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.


A. The Principle of Equal Treatment

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.

B. The Right to Equal Treatment – Relevant Legal Provisions

i. International Human Rights Treaties

The most relevant provisions for the Netherlands with regard to equal treatment as a human rights norm are laid down in Article 14 of the European Convention on Human Rights (ECHR) and Article 26 of the International Covenant on Civil and Political Rights (ICCPR).5 Article 14 ECHR is of an accessory nature, which means that it can only be invoked in combination with one of the substantive rights or freedoms laid down in the Convention or its Protocols. For Article 14 to be applicable it is sufficient for the alleged discrimination to come within the ambit of one of those rights or freedoms; the finding of a violation is not required.6 Thus, where integration requirements for family migrants or religious servants are concerned, Article 14 can be relied on in combination with Article 8 (respect for family life) or Article 9 (freedom of religion). Since 1 April 2005 the ECHR also contains an autonomous provision on equal treatment in Article 1 of its Twelfth Protocol.7 This article is not accessory to the other Convention rights, but extends to any right granted under national law. Although case law on Article 1 Twelfth Protocol is still scarce, the ECtHR has indicated that its interpretation of this provision will be guided by the same concepts and principles that are used to interpret Article 14. The only difference will therefore be the variety in scope.8

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.

ii. EU Law

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

iii. The Dutch Constitution

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.

iv. Applicability of the Above Provisions in Admission Cases

Before moving on, it should be noted that the above provisions apply to persons who are present on the territory or who are subject to the jurisdiction of the states concerned. Yet the AIA primarily differentiates between aliens who have not yet been admitted to the Netherlands and are still in the territory of another state. This could mean that these aliens are simply not entitled to the right of equal treatment as laid down in the said provisions, or that it should at least first be established whether their request for admission falls under Dutch jurisdiction. For the purposes of the present chapter, however, this question can be left aside. As Vermeulen has already argued, the AIA affects not only aliens seeking to be admitted to the Netherlands, but also persons in the Netherlands who have an interest in their presence.20 In the context of the AIA, these persons will most often be family members and, in a small number of cases, members of a religious community (chapters 4 and 5). For as long as the alien is unable, whether permanently or temporarily, to enter the Netherlands because of not passing the integration exam abroad, the family or religious community in the Netherlands will be unable to experience their family life or exercise their religion in community with that person. This is a disadvantage that is not experienced by family members and religious communities of persons who do not have to pass the exam. Hence, the AIA results in differential treatment of persons both within and outside the territory of the Netherlands.

C. Justification of Differential Treatment

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.

The equal treatment provisions of the ECHR, the ICCPR and the Dutch Constitution and Article 21(1) of the EU Charter of Fundamental Rights are all open provisions: although some of these articles list a number of grounds for differentiation, the way in which they are formulated makes it clear that these listings are not exhaustive.24 Whether justification exists is then left to be determined by the courts or other bodies applying the provisions. For a difference in treatment to be justified, the differentiation will generally need to pursue a valid or legitimate aim and to be proportionate in relation to that aim. This is known in ECtHR case law as the ‘reasonable and objective justification test’.25 Similar criteria have been applied – in varying degrees of detail – by the Human Rights Committee (HRC) and the CoJ in equal treatment cases.26 Importantly, whether a particular instance of differential treatment is justified will depend on the review that is conducted. This issue is discussed in the following subsection.

D. Scope of Review and the Relevance of ‘Suspect Grounds’

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

In general the extent of the margin of appreciation can be determined by a variety of factors, including the nature of the protected rights or interests, the aim being pursued and the existence of consensus between the Contracting States. These factors are also of relevance in equal treatment cases.28 In addition, a specific factor determining the margin of appreciation in relation to Article 14 ECHR is the ground on which the differential treatment is based. The ECtHR has held in various cases that differentiations based on certain ‘suspect grounds’, such as sex, race or religion, can only be justified by ‘very weighty reasons’.29 This ‘very weighty reasons’ test leaves the respondent state little or no margin of appreciation, with the cases in which it was applied almost invariably resulting in the finding of a violation of the Convention.30

