Abstract
Integration is one of the major challenges posed to the European Union by the immigration of third-country nationals. And it is even more so in view of the mass influx of displaced persons stemming from the Russian military invasion of Ukraine. This article discusses the controversial concept of (immigrant) integration underpinned by the current EU legal and policy framework. It argues that, on the one hand, the concept of integration resulting from instruments of primary and secondary EU legislation, soft law and policy is inspired by the respect for fundamental rights and prohibition of discrimination. On the other hand, it stresses that the EU action mainly aims at preserving Member States’ sovereignty over immigration. The resulting EU normative framework for integration, including the newly adopted EU Blue Card Directive and the extension of temporary protection for Ukrainian refugees, allows and encourages the strategic selection of the most socio-economically and culturally desirable immigrants.
1 Introduction
Integration is one of the major challenges posed to the European Union by the immigration of third-country nationals. Immigrants are often confronted with socio-economic exclusion, reflected in difficulties in actively participating in the political life and accessing the labour market, health services, and adequate and affordable housing.1 The COVID-19 crisis has contributed to making matters even worse, having a detrimental impact on the immigrants’ working and living conditions, and their family reunification rights.2 On top of that, the millions of refugees displaced by the war in Ukraine since 24 February 20223 pose enormous and impellent challenges for the receiving EU countries. In this context, political, public and media discourses in the European Union regularly denounce a low degree of immigrant integration.4 ‘Unsuccessful immigrant integration’ is often portrayed as the cause of criminality, rights violation, social fragmentation, radicalisation, and the spread of extremist ideologies.5 This narrative that considers immigrants as a threat to the ‘European way of life’ and requires them to engage in an integration process that should bring them closer to the ‘natives’ of the receiving society has contributed to shaping a controversial conception of integration in EU law and policy.
Against this background, this article proposes to reflect on the model of integration resulting from the relevant EU normative framework, consisting of EU immigration law and EU policy, with a view to improving the status quo through the development of a different narrative of integration, geared towards the creation of a more pluralist society. Through an analytical process, it discerns the meaning of integration in EU law and policy and brings out the inherent contradictions and controversial aspects. At the same time, it evaluates such a notion of integration against a more thoughtful conception developed by taking inspiration from arguments of sociology, political science, and political philosophy. In the course of this analysis, this article follows a main conceptual thread which individuates two different paradigms of integration. On the one hand, a pluralist and rights-based model that promotes the respect for fundamental rights and the prohibition of discrimination. On the other hand, a paradigm that preserves the EU Member States’ sovereignty over immigration by allowing and encouraging the strategic selection of the most socio-economically and culturally desirable immigrants. The interaction between these two different conceptions and the reproduction of inherent logics across various instruments of EU immigration law and EU policy taken into consideration testifies the rather controversial character of the integration concept. Contradictory elements in this regard are present not only in the comparison between EU immigration law and EU policy but also within these normative sectors. The analysis supporting this argument is guided by the following research question: to what extent and why is the concept of integration in EU law and policy controversial?
More in detail, this article begins with an overview in section 2 of the political conception of integration emerging from a series of soft law and policy instruments adopted at the EU level since before the entry into force of the Treaty of Lisbon, which led to the development of an EU policy framework on integration. The following sections 3 and 4 address, in turn, the EU legal notion of integration. Section 3 looks at the primary sources of law by scrutinising the rights, freedoms and principles enshrined in the EU Treaties, the Charter of Fundamental Rights of the European Union (CFREU), and the European Convention on Human Rights (ECHR). Section 4 tries to discern the paradigm of integration delineated by secondary EU legislation, namely the Family Reunification and Long-Term Residents Directives and the Qualification, Students and Researchers, Blue Card, and Single Permit Directives. This section also explores the rules set out in the Temporary Protection Directive and covering Ukrainian refugees. Since this contribution focuses on the positive EU normative framework on integration, it does not include an examination of the Court of Justice of the European Union’s (CJEU) and the European Court of Human Rights’ (ECtHR) jurisprudence, which constitutes the subject of another study complementary to the present analysis.6 This article rounds off with a conclusion in which all the findings are recapitulated to answer the abovementioned research question and a few suggestions for improvement are put forward.
From a methodological point of view, this article offers a doctrinal analysis of the EU legal and policy framework, with a view to stimulating a theoretical reflection on the underlying paradigm of integration. Reference to arguments of sociology, political science, and political philosophy is considered as an added value to develop the notion of integration in light of the extensive literature in those areas of study. Since mobile EU citizens (and indirectly also their family members) enjoy a privileged status in the receiving state which presumes a certain degree of integration, the term ‘immigrant’ is used to indicate a person who enters or resides in the territory of an EU Member State while not being an EU citizen (nor their family member). This wide formulation encompasses voluntary migrants, migrants moving for the purpose of family reunification, refugees, and beneficiaries of other forms of international protection. In EU jargon, migrants falling within this definition are also referred to as third-country nationals (TCNs).
2 The EU Policy Framework on Integration
Prior to the entry into force of the Treaty of Lisbon in 2009, common integration policy concerning certain conditions of entry and residence of TCNs was initially developed through soft law instruments adopted on the basis of the 1997 Treaty of Amsterdam, which conferred extensive competence on the Union in the Area of Freedom, Security, and Justice (AFSJ). A few months later, the Presidency Conclusions of the Tampere European Council of 15 and 16 October 1999 contributed to developing a rights-based model of integration.7 The Tampere agenda encouraged a ‘more vigorous integration policy’ aimed at granting TCNs a fair and equal treatment entailing a set of rights comparable to those of Member State nationals.8 Especially with regard to long-term resident TCNs, it fostered the recognition of a legal status ‘as near as possible’ approximated to that of EU citizens, and endorsed their possibility to obtain the nationality of the host Member State.9
The principles put forward by the Tampere agenda were – and still would be – potentially able to support an idealistic conception of integration, intended as a process of reciprocal adjustment between immigrants and members of the receiving country, whereby all people participate on an equal footing into a pluralist society. This process would cover the social, economic, cultural, and political spheres, and it would be inspired by the principles of equality and non-discrimination as well as the respect of fundamental rights.10 Still, such a pluralist and rights-based model was never implemented and it was gradually watered down through the adoption of various instruments of EU law and policy that progressively transformed integration into a tool for preserving the Member States’ sovereignty over immigration.
