Nuancing the Concept of Illegality

Illegality has been conceptualized in many different ways by various migration scholars (Reference Baldwin-EdwardsBaldwin-Edwards 2008; Reference Cvajner and SciortinoCvajner & Sciortino 2010; Reference De Genovade Genova 2002; Reference Donato and ArmentaDonato & Armenta 2011; Reference DüvellDüvell 2008; Reference EspenshadeEspenshade 1995; Reference Guild and BoguszGuild 2004; Reference PortesPortes 1978; Reference TriandafyllidouTriandafyllidou 2010), which was often to its advantage—expanding the semantic borders of the term—but quite often also at the cost of its conceptual clarity.

The law usually delineates who is “legal,” leaving “the rest” as potentially illegal (Reference Guild and BoguszGuild 2004: 3, my emphasis, cf. Reference Couper and SantamariaCouper and Santamaria 1984). As a result, the definitions of illegality, as they often appear in use, border on tautology. For example, Reference DüvellDüvell (2008)—substituting illegal migration with his preferred term “clandestine migration”—then defines it in self-referential fashion by “clandestine exit, journey and entry, clandestine residence and clandestine employment” (Reference DüvellDüvell 2008: 486). Other conceptualizations, in a more rigid manner, see formal illegality as “the product of immigration laws” (Reference De Genovade Genova 2002: 439). However, illegality is not static: with or without formal changes in the law, people may move between different statuses with varying degrees of agency and expedience (Reference Anderson and RogalyAnderson & Rogaly 2005; Reference Jordan and DüvellJordan & Düvell 2002). Cvajner and Sciortino observe that “irregularity is a status that may be both attained and left behind in different ways” (Reference Cvajner and Sciortino2010: 214) and as such, they argue, undocumented migration can take a number of different paths. Because it is a fluid and flexible status, and its assertion quite often pertains to the discretion of a law enforcement or immigration officer (Reference Guild and BoguszGuild 2004), it begs the following question: how exactly does the law articulate the categories of differentiation that constitute individuals?

This question remains unanswered. In fact many scholars contribute to increasing the conceptual heterogeneity of the term, observing that:

Further complications arise from identifying within the concept of illegality a plethora of conditions such as “illegally entering but residing legally,” “illegally entering, illegally residing but in legal employment,” “legally entering, legally residing but in illegal employment” (Reference DüvellDüvell 2008: 488; Reference TriandafyllidouTriandafyllidou 2010)—to name just a few. By adding new variables depending on accustomed discursive practices, political opportunity structures, or a researcher's definition of the subject, the concept “illegal migration” is in danger of becoming a sponge that soaks up every, even mildly aberrant aspect of the migration and law nexus relevant to the development of “unwanted” migratory movements, paying little or no attention to the legal ambiguities and nuances. Its usefulness becomes particularly challenged when confronted with the borderline, liminal cases, as I demonstrate in the second part of the article. Semantically, I am therefore calling for decolonization of migration discourse from illegality, when describing the not entirely complacent responses to immigration regulations. My critique of illegality as heterogonous and conceptually unclear—thereby running the risk of focusing on people rather than specific acts—has exactly this role. Illegality, used flexibly, with stigmatizing power (as in Illegal people (Reference BaconBacon 2008) or Illegal Immigrants [Reference SadiqSadiq 2008]) led to a witch-hunt for undocumented migrants, increase in deportations, and significant disruption of livelihoods (cf. Reference Bloch, Sigona and ZetterBloch, Sigona, & Zetter 2011; Reference Hagan and CastroHagan, Castro, et al. 2010; Reference Hagan and EschbachHagan, Eschbach, et al. 2008; Reference PortesPortes 2007; Rodríguez & Reference Rodríguez and HaganHagan 2004; Reference Yngvesson and CoutinYngvesson & Coutin 2006).

It does not mean however, that the conceptual problems around “illegality” have been left unattended or have not inspired a deeper reflection (cf. Reference Guild and BoguszGuild 2004). Reference De GenovaDe Genova (2002) in his theoretical exposition on illegality and deportability in the everyday life of migrants explains how:

This however offers a half-baked solution, which does not solve the conceptual problems of plurality of meanings. Surely, the debate should not be down to legal taxonomies, labels or nomenclatures pertaining to illegality, as much as closer scrutiny of the concept itself. The choice between calling migrants “illegal” or “undocumented” is of secondary importance and will not resolve—on the contrary it is in danger of clouding—the actual trouble with this category. Namely that “illegality” in migration (and its derivative, “less-obnoxious” categories) is used far too often and without proper questioning. They are applied far too easily, while they in fact denote many different legal statuses. I argue that resorting to illegality every time when ambiguities arise casts the net of potential fraud too wide. It too easily imputes all action that fails to conform to immigration rules to deception or criminal intent, even where such behavior may be seen as perfectly reasonable by many. (As a result, there are various examples of resistance against the state's attempts to enforce its migration policies, especially when it comes to removals and deportations.) While there is widespread concern about immigration and the abuse of immigration laws, when it comes to individual cases, the assumption of “illegality” and its conceptual operation is often seen as deeply flawed as it fails to recognize and respect the different circumstances of the individuals concerned.

