Third Country Nationals in
the EU Legal System:
‘Integration’ as an Exception to
Inclusion and Rights in Europe
SPECIALIZED COURSE
Migration and EU Law and Policy
Academy of European Law, EUI
1
5, 6 and 7 July, Florence
SCOPE OF THE SPECIALISED COURSE
How EU Law and Policy interact and engage with integration
→ The legal and policy landscape of integration at EU level the nature and implications of Europeanization of this domain on
liberty and security of individuals, rule of law and the
discretion/sovereignty by EU Member States
•
Material Scope: Integration in immigration law (conditions for
entry and residence) → the origins, functions and evolving
approaches of “integration” in law and policy at Union level
Area of Freedom, Security and Justice DG Home Affairs
(Ministry of Interior Approach on migration, borders and
identity)
•
Personal Scope: Legally residing Third Country Nationals
2
STRUCTURE
1.
Integration and European Immigration Law
2.
Integration and the European Union Framework
on Integration
3.
Integration of Third Country Nationals in the EU
Legal System: Selected National Experiences and
Implications of Europeanization
3
1. Integration and European Immigration
Law
•
Integration of persons in the move at the core of European
integration processes since the 1970s → key policy priority in
the common EU immigration policy and the EU’s AFSJ.
•
Officials discourses in EU legal and policy documents since the
70s → identifiable trends in relation to the normative
understanding (functions / intended public goal) of integration
in EU law and policy – Genealogy / Mapping
•
Is there an EU approach(es) on integration? The EU’s
understandings on integration have changed substantially →
especially during the last ten years of European integration
processes (after and before ‘Europeanization’ of immigration
4
policy since 1999)
•
1970s - 1980s: Common Factors – soft policy:
1.
Focus on ‘migrant workers’ (nationals of member states and their
families) and nationals from third countries ‘legally admitted’ (e.g.
Action Programme in favour of Migrant Workers and their
Families, COM(74) 2250) - “equality of benefits and rights” – better
coordination at Community level
2.
Security of residence of ‘legally residing TCNs’ and social
marginalisation and solidarity (e.g. Report on Policies on
Immigration and the Social Integration of Migrants SEC(90) 1813 –
‘basic principles on integration’
3.
Principles of equal treatment and non-discrimination as ‘a
consistent feature of “the Community approach” (e.g.
Communication on Guidelines for a Community Policy on
Migration COM(85)48)
4.
Integration concerns ‘both sides’ – implicit references to the two
way process tenet
5
•
The Maastricht Era (1992 – 1998): The soft policy and
1.
Security of residence (e.g. Communication on Immigration and
Asylum Policies COM(94) 23) and strengthening ‘legal position’
(EP, 95 Resolution on the COM – call for a ‘Community
Programme’!)
2.
The granting of rights to long-term residents and family reunion
as a source of security and “effective integration factors”
3.
The principles of equal treatment and non-discrimination
continued “no less favourable treatment than nationals”
4.
Explicit reference to the two way process principle as a key
ingredient of any “comprehensive integration policy” (EESC
Opinion on COM(94) 23).
intergovernmental cooperation continued (‘The Third Pillar’ – Title
VI ‘Cooperation in the fields of JHA’) – Common Factors:
6
•
The Amsterdam Treaty Phase (1999 - 2009):
•
Title IV of the EC Treaty (Visas, Asylum, Immigration and Other
Policies related to the Free Movement of Persons) – Article 63
“conditions of entry and residence … including those for family
reunion” and “defining the rights and conditions under which
nationals of third countries who are legally resident in a Member State
may reside in other Member State” – shared competence
•
The development of a common EU immigration policy key
priority in the EU’s AFSJ and the Global Approach to Migration
– First Multiannual Programme on the AFSJ – Tampere
Programme (1999 - 2004) → Tampere Milestones:
1.
2.
Fair treatment Principle
Develop a “vigorous integration policy” granting legal TCNs rights
and obligations comparable to EU citizens
7
Long-term residents – rights “as near as possible” to citizens
3.
• The Tampere Milestones difficult to materialise – The
Commission has encountered several barriers to transform
them into proper European law through the ordinary Treatybased configurations and procedures – WHY??
• FIRST, outside the ‘European Union Method of Cooperation’
→ unanimity rule in the Council and no role for the EP
(consultation) – no QMV and co-decision (ordinary legislative
procedure)
• SECOND, Article 63.3 EC Treaty → not expressly mentioned
‘integration’ but rather ‘conditions of residence’ – struggle over
the extent to which the EU had legal competence to legislate
→ Answer? Directives on ‘legal immigration’ including
‘integration-related provisions’ AND the adoption of the
European Integration Fund???
8
• Anachronistic relation between legal basis, political
priorities and actual outputs of negotiations! Principle of
Subsidiarity has prevailed → MS hesitant at times of
transferring to the EU their sovereignty and discretion.
HOWEVER
• Since 2002 the Commission (with the support of other
European actors) “alternative policy strategies” for policy
convergence/Europeanisation through mechanisms different to
the Community method of cooperation and European
Immigration law – Increasing practice at EU level in various
‘migration-related’ domains (The Commission as coordinator)
Dual legal and policy contextualisation on ‘integration’:
1. European Immigration Law (Legal Immigration) and
2. The EU Framework on Integration
9
DISTINCT FEATURES:
•
Different legal status and location within the common
European immigration policy and the entire EU legal system.
•
The players and institutional and decision-making structures
also differ (democratic accountability and judicial control)
•
Different tools, structures and patterns of European
cooperation.
•
The discretion of the EU Member States is different – ‘soft
policy’ vs. Ordinary secondary law
•
Both developed by DG JFS (now DG Home Affairs) and aim
at being fully compatible with each other
10
• Coming back to the Approach(es): COMMON TREND BOTH in
European immigration Law and EU Framework on Integration Shift of Paradigm/driving approaches on integration:
• The classical EU approaches have been transformed –from security
of residence, family reunification, access to economic and societal
spheres, equal participation, fair treatment and non-discrimination
far from materialising and instead towards integration as an
immigration rule and a derogative clause (exception) in hands of
MS conditioning the access of TCNs to European rights and
freedoms
• Integration includes a ‘Civic Normative Dimension’:
First is the use of integration as a norm in immigration law.
Second is the organisation of integration courses or
introductory/orientation programmes, tests and contracts.
• These compel TCNs to demonstrate that they know, understand
and respect the host society’s history and institutions, along
with the ‘common shared values’ (and symbols) of the nationstate
→ strong cultural and identity connotations on the juridical
framing of the phenomena of human mobility and diversity –
assimilation/acculturation
→ NEW – before only in the context of nationality – condition
for naturalisation → Degree of Integration = nationality /
citizenship
• Even if TCNs do not want to ‘naturalise’ the state will demand
allegiance to a set of perceived values, customs and principles
for the person to be ‘legal’ (legal resident) in accordance with
national immigration law.
