Illiberal Liberal States: Immigration, Citizenship and Integration in the EU

ILLiBERAL LiBERAL STATEs

Also of interest Security versus Justice? Police and Judicial Cooperation in the European Union Edited by Elspeth Guild and Florian Geyer ISBN 978 0 7546 7359 0

Illiberal Liberal States Immigration, Citizenship and Integration in the EU

Edited by ELspETH GuiLD Centre for European Policy Studies, Belgium KEEs GROEnEnDijk Radboud University of Nijmegen, The Netherlands SERgiO CARRERA Centre for European Policy Studies, Belgium

© Elspeth Guild, Kees Groenendijk and Sergio Carrera 2009 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without the prior permission of the publisher. Elspeth Guild, Kees Groenendijk and Sergio Carrera have asserted their right under the Copyright, Designs and Patents Act, 1988, to be identified as the editors of this work. Published by Ashgate Limited Ashgate Company Wey Court East Suite 420 Union Road 101 Cherry Street Farnham Burlington Surrey, GU9 7PT VT 05401-4405 England USA www.ashgate.com British Library Cataloguing in Publication Data Illiberal liberal states : immigration, citizenship and integration in the EU. 1. Citizenship--European Union countries. 2. Emigration and immigration law--European Union countries. 3. Aliens--Legal status, laws, etc.--European Union countries. 4. Immigrants-Cultural assimilation--European Union countries. I. Guild, Elspeth. II. Groenendijk, C. A. III. Carrera, Sergio. 342.2'4083-dc22 Library of Congress Cataloging-in-Publication Data Illiberal liberal states : immigration, citizenship, and integration in the EU / edited by Elspeth Guild, Kees Groenendijk, and Sergio Carrera. p. cm. Includes bibliographical references and index. ISBN 978-0-7546-7698-0 -- ISBN 978-0-7546-9398-7 (ebook) 1. European Union countries-Emigration and immigration. 2. Emigration and immigration law--European Union countries. 3. Citizenship--European Union countries. 4. Immigrants--Government policy--European Union countries. 5. Immigrants--Cultural assimilation--European Union countries. I. Guild, Elspeth. II. Groenendijk, C. A. III. Carrera, Sergio. JV7590.I43 2009 325.4--dc22  ISBN 9780754676980 (hbk) ISBN 9780754693987 (ebk.V)

2009008159

Contents

List of Tables   List of Figures   Acknowledgments   Notes on Contributors   List of Abbreviations  

1

Understanding the Contest of Community: Illiberal Practices in the EU?   Elspeth Guild, Kees Groenendijk and Sergio Carrera

ix xi xiii xv xxi

1

Par t I  Cit iz en sh ip an d Int egra t ion: T h e Euro pean Un ion 2

Political Rights and Multilevel Citizenship in Europe   Jo Shaw

3

Passing Citizenship Tests as a Requirement for Naturalisation: A Comparative Perspective   Gerard-René de Groot, Jan-Jaap Kuipers and Franziska Weber

4

European Citizenship: A Tool for Integration?   Zeynep Yanasmayan

29

51

79

PART II  Cit iz en sh ip an d Int egra t ion: T h e N a t iona l A r ena s 5

The Impacts of EU Enlargement on Nation Building and Citizenship Law   Judit Tóth

6

Justifying Citizenship Tests in the Netherlands and the UK   Ricky Van Oers

101

113

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7 Dual Citizenship as an Element of the Integration Process in Receiving Societies: The Case of Slovenia   Barbara Kejžar

131

8 Religious Citizenship as a Substitute for Immigrant Integration? The Governance of Diversity in Austria   Julia Mourão Permoser and Sieglinde Rosenberger

149

Par t III  Imm igra t ion an d Int egra t ion: T h e Euro pean Un ion 9 Doing and Deserving: Competing Frames of Integration in the EU  167 Dora Kostakopoulou, Sergio Carrera and Moritz Jesse 10 11

Missing in Action: Effective Protection for Third-Country Nationals from Discrimination under Community Law   187 Moritz Jesse



Free Movement as a Precondition for Integration of Third-Country Nationals in the EU   Sara Iglesias Sánchez

12

Access to Social Assistance Benefits and Directive 2004/38   Paul Minderhoud

205 221

Par t IV  Imm igra t ion an d Int egra t ion: T h e N a t iona l A r ena s 13

Integration and Immigration: The Vicissitudes of Dutch ‘Inburgering’   Leonard F.M. Besselink

241

14 Liberal States – Privatised Integration Policies?   Ines Michalowski

259

15 The Integration Agenda in British Migration Law    Bernard Ryan

277

16 Discrimination Instead of Integration?Integration Requirements for Immigrants in Denmark and Germany    Anja Wiesbrock

299

Contents

17

vii

Nationality, Immigration and ‘the Republican Integration’ in France: Normativisation, Expansionism and Externalisation    Sergio Carrera

315



Immigration and the Construction of Public Philosophy(ies) of Integration in Spain   Ruth Ferrero-Turrión and Gemma Pinyol-Jiménez

337

19

Insertion, Integration and Rejection of Immigration in Italy   Salvatore Palidda

18

Bibliography   Index  

357

373 409

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List of Tables

T ables 5.1 5.2 5.3 5.4 18.1

Ratification by EU member states of the most relevant legal documents on non-discrimination, nationality and ethnicity  Statistics on the acquisition (including restoration) and termination (deprivation) of nationality   Citizenship on the grounds of regulation (MIPEX)    Cumulative index in the EU member states   Foreign residents in Spain, 1999-2007  

108 110 111 338

Categories of citizens who need to integrate and those who are exempted  

250

104

Box 13.1

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List of Figures

18.1 Foreign population in Spain and in Catalonia (% over total population), 1993-2000   18.2 Foreign population in Spain and Catalonia (% over total population), 2001-2004   18.3 Foreign population in Spain and Catalonia (% over total population), 2005-2007  

346 349 352

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Acknowledgments

The editors would like to express their gratitude to Massimo Merlino (Research Assistant at the Justice and Home Affairs (JHA) Section at the Centre for European Policy Studies, CEPS) for his support, dedication and assistance in the formatting processes of the different chapters and sections composing this book. We would also like to thank all the contributors for their impressive work and the time they have invested in their chapters during the various stages leading to the completion of the manuscript. Special thanks also go to Miriam Mir and Anaïs Faure-Atger (members of the JHA Section, CEPS) for their patience and support throughout the process, as well as to Anne Harrington and Jackie West (Editors, CEPS) and Els Van den Broeck (Administrative Assistant, CEPS) for their invaluable help in the editing of the opening chapter and other aspects of the volume. Any further errors remain the responsibility of the editors. This book falls within CHALLENGE (The Changing Landscape of European Liberty and Security) a five-year research project funded by the Sixth Framework Research Programme of the Directorate General for Research of the European Commission. For more information about the project see: www.libertysecurity.org.

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Notes on Contributors

Leonard F.M . Besselink is Professor of European Constitutional Law at the University of Utrecht. He holds a doctorate from the European University Institute (Florence, Italy) and is working on issues of constitutional development, comparative constitutional law, constitutional aspects of the state monopoly of violence and citizenship. He participates as a member in CHALLENGE (The Changing Landscape of Liberty and Security in Europe), a research project funded by the Directorate General for Research of the European Commission. Sergio Carrera is Head of Section and Research Fellow at the Justice and Home Affairs Section of the Centre for European Policy Studies (CEPS) in Brussels. He holds a PhD on immigration law from the University of Maastricht (The Netherlands). Carrera is an external expert on immigration and integration for the European Economic and Social Committee, the Committee of the Regions and the European Parliament. He is involved in the coordination and research in CHALLENGE. Gerard-R ené de Groot is Professor of Comparative Law and Private International Law at Maastricht University, the University of Aruba and the University of Hasselt. He is expert-consultant of the Committee of Experts on Nationality of the Council of Europe and a member of the Dutch Permanent Advisory Committee on Civil Status Issues and Nationality Law. Since 1974 he has published numerous and articles on (comparative) nationality law. R uth Ferrero-T urrión is Associate Professor of Political Sciences at the Universidad Complutense de Madrid (Spain) and Political Advisor on immigration issues at the Institutional Affairs Department of the Spanish Prime Minister’s Cabinet. She has been Visiting Scholar at University of Columbia (2001-2003), London School of Economics (2000), Babes-Bolyai University (1999), Hungarian Institute of International Affairs (1997) and Open Society Foundation-Sofia (1996). Her research fields are minority rights, national minorities, Balkans, as well as migration policies in Spain and in Europe. Kees Groenendijk is Emeritus Professor of Sociology of Law at the Radboud University Nijmegen (The Netherlands), Chairman of the Centre for Migration Law at that University and Chairman of the Standing Committee of Experts on international immigration, refugee and criminal law (Meijers Committee). He has

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published on national and European law on migration, nationality, discrimination and integration, and on the social and legal status of migrants in Europe. Elspeth Guild is Professor of European Migration Law at the Radboud University Nijmegen (The Netherlands). She is also Senior Research Fellow at the Centre for European Policy Studies in Brussels and a partner at the London law firm Kingsley Napley. She is a Visiting Professor at the LSE, London and teaches in the Department of War Studies at King’s College London. She has acted as Special Adviser to the House of Lords and is a member of the European Commission’s expert group on the policy needs for data on crime and criminal justice. Guild is also part of the coordination team and a research member in the CHALLENGE project. Sara Iglesias Sánchez is Researcher at the International Law Department of the Law Faculty of the Universidad Complutense de Madrid (Spain), where she is a PhD candidate on European Law under a scholarship awarded by the Spanish Ministry of Science and Innovation. She is currently working on her dissertation on the free movement of third-country nationals and has undertaken research periods in the Centre for Migration and Law of the University of Nijmegen and in the Max Planck Institute for public international law and comparative law. She has previously published on the field of immigration law, family reunification and free movement of persons. M oritz Jesse holds a LL.M. from Maastricht University [European Law School, cum laude]. He is a PhD candidate at the European University Institute in Florence, Italy. His research is about the connection of law and immigrant integration in the European Union and its member states. In 2005/2006 Moritz was a member of the winning team of the European Law Moot Court Competition. Barbara Kejžar is a Junior Researcher at the Institute for Ethnic Studies in Ljubljana, Slovenia. She studied political science and international relations at the Faculty of Social Sciences of Ljubljana’s University, where she received her masters degree. Currently, she is a PhD candidate at the same Faculty. Kejžar’s research focuses on the role of dual citizenship in immigrants’ integration processes in receiving societies. Her research interests include dual citizenship issues, citizenship, migration and integration policies, as well as more general questions of political theory, citizenship and migration. Dora Kostakopoulou is Jean Monnet Professor in European Law and European Integration at the University of Manchester (UK). She has published articles in such journals as Columbia Journal of European Law, Oxford Journal of Legal Studies, Journal of Common Market Studies, Journal of Ethnic and Migration Studies, Journal of European Public Policy, Political Studies, European Journal of Migration and Law, Modern Law Review, European Law Journal and the

Notes on Contributors

xvii

Journal of Political Philosophy. Her latest book, entitled The Future Governance of Citizenship, was published in 2008 by Cambridge University Press. Jan-Jaap Kuipers studied European law at Maastricht University from 20042008. He is currently a PhD candidate at the European University Institute in Florence. Ines M ichalowski is a Senior Researcher at the Social Science Research Centre in Berlin (WZB). From October 2008 until July 2009 she was a Fellow of the Transatlantic Academy in Washington, DC. Her research focus is on state policies for immigrant integration in an internationally comparative perspective. Her PhD ‘Integration als Staatsprogramm. Frankreich, Deutschland und die Niederlande im Vergleich’, which she received jointly with Münster University and Sciences Po in Paris in 2007, was published with Lit-Verlag. Paul M inderhoud is Associate Professor at the Centre for Migration Law of the Radboud University Nijmegen, the Netherlands. His main research interests are the legal and socio-legal aspects of immigration and social security. He is Project Director of the European Network on Free Movement of Workers and co-editor of the European Journal of Migration and Law. Minderhoud also participates as a research member in the CHALLENGE network. Julia M ourão Permoser is Assistant Lecturer at the Department of Political Sciences of the University of Vienna. She has a BA in international relations from Georgetown University, an MA in International Studies from the Diplomatic Academy of Vienna and is currently a doctoral candidate at the University of Vienna. Her research focuses on migration, citizenship and anti-discrimination in the EU. Salvatore Palidda is Professor of General Sociology, Sociology of Deviancy and Social Control and Sociology of Human Mobility at the Faculty of Educational Sciences of the University of Genoa (Italy). Palidda holds a Doctorate in Sociology and European Studies from the EHESS of Paris. His research includes the following themes: military and police affairs, migrations, and changes in the political organisation of contemporary society. Among his most recent publications the following can be highlighted: Mobilità umane, Cortina, 2008; ‘Policy of fear and decline of political sphere, Un mondo di controlli’, in Con.itti Globali, no. 5, 200, and ‘Istituzioni e mafia’, in Nuovo Dizionario di mafia e antimafia, EGA, Torino, 2008. Palidda is also a member of the CHALLENGE network of researchers. Gemma Pinyol-Jiménez has a BA in Political and Public Administration Sciences at the Autonomous University of Barcelona (Spain) and an MA in International Studies at the same University. For her MA thesis, she conducted research on immigration and asylum policies in the EU. Currently she is the Coordinator

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of the Migrations Programme of CIDOB (Centre d’Informació i Documentació Internacionals a Barcelona). Her main research areas are European and Spanish migration policies, and their external dimensions. She is the Coordinator of the annual edition of the CIDOB seminar ‘Inmigración y Europa’ and author of several articles. Among others: ‘Europe’s Southern Border: Spain and the Management of Immigration’, in Foreign Policy in Dialogue, vol. 8, Deutsche-Aussenpolitik, 2007; ‘The external dimension of the European Immigration Policy: a Spanish perspective’, in Agora Without Frontiers, vol. 13, no.14, 2008; and ‘España en la construcción de un scenario euroafricano de migraciones’, Afers Internacionals, no. 75, CIDOB Foundation, 2007. Sieglinde R osenberger is Professor of Political Science at the University of Vienna. She was a Fellow at the Department of Women’s Studies at San Diego State University (1991/92), at Harvard University (2003/04), and the European University Institute in Florence (2007). Her research interests focus on gender relations, migration studies, and the governance of religious pluralism. Bernard R yan is a Lecturer in the Law School at the University of Kent (UK), where he teaches immigration law. He has written widely on labour law and migration law issues and edited the report from the Institute of Employment Rights on Labour Migration and Employment Rights (2005). He is a graduate of University College Dublin and the European University Institute. Jo Shaw holds the Salvesen Chair of European Institutions at the University of Edinburgh, having previously held Chairs of EU law at the Universities of Manchester and Leeds. She is also Co-Director of the Edinburgh Europa Institute. Her research focuses on citizenship and constitutionalism of the European Union, viewed in a broader politico-legal context. In 2007, she published The Transformation of Citizenship in the European Union (Cambridge University Press), which was awarded the UACES Book Prize in 2008. Judit T óth holds a PhD in Law and is Associate Professor of Constitutional Law, at the University of Szeged (Hungary). She has two decades of experience in legal practice as a legal adviser in numerous ministries, Parliament, Prime Minister’s Office and Ombudsman. She is Senior Research Fellow at the Hungarian Academy of Sciences. She has published widely on refugee law, migration policy of contemporary Hungary, EU enlargement as well as on diaspora in legal regulation and policy. She has worked in international research teams on migration and human rights issues since 1991, recently in the Sixth Framework Programme research project CHALLENGE. R icky Van O ers is a PhD student at the Centre for Migration Law at the Radboud University of Nijmegen (The Netherlands). Her research concerns the introduction and effects of formalised citizenship tests in Germany, the Netherlands and the

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xix

United Kingdom. She participated in the NATAC-project, coordinated by Rainer Bauböck, which focused on comparing the way in which 15 EU member states regulate the acquisition and loss of nationality. Her publications include: ‘From Liberal to Restrictive Citizenship: The Case of the Netherlands’, International Journal on Multicultural Societies, vol. 10, no. 1, 2008; ‘European Trends in Nationality Laws’, Acquisition and Loss of Nationality, Volume I: Comparative Analysis (2006), together with Betty de Hart; and The Family Reunification Directive in EU Member States: The First Year of Implementation (2007), together with Kees Groenendijk, et al. Finally, Van Oers also participates in the CHALLENGE network. Franziska Weber is a PhD candidate at the Rotterdam Institute of Law and Economics (RILE). She studied European and Comparative Law at the Universities of Oldenburg, Bremen and Sheffield (BA) and completed the ‘Master European Law School’ at the University of Maastricht cum laude. As far as her professional experience is concerned, she was advisor for the Representation of Northern German Chambers of Commerce and Industry in Brussels, assistant editor of the Maastricht Journal and Research Assistant to Prof. Michael G. Faure. A nja Wiesbrock holds an LLM degree and is currently a PhD candidate at the University of Maastricht. She studied European Studies and Law in Maastricht, Berlin and Barcelona. She is particularly interested in the relationship between migration and development cooperation and has conducted internships in several developing countries, including Senegal, Guinea, Panama and Peru. Her current main research emphasis is on highly skilled migrants and circular migration from China, India and Ghana. She is associated as a visiting researcher to Jawaharlal Nehru University, Delhi. Z eynep Yanasmayan is a PhD candidate at the Faculty of Social Sciences in the Catholic University of Leuven (KUL) (Belgium) and an Associate Research Fellow at CEPS. She holds an MScEcon degree on security and citizenship from the University of Wales, Aberystwyth and an MA degree on European studies from Free University of Brussels (ULB). Her major research interests revolve around integration and citizenship policies, Turkish minorities in Europe and diaspora politics.

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List of Abbreviations

AFSJ Area of Freedom, Security and Justice AG Advocate General AMCL Attestation Ministérielle de Compétences Linguistiques ANAEM Agence Nationale pour l’Accueil des Etrangers et les Migrations ANC National Association of Italian Communities BAFL Federal Ministry for the Recognition of Refugees BAMF Federal Agency for Migration and Refugees BEC Bulletin of the European Communities BNA British Nationality Act CAI Contrat d’accueil et d’intégration CAIF Contrat d’accueil et d’intégration pour la famille CBPs Common Basic Principles CEFR Common European Framework of References CERD Committee on the Elimination of Racial Discrimination CESEDA Code de l’Entrée et du Sejour Étrangers et du Droit d’Asile CFR-CDR EU Network of Experts on Fundamental Rights CGIA Associazione Artigiani e Piccole Imprese Mestre CHALLENGE The Changing Landscape of European Liberty and Security CPT Centri di Permanenza Temporanea CTA Common Travel Area CUKC Citizen of the United Kingdom and Colonies DCIM Directie Coördinatie Integratiebeleid Minderheden DG Directorate-General DILF Diplôme Initial de Langue Française DPM Direction de la Population et des Migrations EC European Community ECHR European Convention on Human Rights ECJ European Court of Justice ECR European Court Reports ECtHR European Court of Human Rights EEA European Economic Area EMMI European Modules for Migrant Integration ENP European Neighbourhood Policy EP European Parliament ESOL English for Speakers of Other Languages EU European Union

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EUSA European Union Studies Association FED Framework Employment Directive FSJ Freedom, Security and Justice HCI Haut Conseil à l’Intégration HSMP Highly Skilled Migrant Programme IA Integration Act ICMPD International Centre for Migration Policy Development IELTS International English Language Test System IMSERSO Migrations and Social Services Institute IMISCOE International Migration, Integration and Social Cohesion INAIL National Insurance Institute for Employment Injuries IND Immigration and Naturalisation Office IRES Istituto di Ricerche Economiche e Sociali ISTAT National Institute of Statistics JHA Justice and Home Affairs LTRD Long Term Residents Directive MAC Migration Advisory Committee MEP Member of the European Parliament MIPEX Migration Integration Policy Index MP Member of Parliament MPG Migration Policy Group NCPI National Contact Points on Integration NGO Non-Governmental Organization NIA Newcomers Integration Act OECD Organisation for Economic Co-operation and Development OJ Official Journal of the European Union OMC Open Method of Coordination OMI Office for International Migrations RED Racial Equality Directive RMI Revenu Minimum d’Insertion ROCs Regional Educational Centres SEA Single European Act SSAE Social Service Specialised on Migrants TCN Third-Country National TEC Treaty Establishing the European Community TEU Treaty on European Union UK United Kingdom UN United Nations VNG Representation of the Dutch Municipalities WIN Wet Inburgering Nieuwkomers WRS Workers Registration Scheme WRR Scientific Council for Government Policy

Chapter 1

Understanding the Contest of Community: Illiberal Practices in the EU? Elspeth Guild, Kees Groenendijk and Sergio Carrera

Understanding the dynamics of illiberal practices in liberal states is increasingly important in Europe today. As democratic institutions, civil society and academics have categorised as ‘illiberal’ a growing list of state practices such as extraordinary rendition, indefinite detention of third-country nationals (TCNs), new practices and technologies of border controls, etc., the question of who is entitled to contest has become increasingly fraught (Bigo et al. 2007). Here the politics of identity form the framework within which tensions around illiberal practices are played out. Both at the national and the EU level, political actors claim competing rights to legitimacy and authority based on their representation of ‘the people’ and the nation. As those debates regarding the source of authority become increasingly vocal, so too is attention focusing on the underlying community in whose name security actions are being taken. In this contested territory, fixing the identity of the community has come under scrutiny. The central debate about what identity is and to whom it belongs, and the much larger contest about legitimacy and authority in the EU, has engulfed the world of migration. Suddenly it is the image of the immigrant that acts as a magnet for the understanding of what community is and who is entitled to belong to it. In seeking to find their own image, the EU and its member states have turned to look at the ‘other’ that they are not, in so doing hoping to find clarity about ‘who they are’. The question ‘what is integration into a community and who determines this’ has become a subject of struggle and controversy. While the EU is charged with harmonising the rules on TCNs, the member states, on the basis of integration and the principle of subsidiarity-related arguments, seek to recover sovereignty over the constituency of their communities. The result, as this book shows, is a challenging new influx of illiberal practices among states that are supposed to bestow and adhere to the principles of liberalism and the rule of law. The integration of TCNs is subject to multifaceted dynamics, policy processes and strategies in Europe. A normative nexus has been progressively developed in law and policy between migration, citizenship and integration both at the national and EU level. This evolving relationship is gradually transforming the classical understanding, conceptual premises and functions that integration has traditionally performed at EU level as a process of social inclusion, and as



Illiberal Liberal States

a mechanism facilitating equality and non-discrimination while exercising the freedom of movement. The transfer to EU competence of the domain of immigration policy in 1999 constituted an historical stage in the European integration processes. On the basis of the Treaty of Amsterdam, the EU has striven to build a common immigration policy. Its establishment, however, has encountered resistance from certain member states attempting to keep intact their discretional powers over the understanding and normative framing of their ‘community of citizens’. While the domain of integration has been seen as representing a key strategic policy priority within the so-called Area of Freedom, Security and Justice (AFSJ) by the 2004 Hague Programme (Balzacq and Carrera 2006), national competence has predominated. The member states have made of integration one of those areas at the heart of national sovereignty: a central tool for the perpetuation of the nation upon which they legitimise their authority and powers of discipline over their societies. The tensions emerging between the European integration machinery on immigration and the principle of subsidiarity have provoked the development of a dual normative setting in the EU covering the field of integration of TCNs, i.e. European immigration law and the EU Framework on Integration. The development of the so-called ‘Framework for the Integration of ThirdCountry Nationals in the European Union’ (EU Framework on Integration) constitutes a good illustration of the struggles taking place between the European and national arenas over the competences surrounding integration and the politics of the identity of nationals and others. The EU Framework on Integration has defined itself as an innovative policy regime making use of a series of tools and methods, which raises a number of questions when compared to the traditional structures and paths of Europeanisation that characterise the Community method of cooperation. The adoption by the Council in 2004 of a set of Common Basic Principles for Immigration Integration Policy (CBPs), the exchange of ‘best practices’ on national integration policies, the use of benchmarking techniques and the increasing role of supranational networks of representatives from the member states’ ministries in charge of integration (the National Contact Points on Integration) constitute an alternative web of policy coordination intending to move policy convergence onwards through means that are different from those provided by the substantive and institutional elements of EU law. These ‘soft’ policy instruments and transnational structures have been coupled with a ‘hard’ financial framework (the European Integration Fund), which is facilitating the transformation of policy ambitions into visible results as regards domestic and EU integration policies. This book examines the changing interaction between immigration, citizenship and integration in EU law and policy. It studies some of the effects and open questions regarding the exchange and coordination of public responses affecting  Brussels European Council, Presidency Conclusions, 4-5 November 2004, 14292/1/04, Brussels, 8 December 2004, OJ C53/1, 3.3.2005.

Understanding the Contest of Community: Illiberal Practices in the EU?



the status of TCNs at national level, as well as the compatibility of their results with a common EU immigration guided by a rights-based and social inclusion approach. It reviews a selection of national experiences and philosophies on immigration and citizenship laws in the EU, and the use that they are performing for integration. The framing and practices of civic integration in immigration and citizenship law and policy as a mandatory norm, and the ways in which increasing policy convergence is being achieved at EU level over this concept raises a number of dilemmas. These dilemmas might put liberty at stake in the EU legal landscape, and provide us with yet another illustration of ‘illiberal practices in liberal regimes’. The question as to what the limits are in the discretional powers enjoyed by the nation-state around ‘the conditionality of integration’ for TCNs to have access to EU rights and common standards stipulated by EU immigration law provides us with a key testing ground for evaluating the illiberal or liberal nature of the exceptionalism inherent in the applicability of mandatory civic integration. This opening chapter is structured in five main sections: the first starts by setting the habitus of integration in EU immigration law and policy. Section two looks at the case of integration tests as an example of the changing dynamics affecting integration and the laws on citizenship. The relationship between integration and the enlargement processes of the EU, and the transformation that this relationship provokes over national and European identities, is developed in section three. After offering some theoretical reflections about the ‘illiberalism’ underlying certain usages, approaches and practices on integration in Europe in section four, the outline of the various chapters composing this book is provided in section five. T he H abitus of Integration in EU Immigration Law and Policy Integration as a Mandatory Norm in EU Immigration Law The integration of persons on the move has been a fundamental component throughout the European integration processes, not least as regards the establishment of an internal market and a common European space within which the freedom of movement constitutes a fundamental right. The function that integration has played within this context was that of facilitating the mobility of EU national migrant workers and ensuring that, while doing so, they enjoy equality, nondiscrimination, family reunification and a secure juridical status (Groenendijk 2006a, 9-11).  Article 45 of the Charter of Fundamental Rights states that ‘1. Every citizen of the Union has the right to move and reside freely within the territory of the Member States. 2. Freedom of movement and residence may be granted, in accordance with the Treaties, to nationals of third countries legally resident in the territory of a Member State’. Charter of Fundamental Rights of the European Union, OJ 2007/ C303/ 01, 14.12.2007.



Illiberal Liberal States

The traditional understanding and functions of integration have experienced dynamic mutations in EU law when developing a common legal framework covering the conditions of entry and residence of TCNs – a common immigration policy. Indeed, integration has suffered multifaceted normative processes since the transfer of immigration to EU competence with the Amsterdam Treaty in 1999 and the adoption of the European Council Tampere Conclusions on 15 and 16 October 1999. The Tampere Programme called for the adoption of the following tenets to guide the EU’s policy approach on integration: the principle of fair treatment to legally-residing TCNs; the need to develop a more vigorous integration policy granting to legal TCNs rights and obligations ‘comparable’ to EU citizens; and the granting to long-term residents of a set of rights that are ‘as near as possible’ (near-equality) to those of EU citizens. The European Commission presented a package of legislative proposals to start building EU immigration law. The Council Directives 2003/109 on the status of long-term residents who are TCNs (Guild 2004c; Carrera 2005a; Groenendijk 2007) and 2003/86 on the right to family reunification (Groenendijk et al. 2007; Oosterom-Staples 2007; Groenendijk 2006b) are among the most relevant EU acts so far adopted in the area labelled as ‘legal immigration’ (i.e. conditions for a legal admission and stay to TCNs who have not applied for international protection) where integration has been expressly included among their provisions as a legal ‘measure’ or ‘condition’. These two Directives provide common standards and EUwide rights/guarantees in the domain of immigration. They also constitute a regime of partial harmonisation, leaving certain margins of appreciation to the member states at times of national transposition and implementation. Notwithstanding this, the degree of ‘exceptionalism’ permitted to national public authorities when acting within the scope of EU immigration law is limited to the principles provided by the EU legal system in order to protect the individual against illiberal interferences or unlawful derogations to EU rights and supranational freedoms. The rule of law and the respect of fundamental rights lie at the heart of this set of general principles safeguarded beyond national remits (inter alia Schwarze 1992; de Witte 2000; Bernitz and Nergelius 2000; Schermes and Waelbroeck 2001; Trimidas 2006; Craig 2006). On the other hand, it was during the negotiation of these two measures inside the Council during 2001 and 2002 when the functionalities attributed to the category of integration in some provisions mutated significantly from the premises advocated at the Tampere Programme toward a more restrictive and ‘immigration-control’ trend. A group of member states (the Netherlands, Austria  Tampere European Council, 15-16 October 1999, Presidency Conclusions, SN 200/99, Brussels.   Council Directive concerning the status of third-country nationals who are longterm residents, 2003/109, OJ L 16/44, 23.1.2004.   Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, OJ L 251/12, 3.10.2003.

Understanding the Contest of Community: Illiberal Practices in the EU?



and Germany) pushed for the transfer of a new understanding of integration in EU law in line with their current or planned national legislations on immigration. As a consequence integration now often acts as an obligatory ‘condition’ or ‘measure’ for the management of international human mobility and its attributed diversities in EU immigration law. It becomes a norm in the hands of the state conditioning admission (integration abroad) and/or access to rights and security of residence by those falling within the category of ‘legally residing TCNs’ in this way. Integration functions as a tool for practising an immigration policy aimed at limiting the legal channels of international human mobility and the inclusion and security of TCNs inside the EU. Member states that voted for the insertion of integration clauses in the two Directives probably intended to reserve their discretional powers and national competences over these domains. Some authors have mainly stressed the large margin of appreciation left to the member states when defining and interpreting the conditionality of integration at the national level within the scope of these Directives. While these claims might be right in intent, they are wrong in effect. It is our view that the transformations surrounding integration during the negotiations of these Directives and the inclusion of precise provisions dealing expressly with integration, have also involved a considerable degree of Europeanisation of this domain in the scope of EU immigration law. By expressly inserting integration inside their provisions, the member states have seen their discretional powers diminished when determining the content and reach of integration as an exceptional condition for having access to European rights and guarantees applicable to certain groups of TCNs. The inclusion of the category of integration inside the main body of the EU Directives creates a fundamental Community interest when assessing and monitoring the member states’ application (and national transposition) of these integration-related provisions (and the EU rights and common standards provided therein) in their respective domestic legal systems. It is also here where the force played by the general principles of EC law restricting member states’ discretion at times of national implementation comes sharply into focus once taken seriously by national lawyers and judges. This has been confirmed by the European Court of Justice (ECJ) in the Case C-540/03, European Parliament v Council of 27 June 2006. This judgement has major implications in relation to the action of member states regarding the respect of fundamental rights while implementing EU immigration law, and the margin of appreciation that the Directive leaves them in relation to derogations and restrictions from these common set of rights and standards (Martin 2007; Carrera 2009). When looking at the substance of each of the exceptional clauses provided by the Directive 2003/86, the ECJ interpreted them in conformity with

  See in particular Articles 5 (2) and 15 (3) of Directive 2003/109 and Articles 4 (1) and 7 (2) of Directive 2003/86.   Case C-540/03, European Parliament v Council, 27 June 2006, [2006] ECR I-5769.



Illiberal Liberal States

the fundamental rights as provided by the European Convention of Human Rights. While doing so, the Court rewrote the derogations included in the Directive. In addition, the ECJ sent the hot potato to the national tribunals while reviewing the implementation of the Directive. If those courts encounter difficulties relating to the ‘interpretation’ or ‘validity’ of the Directive, it is incumbent upon them to refer a question to the ECJ for a preliminary ruling in the circumstances set out in 234 EC Treaty. By doing this the ECJ acknowledged that it might be possible that in practice the domestic implementation of these derogatory provisions could contravene fundamental rights, and even that a certain application of these provisions would provide grounds for challenging the sustainability of their very substance. Indeed, the role of the Courts (judicial oversight) when determining the legality of interferences (the liberal test) by national and EU public authorities over rights and freedoms of individuals is central, including those conferred by European immigration law to TCNs. The EU Framework on Integration Since the end of 2002 the EU Framework on Integration has been developing slowly but steadily, and is now composed of a set of Common Basic Principles for Immigration Integration policy, two handbooks on integration for policy-makers and practitioners, three Annual Reports on migration and integration, the setting up of the National Contact Points on Integration and the upcoming European integration forum. All these tools have been accompanied by the European integration fund, which aims at contributing to efforts by the member states to develop and implement integration policies enabling third-country nationals ‘to fulfil the conditions of residence and to facilitate their integration into European societies, in accordance with the CBPs’. The framework constitutes an innovative multilevel method of governance in the field of integration of TCNs at EU level, involving the interaction of a package of non-binding or soft regulatory tools and diversified supranational networks that have given birth to a quasi-Open Method of Coordination (OMC) (Carrera 2008). The constitutive features characterising the conceptual framing of integration have also evolved in a highly dynamic fashion since the first policy steps taken in the scope of the EU Framework on Integration. In fact, a similar conceptual transformation to the one highlighted in EU immigration law can also be seen   For instance, paragraph 60 of the ruling stated that ‘Article 4 (1) of the Directive imposes precise positive obligations, with corresponding clearly defined individual rights on the member states since it requires them, in the cases determined by the Directive, to authorise family reunification of certain members of the sponsor’s family, without being left a margin of appreciation’.   Council of the European Union, Justice and Home Affairs Council Meeting 2618th, Brussels. ‘Common Basic Principles on Immigrants Integration’, 14615/04, 19 November 2004.

Understanding the Contest of Community: Illiberal Practices in the EU?



in the EU framework of integration (refer to Kostakopoulou, Carrera and Jesse, Chapter 9 of this book). Integration functions as a civic programme, a course or a module (common European Modules for Migrant Integration, EMMI)10 that will need to be followed and/or successfully passed by TCNs (often understood as an obligation), and which includes as constitutive elements the knowledge and respect of ‘national and European values and fundamental norms’, principles and ‘ways of life’ (cultural life of ‘the host’) of the member states and the EU. This ‘paradigm shift’ has mainly occurred as a consequence of the increasing exchange of information or ‘moving of ideas’ on national experiences, programmes and policies between member states’ representatives, and particularly due to the active role of the network of National Contact Points on Integration and the adoption of the two editions of the handbook on integration (Niessen and Schibel 2004; Niessen and Schibel 2007). The Treaty of Lisbon, whose destiny remains in the balance after the results of the Irish referendum on 12 June 2008, would introduce substantial innovations to the current configurations applicable to European cooperation on integration.11 Article 79 (4) of the Treaty on the Functioning of the Union would provide the basis for developing common measures to encourage and support the work of the member states on integration. It would therefore facilitate the formalisation of the EU Framework on Integration into a proper OMC through the application of the ordinary legislative procedure (co-decision).12 This policy area would also gain from the increased involvement of the European Parliament, national parliaments, the Committee of Regions and the ECJ (Carrera and Geyer 2008). Integration and Citizenship: T esting Identity as a Condition for M embership? The innovative element of the new ‘integration’ policies has been the introduction of formal language and citizenship tests in several member states as a new instrument for the selection of migrants from outside the EU who are accepted as potential or full members of the country of residence. Most (not all) member states have

10 On the EMMI see Commission Communication, Third Annual Report on migration and integration, COM(2007)512, 11 September 2007, Brussels; refer also to the Commission Communication, A common immigration policy for Europe: Principles, actions and tools”, COM(2008) 359 final, 17.6.2008, Brussels. 11 Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed in Lisbon, 13 December 2007, OJ C306/01. 12 Article 79 (4) says that ‘The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may establish measures to provide incentives and support for the action of Member States with a view to promoting the integration of third-country nationals residing legally in their territories, excluding any harmonisation of the laws and regulations of the Member State’.



Illiberal Liberal States

applied a language or integration condition for naturalisation for already more than fifty years. The examination as to whether an application met this condition used to be conducted through a personal interview with a municipal civil servant or a local representative of the state. This used to be the dominant means for checking whether an immigrant with the required residence, income and clean criminal record had sufficiently integrated into society in order to acquire full legal membership as well. Before 2000 the only member state with a language condition for acquiring permanent residence was Germany. Since the beginning of the new century these tests have been formalised. They are now practised at an earlier stage in the migratory process. The level of knowledge required has also been raised considerably both in the process of formalisation and after the introduction of the first formal test. Finally, the tests are not longer administered by the state but through private companies. This surprisingly quick transformation in the selection methods of future citizens raises questions about the principles of fairness, effectiveness and lawfulness. The choice that has been made to formalise citizenship tests also raises questions about the content of the identity that is being tested. The need to specify the identity of the nation as part of the formalisation process has brought exclusionary issues into the public debate. It is also important to highlight that in several member states this process of specification of national identity was delegated to private companies. Fairness The issue of fairness arises where migrants with little education or low income are required to pass the same test and to have the same level of knowledge as highly educated or wealthy migrants. This is particularly the case when passing the test requires some knowledge of how to use a computer and if no real languagelearning facilities are made available for the migrant. Migrants with a lower income and level of education will have to invest more time, money and energy to meet the minimum standard required to pass the test. They also run a greater risk of suffering the financial immigration status or other administrative sanctions provided for in the new integration legislation. The political debate in several member states tends to result in steadily higher levels of knowledge being required on the part of the immigrant. Indeed while ‘integration’ seems to be a central theme in the political spectacle, the majority of test candidates are perfectly aware that one of the main purposes of the new tests is a reduction in the number of immigrants and the restriction of immigrants’ access to security of residence and nationality. This lack of honesty in the debate detracts attention from the social unfairness of requiring a standard level for all migrants and narrows the attention for the implementation of alternative methods, such as testing the relative language competence rather than requiring everybody to pass the same test. The exemption of persons with several years of schooling, diplomas certifying successful completion of schooling in the country of residence or formal language training will free most of the second generation immigrants (not the drop-

Understanding the Contest of Community: Illiberal Practices in the EU?



outs). But the tests may well be an insurmountable barrier for the less-educated people among the first generation of immigrants. The use of computers in the selection processes suits the state (appearance of fairness; obscuring responsibility for the outcome) and the companies administering the test (quick profits). Effectiveness The introduction of formal tests raises additional questions about their effectiveness since their effects for large groups of migrants may be counterproductive. The application of a test will postpone the entry of family members and thus the beginning of their actual integration processes. Spouses and children will be older at entry; they may feel obliged to stay illegally with their family (overstaying their tourist visa) in order to learn the language once inside the country. Non-acquisition of a permanent residence status or withholding the nationality of the country of residence will reduce rather than enhance the chance of getting a stable job, a job in the public service, access to housing, scholarships or bank loans to start a business. Offering a language course to immigrants will be perceived both by immigrants and the native population as a sign that immigrants are welcome, that they are going to stay and are able to adapt to the host country. Introducing a test that many immigrants will never be able to pass will cause frustration and create the impression that immigrants are unwanted and will never be accepted as full members of society. It may well result in less rather than more participation in society. Moreover, it will support the idea among the majority of the population that immigrants are unable to integrate. Integration is not a one-way process. It also requires a positive attitude from the receiving society. This counterproductive effect is increased if large categories of immigrants are exempted from the test and if this requirement is seen as focusing selectively on certain immigrant groups or categories. This may explain the fierce opposition of organisations of Turkish immigrants to the introduction of the ‘integration test abroad’ in German legislation. Both in Germany and the Netherlands the introduction of the integration test abroad resulted in a sharp reduction of the applications for visa or the admissions for family reunification. In the Netherlands the introduction of a new Integration Act in 2007 with the obligation to pass an extensive language test (speaking, listening, reading and writing Dutch) and a computerised knowledge test of Dutch society, both being used previously as the naturalisation test, resulted in a sharp reduction of the number of new participants in integration courses during the first year following the introduction of the legislation. Lawfulness The lawfulness of the new integration tests has been questioned on at least four different grounds. Firstly, the exemption of citizens of certain countries from the

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Illiberal Liberal States

obligation to take the test solely on the basis of their nationality is difficult to justify, since this exemption has no relation to the potential or actual integration of the persons exempted but is clearly related primarily to considerations of immigration control. This raises questions about the compatibility with Article 14 ECHR and Article 12 EC Treaty, both provisions forbid discrimination on the basis of nationality, one implicitly and the other explicitly. Secondly, the integration test abroad raises questions about its compatibility with Article 8 ECHR if no real opportunities to learn the foreign language are available in the country of origin or if repeated failure to pass the test makes it impossible for a married couple to live together somewhere in the world. This issue arises particularly with family members of refugees or beneficiaries of other forms of international protection. Thirdly, it also raises questions as to its compatibility with international norms against racial discrimination. Human Rights Watch in its extensive report13 on the Dutch integration test abroad explains why the test amounts to indirect discrimination on the basis of race. On the face of it the requirement applies both to Dutch nationals and to TCNs of countries not covered by the exemptions. But the countries exempted are mainly rich Western countries with a white majority population (two of these three characteristics – rich, Western and white – apply only to non-Western countries whose nationals are exempt: Japan and South Korea). Moreover, the new requirement is aimed primarily at certain immigrant groups and in practice affects members of those categories disproportionately. In the Netherlands the introduction of this test was intended to stimulate young persons of Turkish and Moroccan origin to look for a spouse already living in the Netherlands. The measure affects Dutch nationals of Turkish and Moroccan origin far more often than native Dutch nationals. In several EU member states the majority of sponsors applying for family reunification are nationals of the country. But many of these nationals are of immigrant origin. Either they or their parents have been naturalised. Their membership is disputed (in)directly by the new ‘integration’ legislation. Fourthly, it is a subject of dispute whether the integration test abroad is compatible with Directive 2003/86 on the right to family reunification. Article 7 (2) of the Directive only allows for integration ‘measures’ not for integration ‘conditions’ abroad. In any case the integration measures abroad have to be applied in individual cases with due respect for the general principles of Community law, such as the principle of non-discrimination and the proportionality principle.14 The European Commission, in its first communication on the application of the 13 Human Rights Watch (2008), The Netherlands: Discrimination in the Name of Integration, Migrants Rights under the Integration Abroad Act, Vienna, 14 May, available from , accessed 18 December 2008. 14  See paragraph 106 of the Case C-540/03, European Parliament v Council, 27 June 2006.

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Directive, has made it clear that the freedom of a member state to refuse admission for family reunification on the basis of integration tests is restricted by Community law and subject to the control of national judges, the European Commission and, potentially, the ECJ.15 Which Identity is Tested? The introduction of formalised tests coupled with the political desire to test not only the knowledge of the language but also the ‘knowledge of society’ as a substitute for citizenship, has also sparked a debate on the concept of national identity. Which questions and what themes would make for a proper test for (potential) membership? In each member state where the Government has chosen to go down that road, a public debate has emerged, by way of illustration, on the relevant questions to be included in the test, the correct answers to be assigned to those questions, the desirability of multiple or single answers, the share of the native population able to answer those questions correctly, etc. The basic question is, however, the extent to which the knowledge of the right answers is actually the most relevant factor for becoming or being considered a (good) citizen at all. To what extent do the questions and answers represent the knowledge and conventions of the social class of the politicians and civil servants setting the tests or of the language experts in private companies responsible for developing them? The tests not only present new barriers for many migrants, they also project the image that migrants should become like ‘us’, i.e. white, highly educated, middle class persons. Implicitly, the tests send out the message that poorly educated immigrants are disqualified and that they are less or not welcome. The practice of the test also points to the fact that integration is primarily a cognitive process; learning the language and the correct answers to the questions, rather than an emotional one. Moreover, the introduction of the tests has also involved a further step in the privatisation processes surrounding immigration control. The level of trust in the discretion of local or state officers has been replaced by a surprising reliance and confidence in private companies and educational institutions that develop and administer the tests. According to a Dutch observer (Schinkel 2008), nationalism is thus being promoted by private companies that in

15 European Commission Report on the application of Directive 2003/86/EC on the right to family reunification, COM(2008) 610 final, 8 October 2008, Brussels, paragraph 4.3.4, which says that the admissibility of the national measures transposing Article 7 (2) of the Directive ‘depends on whether they serve this purpose and whether they respect the principle of proportionality. Their admissibility can be questioned on the basis of accessibility of such courses or tests, how they are designed and/or organised (test materials, fees, venue, etc), whether such measures or their impact serve purposes other than integration (e.g. high feeds excluding low income families). The procedural safeguard to ensure the right to mount a legal challenge, should also be respected’, pp. 7-8.

Illiberal Liberal States

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cooperation with the Government select the ‘marginal persons’ who have to be serviced by ‘the integration market’. An extreme example is the US firm Ordinate that succeeded in selling its computerised language test, developed originally for testing US military going abroad, to a Dutch Minister who used it for the reduction of family migration flows into the Netherlands. When the first experiences indicated that 90 per cent of the considerably reduced number of applicants for a visa who did take the test passed, several MPs requested that 25 per cent of the applicants should fail the test. The compromise arrived at early in 2008 was to aim at a 15 per cent fail rate and the computer was instructed accordingly after experts had certified that the pass/fail level had been too low. Imitation or Quick Learning? The new idea of a formal language and integration test abroad is spreading among some of the member states at surprising speed. In only a few years several member states have recently introduced language or citizenship test for the admission of family migrants. This represents a completely new policy in Europe. Previously language requirements had only been used in the case of admission of foreign students. It is also true that some member states had already applied language requirements for the admission of third-country workers or of migrants who were deemed to be so called ‘co-ethnics’. Have the member states copied the instruments used by other member states or have certain elements been left out? What is the role of the Family Reunification Directive in these processes? The introduction of an integration test abroad as a condition for the admission of family members was part of the 2003 coalition agreement of the first Government in the Netherlands after the short-lived government with ministers from the Pim Fortuyn party. The new Government made considerable efforts to provide a legal basis for such tests by proposing an amendment to Article 7 of the Family Reunification Directive at the final stage of the negotiations inside the Council. It took several years to develop the test and to get the relevant legislation through Parliament. Finally, in March 2006 the legislation entered into force.16 The applicant for a visa for family reunification has to pass the test in a telephone conversation at a Dutch embassy with a computer in the USA. Citizens of EEA states and seven rich countries are exempted. Both knowledge of the Dutch language and of Dutch society are tested by simple questions. If the computer reports that the applicant has failed the only redress at their disposal is by taking the test again (and therefore paying €350 once more). The applicants can buy a book and a video in order to prepare for the test (for more detailed information refer to Besselink, Chapter 13; Michalowski, Chapter 14 of this book).

16 Act of 22 December 2005, Staatsblad 2006, no. 28.

Understanding the Contest of Community: Illiberal Practices in the EU?

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In Germany the integration test was introduced in 2007 by the act transposing the Family Reunification Directive and ten other EC migration Directives into the German legal system.17 The German approach was different from the Dutch on several points. The law requires a basic knowledge of the German language rather than passing a specific examination by computer. The German Government gave an important role to the Goethe Institutes that organise language courses in several countries outside the EU, whilst there are no comparable facilities to learn Dutch abroad (see Michalowski, Chapter 14; and Wiesbrock, Chapter 16). The Government suggested that a language certificate issued by a Goethe Institute was required as a condition for family reunification. However, an appeal court has held that knowledge of the language may also be proven in other ways, e.g. in a conversation with a consular officer. German diplomatic posts were instructed to apply the language requirement also to TCN family members of EU migrants. This German instruction was withdrawn shortly after the Metock judgement of the ECJ in July 2008.18 The Danish Government introduced a bill on the integration test abroad in 2007 more or less along the lines of the Dutch model. The main difference is that in Danish law there is no exemption on the basis of nationality for nationals of certain states outside the EU, a feature that enhances the legal vulnerability of the system in the Netherlands and Germany. The test has not yet been introduced, pending the development of a computerised test in Danish. The development of a similar test in the Netherlands took several years. All independent experts consulted by the Dutch Government advised that the validity of the test used had not been proven. But that advice did not prevent the introduction of the test. Denmark is not bound by the Family Reunification Directive. Hence, it can apply its legislation to family reunification with TCN sponsors without Community law restrictions. In France integration measures abroad were provided for in the Loi Hortefeux of November 2007.19 During debate of the bill repeated reference was made to ‘the Dutch model’. But French legislation is different from the Dutch in many aspects (see Carrera, Chapter 17 of this book). The level of knowledge of the French language is tested by the French consul. If the level is considered to be insufficient a language course of up to two months will be offered. Once the applicant has participated in the course the visa will be granted. If, following the course, the consul deems the knowledge to still be insufficient family migrants will have to follow an additional course after their arrival in France. In October 2008 the decree was published with details on the implementation of the new legislation.20 17 Richtlinienumsetzungsgesetz of 28 August 2007, Bundesgesetzblatt I, p. 1970. 18  Case C-127/08, Metock, 25 July 2008. 19 Loi n° 2007-1631 of 20 November 2007 relative à la maîtrise de l’immigration, à l’intégration et à l’asile, Journal Officiel no. 270 of 21 November 2007. 20 Décret no. 2008-1115 of 30 October 2008 relatif à la preparation de l’integration en France des étrangers souhaitant s’y installer durablement, Journal Officiel of 1 November 2008.

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Illiberal Liberal States

Exemptions are provided if the applicant is unable to learn French due to physical inability or the absence or inaccessibility of language training in the country of origin, after several years of schooling in a francophone country or at a French school abroad. It is clear that the new legislation will create an additional obstacle for a considerable number of applicants for family reunification.21 But the French Government has apparently tried to model its national legislation in such a way as to avoid clear violation of the Family Reunification Directive, without ever mentioning the Directive in the legislative documents. In the UK a proposal to apply an English language requirement for the admission of spouses or partners of settled persons was elaborated in a government consultation document. However, the idea was reformulated as a long-term goal on the basis of the availability of English language courses in the countries of origin. But spouses or partners may be required to enter into an agreement as part of the entry clearance process according to which they would learn English after arrival in the UK (refer to Ryan, Chapter 15). The negotiations on the Family Reunification Directive provided free publicity for the Dutch-German idea of an integration test abroad (see Kostakopoulou, Carrera and Jesse, Chapter 9). The clause inserted in the Directive at the insistence of those member states was used to legitimise the introduction of such tests at home. In France the Directive probably influenced the form of the new integration measures: offering a course rather than requiring a test. Denmark and the UK are not bound by the Directive, but have to comply with other international norms, such as the ECHR and CERD. Integration and Enlargement The use of the concept of integration and its contents are subject to a number of incoherencies. Where the concept is used as a ring-fence around citizenship and national identity, its symbolic nature becomes apparent as soon as one considers the longer term. Few liberal democracies are comfortable with nationality laws which leave generation after generation born and resident on the territory without the citizenship of the state. A mix of residence status and birth on the territory generally determines the way in which children gain citizenship in liberal democracies. Thus it is the generation that moves that is subject to integration measures and conditions. Of course the state has a much more comprehensive tool kit to turn children living on its territory into the kind of citizens it wants – a compulsory education system. In the EU context, the objective of the ever-closer union of the peoples of Europe, found in the opening lines of the EC Treaty, sits uneasily with the idea of compulsory integration of a coercive nature. While EU nationals may be subject to convergence in living standards and educational attainment, for instance, as 21  Un obstacle de plus à l’intégration, Plein Droit no. 79, December 2008.

Understanding the Contest of Community: Illiberal Practices in the EU?

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measured by Eurostat and encouraged by EU programmes such as student mobility, they are not the objects of integration conditions or measures in themselves. When they exercise free movement rights, indeed, they cannot be obliged to even learn the language of the host country though many member states provide assistance to migrant EU nationals in this respect. When EU nationals move – rather than being subject to coercive measures by the state – they are rightsholders and as such are entitled to the best integration conditions. Integration has quite a different meaning; it is the right of the individual to equal treatment and social advantages within the host state. As the EU has grown in the early part of the 21st century, so has the meaning of integration been put to the test. In 2004 ten states in Central and Eastern Europe, the Baltic area, Slovenia and two Mediterranean island states joined in the EU. One could hardly imagine a group of states with greater differences between them – some with fairly long communist pasts, others former British colonies! Again in 2007 the EU grew to include two Balkan states, Bulgaria and Romania – the former bringing with it a new written script for the EU to adapt to. Nationals of these 12 countries had the right of free movement and selfemployment as soon as their state joined the EU (for some the right to take a job was delayed for up to seven years). For those who were already resident in the pre-2004 member states, they changed overnight from being TCNs subject to integration conditions and measures to citizens of the Union entitled to the best conditions of integration. Because these people became citizens of the Union, by definition they were placed beyond the conceptual framing of immigrants as a threat to identity. Instead they were entitled to participate in the new identity of the EU’s full partners. Not only were they entitled to equality, but for them, the claim that the strength of the EU is based on its diversity (Article 151 EC Treaty) was suddenly applicable. Instead of having to become more like someone else, the rest of the EU embraced the diversity that they brought with them. These are not just empty words – when one considers the fact that the 12 member states brought into the Union eleven new languages and that the whole of the EU acquis, laws, judgements of the ECJ, etc. had to be translated into eleven new languages, the meaning of ‘the best conditions of integration’ becomes more tangible. It costs the EU vast sums to carry out translations and to provide simultaneous interpretation at all official meetings into these languages, but this was the right of the newcomers. Illiberal Practices of Liberal States: Integration as an Exception to the Laws of Citizenship and Immigration The traditional place of the framing of civic mandatory integration into law has been in member states’ legislation dealing with access to nationality through naturalisation (Bauböck et al. 2006a). The main functions that integration intends

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Illiberal Liberal States

to perform in this context are securing and protecting the constructed citizenry. It constitutes an exception in the hands of the state to grant membership and participation to the non-national. Integration in nationality law aims at protecting, managing and safeguarding the traditional notion of the nation. This notion is based on a compendium of features and characteristics often composed of stereotypes, traditional perceptions and visions of the past and the present, principles and classic ‘values’ deemed to rule ‘the one and only’ society, and conceptions of the self. The role of the nation-state in the promulgation and protection of ‘the citizen’ is decisive for its own sovereignty and legitimacy (Habermas 1998b). Integration becomes another tool for the state to manage the nation and to determine who belongs to its imagined community. The relationship between integration and the laws on nationality aims at preventing the erosion of the bond of citizenship. One of the managerial techniques in the hands of the state is the enactment of norms: its normative power. The use of integration by the branch of law dealing with nationality forces an active and corrective process of ‘nationalisation’ aimed at disciplining difference and making possible the endurance of the homogeneous nation, culture and identity. It aims at turning the abnormal into the natural or naturalised citizen (Foucault 1999). In the context of immigration law, integration becomes a tool to control the non-national ‘inside’ the nation-state and even ‘abroad’. The moving of integration from the traditional normative contextualisation of nationality to that of immigration raises a number of questions. Integration functions as another regulatory technique for the state to manage the access by the non-national – not to the status of citizen – but to the act of entry, the security of residence, family reunification and protection against expulsion. TCNs may not be willing to renounce their own identity(ies) and differences by acquiring the receiving state’s nationality, but the state will anyway demand from them the renunciation of the latter as the sine qua non for benefiting from security. Integration determines the ‘legality’ or ‘illegality’ of human mobility, and constitutes another frontier to being considered as a ‘legal immigrant’. It functions as the exception provided by immigration law for TCNs to have access to rights and inclusion (Carrera 2009). Non-EU nationals aiming at becoming immigrants in accordance with national immigration laws will be required to pass a test to show that they are ‘successfully’ integrated, and that they fully meet the criteria attached to the notion of the citizen before having access to security (Guild 2005). The immigrant will need to disappear into the presumed unity of the nation, and exhibit a transformation from the abnormal non-national to the juridical construction of the citizen. Integration in this way facilitates the state practice of a restrictive immigration policy. The Europeanisation processes and politics have not only further developed these functions in the context of the common EU immigration policy, but they

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seem to have consolidated them by prioritising certain national policies and programmes fostering nationalistic approaches to integration at the EU level. The normativity of integration in the context of immigration in some member states has somehow been transferred to the European arena. It has become a part of EU law and policy. It is at times presented as a ‘best practice’ in need of promotion in the EU, including those states whose national legislations and histories have not at all shared these understandings and public philosophies. The EU has perhaps not realised the potential dangers subsumed in the use of the EU Framework on Integration (Carrera 2008). Joppke (2007a) has argued that the increasing convergence of European policies on immigrants’ integration towards obligatory civic introductory courses and tests for newcomers constitutes an example of what he calls ‘repressive liberalism’ or ‘illiberal social policy in a liberal state’. In his view, ‘contemporary civic integration or workfare policies are of the same kind, because illiberal means are put to the service of liberal goals’. Integration implies the continuance of the nation-state and its nationhood and identity, as well as its degree of discretion to determine and categorise people according to a subjective test of perfection in an increasingly supranational legal and policy-setting environment. The illiberalism emerges sharply beyond the limits of the exceptionalism granted to the nation-state by EU immigration law when applying integration as a mandatory condition derogating access to European rights and freedoms by TCNs. The limits of the exceptionalism characterising certain integration policies in contemporary Europe however reside in the rule of law, the respect of individual fundamental rights as well as in the EU’s substantive (general principles of EC law) and institutional mechanisms (Community Courts). These mechanisms limit and review the discretional powers and illiberal practices of liberal regimes in the EU legal landscape, and aim at protecting the rights and liberties of every person (including of course also TCNs) in relation to unacceptable actions and restrictions by national and EU public authorities. This is in our view what it is really at stake when assessing illiberal liberal regimes and the limits of the nexus between integration, immigration and citizenship in the EU. O utline of the Book This book examines the relationship between integration, citizenship and immigration in contemporary Europe. It has been structured around two overarching sections: 1. Citizenship and Integration and 2. Immigration and Integration. Both are then divided into two subsections comprising the European and national arenas. This introductory chapter provides the overall framing and premises of the volume and raises the key issues at stake when examining the EU and member states’ policies and legal frameworks on the integration of TCNs in the context of citizenship and immigration. The first part of the book, entitled

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‘Citizenship and Integration’, kicks off at the European Union level with Jo Shaw (Chapter 2) providing an assessment of political rights and multilevel citizenship in Europe. Shaw’s contribution focuses in particular on the rights of non-nationals to vote in local elections on the basis of residence, rather than nationality. This is already well-established in the EU context, as a result of the introduction of local electoral rights in the citizenship package of the Treaty of Maastricht. A number of member states go further and confer the right to vote in local elections on TCNs as well, but this extension has by no means been universal. Chapter 2 further explores some of the political and legal tensions that arise when there are debates and conflicts within states, across different territorial and political units, about whether or not to extend electoral rights to non-nationals. It also seeks to explore the types of arguments made for the exercise of regional or local autonomy, e.g. within federal states, in favour of extending electoral rights where the national policy is more restrictive. In particular it emphasises the significance of constitutional barriers in a number of states where experimentation at the subnational level has been attempted, notably in Germany and Austria. It also suggests that the case for subnational experimentation can be linked, as it may increasingly be in Scotland as the UK’s current devolution scheme continues to evolve, to broader political questions about a state’s political and territorial settlement. The study of integration as a requirement for naturalisation is the topic addressed by Gerard-René de Groot, Jan-Jaap Kuipers and Franziska Weber’s contribution (Chapter 3). This chapter provides a comparative assessment of citizenship tests where integration is a requirement for naturalisation, paying particular attention to the ways in which the evaluation of the applicants’ degree of integration is being examined across a number of selected EU member states, in particular Austria, Germany, the Netherlands and the UK. On the basis of this comparative assessment, the chapter then draws conclusions about the desirability of a common EU policy fostering the development of European integration tests. The role of European citizenship as a tool for integration is the main issue of Zeynep Yanasmayan’s contribution (Chapter 4). Coping with cultural diversity and ensuring the integration of non-European nationals has turned out to be a major challenge for most Western societies. Despite the development of cooperation with regards to the management of migration, the EU member states have shown themselves to be rather reluctant to share their sovereignty when it comes to the field of integration. This chapter takes as its departure point the need for further EU involvement and thus focuses on European citizenship as an integration tool. It attempts to analyse the extent to which European citizenship can effectively contribute to the integration process of Turkish immigrants. It deals with the construction of European citizenship through the interplay of domestic integration policies. The examples of the Netherlands and Germany demonstrate how Turkish immigrants have lost out compared to EU nationals. The underlying argument is that European citizenship not only highlights national boundaries among residents but also enhances it by adding another

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layer of exclusion. Through a comparative analysis of nationality legislation and of rights attributed to non-citizens, the author advocates the necessity for a (re)formulation of European citizenship that would include all residents within its framework. This would constitute a major move towards a more democratic and inclusive Europe. The subsection on the national arenas in the context of citizenship and integration, starts with a chapter authored by Judit Tóth that studies the impacts of EU enlargement on nation-building and citizenship law (Chapter 5). Recent enlargement processes have extended not only the geographical scope of the EU but also the debates as to whether ethnic or civic citizenship policy is able to receive and integrate more TCNs through nationality law. The author sets out the major characteristics of nationality legislation in the twelve newest member states, which includes for instance the role of the legal principles of jus sanguinis, tolerated dual citizenship and ethnic preferences in the acquisition of nationality. It also offers statistics on the acquisition of nationality via naturalisation. Compared to the absorption capacity of the old member states, the naturalisation rate is lower across new member states of the EU. This, the chapter argues, might be justified due to the fact that nationality law and policy patterns follow a different rationale that is based on the existence of kin-minority and diaspora of expatriated citizens, something that has strongly influenced recent legislative changes rather than European integration processes and enhanced efforts to establish the rule of law across these newly established democracies. The nation-building strategy of newly independent states may explain the numerous compensatory measures of weak statehood in a transition period. The author gives examples of how the bumpy road leads towards liberal and civic-driven nationality status and laws across this region. Ricky Van Oers then moves to an examination of the justification of citizenship tests in the Netherlands and the UK (Chapter 6). The chapter analyses the political debates preceding the introduction of citizenship tests as a requirement for naturalisation in the Netherlands and the UK. In her analysis, Van Oers uses three models for naturalisation policy that are discerned in literature for the justification of naturalisation requirements: a liberal, a republican and a communitarian model. These models serve as a tool to locate the centres of gravity in the arguments used by politicians to defend the introduction of these tests in the countries under consideration. The chapter also addresses the question of whether the way in which the tests have eventually been put into practice can be defended on the basis of the models. Barbara Kejžar focuses on the role of dual citizenship as an element of integration processes in receiving societies taking Slovenia as a case study (Chapter 7). Dual citizenship was until recently considered to be an undesirable and anomalous social phenomenon that contradicted the established modern definition of (only one) national citizenship and should therefore be abandoned. But this mission has apparently not been successful, since the number of dual citizens is constantly on the rise. On the basis of reconsideration about the

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complexity of modern societies, where multiple loyalties and identities co-exist and there are redefinitions of the concept of citizenship in academic spheres and states, the positive effects of possessing a second citizenship are being increasingly recognised. In the context of such changed attitudes towards dual citizenship, this chapter (re-)examines the role of dual citizenship in the integration processes of immigrants in receiving societies. The author argues that dual citizenship can positively influence the integration of long-term immigrants in two ways in particular: by facilitating a naturalisation process and by encouraging (further) integration into the receiving society. As an example the author presents the case study of Slovenia and its policy of dual citizenship in the integration processes of immigrants. Kejžar concludes with a suggestion that future research on this issue should be complemented with an analysis on the individual level and concentrate on subjective meanings and interpretations that individuals subscribe to this element of integration policies. In Chapter 8, Julia Mourão Permoser and Sieglinde Rosenberger assess religious citizenship as a substitute for immigrant integration with special attention given to the case of Austria. Throughout Europe, concerns over the integration of immigrants have grown considerably in recent years. At the same time, debates over the public display of religious symbols and practices of Muslim immigrants have figured prominently in the European public sphere. The relationship between policies of religious accommodation and immigrant integration is far from simple. At the national level, Austria is a case in point. Here restrictive immigration policies are coupled with generous policies of accommodating religious diversity. Similarly, Directive 2000/78/EC grants the right to non-discrimination on the grounds of religion to all persons residing legally in the EU, whereas for most immigrants discrimination on the basis of nationality remains legal. The chapter uses Islam in Austria as a case study to analyse the tensions between the religious rights and restrictive immigration and integration policies that create barriers to the acquisition of political and socioeconomic rights by immigrants. It suggests that the increasing number of rights derived from religious membership amount to a form of ‘religious citizenship’ that transcends nationality. The effect of these contradictory dynamics is discussed, as well as the importance of religious citizenship for the social and political integration of migrants. The contribution by Dora Kostakopoulou, Sergio Carrera and Moritz Jesse on ‘Doing and Deserving: Competing Frames of Integration in the EU’ (Chapter 9) opens the second half of the book titled ‘Immigration and Integration’, as well as the subsection on the EU level. In the new millennium there has been a shift away from multiculturalism and the politics of difference towards integration. Governments frequently comment on the alleged weaknesses of the multicultural model and the advantages of thicker, communitarian notions of community. In this chapter the EU institutions’ understanding of integration is investigated by comparing and contrasting ideas, frames, laws and policies in the fields of the free movement of persons and migration, respectively. The comparison of the rights-

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based and participatory approach characterising the free movement of persons and Union citizenship with the common framework for the co-ordination of national integration policies toward TCNs highlights the need for a fundamental rethink of integration, a more coherent frame and for critical interventions at EU level. Moritz Jesse’s contribution continues our journey by studying the effective protection of TCNs from discrimination under Community law, taking as a case study the hollow interplay between the racial equality Directive 2000/38/EC and the long term residents Directive 2003/109/EC, and its detrimental consequences for integration (Chapter 10). The chapter exemplifies the weak protection from discrimination for immigrants from non-member states of the EU. It takes a closer look at the combined effect of the two Directives mentioned above. Sovereignty concerns from the member states have created a hollow circle of references, in which the racial equality Directive accepts discrimination on the basis of nationality and the legal status of immigrants from its application even in the event that this amounts to [indirect] racial discrimination. It is assumed that at least for longterm residents this gap in protection is filled by Directive 2003/109/EC. The latter Directive, however, does not provide for such protection and instead refers back to the legislative framework of protection against discrimination under Community law, which is thought to offer sufficient protection. It is shown that this ‘circular relation’ functions as an example for much of, if not all, European immigration legislation. Gaps in protection do exist in the application of immigration law and cannot be filled satisfactorily relying on, e.g. Article 12 EC Treaty or general principles of community law. Equal treatment and non-discrimination are vital elements of immigrant integration; thus protection gaps will have to be filled in order to enable real integration. The role of free movement as a precondition for the integration of TCNs in the EU is then addressed by Sara Iglesias Sánchez (Chapter 11). Bearing in mind the historical development of the European Communities, free movement is the main feature that defines the relationship between the EU and the individual. The possibility to travel, to reside and to work across the territory of the member states, enjoying at the same time a legal status characterised by equal treatment are the elements that constitute the hard core of the concept of European citizenship. Thus, any comprehensive Union policy aiming at the integration of aliens has to bear in mind the fact that free movement is the element that better defines the added value of an internal market which is, at the same time an area of freedom, security and justice. A number of elements aiming to achieve free movement have been included in the main norm concerning the integration of TCNs: the longterm residents Directive. The EC long-term resident status is the expression of a double identity similar to the one created by European citizenship. Nonetheless, through the long-term residents Directive the connection between the Union and the long-term resident remains at a very preliminary stage. Chapter 11 argues that, by failing to implement a system that enables mobility throughout the member states, the opportunity to develop a successful and comprehensive

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approach to integration in the new political community formed by the EU could be missed. In the next chapter Paul Minderhoud focuses on the access to social assistance benefits as a tool for integration in an enlarged EU and its framing in the scope of Council Directive 2004/38 (Chapter 12). It looks at the issues relating to the implementation of Directive 2004/38 in light of access to social assistance benefits for EU citizens in other member states. This Directive regulates the entry and residence of EU citizens and their family members in another member state. A problem with the implementation of Directive 2004/38 is that the point at which an EU citizen becomes an ‘unreasonable burden’ to the social assistance system is not clearly defined. Leeway is given to member states to examine whether financial difficulties may be temporary. As a result, member states have developed their own definitions. Some legal experts hold the view that before EU citizens receive a permanent residence right, it is not possible to deny them access to social benefits. The policy and practice in Ireland and the UK, however, show a different picture. By using a habitual residence test and a right to reside test, the social benefits systems of these countries appear to exclude inactive EU citizens effectively from entitlement during a certain period of time. The idea that states can only expel people if they are proved to be an ‘unreasonable burden’ has fuelled discussion over welfare tourism and fear for social welfare systems. This fear is needless since there is no unconditional access to social benefits in most member states. Concerns about the potential abuse of social welfare systems are so far unfounded. The last subsection of the book comes back to the national arenas in order to address the relationship between the mobility of TCNs and integration across various EU member states. Leonard F.M. Besselink starts the section by studying the vicissitudes of Dutch integration programmes (Chapter 13). The chapter describes the legislative approach to integration in the case of the Dutch integration requirements, inburgering, against the populist political background of the period between 2004 and 2008. It describes how, instead of increased integration, it has resulted in a dwindling of the numbers of persons participating in integration programmes. Besselink shows how the ‘integration of minorities’ turned from a inclusionary social policy issue into an exclusionary immigration issue, from a problem to be addressed with social measures based on ‘soft law’ to one that is to be tackled with legislation enforced with sanctions. It submits that this has largely contributed to its failure to achieve the intended objectives of integration and participation. In the past ten years North-Western European member states such as France, Germany and the Netherlands have repeatedly modified their integration policies for new immigrants in search of more (cost-) effective solutions. Ines Michalowski’s chapter looks at the ways in which immigrant integration policy can become a private task by looking at the cases of the afore-mentioned countries (Chapter 14). Policy and research documents have described these changes as paradigmatic. The chapter analyses the past two changes, which

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are the subsequent introduction of integration programmes and of alternative strategies such as legally fixed integration requirements that migrants have to meet at their own responsibility and asks which of these changes can be described as paradigmatic. The integration agenda in British migration law is studied by Bernard Ryan in Chapter 15. This chapter details the integration requirements that have been introduced into UK migration law since 2002, or which have been the subject of government proposals. The first innovations concerned the addition of knowledge requirements of the official language and of life in the UK to the rules governing naturalisation and indefinite leave. A second stream of developments saw the introduction of English language requirements for highly-skilled migrants and skilled workers, and a proposal to require the partners of settled persons to learn English either before or after migration to the UK. The Government also plans to introduce a criterion of ‘active citizenship’, compliance with which would lead to a shorter qualifying-period for naturalisation and for a new ‘permanent residence’ status. The chapter argues that it is paradoxical to seek to improve the social and economic position of migrants through these integration conditions within migration law. Instead, the new integration agenda is to be understood as a problematic aspect of the policy of promoting ‘community cohesion’. Chapter 16, by Anja Wiesbrock, focuses on integration requirements for immigrants in Denmark and Germany. TCNs are faced with integration conditions at three stages in the process of settling in a country of the EU: before entry, after arrival and when applying for citizenship. This chapter provides a critical analysis of the integration requirements faced by TCNs at each of these three stages in Denmark and Germany. A comparison of Danish and German integration results on the basis of the recent OECD study reveals that member states are not likely to improve their integration results by further intensifying integration programmes or tightening immigration and citizenship rules. On the contrary, extremely restrictive rules could hamper the integration process, especially if they are perceived to amount to direct or indirect discrimination. Furthermore, the chapter scrutinises the compatibility of German and Danish integration measures with fundamental principles of EU law, including Directives 2003/86 and 2003/109, the principles of proportionality and non-discrimination and Directives 2000/43/EC and 2000/78/ EC as interpreted by the ECJ. The relation between integration and the legal frameworks of immigration and nationality in France is analysed by Sergio Carrera in Chapter 17. This chapter studies the nature and impact of the normative articulation between integration, nationality and immigration in French law. After offering some theoretical reflections on the French Republican paradigm of integration, it addresses the ways in which integration is being used and practised in nationality law by looking at the key provisions contained in the civil code dealing with the condition of assimilation for naturalisation. The relationship between immigration legislation and integration is then analysed. It is argued that Republican integration has experienced a number of multifaceted processes of

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normativisation, expansionism and externalisation: first, it is currently presented in a mandatory contractual relationship between the state and the TCN, taking the form of the so-called welcome and integration contract (CAI). The CAI applies as a prerequisite for the non-national to have access to permanent residence and the right to family life. Second, integration has been subject to gradual expansionist logic from its traditional place within the realm of nationality law to the regime covering the wider area of immigration. It now functions as a condition for the regular nature of the entry, permanent settlement and family reunification of TCNs. Third, there is a consistent trend calling for the application of integration as a requirement already in the country of origin to obtain a visa for the purposes of family reunification (‘integration abroad’). The main features and scope of these various processes in the French legal system are addressed. Immigration and the construction of public philosophy(ies) of integration in Spain are analysed by Ruth Ferrero-Turriόn and Gemma Pinyol-Jiménez in Chapter 18. Because of its recent conception as a destination country and unlike other European countries of immigration, Spain is just examining the links between immigration and social integration, and its transposition in a legal framework. In recent years, Spain has been involved in defining its own interpretative framework and constructing an argumentative discourse to sustain its public philosophy of integration. Furthermore, public and academic debates point out how, in such a decentralised country, rather than talking about a philosophy, it could rather be considered as presenting various philosophies of integration. This chapter will analyse how the central Spanish Government has articulated its own public philosophy on integration, but it also focuses on how this philosophy has been built in the region of Catalonia. The main aim is to reflect how, in Spain in general and in Catalonia more particularly, the debates on migration, citizenship and national community are still open and how, within this framework, instruments to manage plurality and diversity should be implemented to grant social cohesion and peaceful coexistence in a decentralised Spain. Finally, the book concludes with a chapter by Salvatore Palidda dealing with the insertion, integration and rejection of immigration in Italy (Chapter 19). This process has been marked, on the one hand, by a sometimes exaggerated interpretation of the strictest points of the guidelines adopted by the EU concerning the ‘countering’ of irregular immigration and, on the other hand, by the ignorance of recommendations that are more favourable to integration. This becomes critical when taking into account the existence of an excessive discretional power by the police in each province, non-effective protection for migrants against over-exploitation in underground economies, against the money-lenders in the housing market, against discrimination, racism and violence, etc. There is no law on humanitarian and political asylum in accordance with European norms. The chapter argues that Italy is the least favourable country for a stable and peaceful integration of immigrants. The most recent estimates indicate that there is an increase in the ‘shadow economy’

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and of irregular immigration against a background of hostility, discrimination and racism that has also provoked the growth of the number of foreign prisoners in prisons and in retention centres.

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PART I Citizenship and Integration: The European Union

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Chapter 2

Political Rights and Multilevel Citizenship in Europe Jo Shaw

In mature federations, debates often occur about which level of government should regulate (which) immigration issues. The core issue is whether immigration is an exceptional case (because of the link to the security of the state and to international diplomacy), or whether it should, in federal systems, be regulated using the same public law principles and applying the same arguments about policy efficiency and legitimacy as those which govern the allocation of powers between different levels of government in other policy fields, taking due account of regional variations within a territorially differentiated jurisdiction. Moreover, states within federations can also act as laboratories or precursors to wider national trends. As Justice Brandeis famously once said: ‘[I]t is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country’. There is, of course, nothing to suggest that in the case of immigration federalism, this would mean the adoption of policies which are necessarily more ‘favourable’ to perceived interests of immigrants (Wishnie 2001). But they might, for instance, be directly reflective of the fact that a particular region or city within a state is more attractive to migrants and thus faces different constellations of issues to other parts of a state (Loobuyck and Jacobs 2006). Thus the division of powers in the immigration field may be affected by the preferences of both substate regions and cities, and of migrants. Regions often view themselves and/or are treated as stateless nations within wider multinational states with specific interests in issues  Earlier versions of this chapter were given at the IMISCOE Cluster B3 Conference in Warsaw, May 2007, at the Biennial EUSA Conference in Montreal, May 2007 and at a seminar at the Centre for Study of Law in Society, University of Sheffield, March 2008. I am grateful to the participants at these events for their comments, and in particular to Rainer Bauböck for providing comments on a draft version and to Bernhard Perchinig for input in relation to the case of Austria.   For the discussion on immigration federalism, see generally Schuck (2002); Huntington (2007); Spiro (2001); Boushey and Luedtke (2006); Parlow (2007); and Su (2008).   New State Ice Co v Liebmann, 258 U.S. 262 at 311 (1932), Brandeis J. dissenting.

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of economic development and demography which may differ from the rest of the state, and cities commonly regard themselves as transnational rather than national actors, whether in federal or unitary states. Cities, in particular, may be the chosen destinations of immigrants, rather than countries as such, not least because newly arrived immigrants often wish to join an established community in the host state of co-ethnics or co-nationals (Vertovec 1998; DeVoretz 2004; Bauböck 2003). The political authorities of those states, regions or cities will react differently to the political demands stemming from differing levels of immigration ‘demand’. Accordingly, a particular case may be made for the individual units within a federation or for large units such as cities to make autonomous decisions on the question of migrant selection as well the issues of post-settlement integration with which they are more often already entrusted, because of political, geographical, demographic, cultural or social conditions. Leaving aside more general questions about immigration federalism, the specific focus of this chapter is on rights to vote and stand in elections as a resident rather than a national of the host state, and in particular the right to vote in local elections. This is just one narrow dimension of the immigration/citizenship complex within multi-level polities, where tensions can arise between the ‘federal’ authority and the subnational authorities as to which rights could or should be given to which different groups of immigrants and/or non-nationals. The question of the allocation of political participation rights in local elections combines difficult issues about the interface between settlement rights, access to nationality through naturalisation and residence, and integration within the host society more generally. The chapter looks at the contestation of such rights across different levels of governance within the member states of the European Union (EU), but it places these rights in their wider EU context, taking into consideration relevant EU laws and policies governing the rights of EU citizens and third-country nationals (TCNs). Thus the chapter builds upon an earlier study examining how electoral rights allocated at the EU level to EU citizens interact with the electoral rights granted (or denied) to non-nationals more generally at the national level (Shaw 2007). The primary focus of the earlier study was the existing framework of electoral rights under EU law, which are applicable only to EU citizens. The rights enjoyed by EU citizens under Article 19 EC Treaty and the implementing Directives, which extend to rights to vote and stand under the same conditions as nationals not only in  E.g. on language grounds, Quebec takes a different approach to Francophone speakers than does the rest of Canada (DeVoretz et al. 2003).   Council Directive 93/109/EC of 6 December 1993 laying down detailed arrangements for the exercise of the right to vote and stand as a candidate in elections to the European Parliament for citizens of the Union residing in a Member State of which they are not nationals, OJ 1993 L329/34, 30 December 1993; Council Directive 94/80/EC of 19 December 1994 laying down detailed arrangements for the exercise of the right to vote and stand as a candidate in municipal elections by citizens of the Union residing in a member state of which they are not nationals, OJ 1994 L368/38.

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municipal elections but also in European Parliamentary elections, provide examples of how the various regimes of rights enjoyed by EU citizens are dispersed across the supranational as well as the national levels. They can be seen as important exemplars of the wider principle of equal treatment, which complements the free movement rights enjoyed by EU citizens. The legal framework for this is provided not only by the citizenship provisions of the EC Treaty themselves, but also by other provisions of EC law such as Article 12 EC Treaty. The rationale for this legal framework focuses to a considerable extent on the fostering of integration of migrant EU citizens into the society and polity of the host Member State. In contrast, there is no ‘hard’ EU law governing the allocation of electoral rights to resident TCNs at the national level, but there is some soft law encouragement. For example, DG Freedom, Security and Justice of the European Commission has produced a Handbook on Integration for policy-makers and practitioners, which seeks to establish best practices, drawn from examples across the member states, in areas such as initial reception of immigrants and civic participation. It encourages member states to extend local political rights to TCNs using arguments about integration in the following manner: The representativeness and democratic legitimation of policies is enhanced by extending formal political rights to immigrants. Where political rights exist, they need to be put into practice with commitment from all sides including political parties […]. At the local level in particular, electoral rights provide immigrants with political representation in decisions that affect their most immediate interest…Governments should grant electoral rights to all residents at least at local level and minimise obstacles to the use of these rights, such as fees or bureaucratic requirements. Immigrants can be encouraged to make use of electoral rights through information campaigns and capacity building, relying in particular upon the networks offered by immigrant organisations.

This, along with other similar statements emanating from the EU institutions, supports the general proposition that electoral rights for non-nationals, at least at the local level, can usefully be seen as part of a pathway through a process of integration, rather than as a reward for integration already achieved, in the form of the acquisition of national citizenship. It is significant to note that this  DG Justice, Freedom and Security (2004), Handbook on integration for policymakers and practitioners (Brussels: European Communities), p. 49.   For example ‘Conclusions of the Council and the Representatives of the Governments of the member states on the establishment of Common Basic Principles for immigrant integration policy in the European Union’, Doc. 14776/04 MIGR 105, 18 November 2004; European Commission, A common agenda for integration – Framework for the integration of third-country nationals in the European Union, COM(2005) 389, 1 September 2005; European Commission, Third annual report on migration and integration, COM(2007) 512, 11 September 2007.

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proposition has achieved recognition in a number of member states, since around half of the twenty-seven member states accord some or all TCNs rights to vote, and sometimes to stand, in local elections, albeit not the states with the largest number of TCN residents (France, Germany, Italy and Spain). In this chapter, the focus is on variation within states, rather than across them. A number of prominent examples of such variation do exist, such as Canada, Australia and – in a very limited way – United States, but there are no examples of geographical variation in relation to local electoral rights for TCNs amongst the EU member states. The best European examples are to be found in Switzerland, which offers more generally an important example of a system of multilevel citizenship co-existing within a single state. Since citizenship operates at the federal, the cantonal and the local levels in Switzerland, those seeking to acquire Swiss nationality must seek admission at all of those levels, and there are important variations in relation to the acquisition of Swiss citizenship across the more than 200 municipalities which have powers in this area (Helbling 2008). There is variation also in the allocation of political rights. Article 39 (1) of the Federal Constitution explicitly devolves the necessary competence to the Cantonal level, providing that: ‘The Confederation shall regulate the exercise of political rights in federal matters; the Cantons shall regulate the exercise of these rights in cantonal and municipal matters’. Some Cantons regulate the matter directly, either by instituting local electoral rights for non-nationals (e.g. Fribourg, Jura, Vaud and Neuchâtel) or by refusing them (e.g. Aargau, Solothurn and Schaffhausen). A number of other Cantonal Constitutions, including those of Appenzell Ausserrhoden and Lucerne allow individual communes to introduce the right to vote, thus creating the possibility for a second level of variation, at the communal level. The issue has been regularly revisited and debated, as initiatives for referendums on the matter are brought before the various Cantons. In the United Kingdom, there is an interesting example of regional variation of electoral rights for EU citizens. EU citizens can vote in the elections for the devolved parliaments/assemblies of Scotland, Northern Ireland and Wales, as well as in the elections for the London Assembly. This is because all of these elections are conducted on the basis of the electoral register that is compiled for UK local elections, not the national elections to the Westminster parliament. Pursuant to Article 19 (1) EC Treaty, EU citizens are on the local electoral register. These  The London Assembly has considerably fewer powers than the Assemblies in Wales or Northern Ireland. EU citizens can also vote in elections for the Mayor of London and other directly elected mayors in other towns and cities.   S. 3 (1) of the Local Government Elections Regulations 1995 (SI 1995, no. 1948) provides the basic amendments to the local electorate to incorporate the requirements of EU law, and in relation to the inclusion of EU citizens in the ‘regional’ franchise see s. 17 of the Greater London Authority Act 1999; S. 11 of the Scotland Act 1998; S.10 of Schedule 1 of the Government of Wales Act 1998; S. 2 (2) of the Northern Ireland (Elections) Act 1998.

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electoral rights are, however, emblematic of the UK’s emerging asymmetric federal system, because in certain parts of the UK, notably most of England, the analogous elected bodies for which EU citizens can vote (and stand for election) simply do not exist. Against the background of these observations, the empirical section of this chapter will explore some examples of the contestation of electoral rights for nonnationals in the context of the multiple levels of political and legal authority which exist in the EU. The review does not purport to be comprehensive, but rather it presents a snapshot intended to tease out some preliminary conclusions about the different range of practices which occur in relation to electoral rights. The primary research questions are the following: what types of claims or arguments for the exercise of regional or local autonomy in relation to the political participation of non-nationals have been developed in the EU member states? Who have been the main actors in this context (political parties? Non Governmental Organisations (NGOs)?)? How have these arguments been received both at the sub-national level and at the national level? What has been the impact of the broader European context provided by the limited framework of EU competences and activities in this field? And finally, what are the barriers to the experimentation which Brandeis suggests goes to very the essence of a federal system? Are they predominantly political or constitutional/legal in nature? Contesting Electoral R ights at the Subnational Level in the M ulti-Level ‘Euro-polity’ This section begins by looking at the link between evolving notions of sub-national identity and possible re-definitions of the franchise at the sub-national level in the UK, specifically in Scotland. Here the focus is on the general provocations to the definition of citizenship and associated rights which arise where the existing territorial and political settlement within a given state is under pressure from below. The UK is not unique in the EU in this context, and examples could also be drawn from the debate in both Spain and Belgium. The focus then shifts to EU member states where there have in the last ten to twenty years been active campaigns and/or attempts, at the sub-national or regional level to subvert restrictive national policies on the inclusion of non-nationals. In each case, the proposed more inclusive policies have faltered, often because of constitutional restrictions as well as the absence of political will at the national level. The chapter takes a closer look at the cases of intrastate, intergovernmental competition which have occurred in this context, separating out for particular attention two federal states – Germany and Austria – where a constitutionally defined singular notion of the national demos has hindered sub-national experimentation with political participation rights for TCNs at the local level.

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Scotland in the UK in the EU: What Scope for Differentiated Policies? The asymmetry in the electoral rights for EU citizens in the UK noted in the introduction raises the question whether there could in future be asymmetric development of electoral rights for TCNs. At present, the electoral rights of TCNs in the UK are limited to the rights of Commonwealth citizens to stand and vote in all elections,10 thus excluding many large groups of TCNs in the UK such as Americans. In particular, the question arises as whether local electoral rights for TCNs could be instituted only on a UK-wide basis, or whether there are circumstances in which Scotland could choose its own policies in this area, but without moving to full political independence and the break up of the historic union with England. To put this question in context, it is useful to look at the broader history of political conflicts between Edinburgh and London since devolution over immigration and citizenship policies. Significantly, these predated the election of the minority Scottish National Party (SNP) Government at the Scottish Parliament elections in 2007, and were visible also under the previous Labour-led coalition, albeit it in a more attenuated fashion. Asylum has been a core battleground in the UK where the issue of decentralisation has arisen. The UK is one of the many states which have used a policy of dispersing of asylum applicants, in the name of sharing the costs and the ‘burdens’ (Boswell 2001). In practice, this has created the scope for differences to arise within states over the politicisation of asylum questions. In relation to Scotland, for example, while immigration (and asylum) questions are reserved matters for the Westminster Parliament under the Scotland Act 1998, certain issues about the treatment of asylum seekers, and especially the forced removal of those who have been refused asylum, have been more heavily contested than in other parts of the UK. For example, policy on children falls within the remit of the Scottish Parliament. Political conflict has arisen as to whether so-called ‘dawn raids’ to remove those who have been refused asylum from the UK are traumatic experiences which infringe the rights of the child, and whether such removal, however effected, would also be liable to deny the children certain basic rights, such as the right to an education.11 The issue led directly to conflict between the 10  The Representation of the People Act 1918 established the first truly modern franchise for the UK Westminster Parliament, abolishing property qualifications for men and introducing the franchise for (some) women for the first time. At the time it posited the franchise for ‘British subjects’, and when Ireland and what are now the countries of the Commonwealth became independent states, the franchise arrangements were preserved and updated, for example in the Ireland Act 1949. The relevant consolidating legislation laying down the general entitlement to vote is the Representation of the People Act 1983, as amended. For a review of the current scope of the franchise, see House of Commons Library Standard Note, Electoral Franchise: who can vote?, SN/PC/2208, 1 March 2005. 11  ‘Protest over refugee dawn raids’, BBC News, (updated 17 September 2005) .

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Scottish Executive and the UK Labour Government in Westminster. When the Scottish (Labour) First Minister Jack McConnell sought some type of dispensation from the Home Office in London regarding the involvement of Scottish education and social service agencies in the making and implementation of deportation decisions,12 he was firmly rebuffed. In a political commentary in the Sunday Herald, a senior Scottish political commentator noted somewhat gloomily: ‘If anything, McConnell’s brush with the Home Office has confirmed that Holyrood’s attempt to project Scotland as a welcoming place for foreigners is increasingly out of step with the clampdown implemented at Westminster’.13 More recently the focus has been on the detention of asylum seekers, including children, with Scottish Ministers actively seeking the closure of the only asylum seeker detention facility in Scotland, although so far unsuccessfully.14 Scottish Government policy is also actively to seek the integration of asylum-seekers into the host community from the day they arrive in Scotland, including giving them the right to work.15 This is emphatically rejected in current UK policy. It is arguable that in other fields of immigration policy, while restricted in what it can do, the Scottish Executive (since 2007, renamed the Scottish Government) has been a little more successful. Historically, like Ireland, Scotland has been a nation of emigration. This has involved principally emigration to the rest of the British Isles (including the island of Ireland, especially Ulster) and to North America and elsewhere in the British Empire/Commonwealth. Immigration was largely confined to inward flows from Ireland, Poland and Lithuania especially after the Second World War, from Italy, and in more recent years from England. Scotland’s population has declined severely as a proportion of the overall population of the UK (as Scotland’s dwindled to around 5 million, England’s continued to grow), and its population (and population profile) has continued to decline (and to age) because of declining fertility and insufficient immigration to match the continuing emigration. Only in very recent years the population of Scotland has started to

12  ‘McConnell seeking asylum protocol’, BBC News (updated 22 September 2005) . 13 Hutcheon, P., ‘Holyrood Vs Westminster: the battle over asylum’, Sunday Herald, (uploaded 27 November 2005) <www.sundayherald.com>. 14  Mackay, N., ‘After Dawn Raids…the new scandal’, Sunday Herald, (uploaded 20 January 2007) , accessed 10 December 2008; Smith, K., ‘Dungavel set to close as Holyrood and Westminster pilot new detention scheme’, Sunday Herald, (uploaded 3 February 2008) , accessed 10 December 2008. 15 Henderson, D., ‘MacAskill clashes with immigration chiefs over reforms’, The Herald, (uploaded 11 October 2008) , accessed 10 December 2008.

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grow again, reaching an estimated 5.1 million in 2006.16 A major contributing factor has been net inflows of EU citizens from the new member states taking advantage of the UK’s decision not to apply transitional restrictions on labour market access. One of the major initiatives of the Scottish Executive in the early years of managing devolved Government after the first Scottish Parliament elections in 1999 was to promote positively the image of Scotland as a migration destination. This has included some specific initiatives, such as the Fresh Talent Initiative giving overseas students who have completed university courses in Scotland two year visa extensions to work, without need to seek a work permit.17 Clearly, this was hardly a radical departure from broader UK policy which has long promoted a selective migration policy focusing on skills, especially in shortage areas and on those with entrepreneurial tendencies. Even so, Fresh Talent was a broader and less restrictive programme than what was available more generally in the UK, until it was assimilated into a UK-wide international graduates programme in the middle of 2008. Furthermore, with its promotional and informational website Scotland is the place,18 which is also available in Polish and Chinese versions, the Scottish Government has been offering warm encouragement to migration to Scotland which has not been matched by the equivalent UK-wide websites.19 On the contrary, the public face of the UK in relation to employment-related mobility often demonstrates the increasing ‘fortress mentality’20 which now appears to pervade much UK policy in relation to immigration, border controls, and the treatment of foreigners more generally. The rhetoric in Scotland has focused firmly on settlement-based economic migration, whereas in the rest of the UK, especially the South East of England, the focus is increasingly on forms of circular migration with rights to permanent residence becoming ever more restricted. In the wake of the election of a minority SNP Government at the Scottish Parliament elections in May 2007, the issue of citizenship and immigration has inevitably received some attention. The Scottish Government’s consultative paper of July 2007 unsurprisingly had a clear slant towards a solution premised on 16  Population statistics are available from both the Scottish Government and the General Register Office for Scotland . 17  See the statement of First Minister Jack McConnell to the Scottish Parliament, 25 February 2004, . Scottish Executive, New Scots: Attracting New Talent to Meet the Challenge of Growth, February 2004. After two years, however, leave to remain has to be sought on the basis of the ‘ordinary’ UK rules. See Scottish Executive, Progress Report on the Fresh Talent Initiative, Scottish Executive Social Research, 2006. 18  . 19  Compare the highly functional tone and focus of the UK Border Agency’s Working in the UK website: . 20 D. Orr, ‘Open borders are the only alternative to the erection of a repressive fortress state’, The Independent, 26 July 2006.

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Scottish independence. Noting that powers relating to citizenship and immigration are powers reserved to the Westminster Parliament, it goes on to say: The United Kingdom Government’s policies on immigration and citizenship must reflect the situation across Britain, especially in the South East of England and London. In Scotland, there are very different economic, demographic and social issues relevant to population and immigration. Within the United Kingdom, it might be difficult to devolve responsibility for immigration and citizenship to Scotland, but increased powers to attract new migrants could allow the Scottish Government to address Scotland’s needs in an appropriate way.21

The statement suggests that nothing short of independence will really do. However, it also reflects official SNP policy, which has been to campaign, even before independence, for a distinctive Scottish ‘green card’ to facilitate immigration. In fact, when the Migration Advisory Committee (MAC) was established in 2008 to provide independent and evidence-based advice to Government on specific sectors and occupations in the labour market where shortages exist which can sensibly be filled by migration, it accepted the principle that regional variation needed to be taken into consideration. When it produced its first list of shortage occupations in the summer of 2008, the MAC also added a short list of occupations with shortages specific to Scotland. At that level, it could be said that UK policy itself is moving a small way towards the position adopted by the SNP. Turning to the specific question of electoral rights for non-nationals, a review of the relevant legislative materials suggests at first blush that there is little scope for variation within the UK. Section B3 of Schedule 5 to the Scotland Act 1998 lists the powers reserved to the Westminster Parliament after devolution, so far as pertains to elections. The list reads: Elections for membership of the House of Commons, the European Parliament and the [Scottish] Parliament, including the subject-matter of: (a) The European Parliamentary Elections Act 1978, (b) The Representation of the People Act 1983 and the Representation of the People Act 1985, and (c) The Parliamentary Constituencies Act 1986, so far as those enactments apply, or may be applied, in respect of such membership. The franchise at local government elections.

This leaves very few powers to the Scottish Parliament in electoral matters, although the reference in the last line to local government elections means that the Scottish Parliament can make certain other arrangements (other than questions of the franchise) for local elections which deviate from the UK norm. Indeed, 21  Scottish Government, Choosing Scotland’s Future. A National Conversation, August 2007 at p. 16.

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it did so recently in order to introduce proportional representation for Scottish local elections as of 2007.22 However, it is notable that a broader Commission (the Arbuthnott Commission)23 which looked at the conduct of elections more generally in Scotland, including voter participation and the co-existence of several systems of voting, was established not by the Scottish Ministers, but by the Secretary of State for Scotland – that is a Minister responsible to the Westminster Parliament. In sum, the Scottish Parliament is not permitted to change the franchise for any elections in Scotland, and could only be empowered to do so if the Scotland Act were amended. But while any change would indeed require primary legislation from the UK Parliament, there is no other UK constitutional bar to a wider franchise in Scotland. This point is reinforced by the fact that the current arrangements permitting EU citizens to vote in such ‘regional’ elections in the UK are simply laid down in primary legislation making reference to the local government register.24 That the current scope of the franchise should not be regarded as politically immutable in the longer term is confirmed by the fact that the franchise for putative ‘Scottish’ elections has differed over the years. Under the Scotland Act 1978, which made arrangements for an earlier devolution scheme aborted when the initiative which failed to win sufficient referendum approval in 1979, section 4 provided that the persons entitled to vote as electors at the elections for the putative Scottish Assembly would have been those who had their names on the register of parliamentary electors, plus peers (that is members of the House of Lords). Members of the House of Lords are not entitled to vote in Westminster elections although they are entitled to vote in local government elections.25 Schedule 17 of the same Act laid down that the same groups of electors could vote in the referendum. A different definition of the franchise was used after 1997, both for the referendum which approved the creation of the Scottish Parliament and the subsequent elections.26 The issue of the franchise was much discussed in both the House of Lords and the House of Commons in 1997 during the passage of the relevant legislation, especially in relation to the question of who should vote in the 22 Local Governance (Scotland) Act 2004. 23  Commission on Boundary Differences and Voting Systems, Putting Citizens First: Boundaries, Voting and Representation in Scotland, January 2006 (available from ). 24  Section 11 of the Scotland Act 1998. 25 The Scotland Act 1978 was immediately repealed by the newly elected Conservative Government in 1979, after the failed referendum of 1 March 1979. The referendum was one of the factors contributing to the fall of the Labour Government, after it lost a vote of confidence on 28 March 1979. 26 The issue of who should be able to vote in devolved Scottish elections was not discussed in the Kilbrandon Report of 1973 (Royal Commission on the Constitution, 19691973, Cmnd. 5460), which was one of the main sources of inspiration when the devolution scheme of 1997 came to be put in place.

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referendum which approved the establishment of the Scottish Parliament. These electors were thought to be determining Scotland’s constitutional status in a postdevolution Union.27 Two key developments in relation to the local government and parliamentary registers between 1978 and 1997 should be noted: first, the presence of EU citizens on the former since 1993, and second, the presence of overseas (that is, expatriate) voters on the latter. Expatriates were enfranchised in Westminster elections by the Representation of the People Act 1983, as amended most recently by the Representation of the People Act 2000. This allows British nationals living overseas to register to vote for up to 15 years after leaving the UK, in the constituency in which they were last registered as residents. Choosing the local electoral register as the basis for the franchise for elections in Scotland meant a focus on residence within Scotland rather than any other form of affinity with Scotland. It not only avoided the question of the affinity and belonging of those ‘expatriates’ who had moved outside the UK within the last 15 years, but also avoided the question of the participation ‘rights’ of the very much larger Scottish diaspora comprising those who had left Scotland within the last 15 years in order to reside elsewhere in the UK. To what extent should the ‘Scottishness’ of either group of expatriates give them a say? Should the expatriates born in Scotland, who have chosen to emigrate whether within or outside the UK, be given a stake in the future of Scotland? Do they have a better right to participate than those English ‘incomers’ (i.e. those born and formerly resident in England, but now resident in Scotland)? It is not hard to see that such questions of affinity would be precisely those which a Government committed to pushing through a referendum on a rather limited and localised concept of devolution in 1997 would want to avoid, given the presence of an active political movement for independence in Scotland. The parliamentary debates in 1997 reveal that the issue about expatriate voters was principally raised by members of the opposition Conservative party in order, perhaps, to muddy the waters about what the significance of a devolution referendum might be for the future of ‘Scottishness’ and of Scotland. Labour Government ministers rather stressed that devolution was about residence and localism. It is clear from those debates that issues about the scope of the franchise have been clearly linked to questions of identity, even in the context of devolution. The same definition of the franchise, albeit for different reasons, is embraced for the putative referendum on independence which the SNP Scottish Government proposes to hold before the next Scottish Parliament elections in 2011. A draft bill was included in an annex to the National Conversation consultative paper28 and proposed that the local electoral register should be used as the basis for the referendum franchise. The paper justified this as follows: 27  For examples of debates, see House of Commons Committee stage of the Referendums (Scotland and Wales) Bill, House of Commons Hansard Debates for 3 June 1997, Cols. 24778; House of Lords Debate, 3 July 1997, Hansard Debates, Cols., pp. 321-44. 28  A National Conversation, above no. 20 at pp. 44-8.

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Illiberal Liberal States In the Scottish devolution referendum in 1997 entitlement to vote was based on residence in Scotland, which is the same as for local government elections. The draft Bill follows this model and does not attempt to define categories of people resident outside Scotland eligible to vote in the referendum, nor to exclude any people resident in Scotland from the poll. The draft Bill envisages an independent Scotland based on the territorial and political entity of Scotland, not on place of birth, or ethnic group.29

This reflects also the approach of the SNP to citizenship acquisition after independence, whereby all long term residents would be accorded Scottish citizenship unless they opted not to acquire it.30 This would be combined with full toleration of dual nationality, and the preservation of the residence rights of those who opted not to take Scottish nationality, as well as the rights of their children. Of course, not all issues of citizenship, nationality and voting would be easy to resolve in the event of independence, as the experience of the new states which emerged in Central and Eastern Europe after 1989 has shown. This is all the more so because Scotland would be creating distinctions between insiders and outsiders in the context of continuing EU membership, and in a context where Scotland has received large numbers of EU citizens exercising their free movement rights since 2004. While most of these questions lie beyond the scope of this chapter, one difficult question is unavoidable. What would happen to the EU electors in pre-independence Scottish Parliament elections who refuse the offer of Scottish citizenship? At present, these electors have the right to vote for those with the power to determine policies, for example, on schools and hospitals in Scotland. Should they lose that right after independence just because they then would be voting in an election which also determined questions about defence and the national currency? Would it be compulsory for EU citizens, in those circumstances, to take up the offer of (dual) citizenship if they wanted to carry on voting, or would Scotland adopt the position that it has at the present time whereby EU citizens can participate in a significant elements of political decision-making, and extend that also to national (Scottish) elections after independence? Returning briefly to the headline research questions in order to conclude this section, some key points can be made. First, it is clear that the issue of voting rights in Scotland is subsumed within a broader debate about Scottish political futures, and about the future of the Union (that is the UK) more generally. While barriers to further experimentation under the existing legislation are clearly legal in nature, there would be no constitutional barrier as such to a change to 29  A National Conversation, above no. 20 at p. 35; the proposition about inclusiveness is clearly incorrect, however, as a minority of residents of Scotland would be excluded from voting in the independence referendum, because a number of (non-Commonwealth) third country nationals are not entitled to vote in local elections. The largest such groups would probably be US and Chinese citizens. 30  See above no. 21.

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the primary legislation establishing the devolution settlement in order to give the power to the Scottish Parliament to define its electorate in different ways to the rest of the UK (that is to include TCNs). Furthermore, since the franchise used in devolved matters has been malleable in the past this indicates that change in the future might occur again. However, despite the heated nature of the debate in the UK about the future of Union and about the possibility of a referendum on Scottish independence, the issue of asymmetry or Scotland-level experimentation has not been the subject of extensive public debate hitherto. Cities and States as Laboratories? In the second part of this empirical section the focus is on cases of local level experimentation which have been driven by dissatisfaction with the prevailing national policy. These are cases where the issue is nested within a contested national debate about immigration and integration, and is not about political futures more generally. All of the cases reviewed are those where a subnational unit is contesting a restrictive national policy. However, quite conceivably, the positions could be reversed. In France, while the issue of electoral rights for TCNs is regularly debated, a constitutional amendment which would be necessary to start the process of bringing about local electoral rights for TCNs remains on the table within the French legislature. It has been consistently supported by forces of the political left,31 but it has not so far been adopted. The National Assembly adopted a draft law on the matter, but the draft has never completed the necessary legislative process in the Senate.32 In the light of these blockages, local level experimentation has been mooted as the alternative. Initiatives within municipalities to organise local referendums on giving the right to vote to TCNs have, like other subnational initiatives examined in this section, been declared illegal as outwith the competence of the relevant subnational authorities,33 but they have been held on a consultative basis at the municipal level none the less.34 Civil society organisations such as the

31  See the Socialist Party ‘manifesto’, Réussir ensemble le changement: Le projet socialiste pour la France, Part III, at p. 21: ‘We will grant the right to vote in local elections to resident non-nationals who have been paying taxes for more than five years in our country’, 1 July 2006, <www.projet.parti-socialiste.fr>. 32  See The Rights and Responsibilities of Citizenship, a report drawn up for the Goldsmith Review of citizenship in the UK by the British Institute of International and Comparative Law, at pp. 154-5. 33  Judgment Tribunal Administratif Cergy Pontoise (1st Chamber) 23 February 2006, Préfet de la Seine-Saint-Denis, req. no. 0511415, reported and briefly noted in Bulletin Juridique des Collectivités Locales no. 4/06, p. 257. 34 A local consultative referendum was held on 26 March 2006 in the town of SaintDenis; 31 per cent of the electorate participated, and 64 per cent voted in favour of extending the right to vote to third country nationals.

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Ligue des droits des hommes have also been very active in this context, organising symbolic votes on the issue of electoral rights for TCNs.35 Similar initiatives have been seen at the local level in Italy, in particular during the years of the centre right coalition Government of Prime Minister Silvio Berlusconi (2001-2006), which saw few developments at national legislative level in relation to the rights of non-nationals and immigrants. These have reflected the fact that Italy is a state with strong local identities. However, these local initiatives have come into conflict not only with the less generous national policies on immigrants’ rights, but also with the limits of current legal possibility. In August 2005, a Presidential decree struck down an amendment to the statute of the municipality of Genoa allowing electoral rights to TCNs as contrary to the current law (Bencini and Cerretelli 2005, 6). In an unlikely development, Gianfranco Fini, who was the principal architect of the notorious Fini-Bossi law tightening up Italian immigration law, appeared to put his political weight behind the proposition that TCNs should have the right to vote in local elections in Italy.36 He probably knew that this was a largely symbolic gesture as it was hardly likely to come to fruition under Berlusconi’s rightwing Government. Indeed, it did not. While the centre-left Government which was elected in 2006 was notably more positive towards enhancing the rights of resident TCNs, it fell from power before its proposed immigration law, which would have included local electoral rights for TCNs, could be adopted. A general election victory then saw Berlusconi return for a third term as Prime Minister. Local/national tensions on the matter of the rights of TCNs can therefore be expected to continue under this Government.37 Attempts at sub-national experimentation have also been blocked in Germany and Austria. These two countries share a number of common features which make the comparison of the approaches taken particularly interesting. First, both have denied, at least until recently, that they are ‘countries of immigration’. Second both share a broadly ethnic definition of national citizenship. Third, since they are both federal states, intrastate contestation of electoral rights has occurred in the rather formal arena of the national Constitutional Court. Finally, in both cases, when faced with the challenge of locally led experimentation, the Constitutional Court has linked the local electorate firmly to a nationally defined concept of the demos, thus ruling out sub-national attempts at reform. We will take each case in turn, beginning with Germany. Opinions have remained divided amongst commentators about the political significance of one of the causes célèbres of the constitutionally based distinction between Germans and aliens. These were the rulings handed down in 1990 by the German Federal Constitutional Court, annulling as unconstitutional two legislative 35  For more details see . 36  Povoledo, E., ‘Immigrants in Italy get unlikely aid on voting’, International Herald Tribune, 17 October 2003. 37  For details of further local initiatives on immigration in Italy see Campani (2007).

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schemes introduced at the level of the Land by the states of Hamburg and Schleswig-Holstein which would have given electoral rights in local municipalities to non-nationals who satisfied certain types of criteria regarding residence and attachment (Benhabib 2004; Rubio-Marín 2000; Joppke 1999a, 104-119; Neuman 1992; Béaud 1992).38 However, legally speaking, the significance is clear. The German Court relied upon a concept of popular sovereignty as the basis for political legitimacy, and linked this to a principle of a bounded Staatsvolk (or ‘state people’), limited by reference to the holding of national citizenship. It explicitly rejected the principle of affected interests as the basis for a claim to political equality and access to the franchise. The key section of the judgment reads: [the principle of popular sovereignty] in Article 20 (2) of the Basic Law does not mean that the decisions engaging state authority must be legitimated by those who are affected by them; rather state authority must be based on a people understood as a group of persons bound together as a unity.39

It also extended its conclusion about ‘state’ authority down to the level of local democracy, holding that municipalities, like the elected authorities at the state and federal level, wield state power. Not only did this rule out the Hamburg and SchleswigHolstein initiatives, but it also meant that the implementation of Article 19 EC Treaty subsequently required an amendment to Article 28 of the Basic Law. It confirms that any further steps towards political inclusion for non-nationals would likewise require constitutional amendments. While the possible question of enfranchising EU citizens to vote in Land or federal elections is not a live one in Germany at present, the question of enfranchising TCNs certainly is (Shaw 2007). In the shorter term, the Federal Constitutional Court pointed in the direction of the loosening of the rules on citizenship acquisition as the means of ensuring that in a more diverse Germany, with large numbers of persons not qualifying for German nationality under the historically restrictive conceptions which applied up to, and beyond, the date of reunification, pluralist political representation and voice is assured. This is what prompted Seyla Benhabib to understand the Court’s judgments as a ‘swan song to a vanishing ideology of nationhood’ (Benhabib 2004, 207), but equally as the trigger for a set of ‘democratic iterations’ involving other political and legal forces such as political parties, groups representing immigrants in Germany, and the legislative organs of the state which have resulted in changes to the rules on the acquisition of nationality which came into force in 2000. This perhaps understates the rather fraught nature of the domestic political debates about the amendments to the laws on citizenship and national citizenship acquisition, which resulted in a more limited compromise law being adopted. More recently still, 38 BVerfGE 63, 37 (Schleswig-Holstein); BVerfGE 63, 60 (Hamburg), 31 October 1990. In Schleswig-Holstein the rights would have been limited by a reciprocity clause. 39 BVerfGE 63, 37 at p. 50.

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in rules which came into force in 2005, Germany belatedly adopted something approximating to an ‘immigration law’ for the first time (Bast 2006, 3). Even that text has been highly contested, not least because of difficulties surrounding adoption. In sum, Germany’s ‘democratic iterations’ have been contested at every turn in relation to issues of citizenship and immigration. Against a policy and legislative background dominated by hostility to immigration and a strict definition of the conditions of access to nationality, it is hardly surprising that electoral rights for non-nationals, beyond the confines of EU law, have rarely been on the political agenda in Austria. According to an official of the Austrian Social Democratic Party (SPÖ) speaking in 2000: ‘Today there is simply not the political will to address the issue of voting rights at the national level’.40 Nominally, the SPÖ might be expected to be in favour of widening the suffrage, as is the case with many social democratic parties in the EU member states. Indeed, they admit that ‘Our theoretical goal is close to the Greens, but in practice in the world of politics it is necessary to make compromises’.41 As the same interviewee indicated, the fear of losing political capital has restricted debate: ‘Between 1989 and 1993, with over 120,000 immigrants in Vienna, no one within the SPÖ continued to talk about voting rights for third-country nationals’.42 Even so, the SPÖ in Vienna has been responsible for a more limited project to support the rights of TCNs, in the form of the so-called Integration Fund. This latter body developed a model for the city whereby immigrants could vote for a representative body which was then able to consult with the municipal council. The Steering Committee for the Fund was the Kuratorium, established by the City but since abolished as integration functions were mainstreamed into the City Council itself, as a specific responsibility of one unit within the city administration. It issued guidelines for the Integration Fund and determined its tasks and goals. It had 15 seats, of which three were reserved for migrants and NGOs. The Fund focused on a diversity approach, rather than on the management of minorities, and its principal work was in the areas of social work, youth programmes and language courses (Krahler and Sohler 2005, 21-27, 50-56; König and Perchinig 2003, 13). Matters changed somewhat in Vienna after the election of a new SPÖ Land and City Government in 2002, which formed an agreement with the Greens on a number of matters including a commitment to introduce electoral rights for TCNs (Perchinig 2005). This brought Renate Brauner, as the City Councillor responsible for integration matters, to centre stage. Brauner was an SPÖ member who had long campaigned on the issue of electoral rights, but who had previously been a more marginal figure until the coalition agreement with the Greens. An opinion poll 40  Interview with Robert Leingruber, International Secretary of the Austrian Social Democratic Party, Vienna, June 2000. 41  Franz Jerabek, Office of the Fund for Integration and assistant to SPÖ City Councilor and Member of the City Government, Renate Brauner, Vienna, June 2000. 42  For details of Austrian integration policy more generally see König and Perchinig (2003).

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amongst potential TCN voters conducted on behalf of Brauner and her colleagues indicated that 70 per cent of potential TCN voters said they would use the vote if granted it (Krahler and Sohler 2002, 52, referring to Jenny 2002). This suggested that the vote in municipal elections for TCNs could effectively be seen as part of a larger integration strategy, binding the non-nationals closer to the Austrian state and public authorities. Amendments were accordingly introduced to the relevant Viennese electoral laws to allow for voting by TCNs with five or more years of residence in the Bezirksvertretungen. These community councils are the level at which EU citizens also participate in municipal governance within Vienna, since the Viennese city council doubles as a Land parliament and thus is excluded from the scope of the Article 19 voting rights.43 Such councils below the level of the city do not exist elsewhere in Austria, and indeed they are not mentioned at any point in the Austrian Constitution. This raised the question of whether it was possible to permit TCNs to vote in these elections under Austrian constitutional law, since it is clear from the Constitution that voting for Gemeinderäte (the normal level of municipal councils) is reserved for Austrian citizens, with an exception being made for EU citizens pursuant to an amendment to implement the Treaty of Maastricht (Article 117).44 It is universally agreed, moreover, that voting in national and Land level elections is also reserved for citizens. In seeking to exploit this constitutional ‘space’ which it felt it had identified, the Viennese City Government found support for its approach from senior constitutional lawyers in Austria, including Professor Heinz Mayer of the University of Vienna (Mayer 2002). He argued that as the Viennese Bezirksvertretungen are regulated by law at the level of the Land rather than the federal state, and since they exercise no legislative competences, they should not be regarded as general representative bodies. As such they would not be subject to the constitutional principle of the ‘homogeneity of the franchise’, which restricts the right to vote in all elections to Austrian citizens. After the law was adopted in December 2002, it was subjected to a constitutional challenge before the Austrian Federal Constitutional Court by a number of members of the Christian Democratic (ÖVP) and Freedom (FPÖ) parties, who were sitting in opposition in the Viennese legislative body. The FPÖ, in particular, mounted a political campaign against the amendment, arguing that ‘a registration form (i.e. proof of residence) is too little’ for the right to vote, which should be reserved only for citizens.45 Its campaign included the use of posters displayed prominently in Vienna, emphasising that to be a true ‘Wiener’

43  Judgment of the Austrian Constitutional Court of 12 December 1997, B3113/96, B3760/96. 44  For brief notes on the application of Article 19 in Austria, see the regular national country reports for the EU Network of Experts on Fundamental Rights (CFR-CDR), most recently Nowak et al. (2005, 113). 45  See the brief report at . Photographic evidence also held on file by the author.