Reliance on such a heterogeneous and internally conflicting conceptualization of illegality in migration demonstrates its inherent problem: it promises to explain too much while it actually explains too little. Binary, black and white oppositions have little reference to real-life, empirical phenomena. By invoking semi-legality, I argue together with other scholars (Reference ChavezChavez 1998; Reference GonzalesGonzales 2011; Reference MenjívarMenjívar 2006; Reference NgaiNgai 2004; Reference Rigo and SquireRigo 2011; Reference Ruhs and AndersonRuhs & Anderson 2010a; Reference RytterRytter 2012; Reference WillenWillen 2007) that migrants are hardly ever just “undocumented,” and one should look at the variety of semi-legal statuses scattered along a multidimensional space between the two poles “legal–illegal.” This is not merely a discursive task or a quibble, but a closer reflection of the empirical legal reality. This seeming ignorance of the multiplicity of “in-between” categories and their indiscernibility in scholarly debates reflects that they have been “blissfully,” albeit inappropriately, hidden under the “illegality” umbrella.

The Spheres of (Il)legality

The broad, un-reflexive use of the term “illegality” to modify migration and migrants (cf. Reference De GenovaDe Genova 2004) provokes my analytical scepticism toward this category. In empirical reality, when conducting fieldwork with migrants in various situations and circumstances, the issues of status or legality very often take a central position only because they are placed there by us, the researchers (cf. Reference Van Meeteren, Engbersen and van Sanvan Meeteren, Engbersen, & van San 2009). As Reference CoutinCoutin (2000) observes: “[o]n a day-to-day basis, their [migrants”] illegality may be irrelevant to most of their activities, only becoming an issue in certain contexts' (Reference CoutinCoutin 2000: 40). What follows is an implicit general consensus that the adjective “illegal” does not belong to the descriptive domain of the whole of migrants' lives, but only to their relationship with states' actions (cf. Reference Cvajner and SciortinoCvajner & Sciortino 2010: 395), and—as with citizens—it is a contextual relationship.

However, in the theoretical accounts of “illegality” with reference to migration, one can broadly distinguish two positions assigning different degrees of importance to this interaction. One argues that the relationship with the state is the defining position that has consequences for any other relationships migrants form in the host country (cf. Reference MenjívarMenjívar 2000, Reference Menjívar2006). The second asserts that illegality, as a partial category denoting one's juridical status, is “a pre-eminently political identity … that entails a social relation to the state” (Reference De GenovaDe Genova 2002: 422), which should not pervade or transpose all forms of social interaction, as this is not its place, nor purpose.

Representing the first position, Reference MenjívarMenjívar (2006) views society as being comprised of many different, semi-autonomous spheres (cf. Reference GalliganGalligan 2007; Reference MooreMoore 1973) including market, family, work, social life, etc. She maintains that one's relationship with the state via immigration law affects one's relationships in all spheres of society, as migrants' interaction with the body of law which governs their immigration status impinges on many vital spheres of their existence, such as their social networks and family, the place of the church in immigrants' lives, and the broader domain of artistic expression (Reference MenjívarMenjívar 2006: 999–1000).

Therefore, while Menjívar views society as being comprised of different spheres, she identifies that there is a hierarchy of spheres, with immigration law asserting its dominant position. Illegality or exclusion from the sphere of immigration law has consequences regarding full or partial exclusion from one's membership in society (Reference MenjívarMenjívar 2006: 1004). This asserts the power of the nation-state in determining who stands inside, who remains outside and who is stuck “in-between” (Reference SchuckSchuck 1998).

While Reference MenjívarMenjívar (2006) clearly makes a link between migrants' standing before immigration law and their relationships with the rest of the society, little evidence is provided to explain why and how migrants' exclusion by immigration law would necessarily, and in principle, be transferred to other spheres. Reference BoldersonBolderson (2011), when discussing migrants' access to welfare, strongly contests this “transfer” altogether by making a normative point against the “blurring” of the various spheres of social policy realization and immigration law: “welfare policies need to be independent of other policies and this is not the case when migrants' welfare entitlements depend on status constructed by immigration policy” (Reference BoldersonBolderson 2011: 223). Along similar lines it has been argued that while in certain legal contexts the doctrine of illegality may hinder migrant workers from standing up for their employment rights (for the United Kingdom cf. Reference RyanRyan 2006: 45), this is not the case in other jurisdictions, where employment law takes a more proactive role superseding immigration law limitations (cf. Reference GleesonGleeson 2009, Reference Gleeson2010). Finally, drawing on international human rights, the omnipotence of “illegality” as defining the status of migrants stands in clear contradiction with the spirit and letter of the Universal Declaration of Human Rights, which establishes in Article 6 that every person has the right to recognition before the law, and in Article 8, that every person has the right to due process (Reference LeVoy and VerbruggenLeVoy & Verbruggen 2005).