•
There is an internal and external dimension of ‘civic
integration’ at EU and National Levels:
1.
The internal Dimension - programme, course, test or contract
2.
The External Dimension (Integration Abroad) - evaluation and a
applying to ‘newcomers’ and/or permanent residence applicants
→ condition for temporary and/or permanent residence permit sanctions: refusal to grant permanent residence (non-renewal of a
temporary residence permit) and potential expulsion from the
country.
course at consular/diplomatic authorities of EU member states
abroad about language and values → access to territory (VISA) and
family reunification.
Integration has become an additional legal criterion on the path
towards legality and the entitlement to claim rights, security
and protection in European Immigration Law and the EU
Framework on Integration
European Immigration Law
1.
2.
Directive 2003/86 on the right to family reunification
Directive 2003/109 concerning the status of third country
nationals who are long-term residents
EU DIRECTIVES – EU acquis on ‘legal immigration’:
•
Legally binding upon the EU Member States to implement them on
time and appropriately
•
A special kind of EU law? Minimum harmonisation leaving margin
of appreciation and exceptions – ‘the result to be achieved’ (forms
and methods) BUT obligation in relation to the common set of EU
rights and guarantees
•
Infringement Proceedings and Preliminary Rulings by the Court of
Justice and general principles of EU law
•
TCN could rely on them before national courts when an alleged
unlawful interference by the MS to their European rights – direct
effect ‘sufficiently clear and precise’
1. Directive 2003/86 on the right to family
reunification
•
Minimum standards and criteria for TCNs ‘legally resident’
to be reunited with their family members → the first legally
binding output after Amsterdam Treaty.
•
First proposal on 1 December 1999 and adopted on October
2003 (Greek Presidency) → Long negotiations (Unanimity
Rule) - two more amended versions of the proposal by the
Commission → May 2002 watered down version – lowering
standards and rights: Introduction of several derogations,
standstill clauses → after transposition those provisions will
be reviewed (Green Paper this year and new amended
proposal for 2011).
→ Entered into force on 3 October 2005.
→ IMPORTANCE of the Preamble → Recital 4 “Family
reunification is a necessary way of making family life possible”. It helps
to create socio-cultural stability facilitating the integration of TCNs in
the MS, which also serves to promote economic and social cohesion”.
Material Scope:
• Article 1 → the conditions for the exercise of a right to family
reunification by regularly residing TCNs: A European right?
Personal Scope:
• Sponsor holds a residence permit for a period of validity of at
least one year and who has reasonable prospects of obtaining a
right of permanent residence (Article 3).
16
FAMILY MEMBERS
Article 4:
• MS ‘shall’ (obligatory) allow entry and residence to: The ‘nuclear
family’:
1. The sponsor’s spouse; and
2. Unmarried minor children of the sponsor and spouse (including
children adopted or under custody).
• MS ‘may’ (facultative) allow entry and residence to:
1. First degree relatives in direct ascending line when there is
‘dependency’ and do not enjoy proper family support in the country
of origin.
2. Adult unmarried children not capable of providing their own needs
on account of state of health
3. Unmarried partners – stable long-term relation or registered
partnership.
17
THE RIGHTS
•
Express references and clearly defined rights without a margin of
appreciation by MS → rights to the sponsor and family members.
•
Article 13: As soon as family reunification has been accepted, the MS
will authorise the entry and grant the persons every facility for
obtaining the visas, and grant them a residence permit of at least one
year of validity and renewable.
•
Article 14: The sponsor’s family members will be entitled ‘in the same
way as the sponsor’ to have access to education, employment and
self-employment activities and vocational training.
•
Article 15: after five years of residence spouse and minor child entitled
to an autonomous residence permit independent from the sponsor.
•
Article 18: to mount a legal challenge in cases of rejection or
withdrawal
18
EXCEPTIONS: Integration Conditions/Measures
•
Article 4.1
…where a child is aged over 12 years and arrives
independently from the rest of his/her family, the MS may,
before authorising entry and residence, verify whether he or
she meets a condition for integration provided for by its
existing legislation on the date of implementation
• Article 7.2
2. Member States may require third country nationals to
comply with integration measures, in accordance with
national law.
With regard to the refugees and/or family members of
refugees referred to in Article 12 the integration measures
referred to in the first subparagraph may only be applied once the
persons concerned have been granted family reunification.
2. The Directive on the Status of TCNs who
are Long-Term Residents 2003/109
• Tradition in Europe to recognize the need to grant secure
legal status to those regularly residing for long-period – link
the length of residence with degree of rights/equality.
• TCNs who are long-term residents no longer invisible →
The Directive recognizes an EU status of long-term resident
to TCNs who have resided for five years in a MS in a regular
status of stay, and a set of rights attached, including a right to
move and reside to another MS.
• ”The fair and near-equality paradigm” of 1999 Tampere
Programme, and aims at granting to TCNs a legal status “as
near as possible” to European citizens.
20
→ First Proposal by the Commission on 13 March 2001, and it
was adopted by the Council on 25 November 2003 → watered
down inside the Council (Unanimity Rule) → It entered into
force 23 January 2006 (deadline for transposition).
→ Material Scope: the terms for conferring and withdrawing
the long-term resident status and the rights linked to it, as
well as the terms of residence in other MS from that granting
the status (Article 1).
→ Personal Scope: MS shall grant the status of long-term
resident to all those TCNs who have legally and
continuously resided in the territory of a MS for a period of
five years immediately prior to the submission of the relevant
application. (Article 4)
21
THE RIGHTS:
→ Secured right of residence granting a legal status comparable
to EU citizens; a reinforced protection against expulsion
linked with effective legal redress mechanisms; AND a right
to move and reside to a MS different from the one granting
the status and “near-equality”
→ Long-term resident’s EU residence permit → five-year
validity and “it shall be, upon application if required,
automatically renewable on expiry” (Art. 8).
1. “Near-Equal Treatment” (Art. 11) Areas: access to
employment and self-employment, education and vocational
training (including study grants), recognition of diplomas and
other qualifications, social security, tax benefits, access to public
goods and services (including housing), freedom of association
and affiliation and free access to the entire territory
22
More EU rights and guarantees…
2. Article 10 covers the procedural safeguards that may be
exercised against a decision rejecting the issue or withdrawal
of the status. It states that “the person concerned shall have the
right to mount a legal challenge in the member state concerned”.
3. Protection against Expulsion → Art. 12 obliges MS to expel a
long-term resident only when s/he constitutes “an actual and
sufficiently serious threat to public security and public policy” (no
economic considerations)
→ Before removal order the MS have to consider the following
factors: The duration of residence, age, the consequences for the
person and her/his family, as well as “the links with the country of
residence or the absence of links with the country of origin”.
