SummaryIn the past three years the authorities in the Netherlands have introduced a series of measures with the stated aim of better integrating its migrant population. The two key measures are integration tests–one administered in the Netherlands that most foreign residents must take, and another that must be passed by would-be family migrants from some countries before they can join spouses or family members in the Netherlands. The policies were adopted during a period of heightened public concern about the impact that migrant communities have on social cohesion, with a particular criticism of the supposed lack of integration among Moroccan and Turkish migrant communities. It is the second policy–the overseas integration test in force since 2006–that raises the greatest human rights concerns. Unlike the integration test in the Netherlands, introduced in 2007 and which most foreign nationals must pass in order to obtain long-term residence, the overseas integration test applies only to nationals of some countries wishing to join family members or spouses in the Netherlands. (The test also applies to family members of Dutch citizens). Citizens of European Union (EU) and European Economic Area (EEA) states and Switzerland, Australia, Canada, Japan, New Zealand, South Korea, and the United States (US) are not required to take the test. In practice, the overseas integration test targets would-be family migrants from the countries of origin of two of the three largest migrant communities in the Netherlands–Moroccans and Turks–as government documents published when the draft measure was presented to parliament make clear. (Migrants from the former Dutch colony Suriname, the other large migrant community, are partially exempt from the provisions, if they have completed of primary education in Dutch language, as Dutch is the official language and is the teaching language in schools). The test is an additional requirement on top of financial restrictions on family formation and reunification introduced in 2004, the latter of which apply also to Dutch and to some extent EU citizens and residents wishing to bring non-Dutch family members, including spouses, to the Netherlands. In addition to the fees and other costs related to the test and application for family migration, family members in the Netherlands must demonstrate that they earn sufficient income to support themselves and their family member backed by a longer-term employment, (while self-employed persons have to prove sufficient profit for the current and immediately preceding financial years). The introduction of the overseas integration test led to a significant reduction in the number of applications for family migration in the first year. Applications from Turkey and Morocco in particular have fallen significantly. Current plans by the government to make the overseas integration test harder are likely to delay or discourage applications further, since the cost of the test is €350 (each time the test is taken). While international human rights law does not prohibit states to differentiate between citizens and non-citizens in immigration policies, states cannot discriminate on the basis of nationality or ethnicity (aside from a narrow exception for EU citizens) even in this sphere. The overseas integration test is discriminatory because it explicitly applies only to family migrants from certain nationalities, namely predominantly “non-western” countries. The legitimate objective of better integration of all migrants cannot be met by a test that only some family migrants are required to take. The Dutch authorities have not provided the very high level of evidence they would need to justify such clear difference in treatment of different nationalities. No evidence has been given to show that the level of a country’s development is a reliable indicator of the skills, capacity, ability, inclinations, or willingness of a potential individual migrant to integrate, and therefore that migrants from poorer countries need to pass special tests to integrate. The test, coupled with increased financial requirements for family members or new spouses, also amounts to indirect discrimination against Turkish and Moroccan migrants in the Netherlands, who at present rarely marry outside their community and many of whom bring partners from their country of ethnic origin. These communities suffer higher rates of unemployment, an over-concentration in low wage employment, and low incomes compared to the national average, making it hard for them to meet the financial requirements. The test and financial restrictions also infringe the right to family life, affecting foreign national would-be family migrants, and also the rights of Dutch residents wishing to bring family members to live with them. The time required to prepare for and pass the test, coupled with the three to six month application procedure for entry, can lead to significant periods of separation for spouses and family members. Again, Turkish and Moroccan migrants in the Netherlands, the majority of whom are Dutch nationals, are disproportionately affected by these measures. Hence, while applying the overseas integration test to family members of Dutch nationals appears at first glance to be equal treatment, in fact it affects Dutch nationals from the main immigrant groups to a much greater extent than it does Dutch nationals. The right to family life is a qualified right. The state has a legitimate interest in controlling immigration, and European human rights law provides no absolute right to live as a family in a particular country. But a significant delay in family reunification or formation can violate the right to family life for the family member living in the Netherlands if the strength of ties that person has in the country makes it unreasonable to give up that life and move elsewhere to be together with his and her family member, especially if the person was born in the Netherlands and/or has lived there for a significant portion of his or her life. By preventing spouses from being able to live together for an extended period of time, the test and financial measures are arguably also a breach of the Netherlands’ positive obligation to give effect to the right to marry and found a family. The Dutch government also has a legitimate interest in the integration of its migrant population, which can bring benefits in terms of social cohesion and to migrants themselves. But the overseas integration test does not contribute to integration. By delaying entry into the Netherlands, it actually delays the process of integration of the family members of existing migrants. It also runs the risk of alienating migrant communities in the Netherlands because it creates an impression that their family members (and hence they) are not welcome in the country. As the Dutch government has pointed out elsewhere, family life can contribute to socio-cultural stability and, consequently, the integration of migrants into Dutch society. Developing an effective approach to integration, that does not discriminate on the basis of nationality, and is fully consistent with international human rights law, would also serve as a positive example for other European states. |