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

While the doctrine of the margin of appreciation has been developed quite elaborately in relation to Article 14 ECHR, differentiations in the scope of review are also indicated with regard to other equal treatment provisions. With regard to Article 26 ICCPR, the HRC has indicated that stricter scrutiny is required when the differential treatment is based on one of the grounds expressly mentioned in that provision.35 The CoJ has also previously applied variations in its scrutiny of various equal treatment provisions in EU law. These variations could be related to different factors, including the differentiation ground at issue.36 With regard to Article 21(1) of the EU Charter, it is expected that a similar approach will be followed and that the discretion left to the EU institutions and the Member States to justify differential treatment will depend on the differentiation ground at stake, as well as on other interests and circumstances of the case.

E. Formal and Substantive Equality and Indirect Differential Treatment

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.

Related to the concept of substantive equality is the concept of indirect differential treatment. This type of treatment is considered to occur when a measure formulated in neutral terms nevertheless has disproportionate effects on a particular group of persons.38 It may be that those effects were also foreseen by the legislator and that the neutral formulation is in fact meant to disguise a form of differential treatment that would otherwise be forbidden.39 However, the concept of indirect differential treatment is currently mostly effective in combating the unintended adverse effects of seemingly neutral measures.40 In the context of open provisions, the use of this concept can result in stricter scrutiny being applied if it is established that the disputed measure disproportionately affects a group characterised by a suspect differentiation ground (section II.D). Additionally, the concept of indirect differential treatment can be used to enable the application of closed provisions that prohibit differential treatment on a limited number of grounds.41

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.

A. Preliminary Remark: Nationality, Alienage and National Origin

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).

i. Nationality and Alienage

Differential treatment on the grounds of nationality may take various forms. In the first place, a state may differentiate between persons who are nationals of that state and persons with the nationality of other states (‘aliens’). It is generally accepted under international law that such distinctions are justified, at least within the context of immigration policy.44 However, states can also differentiate between aliens of different nationalities, as is the case under the Act on Integration Abroad. In this situation the differentiation ground is also nationality, but the distinction is not between nationals and non-nationals. It is this latter form of differential treatment that is investigated in this section. To avoid terminological confusion, however, the first type of differential treatment (between nationals and non-nationals) is henceforth referred to as ‘differential treatment on the grounds of alienage’. Where mention is made of ‘differential treatment on the ground of nationality’, this refers to a differentiation between aliens.

ii. Nationality and National Origin

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

From a legal perspective the distinction made above is significant because, as is submitted here, nationality as a legal status is not included in the definition of ‘racial discrimination’ provided in Article 1(1) of the CERD.47 While this definition mentions ‘national origin’, this term does not refer to the legal bond between a person and a state. Instead, it follows from the travaux préparatoires of the Convention that the term ‘national origin’ should be understood in conjunction with ‘descent’ and ‘ethnic origin’ to indicate nationality in the ethnographical sense. In addition the US representative suggested that ‘national origin’ could also refer to a person’s previous nationality, thereby apparently referring to legal status.48 If accepted, this interpretation could be used, for instance, to cover distinctions between persons who obtained their nationality through birth and those who received it through naturalisation. For the purposes of this chapter, however, national origin as a previous legal status is not relevant.

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

The reference to citizenship led Terlouw to conclude that nationality is a differentiation ground covered by the CERD.52 However, regardless of whether this was in fact the Committee’s intention, adding nationality in the legal sense as a ground to the definition of racial discrimination would be incompatible with the text and history of Article 1 CERD. The same is true with regard to immigration status. The General Recommendation therefore cannot support the conclusion that differentiations on the grounds of nationality should henceforth be brought under the CERD. Such differentiations do, however, fall within the scope of the open non-discrimination provisions of the ECHR, the ICCPR and the Dutch Constitution. The following subsections therefore examine the question of when the differential treatment of aliens can be said to be based on a reasonable and objective justification. Firstly, however, it will be examined whether nationality is a ‘suspect’ differentiation ground, implying that this differential treatment would need to be justified by very weighty reasons.

