Saturday, May 24, 2008

Discrimination in the name of integration

Impact on the Rights of Migrants

The overseas integration test is discriminatory. Coupled with the income requirements and cost of applications for family formation and reunification, it infringes the right to family life, affecting the rights of both those seeking to enter the Netherlands as family migrants and Dutch citizens and residents wishing to bring family members to live with them. As noted above, Turkish and Moroccan migrants in the Netherlands are disproportionately affected by these measures.
Prohibition of Discrimination
Human Rights Law

Human rights law prohibits discrimination and unjustified unequal treatment. The European Convention on Human Rights (ECHR) and the International Covenant on Civil and Political Rights (ICCPR) forbid discrimination on the basis of nationality.82 The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) forbids discrimination on the basis of race.83 The Netherlands is a party to each of these treaties.

Governments have the right to control entry to their borders and have a certain margin of appreciation to justify differential treatment compatible with international human rights law. But the measures must pursue a legitimate aim and need to be proportional to the achievement of this aim.84

The European Court of Human Rights has accepted as compatible with the European Convention on Human Rights differences in treatment between EU nationals and third country nationals.85 But the court has ruled that other differences in treatment solely on the basis of nationality are difficult to justify, requiring “very weighty reasons.”86 The jurisprudence of the court leaves little or no room for justification of distinctions on grounds of “race” or “ethnic origin.”

In a recent case on Russia, the Court held that:

…no difference in treatment which is based exclusively or to a decisive extent on a person’s ethnic origin is capable of being objectively justified in a contemporary democratic society built on the principles of pluralism and respect for different cultures.87

In an important November 2007 judgment on non-discrimination (D.H. and others v. Czech Republic), the court underscored that the European Convention addresses not only specific acts of discrimination, but also systemic practices that deny the enjoyment of rights to racial or ethnic groups. The court re-affirmed that "a difference in treatment may take the form of disproportionately prejudicial effects of a general policy or measure which, though couched in neutral terms, discriminates against a racial or ethnic group."88

Indeed, the court clarified that such a situation may amount to "indirect discrimination," in breach of the convention. A difference in treatment without objective and reasonable justification may violate article 14 even in the absence of discriminatory intent. It is sufficient that the practice or policy resulted in a disproportionate adverse effect on a particular group.

The ICERD does not permit distinctions among non-citizens on racial grounds. The treaty does draw a distinction between citizens and non-citizens (article 1(2)), and permits some exceptions in legal provision relating to nationality, citizenship, or naturalization (article 1(3)).

In its General Recommendation No. 30, the UN Committee on the Elimination of Racial Discrimination (CERD) has stated that states must “ensure that immigration policies do not have the effect of discriminating against persons on the basis of race, colour, descent, or national or ethnic origin.” 89 The General Recommendation also indicates that the compatibility of differential treatment in immigration matters with ICERD will depend on whether the measures pursue a legitimate aim and are proportional to the achievement of this aim.90

The CERD Committee has also affirmed the principle of non-discrimination in the specific context of family unification. In March 2007 the CERD Committee observed, in relation to Israeli legislation limiting family reunification in cases of marriage between an Israeli citizen and a person residing in the West Bank or Gaza, that states must “ensure that restrictions on family reunification are strictly necessary and limited in scope, and are not applied on the basis of nationality, residency or membership of a particular community.” 91
Overseas integration test discriminatory

The overseas integration test violates the principle of non-discrimination as enshrined in the European Convention on Human Rights and the International Convention on the Elimination of All Forms of Racial Discrimination.

The exemption granted to persons from “western” countries constitutes discrimination in the sense of Article 14 of the ECHR and under Protocol 12 to the convention.92 The act does not meet the requirement for justification set by the European Court of Human Rights. The integration of the immigrants into the Netherlands, including through the acquisition of Dutch language, history, and culture, may be a legitimate aim. But an integration exam that provides a blanket exemption for some nationalities and not others is not proportionate to that aim. A general exemption for persons from a number of countries is also contrary to the alleged aim of the act, namely that all migrants should have a basic level of integration before arrival.93

