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Chapter Title: Tracing back ‘illegal aliens’ in the Netherlands, 1850-1940

Chapter Author(s): Corrie van Eijl Book Title: Illegal Migration and Gender in a Global and Historical Perspective

Book Editor(s): Marlou Schrover, Joanne van der Leun, Leo Lucassen and Chris Quispel

Published by: Amsterdam University Press

Stable URL: https://www.jstor.org/stable/j.ctt46mwss.4

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https://www.jstor.org/stable/j.ctt46mwss.4

2 Tracing back ‘illegal aliens’

in the Netherlands, 1850-1940

Corrie van Eijl

Regulation of migration is not a recent phenomenon in the Nether- lands. The conditions for the entry and deportation of aliens were laid down in the first Dutch Aliens Act of 1849. Although illegality is strongly related to this kind of lawmaking, with its mechanism of in- clusion and exclusion, the Aliens Act did not result in a clear distinc- tion between legal and illegal immigration. Many aliens were ‘un- wanted’ and they were deported, but it took almost a century before the term ‘illegal’ entered the policy documents and public debates on mi- gration. The main aim of this chapter is to trace and explain this pro- cess of ‘illegalisation’.

Migrant illegality has been a topic in migration studies for some time, first in the US but recently also in Europe. Thanks to this re- search, we are better informed about illegal migration, although most studies concentrate on immigration policy in the last decades and pay very little attention to historical developments (De Genova 2002).

The term ‘illegal migrants’ has been criticised in migration studies and has been replaced by other terms when it became more and more politically charged (Koser 2005; see also the introduction to this vo- lume). Despite the objections of many researchers – and immigrants – the term ‘illegal’ will be used in this chapter. Apart from problems with alternative terms, it is appropriate to use the term ‘illegal’ here since our aim is to trace the history of the concept ‘illegal alien’. Further- more, as Mae Ngai does in her work on the history of illegal immigra- tion in America, I use the term ‘alien’ to indicate someone who is not a citizen (Ngai 2004).

Aliens have been deported from the Netherlands for a long time. These migrants were referred to as unwanted or undesirable. It was only after a certain point in time that specific groups of aliens were considered ‘illegal’. This change of terms is important since it is indica- tive of changes in the relations between aliens and the state. Migrant il- legality is not a fixed category, but it is the result of changes in legal regulations and is connected to processes of differentiation and exclu- sion. The construction of migrant illegality is related to increasing state intervention, lawmaking and border control. It is also related to in-

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creasing inequality between citizens and non-citizens and more strict immigration regulations protecting access to residence and citizenship.

Immigration laws, which formulate restrictions on the entry and stay of aliens in the country, define what is legal and consequently generate an area of illegal practices. Recent studies indicate that these processes of categorisation and ‘illegalisation’ were not the same for men and wo- men. Citizenship is a gendered concept. In many countries and for a long period of time women have been at best provisional citizens who lost rights when they married and were deprived of their nationality when they married a foreigner. Regulations on the entry and residence of immigrants sometimes distinguished between men and women as well. Even when migration regulations and laws on citizenship seem to be gender-neutral, they have often been applied differently to men and women (Bredbenner 1998; De Hart 2003; Van Eijl 2005; Moloney 2006). In tracing the history of the concept of migrant illegality, in which citizenship and immigration regulations are important aspects, a gender perspective is essential.

Initially, immigration laws such as the Dutch Aliens Act of 1849 were short and uncomplicated, and did not differentiate between aliens in a detailed way. When these laws evolved into increasingly more com- plicated pieces of legislation, differentiation increased and various cate- gories of aliens were constructed, such as refugees, labour migrants and immigrants who entered the country for family reunification.

When tracing the history of immigration policy and exclusion in the United States, Ngai (2004) has demonstrated how the construction of migrant illegality in the US was firmly based on racial difference. The ban on the immigration of Chinese labourers imposed in 1882 and the special programmes for Mexican migrants generated large-scale illegal migration from both these countries. In the US, Chinese and especially Mexican immigrants became the embodiments of the ‘illegal alien’.

In other countries immigration laws also differentiated between var- ious categories of aliens, which resulted in specific forms of exclusion and the ‘illegalisation’ of more and more aliens. In the German empire, for instance, specific rules were laid down for Polish migrants in the decades before the First World War in order to to prevent the ‘Polonisa- tion’ of the eastern part of Prussia (Bade 1984). Poles were only al- lowed to work in the agricultural sector in the eastern part of Germany, and a rotation system forced them to leave the country each year for se- ven weeks. Although they were not labelled as ‘illegal’, the anti-Polish measures reduced the Poles to second-class immigrants.

