Faced with the difficulty of explaining how the image of immigrants has been constructed by the migratory policies in the majority of receiving countries (as certainly is the case in the USA and the EU), many of us have turned on more than one occasion to the metaphor borne of UIysses’ strategy against Polifema in Song IX of the Odyssey: “My name is Nobody”.1This was the inspiration for a marvellous audio book by Carla Fibla and Nicolás Castellano: see C. Fibla, N. Castellano, J. Medina, Mi nombre es nadie (My Name is Nobody) El viaje más antiguo del mundo (The Oldest Journey in the World), Barcelona, Icaria, 2009 (Audio-book. Includes 4 CDs).
Indeed, in line with the purely instrumental view that is so characteristic of these migratory policies, immigrants (with a particular emphasis on illegal immigrants) are not simply forced to occupy the margins of society; instead their designated realm is a “non-space”. This is the space reserved for “nobodies”, since the gaze we cast (the gaze which reflects the immigration laws that we have created in our countries) converts these immigrants into “infra-subjects”, if not simply into “non-subjects”.
This is the root of their social invisibility: consigned to the private plane, their presence is denied in public spaces. They work outside of normal hours (unless, that is, they are active in the black economy, in which case they are also in invisible employment) and are cast into a status which could be classed as “subordiscrimination“2It is for this reason that scholars of anti-discrimination law, based on contributions from the feminist critique of law (I.M. Young, K. Crenshaw or CE. Mackinnon) employ concepts such as “sub-discrimination” and “inter-sectional discrimination”: e.g., M. Barrére and D. Morondo, “Subordinación y discriminación interseccional. Elementos para una teoría de derecho antidiscriminatorio” (Subordination and Inter-sectional Discrimination: Elements for a Theory of Anti-Discriminative Law), in ACFS n? 45, 2011, pp. 15-42. This monographic issue also includes interesting pieces by E. Beltrán, M.L. Femenías, M. Malik, R. Mestre, F. Rey, and an article by A. Rubio and M. Moya, which is particularly relevant from an immigration perspective. In Spain, in addition to the pioneering work of M. Barrère, Discriminación, derecho antidiscriminatorio y acción positiva a favor de las mujeres (Discrimination, Anti-Discriminative Law and Positive Action in Favour of Women), Madrid, Civitas, 1997, references can also be made to A. Rubio’s analysis of the complexity of the principle of equality in the Spanish legal system, “Art.14 Igualdad y no discriminación”, [Art 14. Equality, not discrimination in Comentarios a la Constitución socio-económica de España [Comments on the Socio-Economic Constitution in Spain], Granada, Comares 2002 and the collection (various authors) (R. Mestre, ed.), Mujeres, derechos, ciudadanía (Women, Rights, Citizenship), Valencia, Tirant lo Blanch, 2008.]: a real state of permanent exception which has been created ad hoc for this social group and which excludes immigrants from the basic principles of the rule of law, even going so far as to invert these principles: equality and non-discrimination, the presumption of innocence, favor libertatis, legal certainty, the guarantee of rights through the ordinary courts, the prohibition of arbitrariness and the reduction of discretion in administrative decision-making, etc.
Moreover, immigrants are subjected to a status of domination: cultural differences are used as the excuse to promote a hierarchy of domination and the imposed model of assimilation, and acculturation is regarded as necessary for admission, albeit as an absent presence. And this is all on the basis that we should measure and compare cultures and civilisations.
In other words, on the one hand immigrants are established as unequal subjects, by virtue of their presence being only a temporary necessity. This means that their rights are either denied or fragmented, placing these people in a vulnerable position whereby they are unable to enjoy the same rights or guarantees as citizens. On the other hand, since these people are foreigners and, consequently, ultimately undesirable (the overriding assumption made in the policies determining their presence is that they are here only provisionally and they cannot and should not establish themselves amongst us), they cannot be granted the right to make decisions: they only suffer the law, without participating in its elaboration. This situation is even worse than that of the Metics in Athens: they are the new slaves: I cannot think of a better way of describing this situation than the splendid oxymoron created by Abdelmalek Sayad: “absent presence”.3Cf. A. Sayad, 2001.
The model adopted by the “Troika” (European Commission, European Central Bank and the International Monetary Fund) to deal with the crisis in the European Union, has ended up sending the Spanish government, in line with the constant demands for austerity reforms directed at Spain, back to square one with the reductionist process that denies immigrants equality in the right to have rights. The first step was the disappearance of the Support Fund for the Admission and Integration of Immigrants from the draft budget of 2012. This fund refers to just over 60 million euros previously allocated to the autonomous communities and city councils by the central government. But this was just the beginning of a whole range of initiatives which would restrict and even strip social rights of their contents and/or guarantees, pushing immigrants further away from integration as a symbol of equal rights.
As has been emphasised, social rights are a real test case: as posited by Añón and Pisarello, it becomes clear that it is impossible to ignore the relevance of the historical convergence of two phenomena in this crisis: the “foreignisation” of the work force and the recourse to policies that are biased towards citizens in the most traditional sense (e.g. national preference, “which promotes degrading work for the population of foreign and poor people and condemns non-citizens to legal, political and social apartheid, especially those who find themselves in an illegal situation”).4G. Pisarello, Los derechos sociales y sus garantías. Elementos para una reconstrucción (Social Rights and their Guarantees: Elements for Reconstruction), Trotta Madrid, 2007, p. 41. All this in the context of reworking social issues and against the backdrop of the policy on the redistribution of resources; a policy which calls for the downgrading of social rights, a downwards decline which allows for scales to appear — with immigrants, being the most vulnerable group, always at the bottom. This is where the legal message conveyed by “foreignising” policies comes into play, acquiring an increasingly strong ethnocultural dimension that in turn justifies this exclusion and which, demonstrably, has the biggest impact on those who cannot become citizens or, in any event, denizens, or borderline citizens (those bestowed with an absent presence), the immigrants.
