Summary
Learning Objective
Learning objectives
  • List the types of family migration policies
  • Identify the considerations shaping family reunification policies
  • Understand the impacts of family separation on migrants and families left behind
  • Understand the challenges to and benefits of successful integration of family migrants
Introduction
Family migration

The Universal Declaration of Human Rights (1948, article 16[3]) defines the family as follows:

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Family

the natural and fundamental group unit of society and is entitled to protection by society and the State.

Source

Universal Declaration of Human Rights (1948, article 16[3])

However, no universally accepted definition of the family in international law is set forth in a legally binding instrument. Definitions of family under domestic law vary from a narrow “immediate” family, normally comprising spouses and dependent children, to an extended definition that may include unmarried children (irrespective of age), adopted children, parents, grandparents and great-grandparents, aunts and uncles, nephews and nieces, siblings and others.

The concept of family is constantly evolving, for reasons such as the growing diversity of family forms due to changing sociocultural norms. This diversity is illustrated by the increasing numbers of divorcees, single parents and blended families, unmarried or cohabiting couples, childless couples, as well as an increased legal acceptance of same-sex partnerships and marriages around the world. At the same time, more traditional forms (so-called), such as extended families of several generations, are again becoming more common due in part to growing longevity. For migrants, the family unit often stretches across national borders, with members spread across two or more countries, while keeping a sense of collective welfare, unity and familyhood (Bryceson and Vuorela, 2002). Yet immigration policies are often slow to recognize such diversity for purposes of family reunification and family formation or marriage migration.

In the past twenty years, the focus of policies related to family migration has expanded beyond family reunification (IOM, 2004) to encompass other forms of family migration. Today, four main family migration categories are distinguished:

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Family reunification

The right of non-nationals to enter into and reside in a country where their family members reside lawfully or of which they have the nationality in order to preserve the family unit.  

Generally, this category covers children (who often must be unmarried), spouses and sometimes parents who reunify with a family member who migrated earlier. Family reunification remains the most common form of family migration (European Migration Network [EMN], 2017).

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Accompanying family

Family members enter the country at the same time as the primary migrant.

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Family formation

A marriage of a migrant with permanent residents or citizens, whereby they sponsor the migrant for admission or for status change

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Intercountry adoption

The adoption occurring when a child habitually resident in one State (“the State of origin”), has been, is being or is to be moved to another State (“the receiving State”) either after his or her adoption in the State of origin by spouses or a person habitually resident in another State, or for the purposes of such an adoption in the receiving State or in the State of origin.

A family migrant is a migrant who enters the country via the family migration routes listed above and who is in a relationship with a resident in the country of destination (national or migrant) who sponsors them to come to the country of destination. Like family migration, family migrant is a term that covers various situations (for more, see Organisation for Economic Co-operation and Development [OECD], 2017).

The importance of managing family migration

“With migration comes family”, as noted in an Organisation for Economic Co-operation and Development (OECD) portrait of family migration (Chaloff and Poeschel, 2017). Although data on family migration are not available for many countries, data for OECD countries indicate the importance of this category of migration. In recent years, family was the main reason for entry for migrants entering with the purpose of settling (that is, for permanent stay) in OECD countries, totalling a third of all inflows of permanent migrants in 2020 (OECD, 2021). If temporary migration is taken into account it may be higher, since intra-company transfers and highly skilled migrants may bring spouses and children. Reunification was one of the main reasons for admission, and family formation is increasing, as marriages contracted between a foreigner and a citizen already account for more than 10 per cent of all marriages (Chaloff and Poeschel, 2017).

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Figure 1. Family migration in OECD countries in 2018

As well, family migration is related to the length of stay of migrants: migrants who have their families close by are more likely to remain, and the duration of family migrants’ stay is typically long (Chaloff and Poeschel, 2017).

Given the numerical significance of family migration, especially among those settling permanently, it is in the interest of States to properly manage this category of migration to ensure the inflow of family migrants is humane, orderly and benefits migrants and society alike. Family life supports migrants’ efforts to normalize their lives in the new country; it contributes to greater stability and encourages participation in economic, social, cultural and political life. In that sense, it can foster migrant integration and better enable migrants to make a full contribution to society (Spitzer, 2018). The integration of family migrants also impacts on the integration outcomes for their children, especially for low-skilled migrant workers (OECD, 2017). The presence of fellow family members in the receiving country can reduce risks of abuse, abandonment, and exposure to exploitation (Kazmierkiewicz, 2017). Moreover, opportunities for regular and predictable family visits to temporary migrants may contribute to reducing the incidence of overstays or irregular entry. Policies supporting family migrants to come and integrate in the country can improve migration outcomes.