In a recent study on immigration control Rosenberg (2006) tells how the Paris police took over the immigration service in the 1920s and how they made distinctions between people according to citizen- ship and national origin. By means of intensive police surveillance

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such as door-to-door checks, periodic raids and the creation of millions of files with detailed information on the whereabouts of the foreign born, the police controlled immigrants’ lives and most of all the lives of colonial subjects. Rosenberg’s work shows the importantance of gaining insight into the categorisation and exclusion of immigrants via both policymaking and the implementation of these rules.

Migrant illegality is closely related to ‘deportability’, as De Genova (2002) has argued. Many ‘illegal’ migrants may never be deported, but the threat of deportation determines their status. This does not neces- sarily mean that the deportation of aliens was always a matter of illeg- ality. No single state was keen on aliens who were likely to become a public charge (see also Moloney 2006), and in many countries they were either not admitted or were deported as soon as they began beg- ging or became penniless. States were responsible for their own sub- jects and were expected to take them back when other countries turned them away. Such forced removals were also possible within states. In nineteenth-century England, the Poor Law enabled the authorities to send poor people back to the town responsible for their maintenance. This was also done with Irish migrants, although they were British subjects. Between 1824 and 1831 more than 50,000 poor Irishmen were sent back to Ireland (Feldman 2003: 51). Nevertheless, these de- portations or forced removals of migrants were not a matter of illegal- ity. It is not useful to stretch the concept of ‘illegal alien’ to such an ex- tent that all poor and deported aliens are included. It must be noted that they were not deported because they lacked the necessary permis- sion to enter or stay in the country, but rather because they could not support themselves. The migrants concerned were not entitled to relief in the town or state where they lived, and a job or another source of in- come would have prevented their deportation.

The distinctive characteristic of ‘illegality’ is that the status of aliens is defined by laws that lay down the rules for entry and stay. Aliens who lack a legal status due to the way they entered or are staying in the country depend on the authorities to change their status. Many re- cent ‘illegal’ migrants do actually succeed in supporting themselves, which often enables them to stay in the country for a considerable time. Nevertheless, their illegal position and the threat of detection and deportation make them vulnerable (Van der Leun 2003). The power of the state to define the legal status of aliens in the country is the deci- sive factor in the construction of ‘illegal aliens’. The construction of im- migrant illegality is a long-term process that is generated by immigra- tion regulations. These regulations are of course influenced by various factors such as political and economic developments, public debates on immigration and border control. It is precisely this process of deliber-

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ate intervention, differentiation and exclusion that is interesting when trying to understand illegality (see also De Genova 2002).

Although deportations are not in itself indicative of illegality, the his- tory of deportation policy and the implementation of these rules can re- veal when and how inequality between citizens and aliens, and be- tween various categories of aliens, emerged or increased, and how these processes of exclusion took shape.

In this chapter I look at the construction of immigrant illegality in the Netherlands in the period between the introduction of the first Alien Law (1849) and the outbreak of the Second World War. To trace this history of debates, lawmaking and implementation, I have looked closely at legal regulations, the archives of the Department of Justice, parliamentary proceedings, police records and publications. The main purpose is not to determine whether or not illegal aliens were present in the Netherlands before 1940, but to trace the construction of illegal- ity in legal regulations and in its implementation.

Many studies on migrant illegality distinguish between illegal entry, stay and work (see for example Düvell 2006). Aliens who enter the country legally can become ‘illegal residents’ by overstaying their visa, for instance, or working without the necessary permits, thus becoming illegal labourers. Sometimes other domains are taken into account as well, such as the use of social security or housing facilities by immi- grants without a residence permit. When tracing the history of illegal- ity in the Netherlands I will concentrate on entry and stay. Unlike na- tionals, aliens can be confronted with the charge of illegal entry and stay, and it is their illegal stay that makes them ‘deportable’. Illegal work by immigrants was not a major issue in the Netherlands between 1850 and 1940, but there were some special regulations for immigrant workers that will be discussed below. Other activities that are against the law, such as engaging in illegal trade or making use of illegal hous- ing, are activities in which citizens are more frequently involved than aliens. For this reason they are left out of the analysis.

The chapter starts with an overview of immigration regulations be- tween 1850 and 1940. When and how did illegality appear in the aliens legislation and when did illegal immigration enter the migration de- bate? To what extent was the construction of illegality in the Nether- lands gendered? Did borders create different barriers for male and fe- male immigrants? In the next section I will trace the processes of dif- ferentiation and categorisation of aliens in the implementation of these rules and have a closer look at deportation practices since 1850. Jewish refugees are the subject of the last part of the chapter. When they en- tered the country in the 1930s, strict regulations were issued to prevent their arrival and the terms ‘illegal refugees’ and ‘illegal entry’ entered the political debate.

