Ambivalence and Citizenship: Theorising the Political Claims of Irregular Migrants

‘Bare Life’ and Its Limits

On 7 January 2005, in the German city of Dessau, Oury Jalloh, an asylum seeker from Sierra Leone, died in police custody. Jalloh had been arrested that morning for allegedly harassing two women. He was placed in a basement cell of the Dessau police station with his hands and feet handcuffed to the bed. When a fire broke out in his cell, he was burned to death. The case was shrouded in controversy. How had the fire started? Who was responsible, through act or neglect, for Oury Jalloh’s death and how was justice to be served? In 2008, a Dessau court ruled that Jalloh had committed suicide by setting fire to his mattress with a cigarette lighter. The court acquitted the supervising police officers from responsibility for his death. Yet critics pointed to a number of unanswered questions. How did Jalloh light the fire while handcuffed? How did he get hold of the lighter? How did a fire-resistant mattress come to burn? The circumstances under which the police failed to respond to repeated smoke alarms were never fully resolved and the retraction of testimony that damaged the cases of the officers in question raised suspicions about witness intimidation.

The investigation into Jalloh’s death took place against the backdrop of a public campaign in which activist groups accused the police of racially motivated murder. While the campaign was focused on the specifics of Jalloh’s case, it raised the more fundamental question of whether police were capable of such a murder. In the words of Mbolo Yufani, an asylum-seeker activist prominent in the campaign, ‘it was a really tough fight even to sell the campaign in the public, because most Germans believe in their police officers and they couldn’t imagine that their police officers could kill someone in the cell’. ¹⁵ Thus, the slogan ‘Oury Jalloh: Das war Mord!’ (‘It was Murder!’) that appeared in campaign publicity, and which I saw graffitied on buildings in Berlin some four years after Jalloh’s death, was intended as a dual provocation. The slogan referred most obviously to the case of Oury Jalloh. In more general terms, however, it referred to the potential for murder of migrants in police and immigration custody. If the basic premise – that murder was a possibility in this case – was yet to be established in the minds of the German public, then it was possible (even logical) for the death of an African asylum seeker to go unpunished.

The case of Oury Jalloh gives an indication as to why Agamben’s work has been taken up by scholars who work at the intersection of Forced Migration Studies and Political and International Theory, and why the emphasis in much of this work is on the political paralysis of irregular migrants. The case of Oury Jalloh resonates strongly with the figure of homo sacer, a concept that Agamben revives from ancient Roman law. ¹⁶ Homo sacer refers to exiles who can be killed, but not murdered. Their killing, in other words, is not a crime and does not trigger the legal consequences applying to homicide. Agamben articulates the potential to be treated in this way as the sphere of ‘bare life’. Bare life is life lived in a zone of indistinction between life endowed with legal protections – a politically qualified life – and life defined only in terms of its biological existence, devoid of political protections that would render its killing sanctionable. Viewed through an Agambenian lens, therefore, Oury Jalloh was marked as ‘bare life’ by virtue of the combination of his race, his status as an asylum seeker and the border regime which rendered him vulnerable to incarceration and to the arbitrary powers of the police as de facto sovereign agents. ¹⁷

For Agamben, the production of bare life is the fundamental activity of sovereign power. Following Carl Schmitt, Agamben holds that sovereign order, though based in law, is derived from an original act which is outside the law – a seizure of power deployed to institute a founding legal code. Within that code, the sovereign retains exceptional powers – the ability to suspend the law in the event of emergency. Within the scope of this state of exception, the sovereign produces ‘bare life’ – life lived in an ambiguous zone, both subject to the law and lacking the law’s protection. Bare life is at once excluded from legal protections but nevertheless included in the sovereign order by virtue of that exclusion. This is ‘the ban’ (or the production of bare life) on which, Agamben argues, sovereign power is premised. He contends that the potential to live without legal protections calls into question any idea that democracies can be founded on any genuine sense of social contract. Indeed, the fact that the ban is the fundamental basis on which sovereign power rests means that ‘every attempt to found political liberties in the rights of the citizen is … in vain’. ¹⁸ Agamben further contends that the state of exception became increasingly normalised over the course of the 20th century. In the 21st century, he argues, the state of exception manifests most clearly in the indefinite pursuit of a ‘war on terror’ which is used to justify the deployment of exceptional powers over citizens and aliens alike. This generalised state of exception puts the final nail in the coffin for the liberatory potential of citizenship rights. Citizens or not, Agamben warns, we are all increasingly vulnerable to arbitrary sovereign power; we are all virtual ‘homines sacri’. ¹⁹

