The Human Condition of Being Undeportable

More recently, a new, accelerated asylum procedure has been introduced, which has resulted in the rejection of 60 percent of all asylum applications.3 Deportation is the “enforced and authorised removal of non-citizens from state territory.”4 In the Netherlands, deportation is established in the Vreemdelingenwet (Aliens Act) 20005: a non-citizen is deportable if she stays on Dutch territory illegally (has no legal residency), and has not left the Netherlands of her own accord within a particular prescribed time limit (article 63 Vw). Illegal residence, in turn, is defined as failing to meet the requirements for lawful residence stipulated in article 8 Vw. Deportable aliens may be detained on the basis of an administrative measure in order to prevent them from hiding in illegality to evade deportation (article 58 and 59 Vw).

Yet despite the intensified legal and administrative efforts to deport aliens, there is a wide gap between deportability and actual deportation. In the Netherlands, for instance, about 50–70 percent of all deportable aliens are actually non-deportable: an estimated 50,000 aliens according to Amnesty International. Non-deportation, or undeportability, is the practice of, first, detention of an alien, on the basis of an administrative measure, for the purpose of deportation. Next, the court eventually decides that the alien is to be dismissed from detention if the prospect of deportation in due time is lacking because the alien does not avail of the proper identity or travel documents. This may have various reasons, such as: non-cooperation (negligence or plain refusal) by the deportable’s “country of origin”; by omitting to issue the required travel documents (a so-called laissez-passer); statelessness (including statelessness due to the demise of the alien’s country of origin after her departure) as a consequence of which the alien has no nationality and hence no identity and travel documents at all; or the alien’s own non-cooperation by destroying her identity documents, etc. Yet, while the alien can no longer be held in custody, she still cannot claim accommodation, because she has no right of residence here. As a consequence, she is put out on the streets (“klinkeren”), and usually routinely re-detained in due time. This group of aliens includes failed asylum seekers and aliens without residency who have never entered any asylum procedure at all. In short, undeportability is the condition of those illegal aliens who are liable to be deported, though simultaneously cannot be so.

In this paper, I will explore the under-theorised phenomenon of undeportability. I will argue that it results from fundamental legal and political tensions, or what could be called the “paradox” of politics and democracy or a “rights gap” in international law. In the second part of this paper, I will discuss the question of claiming collective agency of undeportable illegal aliens in light of these tensions, gaps and paradoxes. But first, let me explain why the structural tensions easily escape attention. 

In current public debate and policymaking, we see a tendency to enlarge the role and agency of one party in this triangle: the deportable alien. Politicians, officials and many citizens agree upon an interpretation of undeportability as (mainly) the effect of the deportable alien’s own actions, i.e., her willingness to cooperate with state authorities of the host country in order to enable her own deportation. Based upon this view, undeportability is a choice, the persistence, duration or termination of which is contingent upon the willingness and actions of the deportable alien herself. In fact, it is seen as a temporary condition by definition, i.e., as pertaining to the interval between the authorities’ decision to deport and the time it takes the illegal alien to succeed in obtaining travel documents. Only if detention and undeportability continue despite the individual’s efforts to accomplish her own deportation, is a second party in the triangular relation of undeportability taken into account: the “country of origin”. In the dominant public and political discourse on detention, deportation and non-deportation, the state of the host country is not seen as party in the construction of undeportability, but only in its opposite: deportation.

