In an attempt to limit fraudulent family reunification immigration and control how many migrants enter its borders, France statutorily implemented the use of DNA testing in family reunification immigration in late 2007. Where an immigrating child possesses suspicious documentation, and the child is seeking to reunite with his or her mother in France, the statute provides for voluntary DNA testing to establish that the child has a biological connection with the mother. The requirement of proof of a biological link between family members is diametrically opposed to family recognition policies that apply to French citizens, which emphasize the establishment of social ties rather than genetic links.
This Note asserts that the European Court of Human Rights (ECHR) would find France's 2007 immigration statute violative of the right to family life under [section] 8 of the European Convention on Human Rights, as the statute creates a dual standard of family recognition for French citizens and immigrant families who are seeking to be unified in that country. In turn, this Note analyzes the public policy rationale behind the DNA testing statute and concludes that the statute could adversely affect desirable social standards. Finally, this Note analyzes how states can limit immigration and protect themselves from immigration fraud while also being mindful of human rights.
TABLE OF CONTENTS I. INTRODUCTION II. AN OVERVIEW OF FRENCH IMMIGRATION HISTORY A. Immigration in France: The 1920s to 2006 B. Changes to French, Immigration Law in 2007 III. FAMILY RECOGNITION STANDARDS FOR FRENCH CITIZENS IV. RIGHT TO FAMILY LIFE UNDER THE EUROPEAN CONVENTION ON HUMAN RIGHTS V. REVIEWING THE PUBLIC POLICY RATIONALE A. Changing Views of Family Recognition B. Questionable Testing Results C. Refusal as a Proxy for Testing D. Maintaining Distance between the ECHR and Domestic Issues E. Promoting Marriage as Society's Ideal Relationship F. Preventing Child-Trafficking G. Preventing Fraud H. Use of the Procedure in Other Countries VI. LIMITING MIGRATION WHILE RESPECTING HUMAN RIGHTS A. A Plan that Mitigates the Worst Effects B. What Should Be Done to Implement This Rule? VII. CONCLUSION I. INTRODUCTION
The Treaty of Rome, which created the European Economic Community and established the foundation for the modern European Union, provided for the free movement of persons across the internal borders of its member countries. (1) As migration within the European Union has grown, there has been an increasingly negative sentiment towards persons immigrating to the European Union from nonmember countries. (2) In response, member countries have strengthened their external border controls. (3) In the 1990s, existing external border controls were not viewed as entirely exclusionary because of a Union-wide commitment to family reunification and human rights. (4) However, in the past decade, family reunification immigration has grown, accounting for nearly two-thirds of total immigration in some countries, and is now viewed as part of the problem. (5) Since 2001, migration as a whole has added 0.5% per year to Europe's workforce, surpassing migration to the United States. (6) In an attempt to limit fraudulent family reunification immigration and control how many migrants enter their borders, eleven nations have incorporated the voluntary use of DNA testing into family reunification immigration. These countries include: Germany, Austria, Belgium, Denmark, Finland, Italy, Lithuania, Norway, the Netherlands, Britain, Switzerland, and Sweden. (7) These countries allow for the voluntary use of DNA tests where documents are suspicious or missing and require that children have a biological connection to the persons with whom they wish to reunite. (8) The requirement of proof of a biological link between family members is often diametrically opposed to family recognition policies in these countries, which emphasize recognition of a child by the parent as their own and the establishment of social ties rather than genetic links. (9)
France is the most recent country to implement the use of DNA testing when granting family reunification immigration. (10) This Note asserts that the European Court of Human Rights (ECHR) would find that France's 2007 immigration statute violates of the right to family life under Section 8 of the European Convention on Human Rights, because it creates a dual standard of family recognition for French citizens and immigrant families seeking to be unified in that country. Part II provides an overview of the history of immigration law in France and the new immigration laws promulgated in 2007. Part III explores the family recognition standards applied to French citizens. Part IV discusses the right to family life under the European Convention on Human Rights and analyzes arguments for and against involving the ECHR in cases involving admission standards. Part V, in turn, focuses on the public policy rationale for requiring a genetic link in family reunification immigration and how the DNA testing statute could adversely affect desirable social standards. Finally, Part VI analyzes how states can limit immigration and protect their countries from immigration fraud while also being mindful of human rights.
