The Right to Equal Treatment: ‘Reverse Discrimination’
10 AS EXPLAINED IN chapter 6, EU law operates on the premise that the right of free movement between EU Member States will be obstructed if it does not also include a right to family reunification. Family members of EU nationals who move to another Member State – or who return to their own Member State after having moved within the EU – are consequently also entitled to be admitted to that state. This right exists regardless of the nationality of those family members or whether they have previously had legal residence in the EU. It is subject to very limited conditions and does not depend on the fulfilment of integration requirements. In addition, it has recently become clear that EU nationals can be entitled to family reunification under EU law if refusal to admit their family members would impede the exercise of the rights to which they are entitled as EU citizens.1 On the other hand, in cases where EU nationals’ enjoyment of their rights under the TFEU is not obstructed by a Member State’s national legislation concerning family reunification, that legislation remains applicable (chapter 6, section III.A). Where this legislation imposes more stringent conditions for family reunification, such as integration conditions, this will result in a disadvantage for those EU nationals who are not entitled to family reunification under EU law.2 This situation is commonly referred to as ‘reverse discrimination’ because it contrasts with the traditional pattern whereby states treat their own nationals more favourably than nationals of other states.3 This traditional pattern reflects a notion commonly found in political theory, which entails that nationality (or citizenship) corresponds to the highest level of inclusion in a community.4 The examination in chapter 4 shows that the right to family life does not include a general right to family reunification for nationals. Still, to the extent that nationality is perceived as a privileged status, reverse discrimination will be seen as problematic because nationals are treated less favourably than aliens. Evidence of this perception is found in the parliamentary debate on the AIA, where members of parliament spoke negatively about the Act resulting in ‘discrimination by the Netherlands of its own citizens’.5 Nevertheless, it is argued below that there is no legal norm requiring states to grant their own nationals a status at least equally strong as that granted to aliens (section II). It follows that the unfavourable treatment by a state of its own nationals is in principle subject to the same legal standards as other forms of differential treatment (section II of chapter 8). Some additional remarks concerning these standards in relation to reverse discrimination are made in section III. Subsequently, case law of the Dutch courts concerning reverse discrimination in family reunification cases is briefly reviewed in section IV. Section V assesses whether the reverse discrimination resulting from the AIA is compatible with national and international legal standards on the right to equal treatment. Nationality, as a legal status, expresses a formal bond between a person and a state (chapter 8, section III.A.ii). As such, the concept of nationality is not without relevance in international (human rights) law. Three categories of legal provisions can be distinguished in this respect. Firstly, there are provisions that grant specific rights only to nationals. These include notably the right to political participation (Art 25 ICCPR)6 and the right to enter, remain in and leave the state of one’s nationality (Art 3 Fourth Protocol ECHR, Art 12 ICCPR and Art 10(2) CRC).7 Secondly, there are provisions that guarantee the right to a nationality or protect persons from not having a nationality. The right to obtain a nationality can be found in Article 24(3) of the ICCPR, Article 7 CRC and Article 4(a) of the European Convention on Nationality (ECN).8 Articles 4(b) and (c) ECN moreover provide that statelessness shall be avoided and that no one shall be arbitrarily deprived of his or her nationality. The prevention of statelessness is also the object of a number of other treaties, including the UN Convention on the Reduction of Statelessness.9 A third category of provisions consists of those that grant aliens the same rights as nationals. This type of provision is included, for example, in the Refugee Convention, the UN Convention on the Status of Stateless Persons10 and the European Social Charter (with regard to migrant workers). Through these instruments, the legal status of the national is taken as the standard by which the status of the alien is defined. It follows that nationality is a status to which particular rights are attached and to which everyone is entitled. In addition some treaties contain equal treatment clauses requiring certain groups of aliens (refugees, stateless persons and migrant workers) to be granted particular rights on an equal footing with nationals. However, these rules do not require nationality – implicitly or explicitly – to be treated as a ‘most favoured’ status, meaning that nationals should always be treated at least equally to aliens and prohibiting reverse discrimination. In certain contexts, international law (other than EU law) also provides for certain privileges to be accorded specifically to aliens. This is the case notably with regard to diplomats and staff members of international organisations. Interestingly, however, the Council of State did not address the issue of reverse discrimination in its commentary on the proposal for the AIA.14 Vermeulen suggests that this omission may be due to the presumption that the differential treatment under this Act takes place outside the jurisdiction of the Netherlands, as the AIA requires aliens to pass an integration exam in their home countries. However, he points out that such a presumption would be mistaken because the integration exam abroad affects family members both in and outside the Netherlands (section II.B.iv of chapter 8).15 Still, while Dutch nationals are treated on a par with EU nationals with regard to integration obligations, this is not the case in respect of the right to family reunification. It is submitted that in this respect the Dutch integration legislation is incongruent. However, this in itself does not mean that the reverse discrimination of Dutch nationals under the AIA is also contrary to the right to equal treatment. Whether this is the case must be assessed in the light of the legal standards set out in chapter 8 (section II). Below, some remarks are made concerning the applicability of these standards in relation to reverse discrimination. An overview of various legal provisions guaranteeing the right to equal treatment (or the prohibition of discrimination), including several provisions of the TFEU and the EU Charter of Fundamental Rights (Arts 18 and 19 TFEU and Art 21 CFR), is provided in chapter 8 (section II.B). The applicability of the latter provisions is, however, limited to situations within the scope of application of EU law. As explained above, the occurrence of reverse discrimination results precisely from the fact that many EU nationals do not use their right of free movement (and are not impeded in the exercise of their citizenship rights) and thus do not establish a connection with EU law. As a consequence, these nationals are also barred from invoking the non-discrimination provisions of the TFEU or the Charter to obtain a right to family reunification under the same conditions as EU nationals who can rely on EU law.16 This restriction of the scope of EU law mainly to cross-border situations and the ensuing phenomenon of reverse discrimination have often been criticised in the literature. In particular, it has been argued that, after the introduction of EU citizenship and the increasing communitarisation of immigration law, it would be inconsistent to continue treating the family reunification of certain categories of EU citizens as a matter falling outside the scope of EU law.17 However, this alleged inconsistency has not thus far been resolved by the EU legislator or the CoJ. Since the provisions of EU law on non-discrimination are not applicable, the question remaining is whether reverse discrimination by a state of its own nationals is compatible with standards of equal treatment in international law (notably Art 14 and 1 Twelfth Protocol ECHR) and, for the Netherlands, with Article 1 of the Dutch Constitution. As established earlier in this study (chapter 8, section II) differences in treatment must be based on a reasonable and objective justification so as not to amount to prohibited discrimination. In determining whether such a justification exists, states have a margin of appreciation that depends, for a large part, on the differentiation ground at stake. As explained in the introduction, reverse discrimination entails differential treatment between EU nationals who have and those who have not made use of their right to free movement. Consequently, it can be said that the differentiation ground is whether or not one is a ‘migrating EU national’.18
The Right to Equal Treatment:
‘Reverse Discrimination’
I. INTRODUCTION: THE PROBLEM OF REVERSE DISCRIMINATION
II. THE RELEVANCE OF NATIONALITY:
A ‘MOST FAVOURED’ STATUS?
III. THE RIGHT TO EQUAL TREATMENT
IN SITUATIONS OF REVERSE DISCRIMINATION
A. Applicability of EU Non-discrimination Provisions
B. Differentiation Ground: Migrating Versus Non-migrating EU Nationals