Agamben’s critique of sovereign power implies a disavowal of the transformative potential of struggles that are grounded in claims to human rights. For Agamben, human rights are implicated in the biopolitical techniques of sovereign power insofar as human rights render life itself the object of sovereign intervention, collapsing the classical distinction between life as such and a higher realm of politics. ²⁰ From this perspective, claims that seek to restore the rights-bearing subject status that is missing from ‘bare life’ are misguided. Such claims replicate the very tools through which sovereign power wields its ultimate authority. Thus, as Edkins and Pin-Fat (following Agamben) argue:

When life is produced as bare life it is not helpful for that life to demand its reinstatement as politically qualified life. To do so would be to validate the very drawing of lines upon which sovereign power depends and which produces life as bare life in the first place. ²¹

Edkins and Pin-Fat contend, however, that Agamben gestures towards modes of resistance other than rights-based ones. They propose a strategy that rejects ‘the very drawing of lines upon which sovereign power depends’ by scrambling the characteristics of bare and qualified life. ²² They argue that this is the strategy deployed in the case of Abbas Amini, a former asylum seeker in the UK who, by sewing his lips together in an act of protest against his detention, assumed the bare life that sovereign power produces in order to make a political intervention. ²³ In this, they suggest, he turned the techniques of sovereign power against sovereign power itself, ultimately rendering those techniques inoperable.

While I do not disagree about the highly political nature of this act, I am unwilling to concede, firstly, that sovereign power is as all-encompassing as Edkins and Pin-Fat, following Agamben, assume and, secondly, therefore, that theirs is the only (or indeed the most productive) way to theorise effective political struggle by irregular migrants. Others have produced compelling critiques of the account of sovereign power (Agamben’s) that Edkins and Pin-Fat adopt. For Ayten Gündoğdu, Agamben’s attempt to expose the liberal myths that sustain sovereign power results in an equally totalising ‘myth’ about biopolitical sovereignty that is inflexible and historically decontextualised. ²⁴ William Connolly argues that Agamben attributes to sovereign power an internal logic that simply is not there. ²⁵ Others have pointed, in this respect, to the agents of sovereign power (border guards, police, immigration officials) whose discretionary actions are far more suggestive of a highly fragmented system of governance than a coherent and systematic sovereign logic. ²⁶ Each of these critics, implicitly or otherwise, points to a cultural context that allows sovereign power to operate in certain ways – some more extreme than others – and a context that is subject to changes and reversals. From these perspectives, there is much more scope for contingencies in the exercise of power and interventions against it. The results of this interplay between power and resistance are, as Conolly argues, far more relational and far less predictable than Agamben and his followers suggest. ²⁷ If this is the case, then adopting terms of reference (‘bare life’ in particular) that rely on an overdrawn account of sovereign power to describe, analyse and strategically orient the predicament of irregular migrants may well have the perverse effect of reinforcing the discursive tools through which the incarceration and degradation of irregular migrants are justified.

The case of Oury Jalloh is once again instructive with respect to the relational quality of power and resistance and the failure of terms like ‘bare life’ to do justice to the politics at stake. Other irregular migrants were prominent contributors to the public campaign to have the investigation into Jalloh’s death reopened. African asylum seekers came together with Latin American and other undocumented migrants to voice their shared concern about detention practices and arbitrary powers which potentially threatened them all. ²⁸ Though the activists concerned were not incarcerated in the way that Jalloh was, they were nevertheless subject in public space to the surveillance of police and public officials whose discretionary powers frequently collapsed the distinction between legal and illegal migrants. The administrative details are worth relating because they illustrate the way in which various migrants are subject to conditions that might be taken to resonate with ‘bare life’ but that nevertheless allow for acts of political consequence. Importantly, such acts are not confined to those that scramble the techniques of sovereign power in an Agambenian sense, but also include those that directly engage legal institutions and the discursive field of human rights. Such acts suggest, moreover, a degree of ambivalence attached to engaging institutions and rights regimes that offer the potential to safeguard migrants on the one hand and, on the other, render them vulnerable to surveillance and control. In what follows, I suggest that such ambivalence generates surprising results within the scope of irregular migrant struggle.

