Family Separation in Immigration & Refugee Policies

by Kiera Burns, Associate Member, University of Cincinnati Law Review Vol. 93

I. Introduction

The right to family life and family unity are fundamental human rights. These rights are protected by international human rights law, international immigration and refugee law, and international humanitarian law.[1] However, this right is being denied and abused in problematic and consistent ways.[2] The protection of the family — the most basic unit of society — is based on Article 16 of the Universal Declaration of Human Rights, Article 10 of the 1966 International Covenant on Economic, Social, and Cultural Rights, and Article 23 of the International Covenant on Civil and Political Rights.[3] Even with these protections, there are still examples of laws directly opposing the right to family life such as the Ukrainian armed conflict and the immigration policies  at the U.S. and Mexico border.

This article will discuss the detrimental impact that international events, specifically the 2014 armed conflict in Ukraine and the 2022 Russian invasion of Ukraine, may have on the nuclear family. This article will also address the impact of the Mexico and U.S. border crisis on family life. Part II provides background on legal protections for the right to family life and recent global events that have threatened this fundamental right. Part III discusses how the lack of protections and the general misunderstanding of human rights has threatened the future of family rights. This is especially relevant for children, as well as the problems created by an allowance of generational trauma. Potential solutions emphasize the need for a human rights-based approach, enforcing positive obligations of countries, narrowing limitations to this right under Article 8, promoting intersectional discourse and storytelling in advocacy, employing consistent standard compliance, and declaring a vital demand for resources to be granted as solutions to this problem.  Finally, Part IV will conclude by stating that a human rights-based approach must be the default process for addressing human rights violations on the right to family life and that every person has duties and obligations regarding this right.

II. Background

The right to family life is rooted in many international legal documents and committees. It is defined within international law and given many protections, particularly regarding the wrongful separation of families.[4] These protections have substantial application under a human rights-based approach, which grants certain obligations to their implementation. This background assists in understanding how the wrongful separation of families impacts the right to family life. Furthermore, a human rights-based framework is applied in circumstances within the Ukrainian armed conflict and the laws consequently impacting families. Also, the example of American immigration policies at the border of Mexico presents another eye-opening circumstance requiring new solutions to protect family life.

A. The Right to Family Life

As affirmed in the Human Rights Committee General Comment No. 16, the term “family” is broadly interpreted and does not have a standard definition due to variations among  countries.[5] However, there is an emphasis that the family, “nuclear” and “extended,” does exist and deserves protection.[6] This has been expanded to explain that the protection of the family is not necessarily deviated by the absence of formal marriage bonds.[7] The Committee on the Rights of the Child states that the definition must include a broad sense of biological, adoptive, or foster parents as guardians.[8] The definition of family procured by countries can be according to a country’s own interest but must prohibit discrimination.[9]

Article 23(1) of the International Covenant on Civil and Political Rights (ICCPR) states that the family is “the natural and fundamental group unit of society” and “is entitled to protection by society and by the State.”[10] Article 17 of the ICCPR recognizes that “[n]o one shall be subjected to arbitrary or unlawful interference with his family . . . nor to unlawful attacks on his honour and reputation.”[11] Law scholars have referred to the principle of respect for family life as “a developing customary norm against the involuntary separation of families.”[12] Also referred to in Customary International Humanitarian Law as Rule 105, stating that family life must receive respect as much as possible.[13] Within Customary Humanitarian Law Rule 131, “[i]n case of displacement, all possible measures must be taken so that the civilians concerned are received under satisfactory conditions of shelter, hygiene, health, safety, and nutrition and that members of the same family are not separated.”[14] The Fourth Geneva Convention orders appropriate measures to respond to family separation, such as a priority of renewing contact between family members and the responsibility of countries to ensure families are not separated.[15] Family separation affects some of the most vulnerable people in society such as women and children. There are substantial protections for children under the Convention on the Rights of the Child, including not separating a child from their parents unless in the best interest of the child.[16] Many areas of study suggest that family separation negatively affects an immigrant’s emotional and psychological health.[17]

