Governing immigration through probation: The displacement of borderwork and the assessment of desirability in Spain

Abstract

Lacking an effective recruitment strategy and wanting to satisfy the demand for immigrant labour, Spanish authorities facilitated the entry of (mostly) Latin American ‘tourists’ in the early 2000s, knowing that many were migrants entering Spain to reside and work irregularly. This strategy is one of postponing control – a strategy of displacing some of the filtering work performed by borders and immigration selection across space and time. In this context, facilitating entry, policing the streets, regularizing ‘deserving immigrants’ and deporting ‘undesirable foreigners’ are analysed as complementary dimensions of a diffuse and flexible regime governing immigration through probation. It is argued that this displacement of borderwork allows for the creation of a probationary period during which the conduct of migrants is scrutinized and policed. This article describes the logics and practices of the various institutional actors involved in governing irregular migration in Spain, while paying attention to the role that discretion and competing interests play in the multi-scalar assessment of migrants’ desirability.

Keywords

border desirability immigration probation sociology Spain

Introduction

Most of the research on borders and migration control in Spain focuses on the securitization of the Euro-Mediterranean border and the externalization of control to neighbouring countries. This is not surprising, since Spanish authorities have given priority to this area because of its high visibility, and since international media have covered the humanitarian crisis at Europe’s southern borders extensively. This literature is also academically and politically necessary as it helps explain and document the social, legal and human implications of the securitization of this border. With yearly estimates of migrant deaths near the Spanish coast fluctuating between a few hundred and several thousand in the past decade, deterioration in the living conditions of migrants in permanent transit in the Maghreb, and violations of international conventions associated with the externalization of control, research at the southern border remains essential (Carling, 2007; García Andrade, 2010; Asociación Pro Derechos Humanos de Andalucía (APDHA), 2013).

But while Spanish authorities were erecting higher border fences in Ceuta and Melilla, implementing the Integrated System of External Surveillance in the Gibraltar Strait and on the coasts of the Canary Islands, and participating in FRONTEX (the European Union agency for external border control) patrols at sea in the early 2000s (Carling, 2007), they were also leaving a door open to irregular migration by having lax entry policies at international airports. Indeed, lacking an effective recruitment strategy and wanting to satisfy the demand for immigrant labour, Spanish authorities have facilitated the entry of (mostly) Latin American ‘tourists’ for years, knowing that many were entering the country to reside and work irregularly (Izquierdo Escribano, 2012). I argue that this strategy is one of postponing control, that is, a strategy of displacing some of the filtering work performed by borders and immigration selection across space and time. In this context, the most extensive borderwork occurs inside the country through the evaluation of irregular migrants’ files when they apply for regularization, the constant policing of migrants in the streets, and the threat of deportation. This article thus follows the border as it moves inward and extends over time. I argue that facilitating entry, policing the streets, regularizing ‘deserving immigrants’ and deporting ‘undesirable foreigners’ are complementary dimensions of a diffuse and flexible regime for governing migration through probation.

Questioning the apparent contradictory logics informing these varied practices, I claim that they work together to create a regime of migration management based on a long probationary period during which migrants are scrutinized and policed. Exploring how particular technologies of citizenship aimed at the inclusion of ‘responsible immigrant workers’ operate alongside anti-citizenship technologies aimed at the exclusion of ‘undesirable risky foreigners’ (Inda, 2006), the article maps out a complex ensemble of inclusionary and exclusionary practices resulting in a ‘chutes and ladders’ model of immigration management (Goldring and Landolt, 2013). Using empirical material, I discuss these complementary strategies, while describing the logics and practices of policymakers, police officers, judges and bureaucrats.

In focusing on the borderwork carried out by various institutional actors dispersed through space and time, this article moves away from a conception of borders as objects to an analysis of the complex and dynamic articulation of bordering practices. Indeed, as Van Houtum and Van Naerssen (2002: 126) have argued, ‘the word “borders” unjustly assumes that places are fixed in space and time, and should rather be understood in terms of bordering, as … ongoing strategic effort[s] to make a difference in space’. In order to account for borders as diffuse, networked and differentiated, we thus need to ask who does the borderwork, where, when and according to what logics (Rumford, 2008)? While micro-sociological analyses of the actual practices of officials involved in border governing at one particular site are best suited to providing detailed accounts of the performativity of borders through everyday practices, a broader level of analysis is necessary in order to capture a greater part of the apparatus governing migration (Feldman, 2012). For this reason, more than individual actors and their daily practices, it is the articulation of various practices, discourses and institutions into a diffuse regime for governing migration through probation that this article examines.

The article draws on ethnographic evidence gathered through a methodological strategy that Gusterson (1997: 116) calls ‘polymorphous engagement’. This approach to ethnography aims at avoiding the limitations of institutional policy analysis while addressing the difficulty of gaining access to security professionals by ‘interacting with informants across a number of dispersed sites’ and ‘collecting data eclectically from a disparate array of sources in many different ways’ (Gusterson, 1997: 118). While this strategy might not yield the same ethnographic depth as intensive in situ observation, its flexibility and use of a broader array of sources is often essential when studying individuals associated with security projects, the military, or border and immigration control. Indeed, in these contexts, access to interviews, sites of observation and archival material is often limited, and the data collected through each technique, and at each site, tend to be fragmented and censored. A scholarly polymorphous engagement, not unlike ‘fine investigative journalism’ (Lutz and Nonini, 1999: 104), permits the filling in of gaps in documents, interviews and observations. For the research that led to this article, I thus relied on interviews with a broad range of actors and the observation of the omnipresent policing of migrants in the streets of Madrid, as well as on policy documents, police memoranda, minutes of Congress sessions and various reports.

