Illiberal Liberal States: Immigration, Citizenship and Integration in the EU

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ILLiBERAL LiBERAL STATEs

Also of interest Security versus Justice? Police and Judicial Cooperation in the European Union Edited by Elspeth Guild and Florian Geyer ISBN 978 0 7546 7359 0

Illiberal Liberal States Immigration, Citizenship and Integration in the EU

Edited by ELspETH GuiLD Centre for European Policy Studies, Belgium KEEs GROEnEnDijk Radboud University of Nijmegen, The Netherlands SERgiO CARRERA Centre for European Policy Studies, Belgium

© Elspeth Guild, Kees Groenendijk and Sergio Carrera 2009 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without the prior permission of the publisher. Elspeth Guild, Kees Groenendijk and Sergio Carrera have asserted their right under the Copyright, Designs and Patents Act, 1988, to be identified as the editors of this work. Published by Ashgate Limited Ashgate Company Wey Court East Suite 420 Union Road 101 Cherry Street Farnham Burlington Surrey, GU9 7PT VT 05401-4405 England USA www.ashgate.com British Library Cataloguing in Publication Data Illiberal liberal states : immigration, citizenship and integration in the EU. 1. Citizenship--European Union countries. 2. Emigration and immigration law--European Union countries. 3. Aliens--Legal status, laws, etc.--European Union countries. 4. Immigrants-Cultural assimilation--European Union countries. I. Guild, Elspeth. II. Groenendijk, C. A. III. Carrera, Sergio. 342.2'4083-dc22 Library of Congress Cataloging-in-Publication Data Illiberal liberal states : immigration, citizenship, and integration in the EU / edited by Elspeth Guild, Kees Groenendijk, and Sergio Carrera. p. cm. Includes bibliographical references and index. ISBN 978-0-7546-7698-0 -- ISBN 978-0-7546-9398-7 (ebook) 1. European Union countries-Emigration and immigration. 2. Emigration and immigration law--European Union countries. 3. Citizenship--European Union countries. 4. Immigrants--Government policy--European Union countries. 5. Immigrants--Cultural assimilation--European Union countries. I. Guild, Elspeth. II. Groenendijk, C. A. III. Carrera, Sergio. JV7590.I43 2009 325.4--dc22  ISBN 9780754676980 (hbk) ISBN 9780754693987 (ebk.V)

2009008159

Contents

List of Tables   List of Figures   Acknowledgments   Notes on Contributors   List of Abbreviations  

1

Understanding the Contest of Community: Illiberal Practices in the EU?   Elspeth Guild, Kees Groenendijk and Sergio Carrera

ix xi xiii xv xxi

1

Par t I  Cit iz en sh ip an d Int egra t ion: T h e Euro pean Un ion 2

Political Rights and Multilevel Citizenship in Europe   Jo Shaw

3

Passing Citizenship Tests as a Requirement for Naturalisation: A Comparative Perspective   Gerard-René de Groot, Jan-Jaap Kuipers and Franziska Weber

4

European Citizenship: A Tool for Integration?   Zeynep Yanasmayan

29

51

79

PART II  Cit iz en sh ip an d Int egra t ion: T h e N a t iona l A r ena s 5

The Impacts of EU Enlargement on Nation Building and Citizenship Law   Judit Tóth

6

Justifying Citizenship Tests in the Netherlands and the UK   Ricky Van Oers

101

113

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7 Dual Citizenship as an Element of the Integration Process in Receiving Societies: The Case of Slovenia   Barbara Kejžar

131

8 Religious Citizenship as a Substitute for Immigrant Integration? The Governance of Diversity in Austria   Julia Mourão Permoser and Sieglinde Rosenberger

149

Par t III  Imm igra t ion an d Int egra t ion: T h e Euro pean Un ion 9 Doing and Deserving: Competing Frames of Integration in the EU  167 Dora Kostakopoulou, Sergio Carrera and Moritz Jesse 10 11

Missing in Action: Effective Protection for Third-Country Nationals from Discrimination under Community Law   187 Moritz Jesse



Free Movement as a Precondition for Integration of Third-Country Nationals in the EU   Sara Iglesias Sánchez

12

Access to Social Assistance Benefits and Directive 2004/38   Paul Minderhoud

205 221

Par t IV  Imm igra t ion an d Int egra t ion: T h e N a t iona l A r ena s 13

Integration and Immigration: The Vicissitudes of Dutch ‘Inburgering’   Leonard F.M. Besselink

241

14 Liberal States – Privatised Integration Policies?   Ines Michalowski

259

15 The Integration Agenda in British Migration Law    Bernard Ryan

277

16 Discrimination Instead of Integration?Integration Requirements for Immigrants in Denmark and Germany    Anja Wiesbrock

299

Contents

17

vii

Nationality, Immigration and ‘the Republican Integration’ in France: Normativisation, Expansionism and Externalisation    Sergio Carrera

315



Immigration and the Construction of Public Philosophy(ies) of Integration in Spain   Ruth Ferrero-Turrión and Gemma Pinyol-Jiménez

337

19

Insertion, Integration and Rejection of Immigration in Italy   Salvatore Palidda

18

Bibliography   Index  

357

373 409

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List of Tables

T ables 5.1 5.2 5.3 5.4 18.1

Ratification by EU member states of the most relevant legal documents on non-discrimination, nationality and ethnicity  Statistics on the acquisition (including restoration) and termination (deprivation) of nationality   Citizenship on the grounds of regulation (MIPEX)    Cumulative index in the EU member states   Foreign residents in Spain, 1999-2007  

108 110 111 338

Categories of citizens who need to integrate and those who are exempted  

250

104

Box 13.1

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List of Figures

18.1 Foreign population in Spain and in Catalonia (% over total population), 1993-2000   18.2 Foreign population in Spain and Catalonia (% over total population), 2001-2004   18.3 Foreign population in Spain and Catalonia (% over total population), 2005-2007  

346 349 352

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Acknowledgments

The editors would like to express their gratitude to Massimo Merlino (Research Assistant at the Justice and Home Affairs (JHA) Section at the Centre for European Policy Studies, CEPS) for his support, dedication and assistance in the formatting processes of the different chapters and sections composing this book. We would also like to thank all the contributors for their impressive work and the time they have invested in their chapters during the various stages leading to the completion of the manuscript. Special thanks also go to Miriam Mir and Anaïs Faure-Atger (members of the JHA Section, CEPS) for their patience and support throughout the process, as well as to Anne Harrington and Jackie West (Editors, CEPS) and Els Van den Broeck (Administrative Assistant, CEPS) for their invaluable help in the editing of the opening chapter and other aspects of the volume. Any further errors remain the responsibility of the editors. This book falls within CHALLENGE (The Changing Landscape of European Liberty and Security) a five-year research project funded by the Sixth Framework Research Programme of the Directorate General for Research of the European Commission. For more information about the project see: www.libertysecurity.org.

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Notes on Contributors

Leonard F.M . Besselink is Professor of European Constitutional Law at the University of Utrecht. He holds a doctorate from the European University Institute (Florence, Italy) and is working on issues of constitutional development, comparative constitutional law, constitutional aspects of the state monopoly of violence and citizenship. He participates as a member in CHALLENGE (The Changing Landscape of Liberty and Security in Europe), a research project funded by the Directorate General for Research of the European Commission. Sergio Carrera is Head of Section and Research Fellow at the Justice and Home Affairs Section of the Centre for European Policy Studies (CEPS) in Brussels. He holds a PhD on immigration law from the University of Maastricht (The Netherlands). Carrera is an external expert on immigration and integration for the European Economic and Social Committee, the Committee of the Regions and the European Parliament. He is involved in the coordination and research in CHALLENGE. Gerard-R ené de Groot is Professor of Comparative Law and Private International Law at Maastricht University, the University of Aruba and the University of Hasselt. He is expert-consultant of the Committee of Experts on Nationality of the Council of Europe and a member of the Dutch Permanent Advisory Committee on Civil Status Issues and Nationality Law. Since 1974 he has published numerous and articles on (comparative) nationality law. R uth Ferrero-T urrión is Associate Professor of Political Sciences at the Universidad Complutense de Madrid (Spain) and Political Advisor on immigration issues at the Institutional Affairs Department of the Spanish Prime Minister’s Cabinet. She has been Visiting Scholar at University of Columbia (2001-2003), London School of Economics (2000), Babes-Bolyai University (1999), Hungarian Institute of International Affairs (1997) and Open Society Foundation-Sofia (1996). Her research fields are minority rights, national minorities, Balkans, as well as migration policies in Spain and in Europe. Kees Groenendijk is Emeritus Professor of Sociology of Law at the Radboud University Nijmegen (The Netherlands), Chairman of the Centre for Migration Law at that University and Chairman of the Standing Committee of Experts on international immigration, refugee and criminal law (Meijers Committee). He has

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published on national and European law on migration, nationality, discrimination and integration, and on the social and legal status of migrants in Europe. Elspeth Guild is Professor of European Migration Law at the Radboud University Nijmegen (The Netherlands). She is also Senior Research Fellow at the Centre for European Policy Studies in Brussels and a partner at the London law firm Kingsley Napley. She is a Visiting Professor at the LSE, London and teaches in the Department of War Studies at King’s College London. She has acted as Special Adviser to the House of Lords and is a member of the European Commission’s expert group on the policy needs for data on crime and criminal justice. Guild is also part of the coordination team and a research member in the CHALLENGE project. Sara Iglesias Sánchez is Researcher at the International Law Department of the Law Faculty of the Universidad Complutense de Madrid (Spain), where she is a PhD candidate on European Law under a scholarship awarded by the Spanish Ministry of Science and Innovation. She is currently working on her dissertation on the free movement of third-country nationals and has undertaken research periods in the Centre for Migration and Law of the University of Nijmegen and in the Max Planck Institute for public international law and comparative law. She has previously published on the field of immigration law, family reunification and free movement of persons. M oritz Jesse holds a LL.M. from Maastricht University [European Law School, cum laude]. He is a PhD candidate at the European University Institute in Florence, Italy. His research is about the connection of law and immigrant integration in the European Union and its member states. In 2005/2006 Moritz was a member of the winning team of the European Law Moot Court Competition. Barbara Kejžar is a Junior Researcher at the Institute for Ethnic Studies in Ljubljana, Slovenia. She studied political science and international relations at the Faculty of Social Sciences of Ljubljana’s University, where she received her masters degree. Currently, she is a PhD candidate at the same Faculty. Kejžar’s research focuses on the role of dual citizenship in immigrants’ integration processes in receiving societies. Her research interests include dual citizenship issues, citizenship, migration and integration policies, as well as more general questions of political theory, citizenship and migration. Dora Kostakopoulou is Jean Monnet Professor in European Law and European Integration at the University of Manchester (UK). She has published articles in such journals as Columbia Journal of European Law, Oxford Journal of Legal Studies, Journal of Common Market Studies, Journal of Ethnic and Migration Studies, Journal of European Public Policy, Political Studies, European Journal of Migration and Law, Modern Law Review, European Law Journal and the

Notes on Contributors

xvii

Journal of Political Philosophy. Her latest book, entitled The Future Governance of Citizenship, was published in 2008 by Cambridge University Press. Jan-Jaap Kuipers studied European law at Maastricht University from 20042008. He is currently a PhD candidate at the European University Institute in Florence. Ines M ichalowski is a Senior Researcher at the Social Science Research Centre in Berlin (WZB). From October 2008 until July 2009 she was a Fellow of the Transatlantic Academy in Washington, DC. Her research focus is on state policies for immigrant integration in an internationally comparative perspective. Her PhD ‘Integration als Staatsprogramm. Frankreich, Deutschland und die Niederlande im Vergleich’, which she received jointly with Münster University and Sciences Po in Paris in 2007, was published with Lit-Verlag. Paul M inderhoud is Associate Professor at the Centre for Migration Law of the Radboud University Nijmegen, the Netherlands. His main research interests are the legal and socio-legal aspects of immigration and social security. He is Project Director of the European Network on Free Movement of Workers and co-editor of the European Journal of Migration and Law. Minderhoud also participates as a research member in the CHALLENGE network. Julia M ourão Permoser is Assistant Lecturer at the Department of Political Sciences of the University of Vienna. She has a BA in international relations from Georgetown University, an MA in International Studies from the Diplomatic Academy of Vienna and is currently a doctoral candidate at the University of Vienna. Her research focuses on migration, citizenship and anti-discrimination in the EU. Salvatore Palidda is Professor of General Sociology, Sociology of Deviancy and Social Control and Sociology of Human Mobility at the Faculty of Educational Sciences of the University of Genoa (Italy). Palidda holds a Doctorate in Sociology and European Studies from the EHESS of Paris. His research includes the following themes: military and police affairs, migrations, and changes in the political organisation of contemporary society. Among his most recent publications the following can be highlighted: Mobilità umane, Cortina, 2008; ‘Policy of fear and decline of political sphere, Un mondo di controlli’, in Con.itti Globali, no. 5, 200, and ‘Istituzioni e mafia’, in Nuovo Dizionario di mafia e antimafia, EGA, Torino, 2008. Palidda is also a member of the CHALLENGE network of researchers. Gemma Pinyol-Jiménez has a BA in Political and Public Administration Sciences at the Autonomous University of Barcelona (Spain) and an MA in International Studies at the same University. For her MA thesis, she conducted research on immigration and asylum policies in the EU. Currently she is the Coordinator

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of the Migrations Programme of CIDOB (Centre d’Informació i Documentació Internacionals a Barcelona). Her main research areas are European and Spanish migration policies, and their external dimensions. She is the Coordinator of the annual edition of the CIDOB seminar ‘Inmigración y Europa’ and author of several articles. Among others: ‘Europe’s Southern Border: Spain and the Management of Immigration’, in Foreign Policy in Dialogue, vol. 8, Deutsche-Aussenpolitik, 2007; ‘The external dimension of the European Immigration Policy: a Spanish perspective’, in Agora Without Frontiers, vol. 13, no.14, 2008; and ‘España en la construcción de un scenario euroafricano de migraciones’, Afers Internacionals, no. 75, CIDOB Foundation, 2007. Sieglinde R osenberger is Professor of Political Science at the University of Vienna. She was a Fellow at the Department of Women’s Studies at San Diego State University (1991/92), at Harvard University (2003/04), and the European University Institute in Florence (2007). Her research interests focus on gender relations, migration studies, and the governance of religious pluralism. Bernard R yan is a Lecturer in the Law School at the University of Kent (UK), where he teaches immigration law. He has written widely on labour law and migration law issues and edited the report from the Institute of Employment Rights on Labour Migration and Employment Rights (2005). He is a graduate of University College Dublin and the European University Institute. Jo Shaw holds the Salvesen Chair of European Institutions at the University of Edinburgh, having previously held Chairs of EU law at the Universities of Manchester and Leeds. She is also Co-Director of the Edinburgh Europa Institute. Her research focuses on citizenship and constitutionalism of the European Union, viewed in a broader politico-legal context. In 2007, she published The Transformation of Citizenship in the European Union (Cambridge University Press), which was awarded the UACES Book Prize in 2008. Judit T óth holds a PhD in Law and is Associate Professor of Constitutional Law, at the University of Szeged (Hungary). She has two decades of experience in legal practice as a legal adviser in numerous ministries, Parliament, Prime Minister’s Office and Ombudsman. She is Senior Research Fellow at the Hungarian Academy of Sciences. She has published widely on refugee law, migration policy of contemporary Hungary, EU enlargement as well as on diaspora in legal regulation and policy. She has worked in international research teams on migration and human rights issues since 1991, recently in the Sixth Framework Programme research project CHALLENGE. R icky Van O ers is a PhD student at the Centre for Migration Law at the Radboud University of Nijmegen (The Netherlands). Her research concerns the introduction and effects of formalised citizenship tests in Germany, the Netherlands and the

Notes on Contributors

xix

United Kingdom. She participated in the NATAC-project, coordinated by Rainer Bauböck, which focused on comparing the way in which 15 EU member states regulate the acquisition and loss of nationality. Her publications include: ‘From Liberal to Restrictive Citizenship: The Case of the Netherlands’, International Journal on Multicultural Societies, vol. 10, no. 1, 2008; ‘European Trends in Nationality Laws’, Acquisition and Loss of Nationality, Volume I: Comparative Analysis (2006), together with Betty de Hart; and The Family Reunification Directive in EU Member States: The First Year of Implementation (2007), together with Kees Groenendijk, et al. Finally, Van Oers also participates in the CHALLENGE network. Franziska Weber is a PhD candidate at the Rotterdam Institute of Law and Economics (RILE). She studied European and Comparative Law at the Universities of Oldenburg, Bremen and Sheffield (BA) and completed the ‘Master European Law School’ at the University of Maastricht cum laude. As far as her professional experience is concerned, she was advisor for the Representation of Northern German Chambers of Commerce and Industry in Brussels, assistant editor of the Maastricht Journal and Research Assistant to Prof. Michael G. Faure. A nja Wiesbrock holds an LLM degree and is currently a PhD candidate at the University of Maastricht. She studied European Studies and Law in Maastricht, Berlin and Barcelona. She is particularly interested in the relationship between migration and development cooperation and has conducted internships in several developing countries, including Senegal, Guinea, Panama and Peru. Her current main research emphasis is on highly skilled migrants and circular migration from China, India and Ghana. She is associated as a visiting researcher to Jawaharlal Nehru University, Delhi. Z eynep Yanasmayan is a PhD candidate at the Faculty of Social Sciences in the Catholic University of Leuven (KUL) (Belgium) and an Associate Research Fellow at CEPS. She holds an MScEcon degree on security and citizenship from the University of Wales, Aberystwyth and an MA degree on European studies from Free University of Brussels (ULB). Her major research interests revolve around integration and citizenship policies, Turkish minorities in Europe and diaspora politics.

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List of Abbreviations

AFSJ Area of Freedom, Security and Justice AG Advocate General AMCL Attestation Ministérielle de Compétences Linguistiques ANAEM Agence Nationale pour l’Accueil des Etrangers et les Migrations ANC National Association of Italian Communities BAFL Federal Ministry for the Recognition of Refugees BAMF Federal Agency for Migration and Refugees BEC Bulletin of the European Communities BNA British Nationality Act CAI Contrat d’accueil et d’intégration CAIF Contrat d’accueil et d’intégration pour la famille CBPs Common Basic Principles CEFR Common European Framework of References CERD Committee on the Elimination of Racial Discrimination CESEDA Code de l’Entrée et du Sejour Étrangers et du Droit d’Asile CFR-CDR EU Network of Experts on Fundamental Rights CGIA Associazione Artigiani e Piccole Imprese Mestre CHALLENGE The Changing Landscape of European Liberty and Security CPT Centri di Permanenza Temporanea CTA Common Travel Area CUKC Citizen of the United Kingdom and Colonies DCIM Directie Coördinatie Integratiebeleid Minderheden DG Directorate-General DILF Diplôme Initial de Langue Française DPM Direction de la Population et des Migrations EC European Community ECHR European Convention on Human Rights ECJ European Court of Justice ECR European Court Reports ECtHR European Court of Human Rights EEA European Economic Area EMMI European Modules for Migrant Integration ENP European Neighbourhood Policy EP European Parliament ESOL English for Speakers of Other Languages EU European Union

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EUSA European Union Studies Association FED Framework Employment Directive FSJ Freedom, Security and Justice HCI Haut Conseil à l’Intégration HSMP Highly Skilled Migrant Programme IA Integration Act ICMPD International Centre for Migration Policy Development IELTS International English Language Test System IMSERSO Migrations and Social Services Institute IMISCOE International Migration, Integration and Social Cohesion INAIL National Insurance Institute for Employment Injuries IND Immigration and Naturalisation Office IRES Istituto di Ricerche Economiche e Sociali ISTAT National Institute of Statistics JHA Justice and Home Affairs LTRD Long Term Residents Directive MAC Migration Advisory Committee MEP Member of the European Parliament MIPEX Migration Integration Policy Index MP Member of Parliament MPG Migration Policy Group NCPI National Contact Points on Integration NGO Non-Governmental Organization NIA Newcomers Integration Act OECD Organisation for Economic Co-operation and Development OJ Official Journal of the European Union OMC Open Method of Coordination OMI Office for International Migrations RED Racial Equality Directive RMI Revenu Minimum d’Insertion ROCs Regional Educational Centres SEA Single European Act SSAE Social Service Specialised on Migrants TCN Third-Country National TEC Treaty Establishing the European Community TEU Treaty on European Union UK United Kingdom UN United Nations VNG Representation of the Dutch Municipalities WIN Wet Inburgering Nieuwkomers WRS Workers Registration Scheme WRR Scientific Council for Government Policy

Chapter 1

Understanding the Contest of Community: Illiberal Practices in the EU? Elspeth Guild, Kees Groenendijk and Sergio Carrera

Understanding the dynamics of illiberal practices in liberal states is increasingly important in Europe today. As democratic institutions, civil society and academics have categorised as ‘illiberal’ a growing list of state practices such as extraordinary rendition, indefinite detention of third-country nationals (TCNs), new practices and technologies of border controls, etc., the question of who is entitled to contest has become increasingly fraught (Bigo et al. 2007). Here the politics of identity form the framework within which tensions around illiberal practices are played out. Both at the national and the EU level, political actors claim competing rights to legitimacy and authority based on their representation of ‘the people’ and the nation. As those debates regarding the source of authority become increasingly vocal, so too is attention focusing on the underlying community in whose name security actions are being taken. In this contested territory, fixing the identity of the community has come under scrutiny. The central debate about what identity is and to whom it belongs, and the much larger contest about legitimacy and authority in the EU, has engulfed the world of migration. Suddenly it is the image of the immigrant that acts as a magnet for the understanding of what community is and who is entitled to belong to it. In seeking to find their own image, the EU and its member states have turned to look at the ‘other’ that they are not, in so doing hoping to find clarity about ‘who they are’. The question ‘what is integration into a community and who determines this’ has become a subject of struggle and controversy. While the EU is charged with harmonising the rules on TCNs, the member states, on the basis of integration and the principle of subsidiarity-related arguments, seek to recover sovereignty over the constituency of their communities. The result, as this book shows, is a challenging new influx of illiberal practices among states that are supposed to bestow and adhere to the principles of liberalism and the rule of law. The integration of TCNs is subject to multifaceted dynamics, policy processes and strategies in Europe. A normative nexus has been progressively developed in law and policy between migration, citizenship and integration both at the national and EU level. This evolving relationship is gradually transforming the classical understanding, conceptual premises and functions that integration has traditionally performed at EU level as a process of social inclusion, and as



Illiberal Liberal States

a mechanism facilitating equality and non-discrimination while exercising the freedom of movement. The transfer to EU competence of the domain of immigration policy in 1999 constituted an historical stage in the European integration processes. On the basis of the Treaty of Amsterdam, the EU has striven to build a common immigration policy. Its establishment, however, has encountered resistance from certain member states attempting to keep intact their discretional powers over the understanding and normative framing of their ‘community of citizens’. While the domain of integration has been seen as representing a key strategic policy priority within the so-called Area of Freedom, Security and Justice (AFSJ) by the 2004 Hague Programme (Balzacq and Carrera 2006), national competence has predominated. The member states have made of integration one of those areas at the heart of national sovereignty: a central tool for the perpetuation of the nation upon which they legitimise their authority and powers of discipline over their societies. The tensions emerging between the European integration machinery on immigration and the principle of subsidiarity have provoked the development of a dual normative setting in the EU covering the field of integration of TCNs, i.e. European immigration law and the EU Framework on Integration. The development of the so-called ‘Framework for the Integration of ThirdCountry Nationals in the European Union’ (EU Framework on Integration) constitutes a good illustration of the struggles taking place between the European and national arenas over the competences surrounding integration and the politics of the identity of nationals and others. The EU Framework on Integration has defined itself as an innovative policy regime making use of a series of tools and methods, which raises a number of questions when compared to the traditional structures and paths of Europeanisation that characterise the Community method of cooperation. The adoption by the Council in 2004 of a set of Common Basic Principles for Immigration Integration Policy (CBPs), the exchange of ‘best practices’ on national integration policies, the use of benchmarking techniques and the increasing role of supranational networks of representatives from the member states’ ministries in charge of integration (the National Contact Points on Integration) constitute an alternative web of policy coordination intending to move policy convergence onwards through means that are different from those provided by the substantive and institutional elements of EU law. These ‘soft’ policy instruments and transnational structures have been coupled with a ‘hard’ financial framework (the European Integration Fund), which is facilitating the transformation of policy ambitions into visible results as regards domestic and EU integration policies. This book examines the changing interaction between immigration, citizenship and integration in EU law and policy. It studies some of the effects and open questions regarding the exchange and coordination of public responses affecting  Brussels European Council, Presidency Conclusions, 4-5 November 2004, 14292/1/04, Brussels, 8 December 2004, OJ C53/1, 3.3.2005.

