Illegality from Within

Introduction

Deportation is one of the penalties of illegal migration. An errant migrant is expelled by the society in which he has inserted himself and is returned to the society from where he came. Penalties are designed to be commensurate with the severity of a crime, hoping to deter future ones and to reform the perpetrator. If deportation is a penalty, can it be said that expulsion is a solution to the undesired behaviour of the migrant? Or, since migration is about membership, is deportation just enforcement by the sovereign of its membership regulations? Whether as a penalty or as a sovereign act, does deportation result in reformation of the erring migrant? Put differently, can the origins of illegal migration be found outside the host country’s borders, such that the surgical removal of illegal migrants through deportation stops illegal migration?

This paper revisits the persistence of illegal migration, identifying one core mechanism that sustains migrant illegality from within Japan. A mechanism, in its crudest form, is a process through which inputs become outputs. In more complex manifestations, mechanisms involve a confluence of intervening factors that bear down on inputs in ways that create outputs other than those originally envisioned. Japan’s immigration policies when constituted as process and input, reveal the interlocking variables that conspire to make Japan’s illegality regime at once intractable yet emergent: that is to say, transcendent of its constituting parts and transformed by its participating individuals (Archer 1998, p.359-360).

The paper begins with an overview of illegal migration in Japan better to contextualise the current proposed argument on its sustenance from within Japan. A framework showing both the temporal and spatial aspects of migrant illegality is then proposed to delineate the logic of the arguments presented. Within this framework, ethnic groups are then argued to have certain characteristics formed through historically-specific circumstances that enable them to become magnets and anchors of migrant illegality, constituting what is theorised to be a Compatriot Mechanism within a larger Illegality From Within mechanism. The inner-workings of this mechanism are analysed in the particular case of the Status of Residence System of Japan.

Informed by the critical realist views on emergence, this Compatriot Mechanism is clarified to operate within an emergent migrant illegality that thrives in spite of the active suppressant strategies employed by the state against overstayers.

The paper concludes with two specific actionable points posed to migration policy makers anchored on its argument of an emergent Illegality from Within.

Overview of Illegal Migration in Japan

In illegal migration some form of preference of a nation state on the manner of human mobility is not realised. Preferences on human mobility define not only border porousness but also various forms of restrictions for those allowed through. Since these preferences generally follow economic cycles influenced by political philosophies dominant in the host state, illegal migration can be viewed as human mobility that is non-compliant with a host state’s preferences, but compliant with other imperatives that incessantly sustain it.

Thus, looking at a chronology of major preferences and restrictions (or negative preferences) implemented in Japan we may be able to trace both suppressant and stimulatory policies on human mobility and ultimately the resulting illegal migration from those efforts (see Diagram 1).

I discuss in more detail the significance of individual items plotted in Diagram 1 in another section, but for the purposes of this overview, two points are noteworthy:

Bases and Location: Japan’s preferences and restrictions have spanned a wide gamut of both Bases and Location factors, indicating a substantial knowledge base on human mobility. Blanket exclusions based on nationality to uniquely targeted stipulations based on job type were implemented at overseas to local sites. Moreover, the sequencing of the interventions plotted in Diagram 1 cannot be said to be following the expected learning progression, that is, from least (overseas) to full (local) location and from all-encompassing (nationality) to targeted (job type) bases. Instead, Diagram 1 indicates that Japan’s policies followed the exigencies of the times, explaining the seeming non-order in the sequencing of its preferences and restrictions on human mobility.

Quantity and Quality of Illegal Migration: In Japan, then, I argue that illegal migration began with illegal emigration during a roughly four-decade period (1870s-1910s) of government-sponsored and government-managed emigration. One hundred forty seven Japanese labourers left for Hawaii despite an emigration ban (Moriyama 1985) and various government stipulations were violated by both companies and individuals involved in the emigration process (Sugimoto 1978; Moriyama 1985; Ichioka 1988; Iwasawa 1986 cited in Kearney 1998: 201; Weiner 1994; Patterson 1984).

The period 1895-1945 laid the foundations for deeply embedded ethnic groups to function as magnets and anchors of migrant illegality. Supposedly then-Japanese citizens (previously Koreans before the 1910 annexation) were actively recruited as labourers during both world wars but were subjected to various exit and entry restrictions on both the Korean and Japanese borders (see numbers 4 and 6 in Diagram 1). Weiner (1994: 121) lists between 800 and 7,000 Korean “illegal” immigrants apprehended yearly between 1929-1939. It is argued that many from the approximately 2 million Koreans in Japan by 1945 (Weiner 1994: 198) who were repatriated to Korea after the end of the war returned to Japan illegally (Hwaji 2010: 333), finding more hardships in their homeland.

In the succeeding postwar decades, as the legal status of Koreans remained in flux, various job market stipulations, social insurance regulations and administrative procedures on registration of Koreans were widely perceived as discriminatory (Chung 2010, Hwaji 2010, Morris-Suzuki 2010). Sparsely available data estimated senzai kyojuusha, or people “living hidden lives,” at between 50,000 and 200,000 in 1959 (Morris-Suzuki 2010: 180). Final clarity on the status of the post-WWII Korean minority of about 600,000 by 1948 (Morris-Suzuki 2010: 64) and their descendants would be reached only in 1991 when permanent residence was given without any of the conditions of two earlier laws in 1965 and 1981.

In the mid 1980s and early 1990s, stocks and flows of foreigner groups increased substantially in response to various immigration initiatives (see numbers 8-10 in Diagram 1) including the return of Japanese descendants, the entry of technical trainees and the recruitment of more foreign students. The entry of these “new-comers,” as they would often be called (in contrast the Koreans and Taiwanese “old-comers”), coincided with a watershed of sorts for migrant illegality in Japan.

A scanning of annual police reports from 1973-2011 shows a shift of emphasis to “internationalisation of crime” (National Police Agency 1973-2011) in the 1980s. In the 1970s Korean and Chinese crimes were a regular staple in the reports, and were classified the chapter heading called “activities and investigation.” In the 1980s crimes by “visiting foreign nationals,” referring to foreign visitors on short-term stays, began to be reported. Illegal immigrant statistics were now found more frequently under the heading “maintenance of public safety.” The 1987 police report focused heavily on globalisation, citing new-comer crimes by Filipinos, Nigerians and Pakistanis. By 1990 the whole of chapter 1 discussed the problems of foreign workers, linking work in the sex industry and unskilled labour with migrant illegality.

This noticeable shift in police action and reporting, needless to say, were based on corresponding changes in the legal framework against illegal migrants.

Revised at least eighteen times since its maiden version in 1952, Japan’s immigration control law received its first major overhaul in 1981 when the residence status system—clearly defining authorised activities and length of stay—was first introduced (Mori 1997). Previous to the 1981 revision, migrant illegality in Japan meant essentially illegal entry by Koreans and Chinese who were not descendants of old-comer Koreans and Chinese or various crimes committed by the latter. This 1981 revision created the overstayer category.

The 1989 revision then began the regular planning cycles of the immigration bureau, creating the Basic Plan for Immigration Control, now currently on its 4th edition of 2010. This began the regular tabulation and dissemination of official statistics on migrant illegality in Japan starting in 1990, as summarised in Table 1.

In summary, migrant illegality in Japan began with illegal departures by Japanese contract workers in 1868. A colonial past created Koreans (and Taiwanese) as generationally entrenched ethnic groups that subsequently defined migrant illegality in the postwar decades up to the 1970s. “Internationalisation” of the 1980s and 1990s saw intensified focus by government agencies on migrant illegality now both wider in breadth, covering new-comer groups, and deeper in depth, covering overstayer and illegal work categories.

