I. Introduction: orientalist discourses as the strategy to legitimise the securitisation of migration

These words, spoken by the former Spanish Prime Minister José María Aznar in the context of an ongoing growth in the number of immigrants, particularly Muslims, highlight an issue that has marked the recent history of Spain: the need to identify an ‘other’ within, who can be blamed for all ills. José María Aznar's words do two things. On the one hand, they exalt ‘our rational Western character’ and, on the other, they legitimise the perceived need to defend ‘our identity’ from this ‘other’ within. This idea is not new, but acquires relevance when framed within a European and Western political context. The Italian President Berlusconi, British Prime Minister Cameron, German Chancellor Merkel and French President Sarkozy have all delivered public speeches in recent years linking the loss of European-Christian identity and values with the consolidation of immigration communities coming from Muslim countries, and stressing the need to take action (Mavelli, Reference Mavelli2014; Williams, Reference Williams and Williams2013). In fact, there is no coincidence between the emergence of institutional discourses on the terminal stage of multiculturalism as a model of management of diversity and the growing multiplication of political initiatives that relate security with immigration (Fekete, Reference Fekete2004; Lentin and Titley, Reference Lentin and Titley2011). Although, from the moment of its conception, the EU (Rome Treaty 1957 or the TREVI Group – acronym for Terrorisme, radicalisme, extremism et Violence Internationale, 1976) has been built around the internal notion of ‘securitization of migration’ (Apap and Carrera, Reference Apap and carrera2004; Huysmans, Reference Huysmans2000), it is in the last decade, after the 9/11, that projects related to the control of mobility of outsiders, especially coming from Muslim countries, have been enacted (Squire, Reference Squire and Squire2011; Rygiel, Reference Rygiel2010), such as EU Regulation 810/2009 establishing a Community Code for Visas, the Return Directive 2008/115/EC, the European Neighbourhood Policy, the automated biometric border crossing systems implemented by the European Borden Agency FRONTEX or the controversial Passenger Name Register (PNR) proposed by the European Council.Footnote ¹

In this sense, there is a clearly perceivable trend of ‘orientalisation of the citizenship regime’ (Barbero, Reference Barbero2012b). ‘Contemporary orientalism’ or ‘neo-orientalism’ (Sadowski, Reference Sadowski1993; Musarrat, Reference Musarrat2000; Tuastad, Reference Tuastad2003) is not a new concept. Edward Said (Reference Said1978) coined the term ‘orientalism’ to refer to the construction of the ‘oriental other’. According to Said, orientalism was, and still is, a complex discursive practice through which the West produced an East, an Orient, categorised as backward, primitive or inferior, and in doing so justified the civilising mission of the West. The term ‘legal orientalism’ has been used to describe a colonial and post-colonial way of domination of the other legal understandings (Taylor, Reference Taylor1997; Ruskola, Reference Ruskola2002). In this paper, I am using the term orientalisation as a political and legal strategy, with a meaning closer to the neo-racism suggested by Balibar (Reference Balibar, Balibar and Wallerstein1991), Wieviorka (Reference Wieviorka1998) or Tagieff (Reference Tagieff2001). These authors considered that the old discourse of the hierarchy of races had been replaced by the incompatibilities between certain identities (such as the so-called European identity) and certain groups or identities perceived as impossible to integrate. A number of authors and academics have produced a line of thought that is based on this argument of oriental-migrant-Muslim identities vs. Western values (Huntington, Reference Huntington1998; Sartori, Reference Sartori2003; Fukuyama, Reference Fukuyama2006).

In this paper, I also suggest not only that there is a new racism that bases its argument on a series of negative characteristics attributed to certain immigrant communities perceived as non-integrable, as has been suggested already, but I go further than this. I will suggest that the orientalist discourses that we are hearing from politicians and academics, or that appear in the letter of certain laws, are part of an intentional strategy and technology to legitimise the securitisation of migration, focusing particularly on people from Muslim countries. In Globalizing Citizenship (2010), Kim Rygiel, following Isin's (Reference Isin2002) idea of alterity, from a Foucauldian perspective, makes a thorough analysis of how citizenship is increasingly a disciplinary regime for governing the mobility of populations. In this similar sense, the aim of this paper, then, is to reflect on the construction of otherness, and specifically on the ‘orientalisation’ that is promoted through immigration law in Spain, one of the few countries in the EU where Islam has had a historical role in the social and cultural construction of its identity. I will argue that, in addition to meeting the guidelines of securisation from European authorities, the regime of immigration and foreigners' laws and related norms in Spain actually contribute to the construction of a ‘new’ otherness, and therefore to the political and legal (re)definition of what ‘being Spanish’ means. In order to do this, I will consider the strategies and tools used in political policy in recent years, where citizenship and border regimes have been clearly shaped by both the settlement of immigrant communities and the current economic crisis. I will begin by looking at how the migration process is approached from the perspective of the ‘social problem’; I will then argue how the different legal rules that make up the corpus on foreigners' law seek to govern, restrain, suppress and, if necessary, expel that otherness that is perceived as being incompatible with certain values.

