The Right to Family Life and Family Unity

of Refugees and Others in Need of

International Protection and
the Family Definition Applied

Research paper by Frances Nicholson

Consultant for UNHCR

2nd edition, January 2018

The views expressed in this paper are those of the author and do not necessarily reflect those of the
United Nations or UNHCR. This paper may be freely quoted, cited and copied for academic,
educational or other non-commercial purposes without prior permission from UNHCR, provided that
the source and author are acknowledged.

The paper is available online at http://www.refworld.org

The author is grateful for insightful comments from UNHCR staff and from various experts, including
those participating at a roundtable organized by UNHCR in cooperation with the Odysseus Network
on 4 December 2017.

© United Nations High Commissioner for Refugees 2018.

 Table of contents

LIST OF ABBREVIATIONS ......................................................................................................... iv

1. INTRODUCTION .................................................................................................................. 1
1.1 Methodology........................................................................................................................ 1
2. THE RIGHT TO FAMILY LIFE AND FAMILY UNITY .............................................................. 3
2.1 The right to family life and family unity in international law...................................... 3
2.1.1 The right to family life and family unity in international human rights law ........ 3
2.1.2 The principle of non-discrimination ............................................................................ 7
2.1.3 The right to family life and family unity in international humanitarian law ........ 8
2.1.4 The right to family life and family unity in international refugee law ................... 9
2.2 The right to family life and family unity in regional law ............................................ 11
2.3 State obligations and responsibilities regarding the right to family life and family unity
13
2.4 Conclusion: The right to family life and family unity ................................................. 15
3. THE DEFINITION OF FAMILY ............................................................................................. 16
3.1 The concept of family in international law and practice ............................................. 16
3.2 The concept of family applied at regional level............................................................ 19
3.3 Individuals accepted as able to be family members by international bodies and
regional courts ................................................................................................................... 22
3.3.1 Married spouses ........................................................................................................... 22
3.3.2 Unmarried couples and couples whose marriage is not recognized .................... 23
3.3.3 Engaged couples........................................................................................................... 24
3.3.4 Same-sex couples (and their children) ...................................................................... 25
3.3.5 Children (including in cases of divorce) ................................................................... 26
3.3.6 Children born outside marriage ................................................................................. 27
3.3.7 Adopted and foster children....................................................................................... 27
3.3.8 Parents............................................................................................................................ 28
3.3.9 Relations between adult children and their parents and between adult siblings
28
3.3.10 Other potential family members .............................................................................. 29
3.4 The definition of family applied by States .................................................................... 30
3.5 The definition of family applied by UNHCR................................................................ 32
3.5.1 Close family members ................................................................................................. 32
3.5.2 Persons other than close family members ................................................................ 33
3.6 Conclusion: The definition of family and the concept of dependency...................... 34
LIST OF ABBREVIATIONS

ACHR American Convention on Human Rights

CCPR UN Committee on Civil and Political Rights
CEDAW Convention on the Elimination of all Forms of Discrimination against Women
CERD Committee on the Elimination of Racial Discrimination
CESCR UN Committee on Economic, Social and Cultural Rights
CJEU Court of Justice of the European Union
CMW International Convention on the Protection of the Rights of All Migrant
Workers and Members of their Families
CRC Convention on the Rights of the Child
CRPD Convention on the Rights of Persons with Disabilities
CUP Cambridge University Press
ECHR European Convention for the Protection of Fundamental Rights and Freedoms
ECRE European Council on Refugees and Exiles
ECtHR European Court of Human Rights
ETS European Treaty Series
EU European Union
ExCom Executive Committee (UNHCR)
HRC UN Human Rights Committee
IACtHR Inter-American Court of Human Rights
ICCPR International Covenant on Civil and Political Rights
ICERD International Convention on the Elimination of All Forms of Racial
Discrimination
ICESCR International Covenant on Economic, Social and Cultural Rights
ICRC International Committee of the Red Cross
ICJ International Commission of Jurists
IJRL International Journal of Refugee Law
OAS Organization of American States
OAU Organization of African Unity
OJ Official Journal (EU)
PACE Parliamentary Assembly of the Council of Europe
RSD Refugee status determination
UDHR Universal Declaration of Human Rights
UK United Kingdom
UN United Nations
UNGA UN General Assembly
UNHCR UN High Commissioner for Refugees
UNTS UN Treaty Series
 1. INTRODUCTION

The separation of families when people flee persecution and conflict can have devastating
consequences on family members’ wellbeing and their ability to rebuild their lives. At the
moment of flight, they may be forced to leave without being able to ensure or know if their
families are safe. Once in safety, refugees and other beneficiaries of international protection
are often unaware of the whereabouts of their family. Others have to make difficult decisions
about leaving their family behind to find safety in another country.1

The right to family life and family unity, as set out in international and regional law and
outlined in this research paper, applies to all, including refugees. It applies throughout
displacement, including at the stage of admission, in reception, in detention, during the
refugee status determination process, where expulsion may be threatened, and in the context
of durable solutions.

Finding and reuniting with family members can be one of the most pressing concerns of
asylum-seekers, refugees, and beneficiaries of complementary forms of international
protection. Family reunification in the country of asylum is often the only way to ensure
respect for their right to family life and family unity. In an increasingly restrictive
environment in many countries, it has become even more difficult for them to realize this
fundamental and essential right.

Against this background, this research paper examines:

 The legal basis in international and regional law for the right to family life and family
unity, including the principle of non-discrimination;
 The jurisprudence of international and regional courts on the issue;
 States’ obligations and responsibilities regarding the right to family life and family
unity;
 The verying definitions of family applied in international and regional law and
practice, including different persons accepted as able to be family members by
international bodies and regional courts;
 The family definition applied by UNHCR; and
 The concept of dependency as an aid to determining family membership.

1.1 Methodology

1 See generally, UN High Commissioner for Refugees (UNHCR), Refugee Family Reunification. UNHCR's Response
to the European Commission Green Paper on the Right to Family Reunification of Third Country Nationals Living in the
European Union (Directive 2003/86/EC), February 2012, available at:
http://www.refworld.org/docid/4f55e1cf2.html, p. 3.

1
The research for this paper builds on existing UNHCR and other research and documents,2
including notably the paper written by Jastram and Newland3 as part of the commemoration
of the 50th anniversary of the 1951 Convention relating to the Status of Refugees (1951
Convention)4 in 2001 and on the Summary Conclusions5 of the expert roundtable held at that
time. It sets out applicable international and regional standards and seeks to reflect
developments since then in international, regional and national jurisprudence and practice
and to identify ways to ensure that respect for the right to family life and family unity of
refugees, asylum-seekers and others in need of international protection can be strengthened.

Research for the paper involved analysing relevant international, regional and national
jurisprudence and conducting a desk review of academic literature and publications on the
issue. This was complemented by responses to a brief questionnaire sent out to numerous
UNHCR offices around the world to garner relevant State practice and jurisprudence and by
discussions with UNHCR staff, notably at UNHCR headquarters in Geneva and during a
mission to the Regional Representation for Northern Europe in Stockholm, where
consultations were also held with the Swedish Red Cross and the Swedish Refugee Advice
Centre. Thanks also go to the librarians at the law libraries at the University of Cambridge
and University of Edinburgh for their assistance. The inputs of those consulted have been
essential to enabling this paper to have global scope, although responsibility for any errors
ultimately lies with the author.

The study has also benefitted from the valuable contributions made by participants at the
expert roundtable on the Right to Family Life and Family Unity in the Context of Family
Reunification organized by UNHCR in cooperation with the Odysseus Network in Brussels,
Belgium, on 4 December 2017. A provisional draft of this paper was circulated at the meeting
for comments. The presentations made by Professor Kees Groenendijk, Radboud University
Nijmegen; Gisela Thäter, Swedish Red Cross; and Dr Jason Pobjoy, Blackstone Chambers,
were particularly valuable, along with the many useful contributions from the participants
more generally.

This research paper draws on and complements the research paper entitled: “The ‘Essential
Right’ to Family Unity of Refugees and Others in Need of International Protection in the
Context of Family Reunification”, also to be published in the Legal Protection and Policy
Research Series.

2See, for instance, UNHCR, Note on Family Reunification, 18 July 1983, available at:
http://www.refworld.org/docid/3bd3f0fa4.html and other publications listed in the bibliography.
3 K. Jastram and K. Newland, “Family Unity and Refugee Protection”, in Refugee Protection in International Law:

UNHCR's Global Consultations on International Protection, (Feller et al eds), Cambridge University Press (CUP), 2003,
available at: http://www.refworld.org/docid/470a33be0.html, pp. 555-603.
4 UN General Assembly (UNGA), Convention relating to the Status of Refugees, 28 July 1951, UN Treaty Series (UNTS),

vol. 189, p. 137, available at: http://www.refworld.org/docid/3be01b964.html.

5 UNHCR, “Summary Conclusions: Family Unity, Expert roundtable organized by UNHCR and the Graduate

Institute of International Studies, Geneva, Switzerland, 8–9 November 2001”, in Refugee Protection in International
Law: UNHCR's Global Consultations on International Protection, (Feller et al. eds), CUP, 2003, pp. 604-608, available
at: http://www.unhcr.org/419dbfaf4.pdf (UNHCR, Summary Conclusions, Family Unity).

2
 2. THE RIGHT TO FAMILY LIFE AND FAMILY UNITY

The expert roundtable on family unity organized by UNHCR in 2001 agreed in its Summary
Conclusions:

“A right to family unity is inherent in the universal recognition of the family as the
fundamental group unit of society, which is entitled to protection and assistance. This
right is entrenched in universal and regional human rights instruments and
international humanitarian law, and it applies to all human beings, regardless of their
status. It therefore also applies in the refugee context... .6

The subsections which follow set out the applicable standards affirming the right to family
life and family unity under international human rights law, international humanitarian law
and international refugee law, as well as those developed in the regional law and practice of
the Council of Europe, the European Union (EU), and in the Americas.

2.1 The right to family life and family unity in international law

The legal framework on which the right to family life and to family unity is based is contained
in numerous provisions in international human rights law, international humanitarian law,
and international refugee law, as outlined in more detail below. Jastram and Newland
summarize these rights as follows:

“As the foundation, there is universal consensus that, as the fundamental unit of society,
the family is entitled to respect and protection. A right to family unity is inherent in
recognizing the family as a ‘group’ unit: if members of the family did not have a right
to live together, there would not be a ‘group’ to respect or protect. In addition, the right
to marry and found a family includes the right to maintain a family life together. The
right to a shared family life is also drawn from the prohibition against arbitrary
interference with the family and from the special family rights accorded to children
under international law.”7

2.1.1 The right to family life and family unity in international human rights law

The rights set out in international human rights law, including those relating to family life
and family unity, are applicable to everyone, including refugees, asylum-seekers, and others
in need of international protection.8

Under international human rights law, the family is recognized as the fundamental group
unit of society and as entitled to protection and assistance in Article 16(3) of the 1948
Universal Declaration of Human Rights (UDHR);9 in Article 23(1) of the 1966 International

6 UNHCR, Summary Conclusions, Family Unity, above fn. 5, para. 1.

7 Jastram and Newland, “Family Unity and Refugee Protection”, above fn. 3, pp. 555-603.
8 Only a few rights, such as the right to vote, are reserved for citizens under these instruments.

9 UN General Assembly (UNGA), Universal Declaration of Human Rights, 10 December 1948, 217 A (III), available at:

http://www.refworld.org/docid/3ae6b3712c.html. See also UNHCR Executive Committee (ExCom), Protection of the

3
Covenant on Civil and Political Rights (ICCPR);10 and in Article 10(1) of the 1966 International
Covenant on Economic, Social and Cultural Rights (ICESCR).11 The International Convention
on the Protection of the Rights of All Migrant Workers and Members of their Families (CMW)
contains similar language,12 as do the preambles to the 1989 Convention on the Rights of the
Child (CRC)13 and the 2006 Convention on the Rights of Persons with Disabilities (CRPD).14

The right to marry and to found a family is contained in Article 16(1) of the UDHR and Article
23 of the ICCPR (which adds that the right applies to persons of marriageable age and only
with their full and free consent). Article 10(1) of the ICESCR requires States Parties to accord
“[t]he widest possible protection and assistance … to the family … particularly for its
establishment and while it is responsible for the care and education of dependent children”.
The Human Rights Committee (HRC), established to monitor States’ implementation of the
ICCPR, has clarified that: “[t]he right to found a family implies, in principle, the possibility to
… live together”.15

In addition, under Article 5 of the 1965 International Convention on the Elimination of All
Forms of Racial Discrimination (ICERD), States Parties undertake “to guarantee the right of
everyone, without distinction as to race, colour, or national or ethnic origin, to equality before
the law, notably in the enjoyment of … the right to marriage and choice of spouse”.16 The 1979
Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) also
requires States Parties to “take all appropriate measures to eliminate discrimination against
women in all matters relating to marriage and family relations”, including as regards the right
to enter into marriage, rights and responsibilities during marriage and at its dissolution, and
in all matters relating to children.17

The right not to be subject to arbitrary or unlawful interference with privacy, family, home
or correspondence is protected, inter alia, by Article 17(1) of the ICCPR18 and in several
corresponding regional instruments as outlined below. Further, Article 17(2) of the ICCPR
affirms the right of everyone “to the protection of the law against such interference or attacks”.

Refugee’s Family, 8 October 1999, Conclusion No. 88 (L) - 1999, available at:
http://www.refworld.org/docid/3ae68c4340.html using the same language.
10 UNGA, International Covenant on Civil and Political Rights, 16 December 1966, UNTS, vol. 999, p. 171, available at:

http://www.refworld.org/docid/3ae6b3aa0.html.
11 UNGA, International Covenant on Economic, Social and Cultural Rights, 16 December 1966, UNTS, vol. 993, p. 3,

available at: http://www.refworld.org/docid/3ae6b36c0.html.

12 UNGA, International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families,

18 December 1990, A/RES/45/158, available at: http://www.refworld.org/docid/3ae6b3980.html, Article 44.

13 UNGA, Convention on the Rights of the Child, 20 November 1989, UNTS, vol. 1577, p. 3, available at:

http://www.refworld.org/docid/3ae6b38f0.html.
14 UNGA, Convention on the Rights of Persons with Disabilities, 13 December 2006, A/RES/61/106, Annex I, available

at: http://www.refworld.org/docid/4680cd212.html.
15 UN Human Rights Committee (HRC), CCPR General Comment No. 19: Article 23 (The Family) Protection of the

Family, the Right to Marriage and Equality of the Spouses, 27 July 1990, available at:
http://www.refworld.org/docid/45139bd74.html, para. 5.
16 UNGA, International Convention on the Elimination of All Forms of Racial Discrimination, 21 December 1965, UNTS,

vol. 660, p. 195, available at: http://www.refworld.org/docid/3ae6b3940.html.

17 UNGA, Convention on the Elimination of All Forms of Discrimination against Women, 18 December 1979, UNTS, vol.

1249, p. 13, available at: http://www.refworld.org/docid/3ae6b3970.html, Article 16(1).

18 See also similar language in CRC, Article 16; CMW, Article 14.

4
A second set of rights protecting the right of the child to remain with his or her family is
contained in the CRC.19 The CRC sets out some of the strongest protections of the child’s right
to family unity, as well as States Parties’ corresponding obligations.20

Article 7 accords the child “as far as possible, the right to know and be cared for by his or her
parents”. In Articles 8 and 9 respectively, States undertake to respect the right of the child to
“family relations as recognized by law without unlawful interference” and to “ensure that a
child shall not be separated from his or her parents against their will, except when competent
authorities subject to judicial review determine this is in the best interests of the child”.21
Article 18 also recognizes that “[p]arents or, as the case may be, legal guardians, have the
primary responsibility for the upbringing and development of the child”, that “[t]he best
interests of the child will be their basic concern’, and that “States Parties shall render
appropriate assistance to parents and legal guardians in the performance of their child-rearing
responsibilities and shall ensure the development of institutions, facilities and services for the
care of children”.

