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Strategies of Divergence: Local Authorities,
Law, and Discretionary Spaces in Migration
Governance
BARBARA OOMEN
Utrecht University/University College Roosevelt, Middelburg, The Netherlands
MORITZ BAUMGA
¨RTEL
Utrecht University/University College Roosevelt, Middelburg, The Netherlands
m.baumgartel@ucr.nl
SARA MIELLET
Utrecht University/University College Roosevelt, Middelburg, The Netherlands
ELIF DURMUS
Utrecht University/University College Roosevelt, Middelburg, The Netherlands
TIHOMIR SABCHEV
Utrecht University/University College Roosevelt, Middelburg, The Netherlands
MS received January 2020; revised MS received June 2020
This article classifies and theorizes the strategies of divergence that local authorities
employ whenconfronting the discretionary spaces offered by domestic migration law.
We propose a distinction between strategies that are either within or outside
the perceived boundaries of the law and those that adopt an explicit or an implicit
approach to positioning, thus harnessing or downplaying the communicative
potential of the law. Based thereon, we introduce a fourfold typology of strategies of
divergences that include defiance,dodging, deviation,and dilution. This typology was
developed and refined based on field research in local authorities in Greece, Turkey,
Italy, and The Netherlands. The case material also leads us into a preliminary explor-
ation of which types of cities and conditions may lead to the adoption of one strategy
over another. As such, thisarticle draws attention to the relevance of law within multi-
level migration governance and to the meaning of legal ambiguity and discretion as
shaped by law andlegal interpretation. The strategies of divergence that moulddiscre-
tionary spaces, in turn, either mitigate or exacerbate legal uncertainty and should be
considered a significant factor to account for change in migration governance.
Keywords: discretion, migration, local authorities, legal certainty, strategies of
divergence
Journal of Refugee Studies Vol. 34, No. 4 V
CThe Author(s) 2021. Published by Oxford University Press.
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Introduction
As essentialist narratives of uncertainty are increasingly coming under theoretical
scrutiny in migration studies (Schiltz et al. 2019), helpful insights may be gained
from legal scholarship. Probably more than in any other discipline, lawyers have
long been deliberating the value of certainty, and more specifically legal certainty,
in shaping the relations between institutions, people, and other legal entities.
Variably defined as predictability, consistency, accessibility, and intelligibility of
law (or a complex combination thereof), most if not all accounts affirm the prin-
ciple’s status as a ‘central rule of law value’ that has ‘structured normative debates
in political and legal modernity’ (Fenwick et al. 2017, p. 17). Moreover, when
looking at the domain of migration, questions of legal certainty should be of
interest not only for legal scholars and professionals. The less certain domestic
laws and legislation are, the larger will be the room for manoeuvre for other actors
such as local authorities (Motomura 2016). These ‘discretionary spaces’, as we will
refer to them in this article, are created and inhabited in different ways, with often
profound consequences for the situation on the ground. On the one hand, high
degrees of discretion can reinforce legal uncertainty and confusion regarding
responsibilities and ‘divisions of labour’ among policy actors, especially in
perceived crisis situations such as the one in Europe in 2015 (Fontanari and
Ambrosini 2018). On the other hand, discretionary spaces also create possibilities
for local authorities including ‘street-level bureaucrats’ to influence reception and
integration policies according to their preferences, particularly when they act in a
strategic manner (Fassin 2013). Adding an extra dimension to this, local author-
ities may openly challenge domestic laws based most notably on international
human rights norms (Baumga¨ rtel and Oomen 2019), with judicial confrontations
holding the potential to decrease legal uncertainty in the longer term.
This article aims to foreground and classify the strategies that local authorities
adopt to make use of and enlarge the discretionary spaces that are offered (or
indeed foreclosed) by domestic law. Given the seemingly contradictory effects of
such strategies of divergence on legal certainty, it further proposes contextual
explanations for their adoption based on illustrative examples. Contrary to con-
ceptualizations of discretion that are limited to legally permissible conduct
(Hawkins 1992), we consider it relevant for the migration domain specifically to
distinguish between strategies that are either within or outside the perceived boun-
daries of domestic law.Furthermore, wetakeinto account those that are taking an
explicit or an implicit approach to positioning, thus harnessing or downplaying
the communicative potential of the law. As a result, we define four ‘Weberian’
ideal types of divergence (see Table 1): defiance (explicit and extra-legal), dodging
(implicit and extra-legal), deviation (explicit and within the law), as well as dilution
(implicit and within the law).
The theorization of discretionary spaces and their strategic use by local author-
ities is important for several reasons. As already suggested, it ought to be an
essential component of any theory that seeks to explain how instances of legal
uncertainty (as a structural type of uncertainty) in the migration field comes to
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differ in form and significance depending on the local context. Relatedly, it can
account for some of the differences in the framing and the formulation of policy
goals and choices, both of which have already been linked to forms of multi-level
governance (Spencer 2018;Spencer and Delvino 2019). Better understanding may
also draw our attention to the variable and movable legal scaffolding of multi-
level governance, where the levels are all too often, and mistakenly, assumed to be
relatively static. In short, we suggest that strategies of divergence mould discre-
tionary spaces (and with them, degrees and expressions of legal uncertainty),
which is in turn an important factor to account for change in multi-level migration
governance.
Methodologically, the typology was developed in an iterative manner pursuing
a grounded theory approach (Charmaz 2006). We started this research with a
theorization of the possible role of the law in processes of ‘decoupling’ as set out
most notably by Scholten (2015) and Filomeno (2016). This theorization forms
part of a wider project on ‘Cities of Refuge’: (see www.citiesofrefuge.eu), which
began in September 2017, investigating the relevance of international human
rights, as law,praxis, and discourse, to how local governments in Europe welcome
and integrate refugees. Subsequently, field research was conducted in local
authorities in Turkey, Greece, Italy, and The Netherlands. These four countries
were selected based on their divergence in constitutional systems and, in particu-
lar, the degree of decentralization. Whereas Turkey and Greece are strongly cen-
tralist, and Italy much more decentralized, the Netherlands can be positioned in
between. In addition, highly relevant for the purpose of this article, the four
countries display differing degrees of legal ambiguity in the field of migration
and integration in general. For the purpose of the research, local authorities of
different sizes within countries were selected that all diverged from national norms
on the role of local authorities in the reception and integration of refugees.