II. Otherness as a historical matter in Spanish identity

The Muslim world, as has been pointed out by Martín Corrales (Reference Martín Corrales, Núñez Seixas and Sevillano Calero2010), has long been the ‘archenemy’ in Spain. The construction of Hispanidad or Spanish identity as an essentially Christian identityFootnote ² goes back to the epic narratives of the Reconquista of St James or Santiago Matamoros (the Muslim killer), in which moors or moros, as the Muslims in Spain are called, were presented as fanatical, wild, cruel and lazy, and this has continued over the centuries. The notions of purity, conversion and barbarism travelled across the Atlantic Ocean. In his book on Law, Indigenous Knowledge and Identity (2009), Libardo Ariza observes that, in the colonisation of America in the fifteenth and sixteenth centuries, ‘purity of blood’, for example, was required for the exercise of professions and religious acts and rituals, thus preventing access to mulattos, mestizos or infidels, namely those not considered ‘Old Christians’. Anouar Majid, meanwhile, in his book We Are All Moors (Reference Majid2009), establishes a connection between the concept of the ‘moro’ and the treatment received by groups like the Moorish and Jews, and other less obvious groups such as the African slaves, Native Americans or Hispanic immigrants. The argument for the relationship between the Spain of the Reconquista and the colonisation of America can be seen in the use conversions and family genealogies as tools for the government of religious diversity and homogenisation of the American colonies.

In Spain today, every year on 2 January, certain political parties and right-wing groups still celebrate the day in 1492 when the last Muslim kingdom of Granada surrendered to the Catholic monarchs, marking the starting point for the construction of the discourse of the ‘defeated moros’.Footnote ³ Street festivals and pageants popularly known as ‘Moors and Christians’ are a regular feature in many Spanish towns and villages. But it is interesting to consider how this discourse and these rituals represent both a particular reading of Spain's historical relation with the moors, celebrating their expulsion as a people who surrendered in the face of defeat, and, at the same time, a populist demand for the expulsion of Muslim immigrants currently living among the Spanish people today. According to the census published periodically by the Union of Islamic Communities of Spain (UCIDE), there were 1,130,000 Muslims living in Spain in 2008, equivalent to 2.5 per cent of the total population, rising to 1,671,629 in 2012. In addition to those of Spanish origin, foreign Muslims living in Spain come mainly from the Maghreb (Morocco and Algeria), sub-Saharan countries (Senegal), the Middle East and Asian countries like Pakistan and Bangladesh. The largest group are Muslims from Morocco.

Authors such as Lorente (Reference Lorente2010), Zapata (Reference Zapata, Modood, Triandafyllidou and Zapata2006), Martín Corrales (Reference Martín Corrales2004) and Moreras (Reference Moreras and Racismo2000) have pointed out that the diversity in Spain today arising from immigration and national minorities but, particularly with Islam, is an increasing problem for Spain. This can be considered in two ways. On the one hand, it may be seen as being part of the historical and contemporary cultural tradition (as expressly stipulated in the agreement signed with the Islamic community through Law 26/1992, which states that ‘the Islamic religion is a tradition in our country, with relevant importance in the formation of Spanish identity’). As Guia (Reference Guia2014) argues, the struggles of secular and devout Muslims for the recognition of their Muslim heritage and cultural diversity have strengthened rather than compromised Spain's fragile democracy since the end of dictatorship in 1975. However, on the other hand, another way of looking at this is to consider it an anomaly or a burden for the process of historical construction of Spanish identity. As Zapata says: ‘Islam in Spain is a new reality that people are encountering, but a historical fact that people tend to suppress’ (2006, p. 144).Footnote ⁴ In this sense, the attitude existing in Spain towards Islam may, then, be interpreted as what some authors have called ‘internal orientalism’ (Dainotto, Reference Dainotto2006). In other words, it may reflect the symbolic and material presence of otherness embedded-integrated within the society and that works as a reconstruction of the Spanish identity. But how is this strategy justified or legitimised?

