This is a humanitarian and human rights issue at the same time as an immigration policy issue which is considered by receiving countries’ governments as a source of possible strain on the labour market and social facilities, including housing, health, education ones.
The ICCPR (Art. 12.4) states openly the right of each person to enter in the country of his/her nationality . This article is interpreted, including by the Human Rights Committee (67 session, General Comment n.27 on art. 12 Freedom of Movement) as including the right of individuals to enter the country where s/he holds long term or permanent residence status.
Equally, the importance of the family unit as being particularly deserving of protection is recognized in all major universal and regional human rights instruments (for instance in art 16 of the UDHR). Art 23.1 of ICCPR states: “The family is the natural and fundamental group of society and is entitled to protection by society and the State”.
However, international law instruments have shied away from taking the step from upholding the importance of the family as the fundamental nucleus where many individual rights are to be enjoyed to guaranteeing the right to family reunification tout court. In other words, although the principle of family reunion is invoked in a number of instruments (for instance art.12 of the European Convention on the Legal Statutes of Migrant workers or ILO convention n. 143, on Migrations in Abusive conditions and the Promotion of Equality of opportunity and Treatment of Migrant workers) an individual’s interest and aspiration to family reunion is seldom guaranteed as a right. For instance, Art 44.2 of the UN Convention on the Protection of all Migrant workers and members of their families does not confer a right to family reunification; rather, it places an obligation on State Parties to “take measures they deem appropriate and that fall within their competence to facilitate the reunification of migrant workers with their [families]”.
The only international legal instrument, to be found within the EU, where this right has been unequivocally recognized as such is art 10.1 of Council Regulation 1612/68/EEC, which confers the right to family members of EU workers, regardless of their nationality, to install themselves with the worker, with the only condition that workers who want to be joined by their families must possess accommodation considered as normal by national standards. The Regulation links the right of family reunification unmistakably with the right of freedom of movement for workers within the EU, in other words, the terms of integration of the family in the host country are the sine qua non for the exercise of free movement in objective conditions of freedom and dignity.
But family reunification for third-country nationals remains a politically charged issue. In this respect it is striking that the EU Charter of Fundamental Rights is totally silent on family reunification.
Analysis provided by: Antonella C. Attardo PhD (History of Law), Italy.