Five years after the European summit in Tampere, the multiannual Hague Programme, adopted at the European Council of 4 and 5 November 2004, reiterated the commitment of the EU to creating equal opportunities for TCNs and actively removing barriers to integration, although through a less ambitious approach.11 Contextually, it called for the establishment of a European Framework on Integration based upon common basic principles, to favour greater coordination of national integration policies and guide EU initiatives in this field. A few days later, on 19 November 2004, the Justice and Home Affairs Council adopted by unanimity the Common Basic Principles for Immigrant Integration Policy in the EU (CBPs).12
Although not strictly binding, the CBPs advanced a conception of integration as a ‘dynamic, two-way process of mutual accommodation’ involving both immigrants and residents of the receiving Member States (CBP 1). Thereby, the onus of integration was apparently not placed solely on the immigrants but also shared with the members of the receiving society. The CBPs pointed the way to a successful EU integration policy by recognising the relevance of a wider approach for an effective integration. They emphasised the reciprocal duty to respect the diversity of cultures and religions (CBP 8), as well as the importance of employment (CBP 3), education (CBP 5), equal access to institutions of the host state (CBP 6), and participation in the democratic process (CBP 9). The CBPs required immigrants, on their part, to embrace the basic EU values (CBP 2) and to acquire basic knowledge of the host society’s language, history, and institutions (CBP 4). This list of integration requirements, which progressively gained relevance in further instruments of EU secondary law and soft law, and especially of national legislation, undoubtedly implied a certain degree of conditionality (given that immigrants would gain rights to access the ‘host state’ on the condition that they integrate as expected), while underpinning the idea of integration as civic and cultural assimilation.13
The orientation towards an assimilationist approach testifies a contradiction with the Tampere’s rights-based approach as well as within the design of those CBPs. In fact, the idea of integration as civic and cultural assimilation presupposes the existence of a leading culture (that of the receiving society) into which the immigrants need to be integrated by subjecting themselves to local norms and standards.14 By requiring immigrants to ‘integrate into’ the receiving society, this rationale fails to recognise that those people are already present in the same society and constitute an integral part of it.15 At the same time, it implicitly considers the members of the receiving country (the ‘natives’) as ‘hierarchically superior’ in terms of social standing vis-à-vis the immigrants. Furthermore, an assimilationist model appears fundamentally incompatible with the framing of integration as a ‘two-way process of mutual accommodation’, as it reproduces the dynamics of a one-way process by placing the entire responsibility of integration on the immigrants themselves.16 As noted by Schinkel, this conception entails an intrinsic division between two categories of people: those who are required to undergo an integration process (the ‘immigrants’) and those who are dispensed from any integration issue (the ‘natives’).17 The ‘natives’ are assumed to be the yardstick for measuring integration, as they identify themselves with the ‘society’. For this reason, immigrants need to work hard in order to be ‘well-integrated’. However, even after achieving this status they would still remain at a lower social standing vis-à-vis the ‘natives’, which are never judged in light of their degree of integration.18 This idea of integration is not only inconsistent with a pluralist and rights-based paradigm but also manifestly discriminatory.19
These logics of integration have been reproduced in the European framework on integration that has been developed, in accordance with the broader legal basis resulting from the newly adopted Treaty of Lisbon, through a number of soft law, policy, and funding instruments.20 A case in point is the Stockholm Programme21 adopted by the European Council on 10 and 11 December 2009, which defined the five-year strategy 2009–2014 for the AFSJ. Although recognising the importance of a successful integration as instrumental to maximise the benefits of immigration, that Programme denoted an increasing emphasis on the integration duties of the immigrants, thereby contributing to a substantial shift from a two-sided to a one-sided conception of integration. It also reinforced the idea that the only way for integration passes through the acquisition of the receiving society’s cultural, civic and political values, language, and way of life. The implementing actions taken by the Commission with the publication of three editions of the Handbooks on Integration for Practitioners and Policy Makers22 and the development of the European modules on migrant integration23 pointed in the same direction by promoting mandatory integration requirements and language tests as ‘best practices’ to be shared among Member States. In such a way, integration was conceived as the immigrant’s personal process towards the ultimate reward: citizenship.24 The European Agenda for Integration presented by the Commission in the summer of 2011 went even further with the idea of integration as a ‘three-way process’ involving immigrants, host societies and countries of origin, which fully endorsed the implementation of pre-entry measures at the Member State level.25 Clearly, this model of integration represents nothing but an instrument to involve the immigrants’ country of origin into the activity of controlling immigration flows and selecting the most desirable TCNs, namely those who would supposedly better fit/assimilate into the receiving society.26
While the main responsibility and competence for integration policy remained a prerogative of national governments, over the years, the EU increasingly supported Member States’ efforts in this field through dedicated funding, guidance and coordination. Along these lines, the 2016 Action Plan on the integration of third-country nationals27 individuated five key areas for the Union’s intervention, namely pre-entry measures, education, labour market integration and access to vocational training, access to basic services, active participation and social inclusion. It also called for the transformation of the Network of the National Contact Points on Integration established in 2002 into a European Integration Network,28 which enhanced cooperation between national, regional and local authorities and involved civil society, employers and social and economic partners more deeply in the integration process.29
Despite the implementation of more than 50 concrete actions,30 the Commission identified persisting challenges in relation to the integration of newly arrived migrants into European societies. As a response, it adopted the New Pact on Migration and Asylum31 on 23 September 2020 and the Action plan on Integration and Inclusion 2021–202732 on 24 November 2020 with the aim of advancing an EU agenda that promotes successful integration and social inclusion. The Pact proposed a targeted revision of the relevant instruments of secondary EU legislation with a view to simplifying the admission procedures for third-country workers and facilitating intra-EU mobility of long-term residents. The Action plan put forward concrete actions, guidance and funding in specific policy areas,33 towards the creation of a ‘more cohesive and inclusive society’ preventing the spread of extremist ideologies and discrimination on the grounds of gender, racial or ethnic origin, religion or belief, sexual orientation, and disability. In addition, it acknowledged the need to address the detrimental impact that the COVID-19 crisis had on the conditions of immigrants, particularly with respect to access to the labour market and to healthcare services.
Notwithstanding the apparently constructive approach resulting from those instruments, the underlying conception of integration still remains rather controversial and distant from the Tampere’s rights-based paradigm. Instead of giving priority to the promotion of equal rights for immigrants, the Commission put stronger emphasis on the potential economic benefits for the Union deriving from improved migration management and ‘full integration’ – read assimilation – of the most desirable TCNs into the EU labour market. In parallel, it encouraged the externalisation of integration efforts through the introduction of pre-entry measures, without questioning the latter’s selective character.34 It also supported the implementation of return and reintegration schemes and of a more effective EU external border management.35 This policy has been initially implemented through the adoption, on 27 April 2021, of the EU Strategy on voluntary return and reintegration,36 which envisages a central role of the European Border and Coast Guard Agency (Frontex). The use of the term ‘reintegration’ implies, however, something diametrically opposed to integration, that is, the return of those people to the country from which they emigrated, at times even through a long and exhausting journey which put their life at risk. Arguably, the Commission’s approach was motivated – and vitiated – by a negative connotation of TCN immigration, considering it merely as a problem which needs to be managed and addressed,37 if not an opportunity to be sized wherever possible. As a result, it missed the chance to give integration policy the relevance it deserves to help build a better-integrated society.
3 The Treaties, the Charter, and the Convention on Human Rights
Following the entry into force of the Treaty of Lisbon on 1 December 2009, specific competence on integration was formally conferred on the EU. Article 79(4) of the Treaty on the Functioning of the European Union (TFEU), in Title V on the ‘Area of Freedom, Security and Justice’, makes now clear reference to integration by specifying that the EU legislator 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’. Crucially, while supporting the coordination of integration policy at the EU level, the Treaty expressly excludes any harmonisation of national laws and regulations, thereby preserving the primary competence of the Member States.38 Although the Union’s action remains circumscribed to the coordination through soft law of national integration norms, the change in voting rules has, nonetheless, significantly eroded the Member States’ sovereignty in this field. In fact, the qualified majority required in the Council by the ordinary legislative procedure instead of unanimity implies the consequent loss of veto powers during the legislative process. Such an outcome has been accentuated by the extensive use of this new competence made by the EU legislator with the adoption of a series of new directives and regulations.
Besides specifically dealing with integration of TCNs, Article 79 TFEU establishes the legal basis for the development of a common European immigration policy encompassing, inter alia, the efficient management of migration flows and the fair treatment of the immigrants concerned. To this end, the Union’s competence extends over the definition of common rules on entry and residence conditions, long-term visas and residence permits (including those for the purpose of family reunification), immigrant rights (including freedom of movement and residence in other Member States), illegal immigration (including cases of removal and repatriation), and human trafficking.39 By virtue of Article 153(1)(g) TFEU, the Union has also the power to pursue its social policy objectives by supporting and complementing the Member States’ activities regarding employment conditions of TCNs. In turn, Member States retain their prerogative to determine the volumes of admission of TCNs to their territory.40
Alongside the dispositions of the TFEU, there is no doubt that the values enshrined in Article 2 of the Treaty on European Union (TEU) represent a significant part of the EU legal framework on integration. By implication, both the EU and national actions in this field need to be aligned with the relevant values of human dignity, freedom, equality, respect for human rights, including the rights of persons belonging to minorities, pluralism, non-discrimination, tolerance, justice, and solidarity.
All those values contained in the Treaties are reflected in the Charter of Fundamental Rights of the European Union (CFREU) which, by virtue of Article 6 TEU, has now legally binding nature and lays down a set of rights, freedoms and principles applicable in the area of integration.41 More specifically, Article 7 CFREU establishes the fundamental right to respect for private and family life that has to be guaranteed to everyone, both EU citizens and TCNs, in the EU’s territory and by all the Member States. Article 15(3) CFREU entitles third-country workers to equal working conditions as EU citizens. Equality is the heading of Chapter III of the Charter, where it is declined in terms of equality before the law (Article 20), prohibition of discrimination on ‘any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation’ (Article 21), respect of cultural, religious and linguistic diversity (Article 22), equality between men and women (Article 23), and child protection (Article 24). Article 34(3) CFREU recognises the right to social and housing assistance for a decent living. Importantly, Article 52(3) extends the scope of the rights contained in the CFREU, which shall have at least the same meaning and scope of the correspondent rights guaranteed by the European Convention on Human Rights (ECHR), without prejudice to the possibility for EU law to grant higher standards of protection.42
With regard to the Council of Europe framework, the ECHR represents a major source of rights and freedoms promoting integration. Although the Union is not (yet) a signatory of the ECHR, all EU Member States are formal parties and thereby directly bound by it under classic international law. Moreover, by virtue of Article 6(3) TEU, fundamental rights guaranteed by the ECHR, along with those stemming from the constitutional traditions common to the Member States, have binding legal force as general principles of EU law as well. The application of the ECHR in matters concerning TCNs in the Union results directly from the ECHR’s personal scope covering every person within the jurisdiction of the contracting states.43 The relevant norms with respect to integration policy include, first, the right to respect for private and family life, covering the protection against arbitrary or unjustified interference by public authorities, enshrined in Article 8 ECHR. Second, Article 14 ECHR prohibits any type of discrimination in the enjoyment of the rights and freedoms safeguarded by the ECHR.
