'No More Blablabla'. We Are Here and the claim to human rights. Complaint No. 90/2013 at the ECSR.

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“No More Blablabla”

We Are Here and the claim to human rights

Complaint No. 90/2013 at the ECSR

Sinead Wendt

sinead.89@gmail.com Student number: 5884810 rMA Cultural Analysis University of Amsterdam Master thesis Supervisor: dr. M. L. Beauchamps Second reader: dr. N. Roei 27th_{of January 2016} 22915 Words

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For We Are Here the group that never gives up

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The suffering of men must never be a silent residue of policy.

It grounds an absolute right to stand up and speak to those who hold power.

- Michel Foucault

The danger is that a global, universally interrelated civilization may produce barbarians from its own midst

by forcing millions of people into conditions which, despite all appearances,

are the conditions of savages.

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Acknowledgments

Writing this thesis would never have been possible without the incredible energy and hope I got from We Are Here. Where I see the system closing on these courageous individuals again and again, excluding them, denying them, refusing them and affirming how the state does not want these individuals to exist (on its territory), the brave men and women of We Are Here keep seeing hope, keep seeing possibilities for change.

Special thanks to Adam and Abderisaac, for all the tea we drank and the wisdom you share with me, Salim for sharing your ideas, thoughts and discussions, Hashim for keeping patience and always being in for a chat, Farhaan and Abdallah for your delicious cooking and inviting me to join in, even at times of greatest need, and lastly, thank you Yusuf for your support and warm laugh.

Thanks to my dear friends Tanja Hendriks, Laura Fischer, Jaap Oosterwijk, Rosa Fransman and Jelle Groen for bearing with me, supporting me at any time of the day (and night), proof-reading what I dared to present to you and checking my representation of what happens in our world. Special thanks to you Tanja for being my editor-hero.

Thank you Marie Beauchamps for your supervision and feedback, indefatigable reading my analyses, doubts and observations, encouraging me to continue writing.

Thanks to my family for their patience, especially my mother, for believing in me regardless of the direction I take, come what may.

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List of Tables and Figures

Table 1:

Dublin Regulation ... 3 Table 2:

A Note on Words ... 8 Figure 1:

Scheme of Human Rights System in Europe ... 10 Table 3:

Escape-card in the system: No-fault permit ... 28 Figure 2:

Dutch juridical system considering requests for help of undocumented refugees ... 43 Table 4:

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List of Abbreviations

BBB

BSN

Bed Bad Brood – Bed Bath Bread

Abbreviation used by Dutch media and politicians to refer to (all kinds of) unconditional shelter for undocumented refugees

Burgerservice nummer – Citizen service number

Unique number every Dutch citizen has so he can be identified by the state

CEC Conference of European Churches

International NGO, collection of various European churches

COA Centraal Orgaan Asielzoekers – Central Agency for the Reception of Asylum Seekers State institution responsible for housing people seeking asylum in the Netherlands

CRvB Centrale Raad van Beroep – Administrative High Court Dutch High Administrative Court

DT&V Dienst Terugkeer en Vertrek – Repatriation and Departure Service

State institution created in 2007 responsible for deportations of undocumented refugees

ECHR European Court of Human Rights

Court of Council of Europa protecting human rights as inscribed in ECHR

ECHR European Convention of Human Rights

Convention concerning civil and political human rights, signed in 1950

ECSR European Committee of Social Rights

Committee of Council of Europe ensuring human rights as laid down in ESC

ESC European Social Charter

Charter concerning social and economic human rights, signed 1961, revised in 1996

IND Immigratie en Naturalisatie Dienst – Immigration and Naturalisation Service State institution responsible for judging asylum claims in the Netherlands

RvS Raad van State – Council of State

Council advising state in legal issues, highest administrative court

VBL Vrijheidsbeperkende locatie – Liberty-restricting location

State-run location where undocumented refugees can be sheltered for max. 12 weeks while actively working on their own expulsion. Access to a VBL is only possible when given a special measure according to Article 56 of the Aliens Act, restricting the freedom of movement of the refugee concerned.

VNG Vereniging van Nederlandse Gemeenten – Organisation of Dutch Municipalities Collection of Dutch municipalities

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Timeline

2012

September 04: We Are Here encampment, garden of deacon 25: We Are Here encampment at Notweg (Osdorp) October

November 30: Eviction of Notweg

December 02: We Are Here moves into Vluchtkerk

2013

17: CEC lodges complaint No. 90/2013 at ESCR against how Netherlands treats undocumented refugees January February March April 03: State argues against

admissibility of complaint May 31: Eviction Vluchtkerk, We Are Here moves to Vluchtflat 14: CEC asks immediate measure June

01: ECSR declares complaint

admissible July 15: Part of We Are Here opens Vluchtpark

August 02: State responds to immediate

measure request

27: State responds to complaint

September

25: Vluchtpark evicted, We Are Here in Vluchtflat 31: We Are Here has to leave Vluchtflat

25: ECSR immediate measure October 02: We Are Here moves into Vluchtkantoor 13: Response CEC to state November

December 02: Eviction of Vluchtkantoor.

We Are Here separated: part is allowed access to shelter of the municipality in an old prison: Vluchthaven. People not allowed in are on the streets.

13: People not allowed into Vluchthaven open Vluchtgarage

2014

30: Response state to CEC January February

March

April 13: Vluchtgarage is full, opening of Vluchtmarkt May

June 01: ECSR decides in Complaint

No. 90/2013: The Netherlands violates human rights of undocumented refugees

July

07: Eviction of Vluchtmarkt

09: Eviction Vluchthaven, Vluchtgarage still full 10: We Are Here moves to Vluchtopvang

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August 16: We Are Here moves from Vluchtopvang to Vluchtschool 23: We Are Here moves from Vluchtschool to Vluchtgebouw

We Are Here splits up again, Smaragdgroep moving from church to church

September October 10: Publication of the decision of

ECSR November

15: Opening night-shelter A'dam 17: Court of Amsterdam: preliminary injunction

December 04: Smaragdgroep moves into Wittenberg

2015

January

February 20: Eviction Vluchtgarage forbidden by Court of Amsterdam March 31: Eviction Vluchtgarage allowed by Higher Court

15: Resolution Committee of Ministers. Crisis government. 22: Presentation BBB-agreement government

April 13: Eviction of Vluchtgarage, group on the streets 15: We Are Here moves from streets to Vluchttoren

08: Court of Amsterdam:

municipality obliged provide night-shelter to all undocumented refugees

May

29: Eviction of Vluchtgebouw, temporary to Vluchtloods June 04: Move from loods to Vluchtgemeente, currently living here.

