Author: Fulvia Staiano
Source: European Journal of Migration and Law, Volume 15, page 155 - 182
Link: http://booksandjournals.brillonline.com/content/10.1163/15718166-12342029

The European Directive on family reunification (2003/86/EC) only sets minimum standards, leaving Member States a wide margin for interpretation. For this reason, as its implementation is not uniform at State level, its amendment is now under discussion.

The article makes reference to the European Court of Human Rights (ECHR) case law on family reunification and to the application and interpretation of Dutch legislation in this area, in the context of transnational migration.

Transnational migration refers to migrant women and men who have children in the country of origin, with whom they maintain economic or social connections, by sending money or goods, by keeping a continuous communication and by other similar means, ensuring a permanent link between the parent in the destination country and the child in the country of origin.

The article demonstrates there is a significant difference in the evaluation of family reunification requests filed by migrant parents, depending on their gender. Thus there are additional, emotional expectations from migrant mothers. In the cases brought forward it was discovered that the family reunification request would not be accepted unless the emotional bond between mother and child could be proved. In the Netherlands this led to a large number of such requests being rejected, as it was not possible to prove a "genuine" family relationship.

The original directive on family reunification allows member states to introduce certain conditions for accepting family reunification, such as the requirement to be a good parent. In concrete cases such requirements affect mothers more than fathers, given the role given to mothers in the family, thus encouraging gender discrimination.

ECHR was notified by migrant parents, between 1996-2005, about several cases of breaching Article 8 on the right to respect for private and family life, because the Dutch law of 1994 did not allow the family reunification in case family ties ceased to exist or were broken, as per the law. Consequently most cases were concluded negatively in case the migrant mothers and fathers had left their children in the care of relatives and friends in the country of origin.

A bigger issue was that the requests filed by fathers were treated and analysed differently from those filed by mothers. The first difference relates to the parent's decision to leave. In the case of women it was considered that the reason for separation was volitional, namely the migration. It was therefore concluded that the mothers decided to leave their children in the country of origin. The analysis of this issue included aspects such as whether the mother had or not a new partner in the destination country, the child's age at the time of departure, namely whether it was dependent on the mother's care, which resulted in the condemnation of migrating mothers. ECHR decided on these cases from the point of view of an abstract model of "good mother", built from the perspective of the physical proximity and the maternal care. However solutions were different in the case of refugee mothers.

Another difference was related to the child's age. Two approaches were used here for mothers, which were however not taken into account in the case of fathers. The Court analysed on the one hand the child's age at the time of the mother's departure and to what extent the child needed maternal care at that age, and on the other hand the child's age at the time when the family reunification request was submitted, considering that after a certain age the child would no loner need its migrant mother's care. The Court also considered that the mother had the option to return to the country of origin, by her child, and that there were no obstacles in developing family life in the home country. However the contrary was decided in the case of fathers, namely that it would be very difficult for the father to chose between family life in the country of origin and living in the country where he settled and became integrated.

This approach generated an important principle called "mutual enjoyment", namely the possibility to enjoy family life while staying in the residence country. However this principle was not recognised and applied in the case of mothers. Mothers not only had difficulties in having their right to family life recognised, but they also had to prove, in addition to the care they provided, the emotional bonds with the child in the country of origin and even the absence of new partners. An abstract "good mother" model was thus created. With this approach the Court contributes to the increased pressure put by the community on migrant mothers and ignores its role of protecting single migrant mothers, regardless of their marital status.

Initially the ECHR considered that they reached a balance between the advantages of migration for the country and the protection of family life. They afterwards returned to this position, in a case when the migrant parent also had children born and grown in the destination country. In all cases of family reunification ECHR considered the child age and the time elapsed until the filing of the family reunification request.

A change occurred in 2009 in the ECHR case law in this matter, namely always using the presumption that there is a family bond between parent and child, which previously had to be proven. However the "good mother" paradigm still exists.

To conclude, ECHR should acknowledge the effects of the "good mother" model as regards migrant mothers' access to family reunification.