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 courtroom), 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 concerning the modalities, prices and
sanctions connected to such necessities. Many EU migration attorneys and students
on social media welcomed the judgment. By inserting some constraints on the
design and implementation of integration checks, the Court docket curbed what had
grow to be 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 development: 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 appropriate to entry of integration
programmes underneath Article
34 of the Qualification Directive as probably entailing integration
obligations. Such a studying would probably have provoked vital concern thirty
years in the past, when civic integration checks have been nonetheless considered peripheral or
ideologically motivated proposals originating from the political
fringes. At the moment, nonetheless, these measures have grow to be entrenched and largely
uncontroversial options of EU migration governance. Their underlying
normative, authorized, human and social implications are not often 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 – apart from being ineffective,
are inclined to discriminate
and exclude, moderately
than embody 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 Common (AG) Medina and the reasoning of the Grand Chamber
(Part 2). It then argues that the Court docket largely reiterates the ideas
beforehand articulated in its case legislation on civic integration duties, together with
underneath 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 unique final result
regardless of the newly adopted 2024 Qualification
Regulation, which was not relevant to the case (Part 4). In
specific, 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 grow to be
more and more prevalent throughout EU Member States (see right here
and right here),
continuously 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
mushy 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)). However,
the idea has discovered its method into EU secondary laws by the EU’s
immigration insurance policies. For the reason that 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 pressure between two
competing fashions: integration by rights versus integration by
duties.
Whereas the unique proposals for each directives mirrored a rights-based
logic – conceiving safe residence as a way 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 carried out integration checks 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. For example, in international locations such
as Germany, the Netherlands and Denmark, such obligations have been utilized within the
context of the EU–Turkey Affiliation Settlement (and the extra
Protocol and resolution
of the Affiliation Council) regardless of this regime historically falling
exterior the scope of EU immigration legislation.
With regard to the combination of the beneficiaries of worldwide
safety, the EU possesses broader legislative competence underneath 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 subject of common migration directives. Regardless of this, a number of MSs,
together with the Netherlands, have launched such necessities, notably by
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 suitable with
Article 34 of the Qualification Directive and if that’s the case, underneath 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
consists of passing exams in language and societal information inside three years,
topic to a restricted extension. Failure ends in monetary penalties and a
reimbursement obligation for state loans offered to help compliance. In casu T.G.,
an Eritrean nationwide granted asylum within the Netherlands, did not go the related
exams inside the allotted timeframe and was fined EUR 500 and ordered to repay
a EUR 10,000 mortgage. Even after being granted an exemption primarily based 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 ‘constructive 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 needs to be obligatory (§42). The Directive
likewise doesn’t preclude nationwide laws requiring the beneficiaries of
worldwide safety to endure a civic integration examination.
However, MSs might not require refugees to realize a particular go 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
underneath the specter of monetary sanctions, corresponding to the duty to repay a mortgage
or pay a fantastic.
The CJEU
largely accepted the AG’s method, albeit following a unique practice 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 take pleasure in 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 that could be imposed on members in that context’ (§ 62,
emphasis added). On this method the Court docket successfully conflates the
irreconcilable: the appropriate to integration and the duty to combine.
On this foundation,
and in step with the AG, the Court docket held that nationwide laws requiring
participation in integration programmes and profitable completion of associated
examinations is suitable with Article 34, offered it’s proportionate (§66)
and takes into consideration the person circumstances of every particular person by 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 go mark in
integration examinations, however the required stage should stay elementary and
proportionate to the objective of selling integration (§73). Furthermore, whereas the
imposition of a fantastic for failure to go the examination just isn’t precluded, such
penalties should not be computerized or systematic. They should be distinctive and
primarily based 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 adequate monetary means could also be required
to contribute, and any such contribution should be affordable (§§82–83).
3.
Limits of the boundaries 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 underneath the Household Reunification Directive, whereas emphasising compliance
with elementary 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
relations. These measures have been discovered to breach the respective standstill
clauses, as they launched new, disproportionate restrictions. For example,
the Court docket struck down Danish guidelines requiring minors to display ‘adequate
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 checks 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 Okay
and A, C
and A and P
and S, the Court docket recalled the precept that integration circumstances
should serve the targets of the directives – facilitating household life and
supporting long-term integration. Civic information and language acquisition, the
Court docket argued, promote communication, social cohesion and entry to employment
and schooling. Therefore, the Court docket concluded within the three circumstances – with out providing
additional reasoning – that the requirement to go an examination constitutes an
applicable technique of reaching these targets. Nevertheless, the Court docket has
persistently connected vital caveats. It held that authorities should think about
the efforts made by candidates, even when they finally 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 think about particular person circumstances,
corresponding to age, illiteracy or academic background.
The Keren ruling builds on this present case legislation, making use of these
ideas 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 inside 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 crucial
considerations stay.
4.
Reworking a Proper
into Obligations
The Keren judgment raises a elementary 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 amenities’,
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 amenities. Logically, this could preclude the
imposition of integration obligations, as rights by definition indicate private autonomy ‘as (half) authorship of 1’s life’.
Nevertheless, each concluded by distinct routes that the supply doesn’t
forestall 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 subject might 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 necessary integration exams
may 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 underneath 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 interchange and prohibit it.
Treating them as interchangeable – and in a non-explicit method – disregards each
their authorized and normative distinction and their temporal utility.
Even accepting the legitimacy of integration obligations, it’s
placing that the Court docket by no means addresses the central query: whether or not
integration may be extra successfully achieved by voluntary participation – a
consideration that any real proportionality check 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, truly contribute to
integration. As a matter of truth, the clues in proof moderately argue in opposition to
integration necessities. Research have proven that integration checks are sometimes ineffective,
legally
misconstrued, misapplied and counterproductive. They dilute
the safety that non-citizens take pleasure in underneath 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 constructive, 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 particularly – have lengthy
been topic to critique extending effectively 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 checks as symbolic hierarchies that
reinforce precarious belonging. Adrian
Favell observes that post-imperial states have used integration as a technique 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 typically assemble belonging as conditional on
civic and ethical ‘worthiness’, marginalising those that don’t match the mannequin.
This development is deeply regarding, not solely normatively but in addition empirically,
given the dearth of any empirical proof –so expensive
to the EU Fee in integration issues – demonstrating that necessary integration measures are
efficient in any method.
The content material of integration checks additional compounds these considerations.
Whereas the Court docket usually limits its scrutiny to language necessities, it has
up to now averted addressing the societal information parts of civic
integration exams, which represent an vital a part of these necessities.
But analysis has persistently proven that, past language testing, these checks
are sometimes stuffed with absurd, stigmatising
or culturally loaded questions. Removed from being impartial assessments, they
are continuously imbued with racialised and colonial
assumptions, functioning as devices of symbolic exclusion and
mechanisms of ‘othering’.
Furthermore, the targets of those insurance policies will not be random. Integration
obligations disproportionately have an effect on migrants who’re portrayed as ‘problematic’
– these considered 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, moderately than to help and empower.
In reality, moderately than addressing structural inequalities by
constructive measures, many MSs have adopted punitive or conditional approaches
by these civic integration programmes. This displays a broader development in
which the rhetoric of integration has typically served to legitimise an increasing
array of exclusionary practices, together with restrictions to elementary rights.
For example, 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 adverse 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 moderately reinforce hierarchies of belonging by 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
forestall the entrenchment of exclusion underneath the rhetoric integration.