B. A Human Rights-Based Approach

The  human rights-based approach is a conceptual framework from the United Nations based on international human rights standards, and it works against inequalities and discrimination.[18] This requires all means, policies, and ends of processes to respect the obligations of human rights principles including universality, indivisibility, equality, non-discrimination, participation, and accountability.[19] This approach is based on equity with the sacred duty to achieve alignment with the most disadvantaged, and it assigns duties for the obligation and the claiming of human rights. This has been employed in many developments including areas of climate change, housing, maternal mortality and morbidity, and health.[20]

The United Nations Human Rights Council (UNHRC) describes values of dignity and nondiscrimination and categorizes seven important principles within human rights: accountability, participation, transparency, empowerment, sustainability, international cooperation, and non-discrimination.[21] Human rights work usually involves a dynamic of people opposing rights because taking power from one authority will always upset that authority, even if power is being diverged in the name of equality.[22] The main goal is to create an environment where everyone can access basic rights. The protection and accessibility of rights must be reasonable and proportionate.  Governments must understand that when safeguarding human rights, vulnerable people naturally need more protection.[23]

Further, within government leadership, politicization of human rights leads to the issue of being silenced or restricted. To combat the adverse effects of politicization, education is especially important for those with authority to understand how to properly balance different rights.[24] It is important to understand that human rights will not exist without an environment where rights are acknowledged, and duties to protect those rights are recognized. Global citizens also have a duty to understand what can be done to respect the rights of others.[25]

C. The Humanitarian Crisis in Ukraine

Armed conflict erupted in 2014 in Ukraine after Russia annexed Crimea.[26] Conflict progressed, leading to a Russian invasion of Ukraine in 2022.[27] This invasion has led to widespread violations of human rights. Ukrainian citizens have reported war crimes committed by Russians, such as executions, torture, and rape.[28] Targeted attacks against civilians, including strikes on a theater and maternity hospital, resulting in heavy causalities, have devastated life in Ukraine.[29] The UN High Commissioner for Human Rights estimated in September 2023 that there have been 27,149 casualties, and the UN High Commissioner for Refugees estimated that one-third of Ukraine’s population has been displaced.[30]

While Russia is guilty of several human rights violations, Ukrainian laws have come under fire for other human rights violations. Gender-based restrictions in Ukrainian martial law have raised questions of harmful human rights implications.[31] Ukraine placed a travel restriction on “battle-aged” civilian men, thereby separating families and disrespecting family life, interrupting the right to freedom of movement and right to conscientious objection.[32] While martial law, which comes from the authority of the military rather than the government, may have different applications in wartime, this restriction has been examined to violate the International Covenant on Civil and Political Rights’ rules on derogation in emergencies and customary international law by the human rights community.[33] During a survey conducted by the Human Security Lab, many men had a consistent rationale that the duty to protect their own family supersedes a duty to a country.[34] The separation of families during wartime affects the well-being of all family members and the future rebuilding of their lives, impacting future generations.[35]

D. Family Separation at the Border

Not only does wartime familial separation have dire consequences, but other situations regarding migration and immigration display concerning problems. For example, immigration from Mexico to the United States is one of the largest migration corridors in the world.[36] Currently, there is enhanced militarization at the U.S. border, and restrictive federal migration policies have increased family separation among Mexican immigrants.[37] One study found that 24% of Mexican immigrants in a sample were separated from partners or children, and 79% were separated from a mother. There were extremely adverse emotional consequences for migrant women especially because of anxiety over missing family members.[38] Migration experiences in total seem to shape immigrant emotional health such as the pressure to migrate, socioeconomic status, access to social networks, working conditions, documentation status, border crossing, discrimination and anti-immigrant sentiment, and anxiety with the threat of deportation or missing family members.[39] Immigrants are forced to live with a lack of a guarantee of safety and security, which are essential aspects of building a family and a home.[40] Social workers and advocates have continually expressed the need for more research and resources within immigration protocols.[41]

III. Discussion

The denial of rights to immigrants and refugees under country policies is not an unprecedented issue and requires global and domestic solutions. This includes reviewing the obligations of countries, the control of restrictions on this right, effective advocacy supplementing legal solutions, and promoting guidance of standards for human rights.