Understanding the Contest of Community: Illiberal Practices in the EU?



the status of TCNs at national level, as well as the compatibility of their results with a common EU immigration guided by a rights-based and social inclusion approach. It reviews a selection of national experiences and philosophies on immigration and citizenship laws in the EU, and the use that they are performing for integration. The framing and practices of civic integration in immigration and citizenship law and policy as a mandatory norm, and the ways in which increasing policy convergence is being achieved at EU level over this concept raises a number of dilemmas. These dilemmas might put liberty at stake in the EU legal landscape, and provide us with yet another illustration of ‘illiberal practices in liberal regimes’. The question as to what the limits are in the discretional powers enjoyed by the nation-state around ‘the conditionality of integration’ for TCNs to have access to EU rights and common standards stipulated by EU immigration law provides us with a key testing ground for evaluating the illiberal or liberal nature of the exceptionalism inherent in the applicability of mandatory civic integration. This opening chapter is structured in five main sections: the first starts by setting the habitus of integration in EU immigration law and policy. Section two looks at the case of integration tests as an example of the changing dynamics affecting integration and the laws on citizenship. The relationship between integration and the enlargement processes of the EU, and the transformation that this relationship provokes over national and European identities, is developed in section three. After offering some theoretical reflections about the ‘illiberalism’ underlying certain usages, approaches and practices on integration in Europe in section four, the outline of the various chapters composing this book is provided in section five. T he H abitus of Integration in EU Immigration Law and Policy Integration as a Mandatory Norm in EU Immigration Law The integration of persons on the move has been a fundamental component throughout the European integration processes, not least as regards the establishment of an internal market and a common European space within which the freedom of movement constitutes a fundamental right. The function that integration has played within this context was that of facilitating the mobility of EU national migrant workers and ensuring that, while doing so, they enjoy equality, nondiscrimination, family reunification and a secure juridical status (Groenendijk 2006a, 9-11).  Article 45 of the Charter of Fundamental Rights states that ‘1. Every citizen of the Union has the right to move and reside freely within the territory of the Member States. 2. Freedom of movement and residence may be granted, in accordance with the Treaties, to nationals of third countries legally resident in the territory of a Member State’. Charter of Fundamental Rights of the European Union, OJ 2007/ C303/ 01, 14.12.2007.



Illiberal Liberal States

The traditional understanding and functions of integration have experienced dynamic mutations in EU law when developing a common legal framework covering the conditions of entry and residence of TCNs – a common immigration policy. Indeed, integration has suffered multifaceted normative processes since the transfer of immigration to EU competence with the Amsterdam Treaty in 1999 and the adoption of the European Council Tampere Conclusions on 15 and 16 October 1999. The Tampere Programme called for the adoption of the following tenets to guide the EU’s policy approach on integration: the principle of fair treatment to legally-residing TCNs; the need to develop a more vigorous integration policy granting to legal TCNs rights and obligations ‘comparable’ to EU citizens; and the granting to long-term residents of a set of rights that are ‘as near as possible’ (near-equality) to those of EU citizens. The European Commission presented a package of legislative proposals to start building EU immigration law. The Council Directives 2003/109 on the status of long-term residents who are TCNs (Guild 2004c; Carrera 2005a; Groenendijk 2007) and 2003/86 on the right to family reunification (Groenendijk et al. 2007; Oosterom-Staples 2007; Groenendijk 2006b) are among the most relevant EU acts so far adopted in the area labelled as ‘legal immigration’ (i.e. conditions for a legal admission and stay to TCNs who have not applied for international protection) where integration has been expressly included among their provisions as a legal ‘measure’ or ‘condition’. These two Directives provide common standards and EUwide rights/guarantees in the domain of immigration. They also constitute a regime of partial harmonisation, leaving certain margins of appreciation to the member states at times of national transposition and implementation. Notwithstanding this, the degree of ‘exceptionalism’ permitted to national public authorities when acting within the scope of EU immigration law is limited to the principles provided by the EU legal system in order to protect the individual against illiberal interferences or unlawful derogations to EU rights and supranational freedoms. The rule of law and the respect of fundamental rights lie at the heart of this set of general principles safeguarded beyond national remits (inter alia Schwarze 1992; de Witte 2000; Bernitz and Nergelius 2000; Schermes and Waelbroeck 2001; Trimidas 2006; Craig 2006). On the other hand, it was during the negotiation of these two measures inside the Council during 2001 and 2002 when the functionalities attributed to the category of integration in some provisions mutated significantly from the premises advocated at the Tampere Programme toward a more restrictive and ‘immigration-control’ trend. A group of member states (the Netherlands, Austria  Tampere European Council, 15-16 October 1999, Presidency Conclusions, SN 200/99, Brussels.   Council Directive concerning the status of third-country nationals who are longterm residents, 2003/109, OJ L 16/44, 23.1.2004.   Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, OJ L 251/12, 3.10.2003.

Understanding the Contest of Community: Illiberal Practices in the EU?



and Germany) pushed for the transfer of a new understanding of integration in EU law in line with their current or planned national legislations on immigration. As a consequence integration now often acts as an obligatory ‘condition’ or ‘measure’ for the management of international human mobility and its attributed diversities in EU immigration law. It becomes a norm in the hands of the state conditioning admission (integration abroad) and/or access to rights and security of residence by those falling within the category of ‘legally residing TCNs’ in this way. Integration functions as a tool for practising an immigration policy aimed at limiting the legal channels of international human mobility and the inclusion and security of TCNs inside the EU. Member states that voted for the insertion of integration clauses in the two Directives probably intended to reserve their discretional powers and national competences over these domains. Some authors have mainly stressed the large margin of appreciation left to the member states when defining and interpreting the conditionality of integration at the national level within the scope of these Directives. While these claims might be right in intent, they are wrong in effect. It is our view that the transformations surrounding integration during the negotiations of these Directives and the inclusion of precise provisions dealing expressly with integration, have also involved a considerable degree of Europeanisation of this domain in the scope of EU immigration law. By expressly inserting integration inside their provisions, the member states have seen their discretional powers diminished when determining the content and reach of integration as an exceptional condition for having access to European rights and guarantees applicable to certain groups of TCNs. The inclusion of the category of integration inside the main body of the EU Directives creates a fundamental Community interest when assessing and monitoring the member states’ application (and national transposition) of these integration-related provisions (and the EU rights and common standards provided therein) in their respective domestic legal systems. It is also here where the force played by the general principles of EC law restricting member states’ discretion at times of national implementation comes sharply into focus once taken seriously by national lawyers and judges. This has been confirmed by the European Court of Justice (ECJ) in the Case C-540/03, European Parliament v Council of 27 June 2006. This judgement has major implications in relation to the action of member states regarding the respect of fundamental rights while implementing EU immigration law, and the margin of appreciation that the Directive leaves them in relation to derogations and restrictions from these common set of rights and standards (Martin 2007; Carrera 2009). When looking at the substance of each of the exceptional clauses provided by the Directive 2003/86, the ECJ interpreted them in conformity with

  See in particular Articles 5 (2) and 15 (3) of Directive 2003/109 and Articles 4 (1) and 7 (2) of Directive 2003/86.   Case C-540/03, European Parliament v Council, 27 June 2006, [2006] ECR I-5769.



Illiberal Liberal States

the fundamental rights as provided by the European Convention of Human Rights. While doing so, the Court rewrote the derogations included in the Directive. In addition, the ECJ sent the hot potato to the national tribunals while reviewing the implementation of the Directive. If those courts encounter difficulties relating to the ‘interpretation’ or ‘validity’ of the Directive, it is incumbent upon them to refer a question to the ECJ for a preliminary ruling in the circumstances set out in 234 EC Treaty. By doing this the ECJ acknowledged that it might be possible that in practice the domestic implementation of these derogatory provisions could contravene fundamental rights, and even that a certain application of these provisions would provide grounds for challenging the sustainability of their very substance. Indeed, the role of the Courts (judicial oversight) when determining the legality of interferences (the liberal test) by national and EU public authorities over rights and freedoms of individuals is central, including those conferred by European immigration law to TCNs. The EU Framework on Integration Since the end of 2002 the EU Framework on Integration has been developing slowly but steadily, and is now composed of a set of Common Basic Principles for Immigration Integration policy, two handbooks on integration for policy-makers and practitioners, three Annual Reports on migration and integration, the setting up of the National Contact Points on Integration and the upcoming European integration forum. All these tools have been accompanied by the European integration fund, which aims at contributing to efforts by the member states to develop and implement integration policies enabling third-country nationals ‘to fulfil the conditions of residence and to facilitate their integration into European societies, in accordance with the CBPs’. The framework constitutes an innovative multilevel method of governance in the field of integration of TCNs at EU level, involving the interaction of a package of non-binding or soft regulatory tools and diversified supranational networks that have given birth to a quasi-Open Method of Coordination (OMC) (Carrera 2008). The constitutive features characterising the conceptual framing of integration have also evolved in a highly dynamic fashion since the first policy steps taken in the scope of the EU Framework on Integration. In fact, a similar conceptual transformation to the one highlighted in EU immigration law can also be seen   For instance, paragraph 60 of the ruling stated that ‘Article 4 (1) of the Directive imposes precise positive obligations, with corresponding clearly defined individual rights on the member states since it requires them, in the cases determined by the Directive, to authorise family reunification of certain members of the sponsor’s family, without being left a margin of appreciation’.   Council of the European Union, Justice and Home Affairs Council Meeting 2618th, Brussels. ‘Common Basic Principles on Immigrants Integration’, 14615/04, 19 November 2004.

Understanding the Contest of Community: Illiberal Practices in the EU?



in the EU framework of integration (refer to Kostakopoulou, Carrera and Jesse, Chapter 9 of this book). Integration functions as a civic programme, a course or a module (common European Modules for Migrant Integration, EMMI)10 that will need to be followed and/or successfully passed by TCNs (often understood as an obligation), and which includes as constitutive elements the knowledge and respect of ‘national and European values and fundamental norms’, principles and ‘ways of life’ (cultural life of ‘the host’) of the member states and the EU. This ‘paradigm shift’ has mainly occurred as a consequence of the increasing exchange of information or ‘moving of ideas’ on national experiences, programmes and policies between member states’ representatives, and particularly due to the active role of the network of National Contact Points on Integration and the adoption of the two editions of the handbook on integration (Niessen and Schibel 2004; Niessen and Schibel 2007). The Treaty of Lisbon, whose destiny remains in the balance after the results of the Irish referendum on 12 June 2008, would introduce substantial innovations to the current configurations applicable to European cooperation on integration.11 Article 79 (4) of the Treaty on the Functioning of the Union would provide the basis for developing common measures to encourage and support the work of the member states on integration. It would therefore facilitate the formalisation of the EU Framework on Integration into a proper OMC through the application of the ordinary legislative procedure (co-decision).12 This policy area would also gain from the increased involvement of the European Parliament, national parliaments, the Committee of Regions and the ECJ (Carrera and Geyer 2008). Integration and Citizenship: T esting Identity as a Condition for M embership? The innovative element of the new ‘integration’ policies has been the introduction of formal language and citizenship tests in several member states as a new instrument for the selection of migrants from outside the EU who are accepted as potential or full members of the country of residence. Most (not all) member states have

10 On the EMMI see Commission Communication, Third Annual Report on migration and integration, COM(2007)512, 11 September 2007, Brussels; refer also to the Commission Communication, A common immigration policy for Europe: Principles, actions and tools”, COM(2008) 359 final, 17.6.2008, Brussels. 11 Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed in Lisbon, 13 December 2007, OJ C306/01. 12 Article 79 (4) says that ‘The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may establish measures to provide incentives and support for the action of Member States with a view to promoting the integration of third-country nationals residing legally in their territories, excluding any harmonisation of the laws and regulations of the Member State’.



Illiberal Liberal States

applied a language or integration condition for naturalisation for already more than fifty years. The examination as to whether an application met this condition used to be conducted through a personal interview with a municipal civil servant or a local representative of the state. This used to be the dominant means for checking whether an immigrant with the required residence, income and clean criminal record had sufficiently integrated into society in order to acquire full legal membership as well. Before 2000 the only member state with a language condition for acquiring permanent residence was Germany. Since the beginning of the new century these tests have been formalised. They are now practised at an earlier stage in the migratory process. The level of knowledge required has also been raised considerably both in the process of formalisation and after the introduction of the first formal test. Finally, the tests are not longer administered by the state but through private companies. This surprisingly quick transformation in the selection methods of future citizens raises questions about the principles of fairness, effectiveness and lawfulness. The choice that has been made to formalise citizenship tests also raises questions about the content of the identity that is being tested. The need to specify the identity of the nation as part of the formalisation process has brought exclusionary issues into the public debate. It is also important to highlight that in several member states this process of specification of national identity was delegated to private companies. Fairness The issue of fairness arises where migrants with little education or low income are required to pass the same test and to have the same level of knowledge as highly educated or wealthy migrants. This is particularly the case when passing the test requires some knowledge of how to use a computer and if no real languagelearning facilities are made available for the migrant. Migrants with a lower income and level of education will have to invest more time, money and energy to meet the minimum standard required to pass the test. They also run a greater risk of suffering the financial immigration status or other administrative sanctions provided for in the new integration legislation. The political debate in several member states tends to result in steadily higher levels of knowledge being required on the part of the immigrant. Indeed while ‘integration’ seems to be a central theme in the political spectacle, the majority of test candidates are perfectly aware that one of the main purposes of the new tests is a reduction in the number of immigrants and the restriction of immigrants’ access to security of residence and nationality. This lack of honesty in the debate detracts attention from the social unfairness of requiring a standard level for all migrants and narrows the attention for the implementation of alternative methods, such as testing the relative language competence rather than requiring everybody to pass the same test. The exemption of persons with several years of schooling, diplomas certifying successful completion of schooling in the country of residence or formal language training will free most of the second generation immigrants (not the drop-

Understanding the Contest of Community: Illiberal Practices in the EU?



outs). But the tests may well be an insurmountable barrier for the less-educated people among the first generation of immigrants. The use of computers in the selection processes suits the state (appearance of fairness; obscuring responsibility for the outcome) and the companies administering the test (quick profits). Effectiveness The introduction of formal tests raises additional questions about their effectiveness since their effects for large groups of migrants may be counterproductive. The application of a test will postpone the entry of family members and thus the beginning of their actual integration processes. Spouses and children will be older at entry; they may feel obliged to stay illegally with their family (overstaying their tourist visa) in order to learn the language once inside the country. Non-acquisition of a permanent residence status or withholding the nationality of the country of residence will reduce rather than enhance the chance of getting a stable job, a job in the public service, access to housing, scholarships or bank loans to start a business. Offering a language course to immigrants will be perceived both by immigrants and the native population as a sign that immigrants are welcome, that they are going to stay and are able to adapt to the host country. Introducing a test that many immigrants will never be able to pass will cause frustration and create the impression that immigrants are unwanted and will never be accepted as full members of society. It may well result in less rather than more participation in society. Moreover, it will support the idea among the majority of the population that immigrants are unable to integrate. Integration is not a one-way process. It also requires a positive attitude from the receiving society. This counterproductive effect is increased if large categories of immigrants are exempted from the test and if this requirement is seen as focusing selectively on certain immigrant groups or categories. This may explain the fierce opposition of organisations of Turkish immigrants to the introduction of the ‘integration test abroad’ in German legislation. Both in Germany and the Netherlands the introduction of the integration test abroad resulted in a sharp reduction of the applications for visa or the admissions for family reunification. In the Netherlands the introduction of a new Integration Act in 2007 with the obligation to pass an extensive language test (speaking, listening, reading and writing Dutch) and a computerised knowledge test of Dutch society, both being used previously as the naturalisation test, resulted in a sharp reduction of the number of new participants in integration courses during the first year following the introduction of the legislation. Lawfulness The lawfulness of the new integration tests has been questioned on at least four different grounds. Firstly, the exemption of citizens of certain countries from the

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Illiberal Liberal States

obligation to take the test solely on the basis of their nationality is difficult to justify, since this exemption has no relation to the potential or actual integration of the persons exempted but is clearly related primarily to considerations of immigration control. This raises questions about the compatibility with Article 14 ECHR and Article 12 EC Treaty, both provisions forbid discrimination on the basis of nationality, one implicitly and the other explicitly. Secondly, the integration test abroad raises questions about its compatibility with Article 8 ECHR if no real opportunities to learn the foreign language are available in the country of origin or if repeated failure to pass the test makes it impossible for a married couple to live together somewhere in the world. This issue arises particularly with family members of refugees or beneficiaries of other forms of international protection. Thirdly, it also raises questions as to its compatibility with international norms against racial discrimination. Human Rights Watch in its extensive report13 on the Dutch integration test abroad explains why the test amounts to indirect discrimination on the basis of race. On the face of it the requirement applies both to Dutch nationals and to TCNs of countries not covered by the exemptions. But the countries exempted are mainly rich Western countries with a white majority population (two of these three characteristics – rich, Western and white – apply only to non-Western countries whose nationals are exempt: Japan and South Korea). Moreover, the new requirement is aimed primarily at certain immigrant groups and in practice affects members of those categories disproportionately. In the Netherlands the introduction of this test was intended to stimulate young persons of Turkish and Moroccan origin to look for a spouse already living in the Netherlands. The measure affects Dutch nationals of Turkish and Moroccan origin far more often than native Dutch nationals. In several EU member states the majority of sponsors applying for family reunification are nationals of the country. But many of these nationals are of immigrant origin. Either they or their parents have been naturalised. Their membership is disputed (in)directly by the new ‘integration’ legislation. Fourthly, it is a subject of dispute whether the integration test abroad is compatible with Directive 2003/86 on the right to family reunification. Article 7 (2) of the Directive only allows for integration ‘measures’ not for integration ‘conditions’ abroad. In any case the integration measures abroad have to be applied in individual cases with due respect for the general principles of Community law, such as the principle of non-discrimination and the proportionality principle.14 The European Commission, in its first communication on the application of the 13 Human Rights Watch (2008), The Netherlands: Discrimination in the Name of Integration, Migrants Rights under the Integration Abroad Act, Vienna, 14 May, available from , accessed 18 December 2008. 14  See paragraph 106 of the Case C-540/03, European Parliament v Council, 27 June 2006.

