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DNA testing in immigration: Where to draw the line?



Article by Annabelle Wilmott,


DNA testing can provide a reliable way of revealing a person’s identity for immigration purposes. Although immigration authorities still accept traditional forms of identification, DNA tests have become the “gold standard” of identification methods. They can be a useful tool for individuals wishing to establish a biological link for family reunification but who have no other forms to prove their relationship.


However, genetic testing can reveal sensitive information about health and ancestry. If the genetic information falls into the wrong hands, it can be used to calculate the cost of healthcare or to discriminate against people for life or disability insurance if they are deemed to be too high-risk. Not only can DNA testing reveal sensitive information about the individual, but it puts in jeopardy the privacy of one’s relatives and future generations.


This article describes how DNA testing is used for immigration in the European Union (EU) and the United States (US). It examines the use of DNA testing for the purposes of both family reunification and surveillance, and examines how DNA testing can infringe on human rights, including the rights to privacy and family life. It concludes by proposing ethical guidelines for DNA testing in immigration contexts.


DNA testing for family reunification


The right to family reunification derives from the right to family life in the Universal Declaration of Human Rights. In Europe, family reunification is also protected by the European Convention on Human Rights and the Charter of the Fundamental Rights of the European Union. Family reunification is one of the most important forms of immigration to Europe, accounting for nearly a third of all arrivals of third-country nationals. Seventeen countries in the EU include DNA testing in their family reunification processes to confirm a biological link between the applicant and sponsor.


According to a 2014 European Commission Communication, DNA testing is only supposed to be used as a “last resort” and should not be used “if there are other suitable and less restrictive means to establish the existence of a family relationship.” However, it is not hard to imagine it becoming a mandatory element for family reunification. Germany has begun to normalize DNA testing in its administrative decision-making procedures. As the burden of proof is on the applicant, immigrants may be forced to comply to genetic tests to become eligible for family reunification.


The US also recognizes the right to family reunification, the process of which is governed by the Immigration and Nationality Act. Traditionally, when DNA testing has been used for family reunification in the US, it has not been compulsory. Rather, petitioners can opt-in if they have no other documents available to establish their biological relationship. Although immigration officers can suggest that petitioners submit DNA, under the current law, United States Citizenship and Immigration Services (USCIS) cannot require genetic testing even when other forms of evidence for establishing family ties are insufficient.


Recent US policies have sounded the alarm bell on the use of genetic verification in immigration. Following the implementation of the Trump administration’s “zero-tolerance” policy last year, wherein families were separated when adult relatives were charged with unlawful entry, a court ordered the reunification of all migrant families separated at the border. In response, in July 2018, the United States Department of Health & Human Services (HHS) announced that it would begin using DNA tests before matching children with their parents, claiming that it would take too long to verify parental claims through documentation. HHS maintained that such testing would be used only to verify familial relationships and that DNA documentation would be destroyed after verification. Nonetheless, privacy advocates expressed serious concern about the policy’s broader implications, warning that this could be a move towards building a centralized government DNA database.


Moreover, as part of a summer 2019 pilot program on Rapid DNA testing, Immigration Customs Enforcement (ICE) agents were positioned at the southwestern border to conduct DNA tests on migrants to identify fraudulent families: adults using children who are not related to them to exploit special protections. Although the government claims that tests are consensual, the Department of Homeland Security (DHS) states that “failure to submit to Rapid DNA testing may be taken into account as one factor in ICE’s assessment of the validity of the claimed parent-child relationship.” DHS has indicated that DNA samples collected by ICE will not be stored and that the data and samples themselves will be destroyed. Child rights advocates have expressed concern that families traveling with adopted children or with relatives outside their immediate family will be separated by the policy.


The use of a DNA database


The concern that governments will obtain people’s DNA without consent and store it in a database is not merely a dystopian fiction. For example, in China, authorities have collected the genetic material of the Uyghur minority population in order to “chase down” those who do not conform to the government's “re-education” campaign. This is also happening in the world’s beacons of democracy. In Germany, immigrants that voluntarily submit their DNA profiles do not have the right to decide what happens to the information. Following the Prüm Convention, individuals’ genetic information can be stored in a DNA database and shared with other countries in the EU. While German citizens are given the right to informational self-determination, immigrants are not. In the United States, the Justice Department recently proposed to begin collecting DNA samples from migrants crossing the border to store in an FBI database to help fight crime. Currently, DNA information can be collected from criminal suspects under federal law and in nearly thirty states. The proposal would dramatically expand the previous policy to allow the government to collect DNA evidence of those who have not been charged with or convicted of crimes. It would not apply to legal permanent residents, anyone entering the country legally, or children under fourteen.


Conclusion


Although countries have the sovereign right to control immigration and secure their borders, the United States and the EU Member States, as signatories of the Universal Declaration of Human Rights, are also obliged to protect the rights to privacy, family life, and to seek asylum. These countries should continue to utilize traditional means for establishing familial relationships for family reunification rather than over-relying on DNA tests. Moreover, they should obtain informed consent whenever they use DNA tests and destroy biological samples after use. The shift in the use of DNA databases from storing profiles of criminals and suspects to retaining the information of non-criminal immigrants is deeply worrying. Requiring immigrants to submit DNA tests in exchange for being allowed to stay in the country could open the floodgates to massive DNA testing and storing. It is time for these countries to step up and ensure that the rights to family reunification and to seek asylum do not come at the cost of privacy rights.

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