Article 10 of the CRC requires, inter alia, that applications by a child or his or her parents for
the purpose of family reunification shall be dealt with “in a positive, humane and expeditious
manner”. Article 22(1) explicitly concerns asylum-seeking and refugee children and requires
States Parties to ensure that such a child “whether unaccompanied or accompanied by his or
her parents or by another person, receives appropriate protection and humanitarian
assistance”. If the child is separated from his or her parents or other family members, States
Parties also agree in Article 22(2) to cooperate with efforts to trace the parents or other family
members for the purpose of family reunification and “[w]here no parents or other family
members can be found, the child shall be accorded the same protection as any other child
permanently or temporarily deprived of his or her family environment”. As Rohan has noted:
“[I]n the context of refugee children, there is an explicit duty to assist in reunification. The
CRC, then, is not merely an explication of children's rights, but also an expression of the rights
belonging to the family.”22

Furthermore, the principle of the best interest of the child is an overarching human rights
principle that must be respected in all matters including those relating to the child’s right to
family life. Article 3 of the CRC requires States to ensure that “[i]n all actions concerning
children … the best interest of the child shall be a primary consideration”.

The best interest principle applies to all children without discrimination, including to
unaccompanied and separated children at risk outside their country of origin, and to all
actions affecting individual children. The Committee on the Rights of the Child views the

19 The ICCPR also addresses the protection of the rights of the child, as such or as a member of a family (Article
24).
20 For a detailed analysis, see J.M. Pobjoy, The Child in International Refugee Law, CUP, 2017, pp. 19-22; 27-32.

21 Article 23 of the CRPD contains similar provisions regarding the right to respect for family life of such persons

and regarding the separation of children from their parents.

22 M. Rohan, “Refugee Family Reunification Rights: A Basis in the European Court of Human Rights' Family

Reunification Jurisprudence”, Chicago Journal of International Law, 2014, Vol. 15, No. 1, Article 15, available at:
http://chicagounbound.uchicago.edu/cjil/vol15/iss1/15, p. 354.

5
principle as a three-fold concept that encompasses a substantive right of a child to have his or
her best interest assessed and taken as a primary consideration; an interpretive legal principle;
and a rule of procedure that requires the decision-making process to evaluate the possible
impact of the decision on the child(ren) concerned.23

In a Joint General Comment on the general principles regarding the human rights of children
in the context of international migration, the Committee on the Protection of the Rights of All
Migrant Workers and Members of their Families and that on the Rights of the Child require
States parties to

“ensure that the best interests of the child are taken fully into consideration in
immigration law, planning, implementation and assessment of migration policies and
decision-making on individual cases, including in granting or refusing applications on
entry to or residence in a country, decisions regarding migration enforcement and
restrictions on access to social rights by children and/or their parents or legal
guardians, and decisions regarding family unity and child custody, where the best
interests of the child shall be a primary consideration and thus have high priority.24

The Member States of UNHCR’s Executive Committee have stressed that “all action taken on
behalf of refugee children must be guided by the principle of the best interests of the child as
well as by the principle of family unity”.25 UNHCR’s Guidelines on Determining the Best Interests
of the Child state further:

“The term ‘best interests’ broadly describes the well-being of a child. … The CRC
neither offers a precise definition, nor explicitly outlines common factors of the best
interests of the child, but stipulates that:
 the [child’s] best interests must be the determining factor for specific actions,
notably adoption (Article 21) and separation of a child from parents against their
will (Article 9);
 the [child’s] best interests must be a primary (but not the sole) consideration for
all other actions affecting children, whether undertaken by public or private social
welfare institutions, courts of law, administrative authorities or legislative bodies
(Article 3).”26

23 UN Committee on the Rights of the Child (CRC Committee), General Comment No. 14 (2013) on the right of the child
to have his or her best interests taken as a primary consideration (art. 3, para. 1), 29 May 2013, CRC /C/GC/14, available
at: http://www.refworld.org/docid/51a84b5e4.html, para. 6.
24 Committee on the Protection of the Rights of All Migrant Workers and Members of their Families and Committee

on the Rights of the Child, Joint General Comment No. 3 (2017) of the Committee on the Protection of the Rights of All
Migrant Workers and Members of Their Families and No. 22 (2017) of the Committee on the Rights of the Child on the general
principles regarding the human rights of children in the context of international migration, CMW/C/GC/3-CRC/C/GC/22,
16 November 2017, available at: http://www.refworld.org/docid/5a2f9fc34.html, para. 29.
25 UNHCR Executive Committee (ExCom), Refugee Children, Conclusion No. 47 (XXXVIII), 12 October 1987,

available at: http://www.refworld.org/docid/3ae68c432c.html, para. (d). See also UNHCR ExCom, Refugee Children
and Adolescents, Conclusion No. 84 (XLVIII), 17 October 1997, available at:
http://www.refworld.org/docid/3ae68c68c.html, para. (a)(i); Children at Risk, Conclusion No. 107 (LVIII), 5 October
2007, available at: http://www.refworld.org/docid/471897232.html, paras. (b)(v) and (h)(iii).
26 UNHCR, UNHCR Guidelines on Determining the Best Interests of the Child, May 2008, available at:

http://www.refworld.org/docid/48480c342.html, pp. 14-15, 31-32 and Annex 4 Family Reunification: Checklist to

determine if a best interests determination is required.

6
In terms of how this provision should be interpreted, Smyth writes: “[T]he ‘best interests of
the child’ are not only equal to other interests, but in principle precede these interests”.27
According to Werner and Goeman this approach “seems to align best with the intentions of
the contracting parties” to the CRC.28

2.1.2 The principle of non-discrimination

An overarching principle of international human rights law is the principle of non-

discrimination. Virtually every major international human rights instrument prohibits
discrimination on the basis of race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status.29 Non-discrimination is also the
subject of dedicated instruments that address particular forms of discrimination and apply
the principles of universality, non-discrimination and equality in respect of particular groups,
as for example in the ICERD, CEDAW, and CRPD.

Any distinction, exclusion, restriction or preference or other differential treatment that is

directly or indirectly based on the prohibited grounds of discrimination and which has the
intention or effect of nullifying or impairing the recognition, enjoyment or exercise, on an
equal footing, of human rights constitutes discrimination. Discrimination also includes
incitement to discriminate and harassment.30

The principle of non-discrimination requires that similarly situated individuals should enjoy
the same rights and receive similar treatment. This includes measures impacting upon
individuals’ right to family life and family unity, regardless of their immigration or other
status, except where such distinctions can be objectively justified.

Direct discrimination occurs when an individual is treated less favourably than another
person in a similar situation on account of his or her race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other status. Direct
discrimination also includes detrimental acts or omissions on such a basis where there is no
comparable similar situation (e.g. the case of a woman who is pregnant).

27 C. Smyth, “The Best Interests of the Immigrant Child in the European Courts: Problems and Prospects”, in: G.G.
Lodder and P.R. Rodrigues, Het kind in het immigratierecht (The Child in Immigration Law), The Hague, Sdu Uitgevers,
2012, pp. 150-151.
28 J. Werner and M. Goeman, “Families Constrained: An analysis of the best interests of the child in family

migration policies”, Defence for Children The Netherlands and Adessium Foundation, October 2015, available at:
http://www.defenceforchildren.org/wp-content/uploads/2015/12/20151021_DC_Families-constrained.pdf, p. 5.
29 See for example, Article 2 in each of the UDHR, ICCPR, ICESCR, CEDAW, and CRC, as well as Article 1 of the

CMW; discrimination is also prohibited under ICERD.

30 Based on UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 20: Non-

discrimination in economic, social and cultural rights (art. 2, para. 2, of the International Covenant on Economic, Social and
Cultural Rights), 2 July 2009, E/C.12/GC/20, available at: http://www.refworld.org/docid/4a60961f2.html, para. 7. See
also in the EU context, Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal
treatment in employment and occupation, OJ L 303, pp. 16–22, available at:
http://www.refworld.org/docid/583d783a7.html, Article 2(2).

7
Indirect discrimination refers to laws, policies or practices which appear neutral at face value,
but have a disproportionate impact on the exercise of rights as distinguished by prohibited
grounds of discrimination.31

Differential treatment based on prohibited grounds will be viewed as discriminatory unless

the justification for differentiation is reasonable and objective. This will include an assessment
as to whether the aim and effects of the measures or omissions are legitimate, compatible with
human rights and solely for the purpose of promoting the general welfare in a democratic
society. In addition, there must be a clear and reasonable relationship of proportionality
between the aim sought to be realized and the measures or omissions and their effects.32

In its General Recommendation on discrimination against non-citizens, the Committee on the

Elimination of Racial Discrimination notes:

“Under the [ICERD] Convention, differential treatment based on citizenship or

immigration status will constitute discrimination if the criteria for such differentiation,
judged in the light of the objectives and purposes of the Convention, are not applied
pursuant to a legitimate aim, and are not proportional to the achievement of this aim.
Differentiation within the scope of article 1, paragraph 4, of the Convention relating to
special measures is not considered discriminatory.”33

With regard specifically to children, the CRC Committee also states:

“The principle of non-discrimination, in all its facets, applies in respect to all dealings
with separated and unaccompanied children. In particular, it prohibits any
discrimination on the basis of the status of a child as being unaccompanied or
separated, or as being a refugee, asylum-seeker or migrant.”34

2.1.3 The right to family life and family unity in international humanitarian law

International humanitarian law contains the most detailed family unification provisions in
general international law. The 1949 Fourth Geneva Convention devoted considerable
attention to the problems of “families dispersed owing to the war”.35 In addition to provisions

31 These paragraphs are drawn from CESCR, General Comment No. 20, above fn. 30, para. 10. See also CESCR, General
Comment No. 16: The equal right of men and women to the enjoyment of all economic, social and cultural rights (Art. 3 of the
Covenant), 11 August 2005, E/C.12/2005/4, available at: http://www.refworld.org/docid/43f3067ae.html, paras. 1
and 10-14.
32 Drawn from CESCR, General Comment No. 20, above fn. 30, para. 13. See also in relation to children in the context

of migration, CMW and CRC Committees, Joint General Comment on the general principles regarding the human rights
of children in the context of international migration, above fn. 24, paras. 21-26 on the principle of non-discrimination.
33 UN Committee on the Elimination of Racial Discrimination (CERD), CERD General Recommendation XXX on

discrimination against non-citizens, 1 October 2002, available at: http://www.refworld.org/docid/45139e084.html,

para. 4. See also CEDAW, Articles 1 and 2.
34 UN Committee on the Rights of the Child, General Comment No. 6 (2005): Treatment of Unaccompanied and Separated

Children Outside their Country of Origin, 1 September 2005, CRC/GC/2005/6, available at:
http://www.refworld.org/docid/42dd174b4.html, para. 18.
35 International Committee of the Red Cross (ICRC), Geneva Convention Relative to the Protection of Civilian Persons

in Time of War (Fourth Geneva Convention), 12 August 1949, 75 UNTS 287, available at:
http://www.refworld.org/docid/3ae6b36d2.html, Article 26. See also, Jastram and Newland, “Family Unity and

8
aimed at maintaining family unity during internment or evacuation,36 the Fourth Geneva
Convention provides for mechanisms such as family messages, tracing of family members,
and registration of children37 to enable family communication and, “if possible”, reunification.

By the time of the first Additional Protocol in 1977, States were willing to strengthen their
responsibility towards separated families by accepting the obligation to facilitate family
reunification “in every possible way”,38 while the second Additional Protocol states that “[a]ll
appropriate steps shall be taken to facilitate the reunion of families temporarily separated”.39

2.1.4 The right to family life and family unity in international refugee law

As for international refugee law, the 1951 Convention relating to the Status of Refugees does
not specifically refer to the family. The Final Act of the Conference of Plenipotentiaries at
which the Convention was adopted nevertheless agreed a specific and strongly worded
recommendation:

“Considering that the unity of the family ... is an essential right of the refugee and that
such unity is constantly threatened, [it] [r]ecommends 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 family is maintained … [and for] the protection of
refugees who are minors, in particular unaccompanied children and girls, with
particular reference to guardianship and adoption”.40

Noting that “refugee law is a dynamic body of law”, the 2001 Summary Conclusions on
family unity state that it “is informed by the broad object and purpose of the 1951 Convention
and its 1967 Protocol,41 as well as by developments in related areas of international law, such
as international human rights law and jurisprudence and international humanitarian law”.42

Refugee Protection”, above fn. 3, p. 576. With regard to international, regional and national practice in the
development of customary international law as regards respect for the right to family unity and to family life, see
ICRC, Customary International Humanitarian Law Database, “Practice Relating to Rule 131, Treatment of
Displaced Persons, Section C. Respect for family unity”, available at: https://ihl-databases.icrc.org/customary-
ihl/eng/docs/v2_cha_chapter38_rule131_sectionc and ICRC, Customary International Humanitarian Law
Database, “Practice Relating to Rule 105, Respect for Family Life”, available at: https://ihl-
databases.icrc.org/customary-ihl/eng/docs/v2_rul_rule105.
36 Fourth Geneva Convention, 1949, Articles 82 and 49 respectively.

37 Fourth Geneva Convention, 1949, Articles 25, 140, and 50 respectively.

38 ICRC, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of

International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3, available at:
http://www.refworld.org/docid/3ae6b36b4.html, Article 74.
39 ICRC, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-

International Armed Conflicts (Protocol II), 8 June 1977, 1125 UNTS 609, available at:
http://www.refworld.org/docid/3ae6b37f40.html, Article 4(3)(b).
40 UN Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, Final Act of the United Nations

Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, 25 July 1951, A/CONF.2/108/Rev.1,
available at: http://www.refworld.org/docid/40a8a7394.html. For more on the drafting history, see A. Edwards,
“Human Rights, Refugees, and the Right ‘To Enjoy’ Asylum”, International Journal of Refugee Law (IJRL), vol. 17, no.
2 (2005), pp. 293–330, at p. 309.
41 UNGA, Protocol Relating to the Status of Refugees, 31 January 1967, UNTS, vol. 606, p. 267, available at:

http://www.refworld.org/docid/3ae6b3ae4.html.
42 UNHCR, Summary Conclusions, Family Unity, above fn. 5, para. 3.

9
Among the documents evidencing State practice and contributing to this development are the
numerous Conclusions of UNHCR’s Executive Committee,43 which represent the agreement
of nearly 100 countries and express their collective international expertise on refugee matters,
including on issues related to family life and family unity. Three Conclusions are particularly
relevant and concern family reunion,44 family reunification45 and the protection of the
refugee’s family,46 but there are many others.47 As UNHCR has also noted, the
Recommendation of the Final Act has been “observed by the majority of States, whether or
not parties to the 1951 Convention or to the 1967 Protocol”.48

Other provisions of the 1951 Convention that may be relevant include Article 3, which
requires States Parties to apply the provisions of the Convention to refugees without
discrimination as to race, religion or country of origin.

With regard to the question of rights which may attach to pre-existing marriages, Article 12
of the 1951 Convention concerns personal status and provides:

“Rights previously acquired by a refugee and dependent on personal status, more

particularly rights attaching to marriage, shall be respected by the Contracting State,
subject to compliance, if this be necessary, with the formalities required by the laws of
that State, provided that the right in question is one which would have been
recognized by the law of that State had he [or she] not become a refugee.”

As Edwards notes: “Although Article 12 does not specifically deal with the issue of family
unity (it deals with personal status) and it is limited to the domestic law of each State, it may
be a helpful, albeit not incontestable, tool to reinforce arguments in favour of family unity,
especially its focus on recognising pre-existing rights attaching to marriage.”49

In addition, Article 25 of the 1951 Convention concerning administrative assistance could be

relevant in the family reunification context. Article 25(1) requires Contracting States in which
a refugee is residing to “arrange that such assistance be afforded to him by their own
authorities or by an international authority”, “[w]hen the exercise of a right by a refugee
would normally require the assistance of authorities of a foreign country to whom he cannot

43 See generally, UNHCR, A Thematic Compilation of Executive Committee Conclusions, 7th edition, June 2014, available
at: http://www.refworld.org/docid/5698c1224.html, pp. 223-229.
44 UNHCR ExCom, Family Reunion, Conclusion No. 9 (XXVIII), 12 October 1977, available at:
http://www.refworld.org/docid/3ae68c4324.html.
45 UNHCR ExCom, Family Reunification, Conclusion No. 24 (XXXII), 21 October 1981, available at:

http://www.refworld.org/docid/3ae68c43a4.html.
46 UNHCR ExCom, Protection of the Refugee’s Family, Conclusion No. 88, above fn. 9.