Fieldwork was conducted in the period between August 2018 and early March
2020 with a wide range of data gathered on the basis of interviews, participant
observation, analysis of local government proceedings, regulations, and (social)
media amongst others. For the purpose of this article, interviews with local gov-
ernment officials and representatives of civil society were particularly pertinent to
obtain insights on local activities that are seemingly outside of the law as well as
the motivations behind them. In addition, the focus on not only legal, but also
Table 1.
Strategies of divergence
Extra-legal Legal
Explicit Defiance Deviation
Implicit Dodging Dilution
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discursive strategies of divergence made it important to closely read texts pro-
duced and analyse them, making use of QSR NVivo. Throughout this process, we
iteratively and reflexively engaged with the theoretical notions, in the ‘dialogue
between data and theory mediated by the researcher’ that is common to abductive
research (Blaikie 2010, p. 156). In addition, we conducted ‘theoretical sampling’
within our database of local authorities, which is understood as the method of
sampling data and cases that further develop and saturate the theoretical catego-
ries that emerge from data (Charmaz 2006, p. 96). The main purpose of our
theoretical sampling was the development, elaboration, and refining of the typ-
ology at hand.
Before we turn to the typology and the empirical findings that informed it, the
following section discusses why divergence is a legal question that has become
salient following widespread processes of devolution and decentralization (Lahav
1998;Provine and Varsanyi 2012). Particular attention will be paid to the rele-
vance of law within multi-level migration governance as well as to the meaning of
legal ambiguity and discretion as shaped by law and legal interpretation. We will
then move on to explore the discursive dimension of the law and, relatedly, the
framing and intended audience of strategies of legal divergence. The subsequent
four sections are each dedicated to one such strategy—defiance, dodging, devi-
ation, and dilution—as we encountered them during our research in the European
context. Based on these observations, we will formulate several hypotheses regard-
ing the types of cities and conditions that are likely to lead to the adoption of a
specific strategy and the possible implications for legal uncertainty. The article will
conclude with a reflection of the relevance of law and legal and discursive strat-
egies within multi-level migration governance and offer suggestions of how future
research can build on the typology provided here.
The Legal Dimension of Divergence
The possibility of divergence between local and national migration policies and
the potential for the development of migration governance that thisholds have by
now been widely recognized. Writing on immigrant integration, Poppelaars and
Scholten (2008) found such a discrepancy in the Netherlands already more than a
decade ago and ascribed it to the ‘divergent institutional logic’ of the two govern-
ment levels. Since then, theory has further developed to identify conditions of
‘multilevel governance’ where ‘large cities in particular, are becoming increasingly
entrepreneurial in developing their own integration philosophies and policies’,
leading to ‘markedly different approaches... even within the same countries’
(Scholten and Penninx 2016, p. 91). The same line of scholarship has even taken
a declared ‘local turn’ that has encompassed a horizontal and a vertical dimension,
the latter designating research on ‘the implications of local governance for the
interactions with higher levels of government, such as the national and increas-
ingly also European institutions’ (Zapata-Barrero et al. 2017, p. 243–244). Critics
have not been far, arguing that a focus on the local level risks losing sight of
‘broader processes of regulation’ beyond the local context (Filomeno 2016,p.8).
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Situated in the political and related social sciences, this literature remains
focused on explaining the political and historical factors underlying the rise of
multi-level governance and on describing how these new contexts impact diversity
in and beyond cities (see most recently Caponio et al. 2019). An important part of
the puzzle that is in our view missing is an appreciation of the instrumental role of
the law as the scaffolding of multi-level migration governance so defined. This
oversight is curious given the inherently legal character of processes of devolution
and decentralization, which can amount to tectonic constitutional shifts, and
which have partially been the drivers of the turn to the local level. To be sure,
lawyers have documented the rise of cities as legal transformations within the
global order and their relation to principles such as subsidiarity or good govern-
ance (Blank 2006;Frug and Barron 2006). Still, these analyses have mostly been
focused on domains such as climate policy and international development and
have not therefore found much consideration in migration literature. The discon-
nect is equally visible in scholarship dealing with border control and ‘crimmigra-
tion’, which has paid significant attention to legal processes (including discretion)
but mostly with a view to specific jurisdiction such as the United States or the
European Union (e.g. Stumpf 2006;Van der Woude and van der Leun 2017).
So, what exactly is at stake when we talk about the legal dimensions of multi-
level migration governance? To start with, the law can be considered as one of the
factors that structure the field of governance by enabling or restricting divergence
between the various levels involved. This exogenous character of the law becomes
immediately clear when considering the vast differences that exist between the
constitutional systems, legal cultures and traditions, as well as regulatory agencies
and competency allocations in various countries. Within the countries discussed,
for instance, municipalities in Turkey have generally fewer formal competencies
(and hardly any related to migration specifically) whereas local authorities in the
Netherlands are responsible for housing individuals with refugee status, for civic
integration, and for access to work. To make things even more complicated, legal
issues can play out very differentlyeven within the same country depending on the
domain of migration governance ranging from citizenship policies to housing,
freedom of movement, education, work, health care, civic integration, and
many more. Finally, local laws can be directed at widely diverging groups of
individuals from irregular migrants to those seeking asylum and receiving refugee
status or other forms of international protection to labour migrants and students.
While all these aspects are obviously also shaped by political factors and policy
choices, they remain situated in a legal context: if politics is the language of multi-
level migration governance, then we can consider law to constitute its grammar.
