The Value of ‘Integration’ in European Law—The Implications of the Förster Case on Legal Assessment of Integration Conditions for Third‐Country Nationals

• DOI: http://doi.org/10.1111/j.1468-0386.2011.00543.x
• Date: 01 March 2011
• Published date: 01 March 2011

eulj_543172..189

The Value of ‘Integration’ in European

Law—The Implications of the Förster Case

on Legal Assessment of Integration

Conditions for Third-Country Nationals

Moritz Jesse*

Abstract: The European Court of Justice’s Förster judgment can lead to a reduction of

legal uncertainty caused by integration requirements for third-country nationals. The

judgment has created a strong ‘assumption of integration’ after f‌ive years of legal resi-

dence because it equalised integration requirements for European students to access the

welfare system of host Member States with a requirement of f‌ive years legal residence.

Almost all pieces of European legal migration law also contain f‌ive-year residence require-

ments after which the status of third-country nationals improves. However, these improve-

ments are mostly subjected to the fulf‌ilment of additional integration requirements. To

keep coherence with European law, courts will not be able to disregard the Förster

‘assumption of integration’ when assessing the legality of integration conditions for third-

country nationals put in place in addition to residence requirements.

I Different Notions of ‘Integration’ for Two Groups of Migrants in EU Law

The integration of non-nationals legally residing on the territory of the Member States

of the EU is a subject of debates, policies and legislation. One has to distinguish two

groups of non-nationals in EC law. There are, f‌irst, European citizens holding the

nationality of another Member State.1Second, there are third-country nationals who

hold the nationality of a non-Member State. For both groups, two ‘competing frames

of integration’ have been installed.2The f‌irst group can rely directly on primary and

secondary EU law to claim equal treatment and non-discrimination when residing

legally in another Member State. Integration of EU citizens is facilitated by the

* Dr. of Laws (European University Institute); Universitair Docent at the Europa Instituut, Universiteit

Leiden. The author would like to thank Prof Marie-Ange Moreau and the anonymous referee for their

helpful comments. The usual disclaimer applies.

1Arts 17, 18 and 19 TEC; now Arts 20, 21 and 22 TFEU.

2D. Kostakopolou, S. Carrera and M. Jesse, ‘Doing and Deserving: Competing Frames of Integration in

the EU’, in E. Guild (ed), Illiberal Liberal States—Immigration, Citizenship and Integration in the EU

(Ashgate, 2009), 167, at 167–169.

European Law Journal, Vol. 17, No. 2, March 2011, pp. 172–189.

© 2011 Blackwell Publishing Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

availability of equal rights and there are no ‘integration conditions’. Third-country

nationals have no such privileged position in Community law. European law only has

fragmented secondary legislation in place providing for legal statuses and procedures

available through national migration law for certain groups of third-country nationals.

Said legislation allows for the introduction of ‘integration conditions’ in national law.

These conditions def‌ine conduct, such as participation in a language or civic orienta-

tion courses and/or exams, which have to be fulf‌illed before a legal status can be

obtained and rights are granted. In other words, rights, which are the corner-stone for

integration of EU citizens, are often subjected to formal ‘integration’ conditions for

third-country nationals.3

Even though these two systems could not be more different regarding their very

approach to integration, this article argues that the case-law of the European Court of

Justice (ECJ or the Court) interpreting legislation for these separate groups, while

touching the issue of ‘integration’, can be applied in a mutually reinforcing way with

positive effects for third-country nationals. The very test whether ‘a certain degree of

integration’, to borrow this term from the ECJ, is reached for European citizens has,

arguably, become formal and is nowadays no more than a strict residence requirement.4

Such interpretation of integration creates a ‘legal assumption of integration’, which

function as a tool to protect effet utile of European migration law from the application

of disproportionate integration conditions for third-country nationals, in addition to

strict residence requirements.

The article f‌irst investigates the legal value of ‘integration’ for European citizens, in

particular for economically non-active European students seeking social benef‌its in

the host Member State. In this part of the article it is argued that the Court moved

on from Grzelczyk and Bidar.InFörster, it accepted the Dutch approximation of

‘integration’ with f‌ive years of legal residence and implicitly created a legal assump-

tion of integration after f‌ive years of legal residence. ‘Actual’ integration into the host

society (before) has accordingly become legally insignif‌icant. The second part will

turn to the legal value of integration for third-country nationals. Integration condi-

tions have a different def‌inition and value for third-country nationals and are every-

thing but similar to f‌ive years of legal residence, even though almost all pieces of

European legal migration legislation also contain f‌ive-year residence requirements to

be eligible for better, more secure legal statuses for third-country nationals. The

ECJ’s interpretation of such integration conditions and their limitation by the prin-

ciples of effet utile and proportionality will also be introduced here. In the f‌inal part,

the two notions of ‘integration’ and the corresponding interpretation by the ECJ will

be juxtaposed. It is concluded that the formal notion of ‘integration’ and the assump-

tion of integration after f‌ive years of legal residence arising from Förster, together

with the Court’s interpretation of limits of integration conditions for third-country

nationals, might have unforeseen positive effects. Any legal assessment of restrictive

national integration conditions limiting the attainment of residence titles for third-

country nationals cannot disregard the assumption of integration after f‌ive years of

legal residence in Förster.

3ibid.

4Case C-158/07, Jaqueline Förster v Hoofddirectie van de Informatie Beheer Groep, judgment of the Court

(Grand Chamber) of 18 November 2008, not yet reported.

March 2011 The Value of ‘Integration’ in European Law

173

© 2011 Blackwell Publishing Ltd.