This Article is written by Ms. SRI ROSHINI NAKKA, a 3rd year student of DSNLU, Visakhapatnam

ABSTRACT

“Uniting migrant workers with their families living in the countries of origin is recognised to be essential for the migrants’ well-being and their social adaptation to the receiving country,” the ILO stated in its 1973 preliminary report titled “Migrant Workers,” War tears families apart, scattering loved ones across borders and leaving them grappling with displacement and loss. For war migrants seeking to reunite with family, the legal procedures can be daunting, often layered with complex regulations and bureaucratic hurdles. This article will highlight the legal procedures and challenges of such war migrants for reunification with family. 

INTRODUCTION

International law did not specifically make any mentions on the framework of family reunification for war migrants. International obligation as to the reunification of migrants is interpreted only through the international bodies of treaties related to human rights.  Article 17 of United Nations international covenant on civil and political rights provides that there can be no arbitrary or unlawful intervention into family life of a person and article 2 provides protection to this social institution as defined by the article. There are some general rights of family life in international human rights instruments like the article 8 of European convention on Human rights which provides right to protect our private and personal family life. Besides these various other regional instruments also refer to these rights. 

The right to family reunification may be seen as an even more fundamental right than the general right to respect for one’s family life, given the precarious position that migrants and refugees find themselves in. The judges while considering these issues generally had to make balance between the interests of the party and the state. ILO correctly notes that a family reunification right is crucial to the welfare of the individual as well as the interests of the receiving State. In contrast to individual refugees, families have a higher probability of successfully integrating into a new nation, according to the United Nations High Commission for Refugees (UNHCR). In this way, it serves the interests of States as well as the refugees themselves for the family to be protected.

RELATED INTERNATIONAL LAW 

United Nations (UN) International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families

The year 2003 has seen two significant events in the recognition of migrants’ and their families’ right to fair treatment in receiving States: the entry into force on July 1, 2003, of the 1990 United Nations (UN) International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, and the adoption of the Council Directive on the Right to Family Reunification on February 27, 2003 in the European Union. According to Article 8 of International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families Migrant laborers and their families are free to leave any state, including their place of origin. Additionally, article 9 states that migrant workers’ and their families’ rights to life must be upheld by the law. Various other rights as to no forced labor etc are mentioned in article 11.

REFUGEE CONVENTION 1951: States “are not bound by any provision of international law to guarantee family reunification,” according to an ILO report from 1999. The 1967 Protocol, which revised the 1951 Refugee Convention, offers a clear illustration of the distinction between the right to family reunification and the right to non-expulsion. No refugee may be sent back to a nation where their life or freedom would be in danger due to their race, religion, nationality, or political beliefs, according to Article 33 of the 1951 Refugee Convention. The 1951 Refugee Convention, on the other hand, does not explicitly include the refugee’s right to family unity or reunion.

UNITED NATIONS HIGH COMMISSIONER FOR REFUGEE: When circumstances demand it, UNHCR urges States to establish alternative methods for family reunion through close engagement. By doing this, UNHCR may minimise its involvement in individual casework and focus its limited resources on overseeing the protection mandate as a whole.

• The CCPR noted that a child “cannot be held responsible for any decisions taken by his parents in relation to his custody, upbringing and residence” in El-Hichou v. Denmark, where the child, who was 14 at the time of the events, entered Denmark irregularly in an attempt to reunite with his father, who was the author’s primary carer and lawfully residing there. The Danish authorities rejected the author’s request for family reunification and ordered the child to leave the country. The UN Human Rights Committee determined that the Danish authorities’ decisions would, if implemented, entail a violation of Article 23 (protection of the family) and Article 24 (right of children to special protection measures) of the International Covenant on Civil and Political Rights (ICCPR).

• One of the main purposes of the international Red Cross and Red Crescent movement’s and the International Committee of the Red Cross’s (ICRC) Central Tracing Agency is to look for family members and help with their reuniting. Similar programmes might be created by other humanitarian organisations as well (e.g., UNICEF and Save the Children).
• CUSTOMARY LAW: International humanitarian law that became customary has also been interpreted to include this right. In fact, the 2005 ICRC study on the principles of customary international humanitarian law states that ” in case of displacement, all possible measures must be taken in order that members of the same family are not separated” and that “family life must be respected as far as possible”. These guidelines are applicable to armed conflicts that are both international and domestic.

In the times of conflict, the right to know the whereabouts of the dead and missing is inextricably tied to the right to family reunion. In both international and domestic armed conflicts, “each party to the conflict must take all feasible measures to account for persons reported missing as a result of armed conflict and must provide their family members with any information it has on their fate,” according to Rule 117 of the customary international  Humanitarian law study.

• The Universal Declaration of Human Rights of 1948 (UDHR48), which declares in Art. 16(3) that, “The family is the natural and fundamental group unit of society and is entitled to protection by society and the State,” is an early articulation of this right of family reunification.
• The International Convention on the protection of migrant workers (ICPMW) requires state parties to take action “to facilitate the reunification of migrant workers with their spouses or persons who have with the migrant worker a relationship that, according to applicable law, produces effects equivalent to marriage, as well as with their dependent unmarried children” for migrant workers who are documented or in a regular situation. According to Article 19 of the European Social Charter, states parties agree “to facilitate as far as possible the reunion of the family of a foreign worker permitted to establish himself in the territory.” In addition, states of employment are required to assist the reunion of other migrant workers’ family members for humanitarian reasons.
• The protection against family separation provided by Article 44(2) ICPMW extends to dependent unmarried children of migrant workers as well as their spouses or other individuals in a relationship that is comparable to marriage. In terms of the right to respect for family life, the ICPMW does not define “family.”

