To Permit Refusal

Emma Cox

In most of the contexts where it is invoked, permissiveness is a liberal idea. The language of the permissive describes openness or tolerance: permissive societies are contrasted with oppressive ones. Within this paradigm, permissiveness precedes intimacies, creativities, connections, insights. At the same time, the permissive is implicated with excess or indulgence, suspicion of which can ghost the word, bringing to mind the semantic shift the adjectival form undergoes upon its segue from the much sterner noun: permission. With permission, we are in the domain of authority. The word allowance seems to perform subtly different cultural work. When we ‘make an allowance’, a concession, favour or right has been granted. The rule of law principle, nulla poena sine lege (no penalty without a law) may be glossed by the English constitutional idea, ‘everything which is not forbidden is allowed’. This appears to distinguish free societies from totalitarian ones grounded in the reverse – that is, the forbidden as degree zero. Of course, allowance is socially as well as legally policed. Inter- or intra-group allowances and other biases can proliferate systems that permit rank or exception, or that reify otherness. What all permutations of these terms imply is a relation: the granting of a thing to person/s by other/s.

‘Leave to Remain’, a cornerstone in the parlance of immigration bureaucracies, has become a naturalised phrase, a formulation of legislated allowance or codified permission (that in its very systemisation seems not, however, to be permissive). In the context of migrants’ lives, it is allowance rather than permissiveness that comes to the fore in the labyrinthine pathway to conferral of the right to remain in a place where one does not yet belong. But what if it is less the granting of permission to remain that diagnoses something about desirable, ‘open’ societies, but a culture’s collectively permissive sentiments about its own refusal and removal mechanisms? In this brief reflection, I want to consider what character of permissiveness bulwarks the state-determined refusal of a person’s attempt to enter, or to remain within, a particular nation-space. Such a consideration asks what moments of collective agency look like in a society that has granted itself permission to codify and discursively advocate for the rejection of outsiders.

My focus here is on Europe, and chiefly on asylum seeking as a mode of attempted arrival. Of the heterogeneous and jostling visions of what nationhood means in this context, an enduring one, lately prevailing in European discourses on mobility, arrival and belonging, is the legitimated disapproval of the asylum seeker or migrant who seeks to arrive ‘unlawfully’ (the scare quotes signal a fundamental contestation, grounded in the 1951 Refugee Convention’s axiom under article 31.1 that irregular arrival must not incur a penalty1). Suspicion of such peoples – and indignation over dire, disorderly arrivals – is being expressed increasingly openly, unashamedly: these feelings are agreed; they are allowed. This signals not just the entrenchment of but a reverence for the ‘partialist’ view of statehood, which as Matthew Gibney explains in The Ethics and Politics of Asylum, holds that ‘states are morally entitled to privilege the interests of their own citizens in entrance’; it is a view ‘championed by communitarians, conservatives and nationalists (amongst others) [and] justifies the right of states to decide admissions according to their own criteria by appealing to the importance of political and cultural autonomy for communities’.2

I am interested in the large-scale granting of collective permission to reject within nations that have fixed keenly in their crosshairs the noncitizen outsider, because it is, I want to suggest, a culture and not just a state that allows (in the absence of widespread, sustained social perturbation) systemic refusal or removal by legalised coercion or force. Of course, this is as much about how insiders see themselves, as anyone else. The emergence of the nation state’s prerogatives as a sovereign entity as being less and less distinguishable from the prerogatives of states engaged militarily is constitutive of certain implied allowances between citizens. Those of us legally interpellated as ‘insiders’ have demonstrated en masse that we will dutifully suffer the administrative congestion of identity-determining apparatuses and their appetite for our exposed ‘identity fat’ (as Frances Stonor Saunders phrased it in a recent piece on borders3), or permit the storage of bulk identity data sets on government databases, or the surveillance of Internet activity, broadly perceiving that these procedures help to inoculate the nation from the proliferation of bodies illegal (among other risks).

This granting of permission to ourselves vis-à-vis the outsider concerns more than an acquiescent relationship with state control mechanisms. The permission is holistic – it is cultural – and complexly embedded in the media we produce and consume, the views we contribute online / below the line, the ways we engage at home and in workplaces and on the street. It goes without saying, even as it must be said, that this ‘we’ is neither totalising nor easily determined. But the language that manifests in immigration policy pronouncements has a mutually-sustaining relationship with the language increasing numbers of Europeans appear empowered to use. In the UK, a recent enmeshment of administrative foot-dragging and cultural condemnation concerned what might have appeared to be a relatively uncontroversial asylum provision on children: amendment 115 of the Vulnerable Persons Relocation Scheme, which pertained to the relocation of 3,000 unaccompanied minors to the UK from European countries. This provision escalated into tabloid-fueled paroxysms of outrage4 and the scrutiny of the purportedly adult faces of several young men as they arrived in the UK, after prolonged bureaucratic delay.5 That the young people had been occupants of the Calais ‘jungle’ placed them in the sub-category of undesirable migrant described contemptuously by Theresa May in 2015 as the ‘wealthiest, fittest and strongest’;6 people David Cameron shorthanded as a ‘swarm’ that same year.7

