Dr Sarah
Ganty, LL.M. (Yale), Ph.D. (ULB); J.S.D. candidate, Yale Regulation College; F.N.R.S.
Postdoctoral Fellow, UCLouvain; Analysis Customer, Bonavero Institute of Human
Rights (Oxford); Analysis Fellow, CEU Democracy Institute (Budapest); President
of the YLS European Regulation Affiliation
Photograph: Raad van State (the referring court docket), through Wikimedia
Commons
Final February, the Grand Chamber of the Court docket of Justice of the
European Union (CJEU) delivered its ruling within the Keren
case. The Court docket upheld the likelihood for Member States (MSs) to impose
civic integration examinations on the beneficiaries of worldwide safety
however launched vital limitations relating to the modalities, prices and
sanctions connected to such necessities. Many EU migration legal professionals and students
on social media welcomed the judgment. By putting some constraints on the
design and implementation of integration assessments, the Court docket curbed what had
develop into genuinely abusive and exclusionary practices in direction of the beneficiaries
of worldwide safety.
But the broad endorsement of the Keren ruling amongst authorized
practitioners and students displays a deeper and extra troubling pattern: the
rising normalisation and depoliticisation of integration necessities imposed
on third-country nationals. In Keren the Court docket successfully reconciled what
appeared irreconcilable – construing the fitting to entry of integration
programmes beneath Article
34 of the Qualification Directive as doubtlessly entailing integration
obligations. Such a studying would seemingly have provoked vital concern thirty
years in the past, when civic integration assessments had been nonetheless thought to be peripheral or
ideologically motivated proposals originating from the political
fringes. At this time, nevertheless, these measures have develop into entrenched and largely
uncontroversial options of EU migration governance. Their underlying
normative, authorized, human and social implications are hardly ever scrutinised. Solely
their modalities are. Crucially, this shift has occurred within the absence of
compelling proof to help the efficacy or necessity of such obligations.
Quite the opposite, analysis more and more signifies that integration necessities –
regardless their modalities – in addition to being ineffective,
are inclined to discriminate
and exclude, slightly
than embrace or empower, these topic to them.
Following a
temporary contextual overview of the evolution of integration necessities inside
the EU (Part 1), this commentary units out the factual and authorized background
of the case, summarising the Opinion
of Advocate Normal (AG) Medina and the reasoning of the Grand Chamber
(Part 2). It then argues that the Court docket largely reiterates the rules
beforehand articulated in its case legislation on civic integration duties, together with
beneath the framework of EU migration legislation and the EU–Turkey
Affiliation Settlement (Part 3). Whereas this continuity might seem
doctrinally constant, I contend that Keren merited a special end result
no matter the newly adopted 2024 Qualification
Regulation, which was not relevant to the case (Part 4). In
explicit, Article 34 of the Qualification Directive ought to have been
interpreted extra protectively to reject the imposition of integration
obligations and examinations altogether. That is notably vital in
mild of the growing instrumentalisation of integration necessities as
mechanisms of exclusion – instruments deployed to focus on those that, in Bauman’s
phrases, are rendered ‘strangers’ by a authorized and political order that marks
them as insufficiently aligned with the dominant cultural and social norms
(Part 5).
1.
The Civic Flip: Context
Over the previous twenty years, integration obligations have develop into
more and more prevalent throughout EU Member States (see right here
and right here),
often functioning as preconditions for entry to authorized standing and social
rights. Their proliferation is usually framed within the literature as indicative
of a broader civic
– and even ideological
– flip in European migration governance.
Though integration has lengthy been addressed on the European stage by means of
comfortable legislation devices, the EU’s competence in migrant’s integration stays
restricted by the Treaty on the Functioning of the EU (TFEU) (Article 79(4)). Nonetheless,
the idea has discovered its approach into EU secondary laws by means of the EU’s
immigration insurance policies. Because the early 2000s, integration has featured in
devices, such because the Household
Reunification Directive and the Lengthy-Time period Residence
Directive. These devices mirror an ongoing stress between two
competing fashions: integration by means of rights versus integration by means of
duties.
Whereas the unique proposals for each directives mirrored a rights-based
logic – conceiving safe residence as a method to facilitate integration – this
method was more and more contested by sure MSs, notably Austria, Germany
and the Netherlands (see e.g., right here).
These states had already applied integration assessments at numerous phases of the
migration authorized journey and actively advocated for his or her incorporation into the
EU authorized framework. Consequently, the ultimate variations of the directives allow
MSs to situation entry to household reunification and long-term resident standing
on compliance with integration necessities.