July August

September 30: Eviction of Vluchttoren, temporary to Vluchtloods October 16: Smaragdgroep leaves Wittenberg

25: We Are Here moves from Vluchtloods to Vluchtbank, Smaragdgroep temporary in Vluchtloods

30: Smaragdgroep moves to Vluchtmaat, currently living there 26: Administrative High Court

and Council of State rule:

no obligation on the state to offer shelter other than in its return centers. These rulings destroy all previous jurisprudence.

November 15: We Are Here moves from Vluchtbank to Vluchtkei

December

2016

January 13: Eviction of Vluchtkei, this group finds temporary shelter in Vluchtloods again, looking for a new place

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1

Introduction

“We Are Here 24/7!”

With this claim the refugee collective We Are Here reacted to the opening of a night-shelter for undocumented refugees in Amsterdam in December 2014. Amsterdam seemed to finally give in. It had seen itself confronted with the group of a few hundred rejected asylum seekers dwelling the streets for the past two years, squatting building after building since there was no shelter for them. Providing shelter to undocumented refugees has explicitly been forbidden to municipalities by the national government in 2007. Persons without a residence-permit, but in need of shelter, have to turn to return centers (called VBL) for help, getting shelter on the condition that they would work on their departure from the territory (Bestuursakkoord 2007). Not cooperating in returning consequently means no access to shelter. In practice people thus find themselves on the street.1

Since 2011, undocumented refugees in the Netherlands have been protesting against the way in which they are treated: not allowed to stay, unable to go, trapped in a legal limbo, as they are denied access to the most basic needs.2_{We Are Here is the refugee} collective which grew out of this protest, taking shape in Amsterdam September 2012 as an encampment in the garden of the deacon. After that, the group has migrated (as some refugees call it) through the whole city, being evicted from their squats over and over again, as you can see in the time line provided in this thesis. At the moment of writing around

250 people are living at three squats in Amsterdam, at least one of the groups knows it has to find a new place in the next few days. In addition, several refugees have found private shelter, for instance through NGO’s, churches, individual supporters, some are in aliens detention, others back in the asylum system and have a right to shelter again.

1 People are only allowed to reside in these centers called VBL (vrijheidsbeperkende locatie, liberty-restricting location), when they are given a special measure according to article 56 of the Aliens Acts. This measure can be issued by the Ministry of Justice and Safety, who delegated that ability to the Repatriation and Departure Service (DT&V) created in 2007 to ensure that people without a permit to stay in the Netherlands leave. People not given such a measure are not allowed in these centers and thus cannot get any form of shelter. People not leaving within the maximum of 12 weeks are no longer allowed to stay and (re)turn to the streets.

2 Around the same time, similar protests started in other cities in Europe, such as the collectives Oranienplatz Berlin, Lampedusa in Hamburg and Refugee Protest Camp Vienna. In the past many more protests have occurred, such as (and this list is not complete) the sans-papier movement in France in the 90s - this movement has branches in Belgium at the moment, where six different groups are united under “La Coordination”. At Calais, France, around 1999 an encampment known as “the Jungle” arose, where refugees still unite.

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2 Living in Amsterdam it is almost impossible to not know about We Are Here, as the group protests in the streets and has received a lot of attention in local and national media. I became personally involved with the collective in October 2014, when I started volunteering in a newly constituted “buddy-project” at the Vluchtgarage, one of the four locations at that time. In this project new supporters were linked to men of the group3_to assist where they want help, which varies from finding a doctor, to helping in legal procedures, as well as just visiting and drinking tea to keep company. I started visiting the men in Vluchtgarage regularly, followed court cases that came up, helped moving, but most of all kept showing up, of course not only talking with the men I helped on a regular basis, but everyone else present and in for a chat. This experience gave me an insight in daily life as well as the difficult juridical and political situation undocumented refugees in the Netherlands find themselves in, which prompted me to write this thesis.

We Are Here is a specific group, but represents a much bigger problem. Engin Isin theorizes groups as potentially political, differentiating between real and hypothetical groups.4_{Real groups are the “practical and political work of organizing and mobilizing”,} whereas hypothetical groups are the result of a symbolic struggle over classification (Being Political, 27). This difference is present in the We Are Here case: We Are Here is a real

group, organizing and mobilizing as a political collective, whereas they fight for the cause of the hypothetical group of undocumented refugees in general. Groups can only exist through representation, Isin argues, which means that people have to identify as members and recognize spokes persons voicing the opinion of the group, representing it (Ibid., 28). This means that the voice of the individual identifying himself, or being identified by someone else as a member of a group, is not automatically the voice of the group.

Now when it comes to We Are Here it actually is not that easy to point out the

group, it is a very flexible and fluid collective that seems not to define narrowly who is part of the movement and who is not. Both refugees and supporters appear, disappear, and re-appear. Some refugees get arrested and are in detention. Some can go to an asylum center when their case is reopened, others have their application rejected and are on the streets. Some go to another country, some are deported back to the Netherlands. Some people just go and never return, others come without being asked where they were before. This also holds for supporters; some have been there from the start of We Are Here, others came later out of different interests, and other people disappear for a shorter or longer while. The influx is great, making it difficult to define who is part of We Are Here.

3 We Are Here considered the Vluchtgarage unsafe for women, who were housed at different locations. 4 ‘Real’ is not to be understood as qualitatively better than ‘hypothetical’, it is a methodological difference.

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3 This can be perceived as a problem, trying to define the boundaries of the collective, excluding those who are not part of it, but the fluidity of the group seems to be a fundamental part of it. I follow Engin Isin and Greg Nielsen in theorizing this, as they “propose to shift the focus from the institution of citizenship and the citizen as individual agent to acts of citizenship – that is, collective or individual deeds that rupture socio-historical patterns.” (Isin and Nielsen, 2). This means that the individual men and women of We Are Here become, in an ironical sense, less of a starting point, the theoretical focus is on how specific acts rupture established patterns. I say this is ironic, because without the individual men and women We Are Here would not be there in the first place.

The name of We Are Here bears their message: that they are here, even though they are supposed not to be. The collective makes its presence known in various ways: protesting in the streets, lobbying, they have a website, a Facebookpage, cooperate in art-projects, and create projects of their own.5_{They use various chants to voice this message,} such as “Geen man, geen vrouw, geen mens is illegaal” (“No man, no woman, no human is illegal’”), “Remove our fingerprints”, and “We are here, we will fight, for freedom of movement is everybody’s right” These chants are broad and ground mostly in a discourse fighting illegality as a characteristic of human beings: no one ís illegal, illegality is a construct that needs to be destroyed. We Are Here argues for the applicability of human rights to everybody – or every body, as the body has literally become a locus of control in the current European migration system, by taking fingerprints, registering them in the European system Eurodac to control where a person should, due to the Dublin Regulation, ask asylum. By asking for a removal of fingerprints, We Are Here can be interpreted as fighting this practice of taking fingerprints in itself. However, this chant is, as most of the claims, ambiguous and can also

be interpreted as removing their

fingerprints from the database, so that at least these specific individuals can move to a different country to apply for asylum without being deported back to the Netherlands

5 Here To Support was created quickly after We Are Here was formed and produces various projects of We Are Here, such as Escape Tours, the play Labyrinth, a cookbook and the We Are Here Academy. All projects are explicitly part of the protest of We Are Here. Cf. http://heretosupport.nl/

Dublin Regulation

The Netherlands signed the Dublin Agreement, regulation migration on a European level. This agreement rules fingerprints should be taken when someone asks asylum, saving these data in Eurodac. As the agreement rules that one can ask for asylum in only one of the member-states, preferably the state where the person enters Europe, fingerprints are checked in this database (Chapter III of the Dublin Regulation 2013 is entirely dedicated to these rules).