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2.1 Entry regulations in the Netherlands

Regulations restricting the entry or stay of aliens have long been in ef- fect in the Netherlands. Initially these were local regulations – until the Aliens Act was passed in 1849, laying down the conditions for the entry and deportation of aliens on the national level. This might sug- gest that the concept of ‘illegal immigration’ dates back to this period, but in reality the situation was more complex, as we shall see.

The main purpose of the Dutch 1849 Aliens Act was to prevent the entrance and stay of poor aliens who were liable to become a public charge (Van Eijl 2005). According to this act, all aliens with means of subsistence and a valid passport (at that time: a passport with a visa) had the right to enter the country. They received a permit to stay in the Netherlands, which was valid for three months and could be extended repeatedly. During the period of validity of this residence permit they could not be expelled from the country, even if they lost their means of subsistence. Those who did not meet the requirements for a residence permit could enter the country as well. However, without this permit the police could easily deport them if it was found that they could not support themselves or if they posed a risk to public order.

Aliens without a residence permit were not officially admitted, but that did not mean that they were illegal. It was not illegal to enter the country without identity cards or money, nor was it illegal to return after deportation. Almost anybody could cross the Dutch border with- out any difficulty. In fact throughout the nineteenth century the border control was too primitive to stop even the most undesirable aliens, such as gypsies. Once inside the country, aliens did not have to ask for a permit to stay in the Netherlands. In 1849 the Minister of Justice or- dered the local authorities to register all aliens staying in their commu- nity, but aliens themselves were not obliged to report to the police.

Although there was no reference to ‘illegal’ immigration, the Aliens Act did distinguish between aliens who were admitted and those who were not. A strict enforcement of the law could have resulted in a more rigid distinction between these two groups, and as a result the second group could have been labelled ‘illegal aliens’. In practice the opposite happened. The enforcement of the Aliens Act eased up soon after it was issued due to vague statements and an arbitrary administration. At the same the time as the bill was passed, the Minister of Justice issued his first instructions on the administration of the Aliens Act. He urged caution and stressed that the act was not meant to restrict the entry of ‘hard-working men’ (no mention was made of hard-working women). Hard-working men should be allowed to enter the country to look for employment. However, the police should not give residence permits to migrants without steady jobs and income. The Minister feared that the

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foreign poor would receive residence permits and that it would not be possible to deport them if they were found to be penniless or begging.

Since at least seven similar orders were issued in the months after the introduction of the law and still more in the next two years, the en- forcement of the Aliens Act slackened. The issue of residence permits gradually disappeared, although practices were not the same through- out the country. In The Hague and Rotterdam the police issued only a few hundred permits each year and stopped doing so altogether in the 1870s, while Amsterdam issued many more residence permits (900- 1500 yearly) and continued this practice until the beginning of the twentieth century (Pöckling & Schrover 2002; Van Eijl 2005). Never- theless, the number of permits gradually decreased in Amsterdam as well and more and more foreign residents did not have official resi- dence permits. The disappearance of the permits blurred the distinc- tion between those who were officially admitted and those who had no such legal approval. Consequently, the 1849 Aliens Act lost most of its effectiveness in practice, but it was not officially abolished.

After the First World War new regulations were issued. The large numbers of foreign soldiers and refugees in the country, and fear of the arrival of communist agitators, caused the government to tighten the control of aliens. All foreigners were obliged to report to the local police within 24 hours of their arrival, and all foreign residents in each municipality were registered. After a few years – when peace had re- turned – these regulations were repealed, and starting in 1922 aliens were no longer required to report to the police or to be registered. Yet, especially in larger cities, the local police often continued this practice of alien registration (Lucassen & Vermeulen 1999).

Despite these new regulations and practices, the 1849 Aliens Act was still valid and remained in force until 1967 when a new Aliens Act replaced it. This meant that the entry and exit (deportation) of aliens continued to be regulated according to the 1849 act, which did very lit- tle to limit the freedom of movement of foreign residents and gave lit- tle indication of further categorisation and ‘illegalisation’. However, not everyone was treated in accordance with that law and for some groups special rules were laid down. The research by Lucassen (1990) on Dutch policy with respect to gypsies makes this clear. Although gypsies were only a small minority of all the foreigners entering the country, the Minister of Justice frequently issued secret instructions on how to deal with these bear tamers, coppersmiths and other ‘gypsies’. From the end of the 1880s onwards, mayors of towns and chiefs of police re- ceived orders not to grant permits to gypsies who wanted to put on a show or to set up camp. If they were found at the border they were fre- quently sent back (mostly to Belgium), even if they proved to have means of subsistence. Gypsies were considered to be unwanted aliens:

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their itinerant way of life aroused suspicion and they were associated with petty theft, fraud and begging (especially by women and children). The special orders concerning gypsies were also the result of the regu- lations being passed in neighbouring countries where these itinerant groups were increasingly excluded.

