Note on Family Reunification

EC/SCP/17

Introduction

1. When refugees leave their country of origin, family members are frequently left behind, or dispersed during their flight. The problem of the reunification of such refugee families has been considered by the Executive Committee on various occasions, and recommendations on this subject have figured in its conclusions on international protection. A conclusion dealing specially with family reunion was adopted by the Executive Committee at its twenty-eighth session in 1977. Since that time, however, a certain number of problems have remained, and in certain areas even increased in scope. The High Commissioner therefore believes that the question of family reunification should be submitted to the Sub-Committee for a more detailed consideration.

2. The importance of family reunification has been stressed in a number of international instruments. The Universal Declaration of Human Rights of 1948 and the United Nations Covenant on Civil and Political Rights of 1966 recognize that "the family is the natural and fundamental group unit of society and is entitled to protection by society and the State". The need to promote the reunification of dispersed families was also underlined by the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflicts of 1977. Article 74 of Protocol I Additional to the Geneva Convention of 1949, adopted by the Conference reads:

"The High Contracting Parties and the Parties to the conflict shall facilitate in every possible way the reunion of families dispersed as a result of armed conflicts and shall encourage in particular the work of the humanitarian organizations engaged in this task in accordance with the provisions of the Conventions and of this Protocol and in conformity with their respective security regulations."

In its Final Act, the Conference of Plenipotentiaries which adopted the 1951 Convention relating to the Status of Refugees unanimously approved the following recommendation on the subject of family unity in the case of refugees:

"THE CONFERENCE

CONSIDERING that the unity of the family, the natural and fundamental group unit of society, is an essential right of the refugee, and that such unit is constantly threatened, and NOTING with satisfaction that, according to the official commentary of the ad hoc Committee on Statelessness and Related Problems (E/1616, p. 40) the rights granted to a refugee are extended to the members of his family.

RECOMMENDS Governments to take the necessary measures for the protection of the refugee's family, especially with a view to:

(1) Ensuring that the unity of the refugee's family is maintained particularly in cases where the head of the family has fulfilled the necessary conditions for admission to a particular country.

(2) The protection of refugees who are minors, in particular unaccompanied children and girls, with special reference to guardianship and adoption."

UNHCR action promoting the reunification of dispersed refugee families

3. In seeking to promote the reunion of separated refugee families, the High Commissioner is guided by basic humanitarian considerations and also by the Statute of his Office which entrusts him, inter alia, with the functions of improving the situation of refugees, and facilitating the assimilation of refugees within new national communities. Since the separation of refugees families invariably leads to hardships and sometimes to tragic consequences, and may indeed be the cause of serious obstacles to a refugee's assimilation and integration in his new homeland, the High Commissioner has devoted particular attention to this problem.

4. In seeking to arrange for the reunification of refugee families, the Office is frequently called upon to assist in resolving a number of practical problems. It may thus be necessary to obtain exit permission for family reunion from the authorities of the refugee's country of origin. In almost all cases, the relatives themselves are required to make the application in the first instance. On his side, the refugee concerned must apply for entry visas to enable his family members to join him in his country of residence. Such applications are followed up by the UNHCR Representative in the country or countries concerned, or thorough UNHCR Headquarters, which undertake the appropriate démarches with the competent authorities. Over the years, a specific pattern of contacts and procedures has been developed with Governments co-operating with UNHCR in the field of family reunification.

5. The separation of refugee families can also occur when a refugee's family members have not been able to accompany him from his country of first asylum to his country of resettlement because a family member does not meet that country's criteria for admission. In such cases, it is often necessary for the Office to approach the authorities with a view to family members being admitted on humanitarian grounds.

6. In arranging for family reunification, the Office is sometimes called upon to resolve a number of incidental matters, e.g., obtaining travel documents and transit visas and, where necessary, arranging for the payment of travel costs.

7. In the field of family reunification, UNHCR works in close co-operation with other organizations, both intergovernmental and non-governmental. Special mention must be made of the International Committee of the Red Cross (ICRC) which has traditionally played an important part in the tracing of family members and in family reunification. UNHCR has also maintained its close co-operation with the Intergovernmental Committee for Migration (ICM) which, in the majority of cases, makes the necessary travel arrangements.

8. The competence of the High Commissioner with regard to family reunification relates in the first place to refugees as defined by the Statute of his Office. The High Commissioner's competence has however extended to permit assistance to and protection of persons displaced outside their country of origin and victims of man-made disasters, which would also include assistance to promote the reunification of separate families in the category.

Progress achieved and remaining problems

9. The High Commissioner can report that, in certain regions, increasingly positive results have recently been obtained with regard to the reunification of refugees with family members who had remained in the country of origin. It has also proved possible for UNHCR to reunite a large number of families in the course of its recent large-scale resettlement operations from countries of first asylum. These encouraging results have been obtained largely through the growing co-operation extended to the High Commissioner by both the countries of origin and of reception.

