What is 'illegality'? A response to Iker Barbero

By Stephan Scheel · 14 November 2011

With an estimated 1.9 to 3.8 million ‘illegal’ immigrants in the EU and continued evidence of official breaches of non-discrimination laws, it is reasonable to ask: What is ‘illegality” in this context. I will answer by looking at the concept of ‘illegality’ from a historical perspective, as an actively produced condition and as a stake.

Figures of migration: from the ‘guest worker’ to the ‘illegal migrant’

First of all it should be noted that, as Scalittaris observes, migration related designations such as ‘guest worker’, ‘refugee’ or ‘illegal migrant’ do not constitute analytical categories, but ‘policy related labels designed to meet the needs of policy rather than scientific enquiry.’ Hence, scholars should not uncritically adopt these policy-designed labels as a basis for their analysis, but rather regard them as objects of inquiry themselves.

In this context, some critical scholars have maintained that by its attempt to classify and categorise migratory movements, migration research creates those ‘figures of migration’ that states apply in their attempts at regulation and control. These figures of migration – like the ‘illegal migrant’ – are not only constructions and historically contingent but also correspond to certain constellations of migration policy. As Karakayalı and Rigo have argued, such figures  ‘do not represent social groups but instead conceptually reflect relations of migration.’

A brief look into the history of migration policy in Europe confirms this claim: After the Second World War, the economies of Northern and Western Europe faced a shortage of labour power. Contrary to the dominant view, whereupon governments actively recruited labour power from Southern European and North African states, recent scholarship has shown in the case of Western Germany, that the so-called ‘recruitment contracts’ were not initiatives for the ‘import’ of labour power. Rather, they resembled attempts to regulate already existing, self-organised migrations in order to bring the informal employment of migrants under state control (see the writings of Bojadžijev and Karakayalı on this). The resulting emergence of the ‘guest worker’ as the dominant figure of migration of the 1960s and 1970s already points towards the rationale of the migration policy of the Fordist area. As indicated by the label, the so-called ‘guest workers’ were expected to only work in the Northern European countries for a limited period before returning to their ‘home countries’. Their right for residence was coupled to the duration of their labour contract in order to discipline them into being a docile work force. No effort was made to integrate them into the receiving society. Instead, they were ghettoised in dwellings located in closest proximity to the factories.

Though deprived of their political rights, the so-called ‘guest workers’, nevertheless, enjoyed social rights: they could see a doctor as they had health insurance; they would be paid a pension by the receiving state once they had retired; and – something nobody in the administration had thought about – they were entitled to send their children to school. It became clear that many of the so-called ‘guest workers’ did not plan to return ‘home’, but started to found families instead. The recruitment programmes were finally abandoned after the ‘oil crisis’ in 1974, which heralded a beginning decade of ‘stagflation’. Yet, despite ever more restrictive migration policies, migration did not come to a halt.  It increased. After the possibilities of ‘family reunification’ were exhausted despite a broad interpretation of the notion of the ‘family’, existing asylum legislations remained the last legal loophole for many migrants to enter European countries.

As a result, from the 1980s onwards, the ‘asylum seeker’ became the dominant ‘figure of migration’ in Western Europe. While humanitarian organisations insisted that the bulk of ‘asylum seekers’ were genuine ‘refugees’ in need of protection, their right-wing adversaries claimed with increasing success, that the majority of the asylum seekers were ‘bogus’. These diametrically opposed positions expose the dichotomous logic of the refugee protection discourse. In the case of Turkey, critical scholars have argued that this dichotomous logic implicates a split-up of the social field of migration into ‘refugees’ who are constructed as being in need of protection and whose cross-border movements are recognised as legitimate, and ‘illegal’ migrants whose movements are denied legitimacy (see Hess and Karakayalı). Hence, the securitisation of asylum, the criminalisation of ‘asylum seekers’ and the proliferation of detention centres, combined with attempts to prevent potential ‘asylum seekers’ from reaching European territory through juridical constructs such as the ‘safe country of origin’ have all played a part in the emergence of a new figure of migration, which has haunted public debates since the 1990s: the ‘illegal migrant’.

‘Illegality’ as an actively produced condition

This brief and therefore schematic and simplified account of the history of European migration policy history brings two crucial findings to the fore. Firstly, the persistence of migratory movements highlights the moment of autonomy they comprise in respect of any attempt to control and regulate them. Ever more restrictive migration policies and ever more sophisticated border controls cannot inhibit migratory movements, but only aggravate the conditions under which they occur. Despite the proliferation of raids against ‘illegal migrants’, which Iker Barbero rightly criticises, we should not assume that European migration is geared towards the effective exclusion of migrants, as suggested by the influential metaphor of ‘Fortress Europe’. Rather, as Mezzadra has observed, the European migration regime follows a rationale of ‘selective and differential inclusion of migrants.’ Accordingly, as Bojadžijev and Karakayalı  note, migrants are systematically and gradually disenfranchised by the European border regime, which thereby creates different modes of unfree labour conditions. Consequently, the particular conjunctures of migration policy, which correspond to the predominance of a specific perception of migration, are strongly intertwined with the active production and differentiation of labour markets through a proliferation of legal (non)statuses and corresponding practices of disenfranchisement.