Other migrants who received special treatment were Chinese immi- grants. They were mainly sailors and ex-sailors who lived in concen- trated areas in the port cities of Amsterdam and Rotterdam. Their numbers increased in the 1920s because there was little employment in the shipping trade and few succeeded in signing on as a sailor. Since this group often gambled or violated the opium law, but also out of the Dutch’s own ignorance of Chinese language and culture, the police watched them more closely than other immigrants and kept a separate ‘Chinese registration’. They could not be deported, however, because deportation would involve considerable costs and long negotiations with China.

Although they were considered unwanted, gypsies and Chinese im- migrants were not characterised as illegal in the Netherlands. Apart from the deportation of some 225 Chinese immigrants in 1922 after disturbances in Amsterdam, they were mostly left in peace (Van Eijl 2005). The measures taken with regard to gypsies were often tempor- ary and were frequently ignored by local authorities, but gypsies were increasingly categorised as a specific group and treated accordingly. The most far-reaching policy, however, was not aimed at gypsies or Chinese immigrants but was formulated upon the arrival of Jewish re- fugees, and in 1938 we come across references to ‘illegal entry’. How- ever, a closer look at the sizable group of aliens who were deported after 1850 shows that the processes of differentiation and categorisation of aliens had started much earlier.

2.2 Not illegal but unwanted: Deportations after 1850

Traces of ‘illegalisation’ are not only to be found at the level of legisla- tion, but also at the level of implementation of the regulations. There have always been aliens in the country whose stay was not or no longer desirable. One might even argue that all the people who were deported from the Netherlands were more or less illegal aliens, since they did not meet the requirements laid down in the law. Yet the term ‘illegal’ was never used to describe them or their position and, although they were finally expelled from the country, neither their entry nor their stay was seen as illegal. It is worthwhile to take a closer look at the deporta- tion practices: who was liable to deportation by the police?

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The 1849 act was mainly aimed at reducing the number of alien poor, and it therefore enabled an easy and rapid deportation of all those who were not able to earn their living. This would not only reduce begging and vagrancy, but would also lessen the demand on the government’s poor relief coffers. It is hardly surprising that the overwhelming major- ity of the aliens were expelled because they lacked means of subsis- tence.

In order to find out who was deported I made use of the Algemeen Politieblad, the official weekly journal of the police, which first ap- peared in 1852. The journal provides a description of all deported aliens and includes name, age, occupation, place of birth and residence and – at least in the first decades – reason for expulsion. Most of these de- scriptions of deportations refer to one person, but an entry could also refer to a couple, a family or sometimes a whole group. In 1910, for in- stance, nine entries on the deportation of several gypsy families com- prised 44 persons: nine couples, two sisters, one adult son and 23 chil- dren aged between one and seventeen years. These multiple registra- tion under one heading indicate that the number of expelled aliens was higher than the number of entries in the journal. Furthermore, comparison with other sources shows that not every deportation was reported in the journal.1

According to the Algemeen Politieblad, an average of 2,500 people were deported yearly between 1852 and 1940. For further analysis of the deportation practice, a sample was drawn for the years 1870, 1900 and 1930. Since many more men than women were deported, the sam- ple included all deported women and 10 per cent of all deported men registered in the Algemeen Politieblad (Van Eijl 2005). This sample forms the basis of the following analysis.

The numbers of deportations fluctuated between 1,000 and 3,500 yearly, with an exceptional peak of 5,500 in 1930. Almost all of these aliens were deported because they had no means of subsistence; some were found wandering and begging. The majority came from a neigh- bouring state, which reflects the overall pattern of migration to the Netherlands. In 1870, 1900 and 1930 Germany and Belgium were the countries of origin of 60 to 83 per cent of the deported men and 73 to 88 per cent of the deported women.

From the Algemeen Politieblad it is clear that the Aliens Act, which did not discriminate according to gender, was not applied equally to men and women. Between 1850 and 1940, roughly 85 to 90 per cent of all the deportees were men, mostly single. During most of this peri- od only 10 per cent of all deportations involved women, a percentage which rose to 20 or 25 per cent in the 1930s. This rise is probably the result of the many German women who had come to the Netherlands

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to work as domestic servants, some of whom did not succeed in find- ing a job during the economic depression in the 1930s.

These figures show that men ran a much higher risk of deportation than women. However, to estimate the risks, these figures should be related to the total numbers of men and women who passed the Dutch border in these years, and these are not available. The only thing we do know is the sex ratio among the aliens in the ten-year censuses. Ac- cording to the censuses, the number of foreign men was initially some- what higher than the number of foreign women in the Netherlands, but after 1900 their numbers did not differ much, while in the 1930s the number of foreign women was much higher. The problem is that the census only registers resident foreigners, not those who travel around and leave after a short period of time. This latter group possibly included more men than women. Still, it’s unlikely that the sex ratio of the deportees corresponds to that of all men and women entering the country. It seems safe to conclude that alien men did indeed run a much higher risk of deportation than alien women.

