A Stratified Right to Family Life? On the Logic(s) and Legitimacy of Granting Differential Access to Family Reunification for Third-country Nationals Living within the EU

Abstract

As one of the predominant means of legal entry into the European Union (EU), family reunification has moved to the centre of public and political debates on immigration. Many Member States’ governments have put in place a net of highly selective policies in order to limit the number of foreigners entering as family migrants. This paper contrasts the underlying normative claim of a fundamental and universal right to family life against the existing evidence of unequal conditions and effects of family reunification policies for different groups and categories of third-country national migrants. Questioning the legitimacy of these differential policies, I build on Habermas’ distinction between pragmatic, ethical and moral modes of justification to develop a framework that helps to distinguish the various logics and arguments underlying this increasingly complex system of differentiated rights. I argue that within European family reunification policy-making the three types of justification, while often used in combination, tend to serve different functions and to inflict distinctive shortcomings in terms of the legitimacy of the selection mechanisms they underpin.