State desertion and “out-of-procedure” asylum seekers in the Netherlands

in Focaal
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  • 1 University of Amsterdam b.kalir@uva.nl

Abstract

Each year the Dutch authorities categorize scores of people as being “out of procedure” (uitgeprocedeerd). These are mostly “failed asylum seekers” who have exhausted all legal appeals in search of regularizing their status in the Netherlands. Out-of-procedure subjects, or OOPSs, have no formal rights and receive no state provision. They must leave the country voluntarily within one month or risk deportation. Many OOPSs who spent weeks or even months in Dutch detention centers are eventually released onto the streets, as the authorities cannot manage to deport them. This article interrogates the production and treatment of OOPSs as nonexistent human beings who are no longer considered by the state as “aliens” but merely as illegalized bodies. This intriguing case of the state deserting certain people within its sovereign territory is realized through a process of derecording OOPSs and formally pretending that they are not part of the governed population.

Thousands of asylum seekers annually apply for protection from the Dutch state. The number of asylum applicants fluctuates across time and ranges from 50,000 per annum in the early 1990s, in the midst of the Balkan wars, to around 10,000 to 15,000 in the 2000s. More recently, in 2014, as a consequence of the dictatorial regime in Eritrea and the civil war in Syria, around 22,000 new asylum seekers applied for protection in the Netherlands. In 2015, the number of new applicants exceeded 40,000.1 With an average recognition rate well below 50 percent across the years, this means that there are tens of thousands of people in the Netherlands whom the state formally declared “failed asylum seekers.” These “failed asylum seekers” can employ certain legal measures to appeal the formal verdict regarding their application, and once their appeal has been processed and they have been denied protection status in the Netherlands, they are then categorized as “out of procedure” (Uitgeprocedeerde).

The Dutch state issues an order for out-of-procedure subjects (hereafter, OOPSs) to leave the Netherlands within 28 days or face potential detention and forced removal. If OOPSs do not opt for an assisted voluntary return program (for example, via the International Organization for Migration) or notify the state about their departure from the Netherlands in any other way, they are then recorded as being “independently returned without supervision” (zelfstandig vertrek zonder toezicht). Importantly, in the annual records of the Dutch Repatriation and Departure Service (Dienst Terugkeer en Vertrek; here-after, DT&V), which documents people who have left the country, the largest category is that of “independently returned without supervision.” In 2014, for example, out a total of 9,800 people whose departure was recorded by the DT&V, 5,150 were classified as “independently returned without supervision,” 2,100 as “forced removal,” and 2,550 as “voluntary return.”2

In practice, however, many OOPSs who are recorded as “returned without supervision” in fact remain in the Netherlands, either because they refuse to go back or because they are unable to return to their country of origin, as is often the case if not in a possession of a (valid) passport. Guesstimates put the number of OOPSs in the Netherlands at anywhere between 20,000 and 60,000, but it stands to reason that the actual number is considerably higher. OOPSs are considered “illegals” by the Dutch state, with no rights to work or to receive any state provisions. Thus, OOPSs mostly live within support networks of family and friends, or end up in squatted buildings and on the streets. They seek to earn a living as undocumented workers, but can end up foraging and begging in the streets.

Some OOPSs receive assistance with shelter, basic food, and health care from local and national nongovernmental organizations (NGOs), international humanitarian organizations (such as the Red Cross or Amnesty International), religious associations, and other civil society organizations. Extending assistance usually involves a process of rerecording OOPSs in the databases of these organizations, many of which are often, at minimum, partly funded by the Dutch state. For example, in Amsterdam, I met a number of OOPSs who occasionally received a bed for the night in shelters for homeless people that are run by local government. Therefore, we must acknowledge the disaggregated structure of “the state” in the Netherlands, where the national authorities who are in charge of the status determination of asylum seekers formally abandon OOPSs, while the local authorities and other state-funded or parastate organizations rerecord and assist them.

Notwithstanding practices of rerecording OOPSs, their legal categorization as deportable subjects renders encounters with the police risky, as these can lead to arrests and attempts to deport them. Many OOPSs who spent weeks or even months in Dutch detention centers were eventually released onto the streets, as they could not be deported. This was mainly owing to the fact that they lacked the necessary travel documents.

This article interrogates the Dutch central state’s treatment of OOPSs as nonexistent human beings. By officially ignoring their existence, the state removes their formal status as political subjects. For the state, then, OOPSs can no longer be considered “aliens”; they are merely illegalized bodies whose singular materiality is effectuated at the point of their potential deportation from the Netherlands. This is an intriguing case in which the state, after having thoroughly documented asylum seekers during their application for protection in the Netherlands, moves on to a process of derecording these subjects, formally pretending that they are not part of the governed population within the sovereign territory.3 What does this policy tell us about the state and its relation to noncitizen subjects? What does it tell us about the relationship between recording and governing? These are the questions that guide this inquiry. The article proceeds with a theoretical discussion, supplemented with an ethnographic account of the ways in which Dutch bureaucrats and politicians address the issue.

The fieldwork that informs this article was conducted among various state agents in the Dutch deportation field from January 2012 to October 2014. I mostly interviewed officials at the DT&V who were responsible for deporting OOPSs as well as all other illegalized migrants.4 In addition, I interviewed civil servants in the following institutions: the Immigration and Naturalization Service (IND), the Central Agency for the Reception of Asylum Seekers (COA), the Military Police (Marechaussee), the Ministry for Security and Justice, and the local government in Amsterdam. I also spoke to many OOPSs about their experiences and interactions with different state agencies. While I draw on insights elicited from my direct interactions and observations during the fieldwork, I also pay attention to the discursive battle that has been ongoing in the Dutch media when framing the phenomenon of OOPSs.