The upshot of this analysis is to point out the tendency to individualise the problem of undeportability. Hence the widespread acceptance of the idea that undeportability is a choice. My point is not to deny aliens’ agency, but to show how this individualisation serves to obscure fundamental political and legal tensions which inform the triangular relation of undeportability (not to mention gross global material inequalities). This logic of individualisation calls to mind the argument underlying the famous slogan of second-wave feminism: “the personal is political”. This slogan meant to challenge the reduction of the depressing social situation many women in the US and in Europe found themselves into a personal problem, and instead aimed to show that this situation reflected structural unequal gender relations. Many second-wave feminists argued that the individualisation of collective, symbolic or structural problems actually serves to justify, reproduce and eventually reinforce patriarchal gender relations. They advocated collective action by making visible (public) what was formerly invisible (private).6 The analogy between the marginal situation of women (at least as it was felt in the US and in Europe in the 1960s and 1970s) and undeportable illegal aliens may be helpful in yet another respect, pertaining to the issue of collective emancipation. In her famous book The Second Sex (1949), Simone de Beauvoir discussed the reasons for the individualisation of women’s collective submission. She thought women's emancipation (in 1949 that is) lagged behind that of other marginalised and oppressed groups, such as workers, Jews and Afro-Americans because women did not organise on the basis of a collective identity, that is, had never said “we” and hence had never claimed collective agency vis-à-vis men. Unlike other oppressed groups, Beauvoir argued, women’s oppression has no clearly defined past. Hence their inferior alterity has gained a semblance of immutability and naturalness, that is, has been naturalised into a static essence: the “myth of woman”. The fact that women themselves had in Beauvoir’s view never truly engaged in a struggle for subjectivity has reinforced the myth of the absolute, that is, ahistorical and immutable nature of women's submission. A second reason, Beauvoir thought, was women's division along socioeconomic, racial and cultural lines – “unlike the proletariat, they have no solidarity of labour or interests . . . they live dispersed among men” – which may explain the lack of “we-saying”, a sense of mutual solidarity.7, p. 8.]

This is where I believe the analogy between the emancipation of women, respectively undeportable illegal aliens, should end. Unlike most women, illegal aliens are as a principle non-citizens in the state on whose territory they are residing. Although Beauvoir seems to be right that the appeal to some “we” (or “we-saying”) is required as the basis of collective action on the part of excluded groups, it is not immediately clear which “we” could advance the cause of undeportable aliens best, for example the “we” of “We are all human beings”, “We are here”, “We are all illegals”, “Not in our names”, etc.

Before proceeding with the question of collective agency of undeportable aliens, I will explore the fundamental political and legal tensions involved in the phenomenon of undeportability.

Arendt’s work is helpful in identifying a number of features that are key to the condition of statelessness and undeportability in general. First, the loss of one’s “place in the world”, i.e., the loss of one’s membership in a political community – any political community. The undeportable alien is an apatride (homeless person). Second, as a homeless person, the illegal alien is thrown back on her “natural givenness”, “mere organic life” or the “abstract nakedness of being (merely) human” and reduced to a mere member of the species homo sapiens. The Italian legal philosopher Giorgio Agamben has recently called this feature of unqualified human existence “bare life”: the naked fact that we all have been born as human beings.13 Such a person lacks that which makes someone’s life a qualified, properly human life, namely (the capacity for) speech and action in concert with others in a common world. Undeportable aliens are still human beings. Indeed, they are nothing but human and that gets one nowhere in this world. In an autobiographical essay written in 1943, Arendt wrote: “(B)eing a Jew does not give any legal status in this world. If we should start telling the truth that we are nothing but Jews it would mean we expose ourselves to the fate of human beings who, unprotected by any specific law or political convention, are nothing but human beings.”14 In Arendt’s view, the principle of inalienable human dignity which is given at birth ⎯ simply because we are human beings is a fiction, and an empty, meaningless fiction at that, or even a pious lie that absolves us from taking political responsibility.

Third and finally, being without a home, and reduced to bare life, the undeportable is completely rightless: she is deprived of both her civil rights and her human rights, and the latter exactly because she has no civil rights. Eventually, her condition boils down to a lack of the “right to have rights”, a notion I will explain below.