Although the rules for where to hand in an application for asylum are unified in Europe, the asylum policies and practices differ per country, which means that chances of getting asylum differ per territory. The same holds for the living conditions for people awaiting or given a permit to stay. Officially people should be deported to the country where they were first registered when they are caught in another country in the EU, but for instance the Netherlands stopped deporting people to Greece in 2009, in Germany the deportation of some Somalian refugees back to the Netherlands was forbidden in 2014 because of the bad conditions for undocumented refugees in this country.

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4 Translating the general claims of We Are Here into concrete goals might be exactly what I should do, because it destroys their potential strength. We Are Here does not work with a concrete, limited list of demands, but continuously makes claims which can be summarized in one returning chant: “We Want Normal Life!”. On the one hand the refugees want recognition within the existing system as a refugee, permission to stay and to start building a life. On the other hand, We Are Here challenges the current system and wants it to change. It challenges the Immigration and Naturalization Service (IND), the institution responsible for granting asylum, its logic and practice, which lead to rejections of people who should, according to We Are Here, not be rejected – that various refugees of the group are granted asylum later on only strengthens the idea that the decision making procedure of the IND is at least questionable. However, We Are Here not only focuses on the permission to stay, the collective simultaneously challenges daily life in general, the exclusion from education, from work, from housing, from shelter, from help. They ask to be treated as humans, regardless of their residential status.

We Are Here communicates various and ambivalent messages. I think it is productive to break the claims down to on the one hand a long-term solution, working towards a stable and secure future, and on the other hand a short-term solution, wanting a change in daily life right now. This is explicitly a simplification of the ambivalence We Are Here communicates, the long- and short-term are not necessarily in line with each other, and within We Are Here, discussions about whether a short-term solution like shelter should be strived for at all, occur daily. But while fighting for a cause caught under the flag of “normal life”, daily life needs to be taken care of: people have to live, to eat, to drink, to sleep. In this thesis I focus only on the short-term, as the Amsterdam night-shelter, where registered people are welcome between 17:00pm and 9:00am, can be regarded as a short-term solution.6 _{But why did the municipality suddenly open this shelter? Why did it ignore} the official prohibition to help undocumented refugees?

The municipality of Amsterdam offers a multifaceted discourse explaining why it offers night-shelter, better known as BBB (Bed, Bath and Bread):

De dagelijkse praktijk op de straten van Amsterdam toont aan dat het asiel- en vreemdelingenbeleid van de rijksoverheid niet sluitend is. Om die reden spant de gemeente Amsterdam zich al enkele jaren in om humanitaire basisopvang mogelijk te maken voor uitgeprocedeerden die geen verblijfsstatus krijgen, maar niet kunnen terugkeren of zeggen niet te kunnen terugkeren. (“Verdere professionalisering opvang”)

6 Initially the shelter was open for 12 hours only, from 20pm till 8am, but the municipality decided on the opening times of 17pm till 9am during the hearing of a court case on the 27th_{of November 2014.}

Autumn 2015 the rules changed again, opening at 16:00 and dividing places according to a “first come first served” principle, as there was a shortage of beds.

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5

The daily practice in the streets of Amsterdam shows that the asylum- and aliens policy of the national government is not all-encompassing. For that reason, the municipality of Amsterdam has for several years been trying to enable the creation of a humanitarian basic shelter for people who are out of procedure who cannot get a residence permit, but who cannot return or say they cannot return.7

First a dichotomy is sketched between practice and policy. The policies for asylum and aliens, which are supposed to be “sluitend”, all-encompassing, without cracks individuals can fall through, turn out in daily practice to be anything but conclusive, consequently leaving groups of people to dwell in the streets. This is not only a discrepancy between policy and practice though, it is, second story, a struggle between the local and the national government: Amsterdam sees the national system failing and does its utmost to make basic shelter for people who are falling through the cracks possible.8_{Why this shelter was not} possible the years before is not explained, but that Amsterdam is as a David fighting the Goliath of the state is at least implied. A third story is one of a concerned Amsterdam wanting to offer “humanitarian basic shelter”, bringing in a discourse of human rights.

Remarkably absent in this press release are the people the municipality of Amsterdam says to be concerned about, united in We Are Here and collectively making their daily reality visible in the city since 2012. This means that a fourth story, the night-shelter as a reaction to this protest, either (indeed) out of humanitarian concerns, or because, story number five, it is showing a political problem that should be hidden, remain untold.9_{A sixth story also remains concealed: the night-shelter as a reaction to a} (inter)national juridical development, where the Netherlands is found by the European Committee of Social Rights (ECSR) to be violating human rights by not providing shelter to undocumented adults. Yet, it is this sixth story, concerned with international law, legal interpretations and political reactions, which actually stands at the basis of the night-shelter. When an international committee holds that human rights are violated, something needs to change in policy and practice to stop this violation, such as opening a shelter so that people do not have to sleep on the streets anymore.

7 Unless mentioned otherwise, official translations were not available and are provided by myself.

8 Cf. Kos et. al. “Policies of Exclusion and Practices of Inclusion” (2013) for an analysis of this struggle between a local and the national government in the Netherlands.

9 Willem Schinkel sees especially in the detention of refugees a strategy of nation-states to legitimize their existence. He goes as far as stating: “By warding off irregular immigrants by means of a form of territorial exorcism, the fundamental (not superficial) problem of stateless people inside the state – a continuous negation of the authority of the state – is countered.” (796). States detain undocumented refugees to counter the fundamental problem of undocumented refugees inside that state, then the sole presence of these people is considered to negate the state’s authority. It is these people who make themselves visible in We Are Here, this visibility thus in itself can be considered to be a problem for the state. Detention, however, is no solution – most members of We Are Here have been in aliens detention (multiple times), but were released. The night-shelter can function as an alternative to make undocumented refugees invisible again, thus to restore the idea of being in control as a government.

