Suspect Families

DNA Analysis, Family Reunification and Immigration Policies

Torsten Heinemann, Ilpo Helén, Thomas Lemke, Ursula Naue, Martin Weiss

• Publisher: Routledge
• Year: 2016
• eBook ISBN:
  9781317048060
• Topic: Sozialwissenschaften
• Subtopic: Aus- & Einwanderung

Suspect Families is the first book to investigate the social, political, and ethical implications of parental testing for family reunification in immigration cases. Drawing on policy documents, legal frameworks, case study material and interviews with representatives of governmental and non-governmental organisation and immigration authorities, immigration lawyers, geneticists and applicants for family reunification, the book analyses the different political regimes and social arrangements in which DNA analysis is adopted for decision-making on family reunification in three distinct European countries: Austria, Finland and Germany. Interdisciplinary in scope, the book reconstructs the processes, institutional logic and the political and administrative practices of DNA testing from a comparative perspective, combining theoretical conceptualisation with detailed empirical work to explore the central societal, political and ethical issues raised by the use of DNA profiling in the context of immigration policy. A ground-breaking study of the role played by new technologies in migration decisions, Suspect Families will appeal to scholars of sociology, political science, science and technology studies and surveillance studies.

Chapter 1 Constellations, Complexities and Challenges of Researching DNA Analysis for Family Reunification: An Introduction

DOI: 10.4324/9781315611426-1

Torsten Heinemann, Ilpo Helén, Thomas Lemke, Ursula Naue and Martin G. Weiss

Almost 30 years ago, in 1985, the British geneticist Alec Jeffreys made a discovery that soon caused a lot of excitement and became famous as the idea of a ‘genetic fingerprint’. This technology was rapidly used in the context of crime scene investigations, criminal identification and law enforcement. It is less well known, though, that the first site where this new technology was applied was not a criminal case but unresolved family issues. Soon after Jeffreys and his colleagues published two articles on their discovery in Nature (Jeffreys, Wilson and Thein 1985a, b) and the popular press reported their remarkable findings, a team of lawyers got in touch with him. They were advising

a Ghanaian boy born in the United Kingdom who emigrated to Ghana to join his father and subsequently returned alone to the United Kingdom to be reunited with his mother, brother and two sisters. However, there was evidence to suggest that a substitution might have occurred, either for an unrelated boy, or for a son of a sister of the mother. As a result the returning boy was not granted residence in the United Kingdom. (Jeffreys, Brookfield and Semeonoff 1985, 818)

Jeffreys took blood samples from the boy, the alleged mother and the alleged three siblings. The DNA analysis of the samples showed that the boy was indeed the biological son of the mother and a full sibling of her other son and two daughters. On the basis of the DNA evidence, the Home Office acknowledged the existing family relation and the boy was allowed to stay in the UK. This case became the starting point for a wide application of DNA analysis in immigration cases:

Over the next decade, DNA fingerprinting was used to test more than 18,000 immigrants who had been refused entry into the UK. Of these, more than 95% produced results that showed they were blood relatives of UK citizens and were therefore entitled to British citizenship – thanks to DNA fingerprinting.¹ (McKie 2009, 16)

1 For the history of DNA profiling, see Cole 2001.

Since the 1990s, many countries around the world have followed the United Kingdom’s lead and started to use DNA testing to verify genetic relatedness in family reunification cases.

In general, family reunification refers to the right of foreign family members living abroad to join relatives who hold long-term residence permits or are citizens of a given country. This right has been an integral part of many countries’ immigration policies, and is meant to protect the family in accordance with the Universal Declaration of Human Rights (UDHR) and the European Convention on Human Rights (ECHR).

The current trend among host countries seems to favour more restrictive family reunification policies. Many countries around the world are imposing stricter requirements on those applying to reunite with their family members. They often ask applicants to provide official documentation to prove their identities. Providing such information is often difficult, especially in countries that do not use official documents to establish identity or where those documents have been lost or destroyed due to politically unstable situations. Even if applicants possess the required documents, the information is sometimes rejected by immigration authorities as they question the authenticity of the documents. In this context, many countries resort to DNA kinship testing to resolve cases in which they consider the information presented on family relations to be incomplete or unsatisfactory (Taitz, Weekers and Mosca 2002b; Heinemann, Naue and Tapaninen 2013).

