1 Introduction

‘The most fundamental principle of [Canadian] immigration law is that non-citizens do not have an unqualified right to enter or remain in the country’.Footnote ¹ Based on this principle, Canada, like many states, attaches immigration consequences to non-citizens who are convicted of criminal offences.Footnote ² Deportation regularly follows criminal conduct. Citizenship, in this ‘crimmigration’ context, is formalistic and defined by the federal government, which has exclusive constitutional responsibility over naturalization and aliens.Footnote ³ Conventionally, it is the state, and the state alone, that determines when a non-citizen can be deported on account of criminality.

A growing migration studies literature challenges this conventional account and posits that migration governance is multi-scalar, even in the context of deportation. This literature reveals a ‘multilayered jurisdictional patchwork’ that involves processes and actors at the substate, national, and international scales.Footnote ⁴ In order to understand how deportation is truly governed, this literature contends, one must appreciate the role that each of these scales plays, or as Resnik more bluntly observes, there is a ‘uselessness of using any single nation-state as the unit of analysis when thinking about the migration of people, law, or objects’.Footnote ⁵

A multi-scalar account of deportation practices, however, does not determine the valence or contribution of a particular scale. Substate actors, such as local law enforcement, may contribute to deportation processes by criminalizing racialized migrants via traffic stops, other mundane offences, and local ordinances.Footnote ⁶ Conversely, some cities across the globe, in very different national contexts, employ local-level policies with the common intention of providing ‘sanctuary’ or ‘refuge’ to migrants without status.Footnote ⁷ Even within a single state, there can be significant site specificity despite the fact that local or other substate officials are implementing a common federal immigration policy.Footnote ⁸ As a result, the specific impact of multi-scalar migration governance must be evaluated on a case-by-case basis.

What multi-scalar accounts of deportation practices reveal is that rescaling of migration governance can create opportunities for subnational forms of citizenship. For example, where local and state-level governments provide voting rights, protections against deportation, access to identification, and accessible education, migrants without formal citizenship may gain ‘membership via the mere fact of presence and residence in a city or state, in spite of the powerful boundaries still surrounding formal membership in the nation-state’.Footnote ⁹ This type of ‘local citizenship’ challenges the normative foundation of citizenship as exclusively within the purview of the state.Footnote ¹⁰ It does so by creating a form of ‘social legality’ that operates independently of formal legal status and produces a more complex meaning of citizenship.Footnote ¹¹

Beyond contributing to what citizenship means, social legality and presence-based forms of citizenship also engender multidimensional politics when states seek to include or exclude certain migrants.Footnote ¹² Local protest over the morality and human cost of deportation, in specific cases, can alter how federal immigration officials implement deportation policies.Footnote ¹³ Scaled up, the politics of belonging can even lead to legal and policy changes at the level of the state, for example, the attempt at formal recognition for undocumented migrants who arrived in the United States of America as children.Footnote ¹⁴ Accordingly, the multi-scalar migration governance literature also provides a constructivist account of the social and political forces that can shape the creation, interpretation, and application of immigration law.

This chapter applies a multi-scalar account of deportation practices to a specific scenario in Canada: former crossover youth facing deportation as adults. Crossover youth are minors who grow up in the child welfare system and ‘crossover’ to the youth criminal justice system.Footnote ¹⁵ Where crossover youth are non-citizens, a finding of guilt within the youth criminal justice system may prevent them from becoming a Canadian citizen.Footnote ¹⁶ Such youth cannot be deported because youth sentences are exempted from ‘crimmigration’ consequences.Footnote ¹⁷

‘Crimmigration’ consequences result from the intersection between criminal law and immigration law. While criminal courts in Canada do not sentence non-citizens to expulsion, a criminal conviction can lead to a loss of immigration status and deportation, often with minimal consideration of the actual circumstances of the criminal offence. In this sense, the immigration law implications are related to the criminal law and follow directly from the criminal offence even if they are not technically a criminal punishment.

As non-citizens, crossover youth are vulnerable to ‘crimmigration’ consequences, including deportation, if they are convicted of further offences as young adults. Canadian immigration legislation deems adult offenders ‘inadmissible’ and assigns deportation consequences based on the maximum sentence possible not the actual circumstances of the offence.Footnote ¹⁸

Research on crossover youth shows that their recidivism rates are higher than other youth and often linked to personal characteristics associated with involvement in the child welfare system.Footnote ¹⁹ Race is also a factor that mediates placement, experience, and outcomes within the child welfare system.Footnote ²⁰ This means that migrant youth are exposed to a non-trivial risk of deportation when placed in the Canadian child welfare system. As a result, non-citizen crossover youth are disadvantaged in two ways. First, they are more likely to become involved with the criminal justice system than children who are raised by their families. Second, they face more severe consequences for their actions than children who are citizens because they can be deported if their criminal involvement continues into young adulthood.

Building on the concept of ‘emplacement’, developed by Çağlar and Glick Schiller,Footnote ²¹ this chapter argues that the apprehension of migrant children by the Canadian child welfare system deprives some children of the right to have rights. This deprivation is caused by the mutually reinforcing failures of local- and state-level institutions to properly protect migrant children in the child welfare system, including from the state’s own threat of deportation. At the same time, the placement of crossover youth in local institutions enables a politics of resistance to deportation in the context of ‘crimmigration’.