→ Judicial redress procedure and legal aid to those lacking
resources
23
4. A right to move and reside in a second Member State
different from the one which has granted the EC Status to
the third country national (Chapter III of the Directive,
Arts. 14-23) → freedom to move and reside for economic or
educational purposes
24
CONDITIONS: Integration Conditions/Measures (derogative
clause – exception to EU rights and freedoms)
Article 5
“MS may require third-country nationals to comply with integration
conditions, in accordance with national law”.
→ no definition of integration conditions!
Article 15.3
“Member States may require TCNs to comply with integration
measures in accordance with national law. This condition shall not
apply where the TCN have been required to comply with integration
conditions to be granted LTRs in accordance with Article 5.1. The
persons concerned may be required to attend language courses” → A
mutual recognition of the ‘civic integration’ dimension?
•
Original versions of Directives did not include reference to
‘integration’ – output of Council negotiations:
FIRST, Article 4.1 Directive 2003/86 – Germany and Austria → “since
the entry into the territory for family reunification up to the age of 18
would not allow full integration of the child the age threshold should be
revised downwards”. It has not been implemented by one MS!
Article 7 – “Integration Inside and Abroad” → Germany, Austria,
Denmark and the Netherlands
SECOND, Article 5 Directive 2003/109 – Germany, Austria and the
Netherlands → doubts on ‘objective criteria’ by other Member
States and Commission → Joint Suggestion (September 2002):
integration programme as condition for long-term resident
status → compatible with their nationals legislation or proposals
Difference between MEASURES AND CONDITIONS???
• What are ‘integration conditions’ and ‘measures’? There is
no common agreed definition of what integration actually means
– left to the national level – “indeterminate legal concept”
• A group of powerful Members States succeeded in transferring
to European Immigration Law their own national philosophies
and policies (even proposals) on integration – aiming at allowing
them to preserve the ‘last word’ and wider degree of discretion
over the allocation of European rights and freedoms envisaged
by the Directives.
• To reinvigorate, justify or develop civic integration
measures/conditions (inside and abroad) at national level at
times of transposing European immigration law in their
respective national legal systems.
EU Law has given room to ‘nationalism’ and a restrictive
immigration policy – Yet, are Member States as ‘free’ ?
3. Directive 2009/50 on the conditions of entry and
residence of third-country nationals for the
purposes of highly qualified employment
→ The EU Blue Card - common fast-track procedure for admission
and residence of more than three months of highly skilled
workers and their family members, including the facilitation to
move to a second MS (intra-EU mobility) AND granting them equal
socio-economic rights
→ Background: Sectoral Approach on Labour Immigration at EU level
→ Connecting Factor: application by a TCN to be admitted for the
purpose of highly qualified employment (Article 2.b)
“the exercise of genuine and effective work for or under the
direction of someone else for which a person is paid and has
the adequate and specific competence as proven by higher
education qualifications” (successful completion of
post-secondary higher education programme of at least
three years)
a
• EU Blue Card (reside and work), for one to four years and
renewable for the duration of the work contract plus three months
(Article 7).
• Article 7.4: EU Blue Card allows to enter, re-enter and stay in the
territory of the issuing MS → Rights:
1.
Labour Market Access: Article 12.1 - restricted to the exercise of
paid employment activities meeting the conditions - After the first
two years of legal residence, EU Blue Card holder may be granted
‘equal treatment’ with nationals access to highly qualified
employment upon discretion of the Member State concerned.
2.
Equal Treatment in relation to nationals “at least” covering working
conditions, freedom of association, affiliation and membership in
workers’ organizations, education and vocational training,
recognition of diplomas and professional qualifications, payment of
acquired pensions when leaving, access to public goods and services,
etc – Article 14
3.
After 18 months of legal residence - a right to move to a
second MS for highly qualified employment (intra-EU
mobility) – Article 18
4. Family members will not be subject to the conditions of
Directive 2003/86 → More favourable conditions - e.g. not
dependent on prospect of permanent residence, facilitated
administrative criteria and not integration abroad – Article 15.3:
“…the integration conditions and measures may only be applied
after the persons concerned have been granted family reunification”
Discrimination???
→ However the Directive does not preclude them from
“maintaining or introducing integration conditions and measures,
including language learning, for the members of the family of an EU
Blue Card holder” (Recital 23 of Preamble).
CONDITIONS (Criteria for Admission)
Article 5
1. A valid work contract, or a binding job offer, of at least one
year
2. Valid travel document, valid residence permit and a sickness
insurance
3. Not constituting a threat to public policy, public security;
4. Fulfil the conditions provided by national law to EU citizens
for exercising the regulated profession
5. For those professions which are unregulated, present the
documents proving the relevant higher professional
qualifications
6. The gross monthly salary must not be inferior to a national
salary threshold which shall be at least 1.5 times the average
gross annual salary (Art. 5.3) → for ‘certain professions’
where there is ‘a need’ the salary level might be lowered to
31
1.2.
4. Proposal for Directive on a single procedure for
a single permit for third-country nationals to
reside and work in the territory of a MS and on a
common set of rights for third-country workers
legally residing in a MS COM(2007) 638
→ A Dual Perspective:
FIRST, a procedural approach arguing for the introduction of a
single application procedure giving access to a single EU
(residence-work) permit for the purpose of work.
SECOND, a substantive approach advocating for a common
framework of rights (minimum level playing field) to “third
country workers”, being lawfully residing in a MS and not yet
long-term resident “based on equal treatment” – Tampere
Milestones! – addressing the ‘rights gap’?
First legal measure under the ‘ordinary legislative procedure’ 32
• Article 4 establishes a “single application procedure “for
applying to reside and work in the territory of a Member State of the
EU” leading to one administrative act (combined single
residence and work permit – uniform format) by the TCW
or/and the employer and without prejudice of the visa
procedure.
• The premise that any TCN who is residing and working
regularly in a MS should enjoy “at least the same common set of
rights in the form of equal treatment with the nationals”,
irrespective of the initial purpose of admission
• The proposal would establish a nexus between the “nearequality of treatment” and “regular residence and work”
→ Personal Scope: It would cover TCNs seeking to reside
and work in the territory of a MS, and TCNs workers
regularly residing in a MS (admitted for purposes other than
work) – Article 3.
33
→ THE RIGHTS: Article 11 → the following rights on the
basis of the “EU single permit” of the “Third Country
Worker”’:
1. Enter, re-enter and stay in the territory of the MS issuing
the single permit;
2. Passage through other Member States in order to exercise
the right in point 1;
3. Free access to the entire territory of the issuing Member
State within the limits of national law ‘for reasons of security’;
4. Exercise the activities authorised under the single
permit; and
5. Right of information about his/her own rights linked to
the permit upon request (Article 9).
34
→
Procedural guarantees in Art. 8 → to give the TCN a
written notification specifying the reasons of a possible
rejection, refusal, modification, non-renewal, suspension or
withdrawal of the single permit, and the redress procedures
(open to a legal challenge).