Under the jurisdiction of a Europe that has given itself permission to limit its capacity to sustain empathy for the lives and deaths of outsiders, proximate or distant, 2016 has been the deadliest year on record for asylum seeker and migrant deaths in the Mediterranean.8 This follows the EU’s controversial migrant return deal with Turkey (which came into effect in March 2016), as well as the cessation in 2015 of the Italian-run Operation Mare Nostrum migrant search and rescue programme and its replacement with Frontex’s border security-oriented Operation Triton. Amid a period of ad-hoc, ill-coordinated response to refugee crises precipitated largely by the Syrian conflict, the increasingly fractious conglomerate of nations that comprise the EU continues to enact jurisdiction over migration from outside that manifests at its extremities as ‘necropolitical’, or death-determining, sovereignty (here I am invoking Achille Mbembe’s theorisation of the ‘ultimate expression’ of sovereign power9).

A Mbembe-esque characterisation of the necropolitical limit-zone of sovereignty’s enunciation will not find its way into the administrative documents of contemporary democratic states. In his 2015 Orwell Lecture, ‘War, Words and Reason: Orwell and Thomas Merton on the Crises of Language’, former Archbishop of Canterbury Rowan Williams sought to characterise the way power works through a particular kind of language, a ‘bureaucratic redescription of reality’ that ultimately blocks response. This is, he ventured, ‘language that is designed to be no-one’s in particular, the language of countless contemporary manifestos, mission statements and regulatory policies, the language that dominates so much of our public life, from health service to higher education. This is meant to silence response’.10

The UK Border Agency’s policies on what it terms (in clinically euphemistic vocabulary) ‘removals’ pertain to both asylum and non-asylum cases. Since 2004, Removal Facilitation Units (RFUs) have been based at Heathrow and Gatwick airports. Chapter 49, ‘Removals via a Second Port’, of the UKBA’s Enforcement Instructions and Guidance outlines that ‘[t]he aim of the RFU is to maximise the number of successful removals through the quality control of all travel documentation and by liaising with airlines, G4S, case owners and detainees to rectify any issues arsing [sic] which threaten to cause a removal to fail.’ Chapter 49 also sets out guidelines for the agency’s own unlawful action: ‘[i]n the event that a person is brought back to the United Kingdom having been removed unlawfully, the receiving port in the UK will again be responsible for initial processing of the case’.11 Chapter 47 of the Instructions, on ‘Removal of illegal entrants’, constitutes an exercise in the state granting itself permission: ‘[r]emoval is usually to the country of which the illegal entrant is a citizen or a national, but removal may be to a third country provided the illegal entrant is acceptable there’.12 This is language ‘to silence response’.13

In his Metaphysics of Morals, Kant considers that exceptions to principles of natural law are permissible, when ruling authorities seek to uphold civil or domestic order. This is the concept of lex permissiva (permissive law) – what one has license to do to maintain certain conditions. Heather M. Roff argues that this ‘permission arises in a particular situation, what I term “supreme moral emergency”’; she adds, ‘[w]hat is fundamental to Kant’s use of permissive laws is that it provides an opportunity for an agent to choose among different obligating reasons for action, and thereby extricate oneself from conflicting commands’.14 The suspension of habeas corpus, which permits extrajudicial immigration detention, constitutes an example of permissive law (even if, as Giorgio Agamben would surely recognise,15 the very essentialisation of exceptions in contemporary statecraft undermines the notion that permission is anchored to “supreme moral emergency”). In the UK, immigration detention frequently precedes deportation. When we take into account the devolved powers granted by the state to those who enact removals from the UK, it appears that removals also constitute a form of lex permissiva. Chapter 47 of the Instructions on ‘Removal of illegal entrants’ outlines that ‘[c]ertain designated Inspectors (see list at 15.12) have devolved powers to authorise the removal of illegal entrants’ upon receiving advice from ‘[t]he relevant casework department […] as and when such a person becomes removable’ (italics added).16 The ontological switch rendered thus as deadening adjective, the physical undertaking of a removal is performed by custody support subcontractors such as Tascor (on which more below). Degrees of permissibility change, however, when the spectre of wider interest emerges. As such:

Ministerial authority, which will be sought by the relevant casework unit, is required in cases where:

  • an MP has made representations to the Minister;
  • a high level of media interest is likely;
  • there are significant community relations implications17

The ‘risk’ of publicity, then, is acknowledged to activate certain rights – which are otherwise things to be asked for rather than things that attach to subjecthood. As chapter 47 clearly states, human rights must be requested: ‘if subject makes a human rights claim refer to chapter 21’ (bold in original).18

