The pains of being unauthorized in the Netherlands

Date01 October 2020
Published date01 October 2020
DOI10.1177/1462474519887357
Subject MatterArticles
untitled Article
Punishment & Society
The pains of being
2020, Vol. 22(4) 534–552
! The Author(s) 2020
unauthorized in the
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Netherlands
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DOI: 10.1177/1462474519887357
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Mieke Kox
Erasmus University Rotterdam and Utrecht University, the
Netherlands
Miranda Boone
Leiden University, the Netherlands
Richard Staring
Erasmus University Rotterdam, the Netherlands
Abstract
Ethnographic fieldwork amongst 105 unauthorized migrants in the Netherlands shows
that unauthorized migrants suffer from the pains of being unauthorized. These migrants
feel punished and are severely hurt by – amongst others – the deprivation of healthy
and secure living conditions, social and geographical mobility and citizenship. These
migrants’ pains are caused by current restrictive migration controls, something the
Dutch authorities could and should be aware of given previous research that provides
similar insights. While the Dutch authorities do provide – the legally required – pro-
visions for unauthorized migrants, we argue on the basis of Hayes’ proximity model that
these authorities accept the collateral consequences of (possibly) being subjected to
migration controls and purposely inflict these pains on unauthorized migrants. This
means that migration control is not only experienced as punishment by those subjected
to it, but that it is also intended to punish. The current system of migration control has
as such expanded the reach of penal power. This implies that ‘punishment and society’
scholarship should also look beyond the borders of nation-states and criminal laws in
order to understand contemporary punishment.
Corresponding author:
MH Kox, Utrecht University, Human Geography and Planning, Vening Meineszgebouw A (room 6.90),
Princetonlaan 8a 3584 CB Utrecht, the Netherlands.
Email: M.H.Kox@uu.nl

Kox et al.
535
Keywords
citizenship, criminalization of migration, deprivation of geographical mobility, depriva-
tion of health, deprivation of security, deprivation of social mobility, pains of being
unauthorized, pains of imprisonment, punishment, unauthorized migrants,
Introduction
Why? If they give a permit after seven years, after eight years, why do you [Dutch
authorities] make me all these years illegal? Why do you [Dutch authorities] treat me
badly here? That is the complaint! It is allowed by the law to arrest you. You get
punishment just to get. . . They detain you! You just do not get benefit from the
socials! You are completely out of the society! You cannot do anything! And later
on, they say: ‘Congratulations.’ Does it make sense? (R08)
This is a quote from an East African man who fled to the Netherlands in 2011 to
seek asylum. His asylum application got rejected, but he stayed in the country
despite the lack of a legal status. During his unauthorized residency, he got exclud-
ed from social services, apprehended for the lack of a legal status and detained in
immigration detention. The Dutch authorities could not deport him, so he got
released within the Netherlands. He continued his unauthorized residency until
he obtained a temporary residence permit on medical grounds. He is severely upset
by these occurrences and feels punished by the Dutch authorities.
This man’s story is not an isolated case. Ethnographic fieldwork amongst 105
migrants without a legal status in the Netherlands reveals that these unauthorized
migrants1 feel punished and hurt by their subjection to migration controls. Their
experiences show parallels with the pains of those deprived of their freedom, cap-
tured by Sykes (1958) in the pains of imprisonment. This pains-concept contributes
to understanding (the subjective experiences of) punishment, minimalizing the suf-
fering it causes and evaluating the realization of its aims (cf. Hayes, 2015; Sykes,
1958: 130–134). Nonetheless, we have been doubting whether to use this concept
for unauthorized migrants as it is usually applied within criminal settings and we
want to prevent fortifying the criminalization of unauthorized migrants by using
penal vocabulary (cf. Du¨vell et al., 2010). However, we believe that there are three
arguments in favour of using the pains-framework to analyse unauthorized
migrants’ experiences with migration control, especially as Sykes (1958: 66–67)
drew a parallel between prisoners and people without legal citizenship himself.
First, Sykes was not solely interested in imprisonment, but wanted to study a
system of total power and focused on a maximum-security prison as it represented
‘a social system in which an attempt is made to create and maintain total or almost
total social control’ (Sykes, 1958: xiv). Also Goffman (1961) and Mathiesen (2006)
show that social control mechanisms that are revealed in penal studies may have
implications for other (total) institutions. This indicates that ‘penal’ concepts are
not limited to prisons. Besides, there are similarities between the subjection to

