Family Unity in Migration Law: The Evolution of a More Unified Approach in Europe
V. Chetail ed. Research Handbook on International Law and Migration (Edward Elgar Publishing, 2013), Forthcoming
32 Pages Posted: 6 Mar 2013
Date Written: 2013
Abstract
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. It is divided into five sections. Section two 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 three and four explore the contributions of the European Court of Human Rights and the European Union, 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 five, this chapter draws on selective comparisons with other regional legal systems and identifies areas of controversy that require further development in law and practice.
Keywords: family unity, family reunification, refugees, family
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