Immigration, family norms and citizenship in the Netherlands

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Immigration, family norms and citizenship in the
Netherlands
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• S. van Walsum
• Family norms and citizenship in the Netherlands
• (published in Christiane Harzig Danielle
  Juteau (eds) The Social Construction of
  Diversity. Recasting the Master Narrative of
  Industrial Nations. Berghahn Books, New
  York/Oxford, 2003, pp. 212-226)

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Why the family?

• Long term residence is condition for acquiring
  Dutch citizenship
• Family re-unification is one of the major grounds
  for granting long-term residence status and in
  the end
• citizenship

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Family norms underpinning Dutch immigration rules

• Monogamy
• Full time provider as head of household
• Economically dependent full time caring parent
• Yet, these same norms have been challenged in
  Dutch family law.

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Structure of the lecture

• The integration of women in the body politic
• The family in contemporary Dutch law
• Family norms in Dutch family reunification
  policies the Tuquabo-Tekle case
• The integration of immigrants into the body
  politic

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Family norms and Dutch citizenship in 19th
century the integration of women into the body
politic

• Nuclear family model seen as traditional
• Yet product of intense political conflict over
• Womens role in society
• Enfranchisement

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• Steinmetz
• The family not as a pre-social private bond
  between men, women and children, but
• Family as the foundation of the nation state and
  therefore family law, regulating the family, as
  public law.

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The family in contemporary Dutch law

• 1986 parents not living together should be
  treated equally to parents living together
• 1989 A married man may recognize his child born
  out of wedlock
• 1995 Parental authority over children of minor
  age a. Right of contact is made into a
  fundamental right b. Unmarried and divorced
  parents can ask for shared parental authority
• 1998 divorced and unmarried parents automatically
  share parental authority
• 1998 broadening possibilities for the natual
  father to recognize the child without consent
  mother.

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Autonomy, but ....

• Some inconsistencies
• Students are autonomous individuals gt
  living-allowance, yet so low students from
  poorer families must stay home
• Share a household with another adult you are
  expected to support each other, regardless of the
  nature of the relationship

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Some are more equal than others

• Fathers have a right to share parental power and
  to enjoy visiting rights, without having to prove
  any active involvement in the day-to-day care -
  or even the financial support - of the child
• No full access to parental rights for the
  homosexual partner of a child's biological parent

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Family norms in Dutch family reunification
policies

• TUQUABO-TEKLE AND OTHERS v. THE NETHERLANDS
• EHRM 1 dec. 2005
• www.worldlii.org/eu/cases/ECHR/2005/803.html

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Art 8 ERHC

• 1. Everyone has the right to respect for his ...
  family life ...
• 2.  There shall be no interference by a public
  authority with the exercise of this right except
  such as is in accordance with the law and is
  necessary in a democratic society in the interest
  of national security, public order or economic
  welfare, for the prevention of disorder or crime,
  the protection of health or good customs or the
  protection of the rights and freedoms of others

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• 1989 mother of Mehret flees from Ethiopia to
  Norway. Leaves Mehret behind with family in
  nowadays Eritrea
• 1991mother receives residence permit on
  humanitarian grounds, because of situation in
  Eritrea she is not able to bring Mehret to Norway
• 1992 mother marries Etheopian refugee in Nl.
  Together they get 2 children
• 1997 they ask for Mehret to be admitted. She is
  then 15 years old. Request rejected.
• 2000 appeal rejected by the Regional court

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Relevant domestic law

• Actually belonging to the family unit gt close
  family ties
• The burden of proving that the close family ties
  between parent and child have not been severed
  lies with the parent residing in the Netherlands.
  The longer the parent and child have been
  separated, the heavier the burden of proof on the
  person in the Netherlands becomes.

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• What about the circumstances that Mehret would be
  taken from school in order to marry
•  According to the Government, the circumstances
  of Mehret having reached marriageable age and
  facing the risk of being married off without
  being allowed to continue her schooling were not
  so exceptional that the right to respect for
  family life gave rise to a positive obligation to
  allow her to reside in the Netherlands. This
  decision did not in any way prevent
  Mrs Tuquabo-Tekle from continuing family life in
  the same way and at the same level as in the
  seven years between her departure from Eritrea
  and the time of the visa application.

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• ECHR on the circumstances that Mehret would be
  taken from school in order to marry
•  Although Mrs Tuquabo-Tekle disagreed with the
  choices made for Mehret, she was unable to do
  anything about them as long as her daughter was
  living in Eritrea. The Court agrees with the
  Government that the applicants arguments in this
  context do not, by themselves, warrant the
  conclusion that the State is under a positive
  obligation to allow Mehret to reside in the
  Netherlands. Even so ... the Court accepts ...
  that Mehrets age ... should (not) lead to
  rejection of the application.

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The ruling of the European court

• the respondent State has failed to strike a fair
  balance between the applicants interests on the
  one hand and its own interest in controlling
  immigration on the other.
• Accordingly, there has been a violation of
  Article 8 of the Convention.
• Mehret may enter Nl.

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Admission children (old policy)

• Factual family ties. These are believed to have
  ceased to exist when
• The child was on a (semi)permanent basis living
  in another family
• Plus
• The parent in Nl. did not financially maintain
  the child and/or did not actually exercise
  parental authority

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Admission children (new policy)

• Separation parent-child lt 5 years, tie intact,
  unless
• Child is living on its own
• Child has started its own family
• (fact that child herself has a child does not
  imply that family tie is broken)
• Separation parent-child gt 5 years family tie
  ceased to exist, unless
• No acceptable future in country of origin
• Child was in war situation untraceable
• Burden of proof with parents

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• The contradictions of family re-unification
• to qualify for family re-unification parents must
  find adequate housing, adequate means of
  existence
• Yet a true mother does not delegate caring
  responsibilities

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The integration of immigrants into the Dutch body
politic

• Continuation of residence permit is dependent on
  either permanent attachment to Dutch partner or
  Dutch employer gt
• Either you are a dependent spouse or a full time
  breadwinner

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Summary

• European countries have a restrictive immigration
  policy, yet justification for restricting
  immigration is for a liberal state not easily
  formulated.
• One argument open borders are incompatible with
  an extensive welfare state.
• As fully closed borders are not desirable, or
  even attainable, we need to develop creative
  solutions. Differentiated citizenship rights?
• Immigration rules are not gender neutral. Mixed
  marriages Dutch women are subjected to screening
  of their motives more often then men different
  discourses operating the foolhardy woman versus
  the big softy alias white knight.
• the rules on family-reunification are underpinned
  by traditional gendered norms about family life
  (monogamy, a full-time provider as head of the
  household and an economically dependent full-time
  caring parent).