Reference Cvajner and SciortinoCvajner and Sciortino (2010), in turn, theorize illegal migration through the lens of differentiation theory. While they also view society as constituted by various interacting and communicating subsystems, they do not assume that their relationships are hierarchical (Reference Cvajner and SciortinoCvajner & Sciortino 2010: 396). They agree that migrants' legal status is situated in the subsystem of state law; however, people's irregular immigration status may affect their social interaction in the other subsystems—to the extent that the migrant–state relationship limits one's agency in other spheres (Reference Cvajner and SciortinoCvajner & Sciortino 2010: 397). With reference to an individual migrant: illegality before immigration law does not define the whole “self,” but an aspect of it. Relationship with the state is just one aspect of all social relationships and transactions that migrants experience, therefore a migrant's legal status is significant, or relevant, to the extent and only if the legal reality constrains the relationships and actions of the actor (Reference CoutinCoutin 2000). Reference Cvajner and SciortinoCvajner and Sciortino (2010) seem astonished by their “discovery” of the seeming contradiction, known for years to legal anthropologists (Reference Comaroff, Comaroff, Comaroff and ComaroffComaroff & Comaroff 2006) and sociolegal scholars interested in the structure of legality (Reference Ewick and SilbeyEwick & Silbey 1998) that:

While migration scholars might still need to come up against the theoretical exhaustion that “the law is all over” (Reference SaratSarat 1990), empirically driven sociolegal scholarship provides abundant analysis of the “network of human and nonhuman agents that, together, push back against” the orthodoxy of the social construction of law, and “in the process make their own moral—as well as material—claims known” (Reference MaurerMaurer 2004: 848).

Just as with ordinary citizens, immigrants' experiences of illegality more or less depend on specific, situational contexts—that of a workplace, hospital, school (or other educational institution), or the courtroom—and only become salient when matched with experiences of exclusion (Reference GonzalesGonzales 2011; Reference MarrowMarrow 2009, Reference Marrow2012). The laws that define migrants are multiple, intersecting, and indeterminate (Reference CoutinCoutin 2011). Their meaning therefore depends on the actions of the state and non-state entities charged with carrying out the law (Reference Chauvin and Garces-MascarenasChauvin & Garces-Mascarenas 2012). This is why Bosniak observed that “status non-citizens are in fact not entirely outside the scope of those institutions, practices and experiences that we all call citizenship” (Reference BosniakBosniak 2008: 3). A migrant who entered as a student, but is working in breach of immigration conditions attached to his or her status, may continue to reside in the host country and access medical help or an educational institution “based on the facts of their personhood and national territorial presence” (Reference BosniakBosniak 2008: 3), but may experience vulnerability when it comes to standing up for his or her rights in an event of a dispute with the employer.

Similarly, the same contextual experience may be realized vice-versa with respect to legality. Undocumented work or work semi-compliant with visa regulations is often accompanied by legitimate tax and insurance contributions and undocumented immigration status would not prevent these people from receiving immediate medical assistance or having due process rights in criminal proceedings (Reference CoutinCoutin 2011). Research demonstrates that in many U.S. states, access to education or in-state tuition fees are afforded without the recourse to a documentation check (Reference AbregoAbrego 2008; Reference GonzalesGonzales 2011). These, in turn, enable participation in various transnational, political, economic, and social spheres that generate new claims of substantive rights (Reference BosniakBosniak 2008; Reference CoutinCoutin 2011). In Europe, after the rulings of Metock [2008] Footnote ³ and Zambrano [2011] Footnote ⁴ by the European Court of Justice (ECJ), and in the United States, after the 2006 social movements for regularization and the debates on the Development, Relief, and Education for Alien Minors (DREAM) Act, illegality of one's status produced as an effect of law, but also sustained by social discourse, seems to be less and less self-determining.

The closer reliance on semi-legality might therefore be viewed as shifting the focus from illegality to various forms of legality that exist concomitantly with one's immigration status and interact with it in multiple ways. My aim was not to trivialize illegality nor make it benign. On the contrary, the proliferation of various semi-legal statuses demonstrates that the “impossible subjects” (Reference NgaiNgai 2004) “hold on” to whatever there is available, and do whatever it takes to get closer to legality, in the sense of rightful and regularized status. Semi-legality therefore presents a more analytically promising avenue for unpacking the presumed “illegality” into the rich and multifaceted reality of various statuses, roles, relationships, and identities that constitute one's self.