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or ‘Wienerin’, regardless of colour or ethnic background, an immigrant had to become an Austrian citizen. In the event, the Constitutional Court adopted a narrow interpretation of the constitutional possibilities under Austrian law, cutting off what had been put forward by proponents as a promising experiment to see whether TCN voting could contribute to the integration process in Austria (Nowak and Lubich 2005, 80). As a matter of constitutional text and interpretation,46 the Court had no difficulty in first confirming that the electorate for national elections to the lower house of parliament (the National Council or Nationalrat), for regional elections to the legislatures of the Länder [Landtag], and for local elections to the municipal councils [Gemeinderat] is restricted in principle to Austrian citizens alone, subject to the requirements of Article 19 EC Treaty which are referred to in Article 117 of the Constitution. However, this is not really an exception built into the Constitution as such, but rather a recognition of Austria’s internal national perspective on EC law, which is to recognise its supremacy vis-à-vis Austrian law, even the Austrian Constitution. It emphasised the principle of the ‘homogeneity of the franchise’ in this context, whereby each level of government should be voted for by an identically defined electorate. Drawing upon what might be described as the ethos of 19th century nationalism (Perchinig 2005, 10), the Court decreed that the rules on the franchise for the national, provincial and municipal levels of government are merely a specific example of the general principle stated in Article 1 of the Constitution whereby ‘Austria is a democratic Republic. Its law stems from the people’. This ‘people’ is the Austrian people, defined by citizenship.47 Recognising that Vienna’s Bezirksvertretungen are not regulated by the Constitution but by state law, the Court none the less found that they are general representative bodies, in the sense that they are established by law to deal with matters in the public interest, not in the interests of particular groups or professions, and fulfil a function as representative organs of a defined territorial entity. Consequently, the principle of the homogeneity of the franchise must apply to them, even though in reality the ‘people’ or Volk which can vote for the Bezirksvertretungen, like the Gemeinderäte in the rest of the country, is constituted by Austrian citizens plus resident EU citizens from other member states. Thus the Court gave no intrinsic weight to the re-definition of the ‘people’ in terms of the impact of EU law, other than to recognise the qualification mandated by Article 19 EC Treaty. It stated that the exception to Article 1 brought about in order to give effect to Austria’s membership of the EU, whereby the law stems not only from ‘the people’, but also from the ‘organs of the (European) Community’, was ‘irrelevant’ in this context.48 Consequently, the Court annulled as unconstitutional the amendments to the Viennese law on municipal elections which would

46  VfGH 30 June 2004, G218/03. 47  VfGH 30 June 2004, at p. 47. 48  VfGH 30 June 2004 at p. 48.

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have allowed TCNs with five years settled residence to vote in elections to the Bezirksvertretungen. What was notable about the judgment was both the choice to include the Bezirksvertretungen within the principle of the homogeneity of the franchise and the paucity of references to EU law generally (Nowak and Lubich 2005, 80). It simply dismisses the relevance of EU law to deciding the issue in relation to other groups of ‘non-people’. Perchinig (2005, 10) deplores the failure to refer to the development of concepts of citizenship in the EU context, including the notion that the rights and status of TCNs resident in the member states should be approximated as closely as possible to those of EU citizens resident in another Member State. In any event, the Court’s narrow conclusion on the reach of a nationality-defined concept of the ‘people’ as sovereign means that the Bezirksvertretungen elections cannot become a laboratory within which the city authorities in Vienna could experiment with different participatory mechanisms to promote the integration of non-nationals, in addition to naturalised citizens who are already included in the franchise. Indeed, naturalisation is the only route to political inclusion in Austria for TCNs, and unlike the German Constitutional Court, the Austrian Court made no reference to the political possibility of loosening of naturalisation requirements as an alternative. On the contrary, the conditions of citizenship acquisition in Austria have tended to become tougher in recent years (Çinar and Waldrauch 2006). Conclusions and A ssessment It will be evident from the discussion in this chapter that sub-national territorial units with autonomous or semi-autonomous powers and institutions of Government, such as Scotland, the German or Austrian Länder, not to mention municipal authorities in any of the member states, may seek to push the boundaries of the suffrage wider than they stand at national level for a variety of principled and instrumental reasons. In some cases, it may be because the party or parties controlling the relevant territorial unit differ sharply in ideology and approach to the national Government, and those parties are seeking to use the opportunity of legal reform at the local or regional level in order either to emphasise their local ‘difference’ or to try to push for reform at the national level by showing an example of good practice. A form of inter-governmental intra-state competition can consequently emerge, and in that context it may well be decisive how exactly powers are divided according to the relevant constitutional settlement regarding local selfgovernment or devolution, and which organ of the state has the decisive power to determine who decides. Competition between different levels of government has already been a characteristic feature of struggles over electoral rights for nonnationals in several states. It is equally clear that central resistance to subnational variation is strong, and that arguments rooted in the division of powers within a constitutionally guaranteed system are frequently brought forward to justify that resistance and have been – in the case of Germany and Austria – allied to

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constitutionally defined notions of the demos. Thus, while many examples of experimental strategies can be seen in the EU member states, none have in practice resulted in the type of sub-national variation readily seen – and constitutionally mandated – in the Swiss Confederation. On the other hand, at the level of the EU and the member states, variation is very evident, as the 27 member states have pursued very different pathways to accommodating TCNs and non-nationals within the political process. In terms of the different strategies followed by sub-national units of government seeking to contest restrictive definitions of the franchise at the national level, two distinct themes can be seen. Some sub-national regions may be consciously creating a space for migration within the polity, either by competing for greater numbers or specific types of migrants. This may or not be associated with reinforcing a distinctive territorial identity, particularly one which is articulated through an active diaspora engagement programme (for example Scotland). Alternatively, such a policy may be limited to articulating a specific conception of how migrants ‘fit’ within the sub-national territorial unit. This also offers a route to understanding the approach of a number of cities and municipalities referred to in this chapter, all of which have tried to implement a broader and more inclusive notion of the demos through the medium of local electoral rights attaching to residence rather than nationality. The second theme concerns the question of ‘best practice’ and the role of intrastate or intergovernmental competition within the state. In this context, the city or the region may lay claim to acting as a laboratory for integration, or it may be seeking specifically to influence the development of policy at the national level. However, we have seen how often such attempts may fall foul of notions of a common ‘national’ citizenship which has restricted all attempts in EU member states hitherto to develop local electoral rights for TCNs through local or regional level action. While it was never the objective of this chapter to make the case for regional differentiation in electoral rights for non-nationals, or to argue for a broader or narrower conception of the franchise more generally, some concluding comments on the normative framework within which sub-national variation could occur seem appropriate, by way of a final assessment. Reference was made at the outset to Brandeis’ notion of experimentation within federal frameworks, and indeed that spirit of experimentation could be said to be alive and well in the context of the patchwork of electoral rights for third-country nationals which exist under national law across the EU member states, especially when viewed against the backdrop of the EU’s expanding corpus of soft law measures seeking to encourage member states to adopt the more inclusive norm. But variation within polities, whether within the EU, the member states, or the third countries such as Switzerland, always comes at the price of uniformity, and can endanger other principles such as freedom of movement within the polity or the notion of a common citizenship bond. It might, thus, demand a rethinking of the normative basis for citizenship, other than on a traditional national basis. As to the issue of free movement, this

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was one reason given for pushing to have a single EU rule on electoral rights for EU citizens after the Treaty of Maastricht (Shaw 2007). As to the question of citizenship as a common bond, speaking in the US context about the increasingly sharp debate on immigration federalism, Su reminds us that: Federalism issues can often be construed as disputes over membership rules. As a result, resolution of these cases often depends on the extent to which national citizenship and the constitutional core of our ‘Union’ trumps the right of states to exist and operate as distinct political (if not social or cultural) communities of interest…Under a system of governance based on ‘we the people,’ it is difficult to imagine the existence of states as states apart from the membership that constitutes its communal and political existence (Su 2008, 20).

Such principles have undoubtedly contributed strongly to a situation in which there is a great deal more debate about subnational variation of electoral rights within certain polities than there has been – at least hitherto – formal legislative or constitutional action.

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Chapter 3

Passing Citizenship Tests as a Requirement for Naturalisation: A Comparative Perspective Gerard-René de Groot, Jan-Jaap Kuipers and Franziska Weber

When speaking about the integration of foreigners the emphasis is normally put on facilitating the integration of newcomers in the receiving country, on the integration process and integration policy. Attention also has to be given to socalled ‘integration requirements’, which in several countries have to be fulfilled by applicants for naturalisation, i.e. for the grant of the nationality of the receiving country and which in turn gives access to full citizenship rights. Many countries require that the applicant for naturalisation has to be integrated in order to qualify. This is the case in the Netherlands for example, where Article 8 of the Nationality Act stipulates that the applicant has to be ‘ingeburgerd’, which can be translated as ‘integrated’. Several other countries have a similar requirement, such as France and the UK. In the past Belgium also had this requirement, but it was abolished as a condition for naturalisation in March 2000. In 1984 a discussion took place in the Netherlands on how to interpret this condition of integration on the occasion of the preparation of a new Nationality Act. It was stressed several times and by several authors that this condition should not be misunderstood as ‘assimilation’ (De Groot 2003a, 271-76). This point was and still is important because some countries require a certain degree of assimilation for naturalisation. In France, for instance, an application for naturalisation can be rejected owing to a lack of assimilation. It is striking that an increase in requirements as to  A shorter version of this chapter has been published in de Groot (2006b).  The term ‘ingeburgerd’ is remarkable, because it includes the word ‘burger’, which means ‘citizen’. The word seems to suggest that the person involved already became a burger (citizen) (compare the German term ‘Einbürgerung’. However within the scope of Article 8 of the Nationality Act, ‘ingeburgerd’ has to be translated as ‘integrated’.   See Articles 21 (4), 21 (24) and 21 (25) of the code civil.   See Schedule 1 of the British Nationality Act of 1981, which entered into force on 1 January 1983.   See Articles 15 (2), 16 (2), 21 (2) of the (old) Belgian Nationality Act: ‘volonté d’intégration’.   Article 21-24 of the Code civil: ‘Nul ne peut être naturalisé s’il ne justifie de son assimilation à la communauté française, notamment par une connaissance suffisante, selon

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knowledge of the history and culture and loyalty to state’s values can be observed. Several countries (e.g. the ones we will elaborate upon) have recently introduced citizenship tests. What is the difference between integration and assimilation? Integration requires participation in the society. Isolation is not permitted. But being a part of a cultural minority is permitted. It is the process whereby migrants acquire full rights and can fully participate in a society without being forced to assimilate into the mainstream culture. On the other hand, assimilation requires sharing the values of the mainstream culture of a certain society. Of course, it is necessary to take into account that one has to study in detail whether an integration requirement in a certain state really only requests integration or secretly includes elements of assimilation. Finally, it depends completely on the kinds of questions posed during the assessment and the method of evaluating whether assimilation rather than integration is being actually required. We will come to an example of a borderline case when discussing recent developments in Germany. There are countries outside Europe in process of reviewing the conditions for acquiring their nationality by naturalisation. Without going into further detail a tendency of the citizenship test was introduced in October 2008 in the USA (Arnoldy 2006). Instead of focusing on historical facts as the previous one did its questions do now centre on ‘American ideals’. Emphasis is put on the meaning of democracy and its principles. Does this reflect a trend towards acculturation and assimilation, as some have argued (Etzioni 2007, 353)? A reason for this is said to be the rising anxiety among Americans regarding high levels of immigration and Europe’s troubles with large, unassimilated communities. It is our opinion that the basic question one has to ask is thus whether one wants to accept a pluralistic inclusion model leading to a multicultural society or not. T he A ssessment of Integration as a R equirement for N aturalisation In those countries where integration is a requirement for naturalisation an important issue is how to assess whether an applicant for naturalisation is ‘integrated’. In this

sa condition, de la langue française et des droits et devoirs conférés par la nationalité française’ (text as modified by Act No. 2003-1119 of 26 November 2003). Translated on Legifrance as ‘Nobody may be naturalised unless he proves his assimilation into the French community, and especially owing to a sufficient knowledge of the French language, according to his condition and of the rights and duties conferred by French nationality’ (refer to Carrera, Chapter 17 of this book).  The current set of questions of the test can be accessed at: accessed 14 June 2008.   US immigration support, , accessed 14 June 2008.

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regard, we focus on four main countries: Austria, Germany, the Netherlands and the UK. Austria According to § 10a of the Austrian Nationality Act [Staatsbürgerschaftsgesetz (StbG)] it is a precondition for the acquisition of Austrian nationality that the applicant for naturalisation demonstrates knowledge of the German language and a basic knowledge of the democratic legal order and the history of Austria and the respective federal state. To file an application for naturalisation is furthermore only possible if the candidate has been lawfully and continuously living in Austria for the last 10 years and has had a residence permit for at least five years. The precise conditions and the method of testing the knowledge of the applicant for naturalisation are laid down in a regulation.10 The 2005 reform of the StbG introduced a citizenship test [Staatsbürgerschaftsprüfung]. The test consists of three parts with six multiplechoice questions – i.e. 18 questions in total. Every multiple-choice question provides for at least three alternatives. The applicant is given two hours time to answer all the questions.11 The different federal states are empowered to organise the test according to § 10a (5) StbG. The test comprises three parts: in terms of content, the first part deals with ‘basic knowledge about the democratic order of the Austrian Republic’. It entails questions about the constitutional order of the Austrian Republic, government institutions and political system, fundamental rights, legal remedies and political participation, in particular the right to vote. The second part deals with basic knowledge in Austria’s history. It relates to the main lines of Austrian history since 996: for instance, emergence and conditions of dictatorships, totalitarian regimes, development and crises of Austria’s democracy, civil wars, the Nazi Time, the second Republic and European integration.12 While the first two parts are organised at a central level, and therefore, are uniform throughout the entire

  See §§ 10, 10a StbG; the‘Staatsbürgerschaftsgesetz’ is available at , accessed 12 June 2008. For a discussion about changes in the Act in the beginning of 2007, that are not relevant for the provisions discussed in this chapter see , accessed 14 June 2008. 10  See Bundesgesetzblatt für die Republik Österreich, Regulation 138: ‘Staatsbürgerschaftsprüfungs-Verordnung’ – StbP-V, Teil II, released 3 April 2006. Available at: , accessed 12 June 2008. 11  Cf. paragraphs. 3 and 4 of regulation 138. 12 The legal basis for the 1st and the 2nd part of the test is to be found in §10 (a) (6) StbG. Details as regards the content are laid down in Annex A of regulation 138.

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country, the third part of the test varies in that it concerns basic knowledge about the region in which the applicants lives.13 An applicant for naturalisation passes the test if he answers at least half of the questions in each individual part correctly or at least two-thirds of the entire test.14 If the applicant fails, he may take the test again.15 As regards the preparation for the test, the Austrian Government envisaged the following procedure. The study material concerning the first two parts of the test is offered by the Austrian Government in a special brochure [Lernunterlage]. The brochure consists of 53 pages and can be downloaded from the internet free of charge.16 With regard to the third part of test, each region has published materials that the applicant for naturalisation is required to study, equally available on the internet.17 In the brochures the applicant will find 1-2 pages of information about a topic, followed by possible exam questions. The exam questions are selected among them. It is on purpose the applicant is not provided with the answer options. While the information given is quite detailed, it is acknowledged that only basic knowledge is required.18 We shall see whether this is true when examining the nature of the questions. As regards the first two parts of the test, the regulation provides some its features: on the one hand it is focused on Austria (the Second Republic, its political system, external policy and possibilities of political involvement); on the other, it covers an overview of European integration. Most important aspects in that regard are Austria’s EU membership and fundamental values of a European democratic state and society. As regards the content of the first two parts, several remarks can be made. Apart from general questions on Austria’s political systems and history, current political events are also included such as ‘What is the name of the current Chancellor?’ The latter is considered to be a useful guidance to provide some information about the

13 The legal basis is to be found in § 10 (a) (7) StbG. Each federal state passes a regulation that lays down the precise contents of this sub-part. 14  Cf. § 5 (2) of regulation 138. 15  Cf. § 6 of regulation 138. 16  See ‘Überblick über die demokratische Ordnung und Geschichte Österreichs’, Skriptum zur Vorbereitung für die Prüfung gemäß § 10a StGB 1985, last updated July 2007, available at: , accessed 12 June 2008. 17  Most of brochures for the different regions can be downloaded at: , accessed 14 June 2008. The brochure of Styria can be found at: , accessed 16 June 2008 and for the brochure of Vienna, available at: , accessed 16 June 2008. 18  See regulation 138; furthermore the content of the test ‘hat sich inhaltlich und methodisch-didaktisch am Lehrplan der 4. Klasse Hauptschule für den Unterrichtsgegensta nd‚Geschichte und Sozialkunde’ zu orientieren’.

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election system in Austria. Another example is the way in which a sample ballot is printed in the brochure.19 A rather useless section of the test seems to be the one that informs the applicant about the different requirements for naturalisation.20 At the stage when the applicant undertakes the test, s/he presumably already fulfils all the preconditions. Very detailed information is provided concerning the protection of fundamental rights.21 There is a reference to the European Convention on Human Rights (ECHR), with an explanation to its ranking in national law. Other international treaties guaranteeing the protection of fundamental rights are also mentioned. Among the possible questions that can be addressed in this section the following can be highlighted: ‘When was the ECHR given constitutional value in Austria?’ or ‘Who is bound by the prohibition of discrimination?’. The term ‘supremacy’ of EC law is also introduced and the status of the Charter of Fundamental Rights in EU law is additionally illustrated. Apart from easy questions regarding EU member states, a more difficult task is to ‘Name one of the four fundamental freedoms of the European Union’! Such a strong focus on the EU can be welcomed in the light of ongoing European integration processes. The information given is however very detailed. The level of the questions chosen is however comparably low. In this section it becomes particularly clear that ‘new Austrians’ might be ‘the betterinformed Austrians’ after passing this test, as many ordinary citizens might face difficulties at times of being informed about EU law-related matters. Studies have revealed that one third of Austrians would have problems in passing the test.22 A last aspect that deserves to be mentioned is a detailed section of the test regarding the role of women in the society.23 Topics such as forced marriages or honour killings are addressed. It is stressed that traditions and customs cannot provide a justification for these crimes. This section hints at cultural differences that can create problems. As we will see when studying Germany, this is a comparably light form of addressing these cultural tensions. In the light of the above, it can be said that while the information that is provided to the applicants is quite detailed, the questions generally demand only a basic level of knowledge. The degree of difficulty however also depends on other alternative answers that are given. The possible answers are not officially published. It is however remarkable that a candidate with some IT skills could easily retrieve them from the internet.24 19  See ‘Überblick über die demokratische Ordnung und Geschichte Österreichs’, p. 10. 20  Ibid., p. 12. 21  Ibid., pp. 28-36. 22  See ‘Schock-Ergebnis: 1/3 der Österreicher hätten Probleme den Einbürgerungstests zu bestehen!’, news. Available from , accessed 14 June 2008. 23  See ‘Überblick über die demokratische Ordnung und Geschichte Österreichs’, p. 34. 24  See for example , accessed 13 December 2008.

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As regards the third part of the test, the level of difficulty and quality vary across the federal states. The required fee is set by the individual states and thus varies too.25 Generally any applicant will equally need to memorise facts laid down in the different study guides. In Carinthia, Salzburg, Vienna, Upper Austria and Styria all the possible answers are provided in the preparatory materials in addition to the set of questions. Main topics include, for instance, the history of the federal state and the political system. In Vienna the sights of the region also play an important role. Questions about ‘useless facts’ are also included, such as ‘Which was the first subway in Austria?’. In other cases interesting features of Vienna are stressed, such as the different international organisations that have their seat there. The test for Burgenland also provides questions related to outstanding personalities (Franz Liszt, Joseph Haydn, etc). Carinthia refers to delicacies of the region. Other rather astonishing questions are: ‘Where does archduchess Maria Theresia live during the summer?’,26 ‘How is Vienna supplied with water?’,27 or ‘Where in Graz is the baby drop box?’.28 Lower Austria presents a whole section about transport.29 Sample questions are ‘With which train would you go from St. Pölten to Vienna?’, ‘Which train would you have to take to go from Vienna to Viennese Neustadt?, ‘Which motorway connects the West Motorway (A1) with the South Motorway (A2)?’ or ‘How are the busses called that go from the eastern and northern districts to St. Pölten?’ And last but not least: ‘From which neighbouring country have the people from Vorarlberg copied the famous card-game “Janssen”’?.30 Looking at the answer options provided in the federal states one has to admit that they are quite fair.31 When examining the different brochures used by the federal states one can conclude that there will not be hardly any unexpected questions. In those where all the possible answers are publicly available, there is – if one has studied carefully – hardly any risk of failing the test. The required level of German proficiency is tested separately from the knowledge of Austrian society. The language test can be taken at any institution that meets certain quality standards and has been approved by the Austrian Government.32 25  Information obtained from the Bundesministerium für Inneres, 16 June 2008. 26  Cf. Lernunterlage provided by Vienna, p. 15. 27  Cf. Lernunterlage provided by Vienna, p. 19. 28  See Brochure of Styria: , accessed 16 June 2008. 29  Cf. Lernunterlage provided by Lower Austria, p. 20. 30  Cf. Question 41 in Vorarlberg’s Lernunterlage. 31  For an example we would like to refer you to Salzburg’s catalogue of questions: e.g. No. 18: ‘How many inhabitants does the federal state Salzburg have?’ a) ca. 100,000, b) ca. 525,000 or c) ca. 800,000; No. 1: Which people reigned in Salzburg 2000 years ago for about 500 years? a) the Romans b) the Spanish or c) the French? 32  See Bundesgesetzblatt für die Republik Österreich, Jahrgang 2005, regulation 449, Intergrationsvereinbarung – Verordnung IV-V, released 27 December 2005, Par. 1’, available at: , accessed 14 June 2008.

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The applicant for naturalisation should have a level of German corresponding to at least ‘A2’ of the Common European Framework of Reference (CEFR). This means that the applicant for naturalisation has the ability to ‘understand phrases and the highest frequency vocabulary related to areas of most immediate personal relevance, can read very short, simple texts, can communicate in simple and routine tasks and can write short, simple notes and messages relating to matters in areas of immediate need’.33 Native speakers or those who fulfilled module 2 of the integration agreement [Integrationsvereinbarung], a tool in Austria’s general immigration policy,34 are exempt from the language test. This agreement was introduced in the beginning of 2003 and makes languages courses for immigrants obligatory unless they declare that within a twenty-four months period their residence will not exceed twelve months.35 The non-fulfilment of the integration agreement can have severe consequences.36 Germany Naturalisation in Germany is subject to certain conditions that are laid down in the German Nationality Act [Staatsangehörigkeitsgesetz (StAG)] in § 10-12b. One of the requirements is that the applicant needs to prove her/his loyalty to the liberal and democratic order and the knowledge about the legal and social order (e.g. the living conditions in Germany). A new test will was introduced on 1 September 2008 dealing with the latter requirement.37

33  For more information about the CEFR for Languages, see , accessed 14 June 2008. 34  § 14 (5) 2-5 and 7 of the Settlement and Residence Act (‘Niederlassungs und Aufenthaltsgesetz’ – hereinafter NAG). This applies also if the candidate according to the NAG does not have to undertake the test. According § 14 (2) (2) and § 16 (2) the module 2 aims at achieving the required level of A2. 35  § 14-17 of the NAG. 36  See ‘Comparative study of the laws in the 27 EU member states for legal immigration – Including an assessment of the conditions and formalities imposed by each member state for newcomers’, DG Internal Policies of the Union, February 2008, PE 393-281, p. 140; The consequences for the lack of fulfilment of this obligation can be administrative punishment (§ 77(1) NAG), financial disadvantages (§ 15 NAG) or, as a means of last resort, expulsion (§ 54 (4) of the Alien Policy Act). 37 Details as regards the test and preparatory courses can be found in the ‘Einbürgerungsverordnung’, Bundesgesetzblatt Jahrgang 2008 Teil I Nr. 35, released 8 August 2008, which is available at: , accessed 25 September 2008.

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The Federal Ministry of Interior published the list of possible exam questions on 7 July 2008.38 33 questions of the exam will be chosen out of total range of 310 questions. The list consists of 300 general questions and 10 that vary from one federal state to another in what concerns the answer options. Each test presents 30 questions of the first category and three of the second one, and it takes a multiplechoice format. For each question four answers are provided. 17 questions have to be answered correctly within 60 minutes in order to pass the test. The questions and the answers can be downloaded free of charge from the internet.39 Furthermore there is a test exam available online.40 One can even find a document containing the questions downloadable in the form of file cards where the correct answers are provided at the end.41 During the preparation of this list more than 1,000 possible questions were developed and tested.42 The questions and optional preparatory courses focus on ‘life in a democracy’, which deals with aspects related to democracy, fundamental rights, conflict resolution in democratic societies, rule of law, welfare state, responsibility of the single for the common welfare, participation in political matters, equality of men and women and national symbols. These topics find their basis in the curriculum used in the current integration courses offered to immigrants.43 The questions have been criticized for being too difficult and it has been alleged that some of techniques being used are often misleading.44 However a majority of the first candidates that undertook the test were confident that they had successfully passed it.45 A pioneer of this approach has been the policy implemented in BadenWürttemberg. Since 1 January 2006 a so-called Gesinnungstest [Loyalty test] has been in use at times of assessing the applicants’ loyalty to the Constitution 38  , accessed 25 September 2008. 39  , accessed 25 September 2008. 40  , accessed 25 September 2008. 41  See the webpage by ‘Landeszentrale für politische Bildung Baden-Württemberg’ (LpB): , accessed 25 September 2008. 42  See ‘Deutschlandkunde –Test für Einwanderer’, FAZ, 11 June 2008; the ’Institut zur Qualitätsabwicklung im Bildungswesen (IQB)’ is to present the final catalogue soon. 43 BAMF: Das Integrationsportal: , accessed 14 June 2008. 44  See ‘Das Kreuz mit den Fragen’, Focus, 1 September 2008: and ’SPD beklagt eklatante Mängel’, Focus, 1 September 2008: , accessed 25 September 2008. 45  See about a test in Ludwigshafen, Rheinland-Pfalz: , accessed 25 September 2008.

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according to § 10 (1) No. 1 StAG. The test is conducted in the form of a personal interview during which a civil servant makes notes on a separate sheet about the reliability of the answers. Questions about history or politics are completely lacking. Only the candidates’ attitude is assessed. The introduction of this test has led to a large public debate. A contested matter was the original intention to apply the test only to those applicants for naturalisation coming from 57, mainly Islamic, countries.46 The test has been therefore often referred to as the ‘Muslim tests’ (see Corbette 2006). At the end this announcement was revoked.47 It was publicly declared that the test was going to apply to all immigration applicants on the same basis. More generally, there were also criticisms during the starting phase of the implementation of test concerning its constitutionality. These doubts even led for instance to the city of Heidelberg not to apply the test.48 In light of the criticisms and concerns expressed, the interview guide was amended in July 2007.49 10 questions of the old text were changed by new questions concerning, as a way of illustration, the support of anti-constitutional or extremist organisations. The questions that were deleted covered, for example, homosexuality or questions addressing the way in which the applicant would react if her/his son/daughter would come home saying that s/he had been insulted. Examples of questions that were kept included: ‘Is it right that women obey their husbands, and for men to beat their wives when they are disobedient?’; ‘Would you have problems to accept a woman as a person of authority?’; ‘Which jobs should be reserved for men?’; ‘What is your view on honour killings and forced marriages?’. Looking at the selection of questions that remained after the 2007 amendment it is rather obvious that they still cover exactly the kind of topics and stereotypes related to specific cultural and religious issues that have traditionally caused numerous tensions between Germans and the large Muslim immigrant population 46  Innenministerium Baden-Württemberg, ‚Oettinger und Rech halten an Gesprächsleitfaden für Einbürgerungsbehörden fest’, 10 January 2006, , accessed 14 June 2008. 47  Cf. Schreiben des Innenministeriums of 17 January 2006, Az.: 5-1012.4/12. 48  Stadt Heidelberg, ’Stadt Heidelberg wird Gesprächsleitfaden des Innenministeriums zur Einbürgerung nicht anwenden’, 19 January 2006, , accessed 14 June 2008. As regards the old version of the interview guide, several advisory opinions have been published concerning its constitutionality: Cf. (Wolfrum and Röben 2006); (Grössner 2006); Remark: Grössner does not take the latest statement of the Ministry of Interior of Baden-Württemberg into consideration according to which the test is addressed at everybody and not just Muslims. It is furthermore interesting to see (Grell 2006). Grell is the former COE of the Ministry of the Interior in Baden-Württemberg. He defends his policy in a very populist manner. 49  Innenministerium Baden-Württemberg: ‘Überarbeiteter Gesprächsleitfaden für die Einbürgerungsbehörden’, 18 July 2007: , accessed 14 June 2008.

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in the country. Therefore even though the test officially applies to everyone, it becomes clear that Muslims remain the target group. Doubts have been expressed as to whether the test is in line with the German Constitution and whether it does not go beyond the provisions stipulated in § 10 StAG. If that would be indeed the case, those rejections of applications for naturalisation on the basis of the answers given to the test would be void. Also the Ministry of the Interior in BadenWürttemberg even confirmed that no one could predict what at court judgement would like at times of assessing the original version of the test.50 Still, the current version of the test still raises many doubts as regards its compatibility with the principle of equality, the freedom of religion and freedom of expression. The very goal of aiming to find out in a personal interview someone’s ‘Gesinnung’ can be questioned. Questions such as the one asking the applicant whether s/he is a terrorist are rather inappropriate. In any case, no terrorist will indeed admit that s/he is indeed a terrorist. They will be in particular the ones that would perhaps hide in a very clever manner their true intentions.51 The deterrent effect of this sort of practice is clear. Contrary to the general trend in Germany, only in Baden-Württemberg did the number of naturalisations decrease between 2005 and 2006 (Thränhardt 2008, 25). For the first time the Federal State has the lowest rate among the older federal states in the country.52 Statistics dating from January 2006 until July 2006 show that interviews have been conducted in 20 per cent of the cases (1,048 cases). Only in rare occasions the interview led to a denial of the naturalisation. Hesse followed with another proposal for introducing a test in March 2006. This time however the test was intended to deal only with ‘knowledge and values’. First the Minister of the Interior, Volker Bouffier, announced that Hesse would follow the example of Baden-Württemberg. Later on he corrected himself and said that the test would apply to every applicant, leaving aside controversial questions (Haushalt 2006). A collection of 100 questions was published in this context. Some of the questions are also clearly targeted at Muslim applicants and the ways in which they are formulated are similar to those of the test in Baden-Württemberg. In particular, under title III of the test we find the following question: ‘Shall a woman be permitted to be alone in public or to go on holiday on her own – what is your opinion about that?’; ‘Who can apply for divorce?’; ‘How can you react if

50  Cited in Prantl (2006), ‘Alle Muslime sind verdächtig’, SZ, 9 January 2006 , as of 14 June 2008. 51  Cf. ‘Loyalty Test in Law and Political Culture’ – Muslim Lawyer Net: , as of 14 June 2008. 52 Remark: the new states have lower rates because the duration of residence of their immigrants is frequently shorter. The former states of the German Democratic Republic (GDR) are Mecklenburg, Brandenburg, Saxony-Anhalt, Thuringia and Saxony.

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someone hurts your feelings as to your religion?’;53 ‘How can you influence your children’s choice of the partner?’ and ‘How can you educate your children?’. Apart from these questions, the test also deals with knowledge about Germany’s history. Another section of test covers some key facts in relation to the EU. This proposal was subject to discussions centred on the high level of general knowledge that was required (Artz and Geyer 2006, 1108). As an example of that we can highlight the following question: ‘Which landscape in Rügen has Caspar David Friedrich painted in one of his most famous paintings?’. Several ordinary school classes have tried to answer the questions provided by the test and the results were as surprising as those obtained in Austria. A lot of Germans would have to be denaturalised if this was the required standard of knowledge.54 This proposal has never entered into force because the discussion had already reached the central level. In particular, the test practiced in Baden-Württemberg is driven by a strong focus on assimilation. This approach contradicts the official goal purported by the German immigration policy – i.e. integration.55 Also it contradicts the liberal and democratic principles that are strongly upheld in Germany (Ekardt and Radtke 2007, 30). Therefore, at times of debating about the countrywide test it was said that after the initial mistakes shown in the cases of the tests in Baden-Württemberg and Hesse it was clear how the tests should not look like (John 2006, 302). Further, it was revealed in the news that questions about the applicants’ attitude or sexual orientation, for example as regards homosexuality, are not asked in the countrywide test.56 The questions here are rather focused on testing ‘knowledge’, arguably on a very high level, and cultural differences are only reflected in some optional answers.57 The general normative framework is developed on the central state level in order to guarantee a uniform procedure and to prevent people from moving to a different federal state in the hope of finding less strict conditions.58 BadenWürttemberg recently announced that it will introduce the test but also keep its

53 The last question could be found in the old version in Baden-Württemberg in the same wording. 54  See Lehrer-online‚ Einbürgerungstests in Deutschland’, 9 May 2006 , as of 14 June 2008. 55  Cf. Ch. 3 Immigration Act: Title Integration. 56  ‘Deutschlandkunde – Test für Einwanderer’, FAZ, 11 June 2008. 57 An example would be question No. 250 ‘What are the rights of parents in Germany?’. An optional answer is the following: ‘They may marry their children’ [Eltern verheiraten ihre Kinder]. 58  BMI‚ ‘Vorläufige Anwendungshinweise des Bundesministeriums des Innern vom 19 October 2007 zum Staatsangehörigkeitsgesetz in der Fassung des Gesetzes zur Umsetzung aufenthalts - und asylrechtlicher Richtlinien der Europäischen Union vom 19 August 2007 (BGBl. I S. 1970)’, p. 36.

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own procedure for the assessment of a candidate’s loyalty.59 The general way to demonstrate a positive attitude to the Constitution is by signing a declaration of loyalty.60 However in cases of doubt interviews can be additionally conducted. The Government does currently not give any guidance in this regard. Even if the knowledge test is being standardised in the whole country, in order to prevent federal states from creating higher barriers by adopting stricter guidelines concerning loyalty tests, general guidelines for interviews in ‘cases of doubt’ should be also adopted on a central level. It is however doubtful the extent to which it would be at all possible to provide harmonised guidelines that would be lacking any glimpse of discrimination in these cases. The fee that applies to undertake the test amounts to €25.61 According to § 38 StAG the general fee for naturalisation is €255. The candidate can take the test as often as s/he wishes. The applicant can prepare for the test in the context of a course or individually.62 The course amounts to 60 units (45 minutes each). It is the competence of the federal states to organise these courses. It is mandatory for every federal state to make them available. In Berlin, for example, the course is offered by the Volkshochschule (VHS).63 The trial course costs €30, however the fee will increase to €100. There was a delay in the publication of the questions, something which led to difficulties in the timely preparation of the courses.64 Even though some of the questions have been criticised, the first experiences in the application of the test have been generally positive.65 Germany seems to have learnt its lessons from the developments in Baden-Württemberg and Hesse. The envisaged course will be similar to the integration courses that have been offered during the last several years to immigrants applying for a residence permit in Germany: they consist of a language and a civic course. For newcomers coming 59  Cf. Contact via email with the Ministry of the Interior, Baden-Württemberg, 21 March 2008. 60  Sitzung der Ständigen Konferenz der Innenminister und – senatoren der Länder: ‘Beschlussniederschrift 180. Sitzung der Ständigen Konferenz der Innenminister und – senatoren der Länder’, 4th/5th May 2006, Garmisch-Partenkirchen, p. 17. 61  § 2 Einbürgerungsverordnung. 62  See also § 10 (5) (1) No. 7 StAG. 63  ‘Vorbereitung auf Test zur Einbürgerung Erste Prüfungen aber erst ab Mitte September’, Tagesspiegel, 2 September 2008: , accessed 25 September 2008; the fees differ: in Bonn, for example, a candidate has to pay €147,10, see , accessed September 2008. 64  ‘Einbürgerungstest: viele Fragen offen’, WDR, 2 July 2008: and ‘33 Mal Deutschland’, Süddeutsche Zeitung, 26 May 2008: http://www.sueddeutsche.de/deutschland/ artikel/29/176495/, accessed 25 September 2008. 65 As regards the test in Ludwigshafen refer to Rheinland-Pfalz: , accessed 25 September 2008.

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from outside the EU, and especially for third-country nationals family members, attendance to the integration course can be made compulsory.66 The new courses in the context of naturalisation will go more in depth. It can nevertheless be assumed that any immigrant who has already done the integration course would not need the extra course to prepare for the citizenship test. As regards language, the applicant for naturalisation has to demonstrate ‘sufficient’ oral and written skills of German language. According to § 10 IV, the threshold is B1 of the CEFR. The ‘sufficient’ nature of the skills can be demonstrated in different ways, such as for instance through the participation of the applicant in a language course when applying for a residence permit as stipulated in § 43 IV Immigration Act.67 The language requirements are different for spouses that want to enter the country for the first time.68 As from January 2008 they will have to prove basic knowledge of the German language (‘A1’) even before arriving to the country.69 The test (‘Start Deutsch 1’) has to be undertaken at the Goethe-Institut or in a cooperating institution. If this is not available in the third country from where the spouse applies for family reunion, an interview in the embassy will be conducted. There are various ways to prepare the test. In addition to the language classes provided by the Goethe Institute, there are language courses broadcasted by the Deutsche Welle, internet websites to learn German and even German vocabulary downloads for mobile phones (Michalowski 2009).70 The Netherlands Until 2003 the assessment of the degree of integration of an applicant for naturalisation occurred in rather informal manner at the municipal level in the Netherlands. An applicant had an interview with a civil servant of the municipality of his/her place of residence. The civil servant evaluated whether the integration condition was fulfilled. A consequence of this informal approach was that the level of integration required for naturalisation differed considerably from place to place across the country (Heijs 1988). The level of integration that was required depended very much on the subjective criteria considered to be important by each civil servant. A common joke was that in some conservative areas of the country

66  Cf. § 44a AufenthG (Residence Act). 67  BMI, ‘Vorläufige Anwendungshinweise des Bundesministeriums des Innern vom 19. Oktober 2007 zum Staatsangehörigkeitsgesetz in der Fassung des Gesetzes zur Umsetzung aufenthalts- und asylrechtlicher Richtlinien der Europäischen Union vom 19 August 2007 (BGBl. I S. 1970)’, p. 17. 68 E.g. § 9a (2) (3) AufenhG. 69  See § 28 (1) (5) and § 30 (1) (1) No. 2 and the exceptions in § 30 (1) (2) and (3) AufenthG and § 41 of the Residence Regulation [Aufenthaltsverordnung]. 70  See BAMF, ‘Nachweise einfacher Deutschkenntnisse beim Ehegattennachzug aus dem Ausland’ <www.konsularinfo.diplo.de/Vertretung/konsularinfo/de/BAMF-Ehegattenn achzug,property=Daten.pdf>, accessed 14 June 2008.

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one could be asked to sing the national anthem, whereas in Amsterdam it would have been enough if the applicant would managed to discover the room inside the town hall where the interview would take place. In light of this it is not surprising that a decision was taken to unify the nature of the assessment of integration. Since 1 April 2003 applicants needed to pass two integration tests: One test assessing the person’s command of the Dutch language, and another evaluating the individuals’ knowledge of society in the Netherlands and its constitutional order [staatsinrichting]. As such, the harmonisation of the evaluation of the degree of integration was very welcome. However, its positive implications depended at the end on the actual testing methods and the sort of questions that needed to be answered. Both tests were undertaken electronically through the use of a computer. Elementary IT skills were therefore added as an implicit third requirement for the applicant for naturalisation in the Netherlands. In the language test, oral and written, passive and active command of the Dutch language was tested. The language test (3 hours and 105 questions/tasks) was divided into four parts: listening comprehension (40 minutes for 25 questions whereby the candidate should at least answer 15 questions correctly); speaking (20 minutes for 20 tasks, the candidate could obtain a maximum of 39 points and should have obtained at least 20 points); reading (60 minutes for 25 questions, out of which at least 14 needed to be answered correctly); and writing (60 minutes for 20 tasks, at least 13 had to be answered correctly).71 The level of the language test corresponded to the A2 level of the CEFR. The candidate was first required to pass the language test before s/he was allowed to participate in the ‘Life in the Netherlands Test’ [Samenlevingstoets].72 The samenlevingstoets test took 60 minutes and consisted of 40 questions. The applicant passed the samenlevingstoets if s/he answered 28 questions correctly. The language test applying to the naturalisation procedure has to be distinguished from the test that an applicant for a residence permit is required to pass at a Dutch embassy in her/his country of origin, i.e. the Basisexamen Inburgering [Civic Integration Examination (Abroad)] (refer to Besselink, Chapter 13 of this book). The questions that used to compose the test for knowledge of society and the constitutional order of the Netherlands focused intensively on national issues. The applicant was confronted with questions such as how much money one is allowed to receive per month tax-free for working as a volunteer.73 Another question was even more striking. The computer produced a sound like ‘bananas, bananas for 71 This information was derived from ‘De naturalisatietoets: op weg naar het Nederlanderschap’ published by the Ministerie van Justitie, Immigratie en Naturalisatie Dienst, November 2004. 72  Zie de folder van de Immigratie- en Naturalisatiedienst, De Naturalisatietoets, , as of 14 June 2008. 73 This information was provided by Mr H.A. Wolf, leader of the integration test project of the Immigration and Naturalisation Department during an oral presentation given in spring 2003. See also (Wolf 2003, 124-25).

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sale’, followed by a multiple choice question: ‘Where are you? 1) in a supermarket, 2) at the market place, or 3) in a flower shop’. These kinds of questions are very unsatisfactory indeed. They have nothing to do with showing any basic knowledge considered to be necessary for living in the Netherlands, nor do they relate to any of the basic values reflected in the constitutional order of the country. In our view, they should not be part of a test examining the integration of a person in the Netherlands. It has to be stressed that these tests applied to applicants for naturalisation already living inside the Netherlands, but also to applicants who were living abroad (e.g. spouses of Dutch nationals living abroad with their Dutch husband or wife) (de Groot 2005b). It is our view that it will be extremely difficult to acquire the required level of knowledge for those applicants having their residence abroad. The Immigration and Naturalisation Office (IND) published in 2004 an evaluation of the integration tests in the context of naturalisation. The results were the following: A total of 55 per cent of the candidates passed all parts of the test in the first attempt. After one or multiple re-examinations the score increased up to 70 per cent. Among all applications for naturalisation 85 per cent received some sort of exemption (for example by means of showing a degree demonstrating that they have a sufficient command of the Dutch language). Another 3 per cent were exempt to pass the test for instance due to physical incapacity.74 Thus only 12 per cent of all applicants for naturalisation were actually required to take the full test.75 On 1 January 2007 the Law on Integration [Wet Inburgering] came into force and replaced the naturalisation test with the Civic Integration Examination [Inburgeringstoets]. The aim of the new legislation was not to change the level of difficulty of the test but rather its format. Although the Civic Integration Exam within the framework of the Wet Inburgering has in principle no direct consequences for the Dutch nationality, the test constitutes de facto and de iure a precondition for acquiring Dutch nationality. Applicants for naturalisation who have successfully completed the Civic Integration Examination are exempt from passing again another integration test in the framework of the naturalisation procedure.76 Those applicants who are exempt in the Wet Inburgering, for example nationals from other EU member states,77 are required to pass the integration test if they wish to acquire Dutch nationality. That test is identical to the Civic Integration

74 The grounds for exemptions are provided in Article 3 Besluit Naturalisatietoets and the grounds for discharge are foreseen in Article 4. 75  INDIAC, ‘Evaluatie naar de uitvoering en effect van de invoering van de Naturalisatietoets, Onderzoek naar uitvoering en effect van de invoering van de Naturalisatietoets’ (2004), , accessed 12 June 2008. The statistics cover the period April 2003December 2004. 76 Article 3 (1) (h) Besluit Naturalisatietoets. 77 Article 5 (2) (a) Wet Inburgering.

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Examination.78 The Civic Integration Examination within the framework of the Wet Inburgering can therefore be regarded together with the test as a precondition for acquiring Dutch nationality. The Civic Integration Examination consists of a central and a decentralised part. An applicant for naturalisation living outside the Netherlands has to pass the central part of the examination at the Dutch embassy abroad, while the decentralised part of the test is always conducted once being inside the Netherlands.79 An immigrant who is manifestly well-integrated into Dutch society has the possibility to do Korte Vrijstellingstoets, a shorter version of the Inburgeringstoets. The level of command of the Dutch language is not A2, but it has been raised to the B1 level. The costs of the test are €81.80 The central part of the test consists of an examination on the ‘Knowledge of Dutch Society’, which comprises a ‘Digital Practical Test’ and a ‘Spoken Dutch Test’. The former two involve the use of a computer. The Knowledge of the Dutch Society Test seeks to assess whether the candidate is familiar with the ways in which the Dutch society appears to operate. Most of the tests take around 45 minutes and contain 43 questions, out of which the applicant has to answer at least 62 per cent correctly. The Digital Practical Test takes 60 minutes and contains 43 questions (sometimes even less in number). Every candidate is required to pass the first part of the test. As regards the second part, candidates may choose between either the ‘labour’ or the ‘education, health and raising children’ profile. The candidate should at least answer 73 per cent of the questions correctly. The Spoken Dutch Test is a telephone test where the candidate is required to repeat sentences, answer questions and give brief account of stories. It takes about 15 minutes and contains 48 tasks. The candidate can obtain a score between 10 and 80 points and passes the test if s/he has obtained at least 37 points.81 We regret the lack of uniformity in the number of questions composing the central part of the exam as it might lead to inequalities. If a candidate should obtain a score of 73 per cent in the Digital Practical Test, s/he has to answer correctly at least 31 questions out of 43. When the exam only contains 42 questions the candidate still has to answer 31 questions correctly. The mere reason that the exam

78 Article 2 (1) Regeling Naturalisatietoets Nederland. ‘De naturalisatietoets, genoemd in artikel 2, tweede lid, van het besluit is het inburgeringsexamen, bedoeld in artikel 13, eerste lid, van de Wet inburgering met dien verstande dat de in artikel 2, derde lid van het besluit genoemde taalvaardigheden op niveau A2 van het Europees Raamwerk voor Moderne Vreemde Talen zijn behaald’. 79  IND Brochure ‘Hoe kunt u Nederlander worden in het buitenland?’ (January 2007), available from , accessed 13 June 2008. 80  See , accessed 12 June 2008. 81  See , accessed 12 June 2008.

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is one question shorter means that s/he can only make 11 mistakes. This situation, in our view, is far from being fair. The decentralised part tests whether the applicant for naturalisation has a sufficient command of Dutch language. The required level remains unchanged, i.e. A2 on the CEFR. The applicant for naturalisation shall pass the test by completing six different assessments simulating various situations in the Dutch society. Alternatively, the applicant can gather 12 pieces of evidence relating to Citizenship, for example: whether s/he has the ability to apply for a renewal of a driver licence; six pieces of evidence related to searching for a job, such as the ability to fill in a job application form; and 12 pieces of evidence relating either to work (the capacity to call yourself in sick) or to education, health (for example whether one can have a basic conversation with a doctor) and raising children. All the pieces of evidences will be gathered in a portfolio, which will be then discussed with the applicant for naturalisation in a 30 minutes personal interview. A combination of three assessments and 15 pieces of evidence is also possible.82 The Dutch Government has published only four sample questions on the internet. One of the questions concerns an image of a man being pulled over by the police. The text under the image says: Mo has been speeding. He’s fined. He has to pay a traffic ticket. Where does Mo have to pay the traffic ticket? A. Mo pays his ticket at the city hall; B. Mo pays his ticket at the police station or Mo pays his ticket by a check that will be mailed to him.

This question is already an improvement in comparison to ‘the banana question’ mentioned above. It is regrettable however that a list of sample questions has not been made publicly available. It is therefore extremely hard to assess the quality of the new Civic Integration Examination and to answer the question whether the Dutch Government has drawn lessons from the criticism that the old test had received (Van Oers 2006; refer also to Van Oers Chapter 6 of this collective volume). Without analysing the precise content of the Civic Integration Examination we already have difficulties to the category ‘finding employment’ in the decentralised part of the test. We find it quite suggestive, especially since the central part of the test already contains a section related to work. It is quite paradoxical that the group of lower educated immigrants with limited resources will have the highest probability to refrain from naturalisation because of the Civic Integration Examination’s requirement to show their ‘ability to find a job’ (Van Oers 2007), something which will not be the case for those falling within the category of highly educated immigrants, who generally will have less difficulties in showing evidence of having found an employment. The story goes that the Salomon Kalou, a football player from Ivory Coast seeking to 82  Immigratie en Naturalisatiedienst Brochure ‘Inburgeringsexamen: voorwaarde voor naturalisatie’ (October 2007), available from , as of 13 June 2008.

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acquire Dutch nationality, failed the old version of the integration test because he did not know how to apply for social security. The absence of an indicative list of questions makes it harder for the candidates to prepare themselves for the exam. It is in this respect important to stress that an integration course is in this case not compulsory. It is very difficult for an applicant for naturalisation to assess in advance whether s/he already possesses the required level of knowledge or whether it would be advisable to follow an integration course. The official reason that has been given is that the Civic Integration Examination not only aims at testing the applicant’s knowledge of Dutch society, but also its ‘attitude towards integration’. You cannot memorise that ‘attitude’ (Groenendijk 2005b). Nevertheless, the Dutch Government has made available a set of practical materials that can be bought in bookstores in the Netherlands and on the internet for €63.90. The set contains a DVD or video, a booklet with pictures from the film and three practice Dutch language exams. The Civic Integration Examination costs a total of €230 – if the candidates pass the test within three years after having obtained a residence permit they are entitled to a reimbursement of at least €650. Candidates will receive a refund of 70 per cent of fees for the Civic Integration Examination and integration courses. The refund is thus at least €650, but will never exceed €3,000.83 It is therefore perfectly possible that the refund exceeds the actual costs that have been incurred by the candidate. One of the conditions is that the candidate is ‘inburgeringsplichtig’, that means under the legal obligation to integrate. The inburgeringsplicht only arises within the context of the Wet Inburgering. It is thus for those applicants for naturalisation who have been exempt from the Civic Integration Examination within the framework of the Wet Inburgering.84 United Kingdom The Nationality, Immigration and Asylum Act of 2002 incorporated provisions into the British Nationality Act requiring those aged between 18 and 65 seeking naturalisation in the UK to demonstrate that they have a sufficient understanding of English (or Welsh or Scottish Gaelic) and a sufficient knowledge of life in the UK Ryan, Chapter 15 of this book). These provisions entered into force on 1 November 2005. The test is also compulsory for immigrants applying for indefinite leave to remain (settlement). Whereas the latter category contains a list of exemptions,85 the ‘Life in the UK’ test is also compulsory for EU and EEA nationals applying for naturalisation. 83 Article 4 (17) Besluit Inburgering. 84 Article 18 Wet Inburgering. 85  The only categories of persons exempt are those who have a significant physical or mental health condition. This condition must prevent studying for or taking the test, or from studying for an ESOL qualification. Source: , accessed 12 June 2007.

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Regarding the command of English for speakers of other languages (ESOL), the level of entry 3 or above is required. ESOL entry 3 implies ‘the ability to hold a conversation on an unexpected topic, which is workable, though not perfect, English’.86 The main goal of the test is however not to assess the level of command of the English language but rather the knowledge of the candidate about the British society. The test on Life in the UK consists of 24 multiple choice questions.87 In order to enable applicants to prepare for the test, the UK Home Office has published a book titled Life in the United Kingdom: A Journey to Citizenship, which costs £9.99.88 In April 2007 a revised edition of the book was published. The first edition was subject to criticism because it contained numerous factual inaccuracies. For example, the European Economic Community was said to be established by five countries: the Benelux countries, France and Germany (Italy was omitted!). A candidate only has to know in detail the chapters dealing with ‘A changing society’, ‘UK Today: A Profile’, ‘How the United Kingdom is governed’, ‘Everyday Needs’ and ‘Employment’. All together these chapters make up 57 pages. Before the revisions carried out in April 2007 candidates were only requested to study 32 pages of the book. The test takes about 45 minutes, but it may be extended in case of medical necessity. The applicant passes the test if s/he answers correctly at least 75 per cent of the questions. If the applicant fails, s/he may take another exam after a seven-day waiting period. Four types of questions are posed: first, multiple choice questions where the candidate has to select the correct answer; second, true/ false questions; third, multiple choice questions where the applicant has to select several correct answers; and finally, questions where the applicant has to select the correct statement. The test takes fully place on a computer, but only requires elementary IT skills. Applicants may familiarise themselves, free of charge, with a computer before taking the test. The kinds of questions used in the ‘Life in the UK’ test are also published on the internet on a ‘Life in the UK’ website.89 Some questions are slightly strange and require that one has studied the book in detail. For example, one of the questions being posed is the number of young people in the UK.90 The question is obviously related to the information provided in page 45 of the book, where it is mentioned that within the UK there are 15 million children and young persons up to the age 86  Home Office for England and Wales (2005), Life in the United Kingdom: A journey to citizenship (Norwich: HM Stationery Office for Books). 87  Further information is available online (retrieved from ). 88 The book is also available from , accessed 14 June 2008. 89 The website for the ‘Life in the UK’ test is , accessed 14 June 2008. 90  Ibid.

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of 19. But why does the book mention the number of young persons up to the age of 19, when the age of majority is 18? Another question concerns where the Geordie, Cockney and Scouse dialects are spoken. The answer can be found in page 52 of the book. Geordie is spoken in Tyneside, Cockney in London and Scouse in Liverpool. The relevance of these questions is dubious. Is it really necessary to know these answers if one want to live as a British citizen in the UK? The question about the percentage of Jewish population in the UK is also really surprising. ‘Is this either 0.8 per cent, 0.7 per cent, 0.6 per cent or 0.5 per cent?’. It is absolutely plausible that any immigrant can survive and participate as a citizen in the UK while believing that the percentage of the UK population being Jewish is 0.6 per cent, instead of the correct answer: i.e. 0.5 per cent. Some other questions to be highlighted are for example: ‘What are the minimum ages for buying alcohol and tobacco?’91or ‘What drugs are illegal?’.92 Other questions are just remarkable:93 ‘What are the rules and powers of the main institutions of Europe?’,94 or ‘How is EU law organised?’.95 As such, one has to welcome questions that do not focus exclusively on the UK alone but also on the EU. Yet some of these questions are rather vague and not easy even for experts in EU law. As the question concerning the percentage of Jewish in the UK population underlines, everything depends on the precise structure of the multiple choice alternatives during the test.96 Some Critical Remarks It is striking that all four countries under investigation are controlling the command of their own languages. This is rather surprising in the context of an integration condition for naturalisation. If a third-country national acquires the nationality of an EU member state, s/he is entitled immediately upon naturalisation to move and settle in another member state of the Union, even if s/he does not speak a single word of the official language of that other member state. In light of this situation the question must unavoidably be raised as to whether it should be possible in certain circumstances to substitute a deficient knowledge of the language of the country of residence with knowledge of the language of another EU member state. This is a sensitive but essential question indeed. If one wants to control the command of 91  Home Office for England and Wales (2005), Life in the United Kingdom: A journey to citizenship (Norwich: HM Stationery Office for Books), p. 46. 92  Ibid., p. 47. 93  See ‘Life in the UK’ test, available from . 94  Ibid., pp. 70-71. 95  Ibid., p. 71. 96  Ibid. The website only provides an indication of the topics on which questions will be raised during the exam. It does not provide precise samples.

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language as a manifestation of integration, then integration in multilingual Europe should be assessed and the naturalisation authorities should no longer completely and exclusively focus on the language proficiency by the applicant of the country of residence (De Groot 2004). A similar remark can be put forward in respect of the test on the knowledge of the society. The questions in some of the countries that we have examined above focus mainly on knowledge of the life in the country where the person involved applied for naturalisation. That is regrettable. It would be much better if the questions were to focus on integration in European society as a whole – on the basic values and norms of Europe, its democratic tradition and human rights. Positive examples are the citizenship test in Austria which gives quite detailed information about the EU and expressly states that one focus should be ‘on fundamental values of a European democratic state and its society of which Austria is an example’.97 Also in the UK there is a section about Europe. In Germany it is also probable that there will be one because among the questions proposed by Hesse several relate to Europe. Comparative Observations Available information on the content of the tests/materials  In the Netherlands the information available about the content of the tests is extremely poor: questions are mostly kept confidential. There are no specific preparation courses for the tests part of the naturalisation procedure. Of course, there are courses for the integration tests for newcomers, but not all newcomers are obliged to follow them.98 For the naturalisation tests detailed information is also lacking and no specific preparation is being offered. This is in our opinion not acceptable. The Netherlands does in this respect considerably worse than Austria, Germany and the UK in terms of making available information. As has been mentioned, Austria publishes online Lernunterlagen that applicants can download freely from the web. In Germany something similar has been envisaged. In the UK a book has been published, which one should study as preparation for the questions in the ‘Life in the UK’ test.99 Furthermore, the UK Home Office’s website indicates the topics of the questions.

97  See Regulation 138, p. 3: ‘Darüber hinaus sollte der Staatsbürgerschaftswerber einen Überblick über die Europäische Integration, insbesondere über die Mitgliedschaft Österreichs in der Europäischen Union, und die Grundwerte eines europäischen demokratischen Staates und seiner Gesellschaft erhalten’. 98 This is particularly problematic for those applicants of naturalisation who reside abroad, e.g. the foreign spouses of Dutch nationals. 99  In this respect the UK follows the examples of Canada and the US. See (with further references) and (with further references), accessed 25 September, 2008.

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There is a trend towards the publication of information by official websites. As such, we welcome the fact that this information is made free of charge and easily accessible to the general public. One has however to realise that not all applicants for naturalisation possess the elementary IT skills required to have access the website and find the necessary information. The website of the ‘Life in the UK’ test provides all necessary information to the applicant for naturalisation and provides for a helpline in a range of languages (e.g. Arab, French, Polish and Somali). The situation in the Netherlands is slightly more complicated due to the existence of two tests. The tests are explained at different websites and might lead to confusion for potential applicants, especially for those who do not master the Dutch language very well. To make matters worse, the information concerning the Civic Integration Exam is spread over multiple websites. As the authors of this chapter experienced during their research, it is far from easy to obtain any additional information. In Germany all sample questions and answers, as well as a test example, can be accessed via a webpage of the Federal Ministry of the Interior.100 Detailed information in English can be found on the homepage of the Federal Office for Migration and Refugees.101 The Nationality Act can be accessed in English.102 The questions are only available in German. Information can also be found in the web pages of the different Ministries of Interior of the federal states.103 In Austria the situation is rather similar. The brochures for the country and for the different federal states (with the exception of Vienna and Styria) are collected in one webpage of the Ministry of the Interior.104 Furthermore, each federal state provides the material in its own website. While some of the web pages are translated into English, the brochures themselves are only available in German. The Residence and Settlement Act in Austria can be accessed in English.105 Language requirements  The national language proficiency needs to be considered 100  See , accessed of 25 September 2008. 101  See , as of 16 June 2008 and for the brochure of Vienna: , accessed 16 June 2008. 105  See , accessed 13 December 2008.

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as one of the keys for a successful integration. The possibility for an immigrant to follow language courses should therefore be perceived as extremely useful. Within the countries compared we have observed that main focus of the immigration tests lies in the applicants knowledge of the society of the host country and the level of command is for example in the UK only implicitly tested. With regard to level of command of the language different requirements can be found across the countries compared. Austria and the Netherlands require an A2 level in the CEFR, while the UK requires a level of ESOL 3, which is roughly comparable to an A2 CEFR. Germany, on the other hand, requires a B1 level. Striking is the intention of the Dutch Government to raise the threshold of the language requirement without adjusting the required level on the CEFR scale itself. On paper, the required level of command has remained the same, but the test has become more difficult in practice. The same threshold on the CEFR does not automatically mean that the language requirement is comparable. Whereas Austria and Germany require a separate language test, the UK assumes that by passing the immigration test the applicant has already demonstrated that his command of the language is sufficient. The Netherlands only explicitly tests the ability to speak the Dutch language. Exemptions  Austria does not require applicants for naturalisation to pass a language test when the mother tongue of the person is already German. The same holds true for Germany.106 The Netherlands provides exemptions to a number of categories, including Moluccans and persons having completed at least a secondary education in the Dutch language.107 Applicants can furthermore take a shortened (yet more difficult) test to prove that they are already ‘sufficiently integrated’. The wide list of exemptions available in the Netherlands resulted in a situation where during the period between April 2003 and December 2004 only 12 per cent of the applicants for naturalisation were required to take the test. The UK only allows for exemptions on the grounds of a significant mental or physical health reason. Furthermore, applicants from other EU member states or applicants who are manifestly well integrated in the British society are still required to take the test.

106 However, an incident occurred in 2004 when an Austrian woman wanted to become naturalised in Germany and she was by chance sent the form inviting her for an interview to assess her language abilities. In the interview the official in charge was not convinced of the language proficiency of the applicant. Therefore she was asked to take the German language test even though she had finished her education in Germany, worked there for the last nine years and was the leader of a literature circle – in German. See , accessed 16 June 2008. 107 Article 3 Besluit Naturalisatietoets.

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The exceptions provided in Germany for the citizenship test cover people with a German school-leaving certificate.108 Further exemptions are a physical, mental or intellectual diseases or handicaps, same as age. In Austria the situation is similar. Minors who attend school can generally be said to be exempt from taking them, as well as elderly and ill people. It is striking that none of the countries that are being compared allow for exemptions or a more favourable treatment in case of marriage to a national of the country involved. Is the fact that a foreign national is married to a Dutchman/ woman not already sufficient proof of his/her integration in the Dutch society? Costs  The costs of the tests differ considerably. In the UK the cost of the language and the ‘Life in the UK’ test is £34 (€50). The naturalisation fee is £268 (€393). In the Netherlands the costs for both tests are €260. The naturalisation fee is €351.109 In the event that the applicant passes the test, 70 per cent costs of his/her costs will be reimbursed with a minimum of €650 and a maximum of €3,000. In Germany the citizenship test is envisaged to cost €25, the general naturalisation fee is €255. In Austria the price differs depending on the federal state. In Carinthia, for example, the test fee is €20.110 In Vienna it is for free.111 The general naturalisation fee is €900. An additional fee will however be imposed by the region, in Vienna for example this amounts to €76.112 Austria and Germany provide for several options to prove the language proficiency. The costs thus vary. We greatly welcome the possibilities for reimbursements, especially for lower income categories who might otherwise refrain from naturalisation and remain in a disadvantaged legal position. The fact that countries are prepared to compensate expenses made by immigrants in the process of their integration acknowledges the idea that integration is not a ‘one man’s effort’ but an interplay between society and the immigrant. An integration course of high quality might sufficiently enable the applicant for naturalisation to ‘get to know’ the country. However, for immigrants that have been living in the host country for years the need for a test is less obvious. Although it is only the 108  BMI, ‘Vorläufige Anwendungshinweise des Bundesministeriums des Innern vom 19. Oktober 2007 zum Staatsangehörigkeitsgesetz in der Fassung des Gesetzes zur Umsetzung aufenthalts-und asylrechtlicher Richtlinien der Europäischen Union vom 19 August 2007, (BGBl. I S. 1970)’, pp. 16-35.  109  As of 1 January 2010 the general naturalisation fee will rise to €552 for all the applicants for naturalisation. Minors (-18 years) can from the same date no longer naturalise with their parents free of charge. For this category of naturalisandi a special tariff of €83 will be introduced. 110  See ‘Merkblatt für die Anmeldung’: , accessed 14 June 2008. 111  Information obtained from the Ministry of the Interior in Vienna, 16 June 2008. 112  Cf. Webservice der Stadt Wien: Kosten – Verleihung der Staatsbürgerschaft: , accessed 16 June 2008.

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immigrant who can study the national language and participate in an integration course, it is from this perspective only fair to share the burdens. Standard of knowledge  Some questions require a very high standard of knowledge by the applicant. The fact that many Austrians or Germans could not pass the test is very striking. As it was expressed as regards the German test proposal from Hesse, it cannot be expected for ‘an immigrant to have higher knowledge of civic knowledge, German culture and science than the one we have ourselves’ (Ekardt and Radtke 2007, 29). Therefore the nature of some of the final questions remains subject to criticism. While most questions from the ‘Life in the UK’ test are ‘fair’, the same remark still applies in this case. We wonder how many native Britons would be able to indicate the exact percentage of Jewish persons in the UK population. Because of the alternative answers to the questions available the candidate is required to closely study the relevant materials. The alternatives provided for (a percentage between 0.5 and 0.8 per cent) are too close to each other for a general knowledge to suffice in order to pass satisfactorily the test. Some Conclusions The following conclusions and suggestions can be made based on the brief comparison presented in this chapter of the integration tests in Austria, Germany, the Netherlands and the UK: •

• •

An inventory should be prepared of the details characterizing the integration requirements in the different EU member states as a condition for naturalisation, in order to obtain a general overview on good practices. More specifically, – a. A comparison should be made of the methods of assessing the integration requirements. – b. A detailed113 comparison has to be made on the precise level of language proficiency that is required as a condition for naturalisation. – c. A detailed114 comparison should be made of the types of questions concerning the life in the receiving society. Transparent and full information as regards the content of the integration tests should be also encouraged. The relationship between general integration programmes in the scope of immigration law and integration tests as a part of the naturalisation

113 Only the details (and not the global reference to certain levels) give an adequate impression of the difficulty of the different tests and allow for comparison. 114 Again, only the details show the real issues (national or European) around which the different tests focus on and allow for an assessment as to whether integration or assimilation are being required.

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•

procedure (nationality law) has to be studied. If an EU member state requires integration as a condition for naturalisation, integration should be assessed in respect of EU society and not of the national society. This approach needs to be reflected in: – a. The kinds of questions posed; and – b. A certain compensation mechanism in respect of command of the language. To some extent, knowledge of the language of another EU member state should compensate a deficient skill in the language of the state in which the individual has applied for naturalisation (De Groot 2004).

Summa Summarum  In respect of integration requirements as a condition for naturalisation, the development of an EU policy is desirable. T owards European Integration T ests? In the first place, one has to ask about the goals of the European immigration policy. An objective underlying the citizenship test is the desire to use it as a tool to control the level and composition of immigrants (Etzioni 2007, 335). As a side effect it is assumed that such policies will render a state less attractive for immigrants. Contradictory data exist as to whether this objective is true. In the UK there has been an equally high interest for naturalisations since the introduction of tests (Etzioni 2007, 335). In the Netherlands, in contrast to that, the introduction of a new and more difficult naturalisation test has led to a decrease in the number of applications for naturalisation (Thränhardt 2008, 10).115 Also in Austria numbers decreased after the introduction of the test. The number of naturalisations was reduced by half. Also in the first quarter of 2008 the numbers keep on dropping.116 However for both Austria and Germany there is data revealing that before the introduction of the tests the number of requests were generally decreasing. Why would one then introduce a test? In Germany numbers increased right before the introduction (Thränhardt 2008, 4). It can be concluded that a deterring nature of the Citizenship test clearly depends on its nature and content of the questions. As it has been stressed, Europe needs immigrants due to e.g. demographic change (Carrera 2005a, 110; Thiele 2007, 58). Rather than to deter migrants from coming, it would be feasible to assess the possibility of an EU immigration policy. At the EU level it would not make sense to develop tests on the command of the different European languages. Nevertheless, it would be desirable to indicate – as precisely as possible – the required level of these language tests. Furthermore, 115  In 1996, 11.4 per cent of the foreigners living in the country were naturalised and in 2005 this number decreased to only 4.1 per cent (Thränhardt 2008, 10). 116  See ‘Zahl der Einbürgerungen im 1. Quartal 2008 weiter rückläufig’, Statistik Austria: , accessed 14 June 2008.

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it would be desirable to develop common EU rules as to how far the knowledge of the language of another member state could compensate for deficient skills in the language of the state in which a person applies for naturalisation. In view of the foregoing conclusions, the question of whether the development of European integration tests (‘Life in Europe’) would be desirable has to be raised and addressed. In the first instance, one has to underpin the argument that the development of good European tests would be considerably better than continuing with the practice of bad national tests. But second and unavoidably, the question must be posed as regards the goal that a Life in Europe test would have. As such, it can be argued that a person showing long-term legal residence in a country should be already – in principle – entitled to the nationality of that country and (for the EU member states) to EU citizenship. Indeed, a person who has lived for a long period of time in the country concerned should be deemed to be integrated in that country. Only in the case of an application for quicker naturalisation (after a shorter period of residence) would it be reasonable to require an additional integration test. The core question is then of course after what period – in principle – an entitlement to naturalisation should exist. On this point, Article 6 of the 1997 European Convention on nationality provides inspiration.117 In particular, Article 6 (3) prescribes: ‘Each state party shall provide in its internal law for the possibility of naturalisation of persons lawfully and habitually resident on its territory. In establishing the conditions for naturalisation, it shall not provide for a period of residence exceeding ten years before the lodging of the application’.

117  Fifteen European states have already ratified this Convention (out of which nine are EU member states) and another 11 states have signed it (seven being EU member states).

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Chapter 4

European Citizenship: A Tool for Integration? Zeynep Yanasmayan

Coping with cultural diversity and ensuring the ‘integration’ of its non-European members has turned out to be a major challenge for Western societies. The efforts to prevent further entry into Europe have with time driven the need to cooperate. Hence, the EU appeared as a significant mechanism through which member states have pursued restrictive immigration policies. On the other hand this intensification of cooperation has not been followed by a transfer or sharing of authority in other more sensitive matters linked to immigration. The policies related to the integration of immigrants have mostly been considered to be ‘national’ since they clearly influence the self-conceptualisation of a community. Nowadays, ‘[t]he immigrant ‘other’ functions as a mirror in which we can observe and by which we can redefine ourselves, immigration tends to create pressures and opportunities for a redefinition and reinvention of the conceptions of citizenship and national identity of the receiving nation-states’ (Koopmans et al. 2005, 6). These boundary-producing practices which necessarily lead to the production of exclusion are at the basis of the existence of the ‘migrant’ as a construct. Nevertheless, migration is as much conditioned by as it is involved in shaping citizenship (Joppke 1999a, 4). The legally homogenous national citizenry, by confining collective identity to territorially-bounded communities has simultaneously ‘invented the foreigner’ (Brubaker 1992, 46) thus national citizenship by definition needs to exclude. Examining citizenship through the lenses of migration allows for the realisation of boundary-producing practices that are entailed within it. Within this context, this chapter is an attempt to see to what extent European citizenship engages with the question of exclusion and integration. It investigates whether European citizenship could have an added value in managing issues stemming from Europe’s cultural diversity. It therefore focuses on the situation of third-country nationals (TCNs), more particularly of Turkish immigrants in two European countries, Germany and the Netherlands. It will become apparent throughout the analysis that an unforeseen consequence of European citizenship is that it tends to highlight the existing boundaries between citizens and aliens while adding a ‘brand-new’ European one.

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The chapter begins with an inquiry into the European citizenship itself which also makes a start to the major discussion of how migrants are deprived from EU citizenship rights. Different solutions put forward by scholars to overcome this ‘shortcoming’ are also presented in this section. These arguments are illustrated inside the main analytical section of this chapter which looks at the integration policies in the two aforementioned member states. It thus gives a concrete palpability to what is happening on the ground. A n Inquiry into European Citizenship National citizenship which has pursued its reign over the political arena ever since the French Revolution draws mainly on two distinct traditions of citizenship: liberal and civic republican. Although these traditions are developed within the context of territorially-bounded communities, they still offer ‘an appropriate frame of reference for the discussion of the problems, nature and future of European citizenship’ (Kostakopoulou 2001a, 84). The current formulation of European citizenship with its stress on rights and its almost absolute silence on identity reveals the domination of the liberal tradition. One might easily argue that European citizenship is just a compilation of rights that were already in place prior to its constitution. Nevertheless, ‘the significance of this institution does not lie in what it is at present, but in what it might and should be’ (Ibid., 66). Moreover, regarding the integration of TCNs, European citizenship – though maybe unintentionally and indirectly – has an influence, and its contribution is hardly positive. Looking back at the development of European citizenship reveals that it has mostly been introduced as a spill-over of expanding single market provisions. Due to the mobility of the Community workers, the attribution of rights at European level has begun before the formalisation of EU citizenship by the Maastricht Treaty (1993). Hence political rights came after economic and social rights. Many scholars tend to argue that this parallels with the widely-known incremental typology of T.H. Marshall (Meehan 1993; Soysal 1994; Kostakopoulou 2001a), which again confirms its liberal inclination. European citizenship contains a set of rights which are enshrined in the Treaties and some enhanced with secondary legislation. The rights under the Title II of the consolidated version of the TEC are as follows; free movement and residence within the Union (Article 18), diplomatic protection abroad by another member state (Article 20), and political rights – voting rights in the municipal and European elections (Article 19), right to appeal to the European Parliament   Marshall conceived citizenship as a set of expanding rights which were all indispensable for its realisation. Basing his analysis on Britain he argues that civil rights came first in the eighteenth century. This was then followed by political rights in the 19th century and by social rights in the 20th century (Marshall 1992, 21).

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and to the Ombudsman (Article 21). The right to free movement is elaborated by secondary legislation such as the Directive 2004/38 which ensures equal treatment in respect to employment, social and tax advantages. Moreover, the interdiction of discrimination on nationality grounds (Article 12) can be considered as a principle that supplements these rights. Nevertheless, the ban on discrimination on the grounds of nationality does not extend to TCNs since it is limited to the ‘scope of application of the treaty’. Instead, in various official documents such as the Tampere and the Hague Programmes, the EU calls for ‘comparable’ rights for TCNs. Permanent residents, who approximated their rights to those of citizens in national contexts, find themselves in a second-class position at EU level (Faist 1995, 192). Moreover, empirical studies show that most member states fail to provide a fair treatment. Therefore TCNs have considerably lost out compared to European citizens (Kofman 2002, 1045). European citizenship, controversially, transforms ‘the traditional dichotomy into a trichotomy of national citizens, Union citizens and third-country aliens’ (Bauböck 1997, 13). The outcome of this differential treatment goes beyond the nation-state level and creates anomalies within the larger European system since nationals of the same third country living in different member states might end up obtaining European citizenship in a longer period or not at all. As Bauböck argues, the existing inequality and diversity of rights between member states are further highlighted by Union citizenship (1997, 12). Thus, ‘the current regime does not merely create a possibility for “European passport shopping” in those states that offer easier access; it also generates inequality and exclusion’ (Bauböck 2006a, 2) Several scholars have attempted to develop solutions to this exclusion of immigrants from non-EU countries. There appears to be two ways of remedying this; facilitating the conditions for their naturalisation to national citizenship, thereby to European citizenship, or extending the personal scope of Union citizenship (Kostakopoulou 2001a, 73). The first option might take the form of minimum harmonisation measures or a foundational code that lays down the procedures of Euro-naturalisation. While the former might fall short of efficiency, the second risks replicating the national model at a larger scale (Kostakopoulou 2001a, 74; Bauböck 1997, 13). Moreover, the peculiarity of European citizenship is that it does not entail ‘the ‘opening’ of national citizenship ‘from within’ which allow nationals of other member states to obtain citizenship by naturalisation, but the shifting of ‘boundaries’ from outside through the conferral of rights which are enforceable before national courts’ (Kostakopoulou 2001a, 70). Thus, it is rather hard to justify why this should not be the case for TCNs. EU’s official position on the issue can be revealed through the Declaration (no. 2) on nationality of a member state, attached to the Maastricht Treaty, which states that ‘The question of whether an individual possesses the nationality of a member state shall be settled solely by reference to the national law of the member state concerned’. Nevertheless, the EU encourages its member states to offer the

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opportunity to obtain the nationality to the TCNs of the member state in which they are resident. A number of proposals have put forward the idea that citizenship of the Union should be extended automatically to TCNs after a reasonable period of residence – usually minimum five years – without any other condition (Sierra and Patel 2001; Kostakopoulou 2001a; Delanty 1996a; 2000; Habermas 1992; Vink 2005). That would ‘enable all those who have made their home and the centre of their economic life to be included as full and respected participants in the Euro-polity’ (Kostakopoulou 2001a, 104). The legitimacy of rights in such a civic conception of European citizenship shifts from nationhood to residence. Accomplishing this might actually promote a postnational understanding of European citizenship by decoupling rights and national identity. Evidently, objections arise from those who assume that the fabric of the community might be threatened with the inclusion of migrants who do not share the same commitments towards it. Nevertheless Kostakopoulou points out that this has never been sought as criteria for the nationals of member states. Notwithstanding the necessity of granting rights to non-EU immigrants, Bauböck (1997) argues for a European ‘denizenship’ separate from European citizenship. He makes use of the terminology of Hammar (1990) who labelled the status of non-national immigrants as ‘denizenship’ for this status guarantees legal and social rights but lacks the entitlement to political rights. Therefore for Bauböck, in the case of the European Union, ‘denizenship’ would ensure the access to similar set of rights – apart from the franchise for European Parliament – without devaluing Union citizenship. He believes that an automatic attribution of European citizenship to TCNs would reduce it to ‘a generalized denizenship, disconnected from the notion of consensual membership in a political community’ (Bauböck 1997, 14). Moreover, the EU would lose its power to pressure for harmonisation of national legislations on naturalisation because ‘they would no longer be a real concern for the project of a common European citizenship’ (Ibid.). In contrast, creating a Euro-naturalisation scheme without strong assimilation requirements and with relatively shorter period of residence could provide a yardstick for harmonising national legislations. He states that ‘[s]uch conditions of enhanced citizenship would remove the present perverse incentives for naturalisation as an escape route for discriminatory laws against foreigners’ (Ibid., 15). In 2000, the European Commission proposed for the first time to develop a ‘civic citizenship’ for TCNs. The concept has been improved with the later

 European Council, Presidency Conclusions, Tampere, 15-16 October 1999, p. 21.  As early as 1996 the European Parliament had begun advocating for voting rights at local level for all foreign residents. The EP furthered this line calling for electoral rights in local and EP elections in 2003 (Geyer 2007, 3).   Commission Communication, A Community immigration policy, COM(2000) 757 final, 22 November 2000, p. 19.

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Communications and followed by the Annual Reports on integration. In 2004, The JHA Council of 19 November has adopted Common Basic Principles (CBPs) to underpin a coherent European Framework on Integration of TCNs. Alongside these, in order to approximate the rights of migrants ‘as near as possible to those of nationals’, the EU adopted a Directive (2003/109/EC) concerning the status of third-country nationals who are long-term residents and proposed a Directive establishing a Blue Card scheme in October 2007 which is pending adoption. The Long-Term Residents Directive provides for an EC-wide residence status which grants a conditional right to work, live or study in another member state. Moreover, it seeks to ensure equal treatment with nationals in a number of fields (Article 11). However, it does leave open the requirement of other criteria such as integration (Article 5(2)) for obtaining the status. The next section illustrates how this has been filled or rather misused by the two member states. When it comes to integration, it can be seen that the EU makes use of ‘soft law’ measures and limits itself to the ‘Open Method of Co-ordination’ (OMC) and sharing of best practices. Hence the competence largely rests on member states. The approach embraced by the EU urges the necessity to analyse domestic integration policies. European Citizenship in Practice International migration underpins three core elements of a nation-state; the sovereign control over external borders, the regulation of access to citizenship and a nation’s cultural self-understanding (Koopmans et al. 2005, 4). Therefore, contemporary immigration policies revolve around three issues; territorial admission, rights for non-citizens and membership (Vink 2005, 10). I will attempt to cover the last two policy areas for the chosen countries since ‘they are informed by and generate ideas about membership and belonging’ (Geddes 2003, 5). Territorial admission policies are deliberately omitted since the aim is to observe ‘inclusion’ once in the territory. Nevertheless, this is not to disregard the fact that they are highly interrelated and that a restriction in one may well cause an expansion on the other. A number of studies disclose that European states assume a convergence in terms of conceptions of and legislation on citizenship (e.g. Groenendijk and Guild 2001; Hansen and Weil 2001; Koopmans et al. 2005). Whereas Brubaker (2001) considers that there is a trend of ‘return to assimilation’, Koopmans et al. (2005) hold that there is a tendency toward more multicultural policies. These claims remain to be elaborated by larger studies; however what is certain is that there is a ‘return of citizen’ in member states. Before discussing the policies in the Netherlands and Germany, it is helpful to explain why these two countries have been chosen as samples. The choice for  European Commission Communication, immigration, integration and employment, COM(2003) 336 final, 3 June 2003.  European Council, Document no. 14615/04, 19 November 2004, pp. 19-24.

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country stems from the need to focus on a specific group of migrants to avoid the variation of status between different categories of immigrants – the so-called civic stratification. Since Turkish immigrants are chosen as the main unit of analysis it makes sense to observe the two countries in which they form the largest nonnational groups. Why then a focus on Turkish immigrants? From the 1980s onwards the principal target of anti-immigrant discourse has gradually become oriented toward migrants from countries with Muslim populations (Lucassen 2005, 3). And Turks in Europe are increasingly perceived as Muslims thus ‘referred to with their religious identity which assisted to their classification as the “other”’ (Ibid., 145). Therefore it is crucial to observe the political integration of this group which is more likely to be affected by the changes in Europe. T he N etherlands As a vibrant centre for commercial activities, the Dutch territory has a long history of both immigration and emigration. From the 1960s onwards, however, migration inflows have begun to exceed its outflows (Entzinger 2003, 59). The arrival of Turkish immigrants started in 1964 with the signing of the bilateral labour recruitment agreement (Içduygu et al. 2001). In accordance with the policies elsewhere in Europe they were first considered as ‘guests’, so it was not until the early 1980s that the Dutch Government developed a coherent policy to promote immigrant integration. Following the Scientific Council for Government Policy’s (WRR) report in 1979, they officially established the Ethnic Minorities Policy which consists of three keystones; emancipation in a multicultural society, equality before the law and promotion of equal opportunities (Entzinger 2003, 63). Ethnic Minorities Policy has usually been considered as an extension of the pillarisation principle [verzuiling] dominant in the Dutch society (Soysal 1994; Vink 2005; Geddes 2003; Entzinger 2003). The pillars are identity-affirming (Geddes 2003, 113) and provide for the coexistence of communities. Thus, it is based on the idea of integration with ‘the retention of identity’ (Entzinger 2003, 63). The consistent pursuance of Ethnic Minorities Policy has given the Netherlands a key role in the application of multicultural ideas to the politics. Principle of emancipation supports different institutional arrangements as a means of preserving group identity (ibid., 64). Rights of Non-Citizens Dutch legislation comprises comprehensive anti-discrimination acts. The law on equal treatment has been introduced in 1994 and it includes a wide range of social  Eurostat (2006) ‘Non-national populations in the European states, population and social conditions’, no. 8/2006, p. 2.

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spheres as well as grounds such as gender, religion, race or ethnicity (Koopmans et al. 2005, 47). In the Migration Integration Policy Index (MIPEX), the Netherlands scores very favourably in anti-discrimination law with its enforcement constituting a best practice. The EU’s contribution to combating discrimination is very limited. So far, two EU Directives have been adopted in order to promote equal treatment irrespective of racial origin and equal treatment on the workplace (Directive 2000/43/EC and Directive 2000/78/EC). Nevertheless, both the Racial Equality Directive and Employment Framework Directive explicitly leave out the discrimination on the grounds of nationality, and therefore leave TCNs out of their personal scope. In particular it is stipulated that, This prohibition of discrimination should also apply to nationals of third countries, but does not cover differences of treatment based on nationality and is without prejudice to provisions governing the entry and residence of thirdcountry nationals and their access to employment and to occupation.

Alongside the anti-discrimination measures, political rights are an effective mechanism to approximate the status of non-citizens with that of citizens. The Netherlands has granted, since 1985, active and passive voting rights in the local elections to its foreign residents who hold a residence record of at least five years (Koopmans et al. 2005, 41). The Dutch legislature explicitly chose not to differentiate between categories of aliens, however EU legislation10 requires the lifting of additional conditions for Union citizens in comparison with national citizens (Vink 2005, 133). Therefore, at the current situation while EU nationals can vote and be elected in European and local polls immediately after their arrival, TCNs can enjoy these rights only in local elections and only after five years of legal residence. The gap may not seem to be too significant at a first glance, however local election results reveal that ethnic voting is gaining ground in the Netherlands as well as in Europe. For instance, in the last local elections in Belgium, the Socialist Party which included a large amount of candidates from ethnic background to its list came first in Antwerpen, a city usually affiliated to a Vlaams Blok majority

  MIPEX is a project that measures policies to integrate migrants in 25 EU member states and three non-EU countries. It seeks to establish a comparative analysis on six policy areas: labour market access, family reunion, long-term residence, political participation, access to nationality and anti-discrimination (Niessen et al. 2007).   Preamble of the Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin. 10  Council Directive 94/80/EC of 19 December 1994 laying down detailed arrangements for the exercise of the right to vote and to stand as a candidate in municipal elections by citizens of the Union residing in a Member State of which they are not nationals, Article 4.

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– a self-declared ‘Islamophobic’ Flemish nationalist party.11 A similar result can be noticed in the Netherlands in the 1998 and 2006 local elections. It seems that once the ideological choice has been made, ethnicity plays a role (Geyer 2007, 10). Therefore, it would be wrong to underestimate the resentment that may arise from the differential treatment between EU and non-EU nationals for elections appear to be a legitimate ground to make claims for immigrants. Moreover, the high turnout rate and ethnic voting behaviour of Turks – 83 per cent for Turks on 1998 local elections (Entzinger 2003, 67) – disclose the significance of voting rights in the case of Turkish immigrants. Since having a long-term residence permit has considerable impact in terms of access to and security of the rights, the attribution of this status must be taken into consideration. In the Netherlands, migrants are eligible for such a permit after five years of residence, which includes time studying or waiting an asylum decision. It does provide for equal rights to employment, healthcare and housing, however the granting of the status is conditioned on an integration test in the territory if they have not done so before their arrival. Obviously, EU nationals do not pass through these stringent procedures since they do not need to apply for such a permit to have equal rights as nationals. Moreover, as mentioned earlier, the Directive concerning long-term residents leaves the integration criteria into member state’s discretion. Hence, the introduction of an integration test was explicitly justified by the Dutch Government with reference to Directive 2003/109/EC (ibid., 28). Other types of rights provided by the EU citizenship mainly concern the access to territory. Although these obviously create inequalities between EU and nonEU migrants, territorial admission policies are out of the scope of this chapter. Free movement of people and comprehensive family reunification provisions can be considered as the most important rights that privilege Union citizens. Though there is no internationally recognised right to enter a territory – asylum-seekers being an exemption – the right to a family life is covered by many Conventions, particularly by the Article 8 of the European Convention on Human Rights. Thus, it is worth elaborating it a bit more. The family reunification of TCNs is regulated with the Family Reunion Directive (2003/86/EC) whereas for EU nationals the directive on free movement (Directive 2004/38/EC) dominates this area. The most striking diverging point of the two documents is the acceptance that member states may require applicants to comply with integration criteria in the former directive (Article 7(2)). The family members of EU nationals are exempt from such criteria. Hence once again, EU legislation leaves space for the national legislation when it comes to TCNs. Although many of these rights remained in place, after a decade of sovereignty, Ethnic Minorities Policy has increasingly come under fire. It has been criticised in many grounds. Some argued that it was no longer tenable due to increasing number 11  The Brussels Journal, ‘Turning Red: Immigrants Tip the Balance in Belgian Local Elections’, [online], 9/10/2006, available from , accessed 10 December 2008.

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and diversification of minorities (Entzinger 2003, 69), or that it was depicting minorities as ‘needy’ and’ ‘under-achieving’ which was in turn impeding their incorporation instead of facilitating it (Thränhardt 1999, 178 as cited in Geddes 2003, 115), or that it was regenerating minorities’ ‘otherness’ by assigning them into certain social groups and freezing their identities (Geddes 2003). Drawing on these arguments against the previous policy, the Government gradually shifted to an integration policy. In 1994, the Government officially endorsed its new policy [Contourennota] which pays less attention to the preservation of minority cultures and more to the structural incorporation. Dutch Nationality Law The first Dutch nationality law dates from the year of 1892. Being amended several times this law has been totally replaced by 1984 Nationality Act which was lastly amended with the Act of 2003. While the 1984 Nationality Act has been adopted after the official endorsement of the Ethnic Minorities Policy as a part of the same strategy to strengthen the legal status of non-citizens, the Act of 2003 was geared to introduce more severe criteria for integration. Dutch legislation provides for the acquisition of Dutch nationality for three different types of immigrants; •

•

•

The third-generation immigrants are attributed Dutch nationality at birth with double jus soli principle – a child born in the Netherlands, whose parent is born in the Netherlands residing on Dutch soil. The second-generation immigrants – individuals between 18-25 years old and having resided in the Netherlands since the birth – can acquire nationality by a declaration (optie) subject to public order investigation. The first-generation immigrants are subject to naturalisation – by royal decree – to acquire citizenship. To ask for naturalisation one has to be residing in the Netherlands for at least five years – uninterrupted stay – and has to reasonably integrated into the Dutch society. Moreover, he/she has to renounce his/her nationality of origin.

Dutch nationality legislation draws attention to two significant questions; dual nationality and integration criteria. Initially, the interdiction of dual nationality has kept naturalisation rates very low for immigrants were not willing to give up their original nationality. Turks were also highly affected by this ban because the Turkish Government did not release its citizens before fulfilling their military duties either. Throughout time, Dutch Government has adjusted its policy to changing environment and decided to introduce the possibility of dual citizenship. With a circular issued by the Junior Minister of Justice in 1992, dual citizenship has been de facto allowed without amending the Nationality Act (ibid., 148). Not surprisingly, a boom in the naturalisation rates has been experienced after the liberalisation of the policy. In the case of Turks, the number of naturalisation has raised from 1,950 to 6,110 and then to 11,520 following the years 1990, 1991

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and 1992 (Entzinger 2003, 67). However, this permissive policy has only lasted five years. A Government bill aiming to incorporate this practical change into the Nationality Act failed in the Senate, the restrictions were reintroduced in 1997 by another circular (Vink 2005, 148). Groenendijk and Heijs (2001, 148) argue that the effect of this change has so far been severely limited as dispensation has been granted to 13 categories of applicants – among which exists a provision for those who cannot renounce their citizenship before completing their military service. Thus, although the naturalisation rate has dropped after 1997, most people of Turkish descent hold a Dutch passport (Entzinger 2003, 75). Though in practice, a number of applicants manage to keep their previous nationality the official interdiction operates as a further condition of integration by the Dutch state (Van Oers et. al. 2006). This brings us to the second important dimension of the Nationality Act: Integration criteria. The condition of integration has been firstly introduced by the Newcomers Integration Act [Wet inburgering nieuwkomers] in 1998. It establishes a mandatory ‘civic integration course’ which consists of language training, civic instruction and labour market orientation. The integration course which has initially been offered by the state is now delegated to private institutions and rather than the attendance the result of the test taken in the end counts for the Dutch Government. In order to obtain a right to residency in the Dutch territory, immigrants should pass the test. This policy has been complemented later on with the Civic Integration Abroad Act [Wet inburgering in het buitenland] which requires foreign nationals wishing to settle in the Netherlands for a prolonged period to pass an examination test abroad (refer to Besselink, Chapter 13 of this book). In parallel to this, in case of naturalisation ‘civic integration examination’ is required in which the applicant should demonstrate oral and written knowledge of the Dutch language.12 A request for naturalisation can only be made after the completion of this new test which requires the same level of knowledge with but has a different format than the previous naturalisation test.13 The content of the test is not published14 since the Dutch officials contend that ‘One cannot study to be Dutch, one has to feel Dutch’ (De Hart and Van Oers 2006, 327; de Groot et al., Chapter 3 of this collective volume). These changes obviously point to a significant shift in the self-understanding of the Dutch. The emphasis is more on shared values, citizenship and identification 12  Justice, Immigration and Naturalisation Office for the Netherlands has announced that the language test is going to be adjusted on the 1 December since it has proved to be ‘too easy’. 13  IND (Justice, Immigration and Naturalisation Office for the Netherlands) (2007), Brochure on ‘Inburgerings-examen: voorwaarde voor naturalisatie’, April 2007, retrievable from , accessed 10 December 2008. 14  IND foresees the possibility of publishing some sample questions on but has not done so yet.

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with the society than the retention of own culture. The implication of this shift for non-EU nationals is twofold. First, long-term residents who wish to become citizens need to pass the civic integration examination, a condition that does not vary between non-EU and EU nationals. Only those who can demonstrate a good level of Dutch language and who have serious medical problems are exempted from the examination.15 The second aspect concerns the family reunification for the family members of non-EU residents need to learn Dutch language and ‘culture’ before they even reach the territory. The Civic Integration Abroad Act which came into force on 15 March 2006 provides that foreign nationals who wish to form a family with someone in the Netherlands have to take the civic integration examination abroad.16 Failure to pass this examination results in an automatic failure to obtain a residence permit.17 Since EU law bans any further conditions from being imposed on EU nationals in terms of residence, they are exempt from these procedures. Moreover the EU Family Reunion Directive (2003/86/EC) leaves open the future establishment of integration criteria, thus Turkish immigrants are negatively discriminated compared to EU nationals in the Netherlands. Even those who obtained Dutch citizenship are disadvantaged compared to EU nationals whose family members could follow them without further conditions. As Vink (2005) argues in that particular case EU citizenship does create an anomaly where EU nationals are privileged even compared to Dutch nationals and that Dutch nationals living in another member state are more privileged than those who stay in their country. This example is very telling since it points both to the weaknesses and strengths of European citizenship. It is clear that European citizenship creates what Bauböck calls a ‘trichotomy’ among residents and thus aggravates the exclusion of TCNs. Nevertheless, it is also capable of making a change in favour of some groups: being an EU national, in this case, considerably undermines the implication of national legislation and rules out the imposition of integration criteria. It is noticeable in the Dutch experience that both roads to a more secure status – the acquisition of the permanent residence permit and the naturalisation 15  IND (Justice, Immigration and Naturalisation Office for the Netherlands) (2007), Brochure on ‘Inburgerings-examen: voorwaarde voor naturalisatie’, April 2007, retrievable from , accessed 10 December 2008; IND (2006), Brochure on ‘Naturalisatie’ , September 2006, retrievable from , accessed 10 December 2008. 16  IND (2006b), Brochure on ‘Basisexamen inburgering inburgeren in het buitenland’, [The civic integration examination abroad], March 2006, retrievable from , accessed 10 December 2008. 17 On 15 July 2008, Amsterdam District Court ruled that a Moroccan woman who wishes to live with her husband in the Netherlands should not be required to first pass the civic integration examination in her country of origin. The Court argued that there is no basis for that practice in the Aliens Act 2000. However, in the time of writing, the requirement was not suspended.

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– have been severely restricted since 2000 (Groenendijk 2006, 28). Thus, the Netherlands once ‘the vanguard of ethnic minority politics now seems to be at the forefront of moves towards civic nationalism, even assimilation’ (Geddes 2003, 124). Germany Germany, with 9 per cent of its population born outside its borders18 is a de facto immigration country. Following the general trend in Europe, Turkish immigrants have begun to move to Germany in 1961 under the guestworker scheme and their recruitment was stopped twelve years later when Germany went into a period of crisis. Green (2001) argues that this decision actually lies in the creation of a permanent immigrant minority. ‘By removing the possibility of a future return to Germany, it has provided the incentive to remain and settle permanently’ (Green 2001, 26). Despite the obvious existence of ethnic communities, Germany has long denied its status as an immigration country – kein Einwanderungsland [not an immigration country] – and thus refused to devise coherent policies in contrast with the Netherlands. Until 1991 the legal channels for Turkish immigrants to obtain German citizenship were totally closed not least because Germany was conceived as a community of descent. In 1982, the same year as the official embracement of the Dutch Ethnic Minorities Policy, the centre-right Government in Germany continued to stress that the cultural differences between foreigners and Germans were unbridgeable and that giving them equal civil and political rights was undesirable (Lucassen 2005, 152). Thus the Government, giving emphasis on the likelihood that immigrants would return home, favoured policies that would keep them away from both the citizenship and the society at large. Though some of the measures could have been justified with reference to multiculturalism in today’s politics, and as Kymlicka (2001) argues, without the possibility of citizenship multiculturalism is merely discrimination. Following Koopmans et al. (2005) scheme the ‘guestworker’ approach can best be defined as segregationism. Although in practice they might both favour the retention of minority cultures, the philosophy behind is radically different. Multiculturalism as put by Kymlicka (1998, 38) seeks to renegotiate the terms of the stateimposed integration and to ensure a fairer ‘inclusion’. In contrast segregationism is defined ‘by exclusion from the political community of newcomers who do not share the ethno-cultural background of the majority society’ (Koopmans et al. 2005, 11) and aims to facilitate their eventual return.

18 Eurostat (2006) ‘Non-national populations in the European states, population and social conditions’, no. 8/2006, p. 2.

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Rights of Non-Citizens German law originally only guarantees the protection against the most extreme and explicit forms of racism. Hence, it does not cover other grounds of discrimination and other spheres of public life that are most likely to influence immigrants’ access to them (Koopmans et al. 2005, 47). As for the above-mentioned EU anti-discrimination Directives, Germany transposed them with a considerable delay and has finally adopted the General Act on Equal Treatment on August 1, 2006 following a warning from the ECJ. The Act expressly prohibits the discrimination against job applicants or employees on the basis of gender, race or ethnic origin; religion or belief; age; disability; or sexual orientation.19 However it does not cover nationality grounds. German example on anti-discrimination law reveals a crucial fact. The EU has enticed a convergence throughout the member states and has managed to ensure a common antidiscrimination practice within its territories. The counter-effect of this achievement is that with the exclusion of nationality as a ground for discrimination, the TCNs have been left out without protection. Koopmans et al. (2005) state that countries that are most unwilling to make immigrants into nationals are also those who differentiate more between the rights of citizens and non-citizens. The case of Germany turns this statement into a self-fulfilling prophecy when it comes to political participation. The attempt to extend local voting rights to foreigners in three länders in the late 1980s was found unconstitutional by the Federal Constitutional Court. The ruling was based on a passage that states: ‘All state authority emanates from the people’ and on a very restrictive interpretation of the term ‘the people’ so as to include only German people (Koopmans et al. 2005, 44). As Joppke (1999a) states the issue of local voting rights in Germany took the form of foundational debate over the meaning of citizenship and membership. The Court in its decision uphold that ‘the German citizenship was a prerequisite for electoral participation at all levels of the state’ (Ibid., 199). However, only a few years later it had to sustain the granting of local and European voting rights to foreigners from EU member states. A constitutional change occurred discreetly in 1992 (ibid., emphasis added). The situation in Germany is usually employed to affirm the relevance of national citizenship in order to ensure political integration. Nevertheless what goes unnoticed is that the total absence of voting rights for TCNs also reiterates the significance of the European citizenship. The differential treatment among EU and non-EU citizens cannot be explained with reference to the ‘German people’ for non-German EU nationals do not take part in its formation either. While Turkish nationals residing in Germany for twenty years cannot participate in the decisions affecting their neighbourhood, EU nationals moving next door can immediately. Hence, the demarcations separating EU nationals from non-EU nationals are underlined 19  For more information see the Act on .

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through the lack of local political rights. With the European citizenship, the exclusion becomes more visible and so does the ‘difference’. The practice of long-term residence permit in Germany is very close to the one in the Netherlands. Migrants can apply for it after five years of residence, however Germany does not include time studying or waiting for an asylum decision in this period. It is similarly dependent on the fulfilment of integration criteria which is again justified with the Directive providing such an option see Wiesbrock, Chapter 16 of this book). Thus so far, the direction of influence seems to be the other way around as Germany’s position during the negotiations on that Directive affected the provisions leaving space for integration conditions (Ibid., 22). Regarding family reunification to avoid repeating the same arguments over again, suffice it to say that the lack of EU involvement allows for very demanding family reunification conditions. German Nationality Law Although Germany is a relatively young nation-state, the idea of Volk is very well-entrenched. The 1913 Nationality Law has carried the imprints of the conceptualisation of the German nation as a community of descent based on jus sanguinis (Geddes 2003, 93). The development of a sizeable non-German minority from 1955 onwards has come to pose a big challenge to the preservation of the nationality law based purely on jus sanguinis (Ibid., 29). Considered as a part of the strategy to undermine the German Democratic Republic – by refusing to recognise its citizenship – the maintenance of the nationality law based on descent was geared to achieve the constitutional mandate of national unification. Hence, ‘[t]he unresolved national question allowed Germany to perpetuate the long-standing tradition of citizenship of descent’ (Joppke 1999a, 10). The first response to the problem has been provided by the Guidelines on Naturalisation [Einbürgerungsrichtlinien] in 1977. Although the guidelines offered a comprehensive set of criteria for naturalisation their fulfilment did not give an automatic right to naturalisation for ‘the granting of citizenship can only be considered if there is a public interest’ (as translated in Joppke 1999a, 201). It was made clear that: ‘The Federal Republic of Germany is not a country of immigration, it does not seek deliberately to increase the number of its citizens through naturalisation’ (as translated in Geddes 2003, 95). The immigrants aiming to be naturalised are expected to demonstrate a ‘voluntary and lasting orientation towards Germany’ (as translated in Green 2001, 30) which could not be fulfilled if the applicant was active in an ethnic association. Moreover due to the different practices and requirements of this criterion, it has been very arbitrarily implemented. The Reformed Foreigner Law [Ausländergesetz] which came into force in 1991 has opened the way for substantial changes to the practice of naturalisation. It introduced the so-called ‘as a rule’ naturalisation for the first generation with fifteen

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years of residence and after eight years of residence for second and third generation immigrants (Joppke 1999a, 202). Different from ‘as of right’ naturalisation, ‘as a rule’ naturalisation does not automatically endow one with citizen status once criteria has been fulfilled; it rather ensures that naturalisation is only denied in exceptional cases. Then, in 1993 the role of state discretion has been diminished by turning ‘as a rule’ naturalisations to ‘as of right’ (Ibid., 203). Moreover, in such simplified naturalisations, under certain exceptional circumstances – for instance nationals of states that do not allow the renunciation of citizenship – dual nationality is permitted. After the new Foreigner Law, the need to amend the citizenship law has grown inevitable. Finally, the new Nationality Law has been formed as a result of arduous political discussions and several proposals in 2000. Though the Foreigner Law in 1991 has launched significant steps towards the entrenchment of jus soli principle, it did not touch upon automatic attribution of citizenship at birth for children born to foreign parents. Thus the new Nationality Act lastly amended in August 2007 provides for; •

•

•

Automatic attribution of citizenship at birth for children born in Germany to nonGerman parents. At least one parent has to have lived legally in Germany for at least eight years prior to the child’s birth and been holder of a settlement permit.20 Nevertheless, the children reaching the age of 23 should choose between his/her original and German nationality. The reduction of the period of residence for naturalisation to eight years. A good command over German language and allegiance to the German constitution is expected. Dual nationality for naturalised citizens is allowed in cases of special hardship if being released from previous citizenship would cause significant disadvantages or unreasonable difficulties.

This last point starts my discussion of dual nationality practice in Germany. As a signatory party to the Convention on the Reduction of Cases of Multiple Nationality, Germany has interpreted it in a very restrictive manner. Domestic legal backing has come in 1976 with the Constitutional Court ruling that qualified dual nationality ‘evil’ (Geddes 2003, 94). Moreover, the German state has been keen on ‘forced Germanisation’ and has sought to develop diverse solutions instead of attributing citizenship at birth.21 Despite the reluctance on the part of German 20  In 2004, Germany amended its law by asking a settlement permit from the parents instead of a residence permit which was asked by the original law in 2000. The residence permit now required from the parents is dependent on integration. Hence, residency requirements as a condition for jus soli acquisition establish a strong link between nationality law and immigration law (De Hart and Van Hors 2004, 321). 21 Before the 2000 Nationality Law established the principle of automatic attribution at birth, an interesting proposal to avoid that was the so-called ‘children’s citizenship’

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authorities to allow dual nationality, in practice the number of naturalisations in which the applicant is not required to relinquish his/her nationality is increasingly high. As for Turks, the Nationality Law does not explicitly cite the case of military obligations under the heading of exceptions, but a large interpretation of the law would have covered it. Nevertheless, more often than not, the case is for them to relinquish their Turkish citizenship and to reacquire it immediately after obtaining German citizenship since the removal of restrictions from the part of Turkey in 1995.22 Not surprisingly, the naturalisation rate for Turkish immigrants has tripled in 1995, has peaked in 1999 and has continued after this with a slowly decreasing pace.23 The figures reveal that the naturalisation rate of Turkish immigrants has improved not due to the change in host country’s policy but due to the sending country’s policy. This becomes more significant in the light of the special rules for EU nationals that are provided explicitly by the Nationality Law. ‘Given the aim of increasing European integration, EU nationals are not required to give up their previous citizenship in order to become naturalized German citizens, if their country of origin does not require Germans to give up their citizenship to become naturalized citizens of that country’.24 The requirement of cultural assimilation for naturalisation is another dimension which determines a state’s position in the configuration of citizenship. A strong expectation of cultural assimilation would undermine the move towards the establishment of civic citizenship based on jus soli principle. Germany with its Nationality Act of 2000 imposes a very precise language criteria and loyalty to the constitution. The language requirement is deemed to be fulfilled if the foreigner passes the oral and written language examinations leading to the Zertifikat Deutsch. As for the knowledge of legal system and commitment to the constitution Germany has recently introduced in its legislation a naturalisation test.25 These procedures entail large similarities with the Netherlands. Another resemblance is the introduction of integration courses. In the case of Germany though it is a Government-sponsored course which addresses permanent residents who do not have an adequate level of German language or who cannot express themselves in simple German. Though the former category is entitled to attend (Staatszugehörighkeit rather than a Staatsanhörighkeit) which is not automatically granted but can be obtained with the parents application. For more information see Joppke (1999a). 22 This practice was made illegal in 2000 and the German authorities have begun to track down these cases (De Hart and Van Oers 2006, 339). 23  German Federal Ministry of Interior (BMI), ‘Welcome to Germany: Information for immigrants – Integration course’, 2005, available at:, accessed 10 December 2005. 24  German Federal Ministry of Interior (BMI) website. 25  Nationality Act of 2000, section 10, paragraph 4.

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the course the latter may be obliged to do so.26 The importance which is given to these integration courses can be revealed by the Nationality Act that allows for naturalisation after seven years for those who have successfully completed an integration course. However, not surprisingly EU nationals though entitled to take part in an integration course are not obliged to do so. In fact, it is made clear in the official discourse that EU nationals are not in the priority group for the courses. Moreover again following a similar policy with Dutch, Germany in the amended Residence Act requires non-German spouses of naturalised citizens to prove German proficiency in order to obtain a visa. Instead of repeating the arguments provided in the previous section for the Netherlands it is perhaps worth mentioning the frustration that this new law proposal has generated in Turkey. One of Turkey’s most mainstream newspapers announced the new law proposal in the cover page with its headline ‘Sheer Racism’27 a number of others made news explaining the details of the law and citing leader of the Turkish community: ‘They do not want any German citizens of Turkish origin, they warn the Turks to live with it or leave the country’.28 Germany has generously moved towards a more civic-territorial conception of citizenship. Its idea of integration, based upon the acceptance of the values of the Constitution and a fair knowledge of the German language is considered representative for liberal states by Joppke and Morawska (2003, 5). Despite these positive developments, the reactions to the new law proposal points to the fact that being in an unfavourable position in comparison to others undeniably fosters the feelings of exclusion. Conclusion It would be highly misleading to reach conclusions about the general trends of convergence of legislation based on two countries. Nevertheless, the move from the part of Germany, traditionally affiliated with jus sanguinis, toward a civicterritorial conception of citizenship can be assumed to reflect a broader pattern. Several studies conducted on the subject seem to support this view. Joppke and Morawska call this trend the ‘de-ethnicisation’ of citizenship which is based on the premises of the expansion of the practice of jus soli and the increasing tolerance for dual citizenship (Joppke and Morawska 2003, 18). Nevertheless those restrictions which appeared immediately after the facilitation of access to nationality reveal that this ‘de-ethnicisation’ has in fact been discontinued.29 26 BMI 2005, op. cit. (emphasis added). 27  Hürriyet, ‘Düpedüz Irkçılık’, 12 July 2007. 28  Turkish Daily News, ‘New German Policy Divides Families’, 2 July 2007, (emphasis added). 29 De Hart and Van Oers (2006) argue that throughout Europe states have facilitated the acquisition and retention of nationality by their nationals abroad. Thus in contrast there

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There seems to be a growing acceptance of second generation as citizens in contrast to restrictions for the naturalisation of the first generation. Naturalisation is increasingly conceived as a tool of immigration policy and seeks to control the entry into territory. Previously two distinct fields; migration control and immigrant integration are now conflated, and the integration domain is potentially subordinated to the exigencies of migration control (Joppke 2007, 8). Moreover, the concept of ‘naturalisation as a means of integration’ is apparently being replaced by another paradigm of naturalisation as the ‘crowning of a completed integration process’ (Bauböck et al. 2006a, 24). Accordingly, a tendency towards conceiving ‘integration’ as an obligation by the immigrant rather than a process that will be shaped mutually can be uncovered (Carrera 2006a, 6). This is most evident in the wording of Dutch official documents: ‘Once newcomers have arrived in the Netherlands they will be obliged to become further integrated’.30 The EU asserts its support for the significance of language proficiency in its 12th CBP: ‘Basic knowledge of the host society’s language, history, and institutions is indispensable to integration; enabling immigrants to acquire this basic knowledge is essential to successful integration’.31 Nevertheless, the CBP on integration appears to be taking ‘undue’ precedence over all other principles (Carrera 2006a, 15). The Commission also emphasises that integration is a ‘dynamic, two-way process of mutual accommodation’.32 However, the practice in these two member states implies an imposition. As Geddes argues ‘an air of compulsion and forced adaptation’ dominates the understanding of integration (Geddes 2003, 18). Our contention is that one should avoid considering integration as the end point that a society can reach. It should rather be understood as a non-linear, intransitive, intergenerational process – of mutual adaptation – than a program (Lucassen 2005, 19). The Commission, in its last Annual Report, confirmed that fostering integration as a genuinely two-way process is still a major challenge (2007, 8). This same Report also states that the Commission will explore various concepts that might have an influence on integration, including citizenship as a tool (2007, 10).This search makes more sense in the light of the inability of other measures such as the Directive on long-term residents. Unfortunately, so far, it seems to have had the more ‘perverse’ effect of scaling down (making access more difficult) rather than levering up the protection (by facilitating access to the status) of migrants (Groenendijk 2006, 35).

is a tendency of ‘re-ethnicising citizenship’. 30  IND (2006), Brochure on ‘Basisexamen inburgering inburgeren in het buitenland’, [The civic integration examination abroad], March 2006, retrievable from , accessed 10 December 2008. 31 European Council, Document no. 14615/04, 19 November 2004, p. 18. 32  Commission Communication, A community immigration policy, COM(2000) 757 final, p. 6.

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Given the mobility within the EU, nothing impedes a naturalised citizen, one who passed through these stringent integration procedures to settle in another EU country. Hence, maybe it is time for nation-states to realise that they are part of a Euro-polity and that hindering the participation of the legitimate members can only harm the social cohesion of this very polity. The proposals to extend European citizenship to TCNs could well provide a sustainable solution since the lack of rights is not only important in itself but also for its implications. It revives the national dichotomy of ‘alien’ and ‘citizen’ at the European level and tends to essentialise differences between European and non-European worlds. ‘European citizenship […] is pointing in the direction of becoming an exclusionary supranationality defining Europe by reference to the non-Europeans’ (Delanty 1996b, 7). However, Europe cannot be reduced to an essence. This raises ‘the urgency of the formation of a civic European identity which is embedded in political institutions, rules, procedures, practices and understandings’ (Kostakopoulou 2001a, 27). Hence, a (re)formulation of European citizenship which would include all its residents within its framework would constitute a major move toward a more democratic and inclusive Europe.

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PART II Citizenship and Integration: The National Arenas

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Chapter 5

The Impacts of EU Enlargement on Nation Building and Citizenship Law Judit Tóth

The negative results of the Irish referendum on the Lisbon Treaty have caused a deep crisis as regards European identity in a time when the current eastwards enlargement may dilute the birth of a genuine meaning of citizenship status at EU level (Dell’Olio 2005). What might have been the reasons for this and the consequences that can be expected? The dilemmas brought by the EU enlargement processes in relation to issues such as ethnicity, migration, borders and security (Spohn and Triandafyllidou 2003), and the weak public acceptance of a European demos and cohesion (Debardeleben 2005), can only be addressed and answered in a long-term perspective. This chapter intends to focus on what are the most significant impacts of the enlargement processes over the processes of nationbuilding and the nationality laws of the last acceding EU member states. The candidate countries Eurobarometer on ‘Public Opinion in the Countries applying for European Union Membership’, and which was conducted between September and October 2002 across the then candidate countries, showed that the average feeling among ten candidate countries was one of enthusiasm as regards Europeanisation (52 per cent of the respondents answered that EU membership would be a ‘good thing’ for their country, for 10 per cent it would be neither good nor bad and for 28 per cent it would be a ‘bad thing’). Only 37 per cent of the people expected more advantages than disadvantages coming out of EU membership. Further, 33 per cent of the respondents felt ‘very well’ or ‘well’ informed about their country’s accession to the Union, while 63 per cent expressed that they felt poorly informed. Beyond the absence of comprehensive information on the content, scope and potentials of EU membership, fears and ambivalence appeared too. Only 59 per cent of respondents from the candidate region agreed that Europe would be culturally richer with an increased number of member countries. On the other side, the net results of feeling and sharing a European identity (in contrast with a national one) was in average 19 per cent in comparison to the 21 per cent  European Commission (2002), Candidate countries’ Eurobarometer: Public opinion in the countries applying for EU membership, The Gallup Organization, Hungary, December 2002.  They included Bulgaria, Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Romania, Slovakia, Slovenia and Turkey.

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of EU 15 member states during the same year. Further, the level of national pride was the same in the population of the candidate countries and that in the EU 15 (85 per cent). However the degree of European pride and identification with Europe was rather different: the average across the citizens of the candidate countries was higher (79 per cent) than in the EU 15 (62 per cent). On the basis of these results, one could argue that the population in the candidate countries presented at that time a strong European pride supporting Europeanisation. That notwithstanding, their awareness and/or knowledge about the EU remained low. Further, their attachment to their own language, culture and national identity would be a strong competitor to the European cohesion and identity (34 per cent of respondents expressed that they were afraid of losing their own country’s national identity and culture as a consequence of EU membership) (Manchin 2002). The new member states present other peculiarities affecting directly or indirectly the legal, cultural, historical and moral bond of individuals to the state which find their more acute expression in nationality law. In this context, the fresh re-establishment of national sovereignty is a common denominator among them. It is rooted either in communist or colonial past (e.g. Malta and Cyprus), from which they newly obtained their sovereignty and independence. Moreover, statehood has been rather weak in most of these countries, which present peripheral positions or disintegrative process. Within a short period of time after obtaining independence these countries needed to set up new democratic and public authority instruments in order to restore prior states despite of the dissolution of federal states (Czech Republic, Baltic States and Slovakia) or to determine their own statehood framework (Slovenia). The continuation of formal independence in Poland, Bulgaria, Romania or Hungary did not make this reform process any easier. The newborn democracies required the demarcation and delimitations of frontiers which called for the adoption of new constitutional structures, the creation of nation-state symbols and the enactment of nationality laws. All these nationbuilding efforts in each ‘Unitarian state without autonomous units’ (Kaiser 2006) might well explain the existence of strong bilateralism and centralisation of public power, a weak local self-governments and a low degree of sensitivity towards heterogeneity of the population (autochthon communities, ethnic, linguistic and religious minorities) (Tóth 2004). Furthermore, the development of these constitutional democracies also involved the emergence of various controversies. The process of nation-building is based on two ‘core national doctrines’ (Banner 2004); the cultural and the   In a parallel level, the social challenge has remained vitas even in post-accession period, and the actors in democratic control (such as national parliaments, local communities and civil society) cannot compensate the executive power upgraded by the enlargement processes (Ágh 2004).   Venice Commission (2005), ‘Evaluation of fifteen years of constitutional practice in central and eastern Europe’, Collection Science and technique of democracy, no. 40, (Strasbourg: Council of Europe Publishing).