47 See, for example, ExCom Conclusions Nos. 1, para. (f); 15 para. (e); 22(II)(B)(2); 47 pars. (d), (h), and (i); 74 para.

(gg); 84 para. (b); 85 paras. (k), (u), (v), (w), and (x); 91 para. (a); 93 para. (b)(iv); 100 para. (d); 101 para. (n); 103
para. (n); and 104 paras. (i)(iii) and (n)(iv), 105 para. (n); 107 paras. (b)(vi), (b)(vii), (c)(i), (g)(vii), (h)(iii) and (xviii);
and 110, as referred to in UNHCR, A Thematic Compilation of Executive Committee Conclusions, above fn. 43.
48 UNHCR, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951

Convention and the 1967 Protocol Relating to the Status of Refugees, December 2011, HCR/1P/4/ENG/REV.3, available
at: http://www.refworld.org/docid/4f33c8d92.html, para. 182.
49 Edwards, “Human Rights, Refugees, and the Right ‘To Enjoy’ Asylum”, above fn. 40, p. 310.

10
have recourse”. Such a right could include the refugee’s right to family unity. Article 25(2)
refers to “such documents or certifications as would normally be delivered to aliens by or
through their national authorities”, which it has been explained may include documentation
needed to enable the refugee “to perform the acts of civil life”, including e.g. “marriage,
divorce, adoption, … etc.”.50 Article 25(3) affirms that “[d]ocuments or certifications so
delivered … shall be given credence in the absence of proof to the contrary” and Article 25(4)
that any fees charged for these services “shall be moderate”.

Arguably, if refugees are to exercise their right to family unity, they can be seen as entitled to
assistance (at moderate cost) regarding the issuance of such documents or certification
concerning their family members as are needed for them to enjoy this right. This could include
documents or certification, whether on the basis of an affidavit or sworn statement, issued in
lieu of the original document by the national authority of the refugee’s country of residence
or by an international authority, including notably documentation issued by UNHCR. At least
Article 25 could be taken to require States to show greater readiness to give such documents
“credence in the absence of proof to the contrary”.

2.2 The right to family life and family unity in regional law

The rights related to family life and family unity under international law are mirrored in
regional human rights provisions.

The family as the fundamental group unit of society and as entitled to protection and
assistance is recognized in the Americas in Article 17(1) of the 1969 American Convention on
Human Rights (ACHR),51 which also affirms that “the family is entitled to protection by
society and the State”. In Europe, similar provisions are contained, for instance, in Article 16
of the 1961 European Social Charter and of the 1996 Revised European Social Charter.52 In
Africa, Article 18 of the 1981 African Charter on Human and Peoples’ Rights likewise affirms
that the family is “the natural unit and basis of society” and further requires States Parties to
protect and assist the family.53 Article 18 of the 1990 African Charter on the Rights and Welfare
of the Child echoes this language, affirming in addition that the family “shall enjoy the
protection and support of the State for its establishment and development”.54

The right to marry and to found a family is confirmed, for instance, in Article 17(2) of the
ACHR, Article 15(2) of the Additional Protocol to the ACHR on Economic, Social and Cultural

50 Ad Hoc Committee on Statelessness and Related Problems, UN Doc. E/AC.32/2 Annex, 1950, pp. 43-44. See also
Robinson, Commentary on the Refugee Convention 1951 (Articles 2-11, 13-37), 1997, p. 109; A. Zimmermann (ed.), The
1951 Convention relating to the Status of Refugees and its 1967 Protocol: A Commentary, OUP, 2011, p. 1143.
51 Organization of American States (OAS), American Convention on Human Rights, “Pact of San Jose”, Costa Rica, 22

November 1969, available at: http://www.refworld.org/docid/3ae6b36510.html.

52 Respectively, Council of Europe, European Social Charter, 18 October 1961, ETS 35, available at:
http://www.refworld.org/docid/3ae6b3784.html, Article 19(6), and Council of Europe, European Social Charter
(Revised), 3 May 1996, ETS 163, available at: http://www.refworld.org/docid/3ae6b3678.html, Article 19(6).
53 Organization of African Unity (OAU), African Charter on Human and Peoples’ Rights (“Banjul Charter”), 27 June

1981, CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), available at: http://www.refworld.org/docid/3ae6b3630.html.

54 OAU, African Charter on the Rights and Welfare of the Child, 11 July 1990, CAB/LEG/24.9/49 (1990), available at:

http://www.refworld.org/docid/3ae6b38c18.html.

11
Rights,55 and Article 12 of the 1950 European Convention for the Protection of Fundamental
Rights and Freedoms (ECHR).56

The right not to be subject to arbitrary or unlawful interference with privacy, family, home
or correspondence is protected, for instance, by Article 8 of the 1950 ECHR which affirms:

“1. Everyone has the right to respect for his private and family life, his home and his
correspondence.

“2. There shall be no interference by a public authority with the exercise of this right
except such as is in accordance with the law and is necessary in a democratic society
in the interests of national security, public safety or the economic well-being of the
country, 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 EU Charter of Fundamental Rights contains a similar provision in Article 7, while Article
9 guarantees the right to marry and the right to found a family.57

In the Americas, the protection of the family and its members is also guaranteed in Article
11(2) of the ACHR which encompasses the prohibition of arbitrary or abusive interference
with the family, while Article 19 determines the protection of the rights of the child by the
family, society, and State.

As for children’s rights, the African Charter on the Rights and Welfare of the Child builds on
the rights set out in the CRC and specifies a number of resulting State obligations. Article 19
affirms that “[e]very child shall be entitled to the enjoyment of parental care and protection
and shall, whenever possible, have the right to reside with his or her parents” and reiterates
the language of Article 9 of the CRC on the separation of children from their parents. The
Charter protects the child’s privacy and family home and gives the child the protection of the
law against such interference (Article 10).

In addition, the African Charter contains provisions specifically relevant to refugees and other
displaced persons. It requires States Parties “to cooperate with existing international
organizations which protect and assist refugees in their efforts to protect and assist such a
child and to trace the parents or other close relatives or an unaccompanied refugee child in
order to obtain information necessary for reunification with the family” (Article 23(2)).
Further, the Charter entitles any child “permanently or temporarily deprived of his family
environment for any reason … to special protection and assistance” and requires States to
“take all necessary measures to trace and re-unite children with parents or relatives where

55 OAS, Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural
Rights ("Protocol of San Salvador"), 16 November 1999, A-52, available at:
http://www.refworld.org/docid/3ae6b3b90.html, Article 15(2).
56 Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended

by Protocols Nos. 11 and 14, 4 November 1950, ETS 5, available at:

http://www.refworld.org/docid/3ae6b3b04.html.
57 EU, Charter of Fundamental Rights of the European Union, 26 October 2012, 2012/C 326/02, available at:

http://www.refworld.org/docid/3ae6b3b70.html.

12
separation is caused by internal and external displacement arising from armed conflicts or
natural disasters” (Article 25).

Rights set out in CRC have also been enshrined in Europe in the EU Charter of Fundamental
Rights. Article 24.2 incorporates the best interest principle, while Article 24.3 states: “Every
child shall have the right to maintain on a regular basis a personal relationship and direct
contact with both his or her parents, unless that is contrary to his or her interests.”58

The 2003 EU Directive on the Right to Family Reunification59 goes further still in setting out a
right to family reunification of third country nationals residing lawfully in the territory of
the Member States, including refugees. This right is extended to nuclear family members and
Member States may extend this right more broadly to other family members (Article 4).60 As
for the 2003 EU Long-Term Residents Directive,61 this contains provisions to enable family
members to settle in another EU Member State with a long-term resident in order to preserve
family unity. Initially it only applied to those lawfully resident in the EU for over five years,
but it was amended in 2011 to extend its scope to beneficiaries of international protection.62

2.3 State obligations and responsibilities regarding the right to family life and family unity

States have a range of responsibilities and obligations they need to meet if they are to ensure
that the rights of refugees and other beneficiaries of international protection to family life and
family unity are respected, protected and fulfilled. As the 2001 Summary Conclusions on
family unity state:

“Respect for the right to family unity requires not only that States refrain from action
which would result in family separations, but also that they take measures to maintain
the unity of the family and reunite family members who have been separated. Refusal
to allow family reunification may be considered as an interference with the right to
family life or to family unity, especially where the family has no realistic possibilities

58 See also generally on international, European and German standards, UNHCR Deutschland, “Begriff der Familie
im Kontext von Familienzusammenführungen”, Asyl Magazin, 2017/4, available at:
https://familie.asyl.net/fileadmin/user_upload/pdf/AM17-4_thema_famzus.pdf, pp. 138–144.
59 Council of the EU, Council Directive 2003/86/EC of 22 September 2003 on the Right to Family Reunification (Family

Reunification Directive), OJ L. 251/12-251/18, 2003/86/EC, 3 October 2003, available at:

http://www.refworld.org/docid/3f8bb4a10.html. It applies in all EU States except Denmark, Ireland, and the UK,
which “opted out” of the Directive.
60 For further details see UNHCR, “The ‘Essential Right’ to Family Unity of Refugees and Others in Need of

International Protection in the Context of Family Reunification”, research paper by F. Nicholson, Protection Policy
and Legal Advice Research Series, December 2017, available at: http://www.refworld.org/docid/5a3cebbe4.html,
Section 3.2.
61 Council of the EU, Council Directive 2003/109/EC of 25 November 2003 Concerning the Status of Third-Country

Nationals Who are Long-Term Residents, 23 January 2004, OJ L. 16-44, 2003/109/EC, available at:
http://www.refworld.org/docid/4156e6bd4.html (Long-Term Residents Directive).
62 Council of the EU, Directive 2011/51/EU of the European Parliament and of the Council of 11 May 2011 amending

Council Directive 2003/109EC to extend its scope to beneficiaries of international protection, 19 May 2011, OJ L. 132/1-
132/4, 2011/51/EU, available at: http://www.refworld.org/docid/532bfaaf4.html. For more on the right to family
reunification generally see UNHCR, “The ‘Essential Right’ to Family Unity of Refugees and Others in Need of
International Protection in the Context of Family Reunification”, above fn. 60.

13
 for enjoying that right elsewhere. Equally, deportation or expulsion could constitute
an interference with the right to family unity unless justified in accordance with
international standards.”63

The scope for State action and how this may be constrained is at issue, for instance, in the
contexts of admission, stay, expulsion, determination of refugee status and international
protection needs, and durable solutions. In these, as in other contexts, States must refrain from
discriminatory actions, whether direct or indirect, that undermine the enjoyment of the right
to family life and family unity (duty to respect); to prevent and protect against certain actions
by private actors (duty to protect); and to take positive pro-active steps to ensure the equal
enjoyment of these rights (obligation to fulfil).64 In order to correct situations of inequality and
discrimination, a State may also be required to implement temporary special measures
deemed necessary in order to (re)establish equality.65

As the 2017 Joint General Comment by the Committee on the Rights of All Migrant Workers
and Members of their Families (CMW Committee) and the CRC Committee states:

“Protection of the right to a family environment frequently requires that States not
only refrain from actions which could result in family separation or other arbitrary
interference in the right to family life, but also take positive measures to maintain the
family unit, including the reunion of separated family members.”66

In terms of jurisprudence on the nature and scope of States’ obligations in the context of the
right to family life and family unity at the regional level, the European Court of Human Rights
(ECtHR) has on numerous occasions affirmed that “although the essential object of Article 8
(art. 8) is to protect the individual against arbitrary interference by the public authorities, there
may in addition be positive obligations inherent in an effective ‘respect’ for family life”.67

In Marckx v. Belgium, for instance, the ECtHR has ruled that ensuring respect for family life
“implies an obligation for the State to act in a manner calculated to allow these ties to develop
normally” and “to allow those concerned to lead a normal family life”.68 The principle that the
State may be required affirmatively to promote family life has been repeated, if not extensively
developed, in other cases, as noted in more detail below. As the Court determined in Gül v.
Switzerland:

63 UNHCR, Summary Conclusions, Family Unity, above fn. 5, para. 5.

64 See generally, International Commission of Jurists (ICJ), Migration and International Human Rights Law, 2014,
Practitioners’ Guide No. 6, updated edition, available at: http://www.refworld.org/docid/4dcbac872.html, pp. 45-
46.
65 Article 2(2) ICERD; Article 4, CEDAW.

66 CMW and CRC Committees, Joint General Comment on the general principles regarding the human rights of children

in the context of international migration, above fn. 24, para. 27.

67 Abdulaziz, Cabales and Balkandali v. United Kingdom, Applications nos. 9214/80; 9473/81; 9474/81, Council of

Europe: European Court of Human Rights (ECtHR), 28 May 1985, available at:
http://www.refworld.org/docid/5183e6b34.html, para. 67; many subsequent judgments; and generally, ECtHR,
Guide on Article 8 of the European Convention on Human Rights - Right to respect for private and family life, 31 December
2016, available at: http://www.refworld.org/docid/5a016ebe4.html, pp. 8-9.
68 Marckx v. Belgium, Application No. 6833/74, ECtHR, 13 June 1979, available at:
http://www.refworld.org/docid/3ae6b7014.html, paras. 45 and 31.

14
 “[T]he boundaries between the State’s positive and negative obligations under this
provision [Article 8] do not lend themselves to precise definition. The applicable
principles are, nonetheless, similar. In both contexts [involving the negative obligation
not to deport and the positive obligation to admit] regard must be had to the fair
balance that has to be struck between the competing interests of the individual and of
the community as a whole; and in both contexts the State enjoys a certain margin of
appreciation.”69

In practice, the ECtHR accords States a wide margin of appreciation in this area with the result
that the balancing of these different interests tends to limit the family reunification
possibilities for migrants.70 As Lambert also notes: “Family reunification remains disputed as
a human right precisely because it requires States to take positive steps.”71

Nevertheless, the particular situation of refugees and beneficiaries of complementary

protection, the requirement to take account of their vulnerability, and the growing
appreciation of what ensuring the best interests of the child are a primary concern means in
practice in this context are among factors that have constrained States’ discretion.

2.4 Conclusion: The right to family life and family unity

In conclusion, international human rights law, international humanitarian law and

international refugee law and jurisprudence, together with related regional legal standards
and jurisprudence, clearly affirm the right to family life, which logically leads to a right to
family unity, including for refugees, beneficiaries of complementary protection and other
persons of concern to UNHCR. As the 2001 Summary Conclusions on family unity affirm:
“The obligation to respect the right of refugees to family unity is a basic human right which
applies irrespective of whether or not a country is a party to the 1951 Convention.”72

The research paper entitled “The ‘Essential Right’ to Family Unity of Refugees and Others in
Need of International Protection in the Context of Family Reunification” examines further the
right to family reunification, which can be derived from the right to family life and family

69 Gül v. Switzerland, Application no. 23218/94, ECtHR, 19 February 1996, available at:
http://www.refworld.org/docid/3ae6b6b20.html, para. 38, reiterated in numerous subsequent judgments such as
Jeunesse v. Netherlands, Application no. 12738/10, ECtHR Grand Chamber, 3 October 2014, available at:
http://www.refworld.org/docid/584a96604.html, para. 106.
70 See generally S. Starr and L. Brilmayer, “Family Separation as a Violation of International Law”, Berkeley Journal

of International Law, 21(2), 2003, available at: http://scholarship.law.berkeley.edu/bjil/vol21/iss2/3/, pp. 213-287 at p.

221; H. Lambert, “The European Court of Human Right and the Right of Refugees and Other Persons in Need of
Protection to Family Reunion”, IJRL, 11 (3) 1999, pp. 427-450; H. Lambert, “Family Unity in Migration Law: The
Evolution of a More Unified Approach in Europe”, in Research Handbook on International Law and Migration, V.
Chetail and C. Bauloz (eds), Edward Elgar Publishing, 2015.
71 H. Lambert, “Family Unity in Migration Law”, above fn. 70.