10. With respect to the granting of exit permission, the Government of a number of countries of origin which had previously adopted a more restricted approach have shown increased understanding of the need for family members to be reunited with the refugee head of family abroad. There are however still a number of States in different areas which continue to follow restrictive practices in the granting of exit permission, with the result that a large number of applications for family reunification remain unresolved. The High Commissioner wishes, in this connection, to stress once again the purely humanitarian and non-political character of his Office and the importance for Governments to support his efforts to facilitate the reunification of such families.

11. It is also encouraging to note that Governments of countries of durable asylum generally recognize the need to facilitate reunification by granting entry permission to the family members of refugees. The granting of such entry permission however still gives rise to problems regarding the criteria applied by asylum countries in identifying the relatives considered to form part of the refugee's family and the more general criteria applied by these countries for immigration purposes.

12. In many cases, a refugee's next-of-kin remain behind the country of origin, or in a country of first asylum, because they are not considered by the prospective country of reception to belong to what is known in most industrialized societies as the family nucleus, that is to say father, mother and minor children. While there is justification in giving priority to safeguarding this basic unit, the exclusion of other members of the refugee household who originally and naturally formed part of it and whom dispersion deprived of their social and economic basis, most often results in their moral and physical deterioration. While it may not always be possible to reunite entire groups which, in the country of origin, formed part of a family in the broad or traditional sense of the word, closer consideration could appropriately be given by Governments to the inclusion of those members, whatever their age, educational level or marital status, whose economic and social viability remains dependent on the main family nucleus.

13. A related problem is that of determining the marital or civil status of family members for admission purposes. While every effort should naturally be made to establish parentage and filiation, the particular circumstances existing in the refugee's country of origin or in his country of first asylum may need to be taken into account. These circumstances may make it difficult or even impossible for the refugee to meet formal requirements or to bring the documentary evidence normally required before family reunification can be authorized.

14. Family reunification is often prevented or considerably delayed by the operation of domestic immigration regulations because the head of the refugee family is experiencing economic, employment or housing problems in the country of asylum. As prolonged separation obviously creates serious social problems for both sides of such split families, it is highly desirable that in such cases receiving States adapt their legal provisions in this respect or take special measures to assist the refugee materially to accommodate his dependents, thereby facilitating their early reunion.

15. Problems related to family reunification have assumed particular importance with regard to the situation of unaccompanied minors, infants and young children in countries of first asylum. In dealing with such unaccompanied minors the Office has taken the view that efforts should be made to trace and to reunite them with their parents or with other close relatives able and willing to accept them before the solution of resettlement is envisaged. if such resettlement does take place, it is important to ensure that tracing of parents and close relatives is continued, and that the possibility of the minor's subsequent reunification with them be maintained until his family situation can be determined in a satisfactory manner. Legal adoption of unaccompanied minors, in most cases an irrevocable measure precluding any further possibility of being reunited with their next of kin, should therefore be envisaged only after it has become reasonably certain that such a possibility no longer exists. The High Commissioner's view on this matter are set forth in his letter of 5 December 1979 to the Permanent Representations of States accredited to the United Nations Office in Geneva.

16. In the above context, the tracing of dispersed family members assumes increasing importance. UNHCR and the International Committee of the Red Cross have set up a method of close collaboration in this field, especially with respect to the caseload from Indo-China, for which the ICRC has recently set up a special, electronically equipped, Central Trading Agency. In order to make these arrangements fully effective, the co-operation of the authorities of the countries receiving such refugees remains vital. The States concerned should therefore facilitate as much as possible the registration and tracing activities of voluntary agencies and NGOs, such as the national Red Cross societies, in favour of refugees staying in their respective territories.

17. The status provided for refugees under the relevant international instruments and municipal legislation has as one of its principal aims to facilitate their integration in new national communities and to help them to cease being refugees as rapidly as possible. Once a refugee has his status recognized, it seems both natural and desirable, that the members of his family following him obtain the same status as a matter of principle. If indeed the had of the family meets the criteria of the refugee definition, his dependents should normally be granted status in accordance with the principle of family unity, unless their personal situation expressly excludes them. Although this view was traditionally followed by Convention Status for many years, and has become firmly anchored in judicial precedent, there have recently been cases in which this principle was not applied.

Conclusion

(a) In application of the principle of the unity of the family and the obvious humanitarian reasons, every effort should be made to ensure the reunification of separated refugee families.

(b) For this purpose it is desirable that countries of asylum and countries of origin support the effort of the High Commissioner to ensure the reunification of separated refugee families takes place with the least possible delay.

(c) The generally positive trends in regard to the reunification of separated refugee families are greatly to be welcomed but a number of outstanding problems still need to be resolved.

