Integration Requirements for Immigrants in Europe

A Legal-Philosophical Inquiry

Tamar de Waal

• Publisher: Hart Publishing
• Year: 2021
• ISBN:
  9781509931668
• Edition: 1
• Topic: Jura
• Subtopic: Rechtswissenschaft

Based on legal-philosophical research, and informed by insights gleaned from empirical case studies, this book sets out three central claims about integration requirements as conditions for attaining increased rights (ie family migration, permanent residency and citizenship) in Europe: (1) That the recent proliferation of these (mandatory) integration requirements is rooted in a shift towards 'individualised' conceptions of integration. (2) That this shift is counterproductive as it creates barriers to participation and inclusion for newcomers (who will most likely permanently settle); and is normatively problematic insofar as it produces status hierarchies between native-born and immigrant citizens. (3) That the remedy for this situation is a firewall that disconnects integration policy from access to rights. The book draws on perspectives on immigrant integration in multiple EU Member States and includes legal and political reactions to the refugee/migrant crisis.

1

From Societal to Individual Integration

The central aim of this book is to find out how to ensure that EU Member States do not misuse integration requirements for TCNs for exclusionary purposes. In order to do that, I must first explain what is enabling and driving the burgeoning growth of integration requirements in a growing number of EU Member States over the last 25 years. In this first chapter, I will therefore focus on how the proliferation of these public integration policies can be understood. What are their formal objectives, legal characteristics and main effects in European societies? To answer these questions, I will, on the one side, expound the legal organisation of (mandatory) integration requirements for family migration, permanent residency and naturalisation in Member States. On the other side, I will describe a wider conceptual shift unfolding in Europe¹ on the level of Member States regarding the general notion of ‘integration’ that, as I see it, intensified and serves to justify the observed legal increase of integration requirements as conditions for obtaining residency and citizenship rights for TCNs. To be sure, I do not argue this conceptual shift is the only factor that explains the proliferation of legal integration requirements in Member States, but that it does play an important role.² This conceptual shift, I argue, has affected and still influences public perception of what ‘integration’ is and who is responsible for it.

In essence, I analyse that in EU Member States ‘integration’ is increasingly understood as what I call ‘individualised’, that is, as solely applicable to individual member of immigrant groups, in particular those with non-EU and non-Western backgrounds (see, eg, Schinkel 2017; Prins 2011). More specifically, the concept of ‘integration’ is used to assess the compatibility of persons with immigrant backgrounds with (idealised) societal standards to determine their belonging to ‘society’.³ However, the term ‘integration’ stems from the functionalist tradition of sociology and was understood as a ‘holistic’ notion applicable to society as whole and describing its collective functioning. In several EU policy and legal documents, it is (still) defined based on this initial conceptualisation, but particularly on the national level in Europe it is increasingly less so.

In this chapter, I concentrate on the ramifications of this broader conceptual shift on the formation and purposes of integration requirements connected to obtaining residency rights and citizenship for TCNs in EU Member States. Ultimately, I hope to demonstrate that one of the most profound effects of the fact that in Europe ‘integration’ is increasingly understood as a property of individuals with (non-EU, non-Western) immigrant backgrounds, is that the relationship between European states and their newly arrived TCNs is interpreted and discussed in contractual terms. The main purpose of integration requirements then becomes to compel TCNs to fulfil their obligation to individually integrate in order to acquire secure residency rights and/or full citizenship delivered by the receiving state. As a result, the focus of integration requirements shifts from their impact on societal goals to judgements of individual merit or deserving. However, if this happens, integration requirements become predisposed to having counterproductive effects on integration, seen from a more long-term, societal and multi-dimensional perspective. Given their focus on measuring who ‘deserves to belong’ (and, as a corollary, preventing the ‘belonging’ of newcomers who do not deserve it), these policies are less evaluated based on whether they in fact support or compromise certain desirable policy objectives aimed at broader societal outcomes. Instead, they are constantly amended based on the (arbitrary) benchmark when individual TCNs can be deemed to have integrated ‘enough’.

To elucidate this, I will first describe the EU directives that enable Member States to implement integration requirements and examine domestic integration requirements for citizenship. Then, I will describe the conceptual shift in Europe regarding the concept of ‘integration’, moving from a more ‘holistic’ to an ‘individualised’ notion. Following that, I will examine its parallels and connections with the enacted legal integration requirements in various EU Member States. Finally, I will summarise the three most crucial outcomes of these developments on the shape and effects of integration requirements.