From the perspective of receiving countries, a number of challenges arise in the management of family migration (Chaloff and Poeschel, 2017). These include:

  • How to predict family migration flows;
  • How to balance rules for family migration between restrictions and openness;
  • Conditions of integration;
  • How to deal with unaccompanied minors.

In many countries, there is no official family migration policy to address such issues. Though this does not mean there are no possibilities for family members to accompany workers, such possibilities are frequently restricted to skilled migrant workers and those with higher incomes. Restrictive regulations have a strong impact on family life and contribute to the separation of families, including children from their parents, which can have long-standing psychological effects on family members (Gil Araujo and Pedone, 2014; for more, see Separation of families in this chapter).

While family migration policies are essentially immigration policies, it is worth noting that, from the perspective of countries with sustained and considerable emigration, family migration also raises important considerations for migration management. It is closely intertwined, for instance, with the flow of remittances, as these are often sent to relatives who stayed home. Families are also central in decisions to leave and to return. Some countries have therefore developed policies to support nationals who are abroad and their family members who either accompany them or join them later. Other policies targeting emigrants focus on supporting the flow of remittances these migrants send to relatives who stayed home. The Philippines has a number of policies that take migrant families in consideration (for example, the Migrant Workers’ and Overseas Filipinos Act of 1995). As well, dedicated institutions focused on providing assistance to nationals who are abroad also consider issues related to migrant families, including families who remained in the Philippines (such as the Commission of Filipinos Overseas or the Overseas Workers Welfare Administration). On the other side of the world, Ecuador references transnational families in its Constitution and migration law (Ley Organica de Movilidad Humana, article 3).

Key data sources

There is no global database on family migration, covering all countries and areas of the world. Even when data are available, it is often challenging to integrate and harmonize data sets of diverse origins, because different data sets use different categorizations and definitions of migrant groups, inconsistent methodological frameworks and incorrect (or lacking) disaggregation of data. For example, adopted children may or may not be regarded as migrant children, depending on the rules governing their adoption and nationality. Also, the admission of the family members of labour migrants may not always be included in the main family migration statistics, especially in the case of temporary labour migrants moving in the context of intra-company transfers. In regions where free movement agreements are in place, such as the European Union, individuals may not be counted as moving for family reasons because they do not hold a residence permit under this category.

At the same time, if we look only at statistics compiled based on visa categories, we will struggle to have a good picture of the characteristics of family migrants: even if they are allowed to work or study, they will be registered only as “family migrants”.

It is also difficult to anticipate flows of migrants arriving through this category, given that different categories of migrants (such as migrant workers, students and migrants granted a humanitarian visa) have different reunification patterns (Chaloff and Poeschel, 2017).

Whilst there are now many studies on transnational families and their networks and practices (for example, Goulbourne et al., 2010; Baldassar and Merla, 2014; Al-Sharmani, Tiilikainen and Mustasaari , 2017), there is still little known globally about the exact numbers living in transnational families, or about recent dynamics of family migration. Many studies are based on small samples and ethnographic approaches (Bryceson and Vuorela, 2002). Promising new survey data sets covering a broad range of regions from Africa, Asia and Latin America are beginning to produce more robust data and comparisons between countries and regions (Caarls et al., 2018; Mazzucato and Dito, 2018; DeWaard, Nobles and Donato, 2018). These studies have drawn attention to the different types of transnational families; the differences between men and women in transnational parenting; and the impact of migration policies on enabling family reunification and shaping transnational families. Such families may undergo constant changes as the family life cycle evolves (Bryceson, 2019).

Unfortunately, guidance on how to improve data on family migration is also missing. In the absence of comprehensive, internationally comparable data on family migration, and given data are often limited in scope, there is a need to address data gaps on this topic. Such gaps include, for example, systematic data collection and analysis on family migrants’ labour and fiscal contributions in destination countries, which can help to counter misleading narratives on this, and to formulate evidence-based policy. Studies of how migration policies and access to labour markets and housing shape decisions about integration or about returning to the country of origin can also inform policymaking (Martínez-Buján, 2019). Below are selected sources of data, research and analysis.

National sources
  • Administrative records: These are the main source of data on family migration. Such records include first residence permits for migrants and those given a protection status visa.
  • Census and registers: May also provide data on family migration.
  • Surveys: In addition to non-migration related surveys (such as labour force and household surveys), some countries have also conducted panel surveys.
International sources
  • OECD international migration database. Provides information on categories of migrants based on types of residence permits. Family migrants are recorded under two categories: “family migrants” and “accompanying family of workers”. Drawing on these data, OECD presents estimates on family migration in its annual International migration outlook report.
  • In terms of integration, the Migration Integration Policy Index (MIPEX) has produced the most comprehensive comparison of integration policies, including family reunification and its conditions and associated rights for 38 countries (including countries belonging to the European Economic Area (EEA), Australia, Canada, New Zealand, United States, Japan, Korea and Turkey).
  • The IOM Migration Data Portal includes some data sources in addition to presenting gaps and challenges related to family migration.
  • International organizations publish occasional reports focused on the theme of family migration that provide a good snapshot of trends at global and regional levels. See, for instance, Chapter 7 “Families on the move” of UN-Women, “Progress of the world’s women report – Families in a changing world” (2019–2020) (UN Women, 2019) and Chapter 3 “A Portrait of Family Migration“ of OECD, International Migration Outlook (Chaloff and Poeschel, 2017).

