Immigration, f amily norms and citizenship in the Netherlands

1. Immigration, family norms and citizenship in the Netherlands

2. 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)

3. 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

4. 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.

5. 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

6. 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: • Women’s role in society • Enfranchisement

7. 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.

8. 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.

9. Autonomy, but .... Some inconsistencies: Students are autonomous individuals => 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

10. 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

11. 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

12. 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”

13. 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

14. Relevant domestic law • Actually belonging to the family unit => 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.

15. 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.

16. 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 Mehret’s age ... should (not) lead to rejection of the application.

17. 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.

18. 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

19. Admission children (new policy) Separation parent-child < 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 > 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

20. 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

21. 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 => • Either you are a dependent spouse or a full time breadwinner

22. 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).