The politics of resistance has relational and legal dimensions, which are both informed by a multi-scalar account of deportation practices. Section 2 shows how placement of migrant children in cities and local child welfare systems creates relational obligations of care that demand a redefining of citizenship. Wards of the state are of the state. In other words, when the state exercises its coercive power to apprehend a migrant child because they are in the state’s jurisdiction and in need of protection, the state assumes the role of parent, providing opportunities (and erecting barriers) to that child’s development, and through this process, accepting that child as a member of the state, even if that child is a non-citizen. This creates a ‘social legality’ of belonging. Section 3 explains how ‘social legality’ can transform into ‘formal legality’ via administrative, equitable, and constitutional legal reasoning. An administrative legal regime that grants discretionary power not to deport in compelling circumstances may need to account for the abysmal treatment of migrant children in care. The apprehension of migrant children by the child welfare system may also create fiduciary obligations – owed by the state to wards in its care – that if breached require an equitable remedy that puts former wards in as good a position as they would have been if there was breach of the duty. Government action, at the local and state levels, including a failure to act, may also violate the constitutional rights of migrant children in care. Laws that make it harder for certain groups of children to obtain citizenship, a child welfare system that systematically produces worse outcomes for certain groups, and deportation processes that ignore the experience of former crossover youth may constitute arbitrary and discriminatory disadvantage. To the extent that former crossover youth were denied the equal protection of law, they may be entitled to a constitutional remedy to confer citizenship or prohibit deportation.

The main claim of this chapter is that a multi-scalar analysis of deportation practices can shape legal argument and obligation. This is important because the migration studies literature is often framed in social, political, and moral terms that call for changes to policies for the benefit of migrants rather than in legal terms that demand application of existing principles to migrants. Using a detailed analysis of the interconnection between subnational child protection services and federal deportation practices, the chapter challenges the traditional lens of analysis that primarily conceives of deportation as implicating only the role of the federal government. The chapter shows that the placement of non-citizen children in the child protection system demands a reconceptualization of citizenship that transforms notions of social legality into formal legality.

2 Emplacement and the Redefining of Citizenship

When children migrate to Canada, as immigrants or refugees, they arrive not just in a new country but in new legal, political, and social spaces. The multi-scalar migration governance literature, discussed earlier, demonstrates that the nature of those spaces can be local, nation-state, or international, depending on the specific jurisdictional context. Çağlar and Glick SchillerFootnote ²² conceptualize engagement within these different spaces as ‘emplacement’. They define ‘emplacement’ as:

This definition recognizes that migrants are not simply governed by state and non-state institutions but also engage with those institutions at different levels. The act of leaving, arriving, and existing in these different spaces is thus relational, and these relations are shaped by a panoply of actors, legal regimes, and political processes that operate in a particular space.

For a migrant child apprehended by the child welfare system, the spaces and institutions of most apparent salience are substate, particularly provincial or municipal agencies responsible for child protection. As this section explains, migrants arrive disproportionately in Canadian cities. There, they engage with opportunities and barriers provided by substate institutions, especially in the context of service delivery. One of those services is child protection, which in Canada is implemented by provincial or municipal agencies. For migrant children in care, it is these agencies that shape the opportunities and barriers that influence their lives most immediately. The federal government still governs the acquisition of formal citizenship, but this space and reality is a distant horizon for migrant children in care as well as many social workers who are responsible for securing these children’s best interests.

The importance of federal responsibility for citizenship becomes more immediate and ominous when migrant children in care become involved in the youth criminal justice system. Such crossover youth may be prohibited from becoming Canadian citizens and gaining the full panoply of rights associated with citizenship, including the right not to be deported.Footnote ²⁴ While many thought or assumed they were Canadian – an understandable assumption for a young adult who has grown up entirely in the care and control of the state – apprehension by the child welfare system does not confer formal citizenship status. This makes former crossover youth vulnerable to ‘crimmigration’ consequences if they are convicted of crimes as young adults.

Far from being a fictitious scenario, this section highlights two recent case studies where a former crossover youth faced deportation from Canada on account of criminality. What is noteworthy about these cases is that they raised public dialogue on the meaning of citizenship and resulted in public calls for the redefinition of citizenship in the face of potential deportation.

3 Courts and the Transformation of Social Legality to Formal Legality

At international law, no one can be arbitrarily deprived of the right to remain in their ‘own country’. What constitutes one’s ‘own country’ is determined based on residency and attachment to place not citizenship.Footnote ⁶⁵ This has led the UN Human Rights Committee to develop a jurisprudence on the right to belong that focuses on a non-citizen’s sociological connection to the state where they reside and comparing that attachment to their sociological connection to the state of citizenship. Where relative attachment is stronger to the country of residence, removal may constitute an arbitrary deprivation and violation of international law.Footnote ⁶⁶ However, one of the problems with this international human right is that it is not always respected by states, including Canada. Decisions of the UN Human Rights Committee are not technically binding on Canada and have been largely ignored.Footnote ⁶⁷

If a redefined conception of citizenship premised on ‘social legality’ is to be accepted legally in Canada, it needs to find recognition in domestic law. There are three avenues for this recognition: (1) administrative discretion, (2) fiduciary duties, and (3) equality rights. None of these avenues has been expressly applied in the context of former crossover youth facing deportation from Canada. Each has strengths and weaknesses in this context. Crucial to recognition of all three avenues will be insights from the multi-scalar governance literature discussed in this chapter, particularly the concept of emplacement, that highlight the interconnections of different scales and the role they play in shaping the people and the circumstances that appear before courts.

