How does the Dutch integration exam fit into a
common EU asylum and immigration policy?
An analysis on the current status of the Dutch integration exam within the
framework of the EU
Talitha Korsmit
Studentnumber: 10593098 Mastertrack: European Union law
10 ECTS
Supervisor: Mw. Prof. dr. A.A.M. Schrauwen Acknowledgements
I cannot thank enough, my supervisor Mrs. Schrauwen, for offering me continuous guidance, new insights and useful advice during the process of writing this thesis. I very much appreciate the time and effort she spent on me and my thesis.
I should also thank my professors at the University of Amsterdam for providing such an excellent learning environment. Without the excellent teachings at this university I would have never discovered my passion for migration law.
Thanks are in order for my friends. For keeping me motivated when I felt like I was never going to graduate. For whisking me away for much needed breaks and for listening to me going on and on about my thesis.
And finally, my mother Anita, my father Pieter and my sister Melissa. Thank you for always believing in me. For leaving me messages expressing how proud you are, for always picking up the phone when I wanted to talk about the progress I was or wasn’t making. Without your continuous love and support I would not be the person that I am today. Thank you for everything.
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Table of Content
1. Introduction ... 2
1.1 History and background ... 2
1.2 Problem analysis ... 4
1.3 Research goals ... 5
1.4 Social and scientific relevance ... 5
2. Turkish Association Agreement ... 7
2.1 The Turkish Association Agreement ... 7
2.2 The judgement by the Centrale Raad van Beroep ... 8
2.3 After the judgement ... 10
3. Long-term residents ... 13
3.1 The Long-term residents Directive ... 13
3.2 Case C-579/13 before the Centrale Raad van Beroep ... 14
3.3 The Opinion by the Advocate General ... 16
3.4 Judgment by the Court of Justice ... 17
3.5 Implications of the Judgement in case C-579/13... 18
4. Family reunification ... 21
4.1 The Family Reunification Directive and the Wet inburgering buitenland ... 21
4.2 The European Commission ... 22
4.3 The case K and A v. Minister van Buitenlandse Zaken ... 24
4.4 Opinion AG in case C-153/14 ... 25
4.5 Conclusion... 28
5. Conclusion ... 30
5.1 The compatibility of the integration exam ... 30
5.2 The normative basis for the Dutch integration exam ... 32
5.3 Final thoughts ... 35
2 1. Introduction
1.1 History and background
The Netherlands have for long been considered a liberal country which embraced its multicultural build up. The first shift from a ‘ethnic minorities policy’ to an ‘integration policy’ happened in the early 1990s.1 The need for so-called newcomers to integrate in society was felt by politicians, among whom Frits Bolkestein, who said that ‘Islam was a threat to liberal democracy and a hindrance for integration of immigrants’. The debate that followed his statement and the realisation that academic results of immigrant children were low and segregation issues in terms of housing increased, was reason for a policy change.2 This resulted in the first Law on Civic Integration of Newcomers which entered into force in 1998.3 The beginning of the new millennium politically speaking embarked a change in the general public consensus towards the need for further integration.4 Rita Verdonk, a conservative liberal minister of foreigner affairs and integration, launched stricter revisions to the 1998 law. The new version included an obligation to pass the exam and failure resulted in a fine and a refusal of a permanent residence permit. Participants were to choose a method of preparation for the exam themselves and to be financially responsible for whichever course they decided to take. The latter rule was removed under a new government, however it was later reinstalled by the Rutte I government as from the first of January 2013.5
The methods of testing integration has also changed significantly over the course of almost two decades. Before 2003 an integration interview was conducted which focussed on conversation skills rather than knowledge of the Dutch state or society. The interview was later replaced by a naturalisation test which was in place until 2007, these tests included questions on Dutch society and the content was secret leaving applicants little to study with.
1 The ethnic minorities policy was established in 1983, after politicians accepted that newcomers, who came to
the Netherlands temporarily to work, were going to stay. The policy aimed towards certain groups of immigrants and it served as a welfare program in three domains namely, legal-political, socio-economic and cultural domains. Through this policy these minorities were supposed to integrate themselves for example by giving them rights to vote and by making naturalisation easier.
When politicians in the late eighties and early nineties realised that the ethnic minorities policy was not working they developed an integration policy. This new policy emphasised the Dutch language courses, social orientation and vocational training through mainstream services. The integration policy introduced fines for not making attendance requirements. The ethnic minorities policy had a more laissez-faire approach to integration than the integration policy which put far more emphasis on immigrants forming a functioning part of Dutch society.
E. Vasta, 'From ethnic minorities to ethnic majority policy: Multiculturalism and the shift to assimilationism in the Netherlands' [2007] Ethnic and Racial Studies 713-740
2 Ibid. p. 718
3 S. Bonjour, 'Governing diversity: Dutch political parties' preference on the role of the state in civic integration
policies' [2013] Citizenship studies 837-851 p. 840
4 R. van Oers, B.de Hart, K. Groenendijk, 'Country report: The Netherlands' [2013] EUDO Citizenship
Observatory 1-50 p.1
5 S. Bonjour, 'Governing diversity: Dutch political parties' preference on the role of the state in civic integration
3
After 2007 an integration exam was introduced, for the Societal knowledge part of the exam a curriculum was published helping applicants to study for the exam. Apart from content, the changes have included a more elaborate preparation required from applicants and it has proven to be more costly for applicants, the interviews were free, the nationalisation test amounted to 260 euros whereas the current integration exams costs approximately 5300 euros including costs for preparation.6
The reasoning behind the laws on integration has however not changed, the general idea is that in order for newcomers and ‘old comers’ to be able to settle into society, they must fulfil certain integration requirements which are met by everyone living in the Dutch society. Being able to speak Dutch at a certain level and have some notion of Dutch culture and history is perceived necessary to achieve this goal. Every citizen should be able to participate in Dutch society and integration is a means to this end.7 In fact former Minister Verdonk would frequently refer to the acquisition of Dutch nationality as the “first prize”.8
Also, on an European level the Netherlands have become more proactive in achieving a higher integration standard for newcomers. The Dutch government has given expression of their goal to install or keep installed integration requirements for immigrants who received their right to reside in the Netherlands from European Union regulations. In a letter from Minister Leers to the president of the Lower House he expressed his desire to mobilise an alliance within the European Union to reform certain regulations as to among other reforms to enlarge the possibilities to impose integration measures, including in the Turkish Association Agreement and the family reunification Directive.9
Staff members of immigration organisations were interviewed in 2006, this was during the naturalisation test period, on the level of integration perceived by them. In general they felt like the level of Dutch and knowledge of the Netherlands had improved. One of the interviewed said that it forced people to learn better Dutch.10 This thus proves that the goal of the Dutch government to have people integrate into society was helped to be achieved by the test. Although this is not necessarily proven true for all groups of people whom the government wishes to better integrate into society such as the elderly, women in disadvantaged positions, people with limited or no educational background and refugees. The test formed an extra barrier for these groups who lacked time and funds to take the test,
6 R. van Oers, B.de Hart, K. Groenendijk, 'Country report: The Netherlands' [2013] EUDO Citizenship
Observatory 1-50 p.27
7 TK 33086 (3): 16 November 2011
8 R. van Oers, B.de Hart, K. Groenendijk, 'Country report: The Netherlands' [2013] EUDO Citizenship
Observatory 1-50 p. 13
9 TK 30573 (61): 22 December 2010
10 R. van Oers, Deserving Citizenship Citizenship test in Germany, the Netherlands and the United Kingdom (1st,
4
this has not been improved since the introduction of the integration exam. A fear of not being able to pass the exam, a lack of time and no child care facilities are some of the reasons why this already disadvantaged group will not even attempt to take the exam, thus never fully integrate into society.11 The exam will for some groups be an extra motivation to learn the language and pass the exam, however this is mainly a group who have already shown significant signs of integration into Dutch society. The other group that is already in a disadvantaged position are unlikely to take the exam or pass it if they decide to take it.
