A. Integration as a Condition for Immigration: the Act on Integration Abroad

THIS BOOK ASKS if states, and the Netherlands in particular, may enact integration tests as a condition for the admission of aliens. Such a test was introduced in the Dutch Act on Integration Abroad (Wet inburgering buitenland), which entered into force on 15 March 2006.1 Since then, several groups of immigrants – in particular family migrants from non-Western countries – have only been granted admission to the Netherlands if they can demonstrate proficiency in the Dutch language and a certain amount of knowledge about the country. Their ability to do so is assessed by means of the integration exam abroad (inburgeringsexamen in het buitenland), which is taken in their country of origin before the visa application is made.

The Act on Integration Abroad (AIA) is an instrument of Dutch integration policy. This policy seeks to ensure that, among the Dutch population, there exist a level of social cohesion and a degree of economic participation that are considered necessary for the continued viability of the welfare state as a political and economic institution. From the late 1970s until approximately the turn of the century, Dutch integration policy was primarily directed towards persons who had already been admitted. It aimed to achieve an equal position for these immigrants compared to that of the non-immigrant population and, at a later stage, to ensure their active participation in various domains of mainstream society, notably education and the labour market. For the past 10 years, however, integration measures have increasingly been directed towards excluding immigrants of whom it is expected that they will not successfully integrate.2 This new line of thinking has been described as a ‘reversal of citizenship concepts’: whereas integration (in the sense of learning the language of the host state and developing a commitment towards its society) was previously expected to follow admission and the granting of rights, the current understanding is that immigrants should integrate before they are admitted or access to rights is granted.3 At the same time, integration policy became increasingly directed towards cultural adaptation of immigrants and their identification with Dutch society.

Besides the AIA, the augmented prevalence of this new perspective on integration has inspired several new measures, including an (advanced) integration exam which also serves as a condition for the acquisition of a permanent residence permit (the Integration Act 2007), a naturalisation test (introduced in 2003) and a legislative proposal to make the granting of social assistance dependent on demonstrated proficiency in the Dutch language.4 Similar developments can be seen in other European countries, which have also introduced integration conditions into their immigration and nationality legislation.5 In particular Germany, France, Denmark, the United Kingdom and Austria have introduced integration tests as a condition for the admission of family or other migrants.6 The possibility of making residence rights dependent on integration requirements has also been expressly included in a number of EU migration directives (notably the Family Reunification Directive and the Long-term Residents Directive).7

With the introduction of the AIA and similar measures in other countries, language proficiency and country knowledge have become part of the criteria used to determine whether immigrants, and specifically family migrants, are granted the right of admission to the territory of the states concerned. Within liberal democracies, the use of such criteria can be seen as a democratically legitimated expression of self-determination, aiming to preserve unity and solidarity within the state. On the other hand, integration requirements can be at odds with the principles of individual freedom and equality, to which liberal democratic states are also committed. These principles, which are considered to be of a universal nature, may stand in the way of erecting barriers for the admission of immigrants and distinguishing between those who are and those who are not considered capable of successful integration. They also impose limitations on the extent to which immigrants are asked to conform to the integration norms of the receiving state, in particular where culture and moral values are concerned.8 This book aims to see how the law, both at the national and international level, finds a balance between these competing claims. More specifically, it clarifies the legal framework concerning integration requirements for the admission of immigrants and identifies the criteria determining their legality. To do this, relevant legal instruments are analysed and suggestions offered for their interpretation. Throughout the investigation, the Dutch Act on Integration Abroad serves as a point of departure and conclusions are drawn as to its lawfulness.

B. Approach

This book is divided into two parts. The first part, which can be read separately or as a prelude to the second part, investigates the integration exam abroad and its role in Dutch integration policy. It gives a description of the Act on Integration Abroad, including the target group, the contents of the exam and the effects measured to date, and explains the historical and political context in which the Act was introduced. To this end, a historical overview is given of Dutch integration policy, with particular attention being paid to the introduction and development of language courses and civic education for immigrants. An analysis of parliamentary documents focuses more directly on the objectives of integration policy, as defined by the Dutch legislator, and the changes in the Dutch concept of integration. At the end of this analysis, both the integration objectives pursued and the suitability of the AIA as a means to achieve them are made subject to some preliminary objections.

The second part of this study examines the legal norms and standards with which integration requirements must comply. This part of the investigation addresses the legal effect of integration tests, which is the temporary and sometimes even permanent exclusion of immigrants seeking to enter a state of which they are not nationals. The specific question examined is which standards are set by (mostly international) immigration rules regarding non-admission of aliens on the grounds that they have failed to meet an integration requirement. The examination covers various areas of immigration law, including legal rules on family reunification, labour migration and the right to free movement in the EU. Legal instruments on asylum are not included, the reason being that there is clearly no scope for states to enact integration requirements in relation to requests for international protection.9 In the Netherlands, as in other states where integration is a prerequisite for admission, asylum seekers have been excluded from this condition. On the other hand, as religious servants form a specific target group of the Act on Integration Abroad, the relevance of the right to freedom of religion for the admission of aliens is considered. Lastly, given that the AIA does not apply to all immigrants alike, integration requirements are assessed in relation to the right to equal treatment.

The objective of the above examination is twofold. The first aim is to describe and analyse the legal standards that states, and the Netherlands in particular, must take into account when enacting integration requirements as part of their immigration rules. A second but related aim is to construct a comprehensive argument concerning the lawfulness of the AIA in relation to relevant norms of international and Dutch constitutional law. To the extent that such lawfulness is found to be lacking, adjustments to the Act, or its application, will be needed to ensure that the legal obligations assumed by the Netherlands are duly respected and the rights of immigrants protected.