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6 November 2014, the European Committee of Social Rights (ECSR) published its decision (of July 2014) in Complaint No. 90/2013, CEC vs. the Netherlands. ECSR held that

the practice and policy in the Netherlands of the treatment of undocumented refugees violates human rights: people should have unconditional access to shelter, food and clothes. In the Dutch context, where undocumented refugees are explicitly excluded from such facilities, the ruling was very controversial. Politicians as well as judges were unsure how to interpret or implement this decision in the national context. The power of this decision thus became immediately disputed by the national government, which declared the decision only an advice and waited for the Committee of Ministers to have its say (Teeven and Van Rijn). Amsterdam, however, did not wait and opened its night-shelter.10

At the basis of the Amsterdam night-shelter are thus not only a story of humanitarian concern, of rebellion against the national government, or of a sense of responsibility, there is a legal story as well, made concrete in the decision of the ECSR. In this thesis I unravel this last story, because the complaint of the ECSR coupled with its aftermath in Dutch politics and courts, provide a story about the treatment of undocumented refugees in the Netherlands, that needs to be told. At the basis stands a seemingly basic question: should undocumented refugees be helped, or is it okay to exclude them from all facilities, as has been the policy for the past years? This question has been addressed by We Are Here from 2012 onwards, but is asked at the European level with the complaint lodged at the ECSR. Focus in national politics (and courts) has been mainly on the binding character of such a decision, evading the more fundamental question whether or not a state is allowed to exclude people from basic needs.

I think going back to this fundamental question by diving into the documents which form Complaint No. 90/2013 might help in understanding the current situation. This calls for a close reading of the complaint lodged at the ECSR. What was this complaint actually about? Which discourses were used and which realities created to consider and frame this question? What happened in the Dutch political and juridical context afterwards? For almost a year there was great confusion in national politics and courts concerning how to interpret the ECSR-ruling: do undocumented refugees have rights? (How) Did the juridico-political position of undocumented refugees develop after the ECSR-ruling? What does this development mean for the people concerned?

10 Amsterdam is not the only city who changed practice, many municipalities opened shelters, most of them even accessible day and night. In Groningen, for example, people are staying in a former hotel with two persons in one room and given professional aid in working on a future. The Hague has been offering shelter in the Pauluschurch, Leiden recently opened a new location (Cf. Besselsen). In this thesis I focus on the situation in Amsterdam, because this is the city where We Are Here is mostly fighting its fight.

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7 In chapter one I focus on the complaint of the Conference of European Churches, who tries to improve the lives of undocumented refugees in the Netherlands by making claims based in human rights. With Arendt and Agamben I approach, contextualize and problematize the concept of human rights, ending at the concept of bare life: the body excluded by the sovereign, without the possibility of being political. Agamben rejects claims based in human rights as reaffirming the constitution of bare life. Does CEC affirm an image of undocumented refugees as bare life? Or is there a productive ambiguity in human rights claims, especially in the portrayal CEC gives of the protest of undocumented refugees with We Are Here?

In chapter two I turn to the response of the Dutch state to this complaint. Based on the migration and deportation policy, the state sees no problem at all. I explore the states’ discourse, which focuses on the undocumented refugee as an actor with choices and responsibilities. With help from Foucault I try to understand where such a discourse is coming from, reconsidering the concept of sovereignty in the process.

Chapter three turns from the paper world the state sketches to the everyday lived reality of undocumented refugees. First I dive into the practice of the asylum and deportation system to show how the perfect system the state sketches actually has many cracks. Second I turn to the assessment of the ECSR of Complaint No. 90/2013, as in the decision, the ECSR weighs the discourses and arguments of both CEC and the state. What does the ECSR conclude? Does it go for an image of bare life? What does it mean for the juridical position of undocumented refugees to be considered as a rights-bearing subject?

With the decision of the ECSR I have reached a point where two conflicting discourses have become clear, are considered juridically and the conclusion is clear: the Netherlands violates the human rights of undocumented refugees. However, this decision is only the start of a new twist to a story that has not ended yet. Politicians did not dare to take decisions on whether or not to change policy and practice, municipalities started opening all kinds of shelters, courts evaded the question whether the state has an obligation towards undocumented refugees and guaranteeing basic needs. This is the aftermath I explore in the last chapter.

While unfolding and interpreting the juridico-political discourses that are told, the political games that are played, and the interpretations of the ECSR-ruling that are offered in national and local politics as well as in courts, in the end my concern is concrete. Returning to We Are Here the question is: what did the ECSR-ruling bring the collective? Until today this group, representing only a fraction of the individuals in the country who

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8 fell through the cracks of the asylum procedure, finds itself on the streets, at least during the day. In this thesis I tell the story of how the ECSR-ruling has been interpreted in Amsterdam and national courts, making night-shelter the norm. But is night-shelter, in the end, the only possibility of the ECSR-ruling for We Are Here? What does this ruling and its aftermath make clear about the juridical position of We Are Here? Is there any potential with this decision for the political claims of We Are Here? My main research question therefore is: What could the potential of the decision of the ECSR be for the politico-juridical position of We Are Here?

A Note on Words

My choice of words is salient, as the people concerned in this thesis are referred to by many names. With “undocumented” I connote that people are in the Netherlands without a permit to stay, often (but not always!) resulting out of a lack of documents to prove their identity, either because they never had these documents, lost them, are not given documents by embassies or their documents are not considered valid by the Dutch Migration Service IND.

“Refugee” is a legal concept defined in the Geneva Convention of 1951, referring to people fleeing persecution in their country of birth on the basis of various grounds. The concept is criticized by for instance the scholar Kukathas as being too limited and reducing people to paper worlds in the practice of the asylum procedure (Kukathas). In current medial and political discourse, “refugee” is contrasted with the concept “(economic) migrant”, to differ between people who are believed to flee war and want to save their lives, and people who “only” come to “the West” to get a better life (Cf. Malone, Ruz and Vorberg).

In the Dutch context, people in the position of the individuals united in We Are Here are often referred to as “illegals” or “uitgeprocedeerden”, which means “out of procedure”. In migration studies, the term “illegal” is refuted by scholars, because it connotes criminality and the idea that the existence of people is against the law. Instead, they use the term “irregular”, preferably “irregularized”, to connote the juridico-political process which labels certain people as “illegal” or not conforming to the law (Cf. Squire, 4; Nyers, 189).

We Are Here refuses the label “illegal” and presents itself explicitly as a refugee collective. I add “undocumented” to differentiate between people who are in procedure, awaiting the decision on their asylum application, people who received a permit to stay, and people whose application was rejected, whose access to shelter accordingly was terminated and who are, when they cannot leave the territory, left to themselves to survive. Sadly, people currently awaiting a decision might in the future end up in this position without shelter and help.