72 UNHCR, Summary Conclusions, Family Unity, above fn. 5, para. 4.

15
unity in international law and which is explicitly recognized as a right in certain regions of
the world.73

3. THE DEFINITION OF FAMILY

The 2001 Summary Conclusions on family unity acknowledge:

“International human rights law has not explicitly defined ‘family’ although there is an
emerging body of international jurisprudence on this issue which serves as a useful
guide to interpretation. The question of the existence or non-existence of a family is
essentially a question of fact, which must be determined on a case-by-case basis,
requiring a flexible approach which takes account of cultural variations, and economic
and emotional dependency factors. For the purposes of family reunification, ‘family’
includes, at the very minimum, members of the nuclear family (spouses and minor
children).”74

The subsections which follow set out relevant jurisprudence and guidance provided at
international and regional level and (very briefly) how “family” is defined in the asylum
context at national level.75 They seek to show how States can develop a clearer definition of
the term “family” and who may be included in it in its different permutations, so as to take
into account international standards and the particular situation of those forced to flee their
homes who may become separated from their families.

3.1 The concept of family in international law and practice

International human rights bodies and UNHCR’s Executive Committee have taken a broad
approach to the question of the definition of the family and who can be considered a family
member, including those beyond the close family.76

The Human Rights Committee (HRC) has affirmed in its General Comment No. 16:
“Regarding the term ‘family’, the objectives of the Covenant require that for purposes of
article 17 this term be given a broad interpretation to include all those comprising the family
as understood in the society of the State party concerned.”77

73 See UNHCR, “The ‘Essential Right’ to Family Unity of Refugees and Others in Need of International Protection
in the Context of Family Reunification”, above fn. 60.
74 Ibid., para. 8.

75 For more on the family definition applied in the context of family reunification, see UNHCR, “The ‘Essential

Right’ to Family Unity of Refugees and Others in Need of International Protection in the Context of Family
Reunification”, above fn. 60, section 4.1.
76 For an overview, see also F. Banda and J. Eekelaar, “International Conceptions of the Family”, International and

Comparative Law Quarterly, vol. 66, October 2017, pp. 833–862.

77 HRC, CCPR General Comment No. 16: Article 17 (Right to Privacy), The Right to Respect of Privacy, Family, Home and

Correspondence, and Protection of Honour and Reputation, 8 April 1988, available at:
http://www.refworld.org/docid/453883f922.html, para. 5. See, also, HRC, CCPR General Comment No. 19: Article 23
(The Family) Protection of the Family, the Right to Marriage and Equality of the Spouses, above fn. 15, para. 2.

16
In its General Comment No. 19, the HRC indicates further:

“[T]he concept of the family may differ in some respects from State to State, and even
from region to region within a State, and … it is therefore not possible to give the
concept a standard definition. However, the Committee emphasizes that, when a
group of persons is regarded as a family under the legislation and practice of a State,
it must be given the protection referred to in article 23. … Where diverse concepts of
the family, “nuclear” and “extended”, exist within a State, this should be indicated
with an explanation of the degree of protection afforded to each. In view of the
existence of various forms of family, such as unmarried couples and their children or
single parents and their children, States parties should also indicate whether and to
what extent such types of family and their members are recognized and protected by
domestic law and practice.”78

In its decision in Ngambi and Nébol v. France,79 the Human Rights Committee recalls the
language its General Comment No. 1680 and goes on to determine:

“The protection of such family is not necessarily obviated, in any particular case, by
the absence of formal marriage bonds, especially where there is a local practice of
customary or common law marriage. Nor is the right to protection of family life
necessarily displaced by geographical separation, infidelity, or the absence of conjugal
relations.”81

In that particular case, the HRC found the documentation attesting to the family relationship
was fabricated. In the case of Winata v. Australia, however, it clearly accepted the longstanding
relationship between the applicants, which had resulted in the birth of a son, as a “de facto
relationship akin to marriage”.82

The Committee on the Rights of the Child has expanded further on the term “family”, stating
that it “must be interpreted in a broad sense to include biological, adoptive or foster parents
or, where applicable, the members of the extended family or community as provided for by
local custom” in accordance with Article 5 of the CRC.83 Furthermore, the Committee has
stated that the protections under Article 9 of the CRC concerning the separation of children
from their parents also extend “to any person holding custody rights, legal or customary

78 HRC, CCPR General Comment No. 19: Article 23 (The Family) Protection of the family, the right to marriage and equality
of the spouses, above fn. 15, para. 2. See also HRC, CCPR General Comment No. 28: Article 3 (The equality of rights
between men and women), 29 March 2000, CCPR/C/21/Rev.1/Add.10, available at:
http://www.refworld.org/docid/45139c9b4.html, para. 27.
79 Benjamin Ngambi and Marie-Louise Nébol v. France, CCPR/C/81/D/1179/2003, UN HRC, 16 July 2004, available at:

http://www.refworld.org/docid/4162a5a46.html.
80 See text at fn. 77 above.

81 Ibid., para. 6.4.

82 Hendrick Winata and So Lan Li v. Australia, CCPR/C/72/D/930/2000, UN HRC, 16 August 2001, available at:

http://www.refworld.org/docid/3f588ef67.html, para. 2.1.

83 CRC Committee, General Comment No. 14, 2013, above fn. 23, para. 59. See also CMW and CRC Committees, Joint

General Comment on the general principles regarding the human rights of children in the context of international migration,
above fn. 24, para. 27.

17
primary caregivers, foster parents and persons with whom the child has a strong personal
relationship”.84

Article 4 of the 1990 Convention on the Protection of the Rights of All Migrant Workers and
Members of their Families includes both married spouses and spouses having a relationship
similar to marriage and acknowledges the concept of dependency as including not only
dependent children but also other dependants, as follows:

“For the purposes of the present Convention the term ‘members of the family’ refers
to persons married to migrant workers or having with them a relationship that,
according to applicable law, produces effects equivalent to marriage, as well as their
dependent children and other dependent persons who are recognized as members of
the family by applicable legislation or applicable bilateral or multilateral agreements
between the States concerned.”85

In the refugee context, UNHCR’s Executive Committee has called on countries of asylum to
apply “liberal criteria in identifying those family members who can be admitted with a view
to promoting a comprehensive reunification of the family”.86 The UNHCR Handbook and
Procedures and Criteria for Determining Refugee Status states: “As to which family members may
benefit from the principle of family unity, the minimum requirement is the inclusion of the
spouse and minor children. In practice, other dependants, such as aged parents of refugees,
are normally considered if they are living in the same household.”87

In international humanitarian law, the (non-binding) Commentary to the Additional Protocols

of the Geneva Conventions of 1949 states: “In the narrow sense, the family covers persons
related by blood and living together as one household.” The Commentary continues:

“[I]t would be wrong to opt for an excessively rigid or precise definition: common
sense must prevail. Thus the word ‘family’ here of course covers relatives in a direct
line – whether their relationship is legal or natural – spouses, brothers and sisters,
uncles, aunts, nephews and nieces, but also less closely related relatives, or even
unrelated persons, belonging to it because of a shared life or emotional ties.”

The Commentary concludes: “In short, all those who consider themselves and are considered
by each other, to be part of a family, and who wish to live together, are deemed to belong to
that family.”88

84 Ibid., para. 60.

85 CMW, Article 4.
86 ExCom Conclusions No. 24, above fn. 45, para. 4 and No. 88, para. b(ii), above fn. 9.

87 UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, above fn. 48, para. 185.

88 Secretariat of the Inter-Governmental Consultations on Asylum, Refugee and Migration Policies in Europe,

North America and Australia, Report on Family Reunification: Overview of Policies and Practices in IGC Participating
Countries, Geneva, Switzerland, March 1997, p. 357, cited in UNHCR, Protecting the Family: Challenges in
Implementing Policy in the Resettlement Context, June 2001, available at:
http://www.refworld.org/docid/4ae9aca12.html, para. 14. (The 1987 Commentary itself is available at:
http://www.loc.gov/rr/frd/Military_Law/pdf/Commentary_GC_Protocols.pdf.)

18
3.2 The concept of family applied at regional level

At regional level the concept of family has been clarified and developed in particular in EU
instruments, European jurisprudence and that of the Inter-American Court of Human Rights
(IACtHR). This section looks generally at who may qualify as a family member beyond a
married couple and their unmarried minor children and in particular as to how regional
instruments have interpreted the concept of dependency. Section 3.3, which follows, provides
further information on specific individuals accepted by regional courts as able to be family
members.

In the EU, different Directives contain slightly different definitions of who may be a family
member for the purposes of the Directive concerned. The focus is very much on close family
members, that is, spouses and minor unmarried children, although dependent parents and
dependent unmarried children are in some circumstances included.

The 2003 EU Family Reunification Directive89 states that EU Member States:

 shall authorise the entry and residence for family reunification of the following family
members: the sponsor's spouse; the minor children of the couple (i.e. unmarried
children below the legal age of majority in the EU country concerned), or of one
member of the couple, where he or she has custody and the children are dependent on
him or her, including in each of these cases adopted children (Article 4(1)), and

 may authorize, under certain conditions, the family reunification of: first-degree
ascendants in the direct line (father and mother of the foreign national) where they are
dependent on them and do not enjoy proper family support in the country of origin);
adult unmarried children where they are objectively unable to provide for their own
needs on account of their state of health (Article 4(2)); and unmarried partners, their
unmarried minor children, including adopted children, and their adult unmarried
children who cannot provide for their own needs on account of their state of health
(Article 4(3)).

Polygamy is not recognized: only one spouse can benefit from the right to reunification and
EU Member States may limit the family reunification of minor children of a further spouse
(Article 4(4). EU countries may also require the non-EU national and his or her spouse to be of
a minimum age (subject to a maximum of 21 years), before they can exercise the right to family
reunification (Article 4(5)).

By way of derogation, where a child aged over 12 years arrives independently from the rest
of his or her family, EU Member States may, before authorizing entry and residence under the
Directive, verify whether the family member meets integration conditions (Article 4(1)).
Member States may, in addition, require applications for the family reunification of minor

89 EU Family Reunification Directive, above fn. 59, Article 4.

19
children to be submitted before the age of 15, if this was provided for in existing legislation
on the date of the implementation of the Directive (Article 4(6)).90

The 2003 Long-term Residents Directive,91 which is intended to ensure long-term EU

residents enjoy a “set of uniform rights which are as near as possible to those enjoyed by
citizens of the European Union”, was extended to apply to beneficiaries of international
protection in 2011.92 It applies the definition of family contained in the Family Reunification
Directive and provides that when a long-term resident exercises his or her right to reside in
another EU Member State and when the family was already constituted in the first Member
State, the second Member State shall authorize family members as defined in Article 4(1) of
the Family Reunification Directive (see above) to accompany or join him or her, while it may
authorize other family members to do so.

The 2013 recast Reception Conditions Directive93 defines family members as comprising the
asylum-seeker’s spouse, including “his or her unmarried partner in a stable relationship”, the
couple’s unmarried minor children, whether “born in or out of wedlock or adopted”, and,
when the asylum-seeker is an unmarried minor child, that child’s father, mother or another
adult responsible for him or her. It also requires that “the family already existed in the country
of origin” and that the family member be already present in the same country as the asylum-
seeker (Article 2(c)).

The 2004 EU Free Movement Directive94 defines family members more broadly as comprising
the spouse; the partner in a registered partnership accepted as equivalent to marriage in the
Member State concerned; direct descendants under the age of 21 and dependants (including
of the spouse or partner); and dependent direct relatives in the ascending line (including of
the spouse or partner) (Article 2(2)).

As for the European Commission’s Proposal for a Regulation to replace the Qualification
Directive presented in July 2016, this affirms:

“The notion of family members should take into account the different particular
circumstances of dependency and the special attention to be paid to the best interests
of the child. It should also reflect the reality of current migratory trends, according to
which applicants often arrive to the territory of the Member States after a prolonged

90 The practice regarding these issues is discussed further in the UNHCR, “The ‘Essential Right’ to Family Unity of
Refugees and Others in Need of International Protection in the Context of Family Reunification”, above fn. 60.
91 Council of the EU, Long-term Residents Directive, above fn. 61.

92 Council of the EU, Directive 2011/51/EU amending Council Directive 2003/109EC to extend its scope to beneficiaries of

international protection, above fn. 62.

93 Council of the EU, Directive 2013/33/EU of the European Parliament and Council of 26 June 2013 laying down standards

for the reception of applicants for international protection (recast), 29 June 2013, OJ L. 180/96-105/32, 2013/33/EU,
available at: http://www.refworld.org/docid/51d29db54.html, (recast Reception Conditions Directive).
94 Council of the EU, Directive 2004/38/EC of the European Parliament and the Council of 29 April 2004 on the right of

citizens of the Union and their family members to move and reside freely within the territory of the Member States amending
Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC,
75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, 29 April 2004, 2004/38/EC, available at:
http://www.refworld.org/docid/4a54bbb00.html (Free Movement Directive).

20
 period of time in transit. The notion should therefore include families formed outside
the country of origin, but before their arrival on the territory of the Member State.”95

The Proposal defines family members of a beneficiary of international protection present in

the same Member State as comprising: (a) his or her spouse or his or her unmarried partner
in a stable relationship; (b) the unmarried, minor children of this couple or of the beneficiary
of international protection, regardless of whether they were born in or out of wedlock or
adopted as defined under national law; and (c) in the case of a minor, unmarried beneficiary
of international protection, the father, mother or another adult responsible for whether by law
or by the practice of the Member State concerned. It also states that the family should “already
[have] existed before the applicant arrived on the territory of the Member States” (as opposed
to before departure from the country of origin).96

In the Americas, the Inter-American Court of Human Rights has taken an approach that goes
beyond “the traditional notion of a couple and their children” to include other blood relatives
and others with no biological relation among whom there are “close personal ties”. In its 2014
Advisory Opinion on the Rights and Guarantees of Children in the Context of Migration and/or in
Need of International Protection the IACtHR defines the family as follows:

“[T]he family to which every child has a right is, above all, her or his biological family,
including extended family, and which should protect the child and also be the priority
object of the measures of protection provided by the State. Nevertheless, the Court
recalls that there is no single model for a family. Accordingly, the definition of family
should not be restricted by the traditional notion of a couple and their children,
because other relatives may also be entitled to the right to family life, such as uncles
and aunts, cousins, and grandparents, to name but a few of the possible members of
the extended family, provided they have close personal ties. In addition, in many
families the person or persons in charge of the legal or habitual maintenance, care and
development of a child are not the biological parents. Furthermore, in the migratory
context, “family ties” may have been established between individuals who are not
necessarily family members in a legal sense, especially when, as regards children, they
have not been accompanied by their parents in these processes.”97

From a human rights perspective therefore and in order to be in line with the interpretation
of these regional courts, it is necessary to identify and apply a broad definition of “family”
that recognizes de facto family ties beyond narrow close family members. When defining who

95 European Commission, Proposal for a Regulation of the European Parliament and of the Council on standards for the
qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status
for refugees or for persons eligible for subsidiary protection and for the content of the protection granted and amending Council
Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents,
(European Commission Proposal for a Regulation to Replace the Qualification Directive) COM(2016) 466 final, 2016/0223
(COD), 13 July 2016, available at: http://www.refworld.org/docid/58ac43474.html, recital 16.
96 Ibid., Article 2(9).

97 Advisory Opinion OC-21/14, Rights and Guarantees of Children in the Context of Migration and/or in Need of

International Protection, OC-21/14, IACtHR, 19 August 2014, available at:

http://www.refworld.org/docid/54129c854.html, (footnotes omitted), para. 272.

21
may otherwise qualify as a family member, the extent of dependency and the closeness of
personal ties have been identified as relevant criteria to be assessed.

3.3 Individuals accepted as able to be family members by international bodies and regional courts

This section examines the relations between different individuals that have been accepted by
the Human Rights Committee and by regional courts – notably the ECtHR98 and IACtHR – as
able to constitute family life and thus who may be considered as family members. The listing
is non-exhaustive.

The ECtHR has on numerous occasions ruled that the “existence or non-existence of ‘family
life’ … is essentially a question of fact depending upon the real existence in practice of close
personal ties”.99 Relevant factors to be assessed when deciding whether a relationship can be
said to amount to “family life” are outlined below.

With regard to the Court of Justice of the European Union (CJEU), its jurisprudence essentially
focuses on interpreting the terminology of existing Directives, which are generally quite
prescriptive. It is thus more constrained by the terms of these Directives as regards family
composition.