This high proportion of male deportees is probably characteristic of other aliens policies besides that of the Netherlands, but there are few studies from those contexts to provide us with comparable details. Re- inecke surprisingly mentions the same ratio (10 per cent female depor- tees) for the German Reich between 1890 and 1914 (see Reinecke’s chapter in this volume). However, this figure only refers to those who were forced to leave the country as a consequence of their being con- victed by court order (with some 500 records yearly). In this case a much higher proportion of men is to be expected since in general men were brought before court much more often than women. It is unclear whether the ratio was the same amongst the much larger group of peo- ple who were deported by the police, not because they violated the law but because they lacked means of subsistence.

It is difficult to account for the high percentage of male deportees in the Netherlands. Probably the opportunities for employment were bet- ter for women, who could rather easily find jobs in domestic service and the catering industry. Perhaps women were also more certain of their employment before they migrated. Another possibility is that wo- men tended to return of their own volition if they were without em- ployment or money, whereas men were more often expelled by the po- lice. And of course the police may have concentrated their surveillance on foreign men because they considered them to be more inclined to theft and other criminal activities than women. It was probably a com- bination of all these reasons that accounted for the high rate of male deportees.

The number of women deported was smaller than the number of men, and the grounds for expulsion were also different. The most

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striking example is the deportation of women because of their ‘moral behaviour’, which means their deviant sexual behaviour. Foreign men were judged and deported on moral grounds as well, but in these cases it had to do with poverty, crime or illegal ways of making a living, such as running a gambling joint. Men were never expelled because of their sexual behaviour. The only case in which alien men were associated with sexual morality had to do with a small number of Chinese men who were suspected of selling condoms in the 1930s. They were moni- tored by the police but not deported, since the costs of deportation to China would have been too high (Mak 2000: 140-142).

The treatment of foreign prostitutes illustrates the gendered nature of the aliens policy during the earlier period. The 1849 Aliens Act re- quired that aliens be able to support themselves, but there was no re- ference to moral or immoral ways of making a living. Prostitution was not illegal and many foreign women worked as prostitutes in Dutch ci- ties. The liberal attitude towards prostitution changed in the last part of the nineteenth century, when brothels in several cities were closed. From 1911 onwards, when the law on public morals came into force and prostitution was forbidden, there were grounds to deport foreign prostitutes. Nevertheless, many foreign prostitutes were deported be- fore 1911, even if they earned more money than many other foreign women (or men) did. Between 1890 and 1900 – in a period with a great deal of debate on public morals – prostitution was the most com- mon reason for the deportation of women. In 1895 half of the 257 de- ported women were prostitutes or were suspected of being prostitutes (Van Eijl 2005: 227).

The gendered nature of the deportation policy in the Netherlands was not unparalleled. Moloney (2006) analysed the US deportation policy in the late nineteenth and early twentieth centuries and came across similar cases. She shows that the ‘moral turpitude’ clause in US immigration law was often inconsistently applied and intertwined with ideas about women’s economic role. Although few women were actu- ally deported on these grounds, Moloney concludes that efforts to ex- clude or deport immigrants based on concerns over sexual morality had more profound effects on women. In Germany, gendered deporta- tion policy and practices existed as well. According to Reinecke (in this volume), immigrant women were more likely to be deported because of suspected indecent behaviour.

The surveillance and control of sexual behaviour by the aliens police was not restricted to prostitutes. The police (and others) also interfered in the moral behaviour of foreign women who earned their living in other occupations, such as domestic service. In the interwar period, German domestic servants formed one of the largest groups of mi- grants in the Netherlands. There were considerable concerns about the

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‘moral’ (sexual) behaviour of these girls and young women, which was, on the one hand, visible in regulations to keep them out of harm’s way, most of all to protect them from ‘white slave traders’ and other hidden dangers. On the other hand, their sexual behaviour was easily called into question. It is not difficult to find references in the press and in police reports to domestics, many of them German, who were accused of having affairs with married men or living an indecent life (Henkes 1995: 122-124). This tendency to interfere with the private lives of German domestics differed widely from town to town, and not all local police officers were as harsh as the head of the aliens police in The Hague was, for instance. Besides, as Lucassen (2002) rightly points out, not many German domestic servants were actually deported be- cause of indecent behaviour. Nevertheless, the effect of this monitoring should not be underestimated. The aliens police kept records on do- mestic servants and monitored their behaviour. Simply the knowledge that a foreign domestic could be deported if she did not behave well meant that she was vulnerable to gossip and threats by employers or others to inform the police. Henkes (1995: 123), who interviewed German domestics, found that many women experienced this risk of deportation as a very real threat.

