Integration as Exclusion: The Keren Case Revisited

 

Dr Sarah Ganty, LL.M. (Yale), Ph.D. (ULB); J.S.D. candidate, Yale Law School; F.N.R.S. Postdoctoral Fellow, UCLouvain; Research Visitor, Bonavero Institute of Human Rights (Oxford); Research Fellow, CEU Democracy Institute (Budapest); President of the YLS European Law Association

Photo: Raad van State (the referring court), via Wikimedia Commons

 

Last February, the Grand Chamber of the Court of Justice of the European Union (CJEU) delivered its ruling in the Keren case. The Court upheld the possibility for Member States (MSs) to impose civic integration examinations on the beneficiaries of international protection but introduced important limitations regarding the modalities, costs and sanctions attached to such requirements. Many EU migration lawyers and scholars on social media welcomed the judgment. By placing some constraints on the design and implementation of integration tests, the Court curbed what had become genuinely abusive and exclusionary practices towards the beneficiaries of international protection.

 

Yet the broad endorsement of the Keren ruling among legal practitioners and scholars reflects a deeper and more troubling trend: the growing normalisation and depoliticisation of integration requirements imposed on third-country nationals. In Keren the Court effectively reconciled what appeared irreconcilable – construing the right to access of integration programmes under Article 34 of the Qualification Directive as potentially entailing integration obligations. Such a reading would likely have provoked significant concern thirty years ago, when civic integration tests were still regarded as peripheral or ideologically motivated proposals originating from the political fringes. Today, however, these measures have become entrenched and largely uncontroversial features of EU migration governance. Their underlying normative, legal, human and social implications are rarely scrutinised. Only their modalities are. Crucially, this shift has occurred in the absence of compelling evidence to support the efficacy or necessity of such obligations. On the contrary, research increasingly indicates that integration requirements – regardless their modalities – besides being ineffective, tend to discriminate and exclude, rather than include or empower, those subject to them.

 

Following a brief contextual overview of the evolution of integration requirements within the EU (Section 1), this commentary sets out the factual and legal background of the case, summarising the Opinion of Advocate General (AG) Medina and the reasoning of the Grand Chamber (Section 2). It then argues that the Court largely reiterates the principles previously articulated in its case law on civic integration duties, including under the framework of EU migration law and the EU–Turkey Association Agreement (Section 3). While this continuity may appear doctrinally consistent, I contend that Keren merited a different outcome irrespective of the newly adopted 2024 Qualification Regulation, which was not applicable to the case (Section 4). In particular, Article 34 of the Qualification Directive should have been interpreted more protectively to reject the imposition of integration obligations and examinations altogether. This is particularly significant in light of the increasing instrumentalisation of integration requirements as mechanisms of exclusion – tools deployed to target those who, in Bauman’s terms, are rendered ‘strangers’ by a legal and political order that marks them as insufficiently aligned with the dominant cultural and social norms (Section 5).

 

1.      The Civic Turn: Context

 

Over the past twenty years, integration obligations have become increasingly prevalent across EU Member States (see here and here), frequently functioning as preconditions for access to legal status and social rights. Their proliferation is commonly framed in the literature as indicative of a broader civic – or even ideological – turn in European migration governance.

 

Although integration has long been addressed at the European level through soft law instruments, the EU’s competence in migrant’s integration remains limited by the Treaty on the Functioning of the EU (TFEU) (Article 79(4)). Nevertheless, the concept has found its way into EU secondary legislation through the EU’s immigration policies. Since the early 2000s, integration has featured in instruments, such as the Family Reunification Directive and the Long-Term Residence Directive. These instruments reflect an ongoing tension between two competing models: integration through rights versus integration through duties.

 

While the original proposals for both directives reflected a rights-based logic – conceiving secure residence as a means to facilitate integration – this approach was increasingly contested by certain MSs, notably Austria, Germany and the Netherlands (see e.g., here). These states had already implemented integration tests at various stages of the migration legal journey and actively advocated for their incorporation into the EU legal framework. Consequently, the final versions of the directives permit MSs to condition access to family reunification and long-term resident status on compliance with integration requirements.

