Passing an integration exam as a requirement for an autonomous residence permit
Dutch law made integration a condition for admission and continuous residence. The ECJ already ruled about integration as a condition for admission. Now the ECJ passed its judgment on Dutch integration requirements for autonomous residence.
For decades, the issue of the integration of migrants into Dutch society has been a highly controversial topic in the Netherlands. Not the principle that there should be some form of integration is debated, but the best way to achieve this purpose leads to contrasting views. At one end of the dichotomy, we can place those who consider integration as a process where the receiving society and migrants share responsibilities. In this view, a right to residence is a pre-condition for integration to succeed. At the other end of the spectrum, integration is considered a requirement to be entitled to admission, residence or naturalisation. In the integration debate, the focus has shifted from ‘residence as a condition for successful integration’ to ‘integration as a condition for residence’.
The competence of the Netherlands to impose integration requirements for residence is limited. The EU Family Reunification Directive (FRD) regulates the right to family reunification of third country nationals (TCN), residing legally in a Member State of the EU. According to this Directive, Member States are allowed to set income, housing and sickness insurance conditions. Furthermore, Member States can demand that family members of TCNs comply with integration measures. For the acquisition of an autonomous residence permit after five years of residence, the FRD allows Member States to set conditions related to the granting and duration by national law. The Netherlands, together with a few other Member States like Germany and Austria, made use of the competence to impose integration measures both before getting admission as well as conditions for the acquisition of an autonomous or permanent residence right. In some other countries comparable measures are under investigation or are being proposed.
The debate about the compliance of the Dutch integration test abroad - a test which has to be passed before getting permission for family reunification – has come, for the time being, to an end with the judgment of the Court of Justice of the EU (ECJ) in K and A. According to the ECJ, a pre-entry integration test abroad is permissible as long as “(…) the conditions of application of such a requirement do not make it impossible or excessively difficult to exercise the right to family reunification” (par. 71). The Member States must have regard of specific individual circumstances, such as age, illiteracy, level of education or the economic or health situation of the TCN family member. This judgment limits Member States’ ability to uphold very strict pre-entry integration conditions.
Recently, the ECJ has ruled on the integration conditions for the acquisition of an autonomous residence permit in the Netherlands. Integration conditions for migrants after arrival have been compulsory in the Netherlands since the Integration Act for Newcomers of 1998 (Wet inburgering nieuwkomers). Based on this Act, several groups of migrants were required to follow language courses and a programme directed at the acquisition of skills needed to participate in Dutch society. Refusal to cooperate could in the end lead to a fine. Just a few years after this act entered into force, it was already deemed to be insufficiently effective. In 2006 the Act was replaced by the Integration Act (Wet inburgering). The Integration Act changed the obligation to make an effort to integrate into an obligation to succeed. If the migrant failed the integration exam within a given period, and there was no objective reason why this couldn’t be asked of him or her, he or she could be fined up to a maximum of €1250. In 2010 this Act was amended by attaching consequences for the residence right to the failure to pass the exam. This includes the possibility to withdraw a residence permit or refuse an autonomous or permanent residence permit. These negative consequences for the residence rights of migrants have been criticized by, amongst others, de Hart and Besselsen. The judgment of the ECJ in the cases C & A and K of 7 November 2018 evaluates whether this requirement in regard of the acquisition of an autonomous residence permit is in accordance with Article 15 of the FRD.
Article 15(1) and (4) FRD prescribe that family migrants are entitled to an autonomous residence permit after no longer than five years and that the conditions relating to the granting and duration of the autonomous residence permit are established by national law. In the cases of C & A and K an autonomous residence permit was refused to TCNs who had lived more than five years in the Netherlands as the husband or spouse of a Dutch national. According to the Council of State – the court of highest instance in immigration matters in the Netherlands – it was not clear whether a substantive condition like the Dutch integration condition could fall within the meaning of the ‘conditions relating to the granting […] of an autonomous residence permit’ Member States were allowed to apply for the acquisition of an autonomous residence permit.
In this case, the Advocate General expressed the opinion that the Dutch requirement would amount to undermining the purpose and the effectiveness of the acquisition of an autonomous residence right ‘by unduly complicating the right to family reunification’ (para.57). The Court did not follow the opinion of the AG. Although the granting of an autonomous residence permit after five years is the general rule, states have been given latitude to lay down substantive conditions. These conditions for the granting of an autonomous residence permit can encompass an integration exam. The ECJ provides three reasons for this judgment. First, it refers to the general objective of the EU legislator to facilitate integration. Laying down integration conditions as a requirement for an autonomous residence permit, is in line with this objective according to the Court. Second, as the FRD allows for integration measures, the acquisition of an autonomous residence right without the condition to comply with integration conditions, might jeopardize the effectiveness of these integration measures. Finally, after five years of residence, the TCN should have been able to acquire some knowledge of the language and society of the host Member State. This should, in principle, enable him to pass an integration exam. However, Member States are not completely free to set integration conditions. As an autonomous residence permit after five years is the general rule, any integration condition must be proportional, suitable to achieve the ends and not go further than necessary. More specifically, this means that the required knowledge is at basic level, there should be exceptions for those who have demonstrated their willingness and have made every effort to pass the exam, specific individual circumstances are taken into account and the fees relating to the examination are not excessive (para 63).
It is not surprising that the Court came to this evaluation of integration requirements as a condition for the granting of an autonomous residence permit. The reasoning of the ECJ is in line with the earlier judgment in the case of K & A in regard to the pre-entry integration exam. Also in this case, the principle of integration conditions as a condition for residence were upheld. Like in K & A, the competence of Member States to install integration conditions is not unlimited. Whether the current Dutch integration conditions fall within these boundaries can be questioned. For example, the costs for integration are substantial if the costs for courses, which are not offered for free, are included.
Integration is currently being debated in Dutch politics again. The Dutch Minister for Social Affairs, Wouter Koolmees, who is responsible for integration policy, is planning to introduce a renewed integration policy (Inburgering gaat op de schop). Some of his proposals, such as the plan to raise the language ability from CEFR A2 to B1 as the general rule (although exceptions will be made possible) could be at odds with the FRD. The ruling of the Court will therefore have implications for the future of Dutch integration policies.