→ Right to ‘quasi’-equal treatment in the following fields
(Chapter III, Arts. 12 and 13):
•
•
•
•
•
Working Conditions (including pay, dismissal, health and
safety at the workplace);
Freedom of association, affiliation and membership of an
organization representing workers or employers;
Education and vocational training;
Recognition of diplomas, certificates and other professional
qualifications;
Branches of Social security, etc
35
Conditions/Criteria
• Article 8 - an application will be considered inadmissible on the
grounds of volumes of admission of TCN
• No right to change employer in the event that the contract is
terminated for reasons independent of the employee’s will and
what happens after the end of validity?
• Article 12: MS might restrict ‘equality’ in relation to:
• Appropriate language proficiency for having access to education
and training. Access to university, post-secondary education and
training subject to educational prerequisites (payment of tuition);
• Study and maintenance grants and loans;
• Working conditions, the freedom of association, affiliation and
membership and tax benefits to those who are in employment;
Compatibility with Recital 18 on ‘respect of fundamental rights’???
• “Branches of social security” to third-country workers who are in
employment except of unemployment benefits.
36
2.Integration and the European Union
Framework on Integration
• Since 2002 the Union has developed the ‘EU Framework on
Integration’ (European Agenda on Integration) →
intergovernmental logic driving the emergence of an
alternative policy framework of European cooperation fostering
‘policy convergence’ through means different from the EU
method of cooperation.
• Innovative multilevel setting of governance in the domain of
integration of TCNs – non-coercive (enforceable) policy
(coordination) tools, financial framework and diversified
supranational networks of officials, ‘experts’ and ‘stakeholders’.
• A similar transformation in the European approach(es) on
integration than in European immigration law
37
The Background Context:
• Commission Communication an Open Method of Coordination for
the Community Immigration Policy COM(2001) 387 of July 2001
→ “while the MS remain responsible for developing and
implementing integration policy” the OMC would be
complementary to the enactment of the ordinary legislative
framework and EC law → coordinating method and exchange
of information, evaluation.
• The Commission would put forward initiatives for “European
guidelines, ensuring coordination of national policies, exchange of
best practice and evaluation of the impact of the Community policy”
→ harmonisation and progressive policy convergence of
national policies “by other means”
38
• Multi-annual Guidelines and timetables/general principles
by Council → National Action Plans (NAPs) by MS (General
info plus actions at different governance levels for
implementing the principles → Annual Peer
Review/Evaluation→ The Commission would prepare
Annual Reports (common problems and fields where
‘European solutions’ are needed).
• Among the various fields → Guideline 6 “Ensuring the
development of Integration Policies for Third Country Nationals
residing Legally on the Territories of the Member States”
• The MS were not prepared to get into the coordination of
immigration policies especially those related to “the
management of migration flows” and “admission of economic
migrants” → The Communication was never discussed
inside the Council!!
39
•
Justice and Home Affairs Council 14/15 October 2002 – first
official call for developing a common EU Framework on
Integration - promotion of the exchange of information of
national experiences and policies (leading to “best practices”)
AND establishment of national contact points in the Member
States to foster cooperation at EU level
→ The official ‘green light’ for the Commission to start
building the EU Framework on Integration
•
First Outcome: The National Contact Points on Integration
(NCPI) → transnational network of national ‘experts’ from
national ministries (most of them Ministries of Interior and ‘the
like’) – first meeting in March 2003 (in coordination with DG
JLS) and since them their tasks have become consolidated in ‘the
exchange of information’ and the elaboration of main ‘policy tools’
(it includes UK, Ireland and Denmark!)
• Commission Communication on Immigration, Integration and
Employment, COM(2003)336 June 2003 “more coherent European
framework for integration” which would reinforce “policy
coordination” →The European Council at Thessaloniki of June
2003 confirmed need to develop a set of “common basic principles for
integration of immigrants” and “annual reports on migration and
integration”
• THE HAGUE PROGRAMME November 2004 → integration one
of the most relevant policy areas → It called for “more
coordination” and the establishment of “common basic principles
underlying a coherent framework on integration”. DUTCH Presidency!
↓
JHA Council Conclusions 19 November 2004 → adoption of the
“Common Basic Principles for Immigrant Integration Policy”
(CBPs), first decisive move toward a common EU Framework on
Integration: “what integration means at EU level”??
41
• CBPs primarily intended “to assist MS in formulating
integration policies by offering them a simple non-binding but
thoughtful guide of basic principles against which they can judge
and asses their own policies”
• GOAL: Synthesis and compilation of the main
conceptualizations and functions that “integration” has played
in the European responses since the mid 80s → Yet, there were
other principles being included which are NEW – which ones?
• Integration is framed as follows:
CBP1: The two-way process tenet as the umbrella.
Responsibilities: Immigrants (CBP2, 4.1, 5 and 8.2)
Receiving Society (CBP 4.2.)
Rights (CBP3, CBP5, CBP6 and CBP 8.1.)
42
•
THE 11 CBPS:
1.
Integration is a dynamic, two-way process of mutual
accommodation by all immigrants and residents of Member
States
2.
Integration implies respect for the basic values of the
EU**
3.
Employment is a key part of the integration process and is
central to the participation of immigrants.
4.
1. Basic knowledge of the host society’s language,
history and institutions is indispensable for
integration**; 2. enabling immigrants to acquire this basic
knowledge is essential to successful integration.
5.
Efforts in education are critical to preparing immigrants,
and particularly their descendants.
43
6.
Access to institutions, as well as to public and private
goods and services, on a basis equal and in a nondiscriminatory way
7.
Frequent interaction between immigrants and citizens is a
fundamental mechanism for integration.
8.
1. The practice of diverse cultures and religions is
guaranteed under the Charter of Fundamental Rights and
must be safeguarded, 2. unless practices conflict with
other inviolable European rights or national law
9.
The participation of immigrants in the democratic process
and in the formulation of integration policies and measures,
specially at the local level (political participation)
10. Mainstreaming integration policies in all relevant policy
portfolios and levels of government and
11. Developing indicators and evaluation mechanisms***
44
→ Which/what ‘values’? The Annex to the JHA Council
Conclusions of November 2004 stated that the Council
understand that CBP2 involves the obligation by “every resident
of the Union” to adhere and adapt closely to “the basic values of the
Union” and “the laws of the Member States” – the following values
were mentioned:
“principles of liberty, democracy, respect for human rights
and fundamental freedoms, the rule of law, and the respect of
the Charter of Fundamental Rights”
As regards “integration programmes”, the Council underlined that
they “will allow immigrants…to start the longer-term process of
normative adaptation to the new society”
• The Spanish Proposal for a 12th CBP on an express reference to
the support for the maintenance of the languages and cultures
of origin of TCNs – It was not taken on board!
