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

AuthorMoritz Jesse
DOIhttp://doi.org/10.1111/j.1468-0386.2011.00543.x
Date01 March 2011
Published date01 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.

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