This Expert Opinion argues that the question whether Article 34 of the QD precludes a Dutch law implementing ‘the obligation to pass the integration exam successfully within a period of three years, under pain of a fine’ needs to be answered in the positive.

At the outset, Article 34 of the QD contains a strict positive obligation and an unconditional right to access integration facilities. The responsibility lies on the State which should take effective and legitimate measures to facilitate integration of refugees. While Member Sates enjoy a margin of discretion when complying with that obligation, that margin is narrow particularly because most Member States did not implement such an obligation but only an obligation to participate in the integration courses, a practice which is in line with the Proposal for the Qualification Regulation aiming to further harmonise national integration practices.

Crucially, the obligation under study falls outside the scope of the narrow margin of discretion Member States have. Firstly, the title of Article 34 QD (access to integration facilities) reflects that this provision is primarily concerned with facilitating and promoting integration rather than compulsory integration exams. In addition, as reflected in the travaux preparatoires of Article 34 of the Refugee Convention and UNHCR documents, such an obligation is not a suitable tool to facilitate integration. Hence, it is not a ‘legitimate’ measure as it contravenes the effet utile of Article 34 QD. Moreover, the fact that the QD does not explicitly grant Member States the choice to require compliance with integration requirements leads to the conclusion that the obligation to successfully pass the exam falls outside the scope of that Directive.

This conclusion is supported by the fact that the EU legislator explicitly included such an option in the Long-Term Residents Directive and the Family Reunification Directive. Instead of granting Member States that option, Article 34 of the QD and Article 38 of the Qualification Regulation contain an unconditional right to access integration measures connected to the positive obligation of Member States to facilitate integration through ensuring access to integration programmes. In the LTRD and the FRD, we do not find such an unconditional right, but rather a possibility to impose an obligation to successfully pass the integration exam. Significantly, these two Directives differ from the Qualification Directive in a fundamental respect: The Qualification Directive explicitly refers to the Refugee Convention, while those two Directives do not. It is, therefore, doubtful whether the approach taken by the two Directives and the related CJEU’s acceptance of the obligation to pass the exam is permissible in the case of refugees.

Additionally, the time frame of three years, within which refugees should succeed the integration exam, moves the Dutch obligation away from the narrow margin of discretion that States have, as that period fails to take the specific needs of refugees into account. First, it is inconsistent with the fact that refugees in the Netherlands would have to submit evidence of having passed the integration exam after a period of 5 years when they apply for stronger residence rights. A logical approach would be to grant them a period of 5 years to integrate, and if they fail, a suitable ‘sanction’ would be refusal of stronger residence rights rather than fines. Moreover, since the period of 3 years is also applicable to other migrants, this similar treatment demonstrates that the specific needs of refugees are not sufficiently taken into account. Furthermore, this ‘equal’ treatment between refugees and other migrants contradicts one of the aims of the Qualification Directive, namely: increasing the level of protection of refugees as well as the more favourable conditions in the case of refugees in EU law more generally.

Furthermore, since the Netherlands opted for the period of 3 years to ‘accelerate’ integration, the aim of the period of 3 years is primarily ’acceleration’ and not ‘facilitation’ of integration as meant in Article 34 QD. While accelerating the process bears the potential of facilitating integration, it also inhabits the risk of rendering it ineffective when the acceleration instrument is not suitable to facilitate integration. This is precisely the case as force and coercion were rejected by the Contracting States during the travaux préparatoires of the Refugee Convention. Crucially, there are suitable alternatives to accelerate refugee integration such as offering basic integration courses shortly after the submission of an asylum application combined with the acceleration of access to labour market for asylum seekers.

The Opinion of Advocate General Medina (June 2024) is available here.

See also the short note on the AG Opinion written by Kavya Nagpal, former MLC student, who contributed to the drafting of the MLC Expert Opinion.