Opinions on the correct sexual behaviour of women influenced the deportation policy in the Netherlands. In the nineteenth century many prostitutes were deported on these grounds, and in the interwar period domestics frequently felt threatened because of their ‘deportability’. Yet even the foreign prostitutes who were deported because of their sexual morality and illegal trade (after 1911) were not referred to as ‘illegal’ aliens. This term only entered the debates after the arrival of Jewish re- fugees in the 1930s.

2.3 Jewish refugees: The first ‘illegal’ aliens

From 1933 onwards, and especially after 1938 when persecution in Germany intensified, Jewish refugees fled the country, and 40,000 Jewish refugees crossed the German-Dutch border between 1933 and 1940. Most of them came from Germany; others were so-called ‘East Jews’ who had migrated to Germany from Poland or Russia. As in most other countries, such as Belgium and France, new rules were drafted to prevent their entry. These rules only applied to ‘refugees’ or, in other words, to ‘those who were forced to flee from their country by local circumstances’.2 Since Jews were persecuted in Germany, all Jews who entered the Netherlands were assumed to be refugees, whether or not they wanted to be labelled as such. In May 1938 the government decided that ‘refugees’ (by which they meant Jews) could no longer en-

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ter the country, even if they had passports, employment and money. The fact that these new rules were not in accordance with the Aliens Act was tacitly ignored. The German-Dutch immigration treaty of 1904, which stated that all German citizens who did not pose a risk to public order and who could provide for themselves had to be admitted to the Netherlands, was ignored as well. Remarkably, very little atten- tion was paid to these violations of the law.

In May 1938, crossing the Dutch border became an illegal activity for refugees. Initially policymakers did not focus on the distinction be- tween legal and illegal immigrants, but on the distinction between aliens (which referred to immigrant workers) and refugees. Aliens were treated according to the Aliens Act and to the law regulating the employment of foreigners. Refugees, on the other hand, were seen as a specific group of aliens who were subject to special directives. Today re- fugees also constitute a specific group. The Refugee Convention of 1951 gives them the right to apply for asylum, and they can enter the country if the border is closed to immigrant workers. Jewish refugees, however, were put into a category not with more rights – as is true of refugees today – but with fewer rights and fewer chances than ‘regular’ (non-Jewish) aliens in the 1930s (Van Eijl 2005: 196-199).

After the Kristallnacht in November 1938 many Jewish refugees en- tered the Netherlands despite restrictions and border controls. Docu- ments in the archives of the Department of Justice reveal that at this time, with a rising number of Jewish refugees, the term ‘illegal’ was used by policymakers and police officers. Tenkink, a high civil servant in the department, repeatedly wrote about ‘illegal refugees’ in his letter of 14 December 1938 to the Minister of Justice, referring to the Jewish refugees who had recently entered the country (Berghuis 1990: 44-46). The next day the Minister ordered that ‘every refugee who has entered the country illegally after 10 November shall be brought to a special camp’. Those who could be associated with ‘illegal border-crossings’ after 17 December 1938 were liable to deportation to Germany.3

From that moment on, terms like ‘illegal refugees’ and ‘illegal entry’ were used frequently by ministers, civil servants, police officers, jour- nalists and others, always with reference to Jewish refugees (Van Eijl 2005). This did not happen only in the Netherlands. The term ‘illegal’ was also being used in other countries at this time, probably as a result of entry restrictions and international debates on the ‘Jewish refugee crisis’ (Caron 1999; London 2000). However, most studies on Jewish refugees do not explicitly refer to the use of these terms in debates and letters. When the studies refer to ‘illegal refugees’, that may not be the term used by contemporary policymakers; it may be the author who uses this term to indicate a group that was referred to as ‘irregular’, ‘unwanted’ or ‘undesired’.4

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The severe entry restrictions and border controls ordered by the Minis- ter of Justice in 1938 were of major importance in the process of differ- entiation and the construction of Jewish refugees as a specific group of aliens. Not only was their flight labelled an illegal activity, but Jewish refugees in the country – whether ‘legally’ present or not – were also seen as being prone to other illegal activities including illegal employ- ment.

Although entry was restricted for both male and female refugees, Jewish men and women were not treated equally. In general, policy- makers and policemen showed more consideration for female refugees. In his order to deport ‘illegal’ Jewish refugees, the Minister, for one, was willing to make an exception if the deportation would be very harsh and involved ‘single women and children’. Men who crossed the border illegally were sent to one of the special camps for ‘illegal’ refu- gees. Women and children who entered the country illegally were ac- commodated in private houses outside these camps.5 In addition, the official ban on employment for refugees was less strictly enforced for women. Male Jewish refugees rarely succeeded in getting work per- mits, while female refugees were sometimes allowed to work as domes- tic servants because of the shortages in this profession. Small groups of female refugees even received permits to enter the country to work as domestics (Van Eijl 2005: 201).

