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We are writing in reaction to two letters, sent in your name and the name of the State Secretary of Justice to the Chairperson of the Lower Chamber on June 17, 2008. The letters were prompted by questions to the government from members of parliament Boris van der Ham (D66) and Sadet Karabulut (SP) regarding our recent briefing paper on the Netherlands—“Discrimination in the Name of Integration,” requesting an official response to the paper.

May I begin by saying that Human Rights Watch appreciates the government’s extensive response to the issues raised by the parliamentarians and your willingness to engage with our concerns over the civic integration examination abroad. We welcome the assurance that the government’s ongoing evaluation of the legislation covering the test will examine many of the issues raised in our paper—including the costs of the exam and the impact of the test on the Netherland’s obligations under Article 8 of the European Convention on Human Rights—and evaluate the effects of related measures on family migration, in particular the restrictive income requirements.

In the interests of an informed debate, we think it would be useful to respond to the main points outlined in your letter and to emphasize the fundamental human rights issues which we hope the review will fully address.

Linking test to temporary residence permits

Your response states that the civic integration examination applies to all applicants who require an authorization for temporary residence (MVV) and hence does not target particular groups.

Human Rights Watch does not accept the logic of that argument, since it presupposes that it would be impossible to design the civic integration examination system in such a way that it could be administered to non-EU nationals who do not require an MVV to enter the Netherlands.

Your response states that a further explanation for the exemption of some countries lies in the fact most would-be migrants from these countries already speak English and are used to living in a country with similar cultural, social and economic circumstances. As a consequence, you argue it is reasonable to assume that nationals from these countries will have some insight into Dutch social relations, norms and values, reducing the risk of social isolation.

We do not accept the logic of this argument. We are unclear as to why speaking English is deemed sufficient to facilitate integration for nationals of some countries, while those from other countries (who may also speak English) must demonstrate knowledge of Dutch prior to entry. To illustrate, we are unaware of any evidence showing that nationals of Japan or South Korea are more likely to speak English than those from Nigeria or Kenya. Yet nationals from the first two countries are exempt from the test while those from the latter two countries are not.

In addition, in assessing the proportionality of the measure, we would like to emphasize again that we have yet to see a justification as to why for nationals of some countries, the knowledge of English is deemed sufficient to facilitate the process of integration, and no overseas test is required. As noted in our briefing paper, the argument that the exempted countries are comparable to the Netherlands in social, economic, and political background has no objective justification. The government has not, to our knowledge, demonstrated that family members from countries exempted from the overseas integration test tend to integrate more easily than those family members who are required to take it.

There is no evidence that the declared social and economic level of a country is a reliable indicator of the capability, inclination, or willingness of a potential individual migrant to integrate. In that context, we note the current debate in the Netherlands regarding the social impact of migrants from the new EU member states and concerns raised by municipalities that the lack of integration of these EU citizens causes similar problems to those with previous influxes of immigrants.

Moreover, an integration exam that provides a blanket exemption for nationals of some countries is not proportionate to its aim, namely that all migrants should have a basic level of integration before arrival.

Disproportionate impact of test and decline in applications

On the issue of discrimination, your response stresses that that the test affects spouses and family members of all Dutch citizens, regardless of their origin. Indeed, our briefing paper acknowledges that the test applies to family members of Dutch citizens and at first glance the legal rules on the integration exam abroad are formulated in a general and neutral way. But notwithstanding the fact that all Dutch citizens and residents (including Dutch “natives”) who wish to bring family members to the Netherlands must comply with the regulations, in practice the test disproportionately affects Dutch migrants of Turkish and Moroccan origin, the majority of whom are Dutch nationals, who are far more likely to bring family members from countries covered by the test than Dutch “natives” or migrants in the Netherlands who originate from “western” countries.

In addition, the Turkish and Moroccan communities suffer higher rates of unemployment, an over-concentration in low wage employment, and low incomes compared to the national average. They are therefore disproportionately affected also by the costs and financial requirements involved. So while applying the test abroad to Dutch nationals at first glance appears to be equal treatment, in fact the actual application negatively affects Dutch nationals from the main immigrant groups to a greater extent than other Dutch nationals and residents. Such a disproportionate effect amounts to indirect discrimination, which is prohibited under international human rights law.

We also note that the explanatory documentation and accompanying debate at the time of adoption of the Act indicate clearly that the intended target group of the Act are family members of persons originating from Morocco and Turkey, and that the public debate around the legislation often referred to its aim as preventing the ‘import’ of (uneducated, unqualified) brides from Morocco and Turkey.

We acknowledge that the decline in the number of applications for a MVV predates the introduction of the integration test abroad. But we do not accept the government’s conclusion that it follows that there is no causal link between the introduction of the test and the decline in applications.

We note that the Dutch Immigration and Naturalization Service (IND) itself indicated in its official statistics that the introduction of the overseas integration test in March 2006 was the main cause of the 20 percent reduction in the number of MVV applications for family reunification and family formation in 2006, compared to the previous year. 1

This effect is confirmed by the 2007 Integration Report by the Social and Cultural Planning Office in the Netherlands, according to which one side-effect of the introduction of this Act has been a considerable fall in the number of applications for temporary residence permits (MVV). It concludes that, at least for the time being, the Integration Abroad Act has had a restrictive effect on immigration for family formation and family reunification. 2

A January 2008 assessment of the first 15 months of the Integration Abroad Act carried out by the Ministry of Justice found that the introduction of the test led to a sharp drop in the number of MVV applications in the first month. 3 The number of applications subsequently rose again gradually to just under 1,000 applications starting late 2006. Moroccans and Turks showed the biggest fall in the number of applications. The study concludes that the sharp drop in the immigrant inflows from March 15th 2006 onwards is evidence that the test operates as a selection mechanism, with the strongest effect felt among Turks and Moroccans.

