On a December day in 2009, about 200 Chechens and Georgians attempted to flee Poland. Boarding a train bound for Dresden, their final destination was Strasbourg- seat of the European Council and European Parliament. There they intended to protest the treatment of refugees seeking asylum in the EU. The banners they hung in the train windows indicated they were fleeing “Oppression,” demanding “SOS” and the recognition that “We are people[i].” Needless to say, they were stopped at the Polish-German border and forced to remain.
What in this European age of Security, Justice and Freedom was the oppression that they were fleeing? Following the apprehension of these deviant migrants, public analysis of the event circulated around the understaffing and overall poor conditions in asylum centers. What could have been a much-needed discussion on migration was effectively veered to the sadly safe domain of lacking funds- a fact of life in Poland with which refugees must simply agree. So with the conclusion that a lacking state budget was the agent of oppression, this organized act of dissent was effectively placated and depoliticized.
But this action is nothing but political. It is a loud message exposing not trite physical conditions that are already well known (and to be expected) but the exclusionary and dehumanizing practices that characterize current migration procedures in Poland, and more generally in the European Union.
A critical examination of actual migration processes and the fundamental assumptions on which they are based is in order.
A comprehensive European migration policy in Poland
The Polish state currently operates no holistic migration policy of its own. However, insofar as such policy denotes bureaucratization, administrative procedures, border controls and a justifying discourse, such measures have been implemented and adopted in Poland according to European Union prescriptions for managing migration. In conceiving the EU territory as a regime of Freedom, Security and Justice, the European Council considers as a prerequisite the creation of a comprehensive European migration policy. This common policy is based on the EU member states’ shared national concerns over immigration, as well as on more supranational concerns stemming from the lack of internal borders- and hence uncontrolled movement- within the EU. At the core of this policy is at once the fortifying and policing of external borders, as well as a politic of categorization according to which migrants are rendered “desirable” or “undesirable”. As a means of legitimization, the common migration policy is accompanied by a fitting discourse centered on “the fight against illegal immigration,” purported as a threat to security and economic welfare. Furthermore, this discourse bears heavily on concerns over abuses of the asylum system by mere pretenders to refugee status, false refugees, or “economic migrants.”
Europe as a strainer[ii], or the politics of categorization
In its stipulations for the comprehensive European migration policy, the European Council suggests three distinctions for migrant categories: legal migrants, illegal migrants and asylum-seekers. These classifications contain further subcategories and it is through a regular redefining of their scope to fit national needs that the politics of migration are played.
Migration is generally desired by member states so as to fill labor shortages, and to address demographic concerns such as those currently facing many European populations. But not all migrants are of the wanted sort. Deciding who is “desirable,” and thus who has the right to enter legally requires the smooth politicking of categories. The inverse of this practice, or deciding who in result is “undesirable” often reflects and exacerbates already existing societal issues. In countries of western Europe, this debate is usually closely related to the colonial past and the special relations that old colonial powers have with their former colonies. In view of this past, immigration in such countries is beleaguered by ideas about national identity, that are also further aggravated by Islamophobia and xenophobic aims related to maintaining a certain ethnic integrity. As migrants confront national orders, politicking migration becomes an exclusionary practice based upon morally arbitrary suppositions.
Being desirable
Migrants who respond to national economic needs are the de facto desirable sort of migrants. In western European countries desirable migrants from outside the EU who are allowed legal entry are usually high-skilled workers. This reflects the already numerous low-wage workers who are citizens of EU countries like Poland, who emigrate to western states and satisfy gaps in the labor market. High-skilled migrants from outside the EU are normally able to come as the corporations, organizations or institutions for which they work guarantee handling of immigration procedures, or otherwise because their skills are particularly desired by the host state. It is with these sorts of desirable migrants in mind that the European Council aims to construct a Common Agenda for Integration.