Semi-Legality as a Heuristic Device

I argue that semi-legality should be viewed as a multidimensional space where legal status—migrants' formal relationship with the state—interacts with various forms of their agency toward the law—their behavior and attitudes (cf. Reference KubalKubal 2012). Metaphorically, one could imagine a variety of semi-legal statuses as scattered dots along multiple dimensions. Semi-legality can therefore denote a range of migrants' interactions with law, demonstrating that the divide between legal and “illegal” is not a strict dichotomy, but rather a tiered and multifaceted relationship with degrees of membership that distinguish beyond citizens, permanent legal residents, temporary legal residents, and “other” migrants (cf. Reference CalavitaCalavita 2006; Reference Coutin and ChockCoutin & Chock 1995; Reference GuildGuild 2009; Reference MenjívarMenjívar 2011). Semi-legality pertains to the heterogeneity of the “other migrants” category. Paraphrasing Reference CalavitaCalavita (2006), the scholarship affirming the “conceptually clear [and] legally consequential” (Reference BrubakerBrubaker 1992: 21) distinctions between legality and illegality is generally based on a conceptualization of legality as a formal status conferring a set of legal rights. In contrast, much of the literature that undermines the legality/illegality binary invokes a broader conceptualization of substantive legality, that is: “legality in action” and finds that the boundaries around it are not as “conceptually clear [and] legally consequential” as the nominal definition of legality would suggest, particularly as applied to migrants, women and people of color (Reference CalavitaCalavita 2006: 416). Reference MenjívarMenjívar (2006), using the term “liminal legality,” identified the multiplicity of “in-between,” semi-legal forms of behavior that fall between full lawfulness and legal exclusion (at the opposite ends of the spectrum). She recognized such reality as “the grey area between the legal categories,” characterized by conditions that are neither undocumented nor documented “but may have the characteristics of both” Reference Menjívar(Menjívar 2006: 1008), inveighing against the established distinction as concerns who ought to be where.

Semi-legality as an analytical construct is fuzzy at the edges, it reflects that borders between legality and illegality are: “difficult, if not impossible to locate” and it is clear that both citizens and migrants operate at times “as if the boundaries did not exist” (Reference BentonBenton 1994: 229). Plurality of human behaviors does not fall neatly on either side of the divide between legality and illegality (Reference LindahlLindahl 2010: 10), which calls into question the ways in which legal orders draw the distinction between the two. Given this coupling between the law's indeterminacy and its enforcement for citizens and immigrants alike, the quotidian “legality” often corresponds with a place where processes are fair, decisions may be reasoned, and rules known in advance, but at the same time, it is a space where justice can be achieved only partially—where public defenders do not show up, single mothers cannot receive income support (Zalewska [2008]Footnote ⁵), judges may act irrationally or disproportionally, and the “haves” come out ahead (Reference Ewick and SilbeyEwick & Silbey 1998; Reference Silbey, Hall, Grindstaff and LoSilbey 2010: 476).

Finally, semi-legality is useful when interpreting and making sense of migrants' narratives regarding their own relationship with the legal system of their host country. Although the divergence between what people think and what people do is a well-documented paradox in social science (Reference KubalKubal 2012), semi-legality casts more light on this gap between normative expectations and peoples' everyday experiences. Conceptualizing semi-legality subjectively, I drew on Michel Foucault and Michel de Certeau, whose work suggested that investigations of the law's power are most fruitful not at the level of institutions and the state, but at the level of lived experience, were the power is exercised, understood and sometimes resisted. Following from Foucault's conviction that power relations are most interesting to investigate at the sites of resistance (Reference FoucaultFoucault 1992), semi-legality is exactly such a site of contestation of the seemingly overwhelming power of the state to determine one's status. It is expressed via “popular procedures” and “ways of operating,” by which migrants (as well as citizens) “manipulate the mechanisms of discipline and conform to them only in order to evade them” (Reference De Certeaude Certeau 1984: xiv). Legality, the law, “legal” at the level of lived experience are recognized, resisted and reconstituted by a wide variety of ordinary people going about their lives (Reference MezeyMezey 2001). The lived and expressed semi-legality brings to light the arguments invoked “by the dispersed, tactical, and makeshift creativity of groups or individuals already caught in the nets of ‘discipline' ” (Reference De Certeaude Certeau 1984: xiv–xxv, emphasis added).

