THE MIGRATION Department is violating the human right to family life and privacy by forcing families with a foreign mother to undergo paternity testing at their expense to prove the father is a Cypriot national, according to the Ombudswoman’s Office.
Following a series of complaints made in 2011 concerning the practices of the migration department when dealing with families containing a foreign mother and Cypriot father, Ombudswoman Eliza Savvidou launched an investigation into the matter.
The result is the damning report against the department issued on October 31, 2012, which Savvidou said effectively violates human rights.
Given that the practice takes place without any legal or regulatory framework and is not based on clear, specific or objective criteria making the action predictable, transparent, fair and legally sound, “the department is violating the principle of legality and by extension the human right to family and private life”.
“Therefore and by this alone, the practice followed by the department has no legal basis and cannot be tolerated in a rule of law state like ours,” she said.
Regarding the complaints submitted to her office, Savvidou noted that “in none of the cases put before me did the father doubt the paternity of the child, while the couple and the child had a well-established family life”.
The authorities request a paternity test in three cases. The first follows a request for a residence permit by a third country national, who is the mother of a child with a Cypriot father, where the family has a “problematic history” with the department, like previous charges of entering into a fake marriage or illegal stay in the country. Failure to take the test means the mother in question cannot marry her partner if she has not already done so. Nor can she work or have access to any social or medical benefits.
The second case is when examining an application for Cypriot citizenship by a third country national who is the mother of child declared to have a Cypriot father.
A third case is if the child was born outside Cyprus, and there is doubt over paternity, or the father’s name on the birth certificate is different, or the child was born within nine months of dissolution of the foreign mother’s previous marriage.
Savvidou points out that none of the above conditions are specified in any law or written regulatory framework. Instead, the decision to demand DNA testing is done on a case by case basis by the head of the Civil Registry and Migration Department, Anny Shakallis, when a “suspect” case comes to her attention.
According to the ombudswoman, despite repeated requests for a written response on the matter from Shakallis, none was given.
Instead, Savvidou heard orally from the migration head that a paternity test was requested in a few dozen cases. In 99.9 per cent of those cases, the DNA analysis proved the Cypriot partner was the biological father of the child.
The costs to the family are around €1,000 for DNA testing of the mother, father and child. Failure to take the test if requested results in a rejected application, whether that be for a residence permit for the mother or citizenship for the child.
The ombudswoman referred in her report to the European Commission’s guidelines on the issue which specify that to consider a statement of paternity false, the person presenting himself as the father has to know he is not the father and also have no intention of taking on parental responsibility for the child.
She further highlighted that DNA testing for the purposes mentioned above was not very common since most EU member states regulate the matter using “milder measures” like certifying the authenticity of birth certificates, obtaining other evidence, and examining the couple’s history.
In the UK, it is only used when a person wants to bring his family to the UK from another country and under very strict rules and conditions.
The biggest concern of EU countries is the respect to family and private life. The European Court of Human Rights has ruled that the right to family life protects any active parental relationship that develops within a family, even if there is no biological bond between parent and child, and even if there is no marriage between the parental couple.
In respect of private life, this also includes parent’s genetic identity.
The ombudswoman argued that even if in Cyprus’ case there was a clearly defined regulatory framework, it still couldn’t be considered compatible with human dignity.
Savvidou came down hard on the migration department’s tactics saying they ignore the strong personal ties and relationships of mutual dependence that develop even in non-biological families.
She also finds “seriously problematic” the issue of protecting the confidentiality of the genetic information obtained by the department, since the whole collection, processing, storage, management and destruction of personal data remains “completely unregulated”.
Stefanos Evripidou , Cyprus Mail