We need to talk about citizenship, and race

Citizens and unauthorized migrants seemingly stand at opposite ends of the rights spectrum. While citizenship denotes the “fullest” bundle of rights, the legal status of unauthorized migrant generally entails deprivation of most fundamental rights. Most legal and political theorists conceive this relation as a conceptual dichotomy in which the former functions as rhetorical domain of inclusion, of ‘formal equality and liberal ideals’, while immigration law, as the domain of exclusion, does the dirty work of detention, deportation and snooping into peoples’ lives in order to uphold the inclusive values of the internal domain. This conceptual separation between citizenship and unauthorized migration obscures the negative effects the operation of immigration law in Europe has on citizenship. The operation of immigration law creates racialized subjects and therefore undermines the normative basis of citizenship in liberal democracies. As any immigration law entails the identification of unauthorized presence and legal effects attached to unauthorized presence, foremost expulsion, these two forms of the operation of immigration law illustrate best the racialization of citizenship.

Where does this conceptual dichotomy between citizenship and unauthorized migration derive from? It assumes an ideal world in which immigration controls operate at a state’s cartographic border, filtering those who are permitted to enter from those who lack authorization to do so. However, in the non-ideal world we inhabit, it is simply not a realistic prospect that every person present in a country is lawfully present. Some tourists will overstay. Others will apply for asylum once they have entered the country. Others will circumvent border checks. Europe’s 42.673 km of sea and 7.721 km of land border cannot realistically be sealed off. There is no perfect border, and the only one that comes close to it – North Korea – stifles commerce and can only be upheld by mine fields and a totalitarian political regime. Thus, states apply their immigration laws not only at their cartographic border, but within their territories.

Racialized bodies

On the one hand, a crucial difference exists between the operation of immigration controls at a state’s cartographic border and within its territory. At the border everyone’s passport is checked, whereas in the territory controls selectively as not every person present can be checked. On the other, these controls operate similarly within and at the fringes of a state’s in one crucial aspect: immigration controls operate by reading the body. Literally. At the border fingerprints, faces and biometric passports scanned to bridge the gap created by the suspicion about a person’s identity and her ascribed legal status (is she really a citizen, a bona fide traveller etc?). As within the territory only some and not everyone is checked, the pertinent question is: what are the criteria employed to identify unauthorized presence?

Overwhelming evidence (see here, here or here) suggests that law enforcement agencies in various European states rely on racial criteria – the differences of skin, bone, and hair, as W.E.B. Du Bois famously put it – as signposts of unauthorized presence. Racial profiling in immigration identity checks should however not be simply be viewed as disturbing practice by a “bad” executive branch which is subsequently remedied by “good” courts. Rather, domestic courts are implicated by judicially sanctioning these practices. The approaches of domestic courts in Europe can broadly be structured along three lines.

In the first approach, courts can explicitly endorse the logic of racial profiling. This can be illustrated by a case decided by the Spanish Constitutional Tribunal, which still represents the leading case in Spain (see here, here or here). Although the Constitutional Tribunal took it as undisputed that the skin colour of the applicant constituted the basis for the identity control at the railway station in Valladolid, the Tribunal framed it as a matter of probability: ‘it is not illogical to think that there is a greater probability [in railway stations] than in other places that persons who are selectively asked for identification may be foreigners’. According to the Tribunal, ‘the police action used the racial criterion as merely indicative of a greater probability that the interested party was not Spanish’. To think of racialized identity checks as a mere matter of probability is fallacious. Such identity checks are not merely a representation of reality, as it were, but produce racialized identities by applying and imposing classificatory schemes that link skin colour to illegal presence. By ordering the population into ‘regular’ and ‘irregular’ along grades of pigmentation, they make a normative claim of how citizenship ought to look like, of how a “typical” Spanish or German ought to look like.

In the second approach, domestic courts hold practices of racial profiling unlawful. The Austrian Constitutional Court, the Dutch State Council, and the French Constitutional Council, among others, have clearly held that relying on a person’s skin colour in immigration controls is not open to legal justifications and cannot be balanced with the state’s interest to prevent unauthorised migration.

Under a third approach, courts neither endorse nor condemn racial profiling, but simply duck the question. They either assume the objectivity of conduct of law enforcement authorities, without enquiring into concrete acts, or they assume that identity controls in the abstract could be conducted objectively, without looking at widespread practices of racial profiling. In one of the few cases on racial profiling in immigration checks that came before the ECtHR, the Court ducked questions of discrimination. Even courts which generally adopt a principled stance against racial discrimination might opt in the sensitive field of immigration controls for evasion.

Precarious Family Life

The legal corollary to immigration identity checks is expulsion of persons who lack authorization to stay. Expulsion might occur after a final negative decision in asylum proceedings that often take years or withdrawal of residence permits for different reasons after years of lawful residence. During these years, citizens marry and form families with third-country nationals.