One of the many legal elements shaping policy outcomes most visibly is discre-
tion, which has long preoccupied both legal scholars and social scientists. Bringing
both of the fields into conversation, Hawkins (1992) thus defines discretion ‘as the
space... between legal rules in which legal actors may exercise choice’ and that
‘may be formally granted...or it may be assumed’ (11). Importantly, discretion is
to be regarded as a relative concept that is created by and through legal rules, thus
representing ‘an area left open by a surrounding belt of restriction’ (Dworkin in
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Hawkins 1992, p. 14). The behaviour of actors is therefore in principle circum-
scribed by the discretionary space that the law offers. This holds true as much for
migration policy as for any other instance of multi-level governance that, like any
other structured system of governance, can be conceptualized as a hierarchy of
legal norms (Kelsen 1945). In other words, following classical legal theory, we
would assume that local authorities will look ‘up’ to the higher levels (or at the
least look ‘around’, for guidance, to other governing entities at the same level) to
gauge their discretionary space before deciding on a course of action. Where such
discretion cannot be found, municipal action would then, according to theory, not
be possible.
In reality, the story is of course a more complicated one. Not only are discre-
tionary spaces also governed by organizational, social, and political rules
(Hawkins 1992) but it would also be wrong to consider their boundaries fixed
rather than dynamic, contested, and changing. Firstly, national legislatives and
courts can extend or diminish the discretion available to actors (Resnik 2007). In
the European context, migration governance has changed considerably in recent
years through the introduction and subsequent revision of the Common European
Asylum System, a complex field of EU law that harmonized some of the applic-
able rules on, amongst others, refugee qualification and asylum procedures
(Chetail et al. 2016). This ‘Europeanization’ has reinforced the condition of
multi-level governance described above (Scholten and Penninx 2016).
Even more crucially from the perspective of local authorities, legal provisions,
including any norm regarding discretion, are very much subject to interpretation.
Law, as is well-known, is a ‘double-edged sword’ that can empower actors as
much as it can curtail their spaces for action (Abel 1995). Interpretive struggles
over this space can be particularly fruitful where norms are ambiguous and, there-
fore, legal uncertainty reigns (Edelman 1992). Such legal ambiguity comes in
many forms. For one, ‘open’ terms that leave room for interpretation are part
and parcel of any legal system. The broadness of legal concepts like ‘equity’,
‘reasonableness’, or ‘public order’ thus serve to accommodate complexity and
discretionary action (Von Benda Beckmann 2018, p. 86). Another factor that
reinforces legal ambiguity, particularly so in migration governance, is the plurality
of legal regimes. Local decisions regarding migration will not only be based upon
national laws—themselves often ambiguous—but also on the abovementioned
EU regulations and directives, international and European human rights law,
and international treaties, such as the 1951 UN Refugee Convention. These legal
instruments are the product of multilateral negotiations, where deliberately vague
provisions open to multiple forms of interpretation are often used to ‘paper over
unresolved disagreements or uncertainties’ (Franck 1990, p. 52). As a result, each
of these legal frameworks comes with its own interpretations of the concepts at
hand, which can be invoked or side-stepped.
Arguably a key feature of many fields of law, legal ambiguity is a hallmark of
the deeply politicized and multi-level field of migration law that has also been
described as ‘messy’ and ‘often unreadable’ by some (Eule et al.2018), which in
turn reinforces legal uncertainty. Nonetheless, as will become clear in the
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following sections, since ambiguity creates more spaces for divergence, invoking
and strengthening it is often a purposeful act geared towards expanding the space
of discretion either through the amendment of national and regional legislation or
through the acquiescence of ‘superordinate’ authorities.
All of this suggests, in our view, that it is critical to study the discretionary
spaces that are being defined and contested through the law. This implies, next,
that we must account for the strategic moves made by legal actors including local
governments to understand how the dynamic multi-level system is evolving. It is
for this reason that we bring in ‘extra-legal’ approaches as relevant to the produc-
tion of discretionary spaces. As will become clear, our taxonomy (as described
below) distinguishes between ‘legal’ and ‘extra-legal’ divergence strategies in full
awareness that there is much in between these two poles that is up to legal inter-
pretation. In fact, contesting legality is often at the core of strategies of divergence,
which is why it is equally important to investigate their discursive dimension.
The Discursive Dimension of Divergence
Apart from being legal or extra-legal, local strategies of divergence can also differ
in terms of their discursive character and intended audience. After all, law is not
only a formal means of regulation that demands compliance, but it can also ‘send
a message’ and represent an act of communication. This discursive aspect of di-
vergence, as enacted in and through engagement with the law, informs the second
axis of our typology.
The fact that law forms a means of communication that can convey meaning
forms a staple insight in legal sociology. For instance, ‘negative’ symbolic legis-
lation can serve to underline the norms held by a particular social group, display
vigour on the part of the authorities or mediate conflicts between groups of un-
equalsocietalstatus(Van Klink 2014,p.9;Van Klink 2016). As such, one can
distinguish between status laws (that seek to give a certain group an elevated
position), compromise laws (that seemingly resolve two fundamentally conflicting
viewpoints) and illusionary laws (that serve to project control when, in fact, there
is none) (Kindermann 1988;Van Klink 2014, p. 9). One prototype of an illusion-
ary law was the criminalization of ‘illegality’ in the Netherlands: in advancing the
legislation, the national government already knew that it was violating inter-
national human rights law (De Roos 2013 as cited in Van Klink 2014,p.5).
Discussing exclusionary local by-laws in Italy, Ambrosini (2013) distinguishes
likewise between situational ordinances aimed at restoring safety, behavioural
ordinances, and ordinances that reinforce existing legislation but target specific
groups, like street vendors (142). Symbolic legislation can, however, also convey a
‘positive’ message where it seeks to persuade the norm addressee into compliance
as opposed to enforcing it, a practice that has been referred to as ‘communicative
legislation’ (Witteveen and Van Klink 1999). At ‘higher’ levels of legal orders,
constitutional discourse as channelled through the text of the constitution has in
various countries proven to be of significance for the construction of national
identities (Rosenfeld 2009).