The ‘Sustenance of Migrant Illegality’ Framework

While the causes of illegal migration have been exhaustively discussed in current literature, what sustains it has received less attention. In this paper I make a distinction between the causes and the sustenance of migrant illegality in order to highlight key differences and nuances of implementation between preemptive/proactive immigration policies (addressing causes) and reactive/management of existing illegal migration (prevention of sustenance).

If the causes of illegal migration could be arranged in chronological order, then the opening or closing of borders would be the most seminal of causes as illegal migration presumes a nation-state enforcing its defined, legal migration regime within closed borders. Various European and Northern American countries alternated between open and closed borders from the 17^th to the mid 20^th century, showing that illegal emigration in source countries in fact preceded illegal migration in destination countries as the departure of highly-skilled workers from source countries was prohibited.

The state of open borders did not mean a lack of interest in human mobility across national borders or an absence of immigration or emigration controls. Instead, as Fahrmeir et al qualify, the 19^th century saw multiple, active forms of experimentation of entry and exit controls and motivators which, while not limited to simple opening or closing of borders, established the precursors to qualitative assessment of immigrants and emigrant, showing that a wanted/desirable-unwanted/undesirable continuum of migrants preceded the simple legal-illegal migrant classification dyad of today (Fahrmeir et al. 2003, p.2).

At this point, it is also worth mentioning that active expulsion of migrants by nation-states also necessarily predated illegal migration due to this virtually intrinsic qualitative rating of societal non-members.

But if the permeability of borders created illegality among existing mobile populations (and future migrant arrivals) caught between alternating, official definitions of migrant desirability, are there any direct causes of migrant illegality at the source state? The question may seem both untenable and irrelevant. Migrant illegality is consummated, as it were, by terminologies in the destination state. Source states stand to benefit from remittances regardless of the emigrants’ compliance or non-compliance with departure laws and regulations.

Yet here lies, I argue, an underrated variable in the migrant illegality paradox created by its destination-centric operationalisation. While migrant illegality, as currently defined, occurring in or caused by source states may not be conceivable for the above-cited reasons, if only for the reason that source states are just that, the sources of migrants without legal status, then they are unavoidably a central part of the paradox. If not accurately conceived as causes then the configuration of source states in migrant illegality may be more aptly seen as ‘sustenance from without.’ Identified causes will stay as mere potential illegality, at best, or self-terminating, finite illegality, at worst, if identified variables do not occur, albeit in differing, yet complementing forms, in both destination and source states. A consistently persistent, virtually universal phenomenon such as illegal migration cannot continue to thrive without both causes and sustenance, possibly with more importance on the latter. The difference is, I argue, beyond mere semantics, as I continue to make more explicit below.

The causes of regular migration that occurs at source states are exhaustively discussed by, for example, Massey et al. (1993) and a host of other authors, and thus I will not focus on these any further. What authors theorise to be the reasons why regular migrants become irregular, once they are physically present in the destination state, are what I will now re-examine using an alternative ‘sustenance of migrant illegality’ framework.

Figure 1(a) shows the Sustenance of Migrant Illegality Framework (SMIF), highlighting what I argue to be the four essential and complementing policy spheres of migrant illegality. Causes (C) and sustenances (S) of migrant illegality occur at both the destination (D) and source (S) states, as reflected in the four spheres—DC, DS, SC, SS. Migrant illegality, represented by the shaded areas, is located within each of the four policy areas.1 These four migrant illegality sub-areas form a coherent whole spanning causes and sustenance in both destination and source countries. While this paper focuses on the sustenance of migrant illegality at the destination country (DS), it will unavoidably draw the validity of its arguments from the holistic coherence and complementation of the other three spheres (DC, SC, SS).

The interaction among the four SMIF spheres can be best described as systemic, in that each aspect or action occurring in one sphere (done by a migrant or spurred by a policy item) will always have a counterpart aspect or action in any of the other spheres that result in either complementation or negation of effect. Each of the four spheres is an essential component of a systemic whole.

Skeldon (2009) explains the multiple routes that may result in migrant illegality, highlighting those processes that can move only with some measure of migrant agency, particularly the contracting of human smugglers. Similarly, Massey (1999) makes sure to include the importance of the decision-making of migrant actors based on pre-existing plans together with three other structural determinants of international mobility. Migrant illegality occurring through intentional (high level), consequential or accidental agency is represented in the SMIF framework (see Figure 1(b)) by which sphere the arrow originates from and to which sphere the arrow intends to go (as shown by the direction of its arrowhead). Solid arrow lines indicate migrant regularity/legality. Non-solid arrow lines represent migrant illegality.

Six types of migrants will be discussed in three groupings organised according to their origin within the SC sphere and their destination in the DC sphere.

Group 1: Potential migrants who meet the requirements of the destination state originate from the ‘regular’ (white) portion of the SC sphere (see arrows a and b). They are qualified and can afford the costs of becoming and maintaining themselves as regular migrants, fully intending to stay regular migrants.

There are also migrants (see Figure 1(b)) who started out as intentional regular migrants and do become regular migrants (b1) but eventually some of them lose their legal status (b2) as a result of administrative procedures (Baldwin-Edwards and Kraler 2009) with which they are unable to comply, a situation which has been called ‘institutional irregularity’ (Abella 2000 cited in Baldwin-Edwards and Kraler 2009).

Group 2: Not all potential migrants in the SC sphere meet the quality standards set by destination states, mainly: an education, skills, experience.2 Originating from the shaded area in the SC sphere are potential migrants (see Figure 1(c)) who propel themselves into qualified status, acquiring required credentials through any means possible. Those who invest what are small fortunes relative to their asset base but employ only legal methods to acquire credentials are determined to stay regular migrants (arrow c), succeed in doing so (c1), but may also fall out of regularity due to administrative factors (c2).

With equal migrant determination, though opposite in selection of means and ultimate destination, some migrants are fully aware that that they cannot enter destination states legally with their current credentials. They thus acquire credentials fraudulently, enter into the DC sphere legally, but with the clear objective of violating the terms of their visa and losing their legal status (arrow d).

One compelling question among c2 and d1 migrants is whether they aspire to regain legal status? Stated differently, was the quality of their lives as migrants with legal status inherently better than their lives without it? Ultimately, the paths to regain legal status made available by destination states—occurring in the DC sphere and prompting corresponding responses occurring in other spheres—may play some role in their decision-making to aim for regularisation but are, in fact, far from defining it.

For example, unlike in Greece, Italy, Spain and Portugal where the frequent staging of regularisation programs virtually becomes the de-facto immigration management tactic (Baldwin-Edwards and Kraler 2009), Japan’s attempts at introducing proactive strategies to lessen its overstayer population has been conflicted, at best. Overstayers are offered a reduction in the length of the re-entry ban (from five years to one year) or a chance to apply for the ‘Special Permission to Stay’ and regain their legal status(Japan Immigration Bureau, 2004a; Japan Immigration Bureau ca.2005). Yet this applies only to overstayers who voluntarily surrender and only to those where overstaying is the only violation committed. Considering that many overstayers enter Japan through the d1 route and knowing that their fraudulent entry is another violation, it becomes simpler and more practical to stay without legal status.

This will be discussed in more detail in later parts of this paper, but suffice it to say at this point, that the overstayers’ decision not to take the voluntary surrender route to regain legal status, does not deter his determination to legalise his stay. Given sustenance by compatriots in the DS sphere and buoyed by validation sustenance from significant others in the SS sphere, some overstayers are able to secure legal status though still through fraudulent means (d2). The badly-designed voluntary surrender program aimed at reducing the number of overstayers in Japan, now acting in confluence with pre-existing, sustenance inputs in other spheres, ends up reinforcing irregularity rather than reducing it.