All things considered, the EU legal framework composed of the EU Treaties, the Charter of Fundamental Rights, and the Convention on Human Rights conceivably underpins a pluralist and rights-based paradigm of integration geared towards equality between TCNs and EU citizens. The resulting picture portrays integration as a multidimensional process involving both immigrants and Member States on an equal footing and aimed at the full realisation of the aforementioned wide catalogue of rights, values, and freedoms.
4 Secondary EU Legislation
Although the EU Treaties recognise the precedence of national competence over that of the Union in the field of integration, the European legislator has adopted, over the years, a number of relevant instruments of secondary legislation. In the absence of an explicit legal basis until the entry into force of the Treaty of Lisbon, the first EU legislative measures took the form of the Racial Equality Directive 2000/43/EC44 and the Employment Equality Directive 2000/78/EC.45 Their contribution to integration mainly resulted from specific non-discrimination provisions on grounds of race and ethnic origin, the first, and of religion or belief, age, disability and sexual orientation on the labour market, the second. Nevertheless, discrimination on grounds of nationality remained excluded from the scope of both directives.46
4.1 Family Reunification and Long-Term Residents Directives
The Family Reunification Directive 2003/86/EC (FRD)47 and the Long-Term Residents Directive 2003/109/EC (LTRD)48 were adopted in the field of immigration with the express purpose of facilitating integration.49 To this end, the first directive grants an actual EU right to family reunification to sponsors, which hold a one-year EU residence permit or have a reasonable prospect of obtaining the right of permanent EU residence,50 and their family members, namely married spouses and unmarried minor children (including adopted children).51 In line with the important role recognised by the European legislator to family reunification in the integration process, the reunifying family members are entitled to access the receiving state’s labour market, education, and vocational training in the same way as their sponsor.52 Spouses, registered partners, and adult children may eventually require an independent residence permit after five years of residence.53
Despite being oriented towards better integration by preserving family unity and approximating the immigrants’ status to that of EU citizens, the FRD envisages a number of provisions specifically designed to accommodate the Member States’ interest in retaining control over immigration.54 The concept of integration has been deliberately used for this purpose in many different ways. This is the case, in primis, of the restrictive integration requirements introduced during the later stages of the directive’s drafting process, at the urging of certain Member States, mainly the Netherlands, Germany, and Austria.55 By virtue of the last subparagraph of Article 4(1), the admission of children older than twelve and separated from their family can be denied on account of their ‘poor integration prospects’.56 However, this rule appears rather controversial for it implies that the children’s integration prospects – or rather their civic and cultural assimilation potential – would be jeopardised when they grow up in their country of origin without being influenced by the norms, culture, and values of the receiving country.57 The directive, by contrast, follows a diametrically opposite rationale with regard to spouses. Assuming that they integrate better when they are older, and with a view to preventing forced marriages, Article 4(5) allows Member States to require the sponsor and their spouse to be of a minimum age, which may not exceed twenty-one years.58 Besides the questionable legitimacy of setting a minimum age for the reunifying spouse, which is higher than the age of majority in a Member State, with the aim of preventing forced marriages, this rule appears equally controversial for it arbitrarily discriminates young spouses on grounds of their age, without taking into account their individual situation.
On top of that, the receiving country has the discretion to impose additional economic ‘integration conditions’ on TCNs to avoid recourse to social assistance systems, such as having sufficient financial resources, a ‘normal’ accommodation, or a health insurance.59 Pursuant to Article 8, Member States may even further delay family reunification for a maximum of five years by requiring the sponsor to have already resided there for a maximum of two years60 and/or by imposing a waiting period of maximum three years for the issue of a residence permit to the family members.61 Alongside those pre-entry conditions, Article 7(2) permits the implementation at the national level of further exceptions in the form of ‘integration measures’ applicable both before and after the entry of immigrants in the territory of the receiving country.62
The LTRD, for its part, contributes to bringing immigrants’ rights closer to those enjoyed by EU citizens by entitling TCNs (including refugees and beneficiaries of international protection),63 who have lived legally in the territory of a Member State for at least five consecutive years, of an EU long-term residence status.64 This permanent legal status ensuring special protection against expulsion65 is considered a ‘genuine instrument for the integration’, as it offers equal treatment with nationals in various spheres such as employment, education, housing, social security, tax benefits, freedom of association, and free movement.66 The requirements laid down in Article 5(1) that Member States may impose for acquiring this long-term resident status encompass the availability of sufficient financial resources and sickness insurance. Moreover, pursuant to Article 5(2), host-state law may require TCNs to comply with ‘integration conditions’, and ‘integration measures’ may be imposed on TCNs for the issuing of a long-term residence permit in a second Member State.67
By virtue of the wide margin of appreciation granted by the FRD and LTRD to the Member States with respect to the conditions for admission and residence of TCNs, national models of integration have progressively taken the shape of mandatory (often sanction-based) civic integration programmes, courses, tests, exams, and contractual obligations to acquire basic knowledge of local values, language, culture, history, and way of life. All those strategies have been adopted by countries like the Netherlands, Denmark, Germany, France, Belgium, and Austria as means to restrict access to social benefits and long-term residence status.68 On the same legal basis, a variety of pre-entry language and civic integration requirements and tests have been introduced by several Member States with a view to controlling immigration flows and selecting those persons who already possess a certain knowledge of the receiving country’s norms, values, and standards.69
In light of the FRD and LTRD’s practical implementation, the resulting concept of integration serves as a disguised mechanism of immigration selection and control.70 And within this mechanism, the so-called integration conditions and measures, by mainly operating as a tool of exclusion, may paradoxically turn out to hinder rather than facilitate effective integration.71 The aim of controlling immigration flows is apparent in the integration requirements’ ability to work as a filter for the TCNs who fail to fulfil those contracts and tests and are consequently prevented from accessing the EU right to family reunification or the long-term residence status.72 Along with the clear intention of preserving Member States’ sovereignty over immigration, the purpose of strategically selecting those immigrants who are considered more socio-economically and culturally desirable, and therefore with better ‘integration prospects’, is just as evident.73 Particular groups of immigrants, such as those coming from Muslim-majority, African, and Middle Eastern countries, women, older persons, adults illiterate or with learning disabilities, and individuals belonging to poorer social classes remain contextually excluded and discriminated.74 By implication, the enjoyment of family reunification and long-term residence rights is directly dependent on the applicants’ nationality, wealth, social class, educational level, ethnicity, culture, religion, age, and gender. Needless to say, this biased and discriminatory outcome is in stark contrast with the fundamental rights, values, and freedoms enshrined in the EU Treaties, the Charter, and the Convention on Human Rights, or proclaimed by various EU policy instruments.
When looking at the overall paradigm of integration resulting from the FRD and LTRD, the strong emphasis on civic and cultural assimilation attests a substantial deviation from the 1999 Tampere’s rights-based paradigm and the 2004 Common Basic Principles’ model of shared responsibilities between immigrants and receiving societies.75 The conferral of EU rights as a reward at the end of the integration process underpins a conception of integration according to which most of the efforts and burdens are on the immigrants’ side. Arguably, this form of assimilatory approach which refuses pluralism and diversity is the mirror of a nationalistic narrative put forward by several Member States pushing for more sovereignty and control over immigration.76
4.2 Qualification, Students and Researchers, Blue Card, and Single Permit Directives
Further acts of secondary legislation, conceived under the new legal basis created by the Treaty of Lisbon, contribute to shaping the EU legal framework on integration. The Qualification Directive 2011/95/EU77 that replaced Directive 2004/83/EC,78 besides laying down standards for the qualification of TCNs and stateless persons as beneficiaries of international protection, provides for the granting of several rights able to foster effective integration. It offers protection from refoulement to all refugees and beneficiaries of international protection (Article 21), along with equal treatment as nationals of the host state with respect to access to employment (Article 26), education (Article 27), social welfare (Article 29), healthcare (Article 30), and accommodation (Article 32).79 Remarkably, Article 34 specifically confers on them the right to access integration programmes in the receiving state.
The Students and Researchers Directive (EU) 2016/801,80 recast of the original Students Directive 2004/114/EC81 and Researchers Directive 2005/71/EC,82 similarly confers a series of rights that ease integration for those categories of TCNs. Besides facilitated conditions for entry and residence, they are entitled to equal treatment with nationals of the receiving state with respect to working conditions, trade union rights, education and vocational training, recognition of diplomas, social security, tax benefits, pension, and housing.83 The receiving state, instead, is allowed to impose only a few conditions, such as sufficient language knowledge.84 Unlike the widely inclusive approach of the Qualification Directive, a privileged status is granted to students and researchers on account of their ability to increase growth in terms of overall competitiveness and GDP.85 This rationale, which is common to the other acts of secondary EU legislation analysed below, leans towards a selective approach towards immigration, whose ultimate goal is the economic benefit for the EU rather than the creation of a pluralist society.