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democratic/constitutional doctrine, the combination of which aim at establishing an operative mixture of liberal and national values. The pre-political cultural doctrine of nationalism lies indeed in a cultural rather than a political claim. National movements are motivated by a desire to assure the existence of a community, to preserve its ‘mainstream’ culture, tradition, language, rather than merely to seize State power. On the other hand, the democratic constitutional doctrine locates the principle of popular sovereignty at the core of national thought. Nationalism calls for popular mobilisation and obedience with the specifically democratic appeal of popular sovereignty. Nationalist politics of these newly independent states has also deeply influenced kin-minority relations as well as the social inclusion/exclusion of national, ethnic minorities and the integration of migrants. Despite of the virtual dichotomy of the cultural or political realms of the nation, concepts and ongoing discussions on the definition of ‘nation’ need to be mainly related to the political domain (Kántor 2007). The ‘nation’ is not only a category of analysis; it is also one of practice. It does not function as a way to denote, characterise or designate, but rather as one to promote, mobilise and legitimate (Brubaker 2004). In brief, ‘the nation’ (and its building processes) is not an ethnographic or structural fact, but a political claim, a value-concept used in practice to signal a normative expectation or a certain normative project. However, the weak character of the nationhood in new member countries has been accompanied by a strong legal acceptance of international standards within a relatively short period of time. The latter have included, for instance, the implementation of all important liberties and freedoms, civil, social and cultural rights in their own legal systems. To this we need to add the transfer of human rights commitments in each accession state’s constitutions. Further, all the new member states have ratified the non-discrimination rules, the ban on mass expulsion, the right to (preserve) citizenship and the granting of the latter in a facilitated way to stateless, the prevention of statelessness and obtaining citizenship by birth. It is worth here to highlight that the European Convention on Nationality (1997) was not part of the Community acquis. However, and although there is not a unified European trend in this respect, the procedural guarantees that it foresees in relation to nationality law and the liberalised or tolerant attitudes that it presents as regards dual citizenship can be detected in a majority of the new member states legal systems. The long and rigorous process of applying for EU membership additionally includes an evaluation procedure of the ways in which candidate states respect the principles of liberty, democracy, human rights and fundamental freedoms as well as rule of law. Indeed, neither the conditions stipulated in Articles 6 and 49 TEU, nor the Copenhagen criteria of December 1993, refer directly to any standards in relation to nationality law. However, EU membership does require that candidate   Parliamentary Assembly – Council of Europe in 2003-2006, Doc.1336 (2003); Resolution, 1735 (2006) Recommendation, Doc.10762.

Table 5.1

Rati.cation by EU member states of the most relevant legal documents on non-discrimination, nationality and ethnicity Charter for R egional and M inority Languages

EU 15 member states

Finland, Luxemburg, The Netherlands

Austria, Denmark, Germany, Finland, Luxemburg, The Netherlands, Spain, UK

N ew member states

Cyprus, Romania

Cyprus, Czech Republic, Hungary, Slovakia, Slovenia

Framework Convention for the Protection of N ational M inorities Austria, Denmark, Germany, Finland, Ireland, Italy, The Netherlands, Portugal, Spain, Sweden, UK Bulgaria, Cyprus, Czech Republic, Hungary, Lithuania, Malta, Poland, Estonia, Romania, Slovakia, Slovenia

European Convention on N ationality Austria, Denmark, Germany, The Netherlands, Portugal, Sweden

Bulgaria, Czech Republic, Hungary, Romania, Slovakia

UN Convention on Status of Stateless Persons

This page has been left blank intentionally

12th Protocol, European Convention on H uman R ights

UN Convention on Prevention of Statelessness

Denmark, Finland, Germany, Greece, Ireland, Italy, Luxemburg, The Netherlands, Spain, Sweden

Austria, Denmark, Germany, Ireland, The Netherlands, Sweden, UK

Bulgaria, Hungary, Latvia, Lithuania, Slovakia, Slovenia

Czech Republic, Latvia, Romania, Slovakia

The Impacts of EU Enlargement on Nation Building and Citizenship Law

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countries have achieved stability of institutions guaranteeing democracy, the rule of law, human rights and respect for protection of minorities. The latter criteria cover several issues and dimensions related to equal rights among nationals regardless of the way in which they obtained the nationality of the state, equal protection before the Courts and the law, respect for principles of naturalisation, facilitation in the granting of citizenship to stateless and recognised refugees, restrictions of arbitrary deprivation of nationality, genuine links to the state of nationality and non-discrimination, all of which are provided as human rights obligations in a set of legal documents (see Table 5.1 for a state of ratification of the most relevant legal documents on non-discrimination, nationality and ethnicity as of October 2008). The European Commission’s Progress Reports that were issued in the process towards membership went often into details on stateless inhabitants, equality of citizens and the pressure on Baltic countries regarding the legal status of non-citizens. As Table 5.1 shows, the new member states often undertake human rights commitments ‘more seriously’ than other EU 15 member states (Tóth 2007a). This attitude of ‘taking by assault’ human rights standards has contributed to a formal, sceptical and externally urged acceptance of legal commitments instead of a deep and internalised influence that would actually affect social and political values in these new democracies (Tóth 2007b). The issue of nationality law strongly relates to the effects of international migratory movements. In new EU member states the laws on nationality cannot be understood or disentangled from the consequences of (forced) emigration in the past. Most of these countries have traditionally constituted ‘sending migration countries’ and have therefore presented a very large diaspora abroad and a wide returnee inflow. Indeed, the status of second- and third-generation emigrants has determined the main focus of attention in nationality law, instead of that of immigrants from other regions and cultures. There are at least three main components of the reluctant transformation in the migration status of these countries. First, the nationality legislation has become a key instrument of restitution, nation-building and a deterrent for ‘new immigration’. For this reason nationality laws have been subject to constant and very dynamic transformations and legislative amendments during the last two decades. Second, the absence of integration and pro-migration policies in the new EU member states (perhaps with the only exception of the Czech Republic) proves the continuance of the official role of ‘transit countries’ in what concerns migratory movements. However, the reality is that after years of being transit states, a majority of them have already become de facto destination countries. The shift in migratory status has urged the development of public policies addressing the allocation and provision of public services to immigrants (such as housing, public education, health care, language and vocational training). Yet this political shift may be hindered by the fact that emigration from these states to other EU member states and overseas have remained (locally) significant because of the unemployment

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rate and comparative advantages in labour market. Despite the fact that the enlargement has not been accompanied by a dramatic internal-mobility potential for labour-related purposes, the transitional arrangements/measures applied by some EU 15 member states to limit access to employment by new member states’ workers may contribute to prolong the non-existence of an integration policy for third-country nationals in the new member states. The principle of reciprocity might well constitute a side-effect of these temporary restrictions. Third, the last acceding EU member states have launched a nation-building policy since the 1990s as a dominant form of social institutionalisation at macrolevel upgrading the interactions among national, regional and local actors (Halder et al. 2007). Beyond numerous implications, ‘it goes ahead at least on three connecting tracks that relate to nationality law’ (Tóth 2000). The access to certain employment, social, political and cultural-related rights require a focus on nationality as a reinvented status, something which was omitted for decades in workers’ internationalism. National legislation all too often excludes non-citizens from access to the public sector, political rights/participation, access to social allowances, right to work, etc. Instead of constituting a mean of direct exclusion, language acts as an indirect obstacle at times of labour market participation as well as a condition for naturalisation of non-natives residing in the country across the majority of new member states. The question then rises as to how to determine who is a genuine member of the (ethnic) nation. This is the essence of kin-state (diaspora) policy. The kinstate policy appeared as in early 1990s as a consequence of the diversity of the population and the existing ethnic communities living across the borders. It has been also strongly influenced by foreign, regional, migration, neighbourhood and nationality law and policy. For instance, there is a rich toolkit for kin-state activities in measures dealing with visa and the so-called ‘small local border traffic’ (Tóth 2006), the quasi citizenship status for kin-minorities (Majtényi et al. 2004) as well as other normative instruments falling within the context of the European Neighbourhood Policy (ENP). The debates surrounding the nature and scope of these policies have provided some public clarification about the ways in which national identity has been constructed as well as how the Government, and political opponents, define their own position towards ethnicity and diversity. The political strategies adopted have been greatly influenced by their expected effects over the electorate and potential voters. Measures facilitating the naturalisation or involvement of kin-minorities may increase support and voting potential of the parliamentary parties at stake. This joint game explains why so many states have adopted a kin-minority, repatriation and/or dual citizenship policy or similar laws (e.g. Hungary, Romania, Poland, Slovakia and Croatia) (Ieda et al. 2006). The ramifications of nation-building efforts in these member states should however be also taken into account at EU level. Furthermore, the exclusionary (towards non-native, non-ethnic and/or nondiaspora applicants) and inclusive components (preferences for kin-minority, expatriated persons due to the changing nature of the borders, former nationals and

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their descendants) constitute an amalgam of common features characterising the legislative settings on nationality in these countries. Naturalisation requirements have been often extended to include a language proficiency test and the introduction of exams on national constitutional issues. This has been accompanied by an increase in the length of legal residence that is required before being allowed to submit an application for naturalisation. Deprivation of citizenship has also become a one-off legal entitlement which was often implemented against naturalised persons. Loyalty of nationals and usage of Government policy through deprivation of citizenship has practically ceased in the region. Finally, the tolerant regulation on dual citizenship of expatriated persons, diaspora or kin-minority members are in close relation to the nation-building policy, too (Tóth 2005). Table 5.2 below intends to provide a short summary on upgrading figures, and some of the reasons behind, on the acquisition and deprivation of the nationality in a selection of new EU member states. Although the absolute numbers of acquisitions are hardly comparable, a significant growth of applicants can be detected during the accession phase. Data on deprivation of citizenship are often not available, but new member states make no use of the latter as a mean of historical injustice or a sin committed against political opponents. Concerning the set of exclusive measures of nation-building, the acceptance of immigrants in the new EU member states remains below the EU general average. According to the recent Migrant and Integration Policy Index (MIPEX) (Niessen et al. 2007), the scale of acceptance is evaluated on the ways in which immigrants have access to employment, family reunification, long-term residence, nationality, political participation and the quality of antidiscrimination regulations. Naturalisation represents an indispensable mean for integration, but most countries still do not facilitate the naturalisation of first generations of migrants. European-born children most often face unfavourable additional requirements for becoming citizens in their country of birth. A majority of citizenship oaths and ceremonies do not involve requirements that can exclude migrants from participating or receiving their citizenship. While few countries allow migrants to hold dual citizenship, deprivation of nationality of non-born citizens is still possible on the basis of very insecure rules. As Table 5.3 shows, it is overall rather difficult for applicants to meet the requirements which apply for the acquisition of nationality. The stability of residence status frequently is not in balance to these difficulties. Finally, the status of multiple citizenships is generally tolerated, yet with some important exceptions. On the basis of the MIPEX, member states can be divided into two main groups; rigid integration countries or integrative countries. All of the new EU member states belong among ‘the less’ or more rigid accepting group, which the MIPEX rates as being below 50 per cent, together with Austria and Greece. Not surprisingly, the nationality of less integrative states, as that of the last acceding EU member states, is much more ethnic than civic citizenship oriented. The nation-building efforts are indeed mainly directed towards kin-minority and culturally proximity as well as emigrants’ descendants

T able 5.2

Statistics on the acquisition (including restoration) and termination (deprivation) of nationality

M ember state

A cquisition

Deprivation

T rends

Estonia

Between 1992 and 30 April 2005 a total of 133,555 persons were naturalised.

Between 1992 and December 2005 2,728 persons were deprived of Estonian nationality.

Latvia

Between 1995 and 2005 105,088 persons were naturalised.

–

Lithuania

Between 2002 and 2004 the number of naturalised and persons with restored nationality was 9,303.

Between 2002 and 2004 the number of deprivations was 2, 338.

The rate of stateless population decreased from 32 per cent to 10.4 percent from 1992 to 2005. The figure of naturalisation has increased since 2004 but in absolute figures it remains much below than growth in 1993-1998. This dropping relates to the introduction of a restrictive language proficiency exam. The rate of non-citizens of Latvia decreased from 28.2 per cent to 20.4 per cent from 1993 to 2005. The first wave of naturalisation was explained by information campaign in 1998. The second wave started due to EU accession, e.g. in 2004-2005 35,800 persons were naturalised despite of exam, language proficiency and high fee. Due to missing data, stringent nationality rules and the discretional power given to the President concerning the granting of nationality – a solid growth in applications can be seen.

Poland

Between 1992 and 2004 the number of naturalised persons was 13,229, and since them only in the last three years there have been 4,250 persons.

–

The naturalisation boom was registered at the beginning of 1990s due to restoration of citizenship of emigrants, termination of bilateral agreements non recognizing dual nationality and the Repatriation Act. The second wave relates to immigration and EU accession.

Hungary

Between 1998 and 2004 the total number of re/naturalised and persons re/obtaining the nationality were 42,118.

Between 1998 and 2004 a total of 5,367 persons renounced Hungarian nationality.

Since 1990 the number of naturalisation has continuously increased due to ethnic preferences, restoration of emigrants’ citizenship and termination of bilateral agreements non recognizing dual nationality despite of long bureaucratic procedure. The Act on Ethnic Hungarians living in adjacent states has inspired amendments in nationality law without changing its principles.

Slovakia

Slovenia

Czech Republic

Malta

Cyprus

Between 1993 and 2005 the number of persons who acquired citizenship was 117,353. Between 1991 and 2005 there were 232,711 persons naturalised.

–

This figure consists of facilitated naturalisation for 99,590 Czech citizens in 1993-1994. However the rate of non-Czech applicants increases during 2001-2003.

Between 1991 and 2005 4,803 persons were released from the Slovenian citizenship. –

This high number of acquisitions was explained by supplementary and corrective determination of prior Yugoslav nationals, migrants, regular and facilitated as well as exceptional cases of naturalisation. Its peaks were detected in 1991 and 2002-2004. This increasing trend had a peak in 1999-2001 and in 2004 due to restoration of emigrants’ citizenship, facilitated declaration of Slovaks and tolerant rule on dual nationality – and despite of language test and restrictive naturalisation requirements. The solid number of yearly acquisitions has increased since 2001 due to liberalisation of dual or multiple citizenship and the growth of registration of expatriated emigrants.

Between 1993 and 2005 the total number of re/naturalised persons, including recognition by declaration, was 54,252. Between 1990 and 2004 – the total number of persons who acquired nationality by naturalisation and registration was 5,755. Due to discrepancy between figures of naturalised, granted citizenship, marriage, second generation of emigrants and passport issuing for Turkish-Cypriots that are altogether about 80,000 persons, only one trend is clear: after accession to the EU the number of applications for citizenship more than doubled. For instance, in 2005 there were total of 4,000 applications pending, as there is a backlog of three years.

Source: The figures presented in this table are based on data provided in Bauböck, et al. (2007).

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T able 5.3

Citizenship on the grounds of regulation (M IPEX) Eligibility

Cyprus

25%

A cquisition Conditions 50%

Security of Status 20%

Dual N ationality 50%

Czech Republic

17%

69%

75%

25%

Estonia

17%

42%

20%

0%

Hungary

8%

45%

50%

50%

Latvia

8%

54%

0%

25%

Lithuania

33%

70%

10%

0%

Malta

0%

52%

20%

50%

Poland

8%

69%

60%

25%

Slovakia

17%

67%

10%

75%

Slovenia

17%

58%

50%

25%

Source: (Niessen et al. 2007).

excluding non-ethnic (non-native) immigrants and residents (Kovács and Tóth 2007). This rationale has appeared quite clearly in the various amendments affecting the nationality laws in these countries. Due to this ‘selective nationbuilding’ strategy, the multiple citizenship (of ethnic compatriots) has become more and more tolerated. However, the ex lege acquisition of nationality, or granting citizenship without genuine links to the kin-state, has been strongly debated. For instance in 2005 a referendum on dual citizenship for kin-minorities was held in Hungary which opened up wider issues related to national identity, State sovereignty and the legal bond of nationality (Tóth 2007c). Furthermore, the transposition of EC law on European citizenship status and on the rules applicable to various categories of TCNs (long-term migrants, students, refugees, protected persons, researchers and volunteers, etc.) has additionally meant a reluctant process in these countries. Due to incomplete or delayed transposition in their national legal systems infringement proceedings have been launched against some of the new member states. Along with the public visibility that any potential infringement proceedings might entail, the non-existence of a substantial public debate on national and European identity as well as on the need to implement comprehensive integration policies for migrants might facilitate that the un-equality brought by the transitional arrangements limiting the freedom to move of nationals from the last acceding member states may be brought to the forefront of the debate.

The Impacts of EU Enlargement on Nation Building and Citizenship Law

T able 5.4

111

Cumulative index in the EU member states

R igid Integration Countries

Integrative Countries

Latvia

30%

Ireland

53%

Cyprus

39%

Germany

53%

Austria

39%

France

55%

Greece

40%

Spain

61%

Slovakia

40%

UK

63%

Denmark

44%

Italy

65%

Poland

44%

Finland

67%

Lithuania

45%

The Netherlands

68%

Estonia

46%

Belgium

69%

Czech Republic

48%

Portugal

79%

Hungary

48%

Sweden

88%

Conclusions The new democracies have re-evaluated their own sovereignty and its attributes – symbols of statehood – and adopted various nation-building measures, such as the implementation of an official language law, new provisions on the rights and commitments of nationals and dynamic modifications of the laws on nationality. In fact these countries have aimed at (over)compensating the inherent weaknesses of their statehood and the missing integrity of the citizenry as a consequence of the processes of independence. The nation-building policy includes exclusive and inclusive means through laws on nationality, non-nationals’ status, kin-state, diaspora, expatriated persons and neighbourhood policy (Nyíri et al. 2001). However, the modification of nationality law is accompanied with redress for injustices in past, continuity of statehood, restorative citizenship and citizenship roots. Enlargement has uncovered the inconsistencies affecting nationality and identity in transition societies. While these states are adapting to European standards including human rights obligations and acquis (e.g. EU immigration law), their modernisation is often hindered by underdeveloped political culture, weak statehood, ethnical exclusion and absence of social and cultural absorbing or integrative capacity. The nationality laws have been modified in various waves,

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something which reflects these ambivalent nation-building and modernisation policies in parallel or overlapping procedures. Further, the nationality status has now strong competitors within the short adaptation period of 10-17 years: the European citizenship, the set of TCNs standing, minority and diaspora status through the non-citizen (resident stateless persons) and status law. Finally, conflicts amid concurrent trends can be observed although there are no public debates on national identity and the legal nature of nationality law. A shift of nationality law from exclusively domestic determination to become increasingly framed by international mechanisms is supposed to endanger the weak statehood and national sovereignty. Radical nationalism and anti-European sentiments and low ‘absorption capacity’ have also appeared at the same time when the ambivalent relationship to dual citizenship shows dilemmas as to whether these new demos are based on ethnic or civic nationality, or rather transnational citizenship. The frequent changes in nationality law constitute a characteristic feature in the region. Thus it will be only in the long run when we will be able to ascertain the extent to which civic nationality will have an influence over immigration, integration, acceptance, neighbourhood and the transposition of EU policies. Today the ethnic-based, returnee and kin-minority oriented nation-building policy determines neighbourhood relations (Tóth et al. 2008). Moreover the current ethnic citizenship excludes Roma, non-natives, foreigners and migrant workers (Tóth 2008) through normative instruments such as acts on language and nationality laws. Enlargement of the Union extends the political game as to where are the limits of European identity when involving the new member states. As Lom (2004) has rightly stated, For modern democracies are constructed upon a fine balance of trust and distrust. This distrust takes the form of a political skepticism about the virtues of one’s fellow citizens, a skepticism that is incorporated in institutional division, a separation between executive, legislative, and judicial powers, and indeed in the very idea of the rule of law. And this skepticism nourishes contemporary postmodern doubts about collective identity as well.

Chapter 6

Justifying Citizenship Tests in the Netherlands and the UK Ricky Van Oers

In order to become a full-fledged citizen via naturalisation, immigrants are usually required to be sufficiently integrated. Whether this is the case can be assessed using various criteria. In some countries, immigrants are assumed to be sufficiently integrated after a certain period of residence. An example is Belgium where, since 1 May 2000, the ‘willingness to integrate’ has been abolished as a requirement for naturalisation. Other countries appear to follow a different trend. Since the year 2000, various countries have introduced ‘citizenship tests’ as a requirement for naturalisation. In order to prove that s/he is sufficiently integrated to become a full member of society, applicants for naturalisation in the Netherlands and the UK have to show they have sufficient language skills and knowledge of society. This chapter addresses several questions. In literature, three models for naturalisation policy are discerned to justify existing naturalisation requirements: a liberal, a republican and a communitarian model (Neuman 1994, 238). Under which model can a citizenship test be best categorised? The second question is which citizenship model is reflected in the reasons put forward in political debates and policy documents for introducing a citizenship test. It should be noted that the various models do not provide a precise representation of naturalisation policies, since citizenship law reflects a society that embraces a variety of value systems, which seem inconsistent with one another (Schuck 1994, 323). Hence, in practice, societies combine aspects of the different models in their naturalisation policies (Neuman 1994, 241; Bellamy 2004, 7). Using the models of citizenship, however, is a useful tool to determine where the centre of gravity lies in naturalisation laws (Kostakopoulou 2003, 94). In this chapter, the models will function as a tool to define where the centre of gravity lies in the political debates leading up to the introduction of the citizenship tests in the countries under consideration, by analysing which arguments were used by politicians to defend the introduction of the tests.

 A citizenship test also forms part of the naturalisation procedure in Austria, Denmark and, as of September 2008, Germany.   Neuman (1994) also discerns two sub-categories, namely the unilateral and the bilateral liberal models.

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Citizenship T ests and M odels for N aturalisation Policy The Liberal Model In the liberal model, naturalisation is seen as a right for long-term residents. The liberal model uses a ‘thin’ conception of citizenship, in which membership merely is a legal status. Political participation is seen as an advantage, but the liberal model does not demand that all citizens participate equally in public political life. Nor does it require total identity between citizens and the resident population. The liberal model requires a political community with genuinely open access to citizenship and to the exercise of citizenship rights for all members of society (Bauböck 1994, 102). According to Carens (1998), only an as-of-right model for citizenship is morally permissible in a liberal democratic state. Since naturalisation is a right, that should be made available to all long-term residents, admission criteria should generally not go beyond a reasonably short period of residence (Bauböck 1994, 102). All extra conditions make access to citizenship harder and can not be defended with liberal arguments. Rubio-Marín (2000) defends an automatic conferral of nationality after a certain period of residence. Can a citizenship test be categorised under the liberal model? In the light of the above the answer is most likely no, but a lot depends on the general policy of linguistic training and education for immigrants. In case only few or costly courses are offered, a language requirement functions as a barrier for naturalisation and obtaining the nationality of the country of residence can no longer be seen as an immigrant’s right. In case immigrants are genuinely encouraged to learn the language of the country of residence without being deprived of their own language, the language requirement can be regarded as an incentive and a test for social integration (Bauböck 1994, 83). In the latter case, a language requirement does fit the liberal model, provided the level of linguistic competence that is demanded as a requirement for naturalisation is not that high that it becomes unattainable for the aspiring citizens. Can the requirement of having sufficient knowledge of society be justified under the liberal model? This also depends on the policy related to this requirement. In case a state provides for plenty of free or lost cost possibilities for education, the requirement will probably not stand in the way of a long-term residents’ right to citizenship. In such a case, the requirement of having knowledge of society might be justified even under the liberal model. However, according to Rubio-Marín (2000), such a requirement can only be justified in case it is applied to all the members of the democratic society, even the native born citizens, as a condition for the exercise of political rights. The Republican Model In the republican model political participation is the main purpose of citizenship. Polities are viewed as communities of values sustained by a notion of civic duties

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115

and engagement in the political life of the community (Kostakopoulou 2003, 95). Future citizens should embrace the civic republican ideal of the community and the community will select those immigrants who are likely to live up to the requirements of republican citizenship in the polity (Neuman 1994, 241). In the republican model, linguistic competence is seen to encourage political participation and effective integration (Kostakopoulou 2003, 102). A common language serves as a common medium of political discourse (Neuman 1994, 265). Linguistic competence is therefore an indispensable requirement for future citizens. The level of required language skills should be related to the needs of the republican project. Therefore, language skills that can be demanded under the republican model should be sufficient to acquire the information necessary to participate in the political process. Is knowledge of society required for an effective political participation? One could argue that such knowledge will foster political participation (Kostakopoulou 2003, 101). The knowledge of society tests may however not require more than is necessary to participate in a democratic society. Testing knowledge regarding a country’s constitution and political system can be considered to be justified in the republican model. The Communitarian Model In the communitarian model, societies are seen as communities with a strong identity which has been traditionally defined by the majority community and which needs to be maintained (Kostakopoulou 2003, 95). The state is seen as the legal embodiment of a national community, originated and grown from a shared history and the result of ongoing communal efforts and achievements, which has the intrinsic right to decide which immigrants have the right to enter and stay (Walzer 1983). In order to become a member, an immigrant will need to share the national identity. A certain degree of assimilation to the dominant cultural values or practices therefore is a prerequisite for naturalisation (Neuman 1994, 241). Language tests can easily be justified in the communitarian model, since language is seen as a prominent defining factor in national identity (Neuman 2004, 264). In order to preserve the identity of the nation, knowledge of society is considered to be indispensable in the communitarian model. Immigrants must earn their membership by showing commitment and working hard in order to familiarise themselves with the constitutional history and the nation’s traditions (Kostakopoulou 2003, 102). The content of knowledge of society test may therefore comprise much more than merely questions concerning the Constitution. Questions regarding history, values, rights, arts and crafts, sports and even cuisine can be justified in the citizenship test of the communitarian model.

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R easons Put Forward in Political Debates for Introducing the T ests The Debate in the United Kingdom On 12 April 2002, the Nationality, Immigration and Asylum Bill was introduced in the British House of Commons. The Bill contained a proposal to add as a requirement for naturalisation ‘sufficient knowledge of life in the UK’ in the British Nationality Act (BNA) 1981 and a proposal to make regulations to determine whether a person has sufficient knowledge of English, Welsh or Scottish Gaelic. Knowledge of one of these languages was already a requirement for naturalisation under the BNA 1981, but was not applied strictly in practice (Hansen 2001, 82). The Bill was drafted to implement the proposals for nationality, immigration and asylum reform contained in the Government’s White Paper ‘Secure Borders, Safe Haven’ of February 2002. According to the White Paper, the first challenge migration poses is to ‘our concepts of national identity and citizenship’. The White Paper presented a response to the riots in Bradford, Oldham and Burnley in summer 2001, which, according to the White Paper, could be ascribed to the lack of a sense of common values and shared civic identity. The White Paper also stated that knowledge of the English language could support the objective of developing a sense of civic identity and shared values. In order to ‘rebuild a sense of common citizenship’ light touch education for citizenship for those making a home in the UK, with a view to an examination for citizenship applicants would also be required. Upon presentation of the White Paper in the House of Commons, the Home Secretary stated that language skills and knowledge of society are necessary to contribute fully, by strengthening the ability of new citizens to participate in society and to engage actively in the British democracy. Reinforcing the sense of common identity and furthering political, social and economic integration into the British society are the main arguments put forward in the 2002 White Paper for the sharpening of the naturalisation requirements. The idea that community cohesion can be increased by demanding future citizens to have sufficient knowledge of language and society matches the communitarian model best. At the same time, the Government stressed that immigrants were not required to give up their own identity. The goal of the new citizenship policy would be to achieve integration with diversity, since the British society is based cultural difference, rather than assimilation to a prevailing monoculture.   Home Office (2002), Secure borders, safe haven, White Paper, available from , accessed 10 December 2008.   Ibid., p. 9.   Ibid., p. 32.   Ibid., p. 11. House of Commons, Hansard Debates for 7 February, Column 1027.   Ibid., p. 10.

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The Nationality, Immigration and Asylum Bill in the House of Commons On 24 April 2002, the Immigration, Nationality and Asylum Bill was debated in the House of Commons. Several MPs feared that the requirement of having ‘sufficient knowledge about Life in the UK’ was too broadly formulated. When the Bill was discussed in Standing Committee on 30 April, several amendments were put forward to explore what ‘sufficient knowledge’ of life in the UK means. MP Malins (Conservatives) asked to require a ‘basic’ knowledge of the history and Government of the UK. The Immigration Advisory Service put forward an amendment to require sufficient knowledge of ‘political, civic and multicultural’ life in the UK, since it deemed that demanding mere knowledge of ‘Life in the UK’ would leave open too wide interpretation. In her answers to the questions of the MPs, Minister Angela Eagle (Labour) stated that the phrase ‘sufficient knowledge about life in the United Kingdom’ will be put into primary legislation so that experts in education and tests can provide an appropriate curriculum for the level that is sought. A working group of relevant experts from the Department for Education and Skills and the Home Office was put together to decide on the details that will be dealt with in secondary legislation. Several MPs stated that the test should, in practice, not form a barrier for naturalisation. According to Simon Hughes MP, conventional tests are inappropriate for some people. He feared the requirement will operate as a barrier to citizenship and pleas for a similar process for ensuring that British-born adolescents are equipped with the same sufficient knowledge of life in the UK’. The Minister subsequently stated that the test of UK language and life is not meant to be exclusionary or intended to be hugely expensive. Citizenship courses will be provided at no cost for the applicant and the Government is willing to check in more detail how to accommodate people with children who want to attend classes. A balance needs to be achieved. To put at rest the concerns of Simon Hughes MP concerning the fact that those born in the UK can get by with less knowledge of their own country than applicants for citizenship, the Minister stated that there will be crossovers between the citizenship classes that will be taught to primary school children and the test for applicants for naturalisation. Debate concerning the Bill in the House of Lords  On 8 July 2002, the Bill is discussed in Committee in the House of Lords, where the same concerns regarding the requirement of ‘sufficient knowledge of life in the UK’ play a role. Like the MPs in the House of Commons, several Lords were concerned about the lack of clarity of the requirement. The concern about the current lack of language courses also played a role in the House of Lords. Furthermore, the opinion was expressed that, with regard to the language requirement, no conditions should be imposed

 House of Commons Standing Committee E, Column 017.  House of Commons Standing Committee E, Column 024.

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which are not imposed on UK citizens. However, some House of Lords members asked for an extension of the requirement. Viscount Bridgeman (Conservatives) stated that knowledge of UK history would be helpful. He also asked the Government to specify what the requirement to have knowledge of life of the UK comprises. To this end, an amendment was put forward, adding the criteria ‘political, civic, economic and cultural’ before ‘Life in the UK’. Lord Avebury (Liberal Democrats) agreed with the Viscount and stated that it is a good idea that people applying for citizenship have the fullest possible knowledge of life in the UK, including the matters mentioned in the Viscount’s amendment. Lord Avebury also expressed his doubts about ‘one size fits all’ tests concerning life in the UK, since the latter varies greatly from one region to another. Furthermore, he points at the major differences concerning people’s need to know about life in the UK according to their professions and occupations. In his reaction, the Under-Secretary of State for the Home Office, Lord Filkin, states that expert advice will be taken on what an applicant should be expected to know. The Home Secretary asked Professor Sir Bernard Crick to chair an advisory group of external people. He acknowledged the fact that the word ‘sufficient’ was imprecise and that it could imply a more onerous requirement than the Government intends.10 The new and the old  In September 2003, the independent ‘Life in the UK’ Advisory Group, chaired by Sir Bernard Crick, published its Report ‘The New and the Old’ containing advise on how the provisions in the Nationality, Immigration and Asylum Act concerning knowledge of life in the UK and of the English language should be implemented.11 In the first chapter of the Report, it is stated that the group sees its work as falling within the broader policy aim of the Government to encourage community cohesion. The thought that enhancing knowledge of society and language will create a sense of shared civic identity is still upheld.12 According to the Report, the requirement of sufficient knowledge of the English (Welsh or Scottish Gaelic) language, as it was applied under the old rules of the BNA 1981, was undefined and in application varied, often perfunctory and sometimes uselessly minimal and, therefore, unsuited for the changing needs of both employment and integration. The language requirement should, therefore, be more strictly applied. Hence, the variation in the application of the language requirement upon naturalisation would eventually lead to a sharpening of the requirement. The group advised that assessments of language skills should demonstrate progress which has been made from the starting point of the applicant, rather than 10 House of Lords, 8 July 2002, Column 453. 11  Home Office (2003), The new and the old; The report of the ‘Life in the United Kingdom’, Advisory Group, available from , accessed 10 December 2008. 12  Ibid., p. 8.

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striving for a uniform level of command of English for all applicants, regardless their background and previous level of education. Any ‘one size fits all’ approach is, according to the advisory group, unlikely to be successful. Those applicants who already have secure English language skills at ‘English for Speakers of Other Languages’ (ESOL) Entry 3 level will only have to take a citizenship assessment. Concerning the requirement to have sufficient knowledge of life in the UK, the Advisory Group suggested publishing a free ‘Living in the UK’ handbook. At the moment of publication of the Report, this handbook was already commissioned by the Home Office. According to the Advisory Group, future British citizens should be equipped with the knowledge which is needed to participate actively, that is knowledge relevant to the everyday problems of settling in and practical information about UK society and civic structures.13 However, when the Advisory Group defined what it means to be British, it appeared that it took more than mere knowledge of everyday problems and practical information to fulfil the requirement of ‘sufficient knowledge of life in the UK’. To be British, amongst other things, also means to respect the laws and traditional values of mutual tolerance, and to give allegiance to the state.14 Similar to the requirement to have sufficient knowledge of the English language, the Advisory Group was of the opinion that a ‘one size fits all’ approach regarding the fulfilment of the knowledge of life in the UK requirement is unsuited. The group recommended a flexible programme of studies that will lead to citizenship, since different categories of people with different attainments and different language skills seek naturalisation. People who already possess a sufficient level of English can study the handbook themselves, after which a short written test needs to be taken. The Report listed six different categories of subjects which need to be taught and learnt ‘in whatever order and depth is appropriate to a particular class’: British national institutions in recent historical context; Britain as a multicultural society; Knowing the law; Employment; and Everyday needs. The categories were mentioned in a descending order of difficulty. For persons who have been living in the UK for a long time, the last two categories will not be of much help. But, according to the Crick report, for persons who have insufficient knowledge of English the practical information of these categories may well be the starting point. Sufficient knowledge of life and language in the UK  In a written ministerial statement of 2 February 2004, Baroness Scotland of Asthal accepted the majority of the recommendations of the Crick Group on behalf of the Government.15 The Government agreed with the principle that the language requirement can be satisfied by showing that reasonable progress has been made. According to 13  Ibid., p. 10. 14  Ibid., p. 11. 15 Lords Hansard text for 2 February 2004, Columns WS13 and WS14.

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the Government, this means that applicants should be able to prove that they progressed by one ESOL level. Those with no workable English need to acquire at least a basic level of competence. Regarding the recommendation concerning free assessments and tuition, the Baroness stated that the Government cannot fund the potential cost of full implementation of this advice. However, she promised that the Government will study both the possibility of full implementation of this recommendation and possible alternative ways of targeting the resources of those most in need of help in acquiring linguistic skills.16 Since 1 November 2005, there are two ways in which intending citizens can demonstrate their knowledge of language and of life in the UK. Applicants for naturalisation who speak English at or above ESOL Entry 3 level standard can sit a ‘Life in the UK Test’. They will not need to provide separate evidence of language ability.17 In order to pass the test, applicants can study the ‘Life in the United Kingdom: A Journey to Citizenship’ handbook, which is prepared by members of the Crick group. The study guide costs ₤9.99. The test consists of 24 questions, out of which 18 need to be answered correctly. Everyone needs to take the test, excluding those above the age of 65 and those suffering from a long-term illness or disability which severely restricts mobility and ability to attend language classes and those who have a mental impairment which means that they are unable to learn another language. Tests can be taken at around 100 test centres throughout the UK. Taking the test costs ₤34. Applicants for naturalisation who are not yet at ESOL Entry 3 will be able to meet the new requirements by successfully completing a language course, involving learning materials which incorporate information about citizenship. In order to meet the requirements for naturalisation, they will need to show that they have progressed from one ESOL level to the next.18 The ‘Life in the UK’ test in the political debate after its introduction  After the ‘Life in the UK’ test was introduced, it has been subject of debate in Parliament on several occasions. In the House of Lords, the question was asked whether the Government was willing to invite Ministers and their advisers and Members of both Houses of Parliament to answer the questions contained in the new citizenship test ‘to evaluate whether the questions are well designed for testing the necessary attributes of British citizenship’.19 In the House of Commons, Liberal Democratic MP Lynne Featherstone asked the Secretary of State for the Home Department to place a copy of the test in the 16 Explanatory Memorandum to the British Nationality (General) (Amendment) Regulations 2005, no. 2785. 17  The new and the old, Appendix B, pp. 44-6. 18  Source: The Border and Immigration Agency, , accessed 9 November 2007. 19  Question asked by Lord Lester of Herne Hill (Liberal Democrats), Lords Hansard text for 28 November 2005.

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library.20 The Secretary answered he was not willing to do this, since this would enable people to learn the questions by rote and thus defeat the object of the test. He also pointed out that all the answers to the questions can be found through study of the handbook. On several occasions, questions were asked concerning the pass rate of the test. On 18 April 2006, the Minister answered that 24,613 people took the test since its introduction, of whom 70 per cent passed the test.21 In response to a question of Nick Clegg MP, the Secretary of State for the Home Department answered that since the introduction of the test until February 2007, the pass rate of the test has been 68 per cent.22 The average pass rate since introduction of the test was 68 per cent as well in April 2007.23 To ensure that those with a long-term future in the UK have the right skills to fully participate in the community, it was decided that immigrants who apply for indefinite leave to remain, as of 2 April 2007 need to pass the ‘Life in the UK’ test as well. Justifying the British citizenship test  During the Parliamentary debates of the Nationality, Immigration and Asylum Bill, the requirements to have sufficient knowledge of the English, Welsh or Scottish language and of life in the UK were the subject of controversy. Several MPs and Lords expressed the opinion that no conditions should be imposed on future citizens which are not imposed on UK citizens. Also, sufficient courses should be made available to make sure that immigrants are provided with the facilities to pass the tests. Demanding ‘home grown’ citizens to have the same knowledge as immigrants who want to acquire British nationality, is a condition which is required for the justification of a citizenship test under the liberal model. The same counts for the wish to ensure that courses are provided for and that costs will be compensated. This way, the requirement of having sufficient knowledge of language and society does not constitute a barrier to naturalisation, which still can be perceived as a right for long-term residents. MPs and Lords were also concerned with the content of the test. On more than one occasion, the Government wass asked to specify the meaning of the word ‘sufficient’ in the requirements of knowledge of language and of society. The wish to include knowledge of history and of political, civic, economic and cultural life in the UK was also expressed. A citizenship test which requires knowledge of topics which are not directly necessary in order to get by in everyday life, but a familiarisation with history and a whole range of other topics is better justifiable under the communitarian model. The Government also puts forward communitarian arguments. In the opinion of the Government, the test should be introduced in order to create a shared identity to prevent riots such as those that 20 House of Commons Hansard Written Answers for 11 September 2006, question 88519. 21 House of Commons Written Answers for 18 April 2006, Column 364W. 22 House of Commons Written Answers for 2 May 2007, Column 1680W. 23 House of Commons Written Answers for 12 June 2007.

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took place in 2001 from occurring, and to make people feel much more a part of the community. Republican justifications for introducing the citizenship test were expressed too. Several ideas concerning the content of the requirement to have sufficient knowledge of life in the UK were put forward aiming at the improvement of political participation of future citizens. The content of the ‘Life in the UK’ test as it was proposed by the Crick Group can be partially justified in the republican model, since knowledge of ‘British national institutions in recent historical context’, covering subjects such as the rise of parliamentary democracy, the electoral system, the role of the monarch, the prime minister, parliament and the cabinet and the role of the parties and their history since 1945, is suggested to be tested by the expert group. In the Crick Report, the liberal and the communitarian models are represented. The common use of the English language is seen as the most important means of creating a common culture with key values in common. To create a sense of ‘Britishness’ some knowledge of the history of the UK should, according to the Advisory Group, be included in the curriculum. These recommendations point in the direction of the communitarian model. In its definition of what it means to be British, the Crick Group stressed that British citizens need to respect the laws and traditional values of mutual tolerance. According to the Crick commission, to be British is to respect binding over-arching specific institutions, values, beliefs and traditions.24 Some of the Crick recommendations can be justified under the liberal model. The Group recommended that everyone should be able to pass the test. Free tuition and assessments should be provided for and applicants would not have to pass a uniform test, but should rather demonstrate progress which has been made from the starting point. Furthermore, a free study guide needed to be published. Most of the Crick recommendations have been accepted by the Government. A study guide has been prepared, although it is not available free of charge. There is no ‘one size fits all’ test, but the applicants can rather follow a course which is best suited for their level. Courses are available at many colleges across the UK. Furthermore, citizenship is taught at secondary school, which means that native born members of society are equally required to have the knowledge that immigrants need to have when applying for citizenship. This means that the requirement to have sufficient knowledge of language and life in the UK can, at least partially, be justified using the liberal model.25 The existence of the requirement does not seem to constitute a barrier for naturalisation. In case following an ESOL with citizenship course will become too heavy a financial burden for those who do not qualify for free tuition, the requirement to have sufficient knowledge of life and 24  Home Office 2003, p. 11. 25  It should be noted, however, that some authors defend the view that a citizenship test can never be justified using the liberal model, no matter how ‘liberal’ it has been put into practice (Carens 1989, 46; Bauböck 1994).

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language is no longer defendable under the liberal model. Currently, only people on benefits are entitled to free tuition. This could mean that immigrants who do not qualify for free tuition, such as immigrants whose income lies just above the level at which someone can qualify for benefits, are barred from acquiring British citizenship due to the costs of the courses. The Debate in the Netherlands At the beginning of the 1990s, a proposition to alter the Dutch Nationality Act was put forward in Parliament. At that time, naturalisation was seen as a means for integration, as a step towards completed integration. In the opinion of the Government, making access to nationality easier would further an immigrant’s integration. Therefore, the bill provided for the abolishment of the renunciation requirement and a reformulation of the language and integration requirement. Research conducted in 1988 had pointed out that the language and integration requirement was not applied in the same way in the municipalities. In more than 10 per cent of cases, not only speaking and understanding, but also reading and writing Dutch was tested (Heijs 1988). In the Government’s opinion, a more concrete formulation of the requirement would lead to a more uniform application, which would enhance equality and fairness in handling the language and integration requirement upon naturalisation. The Christian Democrats in Parliament were unhappy with the proposed reformulation of the language and integration requirement, which, in their eyes, did not demand enough of future Dutch citizens. They proposed to also demand written language skills and knowledge of the Dutch society. Such knowledge was deemed necessary, since acquiring Dutch nationality entails obtaining certain rights and duties, which, according to the Christian Democrats, meant that applicants can be expected to be committed to the Dutch society. Without knowledge of language and society, the naturalised citizens would also be unable to fully make use of their rights and obligations, such as the right to vote (MP Verhagen, CDA).26 Other political parties in Parliament, the liberal democratic D66, Green Left and the social democratic PvdA, strongly opposed to a stricter language and integration requirement.27 According to the Christian Democratic Minister of Justice, demanding written language skills would be discriminatory towards illiterates, persons who have had little education, elderly people and the handicapped. He did support the idea of demanding future citizens to have knowledge of Dutch society. 1998: A new bill is proposed  In 1998, the Government submitted a new proposal to amend the DNA in Parliament. The former bill was withdrawn from Parliament, because the political parties could not agree on the abolishment of the renunciation requirement. Since 1992, the requirement was not applied in practice and the 26 TK 1995-1996, 23594 (R1496), no. 23, p. 4. 27 Hand. TK, 21 February 1995, pp. 50-3200.

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numbers of naturalisations had risen considerably (Böcker et al. 2005). According to the Christian Democrats and the Conservative Liberals, the rise in the number of naturalisations clearly showed that acquiring the Dutch nationality had become too easy. The importance of acquiring the Dutch nationality was more and more expressed in ideological terms. According to the Christian Democrats, a report from the Social and Cultural Planning Office from 1996 had shown that immigrants had been obtaining Dutch nationality for pragmatic reasons, and not because they actually felt Dutch, which in their eyes was worrying. Dutch nationality should be something to be proud of (MP Verhagen).28 The Conservative Liberal VVD argued that Dutch nationality should not be something that should merely be seen as a nice extra. In 1997, the renunciation requirement was reintroduced. In the meantime, the Government introduced the ‘Alien’s Policy’, which emphasised the immigrant’s own responsibility for a successful integration. In 1998, the integration of immigrants therefore gained a more obligatory character. The Newcomers Integration Act (NIA) obliged newcomers to participate in integration courses ending with a test. Even though the test was meant as a mere measurement of the level of Dutch language that had been attained, the first step in presenting formalised integration tests to immigrants had been taken. Now the renunciation requirement had been reintroduced, the language and integration requirement became the main subject of discussion during the debates of the 1998 bill. The Christian Democrats were this time supported by the Conservative Liberal VVD and the small Christian parties in their wish to also demand written language skills of immigrants who wanted to become Dutch nationals. MPs of Green Left and the Social Democratic (PvdA) wondered whether someone who is not able to read and write Dutch is less Dutch than someone who can.29 The Dutch Secretary of State Job Cohen (PvdA) responded that future Dutch nationals need to be able to participate in society instead of being qualified for a certain type of education or to be able to function in certain posts. Higher language proficiency was therefore, according to Cohen, not required. Knowledge of Dutch society is required, since without that knowledge, an immigrant can not be considered to be integrated. However, when the Progressive Liberal D66 proposed to demand a certain level of reading skills from naturalisation applicants, it became clear that a majority in Parliament was in favour of a stricter language and integration requirement. In 2000, the 1998 bill was adopted. A Royal Decree concerning the Naturalisation Test was drawn up by the Government, prescribing naturalisation applicants to pass a test in which they have to prove sufficient knowledge of Dutch society and that they can speak, understand, read and write Dutch. The Decree goes further than the wish of Parliament to only demand reading skills and not the ability to write of future Dutch nationals. Parliament did however

28 Hand. TK, 17 February 2000, pp. 51-3185. 29 Hand. TK, 16 February 2000, pp. 50-3636.

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not make use of the possibility to comment on the Decree before its entry into force. The Dutch Naturalisation Test  The naturalisation test, which has to be passed before an immigrant can apply for naturalisation, can be taken at nine Regional Educational Centres (ROCs). A candidate has to pass a multiple choice test on a computer to prove s/he has sufficient knowledge of society and pass a language test which consists of four parts: speaking, understanding, reading and writing. The level of the language test is A2 in the Common European Framework of References (CEFR) agreed upon in the Council of Europe.30 The content of the naturalisation test is undisclosed, and the Government offers no possibilities for preparation. According to an official of the Ministry of Justice, the reason behind this is that ‘the purpose of the test is not only check to whether an immigrant has the proper knowledge to become a Dutch national, but also whether he has the right attitude. And that can not be learnt by heart’ (Groenendijk 2005b, 30). The test costs €260 in total, which has to be paid by the immigrant. For the naturalisation application itself another €351 will be charged. Naturalisation has become a pricey matter, especially when more than one person in a family seeks naturalisation. From a research conducted in 2006 it appears that from January 2004 until December 2005, only 55 per cent of the persons who subscribe for the test actually pass the complete test. This is partly due to the fact that a fair amount of subscribers eventually do not take part in the test. They are not willing or able to pay €260 for a test of which it is uncertain whether they will pass it or not (Van Oers 2006, 63). Not all immigrants who desire Dutch nationality have to pass the test in order to become a Dutch national. Persons suffering from a physical or mental handicap can be exempt from the naturalisation test if they are unable to learn Dutch within a period of five years. They need to prove this with a statement from an independent specialist, appointed by the municipality. Illiterates can be exempt after they have undergone a ‘feasibility investigation’ at the ROC of Amsterdam where it is assessed whether the illiterate is able to learn Dutch at A2 level within the next five years. For the feasibility investigation, €208 is charged. Persons who can prove that they have sufficient knowledge of Dutch language may also be exempt from the naturalisation test. Only diplomas of secondary school level or diplomas of a higher educational level qualify for exemption. Immigrants that pass the State Exam in Dutch language are also exempt. This exam is cheaper than the naturalisation test (€90 instead of €260), but its level is higher (B1 instead of A2). ‘Problematic Categories’  From research conducted in 2006, it appeared 30  , visited on 12 February 2008.

site

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that two groups of people are particularly affected by the introduction of the naturalisation test (Van Oers 2006, 130-132). A vulnerable group of immigrants, such as elderly people, persons with no or limited education and women who have fallen behind in their integration give up their wish to become a Dutch national due to the requirement to pass the naturalisation test. They are particularly put off by the level of the test and the requirement to have written language skills. Also, the price of the test, its undisclosed content and the lack of opportunities for preparation often play a considerable role in their decision not to take part in the naturalisation test. The absence of opportunities to prepare for the test and the high fees are also a reason for immigrants that have few problems integrating in Dutch society not to participate in the test. Especially immigrants who have learned to speak good Dutch at work or by participating in the Dutch society, but who have never learned to read or write Dutch properly, are deterred from taking the test. Price and level of difficulty are amongst the main reasons why immigrants falling within this ‘problematic category’ are deterred from taking the test. Instead of becoming Dutch nationals, they continue their stay in the Netherlands as aliens. The test clearly disadvantages weaker groups in society as opposed to groups who have little or no troubles integrating. However, this category of immigrants might also experience the existence of the naturalisation test as a requirement for naturalisation as problematic. Well integrated immigrants who do not have a Dutch diploma experience the obligation to take the naturalisation test as a requirement for naturalisation as very frustrating. Due to the narrowly formulated list of exemption grounds, persons who have resided in the Netherlands for a very long time, who have worked and raised their children in the country, and who, in other words, are generally very well integrated in Dutch society, are faced with the expensive and, in their eyes, insultingly easy naturalisation test the moment they want to become a Dutch national. A similar negative reaction is given by persons holding a Dutch diploma which does not appear on the list of diplomas that qualify for exemption and therefore are obliged to take the test.31 The naturalisation test in the political debate after its introduction  Since the introduction of the test, the question whether the level and content of the test have the value to match the acquisition of Dutch citizenship has hardly been addressed. The discussion concerning the level and content of the test is hampered by the fact that the content is undisclosed. The dramatic decrease of 70 per cent in the applications for naturalisation after the introduction of the test has not lead to debate in Parliament. Christian Democratic and Christian Union MPs did ask the Minister for Alien Affairs and Integration in 2003 to raise the 31 Diplomas at the completion of training for jobs such as security guard, welder or beautician will not lead to exemption from the naturalisation test, even though in order to obtain such diplomas, Dutch texts have been studied.

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level of language proficiency for naturalisation.32 Replacement of the naturalisation test  On 1 January 2007, the Integration Act (IA) entered into force, replacing the Newcomers Integration Act of 1998 (de Groot et al., Chapter 3 of this book). The Act introduces an integration exam, which newcomers are obliged to pass within a period of three and a half years. As of 1 April 2007, exactly four years after the introduction of the naturalisation test, this test is replaced by the integration exam. This means that the Netherlands requires newcomers to meet the same standards as future citizens. The integration exam consists of two parts, a central part and a ‘practice’ part. The central part consists of three different tests: an oral language test, an electronic practice test and a societal knowledge test, which cost €126 in total. The content of these tests remains undisclosed. The ‘practice’ part examines, via assessments or by judging a portfolio, whether an immigrant has enough knowledge of Dutch language to get by and costs €104. In total, the test costs €230, which is a little less than the price which had to be paid for the naturalisation test. The level of the test is level A2 of Dutch language, which is the same as the level of the naturalisation test. With the introduction of the integration exam in 2007, the list of diplomas on the basis of which exemption will be granted has been extended. Furthermore, passing the so-called ‘short exemption test’ will release the immigrant of the obligation to take the integration exam as a requirement for naturalisation.33 This test the societal knowledge test. The level of the short exemption test is higher than the level of the integration exam, B1 instead of A2, but its price is a lot lower: €81 instead of €230. By extending the possibilities for exemption, the harmful effects of the test for the category of immigrants for whom the test constitutes a superfluous requirement, have partially been annulled. Consequently, the feelings of frustration that lived among the category of evidently integrated immigrants who felt they were treated unfairly have been reduced. The harmful consequences that were produced by the naturalisation test for the category of immigrants who face more problems integrating in the Dutch society, on the other hand, will continue to exist. The level of the integration exam is the same as the level of the naturalisation test. Like the content of the naturalisation test, the content of the integration exam is largely undisclosed. On the other hand, newcomers will be given the possibility to take part in newcomer courses, which will allow them to prepare for the exam. Once an immigrant has passed the exam being a newcomer, s/he will not face extra integration requirements when applying for Dutch nationality. The price of the integration exam is still above €200. Therefore, less well-off immigrants will still be put off by the price of the test.

32 TK 2004-2005, 29 800 VI, no. 101, p. 34. 33  Information available from: , accessed 29 May 2006.

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Justifying the Dutch citizenship test  The battle of the Christian Democrats in the Dutch Parliament to introduce an enforcement of the language and integration criterion started at the beginning of the 1990s. The Christian Democrats initially focused on the importance of the future citizens to be able to make use of their right to vote, which can be considered to be a republican argument for a stricter language and integration test. MPs of liberal and social democratic parties and the left throughout the parliamentary deliberations stressed that a new language and integration requirement should not be discriminatory towards certain categories of immigrant, such as illiterates and persons who have had little education. This argument fits the liberal model well. At the end of the 1990s, a new focus on the emotional side of acquiring Dutch nationality shows that the communitarian ideology started to play a role in the Dutch debate. According to the Christian Democratic and Conservative Liberal parties, Dutch nationality should be something to be proud of. Applicants for naturalisation even needed to feel Dutch. Both parties thought this goal can be reached by making access to Dutch nationality harder by demanding not only oral, but also written language skills. Eventually, a majority in Parliament supported an enforcement of the language requirement. The requirement to have knowledge of society was broadly supported from the beginning. When it became apparent from the Decree concerning the Naturalisation Test that applicants for naturalisation need to demonstrate to have sufficient writing skills, this did not give rise to debate, whereas this was not agreed upon in Parliament. The content of the naturalisation test has not been subject to discussion in Parliament, neither before nor after the introduction of the test in 2003. Such a discussion is hampered by the fact that the content of the test is not published and is kept undisclosed in order to be able to test not only an applicant’s knowledge, but also his/her attitude. From research conducted in 2006 it appears that only 55 per cent of all persons that subscribe for the test eventually pass the test. Naturalisation, which, in the eyes of the Government is the ‘first prize’ in the integration process, is hardly a right for long-term residents, especially for those of whom taking a test can not reasonably be expected. For illiterates, the obligation to undergo an expensive feasibility research is a huge barrier (Van Oers 2006). Also, a group of vulnerable immigrants facing problems integration in Dutch society is barred from naturalisation, due to the introduction of the naturalisation test and the way it has been put into practice. The Dutch naturalisation test is not defendable under the liberal model. The replacement of the naturalisation test by the integration exam does not change this conclusion. Conclusions Both the Netherlands and the UK have, respectively in 2003 and 2005, introduced a citizenship test as a requirement for naturalisation. In both countries only oral

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knowledge of language was required for naturalisation before the introduction of the citizenship test. In both countries this requirement was not applied strictly and uniformly. This was used as an argument for its formalisation, something which has lead to a considerable increase in the level of required language skills for future Dutch and British citizens. Which citizenship model can be best used to justify the introduction of the citizenship tests? We have seen that in the Parliamentary debates in both countries liberal, republican and communitarian arguments to introduce the tests have been used. In the UK, the main argument was to create a sense of shared civic identity to prevent riots such as the ones that took place in Bradford, Oldham and Burnley in 2001 from occurring again. The idea to maintain or reinforce the identity of the majority against threatening forces by increasing knowledge of life and language is communitarian. However, the way in which the new requirements for naturalisation were eventually put into practice does, at first sight, not seem to be entirely unjustifiable under the liberal model. An inexpensive study guide is published and the test, which is not very expensive either, can be taken at many locations. The pass rate is 70 per cent. Unlike in the Netherlands, there is no ‘one size fits all’ test. People who do not master the English language sufficiently can follow a course. The conclusion can be drawn that naturalisation is still a right for long-term residents for whom the new requirement does not seem to be a huge barrier. Whether this remains so now the Government has cut back means to provide for free tuition, is subject to further research. In the Netherlands, the reinforcement of the language and integration requirement was initially proposed to ensure that future Dutch nationals would be able to make use of the rights and obligations attached to Dutch citizenship. However, the emotional value of Dutch citizenship was more and more stressed as the debate on the amendment of the Dutch Nationality Act proceeded. Dutch nationality needed to be something to be proud of and future Dutch nationals had to feel Dutch. This line of reasoning fits the communitarian model. Unlike in the UK, the content of the Dutch citizenship test has not given rise to debate, neither in Parliament nor outside. The discussion remained limited to negotiations concerning the question whether future Dutch nationals should be able to read and write Dutch. The way in which Dutch parliamentarians treat the question what future Dutch citizens need to know in order to be sufficiently integrated to become a Dutch citizen can be compared to the way in which seaside visitors treat a large jellyfish, which is drifted ashore: they subject it to a thorough investigation, but do not even consider to go and stand in the middle of it.34 The way in which the test has been put into practice cannot be justified under the liberal model. Research has shown that the test constitutes a barrier to naturalisation for certain categories of immigrant. Naturalisation can, therefore, no longer be considered a right for long-term residents.

34  Comparison borrowed from Dutch historian E.H. Kossmann (1986).

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In literature, any extra conditions besides residence make access to citizenship harder and can not be defended with liberal arguments (Carens 1989; Bauböck 1994; Rubío-Marín 2000). Hence, according to some authors the naturalisation policies of both the UK and the Netherlands can not be justified under the liberal model. This has not prevented both countries from obliging immigrants that want to obtain a permanent residence permit to meet the same standards regarding knowledge of life and language as those applying for citizenship. This means that immigrants will have to meet the stricter integration requirement earlier in the integration process. Since the immigrants will have had less time to make themselves familiar with life and language of their new country, the negative consequences that especially the Dutch test is producing are likely to become even greater.

Chapter 7

Dual Citizenship as an Element of the Integration Process in Receiving Societies: The Case of Slovenia Barbara Kejžar

Until recently dual citizenship was considered to be ‘an undesirable phenomenon detrimental both to the friendly relations between nations and the well-being of the individuals concerned’ (Bar-Yaacov 1961, 4). There existed an overall consensus in the international community that this issue needed to be gradually reduced and abolished. All efforts of national and international legal order were directed to this aim. Since it was also assumed that possessing a second citizenship could have negative effects on a process of assimilation of immigrants into host societies, many receiving countries required from their potential new citizens to renounce their previous citizenship(s) in order to express an exclusive loyalty to their new homeland. It was considered that the international community has found a satisfactory solution for this problem and the issue of dual citizenship was subsequently pushed at the margins of academic research. But dual citizenship proved to be more tenacious than was originally assumed. Instead of gradually declining, the international community witnessed just the opposite trend: the number of dual citizens was and still is constantly increasing. International norms against dual citizenship proved to be inefficient due to vague interpretations and almost non-existent implementation. A successfulness of national requirements for renunciation of original citizenship was limited with many exceptions to such rule and ambiguous administrative practices. States were apparently not so eager to limit this phenomenon as could be assumed from their proclaimed citizenship and integration policies. The main culprit for such changed attitude is more and more complex and interdependent global world, where the existing predominant ideas of membership in a certain (political) community no longer reflect the reality of competing loyalties and affiliations in society. Dual citizenship is becoming more and more tolerated and even an acceptable form of membership in a political community. Many assumptions about negative effects of this phenomenon on various social processes are nowadays considered to be exaggerated or even false. Also concerns that possessing dual citizenship may seriously impede inclusion of immigrants in receiving societies by encouraging an attachment to foreign culture(s) and language(s) proved to be misleading and incorrect.

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In the context of a changed attitude toward dual citizenship, this chapter examines the role of dual citizenship in integration processes of immigrants in receiving societies. The first part of the chapter sets a framework for further discussion by addressing a changing attitude toward dual citizenship together with the main factors and underlying arguments that contributed to these changes. In the second part of the chapter I shall discuss the role of dual citizenship in integration processes and argue that dual citizenship could positively influence the integration of long-term immigrants especially in two ways: by facilitating a naturalisation process and by encouraging (further) integration in receiving society. As an example I present the case study of Slovenia and its policy of dual citizenship in the integration processes of immigrants. The conclusion offers some suggestions for future research on the role of dual citizenship in integration processes which, as I will argue, should be complemented with an individual level analysis and should be also concentrated on the subjective meanings and interpretations that individuals grant to this element of integration policies. From Undesirability and Gradual A bolishment… In one of the first comprehensive studies on dual citizenship from 1961 its author Nissim Bar-Yaacov (1961, 266) concluded that ‘the status of dual nationality is undesirable and should be abolished’. This statement clearly encompasses the attitude toward dual citizenship in a period when domestic and international legal order generally treated this phenomenon as something unnatural and as anomaly in the modern nation-state system, since it ‘challenged assumptions of the convergence of national political identity, territory and sovereignty’ (Koslowski 2000, 139). Recommendations for possible solutions of this issue, which were mostly put forward by jurists, were underlined by the same common aim: to reduce and eventually abolish dual citizenship. The international community has for that reason prescribed in the preamble of the Hague Convention of 1930 that ‘every person should have a nationality and should have one nationality only’. International cooperation for reducing dual citizenship by common treaties continued also in the post-war period, but codification of international norms increasingly centred on regional level, most extensively in Europe (Koslowski 2000, 140). The result of such European regional cooperation was the 1963 Council of Europe’s Convention on the Reduction of Cases of Multiple Nationality and on Military Obligations in Cases

  For more of the proposed solutions to dual citizenship categories refer to BarYaacov (1961).   Convention on Certain Questions Relating to the Conflict of Nationality Laws, Haag, 12 April 1930, in force 1 July 1937, available from , accessed 11 December 2008.

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of Multiple Nationality, whose main intention was to introduce, on the basis of equal standards, an automatic mechanism leading to the loss of the citizenship of one state party in case of acquisition of the citizenship of another state party (Kojanec 2000, 38). However, all these international instruments were mostly nonlegally binding. States have therefore regulated the question of dual citizenship also through bilateral agreements and treaties, whose purpose was in most cases two-fold: to determine the exclusive citizenship of persons who have acquired two citizenships, or to regulate the performance of the military service by dual citizens in only one of the countries whose citizenship they posses (Bar-Yaacov 1961, 82). Furthermore, as Aleinikoff and Klusmeyer (2002, 23) observe, also national citizenship laws reflected this intolerant attitude toward dual citizenship – most prominently in widespread renunciation requirements that compelled future citizens to surrender all their prior allegiances. Which were (and still are) the main arguments and concerns against the dual citizenship status? Aleinikoff and Klusmeyer (ibid.) observe that such declining attitude derived either from a conceptual logic of traditional national citizenship – presenting national loyalties as exclusive and indivisible – or from concerns about possible (inter)national instability and practical difficulties in various realms. The most sensitive concern regarding dual citizens that has resonated in many public debates was their non-exclusive and divided allegiances to two nation-states. Distinguished French jurist Proudhon had already in 1848 claimed that ‘no one can have two citizenships like nobody can have two mothers’ (in de Groot and Schneider 2006, 65). Such analogy was founded on the idea of portraying citizens as a family, whose members are ‘linked to one another irrevocably by blood or some equally binding historical integument’ (Schuck 2002, 61). Dual citizenship was sometimes viewed also as analogous to bigamy, especially when citizenship was defined as an exclusive relationship between a state and an individual where, like in marriage, a certain level of exclusivity or at least clear priorities of commitment are expected (Ibid., 84). The myths of dual citizens’ disloyalty and deceit often made them suspects of espionage and of support for enemies in possible interstate conflicts, because they were usually obliged to serve in armies of other countries in order to fulfil obligations deriving from their other citizenship. All these activities led to serious concerns that dual citizens represented a serious threat for national security and subsequently also a threat to international stability and interstate peaceful relations. As Spiro (2002, 22) comments, ‘[t]he hostile world in which the smallest spark might ignite conflict could not tolerate the instability posed by dual nationals’.   Convention on Reduction of Cases of Multiple Nationality and on Military Obligations in Cases of Multiple Nationality, Strasbourg, 6 May 1963, in force 28 March 1968, available from: , accessed 11 December 2008.  Examples of bilateral agreements regarding dual citizenship are provided in BarYaacov (1961, 82-87).

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Further arguments against dual citizenship were founded on the principle of equality as one of the basic features of a community of citizens. Dual citizens were namely accused of having a status superior to their fellow citizens because they have an exit option – another country to which they can readily emigrate if conditions in the first deteriorate radically – and they have an advantage of voting in two states (Aleinikoff and Klusmeyer 2002, 30-31). Spiro (2003, 139) observes that there existed several types of risks possibly associated with non-resident dual citizen franchise: irresponsible voting, uninformed voting, undisciplined voting and perceived challenges of large-scale out-of-country electoral logistics. Last but not least, arguments against dual citizenship often originated from the practical difficulties regarding diplomatic protection and possible conflict of laws regarding civil status (marital status, adoptions and other family obligations), inheritance, taxation and similar confusions that could arise from an obligation of dual citizens to respect two national legislations (Aleinikoff and Klusmeyer 2002, 33-36). …T oward T olerance and A cceptance of Dual Citizenship Despite all legal norms on international and domestic level that were intended to reduce and eventually abolish dual citizenship, the last several decades have witnessed a significant proliferation of dual citizenship (Feldblum 2000, 475, 478). Hansen and Weil (2002, 2) emphasise two phenomena that have led to an increasing incidence of dual citizenship and rendered its prevention impossible: migration and equalisation of rights between men and women. Firstly, emigration and immigration often result in an intermingling of national citizenship laws, leading to the expansion of dual citizenship (Ibid.). For example, children can obtain dual citizenship when they are born in states that recognize the principle jus soli and whose parents are citizens of states that base the acquisition of citizenship on the principle jus sanguinis. In such cases children will acquire citizenship of the state, where they were born, and the citizenship of the state of their parents. If parents are citizens of different states that both favour the principle jus sanguinis, the child will acquire even three citizenships. Thus, even if all nations were to oppose dual citizenship, it would tend to increase directly along with international human mobility, unless the states would adopt uniform standards for acquisition of citizenship.

  Spiro (2003, 139) argues that none of these perceived risks ultimately justifies the perpetuation of residency restrictions on the franchise. He further adds that also other objections to the non-resident dual citizen franchise, such as undermining political participation in countries of residence or the equality norm of modern citizenship, do not justify the imposition of such restrictions.   For more on the difficulties related to diplomatic protection of dual citizens and bilateral agreements that regulated this issue refer to Bar-Yaacov (1961, 63-77, 146-158).

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The second major factor for the increase in number of dual citizens may sound rather surprising: i.e. the post-war rise of women’s movements. The widening of women’s suffrage and subsequent movements for equal treatment encouraged countries to gradually abandon the so-called principle of single citizenship in family according to which a foreign woman, who married a citizen of her new country, automatically acquired the citizenship of her husband and at the same time lost her original citizenship (de Groot and Schneider 2006, 66). This system has been eventually dismissed with the enforcement of the principle of gender equality also in matters of citizenship and replaced with the so-called dual system according to which ‘neither the celebration nor the dissolution of a marriage between one of its nationals and an alien, nor the change of nationality by the husband during marriage, shall automatically affect the nationality of the wife’, as stated in the Article 1 of the Convention on the Nationality of Married Women from 1957. Similarly, the principle of paterlineal ascription of citizenship – principle according to which legitimate children received father’s citizenship and children born out of wedlock received mother’s citizenship – was gradually dismissed in favour of gender equality in the transmission of citizenship to children (Koslowski 2000, 142). Aleinikoff and Klusmeyer (2002, 73) add the third factor that contributed to a growing incidence of dual citizenship, which is the ineffectiveness of the very international norms that were intended to prevent it. This result, although paradoxically, was predictable because of a lack of enforcement mechanisms and sanctions. The changing attitude of states toward dual citizenship was present also in their citizenship national policies. Although many countries tried to discourage dual citizenship by insisting on more or less strict renunciation requirements, there existed several exceptions to such provisions that loosened a restrictive purpose of such provisions. Furthermore, actual state administrative practices often deviate significantly from existing formal principles of individual states’ citizenship laws (Koslowski 2000, 147). The presence of such contradictions between official policy and administrative practices led to more and more tolerant attitude toward dual citizenship. Recent reforms of national citizenship legislation present, despite different ways of dealing with this issue, one common feature: a growing formal acceptance and recognition of the positive effects of dual citizenship. Most of the sending countries, for example Turkey and Mexico, have recently amended their expatriation policies and are now permitting their emigrants to maintain/regain their citizenship after naturalising in another state. Also many receiving countries  On the nationality of married women and children refer to de Groot (2005b).   Convention on the Nationality of Married Women. Opened for signature and ratification by UN General Assembly Resolution 1040 (XI) of 29 January 1957. Signed in New York on 20 February 1957, entered into force 11 August 1958, available from , accessed 11 December 2008.

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have relaxed their prohibitions on dual citizenship, especially by eliminating renunciation requirements in the naturalisation process with the aim to facilitate political incorporation of immigrants (Koslowski 2000, 143). Formal international norms are gradually, but persistently following changes in domestic laws and administrative practices. Koslowski (2000, 148) observes that changing national citizenship laws, ambiguous and open interpretations and contradictory administrative practices on the part of European states undermined the restrictive message of the Council of Europe’s Convention on Reduction of Cases of Multiple Nationality of 1963. Even the Council itself did not strictly follow the guidelines, set by the Convention, since its bodies adopted several documents that contradicted such policy of reducing dual citizenship (de Groot and Schneider 2006, 70). In the context of such an ambiguous and subsequently inefficient policy of regulating the issue the member states of the Council adopted in 1993 already the third protocol to the 1963 Convention – the Convention was already in 1977 complemented with two additional protocols10 – which indicated a change of perspective regarding this issue inside the Council of Europe by emphasising that ‘conservation of the nationality of origin is an important factor’ for achieving the objectives defined in the Protocol. This changing approach was reaffirmed – although with more loosening provisions – with the adoption of the European Convention on Nationality11 in 1997 that relinquished the regulation of dual citizenship to the member states and their internal laws. The only two situations, where member states explicitly expressed a need for toleration and allowance, were dual citizenships acquired by birth or automatically by marriage. Kojanec (2000, 40) argues that adoption of this Convention led to a situation where ‘no general rule can be said to exist with regard to multiple nationality’ and where the regulation of dual citizenship remains subjected to sovereign decision of the states. All described changes in domestic citizenship policies and international norms that are encouraging more tolerant and positive attitudes toward dual citizenship cast certain shadows of doubt on the seriousness of all concerns and arguments that are raised against dual citizenship. Namely, if opponents were right, there should   Second Protocol amending the Convention on the Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationality, Strasbourg, 2 February 1993, in force 24 March 1995, available from , accessed 11 December 2008. 10  Protocol amending the Convention on the Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationality, Strasbourg, 24 November 1977, in force 8 September 1978, available from , accessed 11 December 2008; Additional Protocol to the Convention on the Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationality, Strasbourg 24 November 1977, in force 17 October 1983. 11 European Convention on Nationality, Strasbourg, 6 November 1997, in force 1 March 2000, available from , accessed 11 December 2008.

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be a demonstrable relationship between the rising incidence of dual citizenships and the kind of systematic problems that these opponents predicted. However, as Aleinikoff and Klusmeyer (2001, 84) observe, the phenomenon of dual citizenship is ‘hardly likely to subvert international order fundamentally’. Quite the opposite, Aleinikoff and Klusmeyer (Ibid., 85) claim that the existence of dual citizens appears to add very little to interstate relations due to the following factors: first, practice of citizenship tends to be local, in that most citizens are concerned mostly about local matters such as schools, costs of housing, availability of day care, where it matters little if a person holds a single or dual citizenship; second, it is difficult to identify situations around the world where tensions approaching hostility exist between nations with significant numbers of shared dual citizens, for example USA is not on the verge of war; finally, dual citizenship appears to be more an individual than a group phenomenon and it generally cannot mobilise collective emotions at any time. Therefore one’s second citizenship appears to be more an aspect of identity than practice. Furthermore, the premise about exclusivity of national loyalty is also misleading. Aleinikoff and Klusmeyer (2002, 29) note that such claim for ‘exclusive and absolutely paramount loyalty is the hallmark of totalitarism’. Martin (2002, 39) similarly argues that a national allegiance is far more complex phenomenon than the opponents’ one-dimensional understanding of loyalty suggests. Modern liberal states nowadays tolerate or even encourage the existence of wide range of competing loyalties and affiliations in families, companies, local communities, religious communities, sports clubs, etc, that are usually not seen as incompatible with allegiance to a certain national community. Martin (ibid., 40) further notes that a national allegiance does not exclude a loyalty to another nation. This can be most evidently seen from complexities of emotions and commitments felt even by those naturalising citizens who have taken the oath seriously. Most of the concerns about negative consequences of dual citizenship were apparently overstated and exaggerated. Aleinikoff and Klusmeyer (2002, 27) observe that a majority of the arguments ‘rest on only normative inferences and hypothetical conjectures rather than on empirically documented case examples’. However, certain points of potential tensions can still be identified. For example double voting rights or assuming high public office in the country of one’s second citizenship – situations that are often recognised as possible limitations or exceptions to the rule of allowing dual citizenship. But both of these situations can be resolved by bilateral agreements or special regulatory measures, such as voluntary exclusion in the matters directly implicating the interests of their country of alternate citizenship (Spiro 2002, 30-31; Spiro 2003). Nevertheless, as Aleinikoff and Klusmeyer (2002, 29) observe, certain arguments against dual citizenship still merit careful consideration because they resonate in many public debates and they raise issues that need to be taken into account at times of regulating dual citizenship. To sum up, the phenomenon of dual citizenship is gradually, but persistently, being tolerated in informal administrative state practices or even formally

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allowed in national legislations of a growing number of countries. Aleinikoff and Klusmeyer (2002, 36-37) recognise several positive effects of this phenomenon: first, it reflects deeply felt affiliations, connections and loyalties with both of the countries that dual citizens see as important and maybe even foundational to their identities; secondly, it promotes inclusiveness by enabling dual citizens to have a fundamental right to representation; thirdly, it facilitates free movement between states because dual citizens are no longer subjected to varying qualifications for admission in their other country; and finally, it promotes naturalisation and integration of long-term immigrants. Implications of Dual Citizenship for Integration Processes in R eceiving Societies The intolerant and declining attitude toward dual citizenship that persisted until the beginning of the 1990s determined also the role of dual citizenship in the policies of integration of immigrants in receiving societies. It was argued that dual citizenship impedes the integration of immigrants, as it encourages an attachment to a foreign culture and language (Hansen and Weil 2002, 7). Following this logic, keeping the original citizenship meant also remaining loyal to the country of origin and its cultural practices, and that could subsequently led to divided loyalties and insecure identities. The immigrants with dual citizenship were considered to be torn between two societies and they did not fully belong to either of them. Koslowski (2000) argues that this view was largely based on the classical model of assimilation, in which the identity of immigrants and their descendants was understood as leading in only one direction: from home country to receiving country. It was generally assumed that eventually the immigrants’ descendants, if not immigrants themselves, would come to consider the host country to be their home country and they would lose interest in the ancestral homeland. In this case dual citizenship would only hinder integration (assimilation) of immigrants because it would make impossible for them to break all emotional ties with their homeland. Most receiving countries have therefore retained or introduced in their national legislations renunciation requirements closing doors for all the potential candidates that were not prepared to renounce their previous citizenship and subsequently confirm the exclusive loyalty to their new country. There existed certain legal exceptions and informal administrative practices that enabled individuals to possess a second citizenship, but nevertheless dual citizenship was not systematically encouraged. However, with an increasingly tolerant and positive attitude toward dual citizenship and the reconsiderations of policies of inclusion of immigrants in receiving societies we are also witnessing the redefinition of the role of dual citizenship in integration processes of immigrants. Nowadays, the logic behind this relationship appears to be entirely opposite: dual citizenship is seen as an encouragement for integration processes. Several authors observe that there exists

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a direct link between toleration of dual citizenship and naturalisation: absence of tolerance for dual citizenship supposedly results in lower naturalisation rates – the most typical example is Germany – and subsequently less successful integration (Hansen and Weil 2002, 10; Aleinikoff and Klusmeyer 2002, 37; Spiro 2002, 27-28). The renunciation requirement namely creates disincentives of both material and psychological nature. By renouncing their original citizenship future citizens may lose several material rights. They may be deprived of pension allowances to which they have paid contributions for many years or lose the right to inherit or to own property (Hansen and Weil 2002, 10). Serious disadvantage may also result from the requirement of the country of origin to repay all the state’s costs for a person’s education and they may not be allowed to hold certain jobs (Hammar 1990, 103). Moreover, they may have to apply for a visa each time they want to visit their relatives in their home country and this is often connected with relatively high expenses. In certain cases, acquiring citizenship in another country can be considered an action of betrayal to the country of emigration, and in extreme cases, a former citizen may not be allowed to return even as a visitor and his personal property may be confiscated (Ibid.). Furthermore, also emotional and symbolic costs of the renunciation of original citizenship must be taken into consideration. They may continue to identify themselves as citizens of another country and do not wish to renounce this aspect of their identity only because of assimilatory pressure from a receiving society (Hansen and Weil 2002, 10). They may fear that their renunciation of original citizenship may be considered an action of disloyalty to the home country also in the eyes of their relatives and they may loose an ability to pass citizenship to the following generations (ibid.). De Groot and Schneider (2006, 72) similarly observe that a lack of understanding and support from their family and relatives discourage also a second and a third generation of immigrants from the renunciation of their original citizenship, despite the fact that they were born and raised in a receiving society. All these moral dilemmas and possible negative effects are not a matter of concern for those who can retain their original citizenship together with their new citizenship. They usually do not lose any rights in their country of origin and they can at least theoretically work and live in both countries. Therefore, they decide more easily to naturalise in a receiving country and that enables them to integrate in a receiving society as an equal member of that society with full citizenship rights and belonging duties. The tolerance of dual citizenship therefore represents one of the possible relevant factors that might influence a decision of immigrants to naturalise. However, the analysis of the role of dual citizenship in integration processes should not be limited only to a process of naturalisation. The advantages of dual citizenship are important also through the entire process of immigrants’ integration, which in my opinion begins with a first contact of the immigrant with a receiving society and ends with a subjective belief of an individual immigrant that s/he is an equal member of a receiving society and that s/he can at the same time retain his/her

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ethnic and cultural distinctiveness.12 Immigrants as dual citizens are presumably not in such a great manner subjected to assimilatory pressures, since they do not have to formally renounce their original ethic and cultural distinctiveness and they can retain all their emotional ties with their social networks in their country of origin. By allowing dual citizenship their receiving society creates – at least on a paper – a more tolerant atmosphere for their dual national loyalties and ethnic identifications. Also being equal with all other citizens regarding rights and duties – assuming that an immigrant would not decide to acquire the citizenship of a receiving country if s/he would need to renounce his/her previous citizenship – probably has a certain impact on the integration of immigrants,13 who are no longer seen as second-class citizens. However, the overall implications that the status of dual citizenship injects into the entire integration process are still a matter of more hypothetical assumptions rather than empirical findings. Despite recent enthusiasm in the literature regarding the positive effects of dual citizenship for naturalisation and social integration, there exist certain considerations that need to be taken into account when discussing this issue. As some authors (for example Soysal 1996, 20) have stressed, there is not as much enthusiasm as we could expect among immigrants about acquiring the citizenship of a receiving society and its presumed advantages. This certain lack of interest for acquiring citizenship is present even in those countries that tolerate, or even encourage, dual citizenship. We should therefore ask ourselves the following question: what are the real advantages of having a second citizenship? Soysal (1996, 20) observes that the majority of immigrant populations in Europe enjoy a permanent residence status, which is a status not very easily distinguishable from holding formal citizenship in terms of the rights and obligations that it confers. Permanent residents have access to a set of social services and economic rights which are almost identical to those available to citizens. They are also at times entitled to (full) civil and political rights, in some countries including voting right at a local level (Soysal 1996, 21). Furthermore, we should also not ignore the meaning of EU citizenship. This supranational form of citizenship grants to all citizens of the member states of the EU some additional rights – the most attractive is certainly the right to move and reside freely within the territory of the member states – that are complementary to rights deriving from the national citizenship

12 Any integration process cannot be understood as one-way linear process. During this process the immigrants have probably many ‘ups and downs’ and some of them will probably never feel like an equal member of the receiving society. Moreover, integration into receiving society may not even be the goal of an individual immigrant. All these different perceptions and wishes of immigrants need to be taken into consideration when talking about integration. 13 As Bešter (2003, 288) observes, ‘a segregation in the area of citizenship, political and (as a rule) social rights leads to the development of different and closed cultural or ethnic communities within the country’. She (ibid.) adds, that ‘this is definitely not beneficial for the cohesion of society and equal development of all parts of such a society’.

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of every member state (Martiniello 2000). This opens up a dilemma which calls for more scientific discussion and study: is the extension of citizenship rights to permanent residents and supranational forms of citizenship really enough for a successful integration, or has dual citizenship comparatively still more positive effects on immigrants’ integration? T he Case Study: Slovenia Slovenia constitutes an especially interesting case study to be addressed. Indeed, its integration and citizenship policies are not too often subject of analysis. Slovenia is not a traditional immigration country and does not have many experiences with integrating foreign citizens. As Medved (2005, 467) argues, Slovenia had no historical legacy of its own citizenship law or its own concept of political membership, with the only exception of the so-called ‘republic’ citizenship in the former Yugoslavia. The former Yugoslavia namely acknowledged a special kind of dual citizenship: the citizenship of every individual republic, also called ‘republic’ citizenship, and the federal Yugoslavian citizenship that was conferred to every person possessing the republic citizenship (Mesojedec Pervinšek 1997, 21-22). With the declaration of the independence on 25 June 1991 Slovenia adopted the so-called Citizenship of the Republic of Slovenia Act,14 which defines in its Article 39 that ‘any person who held citizenship of the Republic of Slovenia and of the Socialist Federal Republic of Yugoslavia … shall be considered citizen of the Republic of Slovenia’. This provision establishes a legal continuity with previous legal orders, including the one of the former Socialist Federal Republic of Yugoslavia. Such reference to the former republic and federal citizenship subsequently raised the issue of other former Yugoslavian citizens, who were at the time of the independence’s declaration permanently living in Slovenia, but have possessed citizenship of another republic of Yugoslavia. Due to the circumstances, which already at the beginning of the 1990s indicated ethnic tensions in the former common state, Slovenia could not lean on the international legal practice of regulating citizenship in a case of succession, based on a principle of domicile and a possibility to opt between a citizenship of a predecessor state or a successor state (Mesojedec-Pervinšek 1997, 10). Furthermore, due to the emerging political and armed conflicts in the Balkans, Slovenia was not able to conclude any bilateral or multilateral agreements with other former republics that would regulate the status of this category of residents. The Slovenian state therefore (partially) resolved this issue unilaterally with its internal legislation. The first paragraph of Article 40 of the transitional provisions of the Citizenship Law reads therefore as follows: A citizen of another republic that had registered permanent residence in the Republic of Slovenia on the day of the Plebiscite of the independence and 14  Official Gazette of the Republic of Slovenia, no. 1/91-I, 25 June 1991.

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With this legal provision Slovenia enabled all citizens of other former Yugoslavian republics to acquire Slovenian citizenship under a simplified procedure, where only registered permanent residence and actual living on the specified day were required as conditions for a successful naturalisation. The reason for such liberal and quite generous policy of granting Slovenian citizenship is connected with a great wish of the new Slovenian state to get international recognition as an independent sovereign state, something which was depending on a consistent respect for democratic rules of citizenship and for other human rights (Medved 2005, 468). Even public opinion of that time supported such liberal policy of conferring Slovenian citizenship to citizens of the former common state – 65 per cent of the respondents agreed with such regulation of this issue (Komac 1997, 85). Also the citizens of the former republics demonstrated a great interest for Slovenian citizenship, as can be most evidently seen from the number of applications that were filed. There were exactly 174,168 applications for granting Slovenian citizenship in the accordance with Article 40 of the Citizenship Law, which represented at that time 8.7 per cent of the whole population of Slovenia (Mesojedec-Pervinšek 1977, 33). Most of these applications were resolved in a positive manner and until the beginning of 1992 the total number of Slovenian citizens increased in 170,996 persons more (Ibid.).15 All these new citizens were supposedly also dual citizens, because Article 40 did not provide as a condition for naturalisation procedure the renunciation of previous citizenship. However, this initial liberal policy of granting Slovenian citizenship, which evidently tolerated dual citizenship for long-term immigrants, was shortly after adoption of the citizenship law subjected to certain changes and limitations that indicated a shift toward a more restrictive citizenship policy. Only a few months after adoption of the citizenship law the Slovenian Parliament adopted several amendments to the law,16 which among other restricted acquisition of Slovenian citizenship under the Article 40 to all persons who had committed a criminal offence against the Republic of Slovenia and its basic constitutional values and principles – this provision was especially directed against those officers of the former federal army who were actively engaged in the aggression against Slovenia

15  Several applications were resolved also in subsequent years. In 2005, there were already 171,127 persons who acquired Slovenian citizenship according to Article 40 of the Citizenship Law (Medved 2007, 232). 16 Act Amending the Citizenship of the Republic of Slovenia Act, Official Gazette of the Republic of Slovenia, no. 30/91-I, 14 December 1991.

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in June 1991 – and for all the individuals who could pose a threat to public order, security or defence of the state. Another more serious example of the exclusion of the former Yugoslavian citizens from the community of citizens represents the so-called case of the ‘erased’.17 Those foreigners that did not succeed in obtaining Slovenian citizenship under Article 40, because either they did not file an application or their application was rejected, were erased from the Registry of Permanent Residents by the Ministry of Internal Affairs on 26 February 1992 in accordance with the provisions of the Aliens Act.18 This erasure of 18,305 people19 annulled all their previously acquired rights and made them legally and formally equivalent to immigrants who cross borders illegally (Zorn 2005, 136). Zorn (Ibid.) argues that this secret erasure was carried out by the Ministry of Internal Affairs without any legal basis. This has been later on acknowledged also by the Constitutional Court of Slovenia, yet it has been completely ignored by the Slovenian authorities which until today have not implemented any satisfactory solution to this problem.20 Furthermore, from 1993 to 1996 there were also several legal proposals and the initiative for referendum on the abolishment of dual citizenship, especially for those who acquired citizenship under Article 40.21 However, these proposals were mostly politically motivated because they did not offer any relevant arguments for abolishment of dual citizenship and they represented immigrants only as scapegoats for many social problems, such as for example unemployment, higher criminal rates, a misuse of social transfers, a danger for national security and public order. Dedić (2003, 39) argues that the reason for the emergence of this restrictive political discourse regarding dual citizenship of immigrants was connected with a process of national homogenisation and a definition of (national) community of citizens on the ground of ethnic belonging (jus sanguinis) that was present in all new post-socialist countries of Eastern Europe. 17  Refer to Zorn (2005); Dedić (2003). 18  Official Gazette of the Republic of Slovenia, no. 1/91-I, 25 June 1991. 19  In the context of renewed efforts of Slovenian authorities to resolve this issue, there appeared new statistics regarding the actual number of ‘erased’ people. The latest official document of the Ministry of Internal Affairs now claims that there have been 25.671 people erased from the registry. This document is available at , accessed 3 July 2009. 20 Recently there have been certain developments that indicate a possible solution of this issue. In the context of the renewed efforts of Slovenian government to resolve this issue, the (currently more liberal-oriented) Ministry of Internal Affairs namely announced around the 17th anniversary of this erasure that they will begin to issue special supplementary decisions, which retroactively (from 26 February 1992) restore permanent residence status to all those erased. Although this decision resulted also in the (unsuccessful) claim for dismissal of the Minister of Internal Affairs Katarina Kresal by the leading opposition party Slovenian Democratic Party, is the Ministry determined to continue with issuing these decisions until all the erased people gain their permanent residence back. 21  Medved (2005).

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Nowadays, the policy of the Slovenian state regarding dual citizenship still remains burdened with the ethnic definition of citizenship, which is most clearly expressed in the following formula: ‘Slovenian = Slovenian citizen’. The main characteristics of the present policy toward dual citizenship are the following: an evident inclination for dual citizenship of emigrants/expatriates of Slovenian origin and a restrictive limitation of dual citizenship for immigrants. Article 12 of the Citizenship Law – which regulates a procedure of facilitated naturalisation – allows to Slovenian expatriates and their descendants until the fourth generation in a direct descent line to file an application for Slovenian citizenship if they have actually been living in Slovenia continuously for at least one year prior to submitting an application and have fulfilled certain conditions for a naturalisation (among which there is not a renunciation requirement). Furthermore, persons of Slovenian origin can apply for Slovenian citizenship according to the procedure of exceptional naturalisation (Article 13) due to the national benefits of Slovenian expatriates and their descendents for the Slovenian state. Also in this case the renunciation of the previous citizenship is not required. Moreover, these categories of persons can, in accordance with the provisions of the recent ‘Act Regulating Relations between the Republic of Slovenia and Slovenes Abroad’,22 gain a special quasi-citizenship status of Slovenian without acquiring formally Slovenian citizenship, which entitles them certain citizenship rights irrespective of their noncitizenship status (Medved 2007, 230).23 However, such forbearance does not apply at times of conferring Slovenian citizenship to immigrants of non-Slovenian origins. In light of a comparative analysis of dual citizenship policies in the EU conducted by Mórje Howard (2005), Slovenia has adopted one of the most restrictive policies of granting citizenship to TCNs. Furthermore, according to the results of the so-called Migrant Integration Policy Index (MIPEX), and on the basis of the level of tolerance of dual citizenship for TCNs, Slovenia once again finds itself at the bottom of the analysed group of countries.24 If we consider the Slovenian legislation, TCNs must apply for Slovenian citizenship under the provisions of regular naturalisation, which requires a fulfilment of various conditions, among which there is also a release from the previous citizenship. There exist certain exemptions but they concentrate mostly on the person’s existential threat or non-cooperation from the country of previous citizenship. Article 10 defines the following exceptional situations when a condition of release from previous citizenship can be overlooked: ‘if the person

22  Relations between the Republic of Slovenia and Slovenians Abroad Act, Official Gazette, no. 43/2006, 21 April 2006. 23 They include, for example, a right for more favourable admission criteria to Slovenian universities; property rights under equal conditions as Slovenian citizens; preferential treatment when applying for a certain job before TCNs; a right to apply for public funding of scientific projects under equal conditions, etc. 24  See , accessed 5 November 2007.

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is stateless or if he/she proves that pursuant to the law of his/her country, he/she lost citizenship by the naturalisation itself’. Moreover, in the event the person submits evidence that his/her country does not give release from citizenship or that the voluntary acquisition of foreign citizenship is considered an act of disloyalty which, pursuant to the country’s regulations is sanctioned, the declaration of the applicant that he/she will renounce foreign citizenship if he/she will be granted citizenship of the Republic of Slovenia shall suffice.

However, EU citizens are entitled to a certain privileged status in the process of regular naturalisation, since they can retain their previous citizenship if there is reciprocity between the states concerned. Last but not least, in a case of exceptional achievements of the applicant, an immigrant can apply for Slovenian citizenship also under the provisions of exceptional naturalisation due to cultural, scientific or economic benefits for Slovenian state. In this procedure the renunciation of previous citizenship is not a necessary condition for naturalisation. And what are the perceptions of such discriminatory policy on dual citizenship of this sort by the immigrants themselves? The subjective dimensions of these processes have been so far largely neglected in relevant studies. There is therefore little information about opinions and views of immigrants themselves. In Slovenia only one piece of research offered a partial answer to this question. The research project ‘Perceptions of Slovenian Integration Policy’25 included as its main target group all the permanent residents that filed an application for Slovenian citizenship in the period of the attainment of independence. By using a method of quantitative survey, respondents were asked about their perceptions of integration policies in various fields, including those of political participation and citizenship. Two questions in the questionnaire related also to the issue of dual citizenship. Firstly, respondents were asked – under the assumption that they knew something about these initiatives and proposals – what was their opinion regarding previous initiatives and law proposals to abolish dual citizenship for immigrants. Only half of the respondents clearly expressed their opinion. The other half was not willing or able to answer. Medved (2005, 475) notes that a reason for such non-response was either the complexity of a question or the sensitivity of such ethnically connoted question. But if we consider the answers that were received, 36 per cent of all respondents expressed their support for tolerance of dual citizenship and 15 per cent agreed with the abandonment of dual citizenship (ibid.). Secondly, the respondents were asked for which citizenship would they decide if all the former 25 This project was jointly conducted by Institute for Ethnic Studies, Faculty of Social Sciences and Institute for Slovenian Emigration Studies. The Head of the project was Miran Komac. Other participating researchers: Romana Bešter, Mitja Hafner-Fink, Marina Lukšič-Hacin, Felicita Medved, Mojca Medvešek, Mirjam Milharčič Hladnik, Petra Roter and Natalija Vrečer. Duration: October 2002-October 2004.

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republics of Yugoslavia concluded a multilateral agreement on mutual abolishment of dual citizenship.26 65 per cent of respondents answered that they would retain Slovenian citizenship, 4.6 per cent that they would choose other citizenship, 7 per cent already had only Slovenian citizenship, and 4 per cent that they would retain both citizenships (apparently they did not understand the question) (Medved 2005, 479). One of the authors of this research concludes, on a basis of these questions and other contextual factors, that respondents evidently supported the tolerance of dual citizenship, since it allows them to retain regular contacts with their families and friends in the (neighbouring) countries of origin (Medved 2005, 483). Although this research actually analysed immigrants’ perceptions of Slovenian (liberal) citizenship policy at the time of the attainment of independence, it should still be taken into account when considering about the (in)appropriateness and effectiveness of current restrictive policy regarding dual citizenship. To conclude, the Slovenian policy on dual citizenship seems rather contradictive, if we consider present trends towards toleration of dual citizenship and recognition of positive effects of dual citizenship in immigrants’ integration processes. The Slovenian state namely tolerates and even encourages (quasi-) dual citizenship of emigrants of Slovenian origin that have presumably already learned the Slovenian language and have quite widespread social networks of relatives and family friends that help them integrate into Slovenian society. Contrary to that, the Slovenian state demands a renunciation of previous citizenship for almost all TCNs of non-Slovenian origin, who usually have rather different cultural and language background and have due to their distinctiveness certain problems with integration into Slovenian society, as for example immigrants from Africa or Asia. Some authors (for example Faist, Gerdes and Rieple 2004, 921) observe that many countries are usually more tolerant toward dual citizenship of their own citizens living abroad compared to immigrant newcomers in their countries. However, such discriminatory regulation of dual citizenship can not be explained simply by ‘national interest, that Slovenians from abroad come back to their homeland’ as once expressed by a former official of the Ministry of Internal Affairs (MesojedecPervinšek 1997, 14). The Slovenian state should on the basis of new knowledge about the positive effects of dual citizenship reconsider the role of dual citizenship in its integration policy. Conclusion: Future R esearch about Dual Citizenship A growing number of theoretical discussions and empirical researches are now analysing the phenomenon of dual citizenship. However, most of them are state26  Most of these respondents were long-term immigrants who migrated to Slovenia from other Yugoslavian republics in the time of common state and who had obtained Slovenian citizenship according to Article 40 of the Citizenship Law, which also allowed them to retain their original citizenship.

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oriented and thus they are concentrated mostly on the state’s attitude toward this issue and analyse state informal practices and official policies. Favell (2001, 373) critically observes that such state structured indicators measure only the extent to which the state succeeds in defining, controlling and managing a certain phenomenon. Favell (2001, 377) further argues that the guiding assumptions of these studies sometimes too strongly reflect the material conditions that have shaped its production and most especially the state sponsorship of academic work on issues that governments find useful for their purposes, as such state-approved research agendas influence the type of questions posed, the methods used in gathering data and the results obtained. The discussions and researches of dual citizenship seem not to consider an important aspect of this phenomenon: the individual perspective. There are only a few studies about the ones who claim dual citizenship, as for example Irene Bloemrad’s study of dual citizens reported in Canadian censuses from 2004. One of the reasons for such neglect is certainly inability to provide accurate statistics or analyses of dual citizenship based on adequate data (Bloemrad 2004, 391). In fact, most countries cannot even assess how many of their citizens are dual citizens, since such verification lies well beyond their jurisdiction (Mórje Howard 2005, 698). Furthermore, studying dual citizenship presents a specific aspect of studying ethnicity and therefore contains certain sensitive aspects that can be sometimes too delicate for any individual, especially for those who have acquired a second citizenship as a result of informal administrative practices and do not want to officially admit that they poses two citizenships. Nonetheless, sometimes even individuals are not aware of their status of dual citizenship due to lack of information about the legislation of their other country or they mistakenly believe they possess dual citizenship although they have lost this status due to changes in citizenship legislation of their country of origin (Bloemrad 2004, 399-400). Despite of all the difficulties inherent to the study of dual citizenship at an individual level I nevertheless argue that any comprehensive analysis of dual citizenship cannot be entirely completed without due consideration to this important aspect. This argument is especially true for studies of the role of dual citizenship in integration processes. The participants in these processes are also the individuals who evaluate whether all the measures of governments’ policies have achieved a desirable effect: i.e. a successful integration. Integration cannot be only measured with objective criteria that support a state’s interpretation of integration. The evaluation of successfulness of integration processes namely consists also of subjective meanings and interpretations that different categories of immigrants ascribe to different elements of integration policies, including that of dual citizenship.

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Chapter 8

Religious Citizenship as a Substitute for Immigrant Integration? The Governance of Diversity in Austria Julia Mourão Permoser and Sieglinde Rosenberger

Throughout Europe, migration has greatly increased the religious diversity of the population and turned immigrant integration into a key political issue. In particular, conflicts over the public display of religious symbols and practices of Muslim immigrants have figured prominently in the public sphere. Nevertheless, sustained scholarly attention to the relationship between religious accommodation and immigrant integration is still lacking. Although both the governance of religious diversity and the socio-economic and political integration of immigrants have attracted considerable interest by political and social scientists (Bauböck et al. 2006b; Maussen 2007), the two issues are too often studied separately. This chapter attempts to link these two research strands. Combining the study of religious governance with that of immigrant integration is crucial in order to understand the dynamic interplay of these two different models of governance, since the relationship between these policy areas is far from simple. At the national level, Austria is a case in point. Here illiberal immigrant integration policies are coupled with pluralistic policies of accommodation of religious diversity. While the access of immigrant communities to socio-economic and political rights is curtailed and increasingly made conditional on cultural assimilation, a great number of individual and collective rights cutting through the civil, social and political spheres of life are granted to the same communities on the basis of their religious membership. Thus, Austria constitutes a particularly interesting case in order to analyse a general phenomenon that has been affecting Europe as a whole, namely the uncomfortable coexistence between liberal and illiberal dynamics in the politics of immigrant incorporation. Several waves of migration have turned Austria into one of the main immigration countries in Europe. In 2008, over 17 per cent of the population had a ‘migration background’, that is, was either born abroad or did not possess Austrian citizenship despite having been born in the country. This constant influx of immigrants has   Statistik Austria (2008), ‘In Österreich leben 1,4 Mio. Menschen mit Migrationshintergrund’, , accessed 6 October 2008.

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largely increased the religious diversity of the Austrian population. Islam has become the third biggest religious community after Catholics and Protestants and comprises about 4.2 per cent of the total population. Moreover, the vast majority of Muslims in Austria are immigrants. In 2001, 71.7 per cent of Muslims did not possess Austrian citizenship. Most Muslim immigrants are of Turkish origin and arrived in the 1960s and 1970s as ‘guest workers’ [Gastarbeiter], that is, temporary workers, and later through family reunification. Another important source of Muslim immigration was the Yugoslavian War in the 1990s when a great number of Bosnian refugees fled to this country. In situations in which religious communities are also immigrant communities, the existence of pluralistic policies towards religious minorities could be expected to have a positive influence on the inclusion of migrants into society and the acceptance of differences resulting from immigration. However, in Austria this is only partially the case. On the one hand, the Austrian model of management of religious diversity, with its official recognition of several religious denominations, including Islam, and the attendant rights that come with it, has been effective in some ways. Liberal policies of accommodation of religious diversity concerning Islamic clothing, holidays and education facilitate the insertion of observant Muslims into mainstream institutions (Wieshaider 2004). In general Muslim claims for accommodation of religious practices are negotiated in a consensual way between the government and religious representatives. Thus, so far the Austrian model has largely succeeded in avoiding major conflicts both inside the Muslim community and between the Muslim community and the rest of the Austrian population. On the other hand, the pluralistic policies towards religious minorities coincide with deficient socio-economic integration, lack of political rights, and assimilatory integration policies for immigrants. Muslims immigrants who do not have the Austrian citizenship are subject to restrictive policies where socioeconomic rights are concerned due to their immigrant status. Barriers in the access to the labour market and limitations imposed on family reunification and the acquisition of long-term residency, as well as weakly enforced nondiscrimination regulations, hamper the ability of immigrants to become full members of the society they live in and strengthen the divide between citizens and non-citizens (Niessen et al. 2007). The unwillingness to grant third-country nationals (TCNs) resident within the territory comparable rights to national citizens contrasts strongly with the generous policies of religious accommodations directed largely at the same group. Moreover, the inclusionary regulatory framework does not imply full societal acceptance of religious diversity that comes from immigration. Anti-Islamic   Statistik Austria (2001a), ‘Bevölkerung 2001 nach Religionsbekenntnis und Staatsangehörigkeit’, available from , accessed 25 September 2008.   Ibid.

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sentiments are widespread in Austria and so is discrimination of Muslim immigrants in employment and housing. This lack of acceptance of the value of religious diversity is also manifested at the level of political discourse, where anti-Islamic sentiments are often instrumentalised by mainstream political actors to win votes or to justify strict immigration and integration policies. Furthermore, there are no concrete policies for the accommodation of diversity for those immigrants who are not religious. Thus, this chapter uses Islam in Austria as a case study to analyse the tensions that exist between the religious rights and restrictive immigration and integration policies that create barriers to the acquisition of political and socio-economic rights by immigrants. Against the background of an exclusionary citizenship regime, restrictive immigrant integration policies, and the strong presence of antiimmigration parties, the chapter investigates the following research questions: How can one explain the existence of an inclusionary model of religious governance from which Muslim minorities benefit? Are religious rights a substitute for immigrant integration policies? It will be argued that the comprehensive policies of accommodation of religious diversity currently in place are not the product of efforts for multicultural accommodation of immigrants, but rather the result of a mixture between opportunity structures based on the historical legacy of a de facto multicultural empire and the specificity of the modern Austrian political system, namely a tendency toward corporatist forms of interest representation. The chapter starts with an account of the different models of governance of diversity that prevail in Austria in the field of immigrant integration and accommodation of religious diversity. In the following section of the chapter we describe and classify the religious rights associated with Islam and argue that the increasing number of rights derived from religious membership amount to a form of ‘religious citizenship’ that transcends nationality and therefore increases the rights of Muslim immigrants. We then proceed to an analysis of how the relationship between religious citizenship and restrictive integration policies in Austria fits into the European context. Finally, we conclude by offering some explanations for these contradictory dynamics. Where Pluralist meets Exclusionary: R eligious Governance vs. Immigrant Integration Austrian policies to deal with diversity do not fit neatly into scholarly classifications. Rather, two contradictory models of the governance of diversity co-exist. According to the typologies within the literature on religious governance, Austria can be considered as a liberal country in its policies of religious accommodation.

  See EUMC, European Monitoring Centre on Racism and Xenophobia (2006), ‘Muslims in the European Union: Discrimination and Islamophobia’, (Vienna: EMUC); EMUC (2003), ‘National analytical study on housing’ (Vienna: EUMC).

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By contrast, the current immigration policy, citizenship regime, and immigrant integration policies are highly restrictive and exclusionary by Western standards. In his discussion of different models of citizenship with regards to the incorporation of immigrants, Castles (1994, 21-23) identifies three ideal types which he terms the ‘exclusionary model’, the ‘assimilationist inclusionary model’ and the ‘pluralist inclusionary model’. He places Austria within the exclusionary model of citizenship and of migrant integration. This model is based on the idea that the nation is a community of birth and descent and therefore citizenship is granted primarily on the basis of jus sanguinis. In fact, the access to formal citizenship by immigrants in Austria is extremely limited, and the trend is for both citizenship and integration policies to become increasingly restrictive. Most adult immigrants are only eligible for citizenship after ten years, whereas spouses of Austrian citizens have to wait for six years of residence and at least five of marriage in order to become eligible for naturalisation. Children and grand-children born in Austria to non-Austrian parents must also apply for naturalisation in order to acquire the nationality of their country of birth. Since the implementation of the immigration laws [Fremdenrechtspaket] of 2002 and 2005, further obstacles have been put in place to limit access to citizenship even more, such as obligatory language course, civic tests, and language proficiency tests. Also in other areas of immigrant integration Austria has very restrictive policies. According to the Migrant Integration Policy Index (MIPEX), Austria ranks second to last among all 28 countries studied in family reunification measures, and in anti-discrimination it ranks second to last among the EU15 countries (Niessen et al. 2007). Immigrants also face many obstacles to participation in the labour market and education. For instance, the fees for universities are higher for foreigners than for Austrians. The work permit of a labour immigrant is generally coupled to a specific job, so that the immigrant cannot change jobs without having to apply for a new permit. Moreover, Austria uses a quota system for the issuing of work permits, which also applies even after permits have been issued, meaning that an immigrant may loose his/her permit even after several years of legal residence and employment history in the country (Waldrauch 2001, 299-301). In addition, access to the labour market is blocked to several categories of immigrants, such as asylum seekers and students, and only permitted for other categories, after a long waiting period, such as family members brought in through family reunification. The conditions for acquiring long-term residency are also unfavourable, being considered by the MIPEX as the worse of the EU-15 (Niessen et al. 2007, 23). Besides the fact that long-term residents do not have a right to participate in any elections, they do not have much security in their status. For reasons of public order and based on a non-exhaustive list, the legal possibility exists that TCNs be expelled even after having lived in the country for 20 years. Thus we see how in Austria the exclusion of TCNs from formal citizenship due to the rule of jus sanguinis correlates with other exclusionary policies such as reluctance to permit

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family reunion, barriers to labour market participation as well as unwillingness to grant secure residence status to immigrants. By contrast, where religious diversity is concerned, Austria has very liberal and pluralistic policies. In the normative typology established by Veit Bader (2003) to evaluate different models of governance of religious diversity, Austria approximates the ideal type of ‘non-constitutional pluralism’, which is considered by him to be the most normatively desirable model of all, since it ‘combines dis-establishment or non-establishment with restricted legal pluralism (e.g. in family law), administrative institutional pluralism (de jure and de facto institutionalisation of several organised religions), institutionalized political pluralism, and the religio-cultural pluralisation of the nation’ (Bader 2003, 271). Accordingly, in Austria, the model of religious diversity is characterised by the accreditation of religious communities as public legal entities with a privileged position in the political system and the granting of several group-differentiated rights both to the community and to individual members of recognised religions (Kalb et al. 2003). Religious communities and their members have a number of specific rights and privileges that go well beyond the constitutional guarantee of freedom of religion. This model is largely a product of the Austrian model of church–state relations. As Fetzer and Soper (2004) show, the historical framework of church–state relations and inherited ideas about the role of religion in public life are still of paramount importance in explaining public policy towards religion. This is certainly the case in Austria, where the legacy of the way churches have historically been related to the state plays a major role in the development of current policies towards Islam. In general, in Austria there is an institutional separation between church and state in that the state refrains from interference with religious matters and vice-versa. Nevertheless, there is no complete separation since the state officially recognises a number of religious communities and grants them certain legal privileges including state subsidies (Madeley 2003, 13-16; Potz 1996, 235). The practice is therefore characterized by cooperation between the state and several recognised religious organisations. The legal instrument that enables this institutional cooperation is the Law of Recognition [Anerkennungsgesetz] dating from 1874. Of major importance is the fact that the Law of Recognition extended to all recognised the religions rights enjoyed until then only by the Catholic Church (Kalb et al. 2003: 72). The Law of Recognition is generally interpreted as having introduced into jurisprudence and political culture the principle of the equality of treatment of all officially recognised religions [Paritätsprinzip], which has remained a guiding principle of the Austrian model of religious governance ever since. In other words, on the basis of the Law of Recognition, Austrian legislation not only harmonises the rights of different religious traditions, it does so by ‘levelling-up’ the rights of all faiths to those of the dominant religion. Therefore the privileged situation of minority religions is intrinsically linked to the privileged position of the Catholic Church and its strong role within the Austrian political system.

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A further relevant point is that the Law of Recognition grants officially recognised religions the special status of ‘privileged corporations of public law’, which is attached to a number of rights and privileges. Thus, the main hierarchical organisations of officially recognised religious communities are quasi-public bodies with whom the state negotiates all matters related to religion. In that sense, Austria can be considered a ‘state corporatist polity’ (Koenig 2005, 22425), which means that corporative religious organisations rather than individuals are perceived as the main religious actors with whom the state cooperates. These officially recognised religious organisations are deemed to be representative of all persons belonging to that religion within the Austrian territory. This is the case of the Islamische Glaubensgemeinschaft in Österreich (IGGiÖ) [Islamic Faith Community Organisation in Austria]. Austria is one of the few European countries that formally recognise Islam as an official religion. As mentioned before, this status is attached to a number of specific rights. Moreover, the fact that Islam is a recognised religion has influenced the interpretation of the Federal Constitution. Thus, where controversies have arisen with respect to traditional religious practices of Muslims, the constitutional right to freedom of religion and to be able to manifest one’s religion was interpreted as imposing on the state a duty to accommodate the Muslim community. In concrete terms, this means that several special governmental decrees have been issued throughout the years to accommodate Muslim practices and customs. This interpretation of the Constitution reinforces the inclusionary principle of religious accommodation that lies at the basis of the Recognition Law (Kalb et al. 2003). Interestingly, however, the official recognition of Islam is not the product of a policy of multicultural accommodation of ethnic and religious diversity by the modern Austrian state, but rather a consequence of historical path dependencies. The Law of Recognition mentioned above was enacted at a time when the AustroHungarian Empire had a strongly multi-ethnic and multi-religious character and included a great number of Jews and Orthodox Christians among its subjects. The inclusion of Islam as one of the recognised religious communities dates from 1912 and was the consequence of the annexation of the province of Bosnia-Herzegovina by the Austro-Hungarian Empire. After the end of the monarchy, when Bosnia ceased to be a province of the Austro-Hungarian Empire, these provisions became largely dormant, since there was no significant percentage of Muslims among the population in the newly founded Austrian Republic. It was not until the 1960s that demands for the revival of the recognition of Islam started to be voiced by a small group of active Muslims. These were not, however, typical Gastarbeiter, but rather a relatively privileged group of welleducated immigrants. It is important to note that at that time the number of Muslims living in Austria was still very low, about 0.3 per cent of the population.   Statistik Austria (2001b), ‘Bevölkerung nach dem Religionsbekenntnis und Bundesländern 1951 bis 2001’, available from , accessed 25 September 2008.

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Nevertheless, the process of consolidating the legal status of a representative Muslim organisation was facilitated by reference to a legal basis in the form of the law dating from 1912 (Ferrari 2005, 14). So, in 1979 the IGGiÖ managed to acquire the legal status as a corporation in public law representative of all Muslims present within the territory. The result is that Muslims in Austria, who are mostly immigrants, have a great number of rights due to their religious membership. It is to these rights and privileges that we shall turn now. R eligious Citizenship We will review the rights granted to Muslims in Austria by virtue of national, European and international human rights legislation. As will be shown, the rights of the Muslim community are of three kinds. First of all, Austria recognizes the universal right to freedom of religion for all individuals. Secondly, individual Muslims possess a significant number of rights that can be considered ‘groupdifferentiated rights’ (Kymlicka 1995), that is, rights which are not available to all citizens but only to a certain group or members of a group by virtue of their group membership. Furthermore, Muslims also have a third kind of right, which we propose to call ‘corporate rights’. The Law of Recognition grants the organisation representing the Islamic community specific rights which are accorded to the organisation itself as representative of all Muslims in Austria. Having established this typology of religious rights, we shall now turn to a detailed analysis of the existing rights enjoyed by Muslims. Universal Rights In Austria, the Federal Constitution provides a guarantee of freedom of religion in general and also the right to manifest one’s religion in private and in public as long as this does not conflict with public order and customs. At the European level, the human right to freedom of religion is protected by different instruments, such as the European Convention of Human Rights of the Council of Europe and the European Union Charter of Fundamental Rights. Moreover, the whole text of the European Convention of Human Rights (ECHR) forms part of the Austrian Constitution. Group-Differentiated Rights Muslims are granted a number of group-differentiated rights due to the official recognition of Islam. Moreover, the official recognition of Islam also works indirectly to the benefit of immigrants’ claims, since the constitutional guarantee of freedom of religion is often interpreted very broadly in light of the Law of  This section builds upon (Mourao Permoser and Rosenberger 2009).

