Integration requirements for third-country nationals: the first CJEU ruling

Steve Peers

When can a Member State require immigrants to undertake integration courses? The Court of Justice dealt squarely with this issue for the first time in today’s judgment in P and S, which concerned the application of the EU’s Directive on the long-term residence of non-EU citizens. (The UK, Ireland and Denmark have an opt-out from this law).

The judgment has a broader relevance, since the EU Directive on family reunion for non-EU citizens also provides for Member States to adopt integration conditions. On the other hand, EU free movement law does not provide for Member States to impose such conditions on EU citizens or their family members. As for Turkish nationals, the EU-Turkey association agreement does not provide for such a condition either, but Member States may impose one subject to a standstill rule in most cases (see last year's Dogan judgment, discussed here).

Today’s judgment turns on the wording of the long-term residence Directive, which states that Member States ‘may require third-country nationals to comply with integration conditions, in accordance with national law’. The case concerned non-EU citizens who already had long-term resident status under the Directive, but Dutch law still requires them to take civic integration courses and penalises them with a fine every time they fail. A later change to Dutch law requires non-EU citizens to pass these courses before they get long-term residence status, but that later version of the law was not directly at issue in this case.  

Judgment

According to the Court, the requirement to take integration courses does not as such infringe the Directive, first and foremost because the Directive clearly permits an integration condition to be imposed before obtaining long-term resident status. Next, the Court ruled that the requirement did not breach the equal treatment rule set out in the Directive, since Dutch nationals could be presumed to have knowledge of Dutch society and the Dutch language, whereas non-EU citizens could not.

However, that was not the end of the Court’s analysis. It then focussed on whether the national rules undercut the effectiveness of the Directive. The Directive had as its main aim the integration of non-EU citizens, and the Court stated that learning the national language and about the host State could facilitate communication with Dutch citizens, and ‘encourages interaction and the development of social relations’. Acquiring a knowledge of Dutch also ‘makes it less difficult’ to find work and take up training courses. The integration requirement therefore contributed to the aims of the Directive.

The Court went on to say that there were some limits upon what Member States can do, as regards ‘the level of knowledge required to pass the civic integration examination’, ‘accessibility of the courses and the material  necessary to prepare’ for the exams, the level of registration fees and ‘specific individual circumstances, such as age, illiteracy or level of education’. But the Court seemed most concerned about the amount of the fines, which were quite high and would be imposed for every failure, or even where the non-EU citizen had not sat the exam within the required time. The fines were also imposed on top of the high fees to sit the exam. So in principle this aspect of the system infringed EU law, although it was left to the national court to apply the Court’s ruling in practice. Finally, the Court stated that it was irrelevant whether the persons concerned already had long-term resident status, since (in this case) it was not a condition for getting or retaining that status.

Comments

The Court’s ruling makes clear that Member States can in principle impose integration requirements for long-term residence status, subject to the principle of effectiveness. The main feature of that principle in this case was the fees for failing (or not sitting) the exam, in conjunction with the fees for sitting the exam. Obviously the Dutch government is now obliged to lower those fees, and other Member States’ rules could be challenged on the same basis. The ruling is obviously particularly relevant to less wealthy migrants who would struggle to pay the fines and test fees several times over.

Although the Court did not rule in any detail on the other limits which EU law imposes upon national integration requirements, such limits certainly exist, as regards the level of knowledge needed to pass, the accessibility of tests and materials, and ‘specific individual circumstances’. It is not clear from the judgment exactly how Member States are obliged to take account of such circumstances – whether by means of a complete exemption from the test or a different version of it. But it should be noted that the list of specific circumstances mentioned by the Court is not exhaustive (‘such as’).

While the judgment clearly implies that Member States may even withhold long-term residence status if an integration test is not passed, the Court did not rule on that issue as such. So it remains open to argue that there may be stricter limits or other factors to consider when Member States impose an integration condition to acquire that status.

Nor did the Court rule on whether the failure to meet an integration condition could be a ground to lose long-term resident status. The Directive does not list this as one of the possible grounds for loss of that status, and it should follow from the objective of the Directive that the list of grounds which could lead to such a loss of status is exhaustive. This also follows from the structure of the Directive: if failure of an integration test could lead to loss of status, why did the drafters of the Directive only mention integration tests in the clause dealing with acquisition of that status?

Today’s judgment is only the first in a line of cases upcoming concerning integration conditions (the next batch of cases concern the parallel clause in the family reunion Directive). As a starting point, the Court has struck a good balance between ensuring that immigrants fit into society and the need to prevent integration tests forming a disguised means of excluding migrants from ever really fitting in despite their genuine efforts.

Barnard & Peers: chapter 26

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Irregular migrants and EU employment law

 

Steve Peers

What rights do irregular migrants have under employment law? It’s a vexed issue, because allowing irregular migrants to enforce employment law in their favour would arguably provide a ‘pull’ factor for them to enter and stay. On the other hand, if ordinary employment law applies to irregular migrants, then they will not be undercutting the legally resident workforce, and employers of irregular migrants will be deterred from employing them since they will not be saving money as a result.

The issue was addressed by the CJEU in today’s judgment in Tumer, concerning the application of the EU’s Directive on insolvency of employers to irregular migrants. In a bid to reduce the ‘pull’ factors of irregular migration, Dutch law specifies that irregular migrants cannot be considered employees for the purpose of the national application of the EU law. The result is that irregular migrants whose employer becomes insolvent cannot obtain the payments for back pay which the EU legislation provides for.