A. Rethinking Future Solutions

The problem of family life protections begins with interpretations of Article 8 of the European Convention on Human Rights (“Article 8”), with limitation clauses allowing interference on the right to respect private and family life to protect issues such as national security, public safety, the economy, health or morals, preventing disorder or crime, or protecting the rights and freedoms of other people.[42] This proportionate need to invade the right to family life for “specific reasons” seems to be left open to interpretation for what is no more than necessary to address the circumstance. This leaves open a risk for broad interpretations of the limitation clause of Article 8, which may infringe on the right to family life.[43]

Additionally, in 2022, the UNHCR stated that refugee responses needed to prioritize gender-based violence prevention, the protection of children, and family reunification.[44] More stringent interpretations and reinforcements favoring family unity are necessary, even in humanitarian law. This is important for the progression of rights, such as interpreting Article 12 of the 1951 Convention concerning personal status and emphasizing rights of refugees that were previously acquired, such as marriage.[45] Refugees should be encouraged to exercise the right to family unity and receive assistance to have documents for family members or similar aid.[46] Countries have the positive obligation to maintain the unity of families and encourage reunification without interference.[47] The proactive work of countries is necessary and repeatedly upheld in cases such as Marckx v. Belguim and Gül v. Switzerland, where countries were found to have positive obligations to reunify families. Not only can countries be prohibited from infringing on rights, but countries must work to safeguard and promote these rights.[48] This must be the perspective used when applying obligations from the ICCPR, understanding that countries have the responsibility to take action to protect family life. An adaptable definition of family is also necessary to consider within legal jurisprudence.[49]

The right to family life logically contains a right to family unity, especially in refugee situations.[50] Family life should apply to all countries regardless of international standing.[51] Circumstances, such as those in Ukraine, provide real examples of the nightmares endured with family separation. Scared mothers fleeing their homes with their crying children and leaving their husbands or other family members behind was a common sacrifice being made for safety.[52] Additionally, there were hundreds of Ukrainian children arriving as refugees to the U.S. who were separated from their parents and unable to stay with extended family because they were not direct parents.[53] It is necessary to advocate for more education on immigration policies and reform current protocols to ease the hardships that many immigrants endure. This is called for by social workers and human rights advocates alike.[54] Advocacy requires knowledge of the right to family life being intersectional, impacting the rights of women and children in various aspects.[55] Promoting the discourse between international organizations, governments, and human rights advocates to continue review and discussion is important. Articulating the effects of family separation, monitoring violations, raising awareness, and educating authorities on legal frameworks may be examples of helpful collaboration. [56]

An increase in storytelling may help the public understand a real perspective of migrant safety concerns and the lack of cultural awareness.[57] Perhaps, news organizations should be held more accountable for fully displaying honest depictions of events and struggles, such as the psychological impacts of border immigration. This imposes obligations on governments, international organizations, citizens, and social media to spread true information and pay more attention to human rights violations.[58] Every person has a duty under a human rights framework to acknowledge and respect the rights and dignity of others.[59] Advocating for this may inspire every person, whether they have a direct responsibility through an employment field like social work, counseling, psychology, or legal work, or simply as another human being to understand and uphold fundamental human rights in all encounters.[60] Storytelling and narration may be an effective learning tool to implement these feelings of empathy, humanity, and connection.[61] Promoting inquiry, participation, credible research, and asking hard questions can lead to meaningful and necessary change.[62]

B. Enforcing Standard Compliance Policies

Additionally, a larger discussion must consider immigration policies. Problematic developments within case law show legal uncertainty in family life and immigration case law.[63] Specifically looking at the diverging practices within European States, there may be a need for a standard compliance test dealing with Article 8 of the European Court of Human Rights, which determines whether a country is obligated to admit or prohibit a foreign national while balancing the immigrants needs and the public interest. The balancing between interests is a broad area with many inconsistencies proving just how varied the legal security of family life is throughout the world.[64]