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9

1: Claim-making on the basis of human rights

Conference of Churches lodging Complaint No. 90/2013 at ECSR

“Treat us as humans!”

What does it mean to be treated as a human? Who is human? And what treatment can a human expect? These questions are underlying the complaint No. 90/2013, CEC vs. the Netherlands, raised by We Are Here over and over again. However, before turning to this

specific case, the ECSR and its place as and in the human rights system in Europe needs to be contextualized. Second, I present a problematization of the concept of human rights in itself, starting with Arendt and her observation that human rights only apply to citizens, followed by Agamben who follows this observation and coins the concept of bare life. What is bare life? What does it mean to be produced as bare life? What juridico-political positions are possible within this concept? Does CEC portray undocumented refugees in the Netherlands as bare life? How does CEC present their juridico-political position?

ECSR and/in the European human rights system

The ECSR is a Committee judging how policy and practice of states is in conformity with the European Social Charter (ESC), a treaty of the Council of Europe setting out every day human rights, such as housing, health and employment. It was adopted in 1961, revised in 1996, and is considered to complement the European Convention of Human Rights (ECHR). The ECHR was adopted in 1950 and has been revised for the last time in 2010. This convention is rooted in the Universal Declaration of Human Rights (1948). Where the ECHR is said to guarantee civil and political rights, the ESC focuses on social and economic rights and is regarded as the counterpart of the ECHR (Akandji-Kombé, 2)

The Dutch state signed these three documents aimed at regulating human rights, which means it commits itself to respecting the rights formulated in it.11_{International} committees/courts can judge whether states are in conformity with the treaties they signed. The ECSR has the authority to control conformity with the ESC. Originally ECSR had one tool to work with: states had to submit reports every two years, with which the Committee would control the conformity of that state with the Charter (Shelton, 103). In 1998 a second tool was created: the Collective Complaint Procedure. This procedure enabled a

11 Interesting with the ESC is that states specify which of the provisions they subscribe to, which means every state has its own combination of articles to adhere to (Cullen, 63).

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10 limited list of entitled organizations, many international NGO’s, to lodge a complaint at the ECSR (Cullen, 63 and “Organizations entitled to lodge a complaint at the Committee”). The Conference of European Churches is one of these NGO’s that can file a complaint, making the ECSR look into the situation in which the Netherlands is said to disrespect the ESC and thus violate human rights.

The Collective Complaint Procedure, and the ECSR in general, are criticized by scholars on various points. The first is the limited range of actors that can lodge a complaint; only appointed organizations, mainly NGO’s, can do so (Shelton, 104; Cullen, 66). This limits the accessibility and possibilities of people to ensure rights. The second criticism concerns the collective character of the complaint; individual cases are rejected, although organizations can bring in individual cases as evidence of their complaint (Cullen, 66). Individuals can turn to the European Court of Human Rights, established to protect human rights as laid down in the European Convention of Human Rights (Shelton, 123).

A last criticism concerns the power of the European Committee of Social Rights: it creates jurisprudence regarding the interpretation of the provisions of the European Social Charter, but the decisions are, unlike the rulings of the European Court of Human Rights, not legally binding (Cullen, 66; Akandji-Kombé, 5, Sâmboan, 229). After the ECSR rules about the conformity of a state with the European Social Charter, the Committee of Ministers that should give recommendations to that particular state (Cullen, 65). Accordingly, ultimately the 47 ministers of foreign affairs, united in the Committee of Ministers, have the last say – not the ECSR. . This means legal interpretations are directly intertwined with politics (Cullen, 63; Shelton, 104).

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11 Apart from these limitations, an undisputed strength of the ECSR is that it considers not only law, but also the practice in a state when investigating whether human rights are being respected: “For the Committee, the Charter is ‘a human rights protection instrument’ whose ‘aim and purpose … is to protect rights not merely theoretical, but also in fact.’” (Akandji-Kombé, 3). This quote stems from the first decision in 1998 and emphasized as fundamental for ECSR (Cullen, 71). It shows how law should have an effect in practice, thus leaving a world of paper and being concerned with daily reality.12

In the context of this thesis, the explicit limitation of the scope of the ESC should also be considered. The Appendix to the Charter explicitly mentions whose rights are protected, and apparently human rights are not for every human, as undocumented persons are not considered to fall under the scope of the Charter.13_{Explicitly excluding them from} a charter regulating human rights implies that people are not considered to (fully) count as human – or at least not like the people whose rights are protected by this charter. However, the ECSR itself contests this limitation and in the current complaint extends the personal scope of the Charter, including undocumented adults. The ECSR thus shows how it is not only concerned with rules and regulations, but considers the treatment in daily life of people in the state considered. On paper, however, these humans remain in principle excluded from protection of the human rights as laid down in the Charter, which raises the question: human rights for whom?

12 To this effect, the possibility of requesting an immediate measure is introduced in 2011, enabling complainants to ask for measures “the adoption of which seems necessary with a view to avoiding the risk of serious irreparable injury” (Rule 36 of the ECSR). Such a measure is exceptional, but its possibility shows the importance of respecting human rights not only in theory, but especially in practice.

13 “Scope of the Revised European Social Charter in terms of persons protected

1. Without prejudice to Article 12, paragraph 4, and Article 13, paragraph 4, the persons covered by Articles 1 to 17 and 20 to 31 include foreigners only in so far as they are nationals of other Parties lawfully resident or working regularly within the territory of the Party concerned, subject to the understanding that these articles are to be interpreted in the light of the provisions of Articles 18 and 19.

This interpretation would not prejudice the extension of similar facilities to other persons by any of the Parties. 2. Each Party will grant to refugees as defined in the Convention relating to the Status of Refugees, signed in

Geneva on 28 July 1951 and in the Protocol of 31 January 1967, and lawfully staying in its territory, treatment as favourable as possible, and in any case not less favourable than under the obligations accepted by the Party under the said convention and under any other existing international instruments applicable to those refugees.

3. Each Party will grant to stateless persons as defined in the Convention on the Status of Stateless Persons done in New York on 28 September 1954 and lawfully staying in its territory, treatment as favourable as possible and in any case not less favourable than under the obligations accepted by the Party under the said instrument and and under any other existing international instruments applicable to those stateless persons.” (ESC, Appendix).