The measures adopted by the Spanish government on 20 April 2012 seem to confirm this. Indeed, on the same day, the Royal Decree-Law 16/2012 of 20 April on urgent measures to ensure the sustainability of the National Health System was passed in the Council of Ministers. This is in keeping with the prioritised objective of austerity mentioned above, which has become dogma (and has been elevated to the status of a constitutional principle in Spain as a result of the shock constitutional reform passed in September 2011 by Zapatero and Rajoy) and takes place under the pretext of the need to tackle the unjustified spending of public resources on so-called “health tourism” (which, incidentally, is not so much practised by immigrants as by Europeans who come to Spain with this in mind, since immigrants clearly do not have the resources).
The objective is to modify the current Aliens Act in order to introduce the prerequisite of legal residency to permit access to healthcare. The government is to restrict access to public health care by foreigners in Spain. This will have a particularly profound impact on illegal immigrants (of which there are estimated to be approximately 500,000) since registration will no longer be considered adequate for the issuance of health insurance cards, as has been the case following the passing of a reform by José María Aznar’s government in 2000. Health Minister, Ana Mato, has indicated that the Executive is to “qualify” the conditions from this point on. A spokesperson for the Ministry added that foreigners will have to show “that they really live in Spain, work here and pay their taxes”.5This is the sentiment of the new Article 3b, which states the following: “Healthcare assistance in special situations. Foreigners who are neither registered nor authorised as residents in Spain will receive healthcare assistance in the following situations: a) In case of an emergency caused by a serious illness or an accident, regardless of the cause, until the point of medical discharge, b) For assistance during pregnancy, at childbirth and post-partum. In any case, foreigners under the age of eighteen will receive health care assistance in the same conditions as Spanish people.”
Neither the Minister nor the spokespersons of the Ministry have indicated how this change will affect the thousands of illegal immigrants who already possess health insurance cards. It is estimated that within a maximum period of two years, at least 150,000 illegal immigrants will be left without health insurance cards as a result of this reform. These people will not have the document renewed after the usual period of two years. Experts have raised concerns about the risks caused by a measure that threatens to clog up emergency hospital departments and hinder the fight against infectious diseases.
It would appear that the justification for this measure is demagogic on three levels:
Firstly, it follows the foul strategy (which, disappointingly, has been so successful with public opinion as we have just seen in the first round of presidential elections in France) that links crisis with the presence of immigration: this is a way of making us believe that the arrival and continued presence of immigrants triggered the crisis or, at the very least, contributed to and accelerated this process. While it is true that the crisis (and above all the neo-liberal model of leadership by the aforementioned Troika) has made times difficult for everyone, making us conjure up the scenes described by Dickens, it is difficult to deny that times are harder still for immigrants.
Secondly, as I have already pointed out, the justification employed is demagogic because this abuse, this wastefulness of the public healthcare system in Spain is not actually carried out by immigrants.
Thirdly, the most profound characteristic of this demagogy is that this message is aimed at public opinion (“we must cut back on the waste in the system provoked by immigrants”) and will have a stigmatising impact on immigrants, thus sowing the seed of institutionalised xenophobia.
The recognition that immigrants must have the right to healthcare as stipulated in Article 12 of the current Aliens Act (Organic Law 4/2000) takes a very positive approach to the consideration of a universal right which, as such, should be guaranteed for all human beings regardless of their administrative situation. According to the law, aliens registered in the municipality of their customary legal residence “have the right to healthcare assistance in the same conditions as Spanish people.” When the reform has taken effect, only those who can prove that they make a fiscal contribution in an adequate manner and as a legally residing immigrant will be in a position to benefit from these services. The only exceptions will be the emergency services, maternity services and childcare (anything else would be sheer barbarity).
Most of the response to this outrage comes from civil society players, such as the coordinator of bodies supporting immigrants or groups of immigrant associations. In a communiqué dated 23 April, such entities urged doctors to continue to assist people with no documents, appealing to the contemporary interpretation of the Hippocratic Oath.6“I will not allow considerations of age, illness or incapacity, belief, ethnic origin, sex, nationality, political affiliation, race, sexual orientation, social class or any other factor to come between my duties and my patient”. In a public announcement, the State Federation of SOS Racisme declared at least four main arguments for rejecting the reform:
1. It is a step backwards for the achieving of social rights by the immigrant population in this country. 2. The measure is unconstitutional in the light of rulings given by the Constitutional Court in 2007 against a similar attempt by the Partido Popular to restrict access to fundamental rights for illegal immigrants as a group. 3. Despite the gravity of the economic crisis, the reform cannot be used as a excuse to strip migrants of their rights. It entails a break with the principles of universality and equality, such as the right to access healthcare. 4. This measure, combined with others, places the current government in the wave of populism and institutionalised racism prevalent in other European countries, and will leave behind a trail of social exclusion and conflict that will end up “tarring” us all with the same brush.
This final argument, I must stress, is the most serious of all. It would appear that, unconsciously, the EU is incubating the serpent’s egg. Let us return to the example of the French presidential elections: if Le Pen received the backing of almost 20% of the electorate, this is largely because Sarkozy’s government cultivated the argument, as part of its single issue campaign, that immigration is a threat. These kinds of policies are responsible for sowing the seeds of hate, and not the presence of immigrants alone.
Javier de Lucas is Professor of Philosophy of Law and Political Philosophy at the Human Rights Institute, University of Valencia. Thanks to Isabel Adey for this translation.