Facilitating entry: Permeable airport borders

The model for governing immigration in Spain has always been a reactive one organized around the management of irregular migration (Calavita, 2003; Cachón Rodríguez, 2009). Izquierdo Escribano (2012: 49) dubbed it a ‘system of tolerated irregularity’, but it would be more accurate to have called it a system of encouraged irregularity, since irregularity is not a residual consequence of an otherwise effective immigration policy, but the central feature of this system. Indeed, as Cachón Rodríguez (2009: 117) explains,

the legal channels are too narrow and slow to allow for the circulation of the immigration needed by the labour market and this leads to the construction of a model based on the entry of immigrants … as undocumented that is later ‘compensated’ by processes of regularization.

Policymakers I interviewed also explained that attempts at designing effective recruitment programmes throughout the 1990s had failed. The main tool used at the time was the ‘Contingent of Authorizations for Foreign Workers’, a quota for the recruitment of migrant workers set annually by the government. From 1993 to 1999, however, it functioned as a means by which to regularize a yearly average of 20,000 workers already living in Spain without the proper documentation; it did not function to attract new immigrants (Cachón Rodríguez, 2009). Migrants entered Spain, generally as tourists, lived and worked there for years avoiding deportation, and potentially obtained temporary residency and work permits through one of the avenues for regularization later.

In the mid-1990s, there was a sense among policymakers that border and immigration control was ineffective, that there was a gap between Spain’s attempt at ordering migration flows and the results on the ground. The debates that led to the adoption of a new and more liberal Alien Act in 2000 – followed a few months later by a conservative counter-reform – can be read as a political struggle over the proper way to address this perceived lack of control. The electoral victory of the conservative Popular Party in 2000, secured through calls for better border control and a hard stance on ‘illegal’ immigrants, marked a clear shift towards a securitizing agenda and contributed to an exponential increase in border and immigration controls (Calavita, 2003; Carling, 2007). This spectacular securitization of the Euro-Mediterranean border made the metaphor of ‘Fortress Europe’ compelling, but, despite the rhetoric of control, Spanish borders continue to work primarily as filters selecting who can circulate, how, and under what conditions (Rumford, 2008). In fact, at the height of the securitization of borders, the mesh of this filter at Spanish international airports was set rather wide in order to facilitate the entry of irregular migrant workers, mainly Latin Americans travelling as tourists.

It is hard to know whether the Spanish authorities deliberately chose to facilitate the entry of Latin American irregular migrants. Interviews I conducted with high-level bureaucrats suggest that, in the early 2000s, the decision to postpone the imposition of a short-term visa on the hundreds of thousands of Ecuadorian (and other Latin American) ‘tourists’ who were known to be migrants was based on a series of factors. Among these, the failure to anticipate such important migration flows and the diplomatic difficulty of imposing visas on citizens of former colonies appear central. But interviewees also pointed to the conservative government’s desire to lower the proportion of Moroccan immigrants (historically the most numerous group), and the necessity to provide immigrant labour to the booming economy in the absence of an effective recruitment programme. As a bureaucrat of the Ministry of the Interior explained: ‘You can’t simply pass from zero control to full control without creating a crisis. Even when we cracked down on illegal employment in agriculture …, workers were leaving the fields, and we had to regularize them to compensate for stricter control.’ His explanation of what he referred to as ‘difficulties in putting order in immigration’ exposes a contradiction common to other countries: the need to satisfy a conservative electoral base that supports a tough stance on irregular migration, while not upsetting the employers who rely heavily on immigrant labour (López-Sala, 2005). To a great extent, this contradiction is why Spanish authorities waited to lobby for the imposition of a Schengen visa on Ecuadorians (2003) and Bolivians (2007).

What is certain is that the government was aware that these ‘tourists’ provided the bulk of Spain’s new immigrants. An Ecuadorian consul to Spain shared this view, explaining:

The Ecuadorian population arrived by air at the Barajas Airport: this is to say there was an opening. I believe that the authorities were aware of what was happening, but because of the conditions of the labour market …, the need for workers …, the fact that various sectors of Spanish society would allow the presence of this group, this led to facilitating the entry. Otherwise, you cannot explain that 3 or 4 planes arrived every day and left empty … It’s possible that they said that there was control while knowing that in fact, about 1,100 persons entered daily from Ecuador, and of these only 20 or 30 left … There were zones where they needed this labour force and where it was essential to be able to count on this contribution. I think this is what permitted the entry of these [Ecuadorian] citizens.¹

Yearly statistics confirmed these assertions. Comparing the number of residency permits issued with the number of all immigrants registered in the municipal census, we can estimate the increase of irregular migrants in Spain. In the case of Ecuadorians, this method reveals an increase of 268,124 new irregular residents from 1999 to January 2002, and this despite two collective processes of regularization held in 2000 and 2001 (Izquierdo Escribano, 2012). In addition to these statistics, Spanish authorities also had access to police reports estimating that in 2002 alone 101,432 Ecuadorians entered the country and only 874 left (Rodríguez, 2003). By November 2002, the government decided to ask the European Commission to impose a Schengen visa on Ecuadorians, a policy that was implemented in the summer of 2003 and led to a dramatic decrease in the number of entries. Indeed, the European Migration Network (REM, 2011) estimated that while the monthly average of entries in the six months prior to the imposition of the visa was 12,132, this dropped to 4,903 in the six months following imposition.

