The Biology of Citizenship: Immigration, DNA Testing, and the State

The Biology of Citizenship: Immigration, DNA Testing, and the State

The past twenty years have witnessed a “return of the citizen,”1 resulting in manifold proposals to redefine and expand the notion of citizenship and its links to the nation-states, giving rise to terms like post-national, denationalized, and transnational citizenship.2 In the last decade, a new concept has emerged that has received particular attention in the citizenship discourse: “biological”3 or “genetic citizenship.”4 This “keyword in the making”5 was first introduced by the anthropologist Adriana Petryna, in her study of Ukrainian citizens affected by the nuclear disaster of 1986.6 The book is based on extensive fieldwork, presenting observations and interviews with government officials, scientists, clinicians, activists from nongovernmental organizations, and people who lived and worked in the contaminated zone around Chernobyl. Petryna shows how, after the collapse of the Soviet Union, people who had worked at the Chernobyl Nuclear Power Plant made demands upon the new Ukrainian state through their biological status as sufferers of radiation sickness. In this context, the author introduces the concept of biological citizenship. She uses the term to describe “a massive demand for, but selective access to, a form of social welfare based on medical, scientific, and legal criteria that both acknowledge biological injury and compensate for it.”7

Until now, the growing literature on this topic has almost exclusively referred to the importance of patients’ associations, disease advocacy organizations, and self-help groups that give rise to new forms of subjectivation and collective action, thus challenging existing borderlines between laypeople and scientific experts, between active researchers and passive beneficiaries of technological progress. Frequently, authors using the notion of biological or genetic citizenship argue that these groups are questioning access to knowledge and claims to expertise, forging new alliances with biomedical researchers, and lobbying to influence political decision-making and to receive funding for medical research. So far, the focus of the debate has been on the extension of rights, the emergence of new possibilities of civic participation and social engagement, and on the choice-enhancing options of biomedical technologies, especially the new genetics.8

While this understanding of biological citizenship certainly highlights important social and political implications of biotechnological innovations in a globalized world, it tends to downplay and ignore practices of surveillance and exclusion, and the refusal of citizenship rights based on biological knowledge.9 An interesting example in this respect is the use of DNA testing for family reunification. By discussing Germany as an exemplary case, we show that the use of parental testing endorses a biological concept of the family and may lead to the exclusion or suspension of citizenship rights.10

Family Reunification and DNA Analysis

In general, family reunification refers to the right of family members living abroad to join relatives who hold long-term residence permits for, or are citizens of, a given country. The right to family reunification has been an integral part of many countries’ immigration policies, and is derived from the protection of the family as laid down in the Universal Declaration of Human Rights. Family-related immigration is currently one of the major drivers of legal immigration to Western countries. However, many countries are enforcing more restrictive family reunification policies, imposing stricter requirements on those applying to enter the country. Even if applicants possess the documents required to prove their identities, the information is often rejected by immigration authorities, as they question their authenticity.

In this context, many countries resort to parental testing. Applicants are required to provide official documentation to prove their identities, such as birth and marriage certificates and passports. 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. But even if applicants possess the required documents, immigration authorities sometimes reject the information as they question their authenticity.

In the 1990s, some host countries began to use DNA analysis to resolve cases in which they considered the information presented on family relationships to be incomplete or unsatisfactory. Today, at least 20 countries around the world, including 16 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, Malta, the Netherlands, New Zealand, Norway, Switzerland, Sweden, the UK, and the USA11

In Germany, the most important piece of family reunification legislation is the Residence Act, which came into force in 2005 and incorporates most of the regulations of Council Directive 2003/86/EC. The Residence Act explicitly states that the right to family reunification is meant to protect the family in accordance with the Basic Constitutional Law. Generally speaking, every spouse, either a German or a foreigner who is in possession of a temporary or unrestricted residence permit, can be the sponsor of an application for family reunification. The sponsor and his or her partner need to be married. In principle, same-sex partners may apply for family reunification as well, and they have the same rights as married couples. However, the same-sex partnership or marriage has to be officially recognized as such in the country of origin. For many applicants it is almost impossible to fulfill this prerequisite, as same-sex partnerships are not officially recognized in many home countries. Even worse, the fact that a person is gay, lesbian, bisexual, or transgender and was persecuted because of their sexual identity may well have been the main reason for leaving the country of origin. It might also be a valid foundation for a successful application for asylum in the EU, only for the person concerned to find out that they cannot be reunited with their partner.

