Migrant Workers and the Right to Family Accompaniment: A Case for Family Rights in International Law and in Canada
| Date | 01 December 2018 |
| Published date | 01 December 2018 |
| DOI | http://doi.org/10.1111/imig.12444 |
Migrant Workers and the Right to Family
Accompaniment: A Case for Family Rights in
International Law and in Canada
Delphine Nakache*
ABSTRACT
International human rights instruments provide for protection of the family as the fundamental
unit of society. However, a consequent right to family accompaniment, which can be defined
as the right of migrants to bring their family members to the destination state, is not sanc-
tioned and continues to be resisted. This article reviews the international and regional legal fra-
mework regarding migrants’family rights. Using Canada as a case study, it explains why
labor migration, as currently developing in the country, requires Canada to implement appro-
priate family accompaniment policies for migrant workers. One key argument is that is in the
interest of Canada, as of every state of destination, to facilitate –rather than hinder –migrant
workers’family unity.
INTRODUCTION
Many international human rights instruments recognize an obligation for states to respect and
protect the family as a “natural and fundamental group unit of society”(UDHR, 1948, Art. 16.3).
1
However, what is seen as an unquestionable legal protection for all does not translate well in the
context of international migration, where millions of families are separated—for years, and some-
times forever. Recent research offers compelling evidence regarding the severe challenges experi-
enced by family members split across borders for long periods of time (see e.g. De Leon, 2008;
Graham & Jordan, 2011; Pratt, 2012; Adhikari et al., 2014; Lu, 2014; McLaughlin et al., 2017). A
less researched aspect is the negative impact of family separation on the state of destination. This
article seeks to fill this gap by highlighting states’and migrants’shared interest in prioritizing fam-
ily unity in the context of labour migration.
The intersection between family life and immigration law is a complicated one, as a fair balance
must be struck between states’desire to control immigration and their international obligations to
respect and support family life. Although states retain broad discretion to regulate the entry and stay
of non-citizens, it is generally admitted in international law that non-citizens can claim family rights in
their destination states in two circumstances: 1) when the breakup of a family is at stake (as in expul-
sion cases) or 2) when the state of destination is being asked to reconstitute a separate family (as in
reunification cases). However, as is discussed below, limited state obligations are understood as being
only towards long-term foreign residents (i.e., well-settled immigrants) or forced migrants (i.e., refu-
gees and other persons with a recognized protection need). While it is important to acknowledge that
the “temporary”/“permanent”or “forced”/“voluntary”dichotomy does not do justice to the complex
* School of International Development and Global Studies, University of Ottawa, Canada
doi: 10.1111/imig.12444
©2018 The Author
International Migration ©2018 IOM
International Migration Vol. 56 (6) 2018
ISSN 0020-7985Published by John Wiley & Sons Ltd.
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