Concurrently, nationwide integration necessities started to multiply
and prolong past the scope of those directives. As an illustration, in international locations such
as Germany, the Netherlands and Denmark, such obligations had been utilized within the
context of the EU–Turkey Affiliation Settlement (and the extra
Protocol and choice
of the Affiliation Council) regardless of this regime historically falling
outdoors the scope of EU immigration legislation.
With regard to the combination of the beneficiaries of worldwide
safety, the EU possesses broader legislative competence beneath Article 78
TFEU. Nonetheless, legislative exercise on this space has remained comparatively
restricted, with integration issues primarily addressed in Article 34 of the
Qualification Directive, which affirms a proper to entry integration
programmes. Till not too long ago, EU legislation didn’t explicitly authorise MSs to impose
integration obligations on the beneficiaries of worldwide safety – not like
within the area of common migration directives. Regardless of this, a number of MSs,
together with the Netherlands, have launched such necessities, notably by means of
examinations, following the granting of safety standing. It was on this
context {that a} preliminary reference was submitted to the Court docket in Keren,
primarily asking whether or not such integration necessities are appropriate with
Article 34 of the Qualification Directive and if that’s the case, beneath what circumstances.
2.
The Keren case
Keren arose from the earlier
model of the Dutch Moist
Inburgering, which mandates civic integration for non-temporary residents,
together with the beneficiaries of worldwide safety. This requirement
contains passing exams in language and societal data inside three years,
topic to a restricted extension. Failure ends in monetary penalties and a
reimbursement obligation for state loans supplied to help compliance. In casu T.G.,
an Eritrean nationwide granted asylum within the Netherlands, didn’t cross the related
exams throughout the allotted timeframe and was fined EUR 500 and ordered to repay
a EUR 10,000 mortgage. Even after being granted an exemption based mostly on demonstrated
effort, these penalties remained. The Dutch Council of State referred
preliminary inquiries to the CJEU, asking whether or not such measures align with
Article 34 of Directive 2011/95/EU (the Qualification Directive), which
ensures entry to integration programmes for the beneficiaries of
worldwide safety.
AG
Medina discovered that Article 34 of the Qualification Directive solely grants a
proper of entry to integration programmes – implying ‘optimistic measures enabling
refugees to combine’ (§47). For the AG, this provision didn’t impose a
corresponding obligation on the beneficiaries of worldwide safety to
take part in integration measures. Drawing on the precept of shared
competence in EU legislation, he discovered that MSs retain discretion to find out whether or not
participation in such programmes must be obligatory (§42). The Directive
likewise doesn’t preclude nationwide laws requiring the beneficiaries of
worldwide safety to endure a civic integration examination.
Nonetheless, MSs might not require refugees to realize a selected cross mark in
such examinations as a situation or proof of integration. Furthermore, Article 34
of the Qualification Directive precludes nationwide laws that imposes on
refugees the duty to bear extreme prices for participation in integration
programmes, or circumstances participation on passing an integration examination
beneath the specter of monetary sanctions, corresponding to the duty to repay a mortgage
or pay a tremendous.
The CJEU
largely accepted the AG’s method, albeit following a special prepare of
thought. Counting on a contextual and teleological interpretation of Article 34 –
which considerations entry to rights, the significance of integration measures, the
expectation of long-term residence and the potential pathway to naturalisation –
the Court docket discovered that ‘MSs get pleasure from a margin of discretion in deciding on the
content material of the combination programmes referred to in that article, in addition to
on the sensible preparations for the organisation of these programmes and the
obligations which may be imposed on contributors in that context’ (§ 62,
emphasis added). On this approach the Court docket successfully conflates the
irreconcilable: the fitting to integration and the duty to combine.
On this foundation,
and according to the AG, the Court docket held that nationwide laws requiring
participation in integration programmes and profitable completion of associated
examinations is appropriate with Article 34, supplied it’s proportionate (§66)
and takes under consideration the person circumstances of every particular person by means of an
individualised evaluation (§§67–68). Differing from the AG on a number of factors,
the Court docket discovered that MSs might require refugees to attain a cross mark in
integration examinations, however the required stage should stay elementary and
proportionate to the purpose of selling integration (§73). Furthermore, whereas the
imposition of a tremendous for failure to cross the examination will not be precluded, such
penalties should not be automated or systematic. They have to be distinctive and
based mostly on goal proof of a persistent and demonstrated lack of willingness
to combine (§74). Crucially, the Court docket held that Article 34 prohibits
requiring the beneficiaries of worldwide safety to bear the total value
of obligatory integration measures. Such measures ought to in precept be free
of cost. Solely beneficiaries with ample monetary means could also be required
to contribute, and any such contribution have to be affordable (§§82–83).
