A Stratified Right to Family Life? On the Logic(s) and Legitimacy of Granting Differential Access to Family Reunification for Third-country Nationals Living within the EU

Abstract

As one of the predominant means of legal entry into the European Union (EU), family reunification has moved to the centre of public and political debates on immigration. Many Member States’ governments have put in place a net of highly selective policies in order to limit the number of foreigners entering as family migrants. This paper contrasts the underlying normative claim of a fundamental and universal right to family life against the existing evidence of unequal conditions and effects of family reunification policies for different groups and categories of third-country national migrants. Questioning the legitimacy of these differential policies, I build on Habermas’ distinction between pragmatic, ethical and moral modes of justification to develop a framework that helps to distinguish the various logics and arguments underlying this increasingly complex system of differentiated rights. I argue that within European family reunification policy-making the three types of justification, while often used in combination, tend to serve different functions and to inflict distinctive shortcomings in terms of the legitimacy of the selection mechanisms they underpin.

Keywords:

• Family Reunification
• European Union
• Civic Stratification
• Inequality
• Migration Selection

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

[1] In most cases, the possibility of family reunification is limited to the ‘nuclear family’, i.e. the spouse and minor children of the sponsor.

[2] As a result, absolute numbers of applications as well as residence permits granted on grounds of family reunification have dropped considerably since then, in some countries such as Germany and the Netherlands by more than half (Strik, de Hart, and Nissen 2013).

[3] As expressed by Nicholas Sarkozy in the run-up to the 2007 French presidential elections (see Marthaler 2008).

[4] Among other international treaties and conventions; a comprehensive overview is given by Lahav (1997).

[5] Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, OJ L251, 3/10/2003.

[6] At least according to what Carens (2003, 95) calls the ‘conventional view’.

[7] Note here that for Walzer (1983, 52) ‘every immigrant and every resident is a citizen, too—or, at least, a potential citizen’.

[8] In a note (doc. 7675/00) on the first Commission proposal, the presidency identified this issue as one of the main questions on which Member States’ positions most fundamentally diverged.

[9] Recital 2 of the preamble, Family Reunification Directive.

[10] Recital 4 of the preamble recognises that family reunification ‘helps to create sociocultural stability facilitating the integration of third country nationals in the Member State, which also serves to promote economic and social cohesion’.

[11] The directive covers all EU Member States except the UK, Ireland and Denmark. While DK completely opted out of Chapter IV of the EU Treaty, the UK and IRL reserved a right to only opt-in on a case-by-case basis (Moeslund and Strasser 2008).

[12] The exact definition of which family members beyond the 'nuclear family' are entitled to reunification is largely left to national law.

[13] Council Directive 2009/50/EC of 25 May 2009 on the conditions of entry and residence of TCNs for the purposes of highly qualified employment, OJ L155, 18/6/2009.