When Human Rights Watch asked the minister for housing, communities and integration why citizens of some countries are exempted, her response was that to a certain extent those are similar in socio-economic, social, and political background to European countries. The countries do not generate undesired and unbridled migration flows to the Netherlands nor do their citizens experience essential problems in integration into Dutch society. Nationals of these countries, she said, are also exempted from the MVV requirement because of factors such as Dutch economic interests, foreign relations, national security, and public order.94

As noted above, the argument that the exempted countries are comparable with the Netherlands in social, economic, and political background has no objective justification. The government has not demonstrated that, for example, Japanese family members who are exempted from the overseas integration test tend to integrate more easily than Turkish family members who are required to take it. There is no evidence that the declared social and economic level of a country is a reliable indicator of the capability, inclination, or willingness of a potential individual migrant to integrate.95 The government has not shown, if it believes family members in some countries need to pass this integration test, why others do not.

In assessing the proportionality of the measure, it is important to recall that the government requires most long-term foreign residents (with the exception of EU/EEA citizens) to pass an examination demonstrating greater knowledge of the Dutch language and culture than is assessed by the overseas integration test.96 The Dutch government still argues that the overseas integration test facilitates the process of ongoing integration once the person is present in the Netherlands.97 Yet it fails to justify why for nationals of some countries, the integration program in the Netherlands is deemed sufficient to facilitate the process of integration, and no overseas test is required.

Since the difference in treatment has no relation to the aim of the measure (better integration in the country of destination), it amounts to discrimination on the basis of ethnic origin and nationality. The sanction for not passing the overseas integration test is the refusal of entry into the Netherlands. A reduction in immigration by non-western family migrants was an expected effect of the legislation by the Dutch government.98 The government assumed here that only those who pass the test have satisfactorily manifested their willingness to integrate. But this assessment fails to take sufficiently into account the practical difficulties in preparing and taking the test before entry to the Netherlands. This disproportionate instrument therefore violates the Netherlands’ obligations under the ECHR.

Similarly, the country exemptions for the overseas integration test also constitute an unjustified infringement of the principles of non-discrimination in the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). As the concept of “race” in Article 1(1) of the convention is to be broadly interpreted, including descent, or national or ethnic origin, the persons affected by the act can be considered to fall under the definition of “race.”

The National Bureau against Racial Discrimination, LBR, (now part of “Art. 1,” the national association against discrimination) argues that the act constitutes an unjustified infringement on the principles of non-discrimination as enshrined in ICERD. 99 Its conclusion is based on the exemptions granted to some nationalities and the proportionality of the measure to the aims it seeks to achieve. The organization argues that the comparable socio-economic, social, and political development of a country is an arbitrary justification for the exemption, since it bears no relationship to the capacity or the inclinations of an individual to integrate in the Netherlands or his or her knowledge of the Dutch language.

The exemption for certain nationalities is not covered by the two exceptions in Article 1 of ICERD. The measure is part of the immigration legislation, not of the citizenship legislation. It distinguishes between different groups of non-nationals rather than between nationals and non-nationals. Moreover, the measure in practice directly or indirectly has different effects for migrants related to their ethnic or racial origin. 100 It therefore violates the Netherlands’ obligations under the ICERD.
Indirect discrimination: disproportionate impact on certain migrant communities

In addition to the discriminatory impact on foreign national family migrants from non-western countries, the overseas integration test also indirectly discriminates against individual Dutch citizens and residents from non-western migrant communities, particularly those of Turkish and Moroccan origin. As noted above, members of these communities in the Netherlands are also disproportionately impacted by financial requirements for sponsoring family formation and reunification.

At first glance, the legal rules on the integration exam abroad in the Netherlands are formulated in a general and neutral way, affecting all Dutch citizens and residents who wish to bring family members to the Netherlands. However this disguises the fact that this measure disproportionately affects Dutch citizens and residents of “non-western” origin. Members of “non-western” migrant communities are more likely to bring family members from abroad to the Netherlands than “native” Dutch persons, and far more likely to bring family members from “non-western” countries than migrants from “western” countries living in the Netherlands.

The exemption of Surinamese nationals with a certain level of Dutch education, means that in practice it is members of the other two largest migrant communities in the Netherlands—from Turkey and Morocco—who are most affected. Indeed as noted above, these two groups were uppermost in the mind of policymakers when the overseas integration test legislation was introduced.