Another problem is the reasoning behind an integration exam in general, the majority of people willing to naturalise or willing to receive a residency status like the long-term resident status have already shown that they are willing to integrate into society.12 The reasoning also includes the problems with defining a culture within a society, the presumption is based on one homogeneous culture entrenched in one society. It can be argued that a test does not result to a person ‘belonging’ to the new home country. What helps the sense of ‘belonging’ is being an actual part of society. Which in turn means being integrated into society. A test than forms an obstacle which feels as though one doesn’t belong to a country by just functioning in this society but there needs to be an exam in order to prove that its subject belongs to this society.13 Since it was already established that the people willing to take part in the integration exam were people who were already integrated into society the integration exam seems to be counterproductive to achieve its goal.
1.2 Problem analysis
Almost every country requires some form of integration from whoever chooses to settle and live in their country. However, with the ever-growing influence of international law, European Union law specifically, member states are required to adjust their internal laws concerning amongst others integration measurement to standards set by the European Union. With judgements rendered by the Court of Justice it has become apparent that not everyone may be required to pass integration exams, for example citizens of other member states do not have this obligation. But what does the fact that a Turkish worker comes to the Netherlands to work or start a company mean for his integration? May he be required to pass an integration test? Or, does he have specific rights related to his status as a Turkish national because of treaties between the EU and Turkey? This thesis will discuss the implications of EU law within the Dutch integration requirements. It will concern the specific issues regarding Turkish nationals, people who have come to the Netherland for family reunification and long
11 R. van Oers, Deserving Citizenship Citizenship test in Germany, the Netherlands and the United Kingdom (1st,
Wolf legal publishers, Tilburg 2013) 166-174
12 D. Kochenov, 'Mevrouw de Jong gaat eten: EU citizenship and the culture of prejudice' [2011] RSCAS 1-22 p.
7
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term residents. The discussion will center around the question “Is an integration exam
compatible with the Turkish Association Agreement, the Long-term residents Directive and the Family Reunification Directive or does it form an unjustified extra condition to entry? If it is compatible, in what form is an integration exam allowed?”
The second chapter of this thesis will discuss integration requirements for Turkish nationals, since Turkish people have a special status with the European Union because of the Turkish Association Agreement, and I want to establish whether they also receive differential treatment when it comes to integration requirements. If it is not allowed to require them to pass an integration exam, is it then possible to have them be subject to different kinds of integration measures? A second question to answer in this chapter will be how standstill articles have influenced integration requirements? Does an integration exam form a new obstacle? A second group of third country nationals who may deserve special treatment in an EU member state is those who reside in the Netherlands with a status derived from the long term residents agreement. In the third chapter I will discuss their situation. In this chapter I will establish whether the requirement to pass an integration exam is allowed under EU law, specifically under the Long-term residents Directive. And if so, under what conditions? A third group I will discuss in the fourth chapter is a group that resides in the Netherlands on the basis of the family reunification directive. Here I will discuss whether it is allowed for them to be required to take an integration exam while they are planning to come to the Netherlands. This would be an integration exam taken in their country of origin as a condition before entry. I will also discuss if requiring an integration exam after they have reunited with their family members in the Netherlands falls within what is allowed under the Family reunification Directive.
1.3 Research goals
My goal with this thesis is to analyze if and under what circumstances an integration exam is allowed for people who derive their resident status from EU law. I will compare CJEU case law with existing Dutch law concerning integration requirements. In support of my analysis I will also use EU primary and secondary law, Dutch laws, judgments by Dutch courts and scientific articles. Moreover, I will make an assessment, based on the comparison on the normative basis of the integration exam.
1.4 Social and scientific relevance
This research is relevant because as of lately there have been some CJEU judgements and Advocate Generals’ Opinions regarding this subject. It is important to see what these opinions and judgements will mean for the future of integration exams in the Netherlands specifically, but also for other European member states. The social context in this regard is
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also important. There seems to be a growing social consensus that in order to function in society one must be fully integrated, thereby in some form enforcing a need to study the society’s culture to be able to fully belong to a society, regardless of one’s social background or current status as an individual in the Netherlands.14
7 2. Turkish Association Agreement
When the Dutch government was working on the draft version of the “wet inburgering”15 there were several hearings, advices and the like regarding who would be subject to the obligation to integrate. One of the groups targeted by the law were Turkish nationals who were working in the Netherlands. This is a rather interesting group, given that they have a special status within the EU, due to agreements between Turkey and the European Union. It took until a judgement rendered by the Centrale Raad van Beroep (hereinafter: Centrale Raad, the Court), one of the high courts in administrative matters, that this particular group was excluded from the obligation to take the integration exam.16 The now following chapter will discuss this group, their special status and the consequences regarding integration requirements after the aforementioned judgement.
2.1 The Turkish Association Agreement
The Turkish Association agreement (1963), the Additional protocol (1971) and decision 1/80 of the Association Council have given Turkish nationals a set of rights to prepare Turkey for official candidateship of the now European Union. The preamble of the Association Agreement clearly states the object and purpose of the agreement, namely to establish a closer bond between the EU and Turkey while improving general living standards for Turkish citizens and providing aid in increasing Turkish economy so it may reach the standard achieved by member states of the EU. The Association Agreement mainly focusses on economic rights for Turkish workers working in the EU. Turkish workers gain rights in a member state when duly belonging to the member states’ work force. The longer they belong to the workforce of a member states the more rights they gain.17 Their family members who have been authorized to join them are also given rights to respond to any offer of employment which entitle them to work in a member state after having legally resided in a member state for 3 years. Children of Turkish workers who have completed a course of vocational training in the respective member state may respond to any offer of legal employment provided that their parent(s) have been duly part of the member states’ workforce for a minimum of 3 years. 18 An important article of decision 1/80 is article 10 sub 1 which provides an anti-discrimination clause on the basis of nationality. It reads:
The Member States of the Community shall as regards remuneration and other conditions of work grant Turkish workers duly registered as belonging to their labour forces treatment involving no discrimination on the basis of nationality between them and Community workers.