Asylum seekers in Germany undergoing status determination (a process which can take several months or several years) are not able to work or to engage in tertiary studies. They are also subject to the Residenzpflicht – a requirement to remain within the district (Bezirk/Landkreis) to which they have been sent, unless prior permission to leave is granted by the local Foreigners Office (Ausländerbehörde). Leaving the district without permission is a punishable offence, at first with fines but subsequent offences or non-payment of fines may result in prison time and a criminal record. If an asylum seeker’s application is rejected, a deportation order is issued and he or she may be relocated. Undocumented migrants awaiting deportation may be detained for up to 18 months. If in either case deportation is not possible (because, for example, the origin state is unwilling to accept the deportee), the person is issued with a Duldung – an immigration status allowing for residence pending deportation. Holders of a Duldung (literally ‘toleration’) are subject to the same restrictions on work and study and also to the Residenzpflicht. The Duldung is renewed at the discretion of the Foreigners Office for any length of time from as little as a week. Yet people may be holders of a Duldung for years and, indeed, indefinitely. Under these circumstances, they are forced to report to the Foreigners Office at regular intervals for a non-automatic Duldung renewal, with the constant prospect of detention and deportation should that renewal be refused. ²⁹

Thus, for many asylum seekers concerned to draw public attention to Oury Jalloh’s case, their immigration status implied ongoing uncertainty about the rights that they could enjoy. While all were thus vulnerable, in Agambenian terms, to the whims of sovereign power, their simultaneous agency defies generalisations of irregular migrants reduced to only the most paralysing effects of ‘bare life’. Instead, their agency reveals a dynamic political relation between sovereign power and those who live with the potential to experience its worst excesses. On account of the campaign, in 2010 the Federal Court of Justice overturned the Dessau ruling on Oury Jalloh’s case and reopened the investigation. However, the effects of mobilising went further. Mobilising as irregular migrants provided the impetus for at least one group of ‘illegal’ non-citizens to recognise their own potential as political agents. Barbara, one of the leading activists from La Plataforma, a Berlin-based activist group of undocumented migrants, described to me how mobilisation gave rise to a transformation in members’ own perceptions of the limits of possibility with respect to political action by undocumented people:

The important part … of the work that we did for La Plataforma was that grassroots work, that work as an auto-organisation, to say ‘Look, you are not the piece of shit everyone says you are. You can do things.’ … Being undocumented or being an immigrant and not speaking German well, you always say, ‘I can’t do anything, I am not able to do it, it’s impossible, you help me, because you’re German’, and thanks to having been in La Plataforma, it is just the opposite. I mean, it is possible. We did many more things than we ever thought we were going to do. For example, we started the campaign for Oury Jalloh. There were many things that nobody believed were possible. But we did believe and in the end, well.… Really, we can make history. ³⁰

Barbara’s statement captures the potential of political claims made by irregular migrants to challenge the limits of the possible, not only with respect to the potential for murder in the case of Oury Jalloh, but also with respect to the space from which one is able to speak as a rights-bearing subject. Importantly, her account indicates the initial ambivalence she felt about what was possible and what was not and how that sentiment travelled with her through a transformative process. Her story stands in contrast to the pathos embedded in so many accounts of irregular migrants as ‘bare life’. It also challenges the notion that defence of human rights merely reinforces the terms under which injustice is sustained, despite minor wins along the way. What Barbara describes is a transformation of political subjectivity that emerged from ambivalence about what was possible through human rights struggle, exceeded the outcomes envisaged for that struggle and enlivened an unpredictable political terrain between power and resistance.

Power, Resistance and Transformational Strategy

The political terrain between power and resistance, mobility and control, is the focus of scholars associated with the Autonomy of Migration. The following anecdote from Germany helps bring to life questions of strategy and acts of refusal with which Autonomy of Migration scholars are concerned.

In a small cafe in a village about an hour from Berlin, I attended a meeting of asylum-seeker activists. The group was a mixture of recent arrivals and longer-term residents who had made their way to Germany from various countries in Africa. Languages shifted from French to English and German with several people interpreting. Topics ranged from the (neo)colonial drivers of migration out of Africa to the question of how to radicalise new arrivals in asylum-seeker hostels and how best to draw public attention to the politics at stake in European border controls. A particular focus that evening was the suspicion that certain African governments were entering into bargains with the German government to accept deportees from Germany regardless of whether the deportees were citizens of that African state or not. Several people in the room believed that false documentation was being provided to accelerate deportations as part of bilateral arrangements that served the broader interests of both states involved. Discussion moved to debate the merits of a strategy of non-cooperation, whereby failed asylum seekers and Duldung holders interviewed by officials would refuse to speak or to confirm any details required for the administration of deportation proceedings. Critics of the strategy expressed concerns about the broader consequences of non-cooperation and the potential to undermine sympathetic relationships within the administration. Proponents of the strategy argued that the illegitimacy of the immigration status determination procedure in general should form the basis of collective struggle. The refusal to speak was a refusal to engage with a system that they argued had no legitimate authority to decide on the fates of those being questioned.