 

Simultaneously, national integration requirements began to multiply and extend beyond the scope of these directives. For instance, in countries such as Germany, the Netherlands and Denmark, such obligations were applied in the context of the EU–Turkey Association Agreement (and the additional Protocol and decision of the Association Council) despite this regime traditionally falling outside the scope of EU immigration law.

 

With regard to the integration of the beneficiaries of international protection, the EU possesses broader legislative competence under Article 78 TFEU. Nonetheless, legislative activity in this area has remained relatively limited, with integration matters primarily addressed in Article 34 of the Qualification Directive, which affirms a right to access integration programmes. Until recently, EU law did not explicitly authorise MSs to impose integration obligations on the beneficiaries of international protection – unlike in the field of general migration directives. Despite this, several MSs, including the Netherlands, have introduced such requirements, notably through examinations, following the granting of protection status. It was in this context that a preliminary reference was submitted to the Court in Keren, essentially asking whether such integration requirements are compatible with Article 34 of the Qualification Directive and if so, under what conditions.

 

2.      The Keren case

 

Keren arose from the previous version of the Dutch Wet Inburgering, which mandates civic integration for non-temporary residents, including the beneficiaries of international protection. This requirement includes passing exams in language and societal knowledge within three years, subject to a limited extension. Failure results in financial penalties and a repayment obligation for state loans provided to support compliance. In casu T.G., an Eritrean national granted asylum in the Netherlands, failed to pass the relevant exams within the allotted timeframe and was fined EUR 500 and ordered to repay a EUR 10,000 loan. Even after being granted an exemption based on demonstrated effort, these penalties remained. The Dutch Council of State referred preliminary questions to the CJEU, asking whether such measures align with Article 34 of Directive 2011/95/EU (the Qualification Directive), which guarantees access to integration programmes for the beneficiaries of international protection.

 

AG Medina found that Article 34 of the Qualification Directive only grants a right of access to integration programmes – implying ‘positive measures enabling refugees to integrate’ (§47). For the AG, this provision did not impose a corresponding obligation on the beneficiaries of international protection to participate in integration measures. Drawing on the principle of shared competence in EU law, he found that MSs retain discretion to determine whether participation in such programmes should be compulsory (§42). The Directive likewise does not preclude national legislation requiring the beneficiaries of international protection to undergo a civic integration examination. Nevertheless, MSs may not require refugees to attain a specific pass mark in such examinations as a condition or proof of integration. Moreover, Article 34 of the Qualification Directive precludes national legislation that imposes on refugees the obligation to bear excessive costs for participation in integration programmes, or conditions participation on passing an integration examination under the threat of financial sanctions, such as the obligation to repay a loan or pay a fine.

 

The CJEU largely accepted the AG’s approach, albeit following a different train of thought. Relying on a contextual and teleological interpretation of Article 34 – which concerns access to rights, the importance of integration measures, the expectation of long-term residence and the potential pathway to naturalisation – the Court found that ‘MSs enjoy a margin of discretion in deciding on the content of the integration programmes referred to in that article, as well as on the practical arrangements for the organisation of those programmes and the obligations that may be imposed on participants in that context’ (§ 62, emphasis added). In this way the Court effectively conflates the irreconcilable: the right to integration and the obligation to integrate.

 

On this basis, and in line with the AG, the Court held that national legislation requiring participation in integration programmes and successful completion of related examinations is compatible with Article 34, provided it is proportionate (§66) and takes into account the individual circumstances of each person through an individualised assessment (§§67–68). Differing from the AG on several points, the Court found that MSs may require refugees to achieve a pass mark in integration examinations, but the required level must remain elementary and proportionate to the goal of promoting integration (§73). Moreover, while the imposition of a fine for failure to pass the exam is not precluded, such penalties must not be automatic or systematic. They must be exceptional and based on objective evidence of a persistent and demonstrated lack of willingness to integrate (§74). Crucially, the Court held that Article 34 prohibits requiring the beneficiaries of international protection to bear the full cost of compulsory integration measures. Such measures should in principle be free of charge. Only beneficiaries with sufficient financial means may be required to contribute, and any such contribution must be reasonable (§§82–83).

