An analysis by EUDO CITIZENSHIP Advisory Board member Kees Groenendijk

The coalition agreement of October 2010 between the two governing parties Freedom and Democracy (VVD), led by prime-minister Mark Rutte, and the Christian-Democrats (CDA), on the one hand, and the agreement of minority support by the Freedom Party (PVV), led by Geert Wilders, contain five pages with detailed measures that are intended to result in “a substantial reduction of immigration”. Wilders claims that the new government will be in trouble with him as a supporter of the new coalition if the immigration from “non-Western countries” is not reduced by 50%. In order to reach that aim five EU migration directives and four European treaties have to be amended (see point 3 below).

1. Integration of immigrants?

The agreement has one page with measures on the integration of immigrants. Some measures are clearly symbolic: prohibition of the burka (very few women in the Netherlands wear a burka), no veil in the police and the judiciary (current rules already preclude the veil in those jobs), a special code to register “culturally determined violence at home”, and renegotiating the Association Treaty between the EU and Turkey in order to be able to oblige Turkish immigrants in the Netherlands to pass the integration exam and to impose fines and residence status sanctions on those who do not pass the exam in time.

Far less symbolic is the decision that the government will no longer pay for the language and integration courses. Immigrants will have to bear the costs (approximately € 6,000). Both the VVD and the PVV included that promise in their election programme. Moreover, a new sanction for not passing the exam in time will be introduced: temporary residence permits will be withdrawn and except for “special circumstances” the migrant will have to leave the country or be expelled. The idea that immigrants should be responsible for and pay the costs of their own integration and let ‘the market’ take care of the supply of the integration courses, prevalent under Minister Verdonk (VVD) in 2004-2006, has returned on the agenda. Considering the 70% reduction of the number of immigrants starting an immigration course in 2007, when immigrants also had to bear the financial burden, the effects of such decision will be far-reaching. EU directives, the European Convention on Human Rights (ECHR) and the Refugee Convention severely restrict the number of cases where this new threat of expulsion for not passing the integration exam in time can be applied in practice to migrants who have lawfully resided in the country for several years. Will ending the payment for the courses and adding expulsion as a sanction really assist immigrant integration in the Netherlands?

2. Acquisition of Dutch nationality made more difficult again

In June 2010 the Dutch Nationality Act was amended in order to further reduce the categories of applicants for naturalisation exempted from the renunciation requirement (see also here). New grounds for withdrawal of Dutch nationality have been added. Full equality for Dutch mothers in granting the Dutch nationality to their children has been enshrined in the legislation.

In the coalition and minority support agreements of October 2010 between the conservative-liberal VVD, the Christian-democrat CDA, and the populist PVV, naturalisation is explicitly described as the crowning of the integration process. Acquisition of Dutch nationality by naturalisation or by option will be made more difficult, the grounds for loss of the nationality will be further extended and a new “conditional Dutch nationality” during the first five years after naturalisation is mentioned. Naturalisation will be made more difficult by the introduction of an income requirement, an educational requirement, widening the possibilities for refusal on public order grounds and stricter rules on renunciation of the first nationality. A language requirement will be introduced for immigrant who may opt for the Dutch nationality. Language and integration courses will no longer be paid from public funds, but passing the integration exam will remain a condition for naturalisation and, probably, for option as well.

If the coalition and minority support agreements are actually implemented three categories of Dutch nationals will be created:

1. Dutch nationals by birth;
2. Dutch nationals of Caribbean origin, who can be expelled to the Dutch Antilles;
3. Naturalised Dutch nationals, who risk to lose that nationality if they are convicted for a serious crime during the first five years after naturalisation;

Other naturalised Dutch nationals can only hope that Dutch politicians will not decided to take away their nationality under new conditions to be determined in future legislation.

According to the coalition and minority support agreements, the restriction on denaturalisation to cases of serious damage to essential interests of the state, in Article 7(d) of the European Convention on Nationality, will have to be ”re-interpreted” in order to allow for denaturalisation in cases of conviction for serious crimes more generally. If the other State Parties to the convention do not agree with this new broad interpretation, as of 1 January 2012 acquisition of Dutch nationality will become conditional for the first five years. Dutch nationality can then be withdrawn during those years in case of conviction for a serious crime carrying a maximum penalty of twelve or more years, irrespective of the length of the prison sentence imposed.

3. Proposals for revision of EU migration law and international law

The coalition agreement between VVD and CDA contains a series of proposal to amend EU law and international law. The text is repeated word for word in the minority support agreement between these two parties and PVV.

The agreement explicitly confirms that the Netherlands will comply with its obligations under international law. Maximum use will be made of the remaining room for policy discretion under the ECHR in order to reduce family migration. If the proposed measures are not possible within the existing EU Directives or international, those directives and the relevant treaties have to be amended. The aim of the policy is to realise “a very substantial reduction of immigration”. Wilders asked for a 50% reduction, but no figures are mentioned in the agreement. Hereunder, I summarise the main proposals.

Qualification Directive 2004/86/EC
This directive has to be amended in order to shift the burden of prove more towards the asylum seeker, who will have to prove that he or she has no flight alternative.