Such acts of refusal, from an Autonomy of Migration perspective, are part of an assault against arrangements of power that seek to contain and control human mobility. This perspective emphasises the autonomous dimension of migration. While refugees, asylum seekers and undocumented labour migrants may well be pushed and pulled across borders by a range of external conditions (persecution, poverty, disaster, conflict on the ‘push’ side and demand for labour on the ‘pull’ side), their movement is also the result of subjective decision-making processes, embedded in individual, family and community strategies for survival and prosperity. In short, migration is the result of agency as much as force. This agent-centred approach is not unique in itself. Scholars of migration and transnationalism have long emphasised the cultures of migration that work in tandem with politico-economic pressures to drive migration patterns. ³¹ For Autonomy of Migration scholars, however, migration represents a creative force and, depending on the emphases maintained by different scholars associated with the literature, one that exceeds or precedes efforts to control the movement of people. This latter emphasis on the primacy of mobility over control is the one that I want to engage in this article on account of its tendency to represent migration as a social movement that resists incorporation into administrative systems aligned with the modern state system. The autonomy of migration, from this perspective, is understood as the basis for the realisation of political relations that defy categories of citizenship and alienage.

For Autonomy of Migration scholars such as Hardt and Negri and Papadopoulos, Stephenson and Tsianos, the regulation of movement and subjectification of migrants follow the autonomy of migration. According to their accounts, the primacy of mobility exceeds what sovereign order can capture and recode into manageable categories – refugee, asylum seeker, guestworker, illegal immigrant and so on. This ‘excess’ surfaces in the means employed by irregular migrants to ‘escape’ sovereign capture, both in terms of defying restrictions on mobility (deliberately going ‘underground’) and, crucially, in terms of refusing designations (asylum seeker, etc.) that affirm logics of control. Thus, for Nicholas De Genova, ‘the sheer [volume of] … “unauthorized” migration [today] remains a permanent and incorrigible affront to state sovereignty and the power of the state to manage its social space through law and the violence of law enforcement’. ³² And for Papadopoulos, Stephenson and Tsianos, ‘unauthorised’ migrants who destroy their documents, mutilate their fingertips or choose clandestinity over the indignities of the asylum system are engaged in a politics which actively undermines the classifications aligned with sovereign order. ³³

Papadopoulos, Stephenson and Tsianos refer to these acts as ‘imperceptible politics’ – autonomous ways of being that evade articulation and categorisation according to the logic of sovereign power. Imperceptibility does not mean invisibility but rather forms of life that are not representable within the scope of prevailing administrative and subject categories. Imperceptibility ‘is made up of everyday, singular, unpretentious acts of subverting subjectification and betraying representation’. ³⁴ It is ‘performed by social actors who negotiate their embeddedness in state power under the signature of “escape”, not under the imperative of inclusion’. ³⁵ From this perspective, irregular migration is indicative of new social conflicts and new social actors that:

cannot be conceived within the existing framework of citizenship … we see this as the moment where subaltern social groups put so much pressure on the modern state that the state cannot respond by expanding its inclusion practices; instead a fundamental transformation of the state’s own structure is initiated. ³⁶

The Autonomy of Migration literature has a mixed relation to work inspired by Agamben. Both take as given the biopolitical nature of sovereign power. Both identify human rights and humanitarianism as complicit with biopower to the extent that human rights ‘valorize … life and turn … it into a site of political decision’. ³⁷ Hence, both are concerned with politics that exceed the terms of rights-based claims and generate alternative ethical horizons. Both accord migrants a prominent position in their analyses. For Agamben, the figure of the refugee exposes the myth of inalienable rights and ‘helps clear the field for a no-longer-delayable renewal of categories’. ³⁸ From an Autonomy of Migration perspective, migrants are the origin of a creative force that exceeds and/or precedes sovereign control and institutes new social relations. However, the political project at the core of the Autonomy of Migration perspective distances it from what Papadopoulos and his colleagues describe as Agamben’s ‘pathetic fixation on bare life … and the camp’:

because he [Agamben] explains modern polity by prioritising the role of those who are connected to sovereignty through their exclusion, he fails to understand the agency of the excluded; he cannot grasp their involvement in immanent processes of social change. That is, the excluded are cast as another characteristic of modern sovereignty; they may pose a logical or political problem about the extension and limits of sovereignty, but – from this perspective – they do not figure as a possible constituent force which can trigger transformations on the part of sovereignty. ³⁹