15 Law on integration
16 CRvB 16 August 2011, ECLI:NL:CRVB:2011:BR4954 17 Article 6 (1) Decision 1/80
8
This article is in particular relevant for this study because it basically grants Turkish workers the same conditions for working in a member state as nationals of an EU member state, who are not required to pass an integration exam in order to work and reside in the Netherlands. Article 13 of decision 1/80 provides for a standstill clause. It states:
The Member States of the Community and Turkey may not introduce new restrictions on the conditions of access to employment applicable to workers and members of their families legally resident and employed in their respective territories.
If the object and purpose of the Association agreement and its following protocols and decisions are to have Turkey join the European Union in the end, it is understandable to have installed standstill provisions. When Turkey does join the EU Turkish nationals will enjoy all rights provided by the Treaties of the Union including free movement rights. It would be rather strange if the original documents give Turkish workers a certain set of rights which can be limited as times passes if the purpose of these agreements is to have Turkey join the Union. Another important standstill provision is article 41 of the Additional protocol which forbids new restrictions on the freedom of establishment and the freedom to provide services. Standstill provisions thus provide for a means of protection for Turkish workers, giving them basic rights that they can rely on without the possibility for member states to restrict their rights. The former paragraphs discussed the rights of Turkish nationals, specifically Turkish workers and their family members. The Netherlands have for some time made Turkish nationals subject to a requirement of passing an integration exam. The following paragraph will discuss a recent judgement by the Dutch Centrale Raad van Beroep (one of the High courts in administrative matters) in regards to integration examination of Turkish nationals.
2.2 The judgement by the Centrale Raad van Beroep
The case before the Centrale Raad van Beroep concerned four individuals with the Turkish nationality.19 All four individuals had received a decision by their municipalities that they were required to pass an integration exam before a set date. In a joined hearing they pleaded that they could not be held subject to the requirement of passing an integration exam because of their status as Turkish workers or respectively their status of family members of a Turkish worker, in any case residing legally in the Netherlands. They relied on provisions regarding equal treatment of EU nationals and Turkish nationals.20 Furthermore they relied on the standstill provisions of article 41 sub 1 Additional protocol and article 13 Decision 1/80. They stated that because of these provisions they fell within the exemption of then article 5 sub 2 d
19 CRvB 16 augustus 2011, ECLI:NL:CRVB:2011:BR4959
9
of the Wet Inburgering.21 The lower Dutch administrative courts in all cases decided in favor of the Turkish nationals on the basis of several judgements by the European Court of Justice.22 The municipalities appealed these judgements based on five reasons. First of all they stated that the right to gainful employment and the right to reside for Turkish nationals was not influenced by making them subject to the integration exam, especially in terms of the rights for equal pay and labour conditions, within the meaning of article 10 sub 1 decision 1/80. Second, the requirement of passing the integration exam is not related to nationality, the Wet inburgering and its regulations are based on objective grounds. Third, the fact that nationals of member states of the Union are not subject to the requirement of passing an integration exam follows from EU law, specifically the right to free movement of persons within the Union. Turkish nationals do not have a right to free movement equal to that of Union nationals. Their rights are limited. The fourth reason provided is that the standstill provisions do not apply here since the rules relating to the integration exam do not aim to limit the freedom of establishment, freedom of service or access to the workforce of the Netherlands nor do they limit the right to reside there. Finally, being subject to the integration exam might have positive consequences for Turkish nationals because it will make it easier for them to integrate. It would be counter intuitive if the Turkish Association agreement would not allow for that.23 In regards to the qualification of the standstill clauses of article 41 Additional protocol and article 13 decision 1/80 the Centrale Raad van Beroep refers to the Court of Justice’s rulings in the Abatay case and the Sahin case.24 The Court of justice has stated that both articles serve the same purpose namely to create favorable conditions aimed towards achieving freedom of movement of workers, freedom of establishment and freedom of services similar to the rights of EU nationals and to make sure that these right are not limited.25 The requirement of integration was founded in the wet Inburgering, which is dated 1 January 2007, well after the Additional protocol and decision 1/80. Furthermore, the Court of Justice has given the standstill provisions from article 41 Additional protocol and article 13 decision 1/80 direct effect, meaning that individuals may directly rely on them before national courts.26 It was then for the court to decide whether the integration requirement formed a new obstacle or limitation within the meaning of the standstill provisions. It first recalls that
21 CRvB 16 augustus 2011, ECLI:NL:CRVB:2011:BR4959 para. 3: This exemption limits the application of civic
integration to those people who may not be subject to such a measure based on treaties or decisions of international organizations
22 CJEU 21 October 2003, joined case C-317/01 and C-369/01 (Abatay and others), CJEU 17 September 2009,
case C-242/06 (Sahin)
23 CRvB 16 augustus 2011, ECLI:NL:CRVB:2011:BR4959, para. 5.1 and 5.2
24 CJEU 21 October 2003, joined cases C-317/01 and C-369/01 (Abatay and others), CJEU 17 September 2009,
case C-242/06 (Sahin)
25 CRvB 16 augustus 2011, ECLI:NL:CRVB:2011:BR4959 para. 7.1.1
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according to the Court of Justice the right to legally work in a member state implies a right to residence. It follows that requiring additional requirements to obtain a right of residence forms an obstacle within the meaning of the standstill provisions. The law, Wet inburgering, does not only establish a requirement to pass an integration exam it also encompasses a fine for failing to meet set requirement. The Centrale Raad van Beroep considers this a new obstacle for Turkish workers, which is not allowed under the standstill provisions of article 41 Additional protocol and article 13 Decision 1/80.27 The Centrale Raad van Beroep did not see the purpose of asking preliminary questions to the Court of Justice stating that the matter was an acte éclairé.28
2.3 After the judgement
The result of this judgement by the Centrale Raad van Beroep was as mentioned before the end of the requirement of passing the integration exam for Turkish nationals since it was incompatible with the Turkish Association Agreement, the Additional protocol and Decision 1/80. Was this surprising to the Dutch government? It should not have been, as early as in 2006 the Meijers committee already pointed out that the standstill provisions and article 9 of the Association Agreement would prohibit installing an integration requirement for Turkish nationals.29 Their note on the then proposal of the Wet Inburgering already mentioned some of the Court of Justice’s judgements regarding Turkish nationals and the Association Agreement. According to the note the judgements of the Court make clear that no additional requirements are allowed following the standstill agreements, not even if requiring Turkish nationals to pass an integration exam would benefit them too.30 In her note on the case before the Centrale Raad van Beroep, dr. de Vries writes that she does see possibilities for integration requirement for Turkish nationals. For this to be compatible with the Association Agreement the requirement should be affordable and the exam and courses should be designed in a way that they are easily combined with day to day working life. An integration exam and the period prior to the exam for preparation should not limit the applicants access to gainful employment which is the object and purpose of the Association Agreement. If it is feasible to stay gainfully employed whilst taking the exam and preparing for it, the civic integration measure, would not necessarily form an unjustified obstacle, according to de Vries.31 Additionally possible fines must not be as high as they currently are and the