III. Contemporary orientalisation of political and media discourses and strategies

According to the opinion polls periodically conducted by CIS, the Spanish Centre for Sociological Research, immigration has been considered one of the great problems in Spain for the last ten years, consistently ranking in the top five along with unemployment, terrorism, housing and public safety (Izquierdo, Reference Izquierdo and Rojo1994; Cea D'Ancona, Reference Cea d'ancona2002; Blanco, Reference Blanco2007). In the present financial crisis, unemployment, economic problems, corruption and fraud, health and education have become the most relevant issues affecting people's lives, but in fact many of these are directly or indirectly related to questions of migration: fears about the increasing precarity of working conditions due to the competitive job market, access to social rights, feelings of disillusionment and distrust, especially regarding issues such as education, childcare, social housing, public benefits and the welfare state in general (Cea D'Ancona, Reference Cea d'ancona2009).

Of course, not all immigration is perceived as a problem; not all groups inspire the same fears. The data from the years 2008–2010 presented in the report published in 2011 by the Spanish Observatory on the Evolution of Racism and Xenophobia in Spain reveal evident differences in attitudes towards groups of different origins. Tourists or seasonal inhabitants, such as the English, German and Dutch elderly couples or families settled on the Mediterranean coast and the Spanish Islands, are perceived as posing no threat. While Latin Americans in general (especially the Argentineans) are the most positively valued, the respondents showed a degree of antipathy towards some nationalities in this group, mainly Colombians and Ecuadorians. This might be because these national groups are perceived as engaging in antisocial behaviour (fighting, making a lot of noise, dressing and dancing differently, etc.), often occupying public spaces such as leisure centres and sports facilities. Romanian nationals were also viewed with antipathy, partly because of their Roma or gypsy ethnicity and cultural background, but also because they are frequently referred to by politicians and portrayed in the media as being involved in criminal activities. However, it is the immigrants from Muslim countries, and in general people who are practising Muslims, who are perceived as the most distant, the most difficult to integrate and the most worrying. This statement itself may be creating perception too, but how is this perception created?

First, according to Xenomedia-Observatorio de la Diversidad, every day in Spain, there are dozens of news items reporting irregular border crossings, stories linking immigration to crime and public safety or to the erosion of the welfare state (Igartua et al., Reference Igartua, Humanes, Muñiz, Cheng, Mellado, Medina and Erazo2004; Aierbe, Reference Aierbe2002; Granados, Reference Granados and Bastida2006; Van Dijck, Reference van Dijck and Lario2006) and a direct relationship between immigration and Islamic terrorism after the bomb attacks in Madrid in 2005 (Barbado et al., Reference Barbado, Noya and Alonso2005). According to a recent article entitled ‘This is the campaign of fear in the border: Front pages and sensationalism. Immigration policy of criminalization and fear’ (Diagonal, January 2015), the main Spanish newspapers are magnifying the extent of illegal crossings on the border with Morocco in order to justify police taking illegal action by returning people to their country of origin. (These crossings in Ceuta and Melilla are also linked to jihadist terrorism, as we will see later.) All this, according to the 3047 CIS report on perceptions for December 2014, has led to immigration being perceived as worse than violence against women or tax fraud.

Second, political discourse indicating preference for a particular collective on the grounds of cultural or religious affinity vs. a distant (non-integrable) collective has been a frequent feature of Spanish politics (Álvarez, Reference Álvarez, de Lucas and Torres2002).Footnote ⁵ Today, with the intention of neutralising and counteracting the growing support increased electoral votes for the flourishing extreme-right-wing political parties such as España 2000, Democracia Nacional and especially Plataforma por Cataluña-PxC, the ruling elites have been radicalising their own discourse. This was made clear by the leader of the Partido Popular (PP) party in Catalonia, Alícia Sánchez-Camacho, and also the mayor of Badalona, Xabier García Albiol: ‘Immigrants who have come to commit crime, to steal, to make life miserable for their neighbours and to take advantage of social benefits, will suffer police pressure’ (La Vanguardia, 15 May 2011). In a similar vein, the mayor of Vitoria-Gasteiz, Javier Maroto, and member of the same party said at a meeting of the think-tank Forum Europa

Some years later, in 2014, Maroto led a popular legislative proposal campaign called Ayudas más Justas (More Fair Aid) proposing legislation for changes in the social aid service because ‘we all know that the majority of Moroccans and Algerians are living on social benefits that we pay for’ (El País, 14 August 2014).