3.3.1 Married spouses

Lawfully and genuinely married spouses come within the term “family”. As the ECtHR ruled
in Abdulaziz, Cabales and Balkandali v. United Kingdom, a case which concerned three women
lawfully and permanently settled in the UK who were seeking to bring their three respective
husbands to the UK:

“Whatever else the word ‘family’ may mean, it must at any rate include the
relationship that arises from a lawful and genuine marriage, … even if a family life …
has not yet been fully established. Those marriages must be considered sufficient to
attract such respect as may be due under Article 8 [of the ECHR].”100

In addition, a lack of cohabitation does not necessarily mean there is no family life.101 There is
also no mention in the judgment concerning Mr and Mrs Cabales, whose marriage was not
recognized in domestic law (see below section 3.3.2), of the couple having any children,
though their relationship was recognized as constituting family life. Furthermore, the

98 See generally, ECtHR, Practical Guide on Admissibility Criteria, 2014, available at:
http://www.refworld.org/docid/54856b9c4.html, pp. 71-73.
99 See e.g. L. v. The Netherlands, Application no. 45582/99, ECtHR, 1 June 2004, available at:
http://www.refworld.org/docid/5852a7e54.html, para. 36.
100 Abdulaziz, Cabales and Balkandali v. UK, ECtHR, 1985, above fn. 67, para. 62.

101 Berrehab v. The Netherlands, Application no. 10730/84, ECtHR, 28 May 1988, available at:
http://www.refworld.org/docid/3ae6b6f424.html, para. 21, cited with approval in Wayne Smith, Hugo Armendariz,
et al. v. United States, Report N. 81/10 - Case 12.562, Inter-American Commission on Human Rights, 12 July 2010,
available at: http://www.refworld.org/docid/502ccca62.html; Kroon and Others v. The Netherlands, Application no.
18535/91, ECtHR, 27 October 1994, available at: http://www.refworld.org/docid/584a99574.html.

22
situation of a married couple who are separated, where one continues to lend the other
support after separation may also constitue a relationship falling within Article 8 ECHR.102

In the case of polygamy, however, the HRC states:

“[E]quality of treatment with regard to the right to marry implies that polygamy is
incompatible with this principle. Polygamy violates the dignity of women. It is an
inadmissible discrimination against women. Consequently, it should be definitely
abolished wherever it continues to exist.”103

Similarly, the Committee on the Elimination of Discrimination against Women has

determined that polygamy is a violation of Article 5 of CEDAW and has serious implications
for the emotional and financial wellbeing of a woman and her dependents.104

3.3.2 Unmarried couples and couples whose marriage is not recognized

In the ECtHR’s jurisprudence, the notion of “family life” in Article 8 is not confined solely to
families based on marriage and may encompass other de facto “family” ties where the parties
are living together outside marriage.105 When deciding whether a relationship can be said to
amount to “family life”, the Court has ruled that “a number of factors may be relevant,
including whether the couple live together, the length of their relationship and whether they
have demonstrated their commitment to each other by having children together or by any
other means”.106

Marriages that are not in accordance with national law are not necessarily a bar to family life.
In Abdulaziz, Cabales and Balkandali, one of the three women concerned had entered into a
purely religious marriage not recognized in domestic law. The Court’s judgment found:

“Mr. and Mrs. Cabales had gone through a ceremony of marriage … and the evidence
before the Court confirms that they believed themselves to be married and that they
genuinely wished to cohabit and lead a normal family life. And indeed they
subsequently did so. In the circumstances, the committed relationship thus established
was sufficient to attract the application of Article 8.”107

102 M.P.E.V. and Others v. Switzerland, Application no. 3910/13, ECtHR, 8 July 2014, available at:
http://www.refworld.org/cases,ECHR,53bd356f4.html, para. 56.
103 HRC, CCPR General Comment No. 28: Article 3 (The equality of rights between men and women), 2000, above fn. 78,

para. 24.
104 UN Committee on the Elimination of Discrimination Against Women, General Recommendation No. 21: Equality

in marriage and family relations, 1994, available at: http://www.refworld.org/docid/48abd52c0.html, para. 14.
105 See, among many authorities, Marckx v. Belgium, ECtHR, 1979, above fn. 68, para. 31; Keegan v. Ireland,

Application no. 16/1993/411/490, ECtHR, 19 April 1994, available at:

http://www.refworld.org/docid/3ae6b6ff8.html, para. 44; Kroon and Others v. the Netherlands, ECtHR, 1994, above
fn. 101, para. 30; X., Y. and Z. v. United Kingdom, Application no. 75/1995/581/667, ECtHR (Grand Chamber), 22
April 1997, available at: http://www.refworld.org/docid/3ae6b69010.html, para. 36; Z.H. and R.H. v. Switzerland,
Application no. 60119/12, ECtHR, 8 December 2015, available at: http://www.refworld.org/docid/566843824.html,
para. 42.
106 See e.g. X., Y. and Z. v. UK, ECtHR, 1997, above fn. 105, para. 36, and cases cited there, as well Z.H. and R.H. v.

Switzerland, ECtHR, 2015, above fn. 105, para. 42 and case cited there.
107 Abdulaziz, Cabales and Balkandali v. UK, ECtHR, 1985, above fn. 67, para. 63.

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As an exception to this rule, the ECtHR has not recognized early marriage as constituting
family life. The case of Z.H. and R.H. v. Switzerland108 concerned two Afghan nationals who
had a religious marriage ceremony in Iran in 2010, when Z.H. was 14 years old and R.H. was
18 years old. A year later they applied for asylum in Switzerland, which determined that Italy
was responsible for assessing the claim under the (then applicable) Dublin II
Regulation.109 R.H. was expelled to Italy, but he returned to Switzerland after three days
following which he was de facto allowed to remain in Switzerland despite his illegal presence
and was able to request a re-examination of his asylum application. The Court concurred with
the Swiss Federal Administrative Court’s view that “the applicants’ religious marriage was
invalid under Afghan law and in any case was incompatible with Swiss ordre public due to the
first applicant’s young age”. Once Z.H. turned 17, however, the authorities recognized that
family life subsisted between the applicants and decided they should benefit from a joint
asylum procedure. Subsequently, their religious marriage was judicially recognized by a
Swiss court and they were both granted asylum. The Court considered that overall a fair
balance had been struck between the personal interests of the applicants in remaining together
pending the outcome of Z.H.’s asylum application and the public order interests of the State
in controlling immigration.

In the Americas, the IACtHR reiterated in the Atala Riffo case that “the concept of family life
is not limited only to marriage and must encompass other de facto family ties in which the
parties live together outside of marriage”.110

3.3.3 Engaged couples

The European Commission on Human Rights has ruled that engagement does not in itself
create family life.111 In Abdulaziz, Cabales and Balkandali, the ECtHR nonetheless ruled that “by
guaranteeing the right to respect for family life, Article 8 ‘presupposes the existence of a
family’”, but that “this does not mean that all intended family life falls entirely outside its
ambit”.112

The Court has further determined that intended family life may, exceptionally, fall within the
ambit of Article 8, notably in cases where the fact that family life has not yet fully been
established is not attributable to the applicant.113 Edwards has argued that “[w]here the

108 Z.H. and R.H. v. Switzerland, ECtHR, 2015, above fn. 105.
109 Council of the EU, Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms
for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a
third-country national (Dublin II Regulation), 18 February 2003, OJ L. 50/1-50/10; 25.2.2003, (EC) No. 343/2003,
available at: http://www.refworld.org/docid/3e5cf1c24.html.
110 Caso Atala Riffo y Niñas v. Chile, IACtHR, 24 February 2012, available in English and Spanish at:

http://www.refworld.org/docid/4f840a122.html, para. 142. See also Advisory Opinion OC-21/14, Rights and
Guarantees of Children in the Context of Migration and/or in Need of International Protection, IACtHR, 2014, quoted
above at fn. 97.
111 Wakefield v. United Kingdom, Application no. 15817/89, Council of Europe: European Commission on Human

Rights, Admissibility Decision, 1 October 1990, available at: http://www.refworld.org/docid/583ed8874.html.

112 Abdulaziz, Cabales and Balkandali v. UK, ECtHR, above fn. 67, para. 62 (emphasis added).

113 Pini and Others v. Romania, Applications nos. 78028/01 and 78030/01, ECtHR, 22 June 2004, available at:

http://www.refworld.org/cases,ECHR,58a730ab4.html, paras. 143 and 146. The case concerned two Italian couples

24
‘intended’ spouse is known to the family before their departure or arrangements for marriage
were in place but were interrupted, it is also arguable that entry and residence are required in
order to effect the marriage”.114

3.3.4 Same-sex couples (and their children)

Both the ECtHR and the IACtHR accept that same-sex couples are able to establish family life
and therefore that they can come within the definition of family. Both courts have also
accepted that the situation of homosexual couples who have adopted or natural children and
are living together can constitute family life.

In 2010, the ECtHR ruled that a homosexual couple living in a stable relationship falls within
the notion of “family life”, in the same way as the relationship of a heterosexual couple.115
Whereas previously the Court had considered such cases in the context of private life, in its
judgment in Schalk and Kopf v. Austria, it ruled that “a cohabiting same-sex couple living in a
stable de facto partnership, falls within the notion of ‘family life’, just as the relationship of a
different-sex couple in the same situation would”. It also found “no basis for drawing the
distinction … between those applicants who live together and those who – for professional
and social reasons – do not, … since … the fact of not cohabiting does not deprive the couples
concerned of the stability which brings them within the scope of family life within the
meaning of Article 8”.116

The ECtHR has also found that the situation of same-sex couples applying for registered
partnership status, who were unable to do so because legislation does not permit this for
same-sex couples, falls within the definition of “family life”.117 This position may be
particularly relevant in the case of same-sex couples recognized as facing persecution or
serious harm and therefore as being in need of international protection, who are seeking to
reunite.

With regard to children in families headed a same-sex couple, the ECtHR has found that the
relationship between two women, who were living together and had entered into a civil
partnership, and the child conceived by one of them by means of assisted reproduction but

seeking to adopt two Romanian girls, where a Romanian court had failed to execute decisions concerning the
adoptions, although no violation of Article 8 was found.
114 Edwards, “Human Rights, Refugees, and the Right ‘To Enjoy’ Asylum”, above fn. 40, p. 317.

115 Schalk and Kopf v. Austria, Application no. 30141/04, ECtHR, 24 June 2010, available at:
http://www.refworld.org/docid/4c29fa712.html, paras. 92-94; P.B. and J.S. v. Austria, Application no. 18984/02,
ECtHR, 22 July 2010, available at: http://www.refworld.org/docid/5852b79e4.html, para. 30; X. and Others v. Austria,
Application no. 19010/07, ECtHR, Grand Chamber, 19 February 2013, available at:
http://www.refworld.org/docid/5852c33f4.html, para. 95.
116 Schalk and Kopf v. Austria, ECtHR, above fn. 115, para. 94.

117 Vallianatos and Others v. Greece, Applications nos. 29381/09 and 32684/09, ECtHR, Grand Chamber, 7 November

2013, available at: http://www.refworld.org/cases,ECHR,5899eafb4.html, paras. 73-74, finding a violation of Article

8 taken with Article 14 ECHR; Taddeucci et McCall c. Italie, Requête no. 51362/09, ECtHR, 30 June 2016, available at:
http://www.refworld.org/docid/5852ba884.html; Oliari and Others v. Italy, Applications nos. 18766/11 and
36030/11, ECtHR, 21 July 2015, available at: http://www.refworld.org/docid/55af917a4.html.

25
being brought up by both of them, constituted “family life” within the meaning of Article 8 of
the Convention.118

As for the IACtHR, it ruled in 2012 in the case of Atala Riffo, which also concerned a lesbian
couple with children, ruled:

“[I]t is clear that they had created a family unit which, as such, was protected under
Articles 11(2) and 17(1) of the American Convention [on Human Rights], since they
shared their lives, with frequent contact and a personal and emotional closeness
between Ms. Atala, her partner, her eldest son and the three girls. The aforementioned,
without prejudice to the fact that the girls shared another family environment with
their father.” 119

3.3.5 Children (including in cases of divorce)

In the settled case law of the ECtHR, a child born of a marital union is ipso jure part of that
relationship. For instance, the Court stated in Berrehab v. the Netherlands:

“The Court … does not see cohabitation as a sine qua non of family life between
parents and minor children. … It follows from the concept of family on which Article
8 (art. 8) is based that a child born of such a union is ipso jure part of that relationship;
hence, from the moment of the child's birth and by the very fact of it, there exists
between him [or her] and his [or her] parents a bond amounting to ‘family life’, even
if the parents are not then living together.”120

The Court has also found that the mutual enjoyment by parent and child of each other’s
company constitutes a fundamental element of “family life” within the meaning of Article 8
of the Convention121 and that the family relationship between natural parents and their child
“is not terminated by reason of the fact that the parents separate or divorce as a result of which
the child ceases to live with one of its parents”.122 This position was reaffirmed both in relation
to the parent and child, for instance, where the father raised his daughter with the mother and

118 Gas and Dubois v. France, Application no. 25951/07, ECtHR, Admissibility Decision, 31 August 2010,
http://www.refworld.org/docid/583ffa924.html.
119 Caso Atala Riffo y Niñas v. Chile, IACtHR, 2012, above fn. 110, para. 177.

120 Berrehab v. The Netherlands, ECtHR, 1988, above fn. 101, para. 21, and many other authorities including Ahmut v.

The Netherlands, Application no. 73/1995/579/665, ECtHR, 28 November 1996, available at:
http://www.refworld.org/docid/3ae6b69014.html, para. 30; Gül v. Switzerland, ECtHR, 1996, above fn. 69, para. 32;
Al-Nashif and Others v. Bulgaria, App. No. 50963/99, ECtHR 20 June 2002, available at:
http://www.refworld.org/cases,ECHR,468cbc9d0.html, para. 112.
121 See, among many authorities, Kutzner v. Germany, Application no. 46544/99, ECtHR, 26 February 2002, available

at: http://www.refworld.org/cases,ECHR,58c166454.html, para. 58; Monory v. Romania and Hungary, Application

no. 71099/01, ECtHR, 5 July 2005, available at: http://www.refworld.org/cases,ECHR,5a4ca8d54.html, para. 70.
122 Ciliz v. The Netherlands, Application no. 29192/95, ECtHR, 11 July 2000, available at:
http://www.refworld.org/docid/3ae6b6fd1f.html, para. 59, citing Berrehab v. The Netherlands, ECtHR, 1988, above
fn. 101, para. 21 and Keegan v. Ireland, ECtHR, 1994, above fn. 105, para. 50. See also generally, Parliamentary
Assembly of the Council of Europe (PACE), Committee on Migration, Refugees and Displaced Persons, Position
paper on family reunification, 2 February 2012, AS/Mig (2012) 01, available at:
http://www.refworld.org/docid/583ed4ef7.html, paras. 11-12.

26
continued to involve himself in the child’s upbringing following their separation,123 and in
relation to siblings when the parents separate or divorce.124

3.3.6 Children born outside marriage

The ECtHR has confirmed:

“Article 8 (art. 8) makes no distinction between the ‘legitimate’ and the ‘illegitimate’
family. Such a distinction would not be consonant with the word ‘everyone’, and this
is confirmed by Article 14 (art. 14) with its prohibition, in the enjoyment of the rights
and freedoms enshrined in the Convention, of discrimination grounded on ‘birth’.”125

Just as for children born of married parents, the Court has determined that “where the parties
are living together out of wedlock”, “a child born out of such a relationship is ipso jure part
of that ‘family’ unit from the moment and by the very fact of his [or her] birth.”126

Also settled ECtHR case law is that:

“[I]n the absence of co-habitation, other factors may serve to demonstrate that a
relationship has sufficient constancy to create de facto family ties. … Such factors
include the nature and duration of the parents’ relationship, and in particular whether
they had planned to have a child; whether the father subsequently recognised the child
as his; contributions made to the child’s care and upbringing; and the quality and
regularity of contact.”127

3.3.7 Adopted and foster children

As for adopted children and their adoptive parents, the ECtHR has recognized that a lawful
and genuine adoption may constitute “family life”, even in the absence of cohabitation or any
real ties between an adopted child and the adoptive parents.128

123 M.P.E.V. and Others v. Switzerland, ECtHR, 2014, above fn. 102, para. 57.
124 Mustafa and Armağan Akın v. Turkey, Application no. 4694/03, ECtHR, 6 April 2010, available at:
http://www.refworld.org/docid/5852aa214.html, para. 19.
125 Marckx v. Belgium, ECtHR, 1979, above fn. 68, (concerning an unmarried mother and her illegitimate daughter);

A.W. Khan v. United Kingdom, Application no. 47486/06, ECtHR, 12 January 2010, available at:
http://www.refworld.org/docid/4b4f05c02.html, paras. 34-35 (concerning a father originating from Pakistan who
faced expulsion and who had a daughter with a British citizen who was unable to live with his partner and
daughter but who had daily contact with them, even though he had lived with his mother and brothers until facing
expulsion).
126 Schalk and Kopf v. Austria, ECtHR, above fn. 115, referring at para. 91 to Elsholz v. Germany Application no.