With regard to integration in the field of labour, the first Blue Card Directive 2009/50/EC86 and the Single Permit Directive 2011/98/EU87 represent a significant step forward, but with certain reservations. The first one, adopted in May 2009, established common rules for admission and residence of more than three months for highly qualified third-country workers and their family members. Besides labour market access, Blue Card holders were entitled to equal treatment with nationals of the host state as regards employment, social benefits, and free movement within the country.88 This directive set also the minimum salary for highly qualified workers at 1.5 times the average gross annual salary in the country.89 Importantly, Blue Card holders were exempted from integration requirements, waiting periods, or labour market tests and their family members could not be subjected to pre-entry integration conditions and measures ex Articles 4(1) and 7(2) FRD.90 Still, Member States always retained their discretionary power to determine volumes of admission,91 to give precedence to national or EU workers or workforce that already joined the national labour market,92 and to reject applications to prevent ‘brain drain’ and unethical or illegal situations.93 All things considered, the rationale underlying the Blue Card Directive was to attract highly-skilled workers from outside the EU by preventing the application of all those facultative restrictions that can be imposed on TCNs who migrate under the FRD and LTRD, or on ‘normal’ workers covered by the Single Permit Directive.94 In other words, it aimed at merely pursuing the economic interests of the Union by selecting the most attractive TCNs.
Not surprisingly, the same rationale is replicated in the recently adopted new Blue Card Directive 2021/1883/EU,95 which revised and replaced the original directive due to the latter’s little impact below expectations.96 The legislative novella, whose text was approved by the Parliament on 15 September 2021 and by the Council on 7 October 2021, is the result of over five years of negotiations and will have to be fully transposed into national law by 18 November 2023.97 Inter alia, it introduces less stringent admissions criteria, grants wider labour market access, reduces waiting periods for family reunification, sets out more favourable rules for obtaining LTR status, and ensures greater freedom of movement across the EU.98 On the positive side, all these provisions, while attracting and retaining highly-skilled workers from the rest of the world, also support integration. Regrettably, however, this new set of rules may benefit certain categories of immigrants only, namely highly-qualified workers.
The Single Permit Directive was adopted in 2011 with a view to introducing a single procedure regulating the entry and residence of third-country workers, in combination with a catalogue of rights inspired to the principle of equal treatment as expressed in the 1999 Tampere and 2009 Stockholm guidelines.99 Hence, Article 12(1) of this directive extends the scope of Article 15(3) CFREU by entitling third-country workers to equal working conditions, trade union rights, education and vocational training, recognition of diplomas, social security, tax benefits, and access to goods and services as nationals of the receiving country. Yet, at the same time, the second paragraph of Article 12 does not prejudice the Member States’ discretion to limit equal treatment with regard to different aspects, such as study and maintenance grants and loans, access to social security for the first six months, or access to housing.100 After all, the conferral of a series of rights and benefits to TCN workers only, and not to other categories of immigrants that are not able to offer a positive economic return on account of their presence in the EU, follows once again a selective logic. And despite the directive’s declared intention to promote integration through equal treatment, significant disparities between third-country and EU workers are upheld.101 The exclusion of third-country workers and their family members from full equal treatment as Union citizens, especially from free movement rights and equal access to housing, study grants and social assistance, appears nonetheless incompatible with the requirement to pay full taxes and social contributions.
4.3 Temporary Protection Directive
On 4 March 2022, following the Russian military invasion of Ukraine, the Council unanimously adopted an implementing decision activating for the first time the mechanism provided for by Article 5 of the Temporary Protection Directive 2001/55/EC (TPD).102 This decision granted temporary protection in the EU to all Ukrainian nationals and people covered by international protection residing in Ukraine before 24 February 2022, as well as their family members.103 In respect of those persons the EU promptly showed a highly inclusive approach, which translated in granting them a wide range of rights. Persons enjoying temporary protection have the right to move freely within the Union for a 90-day period after admission and to choose the Member State which shall provide them with a one-year residence permit.104 In the host state, they have full access to labour market, education, and vocational training, although priority may be given to EU citizens, EEA nationals, and legally resident third-country nationals receiving unemployment benefit.105 They are also entitled to accommodation, assistance in terms of social welfare and means of subsistence, and medical care.106
Evidently, the legal status recognised to Ukrainian refugees is intended to foster integration in several respects. It is worth reflecting, nonetheless, on the underlying reasons for the activation by the EU of the temporary protection regime in such circumstances. Leaving aside relevant geopolitical considerations and the benefit for the Member States in terms of reduced pressure on asylum systems, the sense of solidarity and inclusion shown towards Ukrainian refugees was motivated first of all by their geographical proximity and their perceived cultural and ethnical similarity to EU citizens.107 Other plausible explanations relate to the EU-Ukraine privileged relations testified by Ukraine’s accession to the European Neighbourhood Policy (ENP)108 and the 2014 EU-Ukraine Association Agreement,109 as well as to the wide perception in the EU of the Ukrainians’ resistance as a legitimate and admirable defence of their own country against the Russian invasion. The peculiarity of their condition renders therefore Ukrainian refugees more desirable in light of their better ‘integration prospects’ – intended as better ‘suitability’ for civic and cultural assimilation – compared to other persons fleeing war, persecution, poverty and destitution from different regions of the world. The fact that Ukrainian refugees, by virtue of their greater desirability, may benefit from more favourable integration terms vis-à-vis other refugees coming from Muslim-majority, African, and Middle Eastern countries testifies once again the logic of selection followed by the EU, which applies ‘double standards’ for refugees on account of their country of origin.110 In any event, being the activation of the TPD a temporary measure only, integration in relation to the inflow of Ukrainian refugees will likely constitute one of the major challenges for the EU in the coming years.
5 Conclusion
By pointing out the number of contradictory aspects resulting from the relevant EU normative framework, this article has shown that the concept of integration in EU law and policy is rather controversial. On the one hand, the combination of various instruments of EU immigration law and EU policy has undeniably configured an actual status for TCNs in the EU, entailing an approximation of the latter’s economic, social and political rights, opportunities, and overall treatment to those of EU citizens. It promoted integration through respect for fundamental rights and prohibition of discrimination, and it made available to immigrants a series of integration initiatives and tools such as language courses, vocational education and training. Yet, on the other hand, in light of the wide discretion accorded to Member States in using the concept of integration as a tool of immigration selection and control, the substantial deviation from the near-equal treatment goals set by the 1999 Tampere Council appears clear. The promotion and introduction at the national level of ‘integration conditions’ and pre-entry ‘integration measures’ that often foster exclusion of the persons concerned has implied a fundamental transformation of the concept of integration into a legal criterion for immigrants’ access to EU rights and social benefits in the receiving Member States. At the same time, it has testified a gradual shift from a pluralist idea of integration to that of civic and cultural assimilation, reflecting a nationalistic narrative centred on the immigrants’ acquisition of the language, values, culture, and way of life of the receiving society.
Besides preserving Member States’ sovereignty over immigration, the existing legal framework allows and encourages the strategic selection of the most socio-economically and culturally desirable TCNs. In effect, when comparing the legal statuses resulting from the different applicable instruments of secondary EU legislation, a sort of hierarchy based on the TCNs’ individual situation and economic value worryingly emerges with respect to access to rights and integration opportunities.111 Immigrants who acquire the EU long-term residence status enjoy a spectrum of rights closer to that of Member State nationals and, therefore, greater chances of integration. Blue Card holders – especially after the adoption of the new Blue Card Directive 2021/1883/EU – may also benefit of a privileged status not only with respect to access to the labour market but also in terms of social benefits and free movement rights. Researchers may enjoy similar advantageous conditions, and their position is more favourable than that of students or ‘normal’ workers covered by the Single Permit Directive. Family members of TCNs who have been admitted under the FRD may benefit of an even less favourable status. Besides, refugees (especially Ukrainian refugees enjoying temporary protection) and beneficiaries of subsidiary protection are in a privileged position in comparison to other TCNs, although the second ones are not entitled to family reunification under the FRD. At the bottom of the hierarchy, asylum seekers enjoy only limited equal treatment and integration-related rights. Their position is slightly more favourable than that of irregular immigrants, who hold no formal legal rights supporting integration.