Sensitizing Theoretical Perspective

Semi-legality as a term to denote ambiguous relationship with the law calls for a semantic shift from illegality to legality, when describing the not entirely complacent responses to immigration regulations. Moving the semantic boundaries toward legality also reflects that migrants' effective, but informal incorporation is often located within the law itself. Some elements of everyday life (e.g., paying taxes, engaging in education, establishing a business) can be subject to contradictory symbolic framings. Recorded contributions enhance membership about as much as recorded benefits, however becoming more “formal” as a condition for present or future legal deservingness may also make migrants dangerously more visible to public authorities (Reference Chauvin and Garces-MascarenasChauvin & Garces-Mascarenas 2012: 246). What makes the actions fall within one or the other category is often the very nature of discretion exercised by judges, street-level bureaucrats of civic deservingness (Reference Provine and VarsanyiProvine & Varsanyi 2012). As migration and sociolegal scholars contemplate social control aimed at migration, semi-legality helps us to remain mindful of its various contradictions often reflecting how self-defeating laws and policies perpetuate injustices against vulnerable people who have few resources to defend themselves against cyclical although ambitious enforcement campaigns, often fuelled by moral panic, bigotry and racism (Reference WelchWelch 2003: 331).

Semi-legal space is constructed almost unanimously through very different societies. It has a particularly important symbolic role in the construction of a legal imagery of “developed” and neoliberal societies, which claim that law and order are the main political and moral features distinguishing them from others. There, semi-legality is not only tolerated, but somewhat fuelled by the tension between the international human rights regime and constitutional declarations to which many states are signatories (and therefore hold accountable to) and their “national” interests often formulated under pressure from the electoral base of the political parties in power and thereby subject to parochial constatations. While domestic practices diverge in many respects, a lot of countries recognize that foreign nationals are entitled to the same basic human rights as their own citizens. Some constitutions, such as Sweden's, expressly guarantee equal rights and freedoms to non-nationals. Other constitutions, such as Canada's, guarantee basic human rights to “everyone” as America's does to “persons” and has therefore been read to protect non-nationals living in the country. Italy extends fundamental rights, including due process and the freedom of speech and association, to all persons in Italy; even those who have entered “illegally” (La Constituzion, arts. 13, 14, 17–21, 24, Italy). Germany's Basic Law establishes “human rights” and “everyone's rights” that apply equally to all persons regardless of citizenship (Reference ColeCole 2003: 374). While the United Kingdom does not have a constitution, it incorporated the European Convention on Human Rights (ECHR) into its domestic law (Human Rights Act 1998). The ECHR generally extends fundamental rights and protection to all persons in the territory of its signatory state irrespective of nationality.

These human rights and constitutional instruments that many developed states are party to, significantly limit their scope for action with regard to their often declaratory “battles against irregular migration,” thereby “unveiling the ethics of contemporary states when it comes to the evaluation of difference” (Reference FassinFassin 2005: 366). Therefore, semi-legality as a sensitizing theoretical concept helps to frame the unintended consequences and uneven migration policy implementations leading to the reinvention and reproduction of the long observed phenomenon: why liberal states accept unwanted immigration (Reference JoppkeJoppke 1998). If we look at uneven policy enforcement, the relatively low repatriation rates, the widespread use of direct or indirect, mass or case-by-case regularization methods, or simply the de facto tolerance of irregular presence (in conjunction with authorized work, for example)—this all points to a very low rate of actual enforcement of “illegality” (cf. Reference Pastore, Colombo and SciortinoPastore 2004), and conducive conditions for semi-legality to prevail. This peculiarity was crucial in pushing Reference JoppkeJoppke (1998), Hollifield, Reference Hollifield and HuntHunt, and Tichenor (2008) to focus on what has long been defined as the “liberal paradox”—a distinctive feature of many migration regimes in the global North. Under conditions of mass mobility and globalization, wealthy, neo-liberal states in the EU and elsewhere spend considerable energy trying to identify and record people, goods and information as they move around. At the same time, however, as global capitalism and entrenched inequality force (and enable) people to move, economic cycles, specifically the demand for labor, commonly dictate the (uneven) enforcement patters in immigration control.

Furthermore, the contribution of semi-legality stems from the fact that it provides a framework to understand the mode of migrant incorporation sui generis, because of distinct governmental concerns over public health, crime rates (rather than individual infraction), economic regulation, and population management. Its logic disrupts exclusion and repatriates migrants' actions back within the boundaries of the nation state and most significantly its labor market (Reference Chauvin and Garces-MascarenasChauvin & Garces-Mascarenas 2012: 248). The recent EU directive on “employers” sanctions' (2009/52/CE) for employing irregularly resident migrants also lists a number of labor rights applicable to them. As exemplified in the United States: one of the main reasons why—in spite of highly publicized cases to the contrary—most local police forces still avoid getting directly involved in civil immigration enforcement, is a concern that undocumented residents would fear reporting crimes (Reference Provine and VarsanyiProvine & Varsanyi 2012).