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Whether local authorities pass an ordinance, set aside national policy, invoke
international law, or start legal proceedings against the national government, all
these acts can potentially be as much about discourse as they are about the law.
They therefore also contain an element of ‘framing’ understood as a process in
which grievances are constructed, disseminated, and contested in a certain manner
(Snow et al.2014,p.30;Spencer and Delvino 2019). When local authorities re-
quire asylum seekers to perform community service whilst waiting for a status
decision, it can be assumed that the frame is one of the ‘undeserving’ migrants.
When another local authority adopts municipal IDs that give all urban residents
including asylum seekers certain rights, it is not unlikely that the framing revolves
around human rights (De Graauw 2014). When a mayor, in contrast, restricts the
movement of asylum seekers, we may be confronted with a frame of securitization
and ‘crimmigration’ (Van der Woude et al.2014).
Legal aspects pertaining, for instance, to the interpretation of law or a position-
ing outside the legal framework by a local authority can therefore often be under-
stood in line with the types of frames that are used in relation to migration
including security, humanitarian, human rights, deservingness, socioeconomic
and efficiency frames (e.g. Caponio 2014;Spencer and Delvino 2019). At the
same time, there can be more at stake, for example, when a city such as
Barcelona demarcates its autonomy vis-a` -vis the nation state or when a locality
seeks to underline and strengthen local identity. Acknowledging this discursive
aspect of local legal action in Europe is overdue: looking beyond Europe to the
United States, it is very much recognized that debates surrounding ‘sanctuary
cities’ are imbued with legal rationales concerning, most notably, the autonomy
of local and state vis-a` -vis federal law (Lasch et al.2018). It is therefore necessary
to analyse the engagement of authorities with the law not only through doctrinal
analysis but, just like with other frames, by looking at a wider array of sources
including (social) media, policy documents, and artwork. Here, it is also important
to understand how acts are ‘ideologically shaped by relations of power and strug-
gles over power’, and thus whom they seek to address and why (Fairclough 1995,
p. 132). If legal acts are understood to also represent discursive acts, the intended
audience can vary from local voters to the national government and international
stakeholders. At the same time, local authorities will sometimes and for different
reasons opt to stay ‘under the radar’ by deliberately not communicating their acts
of divergence. While seemingly simple, the latter choice is indeed an essential one
in the highly politicized and volatile domain of migration policy but can, at times,
also reinforce legal uncertainty. The interplay between legal and extra-legal acts
and between using law to also discursively ‘decouple’ local from national policies,
as well as the potential downplaying of this role of the law, will be illustrated in the
following section by means of examples.
Strategies of Divergence: A Typology
In seeking to understand how local authorities engage with the law in strategies of
divergence, our simple taxonomy distinguishes between four ‘Weberian’ ideal
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types based on whether they are situated within or outside established frameworks
of national law as well as their explicit or implicit quality, i.e. the degree to which
discourse is a relevant factor in the strategies concerned. As ideal types, they
inevitably gloss over a great deal of the complexities, such as the degree to which
different actors within a local authority, both individual and institutional, can
promote or hamper specific strategies (Oomen and Durmus 2019). We also will
not discuss the domains in which divergence is most frequent, such as health care,
housing, education, and transport (Oomen 2020). This section, instead, introduces
each type in reference to selected examples from the Netherlands, Turkey, Greece
and Italy. Moreover, it reflects on the possible reasons for certain cities to adopt
one strategy as opposed to another, and to move between strategies and on po-
tential consequences for legal certainty.
Divergence as ‘Defiance’
The first and most ‘spectacular’ strategy of divergence is defiance. Here, a local
government decides to oppose national migration policies explicitly and, in many
cases, vocally whilst also contesting its legal obligations under national law.
Defiance is most likely to be expressed through public actions such as open and
often mediatized displays of disobedience including the introduction of local ordi-
nances or the continuation of existing policy where national governments are
seeking to assert their authority. Highly confrontational by intent and design,
such defiance is at times a form of ‘lawfare’ and is likely to meet fierce opposition
by the national authorities, which may worry that their policies have been ren-
dered ineffective and that their legitimacy is under assault (Handmaker 2019). As
such, it often is not only about migration but also about demarcating local au-
tonomy, foregrounding a political ideology that opposes national government, as
well as expressing and strengthening local identity.
In Italy, for instance, one can find a number of cities and their mayors taking a
defiant stance against the restrictive policies instituted by Matteo Salvini, then
Minister of the Interior. The cities of Palermo and Naples, with their widely
known and popular mayors Leoluca Orlando and Luigi de Magistris, have
been at the forefront of this movement. Responding to the Security Decree passed
by Salvini and the new national government in 2018, both cities disobeyed a clause
that prohibited asylum seekers to register locally and by extension access muni-
cipal services. Refusing to apply the new provision and symbolically pushing
through four asylum seekers’ applications for local registration, Mayor Orlando
expected ‘to invite a legal challenge by the government that he can take all the way
to Italy’s highest court’ (Horowitz 2019). A law professor by profession,
Orlando’s challenge was based on the conviction that the Security Decree was
essentially unconstitutional as it violated the human rights of the migrants in
question. In a similar vein, Mayor de Magistris signed a directive allowing asylum
seekers to register locally as temporary residents, claiming that apart from violat-
ing the constitutional principle of equality, the Security Decree was also ‘in clear
breach of the jurisprudence of the European Court of Justice’ (Comune di Napoli,
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2019). A senior member of his administration that we interviewed described this
decision of the Mayor as a ‘courageous act’. The standoff between the national
authorities and defiant cities such as Palermo and Naples has also extended to
other issues such as whether the cities are allowed to open their ports in contra-
vention of national governmental policy. Here, however, human rights, EU, and
international maritime law seem to provide less legal ammunition for localities
opposing the national governments (Cusumano and Gombeer 2018), thus render-
ing defiance a somewhat less attractive option.