Third, a number intellectuals, influenced by the teachings of Huntington, Lewis, Fukuyama and Sartori, present immigration or certain types of immigration as a phenomenon that is harmful to certain political, legal and cultural aspects of Western societies, including the Spanish. According to Carmona, García and Sánchez in their work on neoconservatism in Spain (Reference Carmona, García and Sánchez2012), the think-tank Fundación para el Análisis y los Estudios Sociales (FAES) and others such as the Burke Foundation, the Grupo de Estudios Estratégicos and the Fundación Juan de Mariana, together with a number of smaller satellite groups, are the main sources of ideas regarding the external threat, the crisis of multiculturalism, the clash between ‘West’ and ‘East’ or the problems caused by certain immigrant groups. In early 1995, at the Euro-Mediterranean Conference held in Barcelona, the Spanish politician, diplomat and writer, Javier Rupérez, drew attention to the factors of instability in the region arising from cultural differences between both shores of the Mediterranean, warning that ‘the problem is not in Islamism. The problem is Islam’. But undoubtedly one of the most overtly ‘orientalist’ speeches came from Mikel Azurmendi, a social anthropologist and former revolutionary, who was president of the Spanish Forum for the Social Integration of Immigrants from late 2001 until 2003, and continues to act as a consultant on social issues to the government through think-tanks such as FAES. In July 2007, he said

The data and discourses discussed here offer us just a glimpse of the influence that academics, politicians and journalists have on the process of orientalisation of immigrants and the idea of citizenship as an institution identified with certain Western values. In the next section, I will concentrate on the content of certain rules relating to the political and social context, and the main actors who enact, interpret and enforce them.

IV. Immigration law in the process of orientalisation of immigrants

The role played by the law in the process of the orientalisation of immigrants is manifold. The attention given to immigration policy and border management specifically has been significant in the creation of Spain as a European, Western and modern country. Moving on from the old popular saying that ‘Africa begins at the Pyrenees’, which presented Spain as a developing country, Santamaría (Reference Santamaría2002) noted that the perception of the country as a new, desirable destination for foreigners was a turning point for Spain in its progression towards becoming a modern, advanced, globalised, European country. Spain joined the European Economic Community in 1986, and this not only allowed the country to take part in the free movement of money, goods and services, but also, as the southernmost European Member State, required a scheme of borders and an immigration regime to control the influx of immigrants coming from Africa. For the new Spain, border control was seen as an essential part of becoming European and, as a consequence, the ‘selective control of migration’ model (Barbero, Reference Barbero2012a) was adopted. This model means that, on the one hand, the EU harmonises the standards of what is considered ‘desired immigration’ (skilled immigrants, blue card, etc.) and what is considered to be ‘unwanted migration’ (Frontex, Return Directive, etc.), thereby justifying its raison d’être as a transnational entity to combat the fabricated risk of the invasion of migrants. On the other hand, Spain, like the rest of the Member States, takes advantage of this transnationalisation–Europeanisation of the border regime to re-constitute itself as a strong nation-state. Both are strategies in that they feed off each other, one demanding more supranationalisation and the other renationalising some of its basic constitutive elements.

These claims, of course, require empirically based arguments to support them. So let us now consider a number of legal moments where the orientalisation of immigrants can be perceived in their construction as aliens or strangers, in the selection of immigrants who are culturally compatible (i.e. the ‘good immigrant’ and, in a sense, ‘the good citizen’) and, finally, in the construction of the ‘bad immigrant’, the ‘anti-citizen’.

V. Conclusion: orientalisation as a strategy of government

The European trend towards the extreme right, with two countries, namely Hungary and Poland, already in the hands of anti-European and xenophobic parties, is not trivial. The quasi-simultaneous management that national and communitarian authorities are doing of the Syrian refugee crisis and jihadist terrorism has much to do. The political statements and police reports that terrorists (or sexual abusers) hidden among the refugees crossing the borders of Europe have contributed to this. The proposal of the French Socialist President François Hollande to withdraw nationality to those convicted of terrorism (despite its questionable effectiveness) undermines the republican principle of ius soli on which the French identity is based. The recent approval by the Danish Parliament of a legal provision allowing the confiscation of money and goods of asylum seekers is another stain on the most vaunted northern European welfare and equality system. The EU citizenry has witnessed the spectacle of its leaders bargaining in the negotiations on quotas of refugees to be distributed among states. Thus, we see that the issue of immigrants' orientalisation is not a particularly Spanish subject, although the historical particularities attributed special importance.