Group 3: Whereas migrants in Group 1 (a and b) and Group 2 (c and d) had varying origins within the SC sphere, all reached the destination state passing through its legal entry points, though with varying authenticity of documentation. Group 3 migrants skip legal entry points altogether and enter straight into illegal status (see Figure 1(d)).

When land or sea borders of a destination state allow it, economic migrants (those seeking work) who otherwise would not qualify to receive legal entry permission choose this most direct—though often also the most perilous—entry path (arrow e). Some of these migrants are able to gain legal status fraudulently (e2). Those under some form of persecution in their home country, or under life-threatening situations due to a natural disasters or wars, may—by force of circumstance—also enter not through the legal entry points (arrow f). Their departure impetus defines their goal of achieving regular refugee or asylum-seeking status (f2) though those not granted such may then lose legal status (f1).

Summary: Figure 1(e) presents the six migrant types (arrows a-f) altogether, allowing us to theorise two critical points on the interplay between migrant origin (or migrant eligibility), migrant destination (or migrant goals and aspirations) and migrant entry route, as follows:

1. Migrant origin (i.e. eligibility) alone does not determine migrant destination (i.e. which portion within each sphere).
2. Ineligible potential migrants (c, d, e, f) may acquire credentials through any means in order to pass through legal entry points, if those are the only possible entry routes given the destination country’s geography, but may still target and achieve both legal status (c1, d2, e2, f2) and illegal status (c2, d1, e1, f1).
3. Conversely, eligible potential migrants (a, b) achieve legal status in destination states (a, b1) but may also, inadvertently or consequentially, fall into illegal status (b2, c2).
4. Migrant space alone does not define migrant legal status, or the absence of it.
   —There may be irregular migrants fraudulently occupying regular migrant spaces (see trajectory of arrow d).
5. There may also be potential migrants with valid humanitarian reasons yet without valid documentation who enter via the irregular migrant spaces (f) and gain legal status (f2) or fail to secure or are denied legal status (f1).
6. Migrants with prior fraudulent transactions (d, e) may have no recourse but to reinforce or repeat their administrative infractions in ultimately gaining legal status in regular migrant space (d2, e2).

The significance of these two theorised points to immigration policy dynamics—particularly in the sustenance of migrant illegality—is found not in further complicating the issue of illegality, but in resolving it. Complicating migrant illegality would be to use these two points and argue that self-serving entry and residence regulations are the root cause of illegality. Resolving migrant illegality would be to learn from these two points and ask how we can harness varying levels of migrant eligibility to improve consistency between the growing demand for migrant labour in Japan and the available options for legal entry and residence. Complicating illegality is reactive; resolving illegality is proactive.

Thus far, we have applied the SMIF to organise and classify what I argue to be destination-centric narratives, that is, centrally, that the causes of migrant illegality are found in destination states (or the DC sphere). These narratives and their emphasis on the spatial features of migrant illegality are surpassed only by their underemphasis of its temporal characteristics.

The persistence, versatility and sheer tenacity of migrants without legal status who survive for long periods in hostile environments can be adequately understood only if we take a systemic, holistic view that begins with ‘causes’ and rounds up with ‘sustenance’ variables. From a temporal perspective alone, once migrants are ‘caused’ to lose legal status—once they already exist in the shaded area of the DC sphere—what allows them to persevere and, for some, even to thrive and attain to hitherto unknown potential even without legal status?

Quite simply, now applying the SMIF, what sustains illegality?

As I argue that the SMIF spheres are systemic in their interaction with one another, the corollary question then is: what variables or mechanisms occur in other policy spheres that complement or counteract the sustenance of illegality?

Illegality From Within

In this section I discuss one mechanism3 that constitutes what I argue provides foundational sustenance to migrant illegality in Japan: the compatriot mechanism(cTm).

Status of Residence System

We will analyse the Status of Residence System (SRS) of Japan as an input, breakdown its expected process and intended outputs, and see how the cTm wedges itself in this equation. Figure 2(a) converts the SRS into a two-axes framework.

As Input: Instituted in 1981 as Japan’s framework for immigration control (Mori 1997), SRS has two components, expressed as a formula as follows: status or position + authorised activities = SRS (Japan Immigration Bureau 1994). Status or position is essentially a proxy for the variable ‘duration,’ expressed in time (months/years), plotted on the x-axis of Figure 2(a). The phrase “authorised activities” is, I argue, a proxy for the variable ‘productivity’—or the unit of output produced per unit of input—as plotted on the y-axis in Figure 2(a). This is because “authorised activities” essentially refer to the control of the labour variable input of foreigners; that is, the right to work in Japan.

Figure 2(b) thus plots duration against productivity, culling out four core SRS status groups.4 Except for ethnic-based statuses (arrow b—Koreans/Taiwanese special permanent residents, permanent residents, Nikkeijin/Japanese descendant long-term residents, spouse/child of Japanese—to be discussed in further detail below), all statuses have residency permissions with finite durations, as shown by the direction of the arrows heading towards the left, or heading back to the source country. Duration is directly correlated with productivity; that is, the greater a migrant’s type and permission to work—as shown by the steeper arrow incline, the longer the allowed periods of stay (seen through the vertical lines along arrows) and, corollary to this, the more lenient the application of renewal requirements.

Arrow c, d and b (Specialists, etc) have zero productivity incline as they are either fully prohibited from working or are restricted to a particular type of work and a particular company. Highly-skilled migrants (arrow a) have the greatest productivity (steepest arrow incline) since they are offered a slew of motivators—including, for example, allowing household helpers to be brought in from the source country, or allowing multiple activities (read as: work) to be done. While there are still limits to their duration of stay (arrow heading left), the SRS system has built in generous permanent residency options (small arrows heading back to the right side) within the program. It must also be noted though that duration limits are applied even to ethnic-based statuses which, theoretically, have no limits to their residency period in Japan (arrow heading toward right side).

As Process: Duration and productivity as SRS inputs then funnel through the Japanese bureaucracy in a process implemented by the local government and enforced by the local police. The Alien Registration System in Japan, recently abolished and now nationalised through the 2012 New Residency Management System, was handled previously by local governments (the role of the local government in the analysis of this paper will thus be analysed retrospectively). In terms of SRS enforcement, while regional or national immigration officers may also conduct inspections, raids or other immigration control activities at the local level, it is the local police that have a consistent presence at the community level.

As Output: Inputting duration and productivity rules and implemented locally by the local government and police, the intended output thus will be foreigners whose existence in the country are compliant with a defined timeframe and defined activities.

SRS and Differentiated Ethnic Pockets: The SRS is significant to my theorised ‘Illegality from Within’ formulation because it mirrors vibrant ethnic populations that have successfully differentiated themselves along the unskilled-skilled divide in the local labour market of Japan. As represented in Figure 2(b), SRS translates to Duration and Productivity variables that are carefully wielded by policymakers, applying them to migrant workers in ways that are consistent or supportive of the requirements of the local labour market.

The SRS concretises and formalises the existence of thriving foreign ethnic populations in Japan (Korean, Taiwanese)—forged through very specific historical conditions.

Unlike other residence visa systems in other destination countries, Japan’s SRS has two extra, specialised categories for those it considers permanent residents. The status named ‘Special Permanent Resident’ is applied to Koreans and Taiwanese who were in Japan before and during World War II, including their descendants. The status named ‘Long-Term Residents’ is applied to returning migrants who are direct descendants of Japanese overseas who, as we shall see in the succeeding discussions below, originated mostly from Brazil and other South American countries. Lastly, the status named simply as ‘Permanent Resident’ is applied to any migrant, not part of the two specialised two categories discussed above, who is eligible for permanent residency.