45
• CBPs → Consolidation soft policy approach in EU policy on
the integration of immigrants → Too broad list allowing for
any national policy → CPB2 and 4.1 same focus as
“integration conditions/measures” (inside and abroad) in
European Immigration law!!
• Commission Communication, A Common Agenda for
Integration, COM(2005) 389, September 2005 to put the CBPs
into practice - proposals for the national and European level:
CBP2: civic integration (orientation) programmes (TCNs
understand, respect and benefit from common European and
national values)
CP4.1: strengthening integration component of admission
measures → pre-departure measures (language and civic
orientation courses in country of origin – integration abroad)
AND organising introductory programmes for ‘newly arrived’ to
acquire basic knowledge about language, history, institutions,
46
socioeconomic features, cultural life and fundamental values
Council Decision 2007/435 European Fund for the Integration
of Third Country Nationals (EIF) June 2007 → 825 million
Euros → matching policy ambitions with concrete actions at
national and EU level.
• It ‘co-finances’ actions supporting integration of TCNs “who are newly
arrived”- DG JFS adopts Strategic Guidelines establishing a framework
of intervention giving priorities to CBPs implementation.
• EIF objectives - Article 3:
First, to facilitate the development and implementation of
“admission procedures” relevant to and supportive of integration;
Second, to develop the integration of “newly-arrived third country
nationals” in the MS;
Third, increasing MS’ capacity to develop, implement, monitor
and evaluate policies on integration; and
Fourth, exchange of information, best practices and MS cooperation.
Personal Scope: “newcomers”, long-term residents and according
to Article 1.2, non-nationals who are in a third country and
who are complying with “pre-departure measures and/or
conditions set out in national law, including those relating to the
ability to integrate in the society of this Member State fall under the
scope of this Decision”.
Article 4.1.c on ‘Eligible Actions in the Member States’ states that
1. The Fund shall support actions in Member States which:
“prepare third-country nationals for their integration into host
society in a better way by supporting pre-travel measures which
enable them to acquire knowledge and skills necessary for their
integration, such as vocational training, information packages,
comprehensive civic orientation courses and language tuition in the
48
country of origin.”
• Third Annual Report on Migration and Integration
COM(2007) 512 11 September 2007 concluded that
FIRST, “the Common Agenda provides supportive EU mechanisms
to facilitate this process developing a distinctive European
approach to integration through cooperation and exchange
of good practice”.
SECOND, ‘trends’: On the one hand, most of the concepts present in
EU Member States national policies are codified in the CBPs, and
on the other, impact of the CBPs at national level (expressly
included in some national programmes, e.g. Spain)
THIRD, European Modules for Migrant Integration (EMMI) “based
on existing good practice to develop guidelines on various aspects of the
integration process (introductory courses, promoting participation of
immigrants and other citizens in local life, etc)”.
• German Presidency of the EU (first half of 2007) → JHA
Council Conclusions on “Strengthening Integration Policies in the EU
by promoting Unity in Diversity”, 12/13 June 2007 →
TCNs aiming at staying permanently “…should make a
deliberate effort to integrate, in particular learning the language of
their host society, and understanding the values of the EU”.
The Council confirmed the need to develop EMMI and to promote
the use of indicators and indexes for ‘comparative learning’.
• “Intercultural Dialogue” “to fostering the successful integration of
citizens of different origin, culture and religion in Europe” → The
conclusions called Member States to start a “regular exchange of
experiences and practices” (two expert meetings in 2007/2008) and
to establish a “flexible procedure capable of reacting to intercultural
problems or conflicts with a potential cross-border dimension”.
→ One meeting of the NCPI to deal with this topic and they to
become “first call – contact points” in the EU Member States
• French Presidency of the EU (second half of 2008) → European
Pact on Immigration and Asylum (October 2008) → “to encourage
integration” as a priority and called for integration policies to
“…stress respect for the identities of the Member States and
the European Union and for their fundamental values, such as
human rights, freedom of opinion, democracy, tolerance, equality
between men and women, and the compulsory schooling of
children…and the promotion of information exchange on best practice”.
• Commission Staff Working Document, Strengthening Actions and Tools
to meet Integration Challenges: Report to the 2008 Ministerial Conference on
Integration, SEC(2008) 2626, 8.10.2008 → Common European Modules
on Integration: ‘the building blocks’ covering various aspects of the
integration process and providing a ‘flexible point of reference for
designing integration programmes across Europe’. The first ones will focus
on “organisation of language courses and civic courses, etc”; AND
INDICATORS for evaluating integration policies.
51
• European Ministerial Conference on Integration in Vichy,
3/4 November 2008 focused on:
FIRST, the promotion of EU’s fundamental values → called for
the development of “information material featuring content common
to the Member States on European values, intended for use during the
immigrant introductory phase under practical arrangements to be
defined by each Member State, which could also include their own
values.”
SECOND, the introductory phase as key (even before arrival) →
priority measures on learning “language, history and institutions of
the EU Member States” AND “acquisition of elementary knowledge
and skills conducive to the immigrant's proper social, economic and
cultural integration.”
52
• The EU Framework on Integration as an Alternative Form of OMC
or a ‘Quasi-Open Method of Coordination’:
- DG Home Affairs coordination role in the exchange of information
(knowledge sharing) between Member States on ‘best practices’
- Networks of stakeholders (NCPI, The European Integration Forum,
Integrating Cities Process, key civil society actors, etc) – challenges
traditional EU (Treaty-based) configurations – ‘relational’ and
multilevel governance and Europeanization
- The Conjunction between the CBPs and the European Integration
Fund – co-financing of national policies, programmes and projects
- Policy Tools (soft): Annual Reports, Communications, Commission
Staff Working Documents, Handbooks – no binding and enforceable
- Evaluation: Indicators and Benchmarking (supported so far by the 53
European Integration Fund). Impact at the national level?
The Way Forward → The Stockholm Programme
(December 2009) – An Open and Secure Europe serving and protecting
Citizens → priorities for 2010- 2014 in the EU’s AFSJ
“European cooperation to provide incentives and support for Member States’
actions… The objective of granting comparable rights, responsibilities, and
opportunities for all is at the core of European cooperation in integration,”
“Integration is a dynamic, two-way process of mutual interaction, requiring
not only efforts by national, regional and local authorities but also a
greater commitment by the host community and immigrants”.
• The European Council called the Commission to develop:
1. coordination mechanism (structures and tool for knowledge
exchange)
2. European Modules to support integration (introductory courses and
language classes)
3. Development of indicators
4. enhance ‘democratic values’ in relation to integration
• Spanish Presidency of the EU (first half of 2010) →
Commission Staff Working Document, The consolidation of the
EU framework on integration: Report to the 2010 Ministerial
Conference on Integration, COM(2010) 357, 19 March 2010 →
the progress achieved and the steps toward the second phase
of the European Agenda on Integration:
1. Promoting European values – The European Integration Fund
supporting national programmes “putting the CBPs into
practice” – “such initiatives are targeted at newly-arrived TCNs and
include programmes and activities designed to introduce such
individuals to the host society and to help them acquire basic knowledge
regarding host society’s language, history, institutions, cultural life and
fundamental norms and values”.