But why not target other Latin American countries? After all, according to the same police estimates it was not only Ecuadorians who entered as tourists and did not leave. For all Latin Americans, there were only 86,000 departures for 550,000 entries (Rodríguez, 2003). For a government that securitized immigration and prided itself on its strict border control and aggressive expulsion policies, this is surprising. However, considering that stricter immigration control at the border would need to be compensated by a functioning recruitment strategy, this policy appears less contradictory. Indeed, in the same period, the annual quotas for the legal recruitment of foreign workers were incredibly low (between 0 and 16,000 workers actually incorporated through these permits yearly) and were mostly granted for short-term seasonal work. After the election of a Socialist government in 2004, the number of permits increased slightly but did not become significant until 2007, and permits are still allocated today mainly for short-term seasonal work (Cachón Rodríguez, 2009).² During the period of economic boom, this was highly insufficient. As a result, other ‘tourists’, mainly Bolivians and Argentinians but also by then Romanians, replaced Ecuadorians as incoming irregular migrants and, soon enough, planes carrying Bolivian ‘tourists’ started arriving full and leaving empty, reaching a peak of several flights per day in the weeks prior to the delayed imposition of short-term visas for Bolivians in 2007.

Postponing control: Internal borderwork

Many officials I interviewed, as well as conservative politicians and journalists promoting anti-migrant legislation, tend to frame this situation as reflecting a total lack of control. When asked why he thought visas were not imposed on more countries earlier, a spokesperson for the Sindicato Unificado de Policía (SUP), the main police union whose members include officers working at airport customs, claimed:

The government was acting impulsively. We took action on immigration depending on how was the economy, depending on the political situation, on third countries. And this is not the appropriate way. I mean, you can’t combat migration flows through improvisation. That is: today it’s convenient to bring in people, we let them in to do what they want, later we end up with a big pocket of irregular immigrants … and we regularize them. There was no strategy, no effective control.

But whether the relative facility of entry by air for some migrants is the result of policy design or policy failure – and the data show that it is a mix of both – these practices do not amount to a lack of control. Rather, they are premised upon the logic of postponing control: letting many migrants in as tourists and tackling the issue of control and selection later through two distinct strategies. On the one hand, the constant policing of immigrant neighbourhoods, preventive detention and attempts at deportation that force irregular migrants to live in fear and self-police; on the other, various paths to regularization providing reasonable prospects of obtaining residency and work permits for immigrants who live exemplary lives fulfilling the conditions set by the government.

This strategy effectively creates a regime of migration management based on a lengthy probationary period, including at least two years of what De Genova (2004: 174) calls ‘apprenticeship in “illegality”’. De Genova (2004: 161) rightly points out that the institutional production of migrant ‘illegality’ is not just the result of the formal illegalization of certain types of movement, or the exclusionary dimension of citizenship. It is also actively reproduced as ‘a simultaneously spatialized and racialized socio-political condition’ that ‘is lived through a palpable sense of deportability’. He also explains that the ‘legal production of “illegality” provides an apparatus for sustaining … migrants’ vulnerability and tractability – as workers – whose labor-power, inasmuch as it is deportable, becomes an imminently disposable commodity’. While this is true, apprenticeships in ‘illegality’ and probation should also be understood as periods during which each migrant’s desirability can be assessed and policed. This idea of assessment is key in providing an account of precariousness that goes beyond the valid but obvious argument, demonstrated in many instances, that ‘undocumented workers provide capitalist economies with a source of [cheap] labor’ (Calavita, 2003: 400). Indeed, the notion of apprenticeship does not simply convey the idea of a mandatory period of ‘illegality’, this legally produced precariousness allowing for exploitation, although that is certainly the case (Cachón Rodríguez, 2009). It is also, just like any internship, a moment of examination, a period of probation. In accordance with the literature on the displacement of borders (Rumford, 2008), I suggest that this type of control should be understood as a dimension of borderwork performed at various sites by a range of actors wider than those readily identifiable as border security professionals.

This internal borderwork is deployed through two sets of technologies of government that, following Inda (2006: 19), we can call ‘technologies of citizenship’ and ‘anti-citizenship technologies’. Inda explains that technologies of citizenship are technologies of inclusion ‘that endeavour to reinsert the excluded into circuits of responsible self-management’. Alongside these are anti-citizenship technologies ‘that deem the exclusion of certain anti-citizens to be unavoidable, and endeavour to regulate these individuals … through operations that seek to contain the threats they and their actions pose’ (Inda, 2006: 19–20). In the governing of irregular migration in Spain, these technologies include registration, regularization and integration, on the one hand, and policing, detention and deportation, on the other. During their apprenticeship in ‘illegality’, migrants have to govern themselves, walking a fine line between the prospect of regularization and the threat of deportation.

While these two sets of practices appear to belong to distinct logics, they are in fact complementary and coeval dimensions of an apparatus aimed at governing the desirability of irregular migrants. For many bureaucrats at the Ministry of Employment and Social Services, or in regional governments, regularization is the ideal and primary strategy, while at the Ministry of the Interior, and among police officers responsible for implementing the Alien Act, regularization is seen as a means of last resort. These preferences are not stable, however, and on the ground a plethora of actors, each enjoying a certain level of discretion, intervenes in deciding who deserves to access the inclusion stream and who ought to be put on the exclusion tract, often with the effect of prolonging the probationary period of liminal inclusion.

