International Relations and Labour Migration

International Relations and Labour Migration

THIS CHAPTER DEALS with immigration provisions in international (often bilateral) agreements between states. Such agreements may be concluded for a variety of reasons, for example to promote international trade or other forms of (economic) cooperation, to enhance diplomatic relations or to give expression to the ties stemming from a colonial past. Included in these agreements there may be a right of residence for nationals or certain categories of nationals of the Contracting States, who are thereby placed in a privileged position vis-à-vis other aliens. For the Netherlands, relevant immigration provisions are not only to be found in the agreements that it has concluded itself but also in those concluded by the EU (and its Member States) with third countries. The latter category of agreements is also discussed in this chapter.¹

Apart from aliens who benefit from international relations this chapter deals with another privileged category of immigrants, namely those admitted for the purpose of performing paid labour. Like most states, the Netherlands is willing to admit (mostly highly qualified) aliens who can compensate for shortages in the labour market and contribute to economic growth. However, the admission of labour migrants is not only a matter of national law. As seen in the previous chapter, the admission of highly qualified labour migrants is regulated at an EU level by the Blue Card Directive. Also of relevance are the European Convention on the Legal Status of Migrant Workers and the European Social Charter, which have been concluded within the framework of the Council of Europe. The latter agreement contains a provision concerning family reunification of labour migrants. Where the admission of family members is linked to the admission of labour migrants or aliens admitted under bilateral agreements, their position is also discussed in this chapter.

Over time the European Union (often together with the Member States) has concluded a large number of agreements, also known as association agreements, with third countries.² Although the relationship between the EU (and the Member States) and third countries is governed by public international law, the association agreements also form part of the EU legal order.³ As such, these agreements are capable of creating rights and obligations for the Member States (cf Art 216 (2) TFEU), as well as for individuals in relation to those Member States.⁴ Most of the existing association agreements do not create any rights of admission for third-country nationals to the EU Member States.⁵ An important exception, however, is the Association Agreement between the EEC and Turkey. This Agreement, and the decisions adopted to give it effect, is discussed below in section II.A. In addition, some potentially relevant provisions are included in the Stabilisation and Association Agreements concluded with several countries in the Western Balkans that are, along with Turkey, actual or potential candidates for membership of the EU. The latter agreements are briefly discussed in section II.B.

pursuant to Article 36 of the Protocol. A distinction can be made between the legal regime applying to the free movement of workers and that applying to the right to establishment.⁸ According to Article 41(2) of the Additional Protocol it is up to the Association Council, established pursuant to Article 6 of the Agreement, to determine the timetable for the progressive abolition of existing restrictions on the freedom of establishment. So far, however, the Association Council has not acted upon this assignment. With regard to workers, Article 36 Additional Protocol provides that the Association Council shall take the necessary measures to secure, progressively and in accordance with the principles set out in Article 12 of the Association Agreement, their free movement between the EU Member States and Turkey. The Council has adopted several decisions pursuant to this provision, of which Decision 1/80 is most relevant to the topic discussed here. Articles 6 and 7 of this decision grant Turkish workers and their family members a right of access to the labour market that is established gradually after several years of lawful employment.

The EEC-Turkey Agreement and the related instruments do not expressly grant Turkish nationals or their family members a right of entry or residence in the EU Member States. In the interpretation of the CoJ, Articles 6 and 7 of Decision 1/80 grant Turkish workers and their family members a right of residence as a corollary to the right of access to the labour market, so as not to render the latter right ineffective. However, this right of residence exists only after the Member State concerned has permitted the Turkish worker and/or his family members to enter its territory and to take up employment there. Consequently, the power of the Member States to regulate the entry and initial residence of Turkish workers and their family members is unaffected by the said provisions.⁹ Nevertheless, the legal instruments pertaining to the association with Turkey contain a number of standstill and non-discrimination clauses that are of relevance for the admission of Turkish nationals. These clauses are discussed in the following subsections, followed by a brief review of the position of family members of Turkish workers and self-employed persons.