In the end, the reasons why the concept of integration in EU law and policy is so controversial are to be found in the persistent interest of the Member States in retaining their sovereignty in the field of immigration management, and especially the power of excluding TCNs from certain economic, social, and political spheres. Given that immigration control and immigrant selection are the results of the existing EU legal and policy framework, we must ask ourselves whether we should agree with these effects and whether the European Union should be called upon to develop a different paradigm of integration geared towards the creation of a more pluralist society. This would be a long-lasting and multidimensional process, which inevitably requires a reframing of the EU concept of integration as a process of reciprocal adjustment between immigrants and receiving society, whereby all people participate on an equal footing into a common social life. Within such an ‘authentic two-way process’, receiving countries should play a more central role and relieve immigrants from the burden of supporting all the integration efforts. But even more important is to promote a different narrative on integration inspired by equality between TCNs and EU citizens, in which the first ones are not constantly required to engage in an integration process that is supposed to bring them closer/assimilate to a pre-established national (or European) cultural, civic, and social model. According to this new narrative, the concept of integration cannot avoid being disconnected from that of sovereignty and assimilation. In this perspective, the EU would need to provide guidance and implement concrete strategies that would promote a rights-based paradigm of integration with a view to creating a more pluralist and cohesive society. The practical implementation of the economic action NextGenerationEU,112 the New Pact on Migration and Asylum and the Action plan on Integration and Inclusion 2021–2027, together with the announced revisions of the LTRD and Single Permit Directive,113 and the long-term approach to Ukrainian refugees, will be meaningful test benches.
Acknowledgements
The author is grateful to Silvia Adamo for her insightful comments and to the anonymous reviewers for their valuable suggestions. The research was funded by the Carlsberg Foundation Young Researcher Fellowship.
‘Settling In 2018: Indicators of Immigrant Integration’ (OECD/EU 2018) <https://www.oecd-ilibrary.org/social-issues-migration-health/indicators-of-immigrant-integration-2018_9789264307216-en> accessed 16 September 2022; Giacomo Solano and Thomas Huddleston, ‘Migrant Integration Policy Index (MIPEX) 2020’ (CIDOB and MPG 2020); European Commission, Communication to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on a New Pact on Migration and Asylum 2020 [COM(2020) 609 final] 26–27.
‘What Is the Impact of the COVID-19 Pandemic on Immigrants and Their Children?’ (OECD Policy Responses to Coronavirus (COVID-19), 19 October 2020) <https://www.oecd.org/coronavirus/policy-responses/what-is-the-impact-of-the-covid-19-pandemic-on-immigrants-and-their-children-e7cbb7de/> accessed 5 May 2021; Michala Clante Bendixen, ‘Denmark: How Has COVID-19 Affected Migrants?’ (European Web Site on Integration) <https://ec.europa.eu/migrant-integration/news/denmark-how-has-covid-19-affected-migrants> accessed 25 November 2020.
Between 24 February and 25 October 2022, more than 7.7 million people emigrated from Ukraine to Europe. Among them, over 4.4 million people have registered for temporary protection in EU countries. ‘Ukraine Refugee Situation’ (UNHCR – Operational Data Portal) <https://data.unhcr.org/en/situations/ukraine/location?secret=unhcrrestricted> accessed 29 October 2022.
Mathilde Emeriau and David D. Laitin, ‘Integration Failures in France: A Search for Mechanisms’ (2020) 20 IPL Working Paper Series <http://laitinresearch.stanford.edu/wp-content/uploads/2020/09/IPL_WPS-20-03.pdf> accessed 16 September 2022; ‘Denmark’s Refugee Integration Has “Failed”’ (The Local Denmark, 9 March 2015) <https://www.thelocal.dk/20150309/denmarks-refugee-integration-efforts-have-failed/> accessed 16 September 2022; ‘Netherlands: New Integration Policies Fail Migrants & Society, Research Shows’ (European Website on Integration, 24 January 2017) <https://ec.europa.eu/migrant-integration/news/netherlands-new-integration-policies-fail-migrants-society-research-shows_en> accessed 16 September 2022; ‘47% of EU Citizens Believe That Migrants’ Integration Is Unsuccessful in Their Countries, Survey Shows’ (SchengenVisaInfo.com, 21 June 2022) <https://www.schengenvisainfo.com/news/47-of-eu-citizens-believe-that-migrants-integration-is-unsuccessful-in-their-countries-survey-shows/> accessed 16 September 2022.
Kris Christmann, ‘Preventing Religious Radicalisation and Violent Extremism: A Systematic Review of the Research Evidence’ (Youth Justice Board 2012) 24–26; ‘Sweden’s Failed Integration Creates “Parallel Societies”, Says PM after Riots’ The Guardian (28 April 2022) <https://www.theguardian.com/world/2022/apr/28/swedens-failed-integration-creates-parallel-societies-says-pm-after-riots> accessed 16 September 2022; ‘Failed Integration of Immigrants Fueling Gang Violence and Crime, Swedish PM Says’ The Independent (28 April 2022) <https://www.independent.co.uk/news/world/europe/sweden-failed-integration-immigrants-gang-violence-b2067626.html> accessed 16 September 2022.
This choice is motivated by the too large dimension of this research area, which counts dozens of rulings.
Micaela Malena and Sonia Morano-Foadi, ‘Integration Policy at European Union Level’ in Sonia Morano-Foadi and Micaela Malena (eds), Integration for Third-Country Nationals in the European Union: The Equality Challenge (Edward Elgar Publishing 2012) 45 and 62; Clíodhna Murphy, Immigration, Integration and the Law: The Intersection of Domestic, EU and International Legal Regimes (1st edn, Routledge 2013) 152.
European Council, Tampere European Council 15 and 16 October 1999 Presidency Conclusions 1999 paras 18 and 21.
Among the prerogatives to be ensured to long-term resident TCNs, the Finnish Presidency of the European Council expressly mentioned ‘the right to reside, receive education, and work as an employee or self-employed person, as well as the principle of non-discrimination vis-à-vis the citizens of the State of residence’.
This definition of integration is inspired by the work of Liz Fekete, ‘Enlightened Fundamentalism? Immigration, Feminism and the Right’ (2006) 48 Race & Class 1; Silvia Adamo, ‘What Is “A Successful Integration”? Family Reunification and the Rights of Children in Denmark’ (2016) 152 Nordisk Juridisk Tidsskrift 38; Anna C. Korteweg, ‘The Failures of “Immigrant Integration”: The Gendered Racialized Production of Non- Belonging’ (2017) 5 Migration Studies 428; Willem Schinkel, Imagined Societies a Critique of Immigrant Integration in Western Europe (Cambridge University Press 2017); Willem Schinkel, ‘Against “Immigrant Integration”: For an End to Neocolonial Knowledge Production’ (2018) 6 Comparative Migration Studies 31; Mikkel Rytter, ‘Writing Against Integration: Danish Imaginaries of Culture, Race and Belonging’ (2019) 84 Ethnos 678; Lea M. Klarenbeek, ‘Reconceptualising “Integration as a Two-Way Process”’ (2021) 9 Migration Studies 902; Adrian Favell, ‘Immigration, Integration and Citizenship: Elements of a New Political Demography’ (2022) 48 Journal of Ethnic and Migration Studies 3.
European Council, Brussels European Council 4 and 5 November 2004: Presidency Conclusions, Annex 1 – ‘The Hague Programme: Strengthening Freedom, Security and Justice in the European Union’ 2004. Such a step back from the political engagement of Tampere was allegedly related to the terrorist attacks in the United States on 11 September 2001 and in Madrid on 11 March 2004.
Council of the European Union, Common Basic Principles for Immigrant Integration Policy in the EU 2004 [Press Release, 2618th Council Meeting Justice and Home Affairs of 19 November 2004-Annex].
Malena and Morano-Foadi (n 7) 45; Murphy (n 7) 167; Sergio Carrera, ‘Integration of Immigrants in EU Law and Policy: Challenges to Rule of Law, Exceptions to Inclusion’ in Loïc Azoulai and Karin de Vries (eds), EU Migration Law: Legal Complexities and Political Rationales (Oxford University Press 2014) 162–164; Roxana Barbulescu, Migrant Integration in a Changing Europe: Immigrants, European Citizens, and Co-Ethnics in Italy and Spain (University of Notre Dame Press 2019) 20–21.
Fekete (n 10) 11; Rytter (n 10) 681–684.
As effectively observed by Schinkel: ‘Immigrants present in the nation-state are considered as still “outside society,” just like imprisoned criminals are said to eventually “return to society,” as if prison were not a constitutive part of society.’ Schinkel, Imagined Societies a Critique of Immigrant Integration in Western Europe (n 10) 2. On the idea that immigrants are ‘always already full members of immigrant-receiving societies, both in terms of participation and of belonging’, see Korteweg (n 10) 428–429 and 439.
Klarenbeek (n 10) 910.
Schinkel, Imagined Societies a Critique of Immigrant Integration in Western Europe (n 10) 3 and 103; Schinkel, ‘Against “Immigrant Integration”: For an End to Neocolonial Knowledge Production’ (n 10) 4–5.
Klarenbeek (n 10) 907–910. Rytter explained this dynamic also as an immutable relationship between ‘hosts and guests’. Rytter (n 10) 687.
According to Fekete, ‘[t]o use the term integration to mean assimilation is […] intellectually inept and morally dishonest’. Not surprisingly, this rhetoric has been embraced and advanced by xenophobic and Islamophobic parties in different EU Member States. Fekete (n 10) 2 and 11.
