When explaining her encounter with the immigration authorities, Anita says she should never have told the Belgian police the truth. [1] For this Flemish woman in her thirties, everything changed when she told the police officer who was questioning her about her marriage application that she wanted to get married also to regularize the administrative situation of Murad, her partner, a Moroccan national of the same age.
The institutionalization of their union still seemed a viable option to obtain the right to stay, a necessary condition to consider and build a life together. “Living with someone who has no papers makes daily life more cumbersome and prevents future plans, those plans that the police officer who was questioning me would have liked to know the details of in order to make sure that we were a ‘good’ couple,” says Anita (Brussels, July 24, 2015). First, the policeman warns her against Murad: she, a young white woman, independent and professionally accomplished, would risk losing her liberties with an “Arab man.” Then Anita continues, “This ‘protective’ attitude gave way to accusations and suspicion, he asked me if I was paid for this marriage!”
Murad, also interviewed, seems less shocked. His migration experience has given him a wealth of bureaucratic experience: [2] “I know the procedures and I am used to not being totally believed by the agents.” A week after the interrogation, however, at dawn, the police come to pick him up at Anita’s home, where the couple lives, in the Flemish region. Murad, who is in an irregular administrative situation, has an order to leave Belgian territory that has never been carried out, and that the immigration administration exhumes when processing the couple’s marriage application. Murad, handcuffed, is taken to the detention center. Anita visits him every day and their legal battle begins.
So she wrote to the king of Belgium, to the Office des Étrangers (the Belgian federal administration that rules on residence) and to the Moroccan consulate to ask that the pass to repatriate Murad not be issued. She contacts the press to tell her story. This is not enough. Murad is deported to Morocco. On the advice of a lawyer, the couple accepts the deportation to get married there. Anita will leave on the same flight as Murad. The couple managed to get married in Morocco. However, the marriage does not guarantee Murad a residence permit, and Belgian law requires strict conditions—including income—for Anita to join him in Belgium and ensure a legal presence in the country. The couple’s battle with the migration bureaucracy is not yet won. Other procedures and administrative meetings await them—family reunification, maintaining their residence permit for five years, applying for Belgian nationality—before they can live together regularly and free themselves from the invasive gaze of the migration bureaucracy.
Migration policies are based on legalized discrimination by the nation-state between national citizens and foreigners (Sayad 1999). However, based on the story of Anita and Murad, this article shows how migration policies aimed at binational couples blur the contours of this discrimination, and also affect the rights of European citizens. The implementation of these policies transforms the daily life of non-European partners, as well as that of nationals. By interfering in their intimacy, it complicates the accession to the nation of the former and erodes the rights to respect for private and family life and marriage of the latter, and even, more broadly, their feelings of belonging and their confidence in the State of which they are citizens.
This paper is the result of comparative research on the administrative experiences of binational couples within the immigration system and on the role of legal intermediaries (associations and lawyers). It was conducted in France, Italy and Belgium. [3] The empirical material mobilized here concerns the Belgian field; however, the exemplary case of Murad and Anita illustrates observations that are valid in other national contexts. [4]
What legislation does to binational couples
In most European states, until after World War II and sometimes into the 1970s, the acquisition or loss of nationality due to marriage follows gendered and patriarchal dynamics, with women dependent on the status of their husbands (Guerry 2016; de Hart 2015; Weil 2005). This discrimination is gradually disappearing from legal provisions in favor of increased protection of the private and family life of individuals, including citizens. Although it is a human right and a constitutional right, the privacy of citizens was not spared during the restrictive reforms of foreigners’ rights in the 1990s (Dauvergne 2008). In fact, the control of the arrival and settlement of foreign spouses of nationals became a major issue in European policies from the mid-1990s onwards, and was exacerbated in the 2000s.
Logics of protection and control, even “policies of pity and risk” (Aradau 2004), coexist and, as in the case of asylum, encourage couples to “justify themselves” in the eyes of those who are theoretically responsible for granting them status and recognizing their rights (Noiriel 1991). In fact, these policies are part of a socio-institutional context in which the suspicion that procedures are being abused weighs on applications for access to residency (Spire 2005) and is reflected in the administrations’ inquisitive search for the truth.