But being desirable does not necessarily mean being legal, or being allowed legal entry. Integration is expensive and not all migrants are deemed a sound investment, especially in countries like Poland where public funds seem endlessly scarce. Effectively, in Poland this situation translates to opposing objectives- at once the need for low-wage labor (further exacerbated by the substantial emigration of Poles to western countries) and the unwillingness to allocate resources towards migrant integration. This is particularly exemplified by the case of Vietnamese migrants to Poland. Although Vietnamese workers satisfy a significant economic niche, they are categorized out of the legal entry scheme. Vietnamese migrants are allowed neither provision for legal access, nor for legal employment in Poland and the EU. It would appear thus that the majority of the alleged 30 to 50 thousand Vietnamese living in Poland with no legal status are deliberately maintained in a state of illegality, all the while their labor being highly desirable[iii].
In Poland, migrants whose work is highly desirable and who are allowed legal entry come most often from neighboring Ukraine. Yet even for these persons desirability and legal status are no sweet deal. There is no integration policy in Poland for anyone, and thus the matter of integrating into Polish society is usually left for migrants to figure out on their own. In the case of Ukrainians, after entry into the Schengen zone, the Polish state maintained special provisions that reflect many years of porous borders, trade and beneficial Ukrainian migrant labor. In effect Ukrainians are allowed to enter Poland legally and at the manageable cost of 30-35 Euro for a visa. Travel for Ukrainians to other countries in Europe is far more complicated and requires the purchase of a more expensive Schengen visa. The Polish state has thus responded to its economic needs by allowing these migrants to enter legally, nonetheless having only emplaced stipulations for temporary work permits, it has successfully avoided spending resources on integration. In effect, there is no state-run comprehensive framework that helps Ukrainians navigate immigration to Poland, or establish their lives once here. This response on the part of the Polish state is a highly passive one that has grave recourse on human lives. The lack of state support has given rise to informal immigration and integration systems run by private companies, profiteers, peddlers and mafias (frequently in cahoots with border officials). These often-shady actors extort money from migrants in exchange for services such as securing work invitations from Polish employers (necessary to receive a work permit). Migrants forced to cooperate with such likely informal networks frequently find themselves working in conditions of indentured servitude or downright slavery upon arrival to Poland.
Sveta[iv], currently a house cleaner in her early 30s, told me how she and her husband paid a private company for a complete immigration package, which included a work invitation, a work permit, a job once in Poland and transport from the Ukraine. Once arriving on the spot, she found herself working 10 hours per day in a meat factory. She was allowed one monitored, 15-minute break per day and received pay for only 8 of the 10 hours of work. She worked a full month to receive her pay, after which she escaped the factory at night with other Ukrainians.
Nadia, also a 30-something house cleaner, accounted how upon arriving to Warsaw she could only find a job by working for a middle-person. This middle-person ran a private cleaning service, which hired Nadia illegally and required her to hand over 60% of her wages. Thus making 20zł per hour, Nadia would only be allowed to keep 8zł.
Once in Poland, Ukrainian migrants are provided no access to social protections. Yet Ukrainian workers fulfill very important social and economic functions in Poland. Caring for the young, the sick, the elderly, the busy, as well as their households, Ukrainian women have taken up many of the responsibilities that socialist state and society abandoned to make neoliberalization in Poland possible. Ukrainian men, on the other hand, often do the physical work that Poles no longer want to do (or leave to do in other countries). These migrant workers help maintain the groundwork that allows Poles to engage in a newly developing capitalist Poland. Yet their contributions are barely reciprocated or recognized.
It is important here to acknowledge the resourcefulness of many migrants- both from neighboring countries and those from far away, such as the Vietnamese- who do figure out how to navigate migration procedures and integration in Poland, and who are able to gain permits and even citizenship. Their achievements in establishing vibrant communities that have today became integral to metropolitan cultural landscapes- especially in Warsaw- are entirely their own. Their stories testify at once to their willpower and to the lack of concern habitual to migration administrations in Poland.