AN OVERVIEW OF FRENCH IMMIGRATION HISTORY
Immigration in France: The 1920s to 2006
France has had two waves of guest laborer immigration in its history--the first wave occurred in the 1920s to rebuild the country after World War I, and the second occurred in the late 1950s and 1960s to rebuild and industrialize the nation after World War II. (11) Increasingly, as laborers stayed in the country, they "filled economic niches that local workers showed little interest in filling." (12) By the 1970s, these guest laborers had become a vital part of the French economy and no longer regularly traveled back and forth from their country of origin to France. (13) As the lives of these guest workers became more stable in France, they arranged to have their families join them. (14) The flow of guest workers slowed further as unemployment began to rise in the early 1970s and recruitment abroad halted. (15) In 1974, immigration to France shifted from mostly guest workers to families. (16) Since then, family reunification immigration has continued to grow, to the point that in 2006 family reunification immigration accounted for 64% of total French immigration. (17)
Recently, the political climate in France has grown increasingly hostile to immigration. In April 2002, French presidential candidate Jean Marie Le Pen of the National Front Party gained 17% of the vote in the national election based on promises to deport illegal immigrants, defend white families in housing developments, and give preference to native French persons in jobs and welfare. (18)
The French Parliament enacted a new immigration law in November 2003 in response to the concerns about immigration raised in the 2002 election with the stated goal of fostering integration. (19) Under the law, foreigners who have resided legally in France for one year may apply for family reunification to have their family join them. (20) The family was defined as the person's spouse and minor children, whether natural (regardless of whether they have been legitimized) or adopted. (21) The foreign applicant must show that they are capable of supporting their family financially and that they possess adequate housing. (22) Further, partial family reunification is generally not allowed under the law; after applying, the applicant must bring their entire family at once. (23) The law does not explicitly allow for other family members, such as non-minor children or brothers and sisters, to be unified with their families. (24) However, other family members could apply for a residency permit if they proved that their family life exists in France. (25) When applying for a residency permit, an embassy official analyzes the strength of family ties. (26) The most successful cases involve young adults who are alone in their country of origin with their entire family legally residing in France. (27) Under the 2003 law, illegal residency is punishable by deportation and a bar against admission for three years. (28)
Despite these restrictions on immigration, there continued to be a push for more stringent law. Riots in the suburbs of Paris during October and November of 2005 increased anti-immigration sentiment and fueled concerns that families reuniting in France were failing to integrate into French culture. (29) The riots began after two teenagers of African descent were accidentally electrocuted while running from police in a suburb of Paris. (30) Protests led to riots--largely led by second-generation immigrant youths--in 274 cities across France, and resulted in the French government declaring a state of emergency. (31) Damage from the torching of nearly 9,000 cars and dozens of buildings and schools totaled nearly 200 million [euro]. (32)
On July 25, 2006, France adopted a new immigration and integration law restricting family reunification immigration and encouraging migration of highly-skilled workers. (33) Interior Minister--and presidential contender at the time--Nicholas Sarkozy promoted the law arguing that selective immigration was an "expression of France's sovereignty." (34) In addressing family reunification, Parliament extended the time period during which immigrants must wait before applying for reunification. (35) The 2006 law extended from twelve to eighteen months the requirement of lawful presence before submitting an application for family reunification application. (36) The 2006 law also states that immigrating family members must respect the basic principles of family life in France, which include respect for a secular state, equality between man and woman, and monogamy, and that immigrants prove they can support all family members who seek to come to France. (37)...