Although exact usage rates and statistics are unavailable in most host countries, there is evidence that DNA testing in the context of immigration policies is on the rise. Today, at least 21 countries around the world including 17 European countries have incorporated parental testing into decision making on family reunification in immigration cases: Australia, Austria, Belgium, Canada, Denmark, Estonia, Finland, France, Germany, Hungary, Italy, Lithuania, Luxembourg, Malta, the Netherlands, New Zealand, Norway, Switzerland, Sweden, the UK and the USA (European Migration Network 2008, 2009b; Heinemann and Lemke 2013; La Spina 2012).

DNA analysis certainly offers some technical advantages over traditional methods of identification such as blood testing (Davis 1994), as it is much more precise, less prone to errors, fairly cheap, and provides a basis for establishing genetic relatedness not only between parents and their children but also between siblings or cousins or between children and their grandparents, aunts and uncles or nieces and nephews. In other words, it allows the examination of complex and extended family relations and achieves very high probability rates (Blouin 2003; Jones and Ardren 2003; Jones et al. 2010). DNA testing might also be considered an effective instrument to prevent child-trafficking and to limit fraudulent family reunification (European Commission 2011; Müller 2012). While parental testing is a very precise way of determining biological relatedness, the technological procedure also has some limits: for example, children may have natural mutations that lead to an exclusion of maternity or paternity even though a biological relation between the parents and the child exists (see Junge et al. 2006). Furthermore, human errors can occur both in taking samples in the countries of origin and when analysing them (see Dawid et al. 2001; Karlsson et al. 2007; Mansuet-Lupo et al. 2009).

While these issues are primarily technical and can be solved or dealt with in practice (Heinemann, Naue and Tapaninen 2013; Heinemann and Lemke 2014), DNA testing for family reunification in immigration cases also raises more serious concerns that have not so far been adequately addressed. It has far-reaching consequences not only for immigration policy, but also for the idea of citizenship, privacy issues, and the concept of family. In legal terms, the question arises of how the applicant’s right to privacy and family is respected (Frenz 2008). A related issue concerns data protection: how long is DNA information stored, and what agencies have access to it? There are also serious social concerns that go along with DNA testing in the context of family reunification. The focus on genetic links may devalue alternative forms of family that are seen as secondary or even excluded. Only biological relatives would be eligible for family reunification. A further aspect to be considered is the fact that some families will not be able to provide DNA test results, since they either lack the financial resources to pay for the test or religious convictions will make it impossible for them to consent to the procedure (Taitz, Weekers and Mosca 2002a, 2002b).

DNA testing for family reunification also poses ethical questions, as this practice potentially conflicts with the concept of informed consent and the right not to know, two fundamental principles of medical ethics. In addition, the use of DNA tests in immigration policy may violate the right of the individual to decide what information about himself/herself may be made available to others and under what circumstances. This implies that DNA tests must be absolutely voluntary, which might be doubted in the context of DNA testing for immigration purposes since a person choosing not to submit to the test would probably lose the opportunity to be reunited with his/her family.

Many journalists around the world have reported on individual cases in which the use of DNA analysis for family reunification has raised serious legal, ethical and social concerns (see for example Funk 2007, 2009; Gaserow 2007; Swarns 2007; Weiss 2011). Beyond this media coverage, research and scientific publications in this field are rare. So far, the topic has only stirred interest among legal scholars and in the human rights literature (Taitz, Weekers and Mosca 2002a, 2002b; Frenz 2008; Murdock 2008; Holland 2011). Social science scholars have mostly focused on the use of parental testing and its implications for family relations, parenthood, and gender aspects (for example Turney 2005, 2006, 2011; Freeman and Richards 2006; Richards 2010; Fonseca 2011) within one country. While there is a body of research on the social, political and ethical implications of genetics for health and medicine, agriculture and nutrition, and insurance and employment, the impact of forensic genetics on immigration policies and family reunification has only recently become an object of interest for social scientists (Dijstelbloem and Meijer 2011; Heinemann, Lemke and Prainsack 2012; Heinemann and Lemke 2013, 2014; Heinemann, Naue and Tapaninen 2013; Tutton, Hauskeller and Sturdy 2014). So far hardly any research has empirically investigated different national regimes of using DNA analysis for family reunification in a comparative perspective, or systematically addressed the normative issues at stake.

This volume is the first contribution in the field to provide a systematic analysis of the ethical, political and social challenges resulting from DNA testing for immigration purposes. The comparison between Austria, Finland, and Germany helps us to better understand which factors determine the trajectories and the outcomes of family reunification processes. It generates knowledge on how DNA information is used and mobilised in decision making on family reunification, and it also improves our understanding of the historical and institutional dynamics of immigration policies.