Policing the border and “the fight against illegal migration”
As guardian of the EU’s easternmost frontier since 2004, Poland has borne the responsibility of securing the outer border through the use of high-tech technologies such as heat sensors and cameras as well as rigorous entry procedures. While controlling the border also necessitates managing migrant populations, Poland has put its efforts into training guards and officials competent in operating the politics of categorization. The efficacy of these measures is a matter of high stakes, especially due to pressures from western European countries interested in making sure that migrations from the east do not travel westward.
To traverse the border, most migrants are required to obtain a visa or permit and to present sufficient funds in cash or in a bank account (for a stay longer than 3 days, migrants are required to have 100zł for each day of their stay)[v]. But only certain people, such as those possessing desirable human capital, pertinent expertise or a fitting profile are allowed access to visas and permits. In turn, those without the wanted qualities are devalued and excluded. At the Polish border, migrants such as Afghanis, Georgians, Ugandans or Vietnamese are deemed undesirable and are precluded from legal entry. Their visa applications are most often turned down, they are burdened with overwhelming costs or otherwise said to lack the necessary per diem funds for their stay[vi]. Legal immigration is therefore a restricted opportunity. For most of the thousands of migrants forced to leave their countries due to economic, political, or natural hardships and who attempt to find a better life in the EU, there is virtually no way of legal entry to EU territory. The only choice left is to file an asylum claim, or otherwise to attempt crossing the border illegally.
It is perhaps no accident that the European Agency for the management of operational cooperation at the external borders of the Member States of the EU (FRONTEX) has its headquarters at the Rondo ONZ in central Warsaw. Frontex is an independent agency whose operations are subsidized collectively by EU member states. In 2007, Frontex had a budget of about 35 million Euro, which it used to carry out its mandate in border surveillance and training of border guards in the aims of fighting illegal migration.[vii] Over the past two years, this budget has risen and Frontex now operates close to 70 million Euro. Thanks to these operational capacities of Frontex and other systems brought to life by the comprehensive European migration policy, countries like Poland have the resources to effectively- at least in theory- police entry to EU territory.
Yet governing the outer limits of Europe proves a contested matter. Despite its alleged impermeability, migrants report shady dealings involving guards and mafias. Furthermore, human trafficking and smuggling are certainly a reality in Poland. One can only stipulate the unofficial dealings that allow this to occur, given that the border is so well patrolled[viii].
Asylum
I met with Hamzat, a 28 year old Chechen with a master’s degree in business, on a platform at Warsaw’s Central Station in July 2007. He had come in on the local short-distance train from Dębak, Poland’s main refugee reception center located in the forest of Podkowa Leśna about an hour away from the city. When migrants arrive at the Polish border (or at the land, sea or airport border of any country signatory to the 1951 Geneva Convention) they have the right to request protection, or asylum, which must then be considered by the petitioned state. In Poland, after filing for asylum at the border, newly deemed “asylum-seekers” are transported to Dębak, from where they are accordingly hosted for the duration of their asylum procedure in one of the 20 refugee centers throughout the country.
Sipping on coffee in a café nearby, Hamzat told me his story. He had first arrived to Poland from Chechnya in November 2004. When Hamzat’s uncle, a fighter in the Chechen resistance was wounded in a raid near the city of Gudermes, word of his weakened state got out to the opposing forces. Believing the injured warrior-uncle would rely on the help of his family to regain strength, men in masks began to menace Hamzat’s family. Finally, Hamzat was kidnapped and tortured for information. Barely escaping his capturers, he fled for Europe.
