The Right to Equal Treatment: Direct Differential Treatment on Grounds of Nationality and Residence Purpose

The Right to Equal Treatment:
Direct Differential Treatment on
Grounds of Nationality
and Residence Purpose

AS EXPLAINED IN chapter 2 (section VI.B) the Act on Integration Abroad does not apply to all immigrants alike. Whereas some aliens have to pass the integration exam abroad in order to be admitted to the Netherlands, others are exempted from this condition. This chapter, together with chapters 9 and 10, investigates how this difference in treatment should be assessed in relation to the right to equal treatment and the prohibition of discrimination. More specifically the following topics are addressed: the differential treatment of immigrants on the grounds of their nationality and residence purpose; the indirect differential treatment of immigrants and their family members on the grounds of racial or ethnic origin; and the ‘reverse discrimination’ of Dutch nationals who are not entitled to family reunification under EU law.

A general overview of the legal framework concerning the right to equal treatment is provided in section II, followed by an examination in sections III and IV of the relevance of nationality and residence purpose as criteria for differentiating between immigrants when applying integration requirements. In the course of this examination several possible justifications for making distinctions on these grounds are considered. Lastly, in section V, the findings of the previous sections are applied to the Act on Integration Abroad. The issue of indirect differential treatment on the grounds of race or ethnic origin is discussed separately in chapter 9, while the ‘reverse discrimination’ of Dutch nationals is addressed in chapter 10.

The principle of equal treatment is generally recognised as a fundamental legal principle. This principle is often conveyed by the formula that ‘equal situations must be treated in the same way and unequal situations must be treated differently to the degree of their inequality’.¹ Yet the meaning of the equal treatment principle does not lend itself to precise definition. As various authors have noted, the requirement for equal situations to be treated the same way is of a formal nature and does not tell us when two cases are equal or what equal treatment consists of.² The determination that situations are equal or unequal always, therefore, rests on a value judgement that is external to the equal treatment principle itself.³ The same is true with regard to the question of whether a particular form of unequal treatment is nevertheless acceptable because of being based on a reasonable justification (section II.C). Because of this ‘normative indeterminacy’,⁴ the equal treatment principle as such provides little guidance with regard to the issues addressed in this chapter. Nevertheless, the principle has been translated into a number of legal norms, including provisions in human rights treaties. Through the formulation and application of such norms, the equal treatment principle has gained content. The relevant legal provisions are described below.

The right to equal treatment is also guaranteed in Articles 2(1) and 26 of the ICCPR. Like Article 14 ECHR, Article 2(1) guarantees equal treatment in relation to the substantive rights and freedoms protected by the Covenant. These include the right to respect for family life (Arts 17 and 23) and the freedom of religion (Art 18). Article 2(1) also applies if the substantive right has not been violated.⁹ Article 26 ICCPR, on the other hand, can be invoked independently of the other articles of the Covenant. Because of its autonomous character Article 26 ICCPR has often been invoked in proceedings before the Dutch courts.

In addition to the equal treatment rights guaranteed by the ECHR and the ICCPR, a prohibition of discrimination specifically on the grounds of race is laid down in the Convention on the Elimination of All Forms of Racial Discrimination (CERD).¹⁰ It is argued below (section III.A.ii) that the definition of racial discrimination in this Convention does not cover differential treatment on the grounds of nationality, which means that the CERD is not relevant to the examination conducted in this chapter. Its provisions are, however, discussed in more detail in chapter 10.

The right to equal treatment is also guaranteed by provisions of EU law, in particular Articles 18 and 19 of the Treaty on the Functioning of the European Union (TFEU) and Article 21 of the EU Charter of Fundamental Rights. Both Article 18 TFEU and Article 21(2) of the Charter prohibit any discrimination on grounds of nationality within the scope of application of the EU Treaties.¹¹ It is generally assumed, however, that these provisions apply only to EU citizens and not to third-country nationals (persons who are not nationals of an EU Member State).¹² Several authors have argued in recent years that this interpretation is too narrow, especially since the Treaty of Amsterdam introduced a treaty basis for EU legislation concerning third-country nationals in the fields of immigration and asylum.¹³ Yet the EU Court of Justice (CoJ) has so far not appeared inclined to adopt a broader reading.¹⁴ In this chapter, therefore, Articles 18 TFEU and 21 (2) of the Charter are not taken further into account.

Other authors have suggested meanwhile that nationality-based differential treatment of third-country nationals could possibly be examined under the principle of non-discrimination, which has been designated by the CoJ as a general principle of EU law.¹⁵ Again, however, there are no indications that the scope of this principle is broader than that of the non-discrimination provisions of the TFEU and the Fundamental Rights Charter.