Read more on accessing  and using relevant Data for policymaking in Stage 2: Data, research and analysis for policymaking.

International instruments, initiatives and dialogues
International law and principles

The right to respect for family life is established in various international instruments. It weighs on decisions pertaining to family migration, such as when family members enter the country of destination as accompanying family; for the purpose of family formation or reunification; or via adoption. Beyond decisions on admission, the right to respect for family life also matters in decisions regarding the expulsion of migrants.

States may refuse entry of family members if applicants do not meet the conditions for admission. However, discrimination among eligible applicants is against human rights law. Governments may also seek to expel residents with an established family life because they have committed crimes, lack regular immigration status, or are otherwise considered “undesirable”. In a few instances, this may breach commitments in international law to the protection of family life, although family reunification is rarely expressly mentioned in international instruments.

List
Global Instruments

Note: This list is not exhaustive

 

Human Rights Committees' Statements

Note: This list is not exhaustive

The Committee on Civil and Political Rights (CCPR) has occasionally found violations of family-related rights in cases involving the expulsion of long-term residents, given the recognition of family as the “natural and fundamental group unit of society” or the right of the child to protection. Details on what is considered to constitute family life in international instruments can be found in the discussion of Civil and Political Rights, namely of States' obligations towards the right to respect for family life.

Example
Decisions on the compatibility of expulsion of well-established nationals with the International Covenant on Civil and Political Rights

Communication No. 2243/2013 Husseini v Denmark, views adopted on 24 October 2014. Expulsion of an Afghan national with serious criminal convictions violated articles 23 and 24 when the State failed to consider the interests of his children (CCPR, 2014).

Communication No. 1011/2011, Madafferi v. Australia, views adopted on 26 July 2004. Expulsion of an Italian national whose spouse and four children were Australian nationals violated articles 17, 23 and 24 when the criminal convictions occurred before entry to Australia, and the family faced serious difficulties in moving to Italy (CCPR, 2004).

Source

CCPR, 2004.

To Go Further

The absence of formal provision for family reunification in the Refugee Convention makes United Nations guidelines and resolutions particularly important:

List
Regional Instruments

Note: This list is not exhaustive

Europe has the most powerful regional protection for family reunification, due to judicial interpretations of article 8 of the European Convention on Human Rights by the European Court of Human Rights and the impact of European Union law. Other regional legal systems have not yet developed consistent law or jurisprudence on family reunification.

Case Study
Family reunification in Europe

Article 8 of the European Convention on Human Rights provides a right to respect for private and family life. Family life is usually found to exist between married couples and between parents and children. Whether family life exists has to be established in other cases and this can create difficulties when the parties do not already live in the same State.

If family life exists, interference by a public authority with family life, including through immigration measures, may be lawful if it serves one of the public interests listed in article 8(2) (such as national security, public safety, the economic well-being of the country, prevention of disorder or crime, protection of health or morals, or protection of the rights and freedoms of others) and is “necessary in a democratic society” (that is, it is proportionate). The key issue is proportionality, as immigration controls are assumed to be in the public interest. This is commonly expressed as the search for a fair balance between the public interest and the individual interest in family life. Because of the wide margin of appreciation awarded to States’ views of what the public interest requires, these cases are difficult to win. However, the court has given some indication of the relevant factors.

When an individual faces expulsion due to criminal offending, relevant factors include:

  • Nature and seriousness of offences, time since offending and subsequent conduct;
  • Length of residence;
  • Nationalities of parties;
  • Applicant’s family situation;
  • Whether the spouse knew about the offending when the relationship began;
  • Difficulties facing the spouse in the other country;
  • The best interests and well-being of the children;
  • Social, cultural and family ties with the host country and with the country of destination.

In immigration cases involving spouses, the court applies similar criteria to both expulsion and admission cases. Relevant factors include:

  • The extent to which family life would be ruptured;
  • The extent of ties within the State;
  • Whether there are insurmountable obstacles to living in the country of origin;
  • Immigration control or public order factors;
  • Whether family life was created knowing immigration status was precarious;
  • The best interests of any children.