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Directive, has made it clear that the freedom of a member state to refuse admission for family reunification on the basis of integration tests is restricted by Community law and subject to the control of national judges, the European Commission and, potentially, the ECJ.15 Which Identity is Tested? The introduction of formalised tests coupled with the political desire to test not only the knowledge of the language but also the ‘knowledge of society’ as a substitute for citizenship, has also sparked a debate on the concept of national identity. Which questions and what themes would make for a proper test for (potential) membership? In each member state where the Government has chosen to go down that road, a public debate has emerged, by way of illustration, on the relevant questions to be included in the test, the correct answers to be assigned to those questions, the desirability of multiple or single answers, the share of the native population able to answer those questions correctly, etc. The basic question is, however, the extent to which the knowledge of the right answers is actually the most relevant factor for becoming or being considered a (good) citizen at all. To what extent do the questions and answers represent the knowledge and conventions of the social class of the politicians and civil servants setting the tests or of the language experts in private companies responsible for developing them? The tests not only present new barriers for many migrants, they also project the image that migrants should become like ‘us’, i.e. white, highly educated, middle class persons. Implicitly, the tests send out the message that poorly educated immigrants are disqualified and that they are less or not welcome. The practice of the test also points to the fact that integration is primarily a cognitive process; learning the language and the correct answers to the questions, rather than an emotional one. Moreover, the introduction of the tests has also involved a further step in the privatisation processes surrounding immigration control. The level of trust in the discretion of local or state officers has been replaced by a surprising reliance and confidence in private companies and educational institutions that develop and administer the tests. According to a Dutch observer (Schinkel 2008), nationalism is thus being promoted by private companies that in

15 European Commission Report on the application of Directive 2003/86/EC on the right to family reunification, COM(2008) 610 final, 8 October 2008, Brussels, paragraph 4.3.4, which says that the admissibility of the national measures transposing Article 7 (2) of the Directive ‘depends on whether they serve this purpose and whether they respect the principle of proportionality. Their admissibility can be questioned on the basis of accessibility of such courses or tests, how they are designed and/or organised (test materials, fees, venue, etc), whether such measures or their impact serve purposes other than integration (e.g. high feeds excluding low income families). The procedural safeguard to ensure the right to mount a legal challenge, should also be respected’, pp. 7-8.

Illiberal Liberal States

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cooperation with the Government select the ‘marginal persons’ who have to be serviced by ‘the integration market’. An extreme example is the US firm Ordinate that succeeded in selling its computerised language test, developed originally for testing US military going abroad, to a Dutch Minister who used it for the reduction of family migration flows into the Netherlands. When the first experiences indicated that 90 per cent of the considerably reduced number of applicants for a visa who did take the test passed, several MPs requested that 25 per cent of the applicants should fail the test. The compromise arrived at early in 2008 was to aim at a 15 per cent fail rate and the computer was instructed accordingly after experts had certified that the pass/fail level had been too low. Imitation or Quick Learning? The new idea of a formal language and integration test abroad is spreading among some of the member states at surprising speed. In only a few years several member states have recently introduced language or citizenship test for the admission of family migrants. This represents a completely new policy in Europe. Previously language requirements had only been used in the case of admission of foreign students. It is also true that some member states had already applied language requirements for the admission of third-country workers or of migrants who were deemed to be so called ‘co-ethnics’. Have the member states copied the instruments used by other member states or have certain elements been left out? What is the role of the Family Reunification Directive in these processes? The introduction of an integration test abroad as a condition for the admission of family members was part of the 2003 coalition agreement of the first Government in the Netherlands after the short-lived government with ministers from the Pim Fortuyn party. The new Government made considerable efforts to provide a legal basis for such tests by proposing an amendment to Article 7 of the Family Reunification Directive at the final stage of the negotiations inside the Council. It took several years to develop the test and to get the relevant legislation through Parliament. Finally, in March 2006 the legislation entered into force.16 The applicant for a visa for family reunification has to pass the test in a telephone conversation at a Dutch embassy with a computer in the USA. Citizens of EEA states and seven rich countries are exempted. Both knowledge of the Dutch language and of Dutch society are tested by simple questions. If the computer reports that the applicant has failed the only redress at their disposal is by taking the test again (and therefore paying €350 once more). The applicants can buy a book and a video in order to prepare for the test (for more detailed information refer to Besselink, Chapter 13; Michalowski, Chapter 14 of this book).

16 Act of 22 December 2005, Staatsblad 2006, no. 28.

Understanding the Contest of Community: Illiberal Practices in the EU?

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In Germany the integration test was introduced in 2007 by the act transposing the Family Reunification Directive and ten other EC migration Directives into the German legal system.17 The German approach was different from the Dutch on several points. The law requires a basic knowledge of the German language rather than passing a specific examination by computer. The German Government gave an important role to the Goethe Institutes that organise language courses in several countries outside the EU, whilst there are no comparable facilities to learn Dutch abroad (see Michalowski, Chapter 14; and Wiesbrock, Chapter 16). The Government suggested that a language certificate issued by a Goethe Institute was required as a condition for family reunification. However, an appeal court has held that knowledge of the language may also be proven in other ways, e.g. in a conversation with a consular officer. German diplomatic posts were instructed to apply the language requirement also to TCN family members of EU migrants. This German instruction was withdrawn shortly after the Metock judgement of the ECJ in July 2008.18 The Danish Government introduced a bill on the integration test abroad in 2007 more or less along the lines of the Dutch model. The main difference is that in Danish law there is no exemption on the basis of nationality for nationals of certain states outside the EU, a feature that enhances the legal vulnerability of the system in the Netherlands and Germany. The test has not yet been introduced, pending the development of a computerised test in Danish. The development of a similar test in the Netherlands took several years. All independent experts consulted by the Dutch Government advised that the validity of the test used had not been proven. But that advice did not prevent the introduction of the test. Denmark is not bound by the Family Reunification Directive. Hence, it can apply its legislation to family reunification with TCN sponsors without Community law restrictions. In France integration measures abroad were provided for in the Loi Hortefeux of November 2007.19 During debate of the bill repeated reference was made to ‘the Dutch model’. But French legislation is different from the Dutch in many aspects (see Carrera, Chapter 17 of this book). The level of knowledge of the French language is tested by the French consul. If the level is considered to be insufficient a language course of up to two months will be offered. Once the applicant has participated in the course the visa will be granted. If, following the course, the consul deems the knowledge to still be insufficient family migrants will have to follow an additional course after their arrival in France. In October 2008 the decree was published with details on the implementation of the new legislation.20 17 Richtlinienumsetzungsgesetz of 28 August 2007, Bundesgesetzblatt I, p. 1970. 18  Case C-127/08, Metock, 25 July 2008. 19 Loi n° 2007-1631 of 20 November 2007 relative à la maîtrise de l’immigration, à l’intégration et à l’asile, Journal Officiel no. 270 of 21 November 2007. 20 Décret no. 2008-1115 of 30 October 2008 relatif à la preparation de l’integration en France des étrangers souhaitant s’y installer durablement, Journal Officiel of 1 November 2008.

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Illiberal Liberal States

Exemptions are provided if the applicant is unable to learn French due to physical inability or the absence or inaccessibility of language training in the country of origin, after several years of schooling in a francophone country or at a French school abroad. It is clear that the new legislation will create an additional obstacle for a considerable number of applicants for family reunification.21 But the French Government has apparently tried to model its national legislation in such a way as to avoid clear violation of the Family Reunification Directive, without ever mentioning the Directive in the legislative documents. In the UK a proposal to apply an English language requirement for the admission of spouses or partners of settled persons was elaborated in a government consultation document. However, the idea was reformulated as a long-term goal on the basis of the availability of English language courses in the countries of origin. But spouses or partners may be required to enter into an agreement as part of the entry clearance process according to which they would learn English after arrival in the UK (refer to Ryan, Chapter 15). The negotiations on the Family Reunification Directive provided free publicity for the Dutch-German idea of an integration test abroad (see Kostakopoulou, Carrera and Jesse, Chapter 9). The clause inserted in the Directive at the insistence of those member states was used to legitimise the introduction of such tests at home. In France the Directive probably influenced the form of the new integration measures: offering a course rather than requiring a test. Denmark and the UK are not bound by the Directive, but have to comply with other international norms, such as the ECHR and CERD. Integration and Enlargement The use of the concept of integration and its contents are subject to a number of incoherencies. Where the concept is used as a ring-fence around citizenship and national identity, its symbolic nature becomes apparent as soon as one considers the longer term. Few liberal democracies are comfortable with nationality laws which leave generation after generation born and resident on the territory without the citizenship of the state. A mix of residence status and birth on the territory generally determines the way in which children gain citizenship in liberal democracies. Thus it is the generation that moves that is subject to integration measures and conditions. Of course the state has a much more comprehensive tool kit to turn children living on its territory into the kind of citizens it wants – a compulsory education system. In the EU context, the objective of the ever-closer union of the peoples of Europe, found in the opening lines of the EC Treaty, sits uneasily with the idea of compulsory integration of a coercive nature. While EU nationals may be subject to convergence in living standards and educational attainment, for instance, as 21  Un obstacle de plus à l’intégration, Plein Droit no. 79, December 2008.

Understanding the Contest of Community: Illiberal Practices in the EU?

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measured by Eurostat and encouraged by EU programmes such as student mobility, they are not the objects of integration conditions or measures in themselves. When they exercise free movement rights, indeed, they cannot be obliged to even learn the language of the host country though many member states provide assistance to migrant EU nationals in this respect. When EU nationals move – rather than being subject to coercive measures by the state – they are rightsholders and as such are entitled to the best integration conditions. Integration has quite a different meaning; it is the right of the individual to equal treatment and social advantages within the host state. As the EU has grown in the early part of the 21st century, so has the meaning of integration been put to the test. In 2004 ten states in Central and Eastern Europe, the Baltic area, Slovenia and two Mediterranean island states joined in the EU. One could hardly imagine a group of states with greater differences between them – some with fairly long communist pasts, others former British colonies! Again in 2007 the EU grew to include two Balkan states, Bulgaria and Romania – the former bringing with it a new written script for the EU to adapt to. Nationals of these 12 countries had the right of free movement and selfemployment as soon as their state joined the EU (for some the right to take a job was delayed for up to seven years). For those who were already resident in the pre-2004 member states, they changed overnight from being TCNs subject to integration conditions and measures to citizens of the Union entitled to the best conditions of integration. Because these people became citizens of the Union, by definition they were placed beyond the conceptual framing of immigrants as a threat to identity. Instead they were entitled to participate in the new identity of the EU’s full partners. Not only were they entitled to equality, but for them, the claim that the strength of the EU is based on its diversity (Article 151 EC Treaty) was suddenly applicable. Instead of having to become more like someone else, the rest of the EU embraced the diversity that they brought with them. These are not just empty words – when one considers the fact that the 12 member states brought into the Union eleven new languages and that the whole of the EU acquis, laws, judgements of the ECJ, etc. had to be translated into eleven new languages, the meaning of ‘the best conditions of integration’ becomes more tangible. It costs the EU vast sums to carry out translations and to provide simultaneous interpretation at all official meetings into these languages, but this was the right of the newcomers. Illiberal Practices of Liberal States: Integration as an Exception to the Laws of Citizenship and Immigration The traditional place of the framing of civic mandatory integration into law has been in member states’ legislation dealing with access to nationality through naturalisation (Bauböck et al. 2006a). The main functions that integration intends

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Illiberal Liberal States

to perform in this context are securing and protecting the constructed citizenry. It constitutes an exception in the hands of the state to grant membership and participation to the non-national. Integration in nationality law aims at protecting, managing and safeguarding the traditional notion of the nation. This notion is based on a compendium of features and characteristics often composed of stereotypes, traditional perceptions and visions of the past and the present, principles and classic ‘values’ deemed to rule ‘the one and only’ society, and conceptions of the self. The role of the nation-state in the promulgation and protection of ‘the citizen’ is decisive for its own sovereignty and legitimacy (Habermas 1998b). Integration becomes another tool for the state to manage the nation and to determine who belongs to its imagined community. The relationship between integration and the laws on nationality aims at preventing the erosion of the bond of citizenship. One of the managerial techniques in the hands of the state is the enactment of norms: its normative power. The use of integration by the branch of law dealing with nationality forces an active and corrective process of ‘nationalisation’ aimed at disciplining difference and making possible the endurance of the homogeneous nation, culture and identity. It aims at turning the abnormal into the natural or naturalised citizen (Foucault 1999). In the context of immigration law, integration becomes a tool to control the non-national ‘inside’ the nation-state and even ‘abroad’. The moving of integration from the traditional normative contextualisation of nationality to that of immigration raises a number of questions. Integration functions as another regulatory technique for the state to manage the access by the non-national – not to the status of citizen – but to the act of entry, the security of residence, family reunification and protection against expulsion. TCNs may not be willing to renounce their own identity(ies) and differences by acquiring the receiving state’s nationality, but the state will anyway demand from them the renunciation of the latter as the sine qua non for benefiting from security. Integration determines the ‘legality’ or ‘illegality’ of human mobility, and constitutes another frontier to being considered as a ‘legal immigrant’. It functions as the exception provided by immigration law for TCNs to have access to rights and inclusion (Carrera 2009). Non-EU nationals aiming at becoming immigrants in accordance with national immigration laws will be required to pass a test to show that they are ‘successfully’ integrated, and that they fully meet the criteria attached to the notion of the citizen before having access to security (Guild 2005). The immigrant will need to disappear into the presumed unity of the nation, and exhibit a transformation from the abnormal non-national to the juridical construction of the citizen. Integration in this way facilitates the state practice of a restrictive immigration policy. The Europeanisation processes and politics have not only further developed these functions in the context of the common EU immigration policy, but they

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seem to have consolidated them by prioritising certain national policies and programmes fostering nationalistic approaches to integration at the EU level. The normativity of integration in the context of immigration in some member states has somehow been transferred to the European arena. It has become a part of EU law and policy. It is at times presented as a ‘best practice’ in need of promotion in the EU, including those states whose national legislations and histories have not at all shared these understandings and public philosophies. The EU has perhaps not realised the potential dangers subsumed in the use of the EU Framework on Integration (Carrera 2008). Joppke (2007a) has argued that the increasing convergence of European policies on immigrants’ integration towards obligatory civic introductory courses and tests for newcomers constitutes an example of what he calls ‘repressive liberalism’ or ‘illiberal social policy in a liberal state’. In his view, ‘contemporary civic integration or workfare policies are of the same kind, because illiberal means are put to the service of liberal goals’. Integration implies the continuance of the nation-state and its nationhood and identity, as well as its degree of discretion to determine and categorise people according to a subjective test of perfection in an increasingly supranational legal and policy-setting environment. The illiberalism emerges sharply beyond the limits of the exceptionalism granted to the nation-state by EU immigration law when applying integration as a mandatory condition derogating access to European rights and freedoms by TCNs. The limits of the exceptionalism characterising certain integration policies in contemporary Europe however reside in the rule of law, the respect of individual fundamental rights as well as in the EU’s substantive (general principles of EC law) and institutional mechanisms (Community Courts). These mechanisms limit and review the discretional powers and illiberal practices of liberal regimes in the EU legal landscape, and aim at protecting the rights and liberties of every person (including of course also TCNs) in relation to unacceptable actions and restrictions by national and EU public authorities. This is in our view what it is really at stake when assessing illiberal liberal regimes and the limits of the nexus between integration, immigration and citizenship in the EU. O utline of the Book This book examines the relationship between integration, citizenship and immigration in contemporary Europe. It has been structured around two overarching sections: 1. Citizenship and Integration and 2. Immigration and Integration. Both are then divided into two subsections comprising the European and national arenas. This introductory chapter provides the overall framing and premises of the volume and raises the key issues at stake when examining the EU and member states’ policies and legal frameworks on the integration of TCNs in the context of citizenship and immigration. The first part of the book, entitled

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‘Citizenship and Integration’, kicks off at the European Union level with Jo Shaw (Chapter 2) providing an assessment of political rights and multilevel citizenship in Europe. Shaw’s contribution focuses in particular on the rights of non-nationals to vote in local elections on the basis of residence, rather than nationality. This is already well-established in the EU context, as a result of the introduction of local electoral rights in the citizenship package of the Treaty of Maastricht. A number of member states go further and confer the right to vote in local elections on TCNs as well, but this extension has by no means been universal. Chapter 2 further explores some of the political and legal tensions that arise when there are debates and conflicts within states, across different territorial and political units, about whether or not to extend electoral rights to non-nationals. It also seeks to explore the types of arguments made for the exercise of regional or local autonomy, e.g. within federal states, in favour of extending electoral rights where the national policy is more restrictive. In particular it emphasises the significance of constitutional barriers in a number of states where experimentation at the subnational level has been attempted, notably in Germany and Austria. It also suggests that the case for subnational experimentation can be linked, as it may increasingly be in Scotland as the UK’s current devolution scheme continues to evolve, to broader political questions about a state’s political and territorial settlement. The study of integration as a requirement for naturalisation is the topic addressed by Gerard-René de Groot, Jan-Jaap Kuipers and Franziska Weber’s contribution (Chapter 3). This chapter provides a comparative assessment of citizenship tests where integration is a requirement for naturalisation, paying particular attention to the ways in which the evaluation of the applicants’ degree of integration is being examined across a number of selected EU member states, in particular Austria, Germany, the Netherlands and the UK. On the basis of this comparative assessment, the chapter then draws conclusions about the desirability of a common EU policy fostering the development of European integration tests. The role of European citizenship as a tool for integration is the main issue of Zeynep Yanasmayan’s contribution (Chapter 4). Coping with cultural diversity and ensuring the integration of non-European nationals has turned out to be a major challenge for most Western societies. Despite the development of cooperation with regards to the management of migration, the EU member states have shown themselves to be rather reluctant to share their sovereignty when it comes to the field of integration. This chapter takes as its departure point the need for further EU involvement and thus focuses on European citizenship as an integration tool. It attempts to analyse the extent to which European citizenship can effectively contribute to the integration process of Turkish immigrants. It deals with the construction of European citizenship through the interplay of domestic integration policies. The examples of the Netherlands and Germany demonstrate how Turkish immigrants have lost out compared to EU nationals. The underlying argument is that European citizenship not only highlights national boundaries among residents but also enhances it by adding another

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layer of exclusion. Through a comparative analysis of nationality legislation and of rights attributed to non-citizens, the author advocates the necessity for a (re)formulation of European citizenship that would include all residents within its framework. This would constitute a major move towards a more democratic and inclusive Europe. The subsection on the national arenas in the context of citizenship and integration, starts with a chapter authored by Judit Tóth that studies the impacts of EU enlargement on nation-building and citizenship law (Chapter 5). Recent enlargement processes have extended not only the geographical scope of the EU but also the debates as to whether ethnic or civic citizenship policy is able to receive and integrate more TCNs through nationality law. The author sets out the major characteristics of nationality legislation in the twelve newest member states, which includes for instance the role of the legal principles of jus sanguinis, tolerated dual citizenship and ethnic preferences in the acquisition of nationality. It also offers statistics on the acquisition of nationality via naturalisation. Compared to the absorption capacity of the old member states, the naturalisation rate is lower across new member states of the EU. This, the chapter argues, might be justified due to the fact that nationality law and policy patterns follow a different rationale that is based on the existence of kin-minority and diaspora of expatriated citizens, something that has strongly influenced recent legislative changes rather than European integration processes and enhanced efforts to establish the rule of law across these newly established democracies. The nation-building strategy of newly independent states may explain the numerous compensatory measures of weak statehood in a transition period. The author gives examples of how the bumpy road leads towards liberal and civic-driven nationality status and laws across this region. Ricky Van Oers then moves to an examination of the justification of citizenship tests in the Netherlands and the UK (Chapter 6). The chapter analyses the political debates preceding the introduction of citizenship tests as a requirement for naturalisation in the Netherlands and the UK. In her analysis, Van Oers uses three models for naturalisation policy that are discerned in literature for the justification of naturalisation requirements: a liberal, a republican and a communitarian model. These models serve as a tool to locate the centres of gravity in the arguments used by politicians to defend the introduction of these tests in the countries under consideration. The chapter also addresses the question of whether the way in which the tests have eventually been put into practice can be defended on the basis of the models. Barbara Kejžar focuses on the role of dual citizenship as an element of integration processes in receiving societies taking Slovenia as a case study (Chapter 7). Dual citizenship was until recently considered to be an undesirable and anomalous social phenomenon that contradicted the established modern definition of (only one) national citizenship and should therefore be abandoned. But this mission has apparently not been successful, since the number of dual citizens is constantly on the rise. On the basis of reconsideration about the

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complexity of modern societies, where multiple loyalties and identities co-exist and there are redefinitions of the concept of citizenship in academic spheres and states, the positive effects of possessing a second citizenship are being increasingly recognised. In the context of such changed attitudes towards dual citizenship, this chapter (re-)examines the role of dual citizenship in the integration processes of immigrants in receiving societies. The author argues that dual citizenship can positively influence the integration of long-term immigrants in two ways in particular: by facilitating a naturalisation process and by encouraging (further) integration into the receiving society. As an example the author presents the case study of Slovenia and its policy of dual citizenship in the integration processes of immigrants. Kejžar concludes with a suggestion that future research on this issue should be complemented with an analysis on the individual level and concentrate on subjective meanings and interpretations that individuals subscribe to this element of integration policies. In Chapter 8, Julia Mourão Permoser and Sieglinde Rosenberger assess religious citizenship as a substitute for immigrant integration with special attention given to the case of Austria. Throughout Europe, concerns over the integration of immigrants have grown considerably in recent years. At the same time, debates over the public display of religious symbols and practices of Muslim immigrants have figured prominently in the European public sphere. The relationship between policies of religious accommodation and immigrant integration is far from simple. At the national level, Austria is a case in point. Here restrictive immigration policies are coupled with generous policies of accommodating religious diversity. Similarly, Directive 2000/78/EC grants the right to non-discrimination on the grounds of religion to all persons residing legally in the EU, whereas for most immigrants discrimination on the basis of nationality remains legal. The chapter uses Islam in Austria as a case study to analyse the tensions between the religious rights and restrictive immigration and integration policies that create barriers to the acquisition of political and socioeconomic rights by immigrants. It suggests that the increasing number of rights derived from religious membership amount to a form of ‘religious citizenship’ that transcends nationality. The effect of these contradictory dynamics is discussed, as well as the importance of religious citizenship for the social and political integration of migrants. The contribution by Dora Kostakopoulou, Sergio Carrera and Moritz Jesse on ‘Doing and Deserving: Competing Frames of Integration in the EU’ (Chapter 9) opens the second half of the book titled ‘Immigration and Integration’, as well as the subsection on the EU level. In the new millennium there has been a shift away from multiculturalism and the politics of difference towards integration. Governments frequently comment on the alleged weaknesses of the multicultural model and the advantages of thicker, communitarian notions of community. In this chapter the EU institutions’ understanding of integration is investigated by comparing and contrasting ideas, frames, laws and policies in the fields of the free movement of persons and migration, respectively. The comparison of the rights-

