Against All Odds: How Single and Divorced Migrant Mothers were Eventually able to Claim their Right to Respect for Family Life

Abstract

Feminist and post-colonial theorists challenge the supposed neutrality of international human rights law which, in their view, should be seen as a product of asymmetrical power relations. On the basis of this premise, it seems unlikely that single and divorced migrant mothers from outside of the EU will be able to mobilize international human rights law to their advantage. And yet, after twenty years of litigation, single and divorced migrant mothers in the Netherlands are now fi nally able to claim their right to respect for family life and reunite with children left behind in their countries of origin. Th is chapter seeks to explain how this increase in human rights protection could come about. While some litigants are less powerful than others, they do not always stand alone. Increasing the scope of analyses makes it possible to include case law produced by more powerful actors. Th eir gains can off er strategic opportunities to those less powerful. Keywordsadmission of children als family migrants; family migration policy; gender and immigration law; respect for family law

Brokerage in Cross-Border Mobility: Social Mechanisms and the (Re)Production of Social Inequalities

“…61-62) There are also indirect consequences of the practices of civil society actors which can be classified as brokerage: in the Netherlands, for example, for two decades single and divorced Dutch fathers and EU citizens mobilized human rights law to reunite with their children. Eventually, not only did they benefit from the successful mobilization of European human rights law, but so also did single and divorced mothers from outside the EU who did not hold Dutch citizenship (Van Walsum, 2009). This case already suggests that brokerage is to be understood not only in the sense of agency-although it is of the agents' making-but also as a structural feature: the gains made by more powerful actors filtered down to less powerful ones via the practices of law.…”

Migration, family separation and caregiving across borders

“…The European Directive on Family Reunification provides a minimum set of guidelines to which member states have to comply in order to protect the respect for family life, according to Article Eight of the ECHR (Council of the European Union, 2003). It has strengthened the legal position of TCNs to protect their right for family life relative to the situation prior to 2003, which has resulted in the rejection of several policy propositions that were found to be in conflict with Article Eight, such as the five-year reference period in the 'effective family bond' criterion and the alignment of requirements for family reunification and formation (Bonjour, 2009;College voor de Rechten van de Mens, 2014;Van Walsum, 2009). Box 4.1.…”

“…There shall be no interference by a public authority with the excercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. Notwithstanding the important role of the Directive in regulating national policy formation, it leaves much freedom for European member states in national family migration cases to prevent too much interference with sovereign rights of member states (van Walsum, 2009). The Dutch government has been rather successful in formulating the European guidelines in such a way that existing regulations are minimally changed and that further restrictions can be justified (Bonjour, 2009;Strik, de Hart & Nissen, 2013).…”

“…Although these decisions were annulled by the Judicial Division of the Council of State, shortly after, the Dutch Minister of Alien Affairs and Integration announced the eradication of the five-year period within the effective family bond criterion. Since then, the indicative 'effective family bond' comes from the notion of 'family life' of the ECHR, which means that, in principal, a family bond between parents and minor children can be assumed, except when the child is married or establishes a family or household of its own (Van Walsum, 2009 The difficulty level of the pre-integration test was increased, which ultimately resulted in a drop of the pass rate from 95% to 86% (OECD 2015). In this way, the pre-integration test is in reality meant to prevent '"unwanted" immigration' (Joppke 2007b: n.p.).…”