Regularizing ‘desirable immigrants’

For irregular migrants living in Spain, there has always been a reasonable prospect of obtaining temporary residency and work permits. I have already mentioned the annual quota of work permits that functioned as a disguised regularization measure from 1993 to 1999. In addition to this, regularization occurred until 2005 mainly through periodical collective programmes. Such programmes occurred in 1985/86, 1991, 1996, 2000, 2001 and 2005, and a total of 1,162,979 permits were granted (Cachón Rodríguez, 2009). Generally, they provided an initial renewable permit valid for a year and were only available to migrants without criminal records and able to demonstrate that they had been living in Spain before a set date.³ Following pressures from the European Union, Spain stopped collective regularizations after 2005. Since then, the only means of regularization has been an individual path known as arraigo or rootedness. Three variations exist: arraigo laboral (scarcely used, since it implies denouncing the company that has illegally employed the applicant), arraigo familiar (available to descendants of exiled Spaniards), and the most popular arraigo social (based on social integration as demonstrated by family ties or an integration report). In this section, I describe the long process that can lead to regularization through this latter channel of arraigo social and discuss how various actors intervene in the process doing what amounts to a form of diffuse internal border control.⁴

Limiting and facilitating inscription in the municipal registry

Upon arriving in Spain, migrants look for work and a place to live. When regularization through arraigo social is the objective, the first key step is to register as a resident on a municipal census (padrón) in order to be able later to document three years of residency in Spain. This should be simple, since the law renders it mandatory for municipalities to register everyone who resides within their jurisdiction, regardless of their immigration status.⁵ And yet, discretionary power (legal or not) makes the experience far from standard.

In extreme cases, municipal authorities have refused to register immigrants without residency permits even though the law demands only that they verify a person’s identity, as well as their address. For instance, the municipal governments in the Spanish enclaves of Ceuta and Melilla situated in Northern Morocco have always refused to register irregular migrants, arguing that, because of their situation as border towns, it would lead to abuses. In 2010, the conservative mayor of Vic (Catalonia) announced that his town would not register migrants without residency permits, while the town of Torrejón de Ardoz (Madrid) only registered residents who lived in apartments with a minimum of 20 square metres per person – two strategies aimed at reducing the numbers of immigrants living in their municipalities (Clota, 2010; Gimeno, 2010). In the town of Robledo de Chavela (Madrid), the mayor recently defended his policy of not registering immigrants without work permits, claiming his right to control who could reside in the town’s territory. He explained: ‘I don’t care if people like it or not. Immigrants who don’t work, they can’t come here to scrounge. It’s as simple as that.’ And when reminded that his actions were illegal, he responded: ‘What can they do to me? If no one here applies this legislation …’ (Otero, 2013). These are not the only cases. In a 2008 report based on a survey conducted with Catalan municipal bureaucrats, the Ombudsman of Catalonia noted that municipalities with a greater migrant population were more restrictive, and denounced the use of their registration power to control immigration. The report notes, for instance, that while municipalities can choose to accept forms of identification other than a passport or a Spanish identity card, municipalities with more immigrants tend almost always to refuse any other document. A similar tendency is the refusal to register based on the number of individuals living in the same house, or the number of individuals per square metre, a measure used mainly in municipalities with more immigrants to limit their registration (Síndic de Greuges, 2008).

Migrants also share tips about more welcoming municipalities, however, municipalities that accept affidavits from religious figures or social workers confirming a person’s identity or that have creative ways of confirming a person’s address when documentation is missing. Some do so for humanitarian reasons, but other municipalities facilitate registration in order to increase their population and access the governmental funding available only to municipalities with over 20,000 inhabitants. As a high-level bureaucrat of the Catalan General Immigration Office explained: ‘You have everything: cases like Vic who stalled registration, but I also know mayors who tell me “We’re only 200 residents short of 20,000, so we do all we can to register everyone.”’

These institutional disparities result from local political decisions and are often established as means of facilitating or limiting the settlement of immigrants at the local level. This strategy is representative of the multi-scalar governing of immigrants and can be considered a form of municipal borderwork aimed at filtering who can and cannot live in the community based on local and largely discretionary assessments of their desirability. Indeed, while critics were right in arguing that the mayors of Robledo and Vic expressed xenophobic attitudes, racism itself is not sufficient to explain this assessment of desirability. As Hage (2000: 38) explains, ‘generally speaking, the classification of an object as “undesirable” always assumes a space where the undesirable is defined as such … Consequently, categories such as “too many”, while embodying some form of “racist” belief, are primarily categories of spatial management’. Considering the assessment of migrants’ desirability as a multi-scalar technique of space management helps us understand why the right to set the criteria and perform this assessment is the object of power struggles among local, regional and central governmental institutions.

Assessing rootedness and integration at the local levels

Once registered on the padrón, irregular immigrants are able to access many services and document the length of their stay in Spain. Under the current legislation, they have to spend three continuous years residing in Spain without authorization before they can apply for regularization based on arraigo social. During this apprenticeship in ‘illegality’, they have to avoid deportation, keep their distance from any criminal activities, gather proof of their integration to obtain a favourable integration report, and be working in the underground economy in precarious conditions, ideally trying to get their employers to agree to provide them with the one-year legal work offer they will need when applying for regularization.