Human rights are supposed to apply to all human beings, independent from one’s citizenship and residence status, i.e., one’s situation at birth. This is the legacy of modern natural law theory, in particular John Locke’s Second Treatise (1689). According to these theorists, human beings are bearers of inalienable rights, simply by virtue of being born as human beings. Nature – in the double sense of human nature and life itself, including our being subject to nativity, vulnerability and mortality thus constitutes the foundation of inalienable, i.e., pre-political, human rights. Locke has exerted a profound influence on both the American Declaration of Independence and, partly mediated through the former, on the French Déclaration des droits de l’homme et du citoyen. The legacy of the naturalism of both human rights declarations is also clearly visible in the Preamble and 1st article of the Universal Declaration of Human Rights (1946). Contemporary liberal philosophers such as Amartya Sen and Martha Nussbaum, typically base their justification of human rights on some essential feature of the human being or moral principles that supposedly exist independently of human political affairs.

However, by virtue of their sovereignty (that is: democratic self-determination), nation-states as a principle include particular people by granting them citizenship, namely their own citizens on their territories – and exclude others, namely aliens. As such, the principle of national sovereignty undermines the principle of universal rights. In recent years, this conflict has been framed in terms of a tension between liberal and democratic currents or traditions within liberal democracy, between equality and liberty, law and politics, etc. in short: the paradox of politics mentioned previously.

The relationship of human rights and national sovereignty does not only constitute an irresolvable contradiction, Arendt argued, but also and simultaneously a relation of interdependence, which makes the problem even more intractable. For the human rights regime is dependent upon the cooperation and consent of sovereign nation-states. Human rights are realised in and through the nation-state, that is, nation-states are the entities that set them up in the first place and to date are the prime agents responsible for interpreting, enforcing and protecting human rights, allegedly the rights of human beings qua human beings, whether citizens or not.16

In Arendt's view, this interdependence of human rights and sovereignty points to two convergences – first, to the convergence of human rights and civil rights. Arendt demonstrates that this state of affairs can be traced back to the prehistory of the discourse of human rights. Our current discourses and practices respectively of civil and human rights simultaneously came into being in the wake of the French Revolution as they were articulated in the 1789 declaration of human rights. This led to the unwitting identification of human rights and civil rights from the very start. As a consequence, the supposedly universalistic identity/category of being human, that is, the “man” of the “rights of man”, converged with the particularistic identity of being citizen.

A second convergence pertains to the identification of citizenship and nationality, or nativity, as I would call it. The concept of the modern nation-state ties citizenship to the arbitrary conditions of one’s birth (natio), be it in a specific territory (jus soli) or to a specific ancestor (jus sanguinis). The fact that even formal UNHCR documents use these notions interchangeably, testifies to the strength of this identification to the point that it has been naturalised, that is, has become a matter of fact, and is no longer noticed any more. As a consequence, a political category, “citizenship”, is grounded in an organic one – birth, i.e., nativity. Being-citizen thus converges with being-national. Nationality – though not citizenship per se! – is exclusive, arbitrary and restrictive as a matter of course, for it is grounded in natural, immutable properties one can do nothing about. Although coming from a very different tradition in political and legal theory – political liberalism – legal scholar Ayelet Shachar has indeed recently demonstrated convincingly that the “civic” principle of jus soli and the “ethnic” principle of jus sanguinis share a crucial feature: both make the transfer of citizenship dependent on birth circumstances, in the first case where, in the latter to whom one happened to be born. Whence the felicitous title of her book: The Birthright Lottery (2009).

The implication of the simultaneous contradiction and interdependency of human rights and citizenship is a particular circularity of legal-political belonging. One already has to belong to the nation to be eligible to claim the civil rights pertaining to that belonging, and subsequently be able to claim human rights. This circularity, I think, is key to understanding the rights or protection gap in international law, and the paradox of politics. Those without nationality do not enjoy citizenship, and those without citizenship cannot lay claim to allegedly “inalienable”, “natural” human rights. In other words, human rights, Arendt argues, can only be protected through civil rights, which can only be claimed by nationals. The undeportable is the symptomatic figure for the concealed contradictions, circularity and their breakdown.17

