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Background

Almost 20 percent of the 16.4 million inhabitants of the Netherlands are persons with a foreign background (i.e. they have at least one parent born outside the country).¹ Migrants who originate from Turkey, Africa, Latin America, and Asia (with the exception of Indonesia–the former Dutch East Indies–South Korea, and Japan) are considered to be “non-western” by official statistics. People with at least one “non-western” parent comprise almost 11 percent of the Dutch population.² The three largest “non-western” migrant communities (each with more than 300,000 members) originate from Turkey, Morocco, and the former Dutch colony of Suriname.³

In the background of a public climate involving heated criticisms of the previous Dutch model of integration and of levels of immigration, measures have been introduced in the past three years, supposedly in the name of promoting “integration,” which have had the effect of deterring certain persons from entering the Netherlands to join their families, or to marry. In 2006 the government introduced an integration test for predominantly “non-western” migrants that have to be passed before the migrant is allowed to enter the Netherlands (under the Integration Abroad Act, Wet inburgering in het buitenland, 2005). This was followed in 2007 by the introduction of an integration exam for most migrants resident in the Netherlands (under the Integration Act, Wet inburgering, 2006).

Under the 2007 law, all foreign nationals⁴, with the exception of EU/EEA citizens⁵ resident in the Netherlands, must pass the integration exam in the Netherlands within five years of the law coming into force.⁶ A number of exceptions have, however, been introduced in the Civic Integration Act for foreign residents holding certain diplomas and certificates⁷ or who have medical problems.⁸ The test also applies to foreign nationals resident in the Netherlands prior to the introduction of the law.⁹ Those who do not pass the exam are subject to a fine of up €1,000¹⁰ and are ineligible for a permanent residence permit.

By contrast, and as discussed in detail below, the overseas integration test¹¹ does not apply to all foreign nationals wishing to migrate to the Netherlands for family reasons. Foreign nationals from “western” countries are exempted.

On the face of it the overseas integration test is discriminatory because it explicitly applies only to family migrants from certain nationalities, namely predominantly “non-western” countries. To evaluate its impact, Human Rights Watch has looked at the purported aim of the legislation, assessed where it goes any way towards meeting this aim, and whether the clear difference in treatment between different nationalities can be justified.

We have not been able to find sufficient justification for such clear discriminatory treatment. Apart from the clear, direct discrimination by nationality, the test, coupled with financial requirements for family members and new spouses to enter the Netherlands, also amounts to indirect discrimination targeting Turkish and Moroccan migrants in the Netherlands, who rarely marry outside their community and many of whom bring partners from their country of ethnic origin. These communities are generally in a more difficult position on the labor market compared to the national average, making it hard for them to meet the financial requirements. The test and financial restrictions can lead to significant periods of delay in, or even the abandonment of, family reunification or formation. This infringes the right to family life, affecting the would-be family migrants and the family members living in the Netherlands.