The state of (il)legibility: Between control and desertion

Much of the discussion on state (il)legibility (Scott 1998, 2009) is centered around the attempts made by states to render their population readily legible. While some scholars point to the political, bureaucratic, and economic limits of the recording capacity of states (Chabal and Daloz 1999; Hull 2012), others argue that different state agencies may deliberately shy away from recording certain subjects at certain times and in certain locations (Anderson 2010; De Genova 2010; Kalir and Van Schendel, this issue; Vrăbiescu, this issue). A significant amount of scholarly work has also been conducted on the agency of individuals and groups that seek to evade the recording state and intentionally remain in its shadow (Chavez 1998; Kalir 2010). The case study of OOPSs presents an interesting constellation in two respects. On the one hand, the state moves toward a formal disregard of subjects whom it has thoroughly recorded. On the other, people who initially sought the formal recognition of the state by applying for protection must now either hide from it in fear of retribution or confront it politically from the inferior position of an unrecognized political subject.

There are a few puzzling aspects of the Dutch policy vis-à-vis OOPSs that I would like to explore. I argue that these aspects call attention to the presence of a broader state logic of desertion, which seems to be incompatible with the idea of a rational modern state that strives for legibility in controlling the population it governs. I locate this logic of desertion in a shift from an all-seeing Panopticon modern state (Foucault 1977) to a state that governs through a modality of “inclusive exclusion” (Mezzadra and Neilson 2011) of subpopulations that are reduced politically to the condition of bare life (Agamben 1998).

I do not share Giorgio Agamben’s somber nullification of political agency among actors like OOPSs. As many scholars have shown (De Genova 2005; Kalir 2014, 2015; Nyers 2011), OOPSs and other subjects who stand outside the accepted political boundaries set by states are crucial in the making of politics “that come about solely through interruption” (Rancière 1999: 13). Nevertheless, I take note of Kalir and Wissink’s (2016: 37) reminder that “[to] expectantly focus on the agency of illegalized migrants as a transformative power thus runs the risk of overburdening them with a problem that lies in the politico-juridical framework of which they only are part by exclusion.” In this article I wish to stress the practices and views of those who set political and legal boundaries that externalize OOPSs.

My argument is inspired by the work of Hannah Arendt (1973), who tied the logic and understanding of the privileged legal position of recognized citizens in Europe with the reduction of “natives” in the colonies to the noncitizen status of “subject races.” As Timothy Mitchell (1991, 2002) has shown, the British colonial rule in Egypt restricted the mobility of the “natives” and subjected them to exploitative economic policies by abruptly changing the laws that regulated mobility and selectively applying them in ways that served the colonial bureaucrats’ interests.

I concur with scholars who argue that in the aftermath of colonialism and with increased migration from the global South to the Western North, the restrictions on the mobility of “subject races” have been fully deployed within the metropolis (De Genova 2010; Svirsky and Bignall 2012; but see also Fanon 1952). I also agree that restrictions on the mobility of “subject races” inside and outside the metropolis have always had a strong economic logic: disenfranchising noncitizens and reducing their existence to cheap and unprotected labor ready to be exploited by the national markets of Western societies (Harvey 2005). I would like to insist, however, on a parallel logic that is at play here and that has arguably taken a prime role in how Western states govern “subject races.” I refer to the symbolic logic of the nonbelongingness of noncitizens.

More specifically, I take the colonial logic that distinguishes between qualified citizens and “subject races” to still be fully operative within Western states; its purpose, however, is not primarily to exercise increased control, but to create the conditions that permit desertion. Put differently, states no longer seek the legality to count every subject within their sovereign territory, but the legitimacy to discount certain subjects, as if they no longer exist. This can be seen as one of the manifestations that Tania Li (2010) alludes to when she demarcates a move from “let live” to “make die.” Discounted subjects, such as OOPSs in the Netherlands, are crucially constructed by states as carrying full responsibility for their destitute condition.5 This process is best conceptualized as one in which states disown subjects. The only unaccomplished responsibility of states in this affair is to deport discounted subjects from the sovereign territory.

It can be argued that we live in an era in which a hegemonic discourse of neoliberalism produces a move, by states around the world, toward the dispossession of undeserving citizens and the “dismantling of institutions and narratives that promoted more egalitarian distributive measures” (Harvey 2007: 21). However, as I argue, the symbolic meaning of the figure of the deserted OOPS is especially invaluable within states that deal with a crisis of legitimacy due to intensifying encroachments on the rights and benefits of citizens with the securitization of society and the retraction of the “caring state” (Wacquant 2010). This crisis of legitimacy—characteristic of many Western states (Mbembe 2003; Polillo and Guillén 2005) but certainly not limited to them (Alfaro-Velcamp and Shaw 2016)—is then mitigated by the production of a totally deserted and deportable subpopulation compared with whom many citizens, suffering from varying degrees of dispossession, can still feel relatively “cared for” and ultimately protected.

In the next section, I elaborate on the state bureaucracy’s construction of the deserted subject as a nonbelonging person who carries full responsibility for her/his reduction into non-existence. The act of derecording places OOPSs outside the state’s governing range. As formally nonexisting subjects, OOPSs are “naturally” not in a position to claim or receive any state provisions. Therefore, I would postulate that increased legibility serves states in their attempts to achieve increased control over the bodies and especially the labor or other economic utility of the governed population. In the case of subjects whose economic utility is not the primary concern of the state, it is their illegibility that serves the state best, as it allows for the discounting of these subjects and the shedding of responsibility for their well-being and destiny.