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Recognition, thus facilitating claims-making by representatives of the IGGiÖ for special legal treatment beyond the provisions of the Law of Recognition itself. We will consider the following group-differentiated rights: the right to wear religiously prescribed dress, to take time off for prayer and religious holidays, non-discrimination rights, and the right to receive religious education about Islam in public schools. One of the most important and most contested rights claimed by Muslims throughout Europe is the right to wear religiously prescribed attire. In particular, the demand of school girls to be able to wear the Islamic headscarf, or hijab, in public schools has led to very heated debates about the proper way to accommodate religious diversity in secular Europe (Benhabib 2004; McGoldrick 2006; Motha 2007). In Austria, there is very little debate in the media and the political sphere about the Islamic headscarf. Nevertheless, in 2004 a controversy did arise over some students’ headscarves, so a decree was issued by the Ministry of Education that approves a non-restrictive approach in the state school-system. The decree states that the wearing of a headscarf by Muslim students shall be identified as a religious dress code and therefore is to be protected by the constitutional principles enshrined in Article 14 of the Basic State Law of the Austrian Constitution [Staatsgrundgesetz] and by Article 9 of the ECHR. The right to wear headscarves is thus defined by the state as a religious obligation, and hence viewed as ensured by constitutional law (Gresch et al. 2008). Likewise, where discussions have arisen concerning the requests of Muslim employees and students to take time off work or school for prayer or for religious holidays, an inclusive-pluralistic solution was sought. Hence, the Arbeitsruhegesetz allows workers to take time off for religious prayer so long as that does not disturb others (Kalb et al. 2003, 115-119). A corresponding law assures the rights of Muslim students not to attend school on the Islamic holidays of Eid-al-Fitr and Eid-al-Adha. Additionally, special regulations have also been adopted to assure that Muslims serving in the military receive special food and are released from service for the Islamic holidays of Ramadan and Eid-al-Adha. Further group-differentiated rights are granted to individual Muslims by European Union legislation. Besides the fact that primary EU law and international treaties to which the EU and its member states are signatory parties assure the individual human right to freedom of faith, since the adoption of Council Directive 2000/78/EC, EU secondary legislation explicitly prohibits employment discrimination on the grounds of religion or belief.10 The right to   ZI 20.251/3-III/3/2004.   GZ 20.251/2-III/4/87; see also information by the Federal Ministry ZI.21.001/5Z/10/2003 regarding § 9 Abs.6 of the Schulpflichtgesetz 1985 and § 45 Abs. 4 of the Schulunterrichtsgesetz.   GZ 60.900/645-5.1./88. 10  Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, OJ No. L 300 of 2/12/2000,

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non-discrimination established by the Directive is granted to all persons resident in the Union independently of nationality. Directive 2000/78/EC goes well beyond a mere guarantee of freedom to chose one’s faith to include a prohibition of direct and indirect discrimination, harassment, instructions to discriminate and victimisation. Thus, the Directive grants a group-differentiated right to nondiscrimination on the ground of religion to members of all religious communities. This might be considered a group-differentiated right because it is only granted to religious persons on the basis of their belonging to a religious group. Other kinds of group membership and ascribed characteristics (for instance membership in a political group or nationality) do not have the same protection. Finally, a last very important group-differentiated right granted to individual Muslims in Austria by virtue of the Law of Recognition is the right of Muslim children to religious instruction in Islam. All school children are required to attend some kind of religious instruction unless their parents decide that they are exempt from this subject. Religious instruction is confessional and legally recognised churches and religious communities have a right to maintain publicly funded religious instruction for students of their faith. This is also the case for Islam. Muslim students have a right to receive religious instruction in Islam in their school, provided that numbers warrant. Where the number of students belonging to Islamic faith is too small to justify a separate class, Muslim students are exempt from attending religious instruction. In the EU, the right to receive Islamic religious instruction in public schools is unique to Austria, and it is heralded by the IGGiÖ as a major factor contributing to the integration of Muslims in the country.11 Corporate Rights The right of individual Muslims to religious education about Islam is connected to a right granted to the IGGiÖ – as the representative organisation of the Islamic community – to define the curriculum of the religious classes, choose the textbook which will be used, and to hire, train and supervise the teachers (Wieshaider 2004, 32).12 Austrian legislation establishes that the content of the confessional religious instruction in schools is to be considered as an internal affair of the respective church or officially recognised religious community, whereas the state remains responsible only for the organisational and disciplinary aspects of the religious instruction (Kalb et al. 2003, 355). The only restriction imposed by the legislation is that the content of the materials taught in the religious instruction should not go against the general principles of civic education (Kalb et al. 2003: 359). pp. 16-22. Compliance with the Directive was required of all member states by 2 December 2003. 11  See the website of the IGGiÖ (last visited 9 November 2008): . 12 Bundesgesetz vom 13. Juli 1949, BGBl. Nr. 190, betreffend den Religionsunterricht in der Schule.

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Thus, the IGGiÖ as an officially recognised religious community has autonomy to define the content of Islamic religious instruction in schools without interference by the state. More than that, the IGGiÖ has the right to hire the religious teachers, even though they then become public servants and are paid by the state. The right to religious education is a very important one, not only because of the symbolic value of cultural recognition that comes from including a minority’s religion in the normal curriculum of public education, but also because it allows the IGGiÖ to intervene directly with the public educational system. Furthermore, the IGGiÖ has the right to autonomy and self-determination in internal affairs. Internal affairs include regulations and issues related to the religious doctrines, sacraments, and offices, and issues related to religious education such as the above mentioned assignment of teaching posts, as well as issues related to the organisation itself, such as membership duties and rights, and the administration and acquisition of the group’s property. Here it is important to note, however, that in order to acquire official recognition by the state, the religious communities must fulfil a number of conditions, such as showing that they have a positive approach towards society and the state, and that they do not prescribe their members any conduct that goes against Austrian law or customs (Kalb et al. 2003, 95-102). The IGGiÖ also plays an important role in the political arena. Officially recognised religious organisations have the right to be consulted in the negotiation of legislative initiatives that concern religion or religious people. Thus, Muslims in Austria have a corporate right to political representation in policy areas related to religion. Moreover, at the policy level, the state cooperates with religious organisations when issues arise that are protected by the principle of freedom of religion. This includes the negotiation of specific claims by minority religions to be granted legal exceptions to accommodate specific practices and ways of life related to religion (e.g. religious regulations on slaughtering, the wearing of religious dress, the building of places of worship), as well as all matters related to the exercise of public functions by religious organisations (e.g. religious instruction) (Khorchide 2008). These consultation rights fit well with the Austrian traditions of consociational democracy and strong corporatism. The political system has been historically marked by a particularly strong institutionalisation of corporatist interest representation in the form of social partnership (Pelinka 1998). Although the role of the social partners in the decision-making process has been waning (see Tálos 2006), in the case of interest representation of religious groups in the political system, the role of religious communities seems to be actually gaining in importance (Mourão Permoser et al. 2008). This is exemplified by the fact that the IGGiÖ has been invited to take part in consultation processes which are not directly related to religion, such as for instance the recently created Integrationsplattform, which shall elaborate a new integration policy for immigrants. The embeddedness of the IGGiÖ in several important policy-making settings definitely represents a major inclusionary feature of the Austrian model of governance of religious diversity.

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From Religious Rights to Religious Citizenship In his classic analysis of the development of citizenship in England, T.H. Marshall (1964) divided the rights of citizenship for analytical purposes into three categories or ‘elements’: civic, political and social. The civic element of citizenship in Marshall’s (1964, 78) account was composed of ‘the rights necessary for individual freedom’, including ‘liberty of the person, freedom of speech, thought and faith, the right to own property and to conclude valid contracts, and the right to justice’. The political element, in turn, refers to ‘the right to participate in the exercise of political power’ (Ibid.), be it as an elector or as a member of a political body. Finally, the social element in Marshall’s (1964, 103), view implies ‘an absolute right to a certain standard of civilization’ by which he means both economic sufficiency and cultural recognition (that is, the right to be treated as equal and not to be stigmatized or discriminated against due to social class or group membership). Religious rights or ‘freedom of faith’ were already included in Marshall’s framework, namely as belonging to the domain of civic citizenship. However, what Marshall refers to as freedom of faith is a merely passive right to chose one’s own religion. It implies a right to freedom from state interference with one’s individual choice of religion or belief, not a positive responsibility by the state to make sure that all religious groups can exercise their religion and fully participate in society on an equal basis despite their religious differences. The religious rights that exist in Austria due to the Constitution, the Recognition Law and the implementation of EU anti-discrimination legislation go well beyond this notion of freedom of faith as implied in Marshall’s typology. First, religious rights not only imply that the state should refrain from interference with each person’s choice of religion, but rather create a positive duty by the state and by private parties (employers) to accommodate religious diversity and make full participation in society possible for all religious groups. They thereby recognise the public aspect of religious observance. Whereas the choice of religion remains a private individual affair, the exercise of religious freedom is recognised as taking place both in the private and in the public spheres of life. Secondly, in Austria religious rights are not only individual in nature but sometimes actually amount to collective or ‘group-differentiated’ rights. Moreover, as we have seen, the rights granted to recognised religious communities are not only civil, but rather permeate all three elements of Marshall’s typology, including the political element (due to consultation rights) and the social elements (in the form of cultural recognition and non-discrimination). A further particularity of these religious rights is that they are granted independently from possession of formal citizenship. Thus, the IGGiÖ represents all Muslims independent of their citizenship and it has a right to be consulted in political negotiations in certain areas. Consequentially, Muslims who do not have citizenship are nevertheless partially represented in the political system and can sometimes indirectly influence policy-making. This means that in Austria affiliation with a given religion may at times replace citizenship status as a condition for

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becoming an actor in the political system. Of course, religious citizenship is far from granting the same degree of egalitarian political participation and autonomy as political citizenship. Nevertheless, since they are independent of possession of nationality, rights of religious citizenship indicate a trend towards ‘postnational’ (Soysal 1994) forms of membership. In sum, religious rights as present in Austria break with the nationality-based conception of citizenship and go well beyond an individual right to freedom of faith. Rather, they include both individual and group-differentiated rights that cover many aspects of life (employment, education, symbols, etc.) and cut through all three different dimensions of Marshall’s concept of citizenship, thus constituting a form of ‘religious citizenship’. A European Pattern? In the previous section we have argued that in Austria two contradictory dynamics are at play in the governance of diversity. Thus, an inclusionary model of religious governance that amounts to a form of ‘religious citizenship’ for members of officially recognised religions coincides with restrictive immigrant integration policies that create high barriers (including the imposition of criteria based on values and culture) to the acquisition of political and socio-economic rights by immigrants. Interestingly, at the level of supranational legislation we can observe a similar pattern. The Employment Equality Directive applies to all persons living in the Union regardless of whether they might be citizens of the EU. At the same time, non-discrimination rights are considered to be part and parcel of the distinctive attributes of European citizenship (see Bell 2002). Well, if the right to nondiscrimination on the grounds of religion is considered a right of EU citizenship, but it is granted to all inhabitants of the EU independent of nationality, then the traditional dependency of European citizenship on national citizenship is being broken. However, while the anti-discrimination Directives grant important rights to TCNs by virtue of their ethnic or religious membership, policies aimed specifically at the socio-economic integration of immigrants in the EU have failed to achieve such high standards. The most significant measure to improve the socio-economic rights of TCNs resident in the EU until now, the so-called ‘LongTerm Residents Directive’ (LTRD), has failed to establish a full-fledged right to non-discrimination on the grounds of nationality for legally established longterm resident TCNs.13 The LTRD does not apply to all TCNs and permits existing inequalities in the labour market and social assistance schemes to be continued. Moreover, the LTRD offers wide discretion to member states to impose mandatory 13  Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents, OJ No. L 16 of 23/01/2004, pp. 4453.

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‘integration requirements’ for immigrants wishing to benefit from its provisions. These integration requirements are not further defined, but in practice are likely to amount to the imposition of language and civic education tests, which are often aimed at assessing whether immigrants have adopted the receiving society’s values and morals. Examples of countries that have already adopted such integration test are Germany, Austria, the Netherlands and France. In certain cases civic integration tests have actually been used as a discriminatory tool, supposedly aimed at assessing the immigrant’s commitment to ‘core liberal values’. A case in point is the test applied in the province of Baden-Württemberg after 2006, where applicants for citizenship who came from countries where the population is predominantly Muslim had to answer questions such as ‘what would you do if you found out that your son is gay?’ or ‘in your view were the perpetrators of the September 11 attacks terrorist or freedom fighters?’. Similarly, the Dutch government’s information DVD sent to applicants for a Dutch visa includes images of naked women and homosexual couples kissing, which is likely to be a measure specifically targeted at Muslim audiences (Joppke 2007a). Joppke (2007a) points out that one very interesting aspect of these new civic integration policies is their obligatory character. The state therefore coerces immigrants into adopting liberal norms and values. Moreover, such tests are often used as an instrument of the state to manage migration and select immigrants according to their level of education and their capacity or willingness to adopt the general norms and values as well as the language and customs of the hosting society. As Carrera (2005a) notes, if implemented in a restrictive manner, the application of these provisions would lead to a situation where ‘the values of a multicultural society and the respect of the fundamental rights of TCNs could be seriously undermined. The dividing line between an efficient integration policy and the respect of cultural, ethnic and religious diversity may become dangerously thin’. In sum, by including in the LTRD the optional condition that member states may require TCNs to ‘comply with integration conditions, in accordance with national law’, those member states with restrictive integration regimes have managed to transpose their exclusionary policies onto the supranational framework. Thus, also at the European level two models of governing diversity coexist. The approach towards religious diversity does not match with the tendency towards policies of immigrant integration that allows for immigrants’ rights to be conditional on cultural adaptation into the receiving society. Conclusion As our analysis of the origins of the official recognition of Islam and of the IGGiÖ show, the privileged situation granted today to immigrants due to their religious membership was not the result of a conscious effort on the part of the government to improve the immigrants’ lot. Rather, this religious citizenship is the product

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of a combination of three factors. Firstly, the historical legacy of the multiethnic Austro-Hungarian Empire and its tolerant attitudes towards religious minorities created the legal premises upon which the recognition of Islam was made possible. Secondly, the existence of a small but very active group of politically engaged Muslims, who recognised in this historical legal premise a chance to improve the situation of Muslims and pressured the government to recognise Islam, was an absolutely crucial factor. Lastly, the traditions of consociational democracy and corporatism that characterise the political system have certainly contributed to the IGGiÖ’s increasing importance as a political actor. However, none of these factors imply a political willingness to accommodate cultural diversity that comes with migration and to treat immigrants as full members of society. Had it not been for the clever manipulation of a historical legacy by a group of politico/religious entrepreneurs, it is very unlikely that a similar degree of rights for Muslim immigrants as presently exists would ever have developed. Much to the contrary, xenophobic discourses have been widespread in Austrian politics for a long time. Moreover, these discourses increasingly take an Islamophobic turn (Rosenberger and Hadj-Abdou 2009). In the case of Austria, we have argued that the reasons for the development of two contradictory systems of dealing with cultural diversity may be found in the capacity of relevant societal actors to make use of existing institutional frameworks and societal norms. Thus, in the case of religious governance, an active group of Muslims was able to make use of historical path dependencies to promote liberal policies towards Islam. By contrast, in the case of immigrant integration policies, it was the anti-immigration parties and protectionist interests that have so far been successful in preventing a change in the historically established exclusionary citizenship and immigration regime by framing liberal norms as being synonymous with European values and as conflicting with the values of immigrant communities. At the supranational level, the situation does not markedly differ. As Geddes and Guiraudon (2004) have shown, the passing of the year 2000 anti-discrimination Directives was crucially influenced by the fact that a committed group of political entrepreneurs could use the window of opportunity of the rise of extreme right-wing parties in Europe, especially the Austrian Freedom Party (FPÖ) of Jörg Haider, to frame the new claims to anti-discrimination in the language of contemporary Europe’s commitment to countering anti-Semitism and racism. Thus a historical commitment to religious and ethnic pluralism was cleverly instrumentalised by those interests who wished to improve the situation of immigrant communities in Europe, despite the fact that such a strong commitment to these minorities might not have been present per se among the decision-makers. By contrast, when it came to the negotiations of the LTRD (2003), no such window of opportunity existed. The context was one of ever more restrictive immigration and integration policies in a number of European countries, including especially Austria, Germany and the Netherlands. The European Council was composed of a majority of centre-right parties and the intuitional setting of the

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negotiations was the Justice and Home Affairs Council, which contributes to a framing of the question of immigrant integration as an issue of security and welfare protection, rather than fundamental rights. The fear that liberal policies of immigrant integration might support the illiberal values of certain immigrant communities favoured those protectionist interests who wish to isolate national labour markets and welfare systems from newcomers, thus contributing to the weakening of the Directive. In sum, one possible hypothesis to be further explored would be that, similarly to the Austrian case, the success of policies aimed at immigrant integration at the supranational level also depends on the capacity of socially progressive actors to frame their claims in terms of existing liberal norms against those interests who try to instrumentalise those same norms to justify the exclusion of immigrants from full participation in society. A full exploration of this hypothesis lies, however, beyond the scope of this chapter. It will be the task of further studies to show whether this hypothesis holds at the level of the EU and in different national contexts. In conclusion, the case of Muslims in Austria shows that, independently of its causes, the result of maintaining two different models of governance of diversity is that immigrants have their religious identities formally recognised and protected, but they are still excluded from full participation in society as equal members of the polity. In particular, immigrants are often not given an equal chance to improve their economic situation since there are restrictions to labour market participation and to welfare benefits due to their immigrant status. At the same time, it is predominantly their inferior economic status that makes immigrants a target of xenophobic and intolerant arguments. Moreover, those immigrants who are not religious are left entirely outside the scope of religious citizenship and therefore of the existing liberal policies of accommodation of diversity. Here Marshall’s (1964) insight remains as pertinent as ever, that an adequate level of economic welfare and security is an indispensable element in achieving full social equality. Religious citizenship is no substitute for comprehensive measures to promote social, economic and political integration.

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PART III Immigration and Integration: The European Union

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Chapter 9

Doing and Deserving: Competing Frames of Integration in the EU Dora Kostakopoulou, Sergio Carrera and Moritz Jesse

Since the entry into force of the Treaty on European Union, questions about the nature, process and telos of European integration have dominated the European studies literature. The answers given to these questions are often perplexing and contested. Irrespective of the persuasiveness of answers as well as the appropriateness of questions, however, what has clearly emerged from this literature is the irreducible complexity of the EU. True, complexity is not always easy to explain. It arises as a result of attempts to accommodate diverge interests, be attentive to many voices, reconcile seemingly opposing dynamics, to deepen and sediment commitments. In this process, intransigent positions, unforeseen outcomes and even small errors can cause unpredictable mutations in procedures and institutions across time. While complexity is to a large extent unavoidable, one must always be weary of what may be called artificial complexity. By the latter, we mean the invention of new frames and their sedimentation in law and policy as a reaction to developments which are seen as undesirable. In such cases, we are faced not with a single policy or with a single discourse, but with a complex, multilayered script which can lead to incoherence. And incoherence in theory, law and policy jeopardises rationales and objectives and loosens the connection between desiderata and reality. When this happens, the ability to address policy issues in an effective way, to maintain a distinctive approach and to convince the population of its merits is called into question. This is, precisely, what happens with integration policy in the EU. Whereas one would expect a uniform frame of civic integration in the EU, in reality we witness multiple, variegated and conflicting conceptual and legal frames. In this chapter, we seek to untangle these frames, show how they hustle and jostle each other and to discuss the serious risks entailed by this process. We identify three interrelated problems: the problem of perspective, and by this we mean the soundness and accuracy of the conceptual framework; the problem of coherence; and the problem of semantic traps that might endanger the normative vision of the European project. We argue that European Community (EC) law has been characterised by a conception of integration as equal treatment, equal participation and, recently,  This has been termed ‘the normative turn’ in EU studies (Weiler 1995).

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as transnational solidarity. This conception favours agency, equal rights and participation in political communities. Notwithstanding Member States’ opposition, this frame has been consistently applied to Community nationals, that is to nationals of members states, who have exercised their free movement rights and chosen to develop associative relations in, and with, another jurisdiction, thereby making Union citizenship a reality. This conception of integration has been closely linked with the idea of postnational citizenship and its empowering and inclusive qualities have made it attractive for categories of persons other than EU citizens and for domains outside the realm of EC law. Accordingly, it leaked and influenced the Community’s policy agenda towards resident third-country nationals (TCNs) in the period between 1975 and 2002. The contiguous effect of EC law has found its clearest manifestation in the Tampere template of integration as fairer treatment, ‘near equality’ of TCNs and in the ensuing legislating initiatives. At the turn of the millennium, the time was ripe for expanding the membership circle of the European polity and for fashioning a more inclusive European civil society and public sphere. But since 2003 a new conception of integration has taken root. There has been a shift from equal treatment to conditioned membership as national conceptions of integration and neonational narratives seeking to preserve social cohesion and national values have been uploaded at the European level. Predominant national approaches have diluted the traditional rights-based and participatory approach to integration, have disconnected it from equalisation and have gradually realigned it with migration control and the preservation of the alleged homogeneity of national bodies. Through the increasing exchange of information and the dissemination of ‘best practices’ among the member states, the EU Framework on Integration has reinforced the national jurisdiction of member states over migration-related issues and has validated national conceptions of integration bringing with them new ideas and policy initiatives. The introduction of policies and laws in the EU legal system fostering ‘the conditionality of integration’ and a sanctions-based approach, since the burden of integration is placed upon TCNs who have to meet mandatory integration conditions and face the ensuing sanctions, has deeply transformed the functions and priorities pursued by civic integration in EU law and policy. The subsequent discussion unravels the ambivalent and conflicting frames of integration at the EU level and examines what can and should be done about adopting a clearer and more coherent conceptual framework. Its structure is as follows. In section one we discuss the frame of integration characterising EC law over the last 50 years, whereas section two addresses its contiguous effect upon the status and rights of resident TCNs. Section three traces the development of the EU Framework on Integration and furnishes a critical view of its implications for the European project. We conclude by making the case for a coherent and principled approach to integration, based on the frame of equal treatment, equal   Council of the European Union (1999), Presidency Conclusions, Tampere, 15-16 October 1999.

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participation and transnational solidarity for all affected individuals, irrespective of their Community or third-country nationality. Integration in EC Law: A gency, R ights and Participation Since its early days, the EC recognised that free movement of workers is not simply a functional prerequisite for creating a common market. Behind this economic goal have always lurked a number of wider socio-political objectives, such as maintaining peace, enhancing prosperity, raising the standard of living and quality of life, bringing people together, creating a political union and so on (Urwin 1995 [1991]). These objectives prompted the pronouncement of free movement as ‘a fundamental right’ of workers to improve their standard of living, working conditions and to promote their social advancement in the 1960s. They have also underpinned the European Court of Justice’s (ECJ) activist stance and the transformation of the single market into a people’s Europe in the 1970s. The introduction of Union citizenship in the 1990s and the subsequent development of this institution through supranational actors’ concerted efforts to remove obstacles of all sorts which might circumscribe the mobility, freedom and dignity of all those exercising free movement rights in the host and home member states have validated further the socio-political substratum of free movement. Accordingly, free movement rights have been pronounced to be directly effective so that individuals can rely upon them in national courts. In line with the incremental progress of European integration, the rights to cross state borders and to enter the territory of another member state with a view to become a resident were no longer confined to workers who possessed offers of employment under Article 39 (3) (a) TEC. They were extended first

  See the fifth preamble to Council Regulation (EEC) on freedom of movement for workers within the Community of 15 October 1968, Document no. 1612/68, 19 October 1968.  The rights-based approach to free movement rights is manifested in Advocate General Trabuchi’s Opinion in Case C-7/75, Fracas v Belgium [1975] ECR 679.   Second Adonnino Report on a People’s Europe (1985), BEC, supplement 7/85, p. 18.   See Closa (1992; 1998); Kostakopoulou (2001; 1996); Preuss (1996); Shaw (1997); Wiener (1997); Wiener and Sala (1997); Bellamy and Warleigh (2001).   See Case C-167/73, Commission v France [1974] ECR I-359; Case C-41/74, Van Duyn v Home Office [1974] ECR I-1337; Case C-36/74 Walrave v Association Union Cycliste Internationale [1974] ECR I-1405; Case C-415/93, ASBL and Others v Jean-Marc Bosman [1996] ECR I-4921; Case C-281/98, Angonese v Cassa di Risparmio di Bolzano SpA [2000] ECR I-4139; Case C-350/96, Clean Car Autoservice GmbH v Landeshauptmann von Wien [1998] ECR I-2521.

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to workseekers in the 1970s and 1980s and in the early 1990s to non-active economic actors. In the same vein, the principle of non-discrimination which lies at the heart of the free movement provisions was extended beyond the workplace into the wider social environment of the host member state thereby requiring the equal treatment of Community nationals with respect to social and tax advantages, access to vocational schools and retraining centres, education, housing, trade union participation, exportable social security benefits and retirement.10 In this respect, a wide range of advantages and social assistance benefits were deemed to fall within the ambit of Article 7 (2) of Council Regulation 1612/68.11 Family reunification was also seen to facilitate ‘the integration of the worker and his family into the host member state without any difference in treatment in relation to nationals of that state’.12 And the grant of an entitlement to remain in the host member state, following retirement, an industrial accident or disease contracted, protected the worker and his family from the pain and inconvenience of abrupt uprooting, thereby demonstrating the weight that integration carried.13 In the domain of political participation, too, Community institutions recognised at an early stage that the exercise of free movement rights was rendered ineffective by Community nationals’ disenfranchisement in the host member state. In search of a remedy, the idea of special rights for Community citizens first appeared in 1972.14 It was then taken up in the Paris Summit conference in 1974, featured in the Tindemans Report (1973) and in the Adonnino Committee’s second Report, which was submitted in 1985, and finally culminated in the Commission’s proposed Directive on voting rights for Community nationals in local elections in their   Case C-48/75, Procureur du Roi v Royer [1976] ECR 497; Case C-292/89, R v Immigration Appeal Tribunal, ex parte Antonissen [1991] ECR I-745.   This extension was subjected to the fulfilment of the following two conditions: possession of sickness insurance and self-sufficiency. 10  For an excellent and detailed overview of this, see Craig and de Búrca (2008) and Chalmers et al. (2006). 11  See, for example, Case C-315/94, Peter de Vos v Stadt Bielefeld [1996] ECR I1417; Case C-32/75, Fiorini v SNCF [1975] ECR I-1085, [1976]; Case C-207/78, Ministere Public v Even and ONPTS [1979] ECR I-2019; Case C-65/81, Francesco and Letizia Reina v Landeskreditbank Baden-Wurttemberg [1982] ECR I-33; Case C-316/85, Centre Public d’Aide Sociale de Courcelles v Lebon [1987] ECR I-2811; Case C-138/02, Brian Francis Collins v Secretary of State for Work and Pensions [2004] ECR I-2703; C-279/93, Finanzamt Koln-Altstadt v Roland Schumacker [1995] ECR I-0225; Case C-356/98, Kaba v Secretary of State for the Home Department [2000] ECR I-2099. 12  Case C-249/86, Commission v Germany (Re Housing of Migrant Workers) [1989] ECR I-1263, paragraphs 10 and 11. 13 Article 39 TEC and Regulation (EEC) no.1251/70, 29 June 1970. The latter Regulation has been replaced by the Council Directive 2004/38. 14  See the Commission’s initiative on the grant of electoral rights to Community nationals residing in a member state other than their own (BEC 1972) and the Declaration on European identity (Annex 2 to Chapter II, 7th General Report EC, 1973).

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member state of residence under Article 235 TEC.15 What was quite distinctive in those legislative initiatives and the jurisprudence of the Court on workers’ rights was the systematic endeavour on the part of the Community to lower the barriers that set nationals and Community nationals apart by removing the nationality requirement in the workplace, the broader social context, the electoral field and by conferring rights. Through the removal of existing obstacles and protectionist legal provisions, Community nationals would be able to reside under the same conditions as nationals of the host state. Facilitating the process of integration of the migrant worker and his/her family into the fabric of the member state thus became a priority and a purposely broad and liberal application of the principle of non-discrimination served precisely this objective. Since the late 1960s Community workers have thus enjoyed a wide range of substantive rights which are directly enforceable: to move freely within the Union and to stay these for the purpose of employment; to have equal access to any form of employment even that requiring official authorisation; to enjoy equal treatment in respect to conditions of employment, remuneration and dismissal; and to enjoy all benefits accorded to national workers, such as social and tax advantages, housing and trade union participation. The length of their residence or of employment is immaterial for being a legitimate beneficiary of a social advantage, for this depends on one’s status as a worker or resident in the national territory.16 Spouses and dependent relatives on the descending and ascending lines have the right to install themselves with the primary beneficiary and to take up employment.17 The wide protection given by the EC law to Community nationals and their families has also been attested by the fact that the principle of non-discrimination contained in Article 39 (2) TEC has not been confined to cases suggesting a clear and direct differentiation between nationals and Community nationals. In a number of influential cases, the ECJ has made it clear that the member states should refrain from imposing additional requirements that discriminate indirectly against Community nationals thereby preventing the free movement provisions from having full force and effect. Differential treatment thus must be objectively justified and be proportionate.18 Even non-discriminatory restrictions may be in breach of 15 BEC, Supplement 2/88, p. 28. 16  Case C-207/78, Ministere Public v Even and ONPTS [1979] ECR I-1447. 17  See Articles 2 (2), 6 (2) and 7 (1) (d) and Article 23 of Council Directive 2004/38. 18 The jurisprudence on indirect discrimination is extensive. For an example, see Case C-15/69, Ugliola [1970] ECR I-363; Case 152/73, Sotgiu v Deutsche Bundespost [1974] ECR I-153; Cases C-259, 331 and 332/91, Allue v Universita degli Studi di Venezia [1993] ECR I-4309; Case 44/72, Marsman v Rosskamp [1972] ECR 1243; Case C-419/92, Scholz v Opera Universitaria di Cagliari [1994] ECR I-505;Case C-187/96, Commission v Hellenic Republic [1998] ECR I-1095; Case C-278/03, Commission v Italy [2005] ECR I-3747; Case C-285/04, Office national de l’emploi v Ioannidis [2005] ECR I-8275; Case C-400/02, Merida v Bundesrepublik Deutschland [2004] ECR I-8471; Case C-152/03, Ritter-Coulais v Finanzamt Germersheim [2006] ECR I-1711.

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the Treaty if they are liable to prohibit or otherwise impede the exercise of the fundamental freedoms.19 By adopting a rights-based approach aimed at procuring equality of treatment, the Community has gradually transformed foreigners’ or ‘aliens’ into associates in a common venture and pioneered wide-ranging cultural change (Kostakopoulou 1998, 461). And notwithstanding the existence of discourses on European identity and various attempts to graft nationalist or quasi-nationalist ideas onto the EU, neither the Community nor its member states have ever contemplated the idea that the presence of Community workers in the territory of another member state would undermine social cohesion. Nor have they considered it appropriate to ask them to demonstrate their commitment to the host country and their acceptance of national values and to embrace the way of life of the host state. For this reason, naturalisation does not hold the key to membership in the receiving member state. On the contrary, national borders and internal boundaries of membership have been gradually relaxed, not from within, but from outside, that is, through the conferral of rights on individuals and by enhancing their status in the host member state (integration as equal treatment) (Kostakopoulou 2001a, 102). Even linguistic requirements were pronounced to be indirectly discriminatory and were thus outlawed by EC law, unless the nature of the employment post to be filled by a Community national requires fluency in the host language.20 This process of achieving integration through equalisation transcended the national frame of reference and gave birth to a new conception of Community in theory and practice. Community belonging was no longer defined on the basis of organic-national qualities, cultural commonalities or conformity, but on the basis of de facto associative relations and connections brought about through residence and on de jure equal membership as far as it was possible. Building on, and further reinforcing this process, the establishment of Union citizenship in 1992 at Maastricht generated a citizenship problematique which gradually inspired the emergence of an ethic of solidarity (integration as solidarity). This problematique was taken up by the European Commission and the ECJ. As the Commission stated in its Second Report, Union citizenship led to a conceptual metamorphosis of the Community rights of free movement and 19  In Pusa Advocate General Jacobs stated that, far from being limited to a prohibition of direct or indirect discrimination, Article 18 EC applies to non-discriminatory restrictions, including unjustified burdens; Case C-224/02, Heikki Antero Pusa v. Osuuspankkien Keskinainen Vakuutusythio [2004] ECR I-5763. See also Case C-406/04, G. De Cuyper v. Office national de l-emploi [2006] ECR I- 6947; Case C-365/02, Lindfors [2004] ECR I-7183; Case C-403/33, Schempp v Finanzamt Munchen V [2005] ECR I-6421; Case C192/05, K. Tas-Hagen, R. A. Tas v. Raadskamer WUBO van de Pensioen - en Uitkeringsraad, [2006] ECR I-10451; Case C-76/05, Schwarzand Gootjes-Schwarz [2007] ECR I-0000; and Joined Cases C-11/06 and C-12/06 Rhiannon Morgan v Bezirksregierung Köln and Iris Bucher v Landrat des Kreises Düren, 23 October 2007. 20  See Article 3 (1) of Council Regulation (EEC) (1968) on freedom of movement for workers within the Community, Document no. 1612/68, 15 October 1968; and Case C379/87, Groener v Minister for Education [1989] ECR I-3967.

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residence by enshrining them in the Treaties themselves.21 And in its Resolution on the Commission’s Report, the European Parliament also noted that Union citizenship ‘constitutes the guarantee of belonging to a political community under the rule of law’.22 Whereas in the past (1957-1993) the integration of the Community national and his/her family into the fabric of the receiving society was associated with equal treatment, in the new ‘citizenship’ phase integration not only deepens, but it also gives rise to claims of social solidarity irrespective of nationality. Accordingly, the real links and connections that not only workers but also a wider class of persons may have with the host and home societies receive careful consideration and are given weight. Beginning with Sala, the ECJ signalled its intention to capitalise on the constitutional importance of European citizenship by bringing citizens lawfully resident in another member state, but who were not active economic actors, within the scope of the protection afforded by the non-discrimination clause (Article 12 TEC).23 The requirement of the 1985 Federal Law that a Community national had to produce a residence permit in order to receive a child-raising allowance, when that state’s own nationals were not required to produce any document, amounted to unequal treatment prohibited by Article 12 TEC. Union citizenship thus provided a sufficient connection with Community law to trigger application of Article 12 TEC. The ECJ’s intention to give substance to Union citizenship was made apparent in Crzelczyk. In this case, the Court ruled that students studying in another member state and facing temporary economic difficulties can rely on the non-discrimination clause in claiming social advantages. After all, ‘Union citizenship is destined to be a fundamental status of nationals of the member states, enabling those who find themselves in the same situation to enjoy the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for’.24 In this respect, a certain degree of financial solidarity between nationals of a host member state and nationals of other member state must be recognised, particularly in cases of temporary economic difficulties, provided, of course, that Community nationals do not become an ‘unreasonable’ burden on the receiving state.25 Students who face temporary economic difficulties in the member state in which they study therefore should not be seen as strangers and a problem; rather, they are associates entitled to equal treatment. In Bidar,26 the Court ruled that students who have demonstrated ‘a certain degree of integration into the society of the host 21 European Commission (1993), First Report on the citizenship of the Union, COM(93) 702 final, Brussels, 21 December 1993. 22 European Parliament, Resolution on the Second Report from the Commission on citizenship of the Union, COM(97) 230 C4-0291/97, OJ C 226, 20 July 1998, p. 61. 23  Case C-85/96, Sala v Freistaat Bayern [1998] ECR I-2691. 24  Case C-184/99, Rudy Grzelczyk v Centre public d’aide sociale d’OttingniesLouvain-la-Neuve [2001] ECR I-6193, paragraph 31. 25  Ibid, paragraph 46. 26  Case C-209/03, Bidar v London Borough of Ealing, [2005] ECR. I-2119.

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state’ can claim maintenance grants.27 But the member states are also entitled to ensure that ‘the grant of assistance does not become an unreasonable burden’. Even though the requirement of demonstrating ‘a certain degree of integration’ is not sufficiently clear, the Court has, nevertheless, indicated that a reasonable period of lawful residence28 and the ensuing immersion in a web of interactions in the host state29 generates an entitlement to non-discrimination and equal treatment in the social field. Further, the Court ruled in Trojani that a lawfully resident non active economic actor is entitled to a social assistance benefit on the basis of Article 12 TEC,30 whereas in Collins, the absence of a genuine link between a jobseeker and the employment market of the host state invalidates an entitlement to a jobseeker’s allowance.31 As the Court stated ‘in view of the establishment of EU citizenship and the interpretation of the case law of the right to equal treatment enjoyed by Union citizens, it was no longer possible to exclude from the scope of Article 48 (2) TEC, which is an expression of equal treatment, a benefit of a financial nature intended to facilitate access to employment in the labour market of a member state’.32 In D’Hoop the Court highlighted that Union citizenship forms the basis of rights to equal treatment, irrespective of nationality,33 and noted that it would contravene EC law if a citizen received in her/his own member state treatment less favourable than that s/he would otherwise enjoy had s/he not availed her/himself of the right to free movement.34 However, in De Cuyper the Court upheld the proportionality of Dutch measures which conditioned an entitlement to unemployment allowance on actual residence in the Netherlands on the ground that the effective monitoring of the employment and family situation of unemployed persons could not have

27  In Bidar’s case, a subsidised student loan. They can thus rely on Article 18 TEC in conjunction with Article 12 TEC. 28  Ibid. See also Case C-456/02 Trojani v CPAS [2004] ECR I-7573, paragraph 43. The ECJ refers to ‘lawful residence in the host member state for a certain time or the possession of a residence permit’. 29 Bidar had completed his secondary education in the UK. 30  See no. 28 above. 31  Case C-138/02, Brian Francis Collins [2004] ECR I-2703. Similarly, the taking up of residence abroad is not a satisfactory indicator of a loss of connection with one’s home member state which is demonstrating its solidarity with the applicant by granting a civilian war benefit to him/her; Case C-192/05, K. Tas-Hagen and R.A. Tas [2006] ECR I-10451. 32  Ibid., paragraph 63. 33  Case C-224/98, Marie-Nathalie D’Hoop v Office national de l’emploi [2002] ECR I-6191. 34  Compare also Case C-258/04, Ioannidis [2005] ECR I-8275. Ioannidis was denied a tide over allowance on the grounds that he had completed his secondary education in another member state. See also Pusa (Kostakopoulou 2002a).

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been achieved by less restrictive measures, such as the production of documents or certificates.35 In Baumbast, the Court went beyond the predictive confines of settled law in order to derive a new right of residence for a parent who is the primary carer of a child studying in a host member state (Article 12 of Council Regulation 1612/68) and to rule that Article 18 (1) TEC has created directly effective rights enforceable in national courts.36 Although the German and UK Governments submitted that Article 18 (1) TEC did not create a directly effective right because it was not intended to be a free-standing provision, the ECJ relied on the normative weight of Union citizenship and ruled that this right is conferred directly on every citizen of the Union and therefore stated that ‘Purely as a national of a member state, and consequently as a citizen of the Union, Mr Baumbast therefore has the right to rely on Article 18 (1) TEC’.37 Any limitations and conditions imposed on that right must be applied in compliance with the limits imposed by Community law and in accordance with the general principles of that law. Such an interpretation further weakened the link between economic status and the right to free movement and reflected broader normative aspirations for a constructive understanding of European citizenship that eventually found their way into juridicopolitical reform ten years after the establishment of this institution. Directive 2004/38 reflects this understanding of citizenship. EU citizens, and their families, residing on the territory of a member state for more than three months are entitled to reside there as long as they do not become an unreasonable burden on the social assistance system of the host member state, enjoy enhanced protection against expulsion, and have a right of permanent residence after a period of five years’ continued residence. Permanent residents are entitled to enjoy equal treatment with nationals in the areas covered by the Treaty.38 The creation of a typology of residence rights (that is, for a period not exceeding three months, for more than three months but not exceeding five years and five years or more) to which different social entitlements are attached (that is, no obligation to grant entitlement to social assistance, a Union citizen may rely on social assistance, but must not be an unreasonable burden, full entitlement to social assistance) reflects the differing strength of the associative bonds Community nationals establish with the host society over time and their graduated sense of belonging. The jurisprudence examined above shows that the ECJ, and other EU supranational actors, such as the European Commission, have adopted a principled and pragmatic approach to integration. They have not accorded priority to cultural 35  Case C-406/04, G. De Cuyper v Office national de l’emploi [2006] ECR I-6947; Compare also Case C-365/02 Lindfors [2004] ECR I-7183 and Case C-403/33, Schempp v Finanzamt Munchen V [2005] ECR I-6421. 36  Case C-413/99, Baumbast, R v Secretary of State for the Home Department, [2002] ECR I-7091. 37  Ibid, paragraph 84. 38  See Article 16 et seq.

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assimilation, oaths of allegiance and declarations of acceptance of the values of the host society. Instead, emphasis has been put on ‘facilitating exchanges between people’, creating associative relations and partnerships, cultivating mutual respect and promoting equal treatment irrespective of nationality. Such an approach implicitly affirms diversity and recognises that whether newcomers will develop feelings of belonging and a sense of identification with the host society depends as much on the kind of institutions and practices of membership that will regulate their lives as on the way they will be treated by the host country. As a fundamental status, Union citizenship helps create a collegiate environment within which individuals are given the opportunity to thrive and to contribute to the success of the host community. Parity of treatment and promoting a sense stakeholdership are thus the crucial means of improving the conditions and experience of social membership and citizenship for everybody, thereby bringing the peoples of Europe closer together. Equal treatment, social inclusion and equal participation capture the meaning of integration in EC law over the last 50 years. Parallel Developments: T he Contiguous Effect of EC Law While EC law challenged the unitary conceptions of demos which relegated nonnational residents to the periphery of society by enhancing the membership status of Community nationals in the member state of their residence and prohibiting discrimination on the basis of nationality, the position of TCNs who had no connections with EC law, owing to their family links with Community nationals or as employees of Community based companies providing cross border services or as beneficiaries of three generation agreements signed between the Community and third countries (see Willy 1992; Evans 1994, Peers 1996; Guild 1999b; Staples 1999; Groenendijk 2001), was seen to fall within the regulatory regime of the member states. National migration laws had been viewed as the reserve of state sovereignty and Community institutions were very reluctant to encroach upon it. In the period between 1961 and 1985, the Commission pursued a minimalist agenda aimed at suggesting improvements in the working conditions and living standards of migrants workers, education, vocational training and in housing.39 Protection of ‘the vulnerable’, in the sense of attending to their needs and fighting marginalisation, providing educational opportunities and combating racism was the main objective of Community action. By adopting the vulnerability model (Kostakopoulou 2002a), the Commission bracketed the power structures which set TCNs apart from Community nationals and failed to recognise their legitimate claims to equal membership in the European polity and to equal protection. Following the entry into force of the Single European Act (SEA), however, a more coherent normative vision began to emerge. The EP made important 39 European Commission (1985), Guidelines for a Community migration policy COM(85) 48 final, Brussels, 20 April 2002.

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interventions by recommending the extension of free movement rights to all Community workers irrespective of nationality and policy isomorphomism in family reunification rights.40 It also suggested that non-EC migrants should enjoy protection from discrimination on the same footing as Community nationals and that they should be granted electoral rights.41 Within the context of its Programme Relating to the implementation of the Community Charter of Fundamental Social Rights for Workers – Priorities for 1991/1992, the Commission also suggested the grant of free movement and free establishment rights to TCNs who had been residing legally in the Union for five years.42 The introduction of the intergovernmental Justice and Home Affairs Pillar at Maastricht made the position of long-term resident TCNs more visible and the Commission’s 1994 Communication suggested concrete improvements to the status of TCNS which could meet the Councils’ approval.43 The establishment of Union citizenship at Maastricht raised the stakes and led to proposals to replace nationality-based paradigm with a domicile-based paradigm that would include long-term resident TCNs. But the political will for such a radical reform was absent. Instead, the member states continued to view TCNs as a subject class dependent on national migration laws. The Council conveyed member states’ opposing views of integration as regards TCNs; namely, one of subjecthood and qualified inclusion. According to the Council’s 1996 Resolution on the status of TCNs who reside on a long-term basis in the Territory of the member states, integration was to be promoted because it ‘contributes to greater security and stability, both in daily life and in work, and to social peace in the various Member States’ – and not because it was required by principles such as fairness, democracy and respect for cultural diversity.44 Accordingly, TCNs would not enjoy free movement rights and would have no protection against discrimination as regards access to employment, the enjoyment of social and tax advantages and access to training in vocational schools and retraining centres. The partial Communitarisation of the Third Pillar at Amsterdam45 brought matters relating towards TCNs within the Community’s (mixed) competence and 40 European Parliament (1989), Resolution on the Declaration of fundamental rights and freedoms, no. A2-0003/89; European Parliament (1989) Resolution on the Joint Declaration against racism and xenophobia and an Action Programme by the council of Ministers, no. A2-261/88; European Parliament, Resolution on freedom of movement for non-EEC nationals, no. A3-175/90, OJ C175, 16 July 1990. 41 European Parliament, Resolution on the free movement of persons, A3-0199/91, OJ C 159/12-15, 17 June 1991. 42 A3-175/90, OJ 260 15 October 1990, p. 173. 43 European Commission, Communication on immigration and asylum policy, COM(94) 23 Final, Brussels, 23 February 1994. 44  Council Resolution of 4 March 1996 on the status of third-country nationals residing on a long-term basis in the territory of the Member States, OJ C 080 , 18/03/1996, p. 0002-0004. 45 The Treaty was signed on 2 October 1997 and entered into force on 1 May 1999.

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magnified the radiation effect of EC law. The rights-based approach adopted by EC law began to leak thereby opening up opportunities for strengthening the legal position of TCNs and for the development of a comprehensive, legally binding and principled regulatory framework. The frame of integration as equal treatment and equal participation permeated the previously restrictive framework and called for consistency in the legal statuses of EU citizens and long-term resident TCNs, respectively. This entailed the removal of unjustified differential treatment between the two classes of workers and the approximation of the legal status of long-tem resident TCNs to that of EC nationals. In the Tampere summit in October 1999, the Heads of State and Government expressed their determination to make ‘full use of the possibilities offered by the Treaty of Amsterdam’ and stressed the need for a common approach to ensure the integration of long-term resident TCNs in the EU. According to the Tampere Presidency Conclusions, a vigorous integration policy encompasses the grant of rights and obligations comparable to those of Union citizens: ‘a set of uniform rights which are as near as possible to those enjoyed by Union citizens; for example, the right to reside, receive an education and work as an employee or self-employed person as well as the principle of nondiscrimination vis-à-vis the citizens of the state of residence’ and the provisions of opportunities for naturalisation in the host member state. In line with the Tampere mandate and in an attempt to go beyond the piecemeal approach to the legislative programme set out in Article 63 TEC, the Commission issued a Communication on a Community immigration policy in November 2000.46 In the Commission’s opinion, the common thinking on integration policy could culminate in a form of ‘civic citizenship’ based on the TEC and inspired by the Charter of Fundamental Rights. In this respect, the Communication used the Charter of Fundamental Rights as a reference point for the creation of ‘civic citizenship’ and the possibility of granting free movement rights to long-term resident TCNs. ‘Enabling migrants to acquire such [civic] citizenship after a minimum period of years might be a sufficient guarantee for many migrants to settle successfully into society or be a first step in the process of acquiring the nationality of the member state concerned’.47 Civic citizenship suggested the possibility of a harmonised national denizenship status for long-term resident TCNs coupled with the grant of European denizenship. The most visible manifestation of the radiation effect of the template of integration as equal treatment were the Commission’s proposed Directives on family reunification (1999) and on the status of long-term resident TCNs (2001). The former Directive48 was based on Article 63 (3) (a) TEC and sought to harmonise national legislations in this area by granting the right to family reunification to all 46 European Commission (2000), Communication on a Community immigration policy, COM (2000) 757, Brussels, 22 November 2000. 47  Ibid, pp. 19-20. 48 European Commission (1999), Proposal for a Council Directive on the right to family reunification, COM(1999) 638 final, Brussels, 1 December, 1999; European

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TCNs who reside lawfully in a member state and hold a residence permit for at least a year regardless of the purpose of their residence. The draft Directive on the status of TCNs who are long-term residents was based on Articles 63 (3) (a) and 63 (4) TEC and was designed to harmonise national laws governing the conditions for the acquisition and the scope of long-term resident status, and to grant longterm resident TCNs the right of residence in the other member states.49 Both Directives mirrored Community law’s emphasis on equal treatment and in certain respects provided advances. For instance, in the family reunification Directive the definition of family members included spouses and cohabitees who could be of the same sex. It also granted an autonomous right of residence to members of the nuclear family after four year’s residence and entailed the possibility of an earlier application in cases, such as separation, divorce or death. And it stated that after one year’s residence, if the applicant were in a particularly difficult situation, the member states would be obliged to issue an autonomous residence permit. Similarly, the long-term residents draft Directive stated that long-term resident TCNs will enjoy enhanced protection against expulsion and are entitled to ‘equal treatment’ as regards access to employment and self-employed activity, conditions of employment and working conditions, education and vocational training, including study grants, recognition of qualifications, social security and health care, social assistance, social and tax advantages, access to goods and services including public and private sector housing and freedom association and union membership. In sum, the draft versions of the Directives signalled that the time was ripe for normative interventions and institutional innovations and made it clear that responding positively to TCNs’ plight for equality and inclusion in the emerging Euro-polity was a priority on the Community’s policy agenda. Breaking Contiguity… The Commission’s original proposals concerning family reunification and long-term resident status did not meet the Council’s approval. True, the negotiations took place within a different political climate. The 9/11 acts of political violence had triggered new restrictive measures towards migrant settlers and new entrants and facilitated the spread of anti-migrant rhetoric which had begun to find institutionalised expression in certain countries, such as the Netherlands50 and, to a lesser extent, in

Commission (2000), Amended proposal for a Council Directive on the right to family reunification, COM(2000) 624 final, Brussels, 10 October 2000. 49 European Commission (2001), Proposal for a Council Directive concerning the status of third-country nationals who are long-term residents, COM(2001) 127 final, Brussels, 13 March 2001. 50  For a discussion of the case of the Netherlands refer to de Groot et al. Chapter 3; and Besselink, Chapter 13 of this book.

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the UK.51 Migration was often associated with the ‘threat of terrorism’ and Muslim residents were treated with suspicion and perceived to be ‘an enemy within’. In the new political environment, the state found space to present itself as a tough and protective agent. Uncritical readings of Islam as being antithetical to Western culture and democracy led to the re-introduction of policies for ‘social cohesion’, ‘integration’ and ‘assimilation’, including the official promotion of national identity, official lists of national values, compulsory language courses and tests for migrants, naturalisation ceremonies and oaths of loyalty. As the discourse on integration and the promotion of social cohesion began to displace multiculturalism and the politics of recognition, national categories of integration were uploaded at EU level by certain member states, thereby prompting a shift in the normative framing and meaning of integration in EU law and policy. This uploading of national discourses and categories took place on two fronts: First, during intergovernmental bargaining in the Council, as member states sought to dilute the Commission’ proposals and to make them fit with their own migration rules; and second, in the articulation of an EU Framework on Integration which gave them the opportunity to define the meaning and terms of integration in an authoritative way on a pan-European basis. Both developments will be considered sequentially. Bound by N ational Categories The legislation concerning family reunification and the status of long-term residents adopted in the Council does not reflect the vision expressed in the original Commission’s proposals. For instance, in Directive 2003/86 on the right to family reunification Article 4 (1) limits the right to reunification for children above the age of 12 in order to preserve the full integration capacity of the member state. According to Directive 2003/86/EC spouses may be required to have the minimum age of 21 years in order to be able to rely on the Directive for re-uniting with their sponsor. The purpose of this age limit is said to ensure better integration and to prevent forced marriages.52 But this gives rise to a paradoxical conception of integration: children are supposed to integrate better into a new society if they under the age of 12 or 15, as provided for under Articles 4 (1) and (6) of the same Directive, whereas spouses integrate better if they are 21 years old or older. 51  In the UK, the Nationality, Immigration and Asylum Act 2002 ‘thickened’ naturalisation policy by including ‘integration’ requirements, such as ‘sufficient knowledge about life in the United Kingdom’, in addition to language proficiency. It also modernised the current oath of allegiance and introduced a citizenship pledge to be taken during citizenship ceremonies. Such reforms were, allegedly, needed in order to end the current ‘mail order’ approach to the acquisition of British nationality, to give symbolic significance to the acquisition of citizenship and to enhance the integration of migrants. 52  Council Directive 2003/86/EC, Article 4 (5).

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In addition, besides good accommodation, sickness insurance for the whole reunited family, and stable resources that guarantee the self-sufficiency of the family in the host state, it is stated that TCNs may have ‘to comply with integration measures’ in accordance with national law (Article 7 (2)). Similar integration ‘conditions’ have been added to the long-term residents Directive 2003/109. Article 5 states that member states may require TCNs to comply with integration conditions in order to obtain long-term resident status. And in Chapter 3, it is provided that the holder’s residence in a member state other than the one where the status was acquired may be conditioned on fulfilling integration measures, if such measures had not been applied in the first member state where the status was acquired (Article 15 (3)). In any case, the second member state may require attendance of language courses. Such provisions provide insights into the dominant mindset of the majority of Council members at the point of adoption of the EU migration Directives as well as into dominant conception of integration. This has been noticed by Groenendijk (2004), who has differentiated three different perspectives on the relationship between law and integration which compete in official discourses at member state and EU levels. The first one supports the idea that securing a legal status will enhance the immigrant’s integration in society; the second one considers naturalisation or permanent resident status as the remuneration for a completed integration; and the third one considers the lack of integration as a ground for refusal of admission in the country and access to EU rights provided by EU migration law. Cholewinski (2005) has also noted that the third perspective is a recent innovation in EU migration law and reflects certain member states’ tendency to construct a more exclusionary conception of integration and to infuse it into EU law. Accordingly, the responsibility of integration is placed upon the migrant himself/herself who has to go through language proficiency and cultural-aptitude tests and courses in order to be deemed to be deserving of rights (Oger 2005). On this conception of integration, status and rights are the reward for integration, and not the necessary means of procuring the latter. T he H ague Programme and the Common Basic Principles Prompted by calls for the development of a Community framework in integration,53 the meeting of the JHA Council of October 2002 represented an opportunity for laying the foundations for the establishment of an EU Framework on Integration.54 It was suggested that a group of National Contact Points on Integration (NCPI) 53 European Economic and Social Committee (EESC) (2002), Opinion on immigration, integration and the role of civil society organisations, SOC/075, Brussels, 21 March 2002, rapporteur: Mr. Pariza Castaños, point 3 (6) (1). 54  Justice and Home Affairs and Civil Protection, Council meeting 2455, Document no. 12894/02, Luxembourg, 14-15 October 2002.

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should be set up, comprising one or two officials from each Member State, including the UK, Ireland and Denmark. The main tasks of this transnational forum, which had its first meeting in Brussels in March 2003, are to facilitate the exchange of information, monitor progress and to strengthen policy coordination and the dissemination of ‘best practices’ at the national and EU levels. The NCPI have actively participated in the elaboration of the most relevant policy tools in this area, such as the two Handbooks on Integration. The first edition of the Handbook on Integration was elaborated by the Migration Policy Group (MPG) on behalf of the European Commission (DG Justice, Freedom and Security) in November 2004 (Niessen and Schibel 2004). Its objective was ‘to act as a driver for the exchange of information and best practices between the member states’. The two kind of integration programmes from which the Handbook drew ‘best practices’ were the introduction of courses for ‘newly arrived immigrants’ and civic participation. It also explored the use of indicators and benchmarks (Carrera 2008), identified priority areas, ‘best practices’ at the national level and presented a set of policy recommendations (a ‘catalogue of inspiring ideas’) on integration policies destined to policy makers and practitioners. And although the meaning of integration was not defined in the Handbook, it nonetheless stated that the overall goal of integration is migrants’ ‘self-sufficiency’. It also linked the achievement of positive outcomes for TCNs with the development of ‘certain skills’ such as language proficiency and knowledge of the host society. The second edition was published in May 2007 (Niessen and Schibel 2007). It contains ‘good practices’ and ‘lessons learned’ drawn from the experience of policy-makers and practitioners across Europe. According to the new edition, critical for the improvement of what it called ‘immigrant’s outcomes’ are: the elimination of inequalities through a revival of the concept of civic citizenship promising security of residence and the acquisition of language proficiency skills and training/education. The Commission started preparing the common Framework on Integration with its Communication on immigration, integration and employment which was published in June 2003.55 The latter defined integration as ‘a two-way process based on mutual rights and corresponding obligations of legally resident TCNs and the host society. Migrants have ‘a duty’ to ‘respect the fundamental norms and values of the host society and participate actively in the integration process, without having to relinquish their own identity’. The same conception of integration as a two-way process encompassing rights and obligations featured in the conclusion of the European Council meeting in Thessaloniki in June 2003. The Conclusions refer to the Tampere milestones and the grant to TCNs of rights and obligations

55 European Commission (2003), Communication on immigration, integration and employment, COM(2003) 336 final, 3 June 2003, Brussels.

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‘comparable’ to EU citizens,56 and entail a call for the development of a set of ‘common basic principles for immigrant integration’.57 At its meeting in November 2004, the European Council adopted the Hague Programme which is essentially a legislative and policy roadmap in the Area of Freedom, Security and Justice for the period 2005-2010 (see Balzacq and Carrera 2006).58 As the Hague Programme includes integration as a key policy area,59 the JHA Council which met two weeks later proceeded to adopt the so-called Common Basic Principles on Immigrant Integration Policy (CBPs).60 Among the eleven CBPs, the following two may be highlighted due to their new nature as regards the framing of integration in EC law and policy. CBP 2 states that integration implies respect for the basic values of the EU. This principle involves the obligation by ‘every resident in the EU’ needs to adapt and adhere closely to the basic values of the Union and the laws of the member states. The member states have to ensure that all residents ‘understand, respect, benefit from, and are protected on an equal basis by the full scope of values, rights, responsibilities, and privileges established by the EU and member state laws’. Further, CBP 4.2 stipulates that ‘basic knowledge of the host society’s language, history and institutions is indispensable for integration; enabling immigrants to acquire this basic knowledge is essential to successful integration’. It is worth mentioning here that a Spanish proposal to include an express reference to the maintenance of the languages and culture of origin of TCNs was not well received by the other member states (see López Pich 2007). Clearly, the paradigm shift from fairer treatment and participation to migrants’ obligations (CBP 2 and CBP 4) signals the decisive impact of national categories of integration on the EU Framework on Integration. The latter in turn functions as a legitimising device for the former. There exists no rival perspective at the EU level to counterbalance the predominant national approaches requiring migrants to prove their commitment to the host society by engaging in performative acts, such as citizenship ceremonies and public declarations of allegiance, to demonstrate their ‘willingness to integrate’ by studying for, and passing, civic 56  Council of European Union (2003), Presidency Conclusions, Thessaloniki European Council 19-20 June 2003, Document no. 11638/03, paragraphs 28-31. 57 The Council also called for the production of an Annual Report on migration and Integration in Europe. This was published in 2004 (COM(2004)508, Brussels, 16 July 2004). The Second Annual Report was published in 2006 (SEC(2006) 892, Brussels, 30 June 2006), while the Third Annual Report was published in 2007 (COM(2007)512, Brussels, 11 September 2007). See Urth (2005). 58 Brussels European Council, Presidency Conclusions, 4 and 5 November 2004, 14292/1/04, Brussels, 8 December 2004, Annex I, ‘The Hague Programme: Strengthening Freedom, Security and Justice in the European Union’, 2005/C53/01, OJ C53/1, 3.3.2005. 59  (Schneider 2005). 60  Council of European Union (2004), Justice and Home Affairs Council Meeting 2618th, ‘Common Basic Principles on Immigrant Integration Policy in the European Union’, 14615/04, Brussels, 19 November 2004.

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integration tests. Indeed, the Commission’s Third Annual Report on migration and integration61 clearly stated that ‘most concepts present in member states’ integration policies are codified by the CBPs and they are, to different extents, reflected in their integration strategies’. And the summary report on integration policies at EU-27 identified the impact that the CBPs are already having in some member states and confirmed the trend concerning the spread of ‘mandatory integration programmes’ (Carrera 2006a; 2006c).62 Perhaps, the most worrying manifestation of the almost hegemonic grip of the national, sanctions-based and law enforcement approach to integration is the proposal for the development of European Modules for Migrant Integration (EMMI). Taking into account governmental interests and capitalising on the experience drawn from the drafting of the Handbook on Integration, the modules are envisaged to provide guidelines and common standards, which will include a dimension on ‘European values’. This has been confirmed by the Commission Staff Working Document on strengthening actions and tools to meet integration challenges of 8 October 2008.63 The Commission stated that ‘Common European Modules will be the building blocks for comprehensive integration strategies covering the various aspects of the integration process’, and they will include ‘organisation of language courses for newly arrived immigrants, organisation of civic courses on the host society’s history, institutions and the common shared values of the EU’. Clearly, these suggestions demonstrate that the contiguous effect of the equal treatment and equal participation frame of integration has been blocked. The Tampere commitment to ‘fairer treatment’ and ‘rights comparable to those enjoyed by EU citizens’ appears to be a forgotten vision. The balance has been tipped in favour of a restrictive approach that uses integration conditions as a means of filtering the population seeking entry, keeping the undesirables out, testing the resource and the commitment of the included, and of promoting ‘identificational’ integration. For migrants do not only have to learn the language of the host society and its history, but they also have to internalise its values and ways of life and to develop a disposition, containing emotional, rational and behavioural elements, which qualifies them for entry into the collective body of national citizens (Carrera 2009).

61 European Commission Communication (2007), Third Annual Report on migration and integration, COM(2007)512, Brussels, 11 September 2007. 62  Page 3 of the Communication states that ‘Introduction programmes are established in most Member States and they are compulsory in some countries, i.e. Austria, Belgium, Denmark, France, Germany, Greece and The Netherlands’. 63 European Commission (2008), Staff Working Document on strengthening actions and tools to meet integration challenges, Report to the 2008 Ministerial Conference on Integration’, SEC(2008) 2626, Brussels, 8 October 2008.

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T he Burden of Leadership The EC has at its disposal resources in order to counterbalance nationalist narratives aiming at producing an artificial homogenisation and conformity to national norms and ways of life. One such normative resource is the EC law frame of integration as equal treatment, equal participation and transnational solidarity. Another institutional resource is the capability to make normative interventions designed to ensure coherence in law and policy. However, both resources have not been utilised effectively at present. Not only has the Commission not articulated a coherent normative vision, but it also appears to share the meanings of integration which originate from some national arenas and to lend support to certain national approaches. This has been perhaps facilitated by the control and security-oriented rationale characterizing the DG JFS of the Commission, which holds the integration dossier and which is inspired by the focus prevailing in the national Ministries of Interior and Home Affairs. As a way of illustration, in its Communication on a common agenda for integration – Framework for the Integration of TCNs in the European Union, for instance, the Commission presented a series of ‘suggested actions or a road map’ with a view to enhancing the practical applicability of the CBPs at the national and EU levels.64 Concerning the CBP 2 the Commission called for: ‘Emphasising civic orientation in introduction programmes and other activities for newly arrived third-country nationals with the view of ensuring that immigrants understand, respect and benefit from common European and national values’ (emphasis added). And with respect to CBP 4.2, it suggested strengthening the nexus between integration and legal admission procedures through ‘predeparture measures such as information packages and language and civic orientation courses in the country of origin. Organising introduction programmes and activities for newly arrived third-country nationals to acquire basic knowledge about language, history, institutions, socioeconomic features, cultural life and fundamental values’ (emphasis added). This constituted one of the first occasions where integration was so clearly and expressly linked with admission procedures ‘abroad’. Similarly, in its recent Communication on a common immigration policy in Europe ‘Principles, actions and tools’ of 17 June 2008, which contains a vision for the further development of a common EU immigration policy,65 the Commission identifies ten common principles upon which the common immigration policy will be based. One of the ten principles is the integration of ‘legal immigrants’. Among the set of concrete actions that the text proposes to be pursued at EU and/or member state level 64  Commission Communication (2005), A Common agenda for integration – Framework for the integration of third-country nationals in the European Union, COM(2005) 389, Brussels, 1 September 2005. 65  Commission Communication (2008), A common immigration policy for Europe: Principles, actions and tools, COM(2008) 359 final, Brussels, 17 June 2008.

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in this field, the Commission calls for supporting integration programmes that emphasise practical intercultural skills needed for effective adaptation as well as the commitment to fundamental European values; this could be further explored by identifying the basic rights and obligations for newly arrived immigrants, in the framework of specific national procedures (e.g. integration curricula, explicit integration commitments, welcoming programmes, national plans for citizenship and integration, civic introduction or orientation courses) (Emphasis added.).

Evidently, the idea that migrants have to earn their legal status, rights and inclusion in the host member states by meeting integration conditions over which they have had any input is taking root at the EU level. The Commission has been unable to respond to the various brands of nationalism that are mushrooming in Europe and the EU Framework on Integration mirrors, and thus lends legitimacy to, national trends and legislation displaying a retreat from multiculturalism and inclusive citizenship. But European institutions cannot shift the burden of leadership. There is an urgent need for a rethinking of the meaning and policies attached to integration at the national and EU levels with the view of sustaining the vision of a diverse and inclusive EU, which enhances rights protection and promotes a respectful symbiosis among its citizens and residents. For it would certainly be a pity if strategic and credible policy solutions were replaced with ideology and the old policies of assimilation. Nor should neo-nationalist conceptions of Community and short term partisan politics in the member states sideline common sense and the empowering vision of integration associated with equal treatment and Union citizenship. The rights-based and participation-oriented approach to integration has been overshadowed and undercut by the restrictive and sanctions-based approach with respect to TCNs and this undercutting creates a semantic trap. Whereas in the past the normative properties of the Community frame of integration influenced policy towards TCNs, we are now confronted with the risk that the EU Framework on Integration may lead to the opposite direction, that is, the new logic on integration may weaken the notion of integration as equal treatment and equal participation, characterising EC law. And if this happens, then the basic underpinnings of the European project might be called into question.

Chapter 10

Missing in Action: Effective Protection for Third-Country Nationals from Discrimination under Community Law Moritz Jesse

The protection from discrimination for Third-Country Nationals (TCNs) on basis of the combined effect of the Racial Equality Directive (RED) and the Long Term Residents Directive (LTRD) is weak. This will have detrimental effects for immigrant integration. Discrimination on grounds of nationality, race and ethnic origin during the application of immigration regulation by the member states can occur without proper protection or remedies against it deriving from EU law. The basic notion underlying this chapter is that European non-discrimination as well as immigration law in their combined application produces nothing but a ‘hollow circle of references’ to each other while providing no effective protection from discrimination. These lacunae stem from the member states’ efforts to preserve as much sovereignty in the field of immigration as possible. Unfortunately, other means of Community Law do not seem to fill this gap of protection. Non-discrimination and equal treatment are important for immigrant integration. Firstly, discrimination, i.e. undue differential treatment, against certain distinguishable groups in a society points towards imminent social hierarchies (Gross 2005, 157). Those who are discriminated against are implicitly seen as being of a lesser value, as outsiders who are not worthy of better treatment. Better protection from discrimination has the potential to make these social hierarchies less visible and less perceptible for immigrants which should have positive effects on the prospects of integration. Secondly, integration depends on the (economical and social) development of immigrants in the receiving society. Accordingly, opportunities for development will have to be present to enable   Council Directive 2000/43/EC of 29 June 2000, implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, OJ L180/22, 19 July 2000.   Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents, OJ L 16/44, 23 January 2004; Other legislative measures determining ‘conditions of entry and residence’ for non-EU citizens are for instance the Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, OJ L 251/12, 03 October 2003.

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integration (Heckmann 2004, 204). These opportunities will have to be created by legal statuses that enable participation and will have to be protected by antidiscrimination policies. Otherwise, formal opportunities will be denied by informal hierarchies in the form of discrimination. Consequently, integration depends on rights to participate which are accompanied by effective anti-discrimination regulation. Integration from this perspective is rights-based and relies on a strong (legal) position of the newcomer vis-à-vis the receiving society. This position is put forward in the 1999 ‘Tampere Milestones’ and can be found in later documents such as the 2004 ‘Hague Programme’, or the 2004 ‘Common Basic Principles of Immigrant Integration’ of the Justice and Home Affairs Council – even though a strong rights-based approach to integration can be doubted in the latter two documents. T he R acial Equality Directive (R ED) – T he Immigrant’s Best Friend? The Directive was adopted unanimously on basis of Article 13 TEC in June 2000 only 7 months after the Commissions first proposal in a ‘world record time’ unbeaten until today. The Directive prohibits discrimination on grounds of race or ethnic origin. Direct Discrimination, Indirect Discrimination, Harassment, and

 A ‘vigorous integration polic[y]’ is described by the Tampere Programme as a two way process wherein fair treatment of TCNs is the leading principle. TCNs should enjoy rights and obligations comparable to those of EU citizens and policies should enhance nondiscrimination in economic, social and cultural life and develop measures against racism and xenophobia; Council of the European Union (1999), Presidency Conclusions, Tampere European Council of 15 and 16 October 1999, paragraph 18.   The Hague Programme defines integration as ‘a continuous, two-way process involving both legally resident third-country nationals and the host society; include[s], but goes beyond, anti-discrimination policy; imply[s] respect for the basic values of the European Union and fundamental human rights; requir[es] basic skills for participation in society; [and] rel[ies] on frequent interaction and intercultural dialogue between all members of society within common forums and activities in order to improve mutual understanding’. Council of the European Union (2004), Presidency Conclusion, Brussels, 4/5 November 2004, Annex I, p. 19.  The Council explains 11 principles in detail. The vision on integration is not as rights based as in Tampere. The strong link between integration and rights however is still obvious. See Justice and Home Affairs Council Conclusions, 19 November 2004, Common Basic Principles on Immigrant Integration Policy in the European Union, p. 15.   See how the establishment of an Austrian Government including the right-wing Freedom Party of Austria under Jörg Haider opened a window of opportunity to adopt the RED so quickly (Tyson 2001); Commission Proposal for a Council Directive implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, COM(1999) 566.

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the Instruction to discriminate on grounds of racial or ethnic origin constitute discrimination in the sense of the Directive. On first sight, the Directive has a broad personal scope. It shall apply to all persons in the public and private sector, including public bodies ‘within the limits of the powers conferred upon the Community’. The material scope is equally broad. It not only covers issues arising from situations in employment and occupation, but also beyond these areas, such as social protection, or access to supply of goods and services available to the public.10 Arguably, the latter provisions will prove very useful and will make the Directive valuable for TCNs, despite all criticism. Differential treatment on grounds of racial or ethnic origin is only justifiable on basis of exceptions provided in the Directive itself such as ‘genuine occupational requirements’ and ‘positive action’.11 Article 3 (2) constitutes the basis of this chapter further on. To protect effectiveness of the substantial provisions, the Directive provides for extensive enforcement mechanisms.12 Problematic Wide but Narrow Scope of Application – Article 3(2) RED As mentioned above, the Directive seems to provide for a broad personal and material scope13 in order to ensure full protection for all persons present on the territory of the EU.14 Thus, everyone should be able to rely on the Directive if being – or having the suspicion of being – the victim of discrimination on grounds of race or ethnic origin in all circumstances that might arise in daily life.15 The scope of application, it seems, is determined regardless of the victims’ nationality or immigration status and can thus be used as tool for immigrant integration. But is it really such a strong tool as one can expect prima facie? One group that will almost naturally not be able to derive any protection from the Directive are immigrants without a racial or ethnic background. The Directive only prohibits discrimination on grounds of ‘race or ethnic origin’.16 There is ambiguity in the RED concerning the concept of race or ethnic origin as it is unclear what the characteristics and attributes determining this category really are (Migration Policy Group 2005, 20). Still, it can be safely said that immigrants who  Article 2 (1) and (2) RED.  Article 3 (1) RED.  Article 3 (1) (a) (d) RED. 10 Article 3 (1) (e) (h) RED. 11 Article 4 and Article 5 RED. 12 Article 8 (1) RED (shift burden of proof), Article 11 RED and Article 15 RED (right to effective remedy and effective, proportionate and dissuasive sanctions). 13 Article 3 (1) RED. 14  See European Commission (1999), Proposal for a Council Directive implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, COM(1999) 566 final, Brussels, 25 November 1999, p. 2. 15 Article 2 RED. 16 Article 2 (1) RED.

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share the racial or ethnic background of ‘white’ native Europeans will not be able to rely on the RED easily. The universality of application is further reduced for non-EU Citizens entering or residing in the EU by the above mentioned exception of Article 3 (2) RED. After studying the Article, the claim of universality of application cannot be upheld. Article 3 (2) RED reads: This Directive does not cover difference of treatment based on nationality and is without prejudice to provisions and conditions relating to the entry into and residence of third-country nationals and stateless persons on the territory of member states, and to any treatment, which arises from the legal status of thirdcountry nationals and stateless people.

This provision is clarified by Recital 13 in the Preamble to the RED: To this end, any direct or indirect discrimination based on racial or ethnic origin as regards the areas covered by this Directive should be prohibited throughout the Community. This prohibition of discrimination should also apply to nationals of third countries, but does not cover differences of treatment based on nationality and is without prejudice to provisions governing the entry and residence of thirdcountry nationals and their access to employment and to occupation.

This is quite something. Could one go so far to claim that pursuant to Article 3 (2) nothing but all norms of immigration regulation are excluded from the application of the RED? It indeed appears that practices of immigration control or the application of legislation that amount to [direct or indirect] discrimination have been made immune from challenges based on the Directive. While the RED applies to TCNs, the difference of treatment based on nationality and immigration status in the course of applying immigration regulation are excluded from its scope. Therefore, the ‘core problem of legal discrimination of immigrants’ based on their nationality or immigration status is in fact not covered (Gross 2005, 158). This is more problematic as immigration legislation contains plenty and profound differentiations in treatment between nationals of EU Member States vis-à-vis TCNs, as well as between different groups of TCNs.17 In essence, one could argue that such differentiations are what immigration control is all about and that their application can easily amount to (indirect) discrimination on grounds of race. 17 According to the Dutch Newcomers Integration Act [Wet inburgering nieuwkomers (WIN) Staatsblad 1997, 604 as amended in 2005] immigrants from third countries have to participate successfully in integration courses in order to be eligible for a residential permit. Exemptions are granted to nationals from the USA, Canada, New Zealand, Australia, Japan, Iceland, Norway, Switzerland and Lichtenstein. Similar exceptions can be found in Austria and Denmark; see Carrera (2005c) and Groenendijk (2006c).

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Guild (2004c) goes so far as to hold that ‘it is not considered polite to suggest that immigration laws discriminate on the basis of race; however, it is quite unavoidable’. As a way of illustration, visa-duties to enter the EU would show this and would offer a clear pattern of nationality discrimination that amounts to racial discrimination. Every country in Africa, the Middle East – with the exception of Israel – as well as most Asian Countries are on the EU’s black list; hence nationals of these countries require a visa to enter the EU, whereas North America and Australia, however, would be on the white list. The black list would clearly bear race and religion as an unavoidable top element of differentiation. Yet, even if we accept that there is no protection in the process of application of migration regulation, matters do not stop there. The scope of the exception remains unclear. How widely should Article 3 (2) be interpreted? What exactly does it exclude? When can one speak of ‘indirect discrimination’ based on race and when is a distinction a lawful differentiation based on nationality or immigrant status? Suggestions of the Article’s objective and its interpretation cannot be found in the explanatory memorandum because the Article was only inserted during the Council deliberations.18 This provision is also not mentioned in later publications of the Commission concerning the application of the Directive.19 Nevertheless, the particular history of Article 3 (2) suggests that the Article was not intended to be applied broadly. Additionally, the wording and general objective of the Directive, especially with regard to the broad material and personal scope, seem to advocate for a narrow interpretation. It has been put forward repeatedly that Article 3 (2) should be interpreted narrowly and that the Directive should generally ‘appl[y] to non-European nationals except for immigration laws or other legal acts governing entry, residence and legal status’ (Toggenburg 2001, 238). It will eventually be up to the European Court of Justice (ECJ) to decide. A look into the case law dealing with other exceptions to general anti-discrimination rules under EU law in the field of gender equality legitimates hope that the ECJ will interpret Article 3 (2) narrowly and will strictly and closely scrutinise all acts that parties seek to base on the exception (Bell 2002, 77) – including immigration regulation. Where does Article 3 (2) come from? The first part of Article 3 (2) excludes differentiations made on grounds of nationality from the application of the RED. An argument for the insertion of such a clause can be made convincingly on procedural EU law itself. The legal base of the RED, Article 13 EC Treaty, does not allow for measures combating 18 European Commission (2000), Amended proposal for a Council Directive implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, COM(2000) 328 final, Brussels 31 May 2000. 19 European Commission (2006), Communication on the application of Directive 2000/43/EC, COM(2006) 643 final, Brussels, 30 October 2006.

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discrimination based on nationality. Consequently, any measure based solely on Article 13 cannot cover this kind of discrimination. The limits of Article 13, however, cannot explain however the second part of Article 3 (2). The latter excludes provisions and conditions relating to the ‘entry into and residence of third-country nationals and stateless persons on the territory of member states’, and to ‘any treatment’, arising from the legal status of TCNs and stateless persons from the application of the Directive. It is worthwhile to recall that Article 3 (2) touches upon the treatment of foreigners on the territory of a nation state and hence tangles the principle of state sovereignty. Inherent to this principle is the power of states to decide who is allowed to enter into and reside in their territory, and who is not safe a few rules under international law that limit this freedom (Shaw 2003, 409). The struggle to include the paragraph in the Directive was inspired by the wish of some member states not to put into peril sovereign discretion on how to deal with foreigners – non-EU Citizens – entering into of residing on their territory (Howard 2005, 479). As Tyson (2001) has argued, Article 3 (1) let to intense discussions inside the Council which prompted member states ‘to raise the question of the overlap between discrimination on grounds of racial or ethnic origin and differences of treatment based on nationality’. Member states feared that the Directive would have implications on their immigration national legislations, in particular with regard to access to residence permits, the social welfare system and the employment market which are all based fundamentally on differential treatment on grounds of nationality and immigrant status of the applicants (Bell 2002, 77). It is noteworthy that the Commission in its initial proposal of the Directive had already anticipated this sensitive issue. The original initiative had put forward that although the broad personal scope of the Directive would protect TCNs from differential treatment based on race and ethnic origin, it would not cover differential treatment based on nationality and immigrant status. Against this background, one is tempted to agree with the Commission that Article 3 (2) has no significance when compared with the initial Commission proposal. Differential treatment deriving from nationality or immigrant status was at no point covered in the material scope of the Directive. The Directive neither before nor after the insertion of Article 3 (2) could have been applied to such differentiations (Tyson 2001, 210). Nevertheless, some member states did not consider that sufficient. They argued, inter alia, that in the area of asylum it would be necessary to make deliberate differentiations based on race or ethnic origin in situations where asylum seekers were persecuted on basis of such characteristics in their country of origin.20 The Commission reacted by saying that the Directive would not apply to such cases as the issue of asylum would not be mentioned to fall under the Directive’s material scope. This argument was again not accepted by certain member states. Their fear 20  Council of the European union (2000), ‘Outcome of proceedings of the social question working plan on 10 May 2000’, Doc. 8454/00, Brussels, 16 May 2000, no. 21.

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that differences could be covered by the Directive was too great. They therefore insisted on adding Article 3 (2) and a reinforcing Recital to clearly rule out the application of the Directive in these areas (Tyson 2001, 209-10). Where did that strong fear come from – it seems that only after the insertion of Article 3 (2) member states were actually willing to be generous with regard the personal and material scope of the Directive? Guild (2004c) has written that the exclusion of nationality and the exclusion of immigrant status-related issues from the application of the Directive illustrates that the member states, and their governments in particular, were and are very much attached to the ‘principle of permitted discrimination in these fields on the basis of nationality’ deriving from their state sovereignty. Without doubt the scope of the Directive is fairly wide. However, the possible exclusion of individuals from protection at the intersection of prohibited race discrimination and permitted differential treatment based on nationality and immigrant status would give rise to the suspicion that the Council would seek to hide ‘unacceptable practices of exclusion in the category of (permissible) national discrimination’. Similarly, Brennan (2003) argues that the problems connected to Article 3 (2) flow from the ‘apparent contradiction’ between the wish to protect persons from ethnic or racial discrimination and restrictions combined with limited EU competence to tackle such discrimination vis-à-vis the ‘discretionary power’ of the member states to admit people to the EU’s territory. The member states would have succeeded in defending their unchallengeable sovereign ‘gate-keeper’ role at the borders at least when it comes to TCNs. The question remains whether the resulting gaps of protection are closed with the adoption of European legal-migration legislation after 2003. T he Long T erm R esidents Directive [LT DR ] – Closing the Lacunae of Protection? The LTDR was adopted under the Tampere agenda with the objective of ‘fair’ treatment of TCNs. The Commission proposed a draft in 200121 and was keen to make the rights of TCNs who are long-term residents ‘comparable’ to the rights of EU citizens. However the proposal for Directive faced serious barriers in the Council. This chapter is not the place to engage in an in depth description of the content of the Directive, others have done so before (e.g. Boelaert-Souminen 2005; Halleskov 2005). However, it should be born in mind that the Directive applies ‘to all third-country nationals residing legally in the territory of a member state for 5 years’ unless they are covered by other EU legislation or pre-existing international agreements or reside in the EU on ‘solely temporary grounds [or] whose residence

21  Proposal for a Council Directive concerning the status of third-country nationals who are long-term residents, COM (2001) 127 final, Brussels, 13 March 2001, p. 2.

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permit has been formally limited’.22 The conditions for acquiring the status are stable and sufficient resources, and health insurance.23 These requirements resemble conditions for EU citizens moving into another member state.24 However, member states ‘may’ also subject TCNs to compulsory integration requirements in accordance with national law. These measures can be defined and put into place in each member state individually.25 Acquisition of long-term residence statuses shall happen without discretion if the conditions are met; the status shall be ‘permanent, valid for at least five years, [and] automatically renewable on expiry’.26 The status shall entail the ‘right to reside in the territory of member states other than the one which granted him/her the long-term residence status, for a period exceeding three months’. Bearers of the status may reside in other member states for ‘economic activity, studies [and] vocational training, and other purposes.27 With exception of language classes, the second member state may force TCNs ‘to comply with integration measures [,] in accordance with national law’ only when the immigrant was not subjected to such integration measures in the first Member State.28 Equal Rights and Equal Protection for Third-Country Nationals? Differential treatment based on nationality or immigration Status is the back-bone of immigration law. Such differentiations often amount to [indirect] discrimination on basis of race or ethnic origin. As the RED is not applicable, immigration regulation should provide for appropriate protection. The Commission and the Justice and Home Affairs Council both raised the assumption that gaps left by the RED are filled by the LTRD. The Commission in its Annual Report on equality and non-discrimination of 2005 mentions that the RED would indeed not apply to conditions on entry and residence or to the treatment of TCNs. However, treatment similar with EU-citizens would be guaranteed by the LTRD.29 Such statement is a limited representation of reality. Even if the status that is eventually conferred upon immigrants under the Directive might eventually close some gaps, during the process of obtaining the status differential treatment on basis of nationality or even race or ethnic origin can still occur unchallengeable. 22 Article 3 LTRD. 23 Article 5 LTRD. 24  Although only ‘sufficient’ resources are needed for European citizens whereas TCNs have to show ‘stable and sufficient’ resources; Refer to Article 6 Council Directive 2004/38/EC. 25 Article 5 (2) LTRD. 26 Article 7 LTRD. 27 Article 14 (1) and Article (2) LTRD. 28 Article 15 (3) LTRD. 29  See European Commission, Annual Report 2005, Equality and non-discrimination, p. 10; Commission Communication, A common agenda for integration – Framework for the integration of TCNs in the European Union, COM(2005) 389 final, Brussels, 1 September 2005; and see Justice and Home Affairs Council Conclusions, 19 November 2004, p. 17.

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A banal but nevertheless significant finding will directly put the Council’s and Commission’s statements into perspective. The Directive will per definition only be helpful for long-term residents in the sense of the Directive.30 For ‘newcomers’ on EU territory who are not residing legally and continuously in one member state for at least five years and fulfil all other requirements the Directive will have no added value. It only helps those who are already established in the member states, unfortunately the group who is likely to suffer from differential treatment the least. More vulnerable and more in need of effective protection of opportunities for initial integration are those labelled as ‘newcomers’.31 Another principal limitation of the Directive should also be mentioned. In accordance with the Protocols annexed to the Treaty on European Union and to the EC Treaty the Directive as adopted under Title IV of the EC Treaty will not be binding in the UK, Ireland and Denmark.32 Yet, apart from these initial exclusions the Directive might do some good for TCNs who are covered by it. Article 11 LTDR itself provides for ‘equal treatment’ with European citizens. If printed – because of its many exceptions to equality – this Article is about one page long and it would be worthwhile to quote it completely in order to show what sort of ‘complete’ equality the Directive provides. Yet because of constraints only a description is possible. Article 11 provides in paragraph 1 for the same scope as Article 3 (1) RED.33 Equal treatment shall thus occur in areas within and beyond employment and occupation. However, already Article 11 (2) allows for legislation making it impossible that positive [social] benefits cannot be taken in the event the immigrant or her/his family members move to another member state. Paragraph 3 narrows 30 Of course, other Directives deal with other situations and a huge proportion of TCNs are nowadays covered by European legislation (Groenendijk 2006c, 84); however, the mechanisms that lead to insufficient protection from discrimination apply in the same manner to all pieces of legislation. 31  Still today, eight years after Amsterdam and seven years after the initial Commission proposal (Proposal for a Council Directive on the conditions of entry and residence of third-country nationals for the purpose of paid employment and self-employed economic activities, COM(2001) 386 final, Brussels, 11 July 2001), economic and short-term migrants cannot rely on any Europeanized status. See for the latest attempt to govern these restcategories: European Commission, Policy plan on legal migration, COM (2005) 669 final, Brussels, 21 December 2005, and the following new proposals; European Commission, Proposal for a Directive on a single application procedure for a single permit for thirdcountry nationals to reside and work in the territory of a Member State and on a common set of rights for third-country workers legally residing in a Member State, COM (2007) 638final, Brussels 23 October 2007; and European Commission, Proposal for a Directive on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment, COM (2007) 637final, 23 October 2007. 32  See Recital 25 and 26 Preamble LTDR. 33  The paragraph also provides that tax-benefits should be enjoyed equally by nationals and TCNs, as well as access to the entire territory.

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down equal treatment even further. Restrictions of access to employment may be upheld where existing national or Community legislation reserves these jobs for EU or EEA citizens.34 Moreover, sufficient language capabilities may be required to enter the educational system of the member states. Also, access to university can be subject to certain qualifications. This means that the member states may determine which [foreign] degrees are eligible for access to universities.35 Paragraph 4 of Article 11 allows member states to ‘limit equal treatment in respect of social assistance and social protection to core benefits’. Recital 13 of the Preamble to the Directive gives an indication of how ‘core benefits’ should be understood: ‘[…] core benefits is to be understood in the sense that this notion covers at least minimum income support, assistance in case of illness, pregnancy, parental assistance and long-term care’. Finally, Article 11 (5) provides that member states may broaden the scope of equality under the Directive by adding benefits to paragraph 1, or, decide to establish equality in areas not covered in paragraph 1. They should be encouraged to do so if immigrant integration processes are to be fostered rather than hampered. If the member states would use all possible exceptions available to them, not much equality would remain. The Circle of Hollow References between RED and LTRD The LTRD only mentions in Preamble Recital 5 that ‘member states should give effect to the provisions of this Directive without discrimination on the basis of sex, race, colour, ethnic or social origin, genetic characteristics, language, religion or beliefs, political or other opinions, membership of a national minority, fortune, birth, disabilities, age or sexual orientation’. The member states are thus encouraged to transpose and apply the Directive in a non-discriminatory manner that is avoiding discrimination on more grounds than mentioned in Article 13 TEC. This would, of course, include the conditions for obtaining the status. Unfortunately, the proposed non-discriminatory application of the Directive can be found nowhere else in the LTDR. The body of Articles does not contain any provision prohibiting discrimination. Likewise, at no point in the LTRD can any reference to the RED be found. Yet, the Commission in its 2005 Communication on a common agenda for integration clearly sees a role for the EU’s legislative framework that is in place to combat discrimination. The Commission argues that the Equality Directives ‘support[s] and develop[s] [the] legal framework on the conditions for the admission and stay of third-country nationals’. Accordingly, ‘any future migration instruments should take into account equality of treatment and rights

34 Article 3 (a) LTRD. 35 Article 11 (3) (b) LTDR.

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for migrants’.36 This can only be read to mean that the RED and the Framework Employment Directive (FED)37 should be taken into account when transposing and interpreting the long-term residents Directive. However, if the protection provided by the RED should be the only thing to be taken into account when implementing and interpreting the Directive, gaps of protection would undoubtedly remain because the exception of Article 3 (2) RED and FED and the provisions of Directive 2003/109/EC match perfectly. The RED in Article 3 (2) excludes the area of differential treatment based on nationality and with regard to issues of entry and residence, hence immigration status. These issues are governed by LTRD. If only the RED/FED had to be taken into account a hollow circle of references would be created. Article 3 (2) RED allows for differentiations made on grounds of nationality and immigration status although they might amount to [indirect] discrimination on grounds of race and ethnic origin. This carte-blanche includes procedures dealing with access to any immigration status, hence immigration regulation in general. Immigration legislation itself does not provide for protection from discrimination left out in RED/FED. Yet, the Commission refers back to the EU’s legislative framework that is in place to combat discrimination – which means nothing less than RED/ FED. The circle is then round, no protection is added, and the gaps remain. The member states’ objective when introducing Article 3 (2) into the RED is preserved, differentiations made under immigration regulation do remain untouchable as no adequate protection is provided in immigration – and nondiscrimination regulation alike. Member states have preserved their sovereign unchallengeable gate-keeper role under European law and defended the ‘assumption of justifiability’ in immigration law. Moreover, as the Directive confers great discretion on the member states as to who is eligible for the status especially via integration requirements and possibly by only granting formally limited residence permits before. In short, member states preserved the ability to pick and chose to whom they would grant protection against discrimination. One can only hope that Recital 5 will have a prominent place in the interpretation of the LTRD. Otherwise, differentiations with regard to obtaining the status will remain unchallengeable although they amount to (indirect) differentiation based on race or ethnic origin. The conclusion can only be that protection from (indirect) discrimination for TCNs remains very poor, especially on the essential grounds of nationality and immigration status. The question is thus whether other means of Community legislation, e.g. primary or general principles of Community law, could be used to provide for such protection.

36  Commission Communication, A common agenda for integration, COM(2005) 389 final, Brussels, 1 September 2005. 37 Together with its ‘sister’ Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, OJ L303/16.

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Looking for a R emedy in Primary Law and General Principles Is there a Role for Article 12 TEC? There are a couple of remedies in Community law which could be used to remedy the gaps of protection described above. Article 12 TEC, for instance, provides for a general prohibition of differential treatment based on nationality. It reads: ‘Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited. […]’. Article 12 has been interpreted so far that only discrimination based on an EU nationality would be prohibited and was never used to stop discriminatory treatment of non-community nationals simply because such a situation could not be considered to fall within the scope of application of the EC Treaty. This might have changed with the inclusion of Title IV into the Treaty. The wording of the Article itself does not confine its application to EU citizens because the only condition for the ban on any discrimination on grounds of nationality is that the matters are within the scope of application of the Treaty. It could therefore be argued that with the insertion of Title IV issues arising from the treatment of TCNs are within the scope of application of the Treaty. In words of Boeles (2005), ‘Title IV expressly brings rights and obligations of third-country nationals within the scope of application of the EC Treaty’. TCNs should therefore be able to derive protection from Article 12 EC in the same way as EU citizens could. This would however necessitate a change in the interpretation (Nic Shuibhne 2003). No cases have been brought forward so far that would have enabled the ECJ to rule on this matter. Groenendijk (2006c) also sees some merit in the argument for equal treatment and protection from discrimination on grounds of nationality for TCNs based on Article 12 EC Treaty. However, he does not uphold the statement that any differential treatment between EU citizens and TCNs could successfully be argued on basis of Article 12. Instead, Groenendijk states that Article 12 TEC should prevent differentiations on basis of nationality within the regulation and control of immigration. In effect, this would rule out arbitrary decision and the assumption of justifiability and would necessitate authorities on every level to provide adequate reasons when differentiations on grounds of nationality are in place. The latter interpretation seems to have more chances of being successful before the ECJ given the sensitive nature of immigration regulation with its close connections to state sovereignty. Is there a Role for the European Convention on Human Rights (ECHR)? Differential treatment on basis of nationality has also been an issue before the European Court of Human Rights (ECtHR) at times of deciding cases on basis of Article 14 ECHR. The outcome of these cases might bear some benefits for

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TCNs in the EU. As confirmed in Koua Poirrez v France,38 the ECtHR held that states would have to show ‘very weighty reasons’ in order to justify differential treatment which is exclusively based on nationality. Yet, the ECtHR will apply its margin of appreciation doctrine under which might allow the member states to keep the differentiations in place although they are discriminatory. Nevertheless, such rulings of the ECtHR prove that nationality has become a ‘suspect ground for distinction’ (Groenendijk 2006c, 81), undermining the special status of immigration law and adjacent fields of social security or employment. TCNs should try to challenge discriminatory rules and decisions which are unchallengeable under Community law as such.39 Also, invoking the ECtHR’s position on nationality-discrimination can be supportive in a case arguing for a similar interpretation of Article 12 TEC. Is there a Role for General Principles of Community Law? General principles are binding upon the EC and the member states in every action they take. Measures taken by the EU as well as the member states in breach of general principles of Community law may be declared inapplicable or even be avoided.40 Principles of equal treatment and non-discrimination and the principle of proportionality are such general principles and could be of great use to TCNs complaining about discrimination with regard to the application of immigration legislation (Schiek 2000, 291). Success of such a challenge of national law seems to have become a bit more probable in the light of the ECJ’s Mangold judgment.41 The ECJ held in Mangold that the provisions laid down in the FED concerning age discrimination were a mere reflection of the general principle of nondiscrimination and equal treatment. National courts are under the obligation not to apply every provision of national law which would be contrary to the general principle of non-discrimination. Therefore the fact that the implementation period of the FED had not yet expired was irrelevant.42 The ruling is remarkable in light 38  Koua Poirrez v France, 30 September 2003; see also Moustaquim v Belgium, 18 February 1991, Series A, No. 103, [1991] 13 EHRR 802 and Gaygusuz v Austria, 16 September 1996, [1997] 23 EHRR 364. 39  The ECHR can be invoked before the ECJ as a specific manifestation of more general fundamental principles of Community law. It should be emphasized that the ECJ did not hold the ECHR to be a source of Community law but [merely] a reflection of general principles of Community law [See Case C-36/75, Rutili v Minister for the Interior [1975] ECR I-1219]. The ECJ thus linked Community law and the ECHR; See Case C-4/73, Nold v Commission [1974] ECR I-491; or Case C-185/97, Coote v Granada Hospitality [1998] ECR I-5199, paragraphs 21-3. 40  See Case C-11/70, Internationale Handelsgesellschaft [1970] ECR I-112; (Craig and de Búrca 2008). 41  Case C-144/04, Werner Mangold v. Rüdiger Helm [2005] ECR I-9981. 42  Case C-144/04, Mangold, paragraph 24.

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of procedural aspects of Community law with regard to the [direct] application of Directives not to apply a norm of national law, and the horizontal effects that follow, before the implementation period has expired in order to protect the effectiveness of a general principle.43 What is more, the FED allowed for far-reaching, almost open-ended exceptions in the field of different treatment based on age.44 Nevertheless, the ECJ held an interpretation and application of these exceptions by Germany in breach of the general principle of equal treatment and non-discrimination. The RED as well as the FED also provide equally wide, open-ended and extensive exceptions laid down in Article 3 (2) of either Directive. Since the Court did not hesitate to overrule the broad exceptions provided in the FED allowing for unequal treatment on grounds of age in the Mangold case, it might be tempted to do so again with regard to the area covered by Article 3 (2) of either Equality Directive. If an applicant can prove that policies and legislation which invoke the exception violate said general principle, national courts, in consequence of the Mangold judgment, may not apply such legislation. In another case the European Parliament challenged the legality of integration requirements and age limits for minor family members as possible conditions for family re-unification as laid down in Directive 2003/86/EC on the right to family reunification. The Court assessed the compliance of the provisions of the Directive and found them not to in itself violate any norm of the ECHR.45 The ECJ held that the exception merely would preserve a margin of appreciation left to the member states and that reasonable justifications could be given to uphold the limitations to the right to family reunification.46 Still, in the same judgment the Court clearly held that it will treat the Directives adopted under Title IV of the EC Treaty with the same vigour as it has treated other Directives and that dubious exceptions in the Directives will not stop the Court from assessing the lawfulness of the Directives’ transpositions into national law against the background of general principles of Community law.47 The Court held that: [i]t should be remembered that, in accordance with settled case-law, the requirements flowing from the protection of general principles recognised in the Community legal order, which include fundamental rights, are also binding on member states when they implement Community rules, and that consequently

43 The Judgment is in this regard a development of the doctrine laid down in, inter alia, Case C-129/96, Inter-Environnement Wallonie v Region Wallonne [1997] ECR I-7411, paragraph 45. 44  See Article 6 FED. 45  Case C-540/03, European Parliament v Council [2006] ECR I-05769, paragraph 66. 46  Ibid., paragraph 61. 47  Ibid., paragraph 70.

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they are bound, as far as possible, to apply the rules in accordance with those requirements.48

This facet could be interpreted that the Court, if the circumstances are clear enough, might be willing to apply a Mangold like reasoning in the field of immigration law. In any case, the Parliament v Council decision shows that the Court will scrutinise the implementation of the EU legal migration Directives closely and against the background of fundamental principles of Community law. Coming back to Mangold, the question arises to what extent the Court will follow its own reasoning at all. On 16 October 2007 the ECJ decided a case with an almost the identical factual background as Mangold. The ECJ dismissed the case without mentioning the backbone of the Mangold case’s reasoning, that is general principles of Community law, once.49 And this after being massively criticised for the ruling and reasoning in Mangold by AG Mazak, a member of the ECJ.50 Yet, one should not be too hesitant to try a case. Theoretically, national legislation that seems to be covered by an exception in Community legislation, such as Article 3 (2) RED/FED can be challenged this way. The fact that the Council itself in its explanations to the Common Basic Principles for Immigrant Integration (CBPs) mentions that implementation of the LTDR should take place bearing the principle of equal treatment in mind,51 could be taken by the Court as a reason to follow Mangold. In any event, other judgments dealing with upholding effet utile of Community legislation can be relied upon. Is there a Role for General Principles of Community Law (II)? The principle of proportionality is a long established general principle of Community law, a version of the principle is contained in Article 5 TEC. It obliges authorities to take (legislative) action only if a ‘legitimate aim’ is pursued and if the ‘means’ applied are ‘suitable and necessary [to] reach the aim pursued’. Also, the burden imposed on the individual may not be excessive in relation to the objective in question.52 Indirectly, the principle of proportionality imposes the obligation on the authorities in question to give reason as to why specific measures were taken and 48  Ibid., paragraph 105, where reference was made to Case C-2/92, Bostock [1994] ECR I-955, paragraph 16. 49  Case C-411/05, F. Palacios de la Villa v Cortefiel Servicios SA [2007] ECR I8531. 50 Opinion of AG Mazak to Case C-411/05, delivered on 15 February 2007. 51  Council of European Union (2004), Justice and Home Affairs Council Meeting 2618th, ‘Common Basic Principles on Immigrant Integration Policy in the European Union’, 14615/04, Brussels, 19 November 2004. 52  See Case C-331/88, Fedesa [1990] ECR I-4023, paragraph. 13; see also Craig and de Búrca (2003).

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why particular means taken to reach the aim pursued which work to the detriment of certain groups/individuals is acceptable in the light of the pursued objective. The field of immigration is a field where justification was not always provided in such a stringent and transparent way. Now, with the insertion of Title IV into the EC Treaty, authorities will have to explain what legitimate aim measures have, why the inflicted mean is suitable and necessary to reach the objective pursued and that there had been no other measures at their disposal, which would have inflicted less harm on the individuals concerned. As Groenendijk (2006c) has written, irrespective of their allegedly insufficient and incoherent content, the fact that the EU started to regulate the position of TCNs and that the member states now have to implement European legislation will submit all acts taken in this field to the (Community) principle of proportionality. All authorities engaging in regulation and implementation will be bound to give reason for their acts and decisions and will have to show that their action was proportionate to the aim pursued. In effect, truly arbitrary and discriminatory decisions will be impossible to justify. Conclusion: A Legal Underclass in Europe ‘The EU currently has a legal “underclass” of third-country nationals, who do not enjoy the same rights as EU citizens’ (Citron and Gowan 2005, 3). This finding of the European Civic Citizenship and Inclusion Index can also serve as the main conclusion of this chapter as regards protection from discrimination. Effective protection from discrimination is not available for TCNs under EC law because the two main pieces of anti-discrimination legislation exclude their application with regard to (indirect) discrimination deriving from nationality and immigration status. Consequently, immigration legislation and its application cannot be challenged even though [indirect] discrimination on protected grounds may occur. If the statements of Council and Commission concerning the availability of protection are right, immigration law itself will have to fill this protection gap. As has been shown with the example of the LTRD, European immigration law does not fill this gap of protection. To the contrary, member states preserved a variety of possibilities to undermine access to Europeanised immigration statuses such as mandatory integration requirements through which they will have final say on who will be eligible for a European status and the connected (limited extra) rights and protection. With regard to the gap in protection from discrimination it is claimed in the LTRD’s explanatory memorandum as well as statements by Commission and Council that the current framework for protection from discrimination under Community law, which can only mean RED and FED, was offering sufficient and appropriate protection for TCNs. There is a simple referral back to European non-discrimination law without taking into account that it is exactly the ‘special

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nature’ of this legislation with their exceptions that made the quest for protection from discrimination in immigration law necessary. These empty references back and forth create a ‘circle of hollow references’ in which one piece of legislation is supposed to provide protection in situations dealt with in another while no appropriate protection is eventually provided. What remains are wide gaps of protection from discrimination on grounds of nationality immigration status. Sadly, this seems to be the same for all other Directives adopted on basis of Article 63 TEC. Protection from discrimination on grounds of nationality can theoretically be derived from Article 12 TEC. Nationality might be further considered a suspect ground which would need very weighty reasons to be justifiable under Article 14 ECHR. There might be also a chance to invoke general principles of Community law, such as proportionality or non-discrimination and equal treatment to combat flagrant forms of discriminatory natures or applications of immigration regulation. In daily life however such arguments are of fairly theoretical value. The RED and FED with their efficient enforcement mechanisms would have provided a much easier way to challenge notorious discrimination against TCNs and would have made it easier to create an actually effective remedy for possible victims of discrimination. To facilitate integration, it is necessary to establish efficient and workable schemes of protection from discrimination for TCNs. If the EU and its member states take integration seriously they should once again consider the combined effects of legislation in force. It will be necessary to install effective protection regimes that allow immigrants (first) to challenge decisions and behaviour when they feel it is discriminatory irrespective of the subject area concerned, thus even in the field of immigration control itself, and (second) to feel as equal members of the receiving society also when it comes to remedies to protect rights. Such an anti-discrimination scheme will contribute to a feeling of belonging to the receiving society, without which no integration will occur.

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Chapter 11

Free Movement as a Precondition for Integration of Third-Country Nationals in the EU Sara Iglesias Sánchez

Some of the legal instruments already adopted by the European Community (EC) in the field of immigration law contain certain elements which aim to enhance mobility of third-country nationals (TCNs). Moreover, the recent Commission proposal on the establishment of an EU Blue Card places mobility at the heart of a new strategy of the EC with regard to legal migration. Notwithstanding these developments, the possibilities to exercise effective mobility remain up to now far from those enjoyed by the citizens of the European Union (EU). This chapter will address the issue of mobility of TCNs from the viewpoint of its possible impact on the process of integration of immigrants in the societies of the member states. Freedom of M ovement as the Cornerstone of European citizenship and its Potential Integrating Capacity The EU/EC, as a community of law, has had since the very beginning of the process of European integration a non negligible meaning for the individuals situated under its jurisdiction. In the early 1960s, the ECJ defined the Community legal order as meaningful not only for member states, but also for their citizens. Since the Maastricht Treaty, European citizenship has brought together the achievements of the former period to construe a new concept which testifies that a new identity is coming about (Carrera 2005b, 703). In other words, the process of creating a European identity has its roots on the economic integration based on the freedom of production factors, one of which is the labour force (about the integrating effect of fundamental freedoms see Reddig 2005). Undoubtedly, even if European citizenship has been built upon the achievements of fundamental freedoms, it has

  I am grateful to Prof. Dora Kostakopoulou for her comments on this chapter.   Case C-26/62, Van Gend en Loos / Administratie der Belastingen [1963] ECR I-1, p. 3.  Therefore, the concept ‘market citizens’ was often used in the past (Randelzhofer 1995).

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become an independent concept which goes beyond that of economic integration (Kadelbach 2003). More precisely, freedom of movement did not only amount to the right to travel freely, to take up residence and to work, but also involved the enjoyment of a legal status characterised by security of residence, the right to family reunification and the right to be treated equally with nationals. The case law of the ECJ situated the integration of workers in the receiving society as a main goal of Community law in the field of free movement of persons. The effect of the legal system of freedom of movement on the integration of foreigners can be thus considered as proved and successful inasmuch as nationals from member states are not considered as foreigners any longer in other member states. Concerning TCNs, the situation varies considerably. If they manage to enter legally one of the member states, they will enjoy freedom to travel within the so-called ‘Schengen Area’ for a period up to three months. But this freedom to travel does not imply the possibility to take up residence or a job in other member states. The freedom to travel allows only to be recipient of services and to purchase goods. It is therefore limited to the ‘side of the demand’ (HedemannRobinson 1997, 332). Obviously, the scheme of free movement of persons cannot be transposed to all TCNs, as freedom of movement is intrinsically bound with a supranational integration process in which the implementation of this freedom is only feasible after some economic uniformity has been achieved. But the positive assets of this freedom cannot be neglected once Community action is taking place in the field of legal migration. In fact, Community action towards TCNs has adopted the objective integration as one of the guidelines of its activity in this field. Moreover, it cannot be overlooked that freedom of movement constitutes the most perceivable feature of the relationship existing between the European Union and the individuals who are nationals of the member states. The integration of legal residents in the different societies of member states has to be conceived as a process in which European integration itself also plays an important part, even when the paramount role is reserved to the national arena. If we consider that public policies aiming at integration may follow a rights-based strategy, the inclusion of individuals has to be fostered by providing them with rights as near as possible to those enjoyed by citizens. As long as national citizenship is complemented by European citizenship, and inasmuch as the second is not trivial in terms of rights conferred, integration in the member   As Guild (2003) has noted ‘The identification of insiders and outsiders is increasingly modified by legal measures adopted at the European level’; See also in this respect (Groenendijk 2006c).   Convention implementing the Schengen Agreement of 14 June 1985, OJ L 239 of 2.9.2000, p. 19, which was partially amended by Regulation (EC) 562/2006 of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders, OJ L 105 of 13.4.2006, p. 1.

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states cannot overlook the meaning that the participation of immigrants in the benefits of European integration could entail. Regardless of the existence of a European society with reference to which immigrants should be integrated, integration in the member states themselves has to take into due account that the process of European integration conforms at present a non negligible factor of their own national identities. Nonetheless the personal scope of European citizenship is defined with reference to the nationality of the member states, and therefore, cannot be extended at the European level (see Raible 2003, 543; Kadelbach, 494). The European Commission has proposed in the past a concept to denominate a new status of belonging to the EC, namely, the so-called ‘civic citizenship’. Even though this concept seems to be nowadays abandoned, the Directive on the status of long-term residents goes towards this direction (Bell 2007, 312). The idea underpinning these developments is that integration from a European viewpoint can only be achieved through the extension of those elements of European citizenship which can be granted to TCNs without hampering the conception of the European citizenship itself. In this sense, freedom of movement has been recognised as an element of European citizenship which could be extended to TCNs. Article 63 (4) TEC opened this possibility, although it was not clear whether or not ‘free movement’ could be extended with the same legal content as applies to nationals of the member states, as long as this Article only makes reference to the ‘conditions under which nationals of third countries who are legally resident in a member state may reside in other member states’. The Charter of Fundamental Rights clarified that free movement as it exists with regard to European citizens could be extended to TCNs. Even if this right is placed among ‘Citizens’ Rights’ in Title V of the Charter, the second paragraph of Article 45 expressly declares that ‘freedom of movement and residence may be granted, in accordance with the Treaties, to nationals of third countries legally resident in the territory of a member state’. Article 1 (8) of the Draft Reform Treaty provides that Article 6 of the Treaty of the European Union (TEU) will read as follows after the reform: The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties. The

 About the existence of a European society see Kaeble (2005).  About the ‘multiplication of legal identities’ see Guild (2004c); Soysal (1994) defines European citizenship as a ‘multilevel citizenship’.  This concept was put forward in the Commission Communication on a Community immigration policy, COM(2000)757 final, Brussels, 22 November 2000.   Charter of Fundamental Rights of the European Union, OJ C 303 of 14 December 2007.

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Having in mind that the provisions of the Charter shall not be used to extend the competences of the Union, it would be necessary to have due regard to Article 79 (2) (b) of the future Treaty on the Functioning of the European Union, which provides that: […] the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures in the following areas: (b) The definition of the rights of third-country nationals residing legally in a member state including the conditions governing freedom of movement and of residence in other member states.11

Freedom of movement is therefore mentioned with regard to TCNs and the change of wording, when compared with actual Article 63 (4) TEC, cannot be considered as deprived of any legal meaning. In conclusion, freedom of movement cannot be disregarded as an asset in the process of integration of immigrants as argued above. The approach which would appear as logic at first sight is that of extending rights of free movement for TCNs residing on a permanent basis in the member states as long as it does not hamper the conception of European citizenship and that an explicit legal basis is provided for it. Nonetheless, the present situation remains far from being like that. T he Concept of Integration in European Immigration Law: T he R ole of M obility The Amsterdam Treaty introduced explicit competences to lay down legislation in the field of immigration and, particularly, paragraph 4 of Article 63 TEC provided for the possibility to regulate the conditions under which TCNs could take up residence in the different member states. This new provision was considered from

10 Article 6 TEU, OJ C 115 of 9 May 2008, as amended by the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, 13 December 2007, OJ C 306 of 17 December 2007. The referendum held in Ireland on the Reform Treaty on the 12 June 2008 has had a negative outcome. Nonetheless, the European Council has decided that the rest of the Member States should continue the ratification process. See the Conclusions of the European Council held in Brussels the 19-20 June 2008, 11018/08, Brussels, 20 June 2008. 11 The wording of this point remains identical with regard to letter (b) of the second paragraph of Article III-267 of the Treaty establishing a Constitution for Europe, OJ C 310 Volume 4, of 16 December 2004.

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the very beginning as a possibility to extend freedom of movement to TCNs, signifying also a great step forward in the path towards equality of treatment and integration (Pollet 2000, 66-67). Since the entry into force of the Treaty of Amsterdam four Directives have been adopted on the basis of Article 63 TEC. Two of them play an important role for the integration of immigrants, namely, the Directive on the status of long-term residents and the Directive on the right of family reunification. Three of these four Directives provide for a certain degree of mobility of TCNs. But the Directives on the admission of students and researchers, even though they address the rights of these groups of TCNs, have different purposes as the one of integration. This approach seems to be followed by the recently presented proposal of the Commission for the implementation of an ‘EU Blue Card’. The only EC instrument which merges mobility of TCNs with the objective of integration is the Directive on the status of long-term residents. Mobility as a Way to Improve EU-Competitiveness The European Council of 4 and 5 November 2004 approved the Hague Programme, in which it recognised that legal migration has an important role to play in the achievement of the Lisbon Strategy.12 The shortage of qualified workers is the main reason to adopt a new approach which intends to foster immigration of those persons who are needed in the European economy considered as a whole. In this regard, freedom of movement is considered as an asset which could make the European Union more attractive as destination. Although this approach has expressly been put forward by the Commission in its proposal for an ‘EU Blue Card’, this trend was already to be found in some other legal instruments adopted in the field of legal migration. Apart from the long-term residents Directive, the only EC norms on legal immigration which contain provisions related to some kind of mobility have been the Directives on the admission of students13 and researchers.14 Those norms are to be considered together as they have some important features in common. Even

12  See the Presidency Conclusions, Lisbon European Council, of the 23 and 24 March 2000; European Commission Communication to the Spring European Council in Barcelona, The Lisbon Strategy – Making change happen, COM (2002) 14 final, Brussels, 15 January 2002; Commission Communication on the Future of the European employment strategy: A strategy for full employment and better jobs for all, COM(2003) 6 final. 13  Council Directive 2004/114/EC of 13 December 2004 on the conditions of admission of third-country nationals for the purposes of studies, pupil exchange, unremunerated training or voluntary service , OJ L 375, 23 December 2004, p. 12-18. 14  Council Directive 2005/71/EC of 12 October 2005 on a specific procedure for admitting third-country nationals for the purposes of scientific research, OJ L 289, 3 November 2005, p. 15-22.