25735/94, ECtHR Grand Chamber, 13 July 2001, available at:

http://www.refworld.org/cases,ECHR,58a72da64.html, para. 43; Keegan v. Ireland, ECHR, 1994, above fn. 105, para.
44; and Johnston and Others v. Ireland, Application no. 9697/82, ECtHR, 18 December 1986, available at:
http://www.refworld.org/cases,ECHR,58a72e674.html, para. 56.
127 Onur v. United Kingdom, Application no. 27319/07, ECtHR, 17 February 2009, available at:
http://www.refworld.org/docid/49b153742.html, para. 44 (references to other cases omitted).
128 Pini and Others v. Romania, ECtHR, 2004, above fn. 113, paras. 143-148. This language was reiterated in Topčić-

Rosenberg v. Croatia, Application no. 19391/11, ECtHR, 14 November 2013, available at:
http://www.refworld.org/docid/5852bb034.html, para. 38.

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The adoption need not, however, necessarily be formal, since the Court has also recognized
the existence of de facto “family life” between foster parents and a child placed with them,
having regard to the time spent together, the quality of the relationship and the role played
by the adult vis-à-vis the child.129 Nor does family life cease when a child is taken into care.130

3.3.8 Parents

The 2017 Joint General Comment by the Committee on the Rights of All Migrant Workers and
Members of their Families (CMW Committee) and the CRC Committee affirms that “the term
‘parents’ must be interpreted in a broad sense to include biological, adoptive or foster parents,
or, where applicable, the members of the extended family or community as provided for by
local custom”.131

3.3.9 Relations between adult children and their parents and between adult siblings

At the international level, the Human Rights Committee has found that relations between
parents and their adult children can constitute family relations. The case of Warsame v. Canada
concerned an adult man of Somali origin living for many years in Canada, whose proposed
deportation would inter alia have separated him from his mother and sisters, when he had no
family in Somalia. In its judgment, the Committee noted that his deportation to Somalia would
interfere with his family relations in Canada and concluded that “the interference with the
author’s family life, which would lead to irreparably severing his ties with his mother and
sisters in Canada would be disproportionate to the legitimate aim of preventing the
commission of further crimes”.132

As for the ECtHR, it has determined that “there will be no family life between parents and
adult children unless they can demonstrate additional elements of dependence”.133

In the expulsion case of A.W. Khan v. United Kingdom, the Court did not accept that “the fact
that the [adult] applicant was living with his mother and brothers, or the fact that the entire
family suffered from different health complaints, constitutes a sufficient degree of

129 Moretti et Benedetti c. Italie, Requête no. 16318/07, ECtHR, 27 April 2010, available at:
http://www.refworld.org/docid/5852a94d7.html, paras. 48-52.
130 Johansen v. Norway, Application no. 24/1995/530/616, ECtHR, 27 June 1996, available at:
http://www.refworld.org/cases,ECHR,5a2fa9934.html, para. 52.
131 CMW and CRC Committees, Joint General Comment on the general principles regarding the human rights of children

in the context of international migration, above fn. 24, para. 27, referring to CRC Committee, General Comment No. 14,
2013, above fn. 23, para. 59.
132 Jama Warsame v. Canada, CCPR/C/102/D/1959/2010, UN HRC, 1 September 2011, available at:
http://www.refworld.org/docid/4ee0f0302.html, paras. 8.8 and 8.10.
133 See numerous ECtHR rulings including: Kwakye-Nti et Dufie c. Pays Bas, Requête no. 31519/96, ECtHR,

Admissibility Decision, 7 November 2000, available at: http://www.refworld.org/docid/5852a72c4.html; Ezzouhdi

c. France, Requête no. 47160/99, ECtHR, 13 February 2001, available at:
http://www.refworld.org/cases,ECHR,58c164fe4.html, para. 34; Slivenko v. Latvia, Application no. 48321/99, ECtHR,
Grand Chamber, 9 October 2003, available at: http://www.refworld.org/docid/402b5b034.html, para. 97; A.W. Khan
v. UK, ECtHR, above fn. 125, para. 32; A.S. v. Switzerland, Application no. 39350/13, ECtHR, 30 June 2015, available
at: http://www.refworld.org/docid/5592b8064.html, and Z.H. and R.H. v. Switzerland, ECtHR, 2015, above fn. 105.
Such relations may, however, come within “private life” for the purposes of Article 8 ECHR.

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dependence to result in the existence of family life”, since the applicant was not “necessarily
the sole carer for his mother and brothers” and there was no evidence regarding the health
complaints suggesting that “these conditions are so severe as to entirely incapacitate them”.134

By contrast, in the case of Maslov v. Austria, the Court has accepted that, where young adults
have not yet founded a family of their own, their relationship with their parents and other
close family members can constitute “family life”.135 This position was confirmed by the court
in A.A. v. United Kingdom when it ruled: “An examination of the Court’s case-law would tend
to suggest that the applicant, a young adult of 24 years old, who resides with his mother and
has not yet founded a family of his own, can be regarded as having ‘family life’”.136

The ECtHR has also recognized that family life can exist between adult siblings,137 although
again it requires “further elements of dependency involving more than the normal emotional
ties” for family life to be recognized.

3.3.10 Other potential family members

With regard to older family members, the CESCR Committee has advised: “States parties
should make all the necessary efforts to support, protect and strengthen the family and help
it, in accordance with each society’s system of cultural values, to respond to the needs of its
dependent ageing members.”138 In the context of protecting the family life of asylum-seekers
and refugees, Hathaway has argued that this should be read to “compel the inclusion of such
persons in the family unit”.139

With regard to the relationship between grandparents and grandchildren, the ECtHR has
ruled that “‘family life’, within the meaning of Article 8, includes at least the ties between near
relatives, for instance those between grandparents and grandchildren, since such relatives
may play a considerable part in family life”.140

134 A.W. Khan v. UK, above fn. 125, para. 32.

135Maslov v. Austria, Application no. 1638/03, ECtHR, 22 March 2007, available at:
http://www.refworld.org/docid/464423e22.html and Maslov v. Austria, Application no. 1638/03, ECtHR, Grand
Chamber, 23 June 2008, available at: http://www.refworld.org/docid/5852a8b97.html, para. 62, referring also earlier
authorities.
136 A.A. v. United Kingdom, Application no. 8000/08, ECtHR, 20 September 2011, available at:
http://www.refworld.org/docid/583edcf1124.html, para. 49.
137 Moustaquim v. Belgium, Application no. 12313/86, ECtHR, 18 February 1991, available at:
http://www.refworld.org/docid/3ae6b7018.html, para. 36; Boughanemi v. France, Application no. 16/1995/522/608,
ECtHR, 27 March 1996, available at: http://www.refworld.org/docid/3ae6b6f24.html, para. 35. Both were expulsion
cases. See also cases cited above at fn. 133.
138 UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 6: The Economic, Social

and Cultural Rights of Older Persons, 8 December 1995, E/1996/22, available at:
http://www.refworld.org/docid/4538838f11.html, para. 31.
139 J.C. Hathaway, The Rights of Refugees under International Law, CUP, 2005, p. 554.

140 Marckx v. Belgium, ECtHR, 1979, above fn. 68, para. 45; L. v. Finland, Application no. 25651/94, ECtHR, 27 April

2000, available at: http://www.refworld.org/cases,ECHR,5a4caaf94.html, para. 101. See also Price v. United Kingdom,
Application no. 12402/86, European Commission on Human Rights, Admissibility Decision, 9 March 1988, available
at: http://www.refworld.org/docid/583ed9a17.html; Bronda v. Italy, Application no. 40/1997/824/1030, ECtHR, 9 June
1988, available at: http://www.refworld.org/docid/583fefd07.html, para. 51. These two cases concerned the (in one
case adoptive) grandparents of a child taken into care, among whom there were strong ties.

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The European Commission of Human Rights has recognized other relations as coming within
the concept of family life, such as those between an uncle and his minor nephew.141 For its
part, the Court has also found family life to exist between two minor siblings and their aunt
and uncle in the case of Butt v. Norway.142 In the case of F.N. v. United Kingdom it found that
family life existed between an aunt and her adult niece, who “lived with and was more than
usually dependent on her aunt as a result of her vulnerable mental state” and whose “aunt
appears to be her only surviving relation”.143 Finally, the Court has recognized family life
without the existence of blood ties.144

With regard to indigenous families, the IACtHR has recognized “the special significance that
the coexistence of the family has in the context of an indigenous family, which is not limited
to the familial nucleus but also includes the distinct generations that make up the family and
includes the community of which the family forms a part”.145

3.4 The definition of family applied by States

The absence of an agreed definition of “family” at the international level has meant that States
may define the term according to their own interests, culture and system. Any such definition
must, however, be “without discrimination”. As Edwards has observed:

“[T[he failure to agree a definition of, or to elaborate guiding principles, on what

constitutes a family unit, has produced a dichotomy. On the one hand, this absence
has allowed States to circumvent their obligations under international law, while on
the other hand, it has given scope for the recognition of culturally-influenced, as well
as evolving forms, of the ‘family’ beyond the Eurocentric ‘nuclear family’.”146

The Constitutional Court of the Czech Republic addressed the question of the definition of
the family and the State’s resulting obligations in a case concerning the guardianship of a
young girl, whose mother was dead and whose paternity was initially contested. In its 2007
judgment the Court noted: “[T]he family is, in the first place, a biological connection, and then
a social institution, which is only subsequently defined by a legal framework.” As a result, it

141 Boyle v. United Kingdom, Application no. 16580/90, European Commission on Human Rights, 9 February 1993,
available at: http://www.refworld.org/cases,COECOMMHR,583fec324.html, paras. 41-47.
142 Butt v. Norway, Application no. 47017/09, ECtHR, 4 December 2012, available at:
http://www.refworld.org/docid/583ff1167.html, para. 76.
143 F.N. v. United Kingdom, Application no. 3202/09, ECtHR, admissibility decision, 17 September 2013, available at:

http://www.refworld.org/docid/583ff73d4.html, para. 36. The case was declared inadmissible on the grounds that
the applicant (the niece) had been found not to be in need of international protection and her removal was not
disproportionate to the legitimate aim of maintaining effective immigration control. See also Javeed v. The
Netherlands, Application no. 47390/99, ECtHR, Admissibility Decision, 3 July 2001 available at:
http://www.refworld.org/docid/584a94e44.html (concerning an aunt and her minor nieces).
144 X., Y. and Z. v. UK, ECtHR, 1997, above fn. 105, concerning a female-to-male transsexual and his child born by

artificial insemination.
145 Case of Chitay Nech et al. v. Guatemala, Serie C No. 212, IACtHR, 25 May 2010, available at:

http://www.refworld.org/docid/4f5a127a2.html, para. 159.

146 Edwards “Human Rights, Refugees, and the Right ‘To Enjoy’ Asylum”, above fn. 40, p. 313.

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ruled that “when interpreting these concepts, we must take into account the biological
connection, and then also the social reality of the family and family life”. The Court defined
the family as “a social group of related persons, among whom there are close ties – blood,
psychosocial, emotional, economical, etc”. It stated that “legal protection as a family can also
be enjoyed by a social group of persons living outside the institution of marriage, or a group
of persons not related by blood, among whom there are nonetheless the abovementioned
emotional and other ties”. The Court found that the “concept of family and family life also
assumes the importance of blood ties between family members”. Drawing on the
jurisprudence of the ECtHR, the Constitutional Court found that “it follows from the
obligation to respect family life that, as soon as the existence of a family relationship is proved,
the state must fundamentally act in a manner so that this relationship can develop, and must
take measures that will enable parent and child to be reunited”.147

The family definition applied by States in the asylum context generally focuses on the close or
nuclear family. As but one example of the narrower definition adopted by many European
States in the asylum context, in Italy, “family members” comprise, in so far as the family
already existed in the country of origin, the spouse; the minor, unmarried children regardless
of whether they were born in or out of wedlock or adopted as defined under national law;
and, if the applicant/beneficiary of international protection is a minor and unmarried, the
father, mother or another adult responsible.148

By contrast, some States, notably in Africa and the Americas, accept dependent family
members as able to be part of the family. For instance, in South Africa, the Refugee Act defines
dependants of a refugee or asylum-seeker as including “the spouse, any unmarried dependent
child or any destitute aged or infirm member of the family”.149 In South Sudan, the members
of a refugee’s family comprise a spouse or spouses of the refugee; dependent children of the
refugee; and any person who is dependent on the refugee.150

As the South African Constitutional Court has acknowledged: “[F]amilies come in many
shapes and sizes. The definition of the family also changes as social practices and traditions
change. In recognising the importance of the family, we must take care not to entrench
particular forms of family at the expense of other forms.”151

147 Judgment II. ÚS 568/06: Protection of Family Life, Czech Republic: Constitutional Court, 20 February 2007, available
at: http://www.refworld.org/docid/5a4cbe7f4.html. In this case, the father was later proven to be the son of the
woman to whom guardianship had been assigned, not the dead mother’s husband. While acknowledging the
different ties between the parties involved, the Court gave weight to the relationship between the girl and her
grandmother, with whom there was a direct blood line, as well as emotional and other psychosocial ties. It
overturned the lower court decision granting access to the dead mother’s husband, referring both to the best
interests of the child and the right to family life of the grandmother.
148 See among others, Legislative Decree 251/2007 (transposition of Qualification Directive 2004/83/EU and Directive

2011/95/EU), Article 2; Legislative Decree 142/2015 (transposition of Reception Conditions Directive 2013/33/EU),
Article 2.
149 South Africa: Act No. 130 of 1998, Refugee Act, 1998, 26 November 2008, available at:
http://www.refworld.org/docid/4a54bbd4d.html, section 1(ix).
150South Sudan: Refugee Act, 2012, Act No. 20, 2012, available at: http://www.refworld.org/docid/51499cd02.html,

Article 5.
151 Dawood and Another v. Minister of Home Affairs and Others; Shalabi and Another v. Minister of Home Affairs and

Others; Thomas and Another v. Minister of Home Affairs and Others, CCT35/99 2000 (8) BCLR 837 (CC), South Africa:
Constitutional Court, 7 June 2000, available at: http://www.refworld.org/docid/58501f464.html, para. 31. All three

31
The research paper entitled “The ‘Essential Right’ to Family Life and Family Unity of Refugees
and Others in Need of International Protection in the Context of Family Reunification”
examines further the family definition applied at national level in the context of family
reunification.152

3.5 The definition of family applied by UNHCR

In UNHCR’s operations around the world the organization uses a definition of family that
presumes a relationship of social, emotional or economic dependency among close family
members (a term preferred over nuclear family) and requires it to be shown where other family
members are involved. Building on jurisprudence regarding the concept of family as outlined
in section 3.3 above and on its own experience in varied contexts, the organization uses the
concept of dependency to ensure that family members, who may not be close family members
but are nevertheless dependants, are also able to enjoy the right to family life and family unity.

It is worth recalling that UNHCR operates in countries with diverse and evolving concepts of
family, where the impact of displacement may mean that families are separated, have to
reform, and/or are reconstituted in different combinations over time, as family members are
separated, absent, reunited, die or are killed.

UNHCR issued guidance on procedural standards on processing claims based on the right to
family unity in 2016153 and the definition below draws on that given there. The concept of
family and who can be considered a family member is, however, also relevant in other
contexts from registration and protection delivery to family reunification and durable
solutions. It applies equally in refugee situations and in internal displacement.

