ECJ: Integration obligation on long-term third-country national residents is not contrary to EU law if proportionate
Press and Information
Court of Justice of the European Union
PRESS RELEASE No 11/15
Luxembourg, 28 January 2015
Advocate General’s Opinion in Case C-579/13
P & S v Commissie Sociale Zekerheid Breda, College van Burgemeester en Wethouders van de gemeente Amstelveen
In the view of Advocate General Maciej Szpunar, an integration obligation imposed on long-term residents is not contrary to EU law, provided that it does not constitute a condition for the maintenance of that status
The obligation on such residents to pass a social-integration examination is contrary to the principle of proportionality
The directive on the status of third-country nationals who are long-term residents  provides, in particular, that Member States are to grant long-term resident status to third-country nationals who have resided legally and continuously within their territory for five years immediately prior to the submission of the relevant application. The Member States may, none the less, require third-country nationals to comply with integration conditions laid down in national law. The directive does not, however, indicate whether and to what extent such an integration obligation can be imposed on a person once that person has acquired long-term resident status.
In the Netherlands the integration obligation imposed on foreign nationals includes the duty to pass an examination relating to Dutch-language proficiency and basic knowledge of Netherlands society. Failure to comply with that duty in time attracts a fine.
In the present case P, a United States national who has been resident in the Netherlands since 2002, obtained long-term resident status in 2008. In the same year, the Commissie Sociale Zekerheid Breda (Commission for Social Security, Breda) informed P that she was obliged under Netherlands law to satisfy the integration requirement and was required to pass the corresponding examination within a certain period. P began an integration training programme but interrupted it on health grounds and never resumed it.
S, a New Zealand national, has lived in the Netherlands since 2000 and obtained long-term resident status in 2007. In 2010 the College van burgemeester en wethouders van de gemeente Amstelveen (the Mayor and Executive Board of the Municipality of Amstelveen) informed S that she was under an integration requirement and was required to pass the corresponding examination within a certain period.
Arguing that, as persons holding long-term resident status, they were not subject to the integration obligation, P and S challenged the decisions in question. The Centrale Raad van Beroep (Higher Social Security Court), before which the disputes have been brought on appeal, has referred to the Court of Justice questions for a preliminary ruling in the case and seeks to determine whether it is compatible with Directive 2003/109 to impose on third-country nationals who have acquired long-term resident status an integration obligation, failure to satisfy which attracts a fine.
In his Opinion delivered today, Advocate General Maciej Szpunar first of all points out that the directive confers a special legal status on third-country nationals who have settled permanently in the Member States because this helps promote economic and social cohesion within the EU. This does not, however, deprive Member States of all possibility of providing for means of integration in relation to long-term residents.
Next, in the Advocate General’s view, the introduction of integration measures for those with long-term resident status is not at variance with the objectives of the directive, as those measures are designed exclusively to integrate long-term residents into the social and economic life of the host State. National provisions providing that the integration obligation is a condition for the maintenance of long-term resident status or for the exercise of the rights associated with that status would, by contrast, be incompatible with the directive.
The Advocate General stresses that national provisions which introduce integration measures for a long-term resident come within the scope of EU law. Consequently, the margin of discretion which Member States are recognised as having in this area may not be exercised in such a way as to affect adversely the objective of the directive and its practical effectiveness. In addition, the national provisions must also comply with the principle of proportionality. The integration obligation must therefore not make it excessively difficult for those with long-term resident status to exercise the rights which they derive from that status.
The introduction of a compulsory examination designed to test language proficiency or knowledge of society does not, in the opinion of the Advocate General, contribute to attainment of the objective pursued by integration measures, that is to say, facilitating the social integration of the person concerned. The introduction of the obligation to pass an integration examination also brings into question the rationale underlying the integration measures, which must be measures, designed to foster social integration in the society concerned and may not establish requirements as to qualifications in connection with residence in the State in question. Any person who has, however, lived for a long time in the State in question will undoubtedly be linked with that State through a network of integrating connections centring on family, work, neighbourhood relations or hobby pursuits. An integration measure which does not allow for individual evaluation of such factual circumstances will therefore, in view of the objective of promoting further social integration of the person concerned, be disproportionate.
The Advocate General regards as equally disproportionate the penalty, in the form of a fine, which is provided under Netherlands law for failure to comply with the integration obligation.
In the light of the foregoing considerations, the Advocate General proposes that the Court should rule that Directive 2003/109 does not prohibit the introduction of integration measures for third-country nationals who are long-term residents. Such measures must, however, have the exclusive purpose of facilitating the integration of the person concerned and must not constitute a condition for the maintenance of that status or for the exercise of the rights which flow from it. In particular, those measures may not include any obligation to pass an examination relating to social integration.