Family Reunification Directive 2003/86/EC
According to the coalition agreement the Netherlands will campaign for the following seven amendments of this directive:

• Raise the minimum age of spouse from 21 to 24 years
• Admission of only one partner per ten years
• Raise the income requirement to 120% of the minimum wage again [This amounts to a rejection of the Chakroun judgment of the Court of Justice of 4 March 2010.]
• The sponsor should provide a financial warranty before his family members are admitted.
• Introduction of a test that the ties with the Netherlands prevail over ties with other countries. [A similar condition was introduced in Danish national law some years ago.]
• Family members of a person who is convicted for certain violent crimes will not be admitted.
• The possibility to introduce an educational requirement: only family members with a level of education sufficient for integration and participation will be admitted

Five more proposed measures are incompatible with Directive 2003/86:

• The level of the integration test that spouses and partners have to pass abroad will be raised.
• The fees for visa or residence permit for family reunification will be raised. [At present the fee is € 830 plus € 350 for each time the integration exam is taken plus € 188 for each additional family member.]
• Prohibition of marriage between cousins. [Since this measure is mentioned in the paragraph on the reduction of family reunification, the apparent aim is to cease recognising those spouses as ‘spouses’ under the Directive.]
• Polygamous marriage will be no longer be recognized. [Article 4(4) of the Directive grants the right to family reunification to one spouse and the common minor children.]
• An unspecified period of residence abroad will become a ground for withdrawal of the residence permit. [Article 16 does not contain such a ground for withdrawal.]

Directive 2003/109/EC on the status of long-term residents third-country nationals

• Introduction of an educational requirement: the applicant has to have a level of education sufficient for integration and participation.

Two other proposals may create problems under this directive:

• The general proposal that an unspecified period of residence abroad will become a ground for withdrawal of residence permits disregards Article 9(1)(c) of this directive.
• The government will no longer pay for the integration course. Third-country nationals will have to pay the market price [approximately € 6,000] themselves.[ Since 1.1.2010 passing the integration exam is a condition for the EC long-term resident status in the Netherlands. Will it be compatible with the EU law proportionality principle to require all immigrants, irrespective of their educational level, to pass a test at the same level and bear all the costs of the language and integration courses before the long-term resident status is granted?]

Directive 2004/38/EC on the free movement of Union nationals

• An amendment that will widen the possibilities for expulsion of Union nationals after a criminal conviction.
• Third-country family members of EU migrants will not be admitted if they have at any point resided illegally in the Member State.
• National law applies to the admission of third-country family members of EU migrants.

Directive 2008/115/EC Returns directive

• Has to be amended in order to facilitate the return of unaccompanied minors.

EU measure against regularisations

• The government will promote the adoption of an EU measure that forbids Member State to adopt a regularization programme (“pardon”) for third-country nationals with irregular status. [In 2007-2009 almost 30,000 former asylum seekers, whose stay in the Netherlands had been tolerated for more than six years, received a residence permit under such a regularisation campaign.]

Association EEC-Turkey

• The Association Agreement has to be amended in order to oblige Turkish national to pass the integration test and apply the financial and residence right sanctions to those who do not pass in time. Dutch nationals and EU nationals are exempted from the Integration Act. [In the paragraph on EU enlargement the EU membership of Turkey is not explicitly mentioned.]

Accession Treaties with Bulgaria and Romania

• No free movement for Bulgarian and Romania workers until 2014. [Unemployment in the Netherlands is low at 5%; the average in the EU is 10%. In 2009 a total of 900 Bulgarian nationals and 3300 Romanian nationals were working with a labour permit, two thirds in seasonal jobs in agriculture. This size and impact of this group on the total Dutch labour force are extremely small.]

4. European governments react differently to pressure from anti-immigrant parties

Over the last ten years, in several EU Member States, political parties with a clearly anti-immigrant programme have received 10-15% of the votes in parliamentary elections. The reaction of the traditional parties to this result has varied. In Belgium and Sweden the traditional parties refused to cooperate with such parties (the so-called “cordon sanitaire” in Belgium). In Denmark the minority government has regularly turned to the Danish Peoples Party for its votes in order to obtain a majority for the budget or for legislative proposals, but it has looked for such support from the social-democratic party and other opposition parties on other occasions. In the Netherlands the conservative VVD and the Christian-democratic CDA have negotiated all elements of their recent coalition agreement with Geert Wilders and have concluded a 20 pages agreement with him on his support for their government. Wilders is the leader and the only member of his own party (PVV). Those negotiations and this agreement have legitimated Wilders’ party and its politics and have given him far more access to political power than similar parties in Belgium, Denmark and Sweden enjoy. The new Minister for Immigration and Asylum could only be appointed after he had a long conversation with Geert Wilders.

A day after the coalition agreement was published, the Christian-Democrat Minister of Justice Hirsch Ballin in a long interview stated that in the agreement “much effort was made to write down in decent words measures that have de-islamisation as their aim”. De-islamisation is a word introduced by Wilders into the Dutch language. According to the Minister many proposed measures will require amendments of EU law. Support by other Member States is thus essential, but a week ago Wilders stated that Angela Merkel should not meddle in Dutch affairs. The minister predicts that those measures “will require time and energy, but they will not work. The real problems remain unsolved” (NRC Handelsblad 1.10.2010). Hirsch Ballin, who is the son of German refugees and has been a Minister of Justice for almost eight years, declared today that he will not serve as a minister in a government that depends on the votes of the Wilders party.

References

‘Freedom and Responsibility’, Coalition Agreement VVD-CDA

Parliamentary support agreement VVD-PVV-CDA

Notes

[1] Act of 17 June 2010, Staatsblad 2010, no. 242. The Act will enter into force on 1 January 2011, see Staatsblad 2010, no. 310.