A number of instruments of the Council of Europe provide protection to the family. Article 16 of the European Social Charter (1961, as revised 1996) sets out the right of the family to social, legal and economic protection. Contracting Parties are to promote this right by such means as social and family benefits, fiscal arrangements, provision of family housing, benefits for the newly married and other appropriate means. This provision may provide protection to migrant families present in Council of Europe states and may also help to ensure that families receive the necessary support to remain together. However the whole of the Charter is not automatically legally binding, and states may identify which of the provisions they are bound by (see 8.4 - migrant rights and entitlements). If states have not declared themselves to be bound by this provision they must only aim towards its protection.

The European Convention on the Legal Status of Migrant Workers (1977) also protects the rights of families. Article 12 protects the right to family reunion of migrant workers defined by Article 1, paragraph 1 as nationals of Contracting Parties authorised to reside on the territory of another Council of Europe member state to take up paid employment. Article 12 provides for the rights of the spouse of the migrant worker and their unmarried children, (who must be considered as minors in the receiving country), analogous to those of the migrant worker.

Article 8(1) of the European Convention on Human Rights (1950) provides for the right to respect for family and private life. In respect to family life the Court assesses whether the migrants rights under this provision have or may be violated by reference to a four-pronged test. First, it must be established that a family life exists, in the case of Beldjoudi v France in 1992 the Court did not question the existence of family life between the applicant, his mother, brothers and sister and French wife. The Court did not find that the family life of the couple could be enjoyed in a different country and had regard to the long and well-established family life, social links, cultural connections and linguistic ties in France. Second, the Court assesses whether there has been an interference with this right, in the case of Amrollahi v Denmark in 2002 the Court found that as the applicant was married to a Danish national and had a child who was also a Danish national his expulsion would interfere with his right to family life within the meaning of Article 8. Third, the Court considers whether the interference with family life is in accordance with the law, in the case of Dougoz v Greece, which concerned Article 5 of the ECHR the Court stated that, this requirement meant that as well as a legal basis in domestic law a certain quality of law was also necessary requiring it to be compatible with the rule of law, a concept found to be inherent in all Articles of the Convention. Fourth, the Court rules on whether the interference is necessary in a democratic society. Restrictions of the rights under Article 8(1) may be made in accordance with Article 8(2): when necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country or for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The line of jurisprudence under Article 8 has significantly placed restrictions on the rights of States to expel, and in some instances refuse residence permits to non-citizens who are able to establish that their removal would impinge on their family life. Article 8 is of relevance to a number of groups of persons for whom family life exists in the Council of Europe Member State. First, it has always been found by the Court to apply to parents and children, in the case of Berrehab v Netherlands in 1988 the Court prevented the return of the applicant to Morocco after the Netherlands failed to grant him a resident permit following his divorce from his Dutch wife, as this did not respect his family ties with his daughter. The Court found that contact with the applicant's daughter at the level previously enjoyed, would be impractical after his expulsion (see also Ciliz v Netherlands). Second, Article 8 has prevented the removal of young men convicted of crimes in a Member State, in the case of Moustaquim v Belgium in 1991 the authorities unwillingness to allow a second-generation immigrant to remain in Belgium following his conviction for criminal offences violated his rights under Article 8. In the case of Jakupovic v Austria the Court prevented the expulsion of a sixteen year old man who had been convicted of crimes in Austria to his country of origin, they found that such a course of action would disrupt his private and family life and was disproportionate to the aim pursued (see also Lamguindaz v UK). Third, Article 8 has prevented the removal of persons where it violates their right to family life with their spouse, as occurred in the Beldjoudi and Amrollahi cases (above) and also the cases of Boultif v Switzerland and Yildiz v Austria. Finally, in relation to children left abroad, in the case of Gul v Switzerland the Court determined whether the family life of the applicants could only be enjoyed in the member state, therefore requiring the applicant's children to move to Switzerland from Turkey. In that case they found that despite certain difficulties there were no obstacles to the enjoyment of family life in the applicants' country of origin and that refusing the entry of the applicants children did not result in a violation of Article 8 (see also Ahmut v Netherlands).