States must straddle a thin line between being perceived as irresponsible or as not responsible (unaccountable) when it comes to the fate of OOPSs. Not controlling OOPSs’ exit from the state territory or releasing them onto the streets after a failed deportation attempt or an overdue detention period would certainly be considered irresponsible state policy. OOPSs are not allowed to work and are not provided any shelter by the state. Formally speaking, by knowingly producing the presence of OOPSs in society, states put the public order at risk, an order for which they are responsible. To secure their subsistence, OOPSs must either break the law (work illegally, steal, squat, beg, etc.) or be dependent on the good will of local individuals and organizations (charity organizations, NGOs, social movements, networks of friends and kin, etc.).

This may be why governments regularly engage in public and political campaigns to criminalize and dehumanize OOPSs (and other un-desired migrants) by portraying them as unruly parasites that take advantage of tolerant liberal states (Chavez 2001). Consequently, state authorities and politicians frame any perceived public disorder that involves OOPSs (street begging, undocumented labor, homelessness protest, etc.) as being the result of ungrateful behavior or the “bad nature” of OOPSs. This illustrates the state’s refusal to acknowledge responsibility for creating this social phenomenon, let alone for producing a state category that must be accounted for with full responsibility.

The state of (ir)responsibility: The making of unaccounted subjects

The making of OOPSs illustrates how the process of state documenting cuts both ways: it provides the material for state classification and policies, and at the same time it evidences the presence of unauthorized subjects and calls for accountability. In substantiating the decision to categorize certain persons as OOPSs, the Dutch state must produce documentation to detail all procedures that have been taken by different state agencies and compile evidence to justify a final assessment.6 This is done in the name of professionalism and in order to avoid allegations of arbitrariness in the process. Concomitant to this evidence-based policy is the process of inevitably substantiating the existence of OOPSs in a manner that can then cast doubt on the efficiency of having OOPSs deported from the country.

In practice, once asylum seekers are categorized as OOPSs, the state does not move immediately or proactively try to repatriate them. Instead, it issues an order for OOPSs to leave the country within 28 days. Given that statistics persistently show that the majority of OOPSs do not leave the country within 28 days and in most cases not in the months or years thereafter, one is left wondering why this regulation has remained intact. It is arguably an adequate state policy to allow OOPSs to leave the country of their own free will, with due time planning (within the prescribed period of 28 days) and without any coercive measures. However, after the expiration period of 28 days, any encounter between OOPSs and the police can result in arrest and detention for a period of up to six months. This period of six months in detention can be extended twice, thus resulting in the incarceration of OOPSs of up to 18 months for the administrative violation of an order to leave the country. Importantly, the arrest and detention of OOPSs requires a process of rerecording by the state. This reveals the flimsy and episodic nature of the derecorded status of OOPSs as nonexistent. OOPSs are invisible to the national authorities when it comes to state provisions, but they can instantly become visible again in the case of their arrest and detention.

It can be argued that the Dutch state knowingly exercises a kind of “surrogate deportation.” It declares OOPSs to be “independently returned without supervision” even though it is an open secret that most of them stay in the Netherlands. So, while nominally a deportation takes place, the bodies of OOPSs remain in the sovereign territory. It is only when these bodies come in contact with state authorities that a procedure is enacted in order to forcefully remove OOPSs from the country. This procedure regularly begins with the arrest and detention of OOPSs.

The detention of OOPSs or other illegalized migrants is only permitted by law when there is a clear view of their ensuing deportation. Nevertheless, academics and NGOs have conclusively shown that the Dutch authorities use detention for deterrence and as a form of punishment (e.g., Amnesty International 2008; Cornelisse 2016; Leerkes and Broeders 2010). The National Ombudsman (2012: ii) criticized this practice of detention in unambiguous terms:

I think this situation is serious and worrisome, and I ask whether it is decent—whether it is even humane—to lock up those who have not been convicted in this way. I am not the only one raising this critical question. Human rights organizations such as Amnesty International, international bodies such as the UN Human Rights Commission and the CPT, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, the academic community and church institutions have regularly criticized the way in which the Netherlands imprisons foreigners without residence rights.

According to Dutch law, OOPSs who do not leave the Netherlands “voluntarily” must eventually be subjected to forced removal. This poses the following question: why do the Dutch authorities not secure the repatriation of OOPSs immediately after determining their status as an OOPS? I asked a senior official at the DT&V who works on the repatriation of people who are likely to become an OOPS. The reply was:

If, in the end, my work [repatriating OOPSs] is not successful, I mean we don’t have travel documents, someone, erm … can’t simply be sent away because he holds back information [from the authorities about his/her identity] … and often, they have already been detained a few times before, so hmmm … we can’t put someone behind bars again. Do you know what I mean?

I nodded at the official and replied, “So, in fact, you can’t do anything.” The official nodded back and continued resolutely:

You can’t do anything! What would happen if, at the end of the process, you would, hmmm … well, in 90 to 95 percent of the cases, the process doesn’t end with the desired result [repatriation of the OOPS]. What would happen if you arrested people in 95 percent of the cases? I think that within half a year we would have no work left to do. You could then do away with the system [of working with OOPSs on their repatriation] … and also, what is the point of detaining people whom you have just constituted that you can’t deport?

As it transpires, one major reason for preventing the immediate deportation of OOPSs is that DT&V officials know that many OOPSs cannot be deported to their country of origin. The reasons for not being able to deport OOPSs (and other illegalized subjects) can vary from missing travel documents (asylum seekers often leave their country without documents or dispose of them en route), a refusal by the country of origin to receive deportees, medical issues that prevent OOPSs from being “fit to fly,” or life-threatening conditions existing at OOPSs’ country of origin that are recognized by the Netherlands. This last reason casts a big shadow on the decision of the Dutch authorities not to grant protection status to OOPSs who originate from a country that is acknowledged by the Netherlands as being in a state of war or crisis that precludes the repatriation of citizens of that state.

