Last June, the plight of Fatima, a non-EU national pregnant with her third child, who was denied reunification with her husband, a migrant worker in Malta at the time, hit the headlines of the local media.
Family migration can include various scenarios, such as families joining migrants who had emigrated earlier and family members accompanying a newly admitted economic migrant, student or refugee. Family reunification is an essential component of integration.
Despite Malta having signed, ratified and transposed various international conventions, treaties and other related instruments, our family reunification laws and policies still reflect a restrictive orientation and aim at a minimalist implementation.
Fatima's hardship is hard-core evidence of this dire situation for non-EU migrant families in Malta.
Of course, in the first place, such migrants should be discouraged from even coming to Malta to be then inhumanely exploited by unscrupulous employers and eventually deported and kicked out, not to mention the consequent overpopulation issue.
Needless to say, this conundrum is all a direct result of the government's economic model heavily dependent on foreign workers.
Be that as it may, non-EU citizens are less likely to reunite with their family in Malta than in most European countries because of our long-delayed, restrictive and discretionary policy.
Irrespective of whether one is in favour or against such a policy, the fact remains that Malta is, in all probability, in breach of multiple EU laws and human rights provisions.
The right to family life is one of the basic human rights secured by international legal instruments, and in particular by Article 8 of the European Convention on Human Rights. The reconstitution of migrants' and refugees' families through family reunion is a humane solution in keeping with human rights principles and in the interest of social cohesion.
Over the past few decades, economic migration and the flow of refugees and asylum seekers to Europe and the return of illegal immigrants to their countries of origin have given rise to the problem of the forced separation of families.
It concerns foreign nationals in a variety of situations, such as couples of different nationalities, migrant workers, refugees, asylum seekers whose application has been rejected but who have been granted a humanitarian or other status, persons under temporary protection, unaccompanied minors, etc. In the past, family reunions were thought to concern mainly women; however, estimates now show that the number of women refugees and women economic migrants is steadily rising.
Malta's imposition of restrictive conditions on family reunion is a cause for concern. They have no minimum standards defined, and the respective authorities have a wide discretion, often examining applications for family reunion on a case-by-case basis using different and often restrictive definitions of the family.
Moreover, incoherent and unjustifiably lengthy procedures, in particular combined with the lack of transparency resulting from the large number of applicable decrees and circulars, may cause undue hardship to those concerned.
While there is no internationally agreed-upon definition of a "family" per se applicable to the implementation of all provisions of international human rights treaties related to the family, some international human rights bodies have clarified the scope of family life that states are bound to respect and protect in particular contexts. For example, the case law of the European Court of Human Rights has clarified the scope of the right to family life that the State must respect and protect under Article 8 ECHR, including in the context of the determination of claims for international protection and family reunification.
Furthermore, various EU instruments which concern migrants, including the EU Directive on Family Reunification, the Qualifications Directive and the Dublin Regulation, all applicable to Malta, each contain provisions that define the relationships to which the term "family" applies.
The European Court's definition of family life is a broad one, which has developed over time by changing ideas of family and is likely to continue to do so in light of evolving social attitudes.
"Family" under the European Court's caselaw includes a person's children and adult partnerships, including both opposite-sex and same-sex marital relationships and stable and committed cohabiting non-marital relationships. Relevant decisive factors include whether the couple live together, the length of their relationship, and whether they have demonstrated their commitment to each other by having children together or by any other means.
The relevance and weight of these decisive factors vary on a case-by-case basis according to the particular circumstances involved.
Failing to apply a broad understanding of "family" in applying family reunification rules has at times been found to give rise to violations of the Convention.
To comply with their international human rights law obligations, Malta needs to interpret and apply the provisions of the Directive under the broader meaning of family life established by the European Court of Human Rights, as considered above.
We have positive obligations to ensure migrants' effective enjoyment of their right to respect for family life. The best interest of the child must be the primary consideration by all judicial and administrative authorities in any decision related to the child's right to respect for their family life. This obligation will also be applicable when an adult is a subject of a case which might engage the best interests of a child.
In the context of migration and displacement, respect for family unity and the right to family life involves allowing families to move together and separated families to reunify.
Dr Mark Said is a lawyer