I The rise of civic integration in Europe

The last decade has witnessed the adoption of an expanding set of immigration tools, both at national and European levels, to manage and control inward migration to the European Union. Integration conditions have been attached to both the EU Family Reunification and the Long Term Residence Directives.Footnote ² How thin or thick such conditions might be has been left to Member States to determine, allowing considerable discretion to governments in defining the pathways to belonging, not only in the state itself, but ultimately the Union as a whole (Guild, Groenendijk and Carrera, Reference Guild, Groenendijk and Carrera2009). The Stockholm Programme has given a renewed impetus to integration as an element of immigration policy.Footnote ³ Further support is provided by the conclusion of the Lisbon Treaty, which allows for incentives and support to be given to Member States' integration initiatives by the European Council and the Parliament.Footnote ⁴ The recently adopted Commission Communication on an Integration Agenda for Third-Country Nationals continues to emphasise ‘local action’ by Member States to facilitate and promote integration.Footnote ⁵ Crucially, Member States retain significant discretion over the integration requirements to be introduced, and how integration is to be defined.

Whether the imposition by states of integration requirements is compatible with the commitment to integration as a ‘two-way process’, particularly when occurring in the context of punitive immigration practices, has been questioned by many (Carrera and Atger, Reference Carrera and Atger2011). The expansion of integration testing, and the imposition of thicker integration conditions, has not yet been fully tested under European or international human rights law. Yet this expansion clearly engages rights that are protected both at European and international levels – rights to religious freedom, freedom of expression, cultural identity, private and family life, and non-discrimination (Kostakopoulou, Reference Kostakopoulou2010). The proportionality of states' responses to immigration challenges when such rights are engaged becomes more difficult to justify as the interests at stake touch on core norms of human rights law. Immigration and citizenship laws are sometimes viewed as the last bastion of state sovereignty. More recently, however, we have seen a greater willingness from international and European human rights bodies to question the historical discretion enjoyed by states in immigration matters. The Court of Justice of the European Union has, in some instances, been even more robust in its challenge to Member States (Morano-Foadi and Andreadakis, Reference Morano-Foadi and Andreadakis2011). States, however, have pushed back against the expansion of rights to third-country nationals, appealing to national security, public order and to requirements of cohesion and integration.

The expansion of immigration management tools and the renewed focus on integration in some EU Member States has taken a juridical form in legislative initiatives introducing contracts, Contrats d'Acceuil et d'Integration (CAI), for third-country nationals, with stringently policed contractual requirements concerning integration. These contracts represent an expansion of integration policy, beyond the process of naturalisation, where requirements of assimilation, albeit relatively thin, have been well established (Joppke, Reference Joppke2004; Reference Joppke2007). The consequences of a failure to comply with the terms of the contract betray the illusion of voluntarism or reciprocity suggested by the language of contract. Failing to fulfil the integration requirements imposed may lead to an application for a residence permit or renewal, or family reunification, being denied. For immigrants within a state, the possibility of becoming undocumented is also raised. The introduction of integration abroad requirements marks a further shift away from the presumed reciprocity of the integration process. Integration abroad requirements now operate as a ‘switch’ for the family migration journey in the Netherlands, France and Germany, with other EU Member States also contemplating the introduction of such requirements. The introduction of these new requirements is part of a broader move to limit what has come to be described as immigration subie (literally, suffered immigration) in favour of immigration choisi. Family reunification, being less predictable, less susceptible to controlling limits, has been categorised by states and governments as coming within the umbrella of immigration subie, and as something to be curtailed, restricted and possibly denied. Family migration is problematic for states because it disrupts the dominant neoliberal underpinnings of migration policy, as do the protections afforded by European and international human rights law to the right to private and family life and to non-discrimination.

This potential for disruption and for rights protections to pose a check on the expansion of integration requirements in Europe came to the fore in the Chakroun judgment of the European Court of Justice.Footnote ⁶Chakroun brought to light ongoing concerns on the scope and impact of integration requirements imposed by the Netherlands in recent years,Footnote ⁷ reflecting the increasing political unease with the perceived failings of multiculturalism and the threat posed to Dutch liberal values by immigration from Turkey and North Africa, in particular. The Civic Integration (Preparation Abroad) Act was passed by the Dutch government on 22 December 2005 and entered into force on 15 March 2006. The Act required certain categories of foreign nationals wishing to migrate to the Netherlands for family formation or family reunification purposes to first pass a pre-departure integration test. It was these restrictions that gave rise to the Chakroun litigation.

