Pushed Beyond Recognition? The<i>Liberality</i>of Family Reunification Policies in the EU

Abstract

Abstract Whereas family reunification has been considered an essential element of integration for European labour migration since the late 1950s, it is now under attack as fraught with abuse and undermining national solidarity and social cohesion. Given the continued presence of and need for labour migrants, national reforms have sought to introduce employment, skills-based immigration and terms of integration that, on the face of it, emphasise liberal values and civic participation. At the European level, there has been a push to create a unified approach to the treatment and rights of third-country nationals that both offers protection and preserves the sovereignty of member-states to define the terms of national belonging. Through a discussion of the EU Family Reunification Directive, I examine the liberality of recent restrictions to family reunification that set conditions for integration, and argue that family restrictions based on a concern for cultural integration push the limits of the liberal-rights framework in that they reduce the freedom and equality of the individual and undermine the spirit of family unity that has been the cornerstone of liberal immigration policy. Keywords: ImmigrationFamily ReunificationCultural/Civic IntegrationLiberalismLiberal Rights Acknowledgements I would like to thank Andreas Neiderberger for his thorough review of an earlier version of this article, and especially his insight into the concern with current policies on the 'control' of culture. I would also like to thank Fiona Adamson and the CES for funding the Immigration Working Group 'Limits of Liberalism' Workshop. Notes 1. EU and most national legislation sets the age at 21—except for Denmark, where the age restriction for a spouse is 24 years. 2. See Article 2 of Directive 2004/58 EC, which defines 'family member' as direct descendants who are under the age of 21 or are dependants, and those of the spouse or partner. See also Article 3(2) which obligates the member-state to facilitate the entry and residence of other family members, irrespective of their nationality, who do not fall within the definition of family, but are dependents or members of the household of a Union citizen having primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen. Although polygamy is not recognised under Article 3, one still wonders how the Court would deal with the case of a second wife who is ill and dependent on the polygamous husband. 3. Abdulazis, Cabales and Balkandali v. United Kingdom. European Court of Human Rights Application nos. 9214/80; 9473/81; 9474/81 Judgement of 28 May 1985. 4. The states that guarantee 'family life' in their Constitution include: Belgium (Article 22, 'Respect for Private and Family Life'), Estonia (Art. 26), the Hellenic Republic (Art. 9), Spain (Art. 18), Cyprus (Art. 15), Malta (Art. 32, which has the most-'positive' wording), Poland (Art. 47), the Portuguese Republic (Art. 26(1) and (2)—also a strongly worded positive right), Slovakia (Art. 19(2)) and Sweden (Art. 2(3), also a strongly worded positive obligation). Countries with a right of 'privacy' include the Czech Republic, Germany, the Netherlands, Austria and Slovenia. Those with a right to a 'private life' include Finland, Lithuania and Latvia; those that protect the 'home' include Belgium, the Czech Republic, Denmark, Germany, Estonia, the Hellenic Republic, Ireland, Italy, Lithuania, Luxembourg, Hungary, the Netherlands, Austria and Slovenia. The EU website contains case law supporting a right to family life under these constitutional provisions in the member-state (see European Union Agency for Fundamental Rights: http://infoportal.fra.europa.eu/InfoPortal/infobaseShowContent.do?btnCat_231&btnCountryBread_169). 5. Rodrigues Da Silva and Hoogkamer v. the Netherlands, EctHR, 13 January 2006, appl. 50435/99. 6. In its broader sense, the right is one of privacy and guarantees against government intrusion and protection of communications (including telecommunications), personal data and the home. Here I focus only on the 'family life' guarantee. 7. ECJ, Case C-10/05 Cynthia Mattern and Hajrudin Cikotic v. Ministre du Travail et de l'Emploi (2005). 8. Ergat (2000: para. 68). 9. ECJ, Case C-65/98 Safet Eyüp v. Landesgeschäftsstelle des Arbeitsmarktservice Vorarlberg (2000); ECJ, Case C-329/97 Sezgin Ergat v. City of Ulm (2000); and ECJ, Case C-179/98 Belgian State v. Fatna Mesbah (1998) respectively. 10. ECJ, Case C-540/03 European Parliament v. Council of the European Union (2006) Regulation (EEC) No 1612/68 of the Council of 15 October 1968. 11. These countries could opt out, since they had a reservation on the Justice and Home Affairs area in the EU co-operation in the Dublin Convention II (they are bound by the 1990 Dublin Convention). The newly admitted countries do not have this option. 12. For example, Directive 2004/58 of the European Parliament and the Council of the 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the member-states. 13. For a comparative study on the implementation of the Family Reunification Directive, see Centre for Migration Law (Citation2007) 14. European Union: Council of the European Union, European Pact on Immigration and Asylum, 24 September 2008, 13440/08, available at: http://www.unhcr.org/refworld/docid/48fc40b62.html, accessed 15 March 2011.