Article 19 TFEU prohibits discrimination on a limited number of grounds that are not relevant to the topics raised in this chapter. Article 21(1) of the Charter, on the other hand, applies to discrimination on ‘any ground’. While it can be derived a contrario from Article 21(2) that this does not include nationality-based discrimination, it is submitted that Article 21(1) does in principle apply to differential treatment on the grounds of residence purpose. It may further be recalled that the provisions of the Charter apply to acts of the EU institutions, as well as to acts of the Member States, when they implement EU law.¹⁶

The right to equal treatment is also laid down in Article 1 of the Dutch Constitution, which provides that all who are present in the Netherlands shall be treated equally in equal cases and prohibits discrimination on ‘any ground’.¹⁷ Article 1 applies independently of other rights and freedoms and covers each of the issues discussed in this chapter. However, while the scope of this provision is rather broad, its requirements are not very specific. More detailed norms regarding equal treatment have been laid down in a number of national legislative measures, but these are not applicable to the field of immigration policy.¹⁸ The relevance of Article 1 of the Dutch Constitution is also limited by the fact that the Dutch courts are not allowed to assess the constitutionality of legislation at the national level.¹⁹ As a result, judicial interpretation has added little clarity to the meaning of Article 1 of the Dutch Constitution.

As discussed in the previous section, the right to equal treatment is protected by a number of different provisions in human rights treaties, EU law and the Dutch Constitution. Clearly however, not all differential treatment constitutes a violation of these provisions. Law-making typically entails the use of distinctions and categorisations, and it is therefore hard to see how a legal system could be maintained without any form of differential treatment.²¹ When, for example, implementing measures in the field of education, distinctions may be made between children with and without disabilities or with different learning capabilities. Such forms of differential treatment are not normally regarded as problematic from a legal perspective because they are based on reasons considered acceptable. Consequently, the right to equal treatment only prohibits differential treatment that cannot be justified.²²

This leads to the question of when justification for differences in treatment can be said to exist. Here a distinction can be made between ‘open’ and ‘closed’ provisions containing a right to equal treatment.²³ Closed provisions prohibit circumscribed forms of differential treatment, for example differentiations based on the grounds of sex or disability. They prescribe that such treatment is always unjustified, unless it comes under an exception explicitly stated in the provision. Open provisions, on the other hand, apply to any form of differential treatment, regardless of the ground for differentiation. They are also ‘open’ in the sense that they do not define the reasons why the differential treatment may be considered justified.

When a complaint of unjustified differential treatment or discrimination is assessed by an international court or other supervisory body, the outcome of the case will be influenced by the scope of the review. Depending on the extent of this review, the respondent state will have more or less discretion in determining whether a particular difference in treatment is based on a reasonable and objective justification. In ECtHR case law this is known as the doctrine of the ‘margin of appreciation’, which plays a role in cases concerning Article 14 ECHR as well as in relation to other Convention rights.²⁷

While the ECtHR has not provided any clear guidelines for deciding which differentiation grounds are ‘suspect’ and hence require application of the ‘very weighty reasons’ test, some indications can be found in case law. In Abdulaziz this determination was based on the existence of common ground among the Contracting States concerning the importance of promoting the equality of the sexes.³¹ More recently, in the case of Carson and others, the Court stated that a high level of protection is needed in relation to ‘differences [of treatment] based on an inherent characteristic, such as gender or racial or ethnic origin’.³² However, it should also be noted that the ‘suspectness’ of a particular ground is not absolute, but may differ according to the context in which the differentiation is made. This is especially clear with regard to nationality as the ground for differentiation (section III.B). A second, related remark is that the differentiation ground is not the only factor determining the scope of the margin of appreciation. A strict review may be indicated even when a suspect differentiation ground is lacking, for example when the differential treatment affects a particularly important aspect of a Convention right.³³ By contrast, the strict level of review that would normally follow from the existence of a suspect differentiation ground may also be ‘levelled down’ because of the disputed measure being taken in a policy area where states traditionally have a certain amount of discretion, such as social or economic policy.³⁴

Lastly, when examining whether a particular legal classification is justified from an equal treatment perspective, the outcome will depend on how ‘equality’ is defined. One distinction that is frequently made in this respect is that between formal and substantive equality: the concept of formal equality focuses on equal treatment, whereas substantive equality is more concerned with obtaining equal results.³⁷ By way of example, imagine an integration policy whereby the same integration course is offered to all participants, regardless of their skills and previous education. In this case there is equal treatment and hence no problems arise when viewed from a formal conception of equality. However, a substantive equality approach would be more concerned with enabling all participants to reach the same final level. Such an approach would require a differentiated course offer, adapted to the varying needs of the participants.