Crossing the border with Belarus, Hamzat filed an asylum application at the border in Poland. In it, he wrote: “I want to become a refugee, because there is no peaceful life in Chechnya or in Russia. I want to live peacefully, without fear for my life or that of those close to me.”[ix]
The emergence of the modern figure of “the refugee” can be traced to the displacement and denaturalization of populations in Europe following World War II. While refuge and exile have been notions considered since antiquity and elaborated upon by thinkers like Kant (Perpetual Peace 1795) it was not until the 1948 Universal Declaration of Human Rights that asylum was acknowledged as a fundamental human right. Kant had argued that by virtue of the right of association and of our common ownership of the earth, states are morally obliged not to treat newcomers to their territories with hostility. More specifically, such individuals cannot be refused entry if turning them away may cause them harm. This moral principle provides the basis for the quality of refugee as defined in the 1951 Geneva Convention Relating to the Status of Refugees and furthermore, for the principle of “non-refoulement”, whereby refugees cannot be returned to countries where their lives may be threatened. Accordingly, “refugee”:
Is any person who owing to well-founded fear of being persecuted for
reasons of race, religion, nationality, membership of a particular
social group or political opinion, is outside the country of his
nationality and is unable or, owing to such fear, is unwilling to avail
himself of the protection of that country. [Article 1 (2)]
Having filed his asylum claim, Hamzat waited a year in a refugee camp in Warsaw during which his application was being processed. In filing an asylum claim, asylum-seekers must provide detailed narratives that present tangible evidence of persecution aimed directly at their person and for one of the reasons mentioned in the 1951 Convention. These narratives are then subject to intense scrutiny with the goal of confirming their veracity. In Poland, asylum claims are processed by the Department of Refugee Proceedings of the Ministry of Immigrant Affairs. Here, a team of officials with access to international databases confirms or disproves purported dates and places of persecution. This is a grueling process at the end of which most are disqualified. In 2009, of the 10,590 asylum claims filed in Poland, 131 received refugee status[x].
In October 2005 Hamzat received a negative decision. He appealed and was again denied in January 2006. According to Polish authorities, his case fit neither the prescriptions for refugee status, nor those for the less desirable temporary protection. Following the 1951 Convention prescriptions, war and other human rights abuses of a mass scale do not directly qualify one to contend for refugee status. Kidnappings, tortures, cleansings and land mines are all normalized features of war, or at least standard features in the context of Chechnya, and are therefore not considered to necessarily represent persecution directed specifically at one’s person. To account for such cases as war, EU member states have conjured temporary statuses in following the principle of non-refoulement. In Poland, this is called “supplementary protection” which allows full access to citizenly rights for a period of 2 years without the possibility of renewal. Of the same 10,590 asylum applicants in 2009, 2,317 were conferred this status. The remaining persons either received negative decisions or their cases were left unresolved.
From November 2004 until January 2006, Hamzat’s life was defined by waiting in a refugee camp. He found himself in a state of legal limbo, having no legal status to work or certainty to begin his life anew. Along with his final refusal notice, he received an order to leave the territory of Poland. So he did. Taking the most logical decision in his situation, instead of returning east to Chechnya, Hamzat went west to France.
Upon arriving to Paris by means of a trafficker, Hamzat again filed for asylum. Quickly enough however, and with the help of competent systems like EURODAC[xi] and SIS[xii], French officials got wind of his previous try at asylum in Poland. Citing the Dublin II Regulation, at 2am approximately five weeks after Hamzat’s arrival in France, police officers came to retrieve him for deportation. Escorting him to Roissy International Airport, they placed Hamzat on a plane bound for Poland. But once he landed in Warsaw, another police troupe was already waiting. Hamzat was accompanied by Polish border guards to the detention center in Lesznowola, about 15km southwest of Warsaw, where he was to sit out a punishment for having illegally crossed the Polish border on his way out to France.
As part of the comprehensive European migration policy, the European Council has made special provisions for a Common European Asylum System. This common policy has for its goals the synchronization of national asylum systems and the shared management of refugees and asylum-seekers on EU territory. The most important agreement herein is the Dublin II Regulation of 2003, according to which refugees can only file for asylum in the first EU state that they enter. Intended to prevent the filing of multiple claims, or “asylum shopping”, Dublin II aims to distribute responsibility amongst member states. With greater communication and efficient data exchange across the EU, member states have been greatly facilitated in undertaking measures such as deportations, bilateral return agreements, limited judicial reviews and detention as in Hamzat’s case.
