Universal-MigrationHRlaw-PG-no-6-Publications-PractitionersGuide-2014-eng

MIGRATION AND INTERNATIONAL HUMAN RIGHTS LAW | 87
country of origin, unless the person in the country of destination is
there as a refugee or beneficiary of international protection. 192
Obstacles to or conditions for family reunification will violate the right
to respect for family life where they can be shown to be unreasonable.
The Court did not consider unreasonable a requirement of demonstrating
sufficient independent and lasting income, not being welfare benefits,
to provide for the basic costs of subsistence of the family members
with whom reunion is sought. 193
Finally, a rule that discriminates as to family reunification (whether detrimentally
or preferentially) based on the gender of the person settled
in the country of destination, whether a marriage between a refugee
and his or her spouse took place before or after fleeing the country of
origin, or presumably other prohibited grounds, would breach the prohibition
of discrimination in connection with the right to family life. 194
i) What is a family?
For the purposes of the right to respect for family life and in cases where
family reunification is sought, how is “family” defined? The European
Court’s definition is a broad one, which has developed over time in accordance
with changing ideas of family, and is likely to continue to do
so in light of evolving social attitudes. 195 The Court has addressed two
broad categories of relationships: relationships between children and
their parents; and partnerships between adults. 196
In the context of relationships between minor children and their parents,
family life will always be considered to exist between a child and
192 See, on the negative outcome, Abdulaziz, Cabales and Balkandali v. United Kingdom, ECtHR,
op. cit., fn. 43, paras. 66–69.
193 Haydarie and Others v. the Netherlands, ECtHR, op. cit., fn. 187, The Law. Also previously
held by the Committee of Ministers of the Council of Europe in Resolution (78) 33, CMCE,
op. cit., fn. 179, Article B.1(b)(iii). See, Concluding Observations on Switzerland, CCPR,
Report of the Human Rights Committee to the General Assembly, 52 nd Session, Vol. I,
UN Doc. A/52/40 (1997), paras. 103 and 114: the Human Rights Committee found that a
rule prohibiting family reunification for foreign workers until 18 months after the obtaining
of a temporary residence permit was not in compliance with Article 23 ICCPR (children’s
rights), as the possibility of reunification should be given “shortly after” obtaining the
permit. The Committee of Ministers in 1978 stressed that the waiting period should be
reduced to a minimum and not exceed twelve months: Resolution (78) 33, CMCE, op. cit.,
fn. 179, Article B.1(b)(i).
194 See, Abdulaziz, Cabales and Balkandali v. United Kingdom, ECtHR, op. cit., fn. 43,
paras. 74–83. See also, Mauritian Women Case, CCPR, op. cit., fn. 55. On the question of
time of marriage in relation to family reunifaction as a prohibited ground of discrimination,
see, Hode and Abdi v. the United Kingdom, ECtHR, op. cit., fn. 59, paras. 42–56.
195 Schalk and Kopf v. Austria, ECtHR, Application No. 30141/04, Judgment of 24 June 2010,
paras. 93–95.
196 See restatement of the Court’s jurisprudence in Onur v. United Kingdom, ECtHR, Application
No. 27319/07, Judgment of 27 February 2009, paras. 43–45. See also, Konstatinov v. the
Netherlands, ECtHR, Application No. 16351/03, Judgment of 26 April 2007, para. 52.