In addition, the newest IND Monitor report quoted in your letter states that the number of MVV-procedures of the target group of the Integration Abroad Act fell from approximately 29,000 procedures in 2004 to approximately 12,000 procedures in 2007. According to the same report, the largest fall was observed directly after the introduction of the test. Although there has been a modest increase since mid-2007, the overall numbers remain lower than the period before the introduction of the test. 4

Impact on Turkish and Moroccan migrants

Your response to the parliamentarians argues that Turkish and Moroccan migrants are not disproportionally affected, because (a) only 37% of the candidates for the exam are from those two countries, (b) their success percentage is about the same as for other candidates, and (c) the reduction of MVV-applications from those two countries is not larger than among the other groups required to take the test.

Since citizens and residents of Turkish and Moroccan origin together make up between 4 and 5% of the total Dutch population, the 37% figure demonstrates that they are affected far more than the average Dutch national. In addition, if one looks at the 2007 statistics by nationality, Moroccans and Turks still represent by far the largest groups among the candidates: Turkish nationality (22%), Moroccans (15%), far ahead of the Chinese as third largest group (6%).

As regards the similar success rates of candidates, it is important to note that the fall in the number of applicants suggests that the success rate may reflect self-selection on the part of those who take the test. In our assessment, it is not possible to conclude from the pass rate that the test would not have a disproportionate effect on those groups.

The government response to the parliamentarians indicates that legal experts and bodies considered the test’s possible non-compliance with international norms at the time of its introduction and concluded that it was consistent with the Netherlands’ international obligations. Here we note that a core concern we and others have raised regarding the test is its disproportionate impact on certain groups, amounting to indirect discrimination. As such an effect can only be assessed in practice, it could not have been included in any consideration of the human rights implications of the test prior to its introduction.

Impact on integration

Your responses to the Lower Chamber says that Human Rights Watch only focuses on legal equality but does not take into account the state’s interest in new immigrants preparing for their stay in the Netherlands or the effect of such preparation for their integration.

Our paper does acknowledge that giving newcomers the opportunity to acquire a basic command of the language and some idea of the society they will be joining before their arrival may be in their interest, as well as that of the host society. The Dutch government has a legitimate interest in the integration of its migrant population, which can bring benefits in terms of social cohesion. Indeed, migrant representatives interviewed by Human Rights Watch themselves generally agreed that migrants should prepare as well as possible for their future country. The integration of immigrants into the Netherlands, including through the acquisition of Dutch language, history and culture, is therefore a legitimate aim.

However, an integration exam that provides a blanket exemption is not proportionate to that aim. A general exemption for persons from a number of countries is also contrary to the alleged aim of the Act, namely that all migrants should have a basic level of integration before arrival.

We are further concerned that the test does not contribute to the process of integration for family migrants to the Netherlands. As outlined in our briefing paper, the exam requirement in its current form sends negative messages both to would-be migrants and the majority of the population, including that migrants do not want to learn the language and therefore must be compelled to do so; the failure to integrate is the fault of the migrants; and, migrants and their family members are not welcome in the Netherlands. Not only is it hard to see how such alienating messages could promote integration, the current approach raises a concern that the measure instead serves as an instrument for immigration control.

We recognize and appreciate that your Ministry aims at a different approach from the policies of the previous government on social issues, particularly integration, with a greater focus on the general amelioration of poverty and alienation within society.

You yourself have expressed concern about the widening gap between native Dutch people and immigrants. We welcome your statements that you will not join the contest of anti-immigration politicians to see who can have the strictest policy. We also welcome the commitment of your government to put greater emphasis on action to combat racism, discrimination, polarization and radicalism. We hope that these principles will guide your ongoing review of the Integration Abroad Act and measures on family migration.

In light of the concerns outlined above, Human Rights Watch respectfully requests the Dutch government to thoroughly consider the human rights issues at stake during its evaluation with a view to facilitating family reunification and formation, which would arguably enhance integration, on a non-discriminatory basis for all citizens and legal residents.

Thank you for your attention to these concerns. We look forward to a continued constructive dialogue on these issues.

Sincerely,

Holly Cartner

Cc:
Boris van der Ham MP
Sadet Karabulut MP
Housing, Communities and Integration Committee of the Dutch House of Representatives
Justice Committee of the Dutch House of Representatives

1 IND report, annual results 2006, The Hague, March 2007, p. 3, http://www.ind.nl/en/Images/def_ENG_jaaroverz_06_tcm6-
146619.pdf (accessed June 25, 2008).

2 Integration Report 2007, Jaco Dagevos and Mérove Gijsberts, April 16, 2007, p. 316,
http://www.scp.nl/publicaties/boeken/9789037703306/Jaarrapport_Integrati... (accessed June 25, 2008).

3 Scientific Research and Documentation Centre (Wetenschappelijk Onderzoek- en Documentatiecentrum), WODC, Ministry of Justice, Kortetermijnevaluatie Wet inburgering buitenland, final report, January 2008. The drop in immigrant inflows does not seem to be a temporary effect as the monthly inflows have remained roughly constant from the second half of 2006; moreover this is also the case for the number of exams.

4 IND, Monitor Inburgeringsexamen Buitenland, April 2008, pp. 6, 30-31.

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