugees find themselves in, the right to family reunification may be viewed in some ways as an even more essential right than the general right to respect for one’s family life. The ILO recognized this in its 1973 preliminary report entitled Migrant Workers, asserting that: “Uniting migrant workers with their families living in the countries of origin is recognised to be essential for the migrants’ well-being and their social adaptation to the receiving country. ∗ I am very grateful to Dra. Ana Luísa Riquito for her ideas, guidance and comments during the preparation of this paper. The paper has also benefited from discussions with Prof. Doutor Vital Moreira and Prof. Doutor Jónatas Machado. Naturally, I all errors or flaws cotained herein are my own. ∗∗ E.MA, European Inter-University Centre for Human Rights and Democratisation (Venice-Coimbra); BA in Law (Cantab). For comments, please use the following address removing the letter x (anti-spam): [email protected] 1 Adopted on 18 December 1992, UN GA Res. 45/158, entering into force on 1 July 2003. 2 Council Doc. 6912/03, as yet unpublished. 3 For the list of States see http://www.unhchr.ch/html/menu3/b/migrants.htm accessed 10 July 2003. 4 See infra Sections 1.2 and 4.2.
FAMILY REUNIFICATION FOR MIGRANTS AND REFUGEES: A FORGOTTEN HUMAN RIGHT?
Jul 10, 2023
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