4 Conclusion

The multi-scalar migration governance literature reveals that migrants are emplaced in different state and substate spaces when they arrive in a new country. One of those spaces is cities, which often provide the services and points of engagement that are of most immediate significance to migrants as they build their lives in a new country.

The enhanced role of cities in place-making has redefined citizenship or at least added new conceptions of citizenship that challenge the notion that the national scale is the predominant political community that confers belonging. What has emerged is a conception of ‘local citizenship’ that is based on residence and relationships at the local scale, and which extends from a migrant’s engagement with opportunities, barriers, and networks at that scale to create a form of social legality. This has implications for the politics of belonging where federal immigration authorities seek to deport a person who lacks formal citizenship but possesses ‘local citizenship’.

Emplacement, redefining citizenship, and the politics of belonging are shaped by the specific migratory context. This chapter examined these concepts in the context of migrant children in Canada who are apprehended by provincial child welfare agencies. The literature and case studies discussed show that migrant children in care often do not receive the support they need, particularly in obtaining Canadian citizenship. At the same time, migrant children are at risk of crossover into involvement with the criminal justice system that can expose them to deportation precisely because of the state’s failure to secure citizenship on their behalf. Where deportation is threatened, redefined conceptions of citizenship and competing authority over belonging leads to political confrontation. This confrontation can prevent federal authorities from deporting former crossover youth where the social legality they possess is politically powerful.

Social legality, however, does not confer formal legality. One of the shortcomings of the multi-scalar migration governance literature is that it rests on political, social, and moral claims rather than on legal claims. If a redefined conception of citizenship is to be transformed into formal legality, there must be an avenue for recognizing these political, social, and moral claims in domestic law.

In this chapter, three such avenues were explored in the context of former crossover youth facing deportation from Canada: (1) administrative discretion, (2) fiduciary duties, and (3) equality rights. Each of these avenues comes with strengths and weaknesses, both theoretically and practically. Administrative discretion confers legal authority on immigration officials to temper the punitive force of ‘crimmigration’ consequences in compelling circumstances, such as where the state played a role in depriving a former crossover youth of obtaining citizenship and the right to have rights. But the inherent nature of discretion is that it does not have to be exercised and when applied in the context of immigration law, it may not fully capture the multi-scalar dimensions of the experience of former crossover youth. Fiduciary duties transform relationships of care into obligations that if breached may require an equitable remedy. But this area of law is highly technical and such claims would have to be brought in courts that are not normally engaged with immigration law. The constitutional guarantee of equality may transform emplacement into a rights violation where citizenship laws and the failure of child welfare agencies disadvantage migrant children by denying them the protections afforded by citizenship. But constitutional claims are complex and expensive, requiring legal submissions and an evidentiary record that many former crossover youth would be unable to generate.

Nonetheless, what is common across all these avenues is the transformation of ‘social legality’ into a legitimate legal claim. As multi-scalar migration governance continues to redefine citizenship, these avenues may be pressed into force in domestic courts when former crossover youth face deportation from Canada. This will shape both political and legal contestation of the principle, recognized under immigration law, that non-citizens do not have an unqualified right to enter or remain in Canada.

1 Introduction

Prior to 1994, South Africa was infamous for its racialized policies and seemingly limitless measures of social control and internal movement through a regime of apartheid, or racialized separation. Despite much pressure from the international community, the government was stubbornly resistant to change, reinforcing its control through police and security forces that were “always in the front line in the enforcement of apartheid … (and) ensured that black South Africans were kept in their places in segregated and inferior institutions.”Footnote ¹

South Africa’s racialized control over movement extended to how the state controlled migrants at its external borders.Footnote ² An essential feature of these measures has been – and to a significant extent continues to be – how South Africa maintains bilateral agreements with neighboring governments, which is the first of the country’s two-gates system, the other being individualized entry through a border post.Footnote ³

Those who have managed to cross the border and enter South Africa in an unregulated manner, whether through a border post or a gap in the fence, particularly from Mozambique and Zimbabwe, have often been confronted with a hostile reception.Footnote ⁴ While typical of the realities of (forced) migration globally, and the desperation of those who would do anything to cross the border for a perceived improvement of their lives, these particular experiences have shattered the idealistic vision that many migrants had of South Africa when it became a liberal democracy, following the country’s first democratic elections in 1994.

From the very beginning of this democratic transition, scholars cultivated a perception, that was shared by policymakers, politicians, and the general public, of South Africa being inundated with (African) migrants that they were undesirable.Footnote ⁵ As in many parts of the world, antiforeigner sentiment spawned an aggressive enforcement of the Aliens Control Act based on the general misperception that South Africa was faced with a flood of migrants, especially from neighboring countries.Footnote ⁶ Migrants in general have largely been seen to be coming for reasons that are perceived as harmful to South African society. There was particular concern raised by international organizations such as the UN High Commissioner for Refugees (UNHCR) and International Organization for Migration (IOM) that economic migrants, in an attempt to regularize their status, would overwhelm the country’s otherwise liberal asylum system. The South African government reinforced this perception of being inundated by migrants with the development of a so-called white list for handling asylum applications that implicitly assumed certain countries from where asylum seekers were coming were “safe.”Footnote ⁷

To date, with some exceptions, most of the scholarship on migration in South Africa, including by the current authors, has been in relation to legal and policy developments and especially compliance with international law, demographic surveys, and studies of civil society responses to migrants.Footnote ⁸ In this chapter, we focus on the emergence of post-1994 migration policies and enforcement practices, arguing that several aspects of what Valverde refers to as forms of “everyday legal governance,” including governance through uses (rather than persons or rights), are visible in South Africa’s postapartheid migration and border control regime, whereby past practices of racialized control over the mobility of non-white persons have been reproduced in the postdemocratic order following elections in 1994.Footnote ⁹ This provides a different and important perspective on more than two decades of migrant and border policy development and enforcement and sheds light on why, despite considerable efforts at reform, migration policy, and its enforcement in South Africa remain stubbornly resistant to change.