Following on from this, we should not conceive of ‘illegality’ simply as a legal (non)status reflecting the most extreme form of disenfranchisement. Rather, we should regard ‘illegality’ as an actively produced, but contested condition, which, as Messadra has put it, aims at disciplining migrants into a docile, flexible and exploitable workforce by rendering them ‘deportable’. According to the renowned migration scholar Nicholas de Genova (2002), the actual realisation of deportation is less decisive than the feelings of unease and vulnerability, which the threat of it creates for all those who only possess a precarious title to residence, if any. This makes the possibility of blackmail or exploitation more likely. Hence, the juridical (non)status of ‘illegality’ unfolds its efficiency only through the condition of ‘deportability’ – the real, permanent danger of being deported any time. While deportation hangs over them as a the sword of Damocles, ‘illegal’ migrants are ready to accept the worst labour conditions, the most unbearable working schedules, for the lowest possible wages. Following De Genova, the condition of deportability enables the maximisation of what Karl Marx called the ‘rate of surplus value’: the unequal exchange of labour power for money.

A brief look into the Spanish and other European economies illustrates that it is not only sinister ‘capitalists’ in pinstriped suits, who profit from the exploitation of illegalised workers and the existence of a functioning deportation machinery. It is an open secret that the cheap fruit and vegetables from the plastic desert in Southern Spain, sold in discounters throughout Europe, are mainly picked by sans papiers. Illegalised migrants can be found cleaning administrative buildings before and after office hours, labouring for even lower wages on construction sites and working in the sex industry. These examples confirm the main thesis of French economist, Yann Moulier Boutang (1998), who argues that forms of ‘unfree’ labour conditions have always played and continue to play a fundamental role in capitalist accumulation. While Marx regards free wage labour as the defining feature of capitalism and thereby sees all forms of unfree labour, such as slavery or corvée, as pre-capitalist forms of exploitation, located in the epoch of feudalism, Moulier Boutang has shown in his landmark book ‘De l'esclavage au salariat’ that contemporary ‘free’ labour markets heavily depend on a permanent influx of ‘unfree’ labour. According to him, the working conditions of ‘illegal migrants’ should be regarded as ‘unfree’, because they are only possible due to a precarious residence status.

Furthermore, the current proliferation of raids on and deportations of ‘illegal migrants’ throughout Europe is far from accidental. For the condition of deportability does not only discipline ‘illegal migrants’ to a docile and exploitable labour force, but also guarantees that they can easily be made redundant in times of economic crisis. Building on Moulier Boutang’s hypothesis that ‘free’ labour markets depend on a permanent influx of ‘unfree’ labour, Sandro Mezzadra has argued that detention centres, which are indispensable for deportations, resemble ‘a kind of decompression chamber that diffuses tensions accumulated on the labour market’. It now becomes clear, why deportations and detention – like migration policy in general – de facto constitute an important means in contemporary labour market policy.

This brief analysis of ‘illegality’ as an actively produced condition allows me to sketch out the dominating features of the post-Fordist migration regime which resembles ‘a temporal regime rather than a spatial regime’ in contrast to its Fordist predecessor (Tsianos and Karakayalı 2010: 385). As we have seen, the Fordist migration regime has developed around the figure of the ‘guest worker’ and tried to render their mobility productive by confining them to foreign worker hostels adjacent to their place of employment. The post-Fordist migration regime, by contrast, mainly coalesces around the figure of the ‘illegal migrant’. Here, the mobility of living labour is regulated in a temporal manner, as both detention camps and deportation dissociate the migrant’s body from its direct economic utilisation but nevertheless actively produce his deportability thereby guaranteeing that his sojourn is time-limited.

The second major difference between the Fordist and the post-Fordist migration regimes lies in migrants’ varying access to social and political rights: As we have seen, ‘guest workers’ enjoyed social but not political rights. The post-Fordist migration regime, by contrast, relies on detention and deportation as the principle means to create ‘the flexible separation of residence and labour rights’, which allows for ‘the outsourcing of the reproduction costs of undocumented labour’ on the transnational social networks of ‘illegal migrants’ (see Tsianos and Karakayalı). Put in cynical economic terms, the ‘comparative cost advantage’ of the post-Fordist migration regime becomes obvious if one considers that ‘illegal migrants’ do not receive any benefits in case of unemployment, will not be paid a pension on retiring and can neither see a doctor nor send their children to school without the risk of being deported.

‘Illegality’ as a stake

As we have seen, Mezzadra (2011) regards ‘illegality’ as both an actively produced, but contested condition. He also understands ‘illegality’ as a strategic stake of migrants themselves, which reflects the ambivalence of their subjective practices. In this regard, it should be remembered that it is the migrants in the first place, who render borders porous. Hence, the European border regime comprises an asymmetrical power relation, which does not result in the proclaimed immobilisation of migrants, but in the institutionalisation of a compromise. Migrant practices recode the devices of border control into mechanisms that still enable mobility and labour, but only under the precarious conditions of ‘illegality.’ The precarious living and working conditions of ‘illegality’ are not the end of the story as illustrated by the migration of so-called harragas or brûleurs (who derive their name from their practice of ‘burn’ their papers before departing in boats from Western Africa and Morocco to the Canary Islands).