The point I would like to make here is that the specific historical conditions that gave birth to these ethnic pockets—their complete embeddedness in Japanese society now actualised through the SRS—have essentially produced individuals that have full local knowledge yet, at best, with loyalties looking inward. Simply put, these ethnic pockets are essentially local survival experts who are eager to help compatriots in any way regardless of legal status.

On Filipinos in Japan. For over two decades (1980s to 2004) a significant number (57%) of Filipinos who came to Japan were entertainers and among other nationalities of entertainers in Japan, quite a number (55%) were Filipinos (see Table 2, cells T2a-c). Filipina entertainers outnumbered entertainers of other nationalities both in terms of percentage within their ethnic groupings (T2b) and in terms of total numbers of entertainers in Japan (T2c). Filipina entertainers also stayed longer in Japan (80% of all registered entertainers, T2i).

The tightening of visa rules on entry of entertainers in March 2005, while it in fact lessened significantly the total flows of entertainers (T2d), did not end the preference for Filipina entertainers (T2f). In the 2005-2011 period, nearly seven of every ten (68%) resident entertainers were still Filipinas (T2l).

While there are no explicit figures that can trace where the excess population of Filipina entertainers went after the visa tightening, it is common knowledge (and is consistent with my respondent and key informant interviews) that those who could switched to spousal visas (SCJ) and eventually to permanent resident visas (PR). The substantial increases in the numbers of all ethnic-based visa categories of Filipinos in both flows and stocks between the 2005-2011 (T2d,f,j,l) and 1987-2004 (T2a,c,g,i) period may support this belief.

Various narratives attempt to explain the fact that entertainers spearheaded the phenomenal growth in the numbers of resident Filipinos between 1980 and 2000 (nearly 25 times larger: from roughly 6,000 in 1980 to 145,000 in 2000) (Japan Ministry of Justice ca.2013)). Yu-Jose first highlights the difference between, on the one hand, earlier Filipino musicians in Japan in the late 19th and first half of the 20th century who played various musical instruments—thus constituting ‘real’ entertainment, and, on the other hand, the more contemporary entertainers who were mostly perceived by the Japanese as prostitutes (Yu-Jose 2007, p.63). Strict Japanese visa regulations, Yu-Jose argues, for which most Filipino workers at current skill and financial resource levels could not qualify, combined with Japanese cultural preferences excluding foreigners from certain service jobs, resulted in Filipinas embracing the entertainer work option. Sellek similarly emphasises the primacy of economic motivations of Filipinas taking entertainer work (Sellek 2001). Suzuki cautions against simplistic, uni-dimensional narratives, emphasising the historical, contextual and multi-faceted decision-making processes of the entertainer (Suzuki 2011). Abe suggests that the peak of Japanese economic prosperity in the 1970s and 1980s spawned what he calls ‘sex tourism’ by Japanese male tourists throughout Asia, which became the foundation of the later mass entry of Filipina entertainers to Japan in the succeeding two decades (Abe 2009).

I will purposely limit my dialogue with the narratives I cited above to covering only how the phenomenon of the Filipina entertainer contributed to the sustenance of migrant illegality in Japan. The main point I would like to make is that specific historical conditions created the ubiquitous Filipina entertainer and this, in turn, became a stepping stone to ethnic-based statuses—as spouses of Japanese, and subsequently as permanent residents, or through their offspring, as children of Japanese, or through their descendants now entering Japan as long term residents.

The entertainer visa represented for the Filipinos what the SPR visa was for the Koreans and Chinese and what the LTR visa was for the returning Brazilian descendants of Japanese (T2h,i,k,l): that is, a catapult to the top of a pecking order of closely-calibrated, outsider access to insider information through their entry into ethnic-based residence statuses. With much closer, more intimate and wider access to Japanese society as spouses, children and permanent residents than other residence statuses, an enculturated, fine-tuned Filipino survival sense inevitably became the default operating mode, ready to be accessed by all compatriots who needed it.

That Filipinos have consistently been among the top three groups of overstayers in Japan over the past two decades (1990s to 2012, Table 1) may indicate that these ethnic-based Filipinos in Japan, through the SMIF, provide critical sustenance to migrant illegality in Japan.

The Compatriot Mechanism (cTm)

The Compatriot Mechanism is defined as inputs provided and processes catalysed by ethnic pockets, occurring in the DS and SS spheres of the SMIF (of Figure 1) and affecting SRS duration and productivity (of Figure 2), resulting in the sustenance of migrant illegality.

To be sure, that established compatriots help newly-arriving or struggling fellow migrants in a variety of ways is empirically established. Employment continuity through referrals, preferential ethnic-based hiring and overall information dissemination (Liu-Farrer 2011) and facilitation in accessing health and other government social security services are among the critical benefits of a well-cultivated and maintained ethnic network.

But do ethnic pockets help their members equally, regardless of legal status? Put differently, are there special ways that ethnic pockets harness their unique local embeddedness and integration that sustain migrant illegality? Applying the SRS within the SMIF allows a more targeted operationalisation of the Compatriot Mechanism.

Input Provided: Negation of Duration Control. Temporally, cTm first activates when it plays a central role in rendering impotent duration control by the SRS. Through the SMIF we understood that the origin of the migrant (i.e. his/her eligibility) does not determine ensuing destination (i.e. legal status). Thus, it must be clarified that cTm activates even before the migrant violates the duration specification of his visa, that is, even before the migrant goes over his authorised duration of stay (a.k.a overstays). Figure 2(c) shows the four specific roles that cTm assumes in its negation of duration control.

cTm as Starter: Their sheer presence, eventual longevity and consistent functioning as breadwinners to family and/or extended networks of dependents back in their home countries crystallises into a strong beacon, a blueprint of how their core impediments (skill level) to financial stability can be overcome through the highly-differentiated and thriving Japan labour market. Simply put, the cTm message is thus: even if one is unskilled in the Philippines and would most surely be unemployed, if transplanted into Japan through migration, one can surely eek out some basic form of economic sustainability. Beyond being passive role models, cTm even becomes pro-active when migrant illegality is encouraged, planned for, and financed from Japan.

Textbox 1 presents two case snippets5 showing cTm as starter (an input) of the newly-starting overstayer resulting in a negation of SRS duration control (an output)in the DS and SS spheres of the SMIF.

Textbox 1. cTm as Magnet and Starter
1. Subaru, a c2 case (recall Figure 1), deported in 2010 after 18 years, entered Japan in 1991 on a transit visa. A first cousin, also a former overstayer but now legalised through marriage with a Filipina permanent resident, sheltered Subaru in the critical first months to break-him into Japanese society and helped him find his first job. Authentic documents, legal entry, own financing, own staging; fully intended loss of legal status; pre-planned assistance by cousin.
2. Doble-doble, a c2+d1 case, already a deported overstayer with a 5-yr re-entry ban, married a daughter of a current permanent resident under a false name, allowing him to re-enter Japan legally (but with fraudulent documentation) as a spouse of a child of a permanent resident just one year after his first deportation. The Vietnamese husband of the Filipina permanent resident, who was the mother of the wife of Doble-doble, provided them housing and continuous job placement for the next ten years when Doble-doble was eventually arrested and is now serving a two-year prison sentence.

cTm as Enabler: The benefits of cTm as a starter extend over time when cTm as enabler plays out. As enablers ethnic pockets provide life-sustaining inputs that are otherwise inaccessible to overstayers due to their lack of legal status. Housing and mobile phones, owned or under contract by legally resident Filipinos, are commonly shared with compatriots in need regardless of legal status. The higher vulnerability of overstayers to health problems due to their work situation—that is, having to take any work under any terms and any conditions—is where cTm as enabler comes in. Through contacts cultivated with various persons in authority, in turn validated and strengthened by the networks of Japanese spouses, cTm mobilises resources that enable overstayers to access critical health services, thus prolonging their stay. Japanese employers also participate in cTm as enablers when they: a) assign Japanese names to overstayer hirees to use as aliases in required worker listings for public works contracts, b) enter into lease contracts for apartments in which they allow overstayers who work for them to live in, or c) pay upfront for health expenses of their overstayer workers which are then paid back regularly through salary deductions. Textbox 2 presents case snippets of cTm as enabler.