Thus, we should seriously consider the option that the state refrains from moving swiftly toward the deportation of OOPSs because it is clear that from a procedural point of view many OOPSs simply cannot be repatriated to their country of origin. In fact, Dutch law deals with this procedural limbo—in which people are categorized as an OOPS but cannot subsequently be repatriated—by stipulating a unique legal status: “nondeportable OOPS.” This status is called buitenschuld in Dutch, which literally means “beyond blame.” It means that it is beyond the blame of OOPSs that they cannot be repatriated. This “beyond blame” status has become a major point of contention in the struggle between OOPSs and the Dutch authorities. Many among the thousands of OOPSs in the Netherlands claim that they could not be repatriated even if they wished to go back, while the Dutch authorities insist that the “real” number of “beyond blame” OOPSs is infinitesimal. Here is how a senior official at the DT&V, who is in an advisory role concerning the “beyond blame” OOPS status, described his take on the heated debate:

Some of the lawyers and supporters [of OOPSs] constantly say that they [OOPSs] can’t return to their country in the media. But, I know these cases. I have the files and I can tell you this is really not the case. My intentions are always good [when I deal with an OOPS]. I always begin with a clean slate. Even in the case of people who you know are … well, you know. But I think that I have now dealt with around 80 or 90 cases that I have needed to evaluate … and there are only two … honestly … only two cases in which I could make a positive recommendation.

In view of public pressure on the Dutch authorities to be more generous in issuing “beyond blame” status to OOPSs, it is not unreasonable to suggest that if the Dutch authorities would attempt to immediately deport all OOPSs, they would be obliged to recognize that many of them are, in fact, nondeportable and should be awarded a “beyond blame” status. In the current constellation, the burden of proof in “beyond blame” cases is on OOPSs, who must approach and demonstrate that they are not deportable.

There is an evident and far-reaching transfer of responsibility from the Dutch authorities to OOPSs when it comes to the issue of repatriation. DT&V officials regularly explain to OOPSs that it is their own fault and responsibility that they ended up living in the Netherlands with no status, not in receipt of any state provisions. Here is an excerpt from an interview I held with one DT&V official:

There are people who waste their time here. They are illegal. They have no chance of acquiring the status and they have no life here. They suffer here and I really think that it would be best for them to go back to their own country. There are sometimes families with children that insist on doing everything they can to stay, but they just make their children’s lives more miserable. It is their own responsibility. They should know that this is not good for them. Their children should have certainty and grow up with stability, not with unrealistic expectations of living in the Netherlands.

Up to this point, I have discussed procedural aspects regarding the difficulties that the Dutch authorities face in their treatment of OOPSs. Yet, we should not discount the equally important economic aspect that is at play here. The deportation of OOPSs is a very costly endeavor. It involves police street work, administrative detention, legal procedures that involve the work of lawyers and courts, forced removal (which includes the purchasing of a flight ticket for the OOPS, as well as a team of police of up to four agents to escort each deportee) and additional costs for medical attention, paperwork, and so forth (see Kalir 2014; Walters 2002). It is thus clear that the Dutch authorities prefer OOPSs to undertake repatriation on their own (account). Yet, it remains every bit as clear that detaining and deporting OOPSs costs the authorities much more time, effort, and resources than having an orderly procedure for direct repatriation after the classification of noncitizens as OOPSs.

What I am trying to establish at this stage is that expecting OOPSs to voluntarily leave the Netherlands is not part of a benevolent policy. Rather, it is a deliberate state practice of desertion. It is an act of indifference to release OOPSs onto the streets of major cities across the Netherlands without provisions and with the constant threat of a potential and recurrent detention. Acknowledging that the Dutch state’s treatment of OOPSs is a deliberate policy of desertion opens up a new set of questions: How do state authorities get away with this policy? How can placing thousands of people with no provisions and no work permit on the streets not lead to major public disorder? How do state authorities deal with the public outcry against the production of OOPSs on political and practical grounds? It is to these questions that I now turn.

The state of (in)visibility: Claiming space and rights

Setting OOPSs onto the streets without bearing responsibility for their subsistence and the potential ramifications for public order is only possible because NGOs customarily arrive to pick up OOPSs and offer them shelter, food, and basic health care. State authorities know that their desertion policy can only be implemented with the accommodating work of civil society. Numerous NGOs in the Netherlands receive substantial funding from the Dutch authorities in order to accomplish their work (Kalir and Wissink 2016). This collaboration between state authorities and state-funded NGOs generates practical understandings, routines, and even an agreed-upon division of labor in treating OOPSs and other undesired and illegalized migrants.

By applying a policy of desertion, the Dutch state produces a humanitarian situation in which vulnerable and marginalized noncitizens are left at the mercy of nonstate actors. The fact that many NGOs choose to assist OOPSs depoliticizes the management of OOPSs and compounds the ability of the state to “outsource” its responsibility—and, in this sense, also its sovereignty—to nonstate actors. As argued by Kalir and Wissink (2016), we should reconsider the field of deportation as a bifurcated one. It makes more sense to conceptualize it as a continuum of state agents and civil society actors who share a dominant logic, common categories, political subjectivities, and pre-agreed-upon lines of political action. In the remainder of this article, I would like to focus on resistance to the Dutch state’s desertion policy.

