The Role of Human Rights in Family Reunification: Fair Balance between Respect for Family Life and National Interests

This dissertation in Public Law, for a doctoral degree in Administrative Sciences, is a study on the role of human rights in migration law in the specific context of family reunification. The role of human rights and the scope of human rights protection are assessed in light of the European Convention on Human Rights and the standards created in the European Court of Human Rights. The focus is on Article 8 of the Convention that protects the right to respect for family life. The focus is also on the principle of proportionality and the fair balance test used by the Court of Human Rights to assess states’ compliance with their human rights obligations. The fair balance test takes into account and weighs various individual and national interests.

In this dissertation, state compliance is investigated in the case of Finland. As in some other European countries, the conditions for family reunification have been tightened in the last couple of decades also in Finland. Therefore, it is relevant to ask what the human rights obligations are, and how Finland ensures the protection of human rights and the right to respect for family life in the context of migration. Since Finland is a member of the European Union and bound by the common migration and asylum policy, it is also necessary to ask what supranational obligations emerge, and what the role of human rights is in migration law of the European Union.

These questions are approached with a legal method by analysing the structure and logic of interpretation in court cases and by using theories on interpretation methods addressed in the legal literature. As often is the case in human rights research, the aim of this dissertation is to enhance human rights protection. Since one of the findings of this study is that the legal human rights protection is minimal, extra-legal approaches are also adopted. This research draws inspiration from sociological studies and applies political theories to point out flaws in the legal thinking. Through this broader Law and Society approach, I challenge conventional legal thinking on what the fair treatment of foreigners is and what is in the national interest.

I agree with many that, in the context of migration control and family reunification, human rights protection should be promoted with a pragmatic approach. However, too much leeway for the national interest at the expense of reasonableness and proportionality impairs the effectiveness and credibility of human rights protection. I argue that such a development can be impeded by paying more attention to the proportionality assessment and protection of the essence of the human right. The findings of this dissertation point towards the erosion of international protection and solidarity when national interests are in play. Previously established human rights standard that requires facilitation of family reunification for those who cannot enjoy family life elsewhere is challenged. I call for principled pragmatism, where certain principles are recognised to be the essence of human rights and understood as non-derogable rules.