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based and participatory approach characterising the free movement of persons and Union citizenship with the common framework for the co-ordination of national integration policies toward TCNs highlights the need for a fundamental rethink of integration, a more coherent frame and for critical interventions at EU level. Moritz Jesse’s contribution continues our journey by studying the effective protection of TCNs from discrimination under Community law, taking as a case study the hollow interplay between the racial equality Directive 2000/38/EC and the long term residents Directive 2003/109/EC, and its detrimental consequences for integration (Chapter 10). The chapter exemplifies the weak protection from discrimination for immigrants from non-member states of the EU. It takes a closer look at the combined effect of the two Directives mentioned above. Sovereignty concerns from the member states have created a hollow circle of references, in which the racial equality Directive accepts discrimination on the basis of nationality and the legal status of immigrants from its application even in the event that this amounts to [indirect] racial discrimination. It is assumed that at least for longterm residents this gap in protection is filled by Directive 2003/109/EC. The latter Directive, however, does not provide for such protection and instead refers back to the legislative framework of protection against discrimination under Community law, which is thought to offer sufficient protection. It is shown that this ‘circular relation’ functions as an example for much of, if not all, European immigration legislation. Gaps in protection do exist in the application of immigration law and cannot be filled satisfactorily relying on, e.g. Article 12 EC Treaty or general principles of community law. Equal treatment and non-discrimination are vital elements of immigrant integration; thus protection gaps will have to be filled in order to enable real integration. The role of free movement as a precondition for the integration of TCNs in the EU is then addressed by Sara Iglesias Sánchez (Chapter 11). Bearing in mind the historical development of the European Communities, free movement is the main feature that defines the relationship between the EU and the individual. The possibility to travel, to reside and to work across the territory of the member states, enjoying at the same time a legal status characterised by equal treatment are the elements that constitute the hard core of the concept of European citizenship. Thus, any comprehensive Union policy aiming at the integration of aliens has to bear in mind the fact that free movement is the element that better defines the added value of an internal market which is, at the same time an area of freedom, security and justice. A number of elements aiming to achieve free movement have been included in the main norm concerning the integration of TCNs: the longterm residents Directive. The EC long-term resident status is the expression of a double identity similar to the one created by European citizenship. Nonetheless, through the long-term residents Directive the connection between the Union and the long-term resident remains at a very preliminary stage. Chapter 11 argues that, by failing to implement a system that enables mobility throughout the member states, the opportunity to develop a successful and comprehensive

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approach to integration in the new political community formed by the EU could be missed. In the next chapter Paul Minderhoud focuses on the access to social assistance benefits as a tool for integration in an enlarged EU and its framing in the scope of Council Directive 2004/38 (Chapter 12). It looks at the issues relating to the implementation of Directive 2004/38 in light of access to social assistance benefits for EU citizens in other member states. This Directive regulates the entry and residence of EU citizens and their family members in another member state. A problem with the implementation of Directive 2004/38 is that the point at which an EU citizen becomes an ‘unreasonable burden’ to the social assistance system is not clearly defined. Leeway is given to member states to examine whether financial difficulties may be temporary. As a result, member states have developed their own definitions. Some legal experts hold the view that before EU citizens receive a permanent residence right, it is not possible to deny them access to social benefits. The policy and practice in Ireland and the UK, however, show a different picture. By using a habitual residence test and a right to reside test, the social benefits systems of these countries appear to exclude inactive EU citizens effectively from entitlement during a certain period of time. The idea that states can only expel people if they are proved to be an ‘unreasonable burden’ has fuelled discussion over welfare tourism and fear for social welfare systems. This fear is needless since there is no unconditional access to social benefits in most member states. Concerns about the potential abuse of social welfare systems are so far unfounded. The last subsection of the book comes back to the national arenas in order to address the relationship between the mobility of TCNs and integration across various EU member states. Leonard F.M. Besselink starts the section by studying the vicissitudes of Dutch integration programmes (Chapter 13). The chapter describes the legislative approach to integration in the case of the Dutch integration requirements, inburgering, against the populist political background of the period between 2004 and 2008. It describes how, instead of increased integration, it has resulted in a dwindling of the numbers of persons participating in integration programmes. Besselink shows how the ‘integration of minorities’ turned from a inclusionary social policy issue into an exclusionary immigration issue, from a problem to be addressed with social measures based on ‘soft law’ to one that is to be tackled with legislation enforced with sanctions. It submits that this has largely contributed to its failure to achieve the intended objectives of integration and participation. In the past ten years North-Western European member states such as France, Germany and the Netherlands have repeatedly modified their integration policies for new immigrants in search of more (cost-) effective solutions. Ines Michalowski’s chapter looks at the ways in which immigrant integration policy can become a private task by looking at the cases of the afore-mentioned countries (Chapter 14). Policy and research documents have described these changes as paradigmatic. The chapter analyses the past two changes, which

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are the subsequent introduction of integration programmes and of alternative strategies such as legally fixed integration requirements that migrants have to meet at their own responsibility and asks which of these changes can be described as paradigmatic. The integration agenda in British migration law is studied by Bernard Ryan in Chapter 15. This chapter details the integration requirements that have been introduced into UK migration law since 2002, or which have been the subject of government proposals. The first innovations concerned the addition of knowledge requirements of the official language and of life in the UK to the rules governing naturalisation and indefinite leave. A second stream of developments saw the introduction of English language requirements for highly-skilled migrants and skilled workers, and a proposal to require the partners of settled persons to learn English either before or after migration to the UK. The Government also plans to introduce a criterion of ‘active citizenship’, compliance with which would lead to a shorter qualifying-period for naturalisation and for a new ‘permanent residence’ status. The chapter argues that it is paradoxical to seek to improve the social and economic position of migrants through these integration conditions within migration law. Instead, the new integration agenda is to be understood as a problematic aspect of the policy of promoting ‘community cohesion’. Chapter 16, by Anja Wiesbrock, focuses on integration requirements for immigrants in Denmark and Germany. TCNs are faced with integration conditions at three stages in the process of settling in a country of the EU: before entry, after arrival and when applying for citizenship. This chapter provides a critical analysis of the integration requirements faced by TCNs at each of these three stages in Denmark and Germany. A comparison of Danish and German integration results on the basis of the recent OECD study reveals that member states are not likely to improve their integration results by further intensifying integration programmes or tightening immigration and citizenship rules. On the contrary, extremely restrictive rules could hamper the integration process, especially if they are perceived to amount to direct or indirect discrimination. Furthermore, the chapter scrutinises the compatibility of German and Danish integration measures with fundamental principles of EU law, including Directives 2003/86 and 2003/109, the principles of proportionality and non-discrimination and Directives 2000/43/EC and 2000/78/ EC as interpreted by the ECJ. The relation between integration and the legal frameworks of immigration and nationality in France is analysed by Sergio Carrera in Chapter 17. This chapter studies the nature and impact of the normative articulation between integration, nationality and immigration in French law. After offering some theoretical reflections on the French Republican paradigm of integration, it addresses the ways in which integration is being used and practised in nationality law by looking at the key provisions contained in the civil code dealing with the condition of assimilation for naturalisation. The relationship between immigration legislation and integration is then analysed. It is argued that Republican integration has experienced a number of multifaceted processes of

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normativisation, expansionism and externalisation: first, it is currently presented in a mandatory contractual relationship between the state and the TCN, taking the form of the so-called welcome and integration contract (CAI). The CAI applies as a prerequisite for the non-national to have access to permanent residence and the right to family life. Second, integration has been subject to gradual expansionist logic from its traditional place within the realm of nationality law to the regime covering the wider area of immigration. It now functions as a condition for the regular nature of the entry, permanent settlement and family reunification of TCNs. Third, there is a consistent trend calling for the application of integration as a requirement already in the country of origin to obtain a visa for the purposes of family reunification (‘integration abroad’). The main features and scope of these various processes in the French legal system are addressed. Immigration and the construction of public philosophy(ies) of integration in Spain are analysed by Ruth Ferrero-Turriόn and Gemma Pinyol-Jiménez in Chapter 18. Because of its recent conception as a destination country and unlike other European countries of immigration, Spain is just examining the links between immigration and social integration, and its transposition in a legal framework. In recent years, Spain has been involved in defining its own interpretative framework and constructing an argumentative discourse to sustain its public philosophy of integration. Furthermore, public and academic debates point out how, in such a decentralised country, rather than talking about a philosophy, it could rather be considered as presenting various philosophies of integration. This chapter will analyse how the central Spanish Government has articulated its own public philosophy on integration, but it also focuses on how this philosophy has been built in the region of Catalonia. The main aim is to reflect how, in Spain in general and in Catalonia more particularly, the debates on migration, citizenship and national community are still open and how, within this framework, instruments to manage plurality and diversity should be implemented to grant social cohesion and peaceful coexistence in a decentralised Spain. Finally, the book concludes with a chapter by Salvatore Palidda dealing with the insertion, integration and rejection of immigration in Italy (Chapter 19). This process has been marked, on the one hand, by a sometimes exaggerated interpretation of the strictest points of the guidelines adopted by the EU concerning the ‘countering’ of irregular immigration and, on the other hand, by the ignorance of recommendations that are more favourable to integration. This becomes critical when taking into account the existence of an excessive discretional power by the police in each province, non-effective protection for migrants against over-exploitation in underground economies, against the money-lenders in the housing market, against discrimination, racism and violence, etc. There is no law on humanitarian and political asylum in accordance with European norms. The chapter argues that Italy is the least favourable country for a stable and peaceful integration of immigrants. The most recent estimates indicate that there is an increase in the ‘shadow economy’

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and of irregular immigration against a background of hostility, discrimination and racism that has also provoked the growth of the number of foreign prisoners in prisons and in retention centres.

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PART I Citizenship and Integration: The European Union

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Chapter 2

Political Rights and Multilevel Citizenship in Europe Jo Shaw

In mature federations, debates often occur about which level of government should regulate (which) immigration issues. The core issue is whether immigration is an exceptional case (because of the link to the security of the state and to international diplomacy), or whether it should, in federal systems, be regulated using the same public law principles and applying the same arguments about policy efficiency and legitimacy as those which govern the allocation of powers between different levels of government in other policy fields, taking due account of regional variations within a territorially differentiated jurisdiction. Moreover, states within federations can also act as laboratories or precursors to wider national trends. As Justice Brandeis famously once said: ‘[I]t is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country’. There is, of course, nothing to suggest that in the case of immigration federalism, this would mean the adoption of policies which are necessarily more ‘favourable’ to perceived interests of immigrants (Wishnie 2001). But they might, for instance, be directly reflective of the fact that a particular region or city within a state is more attractive to migrants and thus faces different constellations of issues to other parts of a state (Loobuyck and Jacobs 2006). Thus the division of powers in the immigration field may be affected by the preferences of both substate regions and cities, and of migrants. Regions often view themselves and/or are treated as stateless nations within wider multinational states with specific interests in issues  Earlier versions of this chapter were given at the IMISCOE Cluster B3 Conference in Warsaw, May 2007, at the Biennial EUSA Conference in Montreal, May 2007 and at a seminar at the Centre for Study of Law in Society, University of Sheffield, March 2008. I am grateful to the participants at these events for their comments, and in particular to Rainer Bauböck for providing comments on a draft version and to Bernhard Perchinig for input in relation to the case of Austria.   For the discussion on immigration federalism, see generally Schuck (2002); Huntington (2007); Spiro (2001); Boushey and Luedtke (2006); Parlow (2007); and Su (2008).   New State Ice Co v Liebmann, 258 U.S. 262 at 311 (1932), Brandeis J. dissenting.

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of economic development and demography which may differ from the rest of the state, and cities commonly regard themselves as transnational rather than national actors, whether in federal or unitary states. Cities, in particular, may be the chosen destinations of immigrants, rather than countries as such, not least because newly arrived immigrants often wish to join an established community in the host state of co-ethnics or co-nationals (Vertovec 1998; DeVoretz 2004; Bauböck 2003). The political authorities of those states, regions or cities will react differently to the political demands stemming from differing levels of immigration ‘demand’. Accordingly, a particular case may be made for the individual units within a federation or for large units such as cities to make autonomous decisions on the question of migrant selection as well the issues of post-settlement integration with which they are more often already entrusted, because of political, geographical, demographic, cultural or social conditions. Leaving aside more general questions about immigration federalism, the specific focus of this chapter is on rights to vote and stand in elections as a resident rather than a national of the host state, and in particular the right to vote in local elections. This is just one narrow dimension of the immigration/citizenship complex within multi-level polities, where tensions can arise between the ‘federal’ authority and the subnational authorities as to which rights could or should be given to which different groups of immigrants and/or non-nationals. The question of the allocation of political participation rights in local elections combines difficult issues about the interface between settlement rights, access to nationality through naturalisation and residence, and integration within the host society more generally. The chapter looks at the contestation of such rights across different levels of governance within the member states of the European Union (EU), but it places these rights in their wider EU context, taking into consideration relevant EU laws and policies governing the rights of EU citizens and third-country nationals (TCNs). Thus the chapter builds upon an earlier study examining how electoral rights allocated at the EU level to EU citizens interact with the electoral rights granted (or denied) to non-nationals more generally at the national level (Shaw 2007). The primary focus of the earlier study was the existing framework of electoral rights under EU law, which are applicable only to EU citizens. The rights enjoyed by EU citizens under Article 19 EC Treaty and the implementing Directives, which extend to rights to vote and stand under the same conditions as nationals not only in  E.g. on language grounds, Quebec takes a different approach to Francophone speakers than does the rest of Canada (DeVoretz et al. 2003).   Council Directive 93/109/EC of 6 December 1993 laying down detailed arrangements for the exercise of the right to vote and stand as a candidate in elections to the European Parliament for citizens of the Union residing in a Member State of which they are not nationals, OJ 1993 L329/34, 30 December 1993; Council Directive 94/80/EC of 19 December 1994 laying down detailed arrangements for the exercise of the right to vote and stand as a candidate in municipal elections by citizens of the Union residing in a member state of which they are not nationals, OJ 1994 L368/38.

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municipal elections but also in European Parliamentary elections, provide examples of how the various regimes of rights enjoyed by EU citizens are dispersed across the supranational as well as the national levels. They can be seen as important exemplars of the wider principle of equal treatment, which complements the free movement rights enjoyed by EU citizens. The legal framework for this is provided not only by the citizenship provisions of the EC Treaty themselves, but also by other provisions of EC law such as Article 12 EC Treaty. The rationale for this legal framework focuses to a considerable extent on the fostering of integration of migrant EU citizens into the society and polity of the host Member State. In contrast, there is no ‘hard’ EU law governing the allocation of electoral rights to resident TCNs at the national level, but there is some soft law encouragement. For example, DG Freedom, Security and Justice of the European Commission has produced a Handbook on Integration for policy-makers and practitioners, which seeks to establish best practices, drawn from examples across the member states, in areas such as initial reception of immigrants and civic participation. It encourages member states to extend local political rights to TCNs using arguments about integration in the following manner: The representativeness and democratic legitimation of policies is enhanced by extending formal political rights to immigrants. Where political rights exist, they need to be put into practice with commitment from all sides including political parties […]. At the local level in particular, electoral rights provide immigrants with political representation in decisions that affect their most immediate interest…Governments should grant electoral rights to all residents at least at local level and minimise obstacles to the use of these rights, such as fees or bureaucratic requirements. Immigrants can be encouraged to make use of electoral rights through information campaigns and capacity building, relying in particular upon the networks offered by immigrant organisations.

This, along with other similar statements emanating from the EU institutions, supports the general proposition that electoral rights for non-nationals, at least at the local level, can usefully be seen as part of a pathway through a process of integration, rather than as a reward for integration already achieved, in the form of the acquisition of national citizenship. It is significant to note that this  DG Justice, Freedom and Security (2004), Handbook on integration for policymakers and practitioners (Brussels: European Communities), p. 49.   For example ‘Conclusions of the Council and the Representatives of the Governments of the member states on the establishment of Common Basic Principles for immigrant integration policy in the European Union’, Doc. 14776/04 MIGR 105, 18 November 2004; European Commission, A common agenda for integration – Framework for the integration of third-country nationals in the European Union, COM(2005) 389, 1 September 2005; European Commission, Third annual report on migration and integration, COM(2007) 512, 11 September 2007.

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proposition has achieved recognition in a number of member states, since around half of the twenty-seven member states accord some or all TCNs rights to vote, and sometimes to stand, in local elections, albeit not the states with the largest number of TCN residents (France, Germany, Italy and Spain). In this chapter, the focus is on variation within states, rather than across them. A number of prominent examples of such variation do exist, such as Canada, Australia and – in a very limited way – United States, but there are no examples of geographical variation in relation to local electoral rights for TCNs amongst the EU member states. The best European examples are to be found in Switzerland, which offers more generally an important example of a system of multilevel citizenship co-existing within a single state. Since citizenship operates at the federal, the cantonal and the local levels in Switzerland, those seeking to acquire Swiss nationality must seek admission at all of those levels, and there are important variations in relation to the acquisition of Swiss citizenship across the more than 200 municipalities which have powers in this area (Helbling 2008). There is variation also in the allocation of political rights. Article 39 (1) of the Federal Constitution explicitly devolves the necessary competence to the Cantonal level, providing that: ‘The Confederation shall regulate the exercise of political rights in federal matters; the Cantons shall regulate the exercise of these rights in cantonal and municipal matters’. Some Cantons regulate the matter directly, either by instituting local electoral rights for non-nationals (e.g. Fribourg, Jura, Vaud and Neuchâtel) or by refusing them (e.g. Aargau, Solothurn and Schaffhausen). A number of other Cantonal Constitutions, including those of Appenzell Ausserrhoden and Lucerne allow individual communes to introduce the right to vote, thus creating the possibility for a second level of variation, at the communal level. The issue has been regularly revisited and debated, as initiatives for referendums on the matter are brought before the various Cantons. In the United Kingdom, there is an interesting example of regional variation of electoral rights for EU citizens. EU citizens can vote in the elections for the devolved parliaments/assemblies of Scotland, Northern Ireland and Wales, as well as in the elections for the London Assembly. This is because all of these elections are conducted on the basis of the electoral register that is compiled for UK local elections, not the national elections to the Westminster parliament. Pursuant to Article 19 (1) EC Treaty, EU citizens are on the local electoral register. These  The London Assembly has considerably fewer powers than the Assemblies in Wales or Northern Ireland. EU citizens can also vote in elections for the Mayor of London and other directly elected mayors in other towns and cities.   S. 3 (1) of the Local Government Elections Regulations 1995 (SI 1995, no. 1948) provides the basic amendments to the local electorate to incorporate the requirements of EU law, and in relation to the inclusion of EU citizens in the ‘regional’ franchise see s. 17 of the Greater London Authority Act 1999; S. 11 of the Scotland Act 1998; S.10 of Schedule 1 of the Government of Wales Act 1998; S. 2 (2) of the Northern Ireland (Elections) Act 1998.

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electoral rights are, however, emblematic of the UK’s emerging asymmetric federal system, because in certain parts of the UK, notably most of England, the analogous elected bodies for which EU citizens can vote (and stand for election) simply do not exist. Against the background of these observations, the empirical section of this chapter will explore some examples of the contestation of electoral rights for nonnationals in the context of the multiple levels of political and legal authority which exist in the EU. The review does not purport to be comprehensive, but rather it presents a snapshot intended to tease out some preliminary conclusions about the different range of practices which occur in relation to electoral rights. The primary research questions are the following: what types of claims or arguments for the exercise of regional or local autonomy in relation to the political participation of non-nationals have been developed in the EU member states? Who have been the main actors in this context (political parties? Non Governmental Organisations (NGOs)?)? How have these arguments been received both at the sub-national level and at the national level? What has been the impact of the broader European context provided by the limited framework of EU competences and activities in this field? And finally, what are the barriers to the experimentation which Brandeis suggests goes to very the essence of a federal system? Are they predominantly political or constitutional/legal in nature? Contesting Electoral R ights at the Subnational Level in the M ulti-Level ‘Euro-polity’ This section begins by looking at the link between evolving notions of sub-national identity and possible re-definitions of the franchise at the sub-national level in the UK, specifically in Scotland. Here the focus is on the general provocations to the definition of citizenship and associated rights which arise where the existing territorial and political settlement within a given state is under pressure from below. The UK is not unique in the EU in this context, and examples could also be drawn from the debate in both Spain and Belgium. The focus then shifts to EU member states where there have in the last ten to twenty years been active campaigns and/or attempts, at the sub-national or regional level to subvert restrictive national policies on the inclusion of non-nationals. In each case, the proposed more inclusive policies have faltered, often because of constitutional restrictions as well as the absence of political will at the national level. The chapter takes a closer look at the cases of intrastate, intergovernmental competition which have occurred in this context, separating out for particular attention two federal states – Germany and Austria – where a constitutionally defined singular notion of the national demos has hindered sub-national experimentation with political participation rights for TCNs at the local level.