(d) It is desirable that countries of origin facilitate family reunification by granting exit permission to family members of refugees to enable them to join the refugee head of the family abroad.

(e) It is hoped that countries of asylum will apply liberal criteria in identifying those family members who can be admitted. To this end consideration should be given to the adoption of liberal criteria to permit a comprehensive reunification of the family unit including at least those members who are economically dependent upon the head of the family and taking into account as far as possible the composition of the family unit as it existed in the country of origin.

(f) When deciding on family reunification, the absence of documentary proof of the formal validity of a marriage or of the filiation of children should not per se be considered as an impediment.

(g) The dispersion of refugee families has, in certain regions of the world, given rise to a number of particularly delicate problems relating to unaccompanied minors. Every effort should be made to trace the parents or other close relatives of unaccompanied minors both before and after their resettlement. When unaccompanied minors are resettled, their legal adoption should not be proceeded with until their family situation can be determined with a reasonable degree of certainty, since this almost invariably precludes reunification with parents or other close family members if subsequently traced.

(h) In order to promote the rapid integration of refugee families in the country of settlement, it is necessary to grant joining family members the same legal status and facilities as the head of the family. Unless formal consideration, such as the application of exclusion or cessation clauses, prevent this, the family members concerned should have their status as refugees regularized.

(i) In appropriate cases family reunification may be facilitated by special measures of assistance to the head of family with a view to avoiding that economic and housing difficulties in the country of asylum do not unduly delay the granting of permission for the entry of the family members.

Annex

OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES

5 December 1979

I have the honour to refer to the situation of new arrivals from Kampuchea in Thailand. The Kampuchean people have suffered several hunger and visible deprivation while their families have been forcibly separated and dispersed both within and outside their country. Most tragically, children have been separated from their parents and now have little idea as to their whereabouts.

The current exodus of Kampucheans from their country, fleeing from conflict and seeking food and medical attention, is however different in nature from the movement of refugees out of Viet Nam, Laos and Kampuchea which has been taking place over the past four years. I thus feel it imperative to clarify the position of my Office regarding the reunion of families and the care of unaccompanied children. In this context discussions have taken place wit the Royal Thai Government, various diplomatic missions in Bangkok, the ICRC and the voluntary agencies concerned.

These consultations underlined the clear need for a co-ordinated approach. While it is still too early to qualify the extent of the exodus from Kampuchea, it is already apparent that large-scale resettlement is not a realistic solution.

Furthermore, there is an obvious need for a clearer assessment of the situation and identification of those persons for whom, due to special reasons, resettlement is a solution. Measures are therefore already in hand to identify cases of immediate family reunions and to facilitate their resettlement. The necessary technical preparations are being made for processing and movement of such persons as soon as possible. Attention is also being given to the handicapped who need to be moved to third countries. For humanitarian reasons I would urge Governments to give prompt consideration to a special response for these people.

In the context of this general problem, the position of children is of special concern, and particular attention must be concentrated on a smaller group among them: unaccompanied children. The general circumstances which led to the separation of these children are well known to be repeated here. It is of the utmost importance that every effort be made to reunite these children with any family members who may still be alive. To this end I have been in touch with the ICRC with a view to developing common programmes to facilitate the rapid tracing of missing relatives. In these circumstances:

1. I most earnestly encourage Governments to support to their maximum the special programme which my Office has recently drawn up for refugee children and which is being implemented with immediate effect. This programme provides for the establishment and maintenance of special children's centres so that Kampuchean children in Thailand may be given special care and attention together with the opportunity to develop within their own cultural environment. The specific details which are being communicated to Governments include the construction of facilities, notably paediatric clinics, day-care centres as well as supplementary feeding programmes and educational facilities, together with the appropriate materials, equipment, qualified personnel and operating costs. Substantial contributions will of course be required immediately to enable my Office to meet the needs of these children without further delay, and I request all donors, both governmental and non-governmental, to consider special contributions for this one-year programme, which, it is estimated will cost some $9.6 million.

2. Because of the well-known legal implications, I can in no case encourage adoption of these children so long as their family situation cannot be satisfactorily determined.

3. If, due to particular circumstances, a Kampuchean child is temporarily removed from Thailand to a third country, it must be clearly understood that Governments will provide firm assurances in advance that the child will be returned to the parents or family members whenever they are located, at their request. Conversely, Governments will also give the necessary assurances that they will promptly accept the child's remaining family members once these have been located and have expressed the wish to join the child. Immediately they are located, parents or family members of such children should be informed of their whereabouts and be given the opportunity for family reunion.

4. I should like to draw the attention of all concerned to the potentially detrimental effects of removing children precipitously from their ethnic and cultural background without responsible efforts having been made to locate their immediate relatives.

5. Finally, I feel obliged to stress again, in the interest of those whose futures are at stake, that co-ordination among all concerned with their fate is imperative. My Office will spare no effort to this end.