The suffering of ‘removed’ individuals can occasionally be glimpsed in the gaps between policy wordings and reports on removals-in-practice. A UK Parliament Home Affairs Committee memorandum (2013) on enforced removals implicated the UKBA’s deportation subcontractor, Tascor, reporting on a series of failings, found of the fate of failed lesbian asylum seeker from Uganda, Jackie Nanyonjo: ‘[a]lthough JN resisted, the removal was carried out with the guards applying restraining techniques and an excessive use of force. Having landed in Uganda, the escort handed JN over to the Ugandan authorities, who held her for many hours and made it impossible for her to receive medical attention’.19 Nanyonjo, in hiding in Uganda as a by-then known homosexual asylum applicant, died from her injuries eight weeks after her removal.

Coda: on referenda

In representative democracies, referenda are dynamic allowance-events: they ostensibly grant permission to citizens to engage in direct, collective decision making. Of course, such nationwide permissiveness is accompanied by intensive manipulation of voter sentiment and in some instances by a rejection of ‘wrong’ decisions. EU nations have an odd, troubled relationship with these charged pageants of democracy. On three occasions – in Denmark over the Maastricht Treaty (1992-93), and Ireland over the Nice Treaty (2001-02) and the Lisbon Treaty (2008-09) – referenda have been conducted for a second time, in each case with the aim of converting an initial rejection of an EU treaty into acceptance. Infamously, Greece’s 2015 referendum on the stringent debt-relief conditions laid out by the European Commission, the International Monetary Fund and the European Central Bank was rejected decisively by 61% of voters, only to be replaced by an even tougher deal when Prime Minister of Greece, Alexis Tsipras, emerged unable to withstand the Troika’s determined tightening of the screws. In October 2016, Hungary’s referendum on EU migrant relocation plans directly confronted a cornerstone principle of sovereignty pertaining to non-citizens: voters were asked, ‘Do you want to allow the European Union to mandate the resettlement of non-Hungarian citizens to Hungary without the approval of the National Assembly?’ Of the 44% voter turnout, 98% rejected resettlement proposals. Hungary’s Prime Minister, Viktor Orbán – who a year earlier had announced the construction of a fence along the country’s southern border with Serbia – was a proponent of the ‘no’ vote, as were most of Hungary’s other political parties. According to Orbán, the settlement plans would ‘redraw Hungary’s and Europe’s ethnic, cultural and religious identity’.20 Whilst not explicitly a referendum on immigration or refugee resettlement, Britain’s EU membership referendum in June 2016 has been widely recognised as in large part a de facto rejection of EU free movement policies, such was the contentiousness of immigration debates pre-referendum. The Brexit vote is perhaps the most blatant instance in recent years of the decision of a majority (however slim) seeming to determining the state’s agenda. While the referendum looks unlikely to be re-run, the November 2016 High Court ruling that Parliamentary approval is required to trigger article 50 of the Lisbon Treaty represents, at the time of writing, a road block to Britain’s exit from the EU.

As an exercise of collective will, the UK’s referendum result was inextricably tied to and demonstrative of cultural shifts favouring the permission of exclusionary sovereignty. Indeed, it seems to have vented feelings of division more acute than those that precipitated it. Reports in the days following the vote of British people informing EU citizens they should now leave the UK showed up faultlines in a nation not yet in step with its yet-to-be-rewritten bureaucracies. The concentric ripples of cultural permission emerging from the referendum have moved rapidly. A rise in hate crime has been remarked upon in a number of contexts: Metropolitan Police Commissioner, Bernard Hogan-Howe told a hearing at London’s City Hall that hate crime, much of it aimed at Eastern Europeans, rose sharply in June and July. At the same hearing, the results of a report ‘showed that in the 38 days after the referendum there were more than 2,300 recorded race-hate offences in London, compared with 1,400 in the 38 days before the vote’.21

In his reflections on the partialist paradigm under which contemporary nation states (that are able to control their borders) operate, Gibney admits that the paradigm ‘has a degree of ethical force’, but maintains that it is ‘weakened by its unjustifiable assumption of the legitimacy of the current territorial holdings of states, its elision of the claims of states and those of nations or distinct cultures, and its failure to account for the harm that states do’.22 The first two objections would, in the European context, call for a longer view of the foundations of European nations, which might denaturalise many current practices of exclusion. But it is Gibney’s last objection, on ‘the harm states do’, that seems, at this juncture, to point to the most troubling realisation: that an accumulation of collective allowances, of exceptional permissions, has led us to this place.

 

Emma Cox is Senior Lecturer in Drama and Theatre at Royal Holloway, University of London. She is the author of two books, Performing Noncitizenship (Anthem 2015) and Theatre & Migration (Palgrave 2014), and the edited play collection, Staging Asylum (Currency 2013). Her research engages with migration, site responsive commemorative performance and postcolonial museology.