In addition to the prerequisite of an existing marriage or recognized same-sex partnership, the sponsor is also expected to provide evidence of an adequate income and enough living space for the prospective united family. Furthermore, the non-German partner needs to prove basic German language skills. Accepted asylum seekers and refugees are exempted from these requirements. Children holding a temporary or unrestricted residence permit may also serve as sponsors and apply to be reunited with their parents, though the provisions in the Residence Act generally assume that the person serving as a sponsor is an adult.

However, German immigration offices will not necessarily accept these pieces of evidence for an existing family relation, and even in cases where legal documents are provided, it is a common administrative practice to ask the applicants for a DNA kinship report.12 There has been press coverage of a case where more than ten pieces of evidence were provided to the immigration authorities, but not accepted.13 Moreover, the German Federal Foreign Office has published a list of over 40 countries whose documents are not acknowledged by German embassies at all, because they assume that their system of identity registration lacks systematic and sound procedures.14 Applicants from these countries will find it extremely difficult to prove a family relationship by means of official documents or alternative pieces of evidence. To obtain permission to reunite with family members, they generally have to resort to DNA testing. Even German citizens may be asked to provide DNA evidence for their biological relation if they apply for family reunification with a foreign spouse and children from one of these blacklisted countries.

The use of DNA testing is considered to be an appropriate measure to prevent fraudulent uses of family reunification.15 The Federal Foreign Office states on its website that the decision on blacklisted countries is made on the basis of an individual evaluation of the likelihood of falsified documents in the country involved. However, it is quite striking that this list almost exclusively consists of countries in sub-Saharan Africa and Central and Southeast Asia. Documents from countries in these regions encounter systematic mistrust, and as a consequence it is especially applicants with black skin or families from Central and Southeast Asia that are requested to undergo parental testing. At the same time, citizens from Western countries (e.g. the USA) or nationals from other developing countries (e.g. in Latin America) are not usually required to provide DNA evidence. On a related note, they are also exempted from the requirement of basic German language skills.

Given these conditions, one might ask if the formal and procedural argument put forward by the immigration authorities serves to target and discriminate against selective groups of applicants who will generally – regardless of their particular case – encounter more problems than other applicants in proving their identity and family relatedness. Refugee advisors and representatives of NGOs we interviewed report that applicants from some countries such as Somalia, Eritrea, or Burma are almost always asked to provide DNA evidence for their family relations.16

The possibility of DNA kinship testing is explicitly provided for in the general administrative regulations for the Residence Act (no. 27.0.5 AVwV AufenthG). The Federal Office for Migration and Refugees and the Federal Ministry of the Interior present DNA testing as an entirely appropriate measure to verify family relatedness. They stress that DNA tests are not a constraint but an opportunity for the sponsors and applicants to prove the validity of their application17. Furthermore, they emphasize the voluntary character of the DNA tests and argue that it is up to the applicants whether they choose this option. Finally, the authorities point out that DNA evidence is only used as a last resort to establish family links, if all other possible options to verify family relatedness have been exhausted. For example, the Federal Foreign Office, which is responsible for issuing the visas for family reunification, stated in response to our inquiry that the “DNA test for family reunification is not a standard but only an exceptional case and … is only offered to the applicants if evidence relevant to the issue cannot otherwise be provided.”18

However, the results of our research indicate that DNA testing for family reunification is not an ultima ratio but a standard tool for the verification of a family relationship in immigration cases.19 The immigration authority of a major city in Germany declared in a written statement sent in response to our inquiry: “While there is no obligation for applicants even from countries with an insufficient official documentation system to prove family relation by DNA evidence, parental testing is an appropriate and frequently used tool of verification.” A senior UNHCR officer mentioned in an interview that “we observe an inflationary use of DNA analyses for family reunification for refugees from Africa and Southeast Asia.”20 Furthermore, a refugee advisor from a church information centre in a town in Germany stated that she alone had supervised more than 20 cases of Somali refugees who were asked to prove their family relations by a DNA test in the course of the family reunification procedure in 2010.

This apparent contradiction between the official statements and the findings of our research can be explained by the German legal framework for immigration. Decisions on immigration and visas have to be based on a case-by-case assessment. Therefore, authorities have no legal grounds for a comprehensive and systematic use of parental tests in family reunification cases, and even if it is a common administrative practice, they cannot officially confirm it.