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12

The battlefield of human rights

When considering a complaint lodged at the ECSR, it is immediately clear that we are working in a context of human rights. A call upon human rights may at first glance appear self-evident and require no further explanation: then every human has rights, right? However, who counts as human? Which rights does a human have? And what happens when rights are not respected? In The Origins of Totalitarianism Hannah Arendt famously

showed how the Rights of Man, as declared in 1789, turned out to be the Rights of Citizens only. They were considered to be inalienable, the idea of a human being without rights was an absurdity. However, in the 20th_{Century, people without citizenship found} themselves rightless and outside the pale of law. This is a fundamental problem for Arendt, which she characterizes as follows:

The prolongation of their lives is due to charity and not to right, for no law exists which could force the nations to feed them; their freedom of movement, if they have it at all, gives them no right to residence which even the jailed criminal enjoys as a matter of course; and their freedom of opinion is a fool’s freedom, for nothing they think matters anyhow. (296)

Outside the pale of law, where people are not citizens, there are no human rights anymore. Human rights can be translated into a right to live, made concrete in getting food, a right to have a place in the world, and a right to express oneself. Arendt emphasizes especially the right to opinion, which brings her to the essential point for every human: having a place in humanity, the possibility to speak and be heard. This leads to her famous statement “the right to have rights” – without the right to have any rights, it does not make sense to talk about human rights to start with.

Part of the problem of the failure of human rights to apply to humans who were no (longer) citizens of any nation, was the absence of an authority guarding rights:

The Rights of Man, after all, had been defined as “inalienable” because they were supposed to be independent of all governments; but it turned out that the moment human beings lacked their own governments and had to fall back upon their minimum rights, no authority was there to protect them and no institution willing to guarantee them. (291 - 292)

A declaration of rights turns out to be meaningless when there is no authority to enforce respect of these rights. People’s rights can be violated, but recognition of this violation stay out when there is no authority to protect people, no institution willing to guarantee human rights. This situation seems obviated with the declarations of human rights after the Second World War, as institutions were appointed to safeguard these newly declared rights. The ESCR was appointed to supervise the compliance of member-states with the ESC.

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13 Indeed there now is an institution willing to guarantee minimum rights, but it is

questionable to what extent this authority can protect them. The ECSR’s instruments are

reports on states who signed the Charter and decisions in complaints made against a specific state. When a state is found to be violating the Charter, it is expected to change its legislation and/or practice, but the ECSR has no tools to enforce this. Decisions of the Committee are not considered to be legally binding, which means that states can in practice continue to violate human rights (Samboan, 229; Cullen, 75). The only instruments to prevent or change such violations are decisions and recommendations, asking a state (through the Committee of Ministers) to change its policy and/or practice. In the end, it depends on a state’s willingness to actually change policy and/or practice to prevent the violation of human rights, a willingness that is, as this thesis argues, not always present.

Arendts analysis and criticism were made as the United Nations worked on the Universal Declaration of Human Rights. Arendt is very critical regarding such declarations:

[t]he right to have rights, or the right of every individual to belong to humanity, should be guaranteed by humanity itself. It is by no means certain whether this is possible. For, contrary to the best-intentioned humanitarian attempts to obtain new declarations of human rights from international organizations, it should be understood that this idea transcends the present sphere of international law which still operates in terms of reciprocal agreements and treaties between sovereign states; and, for the time being, a sphere that is above the nations that does not exist. (298)

For Arendt, the right to have rights, which for her is the fundamental human right at stake, is not something that can be guaranteed in declarations or law. This right transcends law and treaties, is something above single states, concerning the whole of humanity. However, how to ensure belonging to humanity, other than through a sphere above the nations laid down in international law, she does not make clear.14

From human rights to bare life

Giorgio Agamben subsequently continues Arendts problematization of human rights. He thinks that the link, as described by Arendt,at between rights-of-man and the nation-state should be pursued in order to grasp the phenomenon (and for Agamben fundamental problem) of human rights. In his words: “it is time to stop regarding declarations of rights

as proclamations of eternal, metajuridical values binding the legislator (in fact, without much success) to respect eternal ethical principles, and to begin to consider them according

14 Maybe insurance is not what I should look for since humanity for Arendt, as is her main argument in her famous book The Human Condition, fundamentally depends on building communities together, creating public space where it is possible to speak and be political (Owens, 576). In the public sphere reality is constituted between people, but what if someone is not recognized as speaking? Can there be an insurance that speech is listened to, audible?

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14 to their real historical function in the modern nation-state.” (127). Declarations of rights are considered to aspire to metajuridical, eternal ethical values and should bind the legislator. However, this binding is indeed without much success, as for example rulings of the ECSR ensuring socio-economic human rights are not binding the legislator. Nor are there any eternal, metajuridical values to fall back on. This idea might appeal to a sense of shared humanity and oneness, but it is in essence a fiction serving a specific function in the modern nation-state. It is this function that Agamben lays bare in his analysis.

The starting point for Agamben is Arendts observation that human rights apply only to citizens. For him this does not mean human rights should change, but the concept itself shows how the sovereignty of the nation-state functions. He follows Carl Schmitt’s definition of sovereignty: “Sovereign is he who decides on the state of exception” (11). Those deciding something/someone is an exception, are sovereign. Exception is closely linked with exclusion, but exclusion does not mean someone is in a radical ‘outside’, but “something is included solely through its exclusion.” (18) One figure thus excluded is the

homo sacer: life that can be killed, but not sacrificed, which can be understood as life cast

outside jurisdiction (82). This figure is no longer in the sphere of the political, instead, “In the figure of this ‘sacred life,’ something like a bare life makes its appearance in the Western world.” (100). Bare life has no voice in politics and is not a subject to talk to and negotiate with, instead, it can be considered an object sovereign power has decided upon.

Bare life, the excluded life included in its exclusion, is according to Agamben the foundation of modern democracy: “modern democracy does not abolish sacred life but rather shatters it and disseminates it into every individual body, making it into what is at stake in political conflict.” (124). Everybody, every body, is approached as essentially sacred, but can also be excluded and designated as an exception. The nation-state , however, masks this naked life in the figure of the citizen, as if citizen and human are synonyms and inseparable, whereas they are actually not (Arendt, 132 – 133; Agamben, 128). The fiction is that everyone is a citizen/human with rights, but in fact everybody, or every body, is legible to be cast outside the juridical order of the nation-state, produced as bare life, without signification, meaning or voice (anymore).

Declarations of human rights paradoxically do not solve, but constitute this problem: “Declarations of rights represent the ordinary figure of the inscription of natural life in the juridico-political order of the nation-state.” (Agamben, 127). A declaration of rights should guarantee human rights, but in the declaration of the right, life is politicized and constituted as bare to begin with. For Agamben, with every right that is spelled out,

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15 individuals are inscribed further into the state order “thus offering a new and more dreadful foundation for the very sovereign power from which they wanted to liberate themselves.” (121). The declaration defines what is considered a right, consequently allowing the state to not consider everything that is not spelled, making life the object of a political game where the state decides, either by declaring or signing declarations, what a right is and to whom it is applicable.