While having a work contract and no criminal record are simple criteria by which to distinguish between ‘desirable employable and responsible immigrants’ and those deemed ‘undesirable foreign delinquents’, the integration report is a more interesting and subjective means through which a migrant’s desirability is assessed. The legislation provides general guidelines, but the means of assessment vary depending on the jurisdiction. For instance, in Madrid, applicants need to complete a course entitled ‘Know the Laws’ and pass a Spanish language test, while many other municipal offices assess this knowledge only through interviews. Furthermore, while the new regulation makes autonomous communities⁶ responsible for emitting the report, in most places it is still the municipalities that write them, making the discrepancies even greater. In the Autonomous Community of Catalonia, where it is the Catalan government that ultimately submits the report to the central government, it is still produced first by the municipality where the immigrant resides. Frontline municipal employees collect documents provided by immigrants and interview them to assess their level of social integration (indicators of integration include use of municipal services, membership in sports clubs or local associations, participation in educational and integration programmes), as well as their knowledge of the Spanish and Catalan languages. They then grade the integration as acceptable or unacceptable and transfer the report to the Catalan government, which makes the final recommendation to the central government. In 2011, Catalan nationalist politicians, always trying to gain more autonomy vis-a-vis Madrid, secured the responsibility of producing the report as an attempt to better control immigration. As a bureaucrat of the Catalan General Immigration Office explained:

We have no control over visas, over matters of the Ministry of the Interior such as expulsion, but thanks to the work of some Catalan Members of Congress we obtained the right to assess integration for the arraigo social … Having the evaluation centralized here is important, because if we do all the work of integration, we need to be able to select our immigration. And, of course, language is key for us. For now, a municipal bureaucrat conducts an interview and decides whether or not an immigrant’s language skills are good enough. But it’s very subjective: maybe if the bureaucrat is a Catalan nationalist he’ll be more demanding, while if he’s more Spanish-speaking, he’ll think that knowing two words of Catalan is enough. Now that we have this power, we’re slowly trying to get a consensus on criteria. To get a favourable report, immigrants don’t need to know Catalan well, all we ask is that they prove that they made an effort to learn it. So, for now, when immigrants cannot understand Catalan, we ask that they prove that they’ve taken 20 hours of language class, but we’re thinking of being more strict in the future, maybe asking 45 hours.

Individual regularization through arraigo social is thus a means developed by the central government to select irregular immigrants based on their desirability, a filtering tool that is the object of power struggles between municipalities, autonomous communities and the central government. At all levels, the assessment of desirability is intimately tied to immigrants’ capacity to convince bureaucrats that they are integrating, hard-working, law-abiding immigrants who, after an apprenticeship in ‘illegality’ of three years, finally deserve to be put on a track towards integration. This inclusion stream offers few guarantees, however: while it temporarily limits the threat of deportation, the first residency and work permit is valid for only one year and has to be renewed twice (each time for two years) before one can apply for ‘indefinite residency’ and eventually Spanish nationality. The apprenticeship in ‘illegality’ of three years is thus extended by another five years of probationary status, based on temporary permits, renewable only on condition that one continues to be a legally employed, law-abiding resident. Not surprisingly, the economic crisis has strongly impacted immigrants and other precarious workers, and preliminary statistics on the levels of success for regularization and permit renewal suggest they are diminishing (Sabater and Domingo, 2012).

Regularization through arraigo social thus works as a kind of citizenship technology, opening a very precarious yet essential inclusion stream for those deemed responsible and desirable based on an assessment of the way they conduct themselves during their apprenticeship in ‘illegality’. While it is clearly part of a project of inclusion, this programme operates primarily as a filter that divides irregular immigrants between ‘a majority who can and do ensure their own well-being and security through their own active self-promotion and responsibility …, and those who are outside this nexus of activity’ (Rose, 1999: 257–258). In order to get into this inclusion stream and stay in it, immigrants know that they have to conduct themselves in such a way as to build a record that matches the administrative criteria of desirability and responsibility. They govern themselves in an attempt to access this inclusion stream, but also to avoid the coeval exclusion one, since they are well aware that this internal borderwork takes other forms that are more exclusionary. Indeed, this technology of citizenship is coextensive with anti-citizenship technologies, those ‘technologies that deem the ethical reconstruction of marginal subjects unlikely and therefore work principally through practices of containment’ (Inda, 2006: 52). These include intensive and continuous police control, prohibitive fines, internment and deportation – all measures that ‘have [selective] incapacitation as their primary goal’ (Brandaríz García and Iglesias Skulj, 2013: 258).

Policing the streets and detaining ‘undesirable foreigners’

While the Guardia Civil polices external borders, advises third-country security forces on migration control and takes part in patrols at sea, and local police bodies are often seen policing immigrant street-vendors potentially contravening municipal by-laws, the National Police is officially the sole institution responsible for controlling the presence of foreigners in Spain. There is no distinct border and immigration agency as in many countries: National Police officers staff all specialized units policing foreigners. This means that its officers are responsible not only for controlling the entry of foreigners at authorized points of entry, guarding Immigration Internment Centres (CIEs) and deporting irregular immigrants, but also for fulfilling all other police functions, such as everyday policing of the streets. Police officers working at the border and in CIEs belong to specialized immigration units, while those policing the streets do not. However, they are all members of the same police institution, can easily transfer from one post to another, and cooperate closely. Owing to this institutional unity, the transition from policing of the actual border to the streets and to the detention centres is fluid.

Police identity checks as border controls⁷

‘Borders are everywhere in our city. Immigration identity controls happen everywhere, all the time: at subway stations, in plazas, in soup kitchens’, explained a volunteer for the Madrid-based Neighbourhood Brigades for the Observation of Human Rights (Brigadas Vecinales de Observación de los Derechos Humanos (BVODH)), an association patrolling the streets and documenting what they call ‘discriminatory identity controls’ and ‘racist raids’. Police identity checks that appear to be based on racial profiling and informed by the desire to control immigration status are so common on the streets of Madrid that anyone living in an immigrant neighbourhood witnesses them (and/or is targeted by them) daily. Noticing an increase in these apparently illegal police practices, and being unable to obtain statistics from the Ministry of the Interior, various local non-governmental organizations (NGOs) now document these controls themselves (BVODH, 2012).