At Lesznowola, Hamzat was imprisoned with no justification of the terms, or length of his punishment. The Detention Center for Immigrants in Lesznowola is one of 13 such detention centers in Poland, created to house migrants awaiting expulsion. In September 2006, Hamzat received notice that he would be accompanied by police officers to the Belorussian border and forcibly removed from Poland. He was given no timeframe. Having taken an interest in Hamzat’s case, an NGO in France decided to hire a lawyer and to launch an investigation into his unjust treatment. During the next months, Hamzat’s situation continued to be filled with uncertainty and the possibility of deportation at any moment. Finally, in January 2007, French authorities decided to reexamine Hamzat’s claim and he was to be transported back to France. Two months later, in March, Hamzat was finally released from Lesznowola and given a place at the Dębak refugee center.
When we met in July 2007, Hamzat had still not received his invitation to come to France. With increased cooperation between EU states and the Common Asylum System, it was seemingly much easier to arrange a deportation than a free return. “I’m waiting,” Hamzat told me. “I just wait. I don’t really have much else to do. I’m allowed to leave the camp for three days at a time, but I can’t work. I can only wait.”
Lacking citizenly recognition, refugees seeking asylum are relegated to the margins of social and legal existence. Their lives in the EU resemble what Kafka described in The Trial; marked by waiting in a state of legal limbo, their fates to be ruled upon by an ambiguous authority while having no certainty for the future. With no formal legal status, refugees seeking asylum can be moved, detained, deported or expulsed without the ability to act in protest. In the frameworks of the European asylum system, it is thus also what Hannah Arendt had termed as the “right to have rights” that has been made contingent on procedural recognition. In effect it comes as no surprise that 200 Chechens and Georgians attempted to contest this systemic oppression this past December.
The dialectic of legitimacy
In the setting of contemporary Europe, the asylum system reflects discrepancies between human rights ideals and actual practices. Although uniformly recognized as a human right by the member states, the asylum system has become a tactical means to delimiting migration. Decrying the right of asylum as a moral exemption that “allows too many through” and at “too great a cost”, the member states have found justification in seriously restricting and policing its scope. Towards this end, they have enlisted sophisticated sorting practices based on a narrower definition of who is “refugee”. Inscribed within the asylum process, the sorting of applicants is aimed at discerning legitimate contenders to refugee status from the false, who are proved to be mere economic migrants in disguise. At the root of this practice is the weeding out of voluntary- and not forced- migrants whose only motivations for immigration are simply to find a better life[xiii]. As the EU migration system provides no access to legal existence within its territories for such persons, they become the objects of state repression. All while supposedly maintaining commitments to human rights ideals by gracing a small number of verified legitimate refugees with compassion.
Besides the procedural measures designed to restrict access to asylum, EU member states are greatly facilitated in their efforts to restrict migration by the inherent limitations of the 1951 Convention definition for determining who is refugee. Forged within the post-WWII context, the prescriptions asserted by the 1951 Convention are generally inadequate to address the realities of forced migration today. The 1951 Convention was not updated to reflect the new global situation and narrative following the post-colonial period. It has likewise not been updated to reflect other prevalent modes of persecution such as gender-based. Particularly significant is that economic persecution is not recognized. With no consideration of capitalism as a hegemonic world system that serves as an agent of persecution and exclusion around the world, the 1951 Convention largely ignores the reality of contemporary fluxes of forced migrations. Due to this limited scope, the 1951 Convention definition leaves room for manipulation and the effective demonization of those deemed undesirable “economic migrants”.
Conglomerating the types, reasons, motives and circumstances of migrations, the migration system in the EU totalizes migrants in a binary “legitimate” versus “illegitimate” dialectic. Legal vs. illegal, desirable vs. undesirable, genuine refugees vs. economic migrants. Those found on the unwanted end of policies are usually either expulsed, or if they manage to evade the authorities, disappear past the margins into the precarious realms of illegal existence.
No Border Warsaw
(Text originally published in Le Monde Diplomatique Nr. 2 2010)