Crucial to the implementation of the desertion policy is the invisibilization of the phenomenon from the public eye. As I showed in the previous sections, by producing illegibility regarding the whereabouts of OOPSs and by shifting responsibility for the destitute condition to being in the hands of OOPSs, the state forces most OOPSs into a condition of invisibility. Here, I mean invisibility not only in the Agambenian political sense of placing OOPSs outside the population that falls under the sovereign, but also in the most practical sense. OOPSs fear detention and forced deportation, and will therefore always find ways to go underground to evade and avoid state authorities (Engbersen and Broeders 2009). In this way, OOPSs are forced to accept and even intensify their social invisibility, thereby turning this grave social problem into one that is mostly unknown to the public. In fact, most people who encounter OOPSs in their daily life are likely to do so in the form of undocumented migrants who clean or paint their house. In these situations, OOPSs go out of their way to be nice to the native citizens and perform the work for an extremely low price.

Since the autumn of 2012, a self-organized group of OOPSs and other illegalized migrants have been joining forces to face the Dutch state. Concentrated mostly in Amsterdam and The Hague, group members make themselves visible in public spaces and demand changes in the policies that render them nonexistent and deportable. This group, which is known as We Are Here (We Zijn Hier, hereafter WZH) may be regarded as one unintended consequence of the state’s derecording policy. By taking the group’s fight against the state as a collective into public spaces, it is not only their name that embodies this reversal of the condition of invisibility. WZH members choose to confront rather than evade the state, claiming they are not afraid and have nothing to lose, as they know that they cannot be deported from the Netherlands. The group started by building a tent camp in front of the Dutch reception and registration center at Ter Apel, and continued with collective serial squatting in schools, churches, office spaces, and residential buildings throughout Amsterdam and The Hague. From the beginning, the WZH group has enjoyed the support of several social movements and many individuals, as well as Dutch activists. Particularly interesting is the productive collaboration between WZH and the squatting movement, which—as some old-time squatters mentioned to me—“resurrected the movement.”

Members of the WZH group are “activist citizens” (Isin 2009) who transform the notion of the political by refusing to accept the formal political subjectivity that is imposed on them by the state. Instead, they have taken their campaign to the street with protests also held on the doorstep of Amsterdam’s city hall. They collaborate with different networks and organizations, and they have put together a website with testimonies about the lives of OOPSs, information about Dutch regulations and policies, calls for help, planned protests, videos, and much more. The goal of WZH is clearly stated on the website: “The group decided to make the inhumane situation that they have to live in visible by no longer hiding but showing the situation of refugees that are out of procedure in the Netherlands.”7

The appearance of undesired and unauthorized subjects on the political scene is an act of “taking space” (Nyers 2003) that has the potential for radical democratic politics (Honig 2001). Indeed, soon after the WZH group had made its presence public in the Netherlands, the local and national media caught up with the story and the issue gained increased visibility in the public sphere and in political circles. The basic political claim that was put forward to the government by the WZH group—supported by Dutch and international NGOs and some activist lawyers—was with respect to responsibility. The WZH group demanded that the Dutch state assume responsibility for the legal limbo to which they have been sentenced and the de facto nonexistence to which they have been degraded as human beings. The battle for “bed, bath & bread” (bed, bad & brood) emerged as the basis of a political campaign to regain the government’s responsibility for the situation of OOPSs and to restore their dignity. The basic allegation was that if the state cannot deport OOPSs, it must secure a minimal existence for them that consists of at least shelter, health care, and food.

The campaign has had many twists and turns, and in early 2015 it led to a political crisis that placed the stability of the coalition government in danger. It is beyond the scope of this article to follow the campaign of the OOPSs closely. Here, I would simply like to highlight a few of the political and moral standpoints that were voiced by some of the different prominent actors involved. A crucial moment was in November 2014 when the Council of Europe produced a report by the European Committee of Social Rights (ECSR) that condemned the policies of the Dutch government for its treatment of OOPSs and for “placing their human dignity at stake,” as reported in a major Dutch newspaper article (Zandstra 2014). The same newspaper article collected reactions from organizations such as Church in Action (Kerk in Actie), for example, that formally filed a complaint against the Dutch government with the ECSR. The spokesperson of Church in Action celebrated the ECSR’s report as “wonderful news” and added that: “Every person has the right to bed, bath & bread. No distinction can be made here between citizens, refugees or stateless people.” Amnesty International’s reaction was also quoted at length: “[This] proves what the complainers already knew: the situation of people in the ref-uge-garage [one of the squatted buildings for OOPSs] and other empty buildings or self-made emergency facilities is in conflict with human dignity and therefore, with European social rights. The government must help these people in need, regardless of their status.”

In contrast, the acting secretary of state for justice and security, Mr. Fred Teeven, told the press that he did not feel obliged by this report in any way and that he would await the final decision on this matter by the European Committee of Ministers. Mr. Teeven expressed his unwillingness to allocate budgets for this purpose: “Not a single cent,” he announced determinedly.

In January 2015, the European Committee of Ministers ratified the report and obliged the Netherlands to take measures in reparation of its current policies. The Dutch government reached a compromise about amending some of its regulations, but as various political commentators and activist lawyers have observed, not much has changed on the ground. In the ensuing debate, the apparent rift between a national government that largely opposed budgeting for OOPSs and local government municipalities that voiced support for taking care of OOPSs within their cities was interesting. Notably, even mayors who are prominent members of the ruling right-wing party, the People’s Party for Freedom and Democracy (VVD), voiced their discontent with the national government’s reluctance to recognize the need to attend to the OOPSs’ situation. Here is how the former chair of the VVD and current mayor of The Hague explained his position: “We do not want all sorts of roving people in the cities.” In contrast, the leader of the far-right opposition party, Geert Wilders, voiced an uncompromising critique: “The VVD is rewarding the misbehavior of illegals with extra care … illegal immigrants who have not complied with their obligation to leave the Netherlands are now getting a shelter at the taxpayers’ expense. Now that is a topsy-turvy world” (Van der Veen 2015).