27 CRvB 16 augustus 2011, ECLI:NL:CRVB:2011:BR4959 para. 7.1.4 – 7.1.10 28 CRvB 16 augustus 2011, ECLI:NL:CRVB:2011:BR4959 para. 7.3
29 The Meijers committee: standing committee of experts on International Immigration, Refugee and Criminal
law < http://www.commissie-meijers.nl>
30 Meijers committee: Commentaar op de Wet inburgering, CM061 23 januari 2006, <
http://www.commissie-meijers.nl/sites/all/files/cm0601_commentaar_wet_inburgering_23jan06.pdf> p.5
31 K.M. de Vries, Note with CRvB 16 augustus 2011, ECLI:NL:CRVB:2011:BR4959, migratieweb ve11001909, para
11
requirement should be limited in time meaning it should not take years to fulfil the requirement. Because the integration requirement is expensive, does require a long term investment and the fines are considered high, for Turkish nationals this requirement is an obstacle within the meaning of the standstill provisions, according to de Vries.32 In response to the judgement by the Centrale Raad van Beroep a letter was sent to parliament stating that as of that moment Turkish nationals and their family members would no longer be required to pass an integration exam. However, in the letter it is also said that the Minister in partnership with several Turkish organisations will draw up plans to establish a method to have Turkish nationals integrate better into Dutch society.33 The importance of making sure Turkish nationals are sufficiently proficient in the Dutch language and have a reasonable knowledge of Dutch culture was stressed in a document responding to MP Van Klaveren’s submitted questions to the Minister regarding the judgement. The Minister writes that the government will put effort into changing the Association Agreement between the European Union and Turkey with the aim of making it possible to make Turkish nationals subject to integration requirements.34 As of yet, there have not been any initiatives to have Turkish nationals fulfil some kind of integration measure.35 If dr. de Vries’ reasoning is followed than it would not be completely unthinkable that any such measures would be installed in the near future. However I believe that determining what sort of measures would be allowed under the Turkish Association Agreement may prove to be difficult. Since the integration exam is considered a new limitation within the meaning of the standstill provisions, it is clear that measures cannot take the form of an exam. The only way the exam could be applied is perhaps when there are no consequences for failing or for failing to partake in the examination. The question is than, whether the exam can then still be considered an exam. It would make more sense if it would take the form of a non-mandatory course of some sort. The fact that these Turkish nationals are already part of the workforce of the Netherlands already point to some form of integration, it is not made clear how an exam would in that sense add anything to their level of integration. Lastly, I should mention a recent judgement by the Court of Justice in the case of Naime Dogan which considered family reunification of a Turkish woman with her husband who owned a company in Germany.36 Here the Court also decided that the standstill provision of article 41 (1) precluded a member state from requiring a person coming to that member state from proving language proficiency prior to reuniting
32 K.M. de Vries, Note with CRvB 16 augustus 2011, ECLI:NL:CRVB:2011:BR4959, migratieweb ve11001909, para
4
33TK 31 143, Vergaderjaar 2011-2012, nr. 89 34 TK, vergaderjaar 2011-2012, aanhangsel nr. 99
35 At the moment of writing this thesis I was unable to find any such measures, also the Association Agreement
with Turkey has not been changed to make integration requirements possible.
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with their respective family member. This case concerned an obstacle prior to entry to a member states, which is different from an integration exam for legally residing Turkish nationals. Failure to integrate prior to arriving in the member state would lead to a refusal of a residence permit, which goes further than the fine imposed for not fulfilling the obligation to pass the exam when already in possession of legal residency. Although Turkish nationals in the Netherlands do not have to fulfil an obligation to take an integration exam abroad following the Wet inburgering buitenland, this judgment reinforces the assumption that also family members of Turkish people belonging to the Dutch workforce should be precluded from an obligation to take part in an integration exam.
13 3. Long-term residents
Third country nationals who have legally resided in an EU member state for a minimum of five years are eligible for a long-term resident status.37 To enjoy the rights set in the Directive the third country national must have stable and regular resources, enough to not have to rely on the social assistance system of the Member state and enough to provide for his or her family, and the third country national must have health insurance.38 Furthermore, article 5 section 2 of the Directive reads:
Member States may require third-country nationals to comply with integration conditions, in accordance with national law.
This chapter will discuss the integration exam found in the Wet Inburgering with regards to long-term residents.
3.1 The Long-term residents Directive
The preamble of the Long-term residents Directive provides the main objective for the Directive, namely that it aims to grant third country nationals who have legally resided in a Member State for a certain number of years a set of rights similar to the rights granted to citizens of the European Union.39 It further reads that the main criterion for acquiring long-term resident status is the duration of time a person has legally resided in the member state.40 Acquiring the long-term resident status has many benefits for the persons concerned most notably the right to equal treatment and further protection against expulsion.41 Furthermore article 14 grants those with this status rights that are similar, although less extensive, to the free movement rights European Union citizens have. For acquiring this status third country nationals must provide proof that they have sufficient resources and health insurance so that they do not become a burden to the Member States’ social security system.42 Article 5 section 2 does provide for an extra condition, namely that the member state may require third country nationals to comply with integration conditions. On the basis of this article the Dutch government requires third country nationals who want to have long-term resident status to pass the integration exam. In the explanatory memorandum of the Wet Inburgering the Minister reads in article 5 that member states are allowed to require third
37 Directive 2003/109/EC of November 2003 38 Article 5 (1) Directive 2003/109/EC 39 Ibid. Section 2 preamble
40 Ibid. Section 6 preamble 41 Ibid. articles 11 en 12 42 Ibid. article 5
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country nationals to take an integration exam before acquiring long-term resident status. Third country nationals who have acquired long-term resident status in another member state are an exception to this rule, according to the Directive, they may only be asked to take language courses. This language course is in the Directive described as an integration measure rather than a integration condition.43 However, when someone with long-term resident status in another member state wishes to receive this status in the Netherlands he or she will be required to take the integration exam.44 The latter rule was discussed by the Meyers committee, where they write that following the line of reasoning behind article 23 of the Directive, this does not allow for an extra integration exam when they have already fulfilled their integration requirement in another state.45 As of yet third country nationals who wish to acquire permanent resident status in the Netherlands are required to take an integration exam, if they do not do so they must pay a fine of up to 1250 euros.46 However, the situation regarding third country nationals with permanent resident status in the Netherlands might change sometime in the near future. In court proceedings before the Centrale Raad van Beroep, this Dutch Court has asked for a preliminary ruling by the European Court of Justice regarding the integration exam and this particular group of third country nationals. On the 28th of January 2015, Advocate General M. Szpunar has published his opinion awaiting procedures before the Luxembourg court. On June fourth of 2015 the Court ruled the matter. The following sections will discuss the original case before the Dutch Court, the opinion by the Advocate General and the ruling by the Court of Justice.