Before proceeding, it is important to mention two points of clarification. This chapter might raise the question on the exact causal relationship between the legal and conceptual shift I discuss. Which one reinforces the other; what is the root cause and what is the effect? This concern touches upon the recurring so-called ‘structure vs. culture debate’ among societal scientist. Do institutions (including public policies and laws) produce a certain culture (including public perceptions and discourses), or is it the other way around? In line with Robert Putnam, I hold that this debate is ultimately ‘fruitless’ as structures and cultures are not reducible to ‘linear causal questions’ but constitute a ‘mutually reinforcing equilibrium’ (Putnam et al 1994: 181). In this regard, also the relationship between the legal and conceptual shifts in Europe relating to integration that I highlight must be seen as intertwined and indeed mutually reinforcing. These shifts are moreover uneven processes across time and space. Looking back historically, we can certainly retrospectively find political debates in which ‘integration’ was applied solely to individual members of certain (immigrant) groups. Conversely, today we can point out examples of where the term is used as a societal-level property. Furthermore, the shift from societal to individualised integration has not manifested itself with equal force (yet) in all European countries. Nor do all countries follow exactly the same model. Anita Böcker and Tineke Strik, for example, observe that within political discussions on the national level on sharpening integration requirements, the (what I call) individualised conception of integration has been invoked most explicitly in the Netherlands, Austria and Denmark: ‘The desire to limit access to permanent residence to ‘well-integrated’ immigrants is a rather manifest aim of the [… integration …] tests in all three countries’ (Böcker & Strik 2011: 167). However, as will be demonstrated, public discourses of and policy tendencies towards individualised integration are definitely not limited to these countries. Simultaneously, it must be noted that certain European countries such as Sweden have remained, as Lilian Nygren-Junkin puts it, ‘test-free zones’ as they have, so far, not enacted integration requirements for immigrants as conditions to be met in order to retain secure residency rights or citizenship (Nygren-Junkin 2009: 57; see also Carrera and Vankova 2019: 36). However, ‘even’ in Sweden the introduction of integration requirements is regularly discussed and in October 2019, the Swedish Government appointed a committee to determine whether a language test would strengthen the status of Swedish citizenship (EMN 2020: 19). This ‘Cross-party Committee of Inquiry on Migration’ advised in 2020 that ‘permanent residence permits should only be granted to aliens who meet the requirements of Swedish-language skills and civic knowledge […]’ (SUO 2020: 28). The same is true for Ireland: although to date this country has not installed integration requirements for TCNs as conditions for increased residency or citizenship, in its recent Migrant Integration Strategy 2017–2020 it examined the desirability of both civic and language tests for those seeking citizenship (ESRI & Department of Justice and Equality 2020).

Second, I do not intend to idealise or support the holistic perspective on integration or suggest that things were better in the past. In fact, in Chapter 4 it will become clear that I neither endorse the ‘holistic’ nor ‘individualised’ perspective on integration. As I see it, both do not offer a plausible sociological explanation for the functioning of a society, nor a useful normative metaphor to describe it. That said, this chapter does not take sides but aims to document larger trends in public orientations, pinpointing laws and policies, and identifying some of their results. In Chapter 4, I return to the question of how to approach issues of integration for the purposes of policy debates.

I.The Growth of Integration Requirements in Multiple EU Member States

In this section, I will present the EU directives and national laws that govern the integration requirements in EU Member States for TCNs and summarise, where needed, the relevant case law. This overview does not cover all legal details of the integration trajectories and citizenship schemes in (specific) EU countries. Yet, at the end of this section, the legal structures and constitutional limitations that give EU Member States a measure of discretion to impose (mandatory) integration requirements are clarified. In addition, I will also sketch recent trends in integration requirements for residency rights and naturalisation in European countries.

In relation to integration policies and naturalisation laws for non-EU immigrants residing in Member States, there is no wide-ranging European harmonisation regime in force, but there are several non-binding soft regulatory tools (see, eg, Carrera and Vankova 2019; Arribas Lozano et al 2014: 557). Indeed, although the Treaty of Lisbon foresaw EU responsibility for establishing the means to promote integration policies of Member States, it excluded any harmonisation of these policies. In November 2003, the European Commission did put forward its view on integration policies with the policy paper entitled Communication on Immigration, Integration and Employment⁴ and in 2004 the Council of Ministers responsible for integration agreed on the document Common Basic Principles for Integration.⁵ These nonbinding EU documents generally emphasise the importance of integration of TCNs. Amongst other things, the Common Basic Principles of Integration states ‘integration is a dynamic, long-term and continuous two-way process of mutual accommodation, not a static outcome. It demands the participation not only of immigrants and their descendants but of every resident’ (principle 1). In addition, it stresses that enabling immigrants to acquire basic knowledge of the receiving society’s language, history and institutions is indispensable (principle 4).