While Agamben and the Autonomy of Migration scholars may differ in terms of the political vocabulary they offer to irregular migrant struggle, I focus here on prior assumptions that are shared by the two approaches, at least in their crudest forms. For example, the dispute between the primacy of sovereign power and the primacy of human mobility can only be engaged because a temporal distinction is first assumed between original acts (that come ‘before’) and effects (that come ‘after’). Yet neat lines drawn between cause and effect rarely illuminate the complex interrelationships that generate social change. Surely, the view that human mobility is the springboard of social transformation that precedes sovereign control is just as reductive as the view that sovereign power is the sole origin and arbiter of citizen and human subjects. At the heart of both approaches are ontological assumptions that orient understanding of human potential towards ‘lack’ in one case and ‘abundance’ in the other. In Agamben’s case, he denies the possibility that what emerges as ‘citizen’ or ‘human’ may do so via random occurrence, fragmented modes of governance and political contestation, all of which may generate subjects that look very different from those who focus his attention at the furthest extreme of vulnerability. Likewise, Hardt and Negri and Papadopoulos and his colleagues attribute a specific meaning to human mobility and underemphasise its haphazard, short-term instrumental and dislocated dimensions. Despite frequent references to the ad hoc nature of human mobility and imperceptible politics, ⁴⁰ these scholars tend to ascribe an orientation (at best) or a telos (at worst) to ‘unauthorised’ mobility as if it was necessarily geared towards system overhaul and normatively weighted towards more just arrangements. For Hardt and Negri, for example, ‘[nomadism] and miscegenation appear … as figures of virtue, as the first ethical practices on the terrain of Empire’. ⁴¹ For Papadopoulos and his colleagues, migration’s ‘target is not relocation but the active transformation of social space’. ⁴² Although insisting that migrant mobility ‘occurs without a master plan’, ⁴³ this literature implicitly attributes an ambition to mobility and migrants that is not necessarily there. Scholars conflate what may be their own strategic agenda for a politics of migration with an actual equivalence of struggles, even if the latter is identified as a ‘tendency’ rather than a fully realised project. ⁴⁴

Locating a primary source of power either in human mobility or in sovereign control renders the question of transformational strategies crucial to both approaches. Both contend that sovereign power can only be challenged by rendering inoperable its own techniques and that struggles based on claims to inclusion (as rights-bearing subjects) or ‘a better concept of citizenship’ cannot trigger change in the same way. To be fair, Papadopoulos and his colleagues attempt to leave space for some cross over between struggles that reject the terms of sovereign power and struggles that deploy those terms in order to resist them. They explicitly state that rights-based struggles may connect with ‘imperceptible politics’ in ways that ‘allow the establishment of spaces outside of representation’. ⁴⁵ Their emphasis is nevertheless on getting to that space, beyond citizenship and subjectivity, even if rights-based struggles are employed along the way. To this extent, we have to take seriously the limitations of such a position both in terms of its logical shortcomings as well as its political implications. The insistence on strategies that resist incorporation remains (ironically) reactive to the terms of sovereign power and fails to mobilise a genuinely alternative political topography. ⁴⁶ The rejection of rights-based claims also comes with considerable political risks. If, as William Connolly argues, power stems from the interplay of sovereignty and culture, then such a course of action may jettison some of the most widely culturally resonant tools on offer that can ‘alter … the course [and the worst excesses] of sovereignty’. ⁴⁷

Agamben, for his part, insists that he is more interested in polarities and tensions than dichotomies when it comes to marking the contours of sovereign power. ⁴⁸ It is certainly the case that Agamben conceived of ‘bare life’ as a zone of indistinction precisely because binary logics of inclusion–exclusion and inside–outside were not sufficient to capture the precise relation between sovereign power and its objects. Agamben nevertheless appeals to binary thinking in order to identify modes of resistance that allow for transformation. When he dismisses struggles based in claims to citizenship and human rights as always already co-opted, he distinguishes between corruption on the one hand and complete system overhaul on the other. The problem with this approach is that it fails to acknowledge any generative potential in precisely the sort of ambivalence and indeterminancy that constitutes political struggles in the everyday, wedged between cultural resonance and the aspiration towards what is culturally unrecognisable. Such struggles strive paradoxically to express what cannot yet be thought or spoken. They do so via transgression, but also by building a bridge between notions of freedom and justice that operate according to prevailing registers of meaning and notions of freedom and justice that stretch imaginations beyond the familiar and accepted.