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Scotland in the UK in the EU: What Scope for Differentiated Policies? The asymmetry in the electoral rights for EU citizens in the UK noted in the introduction raises the question whether there could in future be asymmetric development of electoral rights for TCNs. At present, the electoral rights of TCNs in the UK are limited to the rights of Commonwealth citizens to stand and vote in all elections,10 thus excluding many large groups of TCNs in the UK such as Americans. In particular, the question arises as whether local electoral rights for TCNs could be instituted only on a UK-wide basis, or whether there are circumstances in which Scotland could choose its own policies in this area, but without moving to full political independence and the break up of the historic union with England. To put this question in context, it is useful to look at the broader history of political conflicts between Edinburgh and London since devolution over immigration and citizenship policies. Significantly, these predated the election of the minority Scottish National Party (SNP) Government at the Scottish Parliament elections in 2007, and were visible also under the previous Labour-led coalition, albeit it in a more attenuated fashion. Asylum has been a core battleground in the UK where the issue of decentralisation has arisen. The UK is one of the many states which have used a policy of dispersing of asylum applicants, in the name of sharing the costs and the ‘burdens’ (Boswell 2001). In practice, this has created the scope for differences to arise within states over the politicisation of asylum questions. In relation to Scotland, for example, while immigration (and asylum) questions are reserved matters for the Westminster Parliament under the Scotland Act 1998, certain issues about the treatment of asylum seekers, and especially the forced removal of those who have been refused asylum, have been more heavily contested than in other parts of the UK. For example, policy on children falls within the remit of the Scottish Parliament. Political conflict has arisen as to whether so-called ‘dawn raids’ to remove those who have been refused asylum from the UK are traumatic experiences which infringe the rights of the child, and whether such removal, however effected, would also be liable to deny the children certain basic rights, such as the right to an education.11 The issue led directly to conflict between the 10  The Representation of the People Act 1918 established the first truly modern franchise for the UK Westminster Parliament, abolishing property qualifications for men and introducing the franchise for (some) women for the first time. At the time it posited the franchise for ‘British subjects’, and when Ireland and what are now the countries of the Commonwealth became independent states, the franchise arrangements were preserved and updated, for example in the Ireland Act 1949. The relevant consolidating legislation laying down the general entitlement to vote is the Representation of the People Act 1983, as amended. For a review of the current scope of the franchise, see House of Commons Library Standard Note, Electoral Franchise: who can vote?, SN/PC/2208, 1 March 2005. 11  ‘Protest over refugee dawn raids’, BBC News, (updated 17 September 2005) .

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Scottish Executive and the UK Labour Government in Westminster. When the Scottish (Labour) First Minister Jack McConnell sought some type of dispensation from the Home Office in London regarding the involvement of Scottish education and social service agencies in the making and implementation of deportation decisions,12 he was firmly rebuffed. In a political commentary in the Sunday Herald, a senior Scottish political commentator noted somewhat gloomily: ‘If anything, McConnell’s brush with the Home Office has confirmed that Holyrood’s attempt to project Scotland as a welcoming place for foreigners is increasingly out of step with the clampdown implemented at Westminster’.13 More recently the focus has been on the detention of asylum seekers, including children, with Scottish Ministers actively seeking the closure of the only asylum seeker detention facility in Scotland, although so far unsuccessfully.14 Scottish Government policy is also actively to seek the integration of asylum-seekers into the host community from the day they arrive in Scotland, including giving them the right to work.15 This is emphatically rejected in current UK policy. It is arguable that in other fields of immigration policy, while restricted in what it can do, the Scottish Executive (since 2007, renamed the Scottish Government) has been a little more successful. Historically, like Ireland, Scotland has been a nation of emigration. This has involved principally emigration to the rest of the British Isles (including the island of Ireland, especially Ulster) and to North America and elsewhere in the British Empire/Commonwealth. Immigration was largely confined to inward flows from Ireland, Poland and Lithuania especially after the Second World War, from Italy, and in more recent years from England. Scotland’s population has declined severely as a proportion of the overall population of the UK (as Scotland’s dwindled to around 5 million, England’s continued to grow), and its population (and population profile) has continued to decline (and to age) because of declining fertility and insufficient immigration to match the continuing emigration. Only in very recent years the population of Scotland has started to

12  ‘McConnell seeking asylum protocol’, BBC News (updated 22 September 2005) . 13 Hutcheon, P., ‘Holyrood Vs Westminster: the battle over asylum’, Sunday Herald, (uploaded 27 November 2005) . 14  Mackay, N., ‘After Dawn Raids…the new scandal’, Sunday Herald, (uploaded 20 January 2007) , accessed 10 December 2008; Smith, K., ‘Dungavel set to close as Holyrood and Westminster pilot new detention scheme’, Sunday Herald, (uploaded 3 February 2008) , accessed 10 December 2008. 15 Henderson, D., ‘MacAskill clashes with immigration chiefs over reforms’, The Herald, (uploaded 11 October 2008) , accessed 10 December 2008.

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grow again, reaching an estimated 5.1 million in 2006.16 A major contributing factor has been net inflows of EU citizens from the new member states taking advantage of the UK’s decision not to apply transitional restrictions on labour market access. One of the major initiatives of the Scottish Executive in the early years of managing devolved Government after the first Scottish Parliament elections in 1999 was to promote positively the image of Scotland as a migration destination. This has included some specific initiatives, such as the Fresh Talent Initiative giving overseas students who have completed university courses in Scotland two year visa extensions to work, without need to seek a work permit.17 Clearly, this was hardly a radical departure from broader UK policy which has long promoted a selective migration policy focusing on skills, especially in shortage areas and on those with entrepreneurial tendencies. Even so, Fresh Talent was a broader and less restrictive programme than what was available more generally in the UK, until it was assimilated into a UK-wide international graduates programme in the middle of 2008. Furthermore, with its promotional and informational website Scotland is the place,18 which is also available in Polish and Chinese versions, the Scottish Government has been offering warm encouragement to migration to Scotland which has not been matched by the equivalent UK-wide websites.19 On the contrary, the public face of the UK in relation to employment-related mobility often demonstrates the increasing ‘fortress mentality’20 which now appears to pervade much UK policy in relation to immigration, border controls, and the treatment of foreigners more generally. The rhetoric in Scotland has focused firmly on settlement-based economic migration, whereas in the rest of the UK, especially the South East of England, the focus is increasingly on forms of circular migration with rights to permanent residence becoming ever more restricted. In the wake of the election of a minority SNP Government at the Scottish Parliament elections in May 2007, the issue of citizenship and immigration has inevitably received some attention. The Scottish Government’s consultative paper of July 2007 unsurprisingly had a clear slant towards a solution premised on 16  Population statistics are available from both the Scottish Government and the General Register Office for Scotland . 17  See the statement of First Minister Jack McConnell to the Scottish Parliament, 25 February 2004, . Scottish Executive, New Scots: Attracting New Talent to Meet the Challenge of Growth, February 2004. After two years, however, leave to remain has to be sought on the basis of the ‘ordinary’ UK rules. See Scottish Executive, Progress Report on the Fresh Talent Initiative, Scottish Executive Social Research, 2006. 18  . 19  Compare the highly functional tone and focus of the UK Border Agency’s Working in the UK website: . 20 D. Orr, ‘Open borders are the only alternative to the erection of a repressive fortress state’, The Independent, 26 July 2006.

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Scottish independence. Noting that powers relating to citizenship and immigration are powers reserved to the Westminster Parliament, it goes on to say: The United Kingdom Government’s policies on immigration and citizenship must reflect the situation across Britain, especially in the South East of England and London. In Scotland, there are very different economic, demographic and social issues relevant to population and immigration. Within the United Kingdom, it might be difficult to devolve responsibility for immigration and citizenship to Scotland, but increased powers to attract new migrants could allow the Scottish Government to address Scotland’s needs in an appropriate way.21

The statement suggests that nothing short of independence will really do. However, it also reflects official SNP policy, which has been to campaign, even before independence, for a distinctive Scottish ‘green card’ to facilitate immigration. In fact, when the Migration Advisory Committee (MAC) was established in 2008 to provide independent and evidence-based advice to Government on specific sectors and occupations in the labour market where shortages exist which can sensibly be filled by migration, it accepted the principle that regional variation needed to be taken into consideration. When it produced its first list of shortage occupations in the summer of 2008, the MAC also added a short list of occupations with shortages specific to Scotland. At that level, it could be said that UK policy itself is moving a small way towards the position adopted by the SNP. Turning to the specific question of electoral rights for non-nationals, a review of the relevant legislative materials suggests at first blush that there is little scope for variation within the UK. Section B3 of Schedule 5 to the Scotland Act 1998 lists the powers reserved to the Westminster Parliament after devolution, so far as pertains to elections. The list reads: Elections for membership of the House of Commons, the European Parliament and the [Scottish] Parliament, including the subject-matter of: (a) The European Parliamentary Elections Act 1978, (b) The Representation of the People Act 1983 and the Representation of the People Act 1985, and (c) The Parliamentary Constituencies Act 1986, so far as those enactments apply, or may be applied, in respect of such membership. The franchise at local government elections.

This leaves very few powers to the Scottish Parliament in electoral matters, although the reference in the last line to local government elections means that the Scottish Parliament can make certain other arrangements (other than questions of the franchise) for local elections which deviate from the UK norm. Indeed, 21  Scottish Government, Choosing Scotland’s Future. A National Conversation, August 2007 at p. 16.

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it did so recently in order to introduce proportional representation for Scottish local elections as of 2007.22 However, it is notable that a broader Commission (the Arbuthnott Commission)23 which looked at the conduct of elections more generally in Scotland, including voter participation and the co-existence of several systems of voting, was established not by the Scottish Ministers, but by the Secretary of State for Scotland – that is a Minister responsible to the Westminster Parliament. In sum, the Scottish Parliament is not permitted to change the franchise for any elections in Scotland, and could only be empowered to do so if the Scotland Act were amended. But while any change would indeed require primary legislation from the UK Parliament, there is no other UK constitutional bar to a wider franchise in Scotland. This point is reinforced by the fact that the current arrangements permitting EU citizens to vote in such ‘regional’ elections in the UK are simply laid down in primary legislation making reference to the local government register.24 That the current scope of the franchise should not be regarded as politically immutable in the longer term is confirmed by the fact that the franchise for putative ‘Scottish’ elections has differed over the years. Under the Scotland Act 1978, which made arrangements for an earlier devolution scheme aborted when the initiative which failed to win sufficient referendum approval in 1979, section 4 provided that the persons entitled to vote as electors at the elections for the putative Scottish Assembly would have been those who had their names on the register of parliamentary electors, plus peers (that is members of the House of Lords). Members of the House of Lords are not entitled to vote in Westminster elections although they are entitled to vote in local government elections.25 Schedule 17 of the same Act laid down that the same groups of electors could vote in the referendum. A different definition of the franchise was used after 1997, both for the referendum which approved the creation of the Scottish Parliament and the subsequent elections.26 The issue of the franchise was much discussed in both the House of Lords and the House of Commons in 1997 during the passage of the relevant legislation, especially in relation to the question of who should vote in the 22 Local Governance (Scotland) Act 2004. 23  Commission on Boundary Differences and Voting Systems, Putting Citizens First: Boundaries, Voting and Representation in Scotland, January 2006 (available from ). 24  Section 11 of the Scotland Act 1998. 25 The Scotland Act 1978 was immediately repealed by the newly elected Conservative Government in 1979, after the failed referendum of 1 March 1979. The referendum was one of the factors contributing to the fall of the Labour Government, after it lost a vote of confidence on 28 March 1979. 26 The issue of who should be able to vote in devolved Scottish elections was not discussed in the Kilbrandon Report of 1973 (Royal Commission on the Constitution, 19691973, Cmnd. 5460), which was one of the main sources of inspiration when the devolution scheme of 1997 came to be put in place.

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referendum which approved the establishment of the Scottish Parliament. These electors were thought to be determining Scotland’s constitutional status in a postdevolution Union.27 Two key developments in relation to the local government and parliamentary registers between 1978 and 1997 should be noted: first, the presence of EU citizens on the former since 1993, and second, the presence of overseas (that is, expatriate) voters on the latter. Expatriates were enfranchised in Westminster elections by the Representation of the People Act 1983, as amended most recently by the Representation of the People Act 2000. This allows British nationals living overseas to register to vote for up to 15 years after leaving the UK, in the constituency in which they were last registered as residents. Choosing the local electoral register as the basis for the franchise for elections in Scotland meant a focus on residence within Scotland rather than any other form of affinity with Scotland. It not only avoided the question of the affinity and belonging of those ‘expatriates’ who had moved outside the UK within the last 15 years, but also avoided the question of the participation ‘rights’ of the very much larger Scottish diaspora comprising those who had left Scotland within the last 15 years in order to reside elsewhere in the UK. To what extent should the ‘Scottishness’ of either group of expatriates give them a say? Should the expatriates born in Scotland, who have chosen to emigrate whether within or outside the UK, be given a stake in the future of Scotland? Do they have a better right to participate than those English ‘incomers’ (i.e. those born and formerly resident in England, but now resident in Scotland)? It is not hard to see that such questions of affinity would be precisely those which a Government committed to pushing through a referendum on a rather limited and localised concept of devolution in 1997 would want to avoid, given the presence of an active political movement for independence in Scotland. The parliamentary debates in 1997 reveal that the issue about expatriate voters was principally raised by members of the opposition Conservative party in order, perhaps, to muddy the waters about what the significance of a devolution referendum might be for the future of ‘Scottishness’ and of Scotland. Labour Government ministers rather stressed that devolution was about residence and localism. It is clear from those debates that issues about the scope of the franchise have been clearly linked to questions of identity, even in the context of devolution. The same definition of the franchise, albeit for different reasons, is embraced for the putative referendum on independence which the SNP Scottish Government proposes to hold before the next Scottish Parliament elections in 2011. A draft bill was included in an annex to the National Conversation consultative paper28 and proposed that the local electoral register should be used as the basis for the referendum franchise. The paper justified this as follows: 27  For examples of debates, see House of Commons Committee stage of the Referendums (Scotland and Wales) Bill, House of Commons Hansard Debates for 3 June 1997, Cols. 24778; House of Lords Debate, 3 July 1997, Hansard Debates, Cols., pp. 321-44. 28  A National Conversation, above no. 20 at pp. 44-8.

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Illiberal Liberal States In the Scottish devolution referendum in 1997 entitlement to vote was based on residence in Scotland, which is the same as for local government elections. The draft Bill follows this model and does not attempt to define categories of people resident outside Scotland eligible to vote in the referendum, nor to exclude any people resident in Scotland from the poll. The draft Bill envisages an independent Scotland based on the territorial and political entity of Scotland, not on place of birth, or ethnic group.29

This reflects also the approach of the SNP to citizenship acquisition after independence, whereby all long term residents would be accorded Scottish citizenship unless they opted not to acquire it.30 This would be combined with full toleration of dual nationality, and the preservation of the residence rights of those who opted not to take Scottish nationality, as well as the rights of their children. Of course, not all issues of citizenship, nationality and voting would be easy to resolve in the event of independence, as the experience of the new states which emerged in Central and Eastern Europe after 1989 has shown. This is all the more so because Scotland would be creating distinctions between insiders and outsiders in the context of continuing EU membership, and in a context where Scotland has received large numbers of EU citizens exercising their free movement rights since 2004. While most of these questions lie beyond the scope of this chapter, one difficult question is unavoidable. What would happen to the EU electors in pre-independence Scottish Parliament elections who refuse the offer of Scottish citizenship? At present, these electors have the right to vote for those with the power to determine policies, for example, on schools and hospitals in Scotland. Should they lose that right after independence just because they then would be voting in an election which also determined questions about defence and the national currency? Would it be compulsory for EU citizens, in those circumstances, to take up the offer of (dual) citizenship if they wanted to carry on voting, or would Scotland adopt the position that it has at the present time whereby EU citizens can participate in a significant elements of political decision-making, and extend that also to national (Scottish) elections after independence? Returning briefly to the headline research questions in order to conclude this section, some key points can be made. First, it is clear that the issue of voting rights in Scotland is subsumed within a broader debate about Scottish political futures, and about the future of the Union (that is the UK) more generally. While barriers to further experimentation under the existing legislation are clearly legal in nature, there would be no constitutional barrier as such to a change to 29  A National Conversation, above no. 20 at p. 35; the proposition about inclusiveness is clearly incorrect, however, as a minority of residents of Scotland would be excluded from voting in the independence referendum, because a number of (non-Commonwealth) third country nationals are not entitled to vote in local elections. The largest such groups would probably be US and Chinese citizens. 30  See above no. 21.

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the primary legislation establishing the devolution settlement in order to give the power to the Scottish Parliament to define its electorate in different ways to the rest of the UK (that is to include TCNs). Furthermore, since the franchise used in devolved matters has been malleable in the past this indicates that change in the future might occur again. However, despite the heated nature of the debate in the UK about the future of Union and about the possibility of a referendum on Scottish independence, the issue of asymmetry or Scotland-level experimentation has not been the subject of extensive public debate hitherto. Cities and States as Laboratories? In the second part of this empirical section the focus is on cases of local level experimentation which have been driven by dissatisfaction with the prevailing national policy. These are cases where the issue is nested within a contested national debate about immigration and integration, and is not about political futures more generally. All of the cases reviewed are those where a subnational unit is contesting a restrictive national policy. However, quite conceivably, the positions could be reversed. In France, while the issue of electoral rights for TCNs is regularly debated, a constitutional amendment which would be necessary to start the process of bringing about local electoral rights for TCNs remains on the table within the French legislature. It has been consistently supported by forces of the political left,31 but it has not so far been adopted. The National Assembly adopted a draft law on the matter, but the draft has never completed the necessary legislative process in the Senate.32 In the light of these blockages, local level experimentation has been mooted as the alternative. Initiatives within municipalities to organise local referendums on giving the right to vote to TCNs have, like other subnational initiatives examined in this section, been declared illegal as outwith the competence of the relevant subnational authorities,33 but they have been held on a consultative basis at the municipal level none the less.34 Civil society organisations such as the

31  See the Socialist Party ‘manifesto’, Réussir ensemble le changement: Le projet socialiste pour la France, Part III, at p. 21: ‘We will grant the right to vote in local elections to resident non-nationals who have been paying taxes for more than five years in our country’, 1 July 2006, . 32  See The Rights and Responsibilities of Citizenship, a report drawn up for the Goldsmith Review of citizenship in the UK by the British Institute of International and Comparative Law, at pp. 154-5. 33  Judgment Tribunal Administratif Cergy Pontoise (1st Chamber) 23 February 2006, Préfet de la Seine-Saint-Denis, req. no. 0511415, reported and briefly noted in Bulletin Juridique des Collectivités Locales no. 4/06, p. 257. 34 A local consultative referendum was held on 26 March 2006 in the town of SaintDenis; 31 per cent of the electorate participated, and 64 per cent voted in favour of extending the right to vote to third country nationals.

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Ligue des droits des hommes have also been very active in this context, organising symbolic votes on the issue of electoral rights for TCNs.35 Similar initiatives have been seen at the local level in Italy, in particular during the years of the centre right coalition Government of Prime Minister Silvio Berlusconi (2001-2006), which saw few developments at national legislative level in relation to the rights of non-nationals and immigrants. These have reflected the fact that Italy is a state with strong local identities. However, these local initiatives have come into conflict not only with the less generous national policies on immigrants’ rights, but also with the limits of current legal possibility. In August 2005, a Presidential decree struck down an amendment to the statute of the municipality of Genoa allowing electoral rights to TCNs as contrary to the current law (Bencini and Cerretelli 2005, 6). In an unlikely development, Gianfranco Fini, who was the principal architect of the notorious Fini-Bossi law tightening up Italian immigration law, appeared to put his political weight behind the proposition that TCNs should have the right to vote in local elections in Italy.36 He probably knew that this was a largely symbolic gesture as it was hardly likely to come to fruition under Berlusconi’s rightwing Government. Indeed, it did not. While the centre-left Government which was elected in 2006 was notably more positive towards enhancing the rights of resident TCNs, it fell from power before its proposed immigration law, which would have included local electoral rights for TCNs, could be adopted. A general election victory then saw Berlusconi return for a third term as Prime Minister. Local/national tensions on the matter of the rights of TCNs can therefore be expected to continue under this Government.37 Attempts at sub-national experimentation have also been blocked in Germany and Austria. These two countries share a number of common features which make the comparison of the approaches taken particularly interesting. First, both have denied, at least until recently, that they are ‘countries of immigration’. Second both share a broadly ethnic definition of national citizenship. Third, since they are both federal states, intrastate contestation of electoral rights has occurred in the rather formal arena of the national Constitutional Court. Finally, in both cases, when faced with the challenge of locally led experimentation, the Constitutional Court has linked the local electorate firmly to a nationally defined concept of the demos, thus ruling out sub-national attempts at reform. We will take each case in turn, beginning with Germany. Opinions have remained divided amongst commentators about the political significance of one of the causes célèbres of the constitutionally based distinction between Germans and aliens. These were the rulings handed down in 1990 by the German Federal Constitutional Court, annulling as unconstitutional two legislative 35  For more details see . 36  Povoledo, E., ‘Immigrants in Italy get unlikely aid on voting’, International Herald Tribune, 17 October 2003. 37  For details of further local initiatives on immigration in Italy see Campani (2007).

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schemes introduced at the level of the Land by the states of Hamburg and Schleswig-Holstein which would have given electoral rights in local municipalities to non-nationals who satisfied certain types of criteria regarding residence and attachment (Benhabib 2004; Rubio-Marín 2000; Joppke 1999a, 104-119; Neuman 1992; Béaud 1992).38 However, legally speaking, the significance is clear. The German Court relied upon a concept of popular sovereignty as the basis for political legitimacy, and linked this to a principle of a bounded Staatsvolk (or ‘state people’), limited by reference to the holding of national citizenship. It explicitly rejected the principle of affected interests as the basis for a claim to political equality and access to the franchise. The key section of the judgment reads: [the principle of popular sovereignty] in Article 20 (2) of the Basic Law does not mean that the decisions engaging state authority must be legitimated by those who are affected by them; rather state authority must be based on a people understood as a group of persons bound together as a unity.39

It also extended its conclusion about ‘state’ authority down to the level of local democracy, holding that municipalities, like the elected authorities at the state and federal level, wield state power. Not only did this rule out the Hamburg and SchleswigHolstein initiatives, but it also meant that the implementation of Article 19 EC Treaty subsequently required an amendment to Article 28 of the Basic Law. It confirms that any further steps towards political inclusion for non-nationals would likewise require constitutional amendments. While the possible question of enfranchising EU citizens to vote in Land or federal elections is not a live one in Germany at present, the question of enfranchising TCNs certainly is (Shaw 2007). In the shorter term, the Federal Constitutional Court pointed in the direction of the loosening of the rules on citizenship acquisition as the means of ensuring that in a more diverse Germany, with large numbers of persons not qualifying for German nationality under the historically restrictive conceptions which applied up to, and beyond, the date of reunification, pluralist political representation and voice is assured. This is what prompted Seyla Benhabib to understand the Court’s judgments as a ‘swan song to a vanishing ideology of nationhood’ (Benhabib 2004, 207), but equally as the trigger for a set of ‘democratic iterations’ involving other political and legal forces such as political parties, groups representing immigrants in Germany, and the legislative organs of the state which have resulted in changes to the rules on the acquisition of nationality which came into force in 2000. This perhaps understates the rather fraught nature of the domestic political debates about the amendments to the laws on citizenship and national citizenship acquisition, which resulted in a more limited compromise law being adopted. More recently still, 38 BVerfGE 63, 37 (Schleswig-Holstein); BVerfGE 63, 60 (Hamburg), 31 October 1990. In Schleswig-Holstein the rights would have been limited by a reciprocity clause. 39 BVerfGE 63, 37 at p. 50.