3.2 Case C-579/13 before the Centrale Raad van Beroep
The issue discussed in the opinion by the Advocate General and the ruling by the Court of Justice appeared before the Centrale Raad van Beroep in the case P and S versus Commissie Sociale Zekerheid Breda en College van Burgemeester en wethouders van de gemeente Amstelveen.47 The case concerns an individual “P” who has the American nationality and “S” who has the New Zealand nationality.48 Both parties had received notification from their respective municipalities that they were required to take the integration exam based on the Wet Inburgering.49 Both “P” and “S” have already received their long-term resident permit, and because of this they claim that they should be treated equally to Dutch
43 Article 15 (3) Directive 2003/109/EC
44 Tweede Kamer, Memorie van toelichting, parliamentary year 2005-2006, 30308, nr. 3 p. 45
45 Meijers committee: Commentaar op de Wet inburgering, CM061 23 januari 2006, <
http://www.commissie-meijers.nl/sites/all/files/cm0601_commentaar_wet_inburgering_23jan06.pdf> p.6
46 Article 34 Wet Inburgering
47 CRvB 13 November 2014, ECLI:NL:CRVB:2013:2269
48 “S” who is originally from former Yugoslavia might also have the Croatian nationality, however she choose
not to disclose this information. If she does have the Croatian nationality she would not have to take the integration exam since that would mean she also has European citizenship.
15
citizens. During the parliamentary discussions on the proposal for the Wet inburgering, it was established that although long-term resident permits which were already received by third country nationals could not be revoked because the integration exam was not yet taken, this did not take away the general requirement of having to take the exam.50 It follows from the judgement of the Centrale Raad van Beroep that the Courts struggles to define what sort of integration conditions are allowed under the long-term residents Directive. The Centrale Raad van Beroep starts with the assumption that the integration exam falls within the description of integration measures according to national law, however it follows from the preamble of the long-term residents Directive that granting long-term resident status must give subjects a similar legal position to citizens of the Union. Before becoming eligible for long-term resident status those who wish to receive that status must have resided in that member state for a minimum of five years. This term can be qualified as an integration period, according to the Court. Once the long-term resident status is received, the person who has acquired that status must be considered sufficiently integrated. Given that the case considers two individuals who have already acquired long-term resident status, the Court questions whether it is then acceptable to require them to take the integration exam and be subject to a fine when they decline to take it.51 Also, since the objective of the Directive is to grant third country nationals a legal status similar to that of European Union citizens, the Centrale Raad wonders if taking the integration exam can be required because there is no such requirement for Union citizens. The Court recalls that even if measures in national law are allowed, those measures may not take away the useful effect of the Directive.52 It follows from this argument that even if the integration exam is prescribed by national law, it may not form an unreasonable obstacle to obtaining long-term resident status. However, the Court states that the Directive does not say that an integration exam may not be required after receiving long-term resident status. Lastly, the Centrale Raad questions whether article 11 of the Directive, regarding equal treatment, stands in the way of an integration exam as prescribed by the Wet Inburgering. The Centrale Raad decided to stay procedures and turn to the Court of Justice to answer the following preliminary questions:
(1) Must the aim and scope of Directive 2003/109/EC, or of Article 5(2) and/or of Article 11(1) thereof, be interpreted as meaning that the imposition of the civic integration obligation, under national law, on third-country nationals who have acquired long-term resident status, with penalties in the form of a system of fines, cannot be reconciled therewith?
50 Ibid, para. 5.1 – 5.2
51 CRvB 13 November 2014, ECLI:NL:CRVB:2013:2269 para. 6.2 – 6.5
52 Ibid, 6.6- 6.8: The Centrale Raad refers to two cases: Court of Justice EU, 24 April 2012, C-571/10 (Kamberaj)
16
(2) In answering the first question, is it relevant whether the civic integration obligation was imposed before long-term resident status was granted?53
3.3 The Opinion by the Advocate General
In his Opinion the Advocate General starts by offering an explanation about the difference between integration measures and integration conditions. Article 5 (2) of the Directive allows for integration conditions whereas article 15 (3) only allows for integration measures. In determining whether in which form either is allowed, the Advocate General first determines the object and purpose of the long-term residents Directive. The Directive grants those who have spent a significant amount of time in a member state a more durable status, a status which will contribute to more social and economic cohesion within the Union if granted on similar terms. The Advocate General does not think that integration activities asked from long-term residents actually is against the object and purpose of the Directive.54 Integration measures are according to the Advocate General not excluded from the Directive, since their goal is encourage long-term residents to take part in the social and economic environment of the member state. This is true both for long-term residents who have received their status in another member state and those who have only resided in one member state.55 It is therefore that the difference between integration measures and integration conditions is the determining factor in this case. Not fulfilling the integration exam does not lead to loss of long-term resident status, it will however lead to a fine. This fact could mean that the integration exam is an integration measure and not an integration condition. It does not matter whether this status was granted before the integration exam or after.56 Since the integration measure follows from EU law, the principle of proportionality plays an important role in determining whether the exam is an appropriate measure for fulfilling the object and purpose of the Directive. Persons who have been living and working, thus being a part of the social and economic environment of a member state, have naturally been integrated in one form or another. Being part of that environment is actually the object and purpose of the Directive. The obligation to take and pass the integration exam, according to the Advocate General, is not an appropriate measure if it forms the only way of proving the level of integration obtained by the people concerned.57 Establishing a level of integration must be determined on the basis of an individual measure and must not rely solely on a predetermined level in an integration exam. That is not to say, at least according to the
53 Court of Justice EU, 4 June 2015, C-579-13 (P en S v. Commissie Sociale Zekerheid Breda en College van
Burgemeester en Wethouders van de gemeente Amstelveen)
54 Opinion Advocate General M. Szpunar, 28 January 2015, C-579-13 (P en S v. Commissie Sociale Zekerheid
Breda en College van Burgemeester en Wethouders van de gemeente Amstelveen) para. 38-43
55 Ibid. para. 49 - 50 56 Ibid. para 56 - 59 57 Ibid. para 89 - 91
17
Advocate General, that there cannot be an obligation in the form of an integration measure. However, this obligation may not take the form of an integration exam.58
Following this analysis, the Advocate General examined the proportionality of the fine imposed for not passing or taking the integration exam. He holds that the only appropriate monetary fine that may be imposed is a restitution of costs incurred by the organization responsible for the exam. Even if a fine is imposed, a fact not completely contested by the Advocate General, that fine should be in proportion to the exam failed. Either way, the maximum fine that could possibly be imposed in the Netherlands amounts to 1000 Euros, which is, according to the Advocate General, too high.59
In response of the Opinion, a Dutch MP formally asked questions to the responsible Minister Asscher. In his response he acknowledged having read the opinion but stated that he did not agree. His response was that following experiences with the integration exam, the results are that people have less difficulty forming part of the social and economic environment of the Netherlands and that this proves the integration exam is an effective measure. Since the Opinion is not binding, the Minister writes to await judgement by the Court of Justice.60 3.4 Judgment by the Court of Justice