In February 2009, written instructions distributed to police officers in the Madrid district of Villa de Vallecas establishing a weekly quota of 35 detentions of foreigners were leaked to the media. This internal document explicitly gave priority to the arrest of Moroccans because they were easier to deport, and mentioned that ‘if [the 35 detentions] are not there, you go find them outside our district’ (Berdié, 2009). Eventually, the Minister of the Interior admitted that similar quotas had been established ‘in four or five police stations’, but that these practices were going to stop (El País, 2009). Representatives of the SUP, in contrast, claimed that this was common practice at many police stations because affectivity was to be measured by the number of detentions. The police union opposed this statistical measurement of productivity and claimed that police officers who did not cooperate faced sanctions such as relocation or loss of their annual productivity bonus (El País, 2012). In an interview, an SUP spokesperson explained the logic:

The justification is that every year the Ministry of the Interior presents its data of criminality in front of the parliament … They want to be able to say ‘This year we’re better because we conducted more detentions’ and the police chiefs need to provide good numbers, and they pressure the low-rank police officers. And a detention is a detention, whether it’s for a car robbery or an administrative fault like irregular stay. So they make use of irregular immigration to make their numbers look better. And when they ask us to do that, which is what we’ve been denouncing as a union, well we have to do it. And if you go to a soup kitchen one day, and you identify people and you take ten detainees, this was considered good. It was statistics pure and simple. But it’s absurd: chances are they won’t be deported. So you’re doing a job that isn’t real. … But those were the instructions, and they put our members at risk … Some of the instructions contained in Memorandum 1/2010 were potentially illegal.

This memorandum (Circular 1/2010), distributed by the Police Directorate of the Ministry of the Interior in 2010, contained instructions for police action based on the Directorate’s erroneous interpretation of the new Alien Act (LOex 2/2009) and of the Public Security Protection Act (LOPSC 1/1992). The memorandum suggested that since foreigners were legally required to (1) identify themselves and (2) have documentation proving that they were in Spain legally, and since the Public Security Protection Act allowed the police to detain individuals who could not provide identification documents, on preventive grounds, the police could detain migrants who could not prove that they were in Spain regularly. This was a misinterpretation of the legislation, which only permits preventive detention in order to verify one’s identity, not one’s immigration status (Martínez Escamilla and Sánchez Tomás, 2011). It is hard to measure the quantitative impact of these instructions, since the Ministry of the Interior releases only partial statistics, but we know that on four ‘random’ days in February 2012 for which the SUP obtained numbers, the National Police detained 370 individuals for ‘illegal stay’ in Madrid alone, a number representing just over 47% of all detentions made that weekend in the capital (SUP, 2012).

Eventually the detailed documentation of police immigration controls by the BVODH and other organizations, the revelation that a memorandum instructed police officers to illegally detain migrants preventively, claims by the SUP that quotas of detention were common, as well as the condemnation of these practices by Spain’s Ombudswoman (Defensor del Pueblo, 2012) and the European Commission against Racism and Intolerance (ECRI, 2011), forced the publication of new instructions in May 2012. Implicitly acknowledging the existence of immigration raids, the new memorandum (Circular 2/2012) clearly states that

the implementation of [police plans related to irregular migration] has to avoid any type of practice that could lead to the undue privation of the rights and liberties of immigrants. For this reason the establishment of quotas for the identification or detention of foreigners by any unit of the National Police [as well as] massive or indiscriminate practices based only on ethnic criteria is forbidden.

This shift in policy seems to have reduced the number of raids and unlawful ‘preventive detentions’ of irregular immigrants, but it did not significantly reduce the number of identity checks. During my stay in Madrid in 2012, I personally witnessed hundreds of identity controls of foreigners in the streets and plazas of the immigrant neighbourhood of Lavapiés, where I lived, and immigrants I talked to all agreed that while there was a decrease in the spectacular character of control through raids, ‘routine’ identity controls of immigrants continued. The BVODH (2012: 31) arrive at similar conclusions, arguing that, since the publication of Circular 2/2012, the most notable change on the streets has been ‘that identity controls are performed in a more concealed way … – the proportion of undercover officers has increased – and that they are justified by officers claiming that their work has no other objective than “preventing crimes” or “finding delinquents”’.

Official data released in 2012 also seem to confirm this interpretation. Responding to a request by congressmen R. Sixto Iglesias, the government provided numbers on police controls conducted during the five months prior to Circular 2/2012 and the eight months following its publication.⁸ They suggest a significant decrease in the number of monthly identity checks after the adoption of the new memorandum, and a slight decrease in the control of Non-European Union foreign nationals from 41.6% to 38.3% of the total. The data do not specify the proportions of these foreigners who are immigrants living in Spain and those who are tourists, but if we consider that all non-European Union foreign nationals registered on municipal registries in 2012 represent only 6.7% of the Spanish population, the fact that they are the object of 38.3% of all identity checks reveals a disproportionately high level of control.

While these controls based on racial profiling can no longer lead to unlawful ‘preventive detention’ as argued in Circular 1/2010, they can still lead to arrests, fines, transfers to a CIE and deportations. Fighting irregular migration is one of the responsibilities of the National Police, and low-rank officers patrolling the streets contribute to this work alongside their colleagues assigned to controlling entries at international airports or guarding migrants put on planes for deportation. Irregular immigrants thus move in Spanish cities, carefully selecting where, when and how they circulate, conscious of the risks that contact with police represents for many of them. Their variable degrees of deportability inform the way they act, the risks they take to work, and the level of fear they endure. They know that street-level police officers are the most common gateway into the exclusion stream, a stream ‘that follows a fragmented process in which diverse juridical, police, and administrative institutions act, a situation that allows for irregularities and arbitrariness as well as gaps in the application of the legislation’ (Jarrín Morán et al., 2012: 4).