The initiative of OOPSs to join forces as a collective and mobilize politically against the state by making their situation visible and known to the public has had an important impact. Although on the ground not much has changed in terms of the OOPSs’ situation, it is early days yet to know which path their struggle will take and what its outcome will be. In an interview with a high-ranking official from the Ministry of Justice and Security who was involved in negotiations with WZH group representatives, I asked about the prospects of this campaign to change the approach of the Dutch state toward OOPSs. The high-ranking official spoke in a soft but determined tone and appeared comfortable and confident as he explained to me the position of the state:

The state works with an idea of fair play. Many of these people [members of WZH] are going out to the media and tell lies, real lies. The state is mighty and strong, and could easily make Pietje’s file public to show that he is lying. But, we wouldn’t do that. The individual is, of course, weak. And there are laws to protect the privacy of individuals, but it should not get too crazy, eh? It should not start damaging the state. With the group [WZH] it becomes difficult because the state doesn’t know who the individuals are and it also becomes emotional because you see people suffering. What should you do as a state, then … ? Well, the only thing you can do is implement general policy … I think that for many of them, it will be a big disappointment. Knowing how the state works, it is impossible for the state to give in to a public campaign in case it creates a precedent by negotiating with one group. The doors of the state will always remain closed for one group’s initiative. It’s like playing with fire. They are not going to achieve anything through a group. Never. Even if you have the right, you will not get it as a group. The only solution is at an individual level and even better, do it away from the media. Sit at the table with the DT&V and get them to look at your case. If you believe you have the grounds, then you can ask for a new asylum procedure.

This insistence by politicians and state bureaucrats to avoid dealing with the WZH group is indicative of the state’s broader policy of desertion and subsequent denial of a social phenomenon that its own categorizations and policies have created. By claiming, as the aforementioned high-ranking official did, that negotiation could only take place with individuals on the basis of their files, the state’s schizophrenia is disturbingly revealed: while OOPSs formally do not exist, they are only to be attended to on the basis of their well-documented files.

Conclusion

The case of OOPSs in the Netherlands reveals the inherent tension in the statecraft of recording noncitizens. In order to substantiate the rejection of an asylum application and proceed toward removal of the applicant from Dutch territory, the state must go through a lengthy process of documentation. By the end of this process, the state and the OOPS are known extremely well to each other. Thus, for the state to be able to consider the OOPS as nonexistent, it must apply a modality of total desertion that is subsequently maintained through formal denial. The result is that in the sovereign territory of the Dutch state there are thousands of people who are placed knowingly beyond the responsibility of the state.

In society, OOPSs mostly manage through undocumented work and the assistance they receive from social networks and from civil society organizations. As related problems such as homelessness are played out in specific cities, local municipalities across the Netherlands show much more willingness to recognize the existence of OOPSs and to attend to their most basic needs. Once more, it is striking to note that even while local government engages with OOPSs, the central state authorities insist on denial. There can be little doubt that the desertion policy operates as a means of punishing depreciated and undesired subjects, as well as deterring future ones from arriving in the Netherlands. As state officials often told me in informal conversations, the idea is to make the lives of OOPSs so unbearable that they would have to leave the country of their own “free will.”

Realizing the entrenched denial that the Dutch state exercises in its dealings with OOPSs should alert us to the deeper meaning that this phenomenon has for the logic of the state. We should also consider that in recent years OOPSs have been produced in other European states, including those that experienced economic crisis and rising unemployment rates (Greece, Italy, Spain). This may indicate that the logic at play here goes beyond the economics of the informalization of cheap and unprotected labor, which is readily exploitable within the national market. I argue that the logic underpinning states’ desertion policies is one that has its roots in the founding of the modern nation-state as a mirror image of the colonial state, where natives were not considered to be political subjects. As these subjects make their way into the metropolis, the modern European state reactivates its boundaries-making mechanism in shaping a “topography of cruelty” (Balibar 2001) by selectively authorizing the political existence of some, while completely denying it to others.

From a state point of view, the drawback of the desertion policy is that the bodies of those who are ignored, neglected, and denied are nevertheless present within the borders of the state. This presence, which the WZH group has made visible in a collective public campaign, undermines the very sovereignty upon which the state bases its legitimacy for selecting recognized political subjects. The same bureaucratic mechanism that documents the nonbelonging of OOPSs is concomitantly documenting the limits of the modern sovereign state. As it is unlikely that asylum seekers will stop reaching Europe in the foreseeable future, the production of OOPSs and their fencing off from an ever-shrinking formal political realm may increasingly spell undemocratic developments for states, and peaceful or violent acts of “taking space” by those who are denied the most basic recognition as members in society.

Acknowledgments

This research was supported by the European Research Council, Starting Grant 336319 “The Social Life of State Deportation Regimes: A Comparative Study of the Implementation Interface.”

Notes

1

See the IND report at https://ind.nl/Documents/AT%20November%202015.pdf (accessed 5 October 2016).

2

For full overview of annual records, see https://www.dienstterugkeerenvertrek.nl/organisatie/cijfers-en-infographics (accessed 5 October 2016).

3

The process of derecording basically means that the files of asylum seekers are considered a “closed case” and are archived. In practice, these files, of course, remain intact and can be accessed and reactivated at any point by state officials.

4

I use the term “illegalized subjects” to underscore the process by which states categorize and treat certain people as “illegal.” It includes undocumented migrants, visa overstayers, migrants with a criminal record, and “failed asylum seekers.”

