Strategies of Divergence: Local Authorities, Law, and Discretionary Spaces in Migration Governance

• Published in: Journal of refugee studies Vol. 34; no. 4; pp. 3608 - 3628
• Main Authors: Oomen, Barbara, Baumgärtel, Moritz, Miellet, Sara, Durmus, Elif, Sabchev, Tihomir
• Format: Journal Article
• Language: English
• Published: Oxford University Press 01.12.2021
• Subjects: legal certainty; migration; local authorities; strategies of divergence; discretion
• ISSN: 0951-6328; 1471-6925
• DOI: 10.1093/jrs/feab062

Abstract This article classifies and theorizes the strategies of divergence that local authorities employ when confronting 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 exploration of which types of cities and conditions may lead to the adoption of one strategy over another. As such, this article 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 and legal interpretation. The strategies of divergence that mould discretionary spaces, in turn, either mitigate or exacerbate legal uncertainty and should be considered a significant factor to account for change in migration governance.