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COUNCIL OF EUROPE

COMMITTEE OF MINISTERS

RECOMMENDATION NO. R (99) 23

OF THE COMMITTEE OF MINISTERS TO MEMBER STATES

ON FAMILY REUNION FOR REFUGEES AND OTHER PERSONS

IN NEED OF INTERNATIONAL PROTECTION

(adopted by the Committee of Ministers on 15 December 1999 at the 692^nd meeting of the Ministers' Deputies)

The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,

Recalling the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms, the 1951 Convention Relating to the Status of Refugees, its 1967 Protocol and its Final Act;

Bearing in mind that everyone has the right to respect for family life and that the family is the natural and fundamental unit of society and is entitled to protection by society and the state;

Aware that well-founded fear of persecution and other risks to the lives and safety of persons force them to flee their country of origin and that such flight threatens family unity and often leads to the separation of members of the same family;

Considering that members of separated families can only enjoy their right to respect for family life through the reunion of family members in a country where they can lead a normal family life together;

Conscious of the need to preserve and defend the principle of family unity while fully respecting to the fundamental human rights and dignity of refugees and other persons in need of international protection, including the best interests of children;

Recognising that preserving the integrity of refugee families both enhances the protection of their members and facilitates appropriate longer-term solutions for them;

Adopted the following recommendation:

1. Member states hosting refugees and other persons in need of international protection, who have no other country than the country of asylum or protection in order to lead a normal family life together, should promote through appropriate measures family reunion, taking into account the relevant case-law of the European Court of Human Rights.

2. Members of the family of the refugee or other person in need of international protection covered by this recommendation are the spouse, dependent minor children and, according to domestic legislation or practice, other relatives.

3. The rights and entitlements to be granted by member states to joining family members should in principle be the same as those accorded to their family member who is a refugee or another person in need of international protection, respectively.

4. Member states should deal with applications for family reunion from refugees and other persons in need of international protection in a positive, humane and expeditious manner. In order to verify family links, member states should primarily rely on available documents provided by the applicant, by competent humanitarian agencies or in any other way. The absence of such documents should not per se be considered as an impediment to the application and member states may request the applicants to provide evidence of existing family links in other ways. Where applications for family reunion by such persons are rejected, independent and impartial review of such decisions should be available.

5. Member states should pay particular attention to applications for family reunion concerning persons who are in a vulnerable position. In particular, with regard to unaccompanied minors, member states should, with a view to family reunion, co-operate with children or their representatives in order to trace the members of the family of the unaccompanied minor.

6. Member states should facilitate the work of governmental and non-governmental organisations and other institutions active in the humanitarian field with a view to promoting family reunion of refugees and other persons in need of international protection.

Explanatory Memorandum

Introduction

1. The Committee of Ministers, in establishing the specific terms of reference of the Ad Hoc Committee of Experts on the Legal Aspects of Territorial Asylum, Refugees and Stateless Persons (CAHAR), stated that one of the Committee's task is "…to make proposals for the solution of practical and legal problems facing states in the field of territorial asylum, refugees and stateless persons, particularly by drawing up appropriate legal instruments (conventions and recommendations)…".

2. Acting upon these terms of reference, the CAHAR, in 1998, established a working party on family reunion for refugees and other persons in need of international protection. It also commissioned a study on the European Convention on Human Rights and the right of refugees and other persons in need of international protection to family reunion. The CAHAR held discussions and drafting sessions on the basis of the expert study, a discussion document of the working party and a compilation of national responses received to a questionnaire.

3. The draft finalised by the ad hoc committee was forwarded to the Committee of Ministers and was adopted by it on 15 December 1999 at the 692^nd meeting of the Ministers' Deputies.

General considerations

4. Article 8 of the European Convention on Human Rights proclaims that everyone has the right to respect for family life. It does not provide with the right to family reunion, as such. However, the relevant case law of the European Court of Human Rights shows how the right to respect for family life of refugees and other persons in need of international protection can, in individual cases, provide with the possibility of maintaining family unity and reuniting families of such persons in countries of asylum or protection, provided that the family can not realistically live together elsewhere (Abdulaziz, Gül, Nsona, and Ahmut judgements). The recommendation draws, among others, on this relevant case law.

