Integration policy becomes increasingly restrictive

Integration policies of European member states, including those of the Netherlands, have become more restrictive in the last two decades. Migrants are required to meet more and higher integration standards before they receive a residence permit. Therefore, family reunification of migrants with a non-European nationality has become more difficult. In her dissertation ‘Conditional Belonging’, Tamar de Waal researched how the increasingly restrictive integration policies affect the social position of migrants, and shows how these may endanger their legal position. Her findings are briefly described in this news article. A summary of her dissertation can be found here.

The Dutch integration policy prescribes that migrants who are required to integrate must pass an integration exam. This is a necessary requirement for obtaining or maintaining a residence permit. This process often already begins in the migrant’s country of origin.

An exploratory research was performed by Daniël van Dijk for the PILP. This clarified that the form and application of the Basic Civic Integration Examination Abroad, the costs for passing the integration exams and the consequences for a migrant’s residence when not conforming to the integration requirements may be in violation of European and/or international law. The results of this research, along with the main results of the research performed by Tamar de Waal, have been presented to the law firm Stibbe on the 13th of December 2017.

The most important problems and possible violations of international (human rights) law

The Basic Civic Integration Examination Abroad
Non-European migrants who want to migrate to the Netherlands for an indefinite period of time are required to pass an integration exam before their arrival. This concerns migrants who want to reunify with their family, so-called family reunification migrants. If they do not pass their exam, they sometimes need to wait for years before they are able to reunify with their family members. This possibly violates the right to private and family life (article 8 ECHR).

In 2015 the European Court of Justice issued the K&A-ruling. In this ruling, it held that the Basic Civic Integration Examinations Abroad may be in violation of the Family Reunification Directive if the manner in which they are applied form a disproportional barrier to obtaining a residence permit. The Court ruled that high costs related to the exam may form such a barrier, after which the Netherlands lowered these costs. Additionally, the Court ruled that when setting conditions to family reunification, the individual circumstances of a migrant should be taken into account. Furthermore, not passing the exam should not automatically hinder family reunification.

Following the ruling, the Netherlands adjusted its integration policy in several manners. However, regulations which may make passing the exam (very) difficult for family migrants still exist. For example, there is a lack of self-help packages to learn Dutch in the language of the migrant’s country of origin, and analphabetic migrants are required to teach themselves how to read and write through such self-help packages. Also, no clear insight is given into the results of an integration exam when it is not passed, with the consequence that migrants are unable to learn from the mistakes they made.

Discrimination
The Basic Civic Integration Examination Abroad is not required for all migrants. Migrants with a nationality from the United States, Australia, Canada, New Zealand, Japan and Korea are not required to pass the exam. Human Rights Watch argued in this report that selecting migrants from ‘western’ countries amounts to discrimination corresponding to article 14 ECHR.

Quality of language schools
Once arrived in the Netherlands, migrants who are required to integrate must meet the integration standards as applied by the government. However, in order to do so, they need to have access to sufficient tools to pass the civic integration exam. One of those tools is language education. In the Netherlands, this education has been privatised, and several sources have criticized its low quality. This may disproportionally obstruct the chance of passing  a civic integration exam (and thereby, obtaining a residence permit), and may therefore be in violation of the Directive.

Loans
The Dutch government emphasises that the responsibility to integrate lies with the migrants. They are required to find integration education courses which help them pass the exams. The costs for these courses and the exams can be financed through a loan. Integrating migrants who pass the exam within three years are not required to repay this loan. As a consequence, those who are unable to pass the exam within three years  may be heavily indebted. This could therefore also form a disproportionate obstruction to the obtainment of a residence permit which may be in violation of the Family Reunification Directive.

Declaration of participation
Migrants who are required to integrate must sign a ‘Declaration of Participation’, in which they agree to ‘internalise certain values’. Not signing the Declaration may result in a fine or a refusal to grant the residence permit. This makes the signing of the Declaration obligatory, which may be in violation of the right to freedom of thought, conscience and religion (article 10 Charter of Fundamental Rights of the European Union) and the right to freedom of expression and opinion (article 9 ECHR).

Uncertainty
The Aliens Act 2000 gives the government the discretion to not grant or extend the duration of a (temporary) residence permit if a migrant has ‘culpably’ not fulfilled his/her obligation to integrate. This means that migrants could end up in a vicious circle: if they do not meet the obligation to integrate, they maintain a temporary residence permit, for which they need to meet certain requirements to maintain their legal stay. If they do no longer meet these requirements, they risk losing their legal status. For example, if a relationship with a family member ends because of a divorce, the migrant will lose his/her status. This uncertainty amounts to a deterioration of the legal position of the migrant, which in turn undermines his/her integration process . The refusal by the government to grant a permanent residence permit on the basis of the fact that a migrant has ‘culpably’ not fulfilled the obligation to integrate could therefore be in violation of the ruling of the European Court of Justice. The Court held that integration measures need to have the purpose to improve the integration of migrants, and cannot be disproportional.

Reform of integration policy

In a letter to the Dutch Parliament, Minister Koolmees proposes to adjust the Dutch integration policy. The loan for financing integration courses will be abolished. Simultaneously, the Minister wants to abolish the private market system for integration courses. Municipalities will be able to purchase integration trajectories from suppliers selected by them.

What does the PILP do?

The PILP explores legal opportunities to improve the human rights of people who have newly arrived in the Netherlands. It cooperates with Stichting Civic on this. Stichting Civic strives to improve the Dutch integration policy.