Although UNHCR informs migrants upon their arrival  on the Canary Islands of the possibility of applying for asylum, only 365 out of the 32,000 migrants, who arrived in the ‘record year’ 2006, did  so. Due to the long duration of the asylum process and the minuscule recognition rates, the majority of migrants prefer to conceal their identity in order to preclude their immediate deportation. After the maximum detention period of 60 days, they are transferred to the Spanish mainland, where they either look for jobs in the informal labour market or continue their journey to other destinations within the Schengen area. Although they have to endure the often highly precarious living and working conditions implicated by their ‘illegality’, for many harragas ‘illegality’ has only been a transition period as several ten-thousands of them have profited from the numerous legalisation programmes in Spain since the 1990s. Hence, migrant ‘illegality’ can indeed be interpreted as a strategic stake. The persistence of self-organised migratory movements in conjunction with a strategy of collectively organised invisibility, which migrants pursue in order to avoid detection, has repeatedly forced various European member states to initiate so-called ‘regularisation programmes’.

Besides these ‘imperceptible politics’ illegalised migrants have also frequently engaged in collectively organised political protests (as in Italy during the ‘day without us’ in March 2011), or prolonged campaigns involving hunger strikes (as in Greece), or the occupation of churches and administrative buildings (as in France). While the imperceptible politics mentioned above literally provide the material basis for these protests, the latter are based on a strategy of visibility, thus, constituting those moments, in which illegalised migrants ‘constitute themselves as citizens – or, to use Isin’s conception of it, as those to whom the right to have rights is due’. As Iker Barbero rightly argues in his second blog entry what do sans-papiers want?, these protests can therefore indeed be understood, investigated and theorised as ‘acts of citizenship’. For in and through these inherently political acts, and this is crucial for the argument that I am trying to make, migrants with or without papers emphasise, that their subjectivity can neither be reduced to labour power (as in the figure of the ‘guest worker’) nor to a humanitarian problem (as in the figure of the asylum seeker) nor to a mere security issue (as in the figure of the ‘illegal’).

Hence, ‘acts of citizenship’ by migrants contradict the view that the current framework of EU citizenship resembles a post-national, more inclusive alternative to national models of citizenship, as it tries to generate a sense of ‘European’ belonging through the provision of rights across the national borders of its member states. By contrast, migrants’ claims for the ‘right to have rights’ bring to the fore the fact that the current model of EU citizenship actually implicates a legacy of the nation-state system, because, as Rigo has pointed out, European membership depends on being a citizen of a member state. Migrants’ protests therefore reveal that the current framework of EU citizenship is based on an aporia since, as Balibar notes. it tries to integrate (and treat as equivalent) two conflicting ideas of the people, ‘ethnos, the ‘people’ as an imagined community of membership and filiation, and demos, the ‘people’ as the collective subject of representation, decision making, and rights.” As a consequence, the European polity has become a vast borderland, because it tries to come to terms with already existing as well as contemporary migrations, which cannot be accommodated by its exclusionary model of citizenship, through a proliferation of varying legal statuses. Through their claims for the ‘right to have rights’ migrants, not only contest their resulting disenfranchisement, but also create a rupture in the impossible equation that underlies the contemporary framework of European citizenship.

The link between migration and citizenship, which migrants establish and reaffirm through their protests, is creative. It opens up an alternative space to understand and negotiate migration. The recent arrival of no more than 20,000 migrants at the shores of Europe in the context of the uprisings in Tunisia and Libya demonstrates that we lack a language to think of and speak about migration, which transcends the vocabulary provided by established migration policy discourses. Depending on the political orientation of the newspaper, these migrants were either labeled as ‘refugees’ in the need of protection or as ‘illegals’ who ought to be deported. This dichotomy of victimisation (through the figure of the ‘refugee’) and criminalisation (though the figure of the ‘illegal migrant’) is complemented by the commodification of migrants through the figure of the ‘guest worker’, which resurfaces in the increasingly influential migration policy discourse on ‘circular migration’. Despite all their differences, all three labels have one feature in common: they all try to render migration governable through its depoliticisation by negating the fact that migrants have a will of their own, one that, more than seldom, differs from the plans, intentions and objectives of those, who wish to help, employ or control them.

While migrants’ protests insert the notion of citizenship into this discursive field, thereby shifting its limits and countering its depoliticising effects, recent scholarship in citizenship studies has successfully begun to develop a new vocabulary through the theorisation of these struggles. This new vocabulary, including such figures as the ‘activist citizen’,  allows for thinking and speaking about migration beyond the established parameters set by the victimisation, criminalisation and commodification of migrants. Drawing on the work of Etienne Balibar, one could argue, that this new vocabulary permits us to understand migrants not simply as people coming to Europe, but as the people of the Europe to come. 

Details of literature cited are available on request.

Oecumene: Citizenship after Orientalism is funded by an European Research Council (ERC) Advanced Grant (Institutions, values, beliefs and behaviour ERC-AG-SH2).

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