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if they are included in the EC policy on legal migration, they do not aim at the integration of migrants. First, they do not refer to a social group which is considered problematic from the integration point of view. Second, both instruments have to be considered with regard to broader goals of the Community: the students Directive inscribes itself in the European area of high education in which freedom to move within member states is considered as a main objective.15 The researches Directive has to be regarded as an instrument aiming at the Lisbon objectives. Actually, one of the elements mentioned by the Lisbon European Council in order to achieve the objective of ‘becoming the most competitive and dynamic knowledge-based economy in the world by 2010’ was precisely making the EU more attractive as a destination for researchers from third countries.16 Third, both norms include some kind of procedure in order to enhance mobility of the aforementioned groups, but the possibilities opened by the Directives remain far from the regime of freedom of movement. Namely, even if some provisions relating to mobility rights have been introduced in the students Directive, the possibilities of TCNs admitted for study purposes remain quite limited. Article 8 of the Directive enables to continue studies in other member states as long as they still fulfil all the conditions for admission in the first Member State. Article 13 of the researchers Directive sets out the conditions under which researchers can be entitled to stay in another member state and carry out scientific research. The procedure varies considerably depending on the length of the stay: if it is shorter than three months, researchers would only need to have sufficient resources and not be considered as a threat to public security, public policy or public health. For longer periods, the researcher will be requested to sign a new hosting agreement with an institution of the second member state, and will be subjected to the same conditions that were already requested for admission in the first member state. Moreover, it is still possible to require visas for intra-member states mobility, as paragraph 4 of Article 13 expressly recognises that member states could provide for such condition, thereby departing from the free movement regime. There is a feature which is peculiar from the researchers Directive. This norm specifically eases the path to get residence possibilities in other member states in order to make the Union more attractive for a group of persons which is particularly interested in mobility.17 The recent proposal of the Commission on the conditions 15  See the Report from the Education Council to the European Council ‘The concrete future objectives of education and training systems’, Council Doc. 5680/01 EDUC 18; See also preamble 6th of the Directive 2004/114/EC on the admission of students. 16  Point 13 of the Conclusions of the Presidency. Lisbon European Council, 23-24 March 2000. 17  See Commission Communication, Towards a European research area, COM(2000) 6 final, Brussels, 18.1.2000 (not published in the Official Journal), specially its point 6.3 on ‘Making Europe attractive to researchers from the rest of the world’; See also Decision

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of entry and residence of TCNs for the purposes of highly qualified employment18 has taken this approach to its lasts consequences, placing mobility at the hard core of the strategy to recruit workers specially needed in the Union. After the failed proposal on economic migration19 and the subsequent consultation period,20 the Commission announced its intention to present different proposals which would lay down admission conditions for some specific categories of immigrants.21 The first two proposals have been presented recently by the Commission. One of them is devoted to the conditions of entry and residence of TCNs for the purposes of highly qualified employment. Its main goal, as it is described in the explanatory memorandum accompanying the proposal is ‘to improve the EU’s ability to attract and – where necessary – retain third-country highly-qualified workers so as to increase the contribution of legal immigration to enhancing the competitiveness of the EU economy’, in the framework of the Lisbon Strategy. The Commission recognised thereby that the non-existence of a harmonised immigration policy hampers the perception of the EU as an attractive area for qualified workers.22 no. 1513/2002/EC of 27 June 2002 concerning the sixth framework programme of the European Community for research, technological development and demonstration activities, contributing to the creation of the European Research Area and to innovation (2002 to 2006), OJ L 232, 29 August 2002, p. 1; Decision amended by Decision no. 786/2004/EC, OJ L 138, 30.4.2004, p. 7. 18  Proposal for a Council Directive on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment, COM(2007) 637, Brussels, 23 October 2007. This proposal has been presented along with another Proposal for a Council Directive on a single application procedure for a single permit for thirdcountry nationals to reside and work in the territory of a member state and on a common set of rights for third-country workers legally residing in a member state, COM(2007) 638, Brussels, 23 October 2007. 19  Proposal for a Council Directive on the conditions of entry and residence of third-country nationals for the purpose of paid employment and self-economic activities, COM(2001) 386 final, OJ C 332 E, 27 November 2001, p. 48. 20  Green Paper on an EU approach to managing economic migration, COM(2004) 811, Brussels, 11 January 2005, OJ C 125, 24 May 2005, p. 9. The contributions to the public consultation procedure can be checked at , accessed 8 January 2009. 21  Commission Communication, Policy Plan on legal migration, COM(2005) 669, Brussels, 21 December 2005, p. 5. 22 The Commission states in the explanatory memorandum that ‘the attractiveness of the EU compared to such countries [USA and Canada] suffers from the fact that at present highly qualified migrants must face 27 different admission systems, do not have the possibility of easily moving from one country to another for work, and in several cases lengthy and cumbersome procedures make them opt for non-EU countries granting more favourable conditions for entry and stay […]. Even where specific schemes exist, these are exclusively national and do not allow any facilitation for highly qualified third-country

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The proposal therefore tries to establish a progressive access to the right of free movement. Holders of an EU Blue Card will not have to wait to acquire the longterm resident status in order to be granted mobility rights. After two years of legal residence as a holder of an EU Blue Card, these workers will have the possibility to work and reside in other member states but under the same conditions already applied for admission in the first member state. Besides, the proposal introduces derogations from the long-term residents Directive ‘in order not to penalise geographically mobile highly qualified third-country workers’,23 by taking into account residence periods in other member states in order to acquire the status. Moreover, once those qualified workers achieve long-term residence status, they should be given preference with regard to other TCNs. The approach to free movement followed by this proposal instrumentalises one more time the possibilities of mobility in order to achieve other goals related to the economic growth of the Community. This is not necessarily a negative development because subjective mobility rights have been placed at the core of the legal status of the only two norms adopted regarding admission of TCNs, and maybe will also be included in the proposed Directive on the admission of highly skilled workers. Mobility as an Instrument to Perform Integration: The Long-Term Residence Directive Even though the provisions on mobility of TCNs proposed by the Commission had also in mind the economic objectives of the EC,24 the long-term residents Directive places freedom of movement among the paramount elements which constitute a legal status whose major goal is to achieve integration. The longterm residents Directive has been considered the best example of the emergence workers needing or wishing to move to another member state for employment, therefore segmenting the EU labour market and not allowing for more efficient (re-)allocation of the necessary workforce’. 23  Preamble 16 of the proposal. 24  In this regard, the European Commission has stated that: ‘the evolution of the employment market in the Union is highlighting employment shortages in certain sectors of the economy. Third-country nationals who are long-term residents may be ready and willing to relocate either in order to put their vocational skills to work in another member state or to escape unemployment in the member state where they reside. The mobility of long-term residents can thus make for better utilisation of employment reserves available in different member states. At a time when several member states are engaging in international competition to attract specialists, notably in the information technology, the possibility of acquiring long-term resident status and therefore of residing in any of the member states will make the prospect of settling in the European Union on a long-term basis all the more attractive’. Proposal for a Council Directive concerning the status of third-country nationals who are long term residents, COM(2001) 127 final. OJ C 240 E, 28 August, 2001, p. 79, point 58.

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of a ‘civic citizenship’, concept which ‘represents the idea that a certain group of TCNs should be provided with a bundle of rights and responsibilities that reflects their established membership, participation and contribution to European society’ (Bell 2007, 332). This Directive constitutes the best case study for this chapter for three different reasons. In the first place, integration is one of the main objectives of the Directive itself. In the second place, the Directive allows member states to introduce integration conditions in order to get the status, which is somewhat contradictory with the objective of integration (Bell 2007, 330). Third, some elements of free movement of TCNs have been introduced as a means to improve integration, but the efficiency of the system created is far from being clear. Before we address the question of freedom of movement in the different Community instruments, some considerations about the concept of integration in EU deserve our attention. From the wording of the relevant Community Directives which may have an impact on the integration of TCNs it does not appear clearly whether rights should be conferred in order to promote integration, or whether those rights are only to be granted to those who are deemed to satisfy the requirement of integration. The debate around integration as a goal to be achieved through the endowment of rights or as a price after having integrated is still ongoing. The first approach is an inclusive one, as long as it considers that integration should be fostered by granting certain rights and no differences should be made among immigrants. Those who manifestly prove their will to remain within the territory of a member state for a long period will be granted the rights which will enable them to integrate successfully in society. On the other hand, the ‘price’ approach presupposes the inability or unwillingness of a certain sector of the immigrant population to integrate in European societies. From this point of view, only those who are able to integrate and have already attained a certain level of integration deserve to be endowed the rights only after having demonstrate that they have achieve the integration process successfully. As long as both approaches are represented in the norms of the EC, one could not be able to say which one is to be considered as determinant in the different instruments. The long-term residents Directive suffers from this ambiguity, which also manifestly affect the approach to mobility followed by its provisions. Integration as the main objective of the directive The integration of immigrants was set as a major objective of the EC action on immigration in the Tampere Conclusions of 1999. The principle of ‘near equality’ was then established as a guideline for the developing EU’s immigration policy, and has to be read as meaning that the differences of treatment since then had to be justified, because TCNs residing in the member states on a long-term basis were to be granted ‘a set of uniform rights which are as near as possible to those enjoyed by citizens of the European Union’.25 For this purpose, the Directive is to be considered as ‘a genuine instrument for the integration of long-term residents into society in 25  Preamble 2 of the Directive.

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which they live’ and, in order to achieve this goal, ‘long-term residents should enjoy equality of treatment with citizens of the member state in a wide range of economic and social matters […]’.26 The preambles of the Directive also consider the integration of long-term residents as a key element in promoting economic and social cohesion. Integration as a precondition for the acquisition of the status.  Once it has been established that integration is one, if not the most, important goal, it is striking to find that the Directive enables member states to make the acquisition of the long-term resident status dependent upon the fulfilment of integration conditions. The Commission’s original proposal did not contain any reference to such integration conditions. The system conceived by the Commission was based in the requirement of a period of five years of residence. This period was considered as a proof of the will to reside permanently or at least, for a considerable period of time in a certain member state, and it also could serve as a criterion to show that a person ‘has put down roots’. This objective requirement, as well as other economic requirements such as sufficient income or the sickness insurance, is considered enough to grant the status. Nonetheless, during the negotiations in the Council, three member states adopted a common position regarding the issue of integration and managed to include in the final text a new requirement for the acquisition of the status, namely, the application of integration conditions.27 Due to the unanimity requirement in the negotiation procedure, the decision to introduce integration conditions in the Directive was taken by the Council on the 14-15 October 2002. The text finally adopted in Article 5 (2) of the Directive sets out that ‘Member states may require third-country nationals to comply with integration conditions, in accordance with national law’. So to say, member states can decide that the five years period is not enough to presuppose a level of integration which could justify the endowment of long-term resident rights. By introducing this possibility, the Directive has lost much of its internal coherence. The individuals may be subject to integration conditions in order to get a status which aims at their own integration.28 The possibility to make the acquisition of the status conditional upon integration requirements witnesses a new trend that was not extended few years ago, but which is gaining force in the present among several member states

26  Preamble 12 of the Directive. 27  Council Document 12217/02 of 23 of September 2002. Note from the German, Dutch and Austrian delegations to the Strategic Committee on Immigration, Frontiers and Asylum. 28  Carrera has underlined also this contradiction: ‘a process of inclusion of migrants may rather become an effective process of exclusion of those identified as not having integrated successfully into the mainstream society […]. The Directive 2003/109 on the long-term resident status could in these ways undermine, instead of facilitate, an open process of inclusiveness and integration of migrants in the receiving societies’ (Carrera 2005a, 18).

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(Carrera 2006a). Moreover, the access to the long-term resident status may by hampered (Halleskov 2007, 186; Boelaert-Suominen 2005, 1023) if the application of integration conditions were widely used, because of the legal uncertainty that this concept implies. In this respect, it has to be borne in mind that the Judgement of the ECJ in the case of the family reunion Directive has underlined that the concept of integration cannot be used in an uncertain way.29 Integration as a precondition for the enjoyment of the right of residence in other member states. Once integration conditions were introduced as a possible requirement to obtain the long-term residents status, some member states struggled for the inclusion of the possibility to make the residence right in other member states dependent upon integration conditions.30 The solution which was in the end adopted by the Council was a sort of compromise, which is now set out on Article 15 (3) of the Directive. The possibility to introduce some integration requirements has been partially accepted, as the first paragraph of the aforementioned Article states that ‘Member states may require third-country nationals to comply with integration measures, in accordance with national law’. It is to note that this provision refers to ‘integration measures’ while Article 5 of the same Directive refers to ‘integration conditions’. This differentiation of concepts used is not to be considered without legal meaning (Groenendjik 2004, 123), as long as it was expressly debated in the negotiations in the Council.31 An ‘integration condition’ means that the acquisition of the status or the enjoyment of a certain right can be conditioned upon the fulfilment of a specific integration test. On the other hand, an ‘integration measure’ can be considered as a means of integration which can be imposed to the individual, but whose fulfilment has to be considered as achieved as long as the individual has been subject to the application of this measure. A certain level of performance, for example, in languages cannot be required but only the attendance of some language courses (Groenendijk 2006b, 224). Besides, the compromise finally attained in the Council was much more precise. Namely, long-term residents cannot be subjected to integration measures in a second member state if they had already complied with integration conditions of any kind in order to obtain the long-term resident status. An exception to this provision allows member states to require the individual concerned to attend language courses, but, in any case, the right of residence cannot be conditioned on the results of it. As a consequence, Article 16 of the Directive is to be considered as a positive provision, as long as it only allows ‘integration measures’ and inasmuch as even 29  Case C-540/03, European Parliament v Council, of 27 June 2006, ECR [2006] p. I-05759, point 66. 30  Council Document 12217/02; See also Council Document 12624/02, in which a compromise was proposed by the Presidency. 31  Council Document 7393/03 of 14 March 2003.

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those are excluded when the TCN has already been subjected to ‘integration conditions’ in another member state. Once the long-term resident is deemed to have been integrated in one member state, s/he cannot be required one more time to proof her/his integration in other member state. That is to say, integration in one member state is considered equivalent to integration in European Union considered as a whole. Mobility in order to enhance integration The Commission took to the last consequences the Tampere approach in its proposal for a long-term residents Directive by trying to extend the right to free movement although providing for some limitations. In other words, the Commission not only wanted to introduce a general provision conferring equal treatment in the member states, but it also wanted to set equality, ‘as near as possible’ with regard to the most typical individual right granted by EU provisions: i.e. the freedom of movement. As Bell (2007) has stated, ‘the Directive marks a detachment of Union citizenship as the sole route to autonomous free movement rights’. This is a significant departure providing genuine substance to the idea of civic citizenship. Moreover, the objective of integration of immigrants was deeply connected with that of the free movement of people: The Commission considers that full integration also entails the right for longterm residents to reside in other member states and that the time has come to implement Article 63 (4) of the EC Treaty. A genuine area of freedom, security and justice, a fundamental objective of the European Union, is unthinkable without a degree of mobility for third-country nationals residing there legally, and particularly for those residing on a long-term basis. It must also be stressed that Article 45 of the Charter of Fundamental Rights of the European Union confirms that ‘freedom of movement and residence may be granted, in accordance with the Treaty establishing the European Community, to nationals of third-countries legally resident in the territory of a member state’.32 The Commission supports therefore a particular concept of integration, as a process not to be developed only with reference to the member states’s societies but also with regard to the wider EU area. The Commission’s proposal was inspired by the principle of ‘near equality’, and therefore conceived a system of free movement which resembled the freedom of movement which applies to European citizens. It goes without saying that the Chapter of the Directive dealing with the issue of free movement suffered mayor amendments during the negotiations in the Council. After the negotiation process the system finally adopted is of great complexity and cannot be defined as a ‘free movement’ system, as far as it does not extend at any level the system of free movement of persons developed in the internal market, but it lays down a new system. 32  Proposal for a Council Directive concerning the status of third-country nationals who are long-term residents, COM (2001)127 final, Brussels, 13 March 2001, OJ C 240 E, 24 August 2001.

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Chapter 3 of the Directive establishes the conditions subject to which longterm residents can take up residence in other member states, and can be considered as the most innovative, but also the most problematic and incomplete part of the Directive. The conditions for exercising the right of residence in other member states are almost the same as those required to acquire the long-term resident status, namely, economic resources and sickness insurance. Besides, the individuals concerned should not pose a threat to public policy, public security and public heath and can be subject to integration measures (if they have not been required to comply with integration conditions in another member state). But even if they fulfil all those conditions, long-term residents may have their residence permit in the second member state denied, depending on the reasons of their residence claim. In the first place, long-term residents will not have a right to take up residence in Austria under Community law inasmuch as the Directive provides for an exception aiming to maintain the Austrian quota system.33 In the second place, if the main purpose of the projected residence is to exercise economic activities, long-term residents can be required to follow the recruitment procedures in each member state that may take into account the national labour market situation.34 As a result, only TCNs intending to pursue studies or other purposes who fulfil the conditions may have the right endowed by Community law to take up residence in other member state, but not workers. This system is somewhat in contradiction with the philosophy underlying the internal market. The proposal of the Commission was inspired by the free movement approach although providing for some differences. But through the negotiations in the Council a new system has emerged, and it is not clear to what extend the aquis communautaire on free movement of persons can apply to it. The regulation of the possibilities to reside in other member states is governed by a philosophy other than that of the free movement, namely, the one of the immigration control.

33 Article 14 (4) sets out that: ‘By way of derogation from the provisions of paragraph 1, member states may limit the total number of persons entitled to be granted right of residence, provided that such limitations are already set out for the admission of thirdcountry nationals in the existing legislation at the time of the adoption of this Directive’. 34 Third paragraph of Article 14: ‘In cases of an economic activity in an employed or self-employed capacity referred to in paragraph 2 (a), member states may examine the situation of their labour market and apply their national procedures regarding the requirements for, respectively, filling a vacancy, or for exercising such activities. For reasons of labour market policy, member states may give preference to Union citizens, to third-country nationals, when provided for by Community legislation, as well as to thirdcountry nationals who reside legally and receive unemployment benefits in the member state concerned’.

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Conclusions Integration has been regarded as an issue which remains in the area of competence of member states and in this task the Community has to support them.35 But the Community itself has adopted a prominent role in order to achieve the goal of integration by adopting measures which confer directly applicable rights to TCNs, and therefore create a direct bond between those individuals and the Community (Iglesias 2007, 151). The extension of Community competences in the field of immigration and asylum has comported a shift in the objectives. Before the Treaty of Amsterdam, immigration issues were regarded as matters of common interest, mainly in order to assure free movement of European citizens. As long as a new Title has been introduced in the Treaty, immigration has become an issue which has its own dynamics that cannot be reduced to that of a mere complement of EC law, destined to assure and foster free movement of EC citizens in the internal market. Therefore, the objective of integration of immigrants has been placed at the top of the immigration agenda since the Tampere Council which also set the guideline of near-equality for TCNs. If we consider the Union as an actor in the integration process and also a relevant component of the identity of the members of the society of each member state, the endowment of rights attached to the European integration process would have a non negligible impact on the integration of TCNs residents in the member states themselves. Once it has been recognised that the extension of European citizenship to TCNs is neither politically nor legally possible in our days (Bell 2007), it remains possible to create a new European status taking into consideration the integration of TCNs in the EU. Whatever this status would be called,36 mobility rights in the broader meaning could be placed at its heart. Notwithstanding the existence of a European society with reference to which immigrants might be integrated, freedom of movement constitutes a striking element of the legal status of nationals from all member states, as members of a supranational political community. Integration, even regarded only in terms of inclusion in national societies would not be complete if TCNs were deprived of one of the rights enjoyed by all national citizens. Freedom of movement would be 35  This approach has been reaffirmed by the Treaty establishing a Constitution for Europe, which Article III-267 4 stated that: ‘European laws or framework laws may establish measures to provide incentives and support for the action of Member States with a view to promoting the integration of third-country nationals residing legally in their territories, excluding any harmonisation of the laws and regulations of the Member States’. This approach has been followed by Article 69 (b) (4) of the Treaty on the Functioning of the European Union. 36  Kostakopoulou (2002a) speaks about ‘European denizenship’, which ‘entails mobility rights within the Union, but does not extend to political participation and diplomatic protection abroad’.

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regarded, in this case, as an element with reference to which discrimination exists, even if it is a right without any political content which could explain its limitation to nationals. Immigrants would therefore be able to enjoy rights and benefits in the national arena, but would be excluded from the benefits of European integration. The existing Directives which contain specific provisions on the mobility of TCNs do not always follow this approach. Indeed, the paradigm of fostering integration through mobility has been only partially adopted, mainly because of the ambiguous role played by the concept of integration in EC immigration law. This ambiguity is manifestly found in the long-term residents Directive, in which, mobility is particularly regarded as an asset in the general structure of the norm in order to promote integration. Nevertheless, integration ‘measures’ can still be applied to TCNs who whish to reside in other member state. This situation is, nonetheless, not regrettable, as long as these ‘measures’ do not have the same legal meaning as ‘integration conditions’. They can therefore only be used in order to foster integration but not to impede the acquisition of mobility rights. On the other hand, mobility rights have been granted by other EC migration norms with different aims, mainly, in order to enhance the competitiveness of the EU as a global economic actor. Mobility can undoubtedly play an important part in order to attract qualified workers, students and researchers from third countries. All in all, mobility has been used by EC law with different but not exclusionary aims. Integration and competitiveness are not necessarily contradictory goals in as much as the legal system of mobility emerging from EC legal norms with regard to TCNs is developed in a comprehensive and coherent system within which the meaning of mobility in the integration process is not set aside. Nonetheless, integration can be hindered by the competitiveness approach if the access to mobility rights is only granted to those who are deemed to be needed for the economy, or if differentiation is introduced in the enjoyment of mobility rights producing discrimination among different categories of TCNs with regard to their qualifications or economic status. As the Commission proposal on the ‘EU Blue Card’ goes towards this direction, future developments should be strictly scrutinised in order to assure the consistency of the emerging EU mobility system for TCNs with the objective of integration.

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Chapter 12

Access to Social Assistance Benefits and Directive 2004/38 Paul Minderhoud

This chapter focuses on the issues concerning the implementation of Directive 2004/38 in the light of access to social assistance benefits for EU citizens in other member states. This Directive regulates the entry and residence of EU citizens and their family members in another member state. Directive 2004/38 makes a distinction between residence up to three months, residence from three months to five years and residence for longer than five years. Different preconditions for residence apply in each of these three categories. Furthermore, the treatment of economically inactive persons differs from the treatment of economically active persons. For each category there are different rules regarding access to social assistance benefits. The Directive gives all EU citizens a right to entry to any EU state without any conditions or formalities other than the requirement to hold a valid identity card or passport for three months (Article 6). It is, however, explicitly stated in Article 24 (2) that the host member state shall not be obliged to confer any entitlement to social assistance during these first three months of residence. According to Article 7 (1) Directive 2004/38 Union citizens only have the right of residence on the territory of another member state for a period of longer than three months if they are workers or self-employed persons in the host member state, or have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the receiving member state during their period of residence and have comprehensive sickness insurance cover. Union citizens who have resided legally for a continuous period of five years in the host member state shall have the right of permanent residence there. This means that after five years, a right of permanent residence is given to Union citizens (and their family members), without any further conditions, even if these persons do not have sufficient resources or comprehensive sickness insurance cover.   Council Directive 2004/38/EC of 29 April 2004, on the right of citizens of the Union and their family members to move and reside freely within the territory of the member states. OJ L158/77, 30 April 2004. The transposition period of the Directive ended on 30 April 2006.   See Article 16 (1) Directive 2004/38.

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This Directive on free movement will make immigration of inactive EU citizens (and their family members) easier. Every EU citizen has the right of residence for up to five years in any member state. After that, s/he will receive the right to permanent residence along with full social protection. Although there are safeguards against welfare abuse in the first five years – migrants must prove they have health insurance and the necessary ‘resources’ – there are none against claims after that period. At that point, migrants will have the right to permanent residence – and full welfare benefits – even if they have no health insurance or resources. Entitlement to Social Assistance Benefits? A big problem however is that the wording of Directive 2004/38 regarding entitlement to social assistance benefits is very ambiguous. On the one hand the Directive only allows inactive persons to use their free movement rights if they have the necessary resources. On the other hand it does include all kinds of signals leading to the conclusion that when these inactive persons apply for a social assistance benefits they will be granted and this will not allow for an automatic expulsion of these inactive EU citizens from the member state concerned. Lenaerts and Heremans (2006) speak in this context of a ‘balancing act’ between the interest awarding social rights as a consequence of the right of free movement against the interest of safeguarding the national welfare systems. Articles 14 (1) and (2) of Directive 2004/38 regulate the retention of the right of residence. On the basis of Article 14 (1) ‘Union citizens and their family members shall have the right of residence provided for in Article 6 (right of residence up to three months), as long as they do not become an unreasonable burden on the social assistance system of the host member state’. Article 14 (2) reads as follows: ‘Union citizens and their family members shall have the right of residence provided for in Articles 7, 12 and 13 as long as they meet the conditions set out therein’. This wording seems to imply that an appeal to social assistance will lead to an ending of the right of residence for those inactive persons who stay in another member state for less than five years. But this is not the case, because according to Article 14 (3) ‘An expulsion measure shall not be the automatic consequence of a Union citizen’s or his or her family member’s recourse to the social assistance system of the host member state’. Further, the category of ‘unreasonable burden’ is not further defined in Article 14, but is described in Recital 16 of the Preamble: As long as the beneficiaries of the right of residence do not become an unreasonable burden on the social assistance system of the host member state they should not be expelled. Therefore, an expulsion measure should not be the automatic consequence of recourse to the social assistance system. The host   I will not deal in this chapter with the possibilities of expulsion on public order grounds. See Chapter VI of Directive 2004/38.

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member state should examine whether it is a case of temporary difficulties and take into account the duration of residence, the personal circumstances and the amount of aid granted in order to consider whether the beneficiary has become an unreasonable burden on its social assistance system and to proceed to his expulsion. In no case should an expulsion measure be adopted against workers, self-employed persons or job-seekers as defined by the Court of Justice save on grounds of public policy or public security.

The above mentioned ambiguity of Directive 2004/38 can also be found in Article 24. On the one hand, Article 24 (1) provides for equal treatment for all Union citizens (and their family members) residing on the basis of this Directive in the territory of the host member state. But, on the other hand, according to paragraph 2 of this Article the host member state shall not be obliged to confer entitlement to social assistance during the first three months of residence or for jobseekers looking for employment nor to grant maintenance aid for students, who have no right of permanent residence yet. In an attempt to clarify several aspects of Directive 2004/38 the DirectorateGeneral of Justice, Freedom and Security of the European Commission published in 2007 a ‘Guide on how to get the best out of Directive 2004/38/EC’. This guide states that: If your right to reside is conditional upon having sufficient resources not to become a burden on the social assistance system of the host member state during the period of residence [i.e. when you study or are an inactive person there], it might be terminated once you become an unreasonable burden on the social assistance system. This does not mean that you cannot apply for social assistance there when you are in need. However, in this case the host member state is entitled to examine whether it is a case of temporary difficulties and after taking into account the duration of your residence, the personal circumstances and the amount of aid granted, it may consider that you have become an unreasonable burden on its social assistance system and proceed to your expulsion. An expulsion measure can in no case be the automatic consequence of recourse to the social assistance system. Should you be expelled on these grounds, the host member state cannot impose a ban on the entry and you can return back at any time and enjoy the right to reside if you meet the conditions described above. This limitation does not apply to categories where the right to reside is not subject to the condition of sufficient resources, such as workers or selfemployed persons.

Although this Guide was meant for clarification, it still leaves a wide level of discretion for the member states to define the concept of unreasonable burden. Unsolved questions still persist in those cases where there are temporary   See .

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difficulties, or in relation to the uncertainty regarding how long the duration of residence should have been, or which personal circumstances should be relevant and how much aid granted is too much, etc. T ransposition Issues of the Directive In several member states the transposition of Directive 2004/38 was used as an occasion to introduce clauses in their social assistance legislation explicitly excluding EU nationals and their family members from entitlement to public assistance during the first three months of residence in another member state. Another important issue is that in some member states the implementation of Directive 2004/38 has also been used to limit the access of jobseekers to job seeking allowances. A third issue of interest is the determination of when a Union citizen becomes ‘an unreasonable burden’ in various member states. Social Assistance during the First Three Months of Residence The transposition of Directive 2004/38 led to the introduction of clauses in the social law of several member states explicitly excluding EU nationals and their family members from entitlement to public assistance during the first three months of residence in another member state, referring to Article 24 (2) of the Directive. A good example in this respect is the Netherlands. At the occasion of the transposition of Directive 2004/38 the Dutch government changed their Social Assistance Act and introduced legislation excluding all EU citizens explicitly from social assistance benefits during the first three months of their stay. Under the old legislation these EU citizens were formally entitled to social assistance from the moment they entered the Netherlands. However, an appeal on social assistance would lead immediately to a termination of the residence status and consequently to a loss of social assistance entitlement. To prevent discrimination the Dutch government took the opportunity of this change of legislation to introduce in the Social Assistance Act the condition of habitual residence for the entitlement of social assistance for all claimants (Dutch or non-Dutch). Also Dutchmen who came from abroad would not be entitled any more to social assistance for at least the first three months of their residence because they would not be seen as habitual residents immediately.

 This information is partly based on the national reports written for the Network on Free Movement of Workers, which is coordinated by the Centre for Migration Law in Nijmegen. The 2006 reports are available at the website of the European Commission. See: .   Job seekers do not have access to social assistance benefits during the time they are looking for a job in The Netherlands.

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This introduction was challenged in the First Chamber, because it was seen in breach with the Dutch Constitution, which entitles in Article 20 (3) every Dutch citizen to social assistance, being an habitual resident or not. After the State Secretary of Social Affairs had assured the First Chamber that this change of legislation did not mean that there was a waiting period of three months for Dutch citizens, who came from abroad to the Netherlands, the Bill was approved. This solution raises the question whether it is possible in the light of Article 12 TEC to impose this three months waiting period on EU citizens or not. Entitlement to Social Assistance Benefits for Job Seekers In some other member states the implementation of Directive 2004/38 has been used to limit the access of jobseekers to job seeking allowances. A good example is Germany where an amendment of the Social Code II (the Second Book of the Social Code) changed the rules on entitlement to social benefits as a jobseeker by making use of the restrictions of Directive 2004/38 under Article 24 (2). According to the amended section 7, paragraph 1, second sentence of this Social Code II, foreigners, including EU citizens whose right of residence derives exclusively from the purpose of taking up employment, are not entitled to jobseeker allowances. According to the drafting history of this new provision,10 the legislator wanted deliberately to exclude access to social benefits for foreigners entering Germany for the purpose of seeking employment. Contrary to the previous less restrictive provisions which granted an entitlement to every foreigner on the basis of ordinary residence in Germany, the access to social benefits under the Social Code II (job seekers’ allowances) are excluded explicitly even beyond the time period of three months in accordance with the Union Citizens Directive (Article 24 (2)). This intention of the legislator however, has been challenged by several German Social Courts. Referring to a range of decisions of these Courts, Brinkmann (2006) comes to the conclusion that the Courts only allow the exclusion of Union citizens who are looking for a job for the first time (erstmalig Arbeitssuchenden) from access to job-seekers’ allowances according to Social Code II – regardless of the fact that they are entitled to entry and residence. Union citizens looking for employment after having been employed in Germany earlier are entitled to equal treatment with the consequence of equal access to job-seekers’ allowances.

  Handelingen EK 2005-2006, no. 36, p. 1747-1753, Staatsblad 2006, 373 and 456.  Law of 24 March 2006, BGBl. I, p. 558.   Section 7 (1) of the Social Code II states in German: ‘[…]Ausgenommen sind Ausländer, deren Aufenthaltsrecht sich allein aus dem Zweck der Arbeitssuche ergibt, ihre Familienangehörigen sowie Leistungsberechtigte nach § 1 desAsylbewerberleistungsgesetzes. Aufenthaltsrechtliche Bestimmungen bleiben unberührt’. 10  Cf. Bundesratsdrucksache 550/05; Bundestagsdrucksache 16 (11), 80.

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In some Court cases, although it has been decided that these Union citizens, who are looking for a job for the first time and who have no access to job-seekers allowances according to the German Social Code II, are entitled to social assistance benefits under another part of the German Social Code (book XII) as long as their right of free movement has not been explicitly terminated or repealed.11 A good illustration is given by a judgment of the Social Appeal Court for North Rhine Westphalia.12 Relying upon the jurisprudence of the European Court of Justice (ECJ) in the cases Grzelczyk13 and Trojani,14 this Court decided that under German domestic law Union citizens looking for employment are nevertheless entitled to social assistance benefits under the general provisions of the Social Code XII. The Court quashed the decision of the lower Court refusing access to social welfare since under the German Free Movement Act Union citizens seeking employment were entitled to a right of entry and residence. As long as their right of entry and residence had not been withdrawn by a decision of the competent authorities, they were entitled under their status as Union citizens to equal treatment under Article 12 and Article 18 TEC. The Court relied upon ECJ’s jurisprudence stating that not only economically active Union citizens but all Union citizens lawfully staying in another member state were in principle entitled to equal treatment to social welfare systems. Since German law in social welfare did not explicitly exclude access to social benefits under the Social Code XII, according to the Court every Union citizen could therefore claim this equal treatment. In Germany a right of residence could only be restricted by making excessive use of such benefits. According to the Social Code XII, social welfare may be refused if a foreigner has entered into Germany for the mere intention to receive social welfare.15 Since this provision requires evidence of an intention to receive benefits, it is seldom applied in administrative practice. The same Court has confirmed its jurisprudence in a judgment of 3 November 200616 dealing with the case of a Polish national who had entered Germany in 2004 and successfully applied for social welfare from December 2005 until March 2006. His application in July 2006 for job seekers’ allowances had first been rejected after the amendment of the Social Code II. A claim for social welfare under the Social Code XII had also been rejected with the argument that under the Social Code XII persons were not entitled to social assistance because the amendment of the Social Code II explicitly intended to exclude foreigners looking for employment from access to all systems of social benefits. Therefore, the 11  Social Appeal Court for North Rhine Westphalia, 3 November 2006, L 20 B 248/06 AS. 12  Judgment of 4 September 2006, L 20 B 73/06, SOER. 13  Case C-184/99, Rudy Grzelczyk v CPAS [2001] ECR I-6193. 14  Case C-456/02, Trojani v CPAS [2004] ECR I-7573. 15  Section 22, paragraph 1, Social Code XII. 16 L 20 B 248/06 AS.

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applicants as well were not entitled to social assistance under the Social Code XII. The Appeal Court once again rejected this argument. Although Union citizens from the new member states were not yet entitled to full free movement under the Accession Treaties,17 they were nevertheless entitled to rely upon a general right of free movement under the German Freedom of Movement Act as Union citizens looking for employment or for the purpose of professional formation. Therefore under Article 12 in connection with Article 18 TEC, Union citizens staying lawfully in Germany were entitled to equal access to social benefits in spite of the fact that member states were entitled to restrict the residence right of non-economically Union citizens. A national rule depriving Union citizens from access to social benefits staying lawfully in Germany could not be considered as compatible with Community law if an equal rule were not applicable for German nationals in order to obtain access to social assistance. As long as the applicant was in possession of a formal document certifying her/his right of free movement as a Union citizen the Court decided it was obliged to apply the equal treatment provisions of the Treaty. However, this line of reasoning is not undisputed, yet. Early 2008 the Social Court of Nürnberg held the opinion that EU citizens, whose right of residence in Germany derives only from the fact that they are job seekers, should have no entitlement to any social assistance at all. To get more clarity on this issue the Court has referred to the ECJ a preliminary ruling asking the following three questions: 1. Is Article 24 (2) of Directive 2004/38 compatible with Article 12 TEC in conjunction with Article 39 TEC? 2. If the answer to question 1 is in the negative, does Article 12 TEC in conjunction with Article 39 TEC preclude national rules which exclude Union citizens from receipt of social assistance if the maximum period of residence permitted under Article 6 of Directive 2004/38 has been exceeded and there is no right of residence under other provisions? 3. If the answer to question 1 is in the affirmative, does Article 12 TEC preclude national rules which exclude nationals of member states of the European Union even from receipt of the social assistance benefits which are granted to illegal immigrants?18 The access of job seekers to social benefits in the light of Directive 2004/38 was also discussed by a special investigation committee in Sweden. This committee concluded on the one hand that if a Union citizen is a job-seeker, s/he should not be entitled to social assistance during the period s/he is looking for a job

17 Because Germany applies transitional arrangements. 18 Reference for a preliminary ruling from the Sozialgericht Nürnberg (Germany) lodged on 22 January 2008 – Vatsouras v Arbeitsgemeinschaft (ARGE) Nürnberg 900 (Case C-22/08) and Koupatantze v Arbeitsgemeinschaft (ARGE) Nürnberg 900 (Case C-23/08).

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(in accordance with Article 24 (2) Directive 2004/38).19 But, on the other hand, referring to the Collins case, in situations when a job seeker has a ‘genuine link’ to the Swedish labour market, the committee stated that the job seeker very probably could have a right to equal treatment regarding social benefits.20 Exceptions of the rule should also be made in case of emergency.21 A crucial question concerning job seekers was also for how long a person could have a right to stay in Sweden searching for a job. Regarding this issue the committee – referring to the Antonissen case in 1991 – advocated a sixth months rule (‘or longer’) as a ‘rule of thumb’ for a right to stay in Sweden searching for a job, even though exceptions could be made in line with the statements from the ECJ.22 In 2006 the Government presented a proposition regarding the transposition of Directive 2004/38.23 In the end, a new regulation was introduced in the Aliens Act stipulating that an EU citizen who is not qualified for a right of residence (uppehållsrätt) could be expelled if the person constitutes an unreasonable burden to the social benefit system, but a ‘job seeker’ would be however exempted from the risk of being expelled. A key issue for the regulation to apply is – referring to the Directive – if the job seeker has a real chance to find a job in Sweden (Edström 2007).24 Another interesting country regarding job seeker’s allowances is Denmark. According to the Danish Act on Active Social Policy,25 EU/EEA citizens residing in Denmark on the basis of Community law on jobseekers’ right to residence are entitled to no other economical assistance under the Act than coverage of costs related to the return to their home country. This special provision was inserted into the Act in implementation of the political agreement on access to the labour market following the EU enlargement.26 As the amendment was proposed to the Parliament in February 2004, before the ECJ delivered its judgments in the Collins and Trojani cases,27 the possible impact of these judgments was not discussed in the explanatory memorandum, nor elsewhere in the preparatory works. It was, however, argued that the new provision aimed at emphasising that this category of 19  Official Report SOU 2005:34, p. 162. 20  Idem. 21  Nordic citizens are not suggested to be embraced by the regulation (referring to Article 24 (2)). 22  Case C-292/89, The Queen v Immigration Appeal Tribunal, ex parte Gustaff Desiderius Antonissen [1991] ECR I-745. Further, regarding the ‘sixth months rule’ suggested by the committee it coincides with the Migration Board’s practice concerning the period a job seeker can stay in Sweden without having residence permit. 23  Government’s proposition 2005/06:77. 24  See also Article 14 (4) (b) Directive 2004/38. 25  Consolidation Act no. 1009 of 24 October 2005. 26 Act no. 282 of 26 April 2004. 27  Case C-138/02, Collins v Secretary of State for Work and Pensions [2004] ECR I-2703; and Case C-456/02, Trojani v CPAS [2004] ECR I-7573.

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EU citizens – whose right of residence under EU law is conditioned on economic self-sustainability – should not be entitled to receive public assistance on a current basis during their stay in Denmark as first-time jobseekers.28 The Danish National Appeals Board on Social Welfare by the end of 2006 had still not examined any cases concerning this limitation of the Act on Active Social Policy.29 When Does a Union Citizen become an Unreasonable Burden? A third issue that raises problems is the determination of when a Union citizen becomes ‘an unreasonable burden’. In the Netherlands, the Government has developed a kind of gliding scale to answer this question. According to the Dutch system expulsion of an inactive Union citizen will follow in the first year of residence in case of every appeal on social assistance (whether it is a request for an additional assistance or not). In the second year of residence expulsion will follow in case of an appeal to social assistance of more than three months or an additional appeal of more than six months. In the third year of residence in case of an appeal to social assistance of more than six months or an additional appeal of more than nine months. In the fourth year of residence in case of an appeal to social assistance of more than nine months or an additional appeal of more than 12 months.30 In one of the first Court cases in the Netherlands on this issue the judge misinterpreted Directive 2004/38 and the gliding scale completely by refusing a social assistance benefit to a German citizen, who stayed already in the Netherlands for over two years. According to this judge an EU citizen can only reside lawfully for more than three months on the basis of Article 7 Directive 2004/38 if s/he is a worker, a self-employed person or has sufficient resources. As in this case the German citizen could not be seen as a worker, because she did not fulfil the condition of real and genuine labour, according to the Court she had no lawful residence as an EU citizen and was therefore not entitled to any social assistance at all.31 Similar to the Dutch gliding scale, the authorities in the Czech Republic use a ‘system of points’. If a non-active EU citizen (who had registered for a stay longer than three months) claims a social assistance benefit, the competent authority examines whether a person concerned could become an ‘unreasonable burden on the social assistance scheme’. For non-active persons there is a system of points attributed to certain facts or characteristics of the person concerned. The facts that 28 Explanatory memorandum to Bill no. L 153/2003-04, paragraphs II. 1 and IX and specific comments on section 12 (a). 29  Search result from the list of appeals cases examined by the National Appeals Board on Social Welfare [Ankestyrelsen], available from , accessed 5 January 2009. 30 Aliens Circular 2000 B.10. 31 District Court Haarlem 10 augustus 2007, LJN: BB1627.

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are taken into account are mainly the previous length of residence, previous length of employment or self-employment in the Czech Republic, previous periods of study in the Czech Republic, possibilities in finding a job. There is a discretionary power to take into account whether the person concerned has only temporary difficulties, his/her personal circumstances, family commitments and the potential amount of benefit. The fewer points one gets, the sooner s/he will be seen as an unreasonable burden. This information will be given to the Aliens and Border Police, who can initiate an expulsion procedure. In Latvia it is also explicitly provided that a residence permit will be withdrawn in case an EU citizen and his/her family members place excessive burden on the social assistance system. This condition is not applicable in relation to an EU citizen who is employed or self-employed person in Latvia (and his/her family members). Regulations require that in order to establish whether a person creates an excessive burden on the social assistance system the length of residence in Latvia, the amount of assistance, the regularity of seeking access to assistance as well as the reasons for the request shall be taken into account. In Finland the Aliens Act laying down the grounds for refusing EU citizens’ and their family members’ entry was amended in the light of transposing Directive 2004/38 as follows: An EU citizen’s and her family member’s entry to Finland may be refused if her right of residence has not been registered or she has not been issued with a residence card and if she: […] 2) by resorting repeatedly to social assistance as provided in the Act on Social Assistance, or to other comparable benefits, or by other comparable means, during her short stay in the country burdens unreasonably the Finnish social assistance system.32

Those who burden unreasonably the national system of social assistance shall not be regarded to have the right of residence, and if a person does not have the right of residence, her/his entry may be refused. What constitutes an unreasonable burden to the social assistance system shall be decided case by case in Finland. It was stated in the proposal to the Act that the authorities shall use discretion when deciding whether to refuse the entry or not on the ground that the person concerned does not meet the requirement of not burdening unreasonably the Finnish social assistance system. Refusing the entry is thus not an automatic consequence of burdening the social assistance system. Referring to the ECJ cases Trojani and Grzelczyk, it is stated in the proposal to the Act that refusing an EU citizen entry on the ground of lack of resources comes into question only in very rare cases. In France we encounter also a different kind of problem. New rules for access to the French Revenu Minimum d’Insertion (RMI) – a benefit which guarantees a minimum subsistence allowance for all persons who have a stable and lawful residence in France – for European nationals came into force in 2006. In order to 32  Section 167 (2) Finnish Aliens Act.

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acquire the right to this allowance, nationals of EU member states must fulfil the conditions required to benefit from the right of residence and must have resided in France for three months preceding the request. The right to a RMI benefit is not open to inactive persons from another member state, except if at the time of arrival in France they meet the conditions of the right of residence, which means they need to have sufficient resources. The right to the RMI is granted to persons who are the victims of a ‘life-changing event’ (loss of job, family break-up) provided they have had sufficient means in the past in order not to become a burden on the French social assistance. It is not clear whether this means that these EU citizens have to give proof of sufficient resources upon entering France. Under Community law this is not allowed. Regarding this issue the ECJ has condemned the Netherlands in April 2008 in an action brought by the Commission for violation of the former Directives 90/365 and 90/364 and Directive 68/360 (which have now been replaced by Directive 2004/38) since the Dutch authorities required economically non-active and retired EU nationals to prove that they had lasting means of support in order to obtain a residence permit (at least for one year).33 This meant in practice that they had to show a bank account of €15,000. Recently, the Netherlands has already abandoned this requirement for all EU citizens except for Bulgarian and Romanian nationals. H abitual R esidence and Directive 2004/38: T he Case of Ireland In Ireland, apparently as a direct consequence of concerns that enlargement might increase ‘welfare tourism’, it was decided that social welfare payments would, from 1 May 2004, be available only to those persons, irrespective of nationality, who have been habitually resident in Ireland for at least two years prior to the claim. These habitual residence rules do not apply to social insurance payments. Social assistance payments are means tested and may be paid to people who do not qualify for social insurance benefits. Until May 2004, EU citizens who were in Ireland and had little or no income were immediately eligible for Unemployment Assistance or Supplementary Welfare Allowance if they satisfied the means test and, in the case of Unemployment Assistance, were genuinely looking for work. The purpose of this habitual residence condition was to restrict access to social assistance and child benefit payments for people from other countries who have little or no connection to Ireland.34 33  Case C-398/06, Commission v Netherlands [2008] ECR I‑0000. 34  No concrete test of habitual residence has been laid down in the Act. However, Section 246 of the 2005 Act provides that, ‘It shall be presumed until the contrary is shown, that a person is not habitually resident in the State at the date of making his/her application concerned unless he has been present in the State or any other part of the Common Travel Area for a continuous period of 2 years ending on that date’.

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According to guidelines issued by the Department of Social and Family Affairs, the condition applies to applicants regardless of nationality, but it is clear that the regime naturally advantages those who have been resident in other parts of the Common Travel Area (CTA),35 in particular the UK. The term ‘habitually resident’ is ‘intended to convey some degree of permanence and is intended to refer to a regular physical presence enduring for some time, usually (but not always) beginning at a date in the past and intended to continue for a period of time into the foreseeable future’. It implies a close association between the applicant and the country from which payment is claimed and relies heavily on the fact that the ‘most important factors for habitual residence are the length, continuity and general nature of actual residence rather than intention’, according to these guidelines. The decision on whether a person is habitually resident in the state is one for determination by a statutorily appointed officer who is duly authorised to determine entitlement. The decision is made on the basis of applying five factors set down by the ECJ in deciding whether a person is habitual resident.36 These factors, which are not exhaustive, are: 1. 2. 3. 4. 5.

The applicant’s main centre of interest; Length and continuity of residence in a particular country; Length and purpose of absence from a country; Nature and pattern of employment in a country; Future intention of the applicant concerned as it appears from all the circumstances.

The officers will have to examine these five factors and any additional information elicited by way of further enquiries. No single factor will be conclusive and the evidential weight to be attributed to each factor will depend on the circumstances of each case. In December 2004, the European Commission issued a Letter of Formal Notice indicating that it was concerned about the compatibility of the habitual residence condition with Ireland’s obligations under Community law, the potential indirectly discriminatory effect on grounds of nationality and the direct discrimination between applicants from within the CTA as opposed to other member states. In April 2006, however, the Commission decided not to pursue infringement proceedings having been satisfied that the condition complies fully with ECJ case law. This was based on an explanation from the Department of Social and Family Affairs that in cases where applicants had not lived within the CTA for more than two years, the two year negative presumption contained in the relevant 35 The CTA consists of the UK, Republic of Ireland, Channel Islands and the Isle of Man. 36  See Case C-138/02, Collins v Secretary of State for Work and Pensions [2004] ECR I-2703.

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legislation was not a determining factor in the decision making process, but rather that decisions were based on all five factors as set down by the ECJ (as mentioned above).37 United Kingdom: T he R ight to R eside T est In 2004 the UK used the accession of the ten new member states to restrict substantially the access to social benefits for all EU migrants. In order to access benefits following the change of regulation, applicants must show now that they have a right to reside in the UK. These regulations were intended to deal primarily with those who are not economically active. The regulations are intended to prevent those EU migrants who have no right of residence in the UK – because they are neither EU workers or a relevant dependent, nor self-sufficient and entitled to residence in their own right – from claiming a range of benefits. The British Government claimed that there was no systematic way under UK law and practice to identify and refuse these benefits to those who were not entitled under Community law. The habitual residence test which was introduced in the mid1990s did not perform this role, focusing on the fact of residence rather than its legality or legal basis. The solution to this problem was to add a new requirement for eligibility for the relevant benefits. Applicants will now have to show that they have a right to reside in the UK and no one without such a legal basis for residence will be regarded as habitually resident (Toner and White 2005). As to the position of ‘A8 jobseekers’, the provisions relating to them have also raised some concerns. These individuals will not have a right to reside – unless they are self-sufficient – and thus they will be excluded from benefits until they have had one continuous year of registered employment.38 This means that individuals with significant periods of residence and work, but who have encountered even short periods between spells of employment, could find themselves after even three or four years excluded from benefits should they lose their employment and in principle dependent on self-sufficient status to remain lawfully resident. These amendments to the benefits regulations are of general application and therefore of wider relevance than just to A8 nationals (Toner 2005).

37 Department of Social and Family Affairs, Internal Review of the Operation of the Habitual Residence Condition, July 2006. 38 A8 nationals are obliged within one month of starting a job, to apply to register under the Workers Registration Scheme (WRS). The registered A8 national will then receive a Registration Certificate and a Registration Card. The worker Registration Card is only issued the first time that the worker applies to register, and will continue to be valid even where an A8 national changes employment. The worker registration certificate, on the other hand, is specific to an employer and therefore must be changed every time the A8 national changes employment during the registration period.

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There are an increasing number of cases concerning the right to reside coming before UK Courts. An important judgment which directly addressed A8 nationals was given by the Court of Appeal of Northern Ireland on May 9 2007, in a case concerning a claim for benefits by a Polish national.39 The claimant arrived with her daughter after the date of accession (on July 1 2004). She worked initially in registered employment from July 2004 to January 2005, and during that time she was in full compliance with the Worker Registration Scheme (WRS). She subsequently changed employment several times in January 2005 though was continuously employed until July 2005. She did not, however, notify the WRS to amend her employment certificate. She later became unemployed and moved to a Shelter with her daughter in July 2005, where she applied for income support on behalf of herself and her daughter. This was refused on the basis that the claimant had not registered her employment on the WRS for a full 12 months, so she did not have a right to reside and could not be treated as habitually resident in Northern Ireland (UK). The case then went to the Social Security Appeals Tribunal which overturned the initial decision concluding that the amended habitual residence test incorporating the right to reside requirement in the definition of a person from abroad in Regulation 21 (3) of the Income Support (General) Regulations was incompatible with EC law40 as well as being outside the scope of the derogations permitted by the Accession Agreements. That Tribunal maintained that there was no derogation from Article 7 (2) Regulation 1612/68, and that the claimant remained a worker for the purposes of EC law, as the ECJ had taken a broad approach to the definition of a ‘worker’ under the EC Treaty. The case was appealed further to the Social Security Commissioner,41 who overturned the Tribunal’s decision, ruling that the WRS was compatible with EC law and the 12 month period of continuous employment required was neither excessive nor disproportionate. The Court held that the question of whether an A8 worker had been admitted to the labour market for the initial 12 months must be determined in accordance with national law, not Community law, as permitted by the derogations in the Accession Agreement. The successful Government argument was that the UK had not restricted access to its market for A8 nationals, but did impose a scheme which deals with registration, and not authorisation, to work. The intricacy of this case is that a Polish national had in fact worked for 12 months, but was not registered for this entire period. The main issue therefore in this case concerns the role of the registration requirement itself in determining rights in a case where an EU national has lawfully exercised free movement in order to take up employment in another Member State. Two other cases concerning a Swedish national and a Norwegian national (both born in Somalia) show the effect of the right to reside test to all European citizens. In a July 2007 joint ruling by a British Court of Appeal both were refused 39  Case Ewa Zalewski v Department of Social Development [2007] NICA 17. 40 Article 39 TEC and Article 7 (2) of Council Regulation (EEC) (1968) no. 1612/68 on freedom of movement for workers within the Community, OJ L 257, 19 October 1968. 41 Decision C6/05-06 (IS) [2006], NISSCSC C6-05-06 (IS).

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social benefits on the basis that they did not fulfil the right to reside test.42 Neither claimant was, at the relevant time, a worker or otherwise economically selfsufficient, and each claimed social benefits, having their claim initially rejected on the basis that they did not have the right to reside in the UK, as a result of the test introduced as from 1 May 2004. The Court concluded that the right to reside is only conferred upon British citizens, certain Commonwealth citizens, ‘qualified persons’ as defined by the UK Immigration (European Economic Area) Regulations 2000 and other protected by national law. The Court considered that as the claimants did not fulfil the requirements for ‘qualified persons’ status, they had no right to reside, and subsequently no right to the benefits sought, which are now dependent on fulfilment of the new test. In particular, this means that those EU Citizens who are neither workers nor in possession or receipt of funds from other sources to qualify as self-sufficient will be excluded from receipt of these benefits. This was intended to ensure that UK benefits were not granted to newly arrived EU Citizens in circumstances where this was not required by Community law simply due to the absence of proper provision in UK law to enforce the proper and lawful limits of entitlements under Community law. Some confusion arises out of the difficulty of removal of such individuals against their will as, being EU Citizens, there is an immediate right of re-entry based on Directive 2004/38 (absent public policy reasons) which means their presence must be tolerated and enforcing removal may be problematic. This does not however amount to ‘lawful residence’ for the purposes of these benefits and thus refusal of the specified benefit is perfectly appropriate in such circumstances. Another argument that was raised and rejected was that because of the wording of the Regulations, the ‘right to reside’ test was only applicable to those who were deemed to be habitually resident not those who had been found to be habitually resident in fact. All of them indicate therefore that an EU Citizen without means or work will not be treated under UK law as eligible for these benefits. It is clear from these cases that the policy behind the habitual residence and right to reside tests is accepted to be legitimate and proportionate response to potential claims on the social assistance resources of the UK, particularly in the situation of those newly arrived in the UK. Fear for Social Welfare T ourism The idea that states can only expel people if they are proved to be an ‘unreasonable burden’ has fuelled discussions over welfare tourism and fear for an extensive claim on social welfare systems by inactive EU citizens. It has been used as an argument to restrict the rights of access to social benefits. 42  Joined Cases [2007] EWCA Civ 657, Nadifa Dalmar Abdirahman v Secretary of State for Work and Pensions (2006/1639), and Ali Addow Ullusow v Secretary of State for Work and Pensions (2006/1668), 5 July 2007.

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This fear seems unfounded. So far the ECJ has not allowed an unconditional access to social assistance benefits of the host state. A first condition is always that the applicant has to have legal residence in the receiving state. In several cases the ECJ has formulated additional conditions that the applicant should ‘have a genuine link with the employment marker of the state concerned’,43 or ‘need to demonstrate a certain degree of integration into the society of the host State’.44 And the ECJ also recognises the right of the host member state to stop the right of residence of the person concerned, even if it may not become ‘the automatic consequence of relying on the social assistance system’ (Verschueren 2007).45 Lenaerts and Heremans (2007) indicate that on the one side, the ECJ has made it clear that Article 18 EC Treaty cannot be a ‘letter of safe-conduct’ for social tourism, but on the other side shows that a society can no longer limit its solidarity to its nationals and should include all persons who demonstrate a sufficient degree of integration in that society. A request for a minimum subsistence allowance can by itself be considered as an unreasonable burden, but when, as in the Grzelzyck case, a student will clearly only require this support for the duration of one year, the pressure on the system is reduced and ‘the balancing act’ changes (Lenaerts and Heremans 2007). Beside this legal objection there is also no empirical evidence of welfare tourism. A study from 2006 on the consequences of the enlargement for Sweden suggests even the opposite (Münz and Tamas 2006). Together with Ireland and the UK, Sweden did not introduce any transitional arrangements in the context of the EU enlargement to Central and Eastern Europe in 2004. It allowed the free movement of workers and was the only country to grant unrestricted access to its social welfare system. This unlimited access to the welfare system could have theoretically resulted in an increase in welfare tourism. However, this has not proven to be the case. First results indicate that immigration to Sweden from the ten new member states did not become an uncontrolled flood. Data on residence permits for work purposes show that the number of EU 10 citizens increased from 3,800 in 2003 to 5,200 in 2004. Numbers have since decreased to 4,500 in 2005. Although the data are not fully comparable, the general trend is clear: inflows have been very moderate and even declining. Furthermore, fears of welfare tourism did not materialise, as utilisation of social welfare benefits so far has been very limited. Therefore, concerns about a potential abuse of the social welfare system – Sweden acting as a magnet for social tourism – were unfounded, according to this study. In the Netherlands, as a reaction on repeated articles in Dutch newspapers about massive use of unemployment benefits and social assistance benefits by Polish nationals, the Minister of Social Affairs informed the Parliament in 2007 43  Case C-138/02, Collins, paragraphs 67-69. 44  Case C-209/03, Bidar, paragraph 57. 45  Case C-184/99, Grzelzyck, paragraph 43; and Case C-456/02, Trojani, paragraph 36.

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that a total of 3,733 nationals of other member states were receiving unemployment benefits, out of which 131 were EU 8 nationals. The EU 26 nationals formed 1.6 per cent of all recipients of unemployment benefits. Moreover, a total of 3,836 nationals of other member states were receiving social assistance, being 1 per cent of the total number of recipients of social assistance; among them were 280 EU 8 nationals, the largest group being 180 Polish nationals.46 Conclusion The new Directive on free movement will make immigration of inactive EU citizens (and their family members) easier. Every EU citizen has the right to a residence for up to five years in any member state, although this is not unconditional. After that, s/he will receive the right to permanent residence, with full social protection. Although there are safeguards against welfare abuse in the first five years – migrants must prove they have health insurance and the necessary ‘resources’ – there are none against claims after that period. At that point, migrants will have the right to permanent residence – and full social benefits – even if they have no health insurance or resources. A problem with the implementation of Directive 2004/38 is, that it is not clearly defined when an EU citizen becomes an ‘unreasonable burden’. Leeway is given to states to examine whether financial difficulties may be temporary. As a result, states have developed their own definitions and ways of implementing the Directive on this important point. Some legal experts hold the opinion that also before EU citizens have received a permanent residence right, it will not be possible to deny them access to social benefits because of the difficulty to prove that any one person has become an ‘unreasonable’ burden on a country. Hailbronner (2006) has argued that ‘in any individual case it will hardly ever be possible to show the unreasonableness of a burden. The social system as such cannot be substantially affected by an additional beneficiary’. And according to Martinsen (2007) it may be difficult for a member state to prove that an EU citizen is an ‘unreasonable burden’ on the social system, when, as has been demonstrated in the ECJ case law, recourse to social assistance in itself is not a sufficient reason. The policy and practice in Ireland and the UK, however, show a different picture. By using a habitual residence test and a right to reside test, the social benefits systems of these countries seem to exclude inactive EU citizens effectively from entitlement during a certain period of time. The judgments in the British cases could be challenged though. They stress that the right to reside in the UK is linked to domestic law and not to Community law, which is odd, given that the domestic law is designed to implement Community law (Mitsilegas 2007). The idea that states can only expel people if they are proved to be an ‘unreasonable burden’ has fuelled discussions over welfare tourism and fear for 46  See Parliamentary Questions TK 2006-2007, no. 1654.

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social welfare systems. This fear is needless since there is no unconditional access to social benefits in most member states. In addition, a recent study conducted in Sweden, where immigrants have fairly easy access to the welfare system, showed no evidence of welfare tourism, and showed that immigrants from new member states did not generally claim social benefits. Concerns about potential abuse of these systems are so far unfounded.

PART IV Immigration and Integration: The National Arenas

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Chapter 13

Integration and Immigration: The Vicissitudes of Dutch ‘Inburgering’ Leonard F.M. Besselink

The Netherlands has set an example to other EU member states in devising measures to integrate immigrants not as a goal in itself, but as part of a restrictive migration policy. This chapter describes the vicissitudes of ‘integration programmes’ [inburgering] in the Netherlands. It focuses on the legislation through which these programmes were to be enforced and its political context. Legislative history shows how ‘integration of minorities’ turned from a social policy issue into an immigration issue, from a problem to be addressed with social measures based on ‘soft law’ to one which is to be tackled with legislation enforced with sanctions. The legal issue of equal treatment has been raised throughout. The assumption, firstly, that integration is an issue of citizenship – which is inherent in the Dutch term inburgering as we presently explain – while, secondly, only some categories of citizens are to be subjected to the requirement of inburgering, creates previously non-existent distinctions of categories and degrees of citizenship. This poses problems from the perspective of equal treatment and non-discrimination. By creating categories of citizens, new borders between persons were erected. These borders are not territorially defined, but depend on personal status, citizenship status. Such borders have the same function as territorial borders in as much as the personal status determines the right to remain within a state territorially on a temporary or permanent basis. The story of Dutch integration measures even threatened to erect new borders within the Kingdom of the Netherlands as a consequence of the (abortive) plan to introduce integration requirements also for certain categories of Dutch citizens, in particular Netherlands citizens born or

 The author thanks participants in conferences and workshops at the University of Edinburgh, Centre of European Policy Studies, the University of the Netherlands Antilles, the University of Nijmegen and the University of Utrecht, for their input on earlier versions of this paper on which this chapter builds, which has been greatly facilitated by the generous support from DG Research of the European Commission to the FP6 integrated project CHALLENGE – The Changing Landscape of Liberty and Security in Europe. Special thanks also to Bart Smit Duijzentkunst and the Nederlands Instituut voor Beeld en Geluid for tracing the interview mentioned in footnote 24.

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resident in the overseas Caribbean parts of the Kingdom of the Netherlands and some other groups of persons. In the course of this chapter it will transpire that inburgering became a republican measure which in many respects threatened to become (and may have become) an illiberal measure. In the end, the most radical legislative proposals on inburgering have had to be moderated in light of fundamental rights and liberties, in particular legal requirements of equal treatment and non-discrimination (without solving some of the inherent tensions in this respect). Inherent in the shifts in categories of citizenship is an inversion of the relation between a formal legal status of citizenship and citizenship in a substantive sense. This priority of substantive citizenship prompts the question whether this is a sign of a development towards a more substantive and authentically republican concept of citizenship which thus far was unknown in a country where weak notions of national citizenship prevailed. The chapter opens, is interspersed with, and ends with an assessment of the political context. The Political Context of Inburgering What elsewhere is called ‘integration measures’, has in the Netherlands been developed under the label inburgering. The meaning which this word has acquired in the context of ‘integration measures’ is new. The originally transitive verb inburgeren existed, and meant ‘to be taken up in the ranks of the citizens’. The figurative sense, however, became dominant, and turned into an intransitive usage, meaning ‘being made at ease’, having become used to one’s new environment, as when changing jobs, house and so on. The Groot Woordenboek der Nederlandsche Taal, the most authoritative Dutch etymological dictionary, says that it also means ‘having become like the natives’, ‘autochtonous’ [inheemsch]. In this colloquial context the participle ingeburgerd means having become assimilated to one’s environment. The verb inburgeren has by now, however, acquired a different, legal– administrative meaning. It has turned into a noun referring to the state of being subjected to a particular set of legal obligations, which we will describe in a later section of this chapter. In this context it is important to point out that there remains a different layer of meaning in the word. The noun inburgering carries at its core the word burger, which means ‘citizen’. This is turned into a substantivated verb by the prefix in- and the ending -ing. The prefix is identical to ‘en-’ in the English word ‘enculturation’, and the ending -ing is identical to ‘-ation’ in ‘enculturation’. ‘Encitizenation’ would be the English neologism. What may be significant is that in English, French and German (I do not know about other relevant languages) no such words have been invented in order to refer to the situations for which the Dutch term is presently used in political and legal discourse, even though in one form or another (albeit sometimes in different contexts) ‘integration measures’ as they have been coined

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in EC legislation have been introduced in (parts of) those countries. Yet, the Dutch term draws attention to an aspect of ‘integration measures’ which is more hidden in the other European states adopting similar policies: the immediate relevance of such measures for citizenship. Distinctive in the onset of Dutch political discourse on inburgering is the remarkable change in the tone of the debate with which it was accompanied, as well as the sudden spread of this new tone throughout the whole of the political spectrum. All political leaders during the 2002 electoral campaigns agreed that every foreigner who wants to settle in the Netherlands would have to inburger before having any rights of residence and social support. This radical turn in the political debate coincided with the breaking of the taboo on multiculturalism under which deep-seated social, economic and cultural problems, including that of criminality, were veiled. The rupture was triggered by the unfortunate Pim Fortuyn when he launched himself into politics in 2001, and lasted well beyond his assassination a few days before the general elections of May 2002. As a former lecturer in Marxist Sociology at the University of Groningen, Fortuyn might have been predisposed to conceive of multiculturalism as an apology for social, economic and cultural exclusion. In his political heyday he did not really do so. The opposite seems to be the case. Instead, he made speaking about ‘multicultural society’ itself the epitome of political incorrectness, and it has now turned into a taboo. The organisational demise of his political movement after Fortuyn’s assassination has so far not changed the thorough political-shake up and turmoil which Fortuyn’s appearance caused in Netherlands politics. Certainly, populist sentiment has been unleashed left and right, and for the time being it has not been tamed. It strongly focuses on the position of immigrants. This has contributed to an unabated political support for inburgering policies. As we said, the story of this chapter is in a sense a legislative story, but also in many ways the story of the minister who had the unenviable task of achieving what the politicians from left to right had promised in the electoral campaign after the assassination of Pim Fortuyn: that all foreigners would have to inburger, that is learn the language and acquire knowledge of Dutch society before they have a title to live in the European part of the Netherlands and before they can qualify for social support. That minister turned out to be Ms. Verdonk.

 Rita Verdonk, member of the centre-right liberal party in the Netherlands. Her precursor as Minister for Aliens and Integration, Hilbrand Nawijn, institutionalised the citizenship test for immigrants (but much to his own consternation did not do very well in a mock citizenship test which he took). His political party was the Lijst Pim Fortuyn (LPF) which formed part of the cabinet led by Mr. Balkenende, but which was fully functional for a few months only (July 2002-October 2002; it formally ended in May 2003).

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From Social Policy M easures to Legal Immigration R egimes Once upon a time, what in Europe are now called ‘integration measures’ were part of social policy. In the Netherlands this was the ‘minorities policy’ which was mainly the responsibility of ministers of the interior, of cultural affairs, and at a later stage also of education and social affairs. ‘Minorities’ were defined by reference to their or their parents’ country of origin. This definition in terms of minority and majority contained the seeds for the later typically Dutch jargon of ‘allochtonous’ and ‘autochthonous’ inhabitants – adjectives elsewhere used in earth sciences and the study of fish stock. In the early 1980s several White Papers were published and discussed in Parliament. The Minderhedennota of 1983, written and defended in Parliament by a minister who was a prominent member of the liberal party VVD, revealed awareness of the inherent problem of thinking in terms of ‘minorities’. It intended to do away with the principle of measures targeted at certain groups only and aimed at generalised measures for both ‘allochtonous’ and ‘autochthonous’ persons. It made anti-discrimination into a major policy objective. In the early 1990s a new sentiment started to be expressed. The government think-tank had published a report in 1989 in which it stated that more effective and tougher measures for the ‘integration’ of ethnic minorities were called for. The sentiment was expressed in politics by a later VVD liberal party leader, Frits Bolkestein, who voiced concern about the manner in which ‘minorities’ with an ‘Islamic cultural background’, especially Turks and Moroccans (the major group of Islamic inhabitants of the Netherlands), dealt with issues of education and the relations between men and women. He ‘ranked’ their ‘civilization’ as equivalent to Western Europe during the Middle Ages. With an essay in a national newspaper on ‘the multicultural tragedy’, Paul Scheffer (a prominent member of a social-democrat think-tank), associated the idea of multiculturalism with immigrant children’s weak performance at schools, segregation, an anti-western attitude among minorities, and a general lack of participation of the ‘allochtonous’ in society. He defined multiculturalism as a refusal to recognise the lack of participation of ethnic minorities, something which he considered all the more alarming because soon these minorities would be a majority. The previous emancipation of unprivileged groups like the Catholics in the late 19th and first half of the 20th century through the model of consociationalism would, Scheffer submitted, not work for lack of respect for the separation of church and state by the Islam. Respect for religion is an alibi for the failure to deal with the problem of ethnic minorities. Allowing

  Kamerstukken II, [Parliamentary documents Lower House], 1982-1983, no. 16102.   See De Volkskrant, 12 September 1991.   NRC Handelsblad, 20 January 2000.

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policemen to wear the turban is in his eyes an example of the gross confusion of multiculturalists. The language of the clash of civilizations common to the conservative liberal Bolkestein and the centre-left social democrat Scheffer, the intellectual leaders of the secularist purple coalition of social democrats and conservative liberals governing the country from 1994 to 2002, prepared the ground for the antiIslamic populism of Pim Fortuyn. It also explains how easily Fortuyn’s views became shared throughout the political spectrum. The cabinets led by the Christian Democrat Balkenende from 2002 to 2007, made matters of ‘integration’ of (often second and third generation) immigrants a matter for a special minister for ‘immigration and integration’ within the ministry of Justice. This change is symbolic and real. The ‘integration’ of immigrants in society is no longer with a view to solving a socio-economic and educational problem by socio-economic and educational means, but a matter of migration and needs to be dealt with by making laws. And so they did, in the naïve belief that by making laws one solves grave social problems. Those laws, as we shall presently see, were not made in the sphere of social or educational affairs, but mainly in the field of migration law. T he Integration M easures: Civic Integration A broad At present there are two Acts of Parliament in force on inburgering. The first is the Act on Civic Integration Abroad [Wet inburgering buitenland], which was passed by Parliament on 22 December 2005 and entered into force on 15 March 2006. Technically, this Act amended the Aliens Act 2000 by inserting a clause that a residence permit can be refused to the alien who ‘does not possess knowledge at an elementary level of the Dutch language and society’, and who is under the obligation to inburger (under the Act on Civic Integration [Wet

 Two months later Paul Scheffer felt the need to defend himself against the impression that he wished to call for exclusion instead of inclusion. See NRC Handelsblad 29 March 2000.  This coalition of the Labour Party to the left, and the Conservative Liberal Party (VVD) to the right and a small centre left liberal party D66 meant the exclusion of the Christian Democrat Party (CDA) from politics.  Dutch: ‘Vreemdelingenzaken en integratie’, literally: ‘Aliens affairs and integration’.   Vreemdelingenwet, Article 16 (1), ‘An application for a temporary residence permit as intended in Article 14 [required as preceding a long term residence permit] can be rejected if: [...] the alien, who does not belong to any of the categories of Article 17 (1), would be under the obligation to inburger on the basis of Articles 3 and 5 of the Wet inburgering after obtaining legal residence in the Netherlands and if he does not possess knowledge of the Dutch language and society at an elementary level’.

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inburgering], which is the second Act of Parliament to be mentioned presently) upon acquiring legal residence in the Netherlands. In practice, this measure requires third-country nationals (TCNs) from countries for which a visa requirement exists and who wish to reside in the Netherlands for a longer period,10 to pass an oral test in elementary Dutch and social knowledge while still abroad. The test is to be assessed with the use of a distance computer with which one has contact through a telephone line at a Dutch embassy or consulate general in the country of residence. Taking the test costs €350. The sanction for failing to pass the test – which is required for the visa – is that the special visa and even a temporary residence permit can (and usually will) be refused. The questions are simple. Questions are in two parts, each taking 15 minutes. The first concerns general knowledge about Dutch society. It comprises questions concerning the geography and history of the Netherlands, the institutions and democracy in the Netherlands, education, health care, employment and the economy. The second part concerns a test of knowledge of simple phrases in Dutch (level A1, in repeating short phrases, answering simple questions, naming opposites and recounting a simple story). The pass/fail threshold was quite low and on the basis of consensus between experts, the threshold was raised in March 2008, but without changing the level of the test. The test abroad is a first step towards taking the full inburgering test. On the basis of a successful test abroad, one can – if all other requirements are fulfilled – obtain a temporary residence requirement which may be extended and after five years be turned into one for an indefinite period if within a period of (in principle) three and a half years after arrival in the Netherlands one has passed the full inburgering test under the Wet inburgering, the Civic Integration Act. The Effect of the Integration Test Abroad The test has had as its main effect that the number of applications for visa for long term stay in the Netherlands has been reduced dramatically. Whereas in 2004 the number of applications was 29,000, in 2006 it went down to 14,500. In the first nine months of 2007 the number went up, but not anywhere near those of 2004 or 2005.11 The fact that most candidates who take the test pass at first attempt (in the order of 87 per cent), combined with the announced raising of the pass/fail threshold without increasing the level of the required knowledge, implies that the test has not significantly contributed to preparing the candidates in any significant way for their full integration and participation in Dutch society. This reinforces the

10 This concerns the machtiging tot voorlopig verblijf, an authorisation for temporary residence that is to be obtained in the country of origin. 11  Ministerie van Justitie, Immigratie en Naturalisatiedienst, Informatie – en Analyse Centrum, Monitor Inburgeringsexamen Buitenland, November 2007, pp. 27-29.

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conclusion that inburgering is not a social measure but a migration law instrument with as a consequence and principal effect in practice the exclusion of aliens. T he Civic Integration A ct of 2007 The Wet inburgering, the Civic Integration Act, which entered into force on 1 January 2007, is the second main legal instrument for the civic integration of aliens in the Netherlands. The Act replaces an earlier Act on the Integration of New Immigrants (Wet inburgering nieuwkomers) from 1998, which was judged to be ineffective. As the sole reason for this ineffectiveness, politicians – first and foremost the Minister for Immigration and Integration – focused on the lack of obligation to take an active part in the integration courses and the general noncommittal nature of the integration programme, resulting in a relatively low number of persons passing the test at the required level. These facts had been mentioned by a Parliamentary Committee of investigation of the Lower House in 2004, in an in-depth critical report on the integration policy of the government from the 1970s to 2003.12 That this committee also found as causes the late introduction of the programmes by successive governments, the lack of availability of the courses, the consequent long waiting lists, and the quality of the courses was conveniently passed over in the zeal for tough legislation. Tests and Sanctions The Civic Integration Act requires a test of knowledge of spoken Dutch and of Dutch society. This costs at present (May 2008) €270, which under certain circumstances may be paid by the municipality. The level of the test is higher than for the test taken abroad (A2). It comprises a language test and a test of knowledge of Dutch society. It is of two sorts: a practical exam during which candidates are tested whether in practice they can communicate sufficiently, and a central exam which is partly a language test, partly a test of knowledge of Dutch society, and finally a set of questions on practical situations. Whereas the previous Act of 1998 required persons only to participate in the courses, under the Civic Integration Act of 2007 the candidates must pass the test within three-and-half years for those who had earlier passed the integration test abroad, or five years for those who have not taken the test abroad. The municipal authorities can extend the period within which the candidate is supposed to pass the test, if the candidate is able to show that failing the test is not his or her fault.

12 Report Bruggen Bouwen, Kamerstukken II [Parliamentary Documents Lower House], 2003-2004, 28689, no. 9, 520. Its main conclusion was that for many ‘allochtonous’ inhabitants integration had been partly or entirely successful. Under the prevailing political atmosphere, the main conclusion of the report was ignored.

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The sanction for failing to pass the test in time – if no (further) extension is granted – is, first, an administrative fine to be imposed by the municipality of a maximum varying from €250 to €1000 (for repeat players). This fine is obligatory in the sense that municipalities do not have discretion not to impose the fine. Second, no permanent residence status can be obtained, also not after a legal temporary residence of more than five years. Again, the sanctions show that inburgering is primarily an immigration measure, and when applied, necessarily with exclusionary effect. Who Must Inburger Under the Civic Integration Act 2007? In a White Paper on the revision of the system of integration requirements of 2004, the Minister for Immigration and Integration, Ms. Verdonk, had launched the plan to introduce integration tests for ‘all persons not born within the European part of the Kingdom of the Netherlands’.13 This would broaden the obligation to integrate to anyone who was not rooted by bonds of birth in Dutch society, independent of nationality – an estimated 500,000 persons. Only natives – literally – would be assumed to be well integrated into society. The formulation of the criterion just cited was also to cover persons of Dutch nationality born abroad. This was ostensibly done with the laudable objective of equal treatment of all persons who potentially require further integration. In reality, the formula was intended to cover specific targeted groups. Thus, the words ‘born in the European part of the Kingdom’ was chosen also to cover Dutch nationals from the Netherlands Antilles, having in mind that a group of young men from the island of Curaçao who had emigrated to the Netherlands caused considerable problems in a number of cities (see Besselink 2006a, 2006b). Also, there was a desire to target citizens who had naturalised without taking an integration test. A requirement to pass an integration test was introduced as a condition for naturalisation in 1993. Initially, the proposal therefore also included Dutch nationals who had been naturalised as Dutch citizens before 1993. In the Bill subsequently introduced in Parliament, within this category more specific groups were targeted: • • •

Naturalised citizens with a social benefit, such as an unemployment benefit or minimum subsistence allowance; Naturalised parents of minors; Persons employed in a religious office (‘geestelijk bedienaar’).14

13  Kamerstukken II 2003/04, 29 543, nr. 2, Nota Herziening van het inburgeringsstelsel. 14  Inburgeringswet, Article 1 (g), defines this as ‘the person who occupies a spiritual, religious office or an office based on non-religious belief, who works as spiritual leader, religious teacher or missionary, or who undertakes to do work of a religious, spiritual or belief nature for a church or other organization based on religion or belief’.

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In everyday speech: paupers, isolated Moroccan and Turkish mothers, and imams. At the end of the day, the Minister had to drop the idea of bringing Dutch nationals under the integration requirement. The Raad van State, the Council of State, in its role of advisor to the Government in legislative affairs, needed to state and re-state no less than four times, that the obligation to bring any category of Dutch nationals under the obligation to pass the test was both unconstitutional and in conflict with the various prohibitions on discrimination of human rights treaties to which the Netherlands is a party (Article 26 of the International Covenant on Civil and Political Rights, Twelfth Protocol of the European Convention of Human Rights) (see Besselink 2008). Obviously, the original formula would also cover most non-Dutch European citizens: any EU (or EEA) citizen born outside the European part of the Kingdom of the Netherlands, which would have been in conflict with EC law. So an exception was made for them. As it transpired, also other categories were privileged under certain Treaty regimes, such as Swiss nationals under the EU agreements with Switzerland, as well as certain groups of Americans under the ‘national treatment’ and ‘most-favoured-nation’ clauses of the Treaty of Friendship. Moreover, certain foreign nationals have traditionally been granted unilateral privileges, such as those from Canada, Australia, Japan, Korea and a few others. The eventual Civic Integration Act of 2007 contained also more or less selfevident exceptions, such as those who come to the Netherlands for a short period of stay only, and those who have a mental or physical handicap which prevents them from taking the exams. The picture that emerges is given in Box 13.1. The categories of citizens who need to integrate are indicated in italics, those who do not in normal type face. Equality and the Criteria for Integration The above picture creates the impression of inconsistency. In order to identify the cause of this, we need to recognise the confusion of possible rationales of the integration requirement. These could be of two kinds: substantive or formal. A substantive criterion would be the need to create minimum conditions for sufficient ‘integration’ in Dutch society in light of an objective lack of knowledge of the Dutch language and society. A formal criterion could be that one is an alien and hence ex hypothesi in need of being subjected to an integration requirement. The confusion of these is most evident as concerns the non-Dutch EU – and EEA – citizens. They are categorically exempted. The objective criterion of the need to create conditions for sufficient ‘integration’ in Dutch society is therefore not decisive. A Russian-speaking Latvian citizen who neither knows any Dutch nor has any idea of Dutch society is exempted from the obligation. But being an alien is not the decisive criterion either. This is evident from two of the categories, numbers 2 and 4 Box 13.1. Strictly speaking, a non-Dutch EU citizen is also legally an alien. Migration law makes all kinds of exceptions

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Categories of citizens who need to integrate and those who are exempted

1. Dutch citizens Initially: • Dutch citizens who need to become more citizen-like (or: more virtuous citizens) • Naturalised before 1993 • From the Caribbean parts of the Netherlands 2.  Non-Dutch EU and EEA citizens • privileged, irrespective of whether they have any knowledge of language or society 3.  Aliens with EC privileges but requiring more integration • long term third country residents and reunified family 4. Aliens with unilateral or bilateral privileges (e.g. Japanese, Canadian, Australian, Swiss, US) 5.  Aliens without privileges seeking long term residence 6.  Aliens without privileges employed in religious office even if seeking temporary residence only

for these EU nationals as compared to other aliens, but as a matter of principle migration law is applicable to them; they are legally aliens. Although the concept of EU citizenship has made some important inroads into the general distinction between nationals and aliens, non-national EU citizens remain aliens nevertheless. Yet, it cannot be for the reason that non-Dutch EU citizens are not aliens that they are exempted, because aliens they are. Nor, as we just said, are they exempted because they practically fulfil all conditions for successful integration, as they do not necessarily live up to those conditions. So, the non-national EU citizens fit in neither of the rationales for the integration requirements. They are in all respects an exception. Mutatis mutandis the same applies to the third-country aliens who enjoy unilateral or bilateral privileges (no. 4 in Box 13.1). Moreover, there is in a sense an exception to an exception, which is category number 3 in the Box 13.1. To put it somewhat too briefly, EC law extends the privileges of free movement within the EU to family members of EU nationals, irrespective of the nationality of those family members. So also TCNs (that is non-EU citizens) who are family members of an EU citizen generally speaking enjoy free movement privileges when joining the EU citizen who moves from one member state to another. But these privileges have been curtailed as regards integration measures under the recent EC Directives on long-term third-country residents and on family reunification. These allow certain integration measures to apply to TCNs. Although these measures are in certain cases more limited than

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the inburgering tests prescribed under the Civic Integration Act,15 they may be imposed on this category of aliens because of being formally an alien. On the basis of the rationale of being an alien, one would expect that for the category of true aliens, that is to say TCNs who do not enjoy derivative EU privileges, the integration requirements apply categorically. But as we can see from category 4 in Box 13.1, this is not the case. This category includes the Japanese and Americans – not nationals who are generally reputed to have a great ability to learn foreign languages and to adapt immediately to the particularities of a foreign country like the Netherlands. Here the hidden rationale would be that these groups, although not integrated very well at all in terms of language and cultural integration into Dutch society, simply do not create any major problems in a socio-economic sense. In other words, the common sense which seems badly missing with some of the other categories breaks through here: one needs to target the persons with problems mainly in a socio-economic sense. A final category remains: aliens employed in religious office. This group is so suspicious that they are really beyond the pale. They need to pass the integration tests also if they do not intend to acquire long term residence. Their temporary presence already requires integration. Although anyone’s intuition is probably correct (imams! imams!), the category of these persons is defined neutrally as to religion: it comprises any kind of employed religious functionary, whether it is a roman-catholic priest (Vietnamese priests), vicar (Dutch-reformed vicars from South-Africa), or evangelical missionary (they tend to be Americans but might come from other non-EU countries). The definition also covers non-religious beliefs, such as atheistic humanist counsellors, though no case has arisen yet in practice. What makes the whole category so suspicious that they need to be submitted to an integration requirement even if they do not wish to acquire an indefinite title of residence? There are two possible explanations. The first is that the explanation must lie in the secularist political context in which the debate about integration was rooted during the ‘purple coalition’ of the 1990s, which led up to the integration requirements called for at the beginning of the early 2000s, and which finally took shape in the Act on Civic Integration of 2007. This reveals a predominantly anti-religious sentiment which combines well with the fact that religion is a strong marker of the conservative and backward alien, as opposed to the modern progressive Western European – remember both Bolkestein’s, Pim Fortuyn’s and Paul Scheffer’s characterisations of religion as (one of) the root cause(s) of the problems of integration.

15  See Article 15 (3), final paragraph, and Article 4 (2) of Council Directive 2003/109 of 25 November 2003 concerning the status of third-country nationals who are long-term residents, OJ L 16/44, 23.1.2004; Article 4 (1) last sentence, of Council Directive 2003/86/ EC of 22 September 2003on the right to family reunification, OJ 251/12, 2003.

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The other explanation is much more straightforward: the fear of Islam and in particular its fundamentalist streams of thought which allegedly are imported from abroad, in particular since ‘9/11’.16 Imams are what is really meant and all the rest is no more than lip-service to equal protection of the freedom of religion. This fear of fundamentalist Islam may explain why also Christian Democrats went along with subjecting this category of persons to integration requirements. The two explanations may be competing explanations, for instance for the Christian Democrats and other denominational political parties. But they reinforce each other for the lay and secularist political majority. Religion is dangerous, and the Islam is the prime example of that danger. Citizenship: T he Inversion of O rder and the N ature of Citizenship As has been argued now for many years, the debate on integration measures and its translation into legislative projects has led to an inversion of formal citizenship notions and substantive citizenship notions (Besselink 2004, Vermeulen 2007). Initially, it was the formal status of being a citizen which was followed by the rights pertaining to that status: the right to reside in the country of one’s citizenship and to full political participation, by the right to vote and stand for election. Integration requirements invert this sequential order. First one needs to prove that one is well integrated by the standards of the community of which one wishes to be part before formal status in the form of legal and formal citizenship can be granted. Duties precede rights, as is the case in classic republican thought. Is this inversion a sign of a new republicanism in Dutch politics in which citizenship is a substantive notion based on a doctrine of duties and social and political participation? I hesitate to acknowledge this. Since the 19th century, the Netherlands has largely abandoned republican political ideals. As in most European countries, political and constitutional doctrines are phrased not in terms of political institutions and political citizenship, but in terms of rights. In the Dutch tradition this has been combined with an economic notion of exchange, negotiation and compromise. The weakness or absence of substantive citizenship notions also seemed to imply some vague kind of cosmopolitanism, a cosmopolitanism which was reinforced by the geopolitical and commercial position of the Netherlands, which for centuries determined the economic situation of the country. This tradition is hard to reconcile with strong new republican thought. If ever there was a characterisation of citizenship in the Netherlands then it was by the character of Jan Salie, a character in a 19th century novel by Potgieter, a symbol of weakness

16  Until well into the 20th century, in the Netherlands Catholics were feared in particular for obeying the Pope more than the national state; while liberals accused them of a lack of respect for the separation of church and state – an identical allegation as used by for instance Scheffer with regard to Islam.

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and decadence, who was contrasted with Jan Kordaat, the brave and virtuous character so absent throughout Dutch society.17 This absence of a strong republican concept of citizenship has also meant that the potential of tolerance and inclusion has traditionally not been excluded from political discourse and practice. Notwithstanding the rise of rightist and leftist populist sentiment – LPF (the party set up by Pim Fortuyn), Geert Wilders18 and Ms. Verdonk to the right and SP (socialist party) to the left – in politics, the exclusivist notions and the risk of xenophobic tendencies in republican concepts of citizenship have been absent. It is of course mere speculation whether this might have changed, as it may well be the case. The alternative, but admittedly perhaps too optimistic, view is that the real reason for integration requirements is in the end a more down-to-earth social and political pragmatism, based on the acknowledgement that there are serious problems which do focus on certain groups of first, second and even third generations of immigrants due to their socio-economic disadvantaged position in society. Potentially, such a view would fit in better with political traditions over the last two centuries in the Netherlands. And it might be possible to bend the present integration policies more in that direction. But in this respect much depends on the political context. T he Political Context: Exit ‘M inister Verdonk’ At the level of personal political involvement in the whole legislative process aimed at bringing about the Civic Integration Act, the most important name to mention is that of the Minister for Immigration and Integration, Ms. Rita Verdonk. The fate of the Bill and Act was very much connected with that of this minister. Not only had she placed a high stake on achieving the Civic Integration Act, the legislative itinerary was closely associated with her political fate. The process did not get off to a very felicitous start with the criteria formulated in the White Paper, discussed above. The very untenability of the criteria from the legal point of view was an omen. The reversing of sweeping criteria was achieved by retaining the starting point that all foreigners or naturalised foreigners would have to pass integration tests, and creating an ever broader set of exceptions to this. This led to a very complicated set of rules. Although political support was very broad indeed, and political parties seemed to be vying with each other in their pleading for ever more severe measures, the issue of an integration requirement for Dutch nationals had become controversial in the last stages of the Bill. As it was not in the nature of this minister to retract easily, she did not do so on this point either – until the very last moment during the plenary debates on the Bill in the Lower House. As the Lower House gradually 17  Potgieter, J., Jannetje en hun jongste kind, 1841. 18 Another populist politician who left the VVD and started his own party.

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began insisting on the issue, the matter had to be resolved. As a result of informal contacts within the governing coalition, there was already agreement on submitting this issue to the Raad van State for its advice as to the legality of an integration requirement for certain Dutch nationals. (Incidentally, this Raad had already twice been absolutely clear that there are no grounds for justifying the extension to these groups of Dutch nationals but not to certain groups of foreigners or other Dutch nationals) (Besselink 2008). That a solution was called for became all the more urgent as the minister wanted the Bill to be passed by the Lower House before the parliamentary summer break. Moreover, the cabinet and more precisely Ms. Verdonk had gradually got into political trouble over the consequences of the lack of truth in the statements of Ayaan Hirsi Ali (MP in the Lower House for the VVD, which was at that time the political party of Verdonk) on the basis of which she had been granted asylum and Dutch nationality. As the minister responsible for this matter, Verdonk had initially announced that on the basis of the case law of the Hoge Raad, the Supreme Court of the Netherlands, Hirsi Ali had lost her nationality by law. The plenary debate over the Civic Integration Act took place on 27 June 2006, the very day that Verdonk sent a letter in which she felt forced to retreat from her earlier position on loss of the Dutch nationality by Ayaan Hirsi Ali – a matter which had caused grave concern in the Lower House. In the debate the minister came up with a solution by changing the text of the provision on the obligatory integration for Dutch nationals, by substituting it with a provision under which the government could determine the categories of Dutch citizens to pass an integration test, under a parliamentary scrutiny reserve. The minister simultaneously promised to amend the bill after adoption of it by the Lower House in case the Raad van State gave a negative advisory opinion on the obligatory integration tests for Dutch nationals. The political tension had been rising over the previous six weeks or so. On the 29 June 2006, the cabinet fell over the refusal by Verdonk to resign, following the adoption of a ‘motion of disapproval’ supported by one of the coalition parties (D66) in the Lower House, which subsequently withdrew its support when the cabinet decided not to act upon the motion. The ministers of D66 resigned, Verdonk stayed in the interim-cabinet which prepared the elections of November 2006. In the meantime, knowing that elections were anticipated, the Lower House adopted the Civic Integration Act on 7 July 2006. All political groups in the Lower House voted in favour, with one vote against.19 No political party had the nerve or courage to face an election campaign having voted against the Civic Integration Act. In August, the Raad van State gave the predictable negative opinion. On the 20 November the Government introduced a bill in the Lower House to amend the provision on the integration requirement for Dutch nationals in the previously adopted bill.

19  MP Koşer Kaya of D66.

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This was the state of affairs under which Ms. Verdonk last dealt with the matter of the Civic Integration Act as a minister. It was not yet the end of the political career of Verdonk. In December 2006 she had to face a new motion of censure20 over her refusal to stop the deportation of persons who had unsuccessfully applied for a residence permit but who might qualify for a general pardon, for which the new majority in Parliament after the November 2006 elections was negotiating the details. As a solution, Verdonk was taken off migration affairs, but stayed on as a minister in the outgoing cabinet. She returned to the Lower House as an MP. T he Practical Effects of the Civic Integration A ct In its final form, the number of persons to whom the obligation to inburger was extended and who were on 1 January 2007 already living in the Netherlands was 250,000, which is still many but far less than the 500,000 of which a White Paper of 2004 spoke about. The estimate was that through prioritisation it would in practice concern between 50,000 and 70,000 persons a year. The municipalities were expected to arrange for an offer of relevant courses for applicants for an expected number of 47,000 persons per year in the first few years.21 The reality is that while in 2005 some 30,000 persons participated in the oldstyle integration programmes, during the entire first year of its entering into force, no more than a sum total of 7,418 participated under the Civic Integration Act, and of these 1,152 voluntarily.22 That is a reduction to about one quarter of the inburgering under the previous legislation. Only one conclusion is possible. The net effect of the Civic Integration Act on ‘integration’ objectives has been negative. After toiling over legislation for over five years, the mountain has given birth to a mouse. The dramatic decline in numbers is explained by the very complicated nature of the legislation and its implementation, delays in the (European) tender procedures to which larger municipalities were exposed, and other technical reasons. Nobody has yet used the argument that the costs (the courses, the exam, the risk of being exposed to a high fine) are so high that the incentive to avoid the integration requirement is greater than the benefit of taking it. If this is true, the integration requirement has achieved the opposite of what it intended to achieve. The choice of those whom it concerns would then be for exclusion rather than for inclusion, even if they might otherwise prefer to be given the chance to create conditions for

20  Whether it really was, is a matter of some dispute. 21  See for instance Kamerstukken II, 2005-2006, 30 308, nos. 3, 63. 22  Kamerstukken II, 2007-2008, 31143, nos. 14, 4. The numbers for the first quarter of 2008 are better, 5726 under the Civic Integration Act and 854 voluntarily, but significantly lower than previously.

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fuller participation in society. The integration requirement would thus turn out to be repressive, with exclusion as a net result. The Present Political Context: The New Coalition Government In the new coalition government (February 2007) of the Labour Party (PvdA), the Christian Democrats (CDA) and a small orthodox Protestant Party (Christen Unie) there was no place for the centre-right Liberal Party (VVD). The Minister for Immigration and Integration, Rita Verdonk (VVD), was replaced by the new minister for Housing, Communities and Integration, Ms. Ella Vogelaar (Labour). The very fact of removing the responsibility from a minister from the Ministry of Justice which is responsible for migration affairs to a minister in charge of neighbourhoods and housing seems a promising turn of events. But does it open up the prospect of a weaker link with migration and the exclusionary aspects inherent in migration policies? This author is sceptical in this respect. The issue of ‘integration measures’ has become entwined with migration issues at the EU level, witness the Directives on family reunification and on TCN long-term residents. Minister Vogelaar has announced a Deltaplan on integration.23 The term Deltaplan refers to huge infrastructure works which should protect the Netherlands from flooding by the sea. It could just as well be a metaphor with which the xenophobic populists would feel comfortable: works which protect against the floods of migrants with threaten the country. Clearly, this was not intended. The first reaction by former minister Verdonk to the announced amendments to the civic integration legislation in the Deltaplan is telling. In a radio interview at the end of August 2007, she criticised the new minister’s plans for ‘only retaining the human parts [of the integration legislation]’.24 So, the Deltaplan was too weak a dam to protect against the floods of immigrants. Amendments to the Civic Integration Act, have been limited to technical simplification in the sphere of implementation by municipalities. No attempts are made to review the design of the integration programmes and the legislation on which they are based. Nor has there been any reversal in the objectives and the language used to articulate them. The focus on technical difficulties may well be preventing policy makers from looking at the substance, the quality and the conditions of what is being offered. It is not difficult to predict a new parliamentary investigation of why the integration policies of the first decade of the 21st century have been so ineffective. So far, there is little reason to be optimistic about a possible reversal of policies towards a more realistic approach to what are in essence the socio-economic problems, which are too often confused with religious problems and cultural clashes. That the dossier of integration is no longer one for the Ministry of Justice, 23 Deltaplan Inburgering: Vaste voet in Nederland. Ministerie VROM, 7 September 2007. 24 Radio1 Journaal, 22 August 2007, 8:50 AM.

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with its natural inclination to think that laws are a solution to real life problems might be an improvement. But much more needs to be done. It may be telling for the credibility of her previous choices, but Verdonk herself seems to have abandoned the idea of achieving anything useful and constructive with legislative exercises like the Civic Integration Act. On 28 May 2008 a debate in which the (lack of) achievements under the Civic Integration Act came to be discussed, she appeared in Parliament and the following brief exchange took place: Ms. Hamer (Labour): [..] Ms. Verdonk I have a question. You say you cannot always bury yourself in the detail of everything, but yesterday evening there was a debate in this House on your Civic Integration Act and what repairs needed to be made to it. Were you there? Ms. Verdonk (Verdonk):25 No. Ms. Hamer: You found it not necessary to attend? Ms. Verdonk: No. Ms. Hamer: No? Ms. Verdonk: No. Ms. Hamer: Because you did not find this Act so important? Ms. Verdonk: No longer.26

Ms. Verdonk believes the alternative to legislative activity is to fight the battle of civilizations. She has begun the new political movement Trots op Nederland, ‘Proud of the Netherlands’. Verdonk has been arguing publicly that she ‘was happy with the combination of migration policy and integration. That should have been retained’.27 This is, as we saw above, clearly an approach in which the solution is found in exclusion, in order to prevent social problems. Exclusion is precisely what the civic integration measures have so far strongly contributed to, but without making any contribution to solving existing problems.

25  In autumn 2007 she was removed from the Parliamentary Group of the VVD due to continuous public criticism of the leader of the group. She retained her seat and forms the one-woman political group Verdonk. 26  Proceedings Lower House (2008a), [Handelingen Tweede Kamer], 22 May 2008, (87) 6178. 27  Proceedings Lower House (2008b), [Handelingen Tweede Kamer], 22 May 2008, (87) 6177.

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Chapter 14

Liberal States – Privatised Integration Policies? Ines Michalowski

When the Dutch law on integration in the country of origin [Wet inburgering in het buitenland] entered into force in March 2006, the Ministry of Justice, in charge of the immigration dossier, published an online catalogue of frequently asked questions. One of the questions raised inside this catalogue was whether the Dutch state offered language and civic education courses as a preparation for the new integration test that had to be passed in the country of origin prior to benefit from family reunification. The reply of the Dutch Ministry of Justice was: ‘No. The immigrant can decide by himself how to prepare for this test. The Dutch state does not provide courses nor does it regulate this process’. This new approach in Dutch integration policy started with the 2006 law and was later on confirmed by a second law remodelling the integration measures for immigrants in the Netherlands that entered into force in January 2007. Both legislative measures reflect the spirit of the then-valid coalition accord entitled ‘Participate, more work, less regulations’ which, applied to the domain of immigrant integration, meant that immigrants should take over responsibility for their own integration process. A declared objective of the Dutch state in the years between 2003 and 2007 hence was to separate integration and social policy in the sense that integration measures that so far had been organised and financed by the Dutch state were abandoned and a new emphasis was instead put on the individual immigrant’s own responsibility. This change in Dutch integration policy has been very strongly linked to the name of Rita Verdonk who then was a member of the liberal-right party (VVD) which at that time was in a governing coalition with the Christian Democrats (CDA) and the liberal-left party (D66). Verdonk held the position of Minister for Alien Affairs and Integration and during her term in office she gained the reputation of being  The Dutch word inburgering is difficult to translate. Since it contains the Dutch word for citizen, it has been translated as civic integration, even though the term ‘civic’ does not contribute much to a better understanding. In fact, inburgering has come to designate the policy-driven process that is supposed to help the (newly arrived) migrant to acquire the basic knowledge deemed necessary for the further integration process. In this chapter, inburgering will simply be translated as integration. Refer also to Chapter 12 of this book.   In 2007 she was excluded from that party and in that same year she set up her own political movement called ‘Proud of the Netherlands’ [Trots op Nederland].

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a tough politician, due also to her past experience as a prison director. Verdonk was a very polarising figure in Dutch politics, which might actually be the reason why she was elected at the same time ‘the best’ and ‘the worst’ politician of the year. However, after new elections, the VVD did not get back into Government and Ella Vogelaar – from the social-democrats (PvdA) – who had partially made her career in the Dutch Federation of Trade Unions succeeded Rita Verdonk as the Minister in charge of immigrant integration. In the years between 2000 and 2002, Ella Vogelaar had been in charge of the Dutch Taskforce Inburgering [Integration Taskforce] which assured the organisation of state-run integration programmes for newcomers that had existed in the Netherlands from 1998 until 2007 when the new Verdonk legislation entered into force. Not surprisingly, Vogelaar headed for change and moved the ministerial department in charge of integration from the Ministry of Justice, where it had been since 2002, to the newly created Ministry for Housing, Urban and Regional Planning and Environmental Protection. The new integration acts from March 2006 and January 2007, which stress the individual responsibility of the migrant, officially remained in place, but Ella Vogelaar quickly introduced a few practical reforms that largely eroded the initial goals of her predecessor. Thus, in a certain way, the Dutch attempt to privatise integration measures for immigrants has only been of a short duration. Below, this past Dutch initiative to replace state-run integration measures with state-defined integration requirements that immigrants have to meet – largely without the help from the state – will be described in more detail. The Dutch policy will be compared to policy choices in Germany and France in order to examine the extent to which the Dutch policy choices were singular or if other European member states have been attracted by similar normative solutions. This comparative analysis will then be used as a basis to discuss if and to what extend it might be possible for a state to withdraw the financing and organisation of social policy-related measures that foster the integration of immigrants. When looking at this question, it is important to keep in mind that there is a difference between an integration policy [Integrationspolitik] which defines the objectives as well as ways and means to reach them, and between state support for integration which consists of a series of concrete measures aiming at the fostering of integration [Integrationsförderung]. What will be discussed in this chapter is whether it is possible for a state to abandon state support for immigrant integration. We will not discuss the extent to   In 2006, Verdonk was elected worst politician of the year by the Dutch parliamentarians, while in 2005 and 2007 Verdonk came out ‘politician of the year’ of representative opinion polls realised by EénVandaag.  These elections had become necessary because the D66 had stepped out of the coalition in June 2006 to protest against Rita Verdonk’s policy. Although re-elections were already in view, a motion of no-confidence from the Dutch Parliament made Rita Verdonk lose her competences as the Minister of Alien Affairs. This is why during the last months of her mandate she only was in charge of integration issues.

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which it is possible for the state to conduct no integration policy at all. In order to address our research question this chapter studies three different periods in European immigrant integration policy: the first period corresponds with the time during which member states reacted to large labour migrations after the Second World War, and the following family reunifications, by supporting immigrant integration through a number of sparse measures. During a second period, which started at the turn of the last century, state integration programmes were set up and state support for immigrant integration was not only formalised and structured, but it was also extended. Of special interest for this chapter is the third (postprogramme) period, during which legal requirements of integration addressed to immigrants have been extended while the state support to fulfil and comply with these requirements has been cut down. Fostering Integration without State-run Integration Programmes In past and present studies (Brubaker 1992; Castles and Miller 1993; Kastoryano 1996; Schnapper 1994; Koopmans et al. 2005) Germany, France and the Netherlands have been compared to each other as countries representing totally different models of immigrant integration, respectively: guest worker, assimilation, multiculturalism model. But while these models might offer a general idea of the reasons why certain policies were chosen in these three countries during the 1990s, they seem to have little to contribute at times of explaining why at the end of the 1990s and early 2000s all three countries have started to set up similar integration programmes for newcomers. These programmes have been presented in the three countries as a fundamental reshaping of the national integration policy even though, when taking a closer look at their content and scope, there is a substantial continuity between previous measures intended to foster the integration of newcomers and the new integration programmes. In fact, language learning and knowledge about the receiving society have been, and still are, a major element of immigrant integration measures. In order to illustrate this continuity as well as possible changes, the following sections will present integration policies and measures that have been in place in these three EU member states before the implementation of state-run integration programmes for newcomers. The Netherlands From the 1970s until the 1990s, the Netherlands pursued a multicultural integration policy that supported ethnic groups in setting up their own organisations. The objective of this policy was to attribute formal equality to immigrants through the explicit recognition of their foreign culture and identity. The 1979 Report from the Scientific Council for Government Policy [Wetenschappelijke Raad voor het Regeringsbeleid (WRR)] and the 1983 White

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Paper on minority policy [Minderhedennota] are usually considered the political milestones of Dutch multicultural policy. The major target group of this integration policy were ethnic groups, not individuals, and one major argument was that immigrants should be able to practice the culture of their country of origin. This might explain why teaching the Dutch language has for a long time not been among the policy priorities of the Dutch Government (Böcker and Groenendijk 2004). Thus, in 1989, the Scientific Council for Government Policy (WRR) advised the Dutch Government to create more integration measures for newcomers and to replace the group-collective approach of the minority policy with an approach focused on the qualification and the integration of the individual migrant. Furthermore, the 1989 Report asked for a reduction of the waiting lists for Dutch language courses and an increased budget for language courses of a better quality. The language courses started in the 1960s as being mainly addressed to refugees and were then later on extended to immigrant workers and their families. In the early years, these courses were mainly offered by migrant and other civil society organisations. It was only in the 1980s that the Dutch state began to allocate funding into language courses for migrants and that it supported charity organisations to offer such courses. Following the recommendations of the 1989 WRR Report, the Dutch Government started a new integration policy aimed at an increased participation of immigrants in the field of education and labour market. Drawing on an expert report that suggested how to increase the labour market integration of immigrants (Entzinger and van der Zwan 1994), the Government opted for an obligatory integration programme for newly arrived migrants who received social benefits. This was first set up in 1996, but in 1998 the law on the integration of newcomers [Wet inburgering nieuwkomers (WIN)] extended the measure to all newcomers from outside de European Union, which also included those not receiving social benefits. In the next section of this chapter, the law and the integration programme will be presented in more detail. Before that, however, we shall first assess the pre-programme situation in France and Germany. France According to the French Republican model, the acquisition of citizenship is the main mechanism for the integration of immigrants (Brubaker 1992; Kastoryano 1996; Noiriel 1988; Schnapper 1994). This means that new immigrants are expected to learn French language and acquire French citizenship at some point in their integration process. The principles of the French Republic require that the state turns a blind eye on ethnic or religious group difference. The existence   This, however, proved to be difficult since waiting lists for Dutch language courses were still an issue when the integration programme was introduced in the second half of the 1990s.  Tijdelijke Commissie Onderzoek Integratiebeleid (Commissie Blok) (2004), Bruggen bouwen, TK, 2003-2004, 28689, no. 9, p. 110.

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of this French principle of blindness towards ethnic difference may lead to the expectation that France also tried to circumvent special integration measures for immigrants. Although this is in fact an issue hotly debated within the implementing administrations, quite a few exceptions to this principle have been and still are made. The most striking exception was probably the creation in 1958 of the Action Fund for Muslim workers from Algeria in la France métropolitaine which from 1964 onwards was also in charge of financing and thereby organising integration measures – including language courses – for other groups of immigrants. From 1973 onwards the Ministerial Department for Population and Migration [Direction de la Population et des Migrations (DPM)] started to set up so-called social programmes for immigrants as well as a national reception network for immigrant workers. The network was established in several French cities and was supposed to facilitate the reception and integration of newly arrived immigrants. For more than 20 years this network has been at the core of French integration policies for newcomers. In 1993, however, it was replaced by another reception measure, so called ‘action-plans’, which were supposed to activate different organisations present at the local level and relevant for the integration of immigrants. From 1999 onwards, a central element of these action plans was the local reception platform for newcomers [Plate-Forme d´Accueil] which started as a voluntary half-a-day measure informing about work, education – especially French language courses – and housing in France. Since 2003 this voluntary measure became obligatory and it was extended through the introduction of an integration contract that included participation in a language and in a civic education course. This French integration contract will be discussed in more detail below after looking at the integration measures that existed in Germany before the adoption of the 2005 integration programme. Germany Contrary to the cases of the Netherlands and France, Germany has not (or at least not until recently) developed a positive image of its own integration policy, neither with regard to the results reached nor in relation to the ideology or concept of integration that has been pursued. Thus, if there is something like a general tenor in German integration policy that can be identified in the 1970s, 1980s and even in the 1990s, it is the idea that Germany is not an immigration country, or that it rather refuses to recognise itself as one (Thränhardt 1996). Since the end of the 1990s, however, this has started to cease. It has been acknowledged that although Germany did not have an explicit nation-wide integration policy, pragmatic integration measures were put in place (Bade and Bommes 2000). Many of these pragmatic integration measures have been financed not only at federal level but also by the Länder and the municipalities. This decentralised organisation of integration measures has partly contributed to the perception of a deficient integration policy. The absence of a positive national integration concept, or model, has sometimes been wrongly

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interpreted as a total lack of integration policies and measures, and even as an official lack of willingness to integrate new immigrants. In the same vein, the German Commission on Migration [Unabhängige Kommission Zuwanderung], which delivered its report in 2001, stated that the fragmentation of the German integration measures made an overview of integration measures impossible and called for the elaboration of a nation-wide concept for integration. Nevertheless, language courses and integration measures for immigrants already existed well before the introduction of the state integration programme in 2005. In fact, funding for language training was available at all three administrative levels: federal, Länder and local. The federal level organised language courses for ethnic Germans from the former Soviet Union. It also provided financial support to an association called the Sprachverband Deutsch, which since 1974 was appointed by the federal Government in order to offer language courses to former labour migrants and their families as well as to other migrants who came to Germany. Furthermore, some Länder also provided a substantial amount of money for integration measures and language teaching depending on their size and the numbers of foreign nationals on their territory (Reichwein and Vogel 2004). Finally, the integration measures implemented at the municipal level have been manifold and diverse. They have included immigrant advice centres as well as special networks for the integration of immigrants. This is why some have argued (Bommes 2007) that the entry into force of the new German Immigration Act in 2005 only meant the reorganisation of Germany’s so-called ‘landscape of integration’ [Integrationslandschaft]. This short overview of the integration policy in the Netherlands, France and Germany before the formal introduction and implementation of integration programmes in their national regimes shows that there are indeed important differences between these countries. At the same time, however, it has to be noted that all three countries have organised language courses for refugees, labour migrants and their families at least from the 1970s onwards. Thus, the extension and formalisation of their integration measures for immigrants at the last turn of the century by creating so-called ‘integration programmes’ was far from being new when compared to the support and previous activities that these three countries had already been providing in this domain. T he Emergence of Integration Programmes The Netherlands When comparing the three countries examined in this chapter, as well as the wider EU context, the Netherlands was the first EU member state in introducing an   Unabhängige Kommission Zuwanderung (Süssmuth Kommission) (2001), Zuwanderung gestalten (Berlin: Integration fördern).

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obligatory integration programme for newcomers composed of a language and a social orientation course. Initially, the objective of this programme was to help newcomers who were likely to remain in the country for an extended period of time to quickly acquire the skills needed to have access to a position of (social and economic) ‘self-sufficiency’. The Dutch 1998 WIN law for the integration of newcomers [Wet inburgering nieuwkomers] foresaw a language course of up to 600 hours (later on, this number was extended to a maximum of 800 hours), a social orientation course of approximately 30 hours, measures for the professional orientation of the immigrant as well as an individual accompaniment of the newcomer. There has been a test at the end of the language and the social orientation course but the (positive or negative) outcomes of the latter did not have any particular consequences for the immigrant. Immigrants who already had a good knowledge of the Dutch language, or who for special reasons were not able to participate in the integration programme, were exempted from participating in the test. However, if the newcomer was obliged to participate in the programme but did not show up, a financial sanction (either a fine or the reduction of the social benefits) was imposed. The programme pursued ambitious targets because the participants were supposed to learn the Dutch language up to the Dutch CITO-level 2 or 3, which roughly corresponds to the level B1 of the Common European Framework of Reference for languages (CEFR). Level 2 of the CITO-scale was supposed to enable the immigrant to act autonomously in situations of everyday life while level 3 should be sufficient for professional life. The social orientation course aimed at preparing the migrant for getting along in everyday life, preventing intercultural misunderstandings and informing him/her about individual rights cherished in the Netherlands such as the respect of homosexuality or the equality between men and women. The programme has been organised by Dutch municipalities in collaboration with the Ministerial Directorate for Integration and Aliens’ Affairs [Directie Coördinatie Integratiebeleid Minderheden (DCIM)] at the Ministry of Justice. France In France, measures for the reception and integration of newcomers have been rather restricted in their origins. In 1998/1999 the Ministry for Labour and Social Affairs had created a half-a-day information measure called the reception   In the three countries under study family migrants constitute the main target group of the integration programme. However, refugees and some categories of labour migrants are also included. Immigrants with a status linked with a temporary stay, such as asylum seekers, students or seasonal workers, are excluded.   In France, accueil is the word used to designate the first steps towards integration that a newcomer is supposed to take. Just like the Dutch notion of inburgering, it especially points to the part of the integration process that is policy-driven.

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platform [plate-forme d’accueil]. Its objective was, and still is, to deliver condensed information about France and the life in France, which are considered to be essential for any newly arrived immigrant to find her/his way. In addition, a personal interview helps to identify the individual needs of each newcomer and orientate him/her towards corresponding services close to her/his residency (language course provider, unemployment agency, agency for the schooling of immigrant children, etc). In case of special needs, the immigrant can get assistance from a social worker, but generally the platform aims at increasing the immigrant’s independence from social work. Participating in the platform was not obligatory, but in order to reach out to as many immigrants as possible it initially was combined with an obligatory medical examination that immigrants who came to France for the first time had to undergo. One of the difficulties of this early measure was its facultative character since the immigrants were totally free to follow the advice given to them and to participate in the language course. Contrary to the Dutch measure from 1998, there was neither a full programme nor sanctions for those refusing to participate. When the centre-right Government arrived in power in 2002 it proposed an obligatory integration contract [contrat d’accueil et d’intégration] to be signed at the reception platform. The CESEDA law on immigration, integration and asylum that entered into force in 2006 stipulated that the signature of such a contract should be a condition for the attribution of a permanent residence permit. The current contract foresees 200 to 500 hours of language tuition plus one day of civic education to which another eight hours of facultative information about housing, school, education and work in France can be added. The required level of language skills is situated below the lowest level (A1) of the CEFR since no written language skills are required. The central actor in charge of the planning and implementation of the integration and reception contract is the National Agency for the Reception of Newcomers and for Migrations [Agence Nationale de l’Accueil des Etrangers et pour les Migrations (ANAEM)]. Being the result of a fusion between a former social service specialized on migrants (SSAE) and the former Office for International Migrations (OMI), the Agency first was under the control of the Ministry for Social Affairs but former Interior Minister and today’s French President Nicolas Sarkozy placed it under the control of the Ministry for Immigration, Integration, National Identity and Solidarity Development [Ministère de l’Immigration, de l’Intégration, de l’Identité nationale et du développement solidaire]. Germany With the new Immigration Act of 2005, Germany also started to offer an integration programme to newly arrived immigrants. Contrary to previous measures that had been financed by the German federal Government, this programme is addressed to ethnic Germans and other immigrants. Because of very long political debates, the law took almost four years to be elaborated and enter into force, something which led to a paradoxical difference between Germany and its neighbouring countries:

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while France profoundly modified its first reception platform and the Netherlands was discussing the abolition of its 1998 programme, Germany was only starting to implement its own national programme. Regarding its format, the German programme heavily copied the Dutch inburgeringsprogramma of 1998 by providing 600 hours of language tuition and 30 hours of civic education.10 Other than the early Dutch programme, however, it stipulated that ‘successful participation in the programme’ meant that participants should reach the B1 level of the CEFR.11 Newcomers who refuse to participate in the programme are not only threatened with a fine or the reduction of their social benefits, but also with the refusal of a permanent residence permit. The costs for the programme are partly covered by the immigrant. The person involved will have to pay one Euro per lesson while the German state covers the rest. As in France the integration course is organised and implemented by the Federal Government and, more specifically, by the newly created German Federal Agency for Migration and Refugees (BAMF) that emerged from the former Federal Ministry for the Recognition of Refugees (BAFL) and is linked to the Ministry of Interior. Local immigration control offices also play a role in the implementation of the German integration programme by identifying those immigrants who, because of insufficient language skills, are considered to be in need of an integration course. These local offices are also the ones in charge of granting residence permits, thereby strengthening the nexus between immigration and integration in Germany. T he Elaboration of A lternative Strategies The Netherlands Just as for the elaboration of integration programmes, the Netherlands has also been a precursor in Europe through the development of alternative integration policy strategies. As previously mentioned, the coalition agreements of the Government Balkenende II from May 2003 suggested a policy that attributed more responsibility to the individual migrant. One idea of this policy was that every (family) migrant who wanted to come to the Netherlands should start to learn Dutch in his/her country of origin. After extended debates about the exact shape that such a policy would take, the law about integration in the country of 10 The content of the Dutch social orientation course and the German civic education course however differs with the Netherlands putting a stronger emphasis on everyday-life issues and Germany focussing on formal aspects such as the democratic and juridical order as well as on German history and culture. 11  See Verordnung der Bundesregierung über die Durchführung von Integrationskursen für Ausländer und Spätaussiedler (Integrationskursverordnung-IntV) vom 13. Dezember 2004 (BGBl. I S. 3370).

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origin [Wet inburgering in het buitenland] entered into force in March 2006.12 This law has been strongly criticized inter alia because it requires an integration test without providing for preparatory courses (see Besselink, Chapter 13 of this book). Today, potential immigrants from third countries have to acquire relevant linguistic skills and knowledge about the host society before they immigrate. The Dutch Ministry of Justice has published a learning kit for self-study that can be bought at the corresponding website for €65. The learning material includes a film about the Netherlands,13 a book with 100 questions out of which 30 will be asked during the integration test abroad and three samples of exams. In order to get prepared for the questions about the Netherlands and ‘life in the Netherlands’ the candidate is supposed to study 50 to 75 hours while, according to the Ministry of Justice, 250 to 300 hours should be reserved for the language learning. In the final test (which costs €350) the immigrant is asked questions about Dutch history, life in the Netherlands and the Dutch labour market.14 In order to pass this test, language skills on the level ‘A1 minus’ are required (thus situated below the lowest level of the CEFR). The test is taken in a Dutch embassy or consulate and consists of a telephone call with a computer equipped with a special voicerecognition programme. The evaluation of the law that was published in January 200815 showed that during the first 15 months of its enforcement, 6,122 persons took the test and 88 per cent of them actually passed it. However, the evaluation also showed that the number of applications has strongly dropped from 1,5002,000 demands per month to less than 1,000 after the introduction of the law, with the strongest effect on Turks and Moroccans. Since men, higher educated applicants and applicants from Indo-European language areas16 generally reach 12  Wet van 22 December 2005 tot wijziging van de Vreemdelingenwet 2000 in verband met het stellen van een inburgeringsvereiste bij het toelaten van bepaalde categorieën vreemdelingen (wet inburgering in het buitenland) Staatsblad 2006, no. 28. 13  This two hour film has different units about Dutch history, the educational system, the labour market, learning the Dutch language, democracy and secularism as well as about cultural and social norms and values. 14  For example, one question is: Where are always fewer jobs to be found: in the industry or in the healthcare sector? 15  Significant/ WODC (2008), ‘Kortetermijnevaluatie Wet inburgering buitenland’, Eindrapportage, Barneveld/ Den Haag; For earlier results see TK, 30308, Nr. 118, vgdj. 2006-2007; For a critical analysis see Human Rights Watch (2008), The Netherlands: Discrimination in the Name of Integration, Migrants Rights under the Integration Abroad Act, Vienna, 14 May, available from , accessed 18 December 2008. 16  Taking into account the ideological aspirations often linked to the definition of ‘language families’ and that countries like Ghana, where English is a lingua franca, are classified as Niger-Congo-languages under this scheme, it is doubtful whether this new categorisation proposed by Significant and WODC is any more coherent than the former ‘non-western countries’ category used in the Netherlands.