To illustrate this, we show how everyday legal governance is present in three salient features of South Africa’s migration and border control regime. The first salient feature that we discuss in Section 2 concerns the racialized underpinnings of this regime, with origins in South Africa’s apartheid-era policies of influx control. The contemporary manifestations of this racialized regime are marked by xenophobia and especially Afrophobia. We highlight detention and deportation policies that have not only victimized foreigners in general, mainly though not exclusively from other African countries but have also victimized black South Africans. The fact that it has not been possible to orient the country’s migration and border control regime around a culture of accountability and rights-based principles is even more noteworthy, in light of the sustained efforts of various legal mobilization actors, from NGOs to the South African Human Rights Commission, through reports, public advocacy, and court-based litigation. In Section 3, we discuss how efforts to cultivate a rights-based enforcement culture have been further hindered by the transplantation of ideas from abroad, and in particular from the United States. These policies were not only based on failed models of deterring perceived economic migrants, but they were also manifestly ill-suited to the South African context. These transplanted policies reinforced South Africa’s already racialized everyday forms of legal governance of migration. Moreover, these policies were disjointed in relation to the multiple actors involved in migration and border control. Despite this patchy and racialized enforcement, we show that the transplantation of problematic ideas around migration and border control never fully lost their appeal and can still be traced to the 2020 Border Management Authority Act. Finally, in Section 4, we discuss a third salient feature of the everyday governance of migration in South Africa, which is a prevalence of official corruption that has further mired South Africa’s regime of migration and border control. Legal governance efforts to combat the systemic problem of bribe-taking, which also has resonance in South Africa’s policies of influx control, have remained elusive.

To explicate how these three salient forms of everyday forms of migration governance have operated in South Africa and why the country’s border and migration regime has reproduced earlier approaches to enforcement and resisted rights-based approaches, we draw on Mariana Valverde’s notions of everyday governance, which operate across what she has termed different and overlapping scales of governance in relation to space and time.Footnote ¹⁰ This involves a specific mode of thinking in “understanding how legal tools have changed,” and in particular the bases for arresting and detaining migrants, and for determining their potential legal status as refugees.

In the course of analyzing these legal tools of border enforcement, we highlight features of South Africa’s predemocratic and more recent history of racialized migration and border control, and in particular two “formative events”Footnote ¹¹ that have affected how this history of regulating cross-border movement is regarded by policymakers and by South Africans. We argue that border enforcement practices have ultimately been guided less by national and international standards and more by national policies and systemic enforcement practices (and especially corruption) that have not changed very much from the previous, pre-1994 democratic dispensations. Accordingly, in relation to the three salient features we have described previously, we highlight three spaces where the everyday governance of migration is especially visible: first, in the concentrated local spaces of South Africa’s land borders and urban centres; second, in South Africa’s migrant detention centers – in particular the notorious Lindela Center; and third, in the refugee reception offices that have faced ever-greater pressures as the number of offices has increasingly been reduced. These land borders have historically been flashpoints of armed conflict while Lindela Detention Center and refugee reception offices have been notorious for the widespread prevalence of corruption, also at its sea and air borders, which in this particular contribution we pay less attention to.

We argue that South Africa’s policies and practices of migration and border control are consistent with Valverde’s conceptualization of everyday legal governance as largely taking the form of local enforcement, whereby “struggles around constitutional rights” need to be primarily understood in relation to “local struggles in which the legal ‘funnel’ for political and social disputes is local law.”Footnote ¹² More specifically, we show how the everyday enforcement of migration and border control is only to a very limited extent regulated by judicial oversight and is much more the product of local norms and structures of authority.

We conclude that South Africa’s efforts to deter immigrants have been a policy of arbitrary enforcement that in its highly localized enforcement of migration and border controls has been “deployed in everyday legal governance.”Footnote ¹³ This enables us to fundamentally question whether a succession of changes to South Africa’s migration policy and enforcement have truly marked a historic break from the country’s apartheid past.

2 Racialized Underpinnings in Detention and Deportation

Having emerged from a history of racialized control of both internal and external mobility, South Africa’s postcolonial, postapartheid migration regime in 1994 was firmly oriented around an unreconstructed approach of controlling the admission into, residence in, and departure from South Africa. Under the auspices of the ominously named Aliens Control Act of 1991, the latest iteration of decades of racialized legislation, and consistent with other apartheid-era policies, South Africa’s approach was essentially one of zero tolerance, whereby the policy regime categorized most spontaneous arrivals of migrants as prohibited persons. This official policy of zero tolerance was accompanied by a range of nebulous exceptions that were mostly at the discretion of locally placed immigration officials, mostly operating at the country’s many border posts.