For example, within expulsion cases, Article 8 case law provides detailed factors to consider when terminating lawful residences, such as for family members. However, when applied in certain countries, guidance is unclear on how to apply these factors. This leads to a wide range of decisions within domestic law, even while having clear international principles.[65] This relates to the threats that come from a broad interpretation of Article 8, where countries may separate families for a variety of purposes, such as national security, but these domestic processes may be largely unchecked. The courts in these situations should put to work the positive obligations they hold and aim to keep families together instead of implementing policies that split them for jurisdictional reasons.[66] Family unification is meant to be an important aspect of immigration policies, and reform of these family-based immigration systems deserves more awareness.[67]

IV. Conclusion

The difficulties that have ensued in the past years, as well as the challenges ahead, must serve as warning signs for society to protect family life and family unity. The nuclear family, whatever that may look like, is the most fundamental part of society. The documents previously referenced and custom emerging trends show a prioritization of protecting the family unit. The formation of new policies must be a crux, where seeking a human rights-based approach is the default standard. There may always be hardships, but denouncing laws carrying no justification for violating human rights cannot be accepted. Not only is this topic an issue for the human rights community and lawmakers, but it is an issue that affects all people.

---

[1] Frances Nicholson, The Right to Family Life and Family Unity of Refugees and Others in Need of International Protection and the Family Definition Applied pg. 3-4, United Nations High Comm’r for Refugees (2018), https://www.unhcr.org/dach/wp-content/uploads/sites/27/2018/03/CH_Essential-right-to-family-unity_Frances-Nicholson_2018.pdf [https://perma.cc/6C67-DFGB].

[2] Id.

[3] G.A. Res. 217 (III) A, Universal Declaration of Human Rights, art. 16 (Dec. 10, 1948); International Covenant on Economic, Social and Cultural Rights art. 10, Dec. 16, 1966, 993 U.N.T.S. 3, S. Exec. Doc. D, 95-2 (1978), S. Treaty Doc. No. 95-19, (1967); International Covenant on Civil and Political Rights art. 23, Dec. 16, 1966, 999 U.N.T.S. 171, S. Exec. Doc. E, 95-2 (1978), S. Treaty Doc. 95-20.

[4] Nicholson, supra note 1, at 1.

[5] Nicholson, supra note 1, at 21; U.N. Human Rights Comm., General Comment 16: The Right to Respect of Privacy, Family, Home and Correspondence, and Protection of Honour and Reputation (Article 17), U.N. Doc. HRI/GEN/1/Rev.1 at art. 21 (Apr. 8, 1994) [hereinafter CCPR General Comment No. 16].

[6] CCPR General Comment No. 16, supra note 5, at art. 21.

[7] Id.

[8] Id.

[9] Id.

[10] G.A. Res. 2200A (XXI), International Covenant on Civil and Political Rights, art. 23(1) (Dec. 16, 1966).

[11] G.A. Res. 2200A (XXI), International Covenant on Civil and Political Rights, at art. 17 (Dec. 16, 1966).

[12] Sonja Starr & Lea Brilmayer, Family Separation as a Violation of International Law, 21 Berkeley J. Int’l L. 213, 215 (2003).

[13] Pia Lotta Storf, Ukraine’s Travel Ban, Genera and Human Rights, Völkerrechtsblog (Mar. 18, 2022), https://voelkerrechtsblog.org/ukraines-travel-ban-gender-and-human-rights/ %5Bhttps://perma.cc/ES4K-MUEB].

[14] International Committee of the Red Cross, Rule 131: Treatment of Displaced Persons, https://ihl-databases.icrc.org/en/customary-ihl/v1/rule131 [https://perma.cc/8NZN-GRAS]. 

