woensdag 21 augustus 2013

Inburgering, or civic integration

My apologies for the long hiatus since I started this blog... but in the last two years of running my practice I have been able to make an even better determination of which areas of Dutch immigration law are the most misunderstood and need the most explanation.

So my first entry after my return to this blog is the one I spend the most time explaining. Technically, it has only indirectly to do with immigration-- it is the area of the notorious inburgeringsplicht or obligation of civic integration. "Civic integration", by the way, is a rather wooden translation of "inburgering", even if it's more or less accurate. In Dutch, the deeper meaning is closer to the surface. Burger is the word for "citizen". In-burger-en is thus a quite punchy verb (using a construction similar to e.g. inwerken, or "being shown the ropes at a new job") meaning something like "to get started being a citizen". Sounds promising, doesn't it?

Yet even for those who have a native grasp of the term, the term is rather Orwellian. Because everyone knows, just as Winston Smith knew that there wasn't much love waiting for him in the Ministry of Love, that if you are subjected to the inburgerings-requirement, it is because you will never really be seen as a true citizen of the Netherlands and therefore measures must be taken to deal with you.

That said, I would like to discourage the typical expat attitude that it's no use learning Dutch since you'll never be treated like a full part of society anyway. It is well worth it to learn Dutch, and well worth it to drink deep, not just stop at the quite minimal required level for satisfying the inburgerings-requirement. Surprising native Dutch people with your command of Dutch, especially if they don't expect it of you, can be a great source of joy and harmless daily revenge on the ubiquitous forces of monoculturalism. (I personally drew a great deal of inspiration from the experiences of Jack Seward, a fluent Japanese speaker living in Japan in the 1960s and the author of Japanese in Action. Seward was constantly flummoxing Japanese people who simply could not process that he, a white American, actually spoke Japanese. He developed a method of "overloading the idiot valve" on Japanese people's typical reaction of responding to him in English: coming back with a question that revealed some ridiculous level of expertise on his part on a Japanese subject that even most Japanese people didn't fully understand. I was able to draw on this tactic as of about my second or third year of studying Dutch law, when I could hold forth in fluent Dutch on subjects like the Pacification of 1917 and what it meant for the Dutch Constitution up to this day. Never mind that I still struggled with things like how to ask somebody to pass the salt at the dinner table...)

Before I go into the legal aspects of inburgering, I would like to point out two hypocrisies inherent in the entire idea of it. One hypocrisy will become apparent to you if you are an immigrant from a wealthy Western country outside the EU (and especially if you are white): in your social interactions with native Dutch people, you will constantly be bombarded with the message that it is absolutely ridiculous that anyone should require you to learn to speak Dutch. "Dat slaat helemaal nergens op!" Here's the funny part: you will especially hear this from the very same native Dutch people who tend to complain the loudest about "immigrants" and how they should adapt to Dutch culture or go back to their home countries. This contradiction is easily resolved by the conclusion that actually, the inburgerings-requirement is not there to make (better) citizens of immigrants, but really just to discourage immigrants from coming in the first place (or staying). Especially to discourage the most unwanted immigrants--and I will leave it up to your imagination as to who those are or what they look like for most native Dutch people. The politicians in government have always managed to keep their lips pretty well zipped about this being the real purpose of the inburgerings-requirement, although I do seem to recall a minister reporting to Parliament with some pride, after the basisinburgering in het buitenland requirement had been in effect for a year, that the number of applications for visas to join a partner or spouse in the Netherlands had considerably dropped.

The second hypocrisy is something of a corollary to the first. And that is: there are no bonus points for being extremely well ingeburgerd. Rather: there are only penalties for not being ingeburgerd. I have had numerous foreign clients who already speak excellent Dutch for one reason or another, and for all effects and purposes would make exemplary citizens of the Netherlands, but who somehow do not qualify for a legal immigration status, perhaps because their partner does not make enough money. I then get the question from the partner: "but she/he's perfectly ingeburgerd? Doesn't that count for anything?"  Nope, I have to answer. The Netherlands just doesn't want that person to be here.

OK, so now on to the four areas of the law in which there is an inburgerings-requirement. These are:
I. basisinburgering in het buitenland: the requirement to take a basic Dutch exam at a Dutch embassy or consulate for the purpose of getting a visa to settle in the Netherlands;
II. inburgering as a municipal requirement, where you can be fined for non-compliance
and, closely related to this:
III. inburgering as a contractual requirement because you committed to taking classes.
IV. inburgering as a requirement of Dutch immigration or nationality law in order to "graduate" to an independent residence status or to Dutch citizenship after a certain number of years.