3 Transplantation of US-Styled Policy Approaches to Immigration and Border Control

US government officials became actively involved in conducting surveys of South African border control mechanisms, making recommendations, training South African officials and even participating in government task teams developing policy since at least 1996/97. In what became another formative event, the United States sent over a team of border control officials to review South Africa’s air, land, and seaports and to make policy- and practice-based recommendations. This was notwithstanding the fact that border management systems in the United States had not only consistently failed to achieve their stated objectives but had raised a number of serious human rights concerns as well.Footnote ⁶⁷

Soon afterwards, the United States established an office in Johannesburg, joining officials of the United Kingdom who had been investigating cargo operations in Durban.Footnote ⁶⁸ In 1997, a report by an Inspection Team from the US Immigration and Naturalization Service (INS) was released, “pursuant to a request from the South African Government to the United States Department of State.”Footnote ⁶⁹ According to the report, the request was in relation to the South African Government’s efforts “to assist that government combat the growing crime problem.”Footnote ⁷⁰ The INS Inspection Team, which was composed of border control and inspections officials from various sea, air and land border posts in the United States, was split into four teams, making assessments of selected land borders, seaports and airports in South Africa. Its aim was (in part) to “provide a working methodology by which other problems can be identified and attacked.”Footnote ⁷¹ The report strongly encouraged the South African government to prioritize “control of illegal immigration (as) one of its top priorities.”Footnote ⁷²

Without specification, and with an unexpected reference to recognizing the role of local norms, the US INS Report recommended that “the community” be more involved in border policing, based on a claim that “the community has a vested interest in border control.”Footnote ⁷³ Emphasis in the 1997 US INS report was placed on holding train, ship and airline companies accountable for border control, through a comprehensive system of fines, based on a contention that this would be a “force multiplier to border control.”Footnote ⁷⁴ Moreover, the report claimed that “numerous intelligence documents, both national and international, had concluded that the illegal alien situation in South Africa (was) out of control”; the “tremendous pressure” the authorities in South Africa were facing was acknowledged, ranging from increasing air traffic to porous land borders. These pressures, the report argued in an especially nebulous manner, arose from “(p)eople (who had) become refugees by weather changes that affect agricultural production and political changes that affect human rights.”Footnote ⁷⁵

4 Official Corruption

In addition to well-documented allegations of the mishandling of migrants, the extent of official corruption in the everyday enforcement of South Africa’s post-1994 migration regime has been endemic, similarly illustrating both the temporal and spatial features of Valverde’s scales of governance.

In the South African context, official corruption is a well-established phenomenon. A number of studies, media reports, and reports by both government and independent institutions have highlighted the prevalence of corrupt practices within South Africa’s post-1994 immigration regime.Footnote ⁹⁷ Moreover, the paying of bribes in exchange for not being arrested reaches back in history to apartheid-era enforcement of influx control, which governed overtly racialized spaces where white and non-white residents were permitted to live, work, and recreate. These spaces were regulated on the basis of so-called pass laws. If one didn’t have a pass to be in a particular area, there were vulnerable to arrest, a fine, and detention. Finally, as in the past, suspected pass law offenders were often subject to bribes, not only by white but also by black police officers.Footnote ⁹⁸

Just as Valverde’s temporal dimension of governance is evident here, as with the three main border enforcement agencies’ jostling for control over particular spaces of migration enforcement, the spatial dimension also clearly applies. In addition to the fact that the practice of corruption in South Africa has not changed substantially over time since the country’s enforcement of influx control, the very same spaces that had previously been used to govern pass law offences – including facilities for the interrogation and detention of suspected offenders – have continued to be used to control migrants.

Tom Lodge has observed that the prevalence of corruption, prior to 1994 was not regarded as “endemic” across all levels of bureaucracy in South Africa; rather, “it tended to be concentrated in those areas in which officials encountered people who were particularly rightless and defenseless.”Footnote ⁹⁹ By the same token, post-1994, the existence of corruption in South Africa has not only been endemic at the country’s land borders but also in refugee status determination/reception centers where applications for asylum have been processed.Footnote ¹⁰⁰

5 Conclusion

In reflecting on Valverde’s temporal and spatial scales in relation to the governance of migration policy and border control in South Africa, it is striking to us how the past and present governance of mobility has reproduced apartheid-era forms of arbitrary control as well as the very spaces where South Africa’s highly securitized policies have been enforced for many decades. This is particularly evident in the two formative events highlighted in this chapter, namely, the 2008 wave of xenophobic violence that mirrored racialized violence during the apartheid era and misguided interventions by US government officials that only served to reinforce the racialized culture of enforcement that South Africa has been struggling to rid itself of in its post-1994 liberal constitutional order.

Despite persistent efforts at policy reform, the country’s migration and border control policies not only fall short of South Africa’s constitutional values but also make clear how everyday forms of local governance have far greater traction. The approach of the South African government to migration has reflected a persistent preoccupation with security and control, while failing to tackle widespread xenophobia and endemic corruption. Furthermore, the everyday, racialized forms of governance that persist in local spaces of migration governance – in particular the border posts, Lindela deportation center and refugee reception offices – are systemic and deeply embedded in local norms that were established long ago during the country’s predemocratic period of racialized apartheid policies. Hence, rather than make serious reforms that would represent a true break from its ignominious past, South Africa has been widely criticized for maintaining a border enforcement policy that is outright abusive. Even from a pragmatic standpoint of governance, its policies and everyday forms of governance are evidently counterproductive, not only in light of the country’s profound labor and economic needs but also in relation to South Africa’s aspirations to be a pathbreaker in rights-based governance.