In the Netherlands, Jewish refugees were the first group of aliens who were referred to as ‘illegal’ in public discourse, government docu- ments and ministerial orders. This was the result of specific regula- tions that categorised Jewish refugees as unwanted aliens who had to be refused at the border. All those who still managed to get through en- tered ‘illegally’ and were threatened with deportation.

2.4 Conclusion

The 1849 Aliens Act could have been the starting point of the process of ‘illegalisation’ in the Netherlands, but due to a lack of implementa- tion the law did not result in a clear distinction between legal and ille- gal aliens. Rather the opposite happened: entry regulations were hardly ever applied and after some decades only a few aliens still received offi- cial residence permits. Although certain categories of aliens were con- sidered unwanted, there was no concept of ‘illegal’ immigration for a long period after 1849.

Still, processes of exclusion were evident in the nineteenth century aliens policy. Not all aliens were treated equally and their treatment was not always in accordance with the Aliens Act. The special policy on gypsies that went into effect at the end of the 1880s is an early ex-

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ample of differentiation and exclusion. However, at this stage the policy was too fragmented, the implementation too defective and the group too small to lead to ‘illegalisation’. This observation indicates that the concept of migrant illegality did not simply arise as the result of stric- ter immigration regulations, but that it also depended on the opportu- nities and willingness to enforce these laws. The use of the term ‘ille- gal’ in relation to immigration dates from the end of the 1930s. In 1938, the entry restrictions for Jewish refugees were so severe that in effect they constituted a closing of the border. The refugees who ig- nored the ban and entered the country had the dubious honour of being the first ‘illegal aliens’ in the Netherlands.

Before the 1930s there was no concept of immigrant illegality. When the term ‘illegal’ appeared towards the end of the 1930s it was re- stricted to entry and stay. Illegal work by immigrants was not a major issue in the Netherlands before 1945 (and even before the 1970s). Apart from a very short period in the beginning of the 1920s and in the years after 1934, when immigrant labour was bound by regulations, aliens were free to work wherever they wanted. When migrants worked without a permit at the end of the 1930s, it was not the alien worker but the employer who broke the law. Working without a permit did not make them ‘illegal aliens’, nor did it make them ‘deportable’.

The categorisation and exclusion of immigrants existed long before the 1930s, mainly in the form of a deportation policy. Throughout the period of 1849-1940, poverty was the main reason for deportation. Alien men ran a much higher risk of being deported than alien wo- men, either because they were more often without means of subsis- tence or because the police targeted alien men more than women. Pol- icymakers and the police had more compassion for women, something that was also apparent in the policy regarding Jewish refugees. Another important conclusion is that women were deported on different grounds than men. Many foreign prostitutes and some foreign domes- tic servants were expelled because they were suspected of indecent sex- ual behaviour. There were no controls placed on the sexual behaviour of foreign men, nor was this considered a reason to deport them.

This policy on control and deportation illustrates a connection be- tween the sexual behaviour of women and legal stay. Few studies have concentrated on illegal migration in the period between 1945 and the end of the 1970s, and there is no indication of any further develop- ment of a gendered concept of migrant illegality. Studies on migrant women in recent decades often concentrate on trafficking and prostitu- tion, which suggests that illegality is still (or once again) strongly re- lated to female sexual behaviour (see also the introduction to this vo- lume). More research is necessary to find out when and how this con- nection between sexual behaviour and migrant illegality reappeared in

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the post-1945 period, both in migration policy and in public and scho- larly debate.

Although differentiation and exclusion had been apparent in Dutch aliens policy since the late nineteenth century, the terms ‘illegal entry’ and ‘illegal stay’ did not enter the debate until 1938. This change of terms – from unwanted or undesirable to illegal – is not just a matter of changing fashion, but signifies real changes, both in immigration policy and in the conceptualisation of aliens. The use of the term ‘ille- gal aliens’ indicates increasing differentiation between citizens and aliens and between various groups of aliens. This discrimination is based on an immigration policy that is highly exclusive: rigid legal reg- ulations for entry and stay (at least for specific groups), a strict enforce- ment of the laws and the threat of deportation for those who ignore the rules. Several developments fostered this process of illegalisation. Since the nineteenth century, state interference and state control had increased considerably. It became even stronger after the First World War. An important example is the interference with unemployment benefits and the labour market. A process of centralisation and a rapid growth of the bureaucratic system accompanied the process of state for- mation. The administrative machinery and the growth of the local aliens police enabled much more control of the entry and residence of aliens.