The first paragraph of Article 41 Additional Protocol states that ‘the Contracting Parties shall refrain from introducing between themselves any new restrictions on the freedom of establishment and the freedom to provide services’. A similar standstill clause is laid down in Article 13 of Decision 1/80 with regard to the free movement of workers: the Member States may not introduce new restrictions on the conditions of access to employment applicable to workers and their family members legally resident and employed in their respective territories. According to the CoJ, these provisions prohibit the Contracting Parties from introducing new restrictions on the free movement of workers or the freedom of establishment as from the date of entry into force of the respective legal instruments (the Additional Protocol and Decision 1/80).¹⁰ The Court has held both provisions to be directly effective; Turkish nationals can consequently rely on it before the courts of the Member States.¹¹

Importantly, the standstill clauses do not, in themselves, grant Turkish nationals a right of establishment, access to the labour market or entry or residence in the Member States of the EU. The CoJ has repeatedly stressed that the provisions pertaining to the EEC-Turkey Association ‘do not encroach upon the competence retained by the Member State to regulate both the entry into their territory of Turkish nationals and the conditions under which they may take up their first employment’.¹² Nevertheless, when regulating on this matter, Member States may not adopt any rules that have the object or effect of making the establishment or employment of Turkish nationals subject to stricter conditions than those existing before the standstill clauses entered into force.¹³ In recent case law, the CoJ clarified that the scope of the standstill clauses covers not only rules relating to the exercise of an economic activity (as an employed or self-employed person), but also rules relating to the initial admission of Turkish nationals to a Member State where they intend to exercise such activity. This was decided, with regard to Article 41(1) Additional Protocol, in the case of Tum and Dari and, with regard to Article 13 Decision 1/80, in Commission v the Netherlands.¹⁴

Despite these objections, it is clear from current case law that admission criteria adopted by EU Member States may be contrary to the standstill clauses of the EEC-Turkey Association. In principle, Member States are precluded from adopting any measures that have the object or effect of making the admission of Turkish workers or self-employed persons subject to more restrictive conditions than those applying when the respective standstill clauses entered into force. Nonetheless, the CoJ has ruled that the standstill clauses allow for the enactment of new measures where such measures are also applicable to EU citizens. This is derived from Article 59 of the Additional Protocol, which provides that Turkey may not receive more favourable treatment than that granted by the EU Member States to one another under the TFEU. In the CoJ’s view, Article 59 read in conjunction with the standstill clauses implies that the admission of Turkish workers and self-employed persons may not be subject to new obligations that are disproportionate compared with those applying to EU citizens.¹⁸

Apart from the standstill clauses, the legal instruments pertaining to the EEC-Turkey Association also contain a number of provisions prohibiting discrimination between Turkish nationals and nationals of EU Member States. Article 9 of the Association Agreement contains a general clause that prohibits any kind of discrimination on the grounds of nationality within the scope of the Agreement, in accordance with the principle laid down in Article 7 EEC Treaty (now Art 18 TFEU). Additionally, Article 10 of Decision 1/80 prescribes that Member States shall not discriminate between Turkish workers and EU workers as regards remuneration and other conditions of work.²¹

It follows that conditions imposed by EU Member States for the admission of Turkish workers and persons wishing to avail themselves of the freedom of establishment must be compatible with Article 9 Association Agreement and Article 10 Decision 1/80. It is not entirely clear from the Court’s case law whether this excludes all conditions that are not also imposed on EU citizens. In any case, however, the conditions imposed on Turkish nationals may not be disproportionate compared to those imposed on EU citizens. The proportionality test applied by the CoJ in this respect appears to be strict: in Commission v the Netherlands, for example, the Court considered the charges levied on Turkish nationals to be disproportionate since the difference between these charges and those levied on EU citizens was more than minimal.²³

The non-discrimination clauses of Article 9 Association Agreement and Article 10 Decision 1/80 would consequently seem to limit the competence of Member States regarding the admission of Turkish nationals even further than the standstill clauses discussed in the previous section. Effectively, the former oblige Member States to regulate the admission of Turkish workers and self-employed persons in the same (or almost the same) way as the admission of EU citizens. As described in the previous chapter, this leaves very little scope for Member States to impose requirements for residence. The possibility of imposing integration requirements also appears to be excluded. Lastly, it may be observed that Turkish nationals can in all likelihood rely on the non-discrimination clauses vis-à-vis the Member States. The direct effect of Article 10 of Decision 1/80 has already been established by the Court.²⁴ With regard to Article 9 of the Association Agreement the Court has not yet established that it has direct effect; it follows, however, from Commission v the Netherlands that this provision is sufficiently precise and unconditional to determine whether a given condition must be considered discriminatory in a particular case.²⁵

Attention must also be paid to the position of family members of Turkish workers and self-employed persons. The legal instruments adopted in the context of the EEC-Turkey Association do not contain a right to family reunification. With regard to Decision 1/80, this was confirmed by the CoJ in the case of Demirel.²⁶ However, recent case law contains a number of indications that the admission of family members of Turkish nationals may nevertheless be regulated, at least to a certain extent, by the said instruments.