2. EMMI → on the basis of the three editions of the Handbook on
Integration for Policy Makers and Practitioners (Migration Policy
Group and the NCPI – technical seminars)
AND
3. Relevant reference indicators for evaluation and
monitoring → Germany pushed forward the discussion and
was taken over by the Swedish Presidency (Malmö Expert
Meeting 14/16 December 2009) which adopted a nonbinding list of indicators.
• European Ministerial Conference on Integration,
Zaragoza, 15/16 April 2010 → Indicators agreed on
Employment, Education, Social Inclusion and ‘Active
Citizenship’ – YET, concerning this last aspect
“There is currently no unified view among Member States on
indicators in this area…Member States’ views differ in relation to
the different views, goals and regulatory frameworks of integration
policies in the respective Member States”.
56
• The Treaty of Lisbon: Article 79.4 Treaty on the Functioning of
the European Union (TFEU)
The European Parliament and the Council, acting in accordance with the
ordinary legislative procedure, may establish measures to provide
incentives and support for the action of member states with a view to
promoting integration of third country nationals residing legally in their
territories, excluding any harmonisation of the laws and regulations of
the Member States.
Formalisation of the EU Framework on Integration – bringing it
to the Treaties and the EU Method of Cooperation
Subsidiarity Check – National Parliaments and Committee of the
Regions - Protocol (No. 2), on the application of the Principles of
Subsidiarity and Proportionality, attached to the Consolidated
versions of the Treaty on European Union and the Treaty on the
Functioning of the European Union, Articles 6 and 8.
57
3. Integration of Third Country Nationals
in the EU Legal System:
Selected National Experiences and
Implications of Europeanization
58
European Parliament v. Council C-540/03 (June 2006)→
• Action for annulment against Articles 4.1, 4.6 and 8 → derogations
to general rules and rights by Directive 2003/86 and margin of
appreciation by MS → They were contrary to fundamental rights
(family life and non-discrimination on age).
• The issue of admissibility – the Court admitted the action and
considered that in order to assess whether these articles where
‘severable’ it was necessary to study the substance of the case and
the scope of the provisions, as well as their compliance with
fundamental human rights.
• The Court took a deferential line of reasoning → sensitivities of
an eventual ruling acknowledging that the Directive was against
fundamental rights, the centrality of the provisions for certain
Member States (e.g. Germany) and the long negotiations of the
Directive in the Council (key point of political compromise) –
59
Paragraph 102 “difficulty of harmonising laws”.
Findings of the Court of Justice:
First, fundamental rights form an integral part of the general
principles of law the observance of which the Court ensures →
inspiration from guidelines by international human rights
instruments: the ECHR, the ICCPR and the Convention on the
Rights of the Child.
Second, the provisions preserved a limited margin of appreciation to the
MS and were of similar nature to those of ECHR and the ECtHR –
they were proportionate (the balance of competing interests)
Third, a condition integration is not contrary to Article 8 ECHR because
the right to family life does not impose an obligation on the State to
allow family reunification in its territory → legitimate objective was
Recitals 12 of the Directive “facilitating the integration of TCNs by
making family life possible” “to reflect and ensure their capacity for
60
integration at early stages” and respected Article 5.5 and 17.
Fourth, the Court also dismissed the argument on discrimination
on the basis of age because the integration condition focuses on
a “stage in the life of a minor child when the latter has already lived for
a relatively long period in a third country without the members of
his/her family, so that integration in another environment is liable to
give rise to more difficulties” (paragraph 74 of the judgement).
Fifth, Article 8 does not preclude family reunification but preserves
a limited margin of appreciation for MS by permitting them to
make sure that family reunification will take place in favourable
conditions “after the sponsor has been residing in the host state for a
period sufficiently long for it to be assumed that the family members
will settle down well and display a certain level of integration”.
(Paragraph 98).
61
HOWEVER, three Major Consequences:
1. Ensure the respect of fundamental rights while MS implement
EU law and limiting the discretion that the Directive 2003/86
leaves them in relation to derogations – the Court interpreted
them in light of the ECHR and ‘rewrote’ them. E.g.:
Paragraph 60: “Article 4.1 imposes precise positive obligations, with
corresponding clearly defined individual rights on the MS, since it
requires them to authorise family reunification of certain members of the
sponsor’s family without being left a margin of appreciation”.
Articles 5.5 and 17 for MS to take into account in every application and
before refusing/withdrawal.
Paragraph 70: “The fact that the concept of integration is not defined
cannot be interpreted as authorizing the MS to employ that concept in
a manner contrary to general principles of Community law, in
particular to fundamental rights. MS cannot employ an unspecified
62
concept of integration”
2. Paragraph 106: “Implementation of the Directive is subject to review
by national courts...if those courts encounter difficulties relating to the
interpretation or validity of the Directive, it is incumbent upon
them to refer a question to the Court for a preliminary ruling” → The
Court acknowledged that it might be possible that in practice
the domestic transposition of the derogatory clauses might go
against fundamental rights!
3. The Charter of Fundamental Rights in the scope of EU
Immigration Law → first ruling where the Court made an
express reference to the Charter and its relevance, even if at that
time lacked legally binding nature! → also the Court argued
that the latter is a codification of the constitutional traditions of
the MS and set of international instruments.
63
Chakroun C-578/08 (March 2010)→
• Reference for preliminary ruling on Articles 2.d and 7.1.C →
concept of family reunification and requirements (evidence of
accommodation, sickness insurance and stable/regular
resources) → Dutch implementing law difference between
‘family reunification’ and ‘family formation’.
• ‘family formation’ is considered as family reunion of the spouses
in so far as the family relationship arose at a time when the
principal place of residence of the principal person was the
Netherlands – the requirement of ‘stable and regular resources’
was higher = at least 120% of the minimum wage
• Preliminary Questions: Does Article 2.d preclude the NH to
make this distinction???
64
• Articles 2.d → Paragraph 59: This provision defines family
reunification without distinction based on ‘the time of marriage
of the spouses’
“...reunification must be understood as meaning the entry into
and residence in the host Member State by family members of a
TCN residing lawfully in that Member State in order to preserve
the family unit, whether the family relationship arose before
or after the resident’s entry”.
• The Directive therefore applies to both ‘family reunification’ and
‘family formation’ on the basis of Recital 6 of Preamble, the
preliminary work in Council discussions and the Article 8 of the
ECHR (and Article 7 of the EU Charter of Fundamental Rights).
• Paragraph 64 “...taking into account of the necessity of not
interpreting the Directive restrictively and not depriving it from its
effectiveness, Members States did not have the discretion to introduce
that distinction in their national legislation...”.