In addition, there are EU directives that pressure Member States to facilitate certain integration outcomes. For instance, the Directive 2011/95/EU of the European Parliament and the Council of 13 December 2011 on the standards for the qualification of third country nationals or stateless persons for the qualification of third country nationals or stateless persons as beneficiaries of international protection, for a uniform status of refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (often called ‘Qualification Directive’) prescribes that Member States have a best-effort obligation to include refugees in their labour market and economic activities under equivalent conditions as their own nationals and give them the same access to education as other TCNs within their territories (see also De Lange et al 2017: 45). For those recognised as refugees, or accorded through some other kind of international protection status, integration policies have also been considered crucial in light of the socio-economic rights enshrined in the 1951 UN Convention relating to the Status of Refugees and its 1967 Protocols, to ensure durable solutions for refugees. However, there is no specific EU integration instrument to monitor these obligations and national approaches vary greatly (UN Refugee Agency 2013: 8). The two pieces of binding supranational legislation that explicitly grant Member States the competence to enact (mandatory) integration requirements and measures are the Council Directive 2003/86/EC of 22 September on the right to family reunification (‘Family Directive’)⁶ and the Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents (‘LTR Directive’).⁷,⁸ These EU Directives give Member States the option to make respectively family reunification and the acquisition of a long-term resident status for TCNs (after five years of uninterrupted residence) conditional on integration requirements. It is left to individual Member States to decide to implement such requirements. The European Commission and the European Court of Justice (‘CJEU’) see to it that national policies respect the rules these directives set (Bonjour 2014: 211).

Since the enactment of these Directives at the beginning of this century, there has been a clear trend towards formalised testing of language skills, national civic knowledge and value commitments as prerequisites for family migration, obtaining permanent residency and also for gaining access to naturalisation procedures (see, eg, Goodman 2010a,b; Pascouau 2014; Joppke and Eule 2016). Overall, these measures have been predominately aimed at, and have the strongest obligatory effects on, family migrants and refugees. This results from the fact that there are virtually no legal venues for access to EU countries for non-high-skilled migrants while high-skilled labour migrants are often exempted from mandatory integration measures. Moreover, internal EU immigrants cannot be obliged to undergo integration requirements given their EU citizenship. However, if high-skilled immigrants or internal EU immigrants volitionally seek permanent residency status or the nationality of the EU Member State in which they reside, they must also complete the integration requirements in place to obtain this (see, eg, Permoser 2012: 186; Carrera and Vankova 2019: 23–40).

In response to the Family Directive, the Netherlands, UK, Germany, France and Austria have introduced integration requirements abroad for family migrants. These so-called ‘predeparture measures’, require family members or spouses of TCNs to pass an integration test and/or a language test in their country of origin at the local embassy of the receiving Member State (Groenendijk 2011; De Vries 2013; Bonjour 2014). In addition, the EU Member States that have obligatory integration requirements for permanent residency are Austria, the Czech Republic, Denmark, Germany, France, Greece, Italy, the Netherlands, Portugal, the UK, Cyprus, Croatia, Estonia, Latvia, Lithuania, Malta and Romania (Pascouau 2014: 92; Solano and Huddleston 2020).

In addition, requirements for naturalisation increased across Europe. At first glance, this might only seem to be a slight increase. In 2010, 22 of the current 28 EU countries had implemented such tests; while 20 of the 28 countries already had a language condition in 1998. Yet, on closer comparison, of the 22 countries that used these tests in 2010, 16 had adopted formalised language tests, whereas in 1998 only 6 had such formalised tests (Goodman 2010a: 16). In addition, citizenship tests (mostly testing ‘knowledge of society’) were applied in 6 of the present 28 countries in 1999. In 4 countries, these tests were formalised. By 2010, that number increased to 15, of which 11 were formalised (Goodman 2010a: 16–17). Overall, recent studies determined that today, Austria, Belgium, the Czech Republic, Denmark, Germany, Finland, France, Greece, Hungary, Italy, Luxembourg, the Netherlands, Poland, Portugal, Slovakia, Estonia, the UK, Cyprus, Croatia, Estonia, Latvia, Lithuania, Malta and Romania have at least one integration requirement (either language or civic or both, either formalised or not) as a prerequisite for citizenship (EMN 2020: 19–20; Solano and Huddleston 2020).

That said, as mentioned in the Introduction, in virtually all European countries integration requirements as conditions for attaining increased rights are a remarkable dynamic policy field that is subject to constant changes: national laws on the (number of) requirements, costs, imposed sanctions and time given to complete them are frequently amended (Pascouau 2014: 92). The procedures for TCNs to obtain certain residency and citizenship rights therefore differ between EU nation-states and the differences are also subject to (in some countries almost constant) adjustments.⁹ As a result, to obtain permanent residency rights, it may or may not be required to pass language and citizenship tests of varying content and difficulty. Family reunification in some countries is made contingent on integration requirements, while in others it is not.¹⁰ In relation to naturalisation, binding EU standards are wholly absent and integration requirements differ between the Member States. However, no EU country fully blocks the path to naturalisation and the European Convention on Nationality signed...