But changes in the role of the state and in legal restrictions were not the only decisive factors in the process of illegalisation. This example of the Netherlands illustrates that ‘illegal’ aliens only appeared when there was concern about too many foreigners entering the country and when further immigration was considered undesirable. The economic depression had resulted in high unemployment, which was still high when the Jewish refugees started coming to the Netherlands, and there was considerable pressure in the 1930s to restrict immigrant labour. Although the ‘illegalisation’ of Jews was not the immediate result of the economic depression and high unemployment, processes of cate- gorisation and exclusion of immigrants intensified during these peri- ods (cf. Rosenberg 2006). Another indication of this connection is the process of illegalisation during the post-war period, which stagnated in the first decades that were characterised by labour shortages while it ac- celerated after the oil crisis and increasing unemployment in the 1970s.

Immigration regulations and control have always concentrated on specific groups of aliens such as gypsies and Chinese immigrants. It is hardly surprising that the concept of illegal immigration was not shaped in relation to immigrant workers but in relation to Jewish refu- gees. Unlike other groups who had migrated to the Netherlands, such as the ‘other’, non-Jewish Germans and Belgians, the ethnicity and cul-

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ture of the Jewish refugees, and especially of the ‘East Jews’, were per- ceived to be very different from that of the Dutch (Van Eijl 2005). In this respect there is a similarity with the much smaller groups of gyp- sies and Chinese immigrants, who were also portrayed as exotic people with aberrant behaviour and odd habits. Although anti-Semitism cer- tainly existed in the pre-war period in the Netherlands, the illegalisa- tion of Jews was connected to a more general aversion to immigrants with aberrant looks and aberrant behaviour. The threat these ethnic groups represented to policymakers was not only based on their sup- posed aberrant behaviour, but also, or mainly, on the fact that they could not be deported. They were stateless or belonged to states that would not take them back. The lack of bilateral treaties or diplomatic relations (and large distances) hindered their deportation. Since the aliens office and the aliens police would be stuck with them once they were inside the country, these institutions were keen to prevent their entry. Accordingly, it was not only ethnicity or anti-Semitism that con- tributed to the construction of illegality of Jewish refugees, but also the fact that they were not deportable.

The distinction between legal and illegal immigration that entered the debates in the 1930s would not disappear thereafter, although dur- ing some periods there was more discussion and more policy formu- lated to fight illegality than in other periods. Since the economic de- pression in the 1970s, and especially since the considerable increase in the number of asylum seekers in the late 1980s, concern about the ille- gal stay of refugees and migrant workers has increased. The process of illegalisation during this period is usually related to the welfare states. Exclusionary policies should prevent too many immigrants from mak- ing use of welfare provisions that have been planned as a system of mutual solidarity. Yet there is little research on the construction of il- legality in the post-1945 period, and it is not clear if and how illegalisa- tion is related to the development of the welfare state. Recent studies on illegal immigration in the Netherlands that deal with this period (Engbersen, Van der Leun, Staring & Kehla 1999; Staring 2001; Van der Leun 2003) are mostly concerned with the dimensions of illegal immigration, mechanisms of survival and incorporation of illegal im- migrants, and pay less attention to the concept of illegality. The find- ings in this chapter on the pre-war period indicate that the emergence of illegality was connected to the development of the state, but also to gender, ethnicity and deportability. Further research will be necessary to see if these mechanisms still played a role in the construction of mi- grant illegality in the post 1945 decades.

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Notes

1 Especially in the first half of the 1920s, many more Germans were deported than the

number recorded in the Algemeeen Politieblad suggests (see Van Eijl 2005: 230).

2 Letter from the Minister of Justice to the Council of Ministers, 17 March1938

(National Archives, 2.06.001, no. 5185).

3 Circular from the Minister of Justice, 15 December 1938 (Amsterdam Municipal

Archives, 5225, inv. no. 4312).

4 This also applies to Rosenberg’s study of Paris (2006). He frequently refers to ‘illegal

aliens’ or ‘illegal workers’ in Paris in the 1920s and 1930s, but it is not clear whether

those terms were used in contemporary sources. See also the papers from the confer-

ence ‘Refugees from Nazi-Germany’ in 2004 (Caestecker & Moore, in press) and the

discussion on H-net on the use of term ‘illegal immigration’ in historical debates,

papers and public discourse, started by Franck Düvell in March 2004 (http://h-net.

msu.edu/cgi-bin/logbrowse.pl?trx=lm&list=H-Migration).

5 Camp Westerbork, which was build in 1939, was meant to accommodate both legal

and illegal Jewish refugees (including single women and families), though the trans-

fer of refugees had hardly started when the war broke out.

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