Integration, equal treatment and the right of abode of aliens in the Netherlands

This report was written for the Adviescommissie Vreemdelingenzaken (Advisory Committee on Aliens’ Affairs), an official advisory body to the government and parliament of the Netherlands, in preparation for an official advisory opinion of this Committee. The report considered proposals put forward in May 2004 by the Dutch Government to subject persons, irrespective of their nationality, who come from abroad to reside in the Netherlands, who are born outside the European territory of the European Union and European Economic Area, and who do not have an adequate knowledge of the Dutch language and Dutch society to the requirement of passing a test on pain of an administrative sanction which exists either in not awarding a permanent title of residence or in a fine.

The report first analyses the proposal from the point of view of non-discrimination. It concludes that the proposal is in conflict with the principle of equality as a general principle of law, Article 1 of the Constitution of the Kingdom of the Netherland, Articles 2 and 26 of the International Covenant on Civil and Political Rights and Article 1 of the Twelfth Protocol of the European Convention on Human Rights. The criterion of being born outside the European territory of the EU/EEA is too arbitrary, as it excludes persons who have the same knowledge deficiencies who happen to be born within that territory from the same obligation. Also the measure is disproportional in the light of the objectives adduced by the Government: the measure also concerns persons who have no problem of social and/or economic integration, do not cause social problems in certain (sub-)urban neighbourhoods, nor have problems on the labour market. The Government has not adduced objectives such as a generalized language or culture politics or social cohesion at a national level which might cover also those groups. Also the criterion of being born outside the European territory will cause indirect discrimination on the basis of race, because it will mostly affect persons of another race.

These flaws could only be remedied by not relinquishing the criteria of being born outside European territory.

Next the report concentrates on three main different groups of persons: non-Dutch EU citizens, Dutch EU citizens and non-EU citizens.

As regards the first group, the report concludes that the proposed measure is in conflict with EC law in as far as those citizens have a right under primary or secondary EC law to reside in the Netherlands. Also the proposed exemption from the measure for those persons who hold certain school diploma’s received in the Netherlands, is probably in conflict with the principle of non-discrimination under EC law.

The first of these flaws could only be remedied by exempting any non-Dutch EU citizen from the measure (though this in turn might lead to discrimination of other persons), or by relinquishing membership of the European Union.

As regards the second group, the situation is highly complicated. Mainly, the inclusion of this group under the measure is aimed at a certain group of youngster who cause trouble in the Netherlands and come from the island Curaçao, which is part of the overseas country of the Netherlands Antilles. The group of persons from the overseas countries of the Kingdom affected, are protected by the considerations of equal treatment and non-discrimination mentioned above, which void the proposed measure. Also, there is uncertainty whether the reservation which the Kingdom made as to Article 12 ICCPR and the Fourth Protocol of the ECHR (concerning free movement within a state party to these human rights treaties) as valid between the Netherlands and the autonomous overseas territory of Aruba - if it is not, then these provisions stand in the way of the proposed measures applying to Dutch citizens from that country. Finally, because Dutch citizens from these overseas territories are EU citizens and can enjoy therefore all rights derived there from in other member states, such citizens can enjoy the rights which may apply to them when they have made use of such rights in other member states and under Article 45 of the so-called OCT decision under Article 187 EC Treaty. In such cases the proposed measures cannot apply to them.

The other Dutch citizens affected by the proposed measures and have been naturalized before 2003 can invoke the principle of legal certainty against the proposed measures.

As regards the third group (non-EU-citizens), the report distinguishes between those who have a title under secondary EC law and those who do not. Concerning the first mentioned, the measure can result in unjustified direct or indirect discrimination and hence with the fundamental rights which member states have to observe when acting within the framework of EC law. Also, there are restrictions in applying measures as those proposed in secondary law, including the new Directives 2003/38/EC and 2004/109/EC, and as regards in particular Turkish and Swiss citizens under relevant association and international agreements. Finally, also bilateral agreements with Morocco, Turkey and those with for instance the United States may limit the applicability of proposed measures, as may be the case under GATS and other treaties which grant national or most favoured nation treatment to certain citizens.

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