I would also like to make the general point that wherever the law is concerned with inburgering, the satisfaction of the requirement is almost always what we lawyers call a "result" obligation, not an "effort" obligation. In other words, to put it into concrete terms: the inburgerings-requirement is always completely satisfied by passing a state exam (aside from the basic requirement in section 'I' below, which is taken at an embassy or consulate; for II, III and IV, at the lowest level it's the inburgeringsexamen, which has an A2 level of Dutch and the notorious questions on Dutch culture and society; or otherwise, if you want to exclusively be tested on your Dutch, then the State Exam of Dutch as a Foreign Language or Staatsexamen Nederlands als Tweede Taal, abbreviated "NT2", where the "2" stands for "Second" and not for the level-- there are two levels which equally satisfy the requirement, NT2-I which is B1 and NT2-II which is B2/C1).

[Additionally, almost needless to say, if you have completed any formal educational program at a Dutch educational institution for a curriculum which was overwhelmingly in Dutch, then the resulting secondary school, vocational school or university diploma also satisfies the inburgerings-requirement.]

You are not actually required to go to classes! This is a point I make again and again. Adults cannot be forced to go to school, because in human rights terms, compulsory education is a form of detention that is only permissible for children. Keep this in mind. The actual legal requirement is just that you pass an exam. How you prepare for it is up to you. Nor is there any prerequisite requirement for registering for and taking any of the exams above. It's not like the driver's exam in the Netherlands, where you have to be admitted to the exam by a driving school first. You don't have to get the go-ahead from any kind of school or teacher to be able to register for the exam. Nor-- even though the inburgerings-requirement is intimately related to immigration law-- does anyone care what your immigration status is for you to register for it and take it. The test is not administered by the IND, but by DUO, an arm of the education ministry. All this is is a state exam that objectively tests you on your Dutch and possibly on Dutch culture and society-- even a Dutch citizen can register for one of these exams if they really want to!

By the same token, you do have to be objectively tested in order for it to satisfy the requirement, meaning the test has to have been taken in a state testing center and you have to have been issued a watermarked diploma for passing it. It's not enough that you took some kind of unofficial test in the context of a class you are taking and that the teacher gave you a certificate for that. (That used to be the case in Dutch inburgerings-law, and if you did that before a certain year and also had the certificate checked and confirmed by city hall then, then you are considered to have satisfied the requirement under the old law.)

Now for the specific legal requirements:

I. basisinburgering in het buitenland: the requirement to take a basic Dutch exam at a Dutch embassy or consulate for the purpose of getting a visa to settle in the Netherlands

All purposes of stay in Dutch immigration law are divided into two categories based on whether or not an immigrant staying for that purpose has an inburgerings-requirement or not. Your purpose of stay is considered either "temporary" or "non-temporary" for the purpose of inburgering. Essentially, the only purpose of stay that is considered to be "non-temporary" for those applying for a preliminary visa (or "MVV") is family reunification, i.e., in most cases, coming to the Netherlands to join a spouse or partner. Almost all other purposes of stay, especially purposes of stay related to work, study, or exchange programs, are considered to be "temporary", and you are not required to pass the basic inburgeringstoets (which requires A1-level Dutch) at a Dutch embassy or consulate before you can apply for an MVV.  (Note: persons coming for family reunification to join a spouse or partner who is not an EU citizen who is already in the Netherlands for a "temporary" purpose are also considered to be "temporary", and do not have to take the basic exam either to get their MVV.)

This is the area in which the first hypocrisy mentioned above is most clearly supported by the law. There is a short list of six "rich Western countries" whose citizens are not required to obtain an MVV before moving to the Netherlands to apply for a residence permit: Australia, Canada, New Zealand, the United States, Japan and South Korea. Thus, persons of any of these nationalities, if they are moving to the Netherlands to be with their Dutch partner or spouse, are not required to take the basic inburgeringstoets. There is something a bit odd about this effective exemption, when one thinks about it. Implicitly, it seems to say that if you come from a highly developed liberal democracy, you can already be considered to be integrated enough in Dutch society to get a start here. So following that logic, it seems that the Dutch language or familiarity with Dutch culture and society are not as important as they are made out to be, right? Are the important values being more interested in individualism and shopping than in family and religion? Being proficient in English? (Although this excludes quite a few Japanese and Koreans...) Adherence to 'Western' values (which again, Japanese and Korean immigrants might actually dispute)? I'm just saying.

However, in the long run, even these privileged persons, if they have a residence permit for the purpose of family reunification, will be confronted with...