The Chakroun case concerned a Moroccan national, Ms Rhimou Chakroun, who was seeking to join her husband, Mohammed Chakroun, in the Netherlands. On 10 March 2006, Ms Chakroun applied to the Dutch Embassy in Rabat (Morocco) for a provisional residence permit in order to live with her husband. Mr Chakroun, also a Moroccan national, had lived in the Netherlands since 1970 and held permanent residence status. The couple had married in 1972, but Ms Chakroun had continued to live in Morocco. Ms Chakroun was refused a permit on the ground that Mr Chakroun's income at the time was below the minimum income threshold required for family formation. In rejecting the arguments made by the Dutch government defending the integration requirements, the Court found that the Family Reunification Directive imposed ‘precise positive obligations’ on states, requiring them, in the cases determined by the Directive, to authorise family reunification of certain members of a sponsor's family, without being left a margin of appreciation. Authorisation of family reunification, the Court noted, was the general rule, and the ‘margin of manoeuvre’ left to states must be strictly interpreted. Specifically, actions taken by states should not undermine the effectiveness of the Directive or its objective, which was stated as being to ‘promote family reunification’.Footnote ⁸ Importantly, the Court noted that measures concerning family reunification should be adopted in conformity with the obligation to protect the family and respect family life, as recognised in many instruments of international law.

The Chakroun judgment was a significant test of mandatory civic integration requirements imposed by states, specifically in the context of integration abroad measures. The Court's judgment, however, has wider significance for integration policy and the relevance of fundamental rights to key elements of immigration law (Wiesbrock, Reference Wiesbrock2010). It is significant in the limits that it imposes on integration measures imposed by Member States and the protection afforded to the right to family life. The positive obligations identified by the Court as being imposed by the Directive reflect its willingness to scrutinise the integration measures adopted at Member State level and their de facto impact on the rights protected by EU law. Identifying family reunification or family formation as the general rule, from which only limited exceptions are permitted, has several consequences for Member States, including the recognition of parallels between the rights of Union citizens and those of third-country nationals, bringing the Union closer to its objectives of fairness and ‘near-equality’.

The Chakroun case specifically concerns family migration, but potentially the analogies drawn with the rights of Union citizens could be applied in other situations or with regard to other rights claims. Given the Court's findings that any restrictions on family life must be treated as derogations and must strictly comply with the principles of EU law, other integration measures adopted by Member States may also be opened up to scrutiny by the Court. Already, pre-departure integration testing in the Netherlands has attracted the censure of the UN Committee on the Elimination of Racial Discrimination, because of its selective application to particular nationalities only.Footnote ⁹ Compliance with the general principle of non-discrimination may prove problematic for Member States imposing sweeping integration measures that impact upon fundamental rights protected by European human rights law, including rights to religious freedom. Compliance with the requirement of proportionality may also prove a hurdle, given the fundamental importance attached by the Court to the right to respect for family life in EU law.

Outside the context of family migration, it is unclear whether the Court will follow a similar line of reasoning in determining the scope of rights enjoyed by third-country nationals under other Directives, such as Directive 2003/109/EC on long-term residence status. It seems unlikely that long-term residence, as such, will attract the same level of protection as family life, given the more limited protections afforded by international and regional human rights instruments to the right to ‘be here’. Nonetheless, the requirements of proportionality and non-discrimination, and the general concern to safeguard the effectiveness and objectives of EU law, has already led to similar conclusions and restrictions on the discretion enjoyed by Member States to impose ‘excessive and disproportionate administrative charges’, for example, on applications for long-term residence. As Carrera and Weisbrock note, the rights of third-country nationals have been the subject of active litigation, and the Court has, through its jurisprudence, expanded the limits of ‘who’ is to be considered ‘a legitimate holder of EU freedoms’ (Carrera and Wiesbrock, Reference Carrera and Wiesbrock2011, p. 31). The potential emergence of the Court of Justice as a human rights court in the migration context has been noted by many (Morano-Foadi and Andreadakis, Reference Morano-Foadi and Andreadakis2011). Already, the Court's judgments in the field of migration are posing greater challenges to the traditional discretions enjoyed by states than the more cautious immigration related jurisprudence of the European Court of Human Rights. As yet, however, it is not clear what consequences this emerging migrant rights jurisprudence will have on broader questions of multicultural citizenship in the European Union.

Torn between the claims of an expanding European Union, increasingly diverse populations, and the extension of rights to third-country nationals, states have responded by retreating from multiculturalism, resorting to old practices of nation-building and to increasing border restrictions. The apparent retreat from multiculturalism in Europe, marked by increasingly strident political rhetoric, stands in contrast to the gradual expansion of fundamental rights and human rights norms to non-citizens, and more generally to third-country nationals in European human rights law. As Bowen notes, populist attacks on the policies and politics of multiculturalism ignore the historical facts of European responses to religious diversity that were rooted in liberal democratic norms of religious freedom, tolerance and accommodation (Bowen, Reference Bowen2011). Failing to acknowledge the links between multiculturalism and longer-established liberal traditions of accommodating religious diversity, political leaders have opted instead for a populist rhetoric that fuels and draws upon anti-immigration public sentiment. The former Council of Europe's Commissioner for Human Rights, Thomas Hammarberg, has noted that, ‘[O]pinion polls in several European Countries reflect fear, suspicion and negative opinions of Muslims and Islamic culture’.Footnote ¹⁰ The focus now, as Bowen says, is on ‘the acceptability in the Enlightenment West of the pre-Enlightenment Muslim’ (Bowen, Reference Bowen2011).