3.5.1 Close family members

In UNHCR’s practice close family members are presumed to have a relationship of social,
emotional or economic dependency. They comprise:

 Spouse, including a fiancé.e, common law spouse, and couples involved in an

enduring relationship, whether physically living together or not, including same-sex
couples, and spouses who have entered into a customary marriage. In the case of an
underage spouse, a best interest assessment is generally required to determine any
protection needs;
 All unmarried children of the parent and all unmarried children of his or her spouse
as defined above, who are under 18 years, including children born in the host
country/country of asylum, provided that UNHCR interventions, such as granting

joined cases concerned the circumstances in which foreign spouses of South African residents are permitted to
reside temporarily in South Africa pending the outcome of their applications for immigration permits.
152 See UNHCR, “The ‘Essential Right’ to Family Unity of Refugees and Others in Need of International Protection

in the Context of Family Reunification”, above fn. 60, section 4.1.

153 UNHCR, UNHCR RSD Procedural Standards - Processing Claims Based on the Right to Family Unity, 2016, available

at: http://www.refworld.org/docid/577e17944.html.

32
 derivative refugee status, are not incompatible with the child’s personal legal status;
 The parents or primary legal or customary caregivers of an asylum-seeking or refugee
child under 18 years, as well as the dependants of the adult parent or caregiver; and
 The minor siblings of an asylum-seeking or refugee child who is under 18 years.154

With regard to polygamous marriages, UNHCR states:

“UNHCR aims to respect the culturally diverse interpretations of family membership

and ensure the protection of members of polygamous families, and recognizes
polygamy in its criteria for eligible unions. Therefore, where a polygamous marriage
is contractually valid, all family members are eligible for UNHCR assistance, including
consideration for resettlement. Where a relationship of dependency exists, particularly
when children are concerned and when the marriage has been validly contracted
according to the laws of the country of origin or asylum, UNHCR respects and
promotes the unity of the family during resettlement.”155

3.5.2 Persons other than close family members

UNHCR also considers that other family members and certain other individuals may be part
of a family and therefore entitled to family unity, if it is established, on balance, that a
relationship of social, emotional or economic dependency exists between them. Individuals
who may fall within this category include, but are not limited to:

 Parents or former caregivers of an adult refugee or asylum-seeker, or of his or her

spouse, where the parents/caregivers are dependent on the refugee or asylum-seeker;
 Married children under 18 of the refugee or asylum-seeker, or of his or her spouse,
who remain dependent on the refugee or asylum-seeker, and the spouse of married
children where he or she is dependent on the refugee or asylum-seeker. In the case of
a married child under 18 or his or her underage spouse, a best interests assessment is
generally required to determine what protection needs and resulting interventions
may be needed in their respective best interests;
 Dependent children of the refugee or asylum-seeker who are over 18 and their spouses
where the adult child or couple is dependent on the refugee or asylum-seeker;
 Other dependent relatives, including brothers, sisters, uncles, aunts, cousins, who
were part of the household of the refugee or asylum-seeker in the country of origin, or
whose situation has subsequently changed in such a way as to make them dependent
upon the refugee or asylum-seeker in the host country/country of asylum. Whether
such individuals are part of the household of the refugee or asylum-seeker in the host
country/country of asylum is a relevant factor to consider in determining whether a
relationship of dependency exists, but it is not determinative;
 Other relatives on whom the refugee or asylum-seeker was dependent in the country

154 For the purpose of assessing eligibility for derivative refugee status, the age of the Derivative Refugee Status
Applicant is considered as that at the date on which the Refugee Status Applicant was recognized as a refugee. In
this context, children include the biological or adopted children of the Refugee Status Applicant, as well as children
otherwise under his or her legal or customary care.
155 UNHCR, Resettlement Handbook, July 2011, available at: http://www.refworld.org/docid/4ecb973c2.html, p. 207

et seq.

33
 of origin or who have, subsequently, become dependent on him or her in the host
country/country of asylum. Whether such individuals are part of the household of the
refugee or asylum-seeker in the host country/country of asylum is a relevant factor to
consider in determining whether a relationship of dependency exists, but it is not
determinative;
 Any other individuals who, though not related to the refugee or asylum-seeker, have
a dependency relationship that is similar to the categories of family members
described above. The term “household” is understood as comprising persons living as
a family unit under the same roof.

3.6 Conclusion: The definition of family and the concept of dependency

In conclusion, international, regional and national practice focuses on family members as

being persons who are termed nuclear family members, though UNHCR prefers the term
close family members. There may be varying willingness to include, for instance, spouses
married in traditional ceremonies, engaged couples or same-sex partners. Such persons are
nevertheless generally recognized as able to be family members in international and regional
level guidance and judgments.

UNHCR explains the concept of dependency as follows:

“The principle of dependency entails flexible and expansive family reunification

criteria that are culturally sensitive and situation specific. Given the disruptive and
traumatic factors of the refugee experience, the impact of persecution and the stress
factors associated with flight to safety, refugee families are often reconstructed out of
the remnants of various households, who depend on each other for mutual support
and survival. These families may not fit neatly into preconceived notions of a nuclear
family (husband, wife and minor children). In some cases the difference in the
composition and definition of the family is determined by cultural factors, in others it
is a result of the refugee experience. A broad definition of a family unit – what may be
termed an extended family – is necessary to accommodate the peculiarities in any
given refugee situation, and helps minimize further disruption and potential
separation of individual members during the resettlement process.”156

The concept of dependency is increasingly accepted at least at the international and reginal
level, as a useful tool to identify the circumstances under which other individuals may also be
considered family members.

The ECtHR has, for instance, examined the question of dependency in the context of relations
between adult children and their parents and between uncles/aunts and their nephews/nieces
and has sometimes determined that there are “additional elements of dependence” with the
result that family life is deemed to exist.157

156 UNHCR, Protecting the Family: Challenges in Implementing Policy in the Resettlement Context, June 2001, available
at: www.refworld.org/docid/4ae9aca12.html, para. 1(c).
157 See sections 3.3.9 and 3.3.10 above

34
In the EU context, the recast Qualification Directive acknowledges that “[i]t is necessary to
broaden the notion of family members, taking into account the different particular
circumstances of dependency and the special attention to be paid to the best interests of the
child”.158

The View of the Advocate General in the case of Dereci159 before the CJEU is also informative.
He defined the notion of dependency broadly as encompassing “economic and/or legal,
administrative or emotional” dependency.160 While not referring directly to the concept of
dependency, the Advocate-General in the case of O. and S. referred in his Opinion to the
necessity to “carry out an in-depth examination of the entire family situation and take due
account of the particular circumstances of the case, whether they are of a factual, emotional,
psychological, or financial nature”.161

By contrast, a 2014 report by the European Council on Refugees and Exiles (ECRE) and the
Red Cross, notes that “States tend not to use this possibility, or they interpret the concept of
‘dependency’ very strictly by limiting it to full financial dependency or physical dependency”.
It found that the “[c]riteria for determining dependency vary widely across Europe, creating
a lottery for applicants who seek to be reunified with their family (beyond the nuclear
family)”.162

UNHCR nonetheless argues:

“Given the traumatic and arduous experience associated with flight from persecution,
emotional dependency should factor equally with financial dependency. The specific
refugee context thus requires a broader definition of dependency, namely one that
includes not only financial but also physical, psychological, and emotional
attachment.”163

Thus, while dependence can be presumed between close family members, it needs to be
established for other close family members and dependants. Ultimately, the assessment of

158 Council of the EU, Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on
standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a
uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted
(recast), 20 December 2011, OJ L. 337/9-337/26; 20.12.2011, 2011/95/EU, available at:
http://www.refworld.org/docid/4f197df02.html, (recast Qualification Directive), recital 19.
159 Murat Dereci and Others v. Bundesministerium für Inneres, View of Advocate General Mengozzi, C‑256/11, CJEU,

29 September 2011, available at: http://www.refworld.org/docid/583d81e44.html, although the judgment itself

does not address the meaning of dependency. See also C. Costello, The Human Rights of Migrants and Refugees in
European Law, Oxford University Press, 2016, p. 138.
160 Murat Dereci and Others v. Bundesministerium für Inneres, View of Advocate General, CJEU, 2011, above fn. 159,

para. 48.
161 O. and S. v. Maahanmuuttovirasto (C-356/11) and Maahanmuuttovirasto v. L. (C-357/11), CJEU, Opinion of Advocate

General Bot, 27 September 2012, available at: http://www.refworld.org/cases,COUNCIL,58ab05f64.html, para. 79.

162 European Council on Refugees and Exiles (ECRE) and Red Cross EU Office, Disrupted Flight: The Realities of

Separated Refugee Families in the EU, November 2014, available at: http://www.refworld.org/docid/58514a054.html,
p. 10.
163 UNHCR, Refugee Integration and the Use of Indicators: Evidence from Central Europe, December 2013, available at:

http://www.refworld.org/docid/532164584.html, pp. 70-71.

35
whether a non-close family member has on balance a relationship of significant dependency
with a refugee, asylum-seeker or beneficiary of complementary protection is a determination
of fact. It must be determined on a case-by-case basis, taking into account social, emotional
and economic factors. Dependency is thus more than a matter of financial dependence. The
determination requires a detailed examination of all available evidence, including
documentary evidence and other relevant information regarding the personal circumstances
of the family. It also requires awareness of the varying socio-cultural contexts of family life in
different countries, where the basic family unit may also include grandparents, grandchildren,
married brothers and sisters, their spouses and children, etc., who may or may not be
dependent on the family unit, as well as awareness of the impact of flight and displacement
on family formation and reformation.

4. CONCLUSION

The right to family life and family unity of people forced to flee can be threatened at all stages.
This paper sets out the legal framework on which these rights are based in international and
regional human rights law, international humanitarian law, and international refugee law,
along with related international and regional jurisprudence, notably of the HRC, ECtHR,
CJEU and IACtHR. The paper explains how States have positive obligations they must fulfil
if they are to uphold their obligations. In addition, the principles of non-discrimination and
of the best interests of the child can be seen as key principles underpinning and strengthening
the right to family life and family unity.

With regard to the family definition applied, the paper stresses the importance of adopting a
flexible definition in the refugee context that builds on the international and regional
jurisprudence. This needs to take account of varying cultural and social customs and different
legal systems and of the impact of conflict and displacement on family formation and
reformation. In such circumstances, a flexible, open-ended and adaptable definition that goes
beyond the nuclear or close family to recognize situations of dependency that may exist and
takes into account social, emotional and economic factors is essential.

36
 Bibliography

Publications by international and regional organizations are listed first, followed by other publications.
Publications by the same author are listed in date order with the newest document first.

International organizations

UN High Commissioner for Refugees (UNHCR) publications

UNHCR Deutschland, “Begriff der Familie im Kontext von Familienzusammenführungen”,

Asyl Magazin, 2017/4, available at: https://familie.asyl.net/fileadmin/user_upload/pdf/AM17-
4_thema_famzus.pdf

UNHCR, UNHCR RSD Procedural Standards - Processing Claims Based on the Right to Family
Unity, 2016, available at: http://www.refworld.org/docid/577e17944.html (N.B. This chapter
supersedes and replaces the corresponding chapter of the 2003 Procedural Standards for
Refugee Status Determination Under UNHCR's Mandate.)

UNHCR, Refugee Integration and the Use of Indicators: Evidence from Central Europe, December
2013, available at: http://www.refworld.org/docid/532164584.html, pp. 67-76 on family
reunification

UNHCR, Refugee Family Reunification: UNHCR’s Response to the European Commission Green
Paper on the Right to Family Reunification of Third Country Nationals Living in the European Union
(Directive 2003/86/EC), February 2012, available at:
http://www.refworld.org/docid/4f55e1cf2.html

UNHCR, UNHCR Resettlement Handbook, 2011, July 2011, available at:

http://www.refworld.org/docid/4ecb973c2.html

UNHCR Executive Committee, Children at Risk, Conclusion No. 107 (LVIII), 5 October 2007,
available at: http://www.refworld.org/docid/471897232.html

UNHCR, “Summary Conclusions: Family Unity, Expert roundtable organized by UNHCR

and the Graduate Institute of International Studies, Geneva, Switzerland, 8–9 November
2001”, in Refugee Protection in International Law: UNHCR's Global Consultations on International
Protection, (Feller et al. eds), Cambridge University Press (CUP), 2003, pp. 604-608, available
at: http://www.unhcr.org/419dbfaf4.pdf

UNHCR, Protecting the Family: Challenges in Implementing Policy in the Resettlement Context, June
2001, available at: http://www.refworld.org/docid/4ae9aca12.html

UNHCR Executive Committee, Protection of the Refugee's Family, 8 October 1999, Conclusion
No. 88 (L) - 1999, available at: http://www.refworld.org/docid/3ae68c4340.html

37
UNHCR Executive Committee, Refugee Children and Adolescents, Conclusion No. 84 (XLVIII),
17 October 1997, available at: http://www.refworld.org/docid/3ae68c68c.html

UNHCR Executive Committee (ExCom), Refugee Children, Conclusion No. 47 (XXXVIII), 12

October 1987, available at: http://www.refworld.org/docid/3ae68c432c.html

UNHCR, Note on Family Reunification, 18 July 1983, available at:

http://www.refworld.org/docid/3bd3f0fa4.html

UNHCR Executive Committee, Family Reunification, 21 October 1981, Conclusion No. 24

(XXXII) - 1981, available at: http://www.refworld.org/docid/3ae68c43a4.html

UNHCR Executive Committee, Family Reunion, 12 October 1977, Conclusion No. 9 (XXVIII) -
1977, available at: http://www.refworld.org/docid/3ae68c4324.html

UN Committee on Economic, Social and Cultural Rights

UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 20:
Non-discrimination in economic, social and cultural rights (art. 2, para. 2, of the International
Covenant on Economic, Social and Cultural Rights), 2 July 2009, E/C.12/GC/20, available at:
http://www.refworld.org/docid/4a60961f2.html

UN CESCR, General Comment No. 16: The equal right of men and women to the enjoyment of all
economic, social and cultural rights (Art. 3 of the Covenant), 11 August 2005, E/C.12/2005/4,
available at: http://www.refworld.org/docid/43f3067ae.html

UN CESCR, General Comment No. 6: The Economic, Social and Cultural Rights of Older Persons, 8
December 1995, E/1996/22, available at: http://www.refworld.org/docid/4538838f11.html

UN Committee on the Elimination of Discrimination Against Women

UN Committee on the Elimination of Discrimination Against Women, General Recommendation

No. 21: Equality in marriage and family relations, 1994, available at:
http://www.refworld.org/docid/48abd52c0.html

UN Committee on the Elimination of Racial Discrimination

UN Committee on the Elimination of Racial Discrimination (CERD), CERD General

Recommendation XXX on discrimination against non-citizens, 1 October 2002, available at:
http://www.refworld.org/docid/45139e084.html

UN Committee on the Rights of the Child (CRC Committee) and Committee on the
Protection of the Rights of All Migrant Workers and Members of their Families

Committee on the Protection of the Rights of All Migrant Workers and Members of their
Families and Committee on the Rights of the Child, Joint General Comment No. 3 (2017) of the
Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and

38
No. 22 (2017) of the Committee on the Rights of the Child on the general principles regarding the
human rights of children in the context of international migration, CMW/C/GC/3-CRC/C/GC/22, 16
November 2017, available at: http://www.refworld.org/docid/5a2f9fc34.html

CRC Committee, General Comment No. 14 (2013) on the right of the child to have his or her best
interests taken as a primary consideration (art. 3, para. 1), 29 May 2013, CRC /C/GC/14, available
at: http://www.refworld.org/docid/51a84b5e4.html

UN Committee on the Rights of the Child, General Comment No. 6 (2005): Treatment of
Unaccompanied and Separated Children Outside their Country of Origin, 1 September 2005,
CRC/GC/2005/6, available at: http://www.refworld.org/docid/42dd174b4.html

UN Human Rights Committee (HRC)

UN HRC, CCPR General Comment No. 28: Article 3 (The equality of rights between men and women),
29 March 2000, CCPR/C/21/Rev.1/Add.10, available at:
http://www.refworld.org/docid/45139c9b4.html

UN HRC, CCPR General Comment No. 19: Article 23 (The Family) Protection of the Family, the
Right to Marriage and Equality of the Spouses, 27 July 1990, available at:
http://www.refworld.org/docid/45139bd74.html

UN HRC, CCPR General Comment No. 16: Article 17 (Right to Privacy), The Right to Respect of
Privacy, Family, Home and Correspondence, and Protection of Honour and Reputation, 8 April 1988,
available at: http://www.refworld.org/docid/453883f922.html