The understanding that the right to equal treatment also covers situations of indirect differential treatment may follow directly from the formulation of the legal provision, as is the case with Article 1(1) CERD (‘any distinction . . . which has the purpose or effect’) (emphasis added).⁴² The other provisions mentioned in section II.B are less clear in this respect; however, the concept of indirect differential treatment has been accepted by the ECtHR, the HRC and the CoJ.⁴³ The concept is discussed in more detail in chapter 9 in relation to the issue of indirect differential treatment on the grounds of racial or ethnic origin.

This section examines the legal standards set by the above provisions on differential treatment on the basis of nationality, especially in admission cases. First, however, a preliminary remark is made about the meaning of the term ‘nationality’. In section III.A a distinction is drawn between nationality and the related concepts of alienage and national origin. It is also argued that nationality – unlike national origin – is not a forbidden discrimination ground within the meaning of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). Section III.B then assesses whether nationality qualifies as a ‘suspect ground’, which would imply that differentiations based on this ground will require very strong justification. Next, the reasons for justification are discussed in section III.C. As the reasons that could be adduced to justify differential treatment are in principle unlimited, this chapter focuses on the reasons provided by the Dutch government in relation to the AIA. Section III.D discusses Dutch case law with regard to differential treatment on the grounds of nationality, in particular where the AIA is concerned.

Before examining the legal framework standards set by the above provisions on differential treatment on the basis of nationality, it is useful to briefly clarify the meaning of this term. In the following two subsections a distinction is drawn between nationality and the related concepts of alienage and national origin. It is also argued that nationality – unlike national origin – is not a forbidden discrimination ground within the meaning of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD).

The term ‘nationality’ can also be confusing because it can be understood both as ‘a politico-legal term, denoting membership of a state’, and as a ‘historico-biological term, denoting membership of a nation’. Nationality in the latter sense is a sociological or ethnographical, rather than a legal concept.⁴⁵ For the purposes of this study, however, the term ‘nationality’ is used to indicate the legal bond between a person and a state.⁴⁶

While it follows from the above that Article 1(1) CERD does not refer to nationality as a legal status, Article 1(2) CERD states that differentiations between nationals and non-nationals do not amount to racial discrimination. It is submitted that this provision serves to confirm the right of states to distinguish between nationals and aliens and to avoid such differentiations being qualified as (indirect) discrimination on the grounds of race, descent or ethnic or national origin. Hence, Article 1(2) should not be read a contrario so as to bring the distinction between nationals and non-nationals (and hence nationality) within the scope of Article 1(1).⁴⁹ The same is true with regard to Article 1(3) CERD, which was introduced to allow some of the States Parties to maintain their existing legislation regarding, amongst other things, favourable conditions for the reacquisition of nationality by former nationals, which would otherwise have to be classified as discrimination on the grounds of national origin.⁵⁰ Again, it follows that Article 1(3) must not be understood to imply that the CERD also covers discrimination on the basis of nationality.

The monitoring body of the CERD, the Committee on the Elimination of Racial Discrimination (‘CERD Committee’), has issued a General Recommendation on discrimination against non-citizens, in which it states that:

Under the Convention, differential treatment based on citizenship or immigration status will constitute discrimination if the criteria for such differentiation, judged in the light of the objectives and purposes of the Convention, are not applied pursuant to a legitimate aim, and are not proportional to the achievement of this aim.⁵¹

Both the ECtHR and the HRC have been asked on a number of occasions to decide on complaints concerning differential treatment on the ground of nationality.⁵³ As far as the classification of this differentiation ground is concerned, these cases have led to varying results. In various judgments the ECtHR has stated that distinctions based ‘exclusively on the ground of nationality’ must be justified by very weighty reasons in order to be compatible with the Convention.⁵⁴ It follows that, at least in these cases, nationality was regarded as a ‘suspect ground’ (section II.D). In other cases, however, the Court did not consider a difference in treatment between persons of different nationality to require very weighty reasons, or even conducted a rather lenient review.⁵⁵ The HRC meanwhile has accepted that nationality is a differentiation ground that can be considered under Article 26 ICCPR, even if it is not expressly mentioned in that provision. It has not, however, commented on the scope of the review to be conducted or stated that differentiations based on nationality require an additional justification compared to differentiations on other grounds.⁵⁶

With regard to differentiations based on nationality in the immigration context, Vermeulen argued that the power to control immigration typically belongs to the sovereign domain of the state. For this reason, states have a large margin of appreciation in the field of immigration policy and measures adopted in this field are generally not subject to strict scrutiny by an international body such as the ECtHR.⁶¹