PROCEDURAL OBLIGATION:  

• Article 10(1) UNCRC states that “applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner,” which supplements the general obligation under Article 9(1) UNCRC not to separate a child from his or her parents against their will. Applications for family reunification if the sponsor is a refugee kid must be evaluated quickly, carefully, and especially diligently, according to the European Court of Human Rights.
• A family reunification request must not have a negative effect on the applicants or their family members, according to Article 10 of the UNCRC.
• Applications cannot be submitted until the candidate has gained permanent residency. Family reunification is typically only an instant possibility for people with complete refugee status in most countries; those with supplemental protection27 are not entitled to this kind of automatic privilege and typically have to wait longer after obtaining their status before they can apply.
• The CRC Committee found that there had been a violation of Article 10 UNCRC in the case of Y.B. and N.S. v. Belgium on September 27, 2018, as the Belgian authorities had not taken de facto family relations into consideration when rejecting a request for a humanitarian visa, which was deemed to be equivalent to a request for family reunification for a child living under a kafalah regime, and had taken more than seven years to process.

WAYS FOR REUNIFICATION:

 One can file for asylum, it may offer a pathway to family reunification if the family member seeking asylum demonstrates a well-founded fear of persecution in their home country. And War migrants already designated as refugees by the United Nations High Commissioner for Refugees (UNHCR) may have access to family reunification programs offered by host countries.

Another way is in some cases, war migrants facing extreme hardship or medical emergencies may be granted humanitarian parole to temporarily join family members while their legal status is determined.  There are visa options as well. Depending on the specific circumstances and host country policies, family visas or specific reunification visas may be available.

CHALLENGES FOR REUNIFICATION:

Certain states restrict the application for family reunification to refugees and/or other recipients of international protection to a predetermined amount of time after they have been living in the asylum country. These procedures overlook the frequently unstable and even dangerous circumstances faced by family members who are left behind in their country of origin or in their first asylum nation. The process of family reunification can be resource and time-intensive.

Documentation: Proving family relationships and obtaining necessary documentation, such as birth certificates and marriage certificates, can be difficult for war migrants who may have lost documents or fled in haste. The documentation of relationships needed for processing should be acceptable for the refugee’s circumstances as well as those of the country of origin and the place of refuge. The lack of main documentation evidence shouldn’t automatically undermine the validity of the application for temporary protection or reunion because, in many cases, records have been destroyed by war and are no longer available in the country of origin.

• Eligibility Requirements, Meeting the specific eligibility criteria for each legal pathway can be complex and vary greatly between countries. Legal assistance is crucial to navigate these nuances. Family reunification applications can take months or even years to be processed, leaving families in limbo and facing emotional strain. Financial Barriers like legal fees, travel costs, and other associated expenses can pose significant financial burdens for war migrants. 

CONCLUSION 

Consulting with an immigration lawyer experienced in war refugee cases is vital for understanding the legal options and pursuing the most suitable pathway for family reunification. Gather Documentation i.e Pro-actively collecting and organizing any available documentation to support family relationships will expedite the application process. Staying updated on changes in immigration policies and relevant legal precedents can be crucial for adapting strategies and maximizing chances of success. Connecting with refugee support organizations and migrant communities can provide valuable resources, emotional support, and networking opportunities.

It’s important to focus on the human cost of war and the importance of reuniting families. Avoid sensationalizing or trivializing the experiences of war migrants. Maintain a respectful and objective tone throughout the discussion. Offer resources and support organizations that can assist war migrants with the family reunification process. 

REFERNCE

1. https://rm.coe.int/family-reunification-for-refugee-and-migrant-children-standards-and-pr/16809e8320 
2. FAMILY REUNIFICATION FOR MIGRANTS AND REFUGEES: A FORGOTTEN HUMAN RIGHT? This article was originally written by Arturo John, The link for same is herein https://www.igc.fd.uc.pt/data/fileBIB2017724164832.pdf .
3. “Family Reunification and Conditions Placed on Family Members: Dismantling a Fundamental Human Right”, This article was originally written by R. Cholewinski, published by “European Journal of Migration and Law”, Vol. 4, 2002, pp. 271-290, pp. 274 – 275.
4. https://www.rsc.ox.ac.uk/files/files-1/wp51-family-reu nification-2008.pdf. 
5. This article was originally written by Frances Nicholson, published on United nat and the link for the same is https://www.refworld.org/pdfid/5a902a9b4.pdf, 
6. Draper, G. I. A. D. “The Reunion of Families in Time of Armed Conflict.” International Review of the Red Cross 191 (February–March 1977): 57–65.
7. https://www.refworld.org/docid/4ae9aca12.html.  
8. Y.B. and N.S. v. Belgium on September 27, 2018. 2018/3, Leiden Children’s Rights Observatory.   
9. El-Hichou v. Denmark, Comm. No. 1554/2007, UN Doc. CCPR/C/99/D/1554/2007, 20 August 2010. 
10. International Committee for Red Cross statue.
11. United Nations (UN) International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.
12. International Covenant on Civil and Political Rights (ICCPR).
13. Refugee convention 1951 and protocol 1967.
14. Universal Declaration of Human Rights of 1948.