If the immigration authorities do not recognize the applicant’s documents, they may “offer” him or her the option of taking a DNA test to prove a biological link to family members. As the burden of proof is always on the applicant and the test is a voluntary option, it is up to the applicants to find a suitable laboratory and organize the entire testing procedure. Once all relevant samples are in the lab it will take two to three weeks for the results to be provided to the applicant21, and this is also one of the biggest advantages of DNA testing for family reunification. Applicants often have to wait for as long as a year before their documents are checked and verified by the authorities, and it takes a very long time before they are reunited with their family members. With a DNA test, the decision is sometimes made within less than four months from the application to the final decision. This is also why immigration lawyers often advise their clients to take the test. “We, the lawyers, are quite pragmatic in this respect. It has to go fast, [and] the DNA test is helpful in this respect.”22

While the use of DNA evidence for family reunification might offer some advantages in claiming citizenship rights, it often leads to a restriction of legal claims and citizenship rights by endorsing a biological concept of the family and by refusing the right to informational self-determination to applicants for family reunification.

Biologizing the Family

The establishment of DNA testing in administrative decision-making on family reunification reduces the already narrow definition of the family in German immigration law to biological ancestry. This tendency contrasts with the social understanding and the legal framing of the family for German citizens. The routinization of divorce and remarriage and the growing legal recognition of same-sex unions have generated heterogeneous patterns of family structure and a diversity of new kin connections that are not necessarily based on biological ties. In recent years, several laws have come into force or been amended with the aim of emphasizing the social aspects of parenthood and paternity. In this perspective, parenthood is not defined in terms of biological relatedness but rather as a social relation. The Federal Court of Justice argued in a 2008 judgment that this kind of socio-familial relation exists if the legal father has been shown to be responsible for looking after the child. If this is the case, the biological father cannot question the already existing social fatherhood. This line of argumentation as used by the Federal Court of Justice has been upheld by the European Court of Human Rights in 2013.

Furthermore, married and unmarried couples have increasingly been treated equally in legal practice in the last 10 to 15 years, and with the introduction of the Life Partnership Act in 2001 same-sex unions are now legally recognized in Germany as well. In this context it has also been made easier for unmarried couples and same-sex partners to adopt stepchildren. These legislative steps also stress the family as a social relation. In a press release in 2009, the Federal Constitutional Court pointed out that “biological parenthood is not prioritized over legal and social notions of the family in the jurisdiction of the Federal Constitutional Court”23

A completely different trend can be observed in German immigration law. With the use of parental testing in decision-making on family reunification, the family is increasingly conceived of as a biological entity. Consequently, migrants will find it difficult to enter Germany if they do not adhere to the nuclear family model. For example, foster children and adopted children have serious problems reuniting with their families. According to German immigration law, no distinction shall be made between biological children and adopted children if the applicants can prove the adoption by official documentation. As German authorities consider official registration systems in the blacklisted countries to be insufficient, this claim is difficult to sustain in administrative practice.

The practice of family unification in Germany exhibits a differential treatment of native citizens and immigrants. The latter have to comply with a traditional heterosexual and biological family model in order to be officially recognized as a family in immigration cases. The problems that arise from these conflicting definitions of the family for native citizens and immigrants can be illustrated by a parental test that was carried out in a German laboratory in 2010. The application for family reunification by a man, a woman, and a girl from Somalia was turned down by the German authorities earlier that year because they questioned the authenticity of the documents provided. Thus, the applicants had to resort to a DNA test to prove their family relatedness. The test result showed that neither the putative father nor the putative mother was biologically linked to the child. In other words, the test result demonstrated that these three persons were not a family in terms of biological relatedness. However, the staff of the DNA lab were so convinced that the applicants were indeed a family, even though the result was negative, that they wrote letters to the immigration authorities arguing that the result could only be explained by an exchange of children after their birth in the hospital and that they would nevertheless advocate family reunification. It is quite remarkable that the institution that produced a test result that eliminated the possibility of a family relation, according to their own definition, still felt obliged to argue that the three persons were a “true” family. The case was reported to us by the geneticists involved in the procedure24, and their argument was clearly based on a social definition of the family.25

These different standards for family recognition exist not only in Germany but in many host countries26 As family policies in these countries generally tend to favor social notions of the family, the legal gap between native citizens and immigrants may grow wider, since for the latter group the focus is on biological relatedness, while same-sex partnerships and patchwork families are not equally recognized – a trend that is further strengthened and reinforced by the use of parental testing for family reunification.