In other publications, scholars associated with the Autonomy of Migration literature offer more subtle approaches that allow for this kind of bridge, avoid binary reductions and insist on the constitutive relation between migration and control. ⁴⁹ Sandro Mezzadra, for instance, is careful to avoid romanticising migration or valorising irregular migrants as epistemically privileged hybrid or nomadic subjects. Mezzadra is just as concerned with citizen-subjects whose relative positioning undermines clear-cut binaries between inclusion and exclusion. He is interested in the ‘ambivalence’ that attaches to migration, ‘strained as it is between reclaiming a radical instance of liberty and the functioning of old and new mechanisms of domination and exploitation’. ⁵⁰ This emphasis on ambivalence allows Mezzadra to maintain a more reflexive position on the inside–outside binaries that are ‘logically presupposed’ in any discussion of citizenship, borders, migration and integration. ⁵¹ Ambivalence rather than agency (at least when the latter is read in opposition to victim status) seems to me to be a far more useful sentiment for approaching irregular migrant activism, which in so many cases is, at once, purposeful, political and born of a certain desperation. It is hard to read acts of self-harm in spaces of detention, for instance, in less complex ways. Drawing on these more subtle readings of autonomy as that part of migration that inaugurates transformation, rather than migration as autonomous per se, the following section expands on an alternative theorisation of irregular migrants’ political claims that starts from the notion of ambivalence.

Ambivalence, Citizenship, Politics

I first met Mohammed Jouni at a public forum in Berlin where he took the stage alongside politicians, bureaucrats and lawyers debating the finer points of German immigration law. Mohammed and his parents had come to Berlin from Lebanon as asylum seekers some eight years previously. In 2009, he was in his final year of high school. Mohammed was a founding member of Jugendliche ohne Grenzen (Youth without Borders), a social, support and activist group of young refugees and asylum seekers. He worked hard to motivate young people whose lives were on hold on account of their insecure status. He knew it was important to speak for himself and not to be spoken for, regardless of the good intentions of social workers and advocates. When he spoke for himself, Mohammed explained, ‘the refugee becomes a person’ rather than an abstract idea. ⁵²

That evening, Mohammed spoke on the topic of the Bleiberechtsregelung – a federal regulation that provided pathways to permanent residence for long-term Duldung holders, provided they could satisfy certain criteria including regular employment. Mohammed explained why it was unrealistic to expect Duldung holders who had been locked out of the labour market for years to suddenly find ongoing work in the midst of a global recession. This was the position his father currently faced. If his father could not demonstrate a history of regular employment within a certain number of months, his eligibility to apply for permanent residence would lapse. He would remain on a Duldung indefinitely and live with the ongoing potential for deportation.

Despite his history of insecure immigration status, Mohammed was in many ways a model citizen. Young, articulate, ambitious, hard-working, German-speaking and politically engaged, he ticked all the boxes for the kind of ‘productivity’ sought by increasingly selective European immigration systems. Mohammed was very aware of the leverage that his generation held over that of his parents, in terms of making a successful argument for ‘earned’ residency status. Yet he refused to make this distinction when campaigning for the rights of asylum seekers and other irregular migrants. He objected to media talk about ‘good’ and ‘bad’ migrants and bemoaned the slippery slide towards an immigration system that discarded the sick, the old, the disabled and the generally ‘unproductive’. Later, when quizzed on his feelings about where he belonged, he also refused to buy into citizenship norms, preferring only to acknowledge the city he felt at home in. For Mohammed, gaining a passport – whether German or Lebanese – was an instrumental exercise that secured him certain rights. It said nothing about the legitimacy he felt about where or who he was in the world or the relations to places and people that provided him with the grounding to know where he belonged.

Mohammed’s reflections echoed those of several other activists I met in Berlin, each living with complex forms of status insecurity. Each of them was faced with the urgency – and, for those facing deportation, the life or death necessity – of securing legal residence. Each of them was also self-conscious about their own implication in an immigration system they held to be profoundly unjust. The residency papers they sought, the administrative processes they engaged with in order to get them and the refugee status many of them claimed were all, they felt, expressions of the same order that immobilised so many other would-be migrants. I was struck by the way that awareness of this dilemma filtered through to their everyday thoughts and interactions. Accordingly, these migrants expressed a great deal of ambivalence with respect to citizenship as a normative order, a strategic ambition and a conceptual language capable of capturing the political claims they wanted to make. They knew that the human rights regime on which they called for ‘protection’ was deeply flawed and unable to offer a consistent approach to the ‘humanity’ it claimed to defend. At the same time, human rights offered a language that spoke to the dignity, liberty and shared history that irregular migrant activists sought to express.