Among the prolific literature that has been produced on this topic over the past twenty years, some have explained South Africa’s restrictive policy, and rising xenophobia as a result of continuities from the previous regime.Footnote ¹¹⁶ Others have specifically pointed to xenophobia in the country as “a stratagem for the retaining of hegemony at a moment marked by fierce labor struggles and an insurgent citizenship of the poor, beyond the reach of neoliberal governance.”Footnote ¹¹⁷

Our analysis not only affirms these earlier analyses but has also taken a different vantage point. Observing how everyday governance operates in both its temporal and spatial dimensions is an unsettling reminder of South Africa’s apartheid past revealing that migration policies and border control practices are very much stuck in the past, with little to no resonance with rights-based principles.

What we can conclude from this analysis of South Africa’s migration and border control enforcement over roughly a twenty-year period is that, unlike other economic blocks where free movement of labor has been encouraged and even a pillar of intergovernmental relations, South Africa has experienced a migration system that is just as rigid and arbitrary than prior to 1994 when there was a two-gates system. In other words, through local measures of everyday legal governance, and despite its extensive constitutional and international human rights commitments, the country has maintained a system of racialized migration governance that is not unlike the forms of racialized labor control of the pre-1994 past.

There is certainly more research to be done. For example, an earlier study by Patrick Bond and others has argued how economic policies in South Africa are directly connected with serious challenges faced in the areas of “migration, and devastating xenophobia against black foreign nationals in South Africa.”Footnote ¹¹⁸ Moreover, as a matter of pragmatism, it is important to critically interrogate how South Africa’s unforgiving approach reveals an unfathomably strong hold to the liberal notions of a nation-state, which in the unreconstructed setting of migration governance, maintains a system characterized by mistreatment and inequalities. More specifically, South Africa’s unreconstructed system of migration enforcement constrains the opportunities that migrants and South Africans alike have to participate in South Africa’s economy. Finally, so far as the current models of migration policy and everyday legal governance are concerned, it is unsettling to see that, at the time of writing, the political party making the greatest progress in South Africa is Action SA, which has been pushing for a radical anti-immigrant agenda.Footnote ¹¹⁹ As a rights-based party, it is hoped that the still-dominant African National Congress party will take the lead in pushing for a truly alternative approach to the migration policies and enforcement that have been experienced since 1994 (and before), governing through persons (with rights) rather than through its current approach of governing through uses. Our contention is that this is likely to lead to more productive outcomes, both socially and economically. Along a similar line, as Landau argues, while steering away from antiforeigner rhetoric, there could be a more deliberate push for local governance solutions “where citizens or ‘locals’ have direct interests.”Footnote ¹²⁰

Changing the systemic nature of these practices that reflects a pattern of dysfunctionality also requires a fundamental, strategic rethink for migration advocacy organizations. To be more specific, organizations need to not merely mobilize international law in order to amplify the rights of migrants and refugees. Organizations must also disrupt the systemic nature of the current system and find ways of reversing the rigidity of arbitrary and racialized migration and border control policies that are deeply embedded in local norms, yet are having a deeply corrosive impact on both South Africa’s domestic economy and the economy of the sub-region.

1 Introduction

In a joint statement in September 2018, the mayors of the German cities of Berlin, Bremen and Hamburg declared that it was their “shared humanitarian duty to do everything to save people from drowning, to bring migrant vessels to safe harbors, and to admit refugees in accordance with European and national asylum rules.”Footnote ¹ This municipal declaration, though certainly not the first even in Germany, stood out for being proclaimed by the only three cities that also constitute a state (Land) in the constitutional structure of the Federal Republic of Germany. Explicitly affirming their status as “city-states” (Stadtstaaten), the mayors committed to remaining “engaged in the accommodation and integration of refugees” – though only insofar as these are already admitted to Germany in accordance with agreements that the federal government has made with other EU Member States.Footnote ² This qualification, while easy to gloss over, hides a larger puzzle when it comes to the actions of local authorities, especially those that enjoy comparably more competencies: Will they use their elevated legal status and the resulting additional discretion confrontationally and in defiance of restrictive national policies, or more subliminally, to exert political influence “softly” or even avoid political debates altogether? Moreover, what are the motives that underpin the approaches that they decide to adopt?

This chapter explores these questions by examining the case study of Berlin and specifically the conduct of its local government following widespread mobilization in Germany calling for increased high sea rescue by a popular social movement known as Seebrücke (in English: “pier”). While Berlin is usually regarded as a supporter having first declared itself a “safe harbor” (sicherer Hafen) and then created the municipal “Cities of Safe Harbors” Alliance, we argue that its role is more nuanced in reality. Building upon theorizations concerning local “strategies of divergence,”Footnote ³ the chapter shows that the local authorities in Berlin deploy multiple and seemingly contradictory strategies that, although challenging restrictive national policies in principle, are guided by distinct strategic considerations, notably including legal ones, rather than only by humanitarian motives. The example of Berlin also highlights the interconnection between strategies and the extent to which legal competencies delineate their outlook.

Looking at the reason behind such “complex” strategies of divergence, this chapter further contends that the approach taken by municipal actors, in this case in Berlin, is shaped fundamentally by the various “socio-legal constellations” that they are confronted with. The introduction of this novel concept allows us to unpack the contextual specificity of municipal strategies in an analytically meaningful way by drawing attention to two sets of factors (and their interplay): first, the interaction of local authorities with civil society actors (here: Seebrücke), which have an influence on both its willingness and political capacity to take certain actions; and second, the legal position of the local government in larger constitutional structures. In concrete terms, Berlin has been able to “prove” its political commitment to Seebrücke by exploiting its hybrid legal status as a “city-state” to file a legal challenge against the national government at the federal level.Footnote ⁴ This circumstance, in turn, allows the local government to be less forthcoming on the interest of forced migrants in other areas, most notably when it comes to housing.