Notes:

  1. UNHCR, The Refugee Convention, 1951. The Travaux Preparatoires analysed with a commentary by Dr Paul Weis <www.unhcr.org/4ca34be29.pdf> (accessed 2 November 2016).
  2. Matthew J. Gibney, The Ethics and Politics of Asylum: Liberal Democracy and the Response to Refugees (Cambridge: Cambridge University Press, 2004), p. 19.
  3. Frances Stonor Saunders, ‘Where on Earth are You?’ London Review of Books 38.5 (2016) <http://www.lrb.co.uk/v38/n05/frances-stonorsaunders/where-on-earth-are-you> (accessed 2 November 2016).
  4. For example: Sam Tonkin, ‘Another all-male coachload of “child” migrants arrives in Britain – but officials WON’T say how many there are and WON’T do dental checks to prove they’re really children’, Daily Mail, 19 October 2016 <http://www.dailymail.co.uk/news/article-3850840/Third-batch-child-migrants-begin-journey-Calais-Jungle-UK-Home-Office-admit-two-thirds-past-children-lied-age-officials.html> (accessed 2 November 2016).
  5. A Guardian report on the bureaucratic tardiness over the unaccompanied minors provision noted, ‘The last-minute nature of the Home Office response is underlined by the fact that the government’s official request to local authorities to find places for the Dubs amendment refugee children was only sent out on 14 October’. Alan Travis, ‘Calais’s refugee children are sleeping rough because of Tory policy’, Guardian, 27 October 2016 <https://www.theguardian.com/world/2016/oct/27/theresa-may-policies-calais-rough-sleeping-children-camp-refugees-tories> (accessed 2 November 2016).
  6. Theresa May quoted in Alan Travis, ‘Theresa May speech marks new low in politics of migration’, Guardian, 6 October 2015 <https://www.theguardian.com/politics/2015/oct/06/theresa-may-speech-new-low-politics-migration> (accessed 2 November 2016).
  7. ‘David Cameron criticised over migrant “swarm” language’, BBC News, 30 July 2015 <http://www.bbc.co.uk/news/uk-politics-33716501> (accessed 2 November 2016).
  8. ‘Mediterranean death toll soars, 2016 is deadliest year yet’, UNHCR, 25 October 2016. http://www.unhcr.org/uk/news/latest/2016/10/580f3e684/mediterranean-death-toll-soars-2016-deadliest-year.html (accessed 2 November 2016).
  9. Achille Mbembe, ‘Necropolitics’, Public Culture 15.1 (2003), 11-40 (p. 11).
  10. Rowan Williams, ‘War, Words and Reason: Orwell and Thomas Merton on the Crises of Language’, The Orwell Lecture, 2015 <http://theorwellprize.co.uk/the-orwell-lecture-2015/> (accessed 2 November 2016).
  11. Chapter 49, ‘Removals via a Second Port’, Enforcement Instructions and Guidance <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/270024/Chapter49.pdf> (accessed 2 November 2016).
  12. Chapter 47, ‘Removal of illegal entrants’, Enforcement Instructions and Guidance <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/270022/chapter47.pdf> (accessed 2 November 2016).
  13. Williams, ‘War, Words and Reason’.
  14. Heather M. Roff, Global Justice, Kant and the Responsibility to Protect: A Provisional Duty (Abingdon and New York: Routledge, 2013), p. 70.
  15. Giorgio Agamben, State of Exception, trans. Kevin Attell (Chicago: University of Chicago Press, 2005), p. 2.
  16. Chapter 47, ‘Removal of illegal entrants’, Enforcement Instructions and Guidance <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/270022/chapter47.pdf> (accessed 2 November 2016).
  17. Chapter 47, ‘Removal of illegal entrants’.
  18. Chapter 47, ‘Removal of illegal entrants’.
  19. Home Affairs Committee, Memorandum, UK Parliament, 11 October 2013 <http://www.publications.parliament.uk/pa/cm201314/cmselect/cmhaff/71/71vw32008_HC71_01_VIRT_HomeAffairs_ASY-71.htm> (accessed 2 November 2016).
  20. Viktor Orbán quoted in ‘Hungarian referendum on EU migrant quotas’, New Europeans, 2 October 2016 <https://neweuropeans.net/event/1452/hungarian-referendum-eu-migrant-quotas> (accessed 2 November 2016).
  21. Matthew Weaver, ‘“Horrible spike” in hate crime linked to Brexit vote, Met police say’, Guardian, 28 September 2016 <https://www.theguardian.com/society/2016/sep/28/hate-crime-horrible-spike-brexit-vote-metropolitan-police> (accessed 2 November 2016).
  22. Gibney, p. 20.

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