Right to family life

The right to family life is the right of all individuals to have their established family life respected, and to have and maintain family relationships. This right is recognised in a variety of international human rights instruments, including Article 16 of the Universal Declaration of Human Rights, Article 23 of the International Covenant on Civil and Political Rights, and Article 8 of the European Convention on Human Rights.

The changing concept of family requires a subjective definition of what family entails. There is no contest that the relationship between husband and wife, unmarried (de facto) partners, parents and children, siblings, and ‘near relatives’ such as between grandparents and grandchildren represents family as required under the right to family life. Challenge exists where modern forms of family relationships have developed that the law has not yet explicitly recognised. The “existence… of family life is a question of fact” and is decided subjectively under each factual scenario. The European Court of Human Rights has stated that when considering what constitutes family relationships the Court “must necessarily take into account developments in society and changes in the perception of social, civil-status and relational issues, including the fact that there is not just one way or one choice in the sphere of leading and living one’s family or private life”. Established family ties can be broken.

The right to marry is closely related to the right to family life, however the two rights are not identical. The right to marry is explicitly provided for in all human rights instruments, essentially providing that all people have the right to marry and found a family. The right to family life predominantly refers to an individual's right to create and maintain their family relationships. It was clarified in X, Y and Z v United Kingdom that in the situation where a spouse has been deported from their partner's State due to their nationality, there is no infringement on the right to marry as the individuals are already married, and so the right to family life must be considered.

The main area of conflict arises between the ability of States to control entry and residence within its borders and the impact this control has over an individual’s right to family life. Within international law the general principle holds that a State has the right to regulate entry and residence within its own territory. When this power of control results in the deportation of an individual, this may cause a breach of an individual's right to stay with their family. This conflict occurs where the immigrant is the spouse, parent or relative of a State's citizen, and the State wishes to remove or refuse entry to the immigrant. When a challenge is brought forward to the Courts or monitoring bodies, a balance must be struck between the rights of the State to enforce immigration laws and maintain public order, and the impact the enforcement of said laws will have on an individual's right to family life. It has been emphasised that it is not the task of monitoring bodies to “supervise the government's immigration policy, but to examine whether the applicant’s right to respect for family life had been ensured without discrimination”.

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