Among the main reasons for acquiring a residence permit and nationality, marriage migration is perceived as a loophole in migration management and a risk for the supposedly “true” binational marriage. Concretely, legislative reforms, on the one hand, focus on combating “unions of convenience”—considered to be entered into for the only purpose of gaining access to residence—and, on the other hand, target forced and arranged unions—which would not find their place in countries advocating gender equality (Farris 2012). These measures are also presented as a means of combating the “identity withdrawal” of established immigrants, which would be fuelled by unions concluded between naturalized nationals, or those of foreign origin, and nationals of their country of origin or that of their parents. While binational, these unions would be marked by a basic ethnocultural homogamy and would risk feeding identity niches that would disrupt a certain vision of the national community and of integration (Bonjour and Block 2016). The latter is in fact understood in political and public discourse as assimilation into the majority group.
Despite the ambition of European convergence in the regulation of family migration in the early 2000s, national legislative applications are diverse. Member states, which have the final say on the granting of the right of residence and nationality, have a margin of manoeuvre to establish the conditions that partners must meet in order to marry and live legally on their territory. For example, after being subjected to administrative and police checks on the veracity of her life as a couple, Anita will discover—once her marriage to Murad is concluded—that Belgium requires she to meet specific conditions in order for her husband to obtain a residence permit. Although she is Belgian, her choice to marry a non-European national requires her to provide proof of adequate housing and a stable and regular income (at least equivalent to 120% of the amount of the social integration income, [5] i.e. approximately 1,250 euros per month in 2019). Moreover, Anita must continue to meet these conditions for five years, during which time—despite their marriage—Murad’s legal residence is suspended both on Anita’s financial stability and on the maintenance of the joint marital life. In doing so, Belgium—like other countries such as Denmark, Norway, and the Netherlands—has written into its laws the deterioration of the status of citizens in couples with foreigners. Indeed, Anita, like any other Belgian citizen who wishes to grant a right of residence to her non-European spouse, must meet the same conditions as those required of foreign migrants residing in Belgium who apply for family reunification with their foreign spouse. No preferential treatment is reserved for Belgian citizens in a binational couple. Elsewhere, in France and Italy for example, a citizen does not have to prove income and housing conditions in order for his or her spouse to be entitled to residence. In terms of the law, a French or Italian citizen who wishes to marry a foreigner still has privileges, but, especially in France, in the day-to-day administrative procedures, he or she is also subject to treatment reserved for foreigners that is similar to forms of “suspicion a priori” (for example: interview in view of the marriage, checks at home, presence at the appointments of his or her partner at the prefecture, production of proof of living together) (Odasso 2021, 2020a and 2020b).
What administrative practices do to members of binational couples
Beyond and beyond the legislative provisions, the suspicion that surrounds binational unions manifests itself more in the interactions between couples and immigration officials, with specific consequences for each member of the couple, depending on their gender, origin, age and social class.
First of all, in Belgium (and France), for example, when applying for marriage or legal cohabitation, civil registrars check the veracity of the couple’s matrimonial and family intentions. [6] In these countries, the immigration law became part of the Civil Code. As the case of Anita and Murad shows, the assessment of unions is carried out through “technologies of love” (d’Aoust 2013), i.e. on the basis of the relationship narratives given by the members of the couple, subjected to real interrogations by the administration and, if necessary, by the police, and on the basis of the material evidence they have to provide to objectify the authenticity of their affective relationship. This evidence is not limited to administrative certificates, but includes private documents (e.g. email exchanges, Skype conversations, photos, airline tickets, testimonies of friends) (Odasso 2021).
The solidity of the couple’s romantic intentions, along with the couple’s past and future plans, will be indicators of a relationship considered “modern” and, therefore, socially adequate and acceptable. This moral evaluation of couples is, however, also impregnated with more classic indicators of migratory control.
