Deportation Documents in Spain: Multiple (Social and Legal) Meanings for a Migrant in Transit

Guest post by Iker Barbero, Lecturer in Law at the University of the Basque Country. This post is the result of the work carried out within the research project entitled TRANSITEUS: The reception of migrants in transit in the Basque Country/Euskadi: diagnosis and proposals from a guarantee perspective (Universidad y Sociedad 19/05, UPV/EHU). A long version of this blog has recently been published in the Journal of Immigrant & Refugee Studies. This is the fifth post of Border Criminologies’ themed series on 'The Changing Landscapes of Immigration Detention' organised by Ana Ballesteros-Pena and Cristina Fernández-Bessa.

Just a few hours before, Mamadou had arrived in Irun, the last city before crossing the border between Spain and France. He had spent three months in the Canary Islands, in a reception centre where he had arrived after spending five days adrift in the Atlantic Ocean. In his small backpack he barely had any clothes and a plastic folder with "his papers". Among all the documents he kept one that said acuerdo de devolución (return agreement), since he had heard that they would ask him for it on his way to France. When getting off the regional train whose last stop goes several hundred metres into French territory, a couple of policemen from the PAF (Police aux Frontieres) jealously guarded the exit. It caught his attention that they only stopped boys like him (Africans). Those who looked like locals or Parisian tourists passed through the checkpoint unscathed. When his turn came, he immediately looked for that piece of paper that he had been told to show to the police. The French policeman did not stop for a second to read it. He directly squeezed it between his fingers and threw it rudely at Mamadou, who felt as if his soul had been squeezed. "You cannot enter France. Go back the way you came." Like other African boys, Mamadou was pushed back to the Spanish side, to Irun. As he looked out the window as the train once again crossed the Bidasoa River, which has marked the border between Spain and France since 1659, he wondered what could have gone wrong. He had shown the paper that said something like he had 30 days to travel without problems. Upon arriving at the shelter for migrants in transit run by the Red Cross in Irun, they asked him again to see if he had the return order. Again, the famous paper! This time it did help. He was considered a “migrant in transit” and was able to enter to rest and try to cross the border again the next day.

Like Mamadou, thousands of migrants and asylum seekers, after having reached the coasts of Andalusia, the Canary Islands and the Balearic Islands, embark on the journey to France, Germany or the United Kingdom, with hardly any belongings, but above all carrying the famous paper of the return order. As its name indicates, it is an administrative-police document that means that this person has been intercepted trying to enter irregularly through a place not authorized for border crossing (most are rescued at sea). The immediate consequence of this process is that the person can be returned almost immediately and by force. Therefore, it is one more of the tools available to the State for border control and deportation regime.

However, what is interesting about this type of document is that in practice they are not just papers that the police deliver to those migrants who have entered irregularly, but rather that the social practice transcends its punitive meaning, acquiring other meanings, connotations, and alternative uses depending on the moment. If we were to interpret public administrative documents following Max Weber, we would say that this document has no other use than what the legal system has formally attributed to it: immediate deportation. On the other hand, Foucault, in his different works, has criticized the constitutive power that modern bureaucracy generates in devices such as prisons, psychiatric hospitals or schools. Following this line, several authors (Julie Mitchell and Susan Coutin, Gastón Gordillo, Susan Helen Ellison…) have observed how legal documents such as legal titles, censuses or identity documents, understood as "graphic artefacts", have constituted true technologies of power due to their ability to categorize, make visible or monitor certain groups.

There is no discussion that return orders are administrative documents issued by police agencies. They are the ones who draft the facts constituting the infringement and, at the same time, give shape to their reading of the border crossing: a rescue on the high seas by a fishing or maritime rescue vessel, the number of people (men, women and children) who were traveling on the boat, the incidents (sick people, pregnant women or even deaths) as well as current issues such as the application of the anti-covid protocol. In addition, this document also includes the infringed legal precepts (art. 58 of the Spanish Immigration Law) and the obligation to be deported. The right to file an appeal within 30 days is also mentioned (the one that Mamadou thought was the permit to travel).

If we look at the figures for returns initiated in recent years, we see that the number increases proportionally to irregular arrivals by sea and that their initiation is carried out mainly during the initial detention (maximum 72 hours) in the CATE (Centre for Temporary Care for Foreigners) located in the Spanish provinces of the Mediterranean Sea (Andalusia and the Balearic Islands) and the Atlantic Ocean (Canary Islands). However, a curious fact is that the percentage of execution or materialization of the return is around 21% between 2015 and 2020. In other words, it is an "ineffective" procedure in terms of its original meaning, but it complies with the implicit function of marking that person as sanctioned.

It is precisely this identifying character that most attracts our attention, as the document itself, in addition to personal data such as name, surname, place and date of birth, even in the name of the parents; it also attributes a foreign identification number or NIE. With this number, the foreign person will be able to identify himself in the future in any immigration law procedure that he carries out before the administration. Therefore, a document that implicitly sought to sanction is generating a legal identity. Hence, it is also useful to determine identity in reception centres that do not depend on the Ministry of the Interior, but rather on the Ministry of Social Affairs and are managed by NGOs such as the CAED, the CETI or the centre itself for migrants in transit located along the territory. It is precisely in this geographical transit to countries in central and northern Europe where many migrants in transit are intercepted by the police in identity checks based on ethnic profiling. When asking for documentation, they show the only one they have: the return order. Since most of them are “undeportable”, they are immediately released. It is from this situation that the character of safe conduct is also attributed to this document. Not only migrants, but also social workers and officials, attribute the character of safe conduct to the thirty days that the document marks. However, from a formalist point of view, those 30 days mark only the term to appeal. It's the magic of legal consciousness!

Finally, I would also like to point out the regularizing nature of this initially sanctioning document. One of the procedures provided in Spain for obtaining the permit after an irregular stay is the so-called "arraigo" (social rooting?) which requires a continuous and de facto residence of three years. Generally, the residence period is usually demonstrated with the townhall registration certificate, but is there not a more official document than the one issued by the police itself, attesting that that person entered Spain on a certain date? In any case, we must say that it is necessary to articulate some type of identification document as a migrant in transit and that does not have a sanctioning police nature. It is a mandate of the European Return Directive itself (which we have criticized so many times), which explicitly mentions the need to address the situation of third-country nationals in an irregular situation who cannot be expelled and who wish to transit and reside with rights in European territory without fear of being expelled.

In short, in this post, I have analysed a socio-legal situation with particular relevant conclusions: police bureaucratic documents are not inert objects, but remain active generating multiple effects over time, even radically transforming their original meaning to become an identification document, of categorization as a migrant in transit, and that can even grant a legal and safe status.

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