An (in)effective detention–deportation apparatus

Indeed, it is generally through an encounter with street-level police officers that irregular migrants are brought into the detention–deportation apparatus. Circular 2/2012 clarifies that officers cannot detain someone solely for irregular stay ‘as long as this person’s identity has been verified through an official document or other document that is considered valid and sufficient and indicates a home address that is susceptible to be verified’. In this case, the migrant is not detained on the spot, but the officer will report this violation and the migrant will likely receive a notice of sanction by mail (fine or expulsion).

Officers enjoy key discretionary power in deciding whether the proof of identity and address suffices, however. Circular 1/2010, which is only clarified and not over-ridden by the new memorandum, mentions that one of the reasons for not detaining an irregular migrant is proof of a ‘stable home’, which it defines as the place where

since one’s entry to Spain, one has lived uninterruptedly and with persons united with family ties, such as partner, forbearers or descendants …. In those cases, if there are no other negative circumstances, the procedure to follow is the normal one, since in principle there are no elements that evidence a risk of not appearing or avoiding deportation.

In an encounter with the police, a migrant’s capacity to present a certificate of municipal registration and/or documentation that regularization is underway is helpful, tying the result of this encounter with police to previous decisions made by municipal and regional bureaucrats. Nevertheless, few immigrants’ homes fit these strict criteria, and the risk of detention on these grounds is still high even without other ‘aggravating circumstances’.

Irregular migrants are detained at the police station for up to 72 hours and informed by the investigating officer (instructor de policía) on duty that proceedings have been initiated against them. According to the Alien Act, this can be done either through the normal procedure (imposition of a fine or order of expulsion) or the extraordinary procedure (forced expulsion). The Supreme Court has ruled on several occasions, clarifying that the main sanction should be the fine, not the expulsion. Nevertheless, when police officers detain someone, it is because they believe there are ‘aggravating factors’ (lack of permanent address, risk of avoiding expulsion, working without a permit, criminal activities, etc.) and regularly recommend a sanction of expulsion. The lawyer representing the detained migrant then has 48 hours to argue for a fine instead by presenting documents demonstrating that their client is a law-abiding, integrated resident and, if this is unsuccessful, can appeal the order of expulsion in front of an administrative judge to demand that the sanction be changed to a fine (Defensor del Pueblo, 2012; Jarrín Morán et al., 2012).⁹

In the meantime, however, if expulsion is the chosen sanction the investigating officer decides whether to let the migrant go with an order to leave the country or to ask a lower court judge (Juez de Instrucción) to authorize its preventive detention in a CIE pending resolution of the expulsion proceedings. In fact, although internment is legally framed as a measure of last resort to ensure that expulsion occurs when other preventive measures appear insufficient, street-level officers often recommend internment and, until recently, the investigating officers generally followed suite. In an interview, a Juez de Instrucción in Madrid explained the evolution in detention practices:

Normally, just for being [here] irregularly, the sanction is a fine, not expulsion. But when the economic crisis started, instructions became more about expelling as many as possible. This is when the judges started to play a role of control [and refused to allow the internment of migrants when they thought this was legally unjustified]. The police know that, so why would they ask for internment? There must have been instructions, because there is jurisprudence that makes it clear that you impose a fine, but they requested expulsion systematically.

So there’s a first period, from 2004–2005 to 2010 more or less … when there’s a very hard line policy on expulsion. In fact there were even the raids of identity control based on ethnicity … and this led to a lot of expulsion proceedings for mere irregulars, without any type of criminal record. But now, from what I see in my court and in the city of Madrid, demands for internment for mere irregular stay have almost stopped, and the police seem to dedicate more efforts to those who have committed crimes…. In this case, internment may be justified, but there are many other factors that we need to consider before authorizing it…. I’m not saying it’s the same everywhere: There are still judges who systematically impose detention, and after, what happens? The majority of immigrants detained spend 30, 40 days in CIEs and are released because they can’t be deported.

Indeed, some judges simply rubber-stamp police demands for internment. Detention is legally justified as a measure to ensure that expulsion takes place, but in fact many irregular migrants sent to Spain’s CIEs are not ultimately deported, either because a judge overrules the expulsion order or suspends it for exceptional reasons, or because the police are unable to effect the deportation within the maximum internment period of 60 days. There are many causes for this failure, including inability to identify the migrant or to secure a travel document from the embassy or consulate of the country of origin, the prohibitive cost of some deportations, but also sometimes the discretionary power of airline pilots (the highest authority on the aeroplane) to refuse to transport someone who does not want to be deported. The result is that almost half of the 13,241 individuals detained in CIEs in 2011 could not be deported (Fiscal General del Estado, 2012) and were released in what Jarrín Morán et al. (2012: 7) call ‘legal limbo’. Indeed, the order of expulsion cancels all ongoing processes of regularization, and leads to a prohibition on re-entering Spain for three to five years (10 in exceptional cases). This means that a migrant released from a CIE needs to let this prohibition expire before applying for regularization through arraigo social. This is the result of a system that follows a ‘chutes and ladders model’ (Goldring and Landolt, 2013: 4), a model in which discretionary decisions by a variety of actors can move migrants forward on the path to regularization, but more often bring them back to square one, thus prolonging their probationary period of liminal legality (Menjívar, 2006).

