Hardening integration policies
The integration policies of European member states, including the Netherlands, have become increasingly strict in the last two decades. Migrants have to meet more and higher integration requirements before they are granted a residence permit. Family reunification of migrants of non-European origin is therefore becoming increasingly difficult. In her dissertation Conditional Belonging Tamar de Waal investigated how the hardening of integration policies affects the social and societal position of migrants, and shows how these policies can endanger the legal position of migrants. Her findings are briefly described in this NRC article and see here for a summary of her dissertation.
Part of integration policy is the integration exam. Passing the exam is a necessary requirement for obtaining or maintaining a residence permit. This process often begins in the country of origin.
An exploratory legal study conducted by Daniël van Dijk for PILP revealed, among other things, that the form and application of the civic integration exam abroad, the costs of passing the civic integration exams and the consequences under residence law attached to failure to comply with civic integration requirements may be in conflict with European and/or international law. This research, along with that of Tamar de Waal, was presented at Stibbe on December 13, 2017.
The main bottlenecks
The basic integration exam abroad.
Non-European migrants who want to come to the Netherlands for an indefinite period of time must pass the basic integration exam even before their arrival. These are migrants who want to join their family members in the Netherlands, so-called family migrants. If they fail the exam, some have to wait years before they can join their family members. This potentially violates the right to private and family life (Article 8 ECHR).
The European Court of Justice ruled back in 2015 in the so-called K&A judgment that integration exams abroad may be contrary to the Family Reunification Directive if they constitute a disproportionate obstacle to obtaining a residence permit. The Court ruled that setting excessive fees for the exam could constitute such an obstacle, upon which the Netherlands reduced the fees for the exams. Furthermore, according to the Court, the individual circumstances of the case should always be taken into account when setting requirements for family reunification, and failure to pass the exam should not automatically prevent family reunification.
A number of things have been adjusted in Dutch policy as a result of the ruling. However, it still has certain regulations that can make it (extremely) difficult for a family migrant to pass the exam. For example, there is a lack of self-help packages to learn Dutch in the language of the country of origin, illiterate migrants are expected to teach themselves to read and write through such self-help packages, and there is no clear understanding of the exam taken when it is not passed, so migrants cannot learn from the mistakes they have made.
Discrimination
The integration exam is not mandatory for everyone. Migrants from the United States, Australia, Canada, New Zealand, Japan and Korea are not required to take the basic foreign integration exam. Human Rights Watch stated in a report that selecting migrants from “Western” countries constitutes discrimination under Article 14 ECHR.
Quality language schools
Once in the Netherlands, migrants who are obliged to integrate must meet the integration requirements set by the government. But in order to do so, persons integrating must have access to sufficient resources to pass the integration exam. One of those tools is (language) education. In the Netherlands, this education has been privatized and, according to some, the quality is substandard. This can unnecessarily hinder integration, and would thus be in violation of the Directive.
Loans
The government emphasizes that persons integrating are “personally responsible” for their integration. They themselves should look for integration courses that will help them complete the exams. The cost of these courses and the exams can be financed by a loan. Persons integrating who pass the exams within three years do not have to repay this loan. Failure to pass the exam within three years could result in high debt. This could also be a disproportionate obstacle to obtaining a residence permit that is not compatible with the Family Reunification Directive.
Participation Statement
Immigrants required to integrate must sign a Participation Declaration, agreeing to “internalize certain values. Failure to sign can result in a fine or even refusal to issue the residence permit. This effectively makes signing mandatory, which could be in violation of the right to freedom of thought, conscience and religion (Article 10 EU Charter on Fundamental Rights) and the right to freedom of expression (Article 9 ECHR).
Uncertainty
The Aliens Act gives the possibility not to extend or grant a (temporary) residence permit on the basis of ‘culpable’ failure to comply with the integration obligation. This can lead migrants into a vicious circle: as long as they do not comply with the integration obligation, they retain a temporary residence status, in which they must continuously meet certain conditions. If they do not comply (any longer), there is a risk that they will lose their status. Also, if the relationship with the family member ends, for example through divorce, the migrant loses his/her status. This uncertainty means a worsening of the legal status and thus undermines integration. It could thus contradict the judgment of the Court of Justice. This is because it found that integration measures are supposed to have the purpose of promoting the integration of migrants and cannot be disproportionate.
What does PILP do?
PILP explores legal options to strengthen the human rights of newcomers. It collaborates with Civic Foundation on this issue. Stichting Civic is committed to improving Dutch integration policies.