The convergences of nationality and citizenship, and of citizenship and human rights, imply that the ideal of human rights is thoroughly imbued with a naturalist and nationalist, and therefore exclusive, restrictive, arbitrary and deterministic logic, which gives the lie to its supposed universalism. The high-minded ideals of universal human rights turn out to conceal a false inclusivism. For legal citizens, the convergences of man, citizen and national are unproblematic, to the point that they will not even notice them, because the convergences are naturalised and concealed. The problem only becomes visible the moment aliens turn up who do not dispose of a nationality whatsoever, either de jure or de facto. For since political organisation in modernity is fully monopolised by the nation-state system, Arendt thought, those without a nationality have nowhere to turn. Geographically, the nation-state system operates as a comprehensive and all-embracing global system, a globus. On second thought, though, it is a closed economy with a leak in it. The nation-state system produces its own outside, through which a residual group of people, those without effective nationality, are excluded inevitably and irreversibly. Arendt contends that the camp is the sole space left in this system for those who pass through the leak. Hence, there is a bitter irony to the spectacle of self-established tent camps of undeportable aliens and the Vluchtgevangenis (“refugee prison”) since 2012, etc.

Political theorist Seyla Benhabib is much more optimistic than Arendt. In her view, the “right to have rights” entails a universal human right to have civil rights. It would invoke the moral claim – a Kantian-style moral imperative – that everyone is entitled to positive rights and state protection, by virtue of the principle of universal moral reciprocity: “We are all human beings”. By extending international law, humanity will eventually succeed in filling the rights gap, she believes. In claiming so, Benhabib ignores the important historical lesson Arendt taught us about statelessness. Particularly striking is her neglect of the condition of undeportability due to the rights gap that fundamentally separates citizens and non-citizens (i.e., aliens).

Here I think Honig’s Arendtian-inspired reflections on, what she calls, the “paradoxes of law and politics” in the present European context might offer a promising way out.22 Although Honig herself doesn’t present it that way, her account could be seen as a corrective to both Arendt’s pessimism and Benhabib’s misguided optimism, exactly by employing Arendt’s insistence on beginning, contingency and the indispensability of civic action-in-concert. In Honig’s rendering of the paradox of politics, it points to the intertwinement or “chicken-or-egg issue” of rights and politics: the latter meaning (collective) democratic action or agency. In the case of immigrants, this paradox means that “we need rights because we cannot trust the political communities to which we belong to treat us with dignity and respect; however, we depend for our rights upon those very same political communities.”23 Like Arendt, Honig argues that there is no way out of this paradox, and no way out of the need of belonging to some legal-political order. So there will never be a final, once and for all legal solution to the rights gap into which aliens tumble, as for example Benhabib argues. Every legal-political order, however universalistic, inclusive or egalitarian its aspirations, inevitably produces its own remainders – those who do not belong. These remainders – and the related rights gap – cannot be remedied by an extension of (existing) rights – for example international or cosmopolitan law – alone. Law needs the supplement of politics, that is, of democratic civic action. Honig favors a political, that is, democratic, over a legal or juridical approach to the problems associated with the rights gap. She calls for democratic actors, particularly immigrants, to reclaim collective agency in particular by “taking” or “making” rights, in line with Jacques Rancière’s view on “the rights of those who have no rights”.24 Those groups who have no right to enter the public arena as legitimate actors – primarily, in his examples, women and workers (the proletariat) – should act as if they are already part of the “we” of the people, and act as if they already have those rights they formally cannot claim, rather than wait for these rights to be given them (without being sure these rights will ever be granted). Rancière describes such practices of claiming collective agency as “making visible what had (formerly) no business being seen, and mak(ing) heard a discourse where once there was only place for noise.”25 By privileging formal, institutional legal change (national and international institutions), we might become pessimistic and overlook hopeful political activism, such as the self-established tent camps of undeportable aliens, Honig suggests. In her view, the paradox of rights and politics is potentially productive.