The volume has emerged from the international project ‘DNA and immigration: Social, political and ethical implications of DNA analysis for family reunification’ (IMMIGENE). Most of the empirical research took place in 2011 and 2012. The project consortium consisted of researchers from Austria, Finland and Germany. Kevin Hall and Ursula Naue were responsible for the Austrian project, Anna-Maria Tapaninen and Ilpo Helén did the research in Finland, Torsten Heinemann and Thomas Lemke were in charge of the German project, and Martin G. Weiss and Jakob Guggenheimer explored the ethical implications of DNA testing in family reunification.

In this introductory chapter, we first outline the European framework of family reunification and the reasons for focussing on Austria, Finland and Germany. After that, we spell out the theoretical debates and the methodological challenges involved in researching the use of DNA analysis in three different countries. Finally, we provide an overview of the structure of the volume.

Family Reunification in the European Union: An Overview

Family-related immigration is currently the most important form of legal immigration to the European Union (European Migration Network 2008; Honohan 2009; Eurostat 2011; Ruffer 2011; Müller 2012). The right to family reunification is related to the protection of the family as laid down in article 16 of the UDHR and article 8 of the ECHR (Feller et al. 2003, Jastram and Newland 2003; Heinemann, Naue and Tapaninen 2013). Article 8 of the ECHR protects individuals from unlawful interference in ‘one’s private and family life, home and correspondence’. The Convention also establishes the European Court of Human Rights with the authority to give binding judgements to the state parties. In its judgements, the court has ‘recognized that article 8 places State Parties under a positive obligation to admit a family member in a situation where the family unit cannot be reasonably expected to relocate in the country of origin’ (Cholewinski 2002, 275, emphasis by authors). In the European Union, the right to family is laid down in the Charter of Fundamental Rights of the European Union, which stresses the right to have a family in two sections: in article 7 on respect for private and family life, which is based on article 8 ECHR, and in article 9 on the right to marry and to found a family. However, beyond the general scope of these articles the charter ‘is silent on the question of family reunification and rather muted on the question of protecting the family’ (Cholewinski 2002, 276; see also John 2003).

The Treaty on the Functioning of the European Union (TFEU) states in article 79 that ‘the Union shall develop a common immigration policy’. Article 79(2) a further specifies that the European Parliament and the Council shall adopt necessary measures in the areas of ‘the conditions of entry and residence, and standards on the issue by Member States of long-term visas and residence permits, including those for the purpose of family reunification’ (emphasis by authors). The details, consequences and administrative practices are not specified further, but the treaty defines a minimum standard that has to be guaranteed by all EU Member States. In the end, it is up to each Member State to implement procedures that are in line with the treaty (Schibel 2004).

Council Directive 2003/86/EC, ratified in 2003 by all EU Member States except Denmark, Ireland and the UK, is the most important European legal document in regard to family reunification. It contains legal information on the rights of the applicant and the family, and provides a framework for administrative practice. However, this framework leaves considerable room for interpretation regarding the definition of the family, the right of minors to apply for family reunification, the age limits for minors and spouses, the status of marriage as a prerequisite for the application, and certainly the use of DNA analysis to verify family relationships (Schibel 2004). Article 5(2) only states that ‘the application shall be accompanied by documentary evidence of the family relationship’ and ‘if appropriate, in order to obtain that a family relationship exists, Member States may carry out interviews … and conduct other investigations that are found to be necessary’. One of those ‘other investigations’ or forms of documentary evidence may be the result of a DNA kinship test, but this is not specified.

While this scope for interpretation may be seen as a problem in establishing a common immigration and family reunification policy, it is important to emphasise that Council Directive 2003/86/EC does not establish more requirements for family reunification than the regulations and laws governing family reunification in the Member States (International Federation for European Law 2004; Schibel 2004). Thus, Council Directive 2003/86/EC does not actually guarantee new rights for those a...

Table of contents

• Cover Page
• Half-Title Page
• Title Page
• Copyright Page
• Table of Contents
• Notes on Contributors
• Acknowledgements
• 1 Constellations, Complexities and Challenges of Researching DNA Analysis for Family Reunification: An Introduction
• 2 Germany: The Geneticisation of the Family
• 3 Finland: Securing Human Rights, Suspecting Fraud
• 4 Austria: DNA Profiling as a Lie Detector
• 5 Ethical Aspects of DNA Testing for Family Reunification
• 6 Governing DNA Analysis for Family Reunification: A Comparative Perspective
• References
• Index