Textbox 2. cTm as Enabler
1. Iking, a c2+d1+d2 case, is a two-time overstayer in Japan but now, using fraudulent documents, is legalised through marriage with a Filipina permanent resident. During his second stint as an overstayer, Iking was hospitalized, the bill reaching nearly a million yen. His elder sister, married to a Japanese national, mobilized her network of contacts in the city office and, with the additional help of her Japanese husband who had been active in the election of a current incumbent official, was able to get bill paid by the city office.
2. Gandi, a b2 case, will be reaching 28 years as an overstayer in Japan by the end of 2013. Working under a Japanese alias assigned by his Japanese employer, he once figured in a work accident which almost cut his face in half. He was subsequently hospitalized and the bill was paid by his employer. He paid back his employer in full through installments over the succeeding years.
3. Manong, a d2 case, twice attempted to secure legal status in Japan through marriage, succeeding on his second try. When he needed medical services during his time as an overstayer, he would borrow the health cards of close Filipino friends and present them as his own but in clinics and hospitals in far-flung localities so as to avoid any trouble with the true health card owner.

cTm as Safety Net: As a safety net, cTm is both a proactive and reactive input to sustaining migrant illegality. When overstayers are arrested, ethnic pockets employ various strategies and tactics to interface and dialogue with local authorities in order to effect their release (reactive). Japanese employers consistently implement a fine-tuned and proven overstayer arrest avoidance protocol (proactive). Compatriots are always alert and quick to disseminate information among overstayers that may be relevant to reducing arrest risks. Textbox 3 shows examples of cTm as safety net.

Textbox 3. cTm as Safety Net
1. Etimo, a c1 case, entered Japan in 2007 on the pretense of accompanying his father for medical treatment and subsequently overstayed his visa. Once when a work accident happened, the Japanese employer quickly instructed him and other overstayers to immediately leave the work site so as to avoid being interrogated by the investigating authorities.
2. Gandi narrated an instance when he and other overstayers were involved in a car accident. While his companion overstayers, despite their injuries, immediately bolted the accident scene to avoid investigation and inevitable discovery of their illegal status, Gandi was arrested and brought to the police station. He recalls how his Japanese employer very carefully and explicitly instructed him not to speak a word of Japanese and speak only Filipino or English. He was eventually released without further investigation.
3. Bigote, a c2 case, was arrested in 2000 after 10 years as an overstayer in Japan and eventually deported. He recalls how he was once arrested for creating a public disturbance (a noisy party). The Filipina permanent resident that Bigote was living with quickly went to work, talking to the local policemen who arrested him-with whom she was acquainted with, apologizing profusely for the trouble caused. Bigote was eventually released.

cTm as Legaliser: One of the ways overstayers can achieve legal status is through marriage with either a Japanese national or a non-Japanese permanent resident (see d2, e2 in Figure 2(c)). Notwithstanding procedural safeguards to ensure authentic marriages, ineligible (currently married) overstayers nevertheless find ways to skirt these rules. To be sure, fraudulently consummated marriages remove only the omnipresent arrest risk of overstayers, but their illegality persists, albeit now masked in bogus legal status. Thus now doubly illegal in status, overstayers become overstaying ‘illegal residents,’ still under the risk of deportation if found out. Harder for authorities to detect are authentic marriages (both parties eligible) but inauthentic arrangements, sometimes called convenience marriages, where both parties benefit: the overstayer gaining legal status, the permanent resident gaining companionship or some form of financial gain. Still, given the straightforward economic existence of overstayers, the benefits of legalisation through marriage may not be worth the consequences or the trouble. Textbox 4 lists some examples of overstayers reaching legal status through marriage.

Textbox 4. cTm as Legaliser
1. Iking, married in the Philippines with kids, narrated how he paid off an insider in a Philippine government agency in order to switch his civil status from married to single. Now using authentic official documents (but with altered data) Iking married a permanent resident and was subsequently upgraded from overstayer to Spouse of a Permanent Resident.
2. Putik, a c2 case, and eligible for marriage, entered Japan legally as a Technical Trainee. Bad work conditions impelled him to overstay his visa and he subsequently married a Filipina permanent resident, thus legalising his stay. Putik concedes that though they live together, he and his wife are not intimate, their relationship being purely economic in nature.
3. Both Manong and Doble-doble, entered into their bogus marriages outside of Japan, in effect extending their first stints as overstayers into second stints as overstaying illegal residents.
4. Gandi, who is still eligible for marriage despite having (and currently supporting) three children with multiple women, currently lives with a Filipina permanent resident but hasn’t given much thought to marrying her in order to legalise. He explains that he doesn’t see how gaining legal status improves the work he has been able to do for nearly three decades without it.

Summary [of negation of duration control]: The Compatriot Mechanism through varied roles as starter, enabler, safety net and legaliser constitutes a magnet and anchor of migrant illegality as it negates the goal of duration control of the SRS. Overstayers overcome what would otherwise be stunting non-functionality given their lack of legal status by tapping into critical inputs which ethnic pockets by their very nature of full integration and embeddedness into the local society are ideally poised to provide.

Process Catalysed: Redefinition of Productivity. While Figure 2 showed us that SRS also targets to control productivity (i.e. limiting or closely controlling authorised activities across various residence statuses), a second effect of cTm as it inserts itself into the migration control formula of the SRS is a redefinition of the productivity variable, extending its scope to include the SC and SS spheres in the source country (recall Figure 1). Negating duration limits through cTm inputs does not automatically translate to higher productivity for overstayers, in the long run.

Optimum Period of Overstaying. Without any interference from cTm, SRS formulates the variable productivity for non-ethnic-based residence statuses to be co-terminous with duration, with the exception of those it perceives to be high-value migrants (the highly-skilled). But as cTm effects an extension of duration beyond the limits set by SRS, a key consequence is the inclusion of other variables into the formulation of opportunity cost (or opportunity loss) for the overstayer.

Stated simply, the overstayer’s extended stay inevitably affects mainly his/her a) psychological and emotional well-being due to the self-imposed, one-way exile in Japan; b) relations with spouses and children in the source country; and, most importantly, c) his readiness for the local labour market at the time of his impending return. The negative affects of these inescapable trade-offs are represented by the non-linear lines in a generally downward trajectory in d1 and e1 in Figure 2(c). The overstayer’s short-term benefits of continued income must now be weighed against these new long-term costs created by his successful negation of SRS duration control.

In reality, these long-term considerations on the optimum period of overstaying are rarely, if ever, in the consciousness of overstayers who, due to the inherent nature of overstaying, live on a day-to-day basis. Indeed, the paradox of overstaying is such that the violation is named solely on the basis of time when it is precisely the absence of it, or the cumulative unawareness of the true costs of the voidness of control of time, that defines its real impact: a progressive deterioration in the quality of life of the overstayer and his significant others. Textbox 5 describes the trade-offs involved in the process of redefinition of productivity as a result of the role of cTm on SRS.