How can we hold these complex tensions together in a theoretical account of irregular migrants’ political claims? How do we avoid conflating the failings and imperfections of a human rights regime with the limits of human rights struggle? Recognising the ambivalence in the claims of irregular migrants can take us part way towards answers to these questions. A focus on ambivalence makes us more attentive to political claims whose substance and effects cannot be captured on a register of subjection–agency that corresponds to an inside–outside relation with respect to sovereign power and normative regimes. Whether migrants’ political claims are engaged from a position that is understood as inside or outside sovereign order is a less revealing question than whether and how such claims transform what it means to be political. It is entirely possible for ambivalence towards the strategies open to migrant struggle to operate less as a handicap or a prelude to becoming political than as a productive resource that plays a part in being political. A focus on ambivalence thus opens up a series of pertinent questions. In what ways do migrant claims that emerge in the context of ambivalent sentiments inaugurate new modalities of agency and subjectivity? How might it be possible to avoid a choice between accepting or rejecting citizenship and human rights norms in favour of what Saba Mahmood calls inhabiting norms differently and in socially transformative ways? ⁵³ What does attention to ambivalence imply for the kinds of approaches that are brought to bear on analyses of political contestation and processes of subject formation?

An important imperative towards grounded approaches flows from attention to ambivalence. The transformative dimension of political claims is better discerned via a dialogical relationship between theory production and concrete migrant struggles – an approach that goes hand in hand with an emphasis on the act of making claims and the broader social environment that contextualises the act. To emphasise the act, as much as the claim itself, is to recognise that subject status (as citizen, for instance, or as member of humanity) is always politically negotiated and subject to historical change. It is, therefore, to acknowledge the transformative potential that flows from a social and iterative act (the making of the claim) and an ongoing process of political (in this case, rights-bearing) subject formation. Because such acts occur at the intersection of culture and power, we cannot know their outcome. Nor can we assume that to make a claim for human rights in a context in which their abuse is systematic can only offer more of the same injustice. To do so is to assume a fixity around the limits of humanity as they currently stand – a position that in fact reaffirms the very power relations that allow sovereign agents to have the last word on who can realise the rights-bearing part of their humanity. To assume the outcomes of political acts in singular ways is also to deny the diversity that is likely to ensue on account of different settings.

In their recent observations of the kinds of claims being made by undocumented migrants in southern US states, Fernandez and Olson attest to the significance of context. In that particular place, they argue, irregular migrants are not seeking citizenship or even permanent residence. They seek ‘the right to come and go’ more than ‘the right to come and stay’; they demand ‘global mobility’ alongside ‘local participation’. ⁵⁴ What this suggests is that a new type of mobile political subject is engaged in making political claims but is not recognisable to us in the mode of territorial citizenship to which we have become accustomed. It suggests in addition that the rights-bearing subject and the limits of political community are being renegotiated in light of global mobility but also in ways that reflect the specific needs and desires of migrants then and there.

It may still be tempting to capture such claims to ‘come and go’ through an analytics of citizenship that emphasises citizenship’s dynamic and performative dimensions rather than its static formalistic ones. This is the path that much recent work on migrant struggle has taken, influenced in particular by the work of Engin Isin. ⁵⁵ From this perspective, irregular migrants can be understood as citizens-in-the-making not so much in the sense of seeking formal citizenship, or even legal residence – though, in many cases, this remains a central ambition. Rather, their ‘citizenship’ arises on account of the process of political subject formation in which they are engaged. Citizenship, in this respect, is seized (not bestowed) and transformed (not replicated) in performative acts (such as – but not only – human rights claims) which rupture prevailing assumptions about what citizenship is, where it applies, how it has come to be constituted and who does the work that citizens do. The practice of citizenship is not necessarily geared towards a more inclusive citizenship in a formal or even a symbolic sense. Rather, it challenges the social and spatial terms of reference through which citizenship is made meaningful. The approach I am advocating does not preclude the deployment of citizenship as a useful analytic for contemporary migrant struggles. Ambivalence, however, adds an important reflexive dimension to such inquiry. I want to suggest that ambivalence be read as an expression of that part of political struggle that anticipates (without necessarily naming) the dissonance between what may be emerging as thinkable and possible on the one hand and the limits of existing analytics (including citizenship) on the other.