Genetic Surveillance

The first DNA tests for family reunification in Germany were carried out in 199227. Until 2010, however, they were conducted in a legal grey area. While proofs of kinship by DNA analysis were a more or less common institutional practice in this period, they were conducted without any legal regulation. DNA testing for immigration purposes was first mentioned in the Genetic Diagnostics Law (Gendiagnostikgesetz), which came into force on February 1, 2010 and contains a section dealing solely with kinship DNA testing (Sec. 3, Paragraph 17, GenDG). The general focus of this law is on the right to informational self-determination, with the aim of protecting individuals from the abuse of their genetic information.28

However, for the use of genetic data in the context of family reunification, important legal guarantees are inoperative. First, and it almost goes without saying, the right to informational self-determination in the context of family reunification is just a formal or theoretical right. In practice, it may well be the only chance for a person actually to reunite with his/her family if the documents s/he has provided are not deemed appropriate to prove family relations. The burden of proof is on the applicant, which may force him or her to resort to a DNA test. Therefore, it might be doubted how voluntary the use of DNA analysis in this context can be if the application for family reunification will be rejected otherwise. Here, we note a remarkable parallel to forensic DNA profiling. “Persons who refuse to give a ‘voluntary’ sample (which is their legal right) attract police attention and become more suspicious as a result”29 as it is assumed that someone who rejects the “voluntary” DNA test has something to hide30

Secondly, immigrants have no right to decide what happens to the DNA profiles once the test has been carried out. They cannot demand that their genetic information be destroyed, and their data might be used for criminal prosecution purposes if there is reasonable suspicion that a criminal offence has been committed by the immigrant in question31. Their profile may be stored in a DNA database in accordance with the Prüm Convention, and this information may be exchanged among European member states for crime prevention purposes. In other words, applicants for family reunification are more likely to come under suspicion of criminal activity. While the Genetic Diagnostics Law in its entirety strengthens the right to informational self-determination for German citizens, it denies immigrants this right. In general, the legal framework for DNA testing in family reunification cases establishes an environment of mistrust towards immigrants and provides new means for surveilling them32

Conclusion

The use of DNA testing for family reunification creates a general “double standard” for native citizens and immigrants. It imposes a very restricted, biological definition of the family onto immigrants, undermining the varying social definitions of family forms; and immigrants are not given the same rights to the access, handling, and protection of genetic information.

On the basis of this empirical research, the very concept of biological citizenship has to be rendered more complex, in two respects. First, the existing literature too often stresses the transnational dynamics of patient organizations and support groups. We do not deny the medical significance and the societal impact of support group and patient associations for (genetic) diseases that are characterized by forms of organization and modes of communication often transgressing national borders33 However, the use of DNA tests in immigration displays the enduring relevance of biological criteria to determine who should be granted citizenship rights in a particular nation-state. It follows that there is not only a transnational dynamic to be observed, but also a continuation and re-articulation of the relation between biology and citizenship.

Secondly, the literature on biological citizenship sometimes insists that there is a decisive rupture between the eugenic projects and racialized politics of the past and the new genetics. Nikolas Rose and Carlos Novas argue that biological citizenship stands for a new governmental regime which radically breaks with the eugenic and racialized past, and that there has been a shift from political rationalities directed toward the management of risk at the level of populations to the individual management of genetic risks34. In the light of our empirical study this claim has to be reconsidered. The use of DNA analysis in the context of family reunification represents a form of migration control targeted at particular populations – in Germany especially those who derive from “blacklisted countries,” mostly from sub-Saharan Africa and Central and Southeast Asia. In this respect, the thesis that the use of genetic information for population control belongs to the biopolitics of the past has to be complemented or even corrected. Immigration management and border control are central domains where the “eclipsed” side of current biological citizenship materializes.35

The use of DNA tests for decision-making in the context of immigration reveals the selective format of the debate on biological citizenship. So far, this discussion has often stressed the biological body as the basis of claims about social inclusion, recognition and democratic deliberation. However, as our study demonstrates, this view of biological citizenship itself excludes important dimensions of contemporary migration regimes. The use of DNA testing in immigration policies does not signify the advent of a “molecular biopolitics”36 that finally displaces the concern with bodily features such as skin color, hair texture or eye shape. Rather, it serves to reaffirm and re-articulate “traditional” forms of classification and exclusion.37

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vicent
Feb 17 2016 07:32

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