On June fourth of 2015 the Court of Justice released its judgement on the case. The Court limits itself to the facts concerning the individuals, meaning that the judgement considers applicants who belong to a category of applicants like the applicants at issue who were legally residing in the Netherlands before entry into force of the wet inburgering and have applied for long-term resident status between 1 January 2007 and 1 January 2010. The integration exam, in these cases, does not form a condition for acquiring or maintaining a long-term resident status but failure to fulfil this requirement may lead to a fine.61 According to the Court article 5 (2) of the Directive concerns integration conditions which are asked to fulfil prior to granting of the long-term resident status.62 The Court notes that since the civic integration obligation in the case of this group of individuals does not form a condition to acquire or maintain long-term resident status it thus does not fall within the meaning of article 5 (2) of the Directive. Furthermore, that article does not require or preclude integration conditions, such as the integration exam in this case, after acquiring long-term resident
58 Opinion Advocate General M. Szpunar, 28 January 2015, C-579-13 (P en S v. Commissie Sociale Zekerheid
Breda en College van Burgemeester en Wethouders van de gemeente Amstelveen) para. 92 - 96
59 Ibid., 98 - 106
60 Letter to the President of the Second Chamber of parliament, Concerning Kamervraag/vragen van het lid
Azmani, 30 January 2015
61 Court of Justice, 4 June 2015, Case C-579/13 (P, S v. Commissie Sociale Zekerheid Breda, College van
Burgemeester en Wethouders van de gemeente Amstelveen) para. 29 -31
18
status.63 The Court than shortly discusses an argument made by the applicants concerning article 11 (1) of the Directive, they claim difference in treatment as regards to third country nationals with nationals of the Netherlands who do not have to take integration exam. The Court says that the situation of nationals versus third country nationals is not comparable. Nationals will most probably have the knowledge and proficiency that is tested in the integration exam whereas that is not the case for third country nationals.64 The integration may not be applied in a manner which would undermine the objectives pursued by the Directive. The principal purpose, according to the Court, is following paragraphs 4, 6 and 12 of the preamble the integration of third country nationals. Knowledge of the history and culture of the member state and proficiency of language will help establish social contact between nationals and third country nationals and it will furthermore make it easier for third country nationals to have access to the labor market and vocational training in the member state. The obligation by itself, according to the Court, following the benefits of the exam described above does not undermine the objective of the Directive but it contributes to the aims pursued.65 As regards to the fines and registration fees, the Court states that these must not undermine the purpose of the Directive. Given that the fine, which amounts to 1000 euros each time the requirement is not met and the fee, amounting to 230 euros, which must be paid each time they take the exam are considered relatively high by the Court, this might have the effect of jeopardizing the objectives of the Directive.66 It is for the national Court to decide whether the exam does have the effect of jeopardizing the objectives of the Directive.67
3.5 Implications of the Judgement in case C-579/13
As written above, the Court limited itself to the particular group of third country nationals concerned in the case. This group was legally residing in the Netherlands before the entry into force of the Wet inburgering and had applied for the long-term resident status between 1 January 2007 and 1 January 2010. It thus remains unclear whether failure to fulfill the integration exam might be ground for loss of the long-term resident status or may be ground to withhold that status. According to Peers, the judgement does imply that it may be used to
63 Court of Justice, 4 June 2015, case C-579/13 (P, S v. Commissie Sociale Zekerheid Breda, College van
Burgemeester en Wethouders van de gemeente Amstelveen) para. 37 - 38
64 Ibid. para. 39 - 44 65 Ibid. para. 45 - 49 66 Ibid. para. 50 - 54 67 Ibid. para. 54
19
withhold the long-term resident status when failing to fulfill the obligation.68 I think this may be interpreted from paragraphs 34 until 36, where the Court states that”:
“Accordingly, it is clear from both the wording of that provision and its context that it allows Member States to make the acquisition of long-term resident status subject to prior fulfilment of certain integration conditions.”69
Seemingly the Court thinks that the Dutch integration exam falls within the description of
certain integration conditions. This is a different approach from that of the Advocate General
in his Opinion, he said that it is not an appropriate measure if the only method of determining a level of integration is an exam.70 The Court thus allows the exam as a condition prior to acquiring long-term resident status, which means that there are in practice three conditions for acquiring long-term resident status in the Netherlands. Having had lawful residence in the Netherlands for five years or more this person must have:
1. Stable and regular resources to maintain himself/herself and members of the family without recourse to the social assistance system
2. Sickness insurance
3. Passing the integration exam
Again, the Court did not specifically rule on this fact but it is implied. Given the fact that this judgment was only rendered very recently there have not been many responses from the academic field to the possible consequences of this case. I do believe that there is one issue specifically with this implied assessment by the Court. Not every member state has made use of article 5 (2) of the Directive, furthermore not every member state that did make use of an integration condition for applicants of long-term resident status has also made them subject to an integration exam which is required to be successfully passed. The Directive was a result of the agreements made in Tampere in 1999.71 It was part of the agreements under the heading “A common EU asylum and immigration policy”. Although it says common rather than identical, I think this precludes member states of setting more stringent conditions for acquiring long-term resident status than other member states. Even if some member states require different integration measures, the end result should be the same. Since the legislative act used was a Directive this latter point makes sense, Directives leave room for
68 S. Peers, Integration requirements for third-country nationals: the first CJEU ruling, 4 June 2015
<http://eulawanalysis.blogspot.nl/2015/06/integration-requirements-for-third.html> (accessed on 15 June 2015)
69 Court of Justice, 4 June 2015, case C-579/13 (P, S v. Commissie Sociale Zekerheid Breda, College van
Burgemeester en Wethouders van de gemeente Amstelveen) para. 37 - 38
70 Opinion Advocate General M. Szpunar, 28 January 2015, C-579-13 (P en S v. Commissie Sociale Zekerheid
Breda en College van Burgemeester en Wethouders van de gemeente Amstelveen) para 89 - 91
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discretion for member states. The fact that the Directive grants rights to third country nationals particularly in their member state of residence, it is understandable that member states are allowed some room for maneuver when applying the Directive. However, the measures used may not have the effect that the Directive is applied significantly different in various member states. Although common is not the same as uniform, and although member states do have some discretion when applying the Directive, the policies regarding asylum and immigration should not differ to the extent that there ends up being a great variety in manners Directives are applied across member states. If that were the case, aiming towards a Common EU asylum and immigration policy, would never become reality. There would be no real improvement by creating Directives like the long-term residents Directive if they are not applied in a comparable manner in all member states. Furthermore, conditions which are the same in every member state (article 5 (1) of the Directive) should be the main determining factor for acquisition of such a status. If what the Court implies here will remain to be the case, the European Union cannot speak of a common procedure anymore. The line of reasoning of the Advocate General seems to fit more appropriately with the goals of the Tampere agreement, meaning that there may be conditions but they cannot be as stringent to mean withholding of the status and an exam cannot be the only means of determining a level of integration. It seems more appropriate to have an obligation to take classes in language proficiency and culture of course at reasonable costs not to undermine the effectiveness of the Directive, rather than to require applicants to pass an exam. As of yet, the only part of the integration exam that the Dutch government will need to review are the costs involved. The judgement was clear in that the costs of the fees and fines involved undermined the effectiveness of the Directive.72 As Peers writes in his blog, this is only the first case concerning integration conditions, it may very well be that the Court might give member states more guidance as to establishing integration conditions which also contribute to a more common standard for acquiring resident statuses derived from EU law across all member states of the Union.
