Shakespeare would say that a rose would still smell like a rose, no matter how we name it – because the very essence of things and people does not depend on their names but rather on their inner qualities. And yet, at least in this case, Shakespeare would be very wrong. In this case it is the way people are named that creates the way people are – or at least the way they are perceived – and it can have very long lasting and relevant effects on their lives and on their futures.
Liquid Modernity and Administrative Uncertainty: The “Whos” And “Hows” of Irregular Status
There are multiple ways to define people that, for one reason or the other, do not have an official piece of paper to justify their entry, or their presence, within the territory of one State: illegals, irregulars, sans papiers, clandestinos. This terminological uncertainty comes straight from the fact that not only it is difficult to decide how to name such group but also, and preliminary, it is difficult to decide who should belong to such group, and who should not. This often forces experts to long introductions to try and clarify which term is being used, why it is being used and how it should be intended. On the other hand, the very fact that there is no unequivocal and incontrovertible way to identify such population is already an indication of one of its main characteristics: its liquidity. And it is not perhaps by chance that such category of people is becoming more and more relevant precisely during these times of ours which, according to some, are liquid times, characterized, according to Zygmunt Bauman, by “their fragility, temporariness, vulnerability and inclination to constant change”. In a way, the Sans-Papiers thus epitomize the precariousness and the uncertainty of our lives – as well as their bureaucratization, their increased dependence on laws, rules and provisions in order to run smoothly.
By trying and answer to the first of the above mentioned questions – who should and who should not belong to this group – we immediately get to the core of the legal quagmire that serves as a background to the situation of the Sans-Papiers. Irregular migrants are obviously all those who cross the (maritime or land) borders of a State without the required documentation (identity documents and, where necessary, a VISA): it is mostly them that the media and the politicians refer to when speaking of the “hordes” that Europe would allegedly be facing these days.
But irregular migrants are also – and here things start to get much more complicated – those who, having entered a country on a regular basis, either overstay their permit of stay, or breach the conditions attached to it. Take, for instance, all those young-and-free backpackers that start long journeys across Europe, or Australia, to celebrate the end of their college years before starting university: if they decide, carried by their enthusiasm, to stay “just a little bit longer”, thus disregarding the terms of their “tourists visas”, they become irregular migrants because their permanence within the country is no longer covered by any administrative permit. Another example: take the smart and motivated students that from all over the world come to European Universities to get their degrees. If they decide – in order to earn some extra money – to work a little aside of their studies… they may also become irregular migrants because they are breaching the conditions attached to their “student visas”, which require that they only study without engaging in professional activities. Irregulars can also be refused asylum seekers, or children (unless specific provisions on citizenship apply) born from parents that do not have permission to stay.
What is interesting about all these situations is their variety, despite all of them having an administrative violation at their core – and the fact that they are not defined in the same way: Sans-Papiers is generally used to indicate mid to long term immigrant stayers without documents; overstayers is used to indicate the ones who, despite having entered regularly, do not leave the country at the expiry of their permit; “bogus asylum seekers” is used to indicate people whose claim for asylum has been refused, regardless of the reasons; irregulars is broader and also tends to include people who cross the border without proper visa. When other words such as illegals or clandestinos are used, the picture is becoming more blurred: the penal connotation of these words immediately connects the conducts – and, most importantly, those who commit them – to a criminological sphere. This happens despite the fact that in the domestic law of the States, irregular entry and stay are not always a criminal conduct (although this is increasingly the case; at least in Europe) and even though criminal law is in any case used here only as a mere “intensifier” of an apparatus of administrative control.
A Rose without Her Name Would Still Be a Rose…. Or Wouldn’t It?
The normative ambiguity of the concept of Sans-Papiers is perhaps showcased at best by the regularization mechanisms (or programs). They may be conducted on a one-time basis, targeting very large groups of irregular aliens, or on a permanent basis, dealing with one single case at the time. Their result does not change: exerting a more or less discretionary power, the State – suddenly and with a stroke of the pen – cancels the stain of the initially indelible “illegitimacy” with the result that…. the person who was already there is still there. The only, big difference being that the obstacles that stood between the physical presence of the person within the State and that same person’s legal recognition are removed, thus allowing the individual to get access to the full range of rights and duties connected to her new status.
It is not uncommon, in the life of an ordinary citizen, to breach administrative provisions: what generally happens as a consequence of that is that the citizen pays a fine, and moves on with his or her life. The breach of any administrative provision, as serious as it can be, does not have any repercussion on this person’s identity, and of course does not put his or her essence into question. The problem with the situations described above is that the breach of administrative provision makes the very presence of a person within a State no longer accepted. And this translates all too quickly in the fact that the person as such is no longer accepted, and that, as a consequence, she or he becomes illegitimate, or, precisely, irregular. That is why this is perhaps one of the fields of law where words matter the most and this is why International and European bodies and Institutions refrain by now from using terms such as illegals or clandestinos: the risk is to criminalize not an act, but rather a way of being, thus making the uncertain lives of such people even more precarious.
In the case of Sans-Papiers, at least, Shakespeare was wrong: the way you call someone, sometimes can make a world of a difference.
Lucia Della Torre
PostDoc, nccr – on the move, University of Lucerne
European Commission, (2009). Clandestino Project, Final Report.
Düvell, F., (2011). “Paths into Irregularity: The Legal and Political Construction of Irregular Migration”. European Journal of Migration and Law, 13(3): 275–295.
MPI, (2011). Irregular Migration in Europe.
Vogel, D., Kovacheva, V., Prescott, H., (2011). “The Size of the Irregular Migrant Population in the European Union – Counting the Uncountable?”, International Migration, 49(5): 78–96.