In practice:

  • Migrants often establish and expand a family in the knowledge that immigration status is precarious, and therefore cases claiming that States violate the right to respect to family life succeed only in exceptional circumstances. For example, in Jeunesse v Netherlands, 2014, a migrant mother had overstayed her visa in the Netherlands but was considered to be in exceptional circumstances. Denying her right to remain with her family was considered as a violation of the right to respect for family life.
  • A violation of the right to respect to family life may also arise when a previously regular migrant loses their status (for example, ECtHR, 1988).
  • The Court has also sometimes required States to admit children when parents are already lawful residents, recognizing that children’s interests must be a primary consideration. Not all cases succeed, and it is difficult to identify consistent principles.
  • A discriminatory refusal may also result in a violation of the right to respect to family life (such as applying stricter rules to the admission of husbands than to the admission of wives, as was the case in Abdulaziz Cabales and Balkandali v United Kingdom, 1985, 7 EHRR 471 [ECtHR, 1985]).

Finally, European Union law provides for family reunification of European Union citizens in the exercise of their free movement rights (Directive 2004/38/EC). Family members need not be European Union citizens, and the rules are far more accommodating than those commonly in place under national law in terms of the range of relatives admitted and the conditions of entry and stay. European Union legislation also provides more limited rights of family reunification for long-term residents who are not European Union citizens (Directive 2003/86/EC).

Source

European Court of Human Rights (ECtHR), 2001; ECtHR, 2006; ECtHR, 2014.

Initiatives and commitments

There is no single initiative focused on the theme of family and migration. This topic cross-cuts with many others and is covered, as appropriate, in discussions related to other themes such as labour migration, child migration, youth and migration, integration and social cohesion, return and reintegration, among others.

Agenda 2030 for Sustainable Development

A key focus of the Sustainable Development Goals is to promote greater disaggregation in data to better serve certain vulnerable groups and ensure no one is left behind. Target 17.18 calls for disaggregated data by migratory status. Although the SDGs do not mention family migration, there are a number of areas relevant to family members and their integration.

SDG
Agenda 2030 for Sustainable Development
  • TARGET 5.C
    Adopt and strengthen sound policies and enforceable legislation for the promotion of gender equality and the empowerment of all women and girls at all levels.
  • TARGET 10.C
    By 2030, reduce to less than 3 per cent the transaction costs of migrant remittances and eliminate remittance corridors with costs higher than 5 per cent.
  • TARGET 10.7
    Facilitate orderly, safe, regular and responsible migration and mobility of people, including through the implementation of planned and well-managed migration policies.

Global Compact for Safe, Orderly and Regular Migration

The Global Compact for Migration, as a non-legally binding document, does not create new obligations on States. Instead, it brings together existing human rights obligations and commitments in a migration framework and aims to promote their implementation in a coherent manner. Family life is mentioned in a number of places. We list here some of the most significant suggestions on facilitating family movements, especially of children.

Family reunification is specifically referred to in objective 5 (“enhance availability and flexibility of pathways for regular migration”). Other relevant objectives include:

GCM
Global Compact for Safe, Orderly and Regular Migration
  • OBJECTIVE 5(i)
    Facilitate access to procedures for family reunification for migrants at all skills levels through appropriate measures that promote the realization of the right to family life and the best interests of the child, including by reviewing and revising applicable requirements, such as on income, language proficiency, length of stay, work authorization, and access to social security and services

  • OBJECTIVE 11(e)
    Ensure that child protection authorities are promptly informed and assigned to participate in procedures for the determination of the best interests of the child once an unaccompanied or separated child crosses an international border, in accordance with international law, including by training border officials in the rights of the child and child-sensitive procedures, such as those that prevent family separation and reunite families when family separation occur

  • OBJECTIVE 16(c)
    Develop national short-, medium- and long-term policy goals regarding the inclusion of migrants in societies, including on labour market integration, family reunification, education, non-discrimination and health, including by fostering partnerships with relevant stakeholders
Inter-State policy dialogues

There are also Inter-State Consultation Mechanisms on Migration, including Regional Consultative Processes on migration (RCP). Most RCP and Interregional Forums on Migration (IRFs) have not addressed family migration specifically. However, an exception was the fifteenth regional conference of the Puebla process, which had migration and family as its central theme. It:

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recognized the impact of migration on the family unit and the importance of considering family in migration policy-making, the need to take on a cross-cutting perspective including and favoring family integration, and the potential of migration as a catalyst for development in communities of origin and destination.

Source

Regional Conference in Migration (RCM), 2010.

Some other RCP and IRFs have included relevant discussions on family when addressing thematic topics such as the vulnerabilities of women, children and unaccompanied children, or gender equality and empowerment (see more in Gender and migration, Child migration and Youth and migration). A number of dialogues have also discussed integration, which affects family migrants.

RCPs may also commission studies on aspects of family migration. As regular migration has also become of greater concern in regional dialogues, there may be scope to include more discussion of family migrants and their integration.