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better results, the authors of the evaluation conclude that (self-) selection occurs.17 Furthermore, in January 2007 a new law on integration [Wet inburgering]18 entered into force to replace the state integration programme for newcomers from 1998. One provision of the new law is that immigrants who arrive in the Netherlands without sufficient language skills should acquire these skills on their own – that is without the financial or organisational help of the Dutch state. After a maximum of three years they have to take a language test on the level A2 of the CEFR to be able to ask for a permanent residence permit. In order to finance the language courses that most of the immigrants need for the preparation of this language test, the Dutch state offers a maximum loan of €5,000. If the immigrant takes and passes the language test within the given period the Dutch state reimburses 70 per cent of the costs up to a maximum of €3,000. In addition, the immigrant has to pay €230 for taking the test. When Ella Vogelaar became the Minister for Integration in February 2007, she tried to soften the consequences of this new legislation by making available public money for language courses that reach out to a wider public (and not only to immigrants without sufficient income) and by suspending sanctions related to residence. So far, the Netherlands is the only country in Europe that has taken such steps towards (and more recently also steps away from) the privatisation of pre-existing integration support measures. However, the implementation of alternative strategies for state-run integration programmes for newcomers has not only been conceived in the Netherlands but also in Germany and France. In fact, all three countries have decided to set up integration requirements for potential family migrants already in their country of origin. Since in the Dutch and in the German cases the state does not provide for language courses in the country of origin, this practice can also be considered as a step towards privatisation. Further, this policy aims at selecting family migrants along their human capital and especially their capacity to learn a foreign language. Germany To some extent Germany has been the European precursor in establishing a nexus between immigration and integration. In 1999, a comparative study on the legal status of third-country nationals (TCNs) showed that Germany was the only country in the EU 15 that linked language skills to the attribution of a permanent residence permit (Groenendijk, Guild and Barzilay 2001). In addition, since 1997, Germany also requires pre-immigration language skills from ethnic Germans who 17  Interestingly, some of the conclusions drawn by the official evaluation about the categories of migrants who have better chances to pass the test are not directly confirmed by the official statistics: IND (2008), Monitor Inburgeringsexamen Buitenland, Den Haag. 18 Regels inzake inburgering in de Nederlandse samenleving (Wet inburgering), TK 2005–2006, 30 308.

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arrive from the former Soviet Union and who are given German nationality upon arrival in Germany because of their descent.19 With the new 2005 Immigration Act, the family members of these ethnic Germans also have to demonstrate language skills (A1 level) prior to their emigration to Germany. As a consequence to the introduction of these language tests, and as noted the German Ministry of Interior in a publication from 10 February 2006, the already decreasing influx of ethnic Germans further dropped by 67 per cent during the first year after the introduction of this language test. In addition, this note from the Ministry of Interior states that in 2005 a total of 1,468 persons have been invited to take the language test but that only 871 showed up. Among those who took the test, only 216 passed it. A comparable approach has been pursued with Jewish immigrants from the former Soviet Union who undergo a prognosis about their future (economic) integration which not only takes into account their family ties in the country of destination, but also existing language skills on an A1 level (Haug and Wolf 2006). Given these antecedents, it is clear not only that the Dutch law served as a model for Germany,20 but that its own experiences played also a role when the German upper Chamber (Bundesrat) voted for a reform of the German 2005 Immigration Act in July 2007. The revised Immigration Act stipulates that candidates for family reunification need to have a certificate of language skills on A1 level when they ask for a visa.21 The potential immigrants are supposed to acquire these language skills in courses offered by the German Goethe Institut in their respective countries of origin but have to cover the costs of these courses themselves. Then, once in Germany, the immigrants have to participate in obligatory state-run integration courses aiming at B1 level (refer to Wiesbrock, Chapter 16 of this book). France In France, an explicit nexus between integration and immigration policy has been introduced with the Law on immigration and integration from 24 July 2006. This Law rendered the integration contract for newcomers obligatory for the first time (Article 7 (1)) stipulating that its signature is taken into account the attribution of a permanent residence permit. In addition, it states that family reunification will only be granted to the applicant living in France who proves his/her ‘republican

19 The language test they had to pass, however, was of a different status because the selection of ethnic Germans was not focused on the real capacity of an applicant to speak fluent German as it is currently spoken in Germany. The selection was rather focused on German dialect language skills transmitted as a family heritage that could serve as a proof for German ethnicity (Seveker 2006). 20  In an interview German Interior Minister Wolfgang Schäuble had shown great interest in the Dutch legislation when it entered into force in March 2006, cp.: Frankfurter Allgemeine Zeitung, 12 March 2006. 21  Gesetz zur Umsetzung aufenthalts – und asylrechtlicher Richtlinien der Europäischen Union vom 19 August 2007.

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integration’. This, however, does not imply language requirements but focuses on the fact that the applicant living in France has to respect the major democratic and legal principles of the French Republic (Article 45 (3)). As will be examined more in detail in Chapter 17 by Carrera, only a more recent legislation from 20 November 2007 introduced language ‘evaluations’ that candidates for family reunification are supposed to pass in their country of origin. The French law however differs from the Dutch and the German one so far as it requires not a pure language test but participation in a French language course of a maximum duration of two months. The French state provides for these courses in the potential immigrant’s country of origin. Acquired language skills will again be evaluated after participation in the course. For the time being, however, it is unclear whether language skills that remain insufficient despite of language course participation can be a reason for refusing family reunification.22 While pursuing a more educational approach than the other two neighbouring countries, this French legislation also suits French president Nicolas Sarkozy’s goal of boosting skilled migration. In fact, one strongly contested slogan of his UMP-party claims that there is a causal nexus between selected immigration and successful integration [une immigration choisie, une intégration réussie]. Privatisation and Paradigmatic Change in Integration Policy On 12 September 2005 the former German Interior Minister Otto Schily said: ‘With the new immigration act, the German Government has proceeded to a paradigmatic change. For the first time in the history of the Federal Republic of Germany integration is regulated in a systematic way. This is how, today, all newcomers can participate in a language and civic education course’. In the Netherlands and France, the introduction of their respective programmes has been accompanied by a similar public rhetoric about the innovative character of this policy. Can these policy changes actually be labelled as paradigmatic? In his analysis of the structure of scientific revolutions, Kuhn (1981) says that a paradigmatic change occurs if a scientific theory is innovative enough to attract a stable group of scholars who previously had worked in a different domain and if it allows experts to ask a whole series of unresolved questions. From this perspective a paradigmatic change is a change in which a clearly structured consensus about the way of doing things is replaced by another one. If transferred to the question of integration policy, this means that a general consensus about integration objectives and means how to reach them is replaced by another way of structuring and framing the issue. Hall (1993) identified different orders of public policy change: first order changes concentrate on the instruments used by a public policy. These instruments 22  In October 2008, the Decree for the implementation of this Law was still not published. Cp. Loi no 2007-1631 du 20 novembre 2007 relative à la maîtrise de l’immigration, à l’intégration et à l’asile.

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(for example language courses) are maintained but modified regarding their scope (for example addressed to a wider public). Changes of second order replace the instruments used by a public policy (for example facultative language classes are rendered obligatory and linked to sanctions related to residence). Finally, changes of third order go beyond the replacement of instruments. They designate a change of the dominant paradigm, defined as a ‘framework of ideas and standards that specifies not only the goals of policy and the kind of instruments that can be used to attain them, but also the very nature of the problems they are meant to be addressing’ (Hall 1993, 279). According to Hall if paradigmatic change occurs it is often related to a change in the ‘locus of authority’, in our case the political and administrative power (such as a Ministry) in charge of framing the policy issue. As it has been shown for the periods before and after the introduction of national integration programmes in France, Germany and the Netherlands, we can see how the paradigm saying that ‘supporting integration is a state task’ has prevailed in the three countries. In France, it was as early as 1973 that state-financed social services were provided by the state to receive newly arrived immigrants by offering them inter alia language courses. In Germany, it was not only the federal Government but also the states [Länder] and the municipalities that have set up integration measures for immigrants from the 1970s onwards. The Netherlands, which first conceptualised their integration policy along multicultural lines, also started to offer language courses in the 1970s (to refugees) and in the 1980s (to all immigrants). Although the three countries differ with regard to the scope and the organisation of these early integration measures, all three were actually financing immigrant integration measures when the integration programmes for newcomers were introduced. Thinking of Hall’s classification, the introduction of integration programmes can be interpreted as a change of second order since the instruments have not only been altered in their scope (new groups of immigrants have been included), form (fully-fledged programmes) and content (separate language and social/civic orientation classes), but the instruments have also partially been replaced with the establishment of a nexus between integration requirements and immigration control. The dominant paradigm, however, has not been replaced. It has rather been reinforced when, with the introduction of integration programmes, certain tasks that beforehand had been delegated to non-governmental organisations were suddenly considered as ‘core businesses of the state. Consequently, the introduction of integration programmes cannot be called a ‘paradigmatic change’. But what about the second change described in this chapter – (a) the attempt to either select skilled migrants who are not in need of state integration policy when they arrive; and/or (b) the idea to abandon state support and privatise the task of integration while maintaining legal requirements of integration goals to be reached by the individual migrant? a. The logic of the selection policy is that (better) qualified migrants, who are willing and able to learn the language and integrate before they arrive in the

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immigration country, will need little state support for their further integration process. This is of course not a privatisation in a direct sense since for the group of (better) qualified migrants the ‘task of integration’ seems to be less relevant. It is however a way to reduce state investment into immigrant integration and thereby fulfils the same objective as a privatisation policy. The approach in France represents a different logic because the French state wants to offer language courses to future immigrants in their countries of origin. The state’s competence for the provision of concrete integration measures is maintained and even extended beyond the national borders. This is why, in the French case, the paradigm that integration is a state task totally remains in place. If, on the contrary, the (organisational and monetary) costs of integration are handed over to the immigrant as it is the case for the Dutch and the German law, this could be called a ‘paradigmatic change’. b. Such a change, however, is even more explicit if the state decides to abolish an existing integration provision and/or requires the immigrant to bear the financial costs for these measures. This is what the Dutch Government planned to do between 2003 and 2006. The paradigm of state responsibility for immigrant integration was questioned after the rather negative evaluation of the state-run integration programme (Regioplan 2002; Schönwälder at al. 2005). The conservative-liberal governments Balkenende II and III were inclined to market liberal policies and also reacted to thorough changes in the Dutch political and public climate. This is why they put a stronger emphasis on the responsibility of the individual migrant and questioned the previously valid paradigm that integration was a task of the state. In Germany, privatisation in the field of immigrant integration has not become a real issue. The financial contribution of €1 per hour that is asked from the integration course participant can hardly be interpreted as a state retreat from integration since the latter continues to pay for the rest of the costs and also provides the necessary infrastructure. However, the extension of language tests to family migrants as a way of introducing a screening for skills among this group, which has the reputation of being low skilled and needing a lot of support for a successful integration process, can be interpreted as an attempt to reduce state investment into immigrant integration. French policies so far ignore the idea of privatising the task of immigrant integration even though in principle the country is interested in attracting more qualified migrants and in reducing the number of supposedly low-skilled family migrants. The new French Law on immigration control, integration and asylum from 2007 requires the evaluation of language skills among candidates for family reunification, but the French state provides for language courses in the countries of origin. Thus, although all three countries compared in this chapter aim at an immigration that is less demanding with regard to state integration provisions, only the Netherlands has really attempted to privatise the state support of immigrant

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integration. From today’s perspective, this attempt of changing the dominating policy paradigm has not been very successful. Beyond the fact that after its election the social-democrat party immediately tried to soften the consequences of the market-liberal policy put previously into place, we can identify two other reasons that render difficult the privatisation of integration support measures: The first reason is that the integration of immigrants has been organised by state (financed) structures for at least the last three decades and that these structures have even expanded over the last years. In Germany, for example, the former National Agency for the Recognition of Foreign Refugees (BAFL) had free facilities that were then used for the organisation of the integration courses, while in France the same happened with the former Office for International Migrations (OMI) that had been in charge of organising labour migration and family reunification procedures before its free capacities were used for organising the reception platform and the integration contract. In the Netherlands, no existing structure was ‘recycled’ but with the introduction of the integration programme in 1998 the Dutch municipalities set up a local integration bureaucracy. A privatisation of the integration process would strongly question the existence of such structures.23 In the Netherlands, like in the other two countries, the enhanced engagement of the state into integration issues that started towards the end of the 1990s has build up an important bureaucracy in the field of immigrant integration. This bureaucracy cannot easily be abolished. This is why the Dutch municipalities and the representation of the Dutch municipalities (VNG) have strongly lobbied against Rita Verdonk’s initial plans for a complete privatisation. Because of their lobbying, some compromises have found their way to the initial proposal. In fact, according to the Dutch integration Law that entered into force in January 2007, Dutch municipalities are still in charge of target groups with a special need for assistance such as immigrants receiving social benefits and already established migrants [oudkomers] who are unemployed and do not have sufficient language skills.24 This path dependency created by existing bureaucracies is one reason why it is difficult for EU member states to abolish state-financed measures for immigrant integration. The second argument as to why this would be difficult relates to the welfare state and to questions of equal treatment of migrants and non-migrants. A differential treatment of immigrants with regard to their access to welfare state provisions might be a tempting solution to solve welfare-state related problems of 23 The same holds true for private structures. This became clear when the new Dutch integration Law entered into force. The sudden lack of a public demand for integration programmes and the very low private demand forced several language course providers to dismiss teachers. 24  In addition, municipalities are also in charge of making sure that Imams who arrive in the Netherlands participate in an integration programme. Wet van 30 november 2006, houdende regels inzake inburgering in de Nederlandse samenleving [Wet inburgering], section 2, article 19.

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immigration (Bommes 1999; Doomernik 2006; Roodenburg, Euwals and Ter Rele 2003; Straubhaar 2003; Teulings 1995). Political experience, however, has shown that such a policy is not only difficult to justify (the state also supports long-term unemployed whose qualifications do not meet the demands of the labour market). It is also prone to court decisions. In fact, legislation and jurisdiction have, over the last decades, developed towards an ever-increasing adjustment of the rights of immigrants to the ones of nationals and the legitimacy of a differential juridical treatment of immigrants is strongly questioned today. Although foreigners never get all the rights of nationals, examples from German legislation hint towards more formal equality between foreigners and nationals and the compensation of possible disadvantages (Davy 2004). From this perspective, a total retreat of the state from supporting immigrant integration does not seem likely. Social policies continue to play an important role in Western European countries.

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Chapter 15

The Integration Agenda in British Migration Law Bernard Ryan

In common with several other European states, the United Kingdom has in recent years added a series of integration conditions into its migration law. This chapter outlines the various integration requirements which have been introduced since 2002 or which are the subject of Government proposals. The first set of innovations concerned nationality law: in particular, naturalisation was made subject to a stronger test of language ability and to a new requirement of ‘sufficient knowledge about life in the United Kingdom’. A second step saw the extension of the same language and ‘knowledge of life’ requirements to applications for indefinite leave. Further changes to the rules on both naturalisation and long-term residence are planned as part of a reform of immigration categories initially set out in the February 2008 Policy Document ‘The Path to Citizenship’. A separate set of developments has seen the introduction of pre-entry English language tests: these are in place for highly-skilled migrants and skilled workers, and have been proposed for partners. While the focus of the chapter is on a detailed description of the new integration requirements, it will also address the underlying purpose of the integration agenda. It will be seen throughout the chapter that two kinds of argument for the new policy have been offered: that it expands economic and social opportunities for migrants, and that it advances ‘community cohesion’. It will be argued in the concluding Section that it is paradoxical to seek to improve migrants’ social and economic position through extra conditions within migration law. As a result, the integration agenda is to be understood as a reflection of the problematic objective of greater ‘community cohesion’. N aturalisation Recent developments concerning integration in British migration law began with proposals in the February 2002 White Paper ‘Secure Borders, Safe Haven’ for the

  Home Office (2008a), The path to citizenship: Next steps in reforming the immigration system, February 2008.

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reform of naturalisation law. These proposals were part of the response to civil disturbances in the summer of 2001 in a number of Northern English cities and towns with substantial Muslim communities. The conclusion drawn in the 2002 White Paper was that the official reports into those events painted a vivid picture of fractured and divided communities, lacking a sense of common values or shared civic identity to unite around. The reports signalled the need for us to foster and renew the social fabric of our communities, and rebuild a sense of common citizenship, which embraces the different and diverse experiences of today’s Britain.

That analysis led to proposals for the reform of nationality law: ‘Becoming British […] is – or should be – a significant life event. It can be seen as an act of commitment to Britain and an important step in the process of achieving integration into our society’. The 2002 proposals concerned the existing requirement of knowledge of an official language, a new requirement of ‘sufficient knowledge about life in the United Kingdom’, and the formalities for the acquisition of British citizenship. These three reforms are summarised in this Section. Language Requirements A requirement of sufficient knowledge of English first appeared in British nationality law in the British Nationality and Status of Aliens Act 1914. The naturalisation provisions in the 1914 Act were designed to achieve a common code on the acquisition of British subject status, to cover the UK and its selfgoverning dominions (then Australia, Canada, New Zealand and South Africa). At that time, several dominions were experimenting with language and literacy tests to prevent the immigration of non-Europeans, and were also seeking to exclude non-Europeans from acquiring British nationality. For that reason, it was

  Home Office (2002).   Home Office (2002), Secure borders, safe haven: Integration with diversity in modern Britain, White Paper, (London: The Stationery Office), p. 10. Three reports were commissioned by the towns and cities most affected by the disturbances: Community Pride not Prejudice: Making Diversity Work in Bradford, Burnley Speaks, who listens? Report of the Burnley Task Force; and Oldham Independent Review: One Oldham, One Future. The Government itself commissioned two general reports on future policy: Community Cohesion: Report of the Independent Review Team and Home Office, Building Cohesive Communities: A Report of the Ministerial Group on Public Order and Community Cohesion. The Bradford report was published on 12 July 2001. The other four reports were published on 11 December 2001.   Home Office 2002, Paragraph 2.11.  British Nationality and Status of Aliens Act 1914, Section 2.

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thought expedient to include a language rule within the proposed common rules on naturalisation (Dummet and Nicol 1990, 118-122). The language requirement introduced by the 1914 Act applied to persons who were not British subjects, and wished to acquire that status through naturalisation. The requirement was continued when the new status of Citizen of the UK and Colonies (CUKC) was created by the British Nationality Act 1948. From that time, the naturalisation rules applied primarily to persons who were not nationals of another Commonwealth state or Irish citizens. Under the 1948 Act, nationals of other Commonwealth states and Irish citizens were instead eligible to register as CUKCs after one year’s residence in the UK, but without any language requirement. A language requirement was applied to Commonwealth and Irish nationals for the first time with the coming into effect of the Immigration Act 1971. Under that Act, in order to register as CUKCs through residence or Crown employment these groups required sufficient knowledge of either English or Welsh. The two streams of law – applying to aliens and Commonwealth or Irish nationals – were joined when the British Nationality Act 1981 replaced CUKC status with British citizenship. Since 1 January 1983, all persons who wish to naturalise as British citizens have been subject to a language requirement for naturalisation.10 The 1981 Act also allowed competence in Scottish Gaelic and Welsh to be relied upon in all cases. After 1914, the major exception to language requirements concerned spouses. The legal position under the 1914 Act was that the alien wives of British subjects acquired British nationality by operation of law, and did not have to naturalise.11 The British Nationality Act 1948 replaced this automatic acquisition of nationality with an entitlement for wives to register as CUKCs without any residence pre-

 British Nationality Act 1948, Section 10 and Schedule 2.   See the definition of ‘alien’ in British Nationality Act 1948, Section 32 (1). British protected persons (from protectorates rather than colonies), though not classed as aliens, were subject to the naturalisation rules: section 10. This is no longer the case under the British Nationality Act 1981.  British Nationality Act 1948, Section 6.  British Nationality Act 1948, Section 5A, inserted by Immigration Act 1971, Schedule 1. This rule did not apply to those who had a close personal connection to the UK (‘patrials’), or who had been resident for a minimum of five years, and since the coming into force of the 1971 Act. 10  See British Nationality Act 1981, Schedule 1 paragraph 1(1)(c). Note that persons with subsidiary forms of British nationality – including British protected person status – are entitled to register as British citizens after a period of five years’ residence in the UK, and are not subject to a language requirement: British Nationality Act 1981, Section 4. 11 British Nationality and Status of Aliens Act 1914, Section 10. Section 10 was amended by the British Nationality and Status of Aliens Act 1933 to require a wife’s content to British subject status if the husband acquired it by naturalisation during the course of the marriage.

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condition.12 The British Nationality Act 1981 then changed the position in two ways: wives and husbands were treated equally, and became subject to the naturalisation procedure, including a new requirement of three years’ residence in the UK.13 Spouses remained exempt from any language condition for naturalisation, however. The 2002 White Paper announced two changes in this area. First, a language requirement was to be extended to spouses.14 After legislative amendments in 2002, spouses became subject to a language requirement from 28 July 2004.15 Secondly, the language requirement was to be given greater weight. Previously, an individual’s English language ability had simply been assumed, unless there was reason to doubt it.16 The change of policy initially led to interim measures being introduced from 28 July 2004.17 From 1 November 2005, the language requirement was then merged with the new test of knowledge of life in the UK, which is discussed next. ‘Knowledge of Life’ The 2002 White Paper broke new ground in proposing a requirement for naturalisation that an individual have sufficient ‘knowledge of life in the UK’. The rationale offered for this innovation was that the language requirement and knowledge test were together desirable in order to prevent both the marginalisation of individuals and division between communities: ‘some applicants for naturalisation do not have much practical knowledge about British life or language, possibly leaving them vulnerable and ill-equipped to take an active role in society. This can lead to social exclusion and may contribute to problems of polarisation between communities’.18 A more positive formulation was that the ‘knowledge of life’ requirement would promote the integration of migrants, by giving ‘an appreciation of our democratic processes’ and ‘an understanding of British society’.19

12 British Nationality Act 1948, Section 6 (2). 13 British Nationality Act 1981, Section 6 (2) and Schedule 1, paragraph 3, as enacted. 14  Home Office 2002, Paragraph 2.18. 15 British Nationality Act 1981, Schedule 1, paragraph 3, as amended by Nationality, Immigration and Asylum Act 2002. These provisions were extended to civil partners when that status was established on 5 December 2005: amendment of British Nationality Act 1981, Section 6 (2) by the Civil Partnership Act 2004, Schedule 7, paragraph 72. 16  Paragraph 2.13. A similar assessment is in Fransman (1998). 17  See UK Border Agency, Nationality Instructions, Chapter 18 Annex E (accessed October 2008). 18  Home Office 2002, Paragraph 2.11. 19  Home Office 2002, Paragraphs 2.13 and 2.14.

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The ‘knowledge of life’ requirement was brought into effect on 1 November 2005, since which time it has been met together with the language requirement.20 One route is to pass a computerised ‘Life in the UK’ test, based on the official handbook, ‘Life in the United Kingdom: A Journey to Citizenship’. The level of English for this purpose is ‘English for Speakers of Other Languages’ (ESOL) Level 3.21 The test is not very onerous, in that it involves multiple choice, candidates have up to 45 minutes, and the pass mark is 18 out of 24.22 The alternative route is to take and pass an ESOL course which includes a component based upon the official handbook. For this purpose, it is sufficient to make progress in English: it is not necessary that the individual have reached ESOL level 3 by the end of the course. The official handbook was initially published in 2004, and a second edition was published in 2007. The focus of the tests is upon practical information concerning everyday life and public administration in the UK. Accordingly, the tests examine chapters of the handbook entitled ‘A changing society’, ‘UK today: a profile’, ‘everyday needs’ and ‘employment’.23 Two further information chapters, entitled ‘knowing the law’ and ‘sources of help and information’, are not tested at present, but could presumably be incorporated into the tests in the future. The tests also omit a historical chapter on ‘the making of the United Kingdom’, and a chapter entitled ‘building better communities’ (itself added in 2007) which elaborates on the notion of being a ‘good citizen’. It would be more problematic to include these chapters within the tests, given that British history and concepts of good citizenship are open to different interpretations. Formalities for Naturalisation and Registration As things stood in early 2002, the formalities for adults registering or naturalising as British citizens were limited.24 The only duty was that the individual swear an oath of allegiance to the Queen and ‘her heirs and successors’, according

20 British Nationality (General) Regulations 2003 (SI 2003 no. 548), Regulation 5A, as substituted by the British Nationality (General) (Amendment) Regulation 2005 (SI 2005 no. 2785). 21 This corresponds to level B1 within the Council of Europe’s Common European Framework of Reference for Languages (CEFR), which is the lower of two levels of ‘independent users’. 22  It is also possible to take this test in Scots Gaelic and Welsh: see Border and Immigration Agency, Nationality Instructions, Chapter 18, Annex E, paragraph 1.2.4.. 23 The chapters on ‘everyday needs’ and ‘employment’ were added to those which are tested when the second edition of the handbook came into effect in April 2007. 24 The same rules as regards formalities apply to naturalisation and to registration by adults. The concept of registration usually refers to cases where British citizenship is an entitlement, rather than discretionary.

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to law.25 The oath was administered by a competent person, such as a solicitor, commissioner for oaths or notary public.26 Two changes in this area were announced in ‘Secure Borders, Safe Haven’.27 The first was the addition of the following ‘citizenship pledge’ to the existing oath: ‘I will give my loyalty to the UK and respect its rights and freedoms. I will uphold its democratic values. I will observe its laws faithfully and fulfil my duties and obligations as a British citizen’.28 The stated purpose of this additional pledge was to ‘modernise [the] oath so that it reflects a commitment to citizenship, cohesion and community’.29 The second change was the introduction of citizenship ceremonies, at which both the oath and the pledge would be administered. In the White Paper, the absence of such a public procedure was described as ‘symptomatic of the low-key and bureaucratic approach which the UK has adopted to the acquisition of British citizenship’.30 Applicants are now ordinarily required to take the oath and pledge at a citizenship ceremony within three months of being given notice by the Secretary of State of the intention to grant naturalisation or registration.31 The ceremonies were introduced for applicants from 1 January 2004, and are conducted by local authority registrars.32 Since 1 January 2007, applicants in Wales may take the oath and pledge in Welsh.33 Exemptions A key question with these various integration requirements is the extent to which they can be adjusted to take account of special circumstances. A first point here is that the language and ‘knowledge of life’ requirements apply only to persons who naturalise, and are therefore by definition inapplicable to minors. For adults, there is a discretion to waive either or both requirements where ‘because of the applicant’s 25 British Nationality Act 1981, Section 42 and Schedule 5. The oath set out in schedule 5 begins with the words ‘I swear by Almighty God’. It is possible to make a solemn affirmation in place of these words: see Section 42 (7) of the 1981 Act and section 5 of the Oaths Act 1978. 26  See now British Nationality (General) Regulations, SI 2003 no. 548, Schedule 3. 27  In addition to these changes, the legislative reforms removed the previous exemption from the oath of allegiance for persons who already held another form of British nationality, or were nationals of another Commonwealth state which had the Queen as Head of State. 28 British Nationality Act 1981, Section 42 and Schedule 5, as amended by the Nationality, Immigration and Asylum Act 2002. 29  Home Office 2002, Paragraph 2.21. 30  Home Office 2002, Paragraph 2.19.. 31 British Nationality (General) Regulations, SI 2003 no. 548, Regulation 6, as substituted by SI 2003 no. 3158. 32  Ibid. 33  Citizenship Oath and Pledge (Welsh Language) Order, SI 2007 no. 1484.

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age or physical or mental condition it would be unreasonable to expect’ them to fulfil either or both of the requirements.34 The policy is to waive the requirements in all cases for persons over 65, while for persons between 60 and 64, the policy is ‘normally’ to waive the requirements ‘if the time needed to reach the required standard means that the applicant would then be aged 65 or over’.35 The ‘physical condition’ discretion is ‘normally’ exercised to the benefit of those with a long-term illness or disability, provided it ‘severely restricts the ability to attend ESOL classes or to prepare for the […] knowledge of life test’.36 It is also exercised to benefit those who are deaf, mute, or suffer from a ‘speech impediment which limits ability to converse in the relevant language.37 The ‘mental condition’ discretion is exercised where, because of a mental impairment an individual ‘is unable to speak or learn the relevant language’.38 It is also planned that refugees resettled under the Gateway Protection Programme will be exempt from the requirement of knowledge of life in the UK, although not the language requirement, if they seek to naturalise.39 The oath, pledge and ceremony requirements in principle apply to all adults who register or naturalise.40 There is discretion to waive some or all of the requirements where it is considered ‘appropriate because of the special circumstances of a case’.41 The policy is to exercise this discretion only in exceptional cases, such as where national security or ‘chronic illness or disability’ preclude attendance at a ceremony.42 As a result, those who are exempt from the language and ‘knowledge of life’ requirements are not necessarily excused compliance with these formalities. According to the guidance, this is because ‘attendance is consistent with the Government’s aim that ceremonies should encourage cohesion and facilitate integration into the local community’.43 Applicants Outside the UK Applicants who reside outside the UK are likely to have particular difficulty with the various new integration requirements. In the case of the language and ‘knowledge of life’ requirements, two exceptional cases arise out of Crown service 34 British Nationality Act 1981, Schedule 1, paragraph 2 (e) and paragraph 4. 35  UK Border Agency, Nationality Instructions, Chapter 18, Annex E, paragraph 1.4.4. 36  Ibid., paragraph 1.4.6.. 37  Ibid. 38  Ibid., paragraph 1.4.7. 39  Home Office (2008b), The path to citizenship: Government response to consultation, July 2008, p 12’ As the Gateway Protection Programme began in 2004, the first cases of eligibility for naturalisation are likely to be in 2009. 40 British Nationality Act 1981, Section 42 (1) and (2). 41 British Nationality Act 1981, Section 42 (6). 42  UK Border Agency, Nationality Instructions, Chapter 6, paragraph 11.18. An example of where such a procedure was envisaged is Hicks v Secretary of State for the Home Department [2006] EWCA Civ 400. 43  Ibid., paragraph 11.19.

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abroad. Crown servants abroad are themselves eligible for naturalisation.44 There is also discretion to waive the usual requirement of three years’ residence in the UK for the spouses and civil partners of Crown servants overseas.45 Provision is accordingly made for these persons, if ordinarily resident outside the UK, to have a person designated by the Secretary of State certify in writing that they satisfy the two requirements.46 In the case of the citizenship ceremonies, legislation allows persons other than local authorities to be designated for ceremonies outside of England, Wales and Scotland.47 The policy is to allow a ceremony to take place outside the UK only for spouses and civil partners who are seeing to naturalise, and for adult applicants for registration, provided they expect to be outside the UK indefinitely.48 Other applicants for naturalisation are not allowed to transfer the ceremony in the same way, because in their case it is a condition of naturalisation that they intend their future home to be in the UK. An extension of the period for the ceremony may be offered instead. The Effects of Non-Compliance A final question which may be considered is the position when an individual fails to meet the language and ‘knowledge of life’ requirements for naturalisation. The immediate immigration position of naturalisation applicants in Britain is unlikely to be affected by a failure to naturalise as a consequence of the language and ‘knowledge of life’ requirements. In all cases, they will have a subsisting longterm residence status – either the British status of indefinite leave or the EU-based status of permanent residence.49 Nor are there advantages to British citizenship over indefinite leave or permanent residence as regards the sponsorship of relatives for admission.

44 British Nationality Act 1981, Schedule 1, paragraph 1 (3). Prior residence in the UK and a period of service of over 10 years are key elements for the exercise of the power to naturalise in these cases: UK Border Agency, Nationality Instructions, Chapter 18, Annex C, paragraphs 2.3.1 and 2.6.1. 45 British Nationality Act 1981, Schedule 1, paragraph 4 (d). 46 British Nationality (General) Regulations, SI 2003 no. 548, Regulation 5A, as substituted by the British Nationality (General) (Amendment) Regulations, SI 2005 no. 2785. 47 British Nationality (General) Regulations, SI 2003 No 548, Schedule 3, paragraph 3, inserted by the British Nationality (General) (Amendment) Regulations, SI 2005 no. 2785. 48  UK Border Agency, Nationality Instructions, Chapter 6, paragraphs 11.22.11 to 11.22.12. 49 EEA and Swiss nationals and their qualifying family members acquire permanent resident status after five years’ residence in the UK; See Article 15 of the Immigration (EEA) Regulations, SI 2006 no. 1003.

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British citizens do however have other entitlements, by comparison with longterm residents, which are foregone if they cannot comply with the knowledge requirements.50 For example, British citizenship guarantees a future right of residence, whereas indefinite leave and permanent residence may be lost after two years’ absence.51 For those who are not already EEA or Swiss citizens, British citizenship implies a right to reside and to engage in economic activity in other EEA states and Switzerland. More generally, international travel may be made easier, or more secure, if a British passport is held. The right to vote in parliamentary elections is reserved to British, Irish and Commonwealth citizens, while the local and European Parliament franchise is limited to EU and Commonwealth citizens.52 Finally, senior civil service employment is limited to British citizens.53 Indefinite Leave We have already seen that the new test of knowledge of life in the UK came into effect on 1 November 2005 for those seeking to naturalise. Even before that date, it had been announced that the same language and knowledge of life requirements would be extended to those applying for indefinite leave in the UK. The announcement was contained in the ‘five year strategy’ for immigration policy, published in February 2005 under the title ‘Controlling our Borders: Making Migration Work for Britain’.54 The extension of these two requirements to indefinite leave was consistent with a general approach to long-term residence set out there, that: ‘long term settlement must be carefully controlled and provide long term economic benefit. Permanent migrants must be as economically active as possible; put as little burden on the state as possible; and be as socially integrated as possible’.55 This new policy did not require primary legislation, and was instead implemented through the amendment of the paragraphs of the Immigration Rules which concern indefinite leave. The new requirements came into effect on 2 April 2007. As with naturalisation, both elements are demonstrated by passing the ‘knowledge of life’ 50 The legal entitlements of British citizens are set out for example in Ministry of Justice, Citizenship: Our common bond (The Goldsmith Report, 2008), Chapter 3. 51  Immigration Rules, paragraph 18; Article 15 (2) of the Immigration (European Economic Area) Regulations; and Article 16 (4) of Directive 2004/38. 52 Representation of the People Act 1983, sections 1 and 2 and European Parliamentary Elections Act 2002, section 8. 53  See the recent amendments made by the European Communities (Employment in the Civil Service) Order 2001 (SI 2007 no. 617) to the Aliens’ Employment Act 1955 and the European Communities (Employment in the Civil Service) Order 1991 (SI 1991 no. 1221). 54  Controlling our borders: Making migration work for Britain – Five year strategy for asylum and immigration, Stationery Office, February 2005, Cm 6472, paragraph 39. 55  Ibid., paragraph 35.

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test or an ESOL-with-citizenship course.56 One difference is that the Immigration Rules specifically require knowledge of the English language, and not Scots Gaelic or Welsh.57 Exemptions The Immigration Rules concerning the language and ‘knowledge of life’ requirements contain similar provisions concerning age and physical or mental impairment to those applicable to naturalisation. Here, the requirements expressly apply solely to applicants between the ages of 18 and 65. In addition, the Secretary of State has discretion to waive the requirements in the case of persons whose physical or mental condition makes it unreasonable for them to have to comply.58 The published information on the exercise of this discretion is more limited than in the case of naturalisation. It is silent as to the approach taken to persons who are nearing 65, and the only content given to the ‘physical or mental condition’ discretion is that it is to be exercised ‘in exceptional cases’.59 These further categories of persons are exempt only at the indefinite leave stage: a. A person seeking indefinite leave to enter or remain in the former armed forces categories, and their family members.60 b. An applicant for indefinite leave to remain as the bereaved spouse, civil partner or unmarried partner with two years’ cohabitation of a British citizen or person with indefinite leave.61 c. An applicant for indefinite leave to remain as the former partner of a British citizen or person with indefinite leave, where the relationship has broken down as a result of domestic violence.62 d. An applicant for indefinite leave to enter as the adult relative of a British citizen or person with indefinite leave. Persons in this category are not

56  Immigration Rules, paragraph 33B. 57  Official guidance states that the ‘knowledge of life’ test may be taken in Scots Gaelic or Welsh: see UK Border Agency, Knowledge of Life in the UK: New Requirements for Settlement Applications from 2 April 2007, paragraph 83 (accessed October 2008). This is difficult to reconcile with the Immigration Rules, which require knowledge of the English language, and require that to be shown through passing a ‘knowledge of life’ test or an ESOL-with-citizenship course. 58  Immigration Rules, paragraph 33 (d). 59  UK Border Agency, Knowledge of Life in the UK: New Requirements for Settlement Applications from 2 April 2007, paragraph 5 (accessed October 2008). Immigration Rules, paragraph 289 (a). 60  Immigration Rules, paragraphs 276F, 276L, 276R, 276X. 61  Immigration Rules, paragraphs 287(b) and 295M. 62  Immigration Rules, paragraph 289A.

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necessarily over 65.63 e. A person admitted for resettlement under the Gateway Protection Programme. They are granted indefinite leave without meeting the language and ‘knowledge of life’ requirements.64 Applicants Outside the UK The extension of the language and ‘knowledge of life’ requirements to the indefinite leave stage has potential implications for migrants who are eligible for indefinite leave to enter. This is a special form of immigration permission which is based upon entry clearance issued outside the UK. Most of those who are eligible for indefinite leave to enter are also exempt from the two requirements, however: former armed forces and their family members (above), adult relatives (also above) and certain children (who are not covered by the language and ‘knowledge of life’ tests).65 The one exception is the partners of British citizens who have been with them for four or more years outside the UK. In order to obtain indefinite leave to enter, persons in that category must find a way of first complying with the language and ‘knowledge of life’ requirements. One solution is to enter on a temporary basis in order to take a test, but that may not be practical, particularly for visa nationals. In practice, partners in this category may simply prefer to enter with limited leave, and then apply for indefinite leave once the test has been met.66 The net effect is to undermine the special provision for indefinite leave to enter for partners, which was itself introduced into the Immigration Rules only in 2003 (Shah 2007). Special provision is made for the partners of certain British officials abroad: permanent diplomats, UK-based staff of the British Council on a tour of duty abroad, and a Department for International Development staff member who is a British citizen or has indefinite leave. In these cases, a designated person can certify in writing that the two requirements are complied with.67 This provision benefits partners who wish to rely upon the four-year rule in order to obtain indefinite

63  Immigration Rules, paragraph 317. 64  UK Border Agency, Asylum Policy Instructions for the Gateway Protection Programme, paragraph 9.2. 65  The cases where children are eligible for indefinite leave to enter are set out in paragraph 297 of the Immigration Rules. 66  Under the Immigration Rules, a partner must spend two years’ in the UK before being eligible for indefinite leave to remain: see paragraphs 287 (a) and 295G. The requirement to complete this two – year period is waived, however, where a person would have been entitled to indefinite leave to enter, had they at that time satisfied the language and ‘knowledge of life’ requirements: letter from UK Border Agency to Camden Law Centre, 11 August 2008. 67  Immigration Rules, paragraph 33B.

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leave to enter, and also those who wish to obtain indefinite leave to remain, having previously had limited leave to enter the UK as partners.68 The Effects of Non-Compliance The general position under the Immigration Rules is that a person who does not obtain indefinite leave because of the ‘knowledge of life’ requirements is automatically considered for an extension of their existing leave.69 The immediate effect of non-compliance with the requirements is therefore limited, since it would anyway have been necessary to have met the core conditions attached to a given entry category (spouse, economic migrant, refugee, etc) in order to have obtained indefinite leave from that category. The point however is that those conditions, and the applicant’s limited immigration status, now potentially continue for longer. A failure to obtain indefinite leave also implies the loss of significant entitlements. Indefinite leave gives access to non-contributory social benefits and to home fees for higher and further education.70 It permits an individual to sponsor certain relatives outside their nuclear family for admission to the UK.71 Indefinite leave gives an individual exemption from the requirement upon non-EEA/Swiss nationals to obtain the Secretary of State’s approval to marry in the UK.72 It also has consequences within nationality law. In the first place, for persons who do not have the EU law status of permanent resident, indefinite leave is a precondition to naturalisation as a British citizen.73 In addition, a child born in the UK acquires British citizenship automatically at birth if a parent has indefinite leave, and may be registered as a citizen while a minor if the parent has acquired indefinite leave in the meantime.74 Relationship Between the Two Stages Finally, what is the relationship between the requirements at the indefinite leave stage and the naturalisation stage? The policy is that passing the test at the indefinite 68  Immigration Rules, paragraph 281. An indefinite leave to remain application is permitted even though the sponsor does not meet the usual requirement of being ‘present and settled’ in the UK. 69  Immigration Rules, paragraph 33E. 70  Immigration and Asylum Act 1999, Section 115, Education (Fees and Awards) (England) Regulations 2007 (SI 2007 no. 779), the Education (Fees and Awards) (Scotland) Regulations 2007 (Scottish SI 2007 no. 152) and the Education (Fees and Awards) (Wales) Regulations 2007 (SI 2007 no. 2310). 71  See paragraphs 297 and 317 of the Immigration Rules. 72 Asylum and Immigration (Treatment of Claimants) Act 2004, Sections 19 to 25. 73 British Nationality Act 1981, Schedule 1. There is no set period of residence for spouses and civil partners. In other cases, one year without immigration restrictions is required. 74 British Nationality Act 1981, Section 1.

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leave stage has no expiry date, and can therefore be relied upon subsequently as part of a naturalisation application.75 This makes sense, given that those who acquire indefinite leave are anyway eligible to naturalise at the latest after a further twelve months’ residence in the UK. In addition to persons who acquired indefinite leave before April 2007, the following categories will continue to encounter the language and ‘knowledge of life’ requirements only at the naturalisation stage: a. Those who were exempt from the tests only at the indefinite leave stage (see above). This will be because they were then under 18, but are now adults; were in the armed forces and family category; were bereaved partners; qualified under the relationship breakdown rule; were and are dependent relatives under 65; or, entered under the Gateway Protection Programme (language test only). b. EEA and Swiss nationals and their qualifying family members who are EU law permanent residents. This status cannot itself be made subject to integration tests. Under British nationality law, EU law permanent residents become eligible for naturalisation after one year with that status.76 ‘T he Path to Citizenship’ In February 2008, the Government announced a reform of the framework of immigration statuses in a Green Paper entitled ‘The Path to Citizenship’. These proposals were then taken forward in July 2008 through a draft Immigration and Citizenship Bill, and related policy announcements. ‘The Path to Citizenship’ had two elements of relevance to this chapter: a re-working of long-term residence statuses and the introduction of a criterion of ‘active citizenship’. Redefining Long-Term Residence Under ‘The Path to Citizenship’, indefinite leave is to disappear, and is to be replaced by two new categories: an initial time-limited status called ‘probationary citizenship’, and a higher status called ‘permanent residence’. The intention is that those who start with limited leave will progress first to probationary citizenship, and then either to permanent residence or directly to British citizenship. The policy will be to favour direct progression to British citizenship: the qualifying period for a transition from probationary citizenship to British citizenship is to be a minimum 75  UK Border Agency, Nationality Instructions, Chapter 18 Annex E, paragraph 1.1.3. 76 This is explicitly stated in Immigration (EEA) Regulations 2006, Schedule 2, paragraph 2. The previous position had been that EEA nationals and their family members were ineligible for naturalisation unless they first obtained indefinite leave to remain.

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of one year’s residence, while for transition to permanent residence it is to be a minimum of three years’ residence.77 Those who acquire permanent residence will also be eligible to progress to British citizenship thereafter. One result of the probationary citizenship/permanent residence distinction will be to allow the current entitlements of those with indefinite leave to be separated in two. Probationary citizens will be excluded from the possibility to sponsor family members.78 Those who are not in an international protection category will be denied eligibility for non-contributory social benefits, local authority housing and home fees in higher education.79 On the other hand, probationary citizens in an economic category will acquire the possibility to take employment and selfemployment without restriction.80 Within the new framework, the language and ‘knowledge of life’ requirements are to apply at the probationary citizenship stage, rather than when an application is made for permanent residence.81 This aspect of the new framework is significant, given that probationary citizenship is to be a time-limited status, for which qualifying conditions will have to be satisfied upon renewal. The application of the two requirements to probationary citizenship is also at odds with the planned limits to the entitlements of probationary citizens. In effect, these requirements will now apply at a lower level of status than indefinite leave. Persons in a small number of categories will be eligible for permanent residence without first acquiring probationary citizenship.82 Former members of the armed forces, partners who were victims of domestic violence and bereaved partners will be required to meet the language and ‘knowledge of life’ requirements before obtaining permanent residence.83 Resettled refugees on the Gateway Protection Programme alone will progress to permanent residence without meeting the two requirements.84 ‘Active Citizenship’ The second reform announced in ‘The Path to Citizenship’ was the introduction of a new criterion of ‘active citizenship’ into the rules on long-term residence and naturalisation.85 That innovation can be traced back to a speech on ‘Britishness’ given by Gordon Brown in February 2007, when still Chancellor of the

77  78  79  80  81  82  83  84  85 

Home Office (2008a), paragraphs 149-50. Ibid., paragraph 114. Ibid., paragraphs 195-97. There would be an exception for ESOL courses. Ibid., paragraphs 152. Ibid., paragraphs 141-42. Ibid., paragraphs 124-28 and paragraph 142. Ibid, para 142. Home Office (2008b), pp 11-12 Home Office (2008a), paragraphs 167-81.

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Exchequer.86 It was taken further in a publication in June 2007 authored by two government ministers, Communities Secretary Ruth Kelly and then Immigration Minister Liam Byrne (Kelly and Byrne 2007). They proposed that citizenship should be ‘earned’, and that ‘undertaking civic and voluntary work that enriches communities and helps vulnerable groups’ should confer an advantage in relation to eligibility for naturalisation (Kelly and Byrne 2007). ‘The Path to Citizenship’ used similar language in February 2008: ‘The key feature of the proposed system is that it aims to increase community cohesion by ensuring all migrants “earn” the right to citizenship and asks migrants to demonstrate their commitment to the UK by playing an active part in the community’.87 What is intended is that the minimum qualifying periods for progression from probationary citizenship to British citizenship or permanent residence will be available only to those who have ‘demonstrated some form of community involvement’. For those who do not satisfy the requirement, an extra two years’ residence is to be required in order to obtain the given status – that is three years’ residence for British citizenship and five years’ residence for permanent residence. The Green Paper contained a very specific list of activities which would provide evidence of ‘active citizenship’, emphasising voluntary work with charities and children. Many activities which in fact bring migrants into contact with persons from other groups were left out, including employment and business, political action and participation in NGOs and trade unions. The proposed approach also has risks for charities and others who organise voluntary activity, as they may be faced with large numbers of unsuitable volunteers. After its approach to active citizenship was criticised by many respondents to the Green Paper, the Government announced in July 2008 that a ‘design group’ would be established to ‘identify proposals for the range of activities, the level of commitment and the most appropriate way we can verify that activities have taken place’.88 One decision which appears to have already been taken, however, is that payment will be inconsistent with active citizenship.89 A legal concept of ‘active citizenship’ would be a novelty in migration law, both in Britain and internationally. Its prescriptive character makes it qualitatively different to earlier aspects of the integration agenda. Where the previous

86 Remarks at a seminar on Britishness at the Commonwealth Club, London, 27 February 2007, available from , accessed October 2008. 87  Paragraph 45. 88  Home Office (2008c), The path to citizenship: Next steps in reforming the immigration system: Analysis of consultation responses, July 2008. 89  See the proposed paragraph 4 (a) to Schedule 1 of the British Nationality Act 1981, in clause 4 of the draft Immigration and Citizenship Bill of July 2008. While this concerns naturalisation, there is no reason to believe a different approach will be adopted for permanent residence.

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requirements concerned capacities (language and social knowledge) which tend to facilitate social participation, the concept of ‘active citizenship’ specifies the kinds of participation which are considered desirable. The focus on mainstream voluntary activity appears especially problematic in a society which is highly diverse, in values and family origins. A final point which may be made is that ‘The Path to Citizenship’ also floated an even stronger approach, under which active citizenship would have become a requirement for the acquisition of permanent residence or British citizenship. The Government announced in July 2008 that this alternative would not be proceeded with, after it was opposed by a ‘majority’ of respondents to the Green Paper.90 It cannot though be ruled out that a mandatory approach will re-surface at a later date, in the thinking of the current Government, or of a successor. Pre-Admission Language Requirements The developments considered so far have concerned the place of integration requirements within the rules on naturalisation and on the acquisition of longterm residence statuses. A related set of developments has seen the emergence of language requirements for the admission to the UK of persons in certain categories which can lead to long-term residence. This process began with highly skilled migrants, and is in the process of being extended to skilled workers. There have also been proposals to extend a language requirement to spouses and other partners. Highly Skilled Migrants The Highly Skilled Migrant Programme (HSMP) was a points-based system for economic migration which was introduced in 2002. Because the HSMP was thought to be too favourable to older workers in its initial years, a modified scheme, favouring younger and highly-qualified workers, was introduced in November 2006. An English language test was introduced as part of that reform. The requirement was met either through an International English Language Test System (IELTS) score of six or above, or through the applicant’s having studied to degree level in English. The HSMP was incorporated into ‘Tier 1’ of a new ‘points based system’ for economic migration, which came fully into effect on 30 June 2008.91 As part of that change, the English language requirement was extended to the general business migration and innovator categories, each of which is now within Tier 1. The language requirement does not however apply to investors – who must have £1 million available when they apply for admission to the United Kingdom, and must 90  Home Office (2008c), p. 18. 91  Home Office (2007a), Highly skilled migrants under the points based system: Statement of intent, December 2007.

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actually invest £750,000 within 3 months – even though they too are covered by Tier 1. Applicants in two Tier 1 categories for UK graduates – the International Graduates Scheme and the Fresh Talent: Working in Scotland Scheme – are also exempt, as they necessarily have degrees or other qualifications taught in English. Under the new arrangements, nationals of 16 majority English-speaking states are exempt from the language requirement.92 Those who are subject to the requirement may satisfy it either by passing an approved language test to at least CEFR level C1 (the lower standard for what are termed ‘proficient’ users), or by having obtained a qualification equivalent to a UK degree which was taught or researched in English to at least the same level. Skilled Workers The next step in the development of pre-admission English requirements is their planned application to skilled workers. This is to take place within the new ‘Tier 2’ of the points based system, which is the successor to work permits and related employment migration categories, and which came into effect on 27 November 2008. The extension of language tests to skilled workers was announced by Gordon Brown in September 2007, soon after he became Prime Minister.93 It is not clear that there is an economic justification for this step, given that the category covers named skilled workers to whom British employers have already offered employment. That may explain why the Government has instead presented the policy as desirable in terms of social integration: ‘it helps to ensure migrants play a full part in British life outside the workforce’.94 The details of the language requirements for skilled workers were included in a ‘Statement of Intent’ for Tier 2, published in May 2008.95 The standard to be attained is the ability to speak to CEFR level A1, which is the lower of two ‘basic user’ levels. This standard involves a re-think by the Government, which had earlier contemplated specifying CEFR standard B2, which is the higher of two levels for ‘independent’ users.96 As under Tier 1, there will be three routes to meeting this requirement: being a national of one of sixteen majority English-

92 These are listed in the new Appendix B to the Immigration Rules and are as follows: Antigua and Barbuda, Australia, the Bahamas, Barbados, Belize, Canada, Dominica, Grenada, Guyana, Jamaica, New Zealand, St Kitts and Nevis, St Lucia, St Vincent and the Grenadines, Trinidad and Tobago and the USA. 93  ‘Brown pledges jobs for “British workers”’, Daily Telegraph, 11 September 2007. 94  Home Office (2008d), Skilled Workers Under The Points Based System (Tier 2): Statement Of Intent, May 2008, paragraph 45. 95  Ibid. 96 This can be seen in the summary of Tier 2 in House of Lords Select Committee on Economic Affairs, The Economic Impact of Immigration (2007-08 HL Papers 82-I, April 2008), Appendix 12.

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speaking states, passing a test to the required standard, or having a degree which was taught in English.97 Ministers of religion are an exceptional ‘Tier 2’ category in relation to the English language.98 Those seeking admission in this category have been subject to English language requirements since 23 August 2004.99 The express purpose of the special rule for this group was not only to ensure their competence, but also to reduce any risk of their promoting an anti-British outlook.100 Initially, applicants had to have a certificate showing spoken English to IELTS level 4 when granted leave. The standard was then raised to IELTS level 6, for both written and spoken English, with effect from 19 April 2007. Since that standard is higher than that intended for other workers covered by Tier 2, ministers of religion will have to meet CEFR level B2, which corresponds to the previous standard.101 Professional sports players and coaches are a second special case which may be highlighted. Under ‘Tier 2’, there is a special sub-category for this group, the effect of which is that they are exempt from the standard requirements as regards qualifications and earnings.102 Sports players and coaches will be subject to the same English language requirements as other skilled workers. That approach had initially met resistance, but was made easier by the decision to have a low standard of English across the board.103 It cannot be ruled out however that the English language requirement will be diluted or removed for professional sport at a later stage. Partners A further group to whom an English language requirement may be applied are those seeking to migrate to the UK as the partners of British citizens and persons with indefinite leave.104 This possibility was initially referred to in a 97  Home Office (2008d), paragraph 48. 98  In addition to the language requirements discussed here, in 2005 the Home Office consulted on a possible test of ‘civic knowledge’, which would have applied to ministers of religion when they applied for an extension of stay in the UK (after 12 months): see Ministers of Religion from Abroad: Second Stage Consultation, March 2005). It was later decided not to proceed with this proposal, with the intended ‘knowledge of life’ tests for settlement offered by way of explanation: written statement by Immigration Minister Tony McNulty, House of Lords Debates, 19 December 2005, WS 162-164. 99  Immigration Rules, paragraph 170 for initial applications, and paragraph 173 for further leave. 100  See ‘Foreign imams face tougher entry requirements’, 6 April 2004. 101  Home Office (2008d), paragraph 69. 102  Ibid, paragraphs 51-61. 103  ‘Why fluency in football may not be enough to win Premier League Job’, The Times, 7 May 2008. 104 The Government proposals have focused on the possible introduction of a language requirement for spouses. Any developments will also apply to civil partners and

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March 2007 document which set out the Government’s general approach to immigration control.105A detailed proposal for such a requirement was elaborated in a consultation document in December 2007.106 The standard proposed in the consultation document was CEFR level A1 (see above), which was described there as requiring ‘a very basic understanding of English’. The expectation was that ‘this level […] should be achievable for the vast majority of applicants’.107 The main justification offered for the step there was that it would promote partners’ integration into the community, and their employment prospects.108 After the consultation, the Government announced a change of approach in a July 2008 document entitled ‘Marriage Visas: The Way Forward’. Because of gaps in the provision of English language courses, a formal requirement on all such partners to have a basic level English would only be a medium-term goal.109 Instead, partners are to have the option of demonstrating the requisite English language ability in the same ways as skilled workers.110 Those who cannot do so will instead be required to enter an agreement at the entry clearance stage that they will learn English in the United Kingdom; and, after arrival, will have to demonstrate that they are actually doing so.111 The approach to exemptions remains to be outlined. The December 2007 consultation document had recognised that it would be necessary to have exemptions for those with good English and for those with a physical or mental impairment.112 In relation to the former group, it is to be presumed that at least the same exemptions would apply to partners as to highly-skilled persons and skilled workers: i.e. nationals of designated majority-English speaking countries, and of persons with degrees obtained through English would be exempt. The Effects of Non-Compliance A failure to meet a pre-admission English language requirement is likely to have immediate effects. The requirements for the highly skilled and skilled workers are designed as a complete bar to admission. There is no option for an individual to gain access to the UK on a temporary basis, in order to commence employment or other economic activity, while leaving the requirement to be met at a later date. unmarried partners with two years’ cohabitation: Home Office (2008e), Marriage visas: The way forward, July 2008, paragraph 2.26.. 105  Home Office (2007b), Securing the UK border – Our vision and strategy for the future, March 2007, paragraph 3.24. 106  Home Office (2007c), Marriage Visas: Pre-Entry English Requirement for Spouses, December 2007. 107  Ibid., paragraph 3.4. 108  Ibid., paragraph 1.2. 109  Home Office 2008e, paragraph 2.3. 110  Ibid., paragraph 2.8. 111  Ibid., paragraph 2.5. 112  Ibid., paragraph 2.8.

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The position as regards English language requirements for partners is more complex. Those who fail to meet the entry clearance requirement to agree to learn English will presumably forego the possibility of admission to the UK. It is less clear what the position will be for those who fail to demonstrate actual steps to learn English after arrival: will they lose all right to stay in the UK as a result? The position of partners who fail to meet an eventual full pre-admission requirement of knowledge of English is also uncertain. The December 2007 consultation had left open the possibility that such a person could be granted temporary leave for the purpose of learning English113 – but did not explain what the position would be if the partner continued to fail to meet the requirement. Behind these questions lies the fundamental conflict between language requirements and the right to family life: a policy which involves protracted deferral of family life risks incompatibility with Article 8 ECHR. A final point concerns the interaction between pre-admission English requirements and the visa regime. The nationals of visa-exempt states will find it far easier to travel to the UK in order to improve their English, before returning home to apply for entry clearance in the given category. There are currently 58 visa-exempt states for the UK. Of these, fourteen are also states whose nationals are exempt from the English language requirements for highly-skilled and skilled migrants.114 Of the other 44 states, a further 10 were identified by a 2008 review as candidates for new visa requirements in the near future.115 While the remaining 34 non-English speaking states are mostly small and/ or not historically sources of significant migration to the UK, the nationals of these states do have an advantage when it comes to meeting pre-admission language requirements.116 Conclusion: T he Integration Policy Paradox This chapter has sought to provide a detailed account of the recent expansion of integration requirements within British migration law. As we have seen, the 113  Ibid., paragraph 2.7. 114 These are the states listed in the text above, except Guyana and Jamaica (which are visa states). 115  Written statement by Home Secretary Jacqui Smyth, House of Commons Debates, 10 July 2008, col.84WS. Eleven states were identified by the review: Bolivia, Botswana, Brazil, Lesotho, Malaysia, Mauritius, Namibia, South Africa, Swaziland, Trinidad and Tobago and Venezuela. Trinidad and Tobago is a majority English-speaking state, and its nationals are not covered by pre-admission English language tests. 116 These are: Andorra, Argentina, Brunei, Chile, Costa Rica, Croatia, El Salvador, Guatemala, Honduras, Israel, Japan, Kiribati, Maldives, Marshall Islands, Mexico, Micronesia, Monaco, Nauru, Nicaragua, Palau, Panama, Papua New Guinea, Paraguay, Republic of Korea, Samoa, San Marino, Seychelles, Singapore, Solomon Islands, TimorLeste, Tonga, Tuvalu, Uruguay and Vanuatu. Some Vatican City document holders are also visa-exempt.

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initial focus of the recent integration agenda was on language and ‘knowledge of life’ requirements in the law of naturalisation, and then in the rules relating to long-term residence. Subsequent developments have seen the introduction of preadmission English language requirements for some categories, and the probable introduction of a concept of ‘active citizenship’ within the rules on naturalisation and long-term residence. It has been a feature of the development of the integration agenda within British migration law that little consideration has been given to analysing its empirical effects. The only element on which information has been published is the pass rates in the ‘Life in the UK’ tests. For the period from November 2005 to June 2007, the overall pass rate was around 69 per cent, with 108,812 failures in the 345,904 tests which were taken.117 The published data shows that nationals of some significant migrant nationalities – including Afghanistan, Bangladesh, Iraq, Sri Lanka, and Turkey – experience particular difficulties with the tests.118 The nationality breakdown suggests that the impact of the tests is greatest upon migrants who enter the UK as refugees, or as family members, from less developed states. A more definite conclusion would however require a breakdown by initial immigration category, and information on success rates in repeat tests - neither of which is currently available. We have seen throughout this chapter that Government policy statements have often justified integration requirements as desirable for the enhancement of opportunities for migrants. The objective, it is said, is to encourage participation by migrants in social and economic life beyond their immediate communities. The use of migration law to achieve greater opportunity is deeply paradoxical, however, given that individuals who do not meet the requirements face either exclusion from the UK or the denial of a superior immigration status. In truth, the integration agenda in migration law is not inclusive but dissuasive in its logic: those who do not meet the given requirements are to be discouraged from living in the UK. The other common Government argument for integration requirements is that these are desirable for ‘community cohesion’. While this concept is ill-defined, one interpretation is that it refers to shared experiences across diverse groups.119 On that interpretation, the new formalities for citizenship and the concept of active citizenship may be thought to contribute directly to ‘community cohesion’. 117 Advisory Board on Naturalisation and Integration (2007), Second annual report (UK: ABNI), Appendix 2. 118 The absolute numbers and pass rates for these nationalities are: Afghanistan – 19,696 tests, 47 per cent pass rate; Bangladesh – 8,188 tests, 48 per cent pass rate; Iraq – 13,136 tests, 54 per cent pass rate; Sri Lanka – 14,077 tests, 47 per cent pass rate; Turkey – 11,001 tests, 45 per cent pass rate. A fuller analysis of this data can be found in Ryan (2008, 313-15). 119 This is the approach taken in the report of the Government’s Commission on Integration and Cohesion called Our Shared Future, published in June 2007.

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Requirements concerning language capacity and basic social knowledge meanwhile promote cohesion indirectly: these capacities may make shared experiences more likely, even if they cannot guarantee that these will actually occur. ‘Cohesion’ also explains the paradoxical aspect of the policy: those who cannot or will not aspire to shared experiences are simply to be dissuaded from prolonged residence in the UK, no matter that they are otherwise eligible so to do. Even if this new model of cohesion is not an attempt to achieve assimilation through law, it marks a break with the previous, more liberal policy.120 What has changed is that public policy is no longer willing to accept diverse life patterns associated with migration. Such a policy is open to the normative objection that similar pressures towards cohesion are not applied to adults who are British from birth. The viability of the policy is also in doubt, given the increased scale and diversity of migration to the UK over the past twenty years (Vertovec 2007). The coming period will test whether the promotion of community cohesion through migration law can work in a ‘super-diverse’ society such as the UK has become.

120 The arguments in this paragraph are developed more fully in Ryan (2008).

Chapter 16

Discrimination Instead of Integration? Integration Requirements for Immigrants in Denmark and Germany Anja Wiesbrock

In spite of the growing competences of the EU in the field of migration law, the integration of third-country nationals (TCNs) is still essentially a matter of national control. At the same time, however, there is a widespread recognition amongst member states that the problems and challenges faced are broadly similar. The issue of integration for the first time explicitly appeared on the EU agenda at the Tampere European Council of 1999. The Presidency Conclusions of the Council meeting identified the need to develop a common approach to the integration of TCNs. The Council envisaged an EU immigration and integration policy that ensures a ‘fair treatment’ of TCNs, granting them rights and obligations ‘comparable to EU citizens’. Such an integration policy was also foreseen to encompass non-discrimination measures. Similarly, the Common Basic Principles on Integration, adopted by the Justice and Home Affairs Council on 19 November 2004 establish a direct link between the issues of immigrant integration and the principles of non-discrimination and equal treatment. Next to identifying integration as ‘a dynamic, two-way process of mutual accommodation by all immigrants and residents of the member states’, the principles also demand full ‘respect for the immigrants’ and their descendants’ own language and culture’. Besides the tentative efforts to adopt an integral approach towards integration at the EU level, national governments have increasingly looked beyond their borders in order to identify successful integration strategies and orientate their own policies in line with the experiences and results achieved in other member states. By 2008, most member states have made the access to various rights, ranging from initial residence rights to the acquisition of citizenship, subject to the compliance with integration conditions (Carrera 2005a). Depending on their country of residence,   Presidency Conclusions, Council of the EU, Tampere, 15-16 October 1999, point 4.   Ibid., points 18 and 21.   Justice and Home Affairs Council Meeting 2618th, 14615/04, Brussels, 19 November 2004, p. 20; see also European Commission, Communication on immigration, integration and employment, COM(2003) 336 final, 3 June 2003, Brussels.

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TCNs may be faced with integration conditions at three stages in their integration process. First of all, certain immigration requirements in terms of preconditions for entry constitute de facto integration measures as they are designed with the explicit objective of promoting integration. Secondly, in most EU member states TCNs have to attend compulsory integration measures immediately after entering their new country of residence. At a third stage, after having resided in the host state for several years TCNs are often required to pass an integration test when applying for citizenship. This chapter provides a critical analysis of the integration requirements faced by TCNs at each of these three stages in Denmark and Germany. It is considered in how far national integration measures, although being primarily regulated at the national level, could nevertheless be challenged on the basis of Community law. In this context the chapter scrutinises Danish and German integration measures on their compatibility with Directives 2003/86/EC and 2003/109/EC as well as the fundamental principle of non- discrimination enshrined in Article 13 EC Treaty and the Directive 2000/43/EC, Directive 2000/78/EC and the jurisprudence of the European Court of Justice. Directive 2003/86/EC on family reunification and Directive 2003/109/EC on long-term residence both provide the possibility for member states to make access to certain rights subject to the fulfilment of integration measures. Nonetheless, national integration measures have to be in conformity with the provisions of the Directives as well as the principles of suitability and proportionality. Moreover, integration conditions have to comply with EU non-discrimination law. Integration Conditions in Denmark Immigration Rules that Bear a Link to Integration The Danish immigration law contains several measures that have as their official aim a better integration of immigrants and can therefore be considered as implicit integration requirements. Amongst the rules on family reunification that have

  Council Directive 2003/86/EC on the right to family reunification, 22 September 2003, OJ L 251, 3, October 2003.   Council Directive 2003/109/EC concerning the status of third-country nationals who are long-term residents, 25 November 2003, OJ L 16, 23 January 2004.   Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, 29 June 2000, OJ L 180, 19 July 2000.   Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation, 27 November 2000, OJ L 303, 2 December 2000.   See Articles 5 (2) and 15 (3) of Directive 2003/109/EC as well as Article 7 (2) of Directive 2003/86/EC.

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been under most severe criticism are the ‘24-years’ rule and the ‘aggregate ties’ requirement contained in Section 9 of the Aliens Act. According to the 24-years rule spouses must be at least 24 years of age in order to become eligible for family reunification. The rule is clearly targeted at TCNs from Islamic country and is claimed to protect people from entering into forced or arranged marriages. Moreover, the Government maintains that the rule promotes integration, as it ‘contributes to improved opportunities for young people in relation to education and work’.10 The aggregate ties requirement demands that in order to establish their common spousal residence in Denmark the aggregate ties of a couple to Denmark must be stronger than their ties to any other country. This rule makes family reunification possible only if a certain connection to Denmark or, put in other words, a certain degree of integration into Danish society is ensured. Persons who have held Danish citizenship or have resided in Denmark for at least 28 years are exempted from this requirement. Furthermore, according to a recent Bill put forward by the Minister of Refugee, Immigration and Integration,11 applicants for family reunification will soon have to pass a test on Danish language and society in their country of origin in order to be granted permission to join their spouse in Denmark.12 The Integration Act In Denmark, the integration of newly arriving immigrants and refugees is primarily regulated in the 1999 Act on the Integration of Aliens in Denmark13 (the Integration Act), as lastly amended in July 2006.14 The Integration Act is supplemented by the 2003 Act on Danish Courses for Adult Aliens that entered into force on 1 January 2004.15 Further rules are contained in a ministerial executive order of 2006 and the Danish Aliens Act. The Integration Act applies to adult TCNs with a lawful residence status.16 The primary responsibility for conducting the integration programme rests with the  Aliens (Consolidated) Act of 14 July 2004. 10  CERD (United Nations Committee on the Elimination of Racial Discrimination) (2007), Reports submitted by states parties under Article 9 of the Convention, p. 5. 11  See Bill no. L 93/2006-07, amending the Aliens Act and the Act on Active Social Policy, proposed by the Minister of Refugee, Immigration and Integration Affairs on 29 November 2006 12 Danish Ministry of Refugee, Immigration and Integration: Amendments to the Danish Aliens Act (Note), November 2006, p. 4. 13  Notification (no. 1035 of 2003) of the Act on Integration of Aliens in Denmark (Integration Act) no. 316 of 2003. 14  Notification no. 902 of 2006 of Act (no. 839 of 2005) of the Act on the Integration of Aliens in Denmark. 15 Act no. 375 of 28 May 2003 on Danish courses for adult aliens, etc. 16  Section 2 of the Integration Act.

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local municipalities of the immigrant’s place of residence. The municipalities have to offer a mandatory three-year introduction programme to all newly arriving adult immigrants covered by the Act.17 Within their first month of residence in Denmark immigrants conclude an individual integration contract with the responsible local authorities.18 The contract is adapted to the specific background and competences of each immigrant and clearly establishes the rights and obligations that he agrees to undertake. These typically include the obligation to actively participate in the language classes and other integration measures and to obtain employment and become economically self-sufficient as soon as possible.19 In addition TCNs have to sign a declaration of integration, submitting themselves to contribute to the process of their integration into Danish society and participate actively in all activities offered (Liebig 2007, 18). During the period of the introduction programme, TCNs who are not able to maintain themselves receive a so-called introduction or starting allowance. The starting allowance is intentionally set at a level below the minimum amount of living expense (Zarrehparvar and Olsen 2006, 22-24), so as to push immigrants into employment and make them independent from social security payments. Spouses who work at home and choose not take up employment on the labour market do not receive any financial assistance.20 As a way of compensation, the other spouse who is available for the labour market receives a spouse supplementary payment [ægtefælletillæg].21 Moreover, since 2004 the financial resources that a municipality receives from the national immigration authority have become increasingly dependent upon the labour market performance of each individual immigrant. Since January 2008 the initial lump sump payments refund merely half of a municipality’s actual integration expenses (Liebig 2007, 21-22). The municipalities can increase this amount if they can demonstrate their success in bringing newcomers into long-term employment. All adult foreigners and some Danish citizens with language difficulties have the right to participate in Danish language courses, whereas only newly arriving immigrants and refugees from non-EU member states are obliged to do so. In relation to immigrants who fall under the mandatory scheme of the Integration Act the costs of the language courses are born entirely by the local municipalities.22

17  Ibid., section 16. 18 Article 3 of the Executive Order on individual contracts and introduction programmes in the Integration Act. 19  CERD (2006), Summary record of the 1773rd meeting, Geneva, 10 August 2006. 20 Act no. 417 of 10 June 2003 [Lov 2003-417 om ændring af lov om aktiv socialpolitik, lov om dagpenge ved sygdom eller fødsel, lov om fleksydelse, lov om social service, lov om individuel boligstøtte, lov om retssikkerhed og administration på det sociale område og integrationsloven]. 21  CFR-CDF (2003), Report on the situation of fundamental rights in Denmark in 2003, EU Network of Independent Experts on Fundamental Rights, pp. 18-19. 22  Sections 13 and 14 of the Act of 28 May 2003 on Danish courses for adult aliens.

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The courses consist of intensive language tuition and the provision of information on Danish culture and society. They may also include traineeships with private or public employers.23 The actual language courses are conducted at three levels. The Danish course 1 provides basic language tuition for illiterate or nearly illiterate students. The second level is aimed at students with a limited educational background, whereas immigrants with at least a secondary educational background are allocated to the Danish course 3. Each of the courses has a duration of 1.2 years of full-time study, which may be stretched over a period of up to three years. The language courses are finalised with a standardised state exam at any of the three different levels. The second part of the Danish integration programme is ‘activation measures’ aimed at a better labour-market integration of immigrants. Under the so-called step-model, immigrants follow a gradual process of labour market integration in three steps. The first step comprises counselling and educational activities with the aim of improving the skills and competences of the immigrant. Under the second category immigrants take part in time-limited, unpaid internships and job training in private or public enterprises. As a final step immigrants should be ready to take up employment, preferably with the company where the job training was followed. Companies will receive a wage supplement during the first year of employment. The performance of immigrants under their individual integration contracts is closely supervised by the municipalities, with a follow-up taking place at least every three months. A failure to comply with the integration requirements lied down in the contract can have serious consequences in terms of financial support and residence entitlements. Economic sanctions mainly apply to non-self supporting TCNs who receive financial assistance in form of an introduction allowance. The introduction allowance will not be paid out if the immigrant rejects a reasonable offer of work or fails to fulfil his/her obligation to exploit all opportunities for getting into paid employment after one year of residence in Denmark. The introduction allowance will also be reduced if an immigrant is absent from any part of the introduction programme without a reasonable cause. If the absence from the programme occurs repeatedly or the person entirely refuses to take part, the payment of the introduction allowance might be ceased altogether.24 In terms of residence entitlements, according to Section 11 (9) of the Aliens Act, a permanent residence permit will be denied in case of a non-fulfilment of the integration programme as established in the integration contract or the failure of a Danish language test. Moreover, a refusal to sign the individual integration contract has the consequence of a delay in the acquisition of a permanent residence permit.25 All applicants for a permanent residence permit who have obtained a

23  Section 3 of the Act of 28 May 2003 on Danish courses for adult aliens. 24  Sections 30 and 31 of the Integration Act. 25  CERD (2006), Summary record of the 1773rd meeting, Geneva, 10 August 2006, pp. 9-11.

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(temporary) residence permit after 1 July 2006 must additionally demonstrate that they have been in full-time employment for at least two-and-a-half years.26 As a positive incitement, the required period of residence in order to obtain a permanent residence permit might be shortened from seven to five years for immigrants who are particularly successful in their integration efforts. Requirements are that the person has been continuously employed for at least three years, not relied upon Danish social assistance and established a meaningful connection to Danish society. The Citizenship Act In Denmark, the process of naturalisation is directly controlled by the legislature and Danish nationality can in principle only be obtained by Act of Parliament.27 In practice this means that a foreigner must fulfil a number of criteria that are determined by Parliament and published in a circular28 from the Ministry of Justice in order to be included in a bill on naturalisation. The period of residence that is regularly required in order to become naturalised is nine years.29 To this regard, only the number of years in which a person is holding a permanent residence permit is taken into account. As a consequence many immigrants will have stayed in Denmark for a period considerably longer than nine years before they attain the right to apply for naturalisation (Ersbøll 2001, 240-243). In addition, the Danish legislature has introduced an increasing number of integrationist conditions into Danish nationality law. Since 2002 applicants are required to demonstrate their willingness to observe Danish legislation and honour fundamental principles of law and human rights by signing an official declaration of faithfulness and loyalty to Denmark. Moreover, a citizenship test was introduced in January 2006.30 In order to pass the test and become eligible for the acquisition of Danish citizenship immigrants have to give a correct answer to 38 out of 40 questions on Danish culture, history and society. Applicants can prepare themselves for the test on the basis of a textbook (Zarrehparvar and Olsen 2006, 18). The language requirements for naturalisation were also significantly raised with the introduction of the 2006 circular. Previously, in order to attain Danish citizenship it was sufficient to absolve a Danish test of category 2. The

26 Danish Ministry of Refugee, Immigration and Integration, Amendments to the Danish Aliens Act (Note), 8 November 2006, p. 4. 27 According to Section 44 (1) of the Danish Constitution foreigners can only acquire Danish nationality by law. 28 The most recent circular on naturalisation was adopted on 12 January 2006 on the basis of an agreement concluded between the Government and the Danish People’s Party of December 2005; (Mathiesen et al. 2006, 52-53). 29  Circular no. 55 of 12 June 2002. 30  Circular no. 9 of 12 January 2006.

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new rules request the passing of a category 3 language test.31 Exemptions from the language requirement are only granted in very exceptional cases, such as a serious physical handicap or psychological diseases. Integration Conditions in Germany Immigration Rules that Bear a Link to Integration Immigration rules that bear a connection to integration policies are mainly to be found in the new rules on family reunification. Section 30 (1) of the amended Residence Act [Aufenthaltsgesetz, AufenthG]32 establishes as a precondition for spousal reunification a minimum age of eighteen years. In addition, permission to family reunification is granted only if the incoming spouse can demonstrate a basic knowledge of the German language.33 Immigrants who are allowed to enter Germany without a visa are exempted from this requirement.34 Integration and Language Courses Rules on the integration of newly arriving immigrants are contained in the Residence Act. In addition, details on the integration courses are to be found in the Ordinance on the Provision of Integration Courses for Aliens and Returning Ethnic Germans, published in December 2004. Under the 2005 Residence Act immigrants are provided with language and integration courses. Participation in integration courses is mandatory for newly arriving immigrants who are not able to communicate on a basic level in the German language. TCNs who have already been living in Germany for some time may also be obliged to participate if they receive Unemployment Benefit II or are in a particular need of integration.35 Voluntary participation applies to other TCNs who are already residing in Germany as well as EU citizens.36 The new integration legislation also applies to ‘ethnic Germans’ who had been subject to special integration measures already since the

31 Die Zeit, ‘In der Festung Dänemark’, by Zank W., 9 March 2006, pp. 17-20. 32  See Gesetzentwurf 16/5065; bill transposing 13 EU Directives (entered into force on 28 August 2007). 33 Applicant spouses have to demonstrate knowledge of 200 to 300 words of the German language. 34 Bundeszentrale für politische Bildung, Migration und Bevölkerung, Newsletter zu Migration, Integration und Bevölkerungsentwicklung, Ausgabe 06/07 (2007). 35  Section 44 (a) (1) and (2) AufenthG. 36  Section 44 (4) AufentG.

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1990s. Participants who can afford it might be required to contribute to the costs with the modest amount of €1 per hour of instruction.37 The most important element of the integration programme is the conduct of language courses. The language courses amount to a total of 900 hours of instructions, sub-divided into different modules. The modular structure of the course is aimed to offer immigrants the sufficient flexibility to change between courses, skip certain parts and follow a language programme that is suited to their own individual knowledge and learning speed. The second part of the integration programme is the participation in an orientation course. The orientation course constitutes the minor element of the integration programme and merely consists of 30 hours of instruction. It covers information on the German legal system, history and culture, with a special emphasis on democratic and constitutional values. The language and orientation courses are finalised with an examination [Zertifikat Deutsch], containing a written section and an oral part where immigrants are interviewed in pairs. In the case of failure a repetition of the test is possible but will be entirely at the expense of the participant. The test serves as a proof to impose over the degree of language proficiency required for naturalisation.38 In terms of consequences for non-compliance with the integration conditions, the focus is clearly set on a system of negative sanctions. The only positive incentive enshrined in Section 10 (3) of the Nationality Act is the possibility to have the residence requirement for naturalisation reduced from eight to seven years upon successful completion of the course. After the recent amendments to the Nationality Act, the residence requirement may even be reduced to six years if the applicant can demonstrate an especially high degree of integration into German society. Concerning negative sanctions, as a consequence of the failure to comply with integration conditions, the extension of a temporary residence permit might be refused.39 In addition, Section 9 (2) of the Residence Act provides that if integration courses were not attended the immigration authorities might abstain from granting the immigrant a permanent residence permit (Kohlmeier et al. 2005, 23-4). It has to be noted however that the existing sanctions are not always applied. The sanction of denying a residence permits is entirely excluded if the acquisition is not discretionary.40 This is the case for TCNs having entered on the basis of family reunification, who are entitled to a residence permit under German constitutional law without any discretion left to the immigration authorities. In any case, the noncompliance with integration requirements does not automatically lead to a refusal 37  Section 43 (3) AufenthG jo. Section 9 of the Ordinance for the implementation of integration courses for foreigners and ethnic Germans. 38  Federal Office for Migration and Refugees, Concept for a nation-wide integration course, pp. 11-25. 39  Section 8 (3) of the Residence Act. 40  Section 8 (3) of the Residence Act.

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to renew a temporary residence permit or to grant a permanent one. In taking such a decision consideration will be given to the immigrants’ existing family and other social ties in Germany. This means that the negative sanctions in place have lost many of their sharp edges (Joppke 2007b, 20-21). In terms of economic sanctions, TCNs might be exempted from the payment of social-welfare benefits during the period in which they do not attend the integration courses.41 Additionally, the recent amendments to the Residence Act introduce a fine of up to €1,000 for nonattendance. The Citizenship Act The acquisition of German nationality by naturalisation is regulated under Section 8 of the 2000 Nationality Act [Staatsangehörigkeitsgesetz, StAG]. Generally, a claim to naturalisation is attained after eight years of regular and lawful residence in Germany. Applicants must be in possession of a settlement permit or in special cases of a residence permit.42 The required period of residence is reduced to seven years if an integration course has been successfully completed. After the amendments introduced in August 2007 the residence requirements might even be reduced to six years if the applicant has demonstrated ‘special integration efforts’. This requirement might especially be fulfilled in the case of a specifically high knowledge of the German language. Further conditions are the recognition of the ‘free democratic constitutional system’ enshrined in the German constitution and a sufficient knowledge of the German language.43 Applicants must pass the oral and written language examination of the level B1 in the Common European Framework of Reference for Languages. For children under the age of 16 the language requirements are reduced to ‘age-appropriate language skills’.44 As an additional requirement for the acquisition of German nationality the 2007 amendments have introduced a uniform requirement to ‘possesses knowledge of the legal system, the society and living conditions’ in Germany.45 In order to fulfil this requirement applicants have to pass an integration test.46 Section 10 (6) StAG provides for an exemption from both the language requirement as well as the integration test for persons who are not able to fulfil these conditions due to a physical, mental or psychological illness or disability or even on grounds of age.

41  Section 44 (a) (3) of the Residence Act. 42 This requires that the residence permit has been granted for a purpose that generally provides the basis for a permanent stay in Germany (e.g. not for studies or on humanitarian grounds). 43  Section 10 (1) StAG. 44  Section 10 (4) StAG. 45  Section 10 (1) StAG. 46  Section 10 (5) StAG.

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A Comparison of German and Danish Integration M easures In a direct comparison German and Danish integration measures feature many similarities but also some differences. Both countries are bound by the requirements of the non-discrimination directives. Conversely, the family reunification and the long-term residence directive are not applicable to Denmark, which has secured itself an opt-out on the EU immigration policy. In Germany as well as in Denmark integration policies establish obligations for both the immigrant and the national authorities. The respective states undertake certain commitments vis-à-vis the immigrants, principally the provision of integration courses and access to certain social and economic rights. Immigrants are required to respect the laws of the host state, to actively participate in all parts of the integration programme and in more general terms to contribute to the integration process as actively as possible. In Denmark the immigrant’s rights and obligations are explicitly lied down in a formally signed individual integration contract, whereas in Germany they are stated in more general terms in the national legislation. In both countries the implementation of integration measures is largely in the hands of the local municipalities. This tendency is slightly more pronounced in Denmark where municipalities are in charge of providing the introduction programme, organising language courses and paying out or considering cuts to the financial assistance offered. In Germany there is also a high involvement of other actors, such as the works councils, social welfare services and non-governmental organisations. The supervision of the immigrants by the local Danish authorities is more intensive than that of their German counterparts, as the compliance of the immigrant with the integration contract is continuously assessed. A further crucial difference is that only in Denmark the financial resources granted to the local municipalities are made dependent upon their success of bringing immigrants into employment. The provision of finances for integration measures in Germany is not performance-related but is granted in the form of uniform lump-sums. Differences exist also in terms of intensity and length of the national integration programmes and the amount of resources spent by the respective governments. The weekly amount of hours and the number of years that TCNs will be involved in integration measures varies to a considerable extent. The Danish integration programme stands out for its high intensity and length and the significant financial investments needed to maintain such an elaborate programme. The large bulk of Danish public expenditures for integration, which is more than 80 per cent of the overall integration funds,47 are spent on the introduction programme and language courses. TCNs are engaged in a number of activities (language courses and activation activities) for at lest 37 hours per week and the entire programme might extend to a period of up to three years. The overall number of hours that 47  In 2006 the budget of the Ministry of Integration was 1.449 million DKK (approximately €194 million).

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immigrants spent in language training depends on their previous knowledge with an average of about 2,000 hours (Liebig 2007, 47-8). In Germany, the time spent in language courses is far lower, although the present amount of language instruction has recently been increased from 600 to 900 hours. Moreover, a difference in approach can be singled out in the official rhetoric surrounding the integration measures. What is particularly stunning about the Danish approach is the outspoken nature in which the government presents its negative perception on the presence of immigrants on Danish territory. The entry and stay of TCNs is clearly seen as an undesirable phenomenon that should be prevented and reduced as far as possible. In Germany as to the contrary, negative perceptions about foreigners are often to be found implicitly in restrictive immigration and integration rules. In their official rhetoric the authorities have taken a more liberal tone, stressing the reciprocal nature of the integration process and embracing multicultural values and diversity. There are also certain differences between Germany and Denmark in relation to the precise content covered by the introduction programmes. Concerning similarities, as insufficient language proficiency is considered to be the severest obstacle to integration language courses constitute the core of integration programmes in both countries under investigation. In Germany as well as in Denmark language courses are provided in a flexible manner and exist at various levels, taking account of the previous knowledge of the immigrant. Furthermore, both countries have added an element providing the immigrant with information over the host state’s society, institutional, legal and political systems and national norms and values. It appears however that this aspect occupies a greater room in Germany than in Denmark. Whereas in Germany the introduction programme contains a distinctive cultural part, in Denmark some information on Danish culture and society is provided as part of the general language courses. A third component that plays a major role in Denmark is the provision of labourmarket oriented initiatives, such as job-training and wage supplements. Numerous and elaborate measures are aimed at improving the labour market integration of immigrants, so as to make them economically self-sufficient as soon as possible. Just as in relation to language courses, labour-market related measures are designed with an eye to the individual professional and educational background of immigrants. Consequently, employment promoting activities and job training are specifically tailored to their individual skills. In Germany the integration courses up to now do not include any labour-market oriented elements. Yet, as part of the national integration plan the German government has decided to make integration course especially for young immigrants more employment-oriented. In Denmark as well as in Germany the participation in integration courses has been made obligatory for newly arriving immigrants and tied to sanctions in the event of non-successful participation. In both countries integration courses terminate with a final examination. A refusal to take part in the programme or a failure to pass the final examination has adverse consequences in terms of the immigrant’s rights. Sanctions may take different forms, including a reduction or

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loss of financial assistance or a denial to maintain or obtain certain categories of residence permits. Moreover, access to citizenship requires a particular level of language proficiency that can be demonstrated by means of achieving a certain result in the final language examination. By way of comparison, even though the existing types of sanctions are broadly similar it has to be stressed that the Danish system of sanctions is far more elaborate than the German one. In Germany, similar sanctions are in many cases not applied as restrictively and supplemented with various exemptions. The recent introduction of a fine of up to €1,000 for non-participation in the integration courses however means that Germany is moving in the direction of more restrictive policies. In terms of finances available during the period of the integration courses, participants in Denmark merely receive an introduction allowance which is set below the regular social security benefits. In Germany as to the contrary, immigrants receive the same amount of social assistance as German citizens. As far as integration conditions in the nationality law are concerned, both countries demand a considerable level of language proficiency from applicants and have in recent years introduced citizenship tests as a condition for naturalisation. The differences between integration measures in Germany and Denmark and especially the considerable intensity and length of the Danish model raise the question as to whether these measures have been matched with the desired success. According to the recent OECD study (Liebig 2007) the Danish integration programme is conducted at an inadequate extent and length, seriously undermining its effectiveness. This is especially due to the lock-in effect of extensive language courses and activation measures. If immigrants are forced to participate in integration measures, they will be prevented from using this time more efficiently in seeking work or taking part in the every-day life of the host society in other ways. In that way, the courses could actually increase segregation rather than promoting the integration of TCNs. There are indications that in its immigration and integration law Germany is gradually assimilating to the Danish model. Recent changes include the introduction of higher requirements for family reunification and stricter sanctions for non-compliance with the integration courses. Moreover, the amount of hours of the integration courses has been raised and more labour-market oriented elements were included into the schedule. This runs counter to the general conclusion from the OECD study which seriously calls into question the value of intensive Danish integration scheme. Challenging N ational Integration M easures on the Basis of Community law One can identify at least two ways of challenging excessively restrictive integration conditions under Community law. First of all, in those countries that are bound by the Directives on family reunification and long-term residence, TCNs could attempt to circumvent national integration conditions by relying on the rights

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conferred upon them under these Directives. The preamble of Directive 2003/86/ EC48 refers to family reunification as a way to contribute to the integration process of TCNs. According to Article 7 (2) of the Directive, for the purpose of family reunification, ‘Member states may require third-country nationals to comply with integration measures, in accordance with national law […]’. A separate provision (Article 4 (1) of the Directive) provides for the possibility to impose integration conditions upon minor children over the age of twelve arriving independently. Lastly, as an immigration requirement explicitly aimed at a better integration of immigrants, member states may make spousal reunification subject to a minimum age requirement of up to 21 years (Article 4 (5) of the Directive). Concerning the Directive on long-term residence, the preamble refers to the integration of TCNs as a way to promote social cohesion49 and stresses the importance of equal treatment in the context of integration measures.50 According to Article 5 (2) of Directive 2003/109/EC as a condition for the acquisition of long-term residence status in the first state of residence, member states may require TCNs to ‘comply with integration conditions, in accordance with national law’. Moreover, under Article 15 (3) of Directive 2003/109/EC TCNs wanting to make use of their right to free movement and residence in a second member state may anew be required to comply with integration measures. They are freed from this obligation only if they have already complied with integration conditions in the first member state. The participation in language courses however can always be requested. It must be stressed that Denmark, the UK and Ireland have an opt-out and are therefore not bound by any of the provisions of EU immigration law. Yet, in spite of the fact that Directive 2003/86/EC and 2003/109/EC leave a wide margin of discretion to the member states in the implementation of integration measures, it must be stressed that the rights acquired under the provisions of these Directives are rights under Community law. This conclusion can also be derived from the ruling of the ECJ in EP v Council.51 Even though the European Parliament was not successful in challenging the family reunification Directive itself for falling short of human rights standards, the Court held in paragraph 70 of the judgment that the fact that the concept of integration is not defined does not authorise member states to employ it in a manner contrary to Community law. Having identified the right to family reunification (if all conditions are fulfilled) as a right under Community law, the ECJ has consistently held that any limitations to a Community right should be interpreted restrictively. Moreover, as a limitation to a Community right, national integration measures must comply with the principles of suitability and proportionality. The OECD study has called into doubt whether the increasingly restrictive integration measures applied in Denmark and Germany are suitable to meet the desired aim of improving integration. In any case, many of 48 Directive 2003/86/EC, preamble, recital 4. 49 Recital 4. 50 Recital 12. 51  Case C-540/03, European Parliament v Council [2006] ECRI I-5769.

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them are certainly not proportionate and go further than is absolutely necessary to promote integration. In addition, as pointed out by Groenendijk (2006b), it could be argued that the automatic refusal attached to the failure of an ‘integration tests abroad’ constitutes a violation of Article 17 of the family reunification Directive, which requires that the individual interests and the length of residence of each applicant must be taken into account. Secondly, several integration conditions described above could be considered to fall short of the standards of non-discrimination and equal treatment upheld by Community law. Article 13 EC Treaty invites the EU institutions to take action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. In 2000 the Union adopted two nondiscrimination Directives, namely Directive 2000/43/EC and Directive 2000/78/ EC. Whereas the latter is restricted to discrimination in relation to employment, Directive 2000/43/EC contains a more far-reaching protection from discrimination on grounds of race or ethnic origin. The provisions award protection from discrimination in relation to all aspects of employment and training as well as social protection, including social security and healthcare, social advantages, education, access to and supply of goods and services which are available to the public, including housing (Article 3 (1) (e) (h)). The Directive (and its implementing measures) covers not only direct discrimination, where one person is treated less favourable than another person is, has been or would be treated in a comparable situation,52 but also indirect discrimination. Indirect discrimination occurs where an apparently neutral provision, criterion or practice puts persons of a racial or ethnic origin at a particular disadvantage compared with other persons. This broad concept of indirect discrimination refers to decisions and practices by individuals but also to discrimination inherent in a system. When national legislators draft integration measures in reliance on established practices, conventions and customs that are based on stereotypes and implicit mechanisms of favouring and excluding certain categories of persons, such measures are in principle open to challenge on the basis of the provisions of indirect discrimination (Miné 2003, 9). Under this concept, several integration requirements can be considered to be indirectly discriminatory. For instance, the minimum age requirements for spousal reunification amount to indirect discrimination on grounds of ethnic origin and religion, as they are explicitly targeted at applicants from the Muslim world. Also the integration and language test could be considered to be indirectly discriminatory, as applicants from a certain social and education background or age group will face higher difficulties in passing such tests. Moreover, certain (ethnic) groups are generally exempted from compliance with integration and language tests, namely TCNs from the Western world (e.g. the US, Japan and Canada). Yet, one major shortcoming of the Racial Equality Directive is its restricted application in relation to TCNs. Even though according to Article 3 (1) the Directive applies to ‘all persons’ on EU territory, this broad personal scope is qualified by 52 Article 2 (2) (a) of Directive 2000/43/EC.

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the second paragraph of that same Article. Article 3 (2) explicitly spells out that the Directive ‘does not cover difference of treatment based on nationality’ and is ‘without prejudice to provisions and conditions relating to the entry into and residence of third-country nationals […] and to any treatment which arises from the legal status of the third-country nationals concerned’. The first sub-sentence of the Article hence indirectly authorises discriminatory treatment of immigrants on the basis of their third-country nationality. The second part of Article 3 (2) (‘without prejudice to provisions and conditions relating to the entry into and residence of third-country nationals’) serves as an additional back-up for member states to prevent the reliance of TCNs upon the Directive in order to combat discriminatory immigration and integration rules (Dummet 2004, 240-241). The last sub-sentence of Article 3 (2) is equally problematic in that it renders the Directives inapplicable in relation to any discriminatory treatment arising from the legal status of TCNs. This means that integration conditions that effectively amount to discrimination on the basis of race or ethnic origin will often be defended by reference to the immigrant’s legal status (Ellis 2005, 289-315). Hence, the possibility for TCNs to rely on the non-discrimination provisions to challenge discriminatory integration measures is rather limited. A recent case before the ECJ however indicates that there might be a slight scope for TCNs to rely on their right to non-discrimination as a fundamental principle of Community law. In the case of Mangold v Helm53 the ECJ ruled on a violation of the principle of equality by the German state that had provided employers with the possibility to discriminate on grounds of age. The significance of the Mangold judgment is that the Court underlined the existence of a free-standing general principle of equal treatment as a fundamental right under Community law that exists independently from the Directives. By recognising the right to non-discrimination as a constitutional principle of autonomous legal effect, the Court provided a basis for the challenge of national legislation, administrative order or Court decision that contravenes the principle of equal treatment (Schiek 2006, 339). This can prove important for victims of discriminatory integration measures who are barred from relying of the provisions of the non-discrimination Directives in order to challenge unequal treatment. Conclusions On the basis of the foregoing analysis, several observations can be made. First of all, an important conclusion that can be drawn from the comparison of integration measures in Denmark and Germany is the limited value of an overtly restrictive and demanding approach. In spite of the fact that Denmark imposes over a far more comprehensive and elaborate integration scheme than Germany, the former does not score better in terms of integration results. The merits of introducing a 53  Case C-144/04, Mangold v Helm, [2005] ECR I-9981.

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coercive element into integration measures are thus highly questionable. As soon as integration measures become tied to sanctions in terms of a loss of residence or financial entitlements, they measures lose much of their appeal as a positive measure to foster mutual understanding. Arguably, improvements in the integration process could much more successfully be achieved by attaching positive privileges to the fulfilment of integration conditions, rather than imposing negative sanctions in the event of non-compliance. Yet, there are still only very few examples of such a positive approach in the two countries under consideration. Secondly, the vast scope for integration measures under the Directives on family reunification and long-term residence call into question the pursuance of an EU immigration policy based on the principles of fair treatment and equality. The critical evaluation of immigration, integration and citizenship legislation in Denmark and Germany has revealed that the immigration and naturalisation requirements as well as the compulsory integration conditions applied in both countries can amount to discrimination of TCNs. The possibilities for TCNs to successfully enforce their rights to equal treatment are however limited. Most importantly, immigrants and especially those who are refused entry on grounds of failing an integration test will in most cases lack the opportunities and financial resources to enforce their rights under the family reunification or the non-discrimination Directive. Additionally, the value of the two non-discrimination Directives to be relied upon in order to challenge discriminatory integration measures is seriously undermined by the fact that nationality, TCN legal status and immigration laws are explicitly exempted from the scope of the Directive. In order to be successful, applicants would have to argue that the differential treatment amounts to indirect discrimination on the basis of racial or ethnic origin. The problem of multiple discrimination on a number of inter-related grounds will often render such an argumentation rather difficult. There might however be a slight scope for TCNs to successfully invoke their right to non-discrimination as a general principle of Community law, as upheld by the Court in Mangold. It can only be hoped that the ECJ continues to follow the path it has started to take, possibly opening the way for the combat of overly restrictive immigration and integration policies on the basis of the principles of equal treatment and non-discrimination.

Chapter 17

Nationality, Immigration and ‘the Republican Integration’ in France: Normativisation, Expansionism and Externalisation Sergio Carrera

France constitutes a case in point where the modern liberal state pursues a strong national identity strategy for the management of identity(ies). This chapter studies the nature and impact of the normative articulation of integration in the laws of nationality and immigration in the French legal system. After offering some reflections on the conceptual premises and principles substantiating the French Republican paradigm of integration, we shall examine the ways in which integration is being used and practised in nationality law by looking at the key provisions contained in the civil code dealing with ‘the condition of sufficient assimilation’ for the acquisition of French nationality via naturalisation. The relationship between immigration legislation and integration is then analysed in the third section. As we will argue, the Republican integration has experienced a number of multifaceted processes of normativisation, expansionism and externalisation: first, it is currently presented in the shape of a mandatory contractual relationship between the State and the third-country nationals (TCNs) taking the form of the so-called welcome and integration contract [contrat d’accueil et d’intégration (CAI)]. The CAI applies as a prerequisite for the non-national to have access to permanent residence and the right to family life. Integration functions as an exception for the attribution and recognition of rights and security of residence to TCNs. Second, integration has been subject to gradual expansionist logics from its classical domicile within the realm of nationality law to the legal regime covering the domain of immigration, and more particularly the conditions for admission and residence of non-nationals. Third, there is also a consistent trend calling for the application of the conditionality  This chapter builds upon and constitutes an updated and revised version of a contribution titled ‘The Legal Framework on Nationality, Immigration and “the Republican Integration” in France’, which appears in S. Carrera (2009), In search of the perfect citizen? The intersection between integration, immigration and nationality in the EU (Leiden: Martinus Nijhoff Publishers).

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of integration already in the country of origin in order to obtain a visa for the purposes of family reunification (‘integration abroad’ or the external dimensions of integration). This chapter addresses the main features and scope of these various processes in the French law, and their potential implications in relation to the general principles upon which the EU, and its nascent common immigration policy, are founded. Further, we shall assess the extent to which French national laws on integration are being or not affected by European integration processes (European Community law on immigration), and the use made by domestic public authorities of ‘the obligation to act’ (i.e. transpose EC law) in France. T he French R epublican Paradigm of Integration The articulation between assimilation, integration and nationality has traditionally been embraced within the so-called ‘Republican Model of Integration’ in France. This ‘model’, often also denominated as ‘assimilationist’ or universalistic, has been identified as the official public response advocated by the French state to face (or rather manage) the dilemmas posed by international human mobility and diversity. This technique, claims to have equality at its roots. A sort of equality, however, that only applies to those individuals falling within the narrow legal category of citizens. The Republican tradition has generally been based on the principles of assimilation, nationalisation and neutralisation/privatisation of difference. Its classical doctrine advocates for the disappearance of the non-national into the dominant features and values of the perceived mainstream nation. Its ideology forces the elimination of diversity and the socialisation, or la francisation, of the foreigner toward the founding principles of the Republic which find their historical roots in the emancipatory philosophy of the Enlightenment and the French Revolution of 1789. French Republicanism practices both a process of alienation of heterogeneity and social complexities, and a process of nationalisation, or normalisation of Otherness, through the acquisition of French nationality and the innovative normative practice of integration in immigration law. The diversity, that is too often framed as a consequence of the phenomenon of human mobility, is therefore subsumed and deconstructed by the State through an institutionalised process intending to mechanically transform ‘the immigrant’ into the perfection assumed in the concept of ‘the citizen’ (Carrera 2009). The key to this artificial transformation rests in the hands of the State to grant secure status in the country after passing an integration evaluation into the imagined French society (Anderson 1991). These conceptual premises lead to a problematic relationship between French Republicanism and diversity. Any identity(ies) diverging from ‘the canon’ or the ‘perfect citizenry’ are considered to be a deviation in need of correction, discipline and naturalisation. They are treated as a threat to the nation, which is ‘one’, of the foundations of universalism, unitarism, secularism and homogeneity,

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and which is legitimised to practice a series of corrective actions against any fragmentation from its sacral wholeness. French republican thought also calls for neutral treatment by the State in relation to any version of public difference. The traditional French commitment to culture and ethnic-blind universalism consisting of the need to neutralise any fragmentation, anomaly or distance from the canon citizen, and to treat individuals as individuals, regardless of their cultural identities, provokes a series of questions in need of reflection. An individual will be only allowed to cross the bridge leading to membership after meeting a series of civic standards and social parameters of living which are considered to be inherent to French Republicanism, identity and national historical memory. Privilege and equality are thus only ensured to those showing in the public sphere the artificial prototype of ‘the Frenchman’ who lives in full respect of and compliance with Republican values, principles and way of life. Republicanism is therefore hostile to any public recognition of difference. As Laborde (2001) has argued, it is based on the privatisation of cultural identities as the universalistic paradigm guiding the relationship between cultural groups and the Republic. Public neutrality and the separation of the public and the private realms constitute the conditions for the individual to access the public sphere, and to be a member of the polity. The classical principles that have often been cited as the pillars of classical French Republicanism and its traditional doctrine, and which have been identified as substantiating the four key Republican ideals are those of universalism, unity, secularism and assimilation (Geddes 2003, 52-78). Assimilation, or in its modern terminological version intégration à la française (Jennings 2000), has been understood as the process by which TCNs need to abandon their own cultural identity(ies), individualism and social, ethnic, religious and cultural particularities. The project of democratic modernity involves the integration of all the individuals in the perceived nation. They will have to adhere to the mainstream universalistic values, political principles and socio-cultural neutral stereotypes enshrined by the Republican tradition, and therefore become the political and juridical being incarnated as the French citizen. The French state’s response towards immigration and diversity is indeed related to the classical vision of the existence of a bounded nationhood and the defence of an assimilationist rationale to be predominant in the public sphere. As Brubaker (1992) points out, while French nationhood is constituted by a supposed political and universal unity, it is centrally expressed in the striving for cultural unity. This political cohesion has involved the cultural assimilation of minorities and those holding the juridical notion of ‘immigrants’ or ‘foreigners’. There has been a deliberate policy of ‘making similar’ the foreigner based on a political conceptualisation of national membership and aiming at turning immigrants into citizens, transforming ‘the abnormal non-national’ (Foucault 1999) into the juridical construction of what a French citizen is supposed to be (Weber 1976). The use of assimilation as a tool in the shape of a conditional norm for having access to French nationality accentuates

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and reinvigorates the closeness inherent to the status of nationality, and the politics of inclusion and exclusion affecting those who are considered to be far from ‘perfect’ because of their attributed heterogeneity. It represents the last resort in the hands of the liberal state to manage membership and privilege. The French Republican paradigm has been subject to broad academic attention. An interesting account of contemporary reflection as regards the relationship between the sort of nationalism embodied by French Republicanism and various forms of multiculturalism has been provided by Laborde (2001), who has argued that the (left-wing) Republican critique of multiculturalism is not primarily based on nationalist arguments, but rather justified by a commitment to liberal universalism. In her view, contemporary Republican thought and ‘culture-blind universalism’ is in part self-contradictory with its own ideals. Laborde argues that the Republican conundrum consists of a strategy which, by promoting and defending national identity and ‘Frenchness’, also undermines its foundations against multiculturalism. On the one hand, the Republican principles call for leaving culture, religion, communitarism and difference to the private sphere, but on the other they reinvigorate and politicise the French national identity in the public one. Only the cultural identity qualified as ‘French’ is therefore subject to the State’s politics of recognition (Taylor 1994). Another theoretical account of the French case has been provided by Balibar on what he identifies as ‘national Republicanism’ (Balibar 2004), by which he means the complex web of practices and restrictive discourses toward the status of TCNs in France – the authoritarian management of ‘the immigration problem’ – and the social questions posed by immigration policies since the social movements experienced at the end of the 1970s and 1980s. Balibar argues that national Republicanism demands a very specific stigmatisation of the foreigner. In his view, Republican self-evidence, according to which the status of French citizenship ought to confer rights that those not qualifying for that privilege do not possess, leads to a kind of justification according to which ‘national citizens can be persuaded that their rights do in fact exist if they see that the rights of foreigners are inferior, precarious, or conditioned on repeated manifestation of allegiance (‘signs of integration’)’. There is a form of ‘national preference’ by which an immigrant is deprived of rights and can be excluded as a function of capacities of integration that are discretionally established by the nation-state according to subjective criteria of cultural distance. T he French Legal System on the A cquisition of N ationality: N aturalisation and A ssimilation The study of Republican integrationist doctrine in France leads us first to look at nationality law. This has been the classical normative venue where the category of assimilation has been originally used as a condition in French law (Weil and Crowley 1994). There has been a rooted connection between the dimension of

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assimilation and the rules on the acquisition of nationality in French legal tradition. Assimilation has been commonly envisaged as a necessary requisite for passing successfully a process of naturalisation into the French nation. It is conceived to be inherent to the naturalisation of the non-national towards the perfection artificially attached to French citizenship in relation to the foundations of the Republican nation-state. As Weil (1991) has argued, French nationality functions as a legal obligation consisting of the person’s adherence to common French identity based on Republican values. A person will be considered to be French if they can be socially absorbed by the Republican model of belonging. By acquiring nationality, and by showing adherence to the set of Republican values, the non-national becomes the juridical being incarnated in the status of French citizen. Among the set of conditions for any foreigner to be naturalised in France, the civil code demands the non-national to assimilate and abandon any socio-cultural-religious diversity and identity in the public sphere. Naturalisation is granted on a discretionary basis by the Government to any TCN who claims it, if the applicant meets a series of conditions (‘conditions de recevabilité’) which are stipulated in the civil code – paragraph 5 ‘Acquisition de la nationalité française par décision de l’autorité publique’ (‘Acquisitions par décret’). One of the main requirements is assimilation to the French community as provided in Article 21 (24) civil code, which states that the applicant will need to justify the assimilation to the French community, especially as regards ‘sufficient language proficiency and the rights and duties conferred by French nationality’. The former version of this provision only referred to the need for having a sufficient knowledge of French language. It was with the entry into force of the Loi no. 2003-1119 relative à la maîtrise de l’immigration, au séjour des étrangers en France et à la nationalité of 26 November 2003 were the requirement for the applicant to provide evidence of her/his assimilation to the French Community in the form of sufficient knowledge of the rights and duties conferred by the status of French nationality was introduced. According to data provided by the direction de la population et des migrations sous-direction des naturalisations the number of acquisitions of French nationality reached in 2006 a total of 117,154, among which 77,655 were granted on the basis of naturalisation. The main nationalities of origin are Morocco, Algeria and Tunisia. The administrative procedures putting into practice Article 21 (24) civil code have been developed in secondary laws. In particular, the Circulaire no. 2000254 relative aux naturalisations, réintégrations dans la nationalité française et  Loi 2003-1119 relative à la maîtrise de l’immigration, au séjour des étrangers en France et à la nationalité 2003-11-26, JORF 27 novembre 2003, Article 68 (Weil and Spire 2006).  Rapport Annuel de la sous-direction des naturalisations (2007), Acquisitions et pertes de la nationalité française; Francisation des Noms et Prénoms, Données Chiffrées et Commentaires, Année 2006, Ministère de l’Emploi, de la Cohésion Sociale et du Logement.

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perte de la nationalité française of 12 May 2000 aims at presenting the main rules which need to be observed by the prefecture of the place of residence of the applicant of naturalisation pour la constitution des dossiers de demande de naturalisation ou de reintegration. The Circular provides administrative regulations specifying the procedures linked with the actual handling of the application for naturalisation. Also, it institutionalises an oral process of assimilation [procèsverbal d’assimilation] which will be held by an official at the prefecture and that is intended to verify the assimilation of the person to the French community. As regards the examination of the status of the applicant and her/his assimilation to French society, point D (3) (b) of the Circular, which is entitled ‘Assimilation into the French Community’, states that the public authorities will need to verify two main elements: first, the linguistic assimilation, and second the ‘cultural or social assimilation’ of the applicant. As regards the condition of linguistic integration, the Circular 2000254 categorises as an essential element in order to qualify for naturalisation a sufficient knowledge of the French language, which is evaluated taking into account the qualifications of the applicant, her/his social situation and possibilities of experiencing rapid progress taking into account the existence of a favourable environment (such as the fact that the children are already enrolled in school, living in a ‘milieu francophone’, attendance of French language courses, and so on). Those applicants showing an unsatisfactory knowledge of French language, or whose level is not considered to be sufficient for everyday life, will be considered as ‘insufficiently assimilated’. The evaluation will take place through a personal interview with an official of the prefecture following the terms stipulated in Article 43 of the Decree of 30 December 1993. The Arrêté relatif au compte rendu de l’entretien individuel relatif aux déclarations de nationalité, aux décisions de naturalisation, de réintégration, de perte, de déchéance et de retrait de la nationalité française of February 2005 provided concrete rules specifying the nature of ‘linguistic assimilation’. According to this Arrête, naturalisation consists in testing whether the person meets the necessary level of oral comprehension and expression (no written dimension is   Circulaire DPM no. 2000-254 du 12 mai 2000 relative aux naturalisations, réintégrations dans la nationalité française et perte de la nationalité française, ministère de l’emploi, et de la solidarité Direction de la population et des migrations ministère de l’intérieur Direction des libertés publiques et des affaires juridiques.   Circulaire DPM no. 2000-254.  Décret no 93-1362 du 30 décembre 1993 relatif à la manifestation de volonté, aux déclarations de nationalité, aux décisions de naturalisation, de réintégration, de perte, de déchéance et de retrait de la nationalité française, J.O. no. 303 du 31 décembre 1993, Article 43.  Arrêté du 22 février 2005 relatif au compte rendu de l’entretien individuel prévu à l’article 15 du décret no 93-1362 du 30 décembre 1993 relatif aux déclarations de nationalité, aux décisions de naturalisation, de réintégration, de perte, de déchéance et de retrait de la nationalité française.

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included in the language test) for them to handle without any problem, and in an independent manner, simple situations of communication which may occur during their daily life in France. Linguistic assimilation will be checked in relation to the capacity of the applicant to communicate in French while dealing with situations such as, for example, access to transport and to the bank, post office and town hall, relations with doctors, professors, and so on. This law also points out that the oral interview will last between 20 and 30 minutes in order to duly test the applicant’s language skills. The linguistic dimension may at times be coupled with elements related to the social and cultural integration and the applicant’s way of life. An evaluation of the assimilation to French customs and traditions may also be carried out. French law leaves here a broad range of discretion to the public official to decide whether the oral process of linguistic assimilation is sufficient to verify the assimilation of the person, or whether it is still necessary to check her/his ‘way of life’ in order to ensure that s/he is fully assimilated. If that is considered necessary, a social inquiry might be carried out. This official inquiry has the purpose of facilitating ‘all necessary information’ regarding the social situation of the applicant’s life and family. The disproportionate nature of the discretional power granted to the public official to examine the ‘applicant’s life’ in relation to the ‘French way of life’ is even greater. The Circular does not give any guidance in this regard, and therefore leaves it to the imagination of the official. The only sign provided by the Circular 2000-254 is that the official involved should take into consideration the existence of situations of polygamy, which are characterised as a very grave lack of integration and which would directly justify the rejection of the application for naturalisation. Circular 2000-254 relative aux naturalisations, réintégrations dans la nationalité française et perte de la nationalité française also calls for the need to check the way in which the applicant treats his spouse and children, and whether the person shows traditions and customs which are fundamentally contrary to the ‘values of the French society’, in particular, the principle of gender equality. It even delves into what the applicant may be wearing; it will not suffice to mention ‘le port du foulard’, it will be additionally necessary to specify whether the headscarf is the one traditionally used in the Maghreb or in Turkey, or ‘du hidjab qui couvre entièrement la tête et le cou et qui, à l’instar du tchador, est un signe d’appartenance à un islam fondamentaliste’. Further, six months after the presentation of the naturalisation application, the prefecture will transmit the complete final dossier and the avis/opinion of admissibility delivered by the official to the Central Administration, which holds the final discretion for granting a favourable decision of naturalisation of the

  See for instance Conseil d’Etat, Ministre des affaires sociales et de l’emploi c. Diagne, T. p. 783, 11 mars 1988. Regarding the issue of polygamy see also Conseil d’Etat, M. Webina Orombia, Mme Webina Orombia, M. Kanou té, Leb. p. 68, 11 février 1994.

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person involved, and that according to Article 21 (25) (1) of the civil code will give a definitive answer within 18 months. Finally, the loi no. 2006-911 has also introduced two new Articles into the French civil code (Articles 21 (28) and 21 (29)) institutionalising and harmonising at the national level the ceremony of reception into French citizenship (cérémonie d’accueil dans la citoyenneté française), which until then was often practiced in a rather dispersed and non-official manner by some préfectures. The ceremony’s objective is the framing of the simple administrative act by which French nationality is acquired ‘dans une lumière cérémoniale’ (Moinet 2006). The Inter-ministerial Circular 2007-63 related to the ceremonies of reception into French citizenship of 9 February 200710 specifies the following administrative and organisational aspects concerning the ceremonies: the persons who will be invited to the ceremony, including those acquiring French nationality and representatives of French society, the timeframe and deadlines for the celebration of the ceremonies, the different modalities and ways to organise them and the links with the majors of the town hall where the applicant has her/his residence. The application of general assimilation requirements for a positive decision regarding naturalisation may raise a number of questions in relation to the high degree of legal uncertainty that it involves for applicants because of the great margin of appreciation left to the French public administrations at times of deciding whether to check or not that the candidate possesses only the adequate knowledge of language, or whether it is necessary to delve further into testing ‘the social and cultural dimensions’. Moreover, the ‘social assimilation’ will be based on the cultural difference of the person involved, and her/his ‘way of life’, something which is too subjective in nature to be left to the public official involved in the evaluation of ‘the degree of Frenchness’ of the non-national. The Republican assimilation/integration, along with its inherent subjectivities and uncertainties, has not remained static but has been subject to three distinct logics of normativisation, expansionism and externalisation which we assess in the next section. T he Contractual Framing of Integration in French Immigration Law Integration is no longer regarded as an ingredient for the ostentation of the status of citizen in nationality law. The neo-Republican integrationist doctrine covers those who, while perhaps not willing to fully adhere to the French Republican tradition/identity through the acquisition of nationality, may nevertheless aim to reside ‘legally’ for a longer period of time in the country, and hence gain a major degree of security of residence. The current politique d’accueil has transferred the  Article 21 (28). 10  Circulaire interministérielle DPM/N3 no. 2007-63 du 9 février 2007 aux cérémonies d’accueil dans la citoyenneté française.