B. Is Nationality a ‘Suspect Ground’?

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

The ECtHR itself has not explained why it has treated nationality as a suspect classification on some occasions, but not on others. Some authors have argued that the ‘very weighty reasons’ test does not apply to differentiations between EU citizens and third-country nationals.57 Indeed, it seems that this possibility cannot be excluded. A more apparent explanation, however, would be that the variation in the Court’s approach is due to the policy context.58 All the cases in which the ‘very weighty reasons’ test was applied concerned differentiations in the context of social security. By contrast, two of the cases in which the ‘very weighty reasons’ test was not used concerned immigration policy.59 The third case concerned the right to practise as a lawyer, which, as the Court found, is a profession with a certain public interest.60

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

Some support for this explanation can be found in other ECtHR case law. First of all, the Court has repeatedly stressed in immigration cases that the Contracting States are entitled to regulate the entry of aliens into their territory.62 Moreover, the Court has stated in rather general wording that its subsidiary role vis-à-vis the Contracting States is ‘fully applicable in the field of immigration’.63 However, there is also evidence that immigration cases do not always involve a (large) margin of appreciation for the respondent state. In particular, in Abdulaziz the Court applied the ‘very weighty reasons’ test despite the fact that the case concerned the admission of aliens to the United Kingdom. It did so because it found the differential treatment at issue in this case to be based on a suspect ground, in casu sex.64 It follows that the ‘very weighty reasons’ test may also apply in cases concerning immigration policy.

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

C. Is the Differential Treatment Based on a Reasonable and Objective Justification?

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.

It may be recalled that the AIA does not apply to nationals of some economically developed, mostly Western countries, including nationals of Member States of the EU or EEA (section VI.B.i of chapter 2). With regard to the latter group, the Dutch government argued that their exemption was required by EU law as these nationals have the right of free movement within the European Union.67 The ensuing difference in treatment was consequently motivated by the aim of ensuring compliance with international obligations.

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

On top of the above arguments, the Dutch government also stated that the exempted countries did not create any ‘large-scale or uncontrolled’ migration influxes.71 While it is not entirely clear how this statement is to be understood, it is submitted that the fact that a certain country does not generate large numbers of immigrants does not imply that those who do come are more likely to integrate. In other words, there is no logical connection between the number of immigrants from a particular country and the individual integration capacity of each of them. The level of immigration from a particular country does not, therefore, justify a difference in treatment with regard to integration requirements.

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.

i. Compliance with International Obligations: EU Law and Bilateral Agreements

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.

It is submitted here that this is not the case. For one, the above arguments were not accepted by the ECtHR. However the position in situations such as the one at issue here also differs from those in Matthews and Bosphorus because the differential treatment is not as such required by international agreements. While EU law does indeed impose an obligation to grant a right of admission to EU nationals without subjecting them to integration conditions, it does not require such conditions to be imposed on other aliens. EU Member States may therefore also choose to avoid the differential treatment by not imposing integration requirements at all. Consequently, the responsibility of these states for the differential treatment is beyond doubt. This reasoning also applies equally in situations where the differential treatment results from international obligations other than those concerning the EU right of free movement.

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

The above judgments do not explicitly refer to the existence of international obligations; however, the justification for the differential treatment relates to the existence of the EU as a legal order. In several other judgments, the ECtHR also accepted that compliance with obligations of EU law constitutes a legitimate aim for the purposes of limiting the rights and freedoms laid down in the ECHR. In particular, in the aforementioned Bosphorus case (concerning Article 1 First Protocol ECHR), the Court decided that ‘compliance with legal obligations flowing from [the] membership of the European Community’ constituted ‘a legitimate interest of considerable weight’. It also recognised ‘the growing importance of international cooperation and of the consequent need to secure the proper functioning of international organisations’, in particular in relation to a supranational organisation such as the EC.75 Finally, in S.A. Dangeville, the ECtHR acknowledged that the purpose of bringing domestic legislation into line with an EC directive was ‘clearly a legitimate objective consistent with Article 1 Protocol 1’.76 This case also concerned a difference in treatment, which was, however, not examined separately by the Court.

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