Nevertheless it seems that the ‘common ground’ between the Contracting States to the ECHR, which led the Court to qualify sex as a suspect ground in Abdulaziz (see also section II.D), does not exist with regard to differentiations based on nationality, at least not in the immigration context. For the time being, therefore, it will be assumed that in the field of immigration policy nationality is not a suspect classification and differentiations on this ground are not in principle subject to the ‘very weighty reasons’ test. It is submitted that this approach is acceptable, at least where nationality is perceived as a legal bond between a person and a state. Nonetheless, a heightened level of scrutiny – and thus strong justification – may still be required because of factors other than the differentiation ground.⁶⁵ This could apply in, for instance, situations involving young children.⁶⁶

As mentioned above, this section does not discuss all possible justifications for nationality-based distinctions regarding the admission of aliens. Instead, the examination is limited to those justifications put forward by the Dutch legislator in relation to the Act on Integration Abroad, which is briefly described here. The following sections assess whether the reasons advanced constitute a legitimate aim and whether the difference in treatment is proportionate in relation to that aim.

In addition to this objective several reasons were put forward to justify the preferential treatment granted to nationals of non-EU/EEA countries such as the United States, Australia and Japan (see again section VI.B.i of chapter 2). Some variations exist regarding the formulation of these reasons in subsequent phases of the legislative process.⁶⁸ Nevertheless, two main arguments can be distinguished, and these are used as the basis for discussion in this chapter. Firstly, it was submitted that the exemption from the AIA applied to ‘a limited number of countries’ which were ‘comparable to the Netherlands in socio-economic and social terms’. For this reason it was expected that immigration from these countries would not lead to substantial problems in the sphere of integration and that nationals of these countries did not have a strong interest in taking the integration exam abroad.⁶⁹ As a second argument, it was emphasised that nationals of the designated countries were already exempted from the long-term visa requirement. To make them subject to the AIA would therefore make their admission to the Netherlands dependent on prior permission, which was not previously the case. The government feared that setting conditions for the admission of these nationals would have an adverse impact on the ‘foreign and economic relations’ of the Netherlands with the countries concerned.⁷⁰

The thrust of the government’s argument, however, appears to be different: namely that exempting certain nationalities from the AIA does not undermine the effect of the integration requirement abroad because immigration from the exempted countries is in any event minimal and does not have a significant impact on the integration process in the host country. Read in this way, the argument concerns the proportionality of the difference in treatment rather than its purpose. This issue is addressed in more detail in section VI.

a. Preliminary Remarks: International Obligations and State Responsibility

The question of the extent to which the need to comply with international obligation constitutes a reasonable and objective justification for differential treatment on the ground of nationality is examined below. Firstly, however, some brief remarks are made about states’ responsibility under public international law for acts that are required by international legal instruments, in casu the TFEU and the EU Residence Directive. The question of responsibility has come up before the ECtHR on several occasions, including in the cases of Matthews and Bosphorus.⁷² In these cases the respondent governments argued that the impugned acts fell outside their responsibility as defined by Article 1 ECHR, either because they resulted directly from an act of European Community law (Matthews) or because they constituted the implementation of an EC regulation that left no discretion to the Member States (Bosphorus). This raises the question of whether a state could, in a similar vein, argue that it is not responsible for differences in treatment that result from its legislation because it was forced to make these distinctions so as to comply with its international obligations.

Nevertheless, the fact that exempting certain categories of aliens from integration requirements is motivated by the desire to comply with international agreements is not inconsequential. As discussed below, compliance with international obligations has previously been characterised by the ECtHR as a legitimate interest that may justify some nationalities being given preferential treatment.

b. International Obligations as a Justification Ground

Formulated in general terms, the purpose of the Act on Integration Abroad is to improve the integration of immigrants in the Netherlands. Nevertheless, the nationals of certain states are exempted from the conditions imposed by the Act because such exemption is required by international agreements. It follows that the purpose of this exemption (and hence of the differential treatment) is to ensure compliance with these agreements. It is the latter purpose (rather than the purpose of integration) which must be considered when examining whether the differential treatment resulting from the exemption is justified.

ECtHR Case Law on Obligations of EU Law

In this respect, it is worthwhile mentioning two ECtHR judgments in which a difference in immigration rules for EU citizens and third-country nationals was found to be based on a reasonable and objective justification: Moustaquim and C v Belgium.⁷³ Both cases involved Moroccan nationals who faced deportation from Belgium for reasons of public order and who were thereby prevented from continuing the exercise of their family life. Both applicants relied on Articles 8 and 14 ECHR, claiming that their deportation constituted discrimination because EU nationals in a similar situation would not have been deported. However, the Court held that the alleged differential treatment was based on a reasonable and objective justification because Belgium belonged, together with the other Member States of the EU (then the EC), to a ‘special legal order’, which had ‘in addition, established its own citizenship’.⁷⁴

ECtHR Case Law on Bilateral Agreements

The ECtHR has also considered differences in treatment that did not result from obligations of EU law, but instead from bilateral agreements concluded by the respondent state. One of these cases, Koua Poirrez