“Incomplete” Responses to Regularization Programs

The literature suggests that one of the conditions of semi-legality stems from migrants' incomplete responses toward regularization programs (or so-called amnesties, cf. Reference CoutinCoutin 2000; Reference HaganHagan 1994, Reference Hagan1998). This is often the case when migrants essentially fulfill the criteria set out in the legalization legislation (e.g., length of stay, employment duration), but their access to change of status is hindered by a lack of formal proof, lack of information, or the intersectionality thereof with other structural conditions such as gender, age, or access to support networks. Reference HaganHagan (1998) demonstrated that while the move to regularization instigated by the Immigration Reform and Control Act 1986 (IRCA) in the United States was “open” to Guatemalan women (and many of them could de facto fulfill the legalization criteria) on an equal footing with Guatemalan men, their isolated employment as live-in domestics, conditioned by gender roles, de jure locked them in semi-legality. This revealed how individual migrants' characteristics and their structural positioning became intrinsic features of semi-legality, demonstrating the highly hierarchical nature of legal prescriptions that created discriminatory tiers of belonging within migrant populations (Reference Salcido and MenjivarSalcido & Menjivar 2012).

Our interviews showed that employment in the informal sector, usually associated with a strong gender role division, was indeed a decisive factor in constraining steps toward legalization. J, a female migrant from Brazil living in Portugal, speaks for many live-in carers. Although her employer insisted that J receive a social security number and partake in the ongoing regularization program, she refused to give her an employment contract, which effectively stalled the process:

In contrast, many male Ukrainian migrants to Portugal took advantage of earlier regularization programs as working on construction sites, in close spatial and cultural proximity with other Eastern Europeans they could rely on exchange of information. Although many of them also worked without a formal contract (evidence required for regularization), they developed an ingenious strategy of proving their employment in Portugal before the “cut off” date by going to local post-offices and taking proof of remittance transfers they made to their families in Ukraine. One respondent explained on behalf of his colleagues:

However, aside from gendered employment roles that condition access to support networks, the empirical material also brought attention to other factors that stalled legalization and locked migrants in the status of semi-legality. One of these was the lack of information about a certain regularization program: not necessarily because of the migrants' limited access to information, but rather the authorities' interest in not popularizing it. The “legacy” program in the United Kingdom (2007–2011), which dealt with outstanding asylum case records made before the new asylum model took over assessing asylum claims in March 2007, is not common knowledge.

The “legacy” was defined as all asylum cases that were launched before March 2007, but remained either incomplete or had not been processed by regional asylum teams. In other words, the program dealt with a serious backlog of cases, giving consideration to “residence accrued” as a result of U.K. Border Agency (UKBA) delays. The reasons for the backlog were often quite embarrassing for the authorities. Under the Freedom of Information Act 2000, UKBA revealed that many of the outstanding asylum application cases were mishandled, where examples of mishandling included UKBA losing the file, losing the application, or failing to respond to correspondence. By September 2011, UKBA reviewed over half a million unresolved cases, out of which 36 percent were granted some form of leave to remain, be it limited or indefinite. One of our interviewees, an immigration lawyer in the United Kingdom, shared her experience with this “silent legalization”:

The analysis of the empirical material suggests that such incomplete responses to regularization programs, as one of the defining conditions of semi-legality, are quite often part and parcel of law enforcement—the prevailing feature of the classical conundrum between the “law in the books” and the “law in action.” It is particularly evident in the cases of regularization when the decisions to grant the leave to remain do not conform to a set of predefined criteria, but are usually situated within the discretion of a judge of civic deservingness (cf. Reference Chauvin and Garces-MascarenasChauvin & Garces-Mascarenas 2012; Reference MarrowMarrow 2012). One respondent summarized the situation in the following manner:

On the Move: Between Overstaying and Under-Staying

This asymmetrical regularization, demonstrating the arbitrariness of borders between eligibility and exclusion as an important condition of semi-legality, is often accompanied by more explicit geographical volatility with the constant “on the move” experience of migrants. This condition of semi-legality particularly reveals itself in the European context: with some (national) borders removed, others strengthened, and others renegotiated. This important feature of semi-legality has been captured by Reference RytterRytter (2012) with relation to transnational couples sharing their lives between their formal residence in Sweden and work and family life in Denmark. Rytter conceptualized semi-legality when studying migrants' family life as the “outcome of the differences between Danish and Swedish legislation … a condition when married couples move between legal and illegal states of being” (Reference RytterRytter 2012: 97).

Rytter's ethnography demonstrated how migrant families responded to the social engineering of the Danish immigration regime in 2002, which aimed to curtail the number of transnational marriages and family reunifications. As a result, couples who were legally prevented from settling in Denmark invoked European law as a creative solution to restore “normal” family life. Nonetheless they always had to be vigilant not to transgress the certain legally defined periods of residence: not to “overstay” in Denmark or “under-stay” in Sweden (Reference RytterRytter 2012: 98).