II. inburgering as a municipal requirement, where you can be fined for non-compliance

Based on the Act on Integration (Wet inburgering), all immigrants over 16 and under 67 who have a "non-temporary" purpose of stay on their residence permits (so in addition to family reunification, that also includes immigrants with permanent residence permits [however, if you have a so-called "long-term resident of the EU" permit with the words langdurig ingezetene-EG on it, I currently have a case pending at the European Court of Justice as to whether you can be subjected to the integration requirement]) will, at some point in time, get a letter from the city hall of the municipality where they live, inviting them to come in for a so-called profieltoets and intake interview. During this interview, the starting Dutch level of the immigrant will be assessed. Not long afterwards, the immigrant will receive an official letter notifying her or him that she or he has a period of three years from the time they got their residence permit to satisfy the requirement, i.e. to pass the test. If the requirement has not been satisfied by then, and no extension can be granted due to extenuating circumstances, then the immigrant will be fined: up to €1250.

It used to be that that was the worst that could happen. I would tell my clients to ignore ignorant city civil servants who didn't understand the law and who said apocalyptic things like "if you don't learn Dutch, the IND will take away your residence permit!"

However, on 1 January 2013 a new possibility was introduced into the main immigration law (the Vreemdelingenwet) to make it possible that if the inburgerings-requirement is not satisfied within the required period, the immigrant's residence permit will not be renewed by the IND. I say "possibility", because at the same time, the regulation implementing the law says that renewal will not be denied if denying renewal would constitute a violation of Art. 8 of the European Convention on Human Rights (the right to family life). And if you have a residence permit for the purpose of family reunification and you are still together with your spouse or partner, then denying you renewal would be a violation of that right in just about any case. So the introduction of this possibility in the law is a case of what Dutch lawmakers love to make: symboolwetgeving or "symbolic legislation". Making a law that sounds tough, but is practically unenforceable. And I can tell you that all of the immigration lawyers in the Netherlands are sharpening their knives for the day that the government actually does try to deny someone renewal for this reason, because it will almost certainly be struck down by the courts.

Going back to the interview at city hall-- after your Dutch level is assessed, you will often be offered classes at your level. Now the practice related to this is in flux, since as of 1 January 2013, you will no longer get an offer that includes funding these classes for you (since the government has now cut off the funding of them). But be informed before you accept any offer of classes or sign anything, because otherwise you can be confronted with....

III. inburgering as a contractual requirement because you committed to taking classes

 What happens all too often is that civil servants at city hall (again, who don't always understand the law themselves), threaten or cajole immigrants into accepting the classes that are offered to them, often because they make the immigrants believe that the requirement consists of actually taking these classes (which, as we saw above, is not true). They then lay a "participation contract" (of course, in Dutch) on the table in front of the immigrant and pressure them to sign. If you sign this contract, then you are in fact creating an obligation for yourself to go to classes, where previously you had none! I have seen it happen too many times where people did not know what they were signing, started going to the classes but then dropped out because the quality of the classes was poor or because they didn't have time to go-- and then found themselves on the hook for breach of contract, with the municipality coming after them for a fine that they had agreed to pay if they didn't complete the course.

So-- don't sign anything during this interview. Say you need to go home and think about it. And make sure a Dutch speaker reads the contract for you. And remember: you are not required to take any classes. You are completely free to tell city hall that you have decided to learn Dutch through self-study or from a private tutor. Your only requirement is to pass that exam within three years.

Finally, after some time in the Netherlands...

IV. inburgering as a requirement of Dutch immigration or nationality law in order to "graduate" to an independent immigration status or Dutch citizenship

This is the one that nobody gets out of if they want to stay in the Netherlands permanently and unconditionally. In other words: if you want to get a permanent residence permit, a residence permit for continued stay after your relationship has ended with your spouse or partner, or if you want to become a Dutch citizen, then you have to submit a diploma proving that you passed one of the exams to satisfy the requirement.

Now if you were already staying for a "non-temporary" purpose, you were already made well aware that you had to pass that exam, and you may have actually already done it-- so when the time rolls around that you become eligible for a permanent residence permit or to apply for naturalization, you've already taken care of it. (To answer another common question: if the inburgerings-requirement is satisfied for requirement II, III, or IV above, it's satisfied for all of them. It's not the case that you have to, say, pass an even more complicated exam to get naturalized.)

This section is more relevant to the people who were already staying for a "temporary" purpose, usually work, who are suddenly confronted with the fact that they have to learn Dutch and pass an exam if they want to get a permanent residence permit. "But I thought I was exempted from that requirement!" some of them protest. You are, I respond, as long as you stay with your current "temporary" immigration status, with all of the uncertainty of being dependent on an employer that that involves. But as soon as you want to voluntarily "graduate" to the next level, you have to bite the bullet.

The most interesting protest that I heard once from an expat, i.e. a work-related immigrant, was: "But I wasn't allowed to inburger!" which revealed clearly just how incredibly confusing this entire requirement is and how many people misunderstand that it's not about actually taking the classes or getting offered funding to take them. That was a key inspiration for me to write this entry.