[15] Geneva Convention Relative to the Protection of Civilian Persons in time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287.

[16] United Nations Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3.

[17] Erika Arenas et al, Gender, family separation, and negative emotional well-being among recent Mexican migrants 83 J. of Marriage and Fam. 1401 (2021).

[18] Human Rights-Based Approach, UN Sustainable Development Group (2024), https://unsdg.un.org/2030-agenda/universal-values/human-rights-based-approach [https://perma.cc/A5RE-DFHJ].

[19] Id.

[20] David Patterson, Human Rights-based Approaches and the Right to Health: A Systematic Literature Review 16 J. of Hum. Rts. Practice 603, 605 (2024).

[21] Id. at 607.

[22] See generally Christopher McCrudden, Human Dignity and Judicial Interpretation of Human Rights, 19 Eur. J. Int. Law 655 (2008).

[23] See generally E. Michelle Andrews et al, ADVANCING THE RIGHT TO HOUSING IN THE UNITED STATES: Using International Law as a Foundation, N.Y. City Bar Ass’n (Jan. 31, 2016), https://www.nycbar.org/wp-content/uploads/2023/05/20072632-AdvancingtheRighttoHousingIHR2122016final.pdf.

[24] See generally Paul Hunt, Interpreting the International Right to Health in a Human Rights-Based Approach to Health, 18 Health and Hum. Rights J. 109 (2016).

[25] Id.

[26] War in Ukraine, Center for Preventative Action (Oct. 16, 2024), https://www.cfr.org/global-conflict-tracker/conflict/conflict-ukraine?ref=readtangle.com [perma.cc/3WEN-XXRU].

[27] Id.

[28] Id.

[29] Id.

[30] Jenna Norosky & Charli Carpenter, The Right to Flee the Dangers of War: Rethinking Ukraine’s Gender-Based Restriction on Civilian Men’s Freedom of Movement, 46 Human Rts. Q. 461, 489 (Aug. 2024).

[31] Id. at 465.

[32] Id.

[33] Id. at 462.

[34] Id. at 489.

[35] Nicholson, supra note 1, at 1.

[36] Arenas, supra note 17, at 1402.

[37] Id.

[38] Arenas, supra note 17.

[39] Id. at 1404.

[40] Selena Zamudio, Capturing the Immigration Experience Through Storytelling at 3 (May 2024) (Masters Thesis, California State University), https://scholarworks.calstate.edu/downloads/f1881t78g [perma.cc/4HFU-PV4S].

[41] Id. at 4.

[42] European Convention on Human Rights art. 8, Sept. 3, 1953, 213 U.N.T.S 221.

[43] Id.

[44] Norosky & Carpenter, supra note 30, at 489.

[45] Convention relating to the Status of Refugees, art. 12, 28 July 1951, 189 UNTS 137.

[46] Id. at 11.

[47] Id. at 14.

[48] Id.

[49] Id. at 36.

[50] Id. at 15.

[51] Id.

[52] Amanda Scott, The Ukrainian Family Separation Crisis, 43 Children’s Leg. Rts. J. 77, 77 (2022).

[53] Id. at 2.

[54] Id.

[55] Hunt, supra note 24.

[56] Zamudio, supra note 40, at 4.

[57] Id. at 5.

[58] Id.

[59] Hunt, supra note 24.

[60] Id.

[61] Zamudio, supra note 40, at 12.

[62] Id. at 18.

[63] Jennie Edlund & Václav Stehlík, A Migrants’ Right to Respect for Family Life – The Problematic Developments of the European Court of Human Right’s Case Law, 21 Int’l & Comp. L. Rev. 116, 117 (2022).

[64] Id.

[65] Id. at 121.

[66] Edlund & Stehlík, supra note 63, at 118.

[67] How the United States Immigration System Works, American Immigration Council (June 24, 2024), https://www.americanimmigrationcouncil.org/research/how-united-states-immigration-system-works [perma.cc/X4HG-6XVY].

---

Cover Photo by mrhayata on Creative Commons.