Family Reunification*

Date01 December 1989
DOIhttp://doi.org/10.1111/j.1468-2435.1989.tb00468.x
Published date01 December 1989
Family Reunijication
*
R. PERRUCHOUD
**
INTRODUCTION
Migration is usually analyzed
as
a process having positive
or
negative effects on the
economic, social, cultural and demographic fabric of sending and receiving States. While
this approach has its own merits, it should not hide the fact that migration is also a
phenomenon directly affecting the person moving from one country to another: the
specific situation and needs of the migrant as an individual human being have also to be
considered.
One of the aspects of migration deserving closer scrutiny is its impact on family life.
Migrants are sometimes single individuals, but in most cases they have a family and
move either as a family unit
or,
more often, in successive stages: one family member
leaves ahead of the other members and tries afterwards to bring the whole family to the
receiving country. Problems of family reunification are thus of an enduring nature: they
will always subsist and need to be resolved as long as all members of
a
family unit do not
move at the same time.
International law did not attach particular importance to these issues until the end
of
the Second World War when human rights instruments were adopted.‘ In spite
of
this
evolution, family reunification is still often regarded as an internal matter to be regulated
exclusively by each State. This belief is now increasingly challenged
:
many international
instruments and international organizations, both governmental and non-governmental,
address-the issue of family reunification in a multilateral context. This is not at all
surprising insofar as any migratory movement involves at least two States and is,
perforce, an international issue2.
The theme of family reunification has been of late on the agenda of various meetings
sponsored by international organizations, both governmental and non-governmental.
For instance, the annual Round Table of the International Institute of Humanitarian
Law (San Remo Institute) adopted in
1973
a resolution on ‘Reuniting of Dispersed
Families’. In
1980,
the Council of the same Institute adopted a ‘Body of Principles for the
Procedures on the Reunification of
fa mi lie^'^.
In December
1986,
a group of experts met
in Florence and adopted ‘Conclusions
on
Family Reunification’ which, for the first time,
addressed the subject with regard to all categories of persons affected by family
separation, including refugees, migrants, victims of armed conflict situations,
*
An earlier version
of
this article was presented
to
the 13th Round Table
of
the Inter-
national Institute
of
Humanitarian Law, held in San Remo,
6-10
September
1988.
**
Legal
Adviser, Intergovernmental Committee
for
Migration.
509
asylum-seekers and other persons who have compelling reasons to leave their homeland
or
to return to
it.
Finally,
in
September 1988, the Round Table of the San Remo Institute
adopted conclusions on family reunification which can only contribute to a better
understanding of the matter4.
The various resolutions and conclusions adopted thus far by the Institute and other
institutions such as the UNHCR, ICM and the Red Cross and Red Crescent Movement
bear the stamp of their authors, namely humanitarian bodies involved in the
implementation of policies and rules adopted by States. These resolutions and
conclusions also demonstrate that, on too many occasions, family reunification is made
difficult, if not impossible, because of administrative and practical obstacles which
cannot be overcome by humanitarian organizations. These facts, in and by themselves,
amply demonstrate the need for a fresh examination of the constant interrelationship
between the political and humanitarian aspects of this issue.
The objective of this study is by no means to give an exhaustive description of, and
possible solutions to, all problems affecting family reunification. It merely aims at better
defining the problem and exploring ways and means to solve existing difficulties, thus
contributing to a smoother implementation of family reunification in cases where the
unity of the family is temporarily broken.
INTERNATIONAL LEGAL PROVISIONS PERTAINING TO THE MATTER
When considering family reunification in legal terms, two trends can be noticed: the first
is linked to the principle of family unity, the second to that of the free movement of
persons5.
The principle of the unity of the family is firmly established in international law. To
cite a few examples, Article 23, paragraph
1,
of the International Covenant on Civil and
Political Rights states that ‘the family is the natural and fundamental group unit of
society and is entitled to protection by society and the State’6; a similar statement is to be
found in the Universal Declaration of Human Rights (Article 16, paragraph
3)’,
the
International Covenant on Economic, Social and Cultural Rights (Article
1
0)8,
the
African Charter on Human and People’s Rights (Article
1
8)9,
the American Convention
on Human Rights
-
the ‘Pact of San
Jose’
-
(Article 17, paragraph 1)Io, the European
Convention for the Protection of Human Rights and Fundamental Freedoms (Articles 8
and
12)”,
the European Social Charter (Articles 16 and 19)’*, the 1977 European
Convention on the Legal Status of Migrant WorkersI3, ILO Conventions
N
97 (1949)
and N” 143
(
1975)14, and the Helsinki Final Act which indicates that ‘the participating
States will deal
in
a positive and humanitarian spirit with the applications ofpersons who
wish to be reunited with members of their family’.
Many resolutions, albeit non binding, reiterate this principle, in particular the various
resolutions adopted by the International Conferences
of
the Red
Cross
and Red Crescent
MovementI5, the UNHCR Executive Committee16, the ICM CouncilI7, the ILO’*, the
Council of Europe19, and by the Plenipotentiaries who signed the Final Act of the 195
1
Convention Relating to the Status of Refugees (Recommendation
B)*O.
Recently, the
General Assembly adopted a Declaration on ‘The human rights of individuals who are
not nationals ofthe country in which they live’; Article 5, paragraph 4, ofthis Declaration
states that ‘subject to national legislation and due authorization, the spouse and minor
or
dependent children of an alien lawfully residing in the territory of a State shall be
admitted to accompany, join and stay with the alien’2’. The General Assembly of the
United Nations has also established an Open-ended Working Group on the drafting of an
International Convention on ‘The Protection of the Rights of All Migrant
Workers
and
5
10

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