5

Processes of extreme marginalization, responsibilization for their own predicament, and invisiblization of their destitution are certainly not applied only to OOPSs, but also to other “nondeserving” subpopulations (Clarke 2007). In the Netherlands, Schinkel and Van Houdt (2010) show how state authorities, implementing neoliberal policies, punish and then transfer responsibility for unsuccessful “assimilation” to marginalized Dutch citizens with a migrant background.

6

The state’s “heavy documentation” may consist of files and documents from IND, DT&V, COA, police, court appeals, medical institutions, and so forth.

7

See http://wijzijnhier.org (accessed 6 January 2017).

References

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    • Search Google Scholar
    • Export Citation
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    • Search Google Scholar
    • Export Citation
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    • Search Google Scholar
    • Export Citation
  • Nyers, Peter. 2011. No one is illegal between city and nation. Studies in Social Justice 4(2): 127143.

  • Polillo, Simone, and Mauro F. Guillén. 2005. Globalization pressures and the state: The worldwide spread of Central Bank independence. American Journal of Sociology 110(6): 17641802.

    • Crossref
    • Search Google Scholar
    • Export Citation
  • Rancière Jacques. 1999. Dis-agreement: Politics and philosophy. Minneapolis: University of Minnesota Press.

  • Schinkel, Willem, and Friso van Houdt. 2010. The double helix of cultural assimilationism and neo-liberalism: Citizenship in contemporary governmentality. The British Journal of Sociology 61(4): 696715.

    • Crossref
    • Search Google Scholar
    • Export Citation
  • Scott, James. 1998. Seeing like a state: How certain schemes to improve the human condition have failed. New Haven, CT: Yale University Press.

    • Search Google Scholar
    • Export Citation
  • Scott, James. 2009. The art of not being governed: An anarchist history of Upland Southeast Asia. New Haven, CT: Yale University Press.

  • Svirsky, Marcelo, and Simone Bignall. 2012. Agamben and colonialism. Edinburgh: Edinburgh University Press.

  • Van der Veen, Casper. 2015. VVD en PvdA bereiken akkoord over illegalenopvang [VVD and PvdA reach agreement on illicit reception]. NRC Handelsblad, 22 April.

    • Search Google Scholar
    • Export Citation
  • Wacquant, Loïc. 2010. Crafting the neoliberal state: Workfare, prisonfare and social insecurity. Sociological Forum 25: 197220.

  • Walters, William. 2002. Deportation, expulsion, and the international police of aliens. Citizenship Studies 6(3): 265292.

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Contributor Notes

Barak Kalir is an associate professor at the Department of Anthropology, University of Amsterdam. He is the program director of the research group “Moving Matters: People, Goods, Power and Ideas” and the codirector of the Institute for Migration and Ethnic Studies (IMES). He currently leads a five-year ERC-funded project, “The Social Life of State Deportation Regimes,” in which the implementation of deportation regimes is ethnographically examined in seven states: Greece, Spain, Belgium, France, Israel, Ecuador, and Indonesia. Recent articles include “The Deportation Continuum,” Citizenship Studies (2016, with Lieke Wissink); and “The Jewish State of Anxiety,” Journal of Ethnic and Migration Studies (2015). E-mail: b.kalir@uva.nl

Focaal

Journal of Global and Historical Anthropology

  • Agamben, Giorgio. 1998. Homo sacer: Sovereign power and bare life. Stanford, CA: Stanford University Press.

  • Alfaro-Velcamp, Theresa, and Mark Shaw. 2016. “Please GO HOME and BUILD Africa”: Criminalising immigrants in South Africa. Journal of Southern African Studies 42(5): 983998.

    • Crossref
    • Search Google Scholar
    • Export Citation
  • Amnesty International. 2008. The Netherlands: The detention of irregular migrants and asylum-seekers. https://www.amnesty.nl/sites/default/files/public/rap_nederland_vreemdelingendetentie_0.pdf (accessed 7 January 2017).

    • Search Google Scholar
    • Export Citation
  • Anderson, Bridget. 2010. Migration, immigration controls and the fashioning of precarious workers. Work, Employment & Society 24(2): 300317.

  • Arendt, Hannah. 1973. The origins of totalitarianism. New York: Harcourt Brace Jovanovich.

  • Balibar, Étienne. 2001. Outlines of a topography of cruelty: Citizenship and civility in the era of global violence. Constellations 8(1): 1529.

    • Crossref
    • Search Google Scholar
    • Export Citation
  • Chabal, Patrick, and Jean-Pascal Daloz. 1999. Africa works: The political instrumentalisation of disorder. Oxford: James Currey.

  • Chavez, Leo. 1998. Shadowed lives: Undocumented immigrants in American society. Fort Worth, TX: Harcourt Brace College Publishers.

  • Chavez, Leo. 2001. Covering immigration: Popular images and the politics of the nation. Berkeley: University of California Press.

  • Clarke, John. 2007. Subordinating the social? Neo-liberalism and the remaking of welfare capitalism. Cultural Studies 21(6): 974987.

  • Cornelisse, Galina. 2016. Immigration detention: An instrument in the fight against illegal immigration or a tool for its management? In Maria João Guia, Robert Koulish, and Valsamis Mitsilegas, eds., Immigration detention, risk and human rights, pp. 7389. New York: Springer.

    • Crossref
    • Search Google Scholar
    • Export Citation
  • De Genova, Nicholas. 2005. Working the boundaries: Race, space, and “illegality” in Mexican Chicago. Durham, NC: Duke University Press.

  • De Genova, Nicholas. 2010. The deportation regime: Sovereignty, space, and the freedom of movement. In Nicholas De Genova and Nathalie Peutz, eds., The deportation regime: Sovereignty, space, and the freedom of movement, pp. 3365. Durham, NC: Duke University Press.