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in rules which came into force in 2005, Germany belatedly adopted something approximating to an ‘immigration law’ for the first time (Bast 2006, 3). Even that text has been highly contested, not least because of difficulties surrounding adoption. In sum, Germany’s ‘democratic iterations’ have been contested at every turn in relation to issues of citizenship and immigration. Against a policy and legislative background dominated by hostility to immigration and a strict definition of the conditions of access to nationality, it is hardly surprising that electoral rights for non-nationals, beyond the confines of EU law, have rarely been on the political agenda in Austria. According to an official of the Austrian Social Democratic Party (SPÖ) speaking in 2000: ‘Today there is simply not the political will to address the issue of voting rights at the national level’.40 Nominally, the SPÖ might be expected to be in favour of widening the suffrage, as is the case with many social democratic parties in the EU member states. Indeed, they admit that ‘Our theoretical goal is close to the Greens, but in practice in the world of politics it is necessary to make compromises’.41 As the same interviewee indicated, the fear of losing political capital has restricted debate: ‘Between 1989 and 1993, with over 120,000 immigrants in Vienna, no one within the SPÖ continued to talk about voting rights for third-country nationals’.42 Even so, the SPÖ in Vienna has been responsible for a more limited project to support the rights of TCNs, in the form of the so-called Integration Fund. This latter body developed a model for the city whereby immigrants could vote for a representative body which was then able to consult with the municipal council. The Steering Committee for the Fund was the Kuratorium, established by the City but since abolished as integration functions were mainstreamed into the City Council itself, as a specific responsibility of one unit within the city administration. It issued guidelines for the Integration Fund and determined its tasks and goals. It had 15 seats, of which three were reserved for migrants and NGOs. The Fund focused on a diversity approach, rather than on the management of minorities, and its principal work was in the areas of social work, youth programmes and language courses (Krahler and Sohler 2005, 21-27, 50-56; König and Perchinig 2003, 13). Matters changed somewhat in Vienna after the election of a new SPÖ Land and City Government in 2002, which formed an agreement with the Greens on a number of matters including a commitment to introduce electoral rights for TCNs (Perchinig 2005). This brought Renate Brauner, as the City Councillor responsible for integration matters, to centre stage. Brauner was an SPÖ member who had long campaigned on the issue of electoral rights, but who had previously been a more marginal figure until the coalition agreement with the Greens. An opinion poll 40  Interview with Robert Leingruber, International Secretary of the Austrian Social Democratic Party, Vienna, June 2000. 41  Franz Jerabek, Office of the Fund for Integration and assistant to SPÖ City Councilor and Member of the City Government, Renate Brauner, Vienna, June 2000. 42  For details of Austrian integration policy more generally see König and Perchinig (2003).

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amongst potential TCN voters conducted on behalf of Brauner and her colleagues indicated that 70 per cent of potential TCN voters said they would use the vote if granted it (Krahler and Sohler 2002, 52, referring to Jenny 2002). This suggested that the vote in municipal elections for TCNs could effectively be seen as part of a larger integration strategy, binding the non-nationals closer to the Austrian state and public authorities. Amendments were accordingly introduced to the relevant Viennese electoral laws to allow for voting by TCNs with five or more years of residence in the Bezirksvertretungen. These community councils are the level at which EU citizens also participate in municipal governance within Vienna, since the Viennese city council doubles as a Land parliament and thus is excluded from the scope of the Article 19 voting rights.43 Such councils below the level of the city do not exist elsewhere in Austria, and indeed they are not mentioned at any point in the Austrian Constitution. This raised the question of whether it was possible to permit TCNs to vote in these elections under Austrian constitutional law, since it is clear from the Constitution that voting for Gemeinderäte (the normal level of municipal councils) is reserved for Austrian citizens, with an exception being made for EU citizens pursuant to an amendment to implement the Treaty of Maastricht (Article 117).44 It is universally agreed, moreover, that voting in national and Land level elections is also reserved for citizens. In seeking to exploit this constitutional ‘space’ which it felt it had identified, the Viennese City Government found support for its approach from senior constitutional lawyers in Austria, including Professor Heinz Mayer of the University of Vienna (Mayer 2002). He argued that as the Viennese Bezirksvertretungen are regulated by law at the level of the Land rather than the federal state, and since they exercise no legislative competences, they should not be regarded as general representative bodies. As such they would not be subject to the constitutional principle of the ‘homogeneity of the franchise’, which restricts the right to vote in all elections to Austrian citizens. After the law was adopted in December 2002, it was subjected to a constitutional challenge before the Austrian Federal Constitutional Court by a number of members of the Christian Democratic (ÖVP) and Freedom (FPÖ) parties, who were sitting in opposition in the Viennese legislative body. The FPÖ, in particular, mounted a political campaign against the amendment, arguing that ‘a registration form (i.e. proof of residence) is too little’ for the right to vote, which should be reserved only for citizens.45 Its campaign included the use of posters displayed prominently in Vienna, emphasising that to be a true ‘Wiener’

43  Judgment of the Austrian Constitutional Court of 12 December 1997, B3113/96, B3760/96. 44  For brief notes on the application of Article 19 in Austria, see the regular national country reports for the EU Network of Experts on Fundamental Rights (CFR-CDR), most recently Nowak et al. (2005, 113). 45  See the brief report at . Photographic evidence also held on file by the author.

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or ‘Wienerin’, regardless of colour or ethnic background, an immigrant had to become an Austrian citizen. In the event, the Constitutional Court adopted a narrow interpretation of the constitutional possibilities under Austrian law, cutting off what had been put forward by proponents as a promising experiment to see whether TCN voting could contribute to the integration process in Austria (Nowak and Lubich 2005, 80). As a matter of constitutional text and interpretation,46 the Court had no difficulty in first confirming that the electorate for national elections to the lower house of parliament (the National Council or Nationalrat), for regional elections to the legislatures of the Länder [Landtag], and for local elections to the municipal councils [Gemeinderat] is restricted in principle to Austrian citizens alone, subject to the requirements of Article 19 EC Treaty which are referred to in Article 117 of the Constitution. However, this is not really an exception built into the Constitution as such, but rather a recognition of Austria’s internal national perspective on EC law, which is to recognise its supremacy vis-à-vis Austrian law, even the Austrian Constitution. It emphasised the principle of the ‘homogeneity of the franchise’ in this context, whereby each level of government should be voted for by an identically defined electorate. Drawing upon what might be described as the ethos of 19th century nationalism (Perchinig 2005, 10), the Court decreed that the rules on the franchise for the national, provincial and municipal levels of government are merely a specific example of the general principle stated in Article 1 of the Constitution whereby ‘Austria is a democratic Republic. Its law stems from the people’. This ‘people’ is the Austrian people, defined by citizenship.47 Recognising that Vienna’s Bezirksvertretungen are not regulated by the Constitution but by state law, the Court none the less found that they are general representative bodies, in the sense that they are established by law to deal with matters in the public interest, not in the interests of particular groups or professions, and fulfil a function as representative organs of a defined territorial entity. Consequently, the principle of the homogeneity of the franchise must apply to them, even though in reality the ‘people’ or Volk which can vote for the Bezirksvertretungen, like the Gemeinderäte in the rest of the country, is constituted by Austrian citizens plus resident EU citizens from other member states. Thus the Court gave no intrinsic weight to the re-definition of the ‘people’ in terms of the impact of EU law, other than to recognise the qualification mandated by Article 19 EC Treaty. It stated that the exception to Article 1 brought about in order to give effect to Austria’s membership of the EU, whereby the law stems not only from ‘the people’, but also from the ‘organs of the (European) Community’, was ‘irrelevant’ in this context.48 Consequently, the Court annulled as unconstitutional the amendments to the Viennese law on municipal elections which would

46  VfGH 30 June 2004, G218/03. 47  VfGH 30 June 2004, at p. 47. 48  VfGH 30 June 2004 at p. 48.

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have allowed TCNs with five years settled residence to vote in elections to the Bezirksvertretungen. What was notable about the judgment was both the choice to include the Bezirksvertretungen within the principle of the homogeneity of the franchise and the paucity of references to EU law generally (Nowak and Lubich 2005, 80). It simply dismisses the relevance of EU law to deciding the issue in relation to other groups of ‘non-people’. Perchinig (2005, 10) deplores the failure to refer to the development of concepts of citizenship in the EU context, including the notion that the rights and status of TCNs resident in the member states should be approximated as closely as possible to those of EU citizens resident in another Member State. In any event, the Court’s narrow conclusion on the reach of a nationality-defined concept of the ‘people’ as sovereign means that the Bezirksvertretungen elections cannot become a laboratory within which the city authorities in Vienna could experiment with different participatory mechanisms to promote the integration of non-nationals, in addition to naturalised citizens who are already included in the franchise. Indeed, naturalisation is the only route to political inclusion in Austria for TCNs, and unlike the German Constitutional Court, the Austrian Court made no reference to the political possibility of loosening of naturalisation requirements as an alternative. On the contrary, the conditions of citizenship acquisition in Austria have tended to become tougher in recent years (Çinar and Waldrauch 2006). Conclusions and A ssessment It will be evident from the discussion in this chapter that sub-national territorial units with autonomous or semi-autonomous powers and institutions of Government, such as Scotland, the German or Austrian Länder, not to mention municipal authorities in any of the member states, may seek to push the boundaries of the suffrage wider than they stand at national level for a variety of principled and instrumental reasons. In some cases, it may be because the party or parties controlling the relevant territorial unit differ sharply in ideology and approach to the national Government, and those parties are seeking to use the opportunity of legal reform at the local or regional level in order either to emphasise their local ‘difference’ or to try to push for reform at the national level by showing an example of good practice. A form of inter-governmental intra-state competition can consequently emerge, and in that context it may well be decisive how exactly powers are divided according to the relevant constitutional settlement regarding local selfgovernment or devolution, and which organ of the state has the decisive power to determine who decides. Competition between different levels of government has already been a characteristic feature of struggles over electoral rights for nonnationals in several states. It is equally clear that central resistance to subnational variation is strong, and that arguments rooted in the division of powers within a constitutionally guaranteed system are frequently brought forward to justify that resistance and have been – in the case of Germany and Austria – allied to

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constitutionally defined notions of the demos. Thus, while many examples of experimental strategies can be seen in the EU member states, none have in practice resulted in the type of sub-national variation readily seen – and constitutionally mandated – in the Swiss Confederation. On the other hand, at the level of the EU and the member states, variation is very evident, as the 27 member states have pursued very different pathways to accommodating TCNs and non-nationals within the political process. In terms of the different strategies followed by sub-national units of government seeking to contest restrictive definitions of the franchise at the national level, two distinct themes can be seen. Some sub-national regions may be consciously creating a space for migration within the polity, either by competing for greater numbers or specific types of migrants. This may or not be associated with reinforcing a distinctive territorial identity, particularly one which is articulated through an active diaspora engagement programme (for example Scotland). Alternatively, such a policy may be limited to articulating a specific conception of how migrants ‘fit’ within the sub-national territorial unit. This also offers a route to understanding the approach of a number of cities and municipalities referred to in this chapter, all of which have tried to implement a broader and more inclusive notion of the demos through the medium of local electoral rights attaching to residence rather than nationality. The second theme concerns the question of ‘best practice’ and the role of intrastate or intergovernmental competition within the state. In this context, the city or the region may lay claim to acting as a laboratory for integration, or it may be seeking specifically to influence the development of policy at the national level. However, we have seen how often such attempts may fall foul of notions of a common ‘national’ citizenship which has restricted all attempts in EU member states hitherto to develop local electoral rights for TCNs through local or regional level action. While it was never the objective of this chapter to make the case for regional differentiation in electoral rights for non-nationals, or to argue for a broader or narrower conception of the franchise more generally, some concluding comments on the normative framework within which sub-national variation could occur seem appropriate, by way of a final assessment. Reference was made at the outset to Brandeis’ notion of experimentation within federal frameworks, and indeed that spirit of experimentation could be said to be alive and well in the context of the patchwork of electoral rights for third-country nationals which exist under national law across the EU member states, especially when viewed against the backdrop of the EU’s expanding corpus of soft law measures seeking to encourage member states to adopt the more inclusive norm. But variation within polities, whether within the EU, the member states, or the third countries such as Switzerland, always comes at the price of uniformity, and can endanger other principles such as freedom of movement within the polity or the notion of a common citizenship bond. It might, thus, demand a rethinking of the normative basis for citizenship, other than on a traditional national basis. As to the issue of free movement, this

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was one reason given for pushing to have a single EU rule on electoral rights for EU citizens after the Treaty of Maastricht (Shaw 2007). As to the question of citizenship as a common bond, speaking in the US context about the increasingly sharp debate on immigration federalism, Su reminds us that: Federalism issues can often be construed as disputes over membership rules. As a result, resolution of these cases often depends on the extent to which national citizenship and the constitutional core of our ‘Union’ trumps the right of states to exist and operate as distinct political (if not social or cultural) communities of interest…Under a system of governance based on ‘we the people,’ it is difficult to imagine the existence of states as states apart from the membership that constitutes its communal and political existence (Su 2008, 20).

Such principles have undoubtedly contributed strongly to a situation in which there is a great deal more debate about subnational variation of electoral rights within certain polities than there has been – at least hitherto – formal legislative or constitutional action.

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Chapter 3

Passing Citizenship Tests as a Requirement for Naturalisation: A Comparative Perspective Gerard-René de Groot, Jan-Jaap Kuipers and Franziska Weber

When speaking about the integration of foreigners the emphasis is normally put on facilitating the integration of newcomers in the receiving country, on the integration process and integration policy. Attention also has to be given to socalled ‘integration requirements’, which in several countries have to be fulfilled by applicants for naturalisation, i.e. for the grant of the nationality of the receiving country and which in turn gives access to full citizenship rights. Many countries require that the applicant for naturalisation has to be integrated in order to qualify. This is the case in the Netherlands for example, where Article 8 of the Nationality Act stipulates that the applicant has to be ‘ingeburgerd’, which can be translated as ‘integrated’. Several other countries have a similar requirement, such as France and the UK. In the past Belgium also had this requirement, but it was abolished as a condition for naturalisation in March 2000. In 1984 a discussion took place in the Netherlands on how to interpret this condition of integration on the occasion of the preparation of a new Nationality Act. It was stressed several times and by several authors that this condition should not be misunderstood as ‘assimilation’ (De Groot 2003a, 271-76). This point was and still is important because some countries require a certain degree of assimilation for naturalisation. In France, for instance, an application for naturalisation can be rejected owing to a lack of assimilation. It is striking that an increase in requirements as to  A shorter version of this chapter has been published in de Groot (2006b).  The term ‘ingeburgerd’ is remarkable, because it includes the word ‘burger’, which means ‘citizen’. The word seems to suggest that the person involved already became a burger (citizen) (compare the German term ‘Einbürgerung’. However within the scope of Article 8 of the Nationality Act, ‘ingeburgerd’ has to be translated as ‘integrated’.   See Articles 21 (4), 21 (24) and 21 (25) of the code civil.   See Schedule 1 of the British Nationality Act of 1981, which entered into force on 1 January 1983.   See Articles 15 (2), 16 (2), 21 (2) of the (old) Belgian Nationality Act: ‘volonté d’intégration’.   Article 21-24 of the Code civil: ‘Nul ne peut être naturalisé s’il ne justifie de son assimilation à la communauté française, notamment par une connaissance suffisante, selon

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knowledge of the history and culture and loyalty to state’s values can be observed. Several countries (e.g. the ones we will elaborate upon) have recently introduced citizenship tests. What is the difference between integration and assimilation? Integration requires participation in the society. Isolation is not permitted. But being a part of a cultural minority is permitted. It is the process whereby migrants acquire full rights and can fully participate in a society without being forced to assimilate into the mainstream culture. On the other hand, assimilation requires sharing the values of the mainstream culture of a certain society. Of course, it is necessary to take into account that one has to study in detail whether an integration requirement in a certain state really only requests integration or secretly includes elements of assimilation. Finally, it depends completely on the kinds of questions posed during the assessment and the method of evaluating whether assimilation rather than integration is being actually required. We will come to an example of a borderline case when discussing recent developments in Germany. There are countries outside Europe in process of reviewing the conditions for acquiring their nationality by naturalisation. Without going into further detail a tendency of the citizenship test was introduced in October 2008 in the USA (Arnoldy 2006). Instead of focusing on historical facts as the previous one did its questions do now centre on ‘American ideals’. Emphasis is put on the meaning of democracy and its principles. Does this reflect a trend towards acculturation and assimilation, as some have argued (Etzioni 2007, 353)? A reason for this is said to be the rising anxiety among Americans regarding high levels of immigration and Europe’s troubles with large, unassimilated communities. It is our opinion that the basic question one has to ask is thus whether one wants to accept a pluralistic inclusion model leading to a multicultural society or not. T he A ssessment of Integration as a R equirement for N aturalisation In those countries where integration is a requirement for naturalisation an important issue is how to assess whether an applicant for naturalisation is ‘integrated’. In this

sa condition, de la langue française et des droits et devoirs conférés par la nationalité française’ (text as modified by Act No. 2003-1119 of 26 November 2003). Translated on Legifrance as ‘Nobody may be naturalised unless he proves his assimilation into the French community, and especially owing to a sufficient knowledge of the French language, according to his condition and of the rights and duties conferred by French nationality’ (refer to Carrera, Chapter 17 of this book).  The current set of questions of the test can be accessed at: accessed 14 June 2008.   US immigration support, , accessed 14 June 2008.

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regard, we focus on four main countries: Austria, Germany, the Netherlands and the UK. Austria According to § 10a of the Austrian Nationality Act [Staatsbürgerschaftsgesetz (StbG)] it is a precondition for the acquisition of Austrian nationality that the applicant for naturalisation demonstrates knowledge of the German language and a basic knowledge of the democratic legal order and the history of Austria and the respective federal state. To file an application for naturalisation is furthermore only possible if the candidate has been lawfully and continuously living in Austria for the last 10 years and has had a residence permit for at least five years. The precise conditions and the method of testing the knowledge of the applicant for naturalisation are laid down in a regulation.10 The 2005 reform of the StbG introduced a citizenship test [Staatsbürgerschaftsprüfung]. The test consists of three parts with six multiplechoice questions – i.e. 18 questions in total. Every multiple-choice question provides for at least three alternatives. The applicant is given two hours time to answer all the questions.11 The different federal states are empowered to organise the test according to § 10a (5) StbG. The test comprises three parts: in terms of content, the first part deals with ‘basic knowledge about the democratic order of the Austrian Republic’. It entails questions about the constitutional order of the Austrian Republic, government institutions and political system, fundamental rights, legal remedies and political participation, in particular the right to vote. The second part deals with basic knowledge in Austria’s history. It relates to the main lines of Austrian history since 996: for instance, emergence and conditions of dictatorships, totalitarian regimes, development and crises of Austria’s democracy, civil wars, the Nazi Time, the second Republic and European integration.12 While the first two parts are organised at a central level, and therefore, are uniform throughout the entire

  See §§ 10, 10a StbG; the‘Staatsbürgerschaftsgesetz’ is available at , accessed 12 June 2008. For a discussion about changes in the Act in the beginning of 2007, that are not relevant for the provisions discussed in this chapter see , accessed 14 June 2008. 10  See Bundesgesetzblatt für die Republik Österreich, Regulation 138: ‘Staatsbürgerschaftsprüfungs-Verordnung’ – StbP-V, Teil II, released 3 April 2006. Available at: , accessed 12 June 2008. 11  Cf. paragraphs. 3 and 4 of regulation 138. 12 The legal basis for the 1st and the 2nd part of the test is to be found in §10 (a) (6) StbG. Details as regards the content are laid down in Annex A of regulation 138.