72 S. Peers, Integration requirements for third-country nationals: the first CJEU ruling, 4 June 2015
<http://eulawanalysis.blogspot.nl/2015/06/integration-requirements-for-third.html> (accessed on 15 June 2015)
21 4. Family reunification
Third country nationals who wish to have their nuclear family join them in a member state may make use of the family reunification Directive.73 The preamble states that having access to family life helps to create sociocultural stability facilitating the integration of third country
nationals in the member state.74 Similarly to the long-term resident Directive, the third country national who wishes to make use of the Directive, is required to comply with conditions prescribed in the Directive.75 Besides these requirements article 7 (2) gives member states the opportunity to install integration measures:
Member States may require third country nationals to comply with integration measures, in accordance with national law76
The integration measures were considered by the Dutch government as to mean that it is allowed for persons asking to be rejoined with their respective family member to be subject to a prior integration exam before entering the Netherlands.77 Accordingly, the difference between the situation with the long-term resident Directive and the family reunification Directive is that the integration measure concerned in the latter case, takes place prior to arrival in the Netherlands. The integration exam in this context has also come under increasing scrutiny. There has as of yet not been a judgement by the European Court of Justice, however the European Commission has already said that an integration exam goes further than what is prescribed by the Directive.78 This chapter will discuss the current matters and will attempt to picture a possible outcome of the ruling of the Court on Justice which is due in the near future.
4.1 The Family Reunification Directive and the Wet inburgering buitenland
The family reunification Directive, like the long-term residents Directive, followed the agreements made in Tampere in 1999. The preamble of the Directive describes family reunification as part of the right to family life established in several treaties most notably in article 8 European Convention on Human Rights. Family reunification also serves to create stability which will help the integration process, which in turn is beneficial for social and economic cohesion within the Union. The preamble than describes that the conditions for
73 Directive 2003/86/EC of 22 September 2003 74 Idem. section 4 preamble
75 Ibid. article 7
76 Ad. 1: Note that this paragraph speaks of measures rather than conditions, compare article 5 (2) of the
Long-term residents Directive.
Ad. 2: Refugees and/or family members of refugees are understandably excluded from integration measures prior to their arrival
77 TK Memorie van Toelichting, 29 700, nr. 3 p. 2 - 3
78 Wet Inburgering Buitenland in strijd met Europese Gezinsherenigingsrichtlijn, 20 december 2012,
<http://www.minbuza.nl/ecer/nieuws/2012/12/wet-inburgering-buitenland-in-strijd-met-europese-gezinsherenigingsrichtlijn.html> (visited on: 11-6-2015)
22
family reunifications should be based on common criteria. Furthermore, integration of the family members should be promoted through access to education, employment and vocational training. They should receive an independent status in particular in the case of breakups of marriages and partnerships. The goal and purpose of the Directive is the right to family reunification. This follows from the preamble but also from judgements by the Court of Justice. The Court established this fact in reference to article 7 (1)c where it said:
Furthermore, the margin for manoeuvre which the Member States are recognised as having must not be used by them in a manner which would undermine the objective of the Directive, which is to promote family reunification, and the effectiveness thereof.79
The European Commission also in its green paper on the directive repeated that the goal is to grant a right to family reunification.80
The importance of the aforementioned object and purpose of the Directive, is to establish how the Dutch integration exam fits within that object and purpose. The integration exam used in the case of family reunification is based on the law Wet inburgering buitenland. It entails that prior to receiving an entry visa, an applicant must fulfil this integration condition.81 The costs for the exam are 350 euros and are payable by the applicant.82 The integration measures as used by the Dutch government are under debate, however as of today they are still in place. It must be determined by the Court of Justice whether the exam does not undermine the object and purpose of the Directive. The European Commission has on a few occasions expressed its views on this matter. The now following section will discuss this. 4.2 The European Commission
The European Commission published its green paper on the family reunification Directive in November 2011. According to the green paper although the Directive allows member states to install integration measures, not all member states make use of this possibility. While negotiating the Directive this had been one of the more controversial articles. The member states that do use this possibility, have installed different integration measures. According to the Commission, the integration measures used must be in accordance with the principle of proportionality and subsidiarity. The member state must provide for appropriate facilities and these facilities must be accessible when the integration measure takes the form of an exam. Furthermore, member states must take into account personal circumstances of applicants.83
79 Court of Justice, 4 March 2010, case C578/08 (Chakroun) para.43
80 European Commission, Green paper on the right to family reunification, 15 November 2011 p. 2
81 Articles 14 jo. 16 (1) h Vreemdelingenwet 2000 and articles 3.71a, 3.98a and 3.98b Vreemdelingenbesluit
2000
82 Article 3.98b Vreemdelingenbesluit
23
The Commission asked the member states, NGO’s, academics etc. to comment on the following questions relating to integration measures:
Do these measures achieved the purpose of integration? How can this in practice be assessed? Which integration measures are most effective?