In this case, Mr. Tumer had initially resided legally in the Netherlands due to his marriage, but he was refused a continued residence permit after he got divorced. As a Turkish citizen, he arguably obtained rights based on the EU/Turkey association agreement, but the national court rejected his argument on this point and the CJEU refused to reopen the issue. Non-EU citizens can also obtain rights to stay after five years of lawful residence in accordance with the EU’s long-term residence Directive, but Mr. Tumer was divorced in 1996, well before that Directive had to be implemented (2006).

Despite not holding a residence permit, Mr. Tumer remained on the territory and worked for a Dutch employer. His employer became insolvent and he applied for the back pay which it had owed him from the Dutch fund set up to implement the insolvent employers Directive.

Judgment

The CJEU ruled first of all that the ‘legal base’ for the adoption of the legislation, the previous Article 137(2) EC (now Article 153 TFEU) was not limited to EU citizens only, ‘to the exclusion of third-country nationals’. Next, while the EU’s long-term residence Directive provided for equal treatment of long-term resident third-country nationals, this ‘in no way precludes other EU acts, such as’ the insolvent employers Directive, ‘from conferring, subject to different conditions, rights on third-country nationals with a view to achieving the individual objectives of those acts’.

As to the scope of this Directive in particular, the Court noted that it left it to national law to define the concept of ‘employee’. However, this discretion was circumscribed by provisions which limited the ability of Member States to remove certain categories of employees from the Directive, and specified that atypical workers (part-timers, fixed term workers, agency workers) had to be considered as employees. The Court pointed out that the Directive neither excluded third-country nationals from the scope of the Directive nor ‘expressly permit[ted]’ Member States to exclude them. Dutch civil law classified anyone with a ‘contract of employment’ as an ‘employee’ who was entitled to receive pay.

So, the Court reasoned, national discretion regarding the definition of ‘employee’ was circumscribed by the need to ensure that the ‘social objective’ of the Directive was obtained. So this meant that an ‘employee’ was in effect, defined by EU law, referring to ‘an employment relationship that gives rise to a right, vis-à-vis the employer, to receive payment for work done’. This definition corresponds to Dutch civil law. Denying any employees access to back pay when their employer became insolvent was ‘contrary to the social objectives of the Directive’. It was irrelevant that the person concerned was not entitled to work in the country, and Member States could not refuse to apply the Directive to irregular migrants on the basis that it expressly allows Member States to take measures to combat ‘abuse’.

Comments

This judgment is an important confirmation that EU employment law in principle applies to third-country nationals in general, including (but not limited to) irregular migrants. First of all, the Court stated for the first time that the legal base for EU employment law was not limited in scope to EU citizens only. It did not explain this interpretation in the light of the specific power (never used) in Article 153 TFEU to adopt legislation on the conditions of employment of third-country nationals, but it must be assumed from the judgment that the existence of this specific competence in no way limits the personal scope of any other EU employment legislation.

The impact of the Court’s ruling is clearly not confined to the insolvent employers Directive only. It refers very generally to the prospect of adopting ‘other EU acts, such as’ this Directive, which apply to third-country nationals. Logically, this means that other EU laws, such as consumer law, apply to third-country nationals too, since the Court did not suggest that its approach was limited to employment law.

Having said that, the Court clearly states that EU legislation could subject its application to third-country nationals to ‘different conditions’. What conditions are those? Its approach in this judgment indicates how the personal scope of EU legislation should be interpreted.

In Tumer, it’s crucial that the EU legislation in question doesn’t expressly exclude third-country nationals, or expressly permit Member States to do so. It does leave the definition of ‘employee’ up to national law, but the Court rules that this power is subject to satisfying the ‘social objectives’ of the Directive. Those social objectives don’t go as far as to permit exclusion of third-country nationals.

Applying these rules of interpretation to other EU measures, no EU employment legislation expressly excludes third-country nationals, or expressly permits Member States to do so; and surely it would always contradict the social objective of the legislation concerned to exclude from its scope third-country nationals in general, or irregular migrants in particular. The same could be said of other areas of law, such as EU consumer law. In contrast, the Treaty rules and legislation on EU citizenship and free movement of persons are limited to EU citizens and their family members.

This means that irregular migrants, as well as third-country nationals generally, can invoke any EU employment law, and many measures in other fields of EU law. However, the judgment doesn’t give  them rights to invoke the application of purely national employment law in areas not directly regulated by EU law, such as pay (in the absence of insolvency).

Having said that, equal treatment as regards other aspects of national law might be required by EU immigration or asylum law, depending on the specific rules in that legislation.  The long-term residents’ Directive, referred to by the Court, is not the only EU measure which confers equal treatment rights in that regard. While most of the measures in this area concern legal migrants, it is striking that the Court makes no reference to the 2009 Directive on employers of irregular migrants, which contains specific rules on this issue.

In principle, according to that Directive, irregular migrants are entitled to the normal rates of pay from their employer, and that Directive also requires that effective means must be in place to enforce this. The reason for this rule is to avoid employers gaining a benefit from their exploitation of irregular migrants, and the judgment in Tumeris entirely consistent with this logic. As the Commission recently reported, however, Member States have been fairly lax in enforcing these rules (see the analysis by Elspeth Guild earlier on this blog).  

In the event that the employer becomes insolvent, perhaps due to the various sanctions against employers of irregular migrants that the 2009 Directive provides for, then the employees could rely on the Tumer judgment to get any back pay from the national funds set up to implement the insolvent employers Directive. However, what happens if the insolvent employer of irregular migrants has not been paying them the normal wage, and/or not making payments into the national fund? Today’s judgment does not address that issue, which the Court of Justice will have to address if and when it arises.

 

Barnard & Peers: chapter 20, chapter 26

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