Textbox 5. cTm as Redefining Productivity
1. Only in the first five of Subaru’s 18 years as overstayer were his remittances both consistent and sufficient. Gambling, alcoholism and extra-marital activities kicked in midway through his tenure, and family communication suffered and eventually got completely cut off for years on end. Upon his return in 2010, he was totally broke, his marriage was beyond repair and his three grown daughters were effectively alienated from him. His work skills acquired in Japan were effectively useless for Philippine employment.
2. Bingo, a c2 case, 19 years as overstayer, began saving, only on his 12th year, roughly (only) six per cent of his yearly income, reaching 700,000 pesos by 2008 when he surrendered. He lost half of that amount in a failed business and he spent the other half within just 15 months. He was bankrupt by the end of 2009. His work skills learned in various factories and in construction work, compounded by his age (nearing 50 years), were essentially irrelevant for employment in Manila.

Emergent Migrant Illegality

I have, thus far, argued that ethnic pockets and local authorities represent intervening variables that interrupt intended outcomes of immigration policy, constituting embedded sources of the sustenance of migrant illegality. One will wonder then why the numbers of overstayers in Japan has been on a consistent decline (on average a seven per cent decline yearly) for the past two decades since 1994 (Japan Immigration Bureau 2012).

This section will clarify how my theorised “Illegality from Within” formulation coexists with the active suppression of migrant illegality by the Japanese state. Are the forces of suppression greater than my argued mechanisms of sustenance, thus explaining the decreasing numbers of overstayers? I draw upon critical realist theory, particularly its views on emergence, in order better to inform our discussion.

One of the objectives in the 2003 Action Plan for the Creation of a Crime-Resistant Society or APCCRS (Japan Police Policy Research Centre 2003) was the reduction in the number of overstayers in Japan by half (Japan Immigration Bureau 2005). Eighteen specific anti-overstaying measures were to be implemented, contributing to the control of transnational crime, one of five key strategies aimed at restoring public safety in Japan. These eighteen measures are seen to have achieved their objective due to a forty eight per cent decrease in overstayers by 2009 (Kanayama 2009).

I re-organise these eighteen anti-overstaying measures into just seven aggregated strategies and place them within the four spheres of the Sustenance of Migrant Illegality Framework (see Table 3) using two guide questions, as follows:

1. Is the measure implemented in Japan (Destination state) or in the country of origin of the overstayer (Source state)?

2. Is the measure intended to preempt overstaying (by addressing Causes) or to apprehend and deport existing overstayers (by preventing Sustenance)?

The essential point I would like to make is that these seven aggregated strategies can be viewed as the government’s understanding of the key component parts that comprise the migrant illegality whole in Japan given that their improvement or deterrence is calculated by the APCCRS to result in the suppression of migrant illegality.

We see from Table 3 that the seven component parts relate to a totality of migrant illegality not only in a more preemptive rather than reactive way, but also that this interaction takes place at two fronts: locally and at source countries. Preemptive suppression is composed mainly of effective immigration control technology anchored on a sound legal framework that exacts the necessary compliance from parties utilising migrants for their labour or business units. Active collaboration with foreign entities enables this control infrastructure to secure critical external information inputs and overseas coordination assistance. Reactive suppression (or the prevention of the sustenance) of migrant illegality is essentially a two-pronged approach: first is a geographic focus on areas perceived to have high overstaying populations; second is a prevention of access to housing facilities.

The question posed at the beginning of this section—whether the suppressant strategies negate the sustaining mechanisms of migrant illegality—can now be re-framed thus: how do the suppressant (seven aggregated APCCRS strategies) and sustaining (Illegality From Within/cTm) component parts of a migrant illegality totality interact—among themselves and in relation to its whole—to affect the number of overstayers in Japan?

In the next paragraphs I will argue that the consistently decreasing numbers of overstayers reported by the government of Japan is the effect of its suppressant strategies on the resultant properties of migrant illegality. Decreasing numbers of overstayers give no indication of the robustness of migrant illegality as seen in its emergent properties which are sustained by, actively thrive and re-interact with, its own constituting parts.

In the critical realist theory, the concept of emergence plays a central role in its view of reality as ontologically autonomous (Lopez 2003, p.77), that is, that what makes reality persistently more than what we attempt to know of it is its continuous generation of various permutations at multiple levels. The process and the result of this emergence is described as at once cumulative and synergistic—that “the operations of the higher level cannot be accounted for solely by the laws governing the lower level in which we might say the higher level is rooted and from which we might say it was emergent” (Bhaskar 2008, p.113).

I thus apply emergence to help elucidate what I describe to be two of the resultant and three of the emergent properties of migrant illegality: the former describing its cumulative or aggregative nature drawn from its component parts and the latter describing what has resulted from the synergy of its component parts. The possibility of the “more” enabled by the critical realist concept of emergence moves me to qualify that while my description of these five theorised properties of migrant illegality is drawn from the Empirical (what I observed—as I cite case snippets and other bases of my observations), this may only be a subset of the Actual (what may be in addition to what I observed) and thus all my arguments will be describing only a part of what is Real (the Empirical and Actual and all other future emergent combinations) (Bhaskar 1975, p.13 cited in Collier 1994, p.34).

Elder-Vass (2010) defines an emergent property as “one that is not possessed by any of the parts individually and that would not be possessed by the full set of parts in the absence of a structuring set of relations between them” and a resultant property as “properties of a whole that are possessed by its parts in isolation, or in an unstructured aggregation.” Properties then of a migrant illegality totality, arising from the particular ways each of the aggregated seven strategies in Table 3 (namely: immigration control technology, the migration legal framework, compliant migrant utilisers, migrant productivity, collaboration with foreign entities, geographic focus, and blocking of housing access) interrelate, may be specific only to the resulting migrant illegality (and thus are called emergent properties) or in both migrant illegality and each of these seven component parts individually (thus called resultant properties).

Resultant Property: Innovation. Goal-driven migrants pounce on loopholes in immigration control technology to achieve, first, entry, and then, second, legitimate (legal) status by whatever means (recall c1, d1, d2, e2 and f2 in Figure 1). Whether as fulfillment of demand for highly docile and tractable labour or as willing victims providing continuing business to facilitating organisations, migrant utilisers at both destination and source states continue to flaunt migration rules backed by an impotent legal framework. Innovation inevitably translates to overstaying longevity (recall Gandi/Textbox 2) or emboldened disregard of the State’s rules (recall Doble-doble/Textbox 1).

It is the suppression of this continuing innovation by overstayers that is targeted by the APCCRS strategies including, mainly, the fortification of immigration control technology, strengthening of the legal framework, and the enforcement of compliance by migrant utilisers.

Moreover, it is similarly the innovation occurring in these individual components, reacting to separate stimuli (wholly or partly unrelated to migrant illegality itself), that brought these constituting parts into their current configuration and relational schematics that, in turn, form the resultant properties of the migrant illegality totality.

One example of these lower-level innovation instances is, as I discuss in the section on ethnic pockets, how the legal framework adopted various types of resident statuses for Koreans in Japan in its attempt either to keep them at arm’s length or achieve their full societal integration. Still another example is how Japan’s immigration control processes “anonymously,” acquiescing to the changing activities of migrants applying for the same entertainer visa category (the official definition of which remained unchanged), beginning with established musicians playing instruments and ending with supposed prostitution and a host of other alleged illegal activities.

The recent inroads into care work and English-language teaching by Filipinos in Japan also highlight innovation by both the State and migrants—a process that is essentially iterative in nature and multi-faceted in outcome. Substantial issues concerning the match between contract stipulations for newly-arriving Filipino nurses, and the concomitant educational and support infrastructure necessary to achieve those conditions (Wako 2010), are continuously ironed out by the State with inputs from various vigilant stakeholders. Long-entrenched Filipina migrants invest time and money to acquire the required training and accreditation to do care work, only to vacillate later on, as a result of issues on, among others, remuneration levels and perceived discrimination in the workplace (Ogawa 2010; Lopez 2012). Key differences in age and assigned skill level between new-comer and old-timer care workers are seen as potentially creating another layer of stratification within Filipino ethnic group (Vogt and Holdgrun 2012). Nevertheless these inroads are seen to initiate an identity reformulation process in the case of former entertainers, helping to “change” views by locals regarding Filipina workers (Takahata 2010), or in the case of Filipino English-language teachers, promoting a multicultural approach in Japanese society (Ballescas and San Jose 2010).