The slogan “We are here!” could serve as an excellent example or illustration of this type of emancipatory collective action. This motto could potentially fuel a politics of visibility, intent on transforming the natural invisibility of homo sacer that individual illegal aliens benefit from maintaining, into public visibility of illegal aliens as a group. However, I still doubt if this slogan is appropriate relative to the problem at hand. Let me explain my doubts by returning to Honig and Rancière. Their call for democratic civic action is refreshing, hopeful and empowering if compared to Arendt’s rather dark and pessimistic perspective of the predicament of the undeportable. Still, their account raises a serious concern. It might be helpful in the case of legal immigrants, however, calling for illegal, particularly undeportable, to “make” or “take” rights is misguided in my view. Although Honig and Rancière both discuss Arendt's notion of the right to have rights as well, I am not sure if they take its lesson serious enough. Honig interprets the right to have rights as an unconditional moral right to have positive – i.e., conditional – rights.26 Like Benhabib, Honig ignores the condition of undeportability; it is not simply the rights of undeportable aliens that are denied or violated, but moreover their very access to the sphere in which rights could be claimed in the first place. They are truly outlaws because they are not only deprived of civil rights and human rights, but of the very “right to have rights”. The claiming, making or taking of new rights seems ultimately seems the privilege of those who already have civil rights, that is, of citizens (however marginalized or second or third class), i.e., those who already belong to the people.27 Indeed, the examples Honig – and Benhabib as well, for that matter – discusses are all about “immigrants” or “foreigners” in general, and implicitly of “documented” or “regular” migrants (with some sort of citizenship status) at that. However, it is a very specific group of aliens the undeportable and undocumented, not migrants or foreigners in general that expose the very rights gap, i.e., the problem of lacking a right to have rights. Those without any recourse to citizenship do not simply have a weak voice, but no voice at all; they do not simply fail in “making heard a discourse,” but do not even produce “noise”, to use Rancière’s phrase. I am not sure if, under this particular condition of rightlessness, the “We” of “We are here!” is not simply homo sacer.

This suggests a negative answer to the question of the possibility for reclaiming collective agency by undeportable undocumented aliens (“We illegals”) and its potential for improving their situation, in the light of the rights gap. The failure of recent experiments in undocumented democratic activism in the Netherlands might be accidental, but could very well be symptomatic for this deficit, the right to have rights.

I have established here some doubt that the undeportable themselves can even start to engage in the democratic work of tackling the rights gap because of the groundlessness of rights. If I am right in noting that the taking or making rights is indeed the privilege of citizens and the undeportable as non-citizens are devoid of collective agency, then the conclusion seems to be inevitable: another “we” is to be called upon if “we” wish to advance the cause of undeportable aliens best. And action by citizens belonging to the very polity from which illegal aliens are radically excluded is required. I’m not sure though, if this is desirable, or under which conditions, or in which form. I see roughly two different framings of citizens’ action.

The first is suggested by Jacques Rancière in relation to oppressed colonial subjects (Algerians) and is based upon citizens’ “disidentification” with “we the people” (“Not in our names”) and identification with non-citizens (“We are all illegals”).28 However, I’m quite sure we are not all illegals, since those belonging to the people and those who don't are separated by a legal gap – the right to have rights – and therefore experience the world and their home in it in a fundamentally different way.

A second framing of citizens' action could be “representative” action on behalf of, or in the names of, illegal aliens (“them illegals”). Maybe those who do belong to the nation should speak and act, vicariously, on behalf of those who don't. But doesn’t this step again suspend potentially indefinitely the collective agency of the undeportable, and make them dependent on the arbitrary favour and mercy of well-meaning citizens, or even worse, of citizens who instrumentalise the predicament of the undeportable to raise attention for their own concerns? This confronts us with the very challenging question, both theoretically and politically: How to think and act beyond the nation-state?