Would you consider it useful to further define these measures at EU level? Would you recommend pre-entry measures? If so, how can it be ensured that such measures do not lead to undue barriers for family reunification (such as disproportionate fees or requirements) and take into account individual circumstances such as age, illiteracy, disability and level of education?84
The Meijers Committee proposed not to revise the Directive but to closely supervise the correct implementation of the Directive and to start infringement procedures against member states for failing to successfully implement the Directive.85 As regards to integration measures, the Committee states that there is no indication that applicants who have passed the integration exam abroad are better integrated than other applicants. Research showed a decrease in applications for family reunification after the requirement was installed. The Committee doubts that this is compatible with the object and purpose of the Directive.86
Klaassen, Lodder and Rodrigues in their observations, write that integration measures as allowed under the Directive do not have the object to reduce the number of applications for family reunification. However the integration exam does have that result, since there are fewer applications. This is expected to become even lower since the level of the exam has been raised. Accordingly, the integration exam does not seem to be allowed in its current form under the family reunification Directive.87 They also refer to the Imran case, this case concerned third country national Imran who wanted to join her husband in the Netherlands. She was refused an entry visa for not passing the integration exam.88 The moment the Dutch court referred the case to the Court of Justice for a preliminary ruling, the Dutch authorities granted her an entry visa. The Court of Justice never ruled on the case.89 The Commission did submit written observations to the Court concerning the application of article 7 (2) in the Netherlands. It stated that the concept of entry measures, must be considered measures as
84 Ibid. p. 5
85 Meijers Committee, Reply to the Green Paper on the right to family reunification of third-country nationals living in the European Union (COM(2011) 735 final), 22 February 2012 p.2
86 Ibid. p.4
87 Klaassen, Lodder and Rodrigues, Groenboek gezinshereniging vraagt waar het heen moet, geen herziening nodig wel correcte implementatie, A&MR 2012 nr. 1, p. 9
88 Court of Justice, 10 June 2011, C155/11 (Bibi Mohammed Imran v. Minister van Buitenlandse Zaken) 89 Klaassen, Lodder and Rodrigues, Groenboek gezinshereniging vraagt waar het heen moet, geen herziening nodig wel correcte implementatie, A&MR 2012 nr. 1, p. 9
24
opposed to conditions. Applicants may not be refused family reunification for failure to pass the exam.90 The integration measures, according to the Commission, may ask from the applicant a certain commitment to show willingness to integrate.91 Integration measures should not have the effect of limiting access to family reunification and must uphold the principles of subsidiarity and proportionality.92 Accordingly, the Commission thinks that the integration exam goes beyond what the member states are allowed under the Directive. In its communication to the European parliament and the Council, the Commission repeats that member states should uphold the principle of subsidiarity and proportionality when making use of integration measures. Also, the exam may not be used as a bar to an entry visa. The Commission also thinks that integration measures in the member state are more effective than in a third country.93
The above makes clear that the European Commission does not find that the integration exam is an appropriate use of article 7 (2) of the Directive. The Dutch government has not changed its policies and still maintains that the integration exam does not go beyond what is allowed under the directive.94
4.3 The case K and A v. Minister van Buitenlandse Zaken
Since the Imran case was never judged by the Court of Justice it was only a matter of time before another case would arise. The case, now pending for the Court for preliminary ruling, concerns two individuals who were both denied to be exempted from taking the integration exam on the basis of medical grounds.95 The lower court had ruled that the integration exam as a condition for entering the Netherlands was not allowed under article 7 (2) of the Directive, it referred to the submissions by the Commission to the preliminary ruling in the case Imran. This was contested by the Staatssecretaris, since he interprets article 7 (2) as to mean that the Directive gives member states the opportunity to install integration measures. The exam, according to him, falls within the limits of this article. Since the Court has not ruled on the legality of the integration exam as such, the lower Court was wrong in determining that the exam goes beyond what is allowed under article 7 (2) of the Directive. He then suggests that the Dutch Court refers the question to the Court of Justice for a preliminary
90 European Commission, written submissions by the European Commission concerning Court of Justice
C155/11 Imran p. 11 - 12
91 Ibid. para 28 92 Ibid. para. 29 - 31
93 European Commission, Communication from the Commission to the European Parliament and the Council on guidance for application of Directive 2003/86/EC on the right to family reunification, 3 April 2014 p. 16
94 Klaassen, Lodder and Rodrigues, Groenboek gezinshereniging vraagt waar het heen moet, geen herziening nodig wel correcte implementatie, A&MR 2012 nr. 1, p. 9
25
ruling.96 Both applicants argue that the costs for the exam and the course material is not proportional to the object and purpose of the directive.97 The Dutch Court before referring the case to the Court of Justice, analyses some of the points I have already mentioned above. The Dutch Court first says that in Chakroun the Court of Justice stated that integration measures do not go beyond the limits of article 8. Secondly, when applying integration measures, the member states may not apply them when they have the result of undermining the object and purpose of the Directive. 98 The Dutch Court also mentions that the wording of article 7 (2) is different in different language versions of the Directive, which makes it difficult to determine whether it allows for integration conditions or integration measures. The Dutch Court also quotes the Commission in that the integration measures must promote integration rather than limit access to family reunification. Any integration measures must remain within the limits of proportionality and subsidiarity.99 The Dutch Court thus decides to refer the case to the Court of Justice for a preliminary ruling.
Interestingly, the Dutch government suggested a referral to the Court of Justice. This is certainly a different approach to what was used in the case of Imran. In the Imran case the Minster prevented a ruling by granting Imran an entry visa. This, in my opinion, can have two reasons. One is that the Minister is certain that the integration exam falls within the limits of article 7 (2) and wants the Court to settle this once and for all. The other possible explanation is that the Minister, having read the documents by the European Commission, has come to the realization that the course of method used by the Netherlands differs greatly from that of other member states. When the Court has decided on the matter, the Minister may be able to reevaluate the integration measures concerning family reunification and develop new integration measures that fall within the limits of article 7 (2) of the Directive.
4.4 Opinion AG in case C-153/14
The Dutch court has referred the following question to the Court:
1(a) Can the term ‘integration measures’ — contained in Article 7(2) of [the Family Reunification Directive] — be interpreted as meaning that the competent authorities of the Member States may require a member of a sponsor’s family to demonstrate that he or she has knowledge of the official language of the Member State concerned at a level corresponding to level A1 of the Common European Framework of Reference for Languages, as well as a basic knowledge of the society of that Member State, before those authorities authorise that family member’s entry and residence?
96 ABRvS 1 April 2014, ECLI:NL:RVS:2014:1204 (K en A) para. 16 t/m 17 97 Ibid. para 17.2 – 17.5
98 Ibid. para 19 – 19.3 99 Ibid. para 20 – 20.3