Innovation as a resultant property of a migrant illegality totality thus also exists at the level of its component parts. Innovation at the individual level sustains the vibrancy of the Compatriot Mechanism, further preparing it to anchor the innovation of future and current overstayers.

Resultant Property: Value Negotiation. The exigencies of migrant illegality impel its participants to a heightened urgency and shortened cycle of interrogation of risk versus benefit. Overstayers routinely grapple with both strategic choices-albeit unknowingly given the absence of perspective and uninformed by hindsight-and tactical dilemmas: the impact of short-term productivity enabled by their state-unsanctioned, extended stay on their own well-being and that of their families (recall d1/2 and e1/2 of Figure 2); deciding whom to trust with the knowledge of their (lack of) legal status especially when this assists or endangers the recommendation with which his current or next job is secured. Local authorities also find themselves weighing their more immediate mandate to enhance the welfare of their constituents versus their role in towing the national policy line (Shipper 2008). Outcomes of value negotiation of overstayers include mainly regret over long-term misprioritisation (recall Subaru/Textbox 5), the primacy of economic over all other considerations (recall Manong/Textbox 4), or humanitarian considerations on health services (recall Iking/Textbox 2).

It is this value negotiation that the APCCRS’s suppressant strategies target, by ensuring that the result of the negotiation tilts in favour of the State. One example is the 2004 Departure Order System (Japan Immigration Bureau 2004) which presented overstayers with the option to voluntarily surrender and return to their country of origin in exchange for a shortened period of banned return to Japan and the waiving of what was previously mandatory detention for all overstayers. Another instance is the 2012 abolition of the Alien Registration Law and its replacement with the new Resident Management System which centralised the registration and management of foreigner identities with national-level agencies. This had the effect of minimising or altogether negating the pattern of favourable, at worst, or, at best, neutral treatment of overstayers at selected local governments throughout Japan.

That overstayers engage in value negotiation with a keen sense of the public’s awareness of their presence can be better underscored through recurrent immigration narratives. The seven aggregate strategies of the APCCRS, for example, are framed within a message of “controlling of transnational menaces” (Japan Police Policy Research Centre 2003: 5). Namba (2011) explains that while criminalisation of immigration may be a recent global trend, Japan’s “war on illegal immigrants” launched in 2003 has been packaged together with crime prevention as a key component of public safety—an initiative of the local police since the 1980s. This approach galvanised the stake of local communities in reporting overstayers. Moreover, statistics on foreigner crime as “transnational menaces” (Kanayama 2009: 12-15) have not gone unchallenged (Takahashi 2009).

Noteworthy is the parallel immigration theme beginning also in 1980s of “Internationalisation Within (uchi naru kokusaika).” The immigration theme Kokusaika was seen as both intangible persuasion of external origin (Morris-Suzuki 1998: 194) and concrete local activity implemented by public agencies promoting various aspects of a newly-incipient globalisation (Chung 2010: 155).

Thus value negotiation by overstayers occurs amidst the public’s own negotiation of its perceived value of foreigners as, on the one hand, representing relatively benign external cultural inputs that are experienced locally or, on the other hand, constituting a real, direct threat to their well-being right at their doorstep, so to speak. The critical malaise of Japan’s harmonious society due to the breakdown of a “secure society” brought about by the projection of rampant crime created a widespread, inimical view of offenders (Hamai and Ellis 2006), among them overstayer transnational menaces. It is not surprising, then, that an official government announcement published on the Web since 2004 (Japan Immigration Bureau, 2004b) encouraging anyone with suspicions to report overstayers and other foreign “violators,” citing thirteen essentially open-ended reasons (Arudo 2004), has been met with acquiescence by the general public (Bommes and Sciortino 2011: 218).

The resultant property of value negotiation in component parts is also evident in the suppressant strategies related to productivity (see Number 4 strategy in Table 3). Foreigners with Japanese descent are singled out to be given job placement and career counseling assistance in order to head off their regression into crime. This form of value negotiation has been described as a racialised hierarchy (Shipper 2008) on which access to the employment markets is wielded most favourably for foreigners of Japanese descent.

Overstayers then seem to operate under a double or even multiple jeopardy in value negotiation, ultimately forcing them to burrow deeper into social invisibility.

Summary of Two Resultant Properties of Migrant Illegality (Innovation and Value-Negotiation): The section above argued that Innovation and Value-Negotiation are resultant properties of migrant illegality as they are found both in migrant illegality itself (that is, practiced by overstayers) and in its constituting parts (that is, as understood and operationalised through the seven aggregate APCCRS strategies listed in Table 3).

The point in arguing resultant properties of migrant illegality is that suppression efforts by the State gain traction because it has itself experienced these same resultant properties in “isolation, or in unstructured aggregation” (Elder-Vass 2010), in migration or other non-migration-related areas of its operations. The State’s efforts, however, are unable to suppress other properties of the same migrant illegality totality that are not found in its constituting parts, i.e., its emergent properties, thus bringing us to the next ideas below.

Emergent Property: Interdependence. What would otherwise be a crippling handicap due to lack of legal status is overcome by overstayers who deftly cultivate, expand and then efficiently utilise their social networks. Ironically, it is precisely the systematic exclusion produced by the State’s suppressant strategies that enables the overstayer’s inclusion within his or her ethnic community, spawning this keen sense of interdependence, consummating, as it were, the four cTm sub-types (recall discussion on cTm as starter, enabler, safety-net and legaliser).

This kind of heightened social symbiosis intrinsic in migrant illegality is distinct from, say, the refuge afforded a fugitive murderer by relatives, or the solace given to a terminally-ill patient by social workers: in the former case, familial obligation prevails over attributed high risk; in the latter case, the imperative may be fueled by altruism. In migrant illegality, the interdependence is inherently vested and voluntary: employers secure business flexibility through exceptionally-compliant overstayer hirees; ethnic pockets which help overstayers get rights to collect future favours, loyalty, reciprocated intimacy, etc.; cooperative local authorities get convenience, a robust, resilient and low-cost small-business sector, possibly even benefits to multiculturalism; finally, overstayers get continued existence.

Interdependence exhibits itself in employer protection (recall Etimo and Gandi/Textbox 3) or utilitarianism and convenience (recall Putik/Textbox 4).

Emergent Property: Rationalisation. Migrant illegality has a uniquely insightful property of exacting a review of the configuration of things. This impelled rationalisation triggers a specialisation, an improved coherence, a clarified stake or vested interests, a redefinition of boundaries or limits. The mere physical presence of the overstayer becomes an imperative or an opportunity as migrant illegality is challenged as to where and how exactly it becomes a liability, an asset or a given to be circumvented, overcome or simply contended with or disregarded.

Employers adjust recruitment and operational procedures to “fit” overstayers’ difficult circumstances, uncovering previously unexplored practices (enabling “specialisation”) that now tread delicately between complicity and business flexibility (recall case snippets in cTm as Safety Net). Local governments facilitate and enable locally-managed social services through partnership with local groups, clarifying the scope and depth (and thus coherence) of its services for constituents. Compatriots look beyond (lack of) legal status and crystallise their own immediate take-away from relationships and liaisons of various complexities. Overstayers themselves are able to thrive or regress to hitherto unknown levels of potential or deterioration given the day-to-day crossroads that is migrant illegality.

