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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 5, 6 and 7 July, Florence . SCOPE OF THE SPECIALISED COURSE

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Third Country Nationals in the EU Legal System: ‘Integration’ as an Exception to Inclusion and Rights in Europe

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Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

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

5, 6 and 7 July, Florence


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

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


Structure

STRUCTURE

  • Integration and European Immigration Law

  • Integration and the European Union Framework on Integration

  • Integration of Third Country Nationals in the EU Legal System: Selected National Experiences and Implications of Europeanization


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

  • Integration and European Immigration Law

  • Integration of persons in the move at the core of European integration processes since the 1970s → key policy priorityin 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 (afterand before‘Europeanization’ of immigration policy since 1999)


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

  • 1970s - 1980s: CommonFactors – soft policy:

  • 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

  • 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’

  • 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)

  • Integration concerns ‘both sides’ – implicit references to the two way process tenet


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

  • The Maastricht Era (1992 – 1998): The soft policy and intergovernmental cooperation continued (‘The Third Pillar’ – Title VI ‘Cooperation in the fields of JHA’) – Common Factors:

  • 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’!)

  • The granting of rights to long-term residents and family reunion as a source of security and “effective integration factors”

  • The principles of equal treatment and non-discrimination continued “no less favourable treatment than nationals”

  • Explicit reference to the two way process principle as a key ingredient of any “comprehensive integration policy” (EESC Opinion on COM(94) 23).


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

  • 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:

  • Fair treatment Principle

  • Develop a “vigorous integration policy” granting legal TCNs rights and obligations comparable to EU citizens

  • Long-term residents – rights “as near as possible” to citizens


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

  • The Tampere Milestones difficult to materialise – The Commission has encountered several barriers to transform them into proper European law through the ordinary Treaty-based 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???


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

  • 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


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

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


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

  • 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-discriminationfar 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.


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

  • 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 nation-state

    → 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.


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

  • There is an internal and external dimension of ‘civic integration’ at EU and National Levels:

  • The internal Dimension- programme, course, test or contract 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.

    2.The External Dimension(Integration Abroad) - evaluation and a 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


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

European Immigration Law

  • 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’


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

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.


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

→ 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).


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

FAMILY MEMBERS

Article 4:

  • MS ‘shall’ (obligatory) allow entry and residence to: The ‘nuclear family’:

  • The sponsor’s spouse; and

  • Unmarried minor children of the sponsor and spouse (including children adopted or under custody).

  • MS ‘may’ (facultative) allow entry and residence to:

  • First degree relatives in direct ascending line when there is ‘dependency’ and do not enjoy proper family support in the country of origin.

  • Adult unmarried children not capable of providing their own needs on account of state of health

  • Unmarried partners – stable long-term relation or registered partnership.


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

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


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

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

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.


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

→ 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)


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

THE RIGHTS:

→ Secured right of residence granting a legal status comparableto EU citizens; a reinforced protection against expulsion linked with effective legal redress mechanisms; ANDa 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


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

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.Protectionagainst 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)

→ Beforeremoval 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


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

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


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

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?


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

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???


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

  • 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’ ?


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

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 workersand 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 a post-secondary higher education programme of at least three years)


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

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.

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


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

  • 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).


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

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 1.2.


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

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’


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

  • 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 “near-equality 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.


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

→ 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).


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

→ 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


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

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.


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

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


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

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 frameworkand 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”


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

  • 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!!


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

Justice and Home Affairs Council14/15 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!)


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

  • Commission Communicationon 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 2003confirmed 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”??


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

CBPsprimarily 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


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

THE 11 CBPS:

Integration is a dynamic, two-way process of mutual accommodation by all immigrants and residents of Member States

Integration implies respect for the basic values of the EU**

Employment is a key part of the integration process and is central to the participation of immigrants.

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


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

Access to institutions, as well as to public and private goods and services, on a basis equal and in a non-discriminatory way

Frequent interaction between immigrants and citizens is a fundamental mechanism for integration.

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

The participation of immigrants in the democratic process and in the formulation of integration policies and measures, specially at the local level (political participation)

Mainstreaming integration policies in all relevant policy portfolios and levels of government and

Developing indicators and evaluation mechanisms***

44


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

→ 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!


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

CBPs→ Consolidation soft policy approach in EU policy on the integration of immigrants → Too broad list allowing for any national policy → CPB2 and 4.1same 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, socioeconomic features, cultural life and fundamental values

46


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

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.


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

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 country of origin.”


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

  • Third Annual Report on Migration and Integration COM(2007) 51211 September 2007 concluded that

    FIRST, “the Common Agenda provides supportive EU mechanismsto 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)”.


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

  • 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 citizensof 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


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

  • 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.


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

  • 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.”


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

  • 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 European Integration Fund). Impact at the national level?


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

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


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

  • 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:

  • 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”.

  • 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


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

  • 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 non-binding 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”.


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

  • 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.


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

  • Integration of Third Country Nationals in the EU Legal System:

    Selected National Experiences and Implications of Europeanization


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

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) – Paragraph 102 “difficulty of harmonising laws”.


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

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 integration at early stages” and respected Article 5.5 and 17.


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

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).


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

HOWEVER, three Major Consequences:

  • Ensure the respect of fundamental rights while MS implement EU law and limitingthe 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 concept of integration”


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

  • Paragraph 106: “Implementation of the Directive is subject to review by national courts...if those courts encounter difficulties relating to the interpretation or validityof 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.


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

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???


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

  • 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...”.


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

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, travauxpréparatoiresin the Council and Article 8 ECHR and 7 of the Charter.


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

  • 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 accessibilityof 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 challenge should also be respected.


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

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’ beforeentering - 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!


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

  • Material Scope: Art. 16(1) Aliens Act - application for temporary residence permit may be denied ifa ‘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?


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

  • 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 migrants of Moroccan and Turkish origin


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

  • 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 mandatory nature)!! – integration measures(Article 7.2)


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

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 evaluationabout 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


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

  • 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!


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

The Internal Dimension of Civic Integration:

  • FRANCE

  • The ‘welcome and integration contract’ (contratd’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 ‘intégrationrépublicaine’ – 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.


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

  • 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


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

  • Law 2007-1631- New Contract - the official conception of republican integration of the family into French society (Contratd’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.


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

  • 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, in the external dimension of integration, but also in the CAI.


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

  • 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.


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

  • 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’


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

  • 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)


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

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


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

4. Testing ‘Integration’: Proportionality and Non-Discrimination

  • 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 strictosensu:

  • 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 strictosensu- the measure has imposed an excessive burden upon a recognised right when taking into account the public objective in view.


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

  • THREE MAIN FACTORS:

  • 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 guarantee non-discrimination and ethical standards?


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

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 access to European rights and freedoms!


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

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?


Third country nationals in the eu legal system integration as an exception to inclusion and rights in europe

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


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