The point can be illustrated by the message of The Voice, a long-standing activist group of African asylum seekers and other migrants, based in Jena with a branch in Berlin. The Voice holds regular conferences and public demonstrations to draw attention to the links between European border controls, the treatment of irregular migrants and relations between European countries and their former colonies in Africa. The website of The Voice contains a series of blogs, articulating a colonial history and a post-colonial struggle embedded in the contemporary positioning of African asylum seekers in Germany. ⁵⁶ Activist Mbolo Yufani, who informed me about the history of The Voice and his long association with the group, knows that citizenship and alienage are the framing devices for an immigration system that is tied to the colonial project that he resists. ⁵⁷ Though members of The Voice are engaged in claims for refugee status and residency, their broader struggle is for recognition of the colonial relations that have made the European citizenship project (including the border controls designed to defend it) what it is today. Their struggle, at the most general level, is for the freedom to be mobile and the recognition of history. Citizenship in a formal sense may well be peripheral to this struggle or merely a strategic tool, but citizenship in Isin’s sense is certainly recognisable. When irregular migrants insist on rights to live and work in the places to which they have come, they reinvigorate the practice of citizenship in ways that generate new geographies and temporalities of civic engagement. But can we really imagine that this is all there is? What do we risk by glossing over the ambivalence towards citizenship – as legal form and performative dynamic – that is also recognisable in the struggle of The Voice? What do we fail to anticipate by attempting to contain the political solely within an analytics of citizenship?

One does not have to buy into a Eurocentric reading of the history of citizenship in order to pose these questions. The issue is not that citizenship has evolved in a process endogenous to Europe, reflecting an exclusively Eurocentric experience. The recognition of colonial struggle embedded in contemporary citizenship that The Voice activists seek rests precisely on the notion that ‘European’ citizenship is far more cosmopolitan in its origins than is generally presumed. Nor is the issue that we cannot identify modes of citizenship long present in non-European settings. Part of Isin’s project is to reimagine citizenship as a dynamic process of group constellation in order to render visible non-European citizenship practices. ⁵⁸ The problem, as Sanjay Seth contends, is that the language of citizenship is ‘fully adequate nowhere’. ⁵⁹ Ambivalence evokes recognition of the gap between the language of citizenship and the limits of the possible, as well as the productive energy that lies within that gap. Together with an emphasis on ‘the act of making claims’, ambivalence provides a bridge from subjects we can imagine to subjects that are unthinkable.

I want to insist, however, that without grounding theory production in concrete migrant struggles, conscious of the particular histories and diverse contexts that shape specific claims, we are unlikely to make theoretical advances on the gap that exists between existing analytics and emergent subject formations. When we create a reflexive loop that submits our analytics to constant critique on the basis of grounded empirical inquiry, we may have a chance of glimpsing new iterations of the political. It is through this kind of reflexive research that we might in turn develop new concepts, registers and maps that can better articulate the modalities of agency at stake in the political claims of irregular migrants and their relationship to existing normative orders. We can acknowledge the ways in which those orders continue to constitute mobile subjects in certain ways but also stay open to an account of justice that is not beholden to them.

A focus on ambivalence in theorisations of the political claims of irregular migrants works against the drive to find comprehensive answers to the future of border regimes or comprehensive solutions to the strategic dilemmas of activism. It does, however, allow us to work productively with the tensions that characterise the everyday struggles of irregular migrants in Germany and elsewhere. It allows us to document the ultimate vulnerability of migrants like Oury Jalloh, whilst also recognising the transformative potential of the rights-based discourse that makes his death controversial in widely resonant ways. From this starting point, we are not locked into either the fixed sovereign logic that Agamben constructs or the social trajectory that certain Autonomy of Migration scholars envisage. Rather, we enter the domain of the political. This approach allows us to acknowledge and respect the ambivalent paths of activists like Barbara (of La Plataforma), Mbolo (of The Voice) and Mohammed (of Youth without Borders) who struggle to live their own lives in ways that do not immobilise others. It allows us to imagine this very ambivalence as generative of new subject forms. It leaves thinking space for dynamic and transformative politics emergent in the claims of irregular migrants and embedded in constitutive relations between migration and control, not in utopian projections of what is yet to come.