Agamben is concerned with claims based on human rights, because he holds they can only grasp the human as bare life, accordingly re-inscribing the biopolitical sovereignty that is fought. The figure legible to human rights is the human as bare life, cast outside by the sovereign and in need of protection or help. The question now is how CEC makes its claims based on human rights arguing for a different treatment of undocumented refugees. Are the people concerned portrayed as bare life? How is their juridico-political position characterized? And if CEC is reproducing the undocumented refugee as bare life, is this a fundamental problem, as Agamben argues, or can this image be read differently?

“Destitute adults” - CEC portraying undocumented refugees in the Netherlands

The complaint of CEC starts with a concern that the rights of “undocumented adults residing in the Netherlands who turn to the State for help” (CEC, “Collective Complaint”, 2) are violated by the Dutch state. The reason: “Migrants without a residence permit [hereafter: undocumented persons] have no right to food, clothing or shelter.” (3) The number of people whom this complaint concerns is thus limited. Undocumented children are explicitly not concerned; their rights have been considered in Complaint No. 47/2008,

DCI vs. the Netherlands, and “After that decision and many national court decisions, it was

understood that destitute children should under all circumstances receive help.” (3)15

The current complaint is aimed at the rights of undocumented adults who reside in the Netherlands and turn to the state for help. This means that undocumented adults not residing in the Netherlands, as well as adults not turning to the state for help, are not considered. Both limitations appear commonsensical, a state can only be held responsible for the persons within its jurisdiction, cannot be expected to care for all people in the world. Similarly the state cannot be expected to take care of people of whom it does not

15 The Netherlands started building so-called family locations for undocumented children and their families, as the government began to hold, after the decision of the ECSR in Complaint No. 47/2008 and a ruling of the Council of State following this decision in 2011, that children cannot be put on the street after a rejected claim to asylum. They can only get access to these centers with a liberty restricting measure, just like with the VBL. Families can get shelter in these locations, either until they are deported, or until the youngest child turns eighteen. Cf. Abukar, Donkers et. al.

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16 know they exist. However, it is questionable whether the state does not know of the existence of undocumented persons in its territory. People can become undocumented after a request for asylum is rejected and the person is obliged to leave. Many people do leave, others are deported, but there are also persons who disappear: they (are forced to) leave the center where they were living, or released from jail. In statistics they are often registered as “left with unknown destination”, which means that, on paper, they do not exist in the territory anymore (LOGO). 16_{Such a formal closure of a file does of course} not mean that the person has actually left (or ceased to exist), nor that the state does not know they are here.

CEC is concerned with a limited group of people: undocumented adults in the Netherlands who turned to the state for help. Their human rights are violated, CEC argues, because except in the case of a medical emergency, their right to life is not ensured. This situation is due to the Dutch Aliens Act in combination with the 1998 implemented Linkage Act, which link access to social services such as education and housing to a legal status in the Netherlands. Consequently these rights are available for legal residents only, excluding people without a permit.17_{This exclusion is not by accident. According to the} state, the explicit goal of this linkage principle is to reduce “illegal residence” in the Netherlands (“Wat is de Koppelingswet?”). Working is not allowed either, employers can get huge fines (up to €12.000) when they hire someone without a residential status.18 Providing for oneself thus becomes very difficult without a legal status.

The state formally excludes undocumented persons by making services and securing a livelihood inaccessible to them. The Linkage Act is designed for the exclusion of undocumented people, which means the law paradoxically recognizes these persons, but as persons who do not fall under its protection. Does this mean these persons are cast outside the juridical order and to be understood as Agambens bare life? This is one interpretative road to take, paved by CEC, characterizing the situation as follows:

The situation of those living undocumented in the Netherlands, some year in, year out, can only be described as frightful. To survive in the streets, deprived of food, clothing and shelter, forsaken, is terrifying. Denial of shelter means sleep deprivation, as we are reliably informed, a real killer. A relentless deterioration of health and premature death ensues, inevitably. (3 - 4)

16 It is unclear how many people are undocumented in the Netherlands, at least 4.600 people were registered as “left with unknown destination” in 2014 (LOGO). ECSR takes into consideration that there are an estimated 60.000 to 133.000 undocumented refugees in the Netherlands (“Decisionn”, Consideration 78). 17 Cf. Pluymen for an evaluation of the Linkage Act and its consequences. Three exceptions from this

exclusion are made: the undocumented refugee has a right to medical treatment in life-threatening situations; an undocumented minor has a right to education; and undocumented refugees have the right to legal assistance (Aliens Act, Article 10)

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17 Undocumented persons are portrayed as leading a frightful life in the streets, deprived of food, clothing and shelter, but also, and this word is interesting, “forsaken”. To be forsaken is to be abandoned, deserted, as if previously there was someone or something for this person, but now not anymore. Who has forsaken the undocumented person? The state? To be forsaken also gives the image of someone who is alone, an image that is strengthened in the next paragraph: “Undocumented persons are socially isolated, the outcasts.” (4). The situation of this isolated, abandoned person is connected with the adjectives ‘frightful’ and ‘terrifying’, adding a sense of fear and possibly weakness, enforced by the idea of sleep deprivation which results in sickness and even death.

Judith Butler’s concept of “ungrievable lives” proves helpful in understanding what is at stake here. In her considerations of the unequal distribution of precariousness in the world, she argues “If we take the precariousness of life as a point of departure, then there is no life without the need for shelter and food” (Frames of War, 24). All life is in need of

protection. The point, however, is that this precariousness is not always and equally recognized. Some lives are considered ungrievable, the need for shelter and food is not recognized, just as CEC claims with regards to undocumented adults in the Netherlands. In making this claim, CEC tries to demonstrate the vulnerability of these persons, portraying undocumented refugees as vulnerable, lonely, frightened, and sick. This image could be said to correspond to Agambens concept of bare life, life outside the polis, the body.

Ambivalence and Potential

In research on migration, (undocumented) refugees have often been understood as Agambens homo sacer, as they seem to have no formal or legal position and are excluded from law and rights. At the same time researchers emphasize how Agambens concept seems to lose sight of the agency and resistance of those perceived as bare life (Honig; De Genova; Dines et. al.; Schinkel). William Walters, Anne McNevin and Kim Rygiel place themselves explicitly in an interplay between these positions, both accounting for the production of refugees as bare life, but also considering their agency, especially the possibility of human rights claims. Agamben rejects claims based on human rights as re-inscribing the sovereign power that is fought. Claiming human rights in relation to those in power could thus be interpreted as showing one’s bare life in need of protection, thus affirming the sovereign power that produces life as bare. As Judith Butler says: “they appeal to the state for protection, but the state is precisely that from which they require protection.” (Frames of War, 26).