3.
Limits of the bounds set
by the Court docket
The CJEU has lengthy grappled with the legality of integration
circumstances. In European
Parliament v. Council, the Court docket cautiously upheld the permissibility
of such measures beneath the Household Reunification Directive, whereas emphasising compliance
with basic rights.
Later, integration obligations featured prominently within the case legislation
associated to the EU–Turkey Affiliation Settlement. With out rejecting the precept
of integration necessities or examinations, the Court docket has persistently struck
down nationwide measures imposing such circumstances on Turkish employees and their
members of the family. These measures had been discovered to breach the respective standstill
clauses, as they launched new, disproportionate restrictions. As an illustration,
the Court docket struck down Danish guidelines requiring minors to exhibit ‘ample
ties’ to Denmark in Caner
Genc, or spouses to show stronger attachment to Denmark than to their
nation of origin in A.
The imposition of language assessments on Turkish employees sponsoring spouses in X
or on the spouses themselves in Dogan
was additionally deemed illegal. A key concern in most of those circumstances has been the
absence of individualised assessments.
This proportionality logic additionally informs the Court docket’s interpretation
of EU secondary laws – most notably the Household Reunification Directive
and the Lengthy-Time period Residence Directive – each of which expressly permit MSs to
impose integration ‘circumstances’ or ‘measures’
as conditions for residence permits
or visas. In rulings like Ok
and A, C
and A and P
and S, the Court docket recalled the precept that integration circumstances
should serve the aims of the directives – facilitating household life and
supporting long-term integration. Civic data and language acquisition, the
Court docket argued, promote communication, social cohesion and entry to employment
and training. Therefore, the Court docket concluded within the three circumstances – with out providing
additional reasoning – that the requirement to cross an examination constitutes an
applicable technique of reaching these aims. Nonetheless, the Court docket has
persistently connected vital caveats. It held that authorities should contemplate
the efforts made by candidates, even when they in the end fail the examination.
Likewise, the implementation of integration measures should stay proportionate,
together with the scrutiny of the extent of information required, the accessibility of
preparatory supplies, the price of registration and the imposition of fines.
The Court docket has additionally highlighted the necessity to contemplate particular person circumstances,
corresponding to age, illiteracy or academic background.
The Keren ruling builds on this present case legislation, making use of these
rules mutatis mutandis to the beneficiaries of worldwide safety.
On its face, Keren aligns with the Court docket’s established method: it
limits disproportionate administrative sanctions whereas upholding the legitimacy
of the combination obligations and examinations throughout the framework of the
Qualification Directive. The judgment may even seem commendable for pushing
again in opposition to the extra punitive dimensions of nationwide integration regimes.
However two vital
considerations stay.
4.
Remodeling a Proper
into Obligations
The Keren judgment raises a basic concern absent from
different integration-related circumstances: the Court docket’s interpretation of Article 34 of
the Qualification Directive, which stands out for its distinctive authorized and
normative framing. This provision, entitled ‘Entry to integration services’,
requires MSs to make sure entry to integration programmes for the beneficiaries
of worldwide safety, with due regard to their particular wants.
Each the AG and the Court docket acknowledged that Article 34 establishes a
proper to entry integration services. Logically, this could preclude the
imposition of integration obligations, as rights by definition indicate private autonomy ‘as (half) authorship of 1’s life’.
Nonetheless, each concluded by means of distinct routes that the availability doesn’t
stop such obligations.
The AG’s justification – that shared competence permits MSs to
legislate within the absence of EU motion – fails to account for the truth that
Article 34 already expresses an exercised competence. As soon as the EU legislates a
proper, MSs ought to in precept not dilute it by imposing extra burdens. In accordance
to the AG’s logic, any proper in a shared competence area may very well be mirrored by
a corresponding obligation at nationwide stage, inverting the aim of rights
and resulting in absurd, even unjust outcomes that are solely partially contained
by the proportionality precept.
The Court docket’s reasoning, to the extent that it’s discernible, additionally fails
to influence. Whereas it invokes the margin of discretion afforded to MSs, it
stays solely silent on how the imposition of obligatory integration exams
could be reconciled with a provision that enshrines a proper to entry integration
programmes. The normative shift is additional compounded by the Court docket’s
unacknowledged alignment (virtually point-by-point) with Article 35 of the brand new Qualification
Regulation, which explicitly permits integration obligations beneath sure
circumstances and can apply from July 2026. From a Rule of Regulation perspective, this
implicit utility of the brand new Article 35, which was not relevant to the
case (and wouldn’t earlier than 2026) is deeply problematic. The brand new Article 35 was
not meant to make clear the present Article 34, however to switch and limit it.