II Retreating from multiculturalism: a return to national values

Civic integration requirements provide an increasingly intrusive mechanism through which religious–cultural affiliations, practices and ways of life of migrants may be scrutinised and questioned. This scrutiny raises questions as to the place of religion in the public sphere in Europe and the extent to which Islam and immigration from predominantly Muslim countries, in particular, is presumed to threaten community cohesion and inherited liberal democratic traditions. The rise of the civic integration paradigm is at the heart of debates surrounding the limits of sovereignty of Member States in the EU and the cosmopolitan reach of fundamental rights and non-discrimination principles in EU law, debates that already began to surface in the Chakroun litigation.

The Dutch model of civic integration has sometimes been viewed as a ‘model for Europe’. Since the adoption of the 1998 Newcomer Integration Law (Wet Inburgering Nieuwkomers), integration requirements in the Netherlands have increasingly ‘thickened’ and, as Joppke notes, the ‘obligatory, coercive side of civic integration’ has moved to the fore (Joppke, Reference Joppke2007, p. 249). The positioning of liberal values on sexuality and gender in opposition to Islam and to Muslim immigration is now well established in the context of Dutch civic integration debates. Linked to the expansion of civic integration testing, family and marriage migration pathways have been narrowed (van Walsum, 2008). North African and Turkish Muslim migrants, in particular, have been the target of such restrictions (van Oers, Ersbøll and Kostakopoulou, Reference Van Oers, Ersbøll and Kostakopoulou2010). That it has been Muslim migrants that have borne the burden of such restrictions is not unexpected. Muslim communities and migrants in the Netherlands have been the target of the most vocal Dutch critics of multiculturalism, including Paul Scheffer, Theo van Gogh and Pym Fortune. The Dutch rejection of multiculturalism, exemplified by such critics, was expressly ethnocentric, in defending liberalism as a value culture and in seeking to promote what Richard Rorty might have termed an ‘ethnocentric liberalism’ (Fanning and Munck, Reference Fanning and Munck2011, p. 115).

Dutch anti-multiculturalism revealed a selective cosmopolitanism, one that advocated an increasingly ‘muscular intolerance’ towards marginalised Muslim communities who were presumed to lack the necessary human and cultural capital required by liberal democratic states (Fanning and Munck, Reference Fanning and Munck2011, p. 112). This intolerance was evident in particular in the thickening of integration requirements, which sought to make the liberal state open to ‘liberal people’ only (Joppke, Reference Joppke2005, p. 57). As elsewhere, this thickening of integration requirements has been influenced by the rhetoric of the ‘war on terror’ post-9/11, by the rise of a politics of risk and security in Europe, and by historical contingencies in the Netherlands such as the killings of iconic right-wing figures Pym Fortune and Theo van Gogh. Neoliberal immigration policies provided a proxy for the mobilisation of both ethnocentric liberal and national ideals of belonging. As elsewhere in Europe, the perceived multicultural crisis was to be resolved through a neoliberal model of individualised responsibility for integration – a model that set criteria that sought to screen out both economically and culturally undesirable migrants (Fanning and Munck, Reference Fanning and Munck2011, p. 116). The ‘encultured [Muslim] subject’, to borrow Macklin's evocative term (in this issue), is included amongst those deemed undesirable. It is predominantly Muslim migrants from Turkey and Morocco who have been the target of civic integration measures in the Netherlands. With the populist rise of anti-immigration politics, ‘[w]hat began as a policy of immigrant integration has thus turned into its opposite, a no-immigration policy’ (Joppke, Reference Joppke2007, p. 250).

As the Chakroun judgment of the European Court of Justice highlights, the expansion of civic integration requirements may threaten core fundamental rights and non-discrimination principles. The rise of civic integration in the Netherlands can be viewed as marking a shift from an ‘old’ liberalism of non-discrimination and equal opportunities to a ‘new’ more aggressive ‘liberalism of power and disciplining’ (Joppke, Reference Joppke2007, p. 244). This shift has attracted criticism from UN human rights treaty bodies, including the Committee on the Elimination of Racial Discrimination (CERD) and the Committee on the Elimination of All Forms of Discrimination Against Women (CEDAW). The CEDAW Committee, recognising the intersectionality of overlapping axes of gender and racial discrimination, expressed its concern at the persistence of gender-role stereotypes about immigrant and migrant women and men and their portrayal as ‘being backward and having traditional views about women’.Footnote ¹¹ Little analysis was provided, the Committee noted, on the impact of such gendered and raced stereotypes on the effective implementation of the Convention itself. The CEDAW Committee also called on the Dutch government to withdraw its ‘more severe requirements’ for family formation and family reunification, including the integration test and minimum income requirements, which, it noted, disproportionately affected migrant women and which constituted a breach of Article 16 of the Convention.Footnote ¹² The CERD Committee has expressed its concern that government policy on integration has ‘effectively shifted the primary responsibility for integration from the State to immigrant communities’,Footnote ¹³ and that it fails to reflect ‘an appropriate balance between the responsibilities of the State under the Convention and the responsibilities of immigrant communities’.Footnote ¹⁴