5. Furthermore, Article 16 paragraph 3 of the Universal Declaration of Human Rights stipulates that the family is the natural and fundamental group unit of society and is entitled to protection by society and the state.

6. The aim of the recommendation is to preserve and defend the principle of family unity with full respect to the fundamental human rights and dignity of refugees and other persons in need of international protection including the best interest of children.

7. None of the provisions of this recommendation exclude the possibility that member states, or groups of member states provide refugees and other persons in need of international protection, in the field of family unity, with broader entitlements. It is recalled that "since May 1^st, 1999, this subject, at the level of the European Union, falls within the scope of Title IV of the EC Treaty".

Comments on the principles set out in the Recommendation

8. The preamble recalls the European Convention on Human Rights, the 1951 Convention and its 1967 Protocol as well as the Final Act of the 1951 United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons. Whereas the 1951 Convention and its Protocol do not contain specific provisions on family reunion, the spirit of these instruments to provide protection for refugees is recalled as the right to respect for family life is closely linked to protection. Therefore, paragraph IV B. of the Final Act recommends Governments to take the necessary measures for the protection of the refugee's family, especially with a view to:

- ensuring that the unity of the refugee's family is maintained particularly in cases where the head of the family has fulfilled the necessary conditions for admission to a particular country and

- the protection of refugees who are minors, in particular unaccompanied children and girls, with special reference to guardianship and adoption.

9. Flight from the country of origin for reasons of persecution or risks to life or safety often leads to separation of members of the same family. In such situations, these refugees or other persons in need of international protection often could not lead a normal family life together elsewhere than in the country of asylum or protection.

10. The preservation of the integrity of the family of refugees and other persons in need of international protection enhances their protection and facilitates longer-term solutions for them, be these repatriation or return, integration or resettlement.

11. According to paragraph 1 of the Recommendation, family reunion for refugees and other persons in need of international protection should be promoted by member states, hosting such persons, through appropriate measures such as legislation and practice, adopted and implemented by taking into account the relevant case law of the European Court of Human Rights. Whereas the right to respect for family life, in the case law of the European Court of Human Rights, does not establish an explicit right to family reunion for refugee families, the possibility for families to stay together or re-unite is to be promoted by member states. (For family reunion Abdulaziz, Gül, Nsona, and Ahmut judgements; for maintaining existing family unity, the Berrehab, Moustaquim and Beldjoudi judgements.)

12. Paragraph 2 of the recommendation states that members of the family of the refugee or other person in need of international protection covered by this recommendation are the spouse, dependent minor children and, according to domestic legislation or practice, other relatives.

13. As for paragraph 3, Conclusion N° 24 (XXXII) on family reunification of the Executive Committee of the Programme of the United Nations High Commissioner for Refugees (EXCOM) points out that joining family members should in principle be granted the same legal status and facilities as the head of the family who has been formally recognised as a refugee (para. 8). Furthermore, UNHCR's Handbook on procedures and criteria for determining refugee status, paragraph 184, adds to this that formal refugee status should not be granted to a dependant if this is incompatible with his or her personal legal status (e. g. nationality).

14. In paragraph 4 of the recommendation, the term "positive, humane and expeditious manner" is quoted from Article 10 paragraph 1 of the Convention on the Rights of the Child. "Competent humanitarian agencies" may include national or international, governmental or non-governmental organisations and other institutions. EXCOM Conclusion N° 24, paragraph 6, reads: "the absence of documentary proof of the formal validity of the marriage or the filiation of children should not per se be considered as an impediment." In state practice, in the absence of reliable documents, the interviewing of the persons concerned or search for biological evidence are applied as methods of proving family relationships, provided that the applicant and /or other persons concerned agree with these methods. The independent and impartial review can be judicial, or quasi-judicial or administrative.

15. In paragraph 5, apart from unaccompanied minors, "persons who are in a vulnerable position" is a category similar to that of "persons with special protection needs" as listed in the Conclusions of the extraordinary meeting on Kosovo of the CAHAR (26-27 April, 1999): victims of torture, abuse or sexual violence, single heads of households, unaccompanied elderly and the seriously ill or injured. Particular attention is needed not only when the unaccompanied minor is the refugee or the person in need of international protection but also when the minor is a family member to be reunited and left behind in the country of origin or elsewhere.

16. In paragraph 6, governmental and non-governmental organisations and other institutions are understood as both national and international.