According to figures released by Statistics Netherlands (CBS) in January 2008, a large majority of Turkish men who married in 2006 chose a bride of Turkish origin; in 54 percent of the marriages, the wife had previously lived in the Netherlands while 27 percent lived in Turkey before their marriage, but later moved to the Netherlands.101 Among Moroccan men, 83 percent of those who married in 2006 chose a bride of Moroccan origin—60 percent had Moroccan wives who had previously lived in the Netherlands and 23 percent had wives who migrated from Morocco after marriage.

The high cost of the test and financial requirements also disproportionately affect Turkish and Moroccan migrants in the Netherlands. Turkish and Moroccan migrant communities are generally the most disadvantaged in the Netherlands. They suffer high rates of unemployment,102 an over concentration in low wage employment,and low incomes compared to the national average.103 The sustainability requirement to be demonstrated by longer-term employment contracts or profits represents a difficult challenge for newly employed, self-employed persons and in general for persons with a more difficult position on the labor market.

The introduction of stricter sponsorship requirements in 2004 has been put forward as a partial explanation for the decline between 2001 and 2006 in the number of Turkish and Moroccan men in the Netherlands marrying brides from abroad. The proportion of Turkish men in the Netherlands marrying a bride coming from Turkey fell during that period from 56 percent to 27 percent, while among Moroccan men the proportion marrying a woman coming from Morocco fell from 57 percent to 23 percent.104

The financial constraints also affect refugees. Refugees who fail to apply for family reunification within three months of receiving status are subject to the income requirements, as are asylum seekers who receive other forms of status. Access to employment can be difficult for such persons, who have sometimes been absent from the labor market for a long period, making it difficult to comply with the income requirements.
The Right to Family Life

The operation of the overseas integration test has a direct impact on the right to family and private life of migrants resident in the Netherlands and their foreign national family members.
Human Rights Law

The right to family life is protected under international human rights law, including the ECHR and ICCPR.105 But the right is a qualified one, insofar as interference with its enjoyment is legitimate where necessary to protect a greater public interest. In the context of family unification, the public interest in question is immigration control. Whether the restriction constitutes a violation will depend on a number of factors including the length of stay and ties of the individuals to the country where they live and whether it is possible to enjoy family life in another state.

The European Court on Human Rights acknowledges the state’s own interest in controlling immigration and that the ECHR provides no automatic right to family life in a particular country. To assess whether an interference with this right strikes the correct balance between an individual’s right to family life and the state’s interest in controlling immigration, the court takes into account, among other factors, the individual’s ties to the country of residence and the country of nationality, his or her family situation, and the obstacles the individual and his family members would face in the individual’s country of nationality. 106

Article 23 of the ICCPR provides that “The family is the natural and fundamental group unit of society and is entitled to protection by society and the State” and therefore guarantees the protection of family life, including the interest in family reunification. The Human Rights Committee, which monitors compliance with the ICCPR, addressed the issue indirectly in its 1986 General Comment 15 on the “Position of Aliens under the Covenant” noting that although in general states have discretion in relation to admitting non-nationals, “in certain circumstances, an alien may enjoy the protection of the Covenant even in relation to entry or residence,” for example, when considerations of non-discrimination and respect for family life arise.107
Interference with the Right to Family Life

Foreign family members must remain outside the Netherlands until they have met the requirements for family migration to the Netherlands, including passing the overseas integration test, and their MVV application has been approved. This can lead to significant periods of separation for spouses and family members.

Once all the requirements have been met and the application submitted, the MVV procedure generally takes three to six more months. The requirement that applicants pass the overseas integration test (including the involved preparation time) arguably amounts to an informal waiting period.108 Even if an applicant passes the test on the first try, and is able to meet other requirements, the accumulation of these conditions can lead to a considerable waiting period.109

For applicants under the age of 21, the waiting period is even longer. For example, if a 19-year-old Dutch citizen of Turkish or Moroccan origin marries, he or she will have to wait until age 21 before an application for family formation can even be filed. Moreover, the income requirement for family formation is 120 percent of the minimum wage persons aged 23 and up. If the 21 year old earns at or below the average for his age group, he or she may have to wait up to two more years before being able to comply with the income requirement.110

Notwithstanding, the state’s own interest in controlling immigration and the fact that the ECHR provides no right to family life in a particular country, a significant delay in family reunification or formation would be an interference in the right to family life for the family member living in the Netherlands. Whether or not it would amount to a violation (that is a disproportionate interference) of the right to family life of the person resident in the Netherlands would depend on the strength of ties that he or she had established in the Netherlands (the presence of family members, employment, etc), and whether or not he or she could reasonably be expected to give up residence in the Netherlands and move to a third country.