The shift to a more aggressive liberalism has been evident in recent statements by political leaders in Germany, the UK and France. The potential tension with non-discrimination norms is evident, in particular, in the coercive deployment of gender equality and human rights discourse. In late 2010, German Chancellor Angela Merkel sparked controversy when she claimed that multicultural approaches to immigration in Germany had ‘utterly failed’Footnote ¹⁵ (Weaver, Reference Weaver2010). Her remarks followed the publication of Thilo Sarrazin's text, Germany is Destroying Itself (Sarrazin, 2010), in which the former Bundesbank board member accused Muslim immigrants of sapping Germany's economic strength and intelligence.Footnote ¹⁶ Although Sarrazin was censured for his comments and ultimately dismissed from his position as a board member of the Bundesbank, opinion polls suggested that there was significant public sympathy for his views (Bowen, Reference Bowen2011).

Merkel's comments were quickly followed by further attacks on multiculturalism. Speaking in February 2011, British Prime Minister David Cameron specifically targeted the ‘doctrine of state multiculturalism’, under which, he said, the UK had ‘encouraged different cultures to live separate lives, apart from each other and apart from the mainstream’, and had ‘tolerated these segregated communities behaving in ways that run completely counter to our values’.Footnote ¹⁷ Cameron's speech specifically identified extremist Islam as ‘encouraging Muslims to define themselves solely in terms of their religion’. In response to what Cameron identified as the failure to build a sense of common identity, he argued that a ‘more active, muscular liberalism was needed’.Footnote ¹⁸ A passive tolerance of different ways of life was no longer enough. A genuinely liberal state would, he said, actively promote certain values: ‘Freedom of speech, freedom of worship, democracy, the rule of law, equal rights regardless of race, sex or sexuality.’ Invoking the possibility of ‘thickening’ of integration requirements for immigrants, Cameron noted that a liberal state would say: ‘… this is what defines us as a society: to belong here is to believe in these things.’Footnote ¹⁹ Addressing his comments to other European states, he called on all governments to be ‘unambiguous and hard-nosed about this defence of our liberty’. Cameron's comments were subsequently endorsed by French Prime Minister Nicolas Sarkozy, who availed himself of the opportunity to criticise ‘ostentatious’ displays of religious worship and the need to protect French values of gender equality, particularly in education (Daly, this issue).

III Gender equality, British values and the retreat from ‘state multiculturalism’

British multiculturalism has been variously described as ‘divided pluralism’ (Levison, Reference Levison1997, p. 340), ‘plural monoculturalism’ (Sen, Reference Sen2006), and as a ‘community of communities’ (Runnymede Trust, 2000). The constitutional commitment to secularism in France is not shared in the UK, where an established church has co-existed with unofficial commitments to multiculturalism and recognition of the role of religious values in the public sphere. Multiculturalism in the UK was not defined as official policy or given statutory recognition, unlike in Canada or Australia. The rejection in 1966 by the former Home Secretary, Roy Jenkins, of assimilation as a ‘flattening process’ is often pointed to as the beginning of British multiculturalism (Joppke, Reference Joppke2009, p. 115). Yet British multiculturalism was defined primarily by its (limited) anti-discrimination laws and ‘race’ relations policies. The quintessentially individualist nature of this limited form of multiculturalism has sometimes been described as ‘not multicultural at all’ (p. 115).

In recent times, New Labour moved from being a champion of multiculturalism to looking with renewed vigour on formulas for integration and cohesion (Goldsmith, Reference Goldsmith2008). The promotion of gender equality in the UK, in the context of expanding critiques of multiculturalism, is now part of a larger narrative that sets the performance requirements for belonging – that, to borrow Madhavi Sunder's phrase, define the transition narrative (Sunder, Reference Sunder2003). The Cantle Report, published in 2001 in the wake of riots in the predominantly South Asian neighbourhoods of Blackburn, Oldham and Burnley, described communities with separate educational and social networks, operating on the basis of ‘a series of parallel lives that do not touch, let alone overlap’.Footnote ²⁰ Anticipating later developments in France, the concern to bring integration back into fashion has involved a series of reflections on the common core of what it means to be British. The Cantle Report identifies ‘support for women's rights … and respect for both religious differences and secular views’ as common elements of nationhood.Footnote ²¹ Reflecting the roots of a growing Islamaphobia in Britain and elsewhere in Europe, the Report raises concerns about threats arising from links to ‘back home’ politics.Footnote ²² Transnational networks and affiliations are viewed as subverting the solidarity and closure required to maintain national security and community cohesion (Enright, Reference Enright2009). The community cohesion project in Britain accepts that a person might simultaneously be British and a member of a cultural or religious minority. Therefore, the proper distinction in terms of British citizenship is not that between the culture of ‘outsiders’ and the ‘culture-free’ condition of Britons. Rather, as Enright notes, ‘the boundary of belonging is drawn between acceptable cultural diversity and unacceptable cultural difficulty’ (p. 349)