Another example of defiance that has been mediatized more locally concerns
the municipality of Gazipas¸a in the province of Antalya in Turkey. A popular
holiday destination for tourists, the city council passed a motion that would ban
Syrians in the municipality from entering the beaches “so that they would not
disturb the people” (Bulut 2019). It is interesting to note that this instance of direct
discrimination, a clear violation of both domestic and international law, was
adopted by parties that constitute the opposition at the national level and that
often invoke democracy, pluralismand rights-based discourses. Importantly, they
are opposed to the policies of the national government led by the AKP and its
President Recep Tayyip Erdo
gan, which have adopted a more open attitude to-
wards refugees from Syria (as also reflected in the 2016 EU-Turkey Agreement).
The mayor abstained from the vote, stating later that he did not agree with the
decision due to considerations of non-discrimination and human rights, which he
claimed to be particularly important for the tourist destination. The unprecedent-
ed ban was later vetoed by the Mayor and pulled back by the municipal council,
and as such never entered into force. An instance of extra-legal and regressive
divergence that made national and even international news (Al Bawaba 2019), the
ban in Gazipas¸a was intended to resonate with a large part of the Turkish public,
which has grown increasingly critical of the welcoming policies of the national
government. It therefore serves as an illustration of the fact that acts of defiance
(or, for that matter, divergence in general) do not always have to be favouring
migrants.
Defiance, as the examples make clear, is a confrontational and thus controver-
sial and rather risky strategy. While it is available also to smaller municipalities
such as Gazipas¸a, we expect it to be more attractive to larger and resourceful
localities that are also able to point to the interests of their large constituencies.
‘Global cities’ with their high political and economic capital (Acuto 2013)are
presumably particularly well-placed to take such an approach, also having
much to gain in presenting themselves as cosmopolitan and welcoming.
Furthermore, our examples seem to indicate that the political dimension of defi-
ance is crucial. It is plausible, therefore, that a defiant approach will be taken by
mayors and city councils that represent either independent local political formations
or opposition parties at the national level. A charismatic mayor such as Palermo’s
Leoluca Orlando, particularly when already in office for a longer period, will feel
greater confidence to pursue this path as opposed to somebody politically fragile. It
is also worth reiterating that defiance, whilst an apparent challenge to national law
ontheoutset,canultimatelyleadtoachange in the law, which means that it is a
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strategy that can produce large-scale results. In this process, reference to European
or international law that support the local position can form part of the strategy of
defiance. For instance, as we have argued elsewhere, it was the opposition of
Utrecht and other Dutch cities to the conditional and insufficient emergency recep-
tion foreseen by the Dutch government for failed asylum seekers that put the item
on the public agenda (Baumga¨rtel and Oomen 2019).Oncethecasehadreachedthe
European Committee of Social Rights, the national government felt a pressure to
react and offer more meaningful reception conditions. Even if the issue remains
problematic to date, this example from the Netherlands illustrates that the legal
uncertainty created by strategies of defiance in the short term can initiate a dynamic
that could eventually yield way to more legal certainty in the longer term.
Divergence as ‘Dodging’
The second category of strategies of divergence also concerns approaches and
practices that constitute a challenge to national laws and norms pertaining to
local migration governance in the country. However, in contrast to defiance, local
authorities do not flag their opposition to national policies but rather ‘dodge’
attempts of the central government to assert their authority over local situations.
Examples of such discreet initiatives include all kinds of informal practices, for
instance as regards the implementation of national policies or the provision of
services, that are difficult to trace but nonetheless significant in their local impact.
As opposed to ‘dilution’ (described below), ‘dodging’ is characterized by a con-
scious choice on the part of the local government to over- or sidestep its legal
mandate even if this is not openly flagged. As such, it can, once exposed, still, be
controversial and a source of conflict between the different tiers of government,
though arguably less so than the overt provocation that comes with defiance.
A number of municipalities in Greece that host asylum seekers and refugees
provide a good example of ‘dodging’. After the administrative reform known as
Kallikratis (Law No. 3852/2010), Greek local governments took advantage of
their extended social welfare mandate to develop social kitchens, shops, medical
centres, and pharmacies in an effort to support the local residents suffering from
the consequences of the severe economic crisis that hit the country (Anagnostou
et al. 2016). Access to these newly established and locally run facilities was based
on a number of socio-economic criteria, which apparently the newly arrived asy-
lum seekers and refugees could not cover, primarily because of the lack of docu-
ments demonstrating their financial situation (e.g. tax declarations). Despite these
circumstances, some municipalities started using these facilities to complement the
insufficient state-provided services that locally residing asylum seekers and refu-
gees were benefiting from, though mainly on the basis of ‘off the record’ practice.
For instance, social kitchens and shops shared food and clothing with beneficia-
ries without requesting any type of identification, well-aware that the new cus-
tomers they had seen arriving at their doorsteps were often irregular migrants,
especially in the country’s large urban centres (Delvino 2017). Our interviews
revealed that local social workers involved in the reception of asylum seekers
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and refugees also used informal arrangements to provide access to the newly
arrived migrants to some primary healthcare services run by the municipalities.
While such support can be viewed as limited to covering primary needs only, it
should not be underestimated. For certain vulnerable migrants such as homeless
and undocumented persons, including families, turning a blind eye in this way was
the only safety net left. In yet other instances, this ‘dodging’ strategy allowed social
workers to place migrant women who were victims of domestic violence into
specially designed shelters. While arguably violating the national regulations of
that time concerning access to these facilities, this decision was according to a local
deputy mayor ‘a political choice’ based on the conviction that the social services
offered by the municipality ‘are for everyone, regardless of where they come from’.