In the process of becoming a strong, modern European country, Spain has found immigration to have a fundamental role in the re-evaluation of issues such as identity or sovereignty, which might have become eroded in the process of globalisation-Europeanisation. Immigration, and specifically that proceeding from Muslim countries, has led to the re-emergence of historical distinctions between the good Spanish vs. the bad unfaithful ‘other’. In this sense, the debate as to whether we are dealing with Islamophobia, understood as an ideology that arises from the prejudices and fears generated by the presence of immigrant Muslim communities, especially as a result of the New York 9/11 or Madrid 3/11 terrorist actions, or more with Maurophobia, namely the fear of the moor or ‘moro’ and contempt for the Moorish (or Arab) culture and its subsequent expressions, including those professed by their descendants, who are now immigrants. Maurophobia, while reaffirming traditional Spanish identity that has, throughout history, resisted the Muslim presence, enables Spain to join the Western trend for differentiation, containment and the consideration of Islamic immigration as an aberration – a religious, political, legal and cultural antithesis.

From a socio-legal point of view, the functions of laws and other normative texts may go beyond their declared purpose. In fact, all Spanish immigration law expressly mentions the purpose of foreigners' rights and integration in its titles.Footnote ⁸ As we have seen throughout the previous sections, they also play secondary or latent roles. Apart from the control, detention and removal of illegal immigrants, immigration law also sends the message that the immigrant collective should be limited to the social role with which they have been assigned, and should forget any aspirations to become members of the society with full rights. As Terray says, ‘It keeps the illegal in terror of being arrested, forcing them to hide, to walk close to the walls, and make no noise. At least enough so that the mechanism can work’ (Reference Terray2008, p. 103). This would mean that integration plans would be directed towards welcoming a certain social category and status, ‘the good immigrants’, and at the same time, those who would not fit under that category would be considered as the ‘bad-migrants’ or ‘non-integrable migrants’ category. So, at this point, one could say that orientalisation goes beyond strategies for the assimilation of different cultures or religions and becomes a set of strategies and technologies to be made use of in the control and rights limitation of the immigrant community.

In addition, the general public is also addressed in the implicit messages that immigration laws and institutional discourses emit. The reforms of the immigration laws, the tightening of penal codes and administrative sanctions, the filtering of police instructions for identity checks all have the task of conveying the message that the state apparatus is fulfilling its function of maintaining public order, while allaying the sensation of insecurity generated by the current multiple crises. In any case, legislators have announced that all the tools of the system will be used, even legal reforms, to transcend, where necessary, the system's own legal limits because, above all, the aim is to ensure that the constitutional, democratic, universal, Western values are maintained.

Although racist police raids, arbitrary detention practices, assimilationist nationality regulations or discriminatory legal measures against the Muslim community are forbidden by law, they continue to occur in streets, public registries and offices. These administrative practices that result in the construction of otherness respond to a contradiction between the statement of principles and values shaped by democratic and social legal culture (freedom, equality, diversity, etc.) and unlawful measures, with minimal or no legal control mechanisms for officers and policemen, leading to practices that are contrary to those values and principles. Although the main laws of the Spanish legal system do not expressly advocate an orientalist strategy, as I aimed to describe, there are many circumstances, gaps, interpretations, tools or technologies that are used to govern certain populations, specifically Muslim immigrants, presenting them as dangerous others.

In short, the construction of categories such as the ‘non-EU citizen’, ‘irregular’ or ‘sufficient integration’ legalises mechanisms that, as De Lucas (Reference de Lucas2003) has pointed out, aim to place certain immigrant groups at a quasi-perpetual legal distance. This means that some immigrant groups have easier access to the full enjoyment of rights (in other words, nationality) than others, while those who are less compatible with ‘Spanishness’ remain foreigners for longer. As we can see from this text, Maurophobia would be but the Spanish version of Islamophobia – that is, not so much due to religious or political reasons, but a manifestation of the need to find an imminent ‘other’ on which to shift all evil. Moreover, the perception that the Spanish have about Muslims has, so far, been confined to those from North Africa. However, as we saw when discussing how the shadow of terrorism has influenced perceptions, it is spreading through immigration rules and their implementation in different communities, including some South Americans, Romanians and the most recently immigrated Islam groups such as South Asian Pakistanis and Indians of Bangladeshis. As Anour Majid says: ‘We are all Moors.’