Family Unity
Geneva Expert Roundtable
8 - 9 November, 2001
Organized by the United Nations High Commissioner
for Refugees
and the Graduate Institute of International Studies
in Geneva
The second day of the Geneva Expert Roundtable
addressed the issue of family unity, based on a discussion paper by Kate
Jastram and Kathleen Newland, entitled Family Unity and Refugee Protection. Participants were also provided with
written contributions from Judge Katelijne Declerk of the Belgian Permanent
Appeals Tribunal for Refugees, Ninette Kelley, a Canadian legal practitioner,
Dr. Savitri Taylor, La Trobe University, Victoria, Australia, and the Refugee
Immigration and Legal Centre, Melbourne, Australia. Participants included 28 experts
from 18 countries, drawn from Governments, NGOs, academics, the judiciary and
the legal profession. Professor Vitit Muntarbhorn, from Chulanlongkorn
University, Thailand, moderated the discussion.
The following summary conclusions do not necessarily
represent the individual views of participants or of UNHCR, but reflect broadly
the understandings emerging from the discussion.
1.
A right to
family unity is inherent in the universal recognition of the family as the
fundamental group unit of society, which is entitled to protection and
assistance. This right is
entrenched in universal and regional human rights instruments and international
humanitarian law, and it applies to all human beings, regardless of their
status. It, therefore, also
applies in the refugee context. A
small minority of participants, while recognising the importance of the family,
did not refer to family unity as a right but as a principle.
2.
The right
to family unity is derived from, inter alia, Article 16 of the Universal Declaration of Human
Rights 1948, Article 8 of the European Convention for the Protection of Human
Rights and Fundamental Freedoms 1950, Article 16 of the European Social Charter
1961, Articles 17 and 23 of the International Covenant on Civil and Political
Rights 1966, Articles 10 of the International Covenant on Economic, Social and
Cultural Rights 1966, Article 17 of the American Convention on Human Rights
1969, Article 74 of Additional Protocol 1 of 1977 to the Fourth Geneva
Convention Relative to the Protection of Civilian Persons in Times of War 1949,
Article 18 of the African Charter on Human and Peoples’ Rights 1981,
Articles 9, 10 and 22 of the Convention on the Rights of the Child 1989, and
Articles XXIII and XXV of the African Charter on the Rights and Welfare of the
Child 1990.
3.
Although
there is not a specific provision in the 1951 Refugee Convention and its 1967
Protocol, the strongly worded Recommendation in the Final Act of the Conference
of Plenipotentiaries, reaffirms the "essential right" of family unity
for refugees. Moreover, refugee law as a dynamic body of law, is informed by
the broad object and purpose of the 1951 Convention and its 1967 Protocol, as
well as by developments in related areas of international law, such as international
human rights law and jurisprudence and international humanitarian law. In addition, Executive Committee
Conclusions nos. 1, 9, 24, 84, 85 and 88, each reaffirm States’
obligations to take measures which respect family unity and family reunion.
4.
The
obligation to respect the right of refugees to family unity is a basic human
right which applies irrespective of whether or not a country is a party to the
1951 Convention.
5.
Respect
for the right to family unity requires not only that States refrain from action
which would result in family separations, but also that they take measures to
maintain the unity of the family and reunite family members who have been
separated. Refusal to allow family
reunification may be considered as an interference with the right to family
life or to family unity, especially where the family has no realistic
possibilities for enjoying that right elsewhere. Equally, deportation or
expulsion, could constitute an interference with the right to family unity
unless justified in accordance with international standards.
6.
The right
to family unity is of particular importance in the refugee context, not least
in providing the primary means of protection for individual members of the
family unit. Maintaining and facilitating family unity helps to ensure the
physical care, protection, emotional well-being and economic support of
individual refugees and their communities. The protection that family members can give to one another
multiplies the efforts of external actors. In host countries, family unity enhances refugee
self-sufficiency, and lowers social and economic costs in the long-term. In
addition, giving effect to the right to family unity through family
reunification may help to reduce the number of, and dangers associated with,
unauthorised or spontaneous arrivals, as well as to reduce unnecessary
adjudication of claims for refugee status. Family unity can promote the sustainability of durable
solutions for refugees (that is, voluntary repatriation, local integration, and
resettlement).
7.
The object
and purpose of the 1951 Convention implies that its rights are in principle
extended to the family members of refugees. In some jurisdictions, this is referred to as derivative
status. Thus, family members of a
refugee should be allowed to remain with him or her, in the same country and to
enjoy the same rights. In addition, in light of increased awareness of
gender-related persecution and child specific forms of harm, each family member
should be entitled to the possibility of a separate interview if he or she so
wishes, and principles of confidentiality should be respected.
8.
International
human rights law has not explicitly defined “family” although there
is an emerging body of international jurisprudence on this issue which serves
as a useful guide to interpretation. The question of the existence or
non-existence of a family is essentially a question of fact, which must be
determined on a case-by-case basis, requiring a flexible approach which takes
account of cultural variations, and economic and emotional dependency
factors. For the purposes of
family reunification, “family” includes, at the very minimum,
members of the nuclear family (spouses and minor children).
9.
The
circumstances in which refugees leave their countries of origin frequently
involve the separation of families. Consequently, family reunification is often
the only way to ensure respect for a refugee's right to family unity. A review
of State practice demonstrates that family reunification is generally
recognised in relation to refugees and their families, and that practical
difficulties related to its implementation in no way diminish a State’s
obligations thereto.
10.
Implementing
the right to family unity through family reunification for refugees and other
persons in need of international protection has special significance because of
the fact that they are not able to return to their country of origin.
11.
Requests
for family reunification should be dealt with in a positive, humane and expeditious
manner, with particular attention being paid to the best interests of the
child. While it is not considered practical to adopt a formal rule about the
duration of acceptable waiting periods, the effective implementation of
obligations of States requires that all reasonable steps be taken in good faith
at the national level. In this
respect, States should seek to reunite refugee families as soon as possible,
and in any event, without unreasonable delay. Expedited procedures should be adopted in cases involving
separated and unaccompanied children, and the applicable age of children for
family reunification purposes would need to be determined at the date the
sponsoring family member obtains status, not the date of the approval of the
reunification application.
12.
The
requirement to provide documentary evidence of relationships for purposes of
family unity and family reunification should be realistic and appropriate to
the situation of the refugee and the conditions in the country of refuge as
well as the country of origin. A flexible approach should be adopted, as
requirements that are too rigid may lead to unintended negative consequences.
An example was given where strict documentation requirements had created a
market for forged documents in one host country.
ASYLUM
SEEKERS
13.
As regards
asylum-seekers, since a decision has not yet been made as to their legal
status, it may not be possible to determine where they should enjoy this right
or which State bears responsibility for giving effect to it. It is, therefore, important to expedite
decision-making particularly in cases where separation causes particular
hardship, where “best interests” of the child come into play, or
where there is a likelihood of a positive determination being made. Preparation for possible family
reunification in the event of recognition should, in any event, begin in the
early stages of an asylum claim, for instance, by ensuring that all family
members are listed on the interview form.
14.
The right
to family unity also applies during situations of mass influx, and temporary
evacuation. From an operational perspective, it is important to take practical
measures to prevent family separations and ensure family reunification as early
as possible in these situations.
Otherwise, chances of reunification diminish as time goes by.
VOLUNTARY
REPATRIATION AND REINTEGRATION
15.
The right
to family unity and family reunification also applies, and is particularly
important, in the context of voluntary repatriation and reintegration. A
unified family unit is better able to re-establish itself in the country of
origin and contribute to the rebuilding of the country.