Another example of a dodging local strategy can be found in the Sultanbeyli
Municipality, an area on the outskirts of Istanbul with overwhelmingly low-in-
come families and high levels of informal housing and employment. Sultanbeyli
has also enjoyed a high popularity among Syrian refugees coming to settle in the
metropole due to the availability of cheap housing and employment with low
bureaucratic thresholds. The municipality was among the first in Turkey to take
proactive steps towards service provision for and integration of refugees in what
can be regarded a textbook example of dodging. More specifically, Sultanbeyli
established an NGO under the name ‘Association for Refugees’ (Mu¨ lteciler
Derne
gi) to sidestep two specific complications (Cos¸kun and Uc¸ar 2018). First,
the national law on the temporary protection regime for Syrians (Law No. 6458)
does not make any reference to local governments’ involvement. There has also
been uncertainty concerning the question whether local governments are legally
obliged or even permitted to provide services for non-nationals according to the
Law on Municipalities (Law No. 5393). Second, municipalities in Turkey receive
state funding based on the number of registered citizens in the city and no funding
for refugees (Erdo
gan 2017). According to interviews with local officials from
Sultanbeyli, under the institutional guise of the Association for Refugees, the
municipality could apply for funding from international organizations, such as
the UNHCR, the IOM, and the EU as well as foreign NGOs and charities, which
had previously hesitated to provide direct funding to a Turkish state organ. They
also pointed out that the Association has received praise from both national and
international actors andprovides healthcare, education, vocational training, psy-
chological support, legal aid and translation services in multiple large centres
throughout the locality, thereby attracting refugees from all over Istanbul.
Whilst not extra-legal strictly speaking, establishing a camouflage NGO to pro-
vide local services is neither a measure foreseen in Turkish domestic law nor
common practice in the country. It clearly combines the intention to diverge
from both to provide services with an aim to avoid conflicts of legal or political
nature, bringing an aspect of implicitness to it that characterizes efforts in
dodging.
Both examples show that dodging is an effective strategy of divergence where
municipalities’ primary consideration is to improve the local conditions on the
ground and tonot politicizesuch actions. One consideration can be humanitarian,
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with the local actors not wanting to draw national attention to their welcoming
stance. More specifically, it provides a relatively easy and quick way of remedying
the shortcomings of national policies, especially in the short term. This may be of
particular interest for small towns and other localities not interested in directly
confronting the national government, for example where these are a part of the
same political or coalescing political parties. This type of low-key action, stripped
of any kind of symbolic dimension, means that central governments will feel less
challenged by dodging than by defiance. In fact, it seems plausible that even
known dodging strategies may sometimes be tolerated, for instance where they
moderate the negative effects of government policies that are being challenged at
the national level or by international actors (Beckmann 2011). At the same time, it
can also be complicated togarner sustained support among international partners
and donors, which are likely to become increasingly worried about the extra-legal
nature as time passes. Finally, dodging strategies can also be about not leaving
paper trails to ensure that migrants cannot build up any legal claims, thereby
maintaining discretion for instance over providing basic services. All these prac-
tices exacerbate conditions of legal uncertainty for the various actors that are
involved as they covertly undermine established legal frameworks while simultan-
eously running the risk of being discovered and put to an abrupt end.
Divergence as ‘Deviation’
Our third category—deviation—describes discretionary strategies that are legal as
well as explicit. Whilst deviation is commonly understood as involving a departure
from accepted standards or norms of behaviour, our conception of deviation is
somewhat more specific and therefore in need of clarification. First, we consider it
to be a type of divergence that does not, as such, challenge legal norms but rather
pertains to instances where local authorities act intentionally within the perceived
boundaries of their legally defined space of discretion. To be sure, there can be
instances of serious legal uncertainty where due to different interpretations of the
same law, the line between legality and extra-legality are exceedingly thin and
contested. Our point, however, is that as opposed to defiance and dodging, devi-
ation is less disruptive of established (legal) hierarchies: it accepts and engages with
them. In fact, such divergence may have been foreseen by the legal system as a
predefined exception to a general rule or, as one municipal official from Turkey
observed, it may become the new norm if not challenged. At the same time, de-
viation is a deliberate course of actions that allows localities to pursue their own
strategic goals, which are likely to be different from national policies even if they
do not constitute legal challenges.
A second quality of deviating cities is that they are, by our definition, explicit (or
at least not secretive) about their decision to diverge, which is thereforemore likely
to be met with a response by higher authorities than dilution (as discussed below).
This, as we will see, is once again often intentional. Through playing on the
communicative character of the legal actions, local authorities can present alter-
natives and seek to persuade others, including the national government, to adopt
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certain interpretations of the law or even to change legislation and policies. Due to
its combined legal and explicit character, deviation is thus the least controversial
strategy of divergence.
The approaches developed by some local authorities in the Netherlands can be
classified as a form of deviation. The municipality of Tilburg, for example, stresses
that its local approach to integration has been developed against the backdrop of
the discretionary space that is offered by various existing legal frameworks. As a
senior policy advisor and municipal executive in Tilburg explained, the munici-
pality struggled with the fact that the Integration Act did not provide a clear legal
mandate for local authorities to be involved in (civic) integration policies. They
therefore decided to use the discretionary space offered by their minor competency
in this field flowing from the nationwide ‘participation declaration program’
(participatieverklaringstraject). In their view, whilst the Integration Act only
requires a minimal effort from Dutch municipalities in the form a one day work-
shop, the municipality of Tilburg strategically developed its own fully fledged
integration program consisting of multiple courses spanning several weeks. The
city presents this approach as divergent from these national guidelines but also as
‘exemplary’ in the sense of both being anticipative of, and stimulating amend-
ments in national law, and therefore already in line with the future national policy
framework for civic integration (Gemeente Tilburg 2019). In fact, it constitutes an
effort to persuade the national government to enhance the roleof municipalities in
(civic) integration: as one senior policy advisor in Tilburg concluded, ‘we observe
that the national government listens to us when it comes to the challenges we face
regarding the legal framework and regulations, such as the Integration Act, and
that they will now review this regulation.’ The deviation is justified as merely
‘anticipating’ legal amendments even if there is a clear intention to influence
such amendments-an approach that illustrates the often conciliatory and even
dialectic logic that undergirds this strategy.
