The criminalisation of family reunion applicants in France and England and Wales: fact or fiction?

Abstract

According to article 8 of the European Convention on Human Rights (ECHR) which is integrated into British and French law, ‘‘everyone has the right to respect for his [...] family life’’. Family reunion immigration was a logical, and lawful follow-up to labour immigration which was encouraged by France and the United Kingdom after the second World War as a means to provide a workforce for their factories. More recently, a third category of migrants has emerged, often referred to as illegal immigrants, who are attracted by the French or British political system or social benefits. Over time, a confusion has arisen, and is sometimes entertained, between authorised and unauthorised migration. If article 8 makes it possible for the Member States to set some limits to the right to family reunion in order to take account of a prevailing national interest, it must remain a right. Family reunion applicants should not be assimilated to illegal immigrants, or even criminals, unless of course, they are. Recently, European Member States have become increasingly concerned about possible frauds and abuses of the right to family reunion. Any dismissal of an application for family reunion can be disputed in court. In the specific context of France's and the United Kingdom's legal, social and political cultures (and regarding the United Kingdom, by focusing mostly on England and Wales which have their own legal system), this study aims at determining how the lower national courts deal with family reunion litigation. More specifically we will see whether national judges depart from or try to restore the original spirit of article 8 and the right it protects to be reunited to one's family.