Considering this low level of success in deporting irregular migrants, the detention–deportation apparatus seems to fail. But, to paraphrase Foucault’s question about prisons, one has to ask: if CIEs fail to do what they are supposed to do, how are they productive? I suggest that, similar to Foucault’s prisons, CIEs are ‘not intended to eliminate offences, but rather to distinguish them, to distribute them, to use them’. They ‘appear to be a way of handling illegalities, of laying down the limits of tolerance … of neutralizing certain individuals and of profiting from others’ (Foucault, 1995: 272). The notoriously harsh conditions in CIEs, the possibility of deportation and the legal consequences of an expulsion order contribute to the governing of all irregular migrants through the fear they instil. In this sense, it is the possibility of internment and deportation that is the most productive with regard to the self-governing of irregular migrants (Peutz and De Genova, 2010). Furthermore, since internment is now being justified by the Ministry of the Interior as an attempt at expelling ‘delinquents’, the detention–deportation apparatus also works discursively to mark a distinction between ‘desirable’ and ‘undesirable’ foreigners.¹⁰ While the policing of migrants in the street, their internment and possible deportation can certainly be considered anti-citizenship technologies aimed at the incapacitation of individuals deemed undesirable, they are also clearly effective as a means of governing all migrants who struggle through their probationary period trying to avoid the chutes and hoping the dice are not loaded.

Conclusion

For the purpose of this special issue on ‘border security in practice’, I discussed the dynamic ensemble of practices contributing to the governing of migrants in Spain. But the article also provides broader arguments that I hope can be useful to those working on the displacement of borderwork and on the governing of migration in other contexts. Indeed, what I described in detail here is representative of an increasingly prevalent form of immigration management that I name the governing of immigration through probation.

The expression alludes to Simon’s (2007) famous concept of ‘governing through crime’, a concept that has proved very successful in shedding light on the ways in which practices and logics traditionally associated with the criminal justice system have come to colonize other institutions, places and issues. Adapting his concept, immigration scholars have productively described the ways in which the dividing practices involved in the criminalization of migrants not only pressure them to become prudent subjects (Inda, 2006; Dowling and Inda, 2013), but also ‘spill over into the routine governance of the established community’ (Bosworth and Guild, 2008: 715). Yet the focus on criminalization prevents us from seeing that in the ‘moral administrative economy of illegality, irregular migrants have been framed not only as civic culprits to be punished, but also as civic minors to be redeemed’ (Chauvin and Garcés-Mascareñas, 2012: 253). In the case of Spain, this article has demonstrated that irregular migrants are kept in a space of liminal legality (Menjívar, 2006) and governed not simply through criminalization, but through the simultaneous promises of inclusion and threats of exclusion, a situation that the notion of governing through probation better captures.

Similarly, while De Genova’s (2004) concept of ‘apprenticeship in illegality’ is central to this article because of the probationary dimension that the notion of apprenticeship conveys, as well as its association with the concept of deportability, I suggested that analyses of immigrants’ liminal legality should extend beyond ‘illegality’ to include many forms of precarious status. Considering the broader period of probation is essential to account for the non-linear and uncertain situation of migrants whose administrative situation is in flux, and to capture the growing reliance on the continuous assessment of performance and desirability as a condition for the renewal of temporary permits (Chauvin and Garcés-Mascareñas, 2012; Goldring and Landolt, 2013).

In this context, the sense of deportability is tied to conditionality in the assessment of desirability. As Goldring and Landolt (2013: 3) explain, the concept of conditionality is useful in capturing both ‘the insecurity and contingency surrounding an individual’s ongoing presence, and … the formal and practical conditions that must be met in order to retain some form of legal status and/or remain present in a jurisdiction’. This conditionality also points to the multi-scalar and non-linear character of the probationary period, a period during which changes in administrative status often depend on cumulative discretionary decisions made by many individuals at various scales (Pratt, 2005; Varsanyi, 2008; Valverde, 2010). While each discretionary decision can be either beneficial or detrimental for migrants in probationary precarious situations, the conditionality of their status makes them vulnerable to these decisions. The flexibility of the neoliberal governing of immigration through probation is thus secured by the extension of this period of probation.

While it may not be the result of an official policy aiming at using probation as a tool for the flexible governing of immigrants, this form of immigration management is effectively produced in Spain by the spread of borderwork in space and time, the legal production of an extended period of liminal inclusion, and the reliance on a multi-scalar and multi-actor assessment of desirability. And the situation is not unique to Spain. In fact, the multiplication of probationary statuses (in immigration, work places, the criminal justice system) in Spain and elsewhere is a key dimension of neoliberal flexibility (Varsanyi, 2008). Studying how immigrants are governed through probation in various contexts can assist us in making sense of the connections between precariousness, the intrusive and continuous assessment of desirability, and disposability in neoliberal societies.

Footnotes

Acknowledgements

For their insightful comments on an earlier draft, I thank Anna Pratt, the editors of this special issue (K. Côté-Boucher, F. Infantino, M.B. Salter), as well as three anonymous reviewers. My thanks also go to Christian Orgaz for helping me find data on racial profiling and detention in Spain, and to Luin Goldring and Robert Latham who provided useful suggestions when these ideas were first shared in public.

Funding

This article presents results of research funded by the Social Sciences and Humanities Research Council of Canada, SSHRC 767-2009-1297; SSHRC MS FSS 771-2011-0105.

Notes

David Moffette is a PhD candidate in sociology at York University, Toronto and a Graduate Fellow at the York Centre for International and Security Studies. His dissertation analyses the problematizations of irregular migration and the assessment of migrant desirability in Spain since the 1980s.

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