As in the case of Mohammed, in Belgium (as in France and Italy), [7] the state is more likely to attack foreign partners who are in an irregular or short-term residence status (e.g. student status) and who are suspected of wanting to marry only to gain access to long-term residence and the benefits that come with it. In addition to the age difference and mutual acquaintance between spouses, among other indications of suspicion, gender and ethnic stereotypes are also present. Our fieldwork has shown that a male migrant, especially if he is black or Arab, or even supposedly Muslim, is seen by immigration officials as a potential danger to national security and its citizens. As Anita notes, the state plays a dual role—paternalistic and punitive—with respect to the latter. A biologizing conception of female and male family roles proliferates in narratives of bureaucratic encounters (Odasso 2020a, 2020b, and 2018). Over national women, potential reproducers of the nation, the state exerts more control (Yuval Davis 1997). National partners disqualified by the immigration apparatus thus become “insiders” [8] in the sense that they experience what it is to be a foreigner and become aware of the socio-legal effects of this marginal status (Odasso 2016). Anita remains de facto a Belgian citizen (e.g. she is not subject to deportation). Nevertheless, accused by her country, she nurtures a sense of disaffiliation and growing distrust of its institutions.
What binational couples do to the migration system
Members of binational couples find themselves in a subordinate position—of settlement and citizenship respectively—dominated by a state that reifies and imposes normative conceptions of what “constitutes a family.” However, familiarity with and understanding of the legislative provisions and bureaucratic-institutional mechanisms at work at the counter enable them to develop a certain capacity to react. Often with the help of associative and professional intermediaries with legal skills and practical know-how about the procedures, the partners socialize themselves to the law and its use. They find small ways out, adapt to local administrative norms and practices, “inhabit” them (Mahmood 2011) or, more rarely, choose to disobey them. They learn to invest the potential of affective ties and construct themselves as “entitled”; thus, in the ordinary encounters with the migration bureaucracy, they claim respect for the freedom of their affective and family choices (Odasso 2020a).
National partners are more comfortable with these approaches and base the legitimacy of their right to lead the affective life they desire on their status as citizens. On the contrary, foreign partners often remain more reticent (Odasso 2020b), as Mor (Malian, in a couple with Anne) recounts, “we had different attitudes towards this experience [police investigation in view of concluding a legal cohabitation in Belgium]. I was concerned for myself, but also for her, for her work, her children, her life. I spoke as little as possible in front of the agents.” Or Ahmed (Moroccan, in couple with Léa): “When they refused us the family reunification file, I asked associations, legal aid and friends, then I always checked again myself what the law says and what happens, I have some experience with the Belgian immigration administrations…” This access to legal intermediaries remains socially unequal. It depends heavily on the social capital and biographical experiences of the two partners (e.g. previous skills in foreigners’ law, knowledge of the network of actors involved locally).
Anita’s experience confirms this. After months of visits in detention, she shared Murad’s deportation flight to Morocco. This gesture, particularly appreciated by the administration, which later recognized his marriage, suggests that some couples manage to “play the game of love” demanded by the state. In fact, couples seize upon its criteria, including its romantic vision of the marital relationship (Maskens 2013), and appropriate them in order to succeed in their administrative and affective projects, which are in a way made inseparable by the normative framework of the state.
Deserving and conserving one’s place within the nation
In different forms, each European state governs and defines the contours of the national community by controlling the intimate ties of its own citizens and the conditions of their conjugality. This process, akin to the surveillance of sexuality and intimacy in place during the colonial era (Stoler 2013), suggests that the enterprise of controlling bodies and the inexorable construction of belonging is still relevant in the management of immigration (Van Walsum 2008; de Hart 2014). Today, the state and its representatives choose who deserves accession to the nation and the preservation of family attachments. Yet, while family migration rights vary (depending on nationality, income level, housing size, degree of integration, or arriving family members (Block 2015), the management of binational couples produces subsequent disparities, especially among nationals. The latter tend to become second-class citizens, because of their emotional choices to couple with a foreigner, which they have to justify and which tends to draw suspicion from state services.
The treatment of binational unions briefly outlined here must be read in the broader context of the penalization of immigration and its selection. Couples, disrupted by administrative insecurity, are forced to enter the immigration system in order to consider living legally on European territory. In this context of power asymmetries, sexism and institutional racism, the encounter with certain legal intermediaries and allies allows them to develop certain skills and to make arrangements with the law, or to conform to bureaucratic expectations in order to get by.
Beyond the submission/resistance dichotomy, these couples thus function as “regulators of public action,” in connection with a set of social actors at the crossroads of policies and migratory paths.
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