 

3.      Limits of the limits set by the Court

 

The CJEU has long grappled with the legality of integration conditions. In European Parliament v. Council, the Court cautiously upheld the permissibility of such measures under the Family Reunification Directive, while emphasising compliance with fundamental rights.

 

Later, integration obligations featured prominently in the case law related to the EU–Turkey Association Agreement. Without rejecting the principle of integration requirements or examinations, the Court has consistently struck down national measures imposing such conditions on Turkish workers and their family members. These measures were found to breach the respective standstill clauses, as they introduced new, disproportionate restrictions. For instance, the Court struck down Danish rules requiring minors to demonstrate ‘sufficient ties’ to Denmark in Caner Genc, or spouses to prove stronger attachment to Denmark than to their country of origin in A. The imposition of language tests on Turkish workers sponsoring spouses in X or on the spouses themselves in Dogan was also deemed unlawful. A key concern in most of these cases has been the absence of individualised assessments.

 

This proportionality logic also informs the Court’s interpretation of EU secondary legislation – most notably the Family Reunification Directive and the Long-Term Residence Directive – both of which expressly allow MSs to impose integration ‘conditions’  or ‘measures’  as prerequisites for residence permits or visas. In rulings like K and A, C and A and P and S, the Court recalled the principle that integration conditions must serve the objectives of the directives – facilitating family life and supporting long-term integration. Civic knowledge and language acquisition, the Court argued, promote communication, social cohesion and access to employment and education. Hence, the Court concluded in the three cases – without offering further reasoning – that the requirement to pass an examination constitutes an appropriate means of achieving these objectives. However, the Court has consistently attached important caveats. It held that authorities must consider the efforts made by applicants, even if they ultimately fail the exam. Likewise, the implementation of integration measures must remain proportionate, including the scrutiny of the level of knowledge required, the accessibility of preparatory materials, the cost of registration and the imposition of fines. The Court has also highlighted the need to consider individual circumstances, such as age, illiteracy or educational background.

 

The Keren ruling builds on this existing case law, applying these principles mutatis mutandis to the beneficiaries of international protection. On its face, Keren aligns with the Court’s established approach: it limits disproportionate administrative sanctions while upholding the legitimacy of the integration obligations and examinations within the framework of the Qualification Directive. The judgment might even appear commendable for pushing back against the more punitive dimensions of national integration regimes.

 

But two critical concerns remain.

 

4.      Transforming a Right into Obligations

 

The Keren judgment raises a fundamental concern absent from other integration-related cases: the Court’s interpretation of Article 34 of the Qualification Directive, which stands out for its unique legal and normative framing. This provision, entitled ‘Access to integration facilities’, requires MSs to ensure access to integration programmes for the beneficiaries of international protection, with due regard to their specific needs.

 

Both the AG and the Court acknowledged that Article 34 establishes a right to access integration facilities. Logically, this should preclude the imposition of integration obligations, as rights by definition imply personal autonomy ‘as (part) authorship of one's life’. However, both concluded through distinct routes that the provision does not prevent such obligations.

 

The AG’s justification – that shared competence allows MSs to legislate in the absence of EU action – fails to account for the fact that Article 34 already expresses an exercised competence. Once the EU legislates a right, MSs should in principle not dilute it by imposing additional burdens. According to the AG’s logic, any right in a shared competence field could be mirrored by a corresponding obligation at national level, inverting the purpose of rights and leading to absurd, even unjust outcomes which are only partially contained by the proportionality principle.

 

The Court’s reasoning, to the extent that it is discernible, also fails to persuade. While it invokes the margin of discretion afforded to MSs, it remains entirely silent on how the imposition of mandatory integration exams can be reconciled with a provision that enshrines a right to access integration programmes. The normative shift is further compounded by the Court’s unacknowledged alignment (almost point-by-point) with Article 35 of the new Qualification Regulation, which explicitly allows integration obligations under certain conditions and will apply from July 2026. From a Rule of Law perspective, this implicit application of the new Article 35, which was not applicable to the case (and would not before 2026) is deeply problematic. The new Article 35 was not meant to clarify the current Article 34, but to replace and restrict it. Treating them as interchangeable – and in a non-explicit way – disregards both their legal and normative distinction and their temporal application.