    • Crossref
    • Search Google Scholar
    • Export Citation
  • Dutch Ombudsman. 2012. Vreemdelingenbewaring: Strafregime of maatregel om uit te zetten. [Foreigners’ detention: Punitive regime or a measure toward deportation]. Rapportnummer: 2012/105.

    • Search Google Scholar
    • Export Citation
  • Engbersen, Godfried, and Dennis Broeders. 2009. The state versus the alien: Immigration control and strategies of irregular immigrants. West European Politics 32(5): 867885.

    • Crossref
    • Search Google Scholar
    • Export Citation
  • Fanon, Frantz. 1952. Black skin, white masks. New York: Grove Press.

  • Foucault, Michel. 1977. Discipline and punish: The birth of the prison. London: Penguin.

  • Harvey, David. 2005. A brief history of neoliberalism. Oxford: Oxford University Press.

  • Harvey, David. 2007. Neoliberalism as creative destruction. The Annals of the American Academy of Political and Social Science 610(1): 2144.

  • Honig, Bonnie. 2001. Democracy and the foreigner. Princeton, NJ: Princeton University Press.

  • Hull, Matthew. 2012. Government of paper: The materiality of bureaucracy in urban Pakistan. Berkeley: University of California Press.

    • Crossref
    • Search Google Scholar
    • Export Citation
  • Isin, Engin. 2009. Citizenship in flux: The figure of the activist citizen. Subjectivity 29: 367388.

  • Kalir, Barak. 2010. Latino migrants in the Jewish state: Undocumented lives in Israel. Bloomington: Indiana University Press.

  • Kalir, Barak. 2014. The deportation mess: A bureaucratic muddling of state fantasies. Border Criminologies, 29 October. http://bordercriminologies.law.ox.ac.uk/deportation-fantasies (accessed 6 January 2017).

    • Search Google Scholar
    • Export Citation
  • Kalir, Barak. 2015. The Jewish state of anxiety: Between moral obligation and fearism in the treatment of African asylum seekers in Israel. Journal of Ethnic and Migration Studies 41(4): 580598.

    • Crossref
    • Search Google Scholar
    • Export Citation
  • Kalir, Barak, and Lieke Wissink. 2016. The deportation continuum: Convergences between state agents and NGO workers in the Dutch deportation field. Citizenship Studies 20(1): 3449.

    • Crossref
    • Search Google Scholar
    • Export Citation
  • Leerkes, Arjan, and Dennis Broeders. 2010. A case of mixed motives? Formal and informal functions of administrative immigration detention. British Journal of Criminology 50(5): 830850.

    • Crossref
    • Search Google Scholar
    • Export Citation
  • Li, Tania. 2010. To make live or let die? Rural dispossession and the protection of surplus populations. Antipode 41(1): 6693.

  • Mbembe, Achille. 2003. Necropolitics. Public Culture 15(1): 1140.

  • Mezzadra, Sandro, and Brett Neilson. 2011. Borderscapes of differential inclusion: Subjectivity and struggles on the threshold of justice’s excess. In Étiene Balibar, Sandro Mezzadra, and Ranabir Samaddar, eds., The borders of justice, pp. 181203. Philadelphia: Temple University Press.

    • Search Google Scholar
    • Export Citation
  • Mitchell, Timothy. 1991. Colonising Egypt: With a new preface. Berkeley: University of California Press.

  • Mitchell, Timothy. 2002. Rule of experts: Egypt, techno-politics, modernity. Berkeley: University of California Press.

  • Nyers, Peter. 2003. Abject cosmopolitanism: The politics of protection in the anti-deportation movement. Third World Quarterly 24(6): 10691093.

    • Crossref
    • Search Google Scholar
    • Export Citation
  • Nyers, Peter. 2011. No one is illegal between city and nation. Studies in Social Justice 4(2): 127143.

  • Polillo, Simone, and Mauro F. Guillén. 2005. Globalization pressures and the state: The worldwide spread of Central Bank independence. American Journal of Sociology 110(6): 17641802.

    • Crossref
    • Search Google Scholar
    • Export Citation
  • Rancière Jacques. 1999. Dis-agreement: Politics and philosophy. Minneapolis: University of Minnesota Press.

  • Schinkel, Willem, and Friso van Houdt. 2010. The double helix of cultural assimilationism and neo-liberalism: Citizenship in contemporary governmentality. The British Journal of Sociology 61(4): 696715.

    • Crossref
    • Search Google Scholar
    • Export Citation
  • Scott, James. 1998. Seeing like a state: How certain schemes to improve the human condition have failed. New Haven, CT: Yale University Press.

    • Search Google Scholar
    • Export Citation
  • Scott, James. 2009. The art of not being governed: An anarchist history of Upland Southeast Asia. New Haven, CT: Yale University Press.

  • Svirsky, Marcelo, and Simone Bignall. 2012. Agamben and colonialism. Edinburgh: Edinburgh University Press.

  • Van der Veen, Casper. 2015. VVD en PvdA bereiken akkoord over illegalenopvang [VVD and PvdA reach agreement on illicit reception]. NRC Handelsblad, 22 April.

    • Search Google Scholar
    • Export Citation
  • Wacquant, Loïc. 2010. Crafting the neoliberal state: Workfare, prisonfare and social insecurity. Sociological Forum 25: 197220.

  • Walters, William. 2002. Deportation, expulsion, and the international police of aliens. Citizenship Studies 6(3): 265292.

  • Zandstra, Philippus. 2014. Teeven neemt uitspraak Raad van Europa over illegalen nog niet over. NRC Handelsblad, 10 December.

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