Imagine the experience of fleeing your home country in search of peace and safety at the age of 12. Now, picture embarking on this journey without the support of your parents or any family member at all. Upon arrival in your destination country, you hope to reunite with your family. But after living in uncertainty for more than six years you are finally told that family reunification will never be realized.
This was the reality for Omid from Afghanistan, who fled with his family in 2015, was separated from them during the journey, and arrived in Germany alone. When I first heard about his story, I was struck by how, despite being recognized as a refugee, he ultimately could not realize his right to family reunification under German law.
While for most of us this remains a hypothetical thought, for far too many children situations like these are a harsh reality. In 2020, more than one out of three children arriving in southern Europe were travelling either without their parents or any family members at all. Germany is often the final destination for these children, with more than 15,000 unaccompanied children applying for asylum within its borders in 2023.
But what happens after asylum is granted? What are the chances that these children will be able to return to an everyday life in safety with their families? These questions concern the possibilities of family reunification, and the answers vary from country to country. However, nearly all countries must respect the rules and principles written in the UN Convention on the Rights of the Child (UNCRC) in cases where family reunification affects minors. In my thesis I explored in what way Germany’s laws on family reunification comply with European and international Children’s Rights provisions.
The Best Interest of the Child Principle in International Law
Enshrined in Article 3 UNCRC, the Best Interest of the Child (BIC) serves as an overarching principle obliging all state actors to strongly consider the best interest of the individual child, but also of children as a collective when passing or implementing laws. When the BIC stands in conflict with other interests, such as the interest of the sovereign state to control immigration into its territory, the different interests should be carefully balanced, while placing a primary consideration on those of the child.
In addition to the general BIC, the CRC also contains specific rights applicable to cases of family reunification. These are found in Articles 9 and 10, which ensure the general right to family unity as well as procedural rights that must be upheld during family reunification procedures.
Documents issued by the bodies of the UNCRC, as well as judgements from the European Court of Human Rights clarify the exact meaning and implications of the BIC for family reunification. Following these comments and judgments, a wide scope of family members should be eligible for family reunification with children, including minor siblings. It is also emphasized that procedures should be dealt with quickly, while decisions should respect the child’s view and should not violate its rights (e.g., by deciding to reunite the child and its family back in its home country, despite an ongoing war or other instances of rights endangerments, or by deciding in favor of family reunification where the mere act of reunification itself would endanger the child’s rights – think of harmful practices within the family as an example).
The Likelihood of Family Reunification in Germany Depends on a Legal Categorization
In Germany, whether an unaccompanied minor can reunite with their family depends a lot on the asylum status they are given. The German Residency Act differentiates between refugee status holders and subsidiary protected concerning the possibilities and eligibility for family reunification.
In accordance with the definition of the 1951 Refugee Convention, refugee status is granted to those who have a genuine fear of persecution based on individual characteristics. However, not everyone will qualify for this status. Those who do not qualify for refugee status, but nevertheless face serious harm like torture, violence, or inhumane and degrading treatment in their home country, are instead granted the status of subsidiary protection. This categorization of asylum seekers also applies to children.
Although these categories are similar in the situations they face, the criteria they must meet for family reunification vary significantly. While unaccompanied refugee minors are generally entitled to family reunification, those with subsidiary protection status are subject to more strict conditions. Therefore, the status granted to a minor upon arrival can be a decisive factor in whether they can reunite with their family later on.
Unique Shortcomings in Meeting International Standards
For unaccompanied refugee minors, German law grants an automatic right to reunification with their parents without needing to prove financial stability or suitable housing. However, reunification with minor siblings is not part of this automatic right. Instead, there are only limited provisions for sibling reunification, and these are subject to strict requirements.
One option is the ‘child reunification’ provision, where parents can request visas for their underage children when applying for family reunification themselves. However, parents must prove financial means and provide housing. The only alternative option for sibling reunification is through the provision on reunification with ‘other family members’, which also requires meeting the financial- and housing criteria and demonstrating exceptional hardship.
In both provisions, administrative authorities have limited flexibility, and can only approve applications if the conditions are met. If not, reunification is denied, even if it would serve the BIC, thereby contradicting international requirements for promoting family unity, also among siblings.
Children with an asylum status based on subsidiary protection face even stricter conditions. For them, family reunification was completely suspended for two years from 2016 to 2018. Since 2018, a quota system is in place under which family reunification for those with subsidiary protection is only granted on humanitarian grounds and limited to the approval of no more than 1,000 family members per month across Germany. Once this number is reached, no further approvals are possible, regardless of the BIC implications. Thus, for many, the practical effect is nearly the same as a suspension of their right to family reunification.
The Reality of Enforcement
Once a right to family reunification has been established, enforcing it in Germany is often a whole other story, with prolonged processing times as the largest hurdle. These delays can prevent both refugee and subsidiary protected children from realizing their legitimate claims for family reunification.
Until recently, this issue was especially relevant for adolescent who turned eighteen during the ongoing process. Up until 2022, these children lost their eligibility, leading to the ultimate rejection of their applications for family reunification. Remember Omid from the beginning of this article? This was his reality.
In 2018, the Court of Justice of the European Union (CJEU) ruled that this practice violated children's rights. However, Germany initially deemed the ruling inapplicable and only implemented it in 2022 after the CJEU reaffirmed its relevance. Unfortunately, retroactive application to previously rejected cases was excluded, resulting in incorrect decisions that did not properly consider the BIC.
Is Family Reunification always in the Best Interest of the Child?
While family reunification is often seen as serving the BIC, it's important to recognize that this isn't always the case. In situations where separation may be voluntary or where there are concerns about misuse, careful consideration of the child's views and circumstances is crucial. However, when separation is involuntary, facilitating reunification can play an important role for the child's well-being and integration in the host country.
Yet these positive effects should only be expected if reunification laws allow children to reunite with the right family members, depending on their individual situation. To achieve this, instead of sticking to inflexible definitions, laws should be able to adapt to diverse familial structures and cultural contexts.
Furthermore, states often defend strict reunification policies by arguing they prevent abuse by parents instrumentalizing their children to exploit family reunification. Yet, it is important to ask: Should a child's right to reunification be restricted to prevent misuse, or do states primarily owe an obligation to the children already within their borders? These questions and more are explored further in my original thesis.
However, as I concluded my research, it became increasingly clear to me that simply suspending or heavily restricting family reunification fails to acknowledge the diversity of situations faced by unaccompanied children and neglects a genuine consideration of the BIC. Germany's legal framework currently lacks flexibility for such considerations, necessitating future research on how to better align laws with the rights and needs of these unaccompanied children.