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18 Claims based on human rights, however, do not necessarily create bare life or re-affirm the regime fought. McNevin proposes a new approach, which “acknowledges the transformative potential of claims based in human rights, even though such claims may paradoxically affirm a human rights regime that has proved less than emancipatory for certain groups of people, and that is, in important ways, connected to institutionalized modes of violence.” (185). She focuses on the ambivalence of human rights claims, because even when they affirm a human rights regime which is violent towards certain people, as only citizens seem to enjoy human rights, this does not have to perpetuated: claims based in human rights have the potential to create new political relations (185). Human rights thus provide a discourse with which the factual rightlessness of people can be contested. This discourse can give people a possibility to voice their discontent and concern, with the potential of changing this discourse in its repetition. The following question with Agamben is whether these voices can be heard. Bare life is cast outside the political for him, denied a place inside by the sovereign, only included through exclusion. But what is “the political”? What does it mean to be political?

Etienne Balibar evaluates the concept of human rights, in opposition to Agamben, as essentially political: there is not something as human rights, they are instead defined and redefined over and over again, the claims of and to human rights are exactly the battlegrounds for its definition (19). Indeed there are declarations of human rights, but as Complaint No. 90/2013 shows, there is no consensus on what this declaration entails or what it would mean in practice for the treatment of people. Human rights are indeed not, as Agamben claims, to be considered as eternal, metajuridical entities, instead, Balibar argues, they are essentially political and redefined over and over again. However, this does not mean that treaties and jurisprudence regulating human rights are without meaning, as Agamben would hold. On the contrary, their content is constantly disputed and a battlefield for interpretation (25). The ECSR looking into the conformity of the Netherlands with this Charter leads me to consider Complaint No. 90/2013 as such a battlefield of redefinition.

Balibars idea of the inherently political nature of human rights resonates with Engin Isin, who emphasizing the moment of becoming political, which is not necessarily when politicians debate with each other in the House of Representatives, but the moment “when the naturalness of the dominant virtues is called into question and their arbitrariness revealed.” (Being Political, 175). He conceptualizes such moments as acts of citizenship,

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19 and individual deeds that rupture social-historical patterns.” (Acts of Citizenship, 2). Making

claims on the basis of human rights could be such acts, as the order excluding people from these rights and the logic which legitimizes such exclusion are challenged. In itself, the complaint of CEC can be an act of citizenship, as the social-historical patterns of treating undocumented persons in the Netherlands are critically questioned. These are not the only recognizable acts of citizenship though, as the Netherlands has known the organized protest of undocumented refugees in the collective We Are Here. How does CEC recognize this protest? Does this portrayal change the characterization of undocumented refugees? Is the ambivalent potential of human right claims to be found here?

“Civil Protest” - CEC portraying undocumented refugees in the Netherlands II

Agambens concept of bare life does not have to be taken literally, creating space for an ambiguity in which sovereign power might be affirmed, but not necessarily has to be. Such an ambiguity arises in how CEC takes the actions of those who can be said to be reduced to bare life into account:

Undocumented persons are socially isolated, the outcasts. This isolation leads to desperate measures. At the end of 2011 a group of undocumented migrants who had fled Somalia and Iraq and then got “stuck” in the Netherlands – unable, as they were, to return to the place they came from – started a civil protest. This courageous action made visible the unsightly problem of “stuck”, desperate people lacking the most elementary means of survival. (CEC, “Collective Complaint”, 4)

The existence of undocumented persons and their impossible position deprived of food, clothes and shelter, isolated, social outcasts, is not a new problem, but became visible when people in this position started a protest. This protest, which today still exists in the collective We Are Here, is portrayed ambiguously, on the one hand is it a “desperate measure” of people who are “ ‘stuck’ ”, on the other it is “courageous”. “Desperate” and “stuck” connote despair, a last option people have, as if standing against a wall and making a last move. “Courageous”, however, connotes power and strength. Note that “stuck” is placed in quotation marks, which gives this image special attention and can be interpreted as a subtle strategy of denying what you say (Van Dijk, 106). I consider these quotation marks as taking (ironical) distance from this characterization: Undocumented persons are commonly understood as being stuck and without a possibility to move, as they did not get a residence permit but also cannot return to the country they fled from. However, this position of “stuck” is not absolute, people can move, can act. In the immobilizing image of being “stuck”, there is a possibility of movement.

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20 On the one hand there is an image of the fragile body, but on the other there is courage and the act: civil protest. “Civil” is a keyword here, because it inscribes a protest into the order of politics, that Peter Nyers characterizes as “impossible acitivsm – ‘impossible’ because the non-status do not possess the ‘authentic’ identity (ie citizenship) that would allow them to be political, to be an activist” (Nyers, “Abject Cosmopolitanism”, 1080). Undocumented refugees not considered as citizens, thus outside the domain of politics, outside the demos. By labeling activism of undocumented people civil, CEC inscribes it directly into the domain of politics, thus refusing a position of exclusion and subtly discrediting the concept of bare life to understand undocumented refugees. These people are not outside the political order, they constitute themselves in it. They are being political and recognized as such by CEC. This political character of the protest, its importance and impact are emphasized:

The encampments and Refuge Church made the headlines in the Netherlands and sparked a lot of discussion in parliament. They have shown that there is a real and persistent problem faced by hundreds of undocumented migrants who cannot return or who for whatever reason are not removed from the Netherlands, who nevertheless have no right to shelter. (4)

The civil protest made the hidden exclusion of people from normal life visible, became part of public discourse by making headlines and was recognized by politicians, as it was discussed in parliament. The political character of this protest is emphasized by sketching reactions in Dutch society and politics.

In response to the described protest, the state offered shelter to the protesters.19 This is a concrete recognition of the protest at that time, but for CEC it shows a fundamental problem: “Only those who that [sic] protested, who had the courage and physical strength to camp outdoors, were offered shelter. Others, who were physically too weak to join the protests, were not.” (4) The point is that help should not only be offered to those who raise their voices and are recognized in public; the rights of people who do not dare to protest should also be respected. In the characterization of these persons, the focus is laid on the body, the physical ability to protest, bringing back an image of bare life, in which the political act of protest risks to fade away.

19 The first protest CEC refers to the encampments undocumented refugees created in 2011 in Ter Apel. Ter Apel is a symbolic place, a small town in the North of the Netherlands where all people asking asylum are registered and have their first interviews. The Minister at that time offered shelter to the protesters, which some accepted (Klis). Protesters were offered to reopen their cases in response to other protests, almost all cases were rejected, the refugees mostly “disappeared (Grimmius et al., 43 – 47). November 2013 Amsterdam offered shelter for six months to part of We Are Here (the others were on the streets again) in an old prison at Havenstraat, named “Vluchthaven” by the collective. The current story of Amsterdam is that this was a pilot for offering shelter to undocumented refugees. To what extent this shelter was legal or legally binding, remains unclear until the present day.

'No More Blablabla'. We Are Here and the claim to human rights. Complaint No. 90/2013 at the ECSR.