NOTE: The Advocate General’s Opinion is not binding on the Court of Justice. It is the role of the Advocates General to propose to the Court, in complete independence, a legal solution to the cases for which they are responsible. The Judges of the Court are now beginning their deliberations in this case. Judgment will be given at a later date.
NOTE: A reference for a preliminary ruling allows the courts and tribunals of the Member States, in disputes which have been brought before them, to refer questions to the Court of Justice about the interpretation of European Union law or the validity of a European Union act. The Court of Justice does not decide the dispute itself. It is for the national court or tribunal to dispose of the case in accordance with the Court’s decision, which is similarly binding on other national courts or tribunals before which a similar issue is raised.
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The Dublin procedure:
- guarantees that your application for asylum reaches the authority of the country responsible for examining it
- ensures you don’t make many applications for asylum in several countries to extend your stay in Dublin countries
The Dublin procedure covers 32 countries. The ‘Dublin countries’ are:
- Czech Republic
As well as the 4 countries ‘associated’ with the Dublin system:
The Dublin procedure finds out which country will examine your application for asylum. This means you may be transferred from the UK to a different country that is responsible for your application. Until we decide which country is responsible for deciding on your application, we won’t consider your application.
If you’re found staying illegally in an EU member state, the authorities may take your fingerprints and check them in Eurodac, the European fingerprint database. The fingerprints won’t be stored. If you’ve applied for asylum before, you may be sent back to the country you applied in.
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The Home Office regrets that it has not been possible to give the usual 21 days’ notice before some of these changes take effect. This is because the new rules on administrative review are being brought into effect on the same day that section 15 of the Immigration Act 2014 comes into force for some applicants, and a similarly reduced notice period is being given for the commencement of section 15, which will come into force on 20th October 2014.
Section 15 substitutes a new section 82 into the Nationality, Immigration and Asylum Act 2002, which sets out new rights of appeal to the First-tier Tribunal. The effect of the commencement of section 15 will be to remove the right of appeal for certain persons who have been refused further leave to remain under Tier 4 of the Points Based System where the application is made on or after 20th October 2014. The new rules changes will introduce a right for these Tier 4 applicants to apply for an administrative review, as set out in this Statement of Changes.
The reason for the reduced notice period is to prevent a surge in applications by Tier 4 applicants seeking to preserve their right of appeal. Usually, applications for further leave should be submitted shortly before leave is due to expire, but there are
concerns that if there is a significant time period between the date announcing the commencement of section 15 and the date of coming into force, then a large volume of applicants for leave to remain may make their application early to attempt to
preserve their right of appeal. The right of appeal can be used as a means of delaying departure from the UK because appeals take several months to conclude, irrespective of whether there is merit in the grounds of appeal, whereas the new administrative review process will be quick.
Employers must carry out right to work checks on their employees. A new code of practice provides practical guidance on how to avoid illegal discrimination when carrying out the checks. Employers have a duty to prevent illegal working in the UK by carrying out document checks on people before employing them to confirm they have a right to work here. Failing to conduct these checks is not itself a criminal offence, but if an employer only carries them out on people who they believe are not British citizens, for example, on the basis of their colour, or ethnic or national origins, they could find themselves accused of discrimination and it could be used as evidence against them in proceedings under the Equality Act 2010 or the Race Relations (Northern Ireland) Order 1997, as amended.
Anyone who believes that they have been discriminated against, either directly or indirectly, by an employer, a prospective employer or an employment agency, because of their race may bring a complaint before an Employment Tribunal, or an Industrial Tribunal in Northern Ireland. If the complaint is upheld, the Tribunal will normally order the payment of
compensation, for which there is no upper limit. This is why we recommend that you, as an employer, obtain a statutory excuse for all prospective workers as this will protect you from liability for a civil penalty if the person in question is an illegal worker, whilst also demonstrating consistent, transparent and non-discriminatory recruitment practices. Where the employee only has a limited entitlement to remain in the UK, these checks should be repeated as prescribed in the guidance and ‘Code of practice on preventing illegal working: civil penalty scheme for employers’ in order to retain the excuse.
It is important to remember that the population of the UK is ethnically diverse. Many people from ethnic minorities in this country are British citizens and many non-British citizens from black and minority ethnic communities are entitled to work here. You must not therefore assume that someone from an ethnic minority is an immigrant, or that someone born abroad
or who speaks with a particular accent is not allowed to work in the UK.
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