In Greece, where a nationally designed plan for the reception and integration of
refugees was still missing long after the increased migrant arrivals of 2015 (Greek
Ombudsman 2017), some municipalities likewise followed a strategy of deviation.
Here, local authorities have a rather limited competency in integration: Art. 75 of
the Code for Municipalities and Communities (3463/2006) gives them the ability
to design and implement only supplementary interventions for the social, cultural
and economic integration of vulnerable social groups such as immigrants and
refugees. However, no funds were allocated from the national to the local level
for the implementation of such interventions. Still, based on the supplementary
competency provided by this provision, some municipalities have developed local
initiatives in recent years while others have argued that they have no competency
in this area to design or implement any measures. A good example of the more
proactive deviating approach is the local provision of Greek language classes to
asylum seekers and refugees. It is noteworthy that there is still no coherent frame-
work or program covering this important aspect of integration at the national
level. At the same time, interviews with municipal representatives and employees
engaged in some of local projects revealed that a number of municipalities have
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initiated their own classes and courses for asylum seekers and refugees. Some of
them, like the municipality of Neapoli-Sykies, have tapped on their own resources
employing local teachers and covering all costs with their own budget, while
others, such as the municipality of Karditsa, have relied on the support of volun-
teers. Yet other municipalities have developed their initiatives with the support of
local NGOs and international organizations.
These examples illustrate that deviation isvaluable strategy for local authorities
that are trying to pursue their agendas without causing too much of a rift or that
seek to influence national policy-making in a less confrontational manner. As
such, it can be reflective of ‘coordinated multilevel governance’ characterized by
‘interaction and joint coordination’ between the different levels (Scholten and
Penninx 2016, p. 94). These interactions may even go beyond (static) competency
allocation when, like in the case of Tilburg, cities manage to use them to develop
innovative and ambitious policies, for example in the domain of integration.
Strategies of deviation can also represent exercises in forming, expressing and
strengthening local identities. As with defiance, larger and more resourceful cities
are arguably at an advantage when it comes to identifying and explicitly exploiting
such legal discretion that is offered in national law (Oomen and Leenders 2020).
However, the example of the Greek cities proves that this is not necessarily the
case. Ingenious localities, including smaller ones, may indeed be able to mobilize
civil society and international organizations to implement such solutions.
Divergence as ‘Dilution’
Where strategies of divergence combine a legal and an implicit approach, we
propose to speak of dilution. The term describes any deliberate divergence on
the part of local authorities from national policies that seeks to remain under the
radar of the central government but that would not, if legally probed, challenge
any existing norms. In contrast to dodging, dilution thus does not actually imply
an evasion or a skirting of formal obligations or competencies. However, there is
an engagement with such norms in the sense that the strategy usually involves an
interpretative exercise based on which a local decision-maker opted for a legally
acceptable policy that nonetheless diverged from national norms on local migra-
tion governance. Dilution can therefore be described as a pragmatic approach that
aims to achieve modest but nonetheless tangible results on the ground while
minimizing the risks of exposure and sanctions. It is different from deviation
also in being less likely to inform any systemic changes, although one should
not dismiss the possibility of incremental evolutions where a multitude of actors
continue to ‘muddle through’ (Lindblom 1959).
Examples of dilution can be found in the Netherlands, again by looking at how
certain municipalities offer shelter and support to irregular migrants such as
refused asylum seekers. Some of the larger Dutch cities operate so-called ‘bed,
bath and bread’ emergency shelters for refused asylum seekers and have openly
criticized national policies. By contrast, other Dutch municipalities opt for impli-
cit strategies and a more subtle use of discretion that does not challenge national
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norms or overstepping the boundaries of municipal competencies. In one me-
dium-sized city, the municipal executive board, in a letter to the council, stated
that the municipality does not offer an emergency shelter for refused asylum
seekers as it considers this to be the exclusive responsibility of the central govern-
ment. Instead, it provides ad-hoc and more tailored measures. However, inter-
views with municipal councillors, executives and civil servants point to a more
complex reality on the ground. One councillor spokeof a ‘backstage approach’ by
the municipality, which has been setting aside an annual emergency fund of ap-
proximately 30,000 euros for refugees since the early 2000s. This emergency
budget covers these tailored measures for refused asylum seekers and other
expenses that cannot be accounted for through the funds designated for social
support to recognized refugees. As there is little insight into how this emergency
fund is spent and because it is allocated each year following a vote in the municipal
council, the same councillor attempted to formalize this initiative. She soon found
out that she would not be able to gather enough support in the council, particu-
larly if she were to include explicit references to ‘bed, bath and bread shelters’. She
also noted that although municipal officials recognize the divergence from the
national policy framework, they prefer not to publicly pronounce it. Although she
considered this covert strategy to be problematic in terms of transparency, she
explained that it has worked well over the years as there have been ‘no complaints
from The Hague’. To sum up, dilution is a strategy that provides local authorities
with a possibility to give their own and often quite divergent ‘spin’ to national
policies whilst avoiding a political or a legal challenge to the superordinate level.
‘Street-level bureaucrats’ can play a key role in shaping such strategies (Lipsky
1980). Zeytinburnu (in Istanbul, Turkey), for example, established an
“Integration to the Town” office within their community centre even before the
arrival of Syrian refugees. The vulnerable group of refugees or migrants were not
included into the name of this pre-existing centre, which goes under “Centre for
the Support of the Family, Women and the Disabled” (whereas disabled people,
also a later addition, had been added). However, the services provided such as
day-care, psychological support, gender equality courses, vocational training were
now available also to non-citizens who had applied to the “Integration to the
Town” office. In addition, these applicants receive free language courses and
are not required to show documentation to be eligible for any of the services.