As in other parts of Europe, the concern with community cohesion has taken a more formal, juridical direction, with the introduction of ‘life in the UK’ test for applicants for British citizenship.Footnote ²³ The introduction of the ‘life in the UK’ tests follows on from a series of initiatives on strengthening citizenship education,Footnote ²⁴ as part of the British government's aim to ‘raise the status’ of British citizenship (Kirwan, Reference Kirwan2007). Presented as a governance project to manage diverse cultural identities and affiliations, the protagonists of the cohesion agenda are at pains to distinguish themselves from assimilationist politics. The aim is to manage cultural diversity within a framework of shared rights, obligations and values. Yet more than compliance is to be required. As Parekh notes, loyalty to, and an internalisation of, the values that define the common core of Britishness is expected (Parekh, Reference Parekh2005).

Justifying the proposed introduction of the new pathways to citizenship, the New Labour government argued that ‘there is a need to ensure that the benefits of citizenship are earned through a demonstration of shared values’.Footnote ²⁵ Earning the right to citizenship – by speaking English, working hard and paying taxes, obeying the law and demonstrating active citizenship – was at the centre of a new ‘architecture’ of citizenship, introduced in the Borders, Citizenship and Immigration Act 2009. The substantive implications of proposals such as the status of probationary citizen were uncertain and confusing, however, and were ultimately abandoned by the Liberal Democratic and Conservative coalition government as unduly bureaucratic and difficult to administer.Footnote ²⁶ However, the potential of such proposals to create further barriers to membership and to secure residence for migrants is worrying. The concern to bolster the status of British citizenship and to reinforce an ethnocentric liberalism – as evidenced by the continuing appeals to British values – has not gone away.

Proposals to earn citizenship were premised on the view that migrants were not fully accepting the duty to integrate into their new communities. The process of earning citizenship was to require a series of performances that are presumed to demonstrate a commitment to belonging and membership in the state. Migrant rights organisations argued that little attention has been paid to how low-income families, or people with full-time caring responsibilities (primarily women), would be able to meet such requirements (Joint Council for the Welfare of Immigrants, 2008, p. 18). What is particularly worrying, in the context of the cohesion agenda in the UK, are the disciplinary and punitive migration strategies that have accompanied it. The burden to integrate, and to demonstrate a commitment to shared values, is placed primarily on immigrant communities. For immigrant Muslim women, the cohesion agenda brings with it the potential for increasing scrutiny of everyday lives. The rise of the community cohesion and integration agendas have been accompanied by a series of legislative initiatives focused on the regulation of intimate relations in the context of migration. These include measures to prevent forced marriage, particularly in a transnational context, and increased visa restrictions for spouses of British citizens.Footnote ²⁷ The UK Border Agency has concluded a consultation on reforms to family migration. The reforms to family migration have included increased financial requirements for visa applicants, measures to tackle sham and forced marriages, and an expansion of language and integration testing (Home Office, UK Border Agency, 2011). The reforms introduced have led to a series of challenges invoking rights to privacy and family life, non-discrimination and the right to marry, in particular. These challenges, raised through both the courts and civil society activism, have met with repeated attempts to close off such routes of resistance and to limit the opportunities to invoke rights claims in response to expanding controls (Home Office, 2010). The normative justifications given for increasing restrictions on family migration and the move towards more selective immigration pathways appeal to the need for greater social and community cohesion, raising again the continuing questioning of the normativity of migrants' family lives.