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integrationist logic into a contractual bond labelled as the welcome and integration contract (CAI), which is concluded between the would-be-permanent resident immigrant and the French state. The modern mutation creating a contractual relationship between integration and the legislation on immigration has mainly taken place through the adoption of two successive measures denominated as ‘Sarkozy’s laws I and II’: Loi no. 20031119 relative à la maîtrise de l’immigration, au séjour des étrangers en France et à la nationalité of 26 November 2003; and loi no. 2006-911 relative à l’immigration et à l’intégration of 24 July 2006. Furthermore, a new loi relatif à la maîtrise de l’immigration, à l’intégration et à l’asile of 23 October 2007 has introduced an expansionist and external dimension to the set of functions previously played by Republican integration: expansionist because it will now also cover the domain of family reunification; and external because TCNs will need to show their integration abroad (passing successfully a mandatory civic course on French language and way of life in France at the French embassy or consulate) before acquiring a visa. The Sarkozy Law I: The Official Birth of the Nexus between Integration and Immigration The loi relative à la maîtrise de l’immigration, au sejour des étrangers en France et à la nationalité no. 2003-1119 was adopted on 26 November 2003. The Law presented as one of its objectives the granting of a significant degree of importance, unique until that stage in French legal tradition, to Republican integration as a requirement for TCNs to obtain a residence permit or the permission to settle regularly in France (the permanent residence permit).11 The innovative elements related to the permanent residence permit can be summarised as follows: First, it lengthened the period of regular residence from three to five years in order to obtain a permanent residence permit. The official justification given was because it was necessary in order to anticipate the adoption of the Proposal for Directive 2003/109 on the status of third-country nationals who are longterm residents. This constitutes a first prominent sign of the sort of Europeanism pursued by the French public authorities in the context of EU immigration law. Second, the conditions for granting the permanent residence permit were also restricted by Article 21 of Law 2003-1119. This provision introduced the necessity for the TCN to meet a condition consisting of ‘Republican integration’ in the terms stipulated by Article 6 of the former Ordonnance of November 1945. Article 6 stipulated that the condition of integration of a TCN into French society will be measured mainly taking into account ‘sa connaissance de la langue française et des principes qui régissent la République française, qui doit être suffisante,

11  GISTI (2005), Le guide de l’entrée et du séjour des étrangers en France (Paris: La Découverte). Article L 314 (8) of the CESEDA.

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ainsi que de son comportement au regard de l’ordre public’ (Daadouch 2004, 32; Guimezanes 2003; Laferrière 2005). T he Welcome and Integration Contract: Integration as a Contractual Bond The welcome and integration contract (CAI) seeks to institutionalise and formalise the integration of TCNs into the French nation for having access to security of residence in France (Carrera 2006a; refer also to Michalowski, Chapter 14 of this book). The application of the CAI started to be tested in twelve départements on 1 July 2003. In fact, the origins of the development of a contractual policy in the area of integration may be found in a speech delivered by the then President Chirac in Troyes on 14 October 2002.12 J.P. Raffarin also expressed in March 2003 ‘sa volonté de forger une véritable politique publique de l’intégration, de rassembler la communauté des citoyens autour d’un projet partagé, un projet républicain et laïc’. Based on both official statements and the favourable political momentum, a meeting of an inter-ministerial committee on integration13 took place on 10 April 2003 where 55 policy measures dealing with the field of integration were agreed, and which included the introduction of a welcome and integration contract.14 The move from political discourse to its materialisation in law took place by the adoption of the loi relative à la maîtrise de l’immigration, au sejour des étrangers en France et à la nationalité of November 2003 envisaged the juridification of the CAI, and gave it a voluntary or facultative nature. Those TCNs admitted to reside in French territory for the first time and having the prospect of long-term settlement would be offered the possibility to conclude this contract with the French state. The preliminary explanatory information and the model of welcome and integration contract would be presented to the immigrant in a language that they would understand (Guimezanes 2006b). The CAI would be based on reciprocal obligations between the immigrant and the state. The latter would assume the responsibility to provide the newcomer with the following services: a welcome meeting, a medical examination prior to issuing the residence permit, a personal interview with a social advisor for an assessment of the case, the social and language evaluation of the immigrant by the social worker and the provision of individualised support, a civic training day presenting fundamental rights and the major principles and 12 Discours de monsieur Jacques Chirac Président de la République, Troyes – Aube, lundi 14 octobre 2002, available from <www.elysee.fr>, accessed 14 January 2009. 13 The comité interministériel à l’intégration was established on December 1989; See Décret no.89-881 du 6 décembre 1989, Décret portant création du comité interministériel à l’intégration, JORF du 9 décembre 1989; See also the Décret no. 2003-84 du 30 janvier 2003 modifiant le décret no. 89-881 du 6 décembre 1989 portant création du comité interministériel à l’intégration. 14  Vers une refondation du modèle français d’intégration, Actualités, 10 April 2004, available from , accessed 14 January 2009.

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values of the Republic, as well as of French institutions; language training adapted to the requirements of the new arrival, specific information on access to the public employment service and to professional training; an information day on life in France depending on requirements and requests in the form of units on the themes of health, schooling, housing, training and employment; and the monitoring and assessment of experiences and of any problems encountered. Article 3 of the CAI provided that the TCN would need to attend a civic training/information day, to attend the prescribed language classes and any necessary interviews that for the monitoring of the continuation of the contract.15 The contracts, which would cover a period of one year, would specify language courses (between 200 and 500 hours) covering one-year periods and being renewable twice (for a total of three years). During this time ‘the newcomer’ would need to improve language ability by one level at the minimum, but otherwise to the level required for naturalisation, and would therefore acquire a certificate attesting to participation at the training day and, depending on individual progress, ‘une attestation ministérielle de competences linguistiques’ (AMCL).16 While as a premise integration was seen as voluntary, once the immigrant signed the CAI, a contractual obligation was born consisting of the obligation to attend civic training and language courses, as well as to go to any interviews that may be set for the monitoring of the performance of the contract. Non-attendance of these civic and language courses constituted a breach of contract and could negatively affect the official decision on whether to grant permanent residence (Carrera 2006c). The ‘Haut Conseil à l’intégration’ (HCI)17 delivered on January 2004 to the Prime Minister its annual report dealing with the issue of the CAI and the implementation of a civic training as a complementary element.18 In fact, the HCI had already supported in 2002 the creation of a Republican contract at the national level based on the shared responsibility between the State and

15  For further information, refer to the Agence Nationale de l’Accueil des Etrangers et des Migrations at <www.anaem.social.fr>, accessed 14 January 2009; Ministère du Travail des Relations Sociales, de la Famille et de la Solidarité <www.travail-solidarite.gouv.fr>, accessed 14 January 2009; the Ministre de l’Intérieur, <www.interieur.gouv.fr>, accessed 14 January 2009; and the prime minister/government portal at <www.premier-ministre.gouv. fr.>, accessed 14 January 2009. 16 The International Centre for Migration Policy Development (ICMPD) (2005). Integration agreements and voluntary measures: Compulsory or voluntary nature – Comparison of compulsory integration courses, programmes and agreements and voluntary integration programmes and measures in Austria, France, Germany, the Netherlands and Switzerland, May 2005 (Vienna: The International Centre for Migration Policy Development). 17  See . 18 HCI (2003), Le contrat et l’intégration, Rapport à Monsieur le Premier Ministre, available from , accessed 18 December 2008.

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‘les citoyens issus de l’immigration’.19 In its report of 2004, it reiterated that linguistic formation is a key, yet insufficient, ingredient of the integration policy, and therefore supported an intervention by Minister of Social Affairs Fillon in December 2003,20 calling for the need to couple the contract of integration with a ‘volet de formation civique’. In the opinion of Lochak (2006a), this report by the HCI represented a key development in the building of the Republican French ‘model’ of integration as it combined for the first time the two semantic fields ‘La Republique’ and ‘l’Intégration’, something which as we have seen has exerted a major ideological impact in subsequent political and legal developments. In her view, the HCI advocated for an understanding of the Republic according to which the latter performs by its own nature an integrationist function and, reciprocally, integration can be anything but Republican. In 2004, 14 new departments were already applying the CAI. On 31 December 2004, there were a total of 45,640 ‘newcomers’ who had signed the contract: 8,027 during the second trimester of 2003; and 37,613 in 2004.21 Among those who had signed it, the main nationalities were from the Maghreb (50 per cent from Morocco, Tunisia and Algeria).22 The adoption of circulaire 2005-23 of 13 January 2005 generalised the applicability of the CAI to the whole French territory and all the departments from 1 January 2006. However, it was not until 2005 that it found a proper legal basis in French law. The Law no. 2005-32 of 18 January 2005 de programmation pour la cohésion sociale harmonised for the first time the appreciation of the condition of Republican integration envisaged by the previous Law 2003-1119 and the necessity to take mainly into consideration when evaluating the latter the signature and the respect of the CAI (CIMADE 2006). In 2005 the number of persons who had signed the CAI reached 66,478. Since its experimental launching in July 2003 to the end of 2005, approximately 112,100 contracts had been signed. According to data provided by the former Ministère de l’Emploi, de la Cohésion Social et du Logement (Régnard 2006, 96-122) the main nationalities among the signatories continued to be those of Algeria, Morocco, Tunisia and Turkey. As regards Government data regarding 2006, it appears that these four countries still are among those presenting a higher number of nationals signing the CAI. Only in 2006 a total of 99,703 were signed (Secrétariat général du comité interministériel de contrôle de l’immigration 2007). 19 HCI (2002), Les parcours d’intégration, La Documentation française, coll. Rapports officiels, available from , accessed 18 December 2008. 20 Audition Publique de Monsieur François Fillon, Ministre des affaires sociales, du travail et de la solidarité, Haut Conseil à l’Intégration, 8 Décembre 2003. 21 HCI (Haut Conseil à l’intégration) (2006), Le bilan de la politique d’intégration 2002-2005, available from , accessed 18 December 2008. 22  In particular, until the end of 2004: 10,208 Algerians, 6,019 Moroccans and 2,607 Tunisians (Haut Conseil à l’intégration 2006, 247-59).

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T he Sarkozy Law II: T he 2006 Law on Immigration and Integration The second law transforming the main characteristics of integration in French law has been the loi relative à l’immigration et à l’intégration no. 2006-911 of 24 July 2006 (Uni(e)s contre une immigration jetable 2006).23 This law has substantially mutated the functionality of integration as a mandatory or obligatory contractual condition. The latter has been justified in order to meet the commitments of France to transpose EU immigration law into its legal system, in particular the Directive on the status of third-country nationals who are long-term residents 2003/109.24 Integration as a Contractual Mandatory Bond and a Tool of Migration Control One of the most relevant innovations of Law 2006-911 has been the reconfiguration of the nature of the CAI into a mandatory bond (Guimenez 2006b). The granting of the right of permanent residence will be conditional to fulfilling the Republican condition of integration and the requirements stipulated in the contract.25 The new versions of Articles L. 311 (9) and 314 (2) of the Code for the entry and residence of foreigners and the right of asylum (CESEDA) prescribe the subordination of the granting of the first permanent residence permit to the fulfilment of the condition of Republican integration to French society. The degree of integration will be evaluated taking into account the commitment of the person involved to respect the principles governing the French Republic, the respect of these principles and the knowledge of French language. Article L. 314 (2) further stipulates that for the appreciation of the condition of integration, the competent public authority will need to take into account the commitment of the applicant to the CAI (as provided in Article L. 311-19 of the code) and the favourable opinion by the mayor of the town hall of her/his habitual residence (Putman 2006). The ‘Agence Nationale pour l’Accueil des Etrangers et les Migrations’ (ANAEM), which is the competent institution designated for the organisation and finance of the courses, will also be in charge of monitoring the performance of the CAI. Decree no. 2006-1791 of 23 December 2006 has fine tuned and developed the features, objectives, procedures and scope of the CAI, as well as the precise functions of the ANAEM from 1 January 2007.26 The latter presents the contract 23  JORF, no. 170, 25 July 2006, page 11047. 24  Council Directive 2003/109 of 25 November 2003 concerning the status of thirdcountry nationals who are long-term residents, OJ L16/44, 23.1.2004. 25 Article 45 says that the article L. 411 (5) of the Code de l’entrée et du séjour des étrangers et du droit d’asile is modified as follows: ‘3. Le demandeur ne se conforme pas aux principes fondamentaux reconnus par les lois de la République’. See , accessed 12 January 2009. 26 Décret no. 2006-1791 du 23 décembre 2006 relatif au contrat d’accueil et d’intégration et au contrôle des connaissances en français d’un étranger souhaitant durablement s’installer

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to the TCN in a language that s/he understands during the course of a personal interview where the contract will be signed.27 The CAI is concluded for a period of one year. The interview will also serve to determine the level of knowledge of the French language by the TCN through the use of a multiple choice exam.28 The arrêté relatif aux formations prescrites aux étranger signataires du contrat d’accueil et d’intégration et à l’appréciation du niveau de connaissances en français of 19 January 2007 has stipulated the official model of multiple choice exam to be used in these cases, and the ways in which the capacities of oral and written expression and comprehension will be evaluated.29 The required level of French language knowledge is the equivalent of the initial diploma of French language contained in Article D. 338 (23) of the Education Code. The test, which will last for 15 minutes and will be carried out by a social worker, will aim at verifying the proficiency in oral and written expression and comprehension of the TCN in ordinary life circumstances. The evaluation of the oral proficiency will last for a maximum of ten minutes and will be graded with a maximum of 70 points. The test of written proficiency will last five minutes, and will include, for instance, verifying whether the individual is able to understand simple instructions, basic information, to take a telephone number or an address, to complete a form, to leave a simple message, and so on. This part will be graded up to 30 points. Therefore, from the total of maximum grade of 100 points including both sections, the immigrant will need to get a final grade equal, or superior, to 50/100. If that is the case, a ministerial certificate will be issued exempting him/her from attending the language course. If the person does not reach the required level of language proficiency, Article 311 (24) of the Decree states that the CAI will impose on her/him ‘the obligation’ to attend a French language course. The institution that will be in charge of offering this training is designated by the ANAEM. This language course will not exceed 400 hours. The proof of attendance will be validated by a nominative certificate delivered by the ANAEM following the information provided by the training institution. The proficiency in French acquired within the framework of the language course will be validated by an initial diploma of French language [Diplôme Initial de Langue Française (DILF)], contained in Article D. 338 (23) of en France et modifiant le code de l’entrée et du séjour des étrangers et du droit d’asile (partie réglementaire), NOR: SOCN0612582D, J.O. no. 303 du 31 décembre 2006 page 20346, texte no. 39. This Decree will apply to all the CAI signed after the 1 January 2007. 27 Article R. 311 (20) of the Decree no. 2006-1791. 28 Article R. 311 (23) of the Decree. 29 Arrêté du 19 janvier 2007 relatif aux formations prescrites aux étrangers signataires du contrat d’accueil et d’intégration et à l’appréciation du niveau de connaissances en français prévues aux articles R. 311 (22) à R. 311 (25) du décret no 2006-1791 du 23 décembre 2006 relatif au contrat d’accueil et d’intégration et au contrôle des connaissances en français d’un étranger souhaitant s’installer durablement en France et modifiant le code de l’entrée et du séjour et du droit d’asile (partie réglementaire) NOR: SOCN0710178A, J.O du 30 janvier 2007, Texte 13 sur 103.

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the Education Code after passing an exam on oral and written comprehension and expression capacities. The financial burden linked with the DILF in the context of the CAI is covered by the French State. In addition, the CAI also foresees a civic training course and an informative session about life in France.30 The civic training, provided in Article L. 311 (9) of the code, according to Article R. 311 (22) of the Decree no. 2006-1791, will specifically comprise the presentation of the French institutions and of the values of the Republic, which mainly include equality between men and women, secularism, the rule of law, fundamental freedoms, the safety of people and goods as well as the exercise of citizenship which allows the mandatory and free access to education. The total duration of this training will be six hours.31 The participation in this course will be validated with a nominative certificate of regular attendance granted by the ANAEM.32 The contract also foresees a session offering information concerning ‘the lifestyle in Republican France’ as stipulated in Article R. 311 (25) of the Decree. The session aims at providing the signatory of the CAI sufficient knowledge about practical life in France and access to public authorities and services which mainly include training, employment, housing, health, education, minor policies as well as community life. The session will last a minimum of one hour and a maximum of six hours.33 The CAI will end on the month following the finalisation of the compulsory period of training regardless of the successful or negative nature of the validation, or at the latest one day after the exam leading to the delivery of the nominative diploma.34 Article R. 311 (28) of Decree 2006-1791 provides that the contract may be declared terminated by the prefect of the place of residence of the TCN, following the advice of the ANAEM, when there is evidence of non-attendance or non-compliance with the contractual obligations and there is no legitimate reason exempting the person from them. The prefect will inform the TCN of the termination and its negative consequences on granting or renewing the residence permit in Article L. 311 (9) of the CESEDA as well as in the appreciation of the Republican condition of integration. At the end of the contract the ANAEM will verify whether the TCN has complied with all the obligations included in the CAI, which will be deemed to be respected when the TCN has been granted with all the certificates and ‘attestation d’assiduité’.35 The ANAEM will then issue a certificate recapitulating the compliance with the provisions of the CAI and the

30  Guide du formateur de la Journée d’information ‘vivre en France’, Ministère de l’emploi, de la cohésion sociale et du logement, Direction de la population et des migrations, January 2006. 31 Article 1 of the Arrêté du 19 janvier 2007. 32 Article R. 311 (21). 33 Article 2 of the Arrêté du 19 janvier 2007. 34 Article R. 311 (27) of the Decree no. 2006-1791. 35 Article R. 311 (29) of the Decree no. 2006-1791.

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ways in which they have been evaluated and graded. This certification will be sent to the prefect of the place of residence of the TCN. Transposing EU Immigration Law into the French Legal System: Instrumentalisation and/or Europeanisation? One of the main officially-stated objectives of the Sarkozy Law II, which we recall transformed the CAI into a mandatory requirement for having access to security of residence, was the implementation of EU immigration law. Indeed, the loi relatif à l’immigration et a l’intégration 2006-911 aimed at transposing the Directive 2003/109 on the status of third-country nationals who are longterm residents.36 Moreover, the loi relatif à la maîtrise de l’immigration, à l’intégration et à l’asile no. 2007-1631 of 20 November 2007 has also substantially transformed the scope and expanded the nature of integration in French immigration law (Guiraudon 2008).37 The law introduces a significant transformation of the Republican integrationist philosophy, which will now cover the domain of family reunification and be subject to a process of externalisation through the practice of the concept of ‘integration abroad’. Here also, the justification offered by the Government was the need to transpose the Council Directive 2003/86 on the right to family reunification.38 Article 7 (2) of this Directive offered the possibility to member states to introduce into their respective legal systems integration ‘measures’ to the family members as criteria for granting family reunification even when they are still in the country of origin.39

36  GISTI (2008), Le guide de l’entrée et du séjour des étrangers en France (Paris: La Découverte). 37 Loi relatif à la maîtrise de l’immigration, à l’intégration et à l’asile no. 20071631, version consolidée 21 novembre 2007, available from , accessed 12 January 2009; See also the versions Projet de Loi relatif à la maîtrise de l’immigration, à l’intégration et à l’asile, Assemblée Nationale no. 57, 4 juillet 2007; and Projet de Loi relatif à la maîtrise de l’immigration, à l’intégration et à l’asile, N° 11, Sénat, adopté le 23 octobre 2007. 38  Council Directive on the right to family reunification 2003/86, of 22 September 2003, OJ L251/12, 3 October 2003. Following the wording of the original explanatory memorandum of the first version of the proposal in Article 1 ‘fait application de ce dispositif de préparation au parcours d’intégration républicaine aux étrangers de plus de seize ans pour lesquels est sollicité le bénéfice du regroupement familial. Ces dispositions sont dans le droit fil de la directive 2003/86/CE du 22 septembre 2003 relative au droit au regroupement familial qui, dans son article 7, paragraphe 2, prévoit que les États membres peuvent exiger des ressortissants de pays tiers qu’ils se conforment aux mesures d’intégration dans le respect du droit national’. 39 Article 7 (2) of the Council Directive states that ‘Member states may require thirdcountry nationals to comply with integration measures, in accordance with national law’; On

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The first paragraph of the explanatory memorandum of the original ‘projet de loi’ began by making reference to the total number of resident permits on the basis of family reunification that had been granted in France and to its relevance when comparing it to other French channels of regular immigration, such as that of employment and education (Borrel 2006). According to official data offered by the 2007 Annual Report of La Direction de la Population et des Migration of the former Ministry of Employment, Social Cohesion and Housing, 2005 and 2006 actually experienced a decrease in the number of residence permits being granted on the basis of family reunion, when comparing it to data from previous years (from 23,744 in 2004, 23,502 in 2005 and 20,006 in 2006) (Secrétariat général du comité interministériel de contrôle de l’immigration 2007; Régnard 2006). The Government, however, still considered that the number of these entries is ‘too high’ and that they call for an institutional response to make the conditions even stricter. Therefore, one of the core goals of the proposal was to limit the number of entries by TCNs on the grounds of family reunification (restrictive immigration policy) by using the concept of ‘Republican integration of the family into the French society’ as a condition in French immigration policy. The more relevant amendments proposed by the new law 2007-1631 may be summarised into two:40 First, Article 1 adds a new Article L. 411 (8) in the CESEDA that states that every TCN over 16 and under 65 years old subject to an application for family reunification will be evaluated in their country of residence on their degree of knowledge of the French language and the values of the Republic (Republican integration abroad). Further, it is stipulated that depending on the result of the evaluation, the administrative authority will organise in the country of origin a course whose duration will not exceed two months. At the end of this time the person will again be subject to an evaluation of the knowledge of the language and Republican values. It is interesting to see the kind of rhetoric used by this legal act, which may lead the reader to think of the non-mandatory nature of Republican integration abroad for obtaining a visa and benefiting from family reunification. The official language uses terms referring to the possibility ‘allowed’ or ‘permitted’ to the would-be-immigrants to ‘benefit from’ this training, which will supposedly help them to integrate in the Republican tradition. However, the proposal’s soft wording is deceiving. While reference is made to the existence of an obligation de moyens, and not to an obligation of result, the notion of obligation is still there. Further, Article 411 (8) expressly provides that family reunification, and the delivery of the visa, will be subordinated to the presentation of a certificate of attendance to the training or integration course

the implications of the difference between integration ‘measures’ and ‘conditions’ refer to Groenendijk (2006b). 40  Article 7 of the new law has also modified Article L. 311 (9) of the CESEDA.

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which will last a maximum of two months.41 It is clear that the certificate of attendance will constitute an obligatory condition for the actual delivery of the visa. It is evident that the successful evaluation of Republican integration abroad will be from now onwards taken as a criteria for the person to be reunited, and hence, for the Directive 2003/86 to become operational. Second, Article 7 has invented another version of the CAI related this time to the official conception of Republican integration of the family in French society (Contrat d’accueil et d’intégration pour la famille, CAIF). A new Article 311 (9) (1) imposes on those TCNs holding a permanent residence permit and her/his family having benefited from family reunification, and ‘lorsqu’un ou plusieurs enfants ont bénéficié de la procédure de regroupement familial’, to both conclude with the French state a contract which will oblige them to follow a course on ‘the rights and duties of parents in France’, and to ensure a proper schooling of their children. In those cases where the contractual conditions are not respected either by the TCN or her/his spouse, the measure foreseen in Article 222 (4) (1) of the code de l’action sociale et de familles consisting of the application of a contract of parental responsibility will apply and they may be penalised with a financial sanction consisting of the cessation of family social benefits granted by the French state, and eventually administrative sanctions consisting of a refusal to renew or to grant the residence permit, and hence to eventual expulsion from the country. The compliance between this Law and the Council Directive 2003/86 remains critical. Article 2 of the Law is very clear as regards the conditional nature of this factor as it includes among the conditions for rejecting family reunification, in addition to stable and sufficient resources and normal housing,42 that the applicant does not follow ‘the essential principles which, according to the laws of the Republic, regulate family life in France’. Implications of the Logics of N ormativisation, Expansionism and Externalisation over the R epublican Integration The conceptual and structural configurations that had been traditionally attributed to the Republican integration have experienced important transformations since 2003. Integration has been transferred from nationality law to the rules regulating the conditions for admission and residence of TCNs. Integration has become a constitutive norm of French immigration law. The reconfiguration of the framing of integration from the realm of nationality to the one of immigration law involves a decisive shift in French legal tradition. The Republican conditionality of integration does not only play managerial functions in hands of the state to correct any anomaly or deviation from the French perfect citizenry and national

41  The conditions will be later on fixed by a Decree. 42  See new Article L 411 (5).

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identity. Republican integration acts as a criterion for TCNs to attain security and rights. The latest legal developments in France have in this way strengthened the juridical nexus between integration and immigration, and have led to the emergence of a neo-Republican integrationist doctrine. All these processes present integration as a mandatory condition for TCNs to have access to rights and protection linked with the policy dimensions of admission, security of residence and family reunification. Integration functions as another regulatory technique for the state to control the access by the non-national to liberty and security. TCNs may not be willing to become French and renounce their own identity(ies) and differences, but the state will still demand them to abandon the latter in favour of the national perfection. This ‘effort’ or ‘responsibility’ on the part of the Other functions as the sine qua non for him/her to benefit from security. The test of perfection therefore expands over the legal framework on immigration – an expansion which means that the Others will be need to agree to be disciplined by the state if they want to ‘legally’ enter and live within its territory. The immigrant will be asked to renounce her/his cultural expressions and identity(ies). They will need to disappear into the presumed unity of the nation, and exhibit a transformation from the abnormal non-national (Bigo 2005) into the juridical construction of what a ‘Frenchman/woman’ is supposed to be. The expansion of the role of integration means that, similar to nationality law, the duration/length of residence will no longer constitute the determining factor opening the doors to security and liberty within the confinements of the nationstate. An additional, subjective and indeterminate criterion will be added, which aims primarily at limiting the legal channels of human mobility exercised by those not holding the nationality of the receiving State. The normativity of integration facilitates the State practice of a restrictive immigration policy. Moreover, the normative framing of integration in the domain of immigration moves beyond the territorial borders of the nation-state toward the countries of origin. It goes abroad through a process of externalisation (integration abroad). The external dimension of integration is driven by logic according to which this category functions as a tool intending to increase the barriers for the human mobility by the non-national. The concept of ‘integration abroad’ raises a whole set of concerns. The would-be immigrant is asked to be integrated even before crossing the border and actually entering the territory of the state. Integration is practiced as a condition for having access to the visa allowing TCNs to actually move into this legal category as determined by the national law of the receiving state. The external dimension of integration strengthens the control by the State in the countries of origin, in the phase preceding the juridical process of becoming an immigrant and the before the act of mobility actually takes place. The purpose of integration mutates into the representation of the nation-state’s functional borders outside its territory (Guild 2003b; 2001b). It aims at managing the legal status of the Other before even being admitted, and imposes a process according

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to which anybody who wants to enter needs first to be ‘like us’ and demonstrate allegiance to ‘our’ principles, values and way of life. The nation-state demands allegiance to its national identity abroad. This ‘new’ function of integration in French immigration law has been justified by the French government as a consequence of its obligation to transpose EC law on immigration, and more precisely, the Council Directives 2003/109 on the status of third-country nationals who are long-term residents and the 2003/86 on the right to family reunification. The EU has been in this way instrumentalised for backing up the development of innovative national political priorities of restrictive nature. The effects of this kind of ‘Europeanism’, and the nature of the implementation carried out in France of these EU measures, calls for a careful and critical assessment. Indeed, the main goals that appear to have driven the processes of national transposition in French law have been to limit the access by TCNs to sustainable and stable residence and family reunification in France. Integration functions as a derogatory clause or exceptional measure determining access to EU rights and freedoms of TCNs as stipulated in EC immigration law. However, precisely because their introduction in the French legal system has been justified on the basis of the obligation to transpose European law, the degree of discretion enjoyed by the French authorities remains limited to the system of checks inherent to the EU legal system. The Directives 2003/109 and 2003/86 provide a set of EU rights and standards whose scope and nature go beyond the configurations and national politics of the member states. They stand as an EU framework below whose ceiling no member state will be allowed to fall. The kind of Europeanism advocated by France, and the processes and logics driving the neo-republican doctrine of integration, may be critical when put in relation to the general principles upon which the EU and the common immigration policy have been based. Those individuals falling within their personal scope might rely on them (invoke their rights before national tribunals and authorities) at times of alleged interference or unlawful discretion exercised by a member state in relation to EU-wide rights and freedoms (effective legal remedies) (Brouwer 2007). In fact, the binding contractual nature of the condition of integration provided by the CAI and the CAIF, as well as the obligatory requirement of ‘integration abroad’ should be challenged by those TCNs who are subject to these illiberal practices, and who fall within the personal scope of Council Directives 2003/109 and 2003/86. As these EU measures present provisions enjoying direct effect, they would have the right to present an action before national Courts or other authorities abroad to challenge the alleged interference by the French state of their European rights. The role of EU Courts (judicial review) and the general principles of EU law – such as those of proportionality and fundamental rights (Trimidas 2006; Schermes and Waelbroeck 2001; Schwarze 1992; Bernitz and Nergelius 2000; Craig 2006; Boulouis 1993; Papadopoulou 1996) – constitute essential elements for ensuring the respect of the foundational principles of the liberal

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democracies of the EU (liberty, democracy, respect for human rights and fundamental freedoms and the rule of law) and the consistency of the common EU immigration policy.43

43  For an in-depth examination of the compatibility between French immigration law with the principles of fundamental rights and proportionality refer to Carrera (2009).

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Chapter 18

Immigration and the Construction of Public Philosophy(ies) of Integration in Spain Ruth Ferrero-Turrión and Gemma Pinyol-Jiménez

Immigration, integration and citizenship are interrelated topics in the European debates on immigrants’ social inclusion. While other European countries have been discussing about these elements and their links for a long time (Carrera 2006b), Spain is just now examining the nexus between immigration and social integration, and its implementation into a proper legal framework. It is first necessary to remember that, just recently, Spain has experienced a substantial transformation in status from a country of emigration to one of immigration. This recent reality explains why policies and normative instruments related to immigrants’ integration have been neglected for so long and why the development of a theoretical framing of the relationship between immigration and integration in Spain has run parallel to the implementation of public policies dealing with these issues. In fact, even now it seems evident that the existence of one (or more) philosophy(ies) of integration constitutes a debate mainly taking place in academic spheres rather than in the political or social scenarios. In any case, it is obvious that currently a country like Spain needs to define its own interpretative framework and to build an argumentative discourse to sustain its public philosophy of integration. To do that, one of the first required elements is the construction of an institutional scheme within which the so-called ‘integration plans’ play a key role. The main purpose of this chapter is provide a general overview of the process of construction of a philosophy of integration in Spain, and to point out how, in a decentralised country such as that one, rather than talking about one public philosophy, we can better refer to the existence of various philosophies of integration. In that sense, this chapter starts analysing the ways in which the central Government has articulated its own public philosophy on integration and then moves into an examination on how this philosophy has been built in the region of Catalonia. The decision of choosing this particular Autonomous Community in the Spanish geographical landscape has been based on three main reasons: First, Catalonia is one of the main destinations for immigrants in Spain (around 25 per cent of the total number of immigrants in Spain reside in this territory). Second, the Catalan Government began to deal with the phenomenon of immigration and integration long before other Spanish territories, and even before the Spanish

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central Government. Finally, the definition of Catalonia as a historical nationality and the existence of an identity-related discourse fostering its own language and culture further strengthen our choice as the two latter aspects will substantially enrich the analysis of the process of construction of public philosophies of integration in Spain. A Spanish M odel of Integration? An Overview through Spanish Immigration Public Policies (1985-2000) Until recently the only question of concern by migration policies in Spain was how to better control the flows of migrants coming in, especially those which were doing it irregularly. This treatment of migration phenomena was mainly due to the fact that until 2000 the migrant population in the country was not a representative collective for the whole society. In Spain the competences in immigration and asylum, and therefore a substantial number of immigration policies, reside in the hands of the central state. However, there are some policies, particularly those related with social policies (integration), which have been defined as shared competences among all administrations, i.e.: general/central administration, Autonomous Communities and local/municipal authorities. Social integration was out of the scope of any immigration law until the mid-1990s. Until that phase, the main focus of Spanish policies was on border T able 18.1 Year

Foreign residents in Spain, 1999-2007 EU R esidents

N on-EU R esidents

T otal

1999

418,374

382,955

801,329

2000

419,874

475,846

895,720

2001

449,881

659,179

1,109,060

2002

497,045

826,956

1,324,001

2003

572,116

1,074,895

1,647,011

2004

672,250

1,305,041

1,977,291

2005

780,841

1,958,091

2,738,932

2006

929,713

2,092,095

3,021,808

2007

1,621,796

2,357,218

3,979,014

Source: Secretary of State on Immigration and Emigration.

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control and facing irregular immigration. This is evidenced when looking at the first law on ‘Rights and Freedom of Foreigners in Spain’, which dates back from 1985, and that is totally dedicated to manage the entry and expulsions of thirdcountry nationals. Therefore, the key objective of this normative measure was the regulation of migratory flows based on the premise of temporary residence (Aja and Arango 2006). The reflection on the necessity of a more global approach in Spanish immigration policies started in 1991. The category of ‘the social integration of immigrants’ appeared for the first time during parliamentary debates taking place in 1991, and it was then introduced in 1994 as one important pillar of immigration policies through the approval of ‘Social Integration of Immigrants Plan’ (Blanco 2002). This Plan inaugurated a new period in which public authorities became interested not only on border controls, but also in other related aspects of immigration. This Plan was based on three main axes: development cooperation with countries of origin, migration control and social integration. This was the moment when the reflexion on social promotion of migrants, fight against racism and xenophobia, opened up public participation of migrants and intercultural approaches. Over those years, besides introducing social integration in the public discourse, also some substantive and institutional tools were created in order to accomplish these policy goals. Thus, for example, ‘the Forum for Immigrants Integration’ and ‘the Permanent Observatory of Immigration’ were created in 1995. In addition, a reform of the Law 7/85 was introduced in 1996 which included some measures focused on social integration. At the European Union (EU) level we should remember here that ‘the European Observatory of Racism and Xenophobia’ was created in 1997 and in 1998 an ‘Action Plan against Racism’ was launched. However, it is necessary to point out that the Spanish ‘Social Integration of Immigrants Plan’ was not very concrete as regards the definition of integration public policies, and so its main importance relied primarily on the fact of recognising integration as one of the main pillars of immigration policies. The big change in European politics was the approval of the Amsterdam Treaty in 1999 which established a framework for intergovernmental cooperation over the domains of immigration and asylum under the umbrella of the First Pillar instead of the Third, and on the basis of which the Council should start to progressively establish an Area of Freedom, Security and Justice (AFSJ). This opened up a new phase in Europe where priority was given to security issues, something which was rapidly supported by Spain especially after the arrival of Partido Popular into power in 1996. The Tampere European Council Conclusions (Tampere Programme) was presented at official level to be central in the framing and understanding of immigration issues by Spain. This framing positioned border controls and security as the main goals. The first step towards that direction was the adoption of a new   See European Commission, Communication on a community immigration policy, COM(2000) 757 final, Brussels, 22 November 2000.

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Immigration Law reform. A new immigration law was approved in January 2000 entitled ‘Rights and Freedoms of Foreigners and its Social Integration’ (Law 4/2000). This law tried to provide some answers to the new needs consequence of the cohabitation of an increasing immigrant population with the intention of remaining permanently in the country (Blanco 2002). The approval of this law was in line with the integration policy that had originally started with the adoption of the 1994 Integration. Its goal was to give stability and regularity to TCNs living in Spain and promote their social integration. This law was then amended only eleven months following its official approval. In fact, after the Partido Popular won the 2000 national elections by an absolute majority, the first thing it did was to reform the Immigration Law. Apparently the Law 4/2000 was not sufficiently following the objectives of the Tampere Programme, especially in relation to the phenomenon of irregular immigration. The Government argued that this was mainly so because law 4/2000 did not make any distinctions among clandestine migrants and legally residing TCNs. The direct consequence of this new reform was the immediate transfer of the immigration dossier to the Ministry of Interior, a move which leaves few open questions as to the kind of treatment that the Partido Popular wanted to give to immigration (Pajares 2005). Basically, history repeated itself and immigration was again treated as a national security issue calling for more state control. After this important change on the administrative authorities in charge of the immigration dossier, the Government amended the law 4/2000 and transformed it into law 8/2000 first, and later on into law 14/2003, which have restricted access to rights especially of those labelled as irregular immigration. Indeed the goal has been to fight against irregular immigration in all its dimensions: traders, transporters and even the immigrants themselves. The Greco Plan In addition to reforming the Spanish Immigration Law in 2000, the Spanish Government launched the ‘Global Programme to Regulate and Coordinate

 Ley Orgánica 4/2000, de 11 de enero, sobre derechos y libertades de los extranjeros en España y su integración social.  Ley Orgánica 8/2000, de 22 de diciembre, de reforma de la Ley Orgánica 4/2000, de 11 de enero, sobre derechos y libertades de los extranjeros en España y su integración social.  Ley Orgánica 14/2003, de 20 de noviembre, de reforma de la Ley Orgánica 4/2000, de 11 de enero, sobre derechos y libertades de los extranjeros en España y su integración social, modificada por la Ley Orgánica 8/2000, de 22 de diciembre; de la Ley 7/1985, de 2 de abril, Reguladora de las Bases del Régimen Local; de la Ley 30/1992, de 26 de noviembre, de Régimen Jurídico de las Administraciones Públicas y del Procedimiento Administrativo Común, y de la Ley 3/1991, de 10 de enero, de Competencia Desleal.

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Foreign Residents Affairs and Immigration in Spain’. The so-called Plan Greco was a multiyear initiative adopted in 2001. The expectations were that this new Programme would develop some aspects of the immigration polities which were considered to be less developed until then, and which included the ones dealing with social integration (Morén-Alegret 2005). The authorities in charge of that Programme expressed that the Greco Plan was going to constitute the first initiative in Spain ready to face immigration as global issue while taking into account the importance of this phenomenon for the immediate future, and without losing the European perspective. It was composed by a total of 72 concrete measures organised into 23 actions related with four basic lines, and its application was expected to take place between 2000 and 2004. Falling within the competence of the Ministry of Interior, and more specifically the Immigration Department, the Greco Plan was designed to address four key areas: 1. Global and coordinated policy design of immigration as a desirable phenomenon for Spain as a member of the EU; 2. Integration of foreign legal residents and their families who contribute actively in the economic growth of Spain; 3. The regulation of admission in order to ensure peaceful coexistence within Spanish society; and 4. The management of the reception scheme for refugees and displaced persons. This Global Programme was the result of a reflection about the idea of profiting from the active management of migration flows. The Plan expressly mentions the positive functionality of arrivals. This attitude constituted a substantial change in comparison to previous phases when it had been understood that migration was something good only for the immigrant and not so much of the reception society. However, the Greco Plan did not provide any indicator, proposals and/or practical implementation plans in order to impulse social integration. It referred to some rights, such as health assistance, education, family reunification and religious freedom, but it did not go further than (Pajares 2005). The Plan did not design any concrete measures and programs in order to have better results, neither gave any clue to the rest of administrations as to the way the above mentioned four key areas would materialise in practice. The Greco Plan, in fact, was actually made in order to reinforce the immigration competences that had been transferred from the Ministry of Labour to the Ministry of Interior. In May 2000, a new administrative body was set up under the name of Governmental Delegation for Immigration [Delegación del Gobiernno para la Extranjería y la Inmigración] to deal with immigrant issues inside the   Global Programme of Regulation and Coordination of Foreign Issues and Immigration in Spain (Plan Greco). Madrid 2000.

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Ministry of Interior. The head of this new body was a leading member of two other Governmental agencies: the Inter-Ministerial Commission on Immigration Affairs, which had been entrusted with the analysis of Governmental actions having an impact over the treatment of foreigners, immigration, and asylum; and the Superior Council on Immigration Policy that coordinates different levels of Government on immigration affairs. The Head of the Delegation for Immigration also participated in an oversight body of the Government immigration policy, and had the competence to nominate candidates for president of the Forum for the Social Integration of Immigrants. This transfer meant a clear desire to deal with immigration issues from a control perspective and public order, something which provoked social integration to loose weight. Although, the Greco Plan acknowledged the vital role that regional Governments would play in integrating immigrants, and that both the 2000 law and the Greco Plan explicitly recognised that the development and implementation of integration policies will have the greatest impact on integration at the local level that, it is striking to see, however, that the Plan was not accompanied by a budget, which makes it perfectly understandable why no specific measures on social integration were taken (Blanco 2002). While the budget assigned by the Government to the Greco Plan was €252 million for 2002 and €261 million for 2003, the truth was that those expenses mostly covered border control, detention centres, and so on, and not integration. The funding destined for social integration was only that coming from the IMSERSO (Migrations and Social Services Institute), which was of €14,6 million for 2002 and €34 million for 2003. Therefore when carrying out a global evaluation of the Greco Plan it can be said that those actions that were intended to address the social integration of migrants were far from enough in relation to the number of people who needed support. The Plan was not accompanied by any planning, neither by any specific budget aiming at fighting against social exclusion and favouring social cohesion. Besides the civil society organisations working in the field did not receive enough support either. In general terms it can be concluded that a majority of the funding covered control-oriented policies than those dealing with the social integration of migrants. Strategic Plan for Citizenship and Integration (2007-2010) In 2004 a new Government arrived to power. The Socialist Party (PSOE) won the general elections and among other various proposals it proposed the reform and development of a new immigration policy. One central part of that new policy was the so-called Strategic Plan for Citizenship and Integration.

 Balance presented by the Delegación del Gobierno para la Extranjería y la Inmigración for the years 2002 and 2003.

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However, before the Plan was officially approved, the administrative structures inside the Government in charge of immigration-related matters were transformed again. A Secretary of State on Immigration and Emigration issues was newly created linked, this time, with Ministry of Labour. Once again immigration policy was no longer subsumed to control and security issues, but also to fostering social cohesion and the integration of migrants. In order to reinforce this new focus on immigration issues a ‘General Directorate on Integration’ was established together with an ‘Observatory against Racism and Xenophobia’. Once the new ministerial and bureaucratic setting was considered to be ready the Government started to put forward a package of measures oriented to fulfil a harmonic cohabitation in Spain. In 2005 the so-called ‘Support Fund for the Admission and Integration of Migrants as well as their Educational Reinforcement’ [Fondo de Apoyo a la Acogida e Integración de los Inmigrantes así como para el refuerzo Educativo de los mismos] was created. As it is clear from its title, the Fund’s goal has been putting into practice and backing up measures related to newcomers, but also the provision of social services to residents, such as healthcare and education. The basic principle underlying this initiative was that an agreement about the need to increase public funding in areas facing a substantial growth in population, independently of whether they are foreigners or not. The Fund is distributed among Autonomous Communities according to objective criteria and, for the first time, it has been possible to finance actions led by local authorities. This Fund counts with its own budget: €120 million in 2005, €182 million in 2006 and €200 million in 2007. Another task that the Government wanted to fulfil was the revitalisation of the ‘Forum for the Social Integration of Migrants’ [Foro para la Integración Social de los Inmigrantes], a consultative organ composed by representatives of local and Autonomous Communities authorities, the central Government and immigrant associations. The Forum is in charge of bridging the demands of immigrant population to the public authorities. The third important measure that was taken by the socialist Government was the approval of the Strategic Plan of Citizenship and Integration 2007-2010 [Plan Estratégico de Ciudadanía e Integración, 2007-2010], which was approved by the Council of Ministers in February 2007. The Plan is design as a framework of cooperation in which the initiatives for integration by the various levels of public administrations and civil society can be articulated under the following general principles: 1. The principle of equality and non-discrimination, which involves equating the rights and obligations of the immigrant population to those of nationals within the framework of the basic constitutional values; 2. The principle of citizenship, which advocates for the recognition of full civic, social, economic, cultural and political participation of immigrant  Data provided by the Spanish Ministry of Labour and Immigration.

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men and women; and 3. The principle of inter-culturalism, according to which persons of different origins and/or cultures can interact with esteem and in full respect of diversity. Of a similar importance are the objectives highlighted by the Plan, which will be the ones determining the extent to which the implementing measures are successful or not according to the Plan. Some of the main objectives of the Plan are the following: 1. To ensure the full exercise by immigrants of civil, social, economic, cultural and political rights; 2. To adapt public policies, particularly in relation to education, employment, social services, health, and housing, to the new needs generated by the immigrant population. This process must be both quantitative and qualitative, responding to the increasing number of new citizens and users and new demands for managing diversity; 3. To ensure the immigrant population’s access to public services (particularly education, employment, social services, etc.) in equal conditions to those of nationals; 4. To establish a reception system for newcomers, as well as for those in particularly vulnerable situations, until they can have access to general public services; 5. To foster knowledge among immigrant men and women of the European Union’s basic values, the rights and obligations of persons living in Spain, the official languages in the country’s different Autonomous Communities, and the social norms and customs in Spanish society; 6. To combat different manifestations of discrimination, racism and xenophobia in all areas of social life, both in the public and private spheres; and 7. To stimulate public policies and measures fostering immigrant integration and cooperation both at different levels of Government and among civil society. It can be concluded from the above that the Strategic Plan for Citizenship and Integration is founded on the premise that public authorities need to take action in order to achieve a more cohesive society. The Plan does not only foster the idea that when addressing integration society at large must be covered, including both the immigrant and the receiving society, but also that integration policies call for a proactive, comprehensive and holistic approach. This has been stressed in several Commission Communications, which have stressed that integration policies should be based on a holistic approach, since they need take into account ‘not only the economic and social aspects of integration but also issues related to cultural and

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religious diversity, citizenship, participation and political rights’. They must do so by establishing ‘a long-term coherent overall framework’. In addition, the Plan calls also for the establishment of ‘proactive policies’ because it aims not only to provide specific responses to specific problems, but also to establish a nation-wide framework within which all of the phenomena generated in the context of immigration and integration will be tackled. As the European Commission has also indicated, ‘more intense migratory flows (in Europe) will be likely and necessary’ and ‘a forward-looking approach is needed which must encompass both the need to promote better integration of new and established immigrants and to prepare for future immigration for the benefit of all’. In short, the Plan aims to set up the groundwork and to provide the tools aiming to facilitate the achievement of policies to better manage migratory flows and integration processes, and to maximise their positive effects while keeping the impact of adverse effects that such a process might entail to a minimum. In this sense, one could speak of the Strategic Plan as a key element in governing the process of mutual adaptation of immigrants and the receiving society because, through balanced interventions by both public authorities and civil society, it aims at contributing to a two-way process by fostering social, economic, cultural and institutional development that is advanced, plural and lasting for all residents in Spain. According to the division of competences established by the Spanish Constitution in relation to the domain of immigration, the cooperation between the various levels of government constitutes a key factor in integration governance. Many of the social services provided to individuals (nationals or TCNs) fall under the responsibility of towns and cities, or of the Autonomous Communities. The central state needs, in addition to establishing the pertinent common legislative framework, to boost these services by supporting the responsible levels of government. Despite this, it is necessary to stress that the Strategic Plan represents an output from the central state as it intends to boost, consolidate and provide coherency to public action taken in order to foster an inclusive society throughout Spain. In this sense, the Strategic Plan is a framework for the cooperation of all relevant actors. A Different Public Philosophy of Integration? Immigration and Integration in Catalonia As long as the division of powers in Spain recognises the competence of regional and local authorities to deal with integration-related measures, it is deemed useful to analyse how an Autonomous Community such Catalonia performs in relation to   See for instance European Commission, Communication on immigration, integration and employment, COM (2003) 336 final, Brussels, 3 June 2003.   Ibid.

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these topics. In fact, by paying attention to other non-central official perspectives on immigration and integration will allow us to discuss the existence of more than one public philosophy of integration in Spain. Similarly than in all the rest of Spain, immigration has become a key factor of social, political and cultural transformation in Catalan society. In the course of these transformative processes older schemes are redefined and new discussions are opened as regards its own model of society and social cohesion. In this sense, the integration or accommodation of immigration – the management of a multicultural society – constitutes also a challenge for the Catalan Government [Generalitat de Catalunya]. Differently from other issues related to the migration policies such as mobility and border controls or the enactment of a legislative framework, the Catalan Government, similarly to other Autonomous Communities, has been recognised certain competences over integration. Since 1993 different Catalan Governments have been involved in the construction of a public discourse on immigration (Zapata-Barrero 2005). This institutional discourse on immigration is also a discourse on integration and coexistence. As much as the role of the institutions is basic in the elaboration of a public philosophy of integration, the analyses of normative instruments such the so-called ‘Integration Plans’ becomes also crucial. In the last decades, different Catalan Governments have developed three Integration Plans to manage integration of foreign nationals in Catalonia. Each Plan has been developed in diverse political circumstances, but also in a different migratory context. The study of similarities

200,000

76.244 (1,25%)

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65.990 (1,09%)

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1990

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114.264 (1,88%)

407.647 (1,05%)

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430.422 (1,10%)

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895.720 (2,21%)

538.984 (1,38%)

900,000

Catalonia Spain

100,000 0 1996

2000

Figure 18.1 Foreign population in Spain and in Catalonia (% over total population), 1993-2000 Source: Secretary of State on Immigration and Emigration.

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and differences between them may be helpful at times of understanding the construction of the Catalan institutional discourse on integration. The First Test: The Interdepartmental Plan on Immigration 1993-2000 From the mid-1980s until the 1990s, statistical data shows up the progressive transformation of Spain from a country of emigration to one of immigration. Although the first Spanish law on immigration had been passed on 1985 as a pre-condition to access to the European Economic Community, Spain cannot be considered as a country of immigration until the 1990s (Arango 2000). During all these years, constant but small inflows of foreign immigrants arrived to the Spanish territory. However, the public opinion or the media did not pay any attention to the phenomenon neither Catalonia nor in the rest of Spain. At that time in Catalonia there were some public discussions focused on the integration of migrants (and the second generation) from other regions of Spain, rather than from abroad. During the period between 1993 and 2000 only a small group of academics and public authorities became increasingly interested in the international migration phenomenon. Perhaps due to the historical background as an immigration destination of Catalonia, debates on migration were more extended there. Indeed, immigration related issues were more visible in public debates and political discussions in Catalonia than in other parts of the Spanish territory.10 In 1992, the political groups composing the Catalan Parliament asked unanimously to the Catalan Government to prepare a plan to deal with the social integration of foreign immigrants. This proposal was at that time an innovative political action, but also a very controversial one as neither the 1978 Spanish Constitution nor the 1979 Catalan Statute of Autonomy included express competences on immigration to the Catalan Government (Aja and Arango 2006). But as long as the Autonomous Communities were progressively acquiring powers in areas such education, health and social services, the role of regional and local authorities in the integration of immigrants became clear. Meanwhile the Catalan Government developed social policies destined to its local population as well as to immigrants.11 In this way the Catalan authorities were discretely initiating their own approach or public philosophy of integration. Also in 1992, the Catalan Government created the first Interdepartmental Commission12 to coordinate and follow-up actions related to migration. Just one 10 As an example, in 1992 the so-called Girona Report [Informe de Girona] was published, which had been written by a group of experts and containing 50 proposals on immigration policy (Moré-Alegret 2005). 11  Unless otherwise indicated when making reference to immigrants or third-country nationals in this chapter we refer to international migration. The figures provided include residence and stay permits. 12 The Interdepartmental Commission was led by the Social Welfare Department representative and was composed by representatives from other nine Departments (i.e.

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year later, in September 1993, the Generalitat presented its first working plan on immigration. The Interdepartmental Plan on Immigration was not only the first Catalan but also Spanish plan fully dedicated to immigration. As it was recognised by posteriors plans, the first ‘Interdepartmental Plan on Immigration 1993-2000’ [Pla Interdepartamental d’Immigració]13 was conceived in an historical moment characterised by the moderate growth of foreign population in Catalonia. The main purposes of the first Plan were: first, to promote the integration of immigrants in Catalonia, and second to grant the necessary conditions to facilitate the personal and social development of migrant people, according to a framework of rights and obligations. The Plan included 40 specific actions and also included the creation of the Advisory Council on Immigration, a new administrative organism where several Catalan Government departments, local authorities and representatives of social and economic institutions would meet. The most remarkable contribution of this Plan was the role that it played in the preliminary phases of a building process of the institutional framework destined to deal with immigration in Catalonia. Furthermore, the Plan was also recognised as a pioneer initiative, not only in Catalonia but also across Spain. In fact, the bodies and normative initiatives that were included in the Plan provided sound inspiration for the measures and institutional setting created by the central Government in 1994, such as for example the Interministerial Commission on Foreignness, the Plan for Social Integration and the Forum for Immigrants’ Social Integration. The Catalan Plan recognised the important and undeniable contribution of migration in the Catalan society, and it has been described as the first symbolical step towards the construction of a public discourse on integration in Catalonia (Zapata-Barrero 2005). Apart from all these innovative characteristics, the first version of the Plan had two principal weaknesses: firstly, it was not linked with a budget and secondly, it also lacked the necessary political impulse. While both elements might have explained the failure of the implementation of the Plan’s actions, it was a successful step toward the construction of a Catalan philosophy on integration. Discovering Immigration: The Second Interdepartmental Plan on Immigration 2001-2004 There has been a consensus in the literature in defining the 2000-2001 as the period of ‘discovering immigration’ in Spain (Zapata-Barrero 2001) due to a number of factors. First, the Spanish Government created the main administrative apparatus to manage immigration and two new immigration laws were passed along with a high political controversy. Second, immigration also entered the social debate Education; Culture; Territorial Policy and Labour). 13  Generalitat de Catalunia, Pla Interdepartamental d’Immigració i Ciutadania, 19932000.

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2,000,000 1.977.291 (4,61%)

1,800,000

400,000

462.046 (6,83%)

383.938 (5,78%)

600,000

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1.109.060 (2,74%)

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1.324.001 (3,24%)

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1.647.011 (3,90%)

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Catalonia Spain

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2001

2002

2003

2004

Figure 18.2 Foreign population in Spain and Catalonia (% over total population), 2001-2004 Source: Secretary of State on Immigration and Emigration.

and the media. The xenophobic explosions in the ‘Can Anglada’ neighbourhood in Terrassa (Catalonia) in 1999, the events in the small Andalusian town of El Éjido in 2001 – where the murder of a Spanish woman by a mentally disturbed Moroccan led to brutal attacks against undocumented Moroccan workers and the mortal traffic accident of a van with 8 Andean undocumented workers – were points of inflection in the awareness of the Spanish and Catalan society, of the phenomenon of immigration. Figures also explain why immigration raised in the political and social agenda so promptly (Serra et al. 2005). In 1999, there were 183,736 foreign residents in Catalonia (who represented 23 per cent of all foreign population in Spain), and in 2001 the total number increased to 280,167 (25 per cent of the immigrants living in Spain). Catalonia and the region of Madrid hosted nearly 50 per cent of all the foreign residents in Spain. The figures and events helped in this way to introduce immigration to the agenda. Since 2000-2001, civil society, political parties and institutions were certainly aware of this phenomenon. For the first time, Spain and Catalonia understood that they were destinations of international immigration, not just transit territories towards the rest of Europe as they used to be in the past. Immigration became a top issue in the political and social agendas, and since then, the former appears as one of the principal problems in monthly public opinion surveys. The political confrontation on immigration issues in Catalonia was mostly based on dialogue than in other arenas. After the entry into force of the new

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immigration law in February 2000, the Catalan Parliament approved different resolutions14 demanding a new Plan on immigration to the Catalan Government, asking to avoid the instrumentalisation of immigration in political confrontation and encouraging the Catalan Government to participate in the quota system (which still resides amongst the central state competences) in order to grant a better integration. On July 2001, the second Interdepartmental Plan on Immigration (2001-2004) was approved.15 In order to give it a major political relevance and attract public attention to its adoption and implementation, the second Plan was managed by the newly created Secretariat for Immigration, an interdepartmental body placed in the Catalan Government’s Presidential Department. The second Interdepartmental Plan included 133 action programmes to promote personal and social development of migrants. The main purpose of the Plan was promoting migrants’ participation in the Catalan society, acknowledging their specific contribution to the Catalan identity and to the Catalan collective patrimony. On the other hand, the Plan aimed at increasing awareness on immigration in the Catalan society. Finally, it also intended to promote a vast debate to achieve a global and consensual agreement on immigration in Catalonia. In its introduction, the Plan defined itself as a key tool to deal with immigration but also as an instrument committed to the host society (Pajares 2005). Two main contributions were included in the Plan in relation to the construction of a public discourse on immigration and integration: Firstly, the Plan defined Catalonia as the sum of many scenarios into one. This was an express allusion not only to the contributions by new international migrants but also to those migrants who arrived in Catalonia during the 1950s and the 1960s from other Spanish territories. When referring to the new and old migration, the Plan noted the importance of integration and coexistence in Catalonia in the following manner: Catalonia is the result of a permanent integration process of people who came from other places. Now and then, our country has hosted different people, as we have a long integrative tradition. [Catalonia] is an open country […]. From the Middle Ages to the XVII century and the XX century, Catalonia has had the same response to the migratory movements: an approach for integration and coexistence.16

14 Resolution on the policy on foreign immigration (21 February 2000). The resolution said that ‘is necessary to work with political and social consensus on actions and measures dealing with immigration’; See also Resolution 423/IV on the social integration of foreign immigrants (28 February 2001). 15  Generalitat de Catalunia, Pla Interdepartamental d’Immigració i Ciutadania, 20012004. 16  Ibid., introduction.

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Secondly, the Plan recognised a Catalan identity based on a culture and a language, and recalled the difficulties that Catalonia had confronted to preserve successfully its own identity. The Plan acknowledged the role played by immigrants in the hard process of preserving the Catalan identity. Although it wasn’t an easy process, Catalonia has preserved its identity symbols. One of the reasons could be the fact that many immigrants and their children understood the need and the justice to preserve the characteristics of the Catalan culture, the ones that define its personality, as its own language.17

It could be said, in sum, that the two elements that identify and distinguish the Catalan nationality – language and history – are both open to immigrants, regardless of their place of birth (Zapata-Barrero 2005). Both elements configured the most important contribution of the second edition of the Plan: the creation of a ‘Catalan way of integration’, which tries to equilibrate the respect for diversity with the belonging to just one community. The central role of the political identitybased discourse included in the Plan could be explained as an input of a Catalan Government led by a moderate nationalist party. In that sense, the second Plan rejected concepts like deculturalisation, assimilationism or communitarism, and defined the Catalan model as a common framework respectfully with diversity and concerned about social cohesion and national (Catalan) cohesion. In spite of its own definition, the conceptual bases of the Plan in integration were closer to the French assimilationist model than the Anglo-Saxon or the Dutch ones (Favell 1998). But differently from the French model, the Catalan Plan clearly defined the need to implement positive actions to promote equality (also in the public sphere) and to include the protection of diversity into the public discourses. According to the Plan, diversity and selfconscience of belonging to one and plural community has to be part of the same discourse. In an incipient way, the second edition of the Plan set up the ideological framework of integration in Catalonia, and opened it to a large number of stakeholders. In that sense, the Plan also initiated a network where NGOs, immigrant associations, trade unions and administrations met in a co-responsibility and cooperation way. Notwithstanding its ambitious goals and higher number of proposed actions, the second Interdepartmental Plan on Immigration was not implemented. In this occasion, the difficulties for putting into practice a global and coherent development of the Plan could be explained by the parliamentary weakness of the party leading the Catalan Government.

17  Ibid., p. 11.

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4,000,000

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642,829

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Figure 18.3 Foreign population in Spain and Catalonia (% over total population), 2005-2007 Source: Secretary of State on Immigration and Emigration.

Redefining the Debates: Citizenship and Immigration Plan 2005-2008 At the end of the 20th century, Spain and Catalonia have been transformed into immigration destinations, and immigration has become an inherent element in their social and political agenda (Aja and Arango 2006). In 2005, 603,636 foreign residents lived in Catalonia – around 22 per cent of total foreign population in Spain – corresponding to 8.6 per cent of the Catalan population. During this third and last period of analysis, the transformation of immigration is not just a question of figures, origins or percentages, but also a new approach. Links between immigration, integration and citizenship have become the new axis of social and political debates (Zapata-Barrero 2005). Progressively, the idea modestly presented in the second plan acquires more relevance, and integration is been clearly defined as a two-way process. The new political scenario in Catalonia might have been a partial explanation of this new perception. The two previous Plans on Immigration were implemented under the mandate of Convergència i Unió, a nationalist and centre-right coalition. But since the 2003 Catalan elections, the Generalitat was led by a coalition of left and centre-left parties, one of which (Esquerra Republicana de Catalunya) is a separatist party. The main party of this coalition Government was the Partit Socialista de Catalunya, the Catalan partner of the Spanish Socialist Party (PSOE), and the President of Catalonia, for the first time, was a non-born Catalan citizen but an Andalusian migrant who had moved to Catalonia during the 1970s. This new Presidency, supported by a separatist party, has opened up an important controversy on issues related to identity, language (it was also the first time that a Catalan President did not speak Catalan as mother tongue) and

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national belonging. In this next context, the three parties ruling coalition launched in June 2005 the third Catalan programme on immigration and integration. This working programme titled ‘Immigration and Citizenship Plan 2005-2008’ [Pla de Ciutadania i Immigració] included a new approach, as it could be seen already in its title, which once again would make of it a precursor for other subsequent Plans in Spain. In spite of a new political context, the Immigration and Citizenship Plan recognised, in its introduction, the validity of previous plans and remarked the difficulties to their implementation. It stated that ‘The Citizenship and Immigration Plan (2005-2008) has to capitalise on the previous plans and to maintain coherence with some of the guidelines already in place, but at the same time, try to be innovative and improve on those aspects which proved to be mistaken or to be difficult’.18 In an attempt to take distance from previous versions of the Plans, the label of ‘interdepartmental’ was erased from its title. Integration was also understood as a challenge not only for the administration but also for the society as a whole. In this sense, the Plan differed in several ways from former ones (Pinyol 2006). Firstly, one of the most important contributions of the 2005-2008 Plan was the introduction of the citizenship concept. According to the latter, residence is the only condition for an individual to be defined as a citizen and therefore as beneficiary of public policies. The Plan applied to all (resident) citizens without taking into account their national origins. Integration was understood as a two-way process that involves challenges and changes both for newcomers and national citizens (Rodríguez in Biles et al. 2007). The Plan understands residence citizenship as the combination of a real residence and permanent settlement in a social context. The idea was to promote a pluralistic and civic citizenship as guarantee of a public common culture based on pluralism, equality and civic conduct. ‘Pluralist and civic citizenship is based on three fundamental pillars; the meaning of pluralism, the principle of equality and civic duty as a guideline for behaviour; erected with a focus on the institutions of Catalan society’.19 Through this plural and civic concept of citizenship the Plan advocated for the introduction of the accommodation perspective – described as managing areas of contact between public and private institutions in the region, and among residents who are new immigrants and local residents – and of the right of residence (jus domicili) that defines the population benefiting of public policies, and it is not linked to nationality (which remains within the confinements of the central state competences).20 18  Citizenship and immigration plan 2005-2008. [Generalitat de Catalunya (2005): Pla de Ciutadania i Immigració 2005-2008.]. The ‘Summary of Key Points’ could be consulted at , accessed 12 January 2009. 19  Citizenship and Immigration plan 2005-2008, p. 158. 20  Ibid., p. 160.

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Secondly, the Plan considered the Catalan language and identity as the backbone of a plural and diverse reality. It recognised that any equality and accommodation policy is also a linguistic policy, and remarked that dealing with a growing cultural complexity – not only because immigration – also means to discuss about identity. According to the Plan, Catalan identity is currently enriched by new Catalans, so for ‘it becomes stronger, richer and more plural’.21 Linking integration with Catalan language competences generated a controversial debate. At the 2006 Catalan elections, the main opposition party, Convergència i Unió announced its initiative to impulse a new law on integration that would include a ‘contract with Catalonia’. This initiative would require immigrants to express their willingness to settle in Catalonia in order to be granted equal access to economic and social rights. The idea of evaluating the integration of migrants in Catalonia, fiercely criticised by the Governmental coalition, was therefore introduced in the debate. It will be interesting to see whether in the next Catalan elections to be held in 2010 this proposal will be recovered. During the 2008 Spanish general elections, the Popular Party’s candidate to the Spanish presidency, Mariano Rajoy, also referred to the need to introduce a ‘contract for immigrants’. The 2005-2008 Plan, which is more developed than the previous ones, is at present working quietly. The Catalan Government is currently elaborating a National Pact on Immigration, which involves social, economic and political stakeholders in a common and share framework on immigration, and that could be understood as a bigger step towards the construction of a public philosophy on integration in Catalonia. Immigration, Coexistence and Self-government: Debates on Integration in Catalonia The normative instruments that have been presented in the previous sections demonstrate that from nearly two decades ago, the Catalan Government has tried to articulate, within its conferred powers and in a rather chiaroscuro process, a comprehensive response to integration. The Generalitat has proved to be an innovative administration in relation to integration debates, both in a conceptual and a more operative level. The Catalan Government created its institutional framework to deal with immigration and integration in the early 1990s, and the latter has served as a model for other Spanish administrations. Furthermore, the Catalan Government progressively understood that integration is a two-way process, and since the second edition of Plan, which is even more clearly developed in the third one, integration policies are committed both to immigrant and national residents. Despite of its limitations and weaknesses, the contributions made by all three plans have been substantial at times of constructing a Catalan discourse on integration and accommodation based on equality rights and the access to public 21  Ibid., p. 47.

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services, but which is also focused on the preservation of Catalan cultural identity and feelings of belonging to one Catalan community (Zapata-Barrero 2006). The last edition Plan clearly pointed out that managing migration also implies the management of identities (Guild 2005). The challenge for Catalan Governments will be how to manage this diversity and plurality without losing a common framework of identification and belonging. This is a key element to be considered when the immigration management (but not only) is discussed in political situations, like that in Catalonia one, where there exists a revindication as a minority nation. Any public discourse on immigration is based on the protection and guarantee of rights, the existence of non-discriminatory instruments and the acceptance of a series of civic principles to grant coexistence. In the case of Catalonia, other elements such as the identity, the linguistics policy and the selfgovernment instruments have to be also considered. The third Catalan Plan points out to the link between immigration and identity, but the current political discussions show that the Catalan elites have not yet established a comprehensive, rational and fact-based debate neither on immigration and self-government, nor on immigration and identity. The use of the residence factor as the criteria to define citizenship – as the third Plan advocates – and the recall of the Catalan language and culture as a factor of integration – as all Plans have done – are not contradictory elements. However they require a really well done articulation to guarantee social peace and social cohesion in Catalonia. Thinking of immigration, identity and self-government is a complex process, but it is necessary to prevent their effects on Catalonia as a political community. As the Quebec and Flemish situations illustrate (Zapata-Barrero 2006), immigration has been used to re-open discussions about the nation itself and the factors that define a national community. In both cases, nationalism claims and immigration policies have been linked, and it could be said these latest have been used as a ‘nation building’ factor. Conclusions In the last decade Spain as a whole started to take immigration issues seriously. Public policies have evolved since 2000. These normative transformations have been linked with the increase in the amount of TCNs coming into the country because of the so-called successful Spanish model of economic growth. They have been also stimulated by policies that have been developed by other European partners. Once those public authorities realised that the foreign populations in Spain were permanent residents and not only temporary workers, then they started to develop policies that reflected the need to ensure social cohesion. One of the advantages of Spain is that it can have a look at how other European countries which are more experienced in dealing with immigration issues. Spain can observe and learn from the French, the British or the Dutch model and take whatever tools it considers appropriate. This is why we think that one can start talking about a

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Spanish model of social integration. A model that includes a global approach of immigration taking into account every aspect that has an impact on this issue. We can also talk about a model of integration in Spain because of the sui generis nature of the Spanish case. On one hand, Spain is a country that has rapidly passed from a country of emigration to a country of immigration. It has also experienced an economic boom that has placed it at the top of economic growth in the EU. Spain is a country characterised by a huge political, cultural and regional diversity. Further, it is also a country that has experienced an unprecedented increase of entries by TCNs. In contrast with other European states, it has not presented important cases of racism or xenophobia. So it can be said that Spain has been able to manage its diversity and maintain its social cohesion. However, Spain should work harder in order to prevent future problems that might potentially appear. While the growth of immigrant population has been very high in the last decade, the immigration phenomenon is still new. New in the sense that Spain has not faced jet family reunification or second generation issues. Maybe some Plans such as the one inaugurated in 2007 in coordination with the Autonomous Communities can help to put some order in social policies that not only affect immigrant population, but also nationals. The debates on migration, citizenship and national community are still open in Spain in general and in Catalonia particularly. These debates are indispensable. It is of utmost importance to reflect and debate about the model of society desired – for today but also tomorrow – and to define the boundaries of the public philosophy of integration. Within this framework, instruments, policies and actions required to manage plurality and diversity should be identified to avoid that these values could become an alteration of social cohesion and peacefully coexistence in a decentralised Spain.

Chapter 19

Insertion, Integration and Rejection of Immigration in Italy Salvatore Palidda

The case of the success or failure of the integration of immigrants in Italy and of the influences that the EU has been able to exercise in this matter may be deemed rather useful within a perspective of comparative analysis, not only in relation to the cases of Southern European countries, but also to those in Northern Europe and even with countries of immigration in other continents (particularly the US, Canada and Australia). Rather than offering a detailed description of the phenomenon, I will limit myself to sum up what is essential about over 35 years of foreign immigration in Italy. This chapter analyses the aspects that are favourable or unfavourable for the integration of immigrants in relation to the progressive implementation of the EU’s migration policy. It is important to go over the often sterile or obsolete debates that oppose assimilationism to communitarism, such as pseudo-models (the English word is melting pot, French assimilationism or the German gastarbeiter [guest worker] approach), or even openly xenophobic and racist discourses. It is central to acknowledge that the actual reality of migrations is marked, simply and foremost, by the multiple concrete interactions – positive and negative – of everyday life. It is worth highlighting that one may have either a regular or semiregular integration, or also an integration that is irregular and even deviant (Palidda 2001; Dal Lago and Quadrelli 2003). In the past, it was possible to pass from one type of integration to another. For instance, this was possible in Italy until the 1998 law and the regularisation that accompanied it. As a result of very restrictive norms today this is not possible anymore. Once a migrant enters in the country as ‘illegal’, he is de facto condemned for life to the status of someone who has been criminalised. Any reflection about immigration cannot ignore the political context (and hence, nor the economic, social and cultural ones) within which it occurs. As stressed by Sayad (1999; 1991), immigration concerns a total social fact. It is a  The concept of interaction adopted here refers to the Chicago School and particularly to Goffman (1959 1971) and Becker (1963).   Moreover, well beyond appearances, migration is a process − most often unconscious − of change in membership and behaviours (see Sayad 1999; Dal Lago 2006; Palidda 2008).

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phenomenon that simultaneously affects migrants, autochthonous people and all the different aspects of the context. First of all, the main aspects that currently mark the reproduction of migrations – between elements of continuity, adaptations and innovations in comparison with the past – reveal some consequences of the great changes that the globalised new development has entailed. It is in this context that migrations play their role of ‘mirror function’, revealing the changes in the societies of origin, in the destination societies and in the relationships between the two (Sayad 1993). As the latest data by Eurostat on poverty in Europe indicate, an increasingly large part of the Italian population lives in poverty, risks sliding into destitution and most often survives in the underground economies (which mean unstable, badly paid and harmful jobs). The web of relationships between underground or shadow, semi-informal and formal economies, as well as criminality, is increasingly strong, as it also plays upon the transnationalisation that states are unable to control. Moreover, all the official data shows that in all countries, while the costs of military and of internal security (public and private) have constantly grown, resources destined to the sector of social care, health and education have decreased. In short, the question of social integration is not something that only concerns immigrants, but rather, the entire part of the population affected by problems which may result from the destructuring of the previous social order. Today’s demand for immigrant labour is often related to unstable, subordinate, entirely underground or even illegal jobs. Therefore, notwithstanding the countless obstacles, humiliations, and very high moral and material costs that immigrants have to face, there is still a substantial portion of migrants who manage to fit in. With the exceptions of those who were able to find and seize the chance to establish some good relations with autochthonous people who believe in equality, most of migrants face practices by  As a result of this, according to Eurostat, the people in the EU who swing between jobs that are in the underground economy, on an illegal, unstable or semi-regular basis, are probably more than 60 million and risk increasing to 170 million, a situation that is destined to grow worse if the resources for social purposes continue to decrease. According to Friedrich Schneider the rates of the underground economy in Europe and in all the rich countries have constantly grown (see Guio 2005; IRES (2007), I Volti del Sommerso, available from , accessed 4 December 2008). Italy, as well as Greece, are in the lead with around 30 per cent. This notwithstanding, Berlusconi stated: ‘We must stop worrying so much about the economy: we have an underground [economy] of 40 per cent, do you think that our economy cannot resist? Come on [...]’ (la Repubblica, 17 June 2005). In other terms, according to him, the rate of submerged economies should be considered an index of vitality.  Among the studies or documents that are useful to evaluate the insertion, integration or rejection of immigrants in Italy, see OECD (2008, A profile of immigrant populations in the 21st century. Data on OECD countries (Paris: OECD); 2006, From immigration to integration: Local solutions to a global challenge (Paris: OECD)); Reyneri (2006); Blangiardo (2007); Cologna (1998); Corte dei Conti (2004, Relazione. Esiti dell’indagine sulla Gestione delle risorse previste in connessione al fenomeno dell’immigrazione Regolamento e sostegno, controllo immigrazione clandestina, available from
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different social and institutional actors that make access to − and the maintaining of − peaceful and regular insertion difficult. What is the Balance of the Integration of Immigrants in Italy? R evolvingDoor Practices For more than 170 years (from 1830 to 2006), Italy has been one of the countries that has experienced the most substantial emigration. Those migration flows were both external and internal, and characterised by two-way movements and definitive returns. Foreign immigration began at the beginning of the 1970s and it has mainly developed since the late 1980s. The main stages of the management of immigration have been marked by the adoption of five laws: in 1986, 1990, 1995, 1998 and finally 2002.10 These laws have shown a certain continuum of some aspects between the centre-left and right governments (Palidda 2009a). The 1998 Law drew the lines that have remained essential for the country’s policy in the field of immigration, as the subsequent law merely strengthened its prohibitionist aspects in order to repress irregularity and make harder the acquisition and the renewal of residence permits.11 Each of these laws has been accompanied by a corteconti.it/ricerca-e-1/gli-atti-d/controllo-/documenti/sezione-ce1/anno-2005/adunanzac/allegati-d3/relazione.doc>, accessed 4 December 2008); Sacchetto (2004; 2006); Cuttitta (2006); Scrinzi (2003); Commissione per le Politiche di Integrazione degli Immigrati (1999; 2000); Medici Senza Frontiere (2008).   Italy continues to have not only 60 million descendants scattered throughout the world (who have the right to claim Italian nationality/European citizenship), but also more than three million citizens living abroad. A third of these Italian citizens living abroad exercise the right to vote, by choosing 12 MPs and six senators. To this, one may add the ‘paradox’ of a new resurgence in the emigration of young people from the south towards the north of the country and abroad (Palidda 2008).  Legge 30 dicembre 1986, no. 943. Norme in materia di collocamento e di trattamento dei lavoratori extracomunitari immigrati e contro le immigrazioni clandestine, Gazzetta Ufficiale, 12 gennaio, no. 8.   Legge 28 febbraio 1990, no. 39. Conversione in legge, con modificazioni, del decreto-legge 30 dicembre 1989, no. 416, recante norme urgenti in materia di asilo politico, di ingresso e soggiorno dei cittadini extracomunitari e di regolarizzazione dei cittadini extracomunitari ed apolidi già presenti nel territorio dello Stato. Disposizioni in materia di asilo, Gazzetta Ufficiale, 28 febbraio, no. 49.  Decreto Legge no. 489/1995 e politica dell’immigrazione.  Legge 6 marzo 1998, n. 40. Disciplina dell’immigrazione e norme sulla condizione dello straniero. Gazzetta Ufficiale, 12 marzo, no. 59. 10  Legge 30 luglio 2002, no. 189. Modifica alla normativa in materia di immigrazione e di asilo. Gazzetta. Ufficiale. 26 August, no. 199, Suppl. Ordinario n. 173. 11  See the dossiers by ASGI and MD on this issue published in the journal Diritto, Immigrazione e Cittadinanza, available from (home page), accessed 11 December 2008.

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regularisation campaign. Since the 1998 Law, on the basis of the market demand for labour, every year Italy issues a certain amount of visas [quote]. Those quotas are distributed among the countries of origin in accordance with the migration agreements signed by Italy. All the stages of this evolution of norms were announced as an alignment with the positions of the European Union (EU). In particular, it is since the first Prodi Government in 1996 that Italy has sought to show itself as being the European country most rigorous in adopting some rather strict measures, in accordance with the EU Directives and Recommendations – as well as the treaties – in this field. Refusing the label of ‘soft underbelly’ or ‘sieve border’ for irregular immigration in Europe, Italy tried to show its capabilities to manage immigration. At the same time, Italy complained about a lack of co-operation from other countries and highlighted that other countries had been responsible for practices of ‘returning the ball’ (alluding primarily to France, Switzerland, Austria and Germany). According to jurists and certain technical experts, Italy is deemed to have discouraged and even repressed irregular immigration as much as, if not more than, other countries.12 Furthermore, several other authors show that Italy did not promote integration and, hence, discouraged the settlement of immigrants. The actual management of immigration in Italy appears to be characterised by some rather harsh prohibitionist practices – to the point where several politicians and authorities called for a war against immigration – and by practices based on case-by-case solutions, which are adopted on the grounds of a multitude of decrees for the implementation of laws. This aspect that is hardly known and difficult to understand for foreigners is typical of Italy. Firstly, the implementation decrees can sometimes be opposed to the spirit of the law it has to implement; secondly, the decrees can heighten the degree of discretion – if not arbitrariness – of those responsible for applying it, namely the police and the administration of justice. Italian lawyers, who deal with immigration, as well as several police officers and magistrates, are constantly obsessed by the concern to follow the sometimes daily proliferation of directives from ministries that regulate this field.13 The Prodi Government, in power until April 2008, had drawn up a law on immigration, which has not even been discussed by the Parliament. In particular, the crucial issue concerns the blatant imbalance between norms and practices which are prohibitionist and repressive and those which promote integration. After the new victory of centre-right, it is impossible to imagine a change on the management of immigration.

12 Among others, see the ASGI journal and annual reports by the Ismu Foundation, available from , accessed 12 December 2008. 13  Firstly, the Interior Ministry, then those of Employment, Health, Solidarity and Foreign Affairs; to have an idea of the huge number of decrees and ministerial directives, see the archive in the website, available from , accessed 12 December 2008.

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The data which follow are essential for a measurement – albeit approximate – of the degree of insertion, integration and rejection that Italy has given to immigrants. According to the latest report by the OECD,14 in 2007 there were 4.5 million immigrants in Italy (that is 7.7 per cent of the population), whereas at the start of the 1970s there were not more than 150,000. According to data provided by the National Institute of Statistics (ISTAT) and Blangiardo (2008), at the beginning of 2007 there were around four million foreigners of whom 3,633,000 were regular and around 350,000 irregular. At the time of the latest decree concerning immigration quotas for 2008, the Interior Ministry received around 700,000 applications when the decree only envisaged 170,000 places. It is also quite notorious that almost all the applications concern immigrants who were already in Italy. The data concerning the number of immigrants who have resided in Italy, either regularly or irregularly, for some short or even relatively long periods, before going elsewhere is not publicly available. However, building on several studies, it is possible to state that this phenomenon – or even the turnover of immigrants in Italy – has been rather important considering the administrative vicissitudes regarding access to the residence permit and its renewal. Those are consequences of rather complicated rules, that are very restrictive and most often applied in accordance with discretional practices by the police offices of each province.15 During these last few years, it has been ascertained that there has been an increase in the length of residence, but only 47 per cent of the regular immigrants have lived in Italy for more than five years, a figure that decreases to 30.7 per cent out of the 4.5 million mentioned above. Significantly, the turnover has also been rather high among the nationalities that are deemed to be those most appreciated (for instance, Filipinos) because they are dissuaded by the excessively feeble elements to encourage them to become settled in Italy.16 The large majority of immigrants are aged between 25 and 64 years. Nine out of ten are in Italy for work or family reunion. The foreign minors born in Italy were 665,000. According to the national Ministry of Education, in 2011 there will be one million foreign pupils in Italian schools (in the school year 2007-2008 there

14 OECD (Organisation for Economic Co-Operation and Development) (2008), A profile of immigrant populations in the 21st century. Data on OECD countries (Paris: OECD). 15 There are numerous publications by jurists (lawyers and magistrates), as well as judgements by administrative courts, available in specialised websites; see, inter alia, , accessed 12 December 2008 and . Among the leading Italian authors in this field, we point out: Nascimbene, Bonetti, Vassallo Paleologo, Caputo. 16 Among others, see certain qualitative studies (Lainati 2000; Sinatti 2000), some surveys on relatively important samples carried out every year under the direction of Blangiardo for the Ismu Foundation (2000-2007), and Palidda (2006; 2008).

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were 570,000, representing the 6.4 per cent; the most numerous were Albanians, Romanians, Moroccans and Chinese). Around 55 per cent of foreigners are females, and numerous nationalities have large majorities made up of women (especially Ukrainians, Cape Verdians, Dominicans and Filipinos). The increase of around 700,000 people recorded between 2006 and 2007 is probably due to the fact that the Prodi Government may have limited the negative practices that had previously been a feature of administrative management by the police (issuing or renewal of residence permits). It goes without saying that the large majority of immigrants live in urban conurbations and hence in the provinces where there is a greater demand for labour (i.e. 60 per cent in the North, 26.7 per cent in the centre and 13.8 per cent in the South). By now, out of every ten who arrive, five are from European countries, four are African or Asian, and one is from South America. Romanians have become the most numerous, followed by Moroccans and Albanians. According to ISTAT, in 2006 there were 1,350,000 foreign workers, of whom the 40 per cent worked in industry and 55 per cent in the tertiary sector. Differently, the National Insurance Institute for Employment Injuries (INAIL) recorded 2,200,000 foreign workers, of whom 66 per cent were employed providing services to privates, 20 per cent in hotels and restaurants and 19 per cent in construction (which is the sector with highest rate of illegal employment). There were 140,000 self-employed foreign workers. According to the Organisation for Economic Cooperation and Development (OECD), immigrants in the overall Italian workforce account for 7 per cent. However, taking into account the ‘job starts’ their number rises to the 19.1 per cent. This disproportion reflects the precariousness of the jobs that they are most often offered, which forces them to change jobs more often than Italians. According to the ‘Confederation of Artisans and Small Enterprises of Mestre’ [Associazione Artigiani e Piccole Imprese Mestre] (CGIA), in 2008, the 10-13 per cent of the Italian GDP is produced by immigrants and the 62.3 per cent of immigrants over 15 years have a job. It has to be highlighted that the 17 per cent of lethal accidents at work affect immigrants, although many accidents of workers in the illegal employment sector do not feature in any official statistics. According to the OECD’s data, around 24 per cent of immigrants have a university degree (19.1 per cent for Italians), but most often they have a job that is far below that corresponding to their educational or professional diplomas. A study conducted by National Association of Italian Communities (ANCI) found that, since 2005, 2.3 per cent of social expenditure is destined to immigrants (particularly in the case of assistance for children, i.e. for large families). According to Eurostat, Italy is the third European country insofar as remittances in money by immigrants towards their countries of origin are concerned (€4.4 billion in 2006 – the leader is Spain followed by the UK). The destination countries of remittances from Italy are Romania, China, the Philippines, Morocco, Senegal, Albania, Bangladesh and Ecuador.

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As for consumption, a groundbreaking study claims that immigrants in Italy supposedly quickly adopt the ordinary habits of Italians (such as: a car, bank loan, designer products, restaurants and pizzerias, spaghetti, television, free press, cinema, clubs, football, lotteries, journeys, mobile phone, satellite dish, internet, bank account, pre-paid credit card), but 70 per cent live in rented accommodation whereas 13 per cent own their flats. Those levels of consumption are made possible by bank loans. It is worth noting that over the last few years there has been a veritable scramble by building societies and banks that offer immigrants loans to buy their apartment and, more rarely, to buy a car or create an independent business. Moreover, experts of ‘diversity management’ have started selling their services to pretty much any tenants for all sorts of activities following the slogan ‘immigrants are the business of the present and not just of the future’, a watchword that is well applied by companies that specialise in money transfers and communications. According to a recent study by banks, 1,410,000 immigrants have a bank account. There were over 300,000 foreigners who have acquired Italian nationality and were able to vote in the general elections on 13 April 2008, and a black man was elected as an MP for the first time. Over these last ten years, immigrants have been a majority among the newly registered members of trade unions, and they are starting to be trade unionists and delegates. As far as public opinion is concerned, it should be stressed that for approximately fifteen years, there has been a proliferation of surveys on immigration. Those were resulting from the fact that immigration, as well as insecurity, appear quite often in the discourses of many politicians (or people who aspire to join this category). The public opinion is split in half between those who welcome and those who are hostile to immigration. On the one hand, this does not prevent the majority of Italians from thinking that immigrants are necessary for the economy, for the needs of private individuals, and even that they should be given the right to vote in local elections. On the other hand, there is always a majority that considers immigration as the cause increasing crime and insecurity. For instance, 75 per cent of Italian people ask to clear away the camps of gipsy and the habitations of irregular immigrants.17 Moreover, this idea appears to be supported by the current practices – which receive considerable media coverage – of a number of officers in the police and bodies for the administration of justice (Quassoli 1999; 2002) (Palidda 2008; 2001; 2000b; 1999b; 1996). It is worth a mention that, in spite of a decrease in the number of serious crimes and the fact that the majority of immigrants are accused of criminal offences that are less serious than those attributed to Italians – or only due to the illegality of their presence – there has been an increase of 137.5 per cent in arrests and 40 per cent in the number of those imprisoned. However, whereas in 1990, 82 per 17  See the poll described by Ilvo Diamanti in ‘la Repubblica’ 9 June 2008; For an analysis of the social and media representations of immigration in Italy see the works by Maneri (1996; 1998; 2001; 2007) and Dal Lago (1996; 1999).

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cent of those arrested and 84.6 per cent of detainees were Italian, in 2007 Italians are less numerous than foreigners among those arrested, and represent the 65 per cent of detainees.18 This process of substitution of Italians with foreigners among the objects of the activity of the police and criminal justice system developed mainly during the 2001-2004 period, but it continued without interruption until now (September 2008).19 Beyond the criminalisation of immigrants that reflects widespread racism among one part of society and practised by several zealous citizens, entrepreneurs in the field of security, politicians, the media and agents of local and national institutions,20 we must note that a minority of immigrants (mostly 18  From 1994 to 2006, I analysed official statistics in this field, as well as the results of qualitative research, publishing a chapter in each Annual Report of the Ismu Foundation (quoted above). 19 The majority of foreigners are accused of minor offences, or even immigration crimes, and are often caught during round-ups that are systematically organised by police forces in places frequented by young immigrants (Palidda 2008). In 1990, for every 100 crimes identified by the police forces, 17.4 people were reported, and 2.6 were arrested; in 2006, the figure of 25.7 reported and 6 arrests was reached, i.e. a 50 per cent increase in people accused and 137.5 per cent in arrests. The rate of imprisonment of foreign males is six times higher than for Italians, although the crimes by the former are far less serious. From 1990 to 1999 (before Berlusconi) the worsening of the repressive approach of the centre-left had resulted in 77 per cent of the increase in individuals accused of crimes, 72 per cent of those arrested and 59.5 per cent of prisoners corresponding to Italians; later (with the Berlusconi government from 2001 to 2004), the increase in these three categories was mainly due to the higher number of immigrants affected (+116,635 accused and +45,698 arrested). In 2005, the number of Italians arrested approached that of 1990, and since April 2006, this trend continued with the Prodi Government. Thus, at the end of 2006, the figure of 153,936 arrests (having been 64,814 in 1990) was reached, of whom over 60 per cent were foreigners (they were 18 per cent in 1990). For every 100 Italians accused there are 16 arrests, whereas among foreigners, out of every 100 accused, there are 35 arrests. 62 per cent of Italians are in prison serving definitive sentences; on the contrary, 60 per cent of foreigners are in prison awaiting trial, even if they are charged of crimes entailing sentences of under three years (Mosconi and Sarzotti 2004; Barbieri and Raffo 2006). Furthermore, the average detention of foreigners lasts for 3 to 5 years, and for Italians, from 5 to 10 years. The Italian criminalisation of immigrants is similar to the case of Blacks and Latinos in the USA and that of the children of immigrants in France. Overall, foreigners are imprisoned six times more than Italians (Palidda 2008). 20 On 10 December 2006, the massacre of four people and one child was discovered in a house in a town in the Milan region. All the media – including large newspapers that declare to be anti-racist – immediately claimed in their titles that the main suspect was the young Tunisian husband of the woman and father of the child who were killed. On the following day, it surfaced that he was in Tunisia and that the massacre was carried out by two Italian neighbours who were rather maniacal and openly racist. On racism in the Italian media see Maneri (2006, 2001; 1998; 1996), Dal Lago (1999) and Rivera (2003). One of the most recent racist campaigns was unleashed following the murder of a woman by a mad Roma of Romanian nationality in Rome. The then mayor of the town, who has become the leader of the Democratic Party, headed this campaign by saying that it can no longer be

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young people) have quickly integrated into illegal activities (in particular in the street sale of drugs and counterfeit products, in thefts and small-scale handling of stolen goods). As for organised crime, we must recall that the Italian mafia has increasingly developed their affairs almost everywhere around the world, and particularly in countries that are at war or seriously de-structured, by striking up understandings with gangs comprising former secret service agents or policemen in these countries (particularly in Eastern European countries, but also in Africa and south-east Asia).21 A n Unfavourable Juncture for R egular and Peaceful Integration Differently from the ‘old’ immigrations, foreign immigration in Italy – similarly to other countries of Southern Europe – started as a result of the so-called ‘second great transformation’. This has been related to the demand of low-grade, temporary or even illegal jobs.22 The foreign workers – whose destiny is to have badly-paid and stigmatised jobs which are those abandoned by nationals – cannot even aspire to regularity or even stable and peaceful insertion. As happens in the USA, where accepted that tens of thousands of Romanians easily travel to Italy to commit crimes. In support of an extraordinary exasperation of the affair by the media, all the leading figures called for an urgent measure to enable the expulsion of around 200,000 Romanians. It was only the indignant reaction by the president of Romania and criticism from the European Community that limited the consequences of this wave of racism. In the end, tens of Romanians were expelled, but, more or less everywhere, gypsies suffered violent removals towards the sites that were most awful and distant from towns. Paradoxically, two days after this murder by a Roma, a former Italian soldier stood on his balcony shooting with a submachine gun, killing two people and wounding twelve others. The crime committed by the Roma was considered ‘intentional’ whereas that of the Italian ‘an act of madness’, which was covered only marginally by the media. To put it otherwise, everyone accepted the idea that an Italian may have a ‘right to madness’ or even to crime, while the ‘other’ deserves the most exemplary repression possible, which may be extended to all those similar to him. After ten years the persecution of gypsies as well as the blending of Roma and Romanian identities (although the majority of gypsies have Italian nationality) has grown worse, particularly in Rome and Milan. On several occasions, Roma camps have been attacked and burned. The police and local authorities, right or centre-left, have often showed themselves to be rather indulgent toward those racist acts. 21  The still ongoing financial war has driven secret services to become increasingly concerned with trafficking between transnational criminal organisations, and from different countries (Giannuli 2007; Palidda 2001; 2007a; 2008b). 22 Among the many testimonies, there are reports and studies on these aspects: IRES (2007), I Volti del Sommerso, available from , accessed 4 December 2008; and Medici Senza Frontiere (2008), Una Stagione all’Inferno, Report and Video on the Health, Life and Working Conditions of Foreigners Employed in Agriculture in the Regions of Southern Italy, available from , accessed 5 December 2008.

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the turnover and strong increase of irregular immigration have assured economic growth since the 1980s to date, in Italy – as well as in Southern Europe – unstable and hence non-integrated immigration has ensured the quick enrichment of small bosses and craftsmen in activities that fluctuate between legality and illegality, and the possibility of having servants at prices that are accessible even for families that are less well-off (as carers for elders, handicapped people or children). Although this may seem a paradox, those people who are the beneficiaries of immigration are most relentless in their discourse and even in mobilisations against immigration. The main reason beyond this hostility is that by denying immigrants the possibility of having access to regular insertion their condition will remain that of people without rights who are at the mercy of a ‘neo-colonial’ subordination. In fact, in the Italian situation any small boss and private individual, and even – indirectly, through subcontracting – the public sector, have a new possibility to employ a servant (Scrinzi 2006). In several cases, these immigrants are treated like any national worker but, rather often, they are subjugated as people without rights.23 The fate of foreign immigrants, which is partly similar to that of immigrants from less developed areas of the same country in the past, has ended up also affecting a portion of Italians: the almost seven million people who are currently at the mercy of underground or semi-regular economies that ensure neo-liberal profits. Not by chance, on the contrary, the employers who need a stable workforce support regular integration and, sometimes, help immigrants to have secure housing, as this is the most important problem if one seeks to settle. Looking more closely at some of the most significant aspects of the actual reality of immigration in Italy it is possible to highlights the following ten points: 1. Almost all of the regular immigrants present in Italy have previously been ‘illegal’. Until the mid 1990s, immigrants – at least those who had been fortunate enough not to die during their migration trips – entered Italy illegally or with a temporary regular status (with a tourist permit). Until they had the opportunity to become ‘regularised’ through regularisation campaigns [sanatorie], they have always paid dearly for a residence permit (i.e. the costs of the procedure and especially the contributions that employers have to pay for the workers and, on the contrary, almost always impose their payment to the immigrant workers by threatening not to sign the regularisation papers). A small army of ‘white-collar crooks’ – police officers, lawyers, employees in local communities, and others – has specialised in the business of regularisation, family reunion, and also in the

23  Until the 1960s, some poor families from rural areas gave up their daughters and sons to the more or less well-off in the town or to petty bosses as ‘day and night’ servants. Sometimes, these were adopted as step-children and would be treated quite well; but in a majority of cases, they remained servants. This phenomenon is still common in various countries and even within the EU.

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2.

3.

4.

5.

6.

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renewal of permits.24 This has happened firstly as a result of three elements that characterise Italian legislation in this field:25 a) immigrants do not have guaranteed rights and must always apply (and pay dearly) to obtain them; b) the entire management of immigration is in the hands of the police, which exercises its powers in a discretional or arbitrary way (this is proved by numerous cases in which police officers have been charged for abuses, corruption and criminal association); c) the discretion of the police, which is beneficial only for a minority of immigrants, is heightened by norms and sub-norms (like the ‘circular orders’ issued on a daily basis by the Ministry to local police offices) that are increasingly restrictive (to the point of harassment) and also by a duration of the validity of permits that remains extremely limited.26 The renewal of permits itself largely depends on the discretion of the foreigners’ offices in each police prefecture. The blatant reproduction of irregularity has always been an effect of the subordination of access and renewal of the residence permit to stable jobs accommodation, whereas most often immigrants, a considerable number of Italians, only find temporary or even illegal jobs. To put it differently, immigrants are often victims of a strong exploitation, but they are even more victimised when they cannot renew their permits and they are rejected to the rank of people without rights. Since the 1998 Law, and more so since it was made stricter by the 2002 law, the number of irregulars has merely been reproduced in increasing numbers, to the point where the centre-right Government itself was obliged to undertake the most important regularisation process in Europe (with around 700,000 people regularised). However, the reproduction of irregularity has not been stopped at all. As it was written in the Ministry of Interior reports of 2005, 2006 and 2007, between 75 and 65 per cent of irregulars arrested by the police forces are overstayers, that is, foreigners who arrived regularly, who have had a permit which they have not been in a position to renew. This is not because they have committed any crimes, but simply because the criteria and ‘conditions’ required to do so have become even more difficult to attain. Since the end of the 1980s, the majority of regular jobs (mostly for Italians, but also for foreigners) are for very limited periods – or even temporary employment – and in places where access to accommodation is very

24  Judicial proceedings concerning this business are now numerous in many cities. 25  Among the most qualified jurists in this field, see for instance Nascimbene, Bonetti, Caputo, Vassallo Paleologo and Santoro. (See also the websites: <www.asgi.it>, accessed 12 January 2009; , accessed 12 January 2009; <www. magistraturademocratica.it>, accessed 12 January 2009). 26 The similarities between these aspects and those observed in the past concerning internal and international migrations in almost all countries are striking (Palidda 2008).

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difficult for Italians on low incomes. Such a context has merely given rise to permits that are for very short terms (three months, six months, one year, or a maximum of two years). Moreover, renewal always takes an excessively long time, during which the migrant circulates with a small receipt that does not have any value as an identity document. De facto, thousands of people remain in a sort of limbo without being able to sign a flat rental contract, nor a new employment contract, nor to travel.27 This is how the hardship of illegal jobs and makeshift accommodation begins, of slums rented at high prices by the owners of ‘sleeping places’ or the shacks hidden in the no-man’s lands in urban conglomerations. 7. With the Prodi Government and even more with Berlusconi, the reproduction of illegality worsened for a number of reasons. Firstly, Berlusconi’s Government made it possible to believe that underground economies could have survived freely (as well as tax fraud, breaches of rules in construction, of those for environmental protection and security in workplaces). Furthermore, since then immigrants arrested in an irregular situation are ‘notified’ that they must leave the country within a 15-day period; if they have not when they are arrested again, they go to prison, and after having served their sentence as criminals, they are transferred to a detention centre and they will subsequently be expelled without ever being allowed to return to a European country.28 According to several jurists, the Bossi-Fini Law29 has merely worsened the racist, prohibitionist and punitive character of the 1998 Law.30 The measures adopted by the centre-right increased the discretional powers of the police, which is increasingly prodded by the anti-immigrant pressure exerted by members of the Government, local authorities and a part of public opinion. The years under centre-right power (from 2001 to 2006 and even more after June 2008) were marked by a continuing persecution of gypsies and immigrants in general. 8. As pointed out by the Italian Court of Auditors [Corte dei Conti], in 2004 and 2005 over 80 per cent of the budget for the immigration sector was destined to ‘countering’ illegal immigration and even the remaining 20 per 27 The turnover is high: in 1991, immigrants with over 5 years on a regular permit were 222,288, in 2001 they were 693,450 (46 per cent of the regulars, but immigration in Italy started in 1970!). From 1992 to 2002, the police have issued 1,993,000 permits to stay; but 1,139,356 permits have not been renewed, while in that same year the valid permits were 1,448,000 (thus comprising valid permits from previous years). The high discretional power of the police regarding the renewal of permits produces a general situation that is precarious. In fact, each year, 10-15 per cent of regular immigrants become irregular (i.e. 200,000-300,000 persons); to these, overstayers must be added (i.e. 150,000-250,000). 28  See also, Culture & Conflits: no. 23, no. 26/27, no. 31/32, no. 49/50; Politix no. 1/2005; Conflitti Globali no. 3/2006 and no. 4/2006. 29  See above footnote no. 10. 30 Among others, see several articles published in the journals of ASGI and MD (Bonetti, Caputo, Vassallo-Paleologo).

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cent was used for projects that, in reality, supported prohibitionist practices (for example, the so-called ‘reinsertion’ of expellees in their countries of origin).31 This imbalance between the resources allocated for integration and those destined to the fight against illegal immigration is added to by a propensity to define and even practice the latter as a ‘war’.32 9. The number of migrants who have died while attempting to reach Italy by sea or land routes has risen ten-fold, reaching a figure of nearly 15,000 over the last fifteen years.33 This represents the first result of prohibitionist approach, which is the implementation of the ‘war’ against migrations. The logic behind this ‘war’ is only to assure high profits to companies involved in the ‘security business’ and to many NGOs.34 10. Episodes of discrimination, racism and violence by zealous citizens, by taskmasters in illegal employment, and by certain police officers have 31 According to the Italian Court of Auditors, in 2002 the total costs for the immigration sector (of the Italian State) were €65,469,100 for the ‘activities to counter’ it and €63,404,004 for ‘support actions’. In 2003, €164,794,066 for the ‘activities to counter’ it and €38,617,768 for ‘support actions’ (81 and 19-20 per cent respectively). In 2004, in the absence of an ‘emergency’, the costs for ‘countering’ immigration was €115,467,102 (75 per cent) and the costs for ‘support’ were €29,078,933 (25 per cent). But these costs do not include the expenditure by the police. Moreover, the resources for the entire immigration sector are drawn from the wages of immigrants themselves. Part of the spending on support measures is also used for countering activities (private enterprises or embedded NGOs selecting migrants, managing the imprisonment/expulsions of children and prostitutes, etc.). In this context (the same since the beginning of immigration), it is evident that Italy does not facilitate the regular and peaceful integration of immigrants. All these aspects are analysed by Palidda (2005b; 2008). Concerning the French case, see De Blic (2007). 32 As Ceyhan (2004) wrote: ‘the so-called problem of security borders dates back to the 1980s, with the war on drugs linked to the fight against illegal immigration and transnational crime. In this context, the border between Mexico and the USA was transformed into a laboratory of more sophisticated surveillance and control technologies, through the use of 54 security agencies (including military personnel in a Joint Task Force JTF6), and the famous invisible “Predator” aeroplane (used in Iraq in 1990)’. On the ‘war against migrations’ in relation to the war against mafias and terrorisms, see also Palidda (1996; 1998b). 33  See , accessed 12 December 2008. 34  In his communication to the Senate on 29 June 2005, the Italian Interior Minister said: ‘In the last three years, the total of people expelled and rejected at borders is of 88,500 for 2002, 65,100 in 2003 and 59,900 in 2004. In 2005, until 15 June, the people expelled have been 25,600’. (see ). We observe that the immigrants effectively expelled have been 53 per cent of the total number of foreigners stopped by the police in an irregular situation in 2000, 58 per cent in 2001, 59 per cent in 2002, 61 per cent in 2003 and 57 per cent in 2004. According to the reply of the Secretary of the Interior Minister to a question by MP Del Mastro delle Vedove: ‘In 2004, 72 charter flights have been arranged for the expulsion of 4,900 foreigners. The costs incurred have been of €13,933,326.97. The costs of the police

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multiplied, whereas the impunity of the authors of these acts has often been assured. In the same way, racist discourses voiced by opinion leaders, entrepreneurs in the field of security, politicians and even ministers of the centre-right (occasionally imitated by figures from the centre-left) have increased (see the reports of ECRI, Amnesty International, Migreurop and the UN rapporteur on the situation of human rights in Italy). Some Rather Uncertain Prospects During the 2006-2008 centre-left Government, despite the promises of the election period, the vicissitudes and violence suffered by gypsies and immigrants did not cease to worsen. The law adopted by the Berlusconi Government in 2002 was not repealed and the renewal of permits continued to be a hardship and is becoming increasingly expensive. Moreover, Italy has not yet adopted a law on humanitarian and political asylum that complies with European norms. As a consequence, asylum permits are very rare35 and often asylum seekers are classified as impostors who deserve contempt and expulsion.36 As was admitted by the former Minister Ferrero, in the financial law (budget) approved by the Prodi Government at the end of 2006, out of ‘155 millions earmarked for “immigrants and refugees” 122 were granted for the maintenance of detention centres for immigrants [Centri di Permanenza Temporanea (CPT)]’.37 Only in the financial law of 2007 did staff engaged in these expulsions have been of €3,741,666.71’. Therefore, the cost for the expulsion of each foreigner expelled, has been of €3,607! (without considering the cost of his/her previous detention!). For the recent situation, see the De Mistura Commission report (2007). 35 Towards immigrants, most of the media swing between a paternalistic attitude that is reminiscent of colonialism and some turns that are squarely racist, any time that an isolated event occurs, even without any evidence that gypsies or immigrants are involved. To offer just a few figures: while in 2003 there were 960,000 refugees in Germany and 276,500 in the UK, there were only 12,386 in Italy (see ICS (2005), Rifugiati in Italia: la protezione negata. Primo rapporto sul diritto di asilo in Italia (Milan: Feltrinelli) and ). 36 Apart from the works by Valluy, refer to the reports by the ICS (2005); Amnesty International annual reports (2007; 2006; 2005) (Turin: EGA); and Medici Senza Frontiere Italy (2006; 2008). 37  Fourteen presidents of Italian regions and a number of personalities and NGOs have demanded the definitive closure of these centres due to their illegal nature, insofar as they are special prisons for people who have not committed any crime and centres for the business of embedded NGOs (among those, one is headed by a Minister’s brother, who also manages centres in Lampedusa and Modena; moreover, a priest managing one of these centres has been imprisoned for torturing ‘his’ detainees). In his hearing before the Schengen Committee in December 2005, the Director of the Central Police Office for Migrations reported that in 2005, there were 500 minors among the people imprisoned in Lampedusa. In his report before this Committee, the prefect Pansa stated that Italy finances the construction of five centres in Libya (see:
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Ferrero manage to make 150 million Euros available – over three years – for the inclusion of immigrants.38 The law that had been promised by the centre-left in its programme was never discussed in Parliament and the Bossi-Fini Law is still regulating immigration matters. However, the results of the April 2008 elections explicitly show that a large majority of voters has given its consent to some positions that are hostile to immigration. The main winner of these elections, the Northern League, conducted a campaign focused on an open hostility to any granting of rights to immigrants, who are accused of being responsible for insecurity and criminality, with tones that are often considered racist by the moderate Italian and European press. According to Simon (2007), also in Italy the neo-conservatives governing trough the fear of the criminality assigned to the gipsy and the immigrants. Thus, we see how the prospects of stable and pacific integration of immigrants in Italy will darken, although the importance of the phenomenon remains nonetheless unquestionable. Conclusion The process of insertion, integration and rejection of immigrants in Italy has been marked, on the one hand, by a sometimes exaggerated interpretation of the strictest points of the guidelines adopted by the EU concerning the ‘countering’ of irregular immigration and, on the other hand, by the ignorance of recommendations that are more favourable to integration. In fact, while the costs and commitment in seeking to demonstrate Italy’s effectiveness in this ‘countering’ activity have been considerable – certainly no less than other countries with a similar size – one is forced to note that all the aspects concerning peaceful and regular integration have remained uncertain. There is no certainty about the law due to an excessive discretional power for the police in each province in the harassment of irregulars, in the repression against suspects, in the issuing and renewal of permits, in access to annual quotas, in the granting of family reunion, in access to the residence card. There is no effective protection for migrants (as is also true of nationals) against asp?pagina=/_bicamerali/leg14/schengen/home.htm>, accessed 11 January 2009). Since their creation, these centres have been denounced as sites where fundamental rights are violated and torture sometimes occurs. In October 2005, an Italian journalist published a report in which he told what he saw and experienced in the detention centre in Lampedusa, where he was detained after having been arrested because he was passing himself off as an ‘illegal’ (see Gatti 2007); On detention centres in Italy, see the report by the inter-ministerial commission in De Mistura (2007), Rahola (2004); Conflitti Globali no. 4/2007, Cuttitta (2005; 2006; 2007; 2008a), Andrijasevic (2006a; 2006b). 38 The same law envisaged over a billion for military missions abroad, and a 23 per cent increase in the budget allocated for national defence (with very important investments in weapons systems and strategic-type weapons that are ruled out by the Italian constitutional charter) (Palidda 2007).

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overexploitation in underground economies, against the usurers in housing, against discrimination, racism and violence. There is no law on humanitarian and political asylum in accordance with European norms. There is no correction of the mechanisms for the reproduction of irregularity and precariousness of an immigration that is often condemned to instability. There are no voting rights, even passive, for immigrants in local elections. It may thus be said that, on the one hand, the influence of European guidelines on practices for the management of immigration in Italy has ended up having a rather negative effect, while, on the other hand, it has been nonexistent. It remains to be seen whether immigration is merely a matter that is essentially about policing for the EU, rather than one of the crucial issues that simultaneously concerns prosperity and posterity within respect for the rights of all human beings and, hence, of the democratic legal order. Upon taking office on 15 May 2008, the new Berlusconi Government promised foremost very repressive measures, that is: the introduction of the offence of irregular presence of foreigners in Italian territory who could be punished with several years of imprisonment; the restoration of border controls for certain nationalities, particularly the Romanian; the extension of the detention time in detention camps up to 18 months; the introduction of a faster procedure for expulsion; and the increment of the penalties for all offences usually attributed to foreigners. Alongside the announcement of these measures (accompanied by some media exposure of police’s blitz) other norms tend to repeal the family reunion and the precarious status of the regulars by the fact that the renewal will become even more difficult. All this has led many observers (including the head of the national Catholic church for Migration) to say that in so doing the Government will accentuate the reproduction of irregulars in an authoritarian climate. In other words, Italy is the country least favourable for a stable and peaceful integration of immigrants. The most recent estimates indicate that among the main consequences of the practices of the Berlusconi Government, there are increasing shadow economies and irregular immigration. Those phenomena are inserted in a frame of hostility, discrimination and racism that has provoked, inter alia, the growth of the number of foreign in the prisons and in the detention centres. The current Italian conjuncture is not surprising if we consider that the history of the economic development of this country had been nurtured before by internal migration and emigration abroad of millions of ‘terroni’ (considered as uncivil people), and after thirty five years by the foreign immigrants treated as ‘colonial workers’.

Bibliography

Adam, C. and Devillard, A. (2008), Comparative study of the laws in the 27 EU member states for legal migration – including an assessment of the conditions and formalities imposed by each member state for newcomers, European Parliament study, Policy Department C: Citizens’ rights and constitutional affairs, Brussels. Ágh, A. (ed.) (2004), Post-accession in east central Europe. The emergence of the EU 25 (Budapest: Hungarian Centre for Democracy Studies). Aja, E. and Arango, J. (2006), Veinte años de inmigración en España: Perspectivas jurídicas y sociológicas (1985-2004) (Barcelona: Fundació CIDOB). Alegre, S. (2003), ‘Human rights and the future of extradition in the European Union: Implications of recent case law in the United Kingdom, France and Spain’, ERA Forum, vol. 4 no. 4, 63-9. Aleinikoff, T.A. and Klusmeyer, D. (2002), Citizenship policies for an age of migration (Washington D.C.: Carnegie Endowment for International Peace). Aleinikoff, T.A. and Klusmeyer, D. (2001), ‘Plural nationality: Facing the future in a migratory world’ in Aleinikoff, T.A. and Klusmeyer, D. (eds), Citizenship today: Global perspectives and practices (Washington D.C.: Carnegie Endowment for International Peace), pp. 63-88. Anastasia, S. and Gonnella, P. (eds) (2002), Inchiesta sulle carceri italiane (Rome: Carocci). Anderson, B. (1991), Imagined communities: reflections on the origin and spread of nationalism (London: Verso). Anderson, M. and Apap, J. (2002), Striking a balance between freedom, security and justice in an enlarged European Union, Centre for European Policy Studies (Brussels: CEPS). Andrijasevic, R. (2006), How to balance rights and responsibilities on asylum at the EU’s southern border of Italy and Libya (Central European University, Centre for Policy Studies, Open Society Institute). Andrijasevic, R. (2006), ‘Tra Lampedusa e la Libia’, Conflitti Globali, no. 4, 145-56. Apap, J. and Carrera, S. (2003), Towards a proactive immigration policy for the EU?, CEPS Working Document no. 198, Centre for European Policy Studies (Brussels: CEPS). Arango, J. (2000), ‘Becoming a country of immigration at the end of the twentieth century: The case of Spain’ in King, R. et al. (eds), Eldorado or fortress? Migration in southern Europe (New York: St. Martin’s Press).

374

Illiberal Liberal States

Arnoldy, B. (2006), ‘US to unveil new citizenship test’, The Christian Science Monitor, 17 November, available from , accessed 18 June 2008. Artz, M. and Geyer, F. (2006), ‘Vom “höchsten deutschen Gericht” und anderer Fährnis auf dem Weg zum (guten) Deutschen hessischen Vorbilds’, NJW, 1107-9. Bade, K. and Bommes, M. (2001), ‘Migration und politische kultur im nichtEinwanderungsland’ in Bade, K.J. and Münz, R. (eds), Migrationsreport 2000 (Frankfurt/Main: Campus), pp. 163-204. Bader, V. (2003), ‘Religious diversity and democratic institutional pluralism’, Political Theory, vol. 31 no. 2, 265-94. Balibar, E. (2004), We, the people of Europe, reflections on transnational citizenship (Princeton, NJ: Princeton University Press). Balibar, E. (2001), Nous, citoyens d’Europe? Les Frontiers, L’État, le peuple (Paris: La D’couvert). Balzacq T. and Carrera, S. (2006), ‘The Hague Programme: The long road to freedom, security and justice’ in Balzacq, T. and Carrera, S. (eds), Security versus freedom: A challenge for Europe’s future (Aldershot: Ashgate), pp. 134. Balzacq, T. and Carrera, S. (2005), Migration, borders and asylum: Trends and vulnerabilities in EU policy, Centre for European Policy Studies (Brussels: CEPS). Bar-Yaacov, N. (1961), Dual nationality (London: Stevens & Sons Limited). Bast, J. (2006), ‘The legal position of migrants – German report’, report presented to the XVIIth International Congress on comparative law, Utrecht, 16-22 July 2006. Bauböck, R. (2006), ‘Who are the citizens of Europe?’, Eurozine Online Journal, available from , accessed 10 December 2008. Bauböck, R. (2003), ‘Reinventing urban citizenship’, Citizenship Studies, vol. 7 no. 2, 139-60. Bauböck, R. (1998), International migration and liberal democracies: The challenge of integration, 3rd International Metropolis Conference, Zichron Yaakov, Israel. Bauböck, R. (1997), ‘Citizenship and national identities in the European Union’, Jean Monnet Working Papers, no. 4 (Cambridge, MA: Harvard Law School). Bauböck, R. (1994), From Aliens to Citizens (Aldershot: Avebury). Bauböck, R. (1994), Transnational citizenship: Membership and rights in international migration (Aldershot: Edward Elgar Publishing). Bauböck, R., Perchinig, B., and Sievers, W. (eds) (2007), Citizenship policies in the new Europe (Amsterdam: University Press). Bauböck, R., Ersboll E., Groenendijk, K. and Waldrauch, H. (eds) (2006a), Acquisition and loss of nationality, Volume I: Comparative analysis; policies and trends in 15 European countries (Amsterdam: Amsterdam University Press).