FINDINGS
• Paragraph 43 → the general rule is facilitating family
reunification, any derogation needs to be interpreted ‘strictly’
AND the Member States cannot use their ‘margin of
manoeuvre in a way which undermines the objective of the
Directive: to promote family reunification
• Paragraph 44 → Recital 2 of the Preamble – measures
concerning family reunification need to be adopted in
conformity with the obligation to protect family life.
• Paragraph 62 → use of the recital, travaux préparatoires in the
Council and Article 8 ECHR and 7 of the Charter.
66
• European Commission report on the application of
Directive 2003/86/EC on the right to family reunification
(COM(2008) 610)
Article 7.2 of the Directive “[t]he objective of such (national
integration) measures is to facilitate the integration of family
members. Their admissibility under the main text and
preamble of the Directive depends on whether they serve this
purpose.”
It also stated that
The admissibility of integration measures under the Directive
depends on whether they respect the principle of proportionality.
Their admissibility can be questioned on the basis of the
accessibility of such courses or tests, how they are
designed and/or organised (test materials, fees, venue, etc.),
whether such measures or their impact serve purposes other
than integration (e.g. high fees excluding low-income families).
The procedural safeguards to ensure the right to mount a legal
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challenge should also be respected.
National Experiences
The External Dimension of Civic Integration:
• THE NETHERLANDS
The first to introduce integration abroad requirements 22 December
2005, Integration Abroad Act, entered into force on 15 March 2006 –
requirement to demonstrate knowledge of language and ‘the
country’ before entering - A “Model” to other EU Member States
Intended Public Goal? Reduce the number of ‘legal’ entries by
family members of TCNs - financial risk (the fee for the test is €350,
borne entirely by the applicant) - that they carefully consider the
application - It is a selection mechanism (migration control)
Decision to raise the test level (15 March 2008) - candidates higher
level of language proficiency than expected and a majority passed
the test!
• Material Scope: Art. 16(1) Aliens Act - application for
temporary residence permit may be denied if a ‘newcomer’
fails to demonstrate a basic knowledge of Dutch language
and ‘society’: integration test abroad (civic and language
component) at the embassies by a computer.
• Two components in the test: civic and language (15 minutes
each) – the civic part: Questions: 1) the geography of the
Netherlands, Dutch housing and transport; 2) Dutch history;
3) the Dutch constitution, government, democracy and
legislative system; 4) the Dutch language (and why it is
important to learn it); 5) parenting and education; 6) the
health care system; and 7) work and income – 70/16 points.
• Preparation for the test – responsibility of the applicant –
learning package (CD with potential questions, a DVD and a
book – 70 Euros) – who is targeted?
69
• Personal Scope: family reunion and those aiming at
applying for permanent residence
Who is not covered? Citizens of several ‘developed
countries’ are exempt from the integration test and temporary
residence requirements. Apart from EU/EEA nationals, also
migrants from Switzerland, the US, Canada, Japan, South
Korea, Lichtenstein, Monaco, Australia and New Zealand
because they “have a comparable level of economic, social and
political development to EU countries” and “no risk of an inflow of
migrants that will result in problems for integration or social
cohesion”. AND ‘knowledge migrants’ and self-employed.
* Human Rights Watch (2008) – The Netherlands:
Discrimination in the Name of Integration - discrimination on the
basis of ‘ethnic origin’ targeting migrants from certain
countries: integration test abroad directed at potential family
70
migrants of Moroccan and Turkish origin
• FRANCE
Law No. 2007-1631 of 20 November 2007 - relative à la maîtrise de
l’immigration, à l’intégration et à l’asile: major transformation of the
classical, republican integrationist philosophy
Official Justification: transposition into French law the Directive
2003/86 on the right to family reunification (Article 7.2 Directive
2003/86) AND reference to ‘the Dutch model’ in the parliamentary
deliberations
Intended Public Goal? → reducing family reunification - the high
number of residence permits granted in France based on family
reunification in comparison with other ‘legal’ immigration channels
– it is expected to decrease even further!
Different from the NH – careful in national transposition (non
71
mandatory nature)!! – integration measures (Article 7.2)
Material Scope: Art. L. 411-8 in the Code for the entry and
residence of foreigners and the right to asylum: 60 days after
the presentation of an application for family reunification,
every TCN over 16 and under 65 subject to an evaluation
about knowledge of the French language and the values of the
Republic – if not passed a training is offered (2 months).
The applicant will be subject to an oral test – on ‘Republican
values’ “French institutions and the values of the Republic, the
equal treatment between men and women, secularism, rule of law,
fundamental liberties, security of persons and goods as well as the
exercise of citizenship” – if not passed (five out of six questions)
– minimum of half a day training course (depending on the
OFII or private actor)
The certificate of attendance sent to diplomatic authorities
for visa application → It does not say if compulsory – BUT - an
indirect condition for delivering visa
72
• GERMANY
A language test as a precondition for spousal reunification was
introduced in 2007 → Section 30(1) No. 2 of the Residence Act
(AufenthG), incoming spouses must be able to demonstrate basic
knowledge of the German language (level A1 CEFR) to be granted
a residence permit for the purpose of family reunification –
transposition of the Directive 2003/86 on the right of family
reunification
Inspired also by the Dutch Model! → BUT NO knowledge on
society (civic integration)
Personal Scope: exempt from taking the test: highly qualified
workers and citizens of the EU/EEA, Switzerland, Australia, Israel,
Japan, Canada, South Korea, New Zealand, the US, Andorra,
Honduras, Monaco and San Marino!! – to encourage immigration
of these nationals to the country!
The Internal Dimension of Civic Integration:
• FRANCE
• The ‘welcome and integration contract’ (contrat d’accueil et
d’intégration, CAI) – contractual mandatory nature with the
Sarkozy Law II of 24 July 2006 (Loi relative à l’immigration et à
l’intégration, No. 2006-911) in order to reinforce the route towards
‘intégration républicaine’ – knowledge of French Republican
Values and ‘personal commitment/engagement’ (not only
knowledge) of the applicant to them
• The conditional (obligatory) nature of the CAI was introduced
when transposing Directive 2003/109 on long-term resident status
• Material Scope: grant of legal residency and the right of
permanent residence.
74
• Decree No. 2006-1791 features, objectives, procedures and
scope of CAI → one year; compulsory language and civic
training course - presentation of French institutions and the
values of the Republic: equality between men and women,
secularism, the rule of law, fundamental freedoms and the exercise of
citizenship (including mandatory and free access to education)
• Session of ‘Life in France’: access to public authorities and
relevant services, which mainly include training, employment,
housing, health, education and minor policies, as well as
community life.
