Institutional Norms



Institutional Norms

Introduction

Immigration legislation and policies of many countries know “family reunification”, mostly allowing for the immigration of spouses and minor children of domestic nationals and of foreign permanent residents (hereafter: denizens). Many important global human rights documents recognize the importance of and fundamental right to family and marriage.1 Furthermore, many national constitutions contain similar articles concerning the special importance of the family2 as a societal unit which is entitled to state protection, upon which family reunification policies are based. Along this line, Carens (2003) thus argues that the principle thrust of admitting foreign spouses of citizens or denizens lies in the recognition of the particularity and importance of familial relations and the partialist responsibility that the state assumes vis-à-vis the well-being of those under its legislation (i.e. citizens/denizens). Even if the responsibility assumed and the subsequent extent of the policies differ from case to case,3 some kind of family reunification policy for both citizens and denizens is in place in all Western states, oftentimes in (indirect) reference to human rights provisions: Direct access to one's spouse and family is thus accepted as a fundamental human right and therefore crucial component to individual well-being4 which should be supported by the state. In recent years, the preoccupation of both states and the general public regarding family reunification migration has increased immensely.

Background

This rising concern is intrinsically connected to a significant reduction of legal migration channels into Western states in the last decades, which in turn is associated in the most simplistic terms with both a certain economic stagnation with connected rising unemployment during the 1970s and a heightened xenophobic public attitude, which created an increasingly hostile environment for migrants. Thus, while many European 1Among the most important provisions concerning the protection of marriage and family are Article 16 of the Universal Declaration of Human Rights („Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. (…) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.“) and Article 12 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Similar articles exist in the American Convention on Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child, the African Charter on Human and Peoples' Rights and the European Social Charter.

Despite the fact that concepts such as “family”, “spouse” or “marriage” remain culturally and societally contested and no clear consensus exists globally regarding their definition, Demleitner (2003: 274) proposes that laws, and especially those laws with exceptional international relevance such as immigration laws, have been an important contributor in the delimitation of some of these concepts. Joppke (1999: 114) mentions Germany as an example of a state with strong commitment to family reunification due to the constitutional enshrinement of elementary family rights and an élite ...