536
Punishment & Society 22(4)
migration control and penal institutions. Engbersen (2001: 242), for instance,
believes that the irregularization of migration constitutes a panopticon as migra-
tion control functions – and is being experienced – as an open prison. This
panopticon is not aimed at disciplining or correcting unauthorized migrants, but
at excluding and detecting these migrants in order to guard public institutions and
labour markets. Aas (2014) calls this a ‘banopticon’ as the state’s priority is on
banishment and territorial exclusion. This argumentation’s value has increased
given the recent irregularization of migration and the asymmetrically incorpora-
tion of criminal laws and instruments in the migration domain (Aas and Bosworth,
2013; Legomsky, 2007).
Second, the pains-framework offers an opportunity to describe the unauthor-
ized migrants’ experiences with migration control and to study its consequences for
those subjected to these controls, like Sykes (1958) did for prisoners. Sykes (1958)
introduced his study at a moment that prison sentences were no longer intended to
be painful and severe bodily suffering had been abandoned. He showed that
imprisonment brought unintended consequences that constituted a profound
and unprecedented attack on prisoners’ personality, self-esteem and feelings of
security. This made imprisonment as painful as the physical maltreatment it
replaced, according to Sykes (1958). He believed that these unintended – partly
acceptable and/or unavoidable – deprivations and their consequences had to be
explored and should play a substantial role in the discussions on the functioning of
prisons. As several studies show that current migration policies negatively affect
several domains of unauthorized migrants’ everyday lives (Bloch, 2014; Martinez
et al., 2013), it is important to include the possible pains of being unauthorized and
its consequences in the discussion on the functioning of migration control.
Third, examining the pains of being unauthorized may contribute to the current
discussion on the boundaries of punishment. Several scholars argue that these
boundaries have shifted under the influence of globalization processes while the
‘punishment and society’ scholarship tends to overlook the immigration domain
(Bosworth, 2019; Bosworth et al., 2018a; Hannah-Moffat and Lynch, 2012).
Punishment is supposed to consist of five elements: (a) it must involve pains, (b)
in response to a violation of legal rules, (c) be directed towards the one who has
breached the legal rules, (d) imposed intentionally by state authorities that are (e)
acting under the authority of the breached law (Bosworth, 2019: 85–86;
Hayes, 2018: 236). States usually consider the subjection to migration control no
punishment as it concerns administrative laws that are not aimed at causing pains.
However, the question is whether this statement is justified. Bosworth (2019), for
instance, argues that it is not useful to dissociate administrative and criminal pen-
alties given its convergence. Also Aas (2014) believes that the current focus on the
absence of formal membership has changed the nature of penal interventions
as these prioritize territorial exclusion over reintegration, something she calls
‘bordered penality’. This is supposed to impact the system’s effects and rationales
and reshape the nature of penal power. Applying the pains-framework to the lived
experiences of those subjected to migration controls may as such contribute to this

Kox et al.
537
current discussion on the boundaries, roles and purposes of punishment (Hannah-
Maffat and Lynch, 2012).
These three arguments make us believe that the pains-framework is a well-suited
tool to analyse unauthorized migrants’ experiences with migration control.
Therefore, these are central in this contribution. After notes on the pains and
the methodology, we illustrate the unauthorized migrants’ experienced deprivation
of (1) healthy and secure living conditions, (2) social and geographical mobility
and (3) citizenship. Then, we explain the differences in experienced pains. In the
conclusion, we address the absolute character of migration control, its (unin-
tended) consequences and the implications for the understanding of punishment.
The pains of imprisonment
The perceptions of those being subjected to punishment are usually framed as
‘pains’ (Ugelvik and Damsa, 2018). Sykes (1958) introduced these pains to illus-
trate that prisoners were – despite the abandoning of physical pains – still suffering
but now from the deprivation of liberty, goods and services,...

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