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country, the third part of the test varies in that it concerns basic knowledge about the region in which the applicants lives.13 An applicant for naturalisation passes the test if he answers at least half of the questions in each individual part correctly or at least two-thirds of the entire test.14 If the applicant fails, he may take the test again.15 As regards the preparation for the test, the Austrian Government envisaged the following procedure. The study material concerning the first two parts of the test is offered by the Austrian Government in a special brochure [Lernunterlage]. The brochure consists of 53 pages and can be downloaded from the internet free of charge.16 With regard to the third part of test, each region has published materials that the applicant for naturalisation is required to study, equally available on the internet.17 In the brochures the applicant will find 1-2 pages of information about a topic, followed by possible exam questions. The exam questions are selected among them. It is on purpose the applicant is not provided with the answer options. While the information given is quite detailed, it is acknowledged that only basic knowledge is required.18 We shall see whether this is true when examining the nature of the questions. As regards the first two parts of the test, the regulation provides some its features: on the one hand it is focused on Austria (the Second Republic, its political system, external policy and possibilities of political involvement); on the other, it covers an overview of European integration. Most important aspects in that regard are Austria’s EU membership and fundamental values of a European democratic state and society. As regards the content of the first two parts, several remarks can be made. Apart from general questions on Austria’s political systems and history, current political events are also included such as ‘What is the name of the current Chancellor?’ The latter is considered to be a useful guidance to provide some information about the

13 The legal basis is to be found in § 10 (a) (7) StbG. Each federal state passes a regulation that lays down the precise contents of this sub-part. 14  Cf. § 5 (2) of regulation 138. 15  Cf. § 6 of regulation 138. 16  See ‘Überblick über die demokratische Ordnung und Geschichte Österreichs’, Skriptum zur Vorbereitung für die Prüfung gemäß § 10a StGB 1985, last updated July 2007, available at: , accessed 12 June 2008. 17  Most of brochures for the different regions can be downloaded at: , accessed 14 June 2008. The brochure of Styria can be found at: , accessed 16 June 2008 and for the brochure of Vienna, available at: , accessed 16 June 2008. 18  See regulation 138; furthermore the content of the test ‘hat sich inhaltlich und methodisch-didaktisch am Lehrplan der 4. Klasse Hauptschule für den Unterrichtsgegensta nd‚Geschichte und Sozialkunde’ zu orientieren’.

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election system in Austria. Another example is the way in which a sample ballot is printed in the brochure.19 A rather useless section of the test seems to be the one that informs the applicant about the different requirements for naturalisation.20 At the stage when the applicant undertakes the test, s/he presumably already fulfils all the preconditions. Very detailed information is provided concerning the protection of fundamental rights.21 There is a reference to the European Convention on Human Rights (ECHR), with an explanation to its ranking in national law. Other international treaties guaranteeing the protection of fundamental rights are also mentioned. Among the possible questions that can be addressed in this section the following can be highlighted: ‘When was the ECHR given constitutional value in Austria?’ or ‘Who is bound by the prohibition of discrimination?’. The term ‘supremacy’ of EC law is also introduced and the status of the Charter of Fundamental Rights in EU law is additionally illustrated. Apart from easy questions regarding EU member states, a more difficult task is to ‘Name one of the four fundamental freedoms of the European Union’! Such a strong focus on the EU can be welcomed in the light of ongoing European integration processes. The information given is however very detailed. The level of the questions chosen is however comparably low. In this section it becomes particularly clear that ‘new Austrians’ might be ‘the betterinformed Austrians’ after passing this test, as many ordinary citizens might face difficulties at times of being informed about EU law-related matters. Studies have revealed that one third of Austrians would have problems in passing the test.22 A last aspect that deserves to be mentioned is a detailed section of the test regarding the role of women in the society.23 Topics such as forced marriages or honour killings are addressed. It is stressed that traditions and customs cannot provide a justification for these crimes. This section hints at cultural differences that can create problems. As we will see when studying Germany, this is a comparably light form of addressing these cultural tensions. In the light of the above, it can be said that while the information that is provided to the applicants is quite detailed, the questions generally demand only a basic level of knowledge. The degree of difficulty however also depends on other alternative answers that are given. The possible answers are not officially published. It is however remarkable that a candidate with some IT skills could easily retrieve them from the internet.24 19  See ‘Überblick über die demokratische Ordnung und Geschichte Österreichs’, p. 10. 20  Ibid., p. 12. 21  Ibid., pp. 28-36. 22  See ‘Schock-Ergebnis: 1/3 der Österreicher hätten Probleme den Einbürgerungstests zu bestehen!’, news. Available from , accessed 14 June 2008. 23  See ‘Überblick über die demokratische Ordnung und Geschichte Österreichs’, p. 34. 24  See for example , accessed 13 December 2008.

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As regards the third part of the test, the level of difficulty and quality vary across the federal states. The required fee is set by the individual states and thus varies too.25 Generally any applicant will equally need to memorise facts laid down in the different study guides. In Carinthia, Salzburg, Vienna, Upper Austria and Styria all the possible answers are provided in the preparatory materials in addition to the set of questions. Main topics include, for instance, the history of the federal state and the political system. In Vienna the sights of the region also play an important role. Questions about ‘useless facts’ are also included, such as ‘Which was the first subway in Austria?’. In other cases interesting features of Vienna are stressed, such as the different international organisations that have their seat there. The test for Burgenland also provides questions related to outstanding personalities (Franz Liszt, Joseph Haydn, etc). Carinthia refers to delicacies of the region. Other rather astonishing questions are: ‘Where does archduchess Maria Theresia live during the summer?’,26 ‘How is Vienna supplied with water?’,27 or ‘Where in Graz is the baby drop box?’.28 Lower Austria presents a whole section about transport.29 Sample questions are ‘With which train would you go from St. Pölten to Vienna?’, ‘Which train would you have to take to go from Vienna to Viennese Neustadt?, ‘Which motorway connects the West Motorway (A1) with the South Motorway (A2)?’ or ‘How are the busses called that go from the eastern and northern districts to St. Pölten?’ And last but not least: ‘From which neighbouring country have the people from Vorarlberg copied the famous card-game “Janssen”’?.30 Looking at the answer options provided in the federal states one has to admit that they are quite fair.31 When examining the different brochures used by the federal states one can conclude that there will not be hardly any unexpected questions. In those where all the possible answers are publicly available, there is – if one has studied carefully – hardly any risk of failing the test. The required level of German proficiency is tested separately from the knowledge of Austrian society. The language test can be taken at any institution that meets certain quality standards and has been approved by the Austrian Government.32 25  Information obtained from the Bundesministerium für Inneres, 16 June 2008. 26  Cf. Lernunterlage provided by Vienna, p. 15. 27  Cf. Lernunterlage provided by Vienna, p. 19. 28  See Brochure of Styria: , accessed 16 June 2008. 29  Cf. Lernunterlage provided by Lower Austria, p. 20. 30  Cf. Question 41 in Vorarlberg’s Lernunterlage. 31  For an example we would like to refer you to Salzburg’s catalogue of questions: e.g. No. 18: ‘How many inhabitants does the federal state Salzburg have?’ a) ca. 100,000, b) ca. 525,000 or c) ca. 800,000; No. 1: Which people reigned in Salzburg 2000 years ago for about 500 years? a) the Romans b) the Spanish or c) the French? 32  See Bundesgesetzblatt für die Republik Österreich, Jahrgang 2005, regulation 449, Intergrationsvereinbarung – Verordnung IV-V, released 27 December 2005, Par. 1’, available at: , accessed 14 June 2008.

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The applicant for naturalisation should have a level of German corresponding to at least ‘A2’ of the Common European Framework of Reference (CEFR). This means that the applicant for naturalisation has the ability to ‘understand phrases and the highest frequency vocabulary related to areas of most immediate personal relevance, can read very short, simple texts, can communicate in simple and routine tasks and can write short, simple notes and messages relating to matters in areas of immediate need’.33 Native speakers or those who fulfilled module 2 of the integration agreement [Integrationsvereinbarung], a tool in Austria’s general immigration policy,34 are exempt from the language test. This agreement was introduced in the beginning of 2003 and makes languages courses for immigrants obligatory unless they declare that within a twenty-four months period their residence will not exceed twelve months.35 The non-fulfilment of the integration agreement can have severe consequences.36 Germany Naturalisation in Germany is subject to certain conditions that are laid down in the German Nationality Act [Staatsangehörigkeitsgesetz (StAG)] in § 10-12b. One of the requirements is that the applicant needs to prove her/his loyalty to the liberal and democratic order and the knowledge about the legal and social order (e.g. the living conditions in Germany). A new test will was introduced on 1 September 2008 dealing with the latter requirement.37

33  For more information about the CEFR for Languages, see , accessed 14 June 2008. 34  § 14 (5) 2-5 and 7 of the Settlement and Residence Act (‘Niederlassungs und Aufenthaltsgesetz’ – hereinafter NAG). This applies also if the candidate according to the NAG does not have to undertake the test. According § 14 (2) (2) and § 16 (2) the module 2 aims at achieving the required level of A2. 35  § 14-17 of the NAG. 36  See ‘Comparative study of the laws in the 27 EU member states for legal immigration – Including an assessment of the conditions and formalities imposed by each member state for newcomers’, DG Internal Policies of the Union, February 2008, PE 393-281, p. 140; The consequences for the lack of fulfilment of this obligation can be administrative punishment (§ 77(1) NAG), financial disadvantages (§ 15 NAG) or, as a means of last resort, expulsion (§ 54 (4) of the Alien Policy Act). 37 Details as regards the test and preparatory courses can be found in the ‘Einbürgerungsverordnung’, Bundesgesetzblatt Jahrgang 2008 Teil I Nr. 35, released 8 August 2008, which is available at: , accessed 25 September 2008.

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The Federal Ministry of Interior published the list of possible exam questions on 7 July 2008.38 33 questions of the exam will be chosen out of total range of 310 questions. The list consists of 300 general questions and 10 that vary from one federal state to another in what concerns the answer options. Each test presents 30 questions of the first category and three of the second one, and it takes a multiplechoice format. For each question four answers are provided. 17 questions have to be answered correctly within 60 minutes in order to pass the test. The questions and the answers can be downloaded free of charge from the internet.39 Furthermore there is a test exam available online.40 One can even find a document containing the questions downloadable in the form of file cards where the correct answers are provided at the end.41 During the preparation of this list more than 1,000 possible questions were developed and tested.42 The questions and optional preparatory courses focus on ‘life in a democracy’, which deals with aspects related to democracy, fundamental rights, conflict resolution in democratic societies, rule of law, welfare state, responsibility of the single for the common welfare, participation in political matters, equality of men and women and national symbols. These topics find their basis in the curriculum used in the current integration courses offered to immigrants.43 The questions have been criticized for being too difficult and it has been alleged that some of techniques being used are often misleading.44 However a majority of the first candidates that undertook the test were confident that they had successfully passed it.45 A pioneer of this approach has been the policy implemented in BadenWürttemberg. Since 1 January 2006 a so-called Gesinnungstest [Loyalty test] has been in use at times of assessing the applicants’ loyalty to the Constitution 38  , accessed 25 September 2008. 39  , accessed 25 September 2008. 40  , accessed 25 September 2008. 41  See the webpage by ‘Landeszentrale für politische Bildung Baden-Württemberg’ (LpB): , accessed 25 September 2008. 42  See ‘Deutschlandkunde –Test für Einwanderer’, FAZ, 11 June 2008; the ’Institut zur Qualitätsabwicklung im Bildungswesen (IQB)’ is to present the final catalogue soon. 43 BAMF: Das Integrationsportal: , accessed 14 June 2008. 44  See ‘Das Kreuz mit den Fragen’, Focus, 1 September 2008: and ’SPD beklagt eklatante Mängel’, Focus, 1 September 2008: , accessed 25 September 2008. 45  See about a test in Ludwigshafen, Rheinland-Pfalz: , accessed 25 September 2008.

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according to § 10 (1) No. 1 StAG. The test is conducted in the form of a personal interview during which a civil servant makes notes on a separate sheet about the reliability of the answers. Questions about history or politics are completely lacking. Only the candidates’ attitude is assessed. The introduction of this test has led to a large public debate. A contested matter was the original intention to apply the test only to those applicants for naturalisation coming from 57, mainly Islamic, countries.46 The test has been therefore often referred to as the ‘Muslim tests’ (see Corbette 2006). At the end this announcement was revoked.47 It was publicly declared that the test was going to apply to all immigration applicants on the same basis. More generally, there were also criticisms during the starting phase of the implementation of test concerning its constitutionality. These doubts even led for instance to the city of Heidelberg not to apply the test.48 In light of the criticisms and concerns expressed, the interview guide was amended in July 2007.49 10 questions of the old text were changed by new questions concerning, as a way of illustration, the support of anti-constitutional or extremist organisations. The questions that were deleted covered, for example, homosexuality or questions addressing the way in which the applicant would react if her/his son/daughter would come home saying that s/he had been insulted. Examples of questions that were kept included: ‘Is it right that women obey their husbands, and for men to beat their wives when they are disobedient?’; ‘Would you have problems to accept a woman as a person of authority?’; ‘Which jobs should be reserved for men?’; ‘What is your view on honour killings and forced marriages?’. Looking at the selection of questions that remained after the 2007 amendment it is rather obvious that they still cover exactly the kind of topics and stereotypes related to specific cultural and religious issues that have traditionally caused numerous tensions between Germans and the large Muslim immigrant population 46  Innenministerium Baden-Württemberg, ‚Oettinger und Rech halten an Gesprächsleitfaden für Einbürgerungsbehörden fest’, 10 January 2006, , accessed 14 June 2008. 47  Cf. Schreiben des Innenministeriums of 17 January 2006, Az.: 5-1012.4/12. 48  Stadt Heidelberg, ’Stadt Heidelberg wird Gesprächsleitfaden des Innenministeriums zur Einbürgerung nicht anwenden’, 19 January 2006, , accessed 14 June 2008. As regards the old version of the interview guide, several advisory opinions have been published concerning its constitutionality: Cf. (Wolfrum and Röben 2006); (Grössner 2006); Remark: Grössner does not take the latest statement of the Ministry of Interior of Baden-Württemberg into consideration according to which the test is addressed at everybody and not just Muslims. It is furthermore interesting to see (Grell 2006). Grell is the former COE of the Ministry of the Interior in Baden-Württemberg. He defends his policy in a very populist manner. 49  Innenministerium Baden-Württemberg: ‘Überarbeiteter Gesprächsleitfaden für die Einbürgerungsbehörden’, 18 July 2007: , accessed 14 June 2008.

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in the country. Therefore even though the test officially applies to everyone, it becomes clear that Muslims remain the target group. Doubts have been expressed as to whether the test is in line with the German Constitution and whether it does not go beyond the provisions stipulated in § 10 StAG. If that would be indeed the case, those rejections of applications for naturalisation on the basis of the answers given to the test would be void. Also the Ministry of the Interior in BadenWürttemberg even confirmed that no one could predict what at court judgement would like at times of assessing the original version of the test.50 Still, the current version of the test still raises many doubts as regards its compatibility with the principle of equality, the freedom of religion and freedom of expression. The very goal of aiming to find out in a personal interview someone’s ‘Gesinnung’ can be questioned. Questions such as the one asking the applicant whether s/he is a terrorist are rather inappropriate. In any case, no terrorist will indeed admit that s/he is indeed a terrorist. They will be in particular the ones that would perhaps hide in a very clever manner their true intentions.51 The deterrent effect of this sort of practice is clear. Contrary to the general trend in Germany, only in Baden-Württemberg did the number of naturalisations decrease between 2005 and 2006 (Thränhardt 2008, 25). For the first time the Federal State has the lowest rate among the older federal states in the country.52 Statistics dating from January 2006 until July 2006 show that interviews have been conducted in 20 per cent of the cases (1,048 cases). Only in rare occasions the interview led to a denial of the naturalisation. Hesse followed with another proposal for introducing a test in March 2006. This time however the test was intended to deal only with ‘knowledge and values’. First the Minister of the Interior, Volker Bouffier, announced that Hesse would follow the example of Baden-Württemberg. Later on he corrected himself and said that the test would apply to every applicant, leaving aside controversial questions (Haushalt 2006). A collection of 100 questions was published in this context. Some of the questions are also clearly targeted at Muslim applicants and the ways in which they are formulated are similar to those of the test in Baden-Württemberg. In particular, under title III of the test we find the following question: ‘Shall a woman be permitted to be alone in public or to go on holiday on her own – what is your opinion about that?’; ‘Who can apply for divorce?’; ‘How can you react if

50  Cited in Prantl (2006), ‘Alle Muslime sind verdächtig’, SZ, 9 January 2006 , as of 14 June 2008. 51  Cf. ‘Loyalty Test in Law and Political Culture’ – Muslim Lawyer Net: , as of 14 June 2008. 52 Remark: the new states have lower rates because the duration of residence of their immigrants is frequently shorter. The former states of the German Democratic Republic (GDR) are Mecklenburg, Brandenburg, Saxony-Anhalt, Thuringia and Saxony.

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someone hurts your feelings as to your religion?’;53 ‘How can you influence your children’s choice of the partner?’ and ‘How can you educate your children?’. Apart from these questions, the test also deals with knowledge about Germany’s history. Another section of test covers some key facts in relation to the EU. This proposal was subject to discussions centred on the high level of general knowledge that was required (Artz and Geyer 2006, 1108). As an example of that we can highlight the following question: ‘Which landscape in Rügen has Caspar David Friedrich painted in one of his most famous paintings?’. Several ordinary school classes have tried to answer the questions provided by the test and the results were as surprising as those obtained in Austria. A lot of Germans would have to be denaturalised if this was the required standard of knowledge.54 This proposal has never entered into force because the discussion had already reached the central level. In particular, the test practiced in Baden-Württemberg is driven by a strong focus on assimilation. This approach contradicts the official goal purported by the German immigration policy – i.e. integration.55 Also it contradicts the liberal and democratic principles that are strongly upheld in Germany (Ekardt and Radtke 2007, 30). Therefore, at times of debating about the countrywide test it was said that after the initial mistakes shown in the cases of the tests in Baden-Württemberg and Hesse it was clear how the tests should not look like (John 2006, 302). Further, it was revealed in the news that questions about the applicants’ attitude or sexual orientation, for example as regards homosexuality, are not asked in the countrywide test.56 The questions here are rather focused on testing ‘knowledge’, arguably on a very high level, and cultural differences are only reflected in some optional answers.57 The general normative framework is developed on the central state level in order to guarantee a uniform procedure and to prevent people from moving to a different federal state in the hope of finding less strict conditions.58 BadenWürttemberg recently announced that it will introduce the test but also keep its

53 The last question could be found in the old version in Baden-Württemberg in the same wording. 54  See Lehrer-online‚ Einbürgerungstests in Deutschland’, 9 May 2006 , as of 14 June 2008. 55  Cf. Ch. 3 Immigration Act: Title Integration. 56  ‘Deutschlandkunde – Test für Einwanderer’, FAZ, 11 June 2008. 57 An example would be question No. 250 ‘What are the rights of parents in Germany?’. An optional answer is the following: ‘They may marry their children’ [Eltern verheiraten ihre Kinder]. 58  BMI‚ ‘Vorläufige Anwendungshinweise des Bundesministeriums des Innern vom 19 October 2007 zum Staatsangehörigkeitsgesetz in der Fassung des Gesetzes zur Umsetzung aufenthalts - und asylrechtlicher Richtlinien der Europäischen Union vom 19 August 2007 (BGBl. I S. 1970)’, p. 36.

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own procedure for the assessment of a candidate’s loyalty.59 The general way to demonstrate a positive attitude to the Constitution is by signing a declaration of loyalty.60 However in cases of doubt interviews can be additionally conducted. The Government does currently not give any guidance in this regard. Even if the knowledge test is being standardised in the whole country, in order to prevent federal states from creating higher barriers by adopting stricter guidelines concerning loyalty tests, general guidelines for interviews in ‘cases of doubt’ should be also adopted on a central level. It is however doubtful the extent to which it would be at all possible to provide harmonised guidelines that would be lacking any glimpse of discrimination in these cases. The fee that applies to undertake the test amounts to €25.61 According to § 38 StAG the general fee for naturalisation is €255. The candidate can take the test as often as s/he wishes. The applicant can prepare for the test in the context of a course or individually.62 The course amounts to 60 units (45 minutes each). It is the competence of the federal states to organise these courses. It is mandatory for every federal state to make them available. In Berlin, for example, the course is offered by the Volkshochschule (VHS).63 The trial course costs €30, however the fee will increase to €100. There was a delay in the publication of the questions, something which led to difficulties in the timely preparation of the courses.64 Even though some of the questions have been criticised, the first experiences in the application of the test have been generally positive.65 Germany seems to have learnt its lessons from the developments in Baden-Württemberg and Hesse. The envisaged course will be similar to the integration courses that have been offered during the last several years to immigrants applying for a residence permit in Germany: they consist of a language and a civic course. For newcomers coming 59  Cf. Contact via email with the Ministry of the Interior, Baden-Württemberg, 21 March 2008. 60  Sitzung der Ständigen Konferenz der Innenminister und – senatoren der Länder: ‘Beschlussniederschrift 180. Sitzung der Ständigen Konferenz der Innenminister und – senatoren der Länder’, 4th/5th May 2006, Garmisch-Partenkirchen, p. 17. 61  § 2 Einbürgerungsverordnung. 62  See also § 10 (5) (1) No. 7 StAG. 63  ‘Vorbereitung auf Test zur Einbürgerung Erste Prüfungen aber erst ab Mitte September’, Tagesspiegel, 2 September 2008: , accessed 25 September 2008; the fees differ: in Bonn, for example, a candidate has to pay €147,10, see , accessed September 2008. 64  ‘Einbürgerungstest: viele Fragen offen’, WDR, 2 July 2008: and ‘33 Mal Deutschland’, Süddeutsche Zeitung, 26 May 2008: http://www.sueddeutsche.de/deutschland/ artikel/29/176495/, accessed 25 September 2008. 65 As regards the test in Ludwigshafen refer to Rheinland-Pfalz: , accessed 25 September 2008.

