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
Third Country Nationals in the EU Legal System:‘Integration’ as an Exception to Inclusion and Rights in Europe
Migration and EU Law and Policy
Academy of European Law, EUI
5, 6 and 7 July, Florence
SCOPE OF THE SPECIALISED COURSE
How EU Law and Policy interact and engage with integration → The legal and policy landscape of integration at EU level - the nature and implications of Europeanization of this domain on liberty and security of individuals, rule of law and the discretion/sovereignty by EU Member States
Area of Freedom, Security and Justice DG Home Affairs (Ministry of Interior Approach on migration, borders and identity)
→ Answer? Directives on ‘legal immigration’ including ‘integration-related provisions’ AND the adoption of the European Integration Fund???
Dual legal and policy contextualisation on ‘integration’:
1.European Immigration Law (Legal Immigration) and
2.The EU Framework on Integration
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.
→ 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
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
European Immigration Law
EU DIRECTIVES – EU acquis on ‘legal immigration’:
1.Directive 2003/86 on the right to family reunification
→ Entered into force on 3 October 2005.
→ IMPORTANCE of the Preamble → Recital 4 “Family reunification is a necessary way of making family life possible”. It helps to create socio-cultural stability facilitating the integration of TCNs in the MS, which also serves to promote economic and social cohesion”.
EXCEPTIONS: Integration Conditions/Measures
…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
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.
→ 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)
→ 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
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
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
CONDITIONS: Integration Conditions/Measures (derogative clause – exception to EU rights and freedoms)
“MS may require third-country nationals to comply with integration conditions, in accordance with national law”.
→ no definition of integration conditions!
“Member States may require TCNs to comply with integration measures in accordance with national law. This condition shall not apply where the TCN have been required to comply with integration conditions to be granted LTRs in accordance with Article 5.1. The persons concerned may be required to attend language courses” → A mutual recognition of the ‘civic integration’ dimension?
Original versions of Directives did not include reference to ‘integration’ – output of Council negotiations:
FIRST, Article 4.1 Directive 2003/86 – Germany and Austria → “since the entry into the territory for family reunification up to the age of 18 would not allow full integration of the child the age threshold should be revised downwards”. It has not been implemented by one MS!
Article 7 – “Integration Inside and Abroad” → Germany, Austria, Denmark and the Netherlands
SECOND, Article 5 Directive 2003/109 – Germany, Austria and the Netherlands → doubts on ‘objective criteria’ by other Member States and Commission → Joint Suggestion (September 2002): integration programme as condition for long-term resident status → compatible with their nationals legislation or proposals
Difference between MEASURES AND CONDITIONS???
EU Law has given room to ‘nationalism’ and a restrictive immigration policy – Yet, are Member States as ‘free’ ?
3. Directive 2009/50 on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment
→The EU Blue Card - common fast-track procedure for admission and residence of more than three months of highly skilled 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)
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
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”
→ However the Directive does not preclude them from “maintaining or introducing integration conditions and measures, including language learning, for the members of the family of an EU Blue Card holder” (Recital 23 of Preamble).
CONDITIONS (Criteria for Admission)
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.
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’
→ 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.
→ 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).
→ 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):
2.Integration and the European Union Framework on Integration
The Background Context:
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!)
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”??
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.)
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.
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***
→ 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”
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
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.
First, to facilitate the development and implementation of “admission procedures” relevant to and supportive of integration;
Second, to develop the integration of “newly-arrived third country nationals” in the MS;
Third, increasing MS’ capacity to develop, implement, monitor and evaluate policies on integration; and
Fourth, exchange of information, best practices and MS cooperation.
Personal Scope: “newcomers”, long-term residents and according to Article 1.2, non-nationals who are in a third country and who are complying with “pre-departure measures and/or conditions set out in national law, including those relating to the ability to integrate in the society of this Member State fall under the scope of this Decision”.
Article 4.1.c on ‘Eligible Actions in the Member States’ states that
1. The Fund shall support actions in Member States which:
“prepare third-country nationals for their integration into host society in a better way by supporting pre-travel measures which enable them to acquire knowledge and skills necessary for their integration, such as vocational training, information packages, comprehensive civic orientation courses and language tuition in the country of origin.”
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)”.
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’.
→ One meeting of the NCPI to deal with this topic and they to become “first call – contact points” in the EU Member States
“…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”.
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.”
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”.
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
“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”.
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.
Selected National Experiences and Implications of Europeanization
European Parliament v. Council C-540/03 (June 2006)→
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.
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).
HOWEVER, three Major Consequences:
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”
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.
Chakroun C-578/08 (March 2010)→
“...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”.
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.
The External Dimension of Civic Integration:
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!
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
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)
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
A language test as a precondition for spousal reunification was introduced in 2007 → Section 30(1) No. 2 of the Residence Act(AufenthG), incoming spouses must be able to demonstrate basic knowledge of the German language (level A1 CEFR) to be granted a residence permit for the purpose of family reunification – transposition of the Directive 2003/86 on the right of family reunification
Inspired also by the Dutch Model! → BUT NO knowledge on society (civic integration)
Personal Scope: exempt from taking the test: highly qualified workers and citizens of the EU/EEA, Switzerland, Australia, Israel, Japan, Canada, South Korea, New Zealand, the US, Andorra, Honduras, Monaco and San Marino!! – to encourage immigration of these nationals to the country!
The Internal Dimension of Civic Integration:
→ 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.
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).
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.
→ 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.
→ civic orientation course 45 hours - German legal system, history and culture, including the principles of the rule of law, equal treatment, tolerance and religious freedom – development of a ‘positive attitude’ and ‘identification’ with the German state.
→ A uniform, standardised (mandatory) test on civic knowledge since January 2009 (25 multiple-choice questions)
Are the member states completely ‘FREE’ in the use of civic integration measures and conditions now falling within the scope of European immigration law?
Member states’ actions (especially those falling within the scope of EU immigration law) are subject to the supervision carried out by the European Commission and the judicial control and interpretation provided by the Court of Justice
By inserting integration measures and conditions into some of the articles of Directives 2003/109 and 2003/86, member states’ action must now not only comply with the objectives and provisions stipulated in the Directives, but also with the general principles of EU law, such as that of proportionality, non-discrimination and fundamental rights
4. Testing ‘Integration’: Proportionality and Non-Discrimination
→ ‘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?
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!
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
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’