For an overview of the distribution of the funds allocated to integration during the 2007–2013, 2014–2020, and 2021–2027 multiannual financial frameworks, see Pierre Georges Van Wolleghem, ‘Where Is the EU’s Migrant Integration Policy Heading? A Neofunctionalist Take on Three Multiannual Financial Frameworks’ (2019) 1 International Review of Public Policy 218.
European Council, The Stockholm Programme – An open and secure Europe serving and protecting citizens 2010 [OJ C 115].
European Commission, Directorate-General for Justice, Freedom and Security, Handbook on Integration for Policy-Makers and Practitioners (First Edition, 2004); European Commission, Directorate-General for Justice, Freedom and Security, Handbook on Integration for Policy-Makers and Practitioners (Second Edition, 2007); European Commission, Directorate-General for Justice, Freedom and Security, Handbook on Integration for Policy-Makers and Practitioners (Third Edition, 2010).
European Commission, DG Home, ‘European Modules on Migrant Integration – Final Report’ (2014).
Murphy (n 7) 156–157 and 166; Carrera (n 13) 166–167; Barbulescu (n 13) 20; Favell (n 10) 17.
European Commission, Communication to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: European Agenda for the Integration of Third-Country Nationals (‘2011 Integration Agenda’) 2011 [COM(2011) 455 final] para 3.1.
See infra section 4.1.
European Commission, Communication to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: Action Plan on the integration of third country nationals 2016 [COM(2016) 377 final].
‘European Integration Network’ (European Website on Integration) <https://ec.europa.eu/migrant-integration/eu-grid/european-integration-network_en> accessed 28 October 2022.
European Commission, New Pact on Migration and Asylum (n 1) 27.
‘European Web Site on Integration – European Commission’ (European Web Site on Integration) <https://ec.europa.eu/migrant-integration/main-menu/eus-work/archive/actions> accessed 7 April 2021.
European Commission, New Pact on Migration and Asylum (n 1).
European Commission, Communication to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: Action plan on Integration and Inclusion 2021–2027 2020 [COM(2020) 758 final].
The main areas of action include: education and training, employment opportunities and skills recognition, access to health services and to adequate and affordable housing.
European Commission, Action plan on Integration and Inclusion 2021–2027 (n 32) 3 and 7; European Commission, New Pact on Migration and Asylum (n 1) 8–9, 21–22. Galina Cornelisse and Marcelle Reneman, ‘Border Procedures in the Commission’s New Pact on Migration and Asylum: A Case of Politics Outplaying Rationality?’ (2021) 26 European Law Journal 181, 182 and 190. On the selective character of pre-entry measures, see infra section 4.1.
European Commission, New Pact on Migration and Asylum (n 1) 7–9, 11–12, 21–22.
European Commission, Communication to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: The EU strategy on voluntary return and reintegration 2021 [COM(2021) 120 final].
Elspeth Guild, ‘Promoting the European Way of Life: Migration and Asylum in the EU’ (2021) European Law Journal 2–3.
Article 79(4) TFEU.
Article 79(1)(2)(3) TFEU.
Article 79(5) TFEU.
Murphy (n 7) 159; Sergio Carrera, ‘Tampere Programme 20 Years on: Putting EU Principles and Individuals First’ in Sergio Carrera, Deirdre Curtin and Andrew Geddes (eds), 20 year anniversary of the Tampere programme: Europeanisation dynamics of the EU area of freedom, security and justice. (European University Institute 2020) 53.
In other words, the rights enshrined in the ECHR have to be considered as a minimum standard for the rights stemming from the CFREU. Robert Schütze, European Constitutional Law (Cambridge University Press 2012) 429. Notably, the CJEU applied Article 52(3) CFREU in case J. McB. v L.E. where it acknowledged that Article 7 CFREU has to be interpreted according to the same meaning and scope following from the ECtHR case law on the correspondent Article 8(1) ECHR. J McB v L E [2010] CJEU Case C-400/10 PPU, ECLI:EU:C:2010:582 [53]. Daniel Thym, ‘Residence as De Facto Citizenship? Protection of Long-Term Residence under Article 8 ECHR’ in Ruth Rubio-Marín (ed), Human Rights and Immigration (Oxford University Press 2014) 127.
Article 1 ECHR. Clíodhna Murphy, Mary Gilmartin and Leanne Caulfield, ‘Building and Applying a Human Rights-Based Model for Migrant Integration Policy’ (2019) 11 Journal of Human Rights Practice 445, 450.
Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin 2000 [OJ L 180/22].
Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation 2000 [OJ L 303/16].
Article 3(2) Racial Equality Directive and Article 3(2) Employment Equality Directive.
Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification 2003 [OJ L 251].
Council Directive 2003/109/EC of 25 November 2003 concerning the status of third- country nationals who are long-term residents 2004 [OJ L 16].
Preamble recitals (3)(4)(15) FRD and Preamble recitals (4)(12) LTRD.
Article 3(1) FRD. It follows that temporary and seasonal workers, along with workers holding residence permits that are valid for less than one year, remain excluded from the scope of the FRD.
Article 4(1) FRD. Pursuant to Article 4(2)(3) FRD, Member States are entitled to extend the exercise of this right also to unmarried partners, dependent parents, and dependent adult unmarried children. Unmarried couples involved in a stable and proven relationship are currently eligible for reunification in Belgium, Germany, Finland, the Netherlands, Sweden, Portugal, and Lithuania. In turn, the sponsor’s parents are entitled to reunification in Belgium, the Czech Republic, Hungary, Italy, Lithuania, Luxembourg, the Netherlands, Portugal, Romania, Slovenia, Sweden, and Spain. Esther Gómez-Campelo and Marina San Martín-Calvo, ‘The Right to Family Reunification in the EU and the Case-Law in Accordance Therewith’ (Lawyers4Rights 2020) 16–17. The exercise of the right to family reunification is precluded, nonetheless, by Article 4(4) FRD to further spouses in a polygamous family and, consequently, also to their children. The same result follows, under Article 16(2)(b) FRD, in the event of fraudulent marriage taken with the sole purpose of family reunification.
Article 14(1) FRD. In other words, being the family members’ status directly linked to that of their sponsors, equal treatment with the nationals of the host Member State remains excluded. By virtue of Article 14(2) FRD, the immigrants’ access to the host state’s labour market can be, nonetheless, excluded for up to twelve months, depending on the contingent situation.
Article 15(1) FRD. According to Article 15(3) FRD, Member States may grant this permit earlier in case of widowhood, divorce, separation, or death of first-degree relatives in the direct ascending or descending line, or in case of ‘particularly difficult circumstances’ – e.g. when a spouse or partner suffers domestic violence.
Helen Oosterom-Staples, ‘The Family Reunification Directive: A Tool Preserving Member State Interest or Conducive to Family Unity’ in Anneliese Baldaccini, Elspeth Guild and Helen Toner (eds), Whose Freedom, Security and Justice? EU Immigration and Asylum Law and Policy (Hart Publishing 2007) 487; Murphy (n 7) 171 and 176.
Kees Groenendijk, ‘Pre-Departure Integration Strategies in the European Union: Integration or Immigration Policy?’ (2011) 13 European Journal of Migration and Law 1, 6 and 27; Keith Puttick and Cordelia Carlitz, ‘Inequalities of Family Members of EEA and Non-EEA Nationals: “Integration” and Barriers to Family Reunification in the Post-Lisbon Era’ in Sonia Morano-Foadi and Micaela Malena (eds), Integration for Third-Country Nationals in the European Union: The Equality Challenge (Edward Elgar Publishing 2012) 276.
In a similar vein, Article 4(6) FRD allows for a further exemption with respect to applications for reunification submitted before the children turn fifteen years of age, provided that such a requirement was already laid down into national legislation prior to the expiration of the FRD’s implementation deadline. As specified in Article 10(1), the exception laid down in the last subparagraph of Article 4(1) FRD does not apply to the children of refugees, implying that integration cannot hinder family reunification for refugees.
This rationale was clearly described by the Danish Government explanatory notes to the Danish Aliens Act reported in the European Court of Human Rights’ ruling in Osman v Denmark [2011] ECtHR Application no. 38058/09 [28].
Kees Groenendijk, ‘Legal Concepts of Integration in EU Migration Law’ (2004) 6 European Journal of Migration and Law 111, 119; Sergio Carrera and Zvezda Vankova, ‘Human Rights Aspects of Immigrant and Refugee Integration Policies: A Comparative Assessment in Selected Council of Europe Member States’ (Council of Europe Issue Paper 2019) 18.
Article 7(1) FRD. Moreover, pursuant to Article 6(1)(2) FRD, Member States still retain their power to refuse the admission of TCNs, or withdraw or refuse the renewal of residence permits, on grounds of public policy, public security, or public health.
Article 8(1) FRD.
Article 8(2) FRD. According to Article 12 FRD, those waiting periods, likewise the requirements set out in Article 7 FRD, are not applicable to refugees and their family members.