As part of the objective of this study is to evaluate the lawfulness of the AIA, the scope and contents of the examination in the second part of the book are, to a large extent, determined in relation to this Act. By taking the (Dutch) integration exam abroad as a point of reference, it will be possible to formulate more specific legal standards (concerning, for example, the target group or the contents of the test) than if a more abstract definition of integration requirements were to be used. Nonetheless, much of the legal framework developed in this study is equally applicable to integration requirements adopted or to be adopted by other states. In particular, the interpretation of various provisions of human rights treaties – including the European Convention on Human Rights – and the EU migration directives will be equally pertinent to other EU Member States. It is hoped, therefore, that the relevance of this study will not remain limited to the national context of the Netherlands.

C. Relation to Other Research

Developments in the integration policy and legislation of various EU Member States and at the EU level over the past 10 years have formed an important topic of academic research. One matter that has attracted considerable attention has been the redefining of the concept of citizenship in various EU states and the manifestation of these changes in actual integration measures, in particular naturalisation tests.10 A prevailing theoretical perspective in this literature concerns the compatibility of these developments with liberal political theories on citizenship and integration.11

As far as the Netherlands is concerned, the evolution of the concept of citizenship has been quite extensively described and evaluated by different authors.12 This literature mostly analyses the normative conception of citizenship or integration as it has been formulated in the Dutch political debate. An important strand of criticism expressed in various publications concerns the shift that has taken place, especially since 2003, towards the unilateral adaptation by immigrants to the cultural norms and values of the majority population and the presentation of these norms and values as forming part of a static and exclusive national identity. Another, related objection formulated by various researchers concerns the fact that responsibility for a successful integration process has been placed wholly or largely on the immigrant population.13

Given their close connection to the topic of this study, this book also includes an analysis and assessment of the conceptualisation of citizenship and integration in the Dutch political debate. The findings from the abovementioned literature are thereby taken into account. Adding to the developments that have already been described, this study also explains how the concept of integration continued to evolve between 2007 and 2011, with special attention being paid to the relationship between the political or ideological concept of integration in the Netherlands and the legal requirements of the Act on Integration Abroad. Lastly, while mindful of the comments that have already been made, this study aims to provide a brief individual assessment of the objectives of Dutch integration policy and the suitability of the AIA as a means to achieve these objectives.

Meanwhile another strand of academic research concerns the reinforced connection between integration and immigration measures in Europe. This linkage has been seen to represent a key development in integration policies, both at the EU level and in various Member States (including the Netherlands).14 The introduction of integration requirements for the acquisition of residence rights and nationality has been criticised by several authors on the grounds that the objective and/or effect of such requirements is to function as instruments of exclusion and immigration control rather than as a tool for integration.15

This study argues that the predominant purpose of the AIA is indeed to function as a selection criterion and thus to exclude those immigrants who do not pass the integration exam abroad. It then attempts to take the discussion one step further by asking whether this ‘exclusive’ conception of integration is acceptable in view of the competing interests of the residents of the receiving state and those of the immigrants seeking admission. As mentioned above, a primary objective of this study is also to assess the legality of integration requirements for the admission of aliens and specifically of the Act on Integration Abroad.

Although the issue of legality has been raised on various occasions,16 a comprehensive legal framework regarding integration requirements has not yet been formulated. Thus far the available literature has mostly provided a limited evaluation of the compatibility of integration requirements with the right to family life, the prohibition of discrimination and the EU migration directives.17 Naturally the results that emerged from these previous inquiries have been included in this study. The legal description and analysis presented in this book are, however, more encompassing and produce a number of different outcomes.

Finally, an important question concerning integration requirements is whether those requirements actually contribute to achieving the objectives for which they were introduced. Although this is an empirical question that does not as such pertain to the object of this study, we will see that the effectiveness of the AIA is a relevant factor in determining both the political legitimacy of the integration exam abroad and its legal validity. An evaluation of these effects was conducted in 2009, three years after the Act entered into force.18 In the same year Klaver and Odé provided a more general overview of the effects of various integration measures adopted in the Netherlands.19 This book includes the outcomes of both studies.


A. Scope of the Investigation

As mentioned above, the primary purpose of this book is to describe and analyse the legal standards applying to the Act on Integration Abroad and to determine whether the Act is in compliance with these standards. To this end this study examines legal instruments that are of relevance to immigration law and the admission of aliens. Limitations to the power of states to control immigration can be found in human rights treaties, as well as in the law of the European Union. Also relevant are bi- and multilateral treaties containing agreements between states on the admission of each other’s nationals. As far as international instruments are concerned, the investigation is limited to treaties to which the Netherlands is a party. Finally, restrictions to the Dutch legislator’s power to regulate immigration can be found in the human rights provisions of the Dutch Constitution.

The question of whether the admission of aliens to the Netherlands may be conditioned upon fulfilment of integration requirements is preceded by the question of whether any right to admission exists at all. Such a right is expressly laid down in several legal instruments, in particular in the field of EU law (see, for example, Art 21 TFEU). In many other situations, however, the existence of a right of admission is not self-evident. This is the case, for instance, with regard to most of the human rights provisions discussed in this study, as well as in the Association Agreement concluded between the EU (then EEC) and Turkey. To give an example from the human rights arena, it is not immediately evident whether Article 8 of the European Convention on Human Rights (ECHR), which protects the right to respect for family life, also includes a right of admission for aliens in situations where the members of one family do not share the same nationality. A relatively large part of the examination in the second part of this book consequently focuses on determining the scope of the provisions under investigation. Only when it has been established that a right to admission exists is it necessary to determine whether this right may be restricted and, if so, whether an integration exam in the country of origin constitutes a lawful restriction.