International Committee of the Red Cross ICRC)

ICRC, Customary International Humanitarian Law Database, “Practice Relating to Rule 131,
Treatment of Displaced Persons, Section C. Respect for family unity”, available at: https://ihl-
databases.icrc.org/customary-ihl/eng/docs/v2_cha_chapter38_rule131_sectionc

ICRC, Customary International Humanitarian Law Database, “Practice Relating to Rule 105,
Respect for Family Life”, available at: https://ihl-databases.icrc.org/customary-
ihl/eng/docs/v2_rul_rule105

Regional organizations

Council of Europe

European Court of Human Rights, Guide on Article 8 of the European Convention on Human
Rights - Right to respect for private and family life, 31 December 2016, available at:
http://www.refworld.org/docid/5a016ebe4.html

European Court of Human Rights, Practical Guide on Admissibility Criteria, 2014, available at:
http://www.refworld.org/docid/54856b9c4.html

39
Parliamentary Assembly (PACE), Committee on Migration, Refugees and Displaced Persons,
Position paper on family reunification, AS/Mig (2012) 01, 2 February 2012, available at:
http://www.refworld.org/docid/583ed4ef7.html

European Union

European Commission, Proposal for a Regulation of the European Parliament and of the Council on
standards for the qualification of third-country nationals or stateless persons as beneficiaries of
international protection, for a uniform status for refugees or for persons eligible for subsidiary
protection and for the content of the protection granted and amending Council Directive 2003/109/EC
of 25 November 2003 concerning the status of third-country nationals who are long-term residents,
(European Commission Proposal for a Regulation to Replace the Qualification Directive)
COM(2016) 466 final, 2016/0223 (COD), 13 July 2016, available at:
http://www.refworld.org/docid/58ac43474.html

Other publications

F. Banda and J. Eekelaar, “International Conceptions of the Family”, International and

Comparative Law Quarterly, vol. 66, October 2017

C. Costello, The Human Rights of Migrants and Refugees in European Law, Oxford University
Press, 2016

A. Edwards, “Human Rights, Refugees, and the Right ‘To Enjoy’ Asylum”, International
Journal of Refugee Law (IJRL), vol. 17, no. 2 (2005), pp. 293–330

European Council on Refugees and Exiles (ECRE) and Red Cross EU Office, Disrupted Flight:
The Realities of Separated Refugee Families in the EU, November 2014, available at:
http://www.refworld.org/docid/58514a054.html

J.C. Hathaway, The Rights of Refugees under International Law, CUP, 2005

International Commission of Jurists (ICJ), Migration and International Human Rights Law, 2014,
Practitioners’ Guide No. 6, updated edition, available at:
http://www.refworld.org/docid/4dcbac872.html

K. Jastram and K. Newland, “Family Unity and Refugee Protection”, in Refugee Protection in
International Law: UNHCR's Global Consultations on International Protection, (Feller et al eds),
CUP, 2003, available at: http://www.refworld.org/docid/470a33be0.html

H. Lambert, “Family Unity in Migration Law: The Evolution of a More Unified Approach in
Europe”, in Research Handbook on International Law and Migration, V. Chetail and C. Bauloz
(eds), Edward Elgar Publishing, 2015

H. Lambert, “The European Court of Human Right and the Right of Refugees and Other
Persons in Need of Protection to Family Reunion”, IJRL, 11 (3) 1999, pp. 427-450

40
F. Nicholson, “The ‘Essential Right’ to Family Unity of Refugees and Others in Need of
International Protection in the Context of Family Reunification”, UNHCR Protection Policy
and Legal Advice Research Series, December 2017, available at:
http://www.refworld.org/docid/5a3cebbe4.html

N. Robinson, Commentary on the Refugee Convention 1951 (Articles 2-11, 13-37), 1997

M. Rohan, “Refugee Family Reunification Rights: A Basis in the European Court of Human
Rights' Family Reunification Jurisprudence”, Chicago Journal of International Law, 2014, Vol. 15,
No. 1, Article 15, available at: http://chicagounbound.uchicago.edu/cjil/vol15/iss1/15

Secretariat of the Inter-Governmental Consultations on Asylum, Refugee and Migration

Policies in Europe, North America and Australia, Report on Family Reunification: Overview of
Policies and Practices in IGC Participating Countries, Geneva, Switzerland, March 1997

C. Smyth, “The Best Interests of the Immigrant Child in the European Courts: Problems and
Prospects”, in: G.G. Lodder and P.R. Rodrigues, Het kind in het immigratierecht (The Child in
Immigration Law), The Hague, Sdu Uitgevers, 2012

S. Starr and L. Brilmayer, “Family Separation as a Violation of International Law”, Berkeley

Journal of International Law, 21(2), 2003, available at:
http://scholarship.law.berkeley.edu/bjil/vol21/iss2/3/, pp. 213-287

J. Werner and M. Goeman, “Families Constrained: An analysis of the best interests of the child
in family migration policies”, Defence for Children The Netherlands and Adessium
Foundation, October 2015, available at: http://www.defenceforchildren.org/wp-
content/uploads/2015/12/20151021_DC_Families-constrained.pdf

A. Zimmermann (ed.), The 1951 Convention relating to the Status of Refugees and its 1967 Protocol:
A Commentary, OUP, 2011

41
 Case law

United Nations

Human Rights Committee

Benjamin Ngambi and Marie-Louise Nébol v. France, CCPR/C/81/D/1179/2003, UN HRC, 16 July

2004, available at: http://www.refworld.org/docid/4162a5a46.html

Jama Warsame v. Canada, CCPR/C/102/D/1959/2010, UN HRC, 1 September 2011, available at:

http://www.refworld.org/docid/4ee0f0302.html

Hendrick Winata and So Lan Li v. Australia, CCPR/C/72/D/930/2000, UN HRC, 16 August 2001,

available at: http://www.refworld.org/docid/3f588ef67.html

Regional Commissions and Courts

Council of Europe – European Commission of Human Rights

Boyle v. United Kingdom, Application no. 16580/90, ECmHR, 9 February 1993, available at:
http://www.refworld.org/cases,COECOMMHR,583fec324.html

Price v. United Kingdom, Application no. 12402/86, ECmHR, Admissibility Decision, 9 March
1988, available at: http://www.refworld.org/docid/583ed9a17.html

Wakefield v. United Kingdom, Application no. 15817/89, ECmHR, Admissibility Decision, 1

October 1990, available at: http://www.refworld.org/docid/583ed8874.html

Council of Europe – European Court of Human Rights

A.A. v. United Kingdom, Application no. 8000/08, ECtHR, 20 September 2011, available at:
http://www.refworld.org/docid/583edcf1124.html

A.S. v. Switzerland, Application no. 39350/13, ECtHR, 30 June 2015, available at:
http://www.refworld.org/docid/5592b8064.html

Abdulaziz, Cabales and Balkandali v. United Kingdom, Applications nos. 9214/80; 9473/81;
9474/81, ECtHR, 28 May 1985, available at: http://www.refworld.org/docid/5183e6b34.html
Ahmut v. The Netherlands, Application no. 73/1995/579/665, ECtHR, 28 November 1996,
available at: http://www.refworld.org/docid/3ae6b69014.html

Mustafa and Armağan Akın v. Turkey, Application no. 4694/03, ECtHR, 6 April 2010, available
at: http://www.refworld.org/docid/5852aa214.html

42
Al-Nashif and Others v. Bulgaria, App. No. 50963/99, ECtHR 20 June 2002, available at:
http://www.refworld.org/cases,ECHR,468cbc9d0.html

Berrehab v. The Netherlands, Application no. 10730/84, ECtHR, 28 May 1988, available at:
http://www.refworld.org/docid/3ae6b6f424.html

Boughanemi v. France, Application no. 16/1995/522/608, ECtHR, 27 March 1996, available at:
http://www.refworld.org/docid/3ae6b6f24.html

Bronda v. Italy, Application no. 40/1997/824/1030, ECtHR, 9 June 1988, available at:
http://www.refworld.org/docid/583fefd07.html

Butt v. Norway, Application no. 47017/09, ECtHR, 4 December 2012, available at:
http://www.refworld.org/docid/583ff1167.html

Ciliz v. The Netherlands, Application no. 29192/95, ECtHR, 11 July 2000, available at:
http://www.refworld.org/docid/3ae6b6fd1f.html

Elsholz v. Germany Application no. 25735/94, ECtHR Grand Chamber, 13 July 2001, available
at: http://www.refworld.org/cases,ECHR,58a72da64.html

Ezzouhdi c. France, Requête no. 47160/99, ECtHR, 13 February 2001, available at:
http://www.refworld.org/cases,ECHR,58c164fe4.html

F.N. v. United Kingdom, Application no. 3202/09, ECtHR, admissibility decision, 17 September
2013, available at: http://www.refworld.org/docid/583ff73d4.html

Gas and Dubois v. France, Application no. 25951/07, ECtHR, Admissibility Decision, 31 August
2010, http://www.refworld.org/docid/583ffa924.html

Gül v. Switzerland, Application no. 23218/94, ECtHR, 19 February 1996, available at:
http://www.refworld.org/docid/3ae6b6b20.html

Javeed v. The Netherlands, Application no. 47390/99, ECtHR, Admissibility Decision, 3 July 2001
available at: http://www.refworld.org/docid/584a94e44.html

Jeunesse v. Netherlands, Application no. 12738/10, ECtHR Grand Chamber, 3 October 2014,
available at: http://www.refworld.org/docid/584a96604.html

Johansen v. Norway, Application no. 24/1995/530/616, ECtHR, 27 June 1996, available at:
http://www.refworld.org/cases,ECHR,5a2fa9934.html

Johnston and Others v. Ireland, Application no. 9697/82, ECtHR, 18 December 1986, available at:
http://www.refworld.org/cases,ECHR,58a72e674.html

Keegan v. Ireland, Application no. 16/1993/411/490, ECtHR, 19 April 1994, available at:
http://www.refworld.org/docid/3ae6b6ff8.html

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A.W. Khan v. United Kingdom, Application no. 47486/06, ECtHR, 12 January 2010, available at:
http://www.refworld.org/docid/4b4f05c02.html

Kroon and Others v. The Netherlands, Application no. 18535/91, ECtHR, 27 October 1994,
available at: http://www.refworld.org/docid/584a99574.html

Kutzner v. Germany, Application no. 46544/99, ECtHR, 26 February 2002, available at:
http://www.refworld.org/cases,ECHR,58c166454.html

Kwakye-Nti et Dufie c. Pays Bas, Requête no. 31519/96, ECtHR, Admissibility Decision, 7
November 2000, available at: http://www.refworld.org/docid/5852a72c4.html

L. v. Finland, Application no. 25651/94, ECtHR, 27 April 2000, available at:

http://www.refworld.org/cases,ECHR,5a4caaf94.html

L. v. The Netherlands, Application no. 45582/99, ECtHR, 1 June 2004, available at:
http://www.refworld.org/docid/5852a7e54.html

M.P.E.V. and Others v. Switzerland, Application no. 3910/13, ECtHR, 8 July 2014, available at:
http://www.refworld.org/cases,ECHR,53bd356f4.html

M.S.S. v. Belgium and Greece, Application no. 30696/09, ECtHR, 21 January 2011, available at:
http://www.refworld.org/docid/4d39bc7f2.html

Marckx v. Belgium, Application No. 6833/74, ECtHR, 13 June 1979, available at:
http://www.refworld.org/docid/3ae6b7014.html

Maslov v. Austria, Application no. 1638/03, ECtHR, 22 March 2007, available at:
http://www.refworld.org/cases,ECHR,464423e22.html

Maslov v. Austria, Application no. 1638/03, ECtHR, Grand Chamber, 23 June 2008, available at:
http://www.refworld.org/cases,ECHR,5852a8b97.html

Monory v. Romania and Hungary, Application no. 71099/01, ECtHR, 5 July 2015, available at:
http://www.refworld.org/cases,ECHR,5a4ca8d54.html

Moretti et Benedetti c. Italie, Requête no. 16318/07, ECtHR, 27 April 2010, available at:
http://www.refworld.org/docid/5852a94d7.html

Moustaquim v. Belgium, Application no. 12313/86, ECtHR, 18 February 1991, available at:
http://www.refworld.org/docid/3ae6b7018.html

Oliari and Others v. Italy, Applications nos. 18766/11 and 36030/11, ECtHR, 21 July 2015,
available at: http://www.refworld.org/docid/55af917a4.html

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Onur v. United Kingdom, Application no. 27319/07, ECtHR, 17 February 2009, available at:
http://www.refworld.org/docid/49b153742.html

P.B. and J.S. v. Austria, Application no. 18984/02, ECtHR, 22 July 2010, available at:
http://www.refworld.org/docid/5852b79e4.html

Pini and Others v. Romania, Applications nos. 78028/01 & 78030/01, ECtHR, 22 June 2004,
available at: http://www.refworld.org/cases,ECHR,58a730ab4.html

Schalk and Kopf v. Austria, Application no. 30141/04, ECtHR, 24 June 2010, available at:
http://www.refworld.org/docid/4c29fa712.html

Slivenko v. Latvia, Application no. 48321/99, ECtHR, Grand Chamber, 9 October 2003, available
at: http://www.refworld.org/docid/402b5b034.html

Taddeucci et McCall c. Italie, Requête no. 51362/09, ECtHR, 30 June 2016, available at:
http://www.refworld.org/docid/5852ba884.html

Topčić-Rosenberg v. Croatia, Application no. 19391/11, ECtHR, 14 November 2013, available at:
http://www.refworld.org/docid/5852bb034.html

Vallianatos and Others v. Greece, Applications nos. 29381/09 and 32684/09, ECtHR, Grand
Chamber, 7 November 2013, available at:
http://www.refworld.org/cases,ECHR,5899eafb4.html

X. and Others v. Austria, Application no. 19010/07, ECtHR, Grand Chamber, 19 February 2013,
available at: http://www.refworld.org/docid/5852c33f4.html

X., Y. and Z. v. United Kingdom, Application no. 75/1995/581/667, ECtHR (Grand Chamber), 22
April 1997, available at: http://www.refworld.org/docid/3ae6b69010.html

Z.H. and R.H. v. Switzerland, Application no. 60119/12, ECtHR, 8 December 2015, available at:
http://www.refworld.org/docid/566843824.html

European Union – Court of Justice of the European Union

Murat Dereci and others v. Bundesministerium für Inneres, View of Advocate General Mengozzi,
C‑256/11, CJEU, 29 September 2011, available at:
http://www.refworld.org/docid/583d81e44.html

O. and S. v. Maahanmuuttovirasto (C-356/11) and Maahanmuuttovirasto v. L. (C-357/11), CJEU,

Opinion of Advocate General Bot, 27 September 2012, available at:
http://www.refworld.org/cases,COUNCIL,58ab05f64.html

Inter-American Commission on Human Rights

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Wayne Smith, Hugo Armendariz, et al. v. United States, Report N. 81/10 - Case 12.562, IACmHR,
12 July 2010, available at: http://www.refworld.org/docid/502ccca62.html

Inter-American Court on Human Rights

Advisory Opinion OC-21/14, Rights and Guarantees of Children in the Context of Migration and/or
in Need of International Protection, OC-21/14, IACtHR, 19 August 2014, available at:
http://www.refworld.org/docid/54129c854.html

Atala Riffo y Niñas v. Chile, IACtHR, 24 February 2012, available in English and Spanish at:
http://www.refworld.org/docid/4f840a122.html

Chitay Nech et al. v. Guatemala, Serie C No. 212, IACtHR, 25 May 2010, available at:
http://www.refworld.org/docid/4f5a127a2.html

Case law from national courts

Czech Republic

Constitutional Court

Judgment II. ÚS 568/06: Protection of Family Life, Czech Republic: Constitutional Court, 20
February 2007, available at: http://www.usoud.cz/en/decisions/20070220-ii-us-56806-
protection-of-family-life-1/

South Africa

Constitutional Court

Dawood and Another v. Minister of Home Affairs and Others; Shalabi and Another v. Minister of
Home Affairs and Others; Thomas and Another v. Minister of Home Affairs and Others, CCT35/99
2000 (8) BCLR 837 (CC), South Africa: Constitutional Court, 7 June 2000, available at:
http://www.refworld.org/docid/58501f464.html

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