The officials who we interviewed considered the provision of services to refugees
and undocumented migrants a necessity of the public character of the municipal-
ity. They also interpreted the Law on Municipalities to allow or even require
municipalities to enable access to services for all persons living in the city is pos-
sible. However, service provision to undocumented migrants remains a divergence
from the national norm as the Law is ambiguous and most local governments
remain hesitant to provide services even to registered Syrian refugees.
Zeytinburnu does not necessarily showcase or advertise this progressive policy
that might bring about a controversy if publicized, but continues to mainstream
available services to all vulnerable groups.
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Finally, it is important to understand that the line between deviation and dilu-
tion is often a fine one, as illustrated by another example from the Netherlands: a
change in the Dutch Housing Act of 2017 that removed recognized refugees from
being an obligatory priority group for social housing led certain municipalities
such as Amsterdam, Arnhem and Nissewaard to openly chastise the national
government’s turn to ‘symbolic politics’ while others (e.g. Middelburg and
Leeuwarden) chose, more implicitly, to (not) use their new legal discretion and
simply continue established practice of considering refugees in the process. This
example also illustrates how dilution can be a strategic response to a shift towards
more restrictive national immigration and integration policies. In addition, even
where localities are trying to be implicit about their local approach, they may be
required to share it, for example to reach target groups (such as refugees with an
interest in studying) or because they are formally required. Based on this insight,
we may also hypothesize that dilution is a strategy less suitable for bigger cities,
which will often be forced to explicate their local policies in response to their
comparably larger civil societies and richer media landscapes. The implicit quality
of dilution may also reinforce legal uncertainty especially where migrants rely on
the divergent interpretations of local authorities, for example in accessing social
services and other rights.
Concluding Remarks
The goal of this article has been to classify and theorize the strategies of divergence
that local authorities use when confronting national migration policies in a con-
text of multi-level governance and to theorize their impact on legal uncertainty,
which is a structural type of uncertainty. While much can be said about such
strategies, we have described them as shaped fundamentally by the law and by
discourse, as well as impacting upon them. On the one hand, local divergence from
the policies and priorities of national governments is always influenced by the
discretionary spaces that municipalities enjoy from a legal point of view and that
can differ as per constitutional setting and policy domain. Yet, local authorities
are also actively shaping the legal landscape, for instance in making use of am-
biguous provisions. As a result, the relationship between discretion and strategies
of divergence is a co-constitutive one and the strengthening of legal uncertainty
may actually be a part of such strategies as well as one outcome. On the other
hand, there is a significant difference between types of explicit and implicit
approaches: the prior is supposed to send a message to the central government
and perhaps, in doing so, to strengthen local identity.
Intersecting these two axes of divergence, we have proposed a typology of four
strategies, which all arise out of different local rationales. The first, defiance,
combines an explicit and an extra-legal approach as it seeks a confrontation
with the national level and possibly systemic change. Inherently controversial, it
is more likely to be used by economically and/or politically resourceful localities
including larger cities such as Palermo and Naples that are able to defy the na-
tional government by playing on the multi-level context, not infrequently for
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political reasons. It is a high-stakes game that arguably tends to (re-)establish legal
certainty in the longer term, though with rather uncertain outcomes regarding
who will come out on top and what this means for the actors involved. Dodging as
the second strategy is also extra-legal, though implicitly so. Here, divergence from
the law, its dominant interpretation, and perceived restraints is more results-ori-
ented rather than communicative as it targets the conditions at the local level.
Examples for this strategy can be found in localities that are less resourceful, such
as Sultanbeyli in Turkey, where enabled the municipality to obtain foreign funds
for providing better refugee reception Dodging can also be an expected practice in
places where open confrontation of the national government is less politically
salient, or where this is deemed to be in the interest of the migrants concerned.
However, favourable outcomes for migrants in the short term may well come at
the cost of a lack of legal certainty in the long run. The third approach described
here is deviation, which we understand to be divergence that is explicit but also
adherent to existing national law and national norms on local governance. Like
defiance, deviation is an attractive option for cities that feel that they have a stake
in shaping national policies but do so in a more conciliatory manner as illustrated
by the approach taken by Tilburg to the participation declaration policy. In this
context, the positive communicative value of the law is harnessed not as ‘lawfare’
but more as a means of persuasion, for instance because the local and the national
authority share the same political colour. Local divergence in this form can, in a
cooperative manner, strengthen long-termlegal certainty. Dilution,finally, fuses a
legal and an implicit approach to create a low-key strategy that, like dodging,
prioritizes outcomes at the local level, though without seeking any open conver-
sation regarding the content and boundaries of the law. This also allows legal
uncertainty to persist, the likely outcome being disparate effects on different
(groups of) persons. For instance, while refugees and undocumented migrants
in Zeytinburnu enjoy services that go unnoticed by the larger public and the
national government, their counterparts in other localities will not draw any
benefits from this divergence, be it in practical or political terms.
Put together, our discussion of strategies of divergence proves that law in its
indeterminate, constitutive, communicative and often fragmented form plays a
key role in the efforts of local authorities to shape migration policies. It is, in turn,
also shaped by their actions. To be sure, our inquiry can only be the starting point
as more research is needed to confirm and further unpack why certain strategies
are being used in specific contexts. We hereby expect critical contributions to come
from comparative studies, be they legal or social scientific (or combined) in nature,
mapping the differences at the various levels ofmigration governance. However, it
will also be relevant to understand how different strategies of divergence may be
employed by the same locality at the same time, for example vis-a` -vis different
status holders, and how these develop over time. This suggests that there is a need
for single case studies that can provide thicker descriptions of specific localities.
Finally, we expect strategies of divergence possibly to play different roles in vari-
ous domains of migration governance. While this article looked at diverse issues
ranging from emergency reception tocivic integration, its typological focus on the
Strategies of Divergence 3625
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meaning of law and discourse did not permit for a separate analysis of this im-
portant factor. In conclusion, there is a need for more grounded and explicit
consideration of the role that the law plays in a multilevel context and across
domains in shaping the way that migrants, in the end, experience (un)certainty,
legal or otherwise.
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