 

Even accepting the legitimacy of integration obligations, it is striking that the Court never addresses the central question: whether integration can be more effectively achieved through voluntary participation – a consideration that any genuine proportionality test should require, especially if the Directive does not provide for compulsory integration. Nor does it examine whether such obligations, particularly exams, actually contribute to integration. As a matter of fact, the clues in evidence rather argue against integration requirements. Studies have shown that integration tests are often ineffective, legally misconstrued, misapplied and counterproductive. They dilute the protection that non-citizens enjoy under human rights law. Yet the Court continues to treat integration obligations, especially examinations, as self-evidently valid. It endorses the rationale as inherently positive, depoliticising and naturalising deeply normative questions about belonging, equality, hierarchy and oppression. The Court simply draws on axiomatic assumptions.

 

5.      Racialised and Colonial Logics of (Civic) Integration

 

Integration policies – and civic integration in particular – have long been subject to critique extending well beyond the legal domain, for being rooted in a colonial, oppressive and stigmatising rationale. Willem Schinkel highlights how it is never applied to white citizens, revealing its racialised function. Saskia Bonjour points to the paradox of civic integration policies that demand assimilation while reinforcing exclusion, echoing colonial ‘civilizing missions’. Tamar de Waal has described integration tests as symbolic hierarchies that reinforce precarious belonging. Adrian Favell observes that post-imperial states have used integration as a way to reframe their civilisational missions in a world marked by diversity. Dora Kostakopoulou has also criticised such policies as mechanisms of discipline and control – promoting a narrow, idealised national identity to which migrants must conform. These duties often construct belonging as conditional on civic and moral ‘worthiness’, marginalising those who do not fit the model. This trend is deeply concerning, not only normatively but also empirically, given the lack of any empirical evidence –so dear to the EU Commission in integration matters – demonstrating  that mandatory integration measures are effective in any way.

 

The content of integration tests further compounds these concerns. While the Court typically limits its scrutiny to language requirements, it has so far avoided addressing the societal knowledge components of civic integration exams, which constitute an important part of these requirements. Yet research has consistently shown that, beyond language testing, these tests are often filled with absurd, stigmatising or culturally loaded questions. Far from being neutral assessments, they are frequently imbued with racialised and colonial assumptions, functioning as instruments of symbolic exclusion and mechanisms of ‘othering’.

 

Moreover, the targets of these policies are not random. Integration obligations disproportionately affect migrants who are portrayed as ‘problematic’ – those regarded as non-Western, Muslim, socioeconomically disadvantaged, or with limited educational background, i.e. the so-called ‘Migrants with Poor Prospects’. Integration thus becomes a tool to discipline and stigmatise, rather than to support and empower.

 

In fact, rather than addressing structural inequalities through positive measures, many MSs have adopted punitive or conditional approaches through these civic integration programmes. This reflects a broader trend in which the rhetoric of integration has often served to legitimise an expanding array of exclusionary practices, including restrictions to fundamental rights. For instance, in the so-called Danish Ghetto case pending before the Court, urban gentrification of racialised neighbourhoods is presented as an integration strategy, generalising characteristics perceived as negative and unacceptable in Denmark and attributing them to all immigrants and their descendants from non-Western countries. Such highly questionable policies contribute therefore ‘to the perpetuation of that stereotyping and stigmatisation’ in the words of AG Ćapeta (§152).

 

Conclusion

 

While Keren curtails certain abusive practices, it simultaneously endorses the conditional logic of integration requirements for the beneficiaries of international protection, contributing to the broader normalisation of exclusionary and stigmatising measures. Civic integration requirements do not foster inclusion but rather reinforce hierarchies of belonging through symbolic and material harm. It is therefore imperative critically to examine the normative foundations of integration duties, particularly within legal reasoning, to prevent the entrenchment of exclusion under the rhetoric integration.