• A maximum of 6 hours each – certificate of attendance by the
OFII
• If non-attendance or non-compliance with the contractual
obligations - termination and its negative consequences on
granting or renewing the residence permit - expulsion
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• Law 2007-1631- New Contract - the official conception of
republican integration of the family into French society (Contrat
d’accueil et d’intégration pour la famille, CAIF).
• Art. 311-9-1 CESEDA TCNs holding a permanent residence
permit and their family members benefiting from family
reunification (including children) to conclude a contract with the
French state, obliging them to follow a course on “the rights
and duties of parents in France” and to ensure the proper
schooling of their children
→ training of one day at least about parental authority,
equality between men and women, child protection and the
principles governing their schooling in France
→ Sanctions: If the contract is not respected financial
sanction through the cessation of family social benefits and
refusal to renew the residence permit, and hence expulsion.
• HCI Report “Making known the values and symbols of the Republic
and organizing the modalities of evaluating their knowledge” - need
for TCNs (not only ‘to know’) to understand, respect and
adhere “our common civic heritage”:
republican symbols and values: Marianne, La Marseillaise,
the three-colour flag, the republican ideals of liberté, egalité,
fraternité et laïcité, the national holiday of 14 July and the
Universal Declaration of the Rights of the Man and of the
Citizen of 1789 (which became the Preamble of the French
Constitution).
• Policy Recommendations:
First, strengthening of values and symbols in the civic integration
training in the CAI - creation of a specific module and other two
on history and institutions.
Second, a civic training film on republican values and life in France,
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in the external dimension of integration, but also in the CAI.
• THE NETHERLANDS
• The Dutch legislator referred to the EU’s CBPs on integration and
the explicit possibility in Directives 2003/86 and 2003/109 to
impose integration conditions and justify the integration test →
The Integration Act that entered into force on 1 January 2007 – the
municipality as evaluator
• Material Scope: Integration Test - Dutch language skills and
knowledge Dutch society → The Civic Element includes: work
and income, behaviour, values and norms, living, health and health
care, history and geography, administration, the state and the rule of
law and education
→ Obligation to pass it after three and half years (for those having
passed integration abroad) and after five years for the others! –
interview with computer – two exams one on ‘Dutch society’ and
another on practical assignments and language.
• The overall costs for the test amount to €230, i.e. €126 for the
central part plus €104 for the practise part. Successfully
passing all parts of the test will be certified with a diploma.
• Newcomers and ‘oudkomers’ who were already living in the
Netherlands at the time of the entry into force of the
Integration Act.
• A TCN’s unwillingness or inability to comply with the
integration requirement will lead to expulsion
• It is notable that the civic knowledge test and the language
test are conducted at the same level as the previous
citizenship test and that the diploma obtained serves as proof
of being integrated for naturalisation – the same level of
integration as potential ‘citizens’
79
• GERMANY
• Section 43(3) of the Residence Act refers to the acquisition of
knowledge of the legal order, the culture and the history of Germany →
acquisition of a permanent right of residence depends on an
integration requirement → basic knowledge of the legal and
social order and living conditions.
• HOW? Successfully completing an integration course AND
participation is one of the considerations taken into account when
prolonging a temporary residence permit
→ civic orientation course 45 hours - German legal system, history
and culture, including the principles of the rule of law, equal treatment,
tolerance and religious freedom – development of a ‘positive attitude’
and ‘identification’ with the German state.
→ A uniform, standardised (mandatory) test on civic knowledge
since January 2009 (25 multiple-choice questions)
Are the member states completely ‘FREE’ in the use of
civic integration measures and conditions now falling
within the scope of European immigration law?
Member states’ actions (especially those falling within the
scope of EU immigration law) are subject to the supervision
carried out by the European Commission and the judicial
control and interpretation provided by the Court of Justice
By inserting integration measures and conditions into some of
the articles of Directives 2003/109 and 2003/86, member
states’ action must now not only comply with the objectives
and provisions stipulated in the Directives, but also with the
general principles of EU law, such as that of
proportionality, non-discrimination and fundamental rights
81
4. Testing ‘Integration’: Proportionality and NonDiscrimination
1. PROPORTIONALITY: general principles of EU law when
reviewing the legality of MS’ administrative actions in the
scope of European law. It comprises a multilevel evaluation:
necessity and proportionality stricto sensu:
• The sub-principle of necessity consists of the examination as to
whether the measure is necessary to achieve the intended goal and the
extent to which there are other less restrictive options (the least
onerous option) to achieve the same end.
• The sub-principle of proportionality stricto sensu - the measure
has imposed an excessive burden upon a recognised right when taking
into account the public objective in view.
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• THREE MAIN FACTORS:
1. The Subjectivity:
→ ‘values’, ‘ways of life’, etc - no objective criteria or procedure
meeting the principle of legal certainty – there is no
sufficiently clear and precise definition of civic integration so that
individual knows the legal consequences of their actions and
that the quality of the law is as high and objective as possible –
UNDETERMINATE LEGAL CONCEPT – presumption about
the existence of a common identity and values!
→ No clear legal mechanisms and judicial guarantees provided
in national immigration law for TCNs to mount a legal
challenge against a negative decision – the right to effective
remedies?
→ privatisation of immigration control - private actors develop
and administer integration tests and programmes: How to
83
guarantee non-discrimination and ethical standards?
2. Mandatory Nature and Sanctions
→ Fail to pass the ‘less restrictive and onerous test’ - TCNs
required more knowledge of the receiving state’s institutions,
history and values than many citizens in order to enter the
country, have access to security of residence, and enjoy the
fundamental right of respect for family life – Is it necessary?
→ requirements to acquire a secure residence status are as high
as those applied to future citizens
→ time-consuming introduction programmes
→ The Sanctions: denial of a permanent residence status and
expulsion and even extend a temporary residence permit,
family reunion AND fines (e.g. Family social benefits) – not
84
access to European rights and freedoms!
3. Intended Public Goal → Is it necessary to achieve the
intended public goal?
→ The Goal: migration control: a reduction in the number of
entries for family reunification: making family reunion and
family life more difficult - is it legitimate?
→ The political justifications: alluded to practices existing in
other EU MS and the obligation to transpose European
immigration law
→ The exchange of ideas among EU MS in the EU Framework
on Integration. The Dutch approach to integration as a model
for other countries → Instrumentalisation of transposition of
European Immigration law
Effectiveness?
2. NON-DISCRIMINATION:
• Who is the Target Group?
Certain categories of foreigners are considered to be ‘perfectly’
integrated: EU citizens, highly skilled migrants workers, AND
nationals of selected countries who do need a visa/provisional
residence permit to enter the country (US, Canada, Japan, South
Korea, New Zealand, Monaco and Lichtenstein) – economic
interests and fitting into the ‘national identity’
• Who pays for the financial costs of the civic integration
programmes → reinforcing the exclusionary implications for
certain categories of migrants
• Non-discrimination based on religion, ethnic origin and
wealth status