Emergent Property: Abbreviation. The preeminence of the legal and political re-constitution of the overstayer—that is, as being primarily illegal in resident status and thus excluded from the mainstream—has the effect of distorting or misrepresenting other aspects of the overstayer which could reveal a middle ground or the possibility of a win-win resolution to migrant illegality. I first raised the issue of this abbreviation property of migrant illegality in my summary discussion of Figure 1, arguing that migrant origin (a proxy for eligibility) and migrant space (a proxy for legal status) are among the key blind spots of migration policy makers who are guided solely by the legal-illegal dichotomy.

One key area where this abbreviation is evident is in the skilled-unskilled divide where an overstayer may be previously skilled (eligible but in illegal migrant space) but his lack of legal status locks him into the unskilled, informal markets. Migrant utilisers may be aware of an overstayer’s dormant skills but as they have reached the limits of their allowable rationalisation (simply put, vested accommodation), they are forced to relegate the overstayer to below-potential job functions. These abbreviated potentials still overflow into non-skill job areas such as overall consistency, reliability, or thoroughness in work performance—thus making a liability of the overstayer into an asset for the employer. Iking, Gandi and Etimo (see Textboxes 2 and 3) completed or were at advanced stages in their education when they departed for Japan but now are reduced to manual labour in companies in the construction and service industries.

One compelling aspect of this abbreviation property in migrant illegality is its two-stage applicability, that is, in both the destination and source countries: returning overstayers (recall Subaru and Bingo/Textbox 5) find that any technical skill acquired in Japan is basically inapplicable in the Philippine labour market.

It is in the confluence of the three emergent properties of interdependence, rationalisation and abbreviation that I locate my theorised Illegality From Within (IFW) mechanism. I suggest that while the APCCRS suppressant strategies address the resultant properties of migrant illegality-thus explaining the decreasing numbers of overstayers—the same suppressant strategies are unable to make an impact on the emergent properties of migrant illegality since its persistent social structure expressed through the particular social relations between ethnic pockets and overstayers (in which interdependence, rationalisation and abbreviation are rooted) remains intact. Indeed, overstayer numbers may be decreasing but the capacity for emergent migrant illegality persists.

Indeed, informed by the critical realist view of emergence, it may also be that the part of migrant illegality reality that is being described by decreasing numbers of overstayers, while I argue this to be describing only its suppression of resultant properties, may be distinct, complementary or even constitutive or essential to that part of reality which I theorise as IFW. Stated differently, APCCRS may be successful in suppressing innovation in migrant illegality and in ensuring that value negotiation favors the State (as seen in the decreasing overstayer numbers) but then this active suppression may: 1) have nothing to do with or be independent of IFW; or 2) may trigger or enhance more intense interdependence, rationalisation and abbreviation. APCCRS and IFW may be separate Empirical observations, or each may constitute part of the Actual from the varying or opposite perspectives of the participants of migrant illegality.

That the active suppression of migrant illegality (through APCCRS) and IFW are not mutually exclusive but rather related in some way can be seen by looking closer at what Archer (2003: 20-25) describes as the emergence of personal identity and the emergence of social identity. Arguing within the context of the structure-agency debate, Archer assigns a reflexive role to the person (the social agent), as s/he nourishes, works and relates (the natural, practical and social orders of reality), thus actively forging a continuous sense of self that is formed individually—one’s emergent personal identity formed through its choices (modus vivendi)—but also contingently through our equally critically chosen social roles—one’s emergent social identity; the latter crystallising within and through the former.

Informed by Archer’s view of a reflexive social agent, we may now re-interpret innovation, value negotiation, interdependence, rationalisation and abbreviation as resultant and emergent properties of migrant illegality in which overstayers and ethnic pockets (as individual members) exercise their reflexive sense of selves. The overstayer’s modus vivendi, that is, his prioritisation of economic values, dictates that he innovate and value-negotiate his way through whatever political or legal obstacles presented by host States. As compatriots sustain overstayers through their social identities as IFW agents, their own modus vivendi is continuously and interactively acted out in the context of the State’s active suppression of migrant illegality.

More concretely, when the State from time to time intensifies overstayer crackdowns, both overstayers and ethnic compatriots react in any of the following ways: 1) by intensifying (locking down their refuge of overstayers) or aborting (squealing or reporting an overstayer) interdependence; 2) broadening (more liberally justifying the need to ask for or give assistance) or constricting (reprioritising own interests) rationalisation; or 3) condoning (employers of overstayers judging penalties to be worth the risks) or rejecting (overstayers deciding to surrender) abbreviation. Simply put, compatriots cease, maintain or improve their social identities within the IFW mechanism, that is, as starters, enablers, legalisers or safety nets within the given constraint which is the active suppression of migrant illegality in Japan.

In summary of this section, I now answer its primary question: the apparent discord between an emergent migrant illegality that is sustained by IFW and the reported decreasing numbers of overstayers can be reconciled in a critical realist view of emergence that highlights the structural relations between both resultant and emergent properties of migrant illegality through which overstayers and their compatriots are reflexive social agents critically embodying both their personal and social identities.

Conclusion

This paper challenged one prevailing belief that migrant illegality is solved through deportation—which presupposes the primacy of its external causes—by exploring how what I theorised as an Illegality From Within mechanism actually sustains migrant illegality from inside the host country. I employed a Sustenance of Migrant Illegality Framework to better understand the temporal (causes of new versus sustenance of existing) and spatial (host versus destination) dynamics of various multiple types of instances of and actors in migrant illegality. We saw that differentiated and fully embedded ethnic pockets, as they are especially constituted through historically specific conditions, interrupt designed outcomes of policies suppressant of migrant illegality. Finally, informed by the critical-realist views on emergence, I suggested that my central assertion of a sustained migrant illegality through IFW nevertheless coexists with Japan’s reports of decreasing overstayer numbers.

My theorised Illegality From Within mechanism is rounded off through Figure 1(f). We can now see that the sustenance of migrant illegality inescapably involves all four SMIF spheres, most notably the SS (Source Sustenance) sphere where migrant hopefuls (see g2 and g3) are bolstered by the concrete example of current migrants showing how skill ineligibility is overcome through migration. In this model, legal status is presented as incidental, even transforming into a measure of determination or testament of commitment when the breadwinner role is nevertheless fulfilled in spite of its absence.

The inner-workings of my theorised IFW mechanism suggest that the following two key, actionable points be considered by migration policy makers:

1. Reconsider as an asset to be leveraged rather than as a liability to be negated the existence of long-embedded ethnic groups that act as magnets and anchors of emergent migrant illegality that is resilient in many ways. One good starting point of leverage is the emergent property of abbreviation which argues that the State can immediately benefit from dormant, unutilised skills of overstayers who have the added advantage of already being broken-in, so to speak, in Japanese society and thus have higher chances of long-term productivity if they have secure legal status. At the minimum, the property of abbreviation is an argument for more effective human resource management of migrant workers (i.e. skills upgrade for those already skilled and skills acquisition for those with the right aptitude). The lack of legal resident status is an administrative, technical hindrance to be overcome to maximise physical presence and current functionality of the overstayer.

2. Re-cast the source state in a more active leadership/partnership role, upgrading it from its current peripheral/accessorial role given the clear and direct impact of the SS sphere on migrant illegality. One good starting point is returned overstayers who, due to a mismatch or lack of appropriate skills, may be unable productively to reintegrate into their home communities. Various technical assistance programs sponsored by the destination state can support existing reintegration programs of the source state.

In the end, the Illegality From Within mechanism suggests that an inclusive, proactive management of human mobility is the most sustainable, nay, the only realistic strategy to address the human resource challenges of both Japan and the Philippines.

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Notes

Article copyright Joselito Jimenez.

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