Bibliography

375

Bauböck, R. et al. (2006b), ‘Migrants’ citizenship: Legal status, rights and political participation’ in Penninx, R. et al. (eds), The dynamics of international migration and settlement in Europe: A state of the art, IMISCOE Joint Studies (Amsterdam: Amsterdam University Press), pp. 65-98. Béaud, O. (1992), ‘Le droit de vote des étrangers: l’apport de la jurisprudence constitutionnelle allemande à une théorie du droit de suffrage’, Revue française de Droit administratif, pp. 409-24. Becker, H. (1963), Outsiders, studies in the sociology of deviance (New York: The Free Press). Bell, M. (2007), ‘Civic citizenship and migrant integration’, European Public Law, vol. 13 no. 2, 311-23. Bell, M. (2002), Anti-discrimination law and the European Union (New York: Oxford University Press). Bellamy, R. (2004), ‘Introduction: Modern citizenship’ in Bellamy, R. et al. (eds), Lineages of European citizenship; Rights, belonging and participation in Eleven Nation-States (Basingstoke: Palgrave Macmillan), pp. 1-21. Bellamy, R. and Warleigh, A. (eds) (2001), Citizenship and governance in the European Union (London: Continuum). Bencini, C. and Cerretelli, S. (2005), Racism in Italy, ENAR Shadow Report 2005, available from , accessed 10 December 2008. Benhabib, S. (2004), The rights of others: Aliens, residents and citizens (Cambridge: Cambridge University Press). Benner, E. (2004), ‘Is there a core national doctrine?’ in Kovács, M. and Lom, P. (eds), Studies on Nationalism (Budapest: Central European University), pp. 61-78. Bernitz, U. and Nergelius, J. (2000), General principles of European community law, European monographs (The Hague: Kluwer Law International). Bertossi, C. (2004), ‘Politics and policies of French citizenship, ethnic minorities and the European agenda’ in Górny, A. and Ruspini, P. (eds), Migration in the new Europe: East-west revisited (Basingstoke: Palgrave Macmillan). Bertossi, C. (2002), Dilemme de la citoyenneté-intégration/anti-discrimination en Europe: le cas français, Working Paper présenté lors de la rencontre du CEDEM du 18 avril 2002, ULg, Liège, Belgique. Bertozzi, S. (2007), Integration: An ever closer-challenge, CEPS Working Document no. 258, Centre for European Policy Studies (Brussels: CEPS). Besselink, L.F.M. (2008), ‘Inburgeringsplichten voor Nederlanders: de administratieve verwerking van een ongrondwettige inburgeringsmaatregel’ in Addink et al. (eds), Grensverleggend Bestuursrecht (Alphen aan den Rijn: Kluwer), 137-58. Besselink, L.F.M. (2006a), Expulsion and integration: Erecting internal borders within the Kingdom of the Netherlands, CHALLENGE paper, electronic publication available from , accessed 18 December 2008.

376

Illiberal Liberal States

Besselink, L.F.M. (2006b), ‘De binnengrenzen van het koninkrijk, of: Het voorontwerp “Verbanning en inburgering”’ in TAR Justicia – Tijdschrift voor Antilliaans Recht, no. 3, 70-84. Besselink, L.F.M. (2006c), ‘Unequal citizenship: Integration measures and equality’ in Carrera, S. (ed.), The Nexus between immigration, integration and citizenship in the EU, CHALLENGE collective conference volume, Centre for European Policy Studies (CEPS: Brussels), pp. 14-19. Besselink, L.F.M. (2005), Inburgering, gelijke behandeling en verblijfsrecht van vreemdelingen in Nederland, Staats-en Bestuursrecht, Faculteit Rechtsgeleerdheid, University of Utrecht, available from , accessed 18 December 2008. Bešter, R. (2003), ‘Immigrant Integration Policies’ in Pajnik, M. and Zavratnik Zimic, S. (eds), Migracije – globalizacija – Evropska unija / Migration – globalisation – European Union, (Ljubljana: Mirovni inštitut), pp. 257-99. Bevilacqua, P. et al. (eds) (2000), Storia dell’emigrazione italiana. Partenze (Rome: Donzelli). Bigo, D. (2006), ‘Liberty, whose liberty? The Hague Programme and the conception of freedom’ in Balzacq, T. and Carrera, S. (eds), Security versus freedom? A challenge for Europe’s future (Aldershot: Ashgate), pp. 35-44. Bigo D. (2005), ‘From foreigners to abnormal aliens: How the faces of the enemy have changed following September the 11th with the process of policing beyond borders’ in Selm, Van J. and Guild, E. (eds), International migration and security: Immigrants as an asset or threat? (London: Routledge), pp. 64-81. Bigo, B. (2002), ‘Security and immigration: Toward a critique of the govenmentality of unease’, Alternatives: Global, Local, Political, vol. 27, Special Issue, February 2002, pp. 63-92. Bigo, D. and Guild, E. (2005), ‘Policing at a distance: Schengen visa policies’ in Bigo, D. and Guild, E. (eds), Controlling frontiers (Aldershot: Ashgate), pp. 233-63. Bigo, D. and Guild, E. (2003), ‘La Mise à l’écart des étrangers: La logique du visa Schengen’, Cultures & Conflits (Paris: L’Harmattan). Bigo, D., Carrera, S. and Guild, E. (2008), What future for the area of freedom, security and justice? Recommendations on EU migration and border policies in a globalizing world, CEPS Policy Brief no. 156, March 2008, Centre for European Policy Studies, (Brussels: CEPS). Bigo, D. Carrera, S., Challenge, Guild, E. and Walker, R.J. (2007), The changing landscape of European liberty and security: Mid-Term report on the results of the CHALLENGE project, CHALLENGE research paper no. 4, February 2007, Centre for European Policy Studies (Brussels: CEPS). Bigo, D. and Tsoukala, A. (2006), ‘Illiberal practices of liberal regimes: The (in)security game’, Cultures & Conflits (Paris: L’Harmattan). Biles, J., Winnemore, L., Michalowski, I. and Rodríguez-García, D. (2007), Policies and models of incorporation. A transatlantic perspective, documentos CIDOB migraciones, no. 12 (Barcelona: Fundació CIDOB).

Bibliography

377

Birnbaum, P. (1998), La France imaginée: Déclin des rêves unitaires? (Paris: Gallimard). Blanc-Chaléard, M.C. (2006), ‘Old and new migrants in France: Italians and Algerians’, in Lucassen, L. et al. (eds), Paths of integration: Migrants in western Europe (1880-2004), IMISCOE Research, (Amsterdam: Amsterdam University Press), pp. 46-62. Blangiardo, G. (2008), ‘Valutazioni quantitative e riflessioni sulla presenza straniera in Italia’, in Fondazione Ismu (ed.), Tredicesimo Rapporto sulle Migrazioni (Milan: Ismu-Franco Angeli), pp. 33-48. Bloemard, I. (2004), ‘Who claims dual citizenship? The limits of postnationalism, the possibilities of transnationalism and the persistence of traditional citizenship’, The International Migration Review, vol. 38 no. 2, 389-426. Böcker, A. and Groenendijk, K. (2004), ‘Einwanderungs- und integrationsland niederlande. Tolerant, liberal und offen?’ in Wielenga F. and Taute, I. (eds), Länderbericht Niederlande (Münster: Agenda), pp. 303-61. Böcker, A., Böcker, A.G.M. and de Hart, B. (2005), ‘De toegang tot het Nederlanderschap. Effecten van twintig jaar beleidswijzigingen’, Nederlands Juristenblad, vol. 80 no. 3, 157-64. Boelaert-Souminen, S. (2005), ‘Non-EU nationals and Council Directive 2003/109/ EC on the status of third-country nationals who are long-term residents: Five paces forward and possibly three paces back’, Common Market Law Review, vol. 42 no. 4, 1011-52. Boeles, P. (2006), ‘What rights have migrating third country nationals?’ in de Zwaan, J.W. and Goudappel, F. (eds), Freedom, security and justice in the European Union: Implementation of the Hague Programme (The Hague: T.M.C. Asser Press), pp. 151-63. Boeles, P. (2005), ‘Editorial: Fair and effective immigration procedures in Europe?’, European Journal of Migration and Law, vol. 7 no. 3, 213-18. Boeles, P. (2001), ‘Directive on family reunification: Are the dilemmas resolved?’, European Journal of Migration and Law, vol. 3, 61-71. Boeles, P. (2001), ‘Introduction: Freedom, security and justice for all’ in Guild, E. and Harlow, C. (eds), Implementing Amsterdam: Immigration and asylum rights in EC law (Antwerp: Hart Publishing), pp. 1-12. Boeles, P. and Bruins, M. (2007), ‘Case Reports of the European Court of Human Rights and the Human Rights Committee’, European Journal of Migration and Law, vol. 9 no. 2, 253-76. Bogusz, B. (2004), ‘Modes of governance for an EU immigration policy – What role for the Open Method of Coordination’ in Bogusz, B. et al. (eds), Irregular migration and human rights: Theoretical, European and international perspectives (Leiden: Martinus Nihjoff). Bommes, M. (2007), ‘Integration durch sprache als politisches konzept’ in Davy, U. and Weber, A. (eds), Paradigmenwechsel in einwanderungsfragen? Überlegungen zum neuen zuwanderungsgesetz (Baden-Baden: Nomos Verlag), pp. 59-86.

378

Illiberal Liberal States

Bommes, M. (1999), Migration und nationaler Wohlfahrtsstaat. Ein differenzierungstheoretischer (Westdeutscher: Verlag). Bonetti, P. (2004), ‘I profili generali della normativa italiana sugli stranieri dal 1998’ in Nascimbene, B. (ed.), Diritto degli stranieri (Padova: Cedam), pp. 4-81. Borrel, C. (2006), ‘Enquêtes annuelles de recensement 2004 et 2005: Près de 5 million d’immigrés à la mide de 2004, Insee, cellule statistiques et études sur immigration’, Insee Première, no. 1098, August 2006. Boswell, C. (2001), Spreading the costs of asylum: A critical analysis of dispersal policies in the UK and Germany, Anglo-German Foundation Report no. 1314, London and Berlin, June 2001. Boulouis, B.J. (1993), Droit institutionnel des Communautés Européenes, Fourth Edition, (Paris: Montcherstein). Boushey, G. and Luedtke, A. (2006), ‘Fiscal federalism and the politics of immigration: Centralized and decentralized immigration policies in Canada and the United States’, Journal of Comparative Policy Analysis, vol. 8 no. 3, 207-24. Brennan, F. (2003), ‘The race Directive: Recycling racial inequality’, Cambridge Yearbook of European Legal Studies, vol. 5, no. 311-31 Brink, M., Does, M., Odé, A. and Tromp, E. (2002), Verscheidenheid in integratie. Evaluatie van de effectiviteit van de WIN (Amsterdam: Regioplan). Brinkmann, G. (2006), ‘Soziale Rechte von Unionsbürgern nach der Unionsbürgerrichtlinie’, EuroAS, 168. Brinkmann, G. (2002), ‘Family reunification of third-country nationals: Access of family members to social protection benefits’, European Journal of Migration and Law, vol. 4 no. 3, 291-308. Brinkmann, G. (2001), ‘Family reunion, third country nationals and the Community’s new powers’ in Guild, E. and Harlow, C. (eds), Implementing Amsterdam: Immigration and asylum rights in EC Law (Oxford: Hart Publishing), pp. 241-66. Brouwer, E. (2008), Digital borders and real rights: Effective remedies for thirdcountry nationals in the Schengen Information System (Leiden: Martinus Nijhoff Publishers). Brubaker, R. (2004), ‘Marcel Mauss on nationhood: Objectivism and its limits’ in Kovács, M. and Lom, P. (eds), Studies on Nationalism (Budapest: Central European University), pp. 105-14. Brubaker, R. (2003), ‘The return of assimilation? Changing perspectives on immigration and its sequels in France, Germany and the United States’ in Joppke, C. and Morawska, E. (eds), Toward assimilation and citizenship: Immigrants in liberal nation-states (Basingstoke: Palgrave Macmillan), pp. 39-58. Brubaker, R. (2001), ‘The return of assimilation? Changing perspectives on immigration and its sequels in France, Germany, and the United States’, Ethnic and Racial Studies, vol. 24 no. 4, 531-48.

Bibliography

379

Brubaker, R. (1992), Citizenship and nationhood in France and Germany (Cambridge, MA: Harvard University Press). Burca, G.D and Craig P. (2003), EU Law, text, cases and materials, Third Edition (USA: Oxford University Press). Cachón, L. (2007), ‘Diez notas sobre la inmigración en España 2006’, Vanguardia dossier: Inmigrantes, el continente móvil, no. 22 (Barcelona: La Vanguardia Ediciones), pp. 68-74. Calavita, K. (2005), Immigrants at the margins: Law, race, and exclusion in Southern Europe (Cambridge: Cambridge University Press). Campani, G. (2007), Migration and integration in Italy: A complex and moving landscape, available from (under country profiles), accessed 10 December 2008. Caputo A. (2007), ‘Quale tutela giurisdizionale per i lavoratori immigrati?’, Diritto, Immigrazione e Cittadinanza, no. 4, 29-35. Carens, J. (1989), ‘Membership and morality’ in Brubaker, R. (ed.), Immigration and the politics of citizenship in Europe and North America (Lanham and London: University Press of America). Carrera, S. (2009), In Search of the perfect citizen? The intersection between integration, immigration and nationality in the EU (Leiden: Martinus Nijhoff Publishers). Carrera, S. (2008), Benchmarking integration in the EU: Analyzing the debate on integration indicators and moving it forward, Study Commissioned by the Bertelsmann Stiftung Foundation (Berlin: Bertelsmann Stiftung Foundation). Carrera, S. (2006a), A comparison of integration programmes in the EU: Trends and weaknesses, CHALLENGE research paper no. 1, Centre for European Policy Studies, March 2006 (Brussels: CEPS). Carrera, S. (2006b), A typology of different integration programmes in the EU, briefing paper IP/C/LIBE/FWC/2005-22 submitted 13 January 2006, DG Internal Policies of the Union, Directorate C - Citizens’ rights and constitutional affairs (Brussels: European Parliament). Carrera, S. (2006c), ‘Integration of immigrants versus social inclusion? A typology of integration programmes in the EU’ in Balzacq, T. and Carrera, S. (eds), Security versus freedom? A challenge for Europe’s future (Aldershot: Ashgate), pp. 87-112. Carrera, S. (2006d), ‘¿Hacia una política común sobre inmigración laboral en la EU?’ en Valdés D.F. and Zufiaur Narvaiza, J.M. (eds), Hacia un Mercado Europeo de Empleo (Madrid: Ministerio de Trabajo y Asuntos Sociales. Centro de Publicaciones). Carrera, S. (ed.) (2006e), The Nexus between immigration, integration and citizenship in the EU, CHALLENGE collective conference volume, Centre for European Policy Studies (Brussels: CEPS). Carrera, S. (2005a), ‘Integration as a process of inclusion for migrants? The case of long-term residents in the EU’ in Schneider, H. (ed.), Migration, Integration

380

Illiberal Liberal States

and Citizenship: A Challenge for Europe’s Future (The Netherlands: Forum Maastricht), pp. 109-38. Carrera, S. (2005b), ‘What does free movement mean in theory and practice in an enlarged EU?’, European Law Journal, vol. 11 no. 6, 699-721. Carrera, S. (2005c), A typology of integration programmes in the EU, DG Internal Policies of the Union, Briefing Paper, IP/C/LIBE/FWC/2005-22. Carrera, S. and Geyer, F. (2008), ‘The reform treaty and justice and home affairs: implications for the common area of freedom, security and justice’ in Guild, E. and Geyer, F. (eds), Security versus justice? Police and judicial cooperation in the European Union (Aldershot: Ashgate), pp. 289-307. Castles, S. (1994), ‘Democracy and multicultural citizenship. Australian debates and their relevance for Western Europe’ in Bauböck, R. (ed.), From aliens to citizens: Redefining the status of immigrants in Europe (Aldershot: Avebury), pp. 3-25. Castles, S. and Miller, M.J. (2003), The age of migration: International population movements in the modern world, Third Edition (Basingstoke: Macmillan). Catani, M. (1986), ‘Emigrazione, individualizzazione e reversibilità orientata delle referenze: le relazioni fra genitori e figli’ in Di Carlo, A. and Di Carlo, S. (eds), I luoghi dell’identità (Milan: FrancoAngeli), pp. 139-62. Causa, O. and Jean, S. (2007), Integration of immigrants in OECD countries: Do policies matter?, economic department working papers no. 564, OECD, available from , accessed 16 December 2008. Chalmers, D., Hadjiemmanuil, C., Monti, G. and Tomkins, A. (2006), European Union law: Text and materials (Cambridge: Cambridge University Press). Cholewinski, R. (2005), ‘Migrants as minorities: Integration and inclusion in the enlarged European Union’, Journal of Common Market Studies, vol. 43 no. 4, 695-716. Cholewinski, R. (2002), ‘Family reunification and conditions placed on family members: Dismantling a fundamental human right’, European Journal of Migration and Law, vol. 4 no. 3, 271-90. Çinar, D. and Waldrauch, H. (2006), ‘Austria’ in Bauböck, R., et al. (eds) (2006), Acquisition and loss of nationality. Policies and trends in 15 European states, Volume 2 country analyses (Amsterdam: Amsterdam University Press). Citron, L. and Gowan, R. (2005), European civic citizenship and inclusion index (Brussels: British Council). Closa, C. (1998), ‘Supranational citizenship and democracy: Normative and empirical dimensions’ in La Torre, M. (ed.), European citizenship: An institutionalist challenge (The Hague: Kluwer). Closa, C. (1992), ‘The concept of citizenship in the Treaty of European Union’, Common Market Law Review, vol. 29 no. 6, 1137-69. Cologna, D. (1998), ‘The role of social and community norms in the insertion processes and social deviance of Chinese immigrants in Italy’ in Reyneri, E. (ed.), Second Italian report: Migrant insertion in the informal economy,

Bibliography

381

deviant behaviour and the impact on receiving societies, Migrinf (Brussels: Ce-Dgxii-Tser). Craig, P. (2006), EU administrative law (Oxford: Oxford University Press). Craig, P. and de Búrca, G. (2008), EU law text, cases and materials, Fourth Edition (Oxford: OUP). Cuttitta P. (2008a), Readmission and forcibility return in the relations between Italy and North African Mediterranean countries, Ninth Mediterranean Research Meeting, 12-15 March, Florence. Cuttitta P. (2008b), ‘Yearly quotas and country-reserved shares in Italian immigration policy’, Migration Letters, vol. 5 no. 1, 41-51. Cuttitta, P. (2007), Segnali di confine. Il controllo dell’immigrazione nel mondofrontiera, Eterotopie (Milan: Mimesis). Cuttitta, P. (2006), The changes in the fight against illegal immigration in the EuroMediterranean area and in Euro-Mediterranean relations, CHALLENGE working paper, available from <www.libertysecurity.org/IMG/doc_WP_ Cuttitta.doc>, accessed 4 December 2008. Cuttitta, P. (2005), ‘Punti e linee. Topografia dei nuovi confini’, Conflitti Globali, no. 2, 16-29. Daadouch, C. (2004), ‘Le droit des étrangers’, édition à jour de la loi du 26 novembre 2003, Collection Droit, Mode d’emploi (Paris: Editions MB Formation). Dal Lago A. (2006), ‘Existe-t-il vraiment des conflits entre les cultures? Une réflexion historico-méthodologique’ in Galli, C. (ed.), Multiculturalismo (Bologna: il Mulino), pp. 45-80. Dal Lago A. (1999), Non-persone. L’esclusione dei migranti in una società globale (Milan: Feltrinelli). Dal Lago, A. (1998) (ed.), Lo straniero e il nemico. Materiali per un’etnografia contemporanea (Genoa: Costa & Nolan). Dal Lago, A. and Quadrelli, E. (2003), La città e le ombre. Crimini, criminali, cittadini (Milan: Feltrinelli). Davy, U. (2004), ‘Integration von einwanderern in Deutschland: Instrumente und barrieren’ in Barwig, K. and Davy, U. (eds), Auf dem weg zur rechtsgleichheit? Konzepte und grenzen einer politik der integration von einwanderern (BadenBaden: Nomos Verlag), pp. 83-95. De Bruycker, P. (2003), L’Émergence d’une politique européene d’immigration (Brussels: Bruylant). De Groot, G.R. (2007), A clarification of the fundamental rights implications of stateless and erased persons, briefing paper European Parliament, DG Internal Policies (Brussels: European Communities). De Groot, G.R. (2006a), ‘Nationality law’ in Smits, J.M. (ed.), Elgar encyclopedia of comparative law (Cheltenham: Edward Elgar), pp. 476-92. De Groot, G.R. (2006b), ‘Reflections on integration and access to nationality/ citizenship through naturalisation: a comparative perspective’ in Carrera, S. (ed.), The nexus between immigration, integration and citizenship in the EU (Brussels: CEPS), pp. 21-7.

382

Illiberal Liberal States

De Groot, G.R. (2005a), ‘Towards a European nationality law’ in Schneider, H. (ed.), Migration, integration and citizenship: A challenge for Europe’s future, vol. 1 (London: Foreign Policy Centre), pp. 13-53. De Groot, G.R. (2005b), ‘The access to European citizenship for third country spouses of a European citizen’ in Biquet-Mathieu, C. (ed.), Liber Amicorum Paul Delnoy (Brussels: Larcier), pp. 93-133. De Groot, G.R. (2004), Towards a European nationality law – Vers un droit européen de nationalité, inaugural lecture delivered on 13 November 2003 on the occasion of the acceptance of the Pierre Harmel chair of professeur invité at the University of Liège, Unigraphic, University of Maastricht, Maastricht. De Groot, G.R. (2003a), Handboek nieuw nationaliteitsrecht (Deventer: Kluwer). De Groot, G.R. (2003b), ‘Loss of nationality. A critical inventory’ in Martin, D.A. and Hailbronner, K. (eds), Rights and duties of dual nationals. Evolution and prospects (The Hague: Kluwer Law International), pp. 201-99. De Groot, G.R. (1998), ‘The relationship between the nationality legislation of the member states of the European Union and European citizenship’ in La Torre, M. (ed.), European citizenship: An institutional challenge (The Hague: Kluwer Law International). De Groot, G.R. and Schneider, H. (2006), ‘Die zunehmende akzeptanz von fällen mehrfacher staatsangehörigkeit in West-Europa’ in Menkhaus, et al. (eds), Japanischer brückbauen zum deutschen rechtkreis. Festschrift für koresuke yamauchi zum 60. Geburtstag. Sonderdruck aus schriften zum internationalen recht, Band 165 (Berlin: Duncker & Humblot). De Hart, B. and Van Oers, R. (2006), ‘European Trends in nationality law’ in Bauböck R. et al. (eds), Acquisition and loss of nationality, Volume I: Comparative analysis; policies and trends in 15 European countries (Amsterdam: Amsterdam University Press). De Mistura, S. (2007), Rapporto della commissione per le verifiche e le strategie dei centri di permanenza temporanea (Rome: Ministero degli Interni). De Palo, D. et al. (2006), The social assimilation of immigrants, IZA discussion papers series no. 2439, November 2006, Institute for the Study of Labour. De Wenden, C. (1998), ‘Changing representations of the other in France: The mirror of Migration’ in Bauböck, R. and Rundell, J. (eds), Blurred boundaries: Migration, ethnicity, citizenship (Aldershot: Ashgate). De Witte, B. (2000), ‘Institutional principles: A special category of general principles of EC Law’ in Bernitz, U. and Nergelius, J. (eds), General principles of community law, European monographs (The Hague: Kluwer Law International), pp. 143-59. Debardeleben, J. (ed.) (2005), Soft or hard borders? Managing the divide in an enlarged Europe (Aldershot: Ashgate). Deblic, D. (2007), ‘Sans-papiers: l’autre “chiffre” de la politique d’expulsion’, Mouvements, no. 14, available from , accessed 4 December 2008.

Bibliography

383

Dedić, J. (2003), ‘Diskriminacija v postopkih pridobivanja slovenskega državljanstva’ in Dedić, J. et al. (eds), Izbrisani: Organizirana nedolžnost in politike izključevanja (Ljubljana: Mirovni inštitut), pp. 23-84. Delanty, G. (2000), Citizenship in a global age: Society, culture, politics (Philadelphia: Open University Press). Delanty, G. (1996), ‘Beyond the nation-state: National identity and citizenship in a multicultural society- a response to rex’, Sociological Research Online, vol. 1 no. 3. Delanty, G. (1996), ‘The frontier and identities of exclusion in European history’, History of European Ideas, vol. 22 no. 2, 93-103. Dell’Olio, F. (2005), The europeanisation of citizenship: Between the ideology and nationality, immigration and European identity (Aldershot: Ashgate). DeVoretz, D. (2004), Immigrant issues and cities: Lessons from Malmö and Toronto, Willy Brandt series of working papers in international migration and ethnic relations, no. 2/04. DeVoretz, D. and Pivnenko, S. (2003), ‘The immigration triangle: Québec, Canada and the rest of the world’, RIIM working paper, 3-11. Doomernik, J. (2006), Open borders, close monitoring, IMISCOE working paper, Amsterdam. Dummet, A. (2004), ‘Implementing European anti-discrimination law’ in Niessen, J. and Chopin, I. (eds), The development of legal instruments to combat racism in a diverse Europe (The Hague: Martinus Nijhoff ), pp. 235-53. Dummett, A. and Nicol, A. (1990), Subjects, citizens, aliens and others: Nationality and immigration law (London: Weidenfeld and Nicolson). Edström, Ö. (2007), ‘Svensk arbetsrätt i EU - mellan lag och kollektivavtal’ in Edström, O. (ed.), Svensk rätt i EU, Uppsala, pp. 81-98. Ekardt, F. and Radtke, M. (2007) ‘Einbürgerungstests in der rechtspolitischen debatte’, ZRP, 28-30. Ellis, E. (2005), EU anti-discrimination law, (Oxford, Oxford University Press). Entzinger, H. (2003), ‘The rise and fall of multiculturalism: The case of the Netherlands’ in Joppke, C. and Morawska, E. (eds), Toward assimilation and citizenship: Immigrants in liberal nation-states (New York: Palgrave Macmillan). Entzinger, H. and Biezeveld, R. (2004), ‘Benchmarking in immigrant integration’ in Süssmuth, R. and Weidenfeld, W. (eds), Managing integration: The European Union’s responsibilities towards immigrants (Gütersloh: Verlag Bertelsmann Stiftung), pp. 123-36. Entzinger, H. and Biezeveld, R. (2003), Benchmarking immigrant integration, report for the European Commission under contract no. DG JAI-A-2/2002/006 (Rotterdam: European Research Centre on migration and ethnic relations, Erasmus University of Rotterdam). Entzinger, H. and Van der Zwan, A. (1994), Beleidsopvolging minderhedendebat: advies in opdracht van de Minister van binnenlandse zaken (Den Haag: Ministerie van Binnenlandse).

384

Illiberal Liberal States

Ersbøll, E. (2001), ‘Nationality law in Denmark, Finland and Sweden’ in Hansen, R. and Weil, P. (eds), Towards a European nationality, citizenship, immigration and nationality law in the EU (New York: Palgrave), pp. 230-34. Etzioni, A. (2007), ‘Citizenship tests: A comparative, communitarian perspective’, The Political Quarterly, vol. 78 no. 3, 353-63. Evans, A. (1994), ‘Third country nationals and the Treaty on European Union’, European Journal of International Law, vol. 5 no. 1, 199-219. Faist, T. (1995), ‘Boundaries of welfare states: Immigrants and social rights on the national and supranational level’ in Miles, R. and Thrandart, D. (eds), Migration and European integration: The dynamics of exclusion and inclusion (London: Pinter). Faist, T. (2004), ‘Dual citizenship as a path-dependent process’, International Migration Review, vol. 38 no. 3, 913-44. Favell, A. (2003), ‘Integration nations: The nation-state and research on immigrants in Western Europe’, Comparative Social Research Yearbook, vol. 22, 13-42. Favell, A. (2001), Philosophies of integration: Immigration and the idea of citizenship in France and Britain (New York: Palgrave in association with Centre for Research in Ethnic Relations, University of Warwick). Favell, A. (1998), Philosophies of integration: Immigration and the idea of citizenship in France and Britain (London: Macmillan). Feldblum, M. (2000), ‘Managing membership: New trends in citizenship and nationality policy’ in Aleinikoff, T. et al. (eds), From migrants to citizens: Membership in a changing world (Washington, D.C.: Carnegie Endowment for International Peace), pp. 475-99. Feldblum, M. (1999), Reconstructing citizenship: The politics of nationality reform and immigration in contemporary France (New York: State University of New York Press). Ferrari, S. (2005), ‘The secularity of the state and the shaping of Muslim representative organisations in Western Europe’ in Cesari, J. and McLoughlin, S. (eds), European Muslims and the secular state (Aldershot: Ashgate), pp. 11-24. Fetzer, J. and Soper, C.J. (2004), Muslims and the state in Britain, France, and Germany (Cambridge: Cambridge University Press). Forder, C. (2005), ‘Family rights and immigration law: A European perspective’ in Schneider, H. (ed.), Migration, integration and citizenship: A challenge for Europe’s future, vol. 2, (Maastricht: Forum Maastricht), pp. 71-108. Foucault, M. (1999), Les anormaux, cours au Collège de France. 1974-1975, Hautes Études (Paris: Gallimard Le Seuil). Foucault, M. (1997a), Sécurité, territoire, population, cours au Collège de France (1977-1978) (Paris: Gallimard Seuil), pp. 111-13. Foucault, M. (1997b), Dits et Écrits 1954 - 1988, II (1976 – 1988), Édition établie sous la direction de Defert, D. et Ewald, F. avec la collaboration de Lagrange, J. (Paris: Quarto Gallimard). Fransman, L. (1998), British nationality law, Second Edition (UK: LexisNexis).

Bibliography

385

Gaspard, F. (1992), ‘Assimilation, insertion, intégration: Les mots pour “devenir François”’, Hommes et Migrations, May 1992. Gatti, F. (2007), Bilal. Sur la route des clandestins (Paris: Liana Levi). Geddes, A. (2003), The Politics of migration and immigration in Europe (London: Sage Publications). Geddes, A. and Guiraudon, V. (2004), ‘Britain, France, and EU anti-discrimination policy: The emergence of an EU policy paradigm’, West European Politics, vol. 27 no. 2, 335-53. Geddes, A. and Niessen J. (2005), European Civic Citizenship and Inclusion Index (Brussels: British Council Brussels, Foreign Policy Centre and Migration Policy Group), available from , accessed 10 December 2008. Geisser, V. (2006), ‘L’Intégration républicaine: Réflexion sur une problématique post-colonial’ in Blanchard, P. and Bancel, N. (eds), Culture post-coloniale 1961-2006: Trace et memoires coloniales en France (Paris: Éditions Autrement), pp. 145-65. Geyer, F. (2007), Trends in the EU-27 regarding participation of third-country nationals in the host country’s political life, Briefing Paper for the Directorate C - Citizens’ Rights and Constitutional Affairs of the European Parliament, available from , accessed 10 December 2008. Giannuli, A. (2007), ‘Guerra finanziaria e intelligence’, Conflitti Globali, no. 5, 114-28. Goffman, E. (1959), The presentation of self in everyday life (New York: Doubleday Anchor). Goffman, E. (1971), Relations in public. Microstudies of the public order (New York: Basic Books). Green, S. (2001), ‘Citizenship policy in Germany: The case of ethnicity over residence’ in Hansen, R. and Weil, P. (eds), Towards a European nationality: Citizenship, immigration and nationality law in the EU (New York: Palgrave). Grell, R. (2006), ‘Dichtung und wahrheit: die geschichte des ‘Muslimstests’, Baden-Württemberg, available from , accessed 14 June 2008. Gresch, N. et al. (2008), ‘Tu felix Austria? The headscarf and the politics of “nonissues”’, Social Politics, vol. 15 no. 4, 411-32 Groenendijk, K. (2007), ‘The long-term residents directive, denizenship and integration’ in Baldaccini, A. et al. (eds), Whose freedom, security and justice? EU immigration and asylum law and policy (Oxford: Hart Publishing), pp. 429-50. Groenendijk, K. (2006a), ‘Integration policy and community law’ in Carrera, S. (ed.), The nexus between immigration, integration and citizenship in the EU, collective conference volume, Centre for European Policy Studies, April 2006 (Brussels: CEPS), pp. 9-11.

386

Illiberal Liberal States

Groenendijk, G. (2006b), ‘Family reunification as a right under community law’, European Journal of Migration and Law, vol. 8 no. 2, 215-30. Groenendijk, K. (2006c), ‘Citizens and third country nationals: Differential treatment or discrimination’ in Carlier, J.Y. et al., The future of free movement of persons in the EU (Brussels: Bruylant), pp. 79-101. Groenendijk, K. (2006d), ‘The legal integration of potential citizens: Denizens in the EU in the final years before the implementation of the 2003 Directive on Long-Term Resident Third Country Nationals’ in Bauböck, R. et al. (eds), Acquisition and loss of nationality, Volume I: Comparative analysis; policies and trends in 15 European Countries (Amsterdam: Amsterdam University Press), pp. 385-410. Groenendijk, K. (2005a), ‘Access of third-country nationals to employment under the new EC migration law’ in Julien-Laferriere, F. et al. (eds), The European immigration and asylum policy: Critical assesment five years after the Amsterdam Treaty (Brussels: Bruylant), pp. 141-74. Groenendijk, K. (2005b), ‘Integratie en Uitsluiting in het Nederlandse Vreemdelingenrecht’ in Boeles, P. and Lodder, G. (eds), Integratie en uisluiting (Den Haag: SDU), pp. 9-31. Groenendijk, K. (2004), ‘Legal concepts of integration in EU migration law’, European Journal of Migration and Law, vol. 6 no. 2, 111-26. Groenendijk, K. (2001), ‘Security of residence and access to free movement for settled third country nationals under community law’ in Guild, E. and Harlow, C. (eds), Implementing amsterdam, immigration and asylum rights in EC law (Oxford: Hart Publishing). Groenendijk, K. and Guild E. (2001), ‘Converging criteria: Creating an area of security of residence for Europe’s third country nationals’, European Journal of Migration and Law, vol. 3 no. 1, 37-59. Groenendijk, K. and Heijs, E. (2001), ‘Immigration, immigrants and nationality law in the Netherlands, 1945-98’ in Hansen, R. and Weil, P. (eds), Towards a European nationality: Citizenship, immigration and nationality law in the EU (New York: Palgrave). Groenendijk, K., van Dam, D.P.L.M. and van Oers, R. (2007), The family reunification Directive in EU member states: The first year of implementation (Nijmegen: Wolf Legal Publishers). Groenendijk, K. et al. (2000), The legal status of third country nationals who are long-term residents in a member state of the European Union (Nijmegen: European Commission). Groenendijk, K., Guild E. and Dogan, H. (1998), Security of residence of longterm migrants: A comparative study of law and practice in European Countries (Strasbourg: Council of Europe). Gross, T. (2005) ‘Integration of immigrants: The perspective of European community law’, European Journal of Migration and Law, vol. 7 no. 2, 145-62. Grössner, K. (2006), ‘Rechtspolitisch-gutachterliche stellungnahme zum gesprächsleitfaden für einbürgerungsbehörden in Baden-Württemberg’ in

Bibliography

387

Flüchtlingsrat, schutz vor diskriminierung? Zeitschrift für flüchtlingspolitik in Niedersachsen, Hannover, no. 1, pp. 80-88. Guild, E. (2007), EU policy on labour migration: A first look at the Commission’s blue card initiative, CEPS Policy Brief no. 145 (Brussels: Centre for European Policy Studies). Guild, E. (2005), ‘Cultural and identity security: Immigrants and the legal expression of national identity’ in Guild, E. and Van Selm, J. (eds), International migration and security: Opportunities and challenges, Routledge Research in transnationalism (New York: Routledge), pp. 101-112. Guild, E. (2004a), ‘Citizens, immigrants, terrorists and others’ in Peers, S. and Ward, A. (eds), The EU charter of fundamental rights, politics, law and policy (Oxford: Hart), pp. 231-47. Guild, E. (2004b), ‘Mechanisms of exclusion: Labour migration in the European Union’ in Apap, J. (ed.), Justice and home affairs in the EU - Liberty and security issues after enlargement (Cheltenham: Edward Elgar), pp. 211-55. Guild, E. (2004c), The legal elements of European identity: EU citizenship and migration law (The Hague: Kluwer Law International, European Law Library). Guild, E. (2004d), ‘The variable subject of the EU constitution, civil liberties and human rights’, European Journal of Migration and Law, vol. 6 no. 4, 381-94. Guild, E. (2004e), ‘Who is an irregular immigrant’ in Bogusz, B. et al. (eds), Irregular migration and human rights: Theoretical, European and international perspectives (Leiden: Martinus Nihjoff), pp. 3-28. Guild, E. (2003a), ‘Intersecting worlds? Understanding the legal framework of European labour migration in Susan Strange’s modern world’ in Bigo, D. and Guild, E. (eds), Controlling frontiers: Free movement into and within Europe (Aldershot: Ashgate). Guild, E. (2003b), ‘The border abroad - Visas and border controls’ in Groenendijk, K. et al. (eds), In search of Europe’s borders (The Hague: Kluwer Law International), pp. 87-104. Guild, E. (2001a), Immigration law in the European community (The Hague: Kluwer Law International). Guild, E. (2001b), Moving the borders of Europe, inaugural lecture delivered at the official ceremony of the assumption of the professorship of the CPO Wisselleerstoel at the University of Nijmegen. Guild, E. (1999a), ‘Discretion, competence and migration in the European Union’, European Journal of Migration and Law, vol. 1 no. 1, 61-87. Guild, E. (1999b), The legal framework and social consequences of free movement of persons in the European Union (The Hague: Kluwer Law International). Guild, E. and Carrera, S. (2006), The Hague Programme and the EU’s agenda on “freedom, security and justice”: Delivering results for Europe’s citizens?, CEPS Commentary, Centre for European Policy Studies (Brussels: CEPS). Guild, E. and Harlow, C. (2001), Implementing Amsterdam: Immigration and asylum rights in EC law (Oxford: Hart Publishing).

388

Illiberal Liberal States

Guild, E. and Peers, S. (2006), ‘Out of the Ghetto? The personal scope of EU law’ in Peers, S. and Rogers, N. (eds), EU immigration and asylum law: Text and commentary (Leiden: Martinus Nijhoff Publishers), pp. 81-114. Guild, E. and Peers, S. (2001), ‘Defence or defiance? The Court of Justice’s jurisdiction over immigration and asylum’ in Guild, E. and Harlow, C. (eds), Implementing Amsterdam: Immigration and asylum rights in EC Law (Oxford: Hart Publishing), pp. 267-89. Guild, E. and Staples, H. (2003), ‘Labour migration in the European Union’ in de Bruycker, P. (ed.), The emergence of a European immigration policy (Brussels: Bruylant), pp. 171-247. Guimezanes, N. (2007), ‘Premier aperçu du projet de loi maîtrise de l’immigration’, La Semaine Juridique, Édition Générale, no. 28, 11 Julliet 2007, act. 321. Guimezanes, N. (2006a), ‘Le statu légal des migrants’, Revue internationale de droit comparé, Études de droit contemporain, contributions françaises au 17e Congrès international de droit comparé, Utrecht, 16-22 juillet 2006, cinquantehuitième année, no. 2, Avril-Juin 2006, 593-620. Guimezanes, N. (2006b), ‘Loi de 24 juillet 2006 relative à l’immigration et à l’intégration’, La Semaine Juridique, Édition Générale, no. 36, 6 Septembre 2006, 1623-24. Guimezanes, N. (2003), ‘La loi n° 2003-1119 du 26 novembre 2003 relative à la maîtrise de l’immigration, au séjour des étrangers en France et à la nationalité’, La Semaine Juridique, Édition Générale, no. 50, 10 Décembre 2003, act. 592. Guimezanes, N. (1996), ‘Les lois ‘Pasqua’ et leur mise en application’, La Semaine Juridique, Édition Générale, no. 42, 16 Octobre 1996, I 3967. Guio, A.C. (2005), ‘Income poverty and social exclusion in the EU 25’, Statistics in Focus, no. 13. Guiraudon, V. (2008), Integration contracts for immigrants: Common trends and differences in the European experience, commentary, Real Instituto Elcano, 7 may 2008, available from , accessed 18 December 2008. Habermas, J. (1998a), L’intégration républicaine. Essais de théorie politique (Paris: Fayard). Habermas, J. (1998b), The Inclusion of the Other, Studies in Political Theory, Cronin, C. and De Greiff, P. (eds) (Cambridge: The MIT Press), pp. 105-27. Habermas, J. (1992), ‘Citizenship and national identity: Reflections on the future of Europe’, Praxis International, vol. 12 no. 1, 1-19. Hadler, F. and Middel, M. (2007), ‘East Central Europe in a transnational perspective. Strategies to assess the Challenges of globalization from the late 19th century to the present’ in Intellectual and Cultural Change in Central and Eastern Europe (Leipzig: GWZO), pp. 146-61. Hailbronner, K. (2006), ‘Union citizenship and social rights’ in Carlier, J.Y. and Guild, E. (eds), The future of free movement of persons in the EU (Antwerpen: Bruylant), pp. 65-79.

Bibliography

389

Hailbronner, K. (2000), Immigration and asylum policy of the European Union (The Hague: Kluwer Law International). Hall, P. (1993), ‘Policy paradigms, social learning, and the State. The case of economic policymaking in Britain’, Comparative Politics, vol. 25 no. 3, 27596. Halleskov, L. (2005), ‘The long-term residents directive: A fulfilment of the Tampere objective of near-equality’, European Journal of Migration and Law, vol. 7 no. 2, 181-202. Hammar, T. (1990), Democracy and the nation state: Aliens, denizens, and citizens in a world of international migration (Aldershot: Avebury). Handoll, J. (2003a), ‘The long term residents directive’ in Carlier, J and de Bruycker, P. (eds), Immigration and asylum law of the EU: Current debates (Brussels: Bruylant), pp. 144-60. Handoll, J. (2003b), ‘The status of third-country nationals’ in de Bruycker, P. (ed.), The emergence of a European immigration policy (Brussels: Bruylant), pp. 269-362. Hansen, R. (2003), ‘Citizenship and integration in Europe’ in Joppke, C. and Morawska, E. (eds), Toward assimilation and citizenship: Immigrants in liberal nation-states (Basingstoke: Palgrave Macmillan), pp. 87-109. Hansen, R. (2001), ‘From subjects to citizens: Immigration and nationality law in the United Kingdom’ in Weil, P. and Hansen, R. (eds), Citizenship, immigration and nationality: Towards a convergence in Europe? (Basingstoke: Palgrave Macmillan), pp. 69-94. Hansen, R. and Weil, P. (2002), ‘Dual citizenship in a changed world: Immigration, gender and social rights’ in Hansen, R. and Weil, P. (eds), Dual nationality, social rights and federal citizenship in the U.S. and Europe (New York, Oxford: Berghahn Books), pp. 1-15. Hansen, R. and Weil, P. (2001), Towards a European nationality: Citizenship, immigration and nationality law in the EU (New York: Palgrave). Haug, S. and Wolf, M. (2006), ‘Jüdische zuwanderung nach Deutschland’ in Swiaczny, F. and Haug, S. (eds), Neue zuwanderergruppen in Deutschland, materialien zur bevölkerungswissenschaft, Heft 118, pp. 65-82. Heckmann, F. (2004), ‘Integrationsweisen europaeischer gesellschaften: Erfolge, nationale besonderheiten, konvergenzen’ in Bade, K.J. et al. (eds), Migrationsreport (Frankfurt: Campus Verlag). Hedemann-Robinson, M. (1997), ‘Third-country nationals, European Union citizenship, and free movement of persons: A time for bridges rather than divisions’, Yearbook of European Law, vol. 16, 321-62. Heijs, E. (1995), Van vreemdeling tot nederlander; de verlening van het nederlanderschap aan vreemdelingen 1813-1992 (Amsterdam: Het Spinhuis). Heijs, E. (1988), Selectie bij naturalisatie: de rol van taalkennis als eis voor het nederlanderschap (Nijmegen: Katholieke Universiteit, Faculteit der Rechtsgeleerdheid, Instituut voor Rechtssociologie).

390

Illiberal Liberal States

Helbling, M. (2008), Practising citizenship and heterogeneous nationhood. Naturalisations in Swiss municipalities (Amsterdam: Amsterdam University Press). Hollifield, J. (2004), ‘France republicanism and the limits of immigration control’ in Cornelius, W. et al. (eds), Controlling immigration: A global perspective (Standford: Standford University Press), pp. 183-214. Hollifield, J. (1992), ‘L’Etat Français et l’immigration’, Revue Française de Science Politique, 943-63. Howard, E. (2005), ‘Anti race discrimination measures in Europe: An attack on two fronts’, European Law Journal, vol. 11 no. 4, 468-86. Huntington, C. (2007), A constitutional roadmap for immigration federalism, University of Colorado Law School, legal studies research paper series, working paper no. 07-06, March 6 2007, available from , accessed 10 December 2008. Içduygu, A. Ibrahim, S. and Muradoglu, Y. (2001), ‘Socio-economic development and international migration: A Turkish study’, International Migration Quarterly Review, vol. 39 no. 4, 39-61. Ieda, O. (ed.) (2006), Beyond sovereignty: From status law to transnational citizenship? (Sapporo: Slavic Research Center, Hokkaido University). Iglesias Sánchez, S. (2007), ‘El valor de la Directiva 2003/86/CE sobre reagrupación familiar a la luz de los derechos fundamentales y de la sentencia del TJCE en el asunto 540/03’, Revista de Derecho Comunitario Europeo, no. 26, 125-53. Illamola Dausà, M. (2005), ‘Égalité et intégration’ in Julie-Laferriere, F. et al. (eds), La politique européenne d’immigration et d’asile: Bilan critique cinq ans après le Traité D’Amsterdam (Bruxelles: Bruylant), pp. 175-202. Jennings, J. (2000), ‘Citizenship, republicanism and multiculturalism in contemporary France’, British Journal of Political Science, vol. 30 no. 4, 57597. Joppke, C. (2007a), ‘Beyond national models: Civic integration policies for immigrants in Western Europe’, West European Politics, vol. 30 no. 1, 1-22. Joppke, C. (2007b), ‘Immigrants and civic integration in Western Europe’ in Banting, K. et al. (eds), Belonging? Diversity, recognition and shared citizenship in Canada (Montreal: Institute for Research on Public Policy). Joppke, C. (1999a), Immigration and the nation states. The United States, Germany, and Great Britain (Oxford: Oxford University Press). Joppke, C. (1999b), ‘How immigration is changing citizenship: A comparative view’, Ethnic and Racial Studies, vol. 22 no. 4, 629-52. Joppke, C. and Marzal, E. (2004), ‘Courts, the new constitutionalism and immigrant rights: The case of the French conseil constitutionnel’, European Journal of Political Research, no. 43, 825-46. Joppke, C. and Morawska, E. (2003), ‘Integrating immigrants in liberal nationstates: Policies and practices’ in Joppke, C. and Morawska, E. (eds), Toward assimilation and citizenship: Immigrants in liberal nation-states (New York: Palgrave Macmillan).

Bibliography

391

Kadelbach, S. (2006), ‘Union Citizenship’ in Von Bogdany, A. and Bast, J. (eds), Principles of European constitutional law (Oxford: Hart Publishing), pp. 45399. Kadelbach, S. (2003), Union Citizenship, Jean Monnet Working Paper 9/03 (Heidelberg: Max Planck Institute for Comparative Public Law and International Law). Kaeble, H. (2005), ‘Eine europäische Gesellschaft?’ in Folke Shuppert, G. et al. (Hrsg.), Europawissenschaft (Nomos Verlagsgesellschaft: Baden-Baden), pp. 299-330. Kaiser, T. (2006), ‘Euroregions in the new member states: Emerging process of institution-building’ in Ágh, A. and Szemere, V. (eds), New member states in the enlarged Europe: The Hungarian perspective (Budapest: Tancsics Foundation), pp. 51-71. Kalb, H., Potz, R. and Schinkele, B. (2003), Religionsrecht (Wien: WUV Universitätsverlag). Kántor, Z. (2007), ‘Egy hamis dichotómia: politikai/kulturális nemzet’ in Szerk. Szarka, L. et al. (eds), Nemzetfogalmak és etnopolitikai modellek KeletKözép-Európában, [‘A False Dichotomy: Notion of Cultural/Political Nation’ in Doctrine of Nation and Ethnopolitcal Models in Central-Eastern-Europe] (Budapest: Gondolat), pp. 80-91. Kántor, Z. Balázs, T., Petrescu, D., Petrescu and Iordachi, C. (eds) (2004), The Hungarian status law: Nation building and/or minority protection (Sapporo: Slavic Research Center, Hokkaido University). Kastoryano, R. (1996), La France, l’Allemagne et leurs immigrés: négocier l’identité (Paris: Armand Colin). Kate, M.A. and Niessen, J. (2007), Locating immigrant integration policy measure in the machinery of the European Commission (Brussels: Migration Policy Group). Koenig, M. (2005), ‘Incorporating muslim migrants in western nation-states: A comparison of the United Kingdom, France, and Germany’, Journal of International Migration and Integration, vol. 6 no. 2, 219-34. Kofman E. (2002), ‘Contemporary European migrations, civic stratification and citizenship’, Political Geography, no. 21, 1035-54. Kohlmeier, M., Heine, J., Mananashvili, S. and Hecht, H. (2005), Policy analysis report on migration and asylum, German National Contact Point of the European Migration Network. Kojanec, G. (2000), ‘Multiple nationality’ in Trends and developments in national and international law on nationality, 1st European Conference on Nationality, Strasbourg, 18-19 October 1999, pp. 35-47. Komac, M. (1997), ‘Srbska skupnost v Sloveniji (statistična slika)’, Razprave in gradivo, no. 32, 73-115. König, K. and Perchinig, B. (2003), ‘Austria’ in Niessen, J. et al (eds), EU and US approaches to the management of immigration (Brussels: MPG).

392

Illiberal Liberal States

Koopmans, R. et al. (2005), Contested citizenship: Immigration and cultural diversity in Europe (Minneapolis, London: University of Minnesota Press). Koslowski, R. (2000), Migrants and citizens: Demographic change in the European state system (Ithaca and London: Cornell University Press). Kossmann, E.H. (1986), De lage landen 1780-1980. Twee eeuwen Nederland en België. Deel I 1780-1914 (Amsterdam: Agon). Kostakopoulou, T. (2007), ‘European citizenship: Writing the future’, European Law Journal, Special Issue on EU Citizenship, vol. 13 no. 5, 623-46. Kostakopoulou, T. (2003), ‘Why naturalisation’, Perspectives on European Politics and Society (Leiden: Brill), pp. 85-115 Kostakopoulou, T. (2002a), ‘Integrating non-EU migrants in the European Union: Ambivalent legacies and mutating paradigms’, The Columbia Journal of European Law, vol. 8 no. 2, 181-201. Kostakopoulou, T. (2002b), ‘Long-term resident third-country nationals in the European Union: Normative expectations and institutional openings’, Journal of Ethnic and Migration Studies, vol. 28 no. 3, 443-62. Kostakopoulou, T. (2001a), Citizenship, identity and immigration in the European Union (Manchester and New York: Manchester University Press). Kostakopoulou, T. (2001b), ‘Invisible citizens? Long-term resident third-country nationals in the EU and their struggle for recognition’ in Bellamy, R. and Warleigh, A. (eds), Citizenship and governance in the European Union. Continuum studies in citizenship (London: Continuum), pp. 180-206. Kostakopoulou, T. (1998), ‘European citizenship and immigration after Amsterdam: Silences, openings, paradoxes’, Journal of Ethnic and Migration Studies, vol. 24 no. 4, 639-56. Kostakopoulou, T. (1996), ‘Towards a theory of constructive citizenship in Europe’, Journal of Political Philosophy, vol. 4 no. 4, 337-58. Kovács, M.M. and Tóth, J. (2007), ‘Kin-state responsibility and ethnic citizenship: The Hungarian case’ in Bauböck, R., et al. (eds) Citizenship policies in the new Europe (Amsterdam: Amsterdam University Press), pp. 135-59. Krahler, A. and Sohler, S. (2005), Active civic participation of immigrants in Austria, Country Report prepared for the European research project POLITIS, Oldenburg 2005, available from , accessed 10 December 2008. Kuhn, T.S. (1981), Die struktur wissenschaftlicher revolutionen (Frankfurt am Main: Suhrkamp). Kymlicka, W. (2001), Politics in the vernacular nationalism, multiculturalism and citizenship (Oxford: Oxford University Press). Kymlicka, W. (1998), Finding our way (Toronto: Oxford University Press). Kymlicka, W. (1995), Multicultural citizenship: A liberal theory of minority rights (Oxford: Clarendon Press). Laborde, C., (2004) ‘Republican citizenship and the crisis of integration in France’ in Bellamy, R. et al. (eds), Lineages of European citizenship: Rights, belonging

Bibliography

393

and participation in eleven member states (Basingstoke: Palgrave Macmillan), pp. 46-72. Laborde, C. (2001), ‘The culture(s) of the republic: Nationalism and multiculturalism in French republican thought’, Political Theory, vol. 29 no. 5, 716-35. Laferrière, F.J. (2005), ‘La loi no. 2003-1119 du 26 novembre 2003 relative à la maîtrise de l’immigration, au sejour des étrangers en France et à la nationalité’ in Carlier, J.Y. and de Bruycker, P. (eds), Immigration and asylum law of the EU: Current debates / Actualité du droit Européen d l’immigration et de l’asile (Brussels: Bruylant), pp. 530-57. Laferrière, F.J. (2004), ‘Une modification d’ampleur de l’ordonnance du 2 novembre 1945’, l’Actualité juridique – Droit administratif (A.J.D.A.), no. 5/2004. Lagarde, P. (2004), ‘Note sur “loi du 26 novembre 2003”’, Rev. Crit. DIP, vol. 93 no. 2, 495. Lagarde, P. (1996), ‘Le droit Français de la nationalité’ in Nascimbene, B. (ed.), Nationality laws in the European Union − Le droit de la nationalité dans l’Union Européenne (London: Butterworths/Milano: Giuffrè Editore), pp. 309-36. Lainati, C. (2000), ‘I Filippini a Milano’ in Palidda, S. (ed.), Socialità e inserimento degli immigrati a Milano (Milan: FrancoAngeli), pp. 57-82. Lenaerts, K. and Heremans, T. (2006), ‘Contours of a European social union in the case-law of the european court of justice’, European Constitutional Law Review, 101-15. Liebig, T. (2007), The labour market integration of immigrants in Denmark, DELSA/ELSA/WD/SEM(2007)5, 5 March 2007, OECD. Lochak, D. (2006a), ‘L’intégration comme injonction. Enjeux idéologiques et politiques liés à l’immigration’, Cultures & Conflits, no. 64 Hiver (Paris: L’Harmattan), 131-47. Lochak, D. (2006b), ‘Le tri des étrangers: Un discours récurrent’, Plein Droit, no. 69. Lochak, D. (2005), ‘L’intégration alibi de la précarisation’, Plein Droit, no. 59-60, 3-6. Lom, P. (2004), ‘The limits of European identity’ in Kovács, M. and Lom, P. (eds), Studies on nationalism (Budapest: Central European University). Long M. (1998), Étre français aujourd’hui et demain: rapport de la commission de la nationalité (Pairs: Olivier Orban). Loobuyck, P. and Jacobs, D. (2006), ‘The Flemish immigration society: Political challenges on different levels’ in D’Haenens, L. et al. (eds), New citizens, new policies? Developments in diversity policy in Canada and Flanders (Gent: Academia Press), pp. 105-23. López Pich, P. (2007), ‘La política de integración de la Unión Europea’, Revista Migraciones, no. 22, 221-56.

394

Illiberal Liberal States

Lucassen, L. (2005), The immigrant threat: The integration of old and new migrants in western Europe since 1850 (Urbana and Chicago: University of Illinois Press). Luna, G. (2000), ‘I Peruviani A Milano’ in Palidda, S. (ed.), Socialità e inserimento degli immigrati a Milano (Milan: FrancoAngeli), pp. 56-77. Madeley, J.T.S. (2003), ‘European liberal democracy and the principle of state religious neutrality’ in J.T.S. Madeley and Z. Enyedi (eds), Church and state in contemporary Europe (London: Frank Cass). Maluccelli, M. and Pavarini, M. (1998), ‘Rimini e la prostituzione’, in Quaderni di Città Sicure, no. 13. Maneri, M. (2006), ‘Migrants’ experiences of discrimination. Italy’ in EUMC (ed.), Migrants’ experiences of racism and xenophobia in 12 EU member states, Pilot Study, May 2006. Maneri, M. (2001), ‘Il panico morale come dispositivo di trasformazione dell’insicurezza’, Rassegna Italiana di Sociologia, no. 1, 5-40. Maneri, M. (1998), ‘Lo straniero consensuale: La devianza degli immigrati come circolarità di pratiche e discorsi’ in Dal Lago, A. (a cura di), Lo straniero e il nemico. Materiali per l’etnografia contemporanea (Genova: Costa & Nolan), pp. 236-72. Maneri, M. (1997), ‘Les médias dans le processus de construction sociale de la criminalité des immigrés. Le cas italien’ in Palidda S. (ed.), Délit d’immigration (Bruxelles: COST A2 Migrations, Commission Européenne), pp. 51-72. Marshall, T.H. (1992), Citizenship and social class (London: Pluto). Marshall, T.H. (1964), ‘Citizenship and social class’ in Marshall, T.H. (ed.), Class, citizenship and social development: Essays by T.H. Marshall (Chicago: University of Chicago Press), pp. 71-134. Martin, D.A. (2007), ‘Comments on European Parliament v. Council case C540/03 of 27 June 2006’, European Journal of Migration and Law, vol. 9 no. 1, 144-53. Martin, D.A. (2002), ‘New rules for dual nationality’ in Hansen, R. and Weil, P. (eds), Dual nationality, social rights and federal citizenship in the U.S. and Europe (New York and Oxford: Berghahn Books), pp. 34-60. Martiniello, M. (2000), ‘Citizenship of the European Union’ in Aleinikoff, T.A. and Klusmeyer, D. (eds), From migrants to citizens: Membership in a changing world (Washington D.C.: Carnegie Endowment for International Peace), pp. 342-82. Martinsen, D.S. (2007), The social policy clash: EU cross-border welfare, union citizenship and national residence clauses, Paper prepared for the EUSA Tenth Biennial International Conference Montreal, 17-19 May 2007. Mathiesen, A. et al. (2006), International migration and Denmark, SOPEMI Report to OECD, Danish Ministry for Refugees, Immigration and Integration Affairs. Maussen, M. (2007), ‘The governance of islam in western Europe: A state of the art report’, IMISCOE Working Paper, no. 16.

Bibliography

395

Mayer, H. (2002), ‘Einführung eines ausländerwahlrechtes zu den bezirksvertretungen in wien’, Österreichische Gemeinde-Zeitung, no. 8. McGoldrick, D. (2006), Human rights and religion: The islamic headscarf debate in Europe (Oxford: Hart Publishing). Medved, F. (2007), ‘From civic to ethnic community? The evolution of Slovenian citizenship’ in Bauböck, R. et al. (eds), Citizenship policies in the new Europe (Amsterdam: Amsterdam University Press), pp. 213-42. Medved, F. (2005), ‘Politična integracija, državljanstvo, politična participacija in reprezentacija’ in Komac, M. and Medvešek, M. (eds), Percepcije slovenske integracijske politike, final report of the project (Ljubljana: Inštitut za narodnostna vprašanja [Institute of Ethnic Studies]), pp. 453-557. Meehan, E. (1993), Citizenship and European Community (London: Sage Publications). Mesojedec Pervinšek, A. (1997), Predpisi o državljanih in tujcih z uvodnimi pojasnili (Ljubljana: ČZ Uradni list Republike Slovenije). Michalowski, I. (2009), ‘Integration tests in Europe: A communitarian approach?’ in Ersbøll, E. et al. (eds), A redefinition of belonging? Language and integration tests in Europe (Leiden: Brill). Michalowski, I. (2007), Integration als staatsprogramm. Deutschland, Frankreich und die Niederlande (Vergleich, Münster: Studien zu Migration und Minderheiten). Michalowski, I. (2004a), ‘Integration programmes for newcomers – A Dutch model for Europe?’ in Böcker, A. et al. (eds), Migration and the regulation of social integration, IMIS-Beiträge Special Issue, no. 24, IMIS, Universität Osnabrück. Michalowski, I. (2004b), An overview on introduction programmes for immigrants in seven European member states (The Hague: Adviescommissie voor Vreemdelingenzaken). Miné, M. (2003), Concepts of direct and indirect discrimination, revised text of a presentation delivered at the conference on ‘The fight against discrimination. New Directives of 2000 concerning equality’, 31 March to 1 April, Trier. Mitsilegas, V. (2007), ‘Free movement of workers, EU citizenship and enlargement’, Immigration, Asylum and Nationality Law, vol. 21 no. 3. Moinet, J.P. (2006), Célébrer la bienvenue dans la république française, Rapport sur les cérémonies célébrant l’acquisition de la nationalité française Rapport à la Ministre déléguée à la Cohésion Sociale et à la Parité, Mme Catherine Vautrin, avril 2006. Morén-Alegret, R. (2005), ‘Immigrant and immigration policy-making. The case of Spain’, IMISCOE Working Papers, no. 10. Morjé Howard, M. (2005), ‘Variation in dual citizenship policies in the countries of the EU’, International Migration Review, vol. 39 no. 3, 697-720. Mosconi, G. and Sarzotti, C. (2004) (eds), Antigone in carcere: Terzo rapporto sulle condizioni di detenzione (Rome: Carocci).

396

Illiberal Liberal States

Motha, S. (2007), ‘Veiled women and the affect of religion in democracy’, Journal of Law and Society, vol. 34 no. 1, 139-62. Mourão Permoser, J. and Rosenberger, S. (2009), ‘Religious citizenship versus policies of migrant integration: the case of Austria’, in Bramadat, P. and Koenig, M. (eds), International Migration and the Governance of Religious Diversity (Montreal and Kingston: McGill-Queen’s University Press), pp. 259-92. Mourão Permoser, J. et al. (2008), Religious organizations as political actors in the context of migration: From institutional partners to representatives of migrants?, Paper given at ECPR Joint Session of Workshops, University of Rennes, France, 11-16 April 2008. Münz, R. and Tamas, K. (2006), Labour migrants unbound? (Stockholm: Institute for Futures Studies). Nascimbene, B. (ed.) (2004), Diritto degli stranieri (Padua: Cedam). Neuman, G. (1994), ‘Justifying U.S. naturalization policies’, Virginia Journal of International Law, vol. 35, 237-78. Neuman, G. (1992),‘“We are the people”: Alien suffrage in German and American perspective’, Michigan Journal of International Law, vol. 13 no. 2 259-335. Nic Shuibhne, N. (2003), ‘Article 13 and non-discrimination on grounds of nationality: Missing in action’ in Barry, E., Equality in diversity – The new equality Directives (Dublin: Irish Centre for European Law). Niessen, J. (2006), ‘Integration, citizenship and the benchmarking of integration in the EU’ in Carrera, S. (ed.), The nexus between immigration, integration and citizenship in the EU, Collective Conference Volume, Centre for European Policy Studies, (Brussels CEPS), pp. 33-7. Niessen, J. and Kate, M.A. (2007), From principles to practice: The common basic principles on integration and the handbook conclusions, (Brussels: Migration Policy Group), June 2007, available from , accessed 18 December 2008. Niessen, J. and Schibel, Y. (2007), Handbook on integration for policy makers and practitioners, DG Justice, Freedom and Security, European Commission, Second Edition (Brussels: European Communities). Niessen, J. and Schibel, Y. (2004), Handbook on integration for policy-makers and practitioners, DG Justice, Freedom and Security, European Commission (Brussels: European Communities). Niessen, J. et al. (2007), Migrant integration policy index (MIPEX), (Brussels: British Council and Migration Policy Group), available from , accessed 18 December 2008. Noiriel, G. (2007), Immigration, antisémitisme et racisme en France (XIXe-XXe siècle): Discours publics, humiliations privées (Paris: Fayard). Noiriel, G. (2006), Le creuset français: Histoire de l’immigration XIV-XX siècle, (Paris: Editions du Seuil). Nowak, M. and Lubich, A. (2005), Report on the situation on fundamental rights in Austria in 2004, EU Network of Experts on Fundamental Rights (CFRCDR).

Bibliography

397

Nyíri, P., Fullerton, M. and Toth, J. (eds) (2001), Diasporas and politics (Budapest: Centre for Migration and Refugee Studies). Oger, H. (2005), ‘Integration in tension in immigration law: Mirror and catalyst of the inherent paradox of nation-states’, EUI-RSCAS Working Paper, no. 1. Oliveira, Á.C. (2002), ‘Workers and other persons: Step-by-step from movement to citizenship – Case law 1995-2001’, Common Market Law Review, no. 39, 77-127. Oosterom-Staples, H. (2007), ‘The family reunification directive: A tool preserving member state interest or conducive to family reunification unity?’ in Baldaccini, A. et al. (eds), Whose freedom, security and justice? EU immigration and asylum law and policy (Oxford: Hart Publishing), pp. 451-88. Oswald, A. et al. (2003), ‘Einwanderungsland Deutschland: A new look at its post-war history’ in Ohliger, R. et al. (eds), European encounters. Migrants, migration and European societies since 1945 (Aldershot: Ashgate), pp. 1937. Pajares, M. (2005), La integración ciudadana: Una perspectiva para la inmigración (Barcelona: Icaria Antrazyt). Pajares, M. (2004), Inmigración y políticas de integración social (Madrid: Fundación Alternativas). Palidda, S. (2009a), Razzismo democratico. La persecuzione degli stranieri in Europa (Milan: Agenzia X). Palidda, S. (ed.) (2009b), Criminalization and victimization of foreigners in XXI Century (Milan: Agenzia X). Palidda, S. (2008), Mobilità umane (Milan: Cortina). Palidda, S. (2007), ‘Missions militaires italiennes à l’étranger: la prolifération des hybrides’, Cultures & Conflits, no. 67, 113-30. Palidda, S. (2005a), ‘Le migrazioni nordafricane’, in Fondazione Ismu (ed.), Decimo Rapporto sulle Migrazioni (Milan: Ismu-Angeli), pp. 259-72. Palidda, S. (2005b), ‘Migration between prohibitionism and the perpetuation of illegal labour’, History and Anthropology, vol. 16 no. 1, 63-73. Palidda, S. (2005c), ‘Migrants, étrangers, criminels: Le court-circuit sécuritaire à la suite de la deuxième grande transformation et la nécessité d’une gestion négociée et démocratique du désordre’ in Conseil d’Europe (ed.), Tendances de la cohésion sociale, vol. 11, pp. 49-68. Palidda, S. (2004), ‘Le nuove migrazioni verso i paesi del nordafrica e verso l’Europa’ in Fondazione Ismu (ed.), Nono rapporto sulle migrazioni (Milan: Ismu-Franco Angeli), pp. 281-98. Palidda, S. (2004-1995), ‘Rapporto sulle migrazioni’ in Fondazione Ismu (ed.), (Milan: FrancoAngeli). Palidda, S. (2002), ‘Milan globale entre affarisme et politique sécuritaire’ in Peraldi, M. (ed.), La fin des norias (Paris: Maisonneuve & Larose), pp. 91123. Palidda, S. (2001), Devianza e vittimizzazione tra i migranti (Milan: Ismu-Franco Angeli).

398

Illiberal Liberal States

Palidda, S. (2000a) (ed.), Socialità e inserimento degli immigrati a Milano (Milan: Franco Angeli). Palidda, S. (2000b), Polizia postmoderna. Etnografia del nuovo controllo sociale (Milan: Feltrinelli). Palidda, S. (1999a), ‘La criminalisation des migrants en Europe’, Actes de la Recherche en Sciences Sociales, no. 129, 39-49. Palidda, S. (1999b), ‘Polizia e immigrati: Un’analisi etnografica’, Rassegna Italiana di Sociologia, vol. 40 no. 1, 77-114. Palidda, S. (1998a), ‘The integration of immigrants in changing urban environments: The example of Italy’ in OECD (ed.), Immigrants, integration and the cities. Exploring the links (Paris: OECD), pp. 117-36. Palidda, S. (1998b), ‘La conversione poliziesca delle politiche migratorie’ in Dal Lago, A. (ed.), Lo straniero e il nemico. Materiali per l’etnografia contemporanea (Genova: Costa & Nolan), pp. 209-35. Palidda, S. (ed.) (1996), Délit d’immigration. La construction sociale de la déviance et de la criminalité parmi les immigrés en Europe (Brussels: European Community, Collection Cost A2 Migrations). Papadopoulou, R.E. (1996), Principes généraux de droit et droit communautaire – Origines et concrétisation (Bruxelles: Bruylant). Peers, S. (2007), ‘The jurisdiction of the court of justice over EC immigration and asylum Law: Time for a change?’ in Baldaccini, A. et al. (eds), Whose freedom, security and justice? EU immigration and asylum law and policy (Oxford: Hart Publishing), pp. 85-108. Peers, S. (2006a), EU justice and home affairs law, Second Edition (Oxford: Oxford EC Law Library). Peers, S. (2006b), ‘The EU institutions and title IV’ in Peers, S. and Rogers, N. (eds), EU immigration and asylum law: Text and commentary (Leiden: Martinus Nijhoff Publishers), pp. 47-79. Peers, S. (2004), ‘Family reunion and community law’ in Walker, N. (ed.), Europe’s area of freedom, security and justice (Oxford: Oxford University Press), pp. 143-97. Peers, S. (2004), ‘Implementing equality? The directive on long-term resident third country nationals’, European Law Review, vol. 29 no.4, 437-40. Peers, S. (2004), ‘Taking the rights away? Derogations and limitations’ in Peers, S. and Ward (eds), The EU charter of rights: Politics, law and policy (Oxford: Hart Publishing), p. 141. Peers, S. (2001), ‘Immigration, asylum and the European Union charter of fundamental rights’, European Journal of Migration and Law, vol. 3 no. 2, 141-69. Peers, S. (1997), ‘Undercutting integration: Developments in EU policy on thirdcountry nationals’, European Law Review, no. 22, 76-84. Peers, S. (1996), ‘Towards equality: Actual and potential rights of third country Nationals in the European Union’, Common Market Law Review, no. 33, 750.

Bibliography

399

Peers, S. and Rogers, N. (eds) (2006), EU immigration and asylum law: Text and commentary (Leiden: Martinus Nijhoff Publishers). Pelinka, A. (1998), Austria: Out of the shadow of the past (Boulder: Westview Press). Penninx, R., Spencer, D. and Van Hear, N. (2008), Migration and integration in Europe: The state of research, ESRC Centre on Migration, Policy and Society (COMPAS), University of Oxford, available from 18 December 2008. Penninx, R. Berger, M. and Kraal, K. (eds) (2006), The dynamics of international migration and settlement in Europe. A state of the art (Amsterdam: AUP, IMISCOE Joint Studies Series). Penninx, R. (2005), ‘Integration of migrants: Economic, social, cultural and political dimensions’ in Macura, M. et al. (eds), The new demographic regime. Population challenges and policy responses (New York/Geneva: United Nations), pp. 137-52. Penninx, R. (2004), Integration of migrants: Economic, social, cultural and political dimensions, Background Paper for the UNECE Conference 12-14 January 2004, Geneva. Penninx, P. (2003), Immigration without integration: A recipe for disaster, Policy Brief, Summary Report of the Athens Capstone Conference, available from , accessed 18 December 2008, pp. 60-64. Pepino, L. (2000), ‘Centri di detenzione ed espulsioni. Irrazionalità del sistema e alternative possibili’, Diritto Immigrazione e Cittadinanza, vol. 2 no. 2, 1124. Peraldi, M. (ed.) (2002), La fin des norias? Réseaux migrants dans les économies marchandes en méditerranée (Paris: Maisonneuve & Larose). Peraldi, M. (ed.) (2001), Cabas & containers (Paris: Maisonneuve & Larose). Perchinig, B. (2006), ‘EU citizenship and the status of third country nationals’ in Bauböck, R. (ed.), Migration and citizenship: Legal status, rights and political participation, IMISCOE Reports, (Amsterdam: Amsterdam University Press), pp. 67-82. Perchinig, B. (2005), ‘Blocked by constitution: How the constitutional court stopped municipal voting rights for third country nationals in Vienna’, Paper prepared for the ESF/LESC-SCSS Exploratory Workshop: Citizens, noncitizens and voting rights in Europe, Edinburgh, 2-5 June 2005. Petti, G. (2008), Nemici di comodo. Pratiche di esclusione nei processi per terrorismo internazionale (Milano: Libreria Clup). Petti, G. (2004), Il male minore. La tutela dei minori stranieri come esclusione (Verona: Ombre Corte). Pinyol, G. (2006), ‘Construint la convivència: immigració i integració a Catalunya’, Paper presented at the International Conference Immigration in Catalonia: History, Discourses, Representations, 6-7 July 2006, Queen Mary, University of London.

400

Illiberal Liberal States

Pollet, K. (2000), ‘The Amsterdam Treaty and immigration and asylum policies: A legal analysis’, Revue des affaires européenne, no. 1, 57-80. Potz, R. (1996), ‘State and church in Austria’ in Robbers, G. (ed.), State and church in the European Union (Baden Baden: Nomos), pp. 229-58. Pratt, S. (2006), ‘Immigration, integration and citizenship: Latest developments and the EU’s role’ in Carrera, S. (ed.), The nexus between immigration, integration and citizenship in the EU, Collective Conference Volume, April 2006, Centre for European Policy Studies (Brussels: CEPS), pp. 12-15. Preuss, U.K. (1996), ‘Two challenges to European citizenship’, Political Studies, vol. 44 no. 3, Special Issue, 534-52. Putman, E. (2006), ‘Loi du 24 juillet 2006: Une immigration selon les mérites?’, Revue Juridique Personnes & Famille, 12, 6-8. Quassoli, F. (2002), ‘Il sapere dei magistrati: Un approccio etnografico allo studio delle pratiche giudiziarie’ in Dal Lago, A. and De Biasi, R. (eds), Un certo sguardo. introduzione all’etnografia sociale (Bari: Laterza), pp. 196-217. Quassoli, F. (1999), ‘Immigrazione uguale criminalità: rappresentazioni di senso comune e pratiche degli operatori del diritto’, Rassegna Italiana di Sociologia, vol. 40 no.1, 43-76. Rahola, F. (2003), Zone definitivamente temporanee. I luoghi dell’umanità in eccesso (Verona: Ombre corte). Raible, K. (2003), ‘The approximation of the legal status of third-country nationals to that of Union citizens’ in Bodnar, A. et al. (eds), The emerging constitutional law of the European Union: German and Polish perspectives (Berlin: Springer), pp. 519-47. Randelzhofer, A. (1995), ‘Marktbürgerschaft – unionsbürgerschaft – staatsbürgerschaft’ in Randelzhofer, A. (ed.), Gedächtnisschrift für E. Grabitz (Munich: Beck Verlag), pp. 581-94. Ray, B. (2003), The policy challenges of intervention in local and private integration processes, Policy Brief, Summary Report of the Athens Capstone Conference, pp. 64-68, available from , accessed 18 December 2008. Reddig, M. (2005), Bürger jenseits des staates? Unionsburgerschaft als mittel europäischer integration (Nomos Verlagsgesellschaft: Baden-Baden). Régnard, C. (2006), Immigration et présence étrangère en France en 2005, Rapport Annuel de la Direction de Population et des Migrations, Ministère de l’Emploi, de la Cohésion Social et du Logement, pp. 96-112. Reyneri E., Allasino, E., Reyneri, E. and Zincone, G. (2004), Labour market discrimination against migrant workers in Italy, International Migration Papers, no. 67 (Geneva: ILO). Reyneri, E. (1996), ‘Gli immigrati in una società terziaria e segmentata’ in Reyneri, E. (ed.), Sociologia del mercato del lavoro (Bologna: Il Mulino), pp. 313-44. Rivera, A.M. (2003), Estranei e nemici. Discriminazione e violenza razzista in Italia (Rome: Derive & Approdi).

Bibliography

401

Roman, J. (1995), ‘Un multiculturalisme á la française’, Esprit, June 1995, 14560. Rosenberger, S. and Hadj-Abdou, L. (2009), ‘The crescent on top of the alps? Anti-islamic campaign discourse of the far-right parties in Austria’ in Jenkins, B. et al. (eds), The far right in contemporary Europe (New York: Palgrave Macmillan). Roodenburg, H., Euwals, R. and ter Rele, H. (2003), Immigration and the Dutch economy (Den Haag: Bijzondere Publicatie). Rubio Marín, R. (2006), ‘Spain’ in Bauböck, R. et al. (eds), Acquisition and loss of nationality, Volume II: Country analyses, policies and trends in 15 European countries, IMISCOE Research (Amsterdam: Amsterdam University Press), pp. 477-515. Rubio-Marín, R. (2000), Immigration as a democratic challenge; Citizenship and inclusion in Germany and the United States (Cambridge: Cambridge University Press). Ryan, B. (2008), ‘Integration requirements: A new model in migration law’, Journal of Immigration Asylum and Nationality Law, no. 22, 303-16. Ryan, B. (2007), ‘The European Union and labour migration: Regulating admission or treatment?’ in Baldaccini, A. et al. (eds), Whose freedom, security and justice? EU immigration and asylum law and policy (Oxford: Hart Publishing), pp. 489-515. Sacchetto, D. (2006), ‘Un’area di manovalanza stigmatizzata’ in Vianello, F. (ed.), Ai margini della città. Forme del controllo e risorse sociali nel nuovo ghetto (Rome: Carocci). Sacchetto, D. (2005), ‘Sistemi di occupazione e nuove guerre nell’Europa sudorientale’, Conflitti Globali, no. 1, 139-59. Sacchetto, D. (2004), Il nordest e il suo oriente. Migranti, capitali e azioni umanitarie (Verona: Ombre corte). Salih, R. (2003a), Gender in transnationalism. Home, longing and belonging among Moroccan migrant women (London-New York: Routledge). Salih, R. (2003b), ‘Transnazionalismo e multiculturalismo. Pratiche di resistenza e meccanismi di contenimento’, Contemporanea, vol. 6 no. 7, 150-57 Santoro, E. (2006), ‘Dalla cittadinanza inclusiva alla cittadinanza escludente: il ruolo del carcere nel governo delle migrazioni’, Diritto e questioni pubbliche, vol. 6 no. 6, 39-79. Sassen, S. (ed.) (1999), Guests and aliens (New York: The New Press). Sayad, A. (1999), La doppia assenza. Dalle illusioni dell’emigrato alle sofferenze del’immigrato (Milan: Raffaelo Cortina Editore). Sayad, A. (1991), L’immigration ou les paradoxes de l’altérité (Brussels: Editions Universitaires et De Boeck). Schaffrin, D. (2005), ‘Which standard for family reunification for third-country nationals in the European Union’ in Carlier, J.Y. and de Bruycker, P. (eds), Immigration and asylum law of the EU: Current debates (Brussels: Bruylant), pp. 90-143.

402

Illiberal Liberal States

Schain M. (1999), ‘Minorities and immigrant incorporation in France: The state and the dynamics of multiculturalism’ in Joppke, C. and Lukes, S. (eds), Multicultural questions (Oxford: Oxford University Press), pp. 199-223. Schermes, H.G. and Waelbroeck, D.F. (2001), Judicial protection in the European Union (The Hague: Kluwer Law International). Schibel, Y. (2004), ‘Transposing EU law on legal migration’, European Journal of Migration and Law, vol. 6 no. 4, 395-404. Schiek, D. (2006), ‘The ECJ decision in mangold: A further twist on effects of directives and constitutional relevance of community equality legislation’, Industrial Law Journal, vol. 35 no. 3, 329-41 Schiek, D. (2000), ‘A new framework on equal treatment of persons in EC law?’, European Law Journal, vol. 8 no. 2, 290-314. Schinkel, W. (2008), ‘The Netherlands dream, criticism on neo-nationalism’ [De Nederlandse Droom, Kritiek op het neonationalism], 31 October (Amsterdam: De Groene). Schnapper, D. (2007), Qu’est-ce que l’intégration?, Folio Actuel 125 (Paris: Gallimard). Schnapper, D. (1994), La communauté des citoyens: Sur l’idée moderne de nation (Paris: Gallimard). Schnapper, D. (1992), L’Europe des immigrés, essai sur les politiques d’immigration (Paris: François Bourin). Schnapper, D. (1991), La France de l’intégration. Sociologie de la nation en 1990 (Paris: Gallimard). Schneider, F. (2007), ‘Shadow economies and corruption all over the world: New estimates for 145 countries’, Economics, The Open-Access, Open-Assessment E-Journal, vol. 1 no. 9. Schneider, H. (2005), ‘Towards a European migration policy: From Maastricht to Amsterdam, from Tampere to the Hague’ in Schneider, H. (ed.), Migration, integration and citizenship: A Challenge for Europe’s future, vol. II, (Maastricht: Forum Maastricht), pp. 7-33. Schneider, H. and Wiesbrock, A. (2005), ‘The council directive on family reunification: establishing proper rights for third country nationals?’ in Schneider, H. (ed.), Migration, integration and citizenship: A challenge for Europe’s future, vol. II (Maastricht: Forum Maastricht), pp. 35-70. Schuck, P. (2002), ‘Some federal-state developments in immigration law’, NYU Annual Survey of American Law, no. 58, 387-90. Schuck, P.H. (2002), ‘Plural citizenships’ in Hansen, R. and Weil, P. (eds), Dual nationality, social rights and federal citizenship in the U.S. and Europe (New York, Oxford: Berghahn Books), pp. 61-99. Schuck, P. (1994), ‘Whose membership is it anyway? Comments on Gerald Neuman’, Virginia Journal of International Law, vol. 35, 321-31. Schwarze, J. (1992), European administrative law (London: Sweet and Maxwell).

Bibliography

403

Scrinzi, F. (2006), ‘Interni Domestici. Lavorare “Fissa” Come Colf e Assistente Famigliare’, Conflitti Globali, no. 4, 168-78. Scrinzi, F. (2003), ‘Ma culture dans laquelle elle travaille. Les migrantes dans les services domestiques en Italie et en France’, Cahiers du Cedref, no. 10, ‘Genre, travail et migrations en Europe’, 137-62. Serra, A. et al. (2005), ‘Spain’ in Niessen, J. et al. (eds), Current immigration debates in Europe (Brussels: Migration Policy Group). Seveker, M. (2006), ‘Sprachpraxis und sprachangebote in der russlanddeutschen minderheitensituation: die siedlung Gljaden’ in der westsibirischen altairegion’ in Walter A. et al. (eds), Grenzen der gesellschaft? Migration und sozialstruktureller wandel in der zuwanderungsregion Europa, IMIS Schriften 14, (Göttingen: Universitätsverlag Osnabrück), pp. 219-39. Shah, R. (2007), ‘Language tests for permanent residents’, Journal Immigration, Asylum and Nationality Law, vol. 21 no. 26. Shaw, J. (2007), The transformation of citizenship in the European Union. Electoral rights and the restructuring of European political space (Cambridge: Cambridge University Press). Shaw, J. (1997), ‘The many pasts and futures of citizenship in the European Union’, European Law Review, vol. 22 no. 6, 554-72. Schermes, H.G. and Waelbroeck, D.F. (2001), Judicial protection in the European Union (The Hague: Kluwer Law International). Schwarze, J. (1992), European administrative law (London: Sweet and Maxwell). Sierra, M.M. and Patel, J. (2001), For a real citizenship (Brussels: ENAR). Simon, J. (2007), Governing through crime. How the war on crime transformed American democracy and created a culture of fear (New York: Oxford University Press). Soysal, Y.N. (1996), ‘Changing citizenship in Europe: Remarks on postnational membership and the national state’ in Cesarani, D. and Fullbrook, M. (eds), Citizenship, nationality and migration in Europe (London and New York: Routledge), pp. 17-29. Soysal, Y.N. (1994), Limits of citizenship. Migrants and postnational membership in Europe (Chicago: University of Chicago Press). Spencer, S. (2003), The challenges of integration for the European Union, Policy Brief, Summary Report of the Athens Capstone Conference, pp. 68-72, available from , accessed 18 December 2008. Spiro, P.J. (2003) ‘Political rights and dual nationality’ in Martin, D.A. and Hailbronner, K. (eds), Rights and duties of dual nationals: Evolution and prospects (The Hague, London: Kluwer Law International), pp. 135-52. Spiro, P.J. (2002), ‘Embracing dual nationality’ in Hansen, R. and Weil, P. (eds), Dual nationality, social rights and federal citizenship in the U.S. and Europe (New York and Oxford: Berghahn Books), pp. 19-33. Spiro, P. (2001), ‘Federalism and immigration: models and trends’, International Social Sciences Journal, no. 167, 67-73.

404

Illiberal Liberal States

Spohn, W. and Triandafyllidou, A. (eds) (2003), Europeanisation, national identities and migration. Changes in boundary constructions between western and eastern Europe (London: Routledge). Staples, H. (1999), The legal status of third country nationals resident in the European Union, European Monographs 22 (The Hague: Kluwer Law International). Straubhaar, T. (2003), ‘Wird die staatsangehörigkeit zu einer klubmitgliedschaft?’ in Thränhardt, D. and Hunger, U. (eds), Migration im spannungsfeld von globalisierung und nationalstaat (Aus der Reihe: Leviathan Sonderhefte), pp. 76-89. Su, R. (2008), Notes on the multiple facets of immigration federalism, Buffalo Legal Studies Research paper Series, Paper no. 2008-11, available from , accessed December 2008. Süssmuth, R. and Weidenfeld, W. (eds) (2004), Managing integration. European Union responsibilities towards immigrants (Brussels: Bertelsmann Foundation) pp. 146-63. Tálos, E. (2006), ‘Sozialpartnerschaft. Austrokorporatismus am ende?’ in Dachs, H. et al. (eds), Politik in Österreich: das handbuch (Wien: Manz), pp. 425-42. Tapinos, G. (1992), La France dans deux générations (Paris: Foyard). Taylor C. (1994), Multiculturalism and the politics of recognition (Princeton, NJ: Princeton University Press). Teulings, C. (1995), ‘Solidariteit en uitsluiting. De keerzijden van een en dezelfde medaille’ in Engbersen, G. and Gabriëls, R. (eds), Sferen van integratie (Amsterdam: Boom), pp. 48-73. Thiele, C. (2007), ‘Das Integrationserfordernis für Drittstaatsangehörige nach dem Zuwanderungsgesetz’, DöV, 58-65. Thiellay, J.P. (2005), ‘Le volet “nationalité” de la loi du 26 novembre 2003: Un durcissement en catimini’, L’Actualité Juridique de Droit Administrative, 17 Janvier 2005, 67-70. Thränhardt, D. (2008), Einbürgerung. Rahmenbedingungen, motive und perspektiven des erwerbs der deutschen staatsangehörigkeit, Advisory opinion for Friedrich-Ebert-Stiftung Bonn. Thränhardt, D. (1999), ‘Germany’s immigration policies and politics’ in Brochmann, G. and Hammar, T. (eds), Mechanisms of immigration control: A comparative analysis of European regulation policies (Oxford: Berg). Thränhardt, D. (1996), ‘Germany – An undeclared immigration country’ in Thränhardt, D. (ed.), Europe. A new immigration continent (Münster: LIT) pp. 198-223. Todd, E. (1994), Le destin des immigrés: Assimilation et ségrégation dans les démocraties occidentales (Paris: Seuil). Toggenburg, G.N. (2002), ‘The race directive: A new dimension in the fight against ethnic discrimination in Europe’, European Yearbook of Minority Issues, vol. 1 no. 2, 231-44. Tóth, J. (2008), ‘Is there a strategy on the foreign labour force in Hungary?’, Minority Research, no. 10, 9-24.

Bibliography

405

Tóth, J. (2007a), On the structural and methodological issues in the field of fundamental and minority rights after the eastward enlargement, Briefing Paper, DG Internal Policies, Policy Dept. Citizens Right and Constitutional Affairs – European Parliament’s committee on Civil Liberties, Justice and Home Affairs, October, pp. 1-12. Tóth, J. (2007b), ‘Constitutionalism in the member states and in the EU’ in Ágh, A. and Ferencz, A. (eds), Overcoming the EU crisis: EU perspectives after the eastern enlargement (Budapest: ‘Together for Europe’ Research Centre and Foundation), pp. 91-104. Tóth, J. (2007c), ‘Is it possible to regulate citizenship by referendum?’, Minorities Research, no. 9, Budapest, 88-121. Tóth, J. (2006), ‘Relations of kin-state and kin-minorities in the shadow of the schengen regime’, Regio, vol. 9, 18-46. Tóth, J. (2005), ‘Principles and practice of nationality law in Hungary’, Regio, vol. 8, 21-39. Tóth, J. (2004), ‘Aspects of analysing the minority problem’ in Szarka, L. (ed.), Hungary and the Hungarian minorities (Trends in the Past and Our Time), Atlantic Studies on Society in Change no. 122 (New York City: Columbia University Press), pp. 223-44. Tóth, J. (2000), ‘Diaspora politics: Programs and prospects’ in Kiss, I. and McGovern, C. (eds), New diasporas in Hungary, Russia and Ukraine: Legal regulations and current politics (Budapest: Open Society Institute/COLPI), pp. 96-141. Tóth, J., Balazs, P., Duleba, A., Schneider, J. and Smolar, E. (2008), The impact of the enlarged schengen zone on the eastern neighbourhood policy: From proper assessment to pragmatic adjustment, Joint Policy Paper, no. 3, February 2008, within the project of ‘Strengthening Central European Contribution to the Eastern Dimension of the EU’s CFSP’. Trifirò, A. and Corso, C. (2003), E siamo partite. Migrazione, tratta e prostituzione straniera in Italia (Florence: Giunti). Trimidas, T. (2006), The general principles of EU law, Second Edition (Oxford: Oxford University Press). Tyson, A. (2001), ‘The negotiation of the European Community directive on racial discrimination’, European Journal of Migration and Law, vol. 3 no. 2, 199-229. Urth, H. (2005), ‘Building a momentum for the integration of third-country nationals in the European Union’, European Journal of Migration and Law, vol. 7 no. 2, 163-80. Urwin, D. (1995 [1991]), The community of Europe: A history of European integration since 1945 (London: Longman). Valluy, J. (2005), ‘La nouvelle Europe politique des camps d’exilés: Genèse d’une source élitaire de phobie et de répression des étrangers’, Cultures & Conflits, no. 57, 13-69. Van Dijk, P. (2001), ‘Protection of “integrated” aliens against expulsion under the European Convention of Human Rights’ in Guild, E. and Minderhoud, P.

406

Illiberal Liberal States

(eds), Security of residence and expulsion: Protection of aliens in Europe (The Hague: Kluwer Law Internationals), pp. 23-40. Van Oers, R. (2007) ‘Naturalisatietoets geslaagd?’, Migrantenrecht, no. 6, 240-245. Van Oers, R. (2006), De naturalisatietoets geslaagd? Een onderzoek naar de totstandkoming en effecten van de naturalisatietoets (Nijmegen: Wolf Legal Publishers). Van Oers, R. (2005), Limits of European citizenship: European integration and domestic immigration policies (Basingstoke: Palgrave Macmillan). Van Oers, R. et al. (2006), ‘Netherlands’ in R. Bauböck et al. (eds), Acquisition and loss of nationality, Volume II: Country analyses (Amsterdam: Amsterdam University Press), pp. 391-423. Vandendriessche, X. (2005), ‘Le droit des étrangers’, Connaissance du droit, (Paris: Éditions Dalloz). Vassallo Paleologo, F. and Cuttitta, P. (eds) (2006), Migrazioni, frontiere, diritti (Naples: Esi). Velluti, S. (2007), ‘What European strategy for integrating migrants? The role of the OMC soft mechanisms in the development of an EU immigration policy’, European Journal of Migration and Law, vol. 9 no. 1, 53-82. Vermeulen, B. (2007), Vrijheid, gelijkheid, burgerschap (Den Haag: Sdu Uitgevers). Vermeulen, H. and Penninx, R. (eds) (2000), Immigrant integration. The Dutch case (Amsterdam: Het Spinhuis). Verschueren, H. (2007), ‘European (internal) migration law as an instrument for defining the boundaries of national solidarity systems’, European Journal of Migration and Law, vol. 9 no. 3, 307-46. Vertovec, S. (2007) ‘Super-diversity and its implications’, Ethnic and Racial Studies, vol. 30 no. 6, 1024-54. Vertovec, S. (1998), ‘Multicultural policies and modes of citizenship in European cities’, International Social Science Journal, no. 156, 187-99. Vink, M. (2005), Limits of European citizenship: European integration and domestic immigration policies (Basingstoke: Palgrave Macmillan). Waldrauch, H. (2006), Acquisition of nationality, Chapter 3, NATAC, available from IMISCOE website , accessed 18 December 2008. Waldrauch, H. (ed.), (2001), Die Integration von einwanderern: ein index der rechtlichen diskriminierung (Frankfurt: Campus Verlag). Walzer, M. (1983), Spheres of justice. A defence of pluralism and equality (Oxford: Basil Blackwell). Weber, E. (1976), Peasants into frenchmen: The modernization of rural France, 1870-1914 (Standford: Standford University Press). Weil, P. (2005), La République et sa diversité: Immigration, intégration, discrimination, Éditions du Seuil et la République des Idées, avril 2005.

Bibliography

407

Weil, P. (2004), ‘Histoire et mémoire des discriminations en matière de nationalité Française’, Vingtième Siècle: Revue d’Histoire, no. 84, octobre-décembre 2004, 7-8. Weil, P. (2002), Qu’est-ce qu’un français? Histoire de la nationalité française de la révolution à nos jours (Paris: Grasset). Weil, P. (1997), Mission d’étude des législations de la nationalité et de l’immigration: des conditions d’application du principe du droit du sol pour l’attribution de la nationalité française, pour une politique de l’immigration juste et efficace (Paris: La Documentation Française). Weil, P. (1991), La France et ses étrangers - L’aventure d’une politique de l’immigration, 1938-1991 (Paris: Calmann-Lévy). Weil, P. and Spire, A. (2006), ‘France’ in Bauböck, R. et al. (eds), Acquisition and loss of nationality, Volume II: Country analyses, policies and trends in 15 European Countries, IMISCOE Research (Amsterdam: Amsterdam University Press), pp. 187-211. Weil, P. and Crowley, J. (1994), ‘Integration in theory and practice: A comparison of France and Britain’ in Baldwin-Edwards, M. and Schain, M. (eds), The politics of immigration in western Europe (London: Frank Cass). Weiler, J.J. (1995), ‘Does Europe need a constitution? Reflections on demos, telos and the German Maastricht decision’, European Law Journal, vol. 1 no. 3, 219-58. White, R. (2005), ‘Residence, benefit entitlement and community law’, Journal of Social Security Law, no. 12, 10-25. Wiener, A. (1997) ‘Assessing the constructive potential of Union-citizenship - A sociohistorical perspective’, European Integration On-line Papers, vol. 1 no. 17. Wiener, A. and Della Sala, V. (1997) ‘Constitution-making and citizenship practice - bridging the democracy gap in the EU?’, Journal of Common Market Studies, vol. 35 no. 4, 595-614. Wieshaider, W. (2004), ‘The legal status of the Muslim minority in Austria’ in Aluffi R.B.P. and Zincone, G. (eds), The legal treatment of Islamic minorities in Europe (Leuven: Peeters Publishers). Wieviorka, M. (1998), ‘Le multiculturalisme est-il la réponse?’, Cahiers Internationaux de Sociologie, no. 105, 233-68. Wieviorka, M. (1996), Une société fragmentée? Le multiculturalisme en débat (Paris: La Découverte). Wieviorka, M. (1992), La France raciste (Paris: Fayard). Wihtol de Wenden, C. (2002), ‘Ouverture et fermeture de la France aux étrangers: Un siècle d’évolution’, Vingtième Siècle: Revue d’Histoire, no. 73, JanuaryMarch 2002, 27-38. Wihtol de Wenden, C. (1999), L’immigration en Europe (Paris: La Documentation Française). Wihtol de Wenden, C. (1994), ‘Citizenship and nationality in France’ in Bauböck, R. (ed), From aliens to citizens: Redefining the status of immigrants in Europe (Aldershot: Avebury), pp. 85-94.

408

Illiberal Liberal States

Willy, A. (1992), ‘Free movement of non-EC nationals: A review of the case-law of the Court of Justice’, European Journal of International Law, vol. 3 no. 1, 53-64. Wishnie, M. (2001), ‘Laboratories of bigotry? Devolution of the immigration power, equal protection, and federalism’, New York University Law Review, no. 76, 493-569. Wolf, H.A. (2003), ‘De vernieuwde naturalisatietoets’ [The new naturalisation test], Migrantenrecht, vol. 18 no. 4-5, 124-5. Wolfrum, R. and Röben, V. (2006), Gutachten zur vereinbarkeit des gesprächsleitfadens für die einbürgerungsbehörden des landes BadenWürttemberg mit dem Völkerrecht, Heidelberg, 8 March. Zapata-Barrero, R. (2006), ‘Filosofies de la immigració i autogovern: el Quebec, Flandes i Cataluya’, Revista d’estudis autonòmics i federals, no. 2, 177-224. Zapata-Barrero, R. (2005), ‘Construyendo una filosofía pública de la inmigración en Catalunya: los términos del debate’, Revista de Derecho Migratorio y Extranjería, no. 10, 9-38. Zapata-Barrero, R. (2001), Ciudadanía, democracia y pluralismo cultural: Hacia un nuevo contrato social (Barcelona: Anthropos). Zappi, S. (2003), French government revives assimilation policy, migration information source, Migration Policy Institute, 1 October 2003, available from , accessed 18 December 2008. Zarrehparvar, M. and Olsen, B.K. (2006), Supplementary report to Denmark’s sixteenth and seventeenth periodical report to the International Convention on the Elimination of all Forms of Racial Discrimination, Danish Institute for Human Rights. Zincone, G. (ed.) (2001), Secondo rapporto sull’integrazione degli immigrati in Italia, Commissione per le politiche di integrazione degli immigrati (Bologna: Il Mulino). Zincone, G. (ed.) (2000), Primo rapporto sull’integrazione degli immigrati in Italia, Commissione per le politiche di integrazione degli immigrati (Bologna: Il Mulino). Zorn, J. (2005), ‘Ethnic citizenship in Slovenian state’, Citizenship Studies, vol. 9 no. 2, 135-52.

Index

absorption capacity 19, 112 accommodation policy 354 acquisition of nationality 19, 43, 107, 110, 279, 318-19, 322 Act on Civic Integration Abroad 245 Act on the Integration of New Immigrants 247 active citizenship 23, 289-92, 297 AFSJ 2, 339 Algeria 263, 319, 326 Allochtonous 244 AMCL 325, Amsterdam Treaty 4, 208, 339 ANAEM 328-29 area of freedom, security and justice 2, 21, 183, 216, 339 assimilation 23, 51-2, 61, 75, 82-3, 90, 94, 115-16, 131, 138, 149, 152, 176, 180, 186, 261, 298, 316, 317-22, 351, 357 assumption of justifiability 197-98 Austria 4, 18, 20, 33, 42-7, 53-57, 61, 71-6, 107, 111, 113, 149, 150-63, 217, 360 autochthonous 244, 358 autonomous communities 338, 343-47, 356 asylum 24, 34-5, 68, 86, 92, 116-18, 121, 152, 192, 218, 254, 266, 273, 327, 338-39, 342, 370, 372 Austro-Hungarian Empire 154, 162 A8 jobseekers 233 BAFL 267, 274 BAMF 267 benchmarking 2 Berlusconi 42, 368, 370, 372 best practices 2, 31, 83, 168, 182 Blue Card 83, 205, 209, 212, 219 border control 1, 36, 339, 342, 346, 372 British migration law 23, 277, 296-97

Britishness 122, 290 Brown 290, 293 CAI 24, 315, 323, 324-30, 332 Cantons 32 Catalan government 337, 346-48, 350-51, 354-55 identity 350-51, 354-5 language 352, 354-5 way of integration 351 Catalonia 24, 337-38, 345-47, 349-52, 354-56 CBPs 2, 6, 83, 183-85, 201 CEFR 57, 63-64, 67, 73, 125, 265-9, 29395 CESEDA 266, 327, 329, 331 Charter of Fundamental Rights 55, 155, 178, 207, 216 church 153, 157, 244, 372 circle of hollow references 196, 203 citizenship act 304, 307 ceremonies 183, 282, 284 courses 117 multiple 107, 109-10 religious 20, 149, 151, 155, 159-61, 163 residence 353 test(s) 7, 8, 12, 18-19, 51-3, 63, 71, 74, 76, 113-15, 120-22, 128, 304, 310 civic citizenship 19, 82, 94, 107, 159, 178, 182, 202, 207, 213, 216, 253 courses 184 introductory courses 17 integration act 246-49, 251, 253-7, integration exam 64-8, 72, 88-89 orientation 185, 272 participation 31, 182

410

Illiberal Liberal States

training 324-25, 329 stratification 84 collective identity 79, 112 Common Agenda for Integration 185, 196 Immigration Policy 2, 4, 185, 316, 334 Commonwealth 34-35, 235, 279, 285 community of citizens 2, 134, 143 cohesion 23, 116, 118, 277, 291, 297-8 condition for naturalisation 8, 51, 70, 7576, 106, 142, 145, 248, 280, 310 conditionality of integration 3, 5, 168, 332 consociationalism 244 Copenhagen Criteria 103 Court of Justice of the European Communities Antonissen 170, 228 Baumbast 175 Bidar 173-74, 236 Collins 170, 174, 228, 232, 236 Crzelczyk 173, 230 De Cuyper 172, 174-75 European Parliament v Council 5, 10, 200, 215, 311 Mangold 199-201, 313-14 Metock 13 Sala 169, 173 Trojani 174, 226, 228, 230, 236 CTA 232, Denmark 13-14, 23, 182, 195, 228-29, 299-304, 308-11, 313-14 Danish Act on Active Social Policy 228 declaration of loyalty 62 deprivation of citizenship 107 detention camps 372 diaspora 19, 39, 48, 105-7, 111-12, digital practical test 66 DILF 329 diplomatic protection 80, 134 direct discrimination 188, 232, 312 Directive 2000/43 23, 85, 187, 191, 300, 312 2000/78 20, 23, 85, 156-57, 197, 300, 312 2003/86 11, 23, 86, 89, 180, 187, 200, 251, 300, 311, 330, 332, 334

2003/109 4, 5, 21, 83, 86, 160, 181, 187, 197, 214, 251, 300, 311, 323, 327, 330, 334 DG JFS 185 DPM 263 dual nationality 40, 87, 93-94, 132 ECHR 10, 14, 55, 155-56, 198-200, 203, 296 ECJ 5-6, 11, 13, 15, 23, 91, 169, 171, 173175, 191, 198, 199-201, 205-06, 215, 226-8, 230-4, 236-7, 311, 313-14 ECtHR 198, 199 EEA 12, 68, 196, 228, 232, 249-50, 28485, 288-89 EMMI 7, 184 Employment Equality Directive 160 enlargement 3, 14, 19, 101, 106, 111-12, 228, 231, 236 ENP 106 encitizenation 242 equal participation 167, 176, 178, 184, 185, 186 equal treatment 15, 21, 31, 81, 83, 84, 85, 91, 135, 167, 168, 170-76, 178, 179, 185-89, 191, 195, 196, 198201, 203, 216, 223, 225-28, 241, 242, 248, 274, 299, 311-14 erased 143, 353 ethnic minorities 84, 86-87, 90, 103, 244-5 voting 85-86 EU Framework on Integration 2, 6, 7, 17, 168, 180-81, 183, 186 Eurobarometer 101 European citizenship 18-19, 21, 79-83, 89, 91-92, 97, 110, 112, 160, 173, 175, 205-8, 218 Convention on Human Rights 55, 86, 104, 198 Convention on Nationality 77, 103-04, 136 denizenship 178, 218 Economic and Social Committee 181 Economic Area 235, 285 identity 97, 101, 110, 112, 172, 205,

Index Immigrant Integration Policy 261 Immigration Law 2, 6, 202, 208 Integration Forum 6 Fund 2, 6 Modules for Migrant Integration 7, 184 Neighbourhood Policy 106 Eurostat 15, 358, 362 ESOL 119, 120, 122, 281, 283, 286, 290 exceptionalism 3, 4, 17 Exclusionary Conception of Integration 181 expulsion 16, 103, 175, 179, 222-23, 22930, 332, 370, 372 External Dimension of Integration 333 fair treatment 4, 81, 193, 299, 314 family reunification 3, 4, 9-14, 24, 86, 89, 92, 107, 150, 152, 170, 177-180, 200, 206, 209, 250, 256, 259, 261, 270-1, 273-74, 300-1, 305-6, 308, 310-12, 314, 316, 323, 330-4, 341, 356 FED 201-03 Federal Yugoslavian Citizenship 141 Finnish Aliens Act 230 forced marriages 55, 59, 180 Former Yugoslavia 141-3 Fortuyn 12, 243, 245, 251, 253 France 13-14, 22-23, 32, 41, 51, 69, 111, 161, 199, 230-31, 260-7, 269, 271-74, 315-21, 323-5, 329, 331, 334, 360 free movement of persons 20, 206, 216, 217 Freedom Party 162, 188 French citizenship 262, 318-19, 322 immigration law 322, 330, 332, 334 republicanism 316-18 Frenchness 318, 322 Fresh Talent initiative 36 Gaelic 68, 116, 118, 279, 281, 286 Gastarbeiter 150, 154, 357 gender 85, 91, 135, 191, 321

411

general principles of EU law 10, 197, 199200, 201, 203, 334 Geordie 70 German Free Movement Act 226 German Immigration Act 264 Germany 5, 8, 9, 13, 18, 22-23, 32-33, 42-4, 47, 52-53, 55, 57, 60-61, 69, 71-4, 76, 79, 83, 90-5, 139, 161-2, 200, 225-7, 260, 263-4, 266, 26971, 273, 299, 305, 307-10, 313, 360 global approach of immigration 356 Goethe Institute 13, 63 good practices 75, 182 Greco Plan 340-2 Green Paper 211, 289, 291 guest worker 150, 261, 357 Gypsies 365, 368, 370 habitual residence 22, 224, 231-5, 237, 327 Hague Programme 2, 81, 181, 183, 188, 209 Convention 132 Haider 162, 188 handbook on integration 7, 31, 182, 184 harassment 157, 188, 367 HCI 325-26 Hesse 60-2, 71, 75 highly qualified employment 211 workers 292 Hirsi Ali 254 holistic approach 344 Home Office 35, 69, 72, 117-19, 278, 280, 282-83, 290-5 homosexuality 59, 61, 265 honour killings 55, 59 House of Commons 34, 37-9, 116-17, 120, 296 House of Lords 38-39, 117-18, 120, 293-4 HSMP 292 IELTS 294 imams 249, 251-2, 274, 294 Ingeburgerd 51, 242 Inburgering 22, 64-66, 68, 88-89, 241-43, 245-47, 251, 255, 259-60, 262, 265, 267, 269

412

Illiberal Liberal States

indefinite leave 68, 212, 277, 284-90, 294 indirect discrimination 10, 23, 157, 172, 188, 190-91, 194, 197, 202, 312, 314 infringement proceedings 110, 232 integration abroad 5, 10, 24, 88-9, 245, 268, 316, 323, 330-4 agreement 57, 325 contract 24, 263, 266, 270, 274, 302-3, 308, 315, 323-4 local 274 plans 337, 346 programmes 75, 182, 184, 186, 241, 255-56, 260-1, 264, 267, 269, 272, 274, 308, 309 taskforce 260 test 3, 9-14, 18, 64-5, 68, 71, 75, 77, 86, 124, 128, 161, 215, 246-8, 251, 253-4, 259, 268, 289, 300, 307, 312, 314 intercultural dialogue 188 Islam 20, 150-1, 153-7, 161-2, 180, 244, 252 Islamophobic 86, 162 Italy 32, 35, 42, 69, 357, 359-63, 365-66, 369-72 Job Seekers Allowances 223, 225-28 Jus domicili 353 Jus sanguinis 19, 92, 95, 134, 143, 152 Jus soli 87, 93-95, 134 justice and home affairs 163, 177, 181, 188, 194, 201, 299 kin-minority 19, 103, 106-07, 112 kin-state policy 106, 110-11 knowledge of life requirements 277, 28290, 297 language requirement 12-14, 23, 63, 73, 94, 114, 117, 118, 119, 128, 271, 278-81, 283, 292-7, 304-5, 307 test 9, 12, 56-7, 64, 73, 76, 115, 125, 127, 269, 270-1, 273, 289, 292-3, 303, 305, 312, 321

laws on nationality 16, 105, 111 legal immigration 4, 57, 209, 211, 244, 368-9 linguistic assimilation 320-1 Lisbon strategy 209, 211 treaty 7, 101, 208 local border traffic 106 long-term residents directive 21, 83, 160, 181, 197, 209, 212-13, 216, 219 status 215 loyalty test 58, 60, 62 Maastricht Treaty 80-81, 205 mafia 365, 369 mandatory integration programmes 184 civic integration 3 market citizens 205 Marshall 80, 159-60, 163 Migrant Integration Policy Index 144, 152 Migration Advisory Committee 37 MIPEX 85, 107, 110, 144, 152 model assimilation 51-52, 61, 83, 90, 94, 115, 131, 138, 152, 176, 180, 186, 261, 315-22, 351, 357 citizenship 113, 129 communitarian 19, 113, 115-16, 12122, 129 exclusionary 152 inclusionary 152, 160 liberal 114, 121-3, 128-30 multiculturalism 20, 90, 180, 186, 2434, 261, 318 pluralistic 52, 149-50, 153, 156, 353 republican 114-15, 122, 262, 316, 319 national contact points on integration 2, 6-7, 181 identity 8, 11, 14, 33, 79, 82, 102, 106, 110, 112, 115-16, 180, 266, 315, 318, 332-3 republicanism 318 naturalisation policy 19, 113-14, 180

Index procedure 64, 65, 71, 113, 142, 280 test 9, 65, 71, 76, 88, 94, 124-28 NCPI 181-82 neo-colonial subordination 366 neo-republican integrationist doctrine 322, 333 Netherlands Antilles 241, 248 new democracies 105, 111 newly independent states 19, 103 NIA 124 Non-discrimination measures 299 northern league 371 oaths of allegiance 107, 176, 180, 282 ombudsman 81 OMC 67, 83 OMI 266, 274 open method of coordination 6 overstayers 367 Partido Popular 339, 340 path to citizenship 277, 283, 289, 290 291, 292 permanent residence 8, 9, 22, 23, 24, 36, 89, 130, 140, 141, 142, 175, 221, 222, 2223, 237, 248, 266, 267, 269, 270, 284, 285, 289, 290, 292, 304, 306, 315, 323, 325, 327, 332 policy plan 195, 211 political participation 30, 33, 53, 85, 91, 107, 114, 115, 122, 134, 145, 160, 170, 218, 252, 343 postnational citizenship 168 prohibitionist practices 360, 369 proportionality 10, 11, 23, 174, 199, 201, 202, 203, 300, 311, 334, 335 predeparture measures 185 pre-entry English language tests 277 principle of affected interests 43 fair treatment 4, 81, 188, 193, 299, 314 liberalism 1, 3, 17 near equality 4, 168, 213, 216, 218 paterlineal ascription 135 rule of law 1, 4, 17, 19, 58, 103, 105, 112, 173, 329, 335 subsidiarity 1, 2

413

privatisation of the integration process 269, 271, 273-4, 316-17 probationary citizenship 289-91 Prodi 360, 362, 364, 368, 370 public opinion 101, 142, 347, 349, 363, 368 quotas 360-1, 371 racial discrimination 10, 21, 191, 193, 301 reception ceremony 322 platform for newcomers 263, 266-7, 274 regularisation 357, 360, 366-7 reinsertion 369 religious citizenship 20, 149, 151, 155, 159-61, 163 restrictive immigration policy 16, 331, 333 right to vote 18, 30, 32, 40-2, 45, 53, 85, 123, 128, 252, 285, 363 to stand 30, 32-4, 85, 252 rights-based approach to integration 3, 168-9, 172, 178, 186, 188 RMI 230-1 remittances 362 renewal of permits 359, 361-2, 367-8, 370 repressive liberalism 17 republican integrationist doctrine 318, 322, 333 integration abroad 331-2 republicanism 252, 316-18 ROCs 125 Roma 112, 364-5 Romania 15, 101-02, 106, 231, 362, 364-5 rule of law 1, 4, 17, 19, 58, 103, 105, 112, 173, 329, 335 Sarkozy 266, 271, 323, 327, 330 Schäuble 270 Schengen 206, 370 Scotland 18, 32-41, 48, 119, 284, 293 Scottish parliament 34, 36-41, Scottishness 39 secularism 268, 316-17, 329 security of residence 5, 8, 16, 182, 206, 315, 322, 324, 330, 333

414

Illiberal Liberal States

selected immigration 271 selection policy 272 shadow economies 372 Single European Act 176 Slovenia 15, 19-20, 102, 131-32, 141-6 social assimilation 320, 322 asistance benefits 22, 170, 221-2, 224-7, 236 system 22, 175, 221-3, 230, 236 Democratic Party 44 inclusion 1, 3, 103, 176, 337 inquiry 321 partners 158 protection 189, 196, 222, 237, 312 welfare tourism 235 soft law 22, 31, 48, 83, 241 Spain 24, 32-33, 337-41, 343-7, 349, 3523, 355-56, 362 Spanish model of integration 338 sports players 294 stateless 29, 103, 104-5, 112, 145, 190, 192 Strategic Plan of Citizenship and Integration 343 subnational experimentation 18 Switzerland 32, 48, 190, 249, 285, 360 Tampere 4, 81-2, 168, 178, 184, 188, 193, 216, 218, 299, 339-40 territorial identity 48 Test Life in the UK 68-72, 74-5, 120-22 Habitual Residence 22, 233-4, 237, 281, 297

Muslims 59 The Netherlands 4, 9-10, 12-13, 18-19, 22, 51, 53, 63-6, 71-5, 79, 84-90, 92, 94-6, 113, 123, 126-30, 161, 174, 179, 184, 224-25, 229, 231, 236, 241-4, 246-57, 259-65, 267-74 Thessaloniki 182-3 third generation immigrants 87, 93, 105, 139, 245, 253 total social fact 357 transitional arrangements 106, 110, 227, 236 Turkish immigrants 9, 18, 79, 84, 86, 8990, 94 typology 80, 153, 155, 159, 175 two-way process 96, 182, 188, 299, 345, 353-4 underground economy 358 union citizenship 20, 81-2, 168-9, 172-7, 186, 216 United Kingdom 32, 37, 68, 69, 116-17, 120, 233, 277, 281, 292 unreasonable burden 22, 173-5, 222-4, 228-30, 235-7 visas 210, 295, 360 Verdonk 243, 248, 253-7, 259-60, 274 Welsh 68, 116, 118, 121, 279, 281-82, 286 WIN 190, 262, 265 WRS 233-4 WRR 84, 261-2