A first indication can be found in the CoJ’s judgment in Abatay & Sahin, where the Court stated that

Decision 1/80 does not make the access to the territory of a Member State of family members of a Turkish worker already legally present in that state in order to join the rest of the family conditional on the exercise of paid employment.²⁷

Here, the Court seems to proceed on the assumption that the admission of family members of Turkish workers is subject to the provisions of Decision 1/80. This was later confirmed in the case of Commission v the Netherlands, where the Court found the administrative charges levied on Turkish workers and their family members to be contrary to the non-discrimination clause of Article 10 of Decision 1/80. The same conclusion was also drawn, in the light of Article 9 Association Agreement, with regard to family members of Turkish nationals seeking to establish themselves in a Member State.²⁸

As the CoJ did not give reasons for applying the above provisions to family members of Turkish workers and self-employed persons, it cannot be said with certainty that the above explanation is correct. If it is, this would mean another step in the process whereby the position of Turkish nationals is increasingly being put on a par with that of EU citizens, as well as another limitation to the competence of the EU Member States in the field of immigration regulation. Arguably, this expansion is not in itself contrary to the objectives of the Association Agreement, which include the realisation of the free movement of workers and the right of establishment by reference to the EEC Treaty (now TFEU).³⁰ However, as the Court itself has held in previous case law, the provisions setting out these objectives only constitute programmatic clauses that are incapable of directly governing the position of Turkish nationals.³¹ The implementation of these provisions is a task for the Association Council, which is a common organ of the Contracting Parties and hence cannot be substituted by the CoJ.

Each of the agreements contains a prohibition of discrimination for workers who are nationals of the respective third countries and legally employed in the territory of a Member State.³⁵ This prohibition concerns discrimination with regard to working conditions, remuneration or dismissal compared to the nationals of the Member State. The wording of the relevant provisions strongly indicates that the admission of third-country nationals is not included within their scope; in other words, such nationals cannot rely on them in order to be granted entry or residence in an EU Member State.³⁶ Admittedly, this interpretation is subject to some doubt, given the CoJ’s judgment in Commission v the Netherlands (section II.A.ii above), where it was held that administrative charges for acquiring a residence permit came within the meaning of Article 10 of Decision 1/80 pertaining to the EEC-Turkey Agreement. The wording of the latter provisions is similar to that of the non-discrimination clauses in the SAAs. However, the meaning of these clauses must be assessed in their own context, taking into account the object and purpose of the agreements in which they are included.³⁷ In this connection it is observed that the objectives of the SAAs are less far-reaching, where the freedom of movement of workers is concerned, than those of the EEC-Turkey Agreement. In particular, the SAAs do not contain any clauses comparable to Article 12 of the EEC-Turkey Association Agreement, which calls for the progressive realisation of the freedom of movement of workers to be guided by the relevant provisions of the EEC Treaty (now TFEU). The SAAs moreover do not include a general non-discrimination clause, as laid down in Article 9 EEC-Turkey Agreement.

Each of the SAAs contains a clause stating that

nothing in this Agreement shall prevent the Parties from applying their laws and regulations regarding entry and stay, employment, working conditions, establishment of natural persons and supply of services, provided that, in so doing, they do not apply them in such a manner as to nullify or impair the benefits accruing to any Party under the terms of a specific provision of this Agreement.⁴³

Having looked at several international agreements concluded at the EU level, the AIA is now considered in relation to those agreements. As established in section II.B, the Stabilisation and Association Agreements with Macedonia, Croatia, Albania and Montenegro do not as yet grant any residence rights to nationals of those countries. Consequently, the power of the Dutch authorities to apply the AIA to these nationals remains unaffected. The same cannot be said, however, with regard to Turkish nationals who come within the personal scope of the Association Agreement between the EEC and Turkey. With regard to these nationals, the standstill and non-discrimination clauses of the Association Agreement, the Additional Protocol and Decision 1/80 have to be taken into account.

Until August 2011, Dutch immigration law did not contain a general clause to the effect that Turkish nationals were exempted from the integration exam abroad. However, as explained in chapter 2 (section VI.B.iii), such an exemption has since been introduced in response to a judgment of the Central Appeals Tribunal (Centrale Raad van Beroep). The Tribunal ruled that Turkish nationals falling under the scope of the EEC-Turkey Association Agreement cannot be subjected to compulsory integration under the Integration Act 2007 (the integration exam in the Netherlands).⁴⁵ Consequently, because the target group of the AIA is linked to that of the Integration Act, Turkish nationals were also exempted from the integration exam abroad.⁴⁶ The latter decision was based on national law, rather than on a finding of incompatibility of the AIA with the EEC-Turkey Association Agreement, the Additional Protocol or Decision 1/80. However, it follows that these instruments are now also respected.