Three (out of the four) destination countries where we conducted research belong to the Schengen area with seemingly no internal borders.Footnote ⁶ This enabled me to take Rytter's condition of semi-legality as the starting point, and then elaborate on it, drawing on the richness of our empirical material relating to our respondents' experiences of navigating different European borders. Analogous circumstances—although no longer confined to the motives of family life—of overstaying in one country versus under-staying in another, emerged from the interviews as another important and underlining condition of semi-legality.

Many of the at-face-value “undocumented” migrants, would have some form of identity documents attained in one or other EU member state:

Frequently (although the scale of this phenomenon exceeded our estimates), when asked about migration status, our interviewees would point to their documents attained earlier on in their migratory experience. Portugal, in the sample of studied European countries, appeared as the country with the most generous history of regularization programs in the first half of the 2000s. This enabled many of the interviewed Ukrainians or Brazilians to attain temporary or permanent resident permits. However, when the economic conditions worsened because of the most recent economic downturn of 2008–2009, and employment opportunities in the Mediterranean became limited, many of the migrants decided to take Europe as the framework of their choice and move elsewhere in search of work.

According to EU law, the holder of a residence permit (or a long-stay visa, i.e., exceeding 3 months) obtained in one EU member state is entitled to move freely within other states, which comprise the Schengen Area for a period of up to 3 months in any half year (OJ L 85, 31 March 2010: 1). The recent Regulation (EU) no. 265/2010 of the European Parliament and the Council of 25 March 2010, amended the Convention Implementing the Schengen Agreement and Regulation (EC) no. 562/2006 regarding movement of persons with a long-stay visa to the effect that “the right of free movement … shall also apply to aliens who hold a valid long-stay visa issued by one of the Member States.” The legislative changes therefore followed what has been constituted as practice by many “secondary” migrants leaving their “original” EU country of residence in search of work (Reference McIllwaineMcIllwaine 2011). This is the story of M, who resides in Norway with an Italian residence permit. He is a composite character—representative of those nameless migrants, who are ever vigilant not to overstay their presence in one territory and under-stay in another.Footnote ⁷

M, upon obtaining residence documents in Italy in one of the regularization programs, was working as a construction worker. When the project came to an end he had to find new work, which was difficult in Italy at that time. In 2007, he boarded a plane to Norway. In one of the bigger Norwegian cities he found alternative employment; he is professionally valued in the local community and proudly shows many references. According to EU law M has to make sure however that he does not stay in Norway for longer than 3 months in any 6-month period: he has to make sure he returns to Italy for the remaining time in the year. Otherwise, in accordance with Directive 2008/115/EC, he “should be required to go to the territory of that other Member State immediately” (OJ L 85, 31 March 2010: 2). Working in construction, balancing between various small and medium jobs, and traveling to Italy are not easy and obviously come at a cost. M, in fact, has been living under this temporary status in Norway for the last 5 years, and he admits that he hardly ever has any time to travel to Italy. We asked whether he has ever been challenged by the police or immigration authorities on the duration of his stay in Norway—he replied that because he had no stamp in his passport when he arrived in Norway the authorities could not really hold this against him:

M admitted that he was trying to register his employment in order to give the residence in Norway a more permanent dimension. On several occasions he applied to the immigration authorities in order to obtain a work permit. He submitted evidence of vocational qualifications from Ukraine and a job contract. At the final stage he waited over a year to receive an answer, which was negative. With the rejection letter he received a note urging him to leave Norway within the next 48 hours. M challenged this decision:

The immigration authorities could not satisfy this request. As a result M continues to lead his life in a semi-legal limbo between Norway and Italy to the detriment of his business. He pays taxes in Norway, yet to the authorities he is just a temporary resident:

Employment Beyond Visa Restrictions

The example of M and many other migrants sharing an unprotected status—feeling suspended between residences in two countries—is also illustrative of another condition of semi-legality. This was first studied by Reference Ruhs and AndersonRuhs and Anderson (2006) regarding the notion of semi-compliance with reference to Eastern Europeans working in the low-waged, low-skilled niche of the British labor market beyond the conditions specified in their visas or residence permits. In other words, while M's temporary presence in Norwegian territory might be indisputable even by the Norwegian immigration authorities, it is valid as long as he remains a tourist or person of independent means. This demonstrates another important condition of semi-legality, namely how it can be entangled with gainful employment.