Gendered religious practices, including veiling, have been to the fore in debates on how to demarcate the boundaries of ‘unacceptable cultural difficulty’ in the UK.Footnote ²⁸ The leading case on the wearing of the veil in public schools is R (Begum) v. Head Teacher and Governors of Denbigh High School,Footnote ²⁹ which centred on a school's refusal to allow a student to wear the jilbab. Notably, the House of Lords distinguished the Leyla Sahin case before the European Court of Human Rights, commenting that Britain, unlike Turkey, was ‘not a secular state’. Religion, the Court concluded, has a place, therefore, in public spaces, including in public schools. Baroness Hale, while expressing concern at the impact of exclusion on access to education, concluded that the question, ultimately, was how to enable the exercise of personal autonomy through the inculcation of liberal values (Marshall, Reference Marshall2008). She noted that young girls from ethnic, cultural or religious minorities, growing up in the UK, faced particularly difficult choices: ‘how far to adopt or to distance themselves from the dominant culture.’Footnote ³⁰ The suggestion here, and the choice presented by Hale, is between a liberal democratic majority, committed to gender equality, and an illiberal minority, in which women and girls are subordinate. It is difficult to escape the conclusion that a ‘good school’ should be one that would enable a Muslim student to distance herself from her minority culture and to ‘adopt’ the more progressive (less traditional) practices and beliefs of her larger community. Again, we see here the reiteration of a transition narrative. Belonging to British society, in this narrative, requires the casting-off of the illiberal cultural or religious affiliations of minority communities.

A series of cases on the wearing and display of religious symbols in schools and workplaces has followed the Begum judgment, reflecting tensions surrounding the perceived failures of British multiculturalism, and an increasing preoccupation with civic integration (McGoldrick, Reference McGoldrick2006). The veil as a marker of separation came to the fore in comments voiced most notoriously by Jack Straw, former UK Home Secretary, who described the niqab as a ‘visible statement of separation and of difference’, likely to make better, positive, relations between the two communities more difficult.Footnote ³¹ The reference to ‘two communities’ clearly betrays a sense of ‘us’ and ‘them’, and again a presumption of the homogeneity of each. A recurring theme, to be repeated in subsequent consultations on citizenship, is the presumption that minority communities need to do more to integrate into British society, if a common bond is to be nurtured.

David Cameron, in his attack on ‘state multiculturalism’, identified respect for universal rights as a core British value. Significantly, Cameron's speech was made at the Munich Security Conference, reflecting the ongoing securitisation of migration policy and the exploitation of a politics of risk and insecurity across Europe. Cameron's comments did little to acknowledge the legacy of policies to promote faith-based schools in the United Kingdom (discussed by Viraj in this issue), the curtailing of civil liberties in the guise of counter-terrorism measures, or deeply divisive foreign-policy positions. Questions of poverty and socio-economic disadvantage were also brushed aside, as the rise of religion as a social force, and specifically Islam, became the target of the prime minister's ‘Big Society’ agenda and reassertion of common British values. His comments also mark a departure from earlier views, expressed while in opposition, on the need to recognise integration as ‘a two-way street’. Speaking while leader of the opposition, in 2007, Cameron commented that, ‘[i]ntegration has to be about more than immigrant communities, “their” responsibilities and “their” duties. It has to be about “us” too’.Footnote ³²

This shift in political rhetoric reflects a willingness to yield to popular sentiment. As the Parliamentary Committee report on Preventing Violent Extremism in the UK concluded, such marginalisation risks ‘undermining positive cross-cultural work on cohesion and capacity building to combat exclusion and alienation in many communities’. Footnote ³³ Tariq Modood has noted, in his comment on the ‘non-death of multiculturalism’, that the most fierce critics of multiculturalism are usually accepting certain assumptions of multiculturalism even while rejecting its political implications. While perhaps seeking to endorse policies of assimilation, individualistic integration or cosmopolitanism, they are often at the same time ‘acknowledging and possibly reinforcing the social behaviour and structures of group difference’ (Modood, Reference Modood2012, p. 39). Modood argues that ‘the accusatory discourse of “some groups are not integrating” may actually be reinforcing group identities’ (p. 39), giving further pertinence to the sociological basis of multiculturalism. While deploying anti-multiculturalist discourse in political rhetoric, multicultural policy tools, such as group consultations with organised interlocutors and corporatist religious–cultural entities, have continued and in some cases flourished (p. 40). The appeal to a universal discourse of rights to support the imposition of ever-thickening integration requirements appears to leave little room for religious diversity, dissent or difference. The desire to consult, and to facilitate representation of, religious cultural claims through organised interlocutors also reflects a reluctance to acknowledge the possibilities of dissent and fragmentation that might threaten preferred techniques of governance.

The instrumentalisation of gender equality and of human rights discourse to support a migration control agenda and an ethnocentric liberalism is not, of course, unique to the UK. It is evident again in recent developments on citizenship and integration requirements in France, where the protection of essential French values, including gender equality, has been repeatedly juxtaposed against the practices and ways of life of Muslim immigrants.