When Human Rights Watch asked the minister for housing, communities and integration if the government has assessed the impact of restrictions on family reunification and formation on the right to family life of Turkish and Moroccan migrants living in the Netherlands, the minister responded that the state secretary of justice will evaluate the impact of the income and age requirements this year. The impact of Integration Abroad Act on the influx of family migrants, including Turkish and Moroccan migrants, will be taken into account in the evaluation of this act, also beginning this year. The minister stated that the number of applications for MVVs, including the applications of family migrants has decreased since 2003. She argued that the evaluation will have to demonstrate whether this decrease in applications can be ascribed to the sharpened restrictions on family formation and reunification.111
The Right to Marry and Found a Family
Human Rights Law

In addition to its obligation not to discriminate on the basis of nationality or ethnic origin, the Netherlands also has a positive obligation under international human rights law to protect the family, including the establishment of families. The Universal Declaration of Human Rights (UDHR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the ICCPR, the Convention on the rights of the Child (CRC), and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) all afford special protection to the family as the fundamental unit of society.

Under Article 16 of the Universal Declaration of Human Rights and Article 23 (1) and 26 of the International Covenant on Civil and Political Rights (ICCPR), discriminatory limitations of the human right to marry and found a family are prohibited. The family is defined as the natural and fundamental group unit of society and entitled to protection by society and the State.

General Comment 19, Article 23, paragraph 2, of the ICCPR reaffirms the right of men and women of marriageable age to marry and to found a family. As the Human Rights Committee argues, “the possibility to live together implies the adoption of appropriate measures … to ensure the unity or reunification of families, particularly when their members are separated for political, economic or similar reasons.”112 Protection of the family and its members is also guaranteed, directly or indirectly, by other provisions of the covenant. Thus, article 17 establishes a prohibition on arbitrary or unlawful interference with the family.113

In addition, Article 5 (d) (iv) of the Convention on the Elimination of Racial Discrimination (ICERD) requires states parties to guarantee the right of everyone to equality before the law in the enjoyment of their right to marriage and choice of spouse.

Article 10 of the ICESCR also recognizes that: “The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children…”

The committee that assesses state compliance with this covenant (CESCR) has expressed concern about Norway’s imposition of financial requirements on migrants seeking family reunification, concluding that “the subsistence requirement imposes an undue constraint on the ability of some foreigners…to be reunited with their closest family members” and encouraged the state “to consider easing restrictions on family reunification in order to ensure the widest possible protection of, and assistance to, the family.”114
Impact on individuals in the Netherlands and their family members

Although the act does not directly forbid a marriage with the spouse of their choice, the overseas integration test, coupled with the financial requirements for family migration to the Netherlands, may make it impossible for a considerable number of spouses to live together for an extended period of time.115 The restrictive conditions required impose constraints that are very difficult for some applicants to fulfill and thereby interfere with the ability of these couples to realize their choice of a spouse. They have a significant impact on marriage migration by poor and less educated women who need more support to integrate into Dutch society.

As FORUM (Institute for Multicultural Development) pointed out in 2003 when overseas integration conditions were first proposed, the lack of facilities to learn the Dutch language in some countries makes it almost impossible for nationals of those countries to join their spouses and family members in the Netherlands. FORUM further challenged why an income requirement of 120 percent was imposed while the legal minimum wage had been based on the fact that a family could support itself on this wage.116

Forced marriage, domestic violence117, and honor-related violence118, issues present in the Dutch public debate on integration policies, are human rights violations and the Dutch authorities have an obligation to take positive effective measures to prevent them. But even if that were the purpose of the law, the introduction of collective blanket restrictions on family formation and reunification for Turkish and Moroccan migrant communities in the Netherlands are not proportionate to that aim.

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