Reference KubalKubal (2009, Reference Kubal2012) demonstrated how Eastern European post-2004 EU Enlargement migrants—EU citizens—pursued employment in the United Kingdom in contravention of immigration (Accession 2004 Regulations) and certain employment regulations. Their semi-legality with regard to immigration law and the workplace was experienced in various forms, from working and fulfilling the general U.K. workplace regulations (personal National Insurance Number, payment of taxes), but generally in violation of immigration regulations (Workers Registration Scheme—WRS) attached to their status as “Accession” nationals; to residing in the United Kingdom fulfilling the immigration conditions (WRS), but working in breach of the general U.K. workplace regulations. The latter took various shapes: from steady employment with a contract to precarious employment; from taxes deducted to some or no taxes deducted; from engagement at a workplace that respects labor laws to the abuse of basic labor laws such as compensation or health and safety. Quite often—and contrary to popular understandings—formal legality with relation to immigration status was not congruent with substantial legality relating to their workplace, where migrants often experienced disadvantages in comparison with other workers (Reference KubalKubal 2012).

Many such ambiguities concerning the relationship between residence and pursuit of gainful employment can also be found in our empirical material, attributing semi-legality with various local shades of the respective workplace regulations in different European countries. Many of the interviewed migrants who arrived in the United Kingdom, the Netherlands, Norway or Portugal with some form of visa or residence authorization, admitted to engaging in employment in spite of the official limitations of their permit:

The majority of the respondents were aware of the limitations stemming from their residence permits; it did not mean, however, that they engaged in employment in an un-reflexive manner. The questions of legality and illegality suffused the interviews; migrants' elaborations ranged from contestation of the law through attempts to rationalize their choices, to practical acceptance of their conditions (cf. Reference Abregolegal consciousness literature Abrego 2008, Reference Abrego2011; Reference Ewick and SilbeyEwick & Silbey 1998; Reference KubalKubal 2009, Reference Kubal2012; Reference Silbey, Hall, Grindstaff and LoSilbey 2010). Many of them demonstrated a highly specialized knowledge of the law and the changing conditions, often accompanied with examples of how their personal case has “fallen through the cracks”:

Semi-legality was often characterized by un-codified, yet often mutually beneficial employer–employee relations (Reference CobbCobb 2005: 52), revealing the degree of agency that both semi-legal migrants and their employers have vis-à-vis legal frameworks of the state. This relationship—beyond the scope of state law—could be attributed to the fact that migrants, as temporary workers, display a target-earning strategy and distinctly different objectives from other workers (Reference CobbCobb 2005: 57), but meet the expectations of employers in relation to maximizing their profits. This reflects what Reference MotomuraMotomura (2010: 1783) terms “a national ambivalence toward immigration outside the law.” Many migrants who arrive on short-term visas do not have the same lifestyles as more established workers; they do not have family with them or obligations beyond work or studying. As a result, various statutory laws, such as those regulating working time and overtime payments, may not be of much use to those workers displaying target-earning strategies. Most of the semi-legal migrants worked longer than permitted by their visas, but with hours spread over two jobs, having to juggle between different shifts and work schedules, and formal and informal payment arrangements.

This particular aspect of semi-legality—its entanglement with gainful employment—also challenges the overwhelming power and importance of one's formal legal immigration status, and the popular belief that once the legal status is ascertained, access to rights and justice will automatically follow. The evidence stemming from the interviews, particularly with Brazilian migrants legally residing in the United Kingdom, the Netherlands or Portugal (as permitted by their Italian, Spanish or Portuguese citizenships), reveals how they de jure complied with formal immigration conditions regulating their access to the labor market, but engaged in employment in partial contravention of the labor or tax regulations. The low-wage, low-skilled niche of the labor market, where migrant workers are overrepresented (Reference Ruhs and AndersonRuhs & Anderson 2010a) is well known for rather erratic law enforcement, with employers often “turning a blind eye” not only toward migrants with unknown residence status, but also toward a battery of other workplace regulations, including tax deductions, national insurance contributions, hours of work or health and safety provisions:

This was analogous to what Reference KubalKubal (2009, Reference Kubal2012) observed with Eastern European migrant workers sharing the “3D” (dirty, dangerous, and demanding) work in the United Kingdom. Their undisputed legal status—as EU citizens—did not protect them enough from practices of unscrupulous employers or even discrimination (Reference KubalKubal 2012).

The empirical material demonstrates, however, how semi-legality as an analytical concept challenges the stereotypical image of the victimized, undocumented immigrant facing the abusive employer (cf. Reference AndersonAnderson 2008). It reveals that the interactions between migrant workers and employers that arise from these diverse employment strategies are far more complex (Reference KubalKubal 2012) and range on a scale between opportunism and exploitation. Migrants engage in a significant trade-off when they enter into semi-formal relationships that undermine the protection they have been given by labor laws and yet they quite often perceive this trade-off as empowering—in their own interests and to their benefit. In this way, they challenge the institutional role of the state in enacting laws imposing restrictions on immigrants and they undermine the strong power of the state in its sole capacity to deprive migrants of their rights (Reference YamamotoYamamoto 2007: 95).