As specified in the last subparagraph of Article 7(2) FRD, with respect to refugees and their family members, those integration measures may be applied only once family reunification has been granted.
In 2011, the personal scope of the Long-term Residence Directive was extended to refugees and other beneficiaries of international protection by Directive 2011/51/EU of the European Parliament and of the Council of 11 May 2011 amending Council Directive 2003/109/EC to extend its scope to beneficiaries of international protection 2011 [OJ L 132] 4.
Article 4 FRD.
Articles 9 and 10 LTRD.
Article 11(1) LTRD. Still, by virtue of the exception laid down in Article 11(4) LTRD, Member State are allowed to limit social assistance and social benefit for long-term resident TCNs to ‘core benefits’. Besides free access to the entire territory of the Member State concerned, the LTRD grants TCNs also the right to free movement across other EU countries. Nonetheless, according to Article 14 LTRD, the latter states are allowed to apply the same restrictive conditions as the first state and to give preference to individuals already present on the labour market or to deny residence on grounds of existing quotas.
Integration measures are applicable only when they are not compulsory already in the first Member State (except for mandatory language courses, which always permitted under Article 15(3) LTRD).
Fekete (n 10) 4; Murphy (n 7) 55; Carrera (n 13) 169 and 185; KM (Karin) de Vries, ‘The Integration Exception: A New Limit to Social Rights of Third-Country Nationals in European Union Law?’ in Daniel Thym (ed), Questioning EU Citizenship: Judges and the Limits of Free Movement and Solidarity in the EU (Hart Publishing 2017) 270; Ilona Bontenbal and Nathan Lillie, ‘Policy Barriers and Enablers – A Comparative Approach’, Policy Barriers and Enablers: WP3 report (SIRIUS [D32] (770515) Horizon 2020 2019) 43; Barbulescu (n 13) 19; Silvia Adamo, ‘“Please Sign Here”: Integration Contracts Between Municipalities and Foreigners in Denmark’ (2021) 23 Journal of International Migration and Integration 321; Thomas Bredgaard and Rasmus Lind Ravn, ‘Denmark: From Integration to Repatriation’ in Béla Galgóczi (ed), Betwixt and between: Integrating refugees into the EU labour market (ETUI – European Trade Union Institute 2021) 76–77; Tamar de Waal, Integration Requirements for Immigrants in Europe: A Legal-Philosophical Inquiry (Hart Publishing, Bloomsbury Publishing Plc 2021) 20–30; Silvia Adamo, ‘The Danish Legal Framework for Migration: Between a Humanitarian Past and a Restrictive Present’ in Marie-Claire Foblets and Jean-Yves Carlier (eds), Law and Migration in a Changing World, vol 31 (Springer International Publishing 2022) 290–291.
A basic knowledge of local language and society is required by the Netherlands as a condition for admission to the country, and a further integration test is envisaged to obtain a permanent residence permit and naturalisation. In Germany, family reunification is also subordinated to the successful passing of a pre-entry language test. French law envisages an examination on language and ‘values of the Republic’ (and mandatory courses in the event of failure) for the purpose of family reunification as well as an integration and welcome contract to obtain a residency permit. Similar mandatory integration measures have been introduced in Belgium, Cyprus, Greece, and Italy. Groenendijk, ‘Pre-Departure Integration Strategies in the European Union’ (n 55) 1, 11, 14–19 and 27; Malena and Morano-Foadi (n 7) 57 and 59; Puttick and Carlitz (n 55) 289–290; Murphy (n 7) 54–57 and 66–67; Antje Ellermann and Agustín Goenaga, ‘Discrimination and Policies of Immigrant Selection in Liberal States’ (2019) 47 Politics & Society 87, 96; Bontenbal and Lillie (n 68) 43; Barbulescu (n 13) 20, 24 and 209; Murphy, Gilmartin and Caulfield (n 43) 449; de Waal (n 68) 20–25.
Groenendijk, ‘Pre-Departure Integration Strategies in the European Union’ (n 55) 3, 5, 14 and 22; Puttick and Carlitz (n 55) 293; Barbulescu (n 13) 212; Murphy, Gilmartin and Caulfield (n 43) 449.
Clíodhna Murphy, ‘The Concept of Integration in the Jurisprudence of the European Court of Human Rights’ (2010) 12 European Journal of Migration and Law 23, 42; Murphy (n 7) 172, 176 and 179; Ruth Rubio-Marín, ‘Integration in Immigrant Europe: Human Rights at a Crossroads’ in Ruth Rubio-Marín (ed), Human Rights and Immigration (Oxford University Press 2014) 104–105; de Vries (n 68) 284; Bontenbal and Lillie (n 68) 24; Ilke Adam and Daniel Thym, ‘Integration’ in Philippe De Bruycker, Marie De Somer and Jean-Louis De Brouwer (eds), From Tampere 20 to Tampere 2.0: Towards a new European consensus on migration (European Policy Centre (EPC) 2019) 75.
As a matter of fact, integration conditions have had the effect of sensibly reducing the number of visas granted for family reunification. Groenendijk, ‘Pre-Departure Integration Strategies in the European Union’ (n 55) 3–5 and 23; Carrera (n 13) 158–159, 169–170; Barbulescu (n 13) 24, 25 and 212; Ellermann and Goenaga (n 69) 96–97.
Groenendijk, ‘Pre-Departure Integration Strategies in the European Union’ (n 55) 1; Moritz Jesse, ‘Third-Country Nationals, Integration and Access to Employment and Occupation under EU Law’ in Sonia Morano-Foadi and Micaela Malena (eds), Integration for Third-Country Nationals in the European Union: The Equality Challenge (Edward Elgar Publishing 2012) 148 and 165; Murphy (n 7) 56–57; Ellermann and Goenaga (n 69) 98; Sarah Ganty, ‘Silence Is Not (Always) Golden: A Criticism of the ECJ’s Approach towards Integration Conditions for Family Reunification’ (2021) 23 European Journal of Migration and Law 176, 191–192 and 199.
As proof of this, Danish, Netherlands, and German legislation exempt those immigrants coming from certain wealthier third-countries, such as Australia, Brazil, Canada, Israel, Japan, New Zealand, South Korea, Switzerland, and USA, from integration requirements. Although apparently neutral, this form of selection originates from a structurally biased hierarchy of nationalities. Fekete (n 10) 4; Murphy (n 7) 56–57; Ellermann and Goenaga (n 69) 93–94 and 98; Rytter (n 10) 685.
Murphy (n 7) 169–180; Carrera (n 13) 171; Murphy, Gilmartin and Caulfield (n 43) 447–448; Adam and Thym (n 71) 75. P and S v Commissie Sociale Zekerheid Breda and College van Burgemeester en Wethouders van de gemeente Amstelveen, Opinion of Advocate General Szpunar [2015] CJEU Case C-579/13, ECLI:EU:C:2015:39 [89–94].
Malena and Morano-Foadi (n 7) 58 and 64; Murphy (n 7) 26–27; Rubio-Marín (n 71) 104; de Vries (n 68) 270.
Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast) 2011 [OJ L 337].
Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted 2004 [OJ L 304/04].
Article 23 also requires Member States to protect family unity, and Article 24 sets a minimum three-year residence permit for refugees and one-year residence permit for beneficiaries of subsidiary protection.
Directive (EU) 2016/801 of the European Parliament and of the Council of 11 May 2016 on the conditions of entry and residence of third-country nationals for the purposes of research, studies, training, voluntary service, pupil exchange schemes or educational projects and au pairing 2016 [OJ L 132]. Noticeably, Ireland and Denmark opted out of the Directive.
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 2004 [OJ L 375].
Council Directive 2005/71/EC of 12 October 2005 on a specific procedure for admitting third-country nationals for the purposes of scientific research 2005 [OJ L 289].
Article 12 Students and Researchers Directive. Steve Peers, ‘The New Directive on Immigration of Students and Researchers: A Small Step or a Big Leap Forward?’ (EU Law Analysis, 23 November 2015) <http://eulawanalysis.blogspot.com/2015/11/the-new-directive-on-immigration-of.html> accessed 10 November 2021.
Articles 11(1)(c), 13(1)(d), 14(1)(d), and 16(2)(a) Students and Researchers Directive. In addition, Article 26(3) prohibits the application of pre-entry integration conditions and measures ex Articles 4(1) and 7(2) FRD to the researchers’ family members. An identical provision is contained in Article 19(3), Directive 2014/66/EU of the European Parliament and of the Council of 15 May 2014 on the conditions of entry and residence of third-country nationals in the framework of an intra-corporate transfer 2014 [OJ L 157].
Whereas 3 and 8, Students and Researchers Directive.
Council Directive 2009/50/EC of 25 May 2009 on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment (Blue Card Directive) 2009 [OJ L 155].
