Conclusions

Conclusions

UNDER THE ACT on Integration Abroad, integration has become a condition for immigration to the Netherlands. Non-compliance with this condition results in the non-admission of aliens and, therefore, in their exclusion from Dutch territory. This study assessed how such integration conditions relate to the rights of immigrants as laid down in (inter)national immigration law, including the law on fundamental rights. In addition, some standards have been formulated regarding the contents of integration requirements and the different integration objectives that can be pursued. This chapter considers the findings from the various chapters of this study and presents some concluding observations.

Chapter 3 examined how the connection between integration and immigration was conceptualised in the Netherlands. As shown in Chapter 2, the adoption of the Act on Integration Abroad followed the enactment, in 1998, of the Newcomers Integration Act, which obliged certain categories of immigrants to participate in integration programmes upon arrival. Given this history, it is not surprising that the AIA was at least partly defended as an instrument designed to prepare immigrants, before their arrival, for further integration in the Netherlands. It was also recognised, however, that the Act would function as an instrument of exclusion as its application would result in the non-admission of immigrants who did not pass the integration exam abroad. The AIA was thus also meant to function as a selection mechanism, so as to ensure that immigrants are not admitted unless they are likely to integrate successfully. This objective was qualified as ‘integration through exclusion’.

It may be argued that whether an exam selects on the basis of motivation or on linguistic ability is not very significant. After all, in both cases the efforts that are required will depend, to a large extent, on the capacity of the candidate, and immigrants with stronger learning capacities or more education will be able to pass the exam more easily. In addition, the determination of the effort that can reasonably be required of immigrants necessarily includes an element of arbitrariness. Nevertheless, the choice for a selection criterion influences the way in which the integration exam is implemented, for instance, with regard to the level of knowledge required, the role of the government in providing preparation facilities and the possibility of exemptions for candidates who are unable to pass despite demonstrated efforts. Ultimately, an exam aiming to select on the basis of motivation should take the form of an obligation of effort that all immigrants are able to meet. On the other hand, an exam selecting of the basis of ability implies acceptance of the fact that some immigrants will be unable to fulfil the conditions and will therefore be ineligible for admission.

It follows from the above that integration requirements are not merely a barrier to the entry of non-nationals, but also an instrument to support the integration process in the host state. The acceptability of such requirements therefore has to be determined through a balancing of interests, taking into account their contribution to successful integration (as part of the public interest of the host state) and the effects of non-admission on individual immigrants, host state residents and/or competing public interests. Chapter 3 argued that, in this respect, states have a certain amount of discretion to decide on the acceptability of integration requirements in case of labour migration and, to a lesser extent, in case of family reunification. The analysis in the second part of this book showed that this notion is also expressed in the legal instruments regulating the admission of aliens in international law. This outcome is discussed in more detail below.

In addition, a right to family reunification can exist under international human rights law (the ECHR, ICCPR and CRC), in particular in situations where the exercise of family life in the country of origin is impossible or very difficult. Arguably, international human rights treaties give special consideration to family members of persons who were admitted to the host state to obtain protection from persecution or inhuman treatment in their country of origin. The same applies if the exercise of family life in the country of origin is thwarted by other barriers, such as severe medical conditions or the presence of children who are rooted in the host state and would suffer from displacement. However, under international human rights law, the threshold for accepting the existence of such barriers is relatively high. A right to family reunification is therefore not easily found to exist.

The existence of a right to family reunification, be it under the Family Reunification Directive or – in exceptional circumstances – under international human rights treaties, moreover does not imply that this right is absolute. With the exception of refugee families, the Family Reunification Directive expressly allows the admission of family members to be made dependent on the fulfilment of integration requirements. This is also the general rule under Article 8 ECHR, Articles 17 and 23 ICCPR and Articles 9 and 10 CRC. Integration requirements must, however, meet the criteria set by the above instruments. In particular, there must be a relationship of proportionality between the interest of integration (the public interest of the host state) and the interests of the individual family members. This proportionality depends on the personal situation of the family members, the efforts they must make to meet the integration requirements (which in turn depends on factors such as the level of the exam, circumstances in the country of origin and so on), and on the necessity and effectiveness of those requirements.

More specifically it was argued that, once a right to family reunification has been established, integration requirements will be disproportionate if they make the exercise of this right effectively impossible. As said before, this will depend in part on the circumstances of the case. Nevertheless, to return to the distinction made above, it follows that integration requirements may reasonably oblige family members to make a certain effort, but may not indefinitely exclude them on the grounds of their inability to reach a particular level. This implies that the level of integration requirements must not be set so high as to exclude persons with little education or learning capacities, and that there should be a possibility for individual exemptions (for instance, a hardship clause).

Where one of the above situations occurs, it does not automatically follow that the religious servant has an absolute right to be admitted and that integration requirements are thereby precluded: limitations to the freedom of religion are allowed. It was argued that the public interest of integration can provide grounds for such limitations. Nevertheless, the limitation clauses of Articles 9 ECHR and 18 ICCPR also require integration conditions to be proportionate and this will depend on their effectiveness and on the burden imposed on the religious servant (or on the religious community in the host state). Again, it is submitted that such conditions may not be such that they cannot reasonably be fulfilled. However, substantive criteria for limitation are not included in Article 6(1) of the Dutch Constitution, by which the freedom of religion is also protected. According to this provision, the freedom of religion can always be restricted, providing the restriction has been ordered by the national legislator.