Treating them as interchangeable – and in a non-explicit approach – disregards each
their authorized and normative distinction and their temporal utility.
Even accepting the legitimacy of integration obligations, it’s
putting that the Court docket by no means addresses the central query: whether or not
integration could be extra successfully achieved by means of voluntary participation – a
consideration that any real proportionality take a look at ought to require, particularly
if the Directive doesn’t present for obligatory integration. Nor does it
look at whether or not such obligations, notably exams, really contribute to
integration. As a matter of truth, the clues in proof slightly argue in opposition to
integration necessities. Research have proven that integration assessments are sometimes ineffective,
legally
misconstrued, misapplied and counterproductive. They dilute
the safety that non-citizens get pleasure from beneath human rights legislation. But the
Court docket continues to deal with integration obligations, particularly examinations, as
self-evidently legitimate. It endorses the rationale as inherently optimistic, depoliticising
and naturalising deeply normative questions on belonging, equality,
hierarchy and oppression. The Court docket merely attracts on axiomatic assumptions.
5.
Racialised and Colonial
Logics of (Civic) Integration
Integration insurance policies – and civic integration specifically – have lengthy
been topic to critique extending properly past the authorized area, for being
rooted in a colonial, oppressive and stigmatising rationale. Willem
Schinkel highlights how it’s by no means utilized to white residents, revealing
its racialised operate. Saskia
Bonjour factors to the paradox of civic integration insurance policies that demand
assimilation whereas reinforcing exclusion, echoing colonial ‘civilizing missions’.
Tamar
de Waal has described integration assessments as symbolic hierarchies that
reinforce precarious belonging. Adrian
Favell observes that post-imperial states have used integration as a solution to
reframe their civilisational missions in a world marked by range. Dora
Kostakopoulou has additionally criticised such insurance policies as mechanisms of self-discipline
and management – selling a slender, idealised nationwide identification to which migrants
should conform. These duties usually assemble belonging as conditional on
civic and ethical ‘worthiness’, marginalising those that don’t match the mannequin.
This pattern is deeply regarding, not solely normatively but in addition empirically,
given the shortage of any empirical proof –so pricey
to the EU Fee in integration issues – demonstrating that obligatory integration measures are
efficient in any approach.
The content material of integration assessments additional compounds these considerations.
Whereas the Court docket sometimes limits its scrutiny to language necessities, it has
up to now averted addressing the societal data elements of civic
integration exams, which represent an vital a part of these necessities.
But analysis has persistently proven that, past language testing, these assessments
are sometimes crammed with absurd, stigmatising
or culturally loaded questions. Removed from being impartial assessments, they
are often imbued with racialised and colonial
assumptions, functioning as devices of symbolic exclusion and
mechanisms of ‘othering’.
Furthermore, the targets of those insurance policies are usually not random. Integration
obligations disproportionately have an effect on migrants who’re portrayed as ‘problematic’
– these thought to be non-Western, Muslim, socioeconomically deprived, or
with restricted academic background, i.e. the so-called ‘Migrants
with Poor Prospects’. Integration thus turns into a device to self-discipline and
stigmatise, slightly than to help and empower.
In truth, slightly than addressing structural inequalities by means of
optimistic measures, many MSs have adopted punitive or conditional approaches
by means of these civic integration programmes. This displays a broader pattern in
which the rhetoric of integration has usually served to legitimise an increasing
array of exclusionary practices, together with restrictions to basic rights.
As an illustration, within the so-called Danish
Ghetto case pending earlier than the Court docket, city gentrification of
racialised neighbourhoods is introduced as an integration technique,
generalising traits perceived as destructive and unacceptable in Denmark
and attributing them to all immigrants and their descendants from non-Western international locations.
Such extremely questionable insurance policies contribute due to this fact ‘to the perpetuation of
that stereotyping and stigmatisation’ within the
phrases of AG Ćapeta (§152).
Conclusion
Whereas Keren
curtails sure abusive practices, it concurrently endorses the conditional
logic of integration necessities for the beneficiaries of worldwide
safety, contributing to the broader normalisation of exclusionary and
stigmatising measures. Civic integration necessities don’t foster inclusion
however slightly reinforce hierarchies of belonging by means of symbolic and materials
hurt. It’s due to this fact crucial critically to look at the normative
foundations of integration duties, notably inside authorized reasoning, to
stop the entrenchment of exclusion beneath the rhetoric integration.