Directive 2011/98/EU of the European Parliament and of the Council of 13 December 2011 on a single application procedure for a single permit for third-country 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 (Single Permit Directive) 2011 [OJ L 343].
In particular, Article 14(1) Blue Card Directive granted equal treatment in terms of working conditions (including pay and dismissal), freedom of association and affiliation, education and vocational training, recognition of diplomas, certificates and other professional qualifications, specific elements of social security and pensions, access to goods and services, and free access to the entire territory of the host state. Article 18(1) extended the right of free movement across the EU for the purpose of highly qualified employment, after eighteen months of residence. In turn, equal treatment was not extended to study loans or grants and housing.
Article 5(3) Blue Card Directive. By virtue of Article 5(5), Member States may exceptionally reduce this threshold to 1.2 times the average gross annual salary for certain professions.
Ibid Article 15(3). In addition, Article 16 Blue Card Directive lays down more favourable criteria to apply for the status of EU long-term resident.
Articles 6 and 8(3) Blue Card Directive, reflecting the clause contained in Article 79(5) TFEU.
Article 8(2) Blue Card Directive.
Ibid Article 8(4)(5).
Sonia Morano-Foadi and Karin de Vries, ‘The Equality Clauses in the EU Directives on Nondiscrimination and Migration/Asylum’ in Sonia Morano-Foadi and Micaela Malena, Integration for Third-Country Nationals in the European Union: The Equality Challenge (Edward Elgar Publishing 2012) 40; Jesse (n 73) 165–166.
Directive 2021/1883/EU of the European Parliament and of the Council of 20 October 2021 on the conditions of entry and residence of third-country nationals for the purpose of highly qualified employment, and repealing Council Directive 2009/50/EC (new Blue Card Directive) 2021 [OJ L 382/1].
European Commission, ‘Communication to the European Parliament and the Council on the Implementation of Directive 2009/50/EC on the Conditions of Entry and Residence of Third-Country Nationals for the Purpose of Highly Qualified Employment (“EU Blue Card”)’; European Commission, Commission Staff Working Document – Impact Assessment Accompanying the document Proposal for a Directive of the European Parliament and the Council on the conditions of entry and residence of third-country nationals for the purposes of highly skilled employment and repealing Directive 2009/50/EC 2016 [SWD(2016) 193 final]. Steve Peers, ‘The Blue Card Directive on Highly-Skilled Workers: Why Isn’t It Working, and How Can It Be Fixed?’ (EU Law Analysis, 4 June 2014) <http://eulawanalysis.blogspot.com/2014/06/the-blue-card-directive-on-highly.html> accessed 10 November 2021; Marlene Wind and Silvia Adamo, ‘Is Green Better than Blue? The Danish Jha Opt-out and the Unilateral Attempt to Attract Highly Skilled Labour’ (2015) 17 European Journal of Migration and Law 329, 346–348.
Article 31, Directive 2021/1883/EU of the European Parliament and of the Council of 20 October 2021 on the conditions of entry and residence of third-country nationals for the purpose of highly qualified employment, and repealing Council Directive 2009/50/EC (new Blue Card Directive) (n 95).
Steve Peers, ‘The Revised Blue Card Directive: The EU’s Search for More Highly Skilled Non-EU Migrants’ (EU Law Analysis, 20 May 2021) <https://eulawanalysis.blogspot.com/2021/05/the-revised-blue-card-directive-eus.html> accessed 10 November 2021; ‘Legal Migration: Council Adopts Blue Card Directive to Attract Highly-Qualified Workers’ (Council of the EU – Press release, 10 July 2021) <https://www.consilium.europa.eu/en/press/press-releases/2021/10/07/legal-migration-council-adopts-blue-card-directive-to-attract-highly-qualified-workers/> accessed 10 November 2021.
Article 1(1) and Preamble Recital (2) Single Permit Directive. For the record, Article 3(2) excludes from the personal scope of the directive specific categories of third-country workers, such as posted workers, asylum seekers, refugees and beneficiaries of international protection, seasonal workers, au pairs, intra-corporate transferees, self-employed workers, and family members of EU nationals.
Unlike the Blue Card Directive, the Single Permit Directive does not envisage any derogation with respect to the Member States’ possibility to implement pre-entry integration requirements under the FRD.
Malena and Morano-Foadi (n 7) 66; Kees Groenendijk, ‘Equal Treatment of Workers from Third Countries: The Added Value of the Single Permit Directive’ (2015) 16 ERA Forum 547, 559–560.
Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof (Temporary Protection Directive) 2001 [OJ L 212].
Article 11, Council Implementing Decision (EU) 2022/382 of 4 March 2022 establishing the existence of a mass influx of displaced persons from Ukraine within the meaning of Article 5 of Directive 2001/55/EC, and having the effect of introducing temporary protection 2022 [OJ L 71].
Whereas 16, ibid.
Article 12 TPD. According to Article 14 TPD, persons under 18 have access to the state education system under the same conditions as nationals of the host state.
Article 13 TPD. Persons with special needs, such as unaccompanied minors or persons who have undergone torture, rape or other serious forms of psychological, physical or sexual violence, are entitled to special assistance. Incidentally, even a country with a notoriously restrictive approach to immigration and granting asylum protection such as Denmark (which by virtue of its opt-out on Justice and Home Affairs (JHA) is not subject to the TPD), in March 2022 adopted a ‘Special Act’ on temporary residence permits for displaced persons from Ukraine. Similar to the EU provisions, Ukrainians and their family members can obtain a 2-year work and residence permit in Denmark, along with access to the labour market, welfare benefits and housing, health services, school, and integration measures such as language courses and higher educational programmes. ‘New Danish Law for Those Fleeing Ukraine Mirrors EU Temporary Protection Directive’ (European Website on Integration, 16 March 2022) <https://ec.europa.eu/migrant-integration/news/new-danish-law-those-fleeing-ukraine-mirrors-eu-temporary-protection-directive_en> accessed 25 April 2022; The Danish Immigration Service and SIRI, ‘Information to Persons from Ukraine’ (New to Denmark, 22 April 2022) <https://www.nyidanmark.dk/en-GB/Words and Concepts Front Page/Shared/Information Ukraine> accessed 25 April 2022.
Andrea Pettrachin and Leila Hadj-Abdou, ‘Explaining the Remarkable Shift in European Responses to Refugees Following Russia’s Invasion of Ukraine’ (EUROPP (European Politics and Policy) LSE, 9 March 2022) <https://blogs.lse.ac.uk/europpblog/2022/03/09/explaining-the-remarkable-shift-in-european-responses-to-refugees-following-russias-invasion-of-ukraine/> accessed 15 March 2022; Lenka Drazanova, ‘Why Are Ukrainian Refugees Welcomed in Central and Eastern Europe?’ (MPC Blog, 23 March 2022) <https://blogs.eui.eu/migrationpolicycentre/why-are-ukrainian-refugees-welcomed-in-central-and-eastern-europe/> accessed 12 April 2022.
‘European Neighbourhood Policy and Enlargement Negotiations’ (European Commission) <https://ec.europa.eu/neighbourhood-enlargement/european-neighbourhood-policy_en> accessed 20 April 2022.
Association Agreement between the European Union and its Member States, of the one part, and Ukraine, of the other part 2014 [OJ L 161/3].
Steve Peers, ‘EU Law Analysis: Temporary Protection for Ukrainians in the EU? Q and A’ (EU Law Analysis, 27 February 2022) <http://eulawanalysis.blogspot.com/2022/02/temporary-protection-for-ukrainians-in.html> accessed 28 March 2022; Emily Venturi and Anna Iasmi Vallianatou, ‘Ukraine Exposes Europe’s Double Standards for Refugees’ (Chatham House – International Affairs Think Tank, 30 March 2022) <https://www.chathamhouse.org/2022/03/ukraine-exposes-europes-double-standards-refugees> accessed 20 September 2022.
Morano-Foadi and de Vries (n 94) 38–40; Jesse (n 73) 165; Murphy (n 7) 170; Kees Groenendijk, ‘Recent Developments in EU Law on Migration: The Legislative Patchwork and the Court’s Approach’ (2014) 16 European Journal of Migration and Law 313, 327–328; de Vries (n 68) 274; Veronica Federico, ‘Legal Barriers and Enablers. WP2 Report’ (SIRIUS [D 22] – Integrated report on socio-cultural, institutional and legal framework 2018) 14, 53–54.
‘The EU’s 2021–2027 Long-Term Budget and NextGenerationEU: Facts and Figures’ (European Commission 2021).
On 27 April 2022, the Commission presented a proposal of the Recast Single Permit Directive. European Commission, Proposal for a Directive of the European Parliament and Council on a single application procedure for a single permit for third-country 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 (recast) 2022 [COM(2022) 655 final]. For an overview of the proposed revision of the LTRD, see European Commission, New Pact on Migration and Asylum (n 1) 6 and 26.