In a final instance, we discuss how the coexistence of these multiple distinct (yet interrelated) socio-legal constellations confronting cities with specific challenges and opportunities complicates our normative assessment of local authorities “decoupling”Footnote ⁵ from national policies – and the “local turn”Footnote ⁶ in migration policy in general. Particularly in the case of legally resourceful cities such as Berlin, scholarship must account for the possibility of municipal approaches that are contradictory and potentially ambiguous in outcome, yet pragmatic from a city’s own perspective, which raises questions about the promise of legally empowering cities in this area.

Before proceeding, we need to clarify the choice of our case study. As the country’s capital and largest city with around 3.7 million inhabitants, Berlin is an “atypical” case to consider for the purpose of identifying and explaining strategies of divergence. It is widely perceived as a cosmopolitan and diverse city of immigration, even if this outlook is arguably rather recent.Footnote ⁷ While such features are shared by “global cities”Footnote ⁸ in other countries (making the case study theoretically relevant also for this reason), we are interested in Berlin primarily because of its hybrid legal status. The fact that it is not “just” a municipal entity but also a Land empowers it in a manner that is rare: Constitutional law and practice in Western countries have largely marginalized the potential of cities to address issues of public policy.Footnote ⁹ The case study of Berlin therefore offers instructive insights on the outlook of strategies of divergence where local authorities’ (presumably) growing appetite for political influence in the domain of migration is somewhat matched by their actual legal position. While we observe that more legal authority does empower cities, the results are not necessarily only positive when viewed from the perspective of migrants and migrant rights defenders.

In terms of methodology, this chapter adopts a socio-legal approach that combines a legal analysis of the demands of German constitutional and administrative law with empirical insights. More specifically, seven semi-structured interviews were conducted during the period between September and November 2020 with municipal representatives in Berlin (and the neighboring city of Potsdam) as well as members of migration advisory councils and the local chapters of Seebrücke. Interviewees were initially selected using a “key informant” sampling method to target the most relevant people in the field, which was followed by “snowball” sampling based on information provided during these first interviews. The purpose of these conversations was to gauge the origins, content, and motivation of Berlin’s strategies of divergence pertaining to sea rescue and refugee admissions, as well as the attitudes held by interviewees concerning these strategies and the considerations that, actually or presumably, lie behind them.

The remainder of this chapter features five more sections, with the next one providing a short background of both the Seebrücke movement, which has sought to mobilize German society in favor of high sea rescue, as well as the “Cities of Safe Harbors” (sichere Häfen) Alliance, co-founded by Berlin. Thereafter, we zoom in on Berlin’s strategies of divergence to highlight the coexistence of multiple, seemingly contradictory strategies in different competency areas. The following section looks at the interaction between the city authorities and the Seebrücke movement, which has its origins in the city and continues to critically appraise Berlin’s actions and motives. Here, we claim that it is the combination of the pressure as exerted by the social movement and the legal authority held by Berlin as a Land that explains the latter’s specific strategic choices to take first legislative, and eventually judicial action against the federal German government. The final substantive section discusses the normative implications of such complex strategies of divergence, where it appears that local authorities navigating differing “socio-legal constellations” leads to ambiguous results from a migrant rights perspective. The conclusion summarizes the findings as well as their relevance for scholarship theorizing the “local turn” in migration policy and proposes avenues for future research.

2 From the Seebrücke Movement to the “Safe Harbor” Alliance

The Seebrücke movement came into being in 2018 after a rescue ship of the organization Lifeline had been prohibited to dock at an Italian harbor, despite having more than 200 rescued migrants on board. A “small circle of activists in Berlin”Footnote ¹⁰ used this crisis moment to create a “decentralized, open-source campaign” that achieved nationwide mobilization even of people who had not joined political protests before.Footnote ¹¹ The initiators thus set the direction for the strategic approach that Seebrücke has taken since: In practice, the movement is made up of numerous engaged individuals who become active by protesting and exercising pressure on political actors to change their migration policies. Many of these activists have created local Seebrücke chapters, of which there are currently 180, both in large metropolitan cities like Berlin and in medium-sized and small and rural municipalities.Footnote ¹² Deliberately engaging in a “switching of solidarity to the local scale as a tactic in light of the shrinking space of contentious solidarity on both the European and national level,”Footnote ¹³ Seebrücke has also called on local authorities to publicly declare themselves open to refugees and opposed to the criminalization of high sea rescue. The result has been the initiation of a movement of so-called safe harbors that is composed of 267 cities and towns.Footnote ¹⁴ With the EU’s asylum and migration policy prioritizing border control rather than the admission of refugees – and many migrants consequently embarking on dangerous journeys to get to Europe – cities of “safe harbor” argue that they can “take on responsibility” where the German government fails to do so.Footnote ¹⁵

In concrete terms, Seebrücke expects local authorities of “safe harbor” cities to make full use of their political resources. Local municipal councils that seek to become safe harbors have to officially declare themselves such. Seebrücke’s further demands from local authorities an active support for maritime rescue, admission of more than required by the established quota, support for admission programs, making sure that people settle into the community, networking on national and European levels, entry into the “Cities of Safe Harbor Alliance,” and transparency in their actions. Since declarations alone leave significant room for symbolic politics that is not followed up with concrete actions, Seebrücke also tracks the progress of cities with criteria that it considers vital for safe harbors. These, as well as Seebrücke’s evaluation of the process, are publicly available online.Footnote ¹⁶

