The protection of the family life of displaced persons, asylum applicants, refugees, and stateless persons in European law

Mercè Sales Jardí

Research output: Contribution to journalArticleResearchpeer-review

Abstract

© UNED. Revista de Derecho Político. European law, in response to the massive arrival of persons applying for international protection within the territory of the EU over the past decades, has been obliged to provide legislative and jurisprudential solutions to regulate this phenomenon. The changes and advances in the protection of displaced persons, asylum applicants, refugees, and stateless persons in European law and particularly EU law have therefore been constant. In this paper we analyze to which extent these changes have affected the family life of these persons. The ECtHR, in its interpretation of the Convention, in reference to all the relevant regulations of Council of Europe, has not been keen to use its case law to create direct positive obligations for the contracting parties. Its decisions are essentially based on a case-by-case analysis. If the persons concerned are able to continue their family life outside the State of reception, it considers no violation of the right to respect for family life has occurred. On the other hand, when the State fails to meet the minimum obligations of assistance, is engaged in bad practices, causes a loss of residence or nationality, or unduly interferes with the development of family life, a violation of Article 8 of the Convention exists. In EU law, reflecting the desire to create a common asylum policy, directives and regulations have rapidly succeeded one another. In case of mass influx, displaced persons have the possibility to request reunification with family members and the right to appeal the denial of these requests. With regard to asylum applicants, the new regulations include several advances in relation to the right to respect to family life. Among others, the number of persons considered family members has been extended, including the relatives of underage applicants who may request family reunification; the conditions for detention have been improved, allowing for more contacts with family members and the possibility to facilitate separate accommodation to families in detention. An obligation has been introduced to carry out a personal interview with the applicant. Moreover, modifications have been implemented to improve the cooperation between national authorities at all levels, including the cooperation regarding family reunification in the case of unaccompa nied minors and dependant persons, the performance of transfers, and the exchange of information when families are dispersed. In addition, assistance and support will be provided to the family members of minors who are victims of human trafficking when they find themselves within the territory of the Member States. With regard to the family members of refugees and stateless persons, these may now be granted refugee status if they find themselves in the same State as the applicant, provided the family already existed in the country of origin. Nonetheless, not on all relevant issues necessary headway was made. For instance, with regard to LGBTI families, their protection still essentially depends on the national rules of the host State, which continues to give cause to discrimination.
Original languageEnglish
Pages (from-to)190-227
JournalRevista de Derecho Politico
Issue number95
Publication statusPublished - 1 Jan 2016

Keywords

  • Asylum
  • Displaced persons
  • EU legislation
  • European Court of Human Rights
  • Family life
  • Refugees
  • Stateless persons

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