In principle, the right to family life in the European Convention on Human Rights affords, in some situations, protection from expulsion. In reality, if a marriage was concluded when the migration status of the non-citizen spouse was precarious, the ECtHR protects family life only in ‘exceptional circumstances’. The Court’s reasoning consists of two steps. First, the Court assesses whether a marriage was concluded when immigration status of one of the spouses was such that continuing family life would be precarious from the outset. Second, the ECtHR considers that, in principle, no legal effects follow from family life when immigration status was precarious. As the creation of family life depends on the existence of factual social ties, the ECtHR accordingly significantly diminishes the value accorded to the social ties of family life.

What the ECtHR (and European states) consider as precarious immigration status seems to be drawn along the ‘bright line’ of temporality rather than legality. Every immigration status that is temporally limited is eventually precarious: asylum seekers awaiting their decision (sometimes for years), temporally limited work visa, as well as student visa. Each time a citizen marries or forms a family with one of these persons, she cannot expect that her migrant partner will be permitted to settle. The abstract immigration concerns of the state prevail over the concrete interests of the citizen.

Again, not all citizens are equally affected.

The ECtHR developed in its case law the ‘elsewhere’ standard, as Cathryn Costello labels it. The elsewhere standard functions as an assessment of whether family bonds would be effectively ruptured by the deportation of the migrant spouse. In principle, the Court considers family bonds to be effectively ruptured, if insurmountable obstacles exist for the citizen partner and children to settle with the migrant partner elsewhere than in their country of citizenship. The Court thereby relies on different factors, which include, in particular, whether the citizen partner and children speak the language of the country they would move to, whether they are familiar with the cultural context, or have the same or a similar religious or ethnic background.

In KM contre Suisse the Court held that the ‘Albanian origins’ of the Swiss citizen partner did not pose any difficulties in returning with her partner to Albania. In Omoregie v Norway the ECtHR argued that the citizen partner could be expected to move to Nigeria as she spoke English, one of the official languages in Nigeria, and spent some time in South Africa, another African country. And in Antwi v Norway the Court held that:

‘the fact that she [the citizen partner] originated from Ghana was a relevant factor for the Court’s assessment. Even though she had obtained a Norwegian citizenship and parts of her family resided in Norway, her links to Ghana ought to be considered strong: she was familiar with Ghanaian culture and spoke a Ghanaian language. The first and second applicants had married in Ghana in 2005, which choice of location clearly showed the links that they had to their common country of origin.’ [highlighted, StS]

The Court employs ‘common country of origin’ not as a legal term – a legal bond between state and individual – but as a cultural notion. The ‘common country of origin’ functions as cultural signifier that locks individuals to an immutable genealogy of their cultural backgrounds. It thereby inserts racialized differentiation, constructed along cultural signifiers such as language, religious or simply culture more broadly, into citizenship.

Although this might also affect citizens who familiarize themselves with the language and the culture of their non-citizen partner, the intrusion of immigration law into family life systematically racializes citizens with a migrant background. Their migrant background sticks to them like a second skin and structurally disadvantages them each time they fall in love with (from the state’s immigration perspective) the “wrong” person. Speaking with Hannah Arendt, the imposition of the choice between one’s home and one’s family deprives citizens of their public space of appearance, for citizenship requires a place where it is practiced and acquires meaning. It exiles citizens from their place, or, as a young British woman put it:

‘I basically felt like I’d been exiled from my country and in forcing my partner to leave they’d also forced me to leave.’

Racialized Identities and the Normative Core of Citizenship

Immigration identity checks and the expulsion of citizen’s unauthorized migrant spouses and parents are but two areas in which the operation of immigration law infringes the interests of citizens. The structurally disadvantaged legal positions derive from the intersection of multiple practices of immigration controls. A ‘black’ citizen with an authorized migrant partner is more likely to be affected by the reduction of social benefits that various governments have adopted (see here, here, or here) with the aim to deter unauthorized migration (see here on household income distribution and ‘race’ and here on youth unemployment and immigrant families) and her family life is more likely to be disrupted by the expulsion of her migrant partner. In some instances, a state’s obsession to crack down on unauthorized migration even results in the deportation of its own citizens. In the Windrush scandal, the UK government reluctantly admitted that British citizens, presumed to be unauthorized migrants, were mistakenly deported. ‘Race’ constitutes the normative fault line where these various practices of immigration control overlap. These practices of immigration control produce ‘race’ in the moment they are enacted.

The production of racialized identities undermines what constitutes the normative core of citizenship in liberal democracies: equality and liberty. If a citizen were not married to someone with a precarious migration status, her family life would not be threatened by the expulsion of her migrant partner. And if a citizen were not a citizen of colour, she would likely by much less affected by coercive measures of immigration authorities.

The course of immigration regimes will thus also be a choice on the direction of the meaning and substance of citizenship. Governments and citizens must either decide to adopt more restrictive immigration regimes (and thus make citizenship more exclusive and fragmented), or they must decide to limit the reach of immigration regimes (and thus make citizenship more inclusive).