IV Integration, reciprocity and pre-departure requirements

As Daly notes elsewhere in this issue, religious practices, including responding to the call for prayer, the wearing of the veil, or adhering to traditional gender roles in the domestic sphere, have all been problematised as threatening to French identity and to Republican values. This juxtaposition of essential French values against Islam has supported the expansion of punitive immigration practices, including the denial of citizenship where assimilation is not adequately demonstrated and a reassertion of the duties of aspiring French citizens. In 2007, the Contrat d'Acceuil et d'Intégration was extended to include a Contrat d'Acceuil et d'Intégration pour la Famille (CAIF), with integration conditions (rather than measures)Footnote ³⁴ relating to the rights and responsibilities of parents and immigrant families. The attachment of such conditions expands further the scrutiny of immigrant families. The recent entry into force of the Charte des Droits et des Devoirs du Citoyen Français (Charter of the Rights and Duties of the Citizen), reflects a further willingness to draw upon the potentially punitive tools of immigration and citizenship law and to instrumentalise gender equality norms. The adoption of the Charter, and the stringent conditions imposed on aspiring citizens, follows on a series of legislative and judicial developments that have reinforced the exclusionary potential of immigration and citizenship norms. These developments have not yet been tested before European or international human rights bodies. Whether they would meet the requirements of proportionality and compliance with fundamental rights set out by the European Court of Justice in Chakroun remains to be seen.

V Failures of assimilation: monitoring the ways of life of Muslim migrants in France

The Faiza Silmi decision of the French Conseil d'Etat Footnote ³⁵ brings the ‘dirty work of boundary maintenance’ into stark relief (Crowley, Reference Crowley, Geddes and Favell1999, p. 30). In June 2008, the Conseil d'État upheld a decision to deny citizenship to Silmi on the ground that her ‘radical’ practice of Islam was incompatible with essential French values, specifically gender equality. The Court agreed she had failed to satisfy the test of assimilation required for the grant of citizenship. The Commissaire du Gouvernement, in her Conclusions submitted to the Conseil d'État, stated that the refusal to grant citizenship was not based solely on her practice of wearing the niqab, but rather on her whole way of life, la vie quotidienne.Footnote ³⁶ Supporting this conclusion, reference was made to her mornings spent bringing her children to school and undertaking housework, and afternoons visiting her father or father-in-law. Reflecting the suspicion of potentially divided allegiances, and the perceived failure of transition, the Commissaire noted that Silmi had maintained des liens très forts (very strong connections) with her culture of origin. In contrast to the findings of the Commissaire, the submissions made by Faiza Silmi to the Conseil d'État draw on the normative framework of liberalism, and the overriding priority of individual autonomy, to support her decision to wear the niqab. In particular, she argued that she had not contested the state's commitment to secularism, which, she argued, allowed her to practise her religion. The Conseil d'État, however, ultimately relied on a much thicker conception of the good life, and a limited, essentialist view of gender equality. A formal conception of equality underpins the finding of the Conseil d'Etat, which ultimately found, in Silmi's way of life, an excess of culture. The test applied for assimilation required a demonstration of sameness, before the transition to membership in the polity could be granted.

In the Silmi case, the requirement of assimilation for naturalisation took on a specifically gender dimension. This gender dimension takes many forms. In a 2008 advisory opinion, HALDE (Haute Autorité de Lutte Contre les Discriminations et L'égalité – High Authority to Combat Discrimination and Inequality), concluded that exclusion of a woman wearing the niqab from compulsory language instruction, taken in compliance with a Contrat d'Acceuil et d'Intégration, did not violate European Convention on Human Rights protections of religious freedom, non-discrimination or the right to education. The restriction on veiling was justified by the exigencies of good language instruction, the need for student identification, and to safeguard the student body from the impact and broader pressures arising from the presence of a veiled woman.Footnote ³⁷

The deployment of immigration and citizenship laws to police the ways of life of Muslim migrants has continued. In December 2009, the Minister for Justice, Michele Alliot-Marie, commented that a Muslim man seeking French citizenship, whose spouse wears the full veil, should be denied citizenship, given the perceived failure to comply with shared Republican values.Footnote ³⁸ These views were echoed in comments later made by the Minister for the Interior, Brice Hortefeux, who expressed the view that, ‘[n]othing would be more normal than to systematically refuse a residence permit to a person wearing the veil and to her husband … Naturalisation, that is to say, membership of the national community would not be advisable in such a case.’Footnote ³⁹ Subsequently, it was confirmed that the Minister for Immigration, Eric Besson, had confirmed the denial of citizenship to a Muslim man married to a French citizen, whom he had allegedly forced to wear the full veil and who had rejected the essential French Republican principles of secularism and gender equality.Footnote ⁴⁰ The degree of discretion retained at prefect (local) level in France in decisions on acquisition or denial of citizenship has been the subject of some criticism (MIPEX, 2011). Given the rise in anti-Muslim sentiment in many parts of Europe, and increasingly populist appeals to the need to bolster national identity, the potential for exclusionary terms of belonging reinforced through requirements of civic integration at local level, is significant.