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from outside the EU, and especially for third-country nationals family members, attendance to the integration course can be made compulsory.66 The new courses in the context of naturalisation will go more in depth. It can nevertheless be assumed that any immigrant who has already done the integration course would not need the extra course to prepare for the citizenship test. As regards language, the applicant for naturalisation has to demonstrate ‘sufficient’ oral and written skills of German language. According to § 10 IV, the threshold is B1 of the CEFR. The ‘sufficient’ nature of the skills can be demonstrated in different ways, such as for instance through the participation of the applicant in a language course when applying for a residence permit as stipulated in § 43 IV Immigration Act.67 The language requirements are different for spouses that want to enter the country for the first time.68 As from January 2008 they will have to prove basic knowledge of the German language (‘A1’) even before arriving to the country.69 The test (‘Start Deutsch 1’) has to be undertaken at the Goethe-Institut or in a cooperating institution. If this is not available in the third country from where the spouse applies for family reunion, an interview in the embassy will be conducted. There are various ways to prepare the test. In addition to the language classes provided by the Goethe Institute, there are language courses broadcasted by the Deutsche Welle, internet websites to learn German and even German vocabulary downloads for mobile phones (Michalowski 2009).70 The Netherlands Until 2003 the assessment of the degree of integration of an applicant for naturalisation occurred in rather informal manner at the municipal level in the Netherlands. An applicant had an interview with a civil servant of the municipality of his/her place of residence. The civil servant evaluated whether the integration condition was fulfilled. A consequence of this informal approach was that the level of integration required for naturalisation differed considerably from place to place across the country (Heijs 1988). The level of integration that was required depended very much on the subjective criteria considered to be important by each civil servant. A common joke was that in some conservative areas of the country

66  Cf. § 44a AufenthG (Residence Act). 67  BMI, ‘Vorläufige Anwendungshinweise des Bundesministeriums des Innern vom 19. Oktober 2007 zum Staatsangehörigkeitsgesetz in der Fassung des Gesetzes zur Umsetzung aufenthalts- und asylrechtlicher Richtlinien der Europäischen Union vom 19 August 2007 (BGBl. I S. 1970)’, p. 17. 68 E.g. § 9a (2) (3) AufenhG. 69  See § 28 (1) (5) and § 30 (1) (1) No. 2 and the exceptions in § 30 (1) (2) and (3) AufenthG and § 41 of the Residence Regulation [Aufenthaltsverordnung]. 70  See BAMF, ‘Nachweise einfacher Deutschkenntnisse beim Ehegattennachzug aus dem Ausland’ , accessed 14 June 2008.

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one could be asked to sing the national anthem, whereas in Amsterdam it would have been enough if the applicant would managed to discover the room inside the town hall where the interview would take place. In light of this it is not surprising that a decision was taken to unify the nature of the assessment of integration. Since 1 April 2003 applicants needed to pass two integration tests: One test assessing the person’s command of the Dutch language, and another evaluating the individuals’ knowledge of society in the Netherlands and its constitutional order [staatsinrichting]. As such, the harmonisation of the evaluation of the degree of integration was very welcome. However, its positive implications depended at the end on the actual testing methods and the sort of questions that needed to be answered. Both tests were undertaken electronically through the use of a computer. Elementary IT skills were therefore added as an implicit third requirement for the applicant for naturalisation in the Netherlands. In the language test, oral and written, passive and active command of the Dutch language was tested. The language test (3 hours and 105 questions/tasks) was divided into four parts: listening comprehension (40 minutes for 25 questions whereby the candidate should at least answer 15 questions correctly); speaking (20 minutes for 20 tasks, the candidate could obtain a maximum of 39 points and should have obtained at least 20 points); reading (60 minutes for 25 questions, out of which at least 14 needed to be answered correctly); and writing (60 minutes for 20 tasks, at least 13 had to be answered correctly).71 The level of the language test corresponded to the A2 level of the CEFR. The candidate was first required to pass the language test before s/he was allowed to participate in the ‘Life in the Netherlands Test’ [Samenlevingstoets].72 The samenlevingstoets test took 60 minutes and consisted of 40 questions. The applicant passed the samenlevingstoets if s/he answered 28 questions correctly. The language test applying to the naturalisation procedure has to be distinguished from the test that an applicant for a residence permit is required to pass at a Dutch embassy in her/his country of origin, i.e. the Basisexamen Inburgering [Civic Integration Examination (Abroad)] (refer to Besselink, Chapter 13 of this book). The questions that used to compose the test for knowledge of society and the constitutional order of the Netherlands focused intensively on national issues. The applicant was confronted with questions such as how much money one is allowed to receive per month tax-free for working as a volunteer.73 Another question was even more striking. The computer produced a sound like ‘bananas, bananas for 71 This information was derived from ‘De naturalisatietoets: op weg naar het Nederlanderschap’ published by the Ministerie van Justitie, Immigratie en Naturalisatie Dienst, November 2004. 72  Zie de folder van de Immigratie- en Naturalisatiedienst, De Naturalisatietoets, , as of 14 June 2008. 73 This information was provided by Mr H.A. Wolf, leader of the integration test project of the Immigration and Naturalisation Department during an oral presentation given in spring 2003. See also (Wolf 2003, 124-25).

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sale’, followed by a multiple choice question: ‘Where are you? 1) in a supermarket, 2) at the market place, or 3) in a flower shop’. These kinds of questions are very unsatisfactory indeed. They have nothing to do with showing any basic knowledge considered to be necessary for living in the Netherlands, nor do they relate to any of the basic values reflected in the constitutional order of the country. In our view, they should not be part of a test examining the integration of a person in the Netherlands. It has to be stressed that these tests applied to applicants for naturalisation already living inside the Netherlands, but also to applicants who were living abroad (e.g. spouses of Dutch nationals living abroad with their Dutch husband or wife) (de Groot 2005b). It is our view that it will be extremely difficult to acquire the required level of knowledge for those applicants having their residence abroad. The Immigration and Naturalisation Office (IND) published in 2004 an evaluation of the integration tests in the context of naturalisation. The results were the following: A total of 55 per cent of the candidates passed all parts of the test in the first attempt. After one or multiple re-examinations the score increased up to 70 per cent. Among all applications for naturalisation 85 per cent received some sort of exemption (for example by means of showing a degree demonstrating that they have a sufficient command of the Dutch language). Another 3 per cent were exempt to pass the test for instance due to physical incapacity.74 Thus only 12 per cent of all applicants for naturalisation were actually required to take the full test.75 On 1 January 2007 the Law on Integration [Wet Inburgering] came into force and replaced the naturalisation test with the Civic Integration Examination [Inburgeringstoets]. The aim of the new legislation was not to change the level of difficulty of the test but rather its format. Although the Civic Integration Exam within the framework of the Wet Inburgering has in principle no direct consequences for the Dutch nationality, the test constitutes de facto and de iure a precondition for acquiring Dutch nationality. Applicants for naturalisation who have successfully completed the Civic Integration Examination are exempt from passing again another integration test in the framework of the naturalisation procedure.76 Those applicants who are exempt in the Wet Inburgering, for example nationals from other EU member states,77 are required to pass the integration test if they wish to acquire Dutch nationality. That test is identical to the Civic Integration

74 The grounds for exemptions are provided in Article 3 Besluit Naturalisatietoets and the grounds for discharge are foreseen in Article 4. 75  INDIAC, ‘Evaluatie naar de uitvoering en effect van de invoering van de Naturalisatietoets, Onderzoek naar uitvoering en effect van de invoering van de Naturalisatietoets’ (2004), , accessed 12 June 2008. The statistics cover the period April 2003December 2004. 76 Article 3 (1) (h) Besluit Naturalisatietoets. 77 Article 5 (2) (a) Wet Inburgering.

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Examination.78 The Civic Integration Examination within the framework of the Wet Inburgering can therefore be regarded together with the test as a precondition for acquiring Dutch nationality. The Civic Integration Examination consists of a central and a decentralised part. An applicant for naturalisation living outside the Netherlands has to pass the central part of the examination at the Dutch embassy abroad, while the decentralised part of the test is always conducted once being inside the Netherlands.79 An immigrant who is manifestly well-integrated into Dutch society has the possibility to do Korte Vrijstellingstoets, a shorter version of the Inburgeringstoets. The level of command of the Dutch language is not A2, but it has been raised to the B1 level. The costs of the test are €81.80 The central part of the test consists of an examination on the ‘Knowledge of Dutch Society’, which comprises a ‘Digital Practical Test’ and a ‘Spoken Dutch Test’. The former two involve the use of a computer. The Knowledge of the Dutch Society Test seeks to assess whether the candidate is familiar with the ways in which the Dutch society appears to operate. Most of the tests take around 45 minutes and contain 43 questions, out of which the applicant has to answer at least 62 per cent correctly. The Digital Practical Test takes 60 minutes and contains 43 questions (sometimes even less in number). Every candidate is required to pass the first part of the test. As regards the second part, candidates may choose between either the ‘labour’ or the ‘education, health and raising children’ profile. The candidate should at least answer 73 per cent of the questions correctly. The Spoken Dutch Test is a telephone test where the candidate is required to repeat sentences, answer questions and give brief account of stories. It takes about 15 minutes and contains 48 tasks. The candidate can obtain a score between 10 and 80 points and passes the test if s/he has obtained at least 37 points.81 We regret the lack of uniformity in the number of questions composing the central part of the exam as it might lead to inequalities. If a candidate should obtain a score of 73 per cent in the Digital Practical Test, s/he has to answer correctly at least 31 questions out of 43. When the exam only contains 42 questions the candidate still has to answer 31 questions correctly. The mere reason that the exam

78 Article 2 (1) Regeling Naturalisatietoets Nederland. ‘De naturalisatietoets, genoemd in artikel 2, tweede lid, van het besluit is het inburgeringsexamen, bedoeld in artikel 13, eerste lid, van de Wet inburgering met dien verstande dat de in artikel 2, derde lid van het besluit genoemde taalvaardigheden op niveau A2 van het Europees Raamwerk voor Moderne Vreemde Talen zijn behaald’. 79  IND Brochure ‘Hoe kunt u Nederlander worden in het buitenland?’ (January 2007), available from , accessed 13 June 2008. 80  See , accessed 12 June 2008. 81  See , accessed 12 June 2008.

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is one question shorter means that s/he can only make 11 mistakes. This situation, in our view, is far from being fair. The decentralised part tests whether the applicant for naturalisation has a sufficient command of Dutch language. The required level remains unchanged, i.e. A2 on the CEFR. The applicant for naturalisation shall pass the test by completing six different assessments simulating various situations in the Dutch society. Alternatively, the applicant can gather 12 pieces of evidence relating to Citizenship, for example: whether s/he has the ability to apply for a renewal of a driver licence; six pieces of evidence related to searching for a job, such as the ability to fill in a job application form; and 12 pieces of evidence relating either to work (the capacity to call yourself in sick) or to education, health (for example whether one can have a basic conversation with a doctor) and raising children. All the pieces of evidences will be gathered in a portfolio, which will be then discussed with the applicant for naturalisation in a 30 minutes personal interview. A combination of three assessments and 15 pieces of evidence is also possible.82 The Dutch Government has published only four sample questions on the internet. One of the questions concerns an image of a man being pulled over by the police. The text under the image says: Mo has been speeding. He’s fined. He has to pay a traffic ticket. Where does Mo have to pay the traffic ticket? A. Mo pays his ticket at the city hall; B. Mo pays his ticket at the police station or Mo pays his ticket by a check that will be mailed to him.

This question is already an improvement in comparison to ‘the banana question’ mentioned above. It is regrettable however that a list of sample questions has not been made publicly available. It is therefore extremely hard to assess the quality of the new Civic Integration Examination and to answer the question whether the Dutch Government has drawn lessons from the criticism that the old test had received (Van Oers 2006; refer also to Van Oers Chapter 6 of this collective volume). Without analysing the precise content of the Civic Integration Examination we already have difficulties to the category ‘finding employment’ in the decentralised part of the test. We find it quite suggestive, especially since the central part of the test already contains a section related to work. It is quite paradoxical that the group of lower educated immigrants with limited resources will have the highest probability to refrain from naturalisation because of the Civic Integration Examination’s requirement to show their ‘ability to find a job’ (Van Oers 2007), something which will not be the case for those falling within the category of highly educated immigrants, who generally will have less difficulties in showing evidence of having found an employment. The story goes that the Salomon Kalou, a football player from Ivory Coast seeking to 82  Immigratie en Naturalisatiedienst Brochure ‘Inburgeringsexamen: voorwaarde voor naturalisatie’ (October 2007), available from , as of 13 June 2008.

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acquire Dutch nationality, failed the old version of the integration test because he did not know how to apply for social security. The absence of an indicative list of questions makes it harder for the candidates to prepare themselves for the exam. It is in this respect important to stress that an integration course is in this case not compulsory. It is very difficult for an applicant for naturalisation to assess in advance whether s/he already possesses the required level of knowledge or whether it would be advisable to follow an integration course. The official reason that has been given is that the Civic Integration Examination not only aims at testing the applicant’s knowledge of Dutch society, but also its ‘attitude towards integration’. You cannot memorise that ‘attitude’ (Groenendijk 2005b). Nevertheless, the Dutch Government has made available a set of practical materials that can be bought in bookstores in the Netherlands and on the internet for €63.90. The set contains a DVD or video, a booklet with pictures from the film and three practice Dutch language exams. The Civic Integration Examination costs a total of €230 – if the candidates pass the test within three years after having obtained a residence permit they are entitled to a reimbursement of at least €650. Candidates will receive a refund of 70 per cent of fees for the Civic Integration Examination and integration courses. The refund is thus at least €650, but will never exceed €3,000.83 It is therefore perfectly possible that the refund exceeds the actual costs that have been incurred by the candidate. One of the conditions is that the candidate is ‘inburgeringsplichtig’, that means under the legal obligation to integrate. The inburgeringsplicht only arises within the context of the Wet Inburgering. It is thus for those applicants for naturalisation who have been exempt from the Civic Integration Examination within the framework of the Wet Inburgering.84 United Kingdom The Nationality, Immigration and Asylum Act of 2002 incorporated provisions into the British Nationality Act requiring those aged between 18 and 65 seeking naturalisation in the UK to demonstrate that they have a sufficient understanding of English (or Welsh or Scottish Gaelic) and a sufficient knowledge of life in the UK Ryan, Chapter 15 of this book). These provisions entered into force on 1 November 2005. The test is also compulsory for immigrants applying for indefinite leave to remain (settlement). Whereas the latter category contains a list of exemptions,85 the ‘Life in the UK’ test is also compulsory for EU and EEA nationals applying for naturalisation. 83 Article 4 (17) Besluit Inburgering. 84 Article 18 Wet Inburgering. 85  The only categories of persons exempt are those who have a significant physical or mental health condition. This condition must prevent studying for or taking the test, or from studying for an ESOL qualification. Source: , accessed 12 June 2007.

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Regarding the command of English for speakers of other languages (ESOL), the level of entry 3 or above is required. ESOL entry 3 implies ‘the ability to hold a conversation on an unexpected topic, which is workable, though not perfect, English’.86 The main goal of the test is however not to assess the level of command of the English language but rather the knowledge of the candidate about the British society. The test on Life in the UK consists of 24 multiple choice questions.87 In order to enable applicants to prepare for the test, the UK Home Office has published a book titled Life in the United Kingdom: A Journey to Citizenship, which costs £9.99.88 In April 2007 a revised edition of the book was published. The first edition was subject to criticism because it contained numerous factual inaccuracies. For example, the European Economic Community was said to be established by five countries: the Benelux countries, France and Germany (Italy was omitted!). A candidate only has to know in detail the chapters dealing with ‘A changing society’, ‘UK Today: A Profile’, ‘How the United Kingdom is governed’, ‘Everyday Needs’ and ‘Employment’. All together these chapters make up 57 pages. Before the revisions carried out in April 2007 candidates were only requested to study 32 pages of the book. The test takes about 45 minutes, but it may be extended in case of medical necessity. The applicant passes the test if s/he answers correctly at least 75 per cent of the questions. If the applicant fails, s/he may take another exam after a seven-day waiting period. Four types of questions are posed: first, multiple choice questions where the candidate has to select the correct answer; second, true/ false questions; third, multiple choice questions where the applicant has to select several correct answers; and finally, questions where the applicant has to select the correct statement. The test takes fully place on a computer, but only requires elementary IT skills. Applicants may familiarise themselves, free of charge, with a computer before taking the test. The kinds of questions used in the ‘Life in the UK’ test are also published on the internet on a ‘Life in the UK’ website.89 Some questions are slightly strange and require that one has studied the book in detail. For example, one of the questions being posed is the number of young people in the UK.90 The question is obviously related to the information provided in page 45 of the book, where it is mentioned that within the UK there are 15 million children and young persons up to the age 86  Home Office for England and Wales (2005), Life in the United Kingdom: A journey to citizenship (Norwich: HM Stationery Office for Books). 87  Further information is available online (retrieved from ). 88 The book is also available from , accessed 14 June 2008. 89 The website for the ‘Life in the UK’ test is , accessed 14 June 2008. 90  Ibid.

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of 19. But why does the book mention the number of young persons up to the age of 19, when the age of majority is 18? Another question concerns where the Geordie, Cockney and Scouse dialects are spoken. The answer can be found in page 52 of the book. Geordie is spoken in Tyneside, Cockney in London and Scouse in Liverpool. The relevance of these questions is dubious. Is it really necessary to know these answers if one want to live as a British citizen in the UK? The question about the percentage of Jewish population in the UK is also really surprising. ‘Is this either 0.8 per cent, 0.7 per cent, 0.6 per cent or 0.5 per cent?’. It is absolutely plausible that any immigrant can survive and participate as a citizen in the UK while believing that the percentage of the UK population being Jewish is 0.6 per cent, instead of the correct answer: i.e. 0.5 per cent. Some other questions to be highlighted are for example: ‘What are the minimum ages for buying alcohol and tobacco?’91or ‘What drugs are illegal?’.92 Other questions are just remarkable:93 ‘What are the rules and powers of the main institutions of Europe?’,94 or ‘How is EU law organised?’.95 As such, one has to welcome questions that do not focus exclusively on the UK alone but also on the EU. Yet some of these questions are rather vague and not easy even for experts in EU law. As the question concerning the percentage of Jewish in the UK population underlines, everything depends on the precise structure of the multiple choice alternatives during the test.96 Some Critical Remarks It is striking that all four countries under investigation are controlling the command of their own languages. This is rather surprising in the context of an integration condition for naturalisation. If a third-country national acquires the nationality of an EU member state, s/he is entitled immediately upon naturalisation to move and settle in another member state of the Union, even if s/he does not speak a single word of the official language of that other member state. In light of this situation the question must unavoidably be raised as to whether it should be possible in certain circumstances to substitute a deficient knowledge of the language of the country of residence with knowledge of the language of another EU member state. This is a sensitive but essential question indeed. If one wants to control the command of 91  Home Office for England and Wales (2005), Life in the United Kingdom: A journey to citizenship (Norwich: HM Stationery Office for Books), p. 46. 92  Ibid., p. 47. 93  See ‘Life in the UK’ test, available from . 94  Ibid., pp. 70-71. 95  Ibid., p. 71. 96  Ibid. The website only provides an indication of the topics on which questions will be raised during the exam. It does not provide precise samples.

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language as a manifestation of integration, then integration in multilingual Europe should be assessed and the naturalisation authorities should no longer completely and exclusively focus on the language proficiency by the applicant of the country of residence (De Groot 2004). A similar remark can be put forward in respect of the test on the knowledge of the society. The questions in some of the countries that we have examined above focus mainly on knowledge of the life in the country where the person involved applied for naturalisation. That is regrettable. It would be much better if the questions were to focus on integration in European society as a whole – on the basic values and norms of Europe, its democratic tradition and human rights. Positive examples are the citizenship test in Austria which gives quite detailed information about the EU and expressly states that one focus should be ‘on fundamental values of a European democratic state and its society of which Austria is an example’.97 Also in the UK there is a section about Europe. In Germany it is also probable that there will be one because among the questions proposed by Hesse several relate to Europe. Comparative Observations Available information on the content of the tests/materials  In the Netherlands the information available about the content of the tests is extremely poor: questions are mostly kept confidential. There are no specific preparation courses for the tests part of the naturalisation procedure. Of course, there are courses for the integration tests for newcomers, but not all newcomers are obliged to follow them.98 For the naturalisation tests detailed information is also lacking and no specific preparation is being offered. This is in our opinion not acceptable. The Netherlands does in this respect considerably worse than Austria, Germany and the UK in terms of making available information. As has been mentioned, Austria publishes online Lernunterlagen that applicants can download freely from the web. In Germany something similar has been envisaged. In the UK a book has been published, which one should study as preparation for the questions in the ‘Life in the UK’ test.99 Furthermore, the UK Home Office’s website indicates the topics of the questions.

97  See Regulation 138, p. 3: ‘Darüber hinaus sollte der Staatsbürgerschaftswerber einen Überblick über die Europäische Integration, insbesondere über die Mitgliedschaft Österreichs in der Europäischen Union, und die Grundwerte eines europäischen demokratischen Staates und seiner Gesellschaft erhalten’. 98 This is particularly problematic for those applicants of naturalisation who reside abroad, e.g. the foreign spouses of Dutch nationals. 99  In this respect the UK follows the examples of Canada and the US. See (with further references) and (with further references), accessed 25 September, 2008.

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There is a trend towards the publication of information by official websites. As such, we welcome the fact that this information is made free of charge and easily accessible to the general public. One has however to realise that not all applicants for naturalisation possess the elementary IT skills required to have access the website and find the necessary information. The website of the ‘Life in the UK’ test provides all necessary information to the applicant for naturalisation and provides for a helpline in a range of languages (e.g. Arab, French, Polish and Somali). The situation in the Netherlands is slightly more complicated due to the existence of two tests. The tests are explained at different websites and might lead to confusion for potential applicants, especially for those who do not master the Dutch language very well. To make matters worse, the information concerning the Civic Integration Exam is spread over multiple websites. As the authors of this chapter experienced during their research, it is far from easy to obtain any additional information. In Germany all sample questions and answers, as well as a test example, can be accessed via a webpage of the Federal Ministry of the Interior.100 Detailed information in English can be found on the homepage of the Federal Office for Migration and Refugees.101 The Nationality Act can be accessed in English.102 The questions are only available in German. Information can also be found in the web pages of the different Ministries of Interior of the federal states.103 In Austria the situation is rather similar. The brochures for the country and for the different federal states (with the exception of Vienna and Styria) are collected in one webpage of the Ministry of the Interior.104 Furthermore, each federal state provides the material in its own website. While some of the web pages are translated into English, the brochures themselves are only available in German. The Residence and Settlement Act in Austria can be accessed in English.105 Language requirements  The national language proficiency needs to be considered 100  See , accessed of 25 September 2008. 101  See