The publication of the Gerin Parliamentary Commission Report in 2010, on the wearing of the burqa and niqab in France,Footnote ⁴¹ generated widespread comment and led subsequently to the adoption of the Loi n°2010-1192, prohibiting the wearing of the face-veil in public spaces. The prohibition, which extends to a wide range of public spaces,Footnote ⁴² is currently the subject of a pending case before the European Court of Human Rights, S.A.S. v. France.Footnote ⁴³ The law's invocation of ‘race’, and a disciplinary politics of belonging, is evident in the sanctions proposed: a fine of €150 and a complementary or alternative possibility of imposing on the offending veilee, un stage de citoyenneté. Footnote ⁴⁴

Less controversy surrounded the Parliamentary Commission Report's proposals on immigration and citizenship laws, reflecting the seeming inevitability and greater legitimacy of coercive measures in this field. The Commission's Report recommended changes to legislation governing immigration and asylum, to explicitly include equality between women and men, and secularism, amongst the values that applicants for family reunification or long-term residence should demonstrate familiarity with.Footnote ⁴⁵ Drawing on the formula of the Conseil d'État in its 2008 Faiza Silmi decision, the Commission recommended refusal of a residence permit for anyone manifesting a ‘radical religious practice’ incompatible with Republican values, including gender equality. Such a refusal would be justified on grounds of the applicant's failure to integrate.Footnote ⁴⁶ On citizenship laws, the Commission recommended amending the Civil Code to explicitly provide that a radical religious practice would be considered a failure of assimilation.Footnote ⁴⁷

The Commission's Report displays a willingness to expand the gender dimension of integration testing further, to the process of applying for long- and even short-term residence. These proposals were not challenged by the Conseil d'État in its advisory opinion on the legislative proposal to prohibit the wearing of the face-veil in public spaces,Footnote ⁴⁸ and have attracted little commentary. The injustice of applying expanded integration conditions to non-citizens, when such restrictions might be considered, in other circumstances, to be a violation of rights to religious freedom, to privacy or personal autonomy, is rarely acknowledged. The absence of reciprocity here, essential to liberal ideals of justice and equality (as noted by Macklin in this issue), is deeply problematic. In questioning the legality of proposals to restrict the wearing of the face-veil, the Conseil d'État rejected the appeal to the principle of gender equality, asserting the primacy of individual autonomy. The principles of dignity or equality between women and men, taken together or in isolation, could not be applied to support a general prohibition on face-veiling. Ultimately, they concluded that equality must be premised on the safeguarding of individual autonomy; such is the conception of human dignity that underpins both French constitutional and European Convention on Human Rights jurisprudence on the rights to privacy, personal identity and religious freedom. The principle of equality, though reflecting an essential value, could not in their view be applied so as to constrain the exercise of individual autonomy through a general restriction on the face-veil. Such a conception of equality would be too ‘thick’, being too exclusionary of differences. Ultimately, the Conseil d'État concluded: ‘the principle of laïcité applies directly to public bodies, which justifies an obligation of neutrality for public agents in the exercise of their functions. However, it cannot be applied directly to society or to individuals.’Footnote ⁴⁹ The advisory opinion of the Conseil d'État was not followed by the French government, however, and is not reflected in recent immigration and citizenship practice. As Daly notes, its findings reflected the view that laïcité entailed ‘obligation of neutrality for public agents in the exercise of their functions. However, it cannot be applied directly to society or to individuals’ (Daly, in this Issue). This conclusion ran contrary to an emerging consensus that (some) markers of religious difference in the public square, even where displayed by private non-state actors, contravened the Republican value of laïcité.

The Gerin Parliamentary Commission's recommendations on immigration and citizenship came to fruition in the adoption of LOI n° 2011-672 of June 16 2011, on Immigration, Integration and Nationality. The Charter of Rights and Duties of the Citizen referenced in the June 2011 law came into force on 1 January 2012. The coming into force of the Charter can be viewed as a further shift towards the implementation of coercive integration policies against a background of continuing appeals to essential French values, to national identity and to gender equality. Writing in 2007, Joppke described the imposition of integration contracts in France to support gender equality as ‘a double illiberalism in pursuit of a liberal goal’. Not only, he said, was a person obliged to become ‘autonomous’, which was the usual rationale of civic integration, the government was also, ‘mobilizing patriarchy to achieve this goal’ (Joppke, Reference Joppke2007, p. 253) Elsewhere, Danièle Lochak has denounced as ‘perversion of logic and of equity’ the expansion of mandatory integration requirements (Lochak, Reference Lochak2004). These words remain relevant today. The Charter applies to applicants for citizenship in the context of Article 21-4 of the Code Civil, and requires a commitment to the inalienable rights of liberty, equality and fraternity. Gender equality and non-discrimination norms are at the heart of the statement of values, of rights and duties of the citizen, as are commitments to secularism and the indivisibility of the French Republic. The adoption of the Charter, and the imposition of a set of ‘lived values’, deployed so as to curtail religious practices, can be viewed as a further manifestation of the ambiguities and confusion at the heart of the idea of national identity in French Republicanism.