3 Multiple, Coexisting, and Complex Strategies of Divergence in Berlin

To be sure, the proactive approach taken by the authorities in Berlin is not unique: Other cities and towns have started similar initiatives, with many even developing comprehensive local policies in the area of refugee reception and inclusion. This holds true not only for German cities of safe harbor but also localities across Europe, leading migration scholars to pivot toward theoretical frameworks of “multilevel governance” that take into account developments at the local level.Footnote ²¹ Recounting this rich body of literatureFootnote ²² is beyond the scope of this chapter. In addition, these approaches also (even if implicitly) downplay the significance of legal frameworks and questions of legal interpretation in how local authorities come to decide on how they act,Footnote ²³ which this chapter identifies as highly relevant. We consequently build on the more specific notion of “strategies of divergence” as introduced by Oomen et al. to analyze in concrete terms how the local government in Berlin inhabits and shapes the “discretionary spaces” that are offered by the applicable legal frameworks.Footnote ²⁴ In fact, we are able to identify multiple such strategies, seemingly contradictory at first glance, which can however be distinguished by reference to the specific competencies that they address.

To recount, Oomen et al. challenge conventional theorizations of multilevel governance as presenting levels as largely static and unchanging. They instead decide 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.”Footnote ²⁵ The authors differentiate local migration and integration policies that diverge from national ones along two axes: the legal nature of the action in question on the one hand and their explicit or implicit outlook on the other hand. The result is a fourfold typology of strategies of divergence that include defiance (extralegal and explicit), dodging (extralegal and implicit), deviation (legal and explicit), and dilution (legal and implicit). The subsequent paragraphs identify three such strategies in the context of Berlin. While the possibility of their combination is not explicitly discussed by Oomen et al. in their article, their taxonomy is still useful for the purposes of our analysis because it allows us (a) to name and compare the complex heterogenous strategies, which emerge in relation to different legal questions confronting the local authorities and (b) highlight their potential effects, which may target the national and European levels as well.

The first instance of divergence is one of dilution, an implicit and legal practice with which Berlin, in its capacity as a city-state, effectively takes in more forced migrants than assigned. According to Section 45 of the German Asylum Act (Asylgesetz), states are required to admit a certain number of asylum seekers following a yearly preset quota known as the “Königstein key” (Königsteiner Schlüssel).Footnote ²⁶ The implementation of these quotas is tasked to a central distribution agency,Footnote ²⁷ with states being allowed to interfere with the automated mechanism only through “targeted” actions.Footnote ²⁸ More specifically, and according to Section 51, states can decide to disperse asylum seekers for humanitarian reasons, which have been further defined by state representatives in the so-called “Hamburg catalogue”. These encompass, among others, minors older than 16 years whose parents are applying for asylum in a particular state, elderly persons unable to travel, or persons in need of or providing care.Footnote ²⁹ According to Berlin’s State Secretary Tietze, the city has used this instrument “very actively” to go beyond its nationally designated quotas.Footnote ³⁰ In our view, one of the likely pragmatic reasons for this usage is the disproportionate number of asylum seekers arriving in German cities in general,Footnote ³¹ which necessarily also implies the presence of higher numbers of vulnerable migrants that would fall within the categories set by the “Hamburg catalogue.” However, the regular if not frequent usage of such hardship categories has not received much public attention as online research confirms.Footnote ³² It therefore counts as an instance of dilution where the centrally organized dispersal system is set aside by legal means and implicitly, meaning without the city flagging it, leading to localized results that do not challenge the structure of the national system.Footnote ³³

In a second instance, this time related to refugee admission, Berlin opposes the national government more explicitly. The legal question pertains hereby to Section 23(1) of the Residence Act (Aufenthaltsgesetz) allowing states to “order a temporary residence permit to be granted to foreigners from specific states or to certain groups of foreigners.” Importantly, however, the provision also stipulates that “[i]n order to ensure a nationwide uniform approach, the order requires the approval (Einvernehmen) of the Federal Ministry of the Interior.”Footnote ³⁴ In line with the demands by Seebrücke, Berlin took two different types of actions to challenge the requirement for approval by the national authorities. Berlin, joined by the state of Thuringia, put forward an amendment proposal to the Federal Council of Germany (Bundesrat) that would lower the requirement from approval to a mere consultation (Benehmen) of the Federal Ministry of the Interior.Footnote ³⁵ After this proposal was rejected by the Federal Council and its reigning majority of conservatives states, Berlin decided to take further action by filing a case against the national government before the Federal Administrative Court.Footnote ³⁶ The main legal claim, in this context, has been that the approval of such temporary residency permits exists only insofar as it ensures national uniformity, which is however not actually threatened by the actions of a state that holds the capacity to take in more refugees.Footnote ³⁷

Berlin’s actions arguably fall within the category of defiance, designating a strategy of divergence that is explicit and outside the law. For one, Berlin’s Interior Senator Andreas Geisel, after conducting a widely mediatized visit to Greece, took an openly confrontational course in describing the national government’s reluctance to transfer large numbers of people from the burnt-down Moria camp as “embarrassing.”Footnote ³⁸ The legal proceedings, likewise, made national headlines; the parliamentary group of the SPD in the Bundestag even joined Berlin as a plaintiff in March 2021, which was unexpected given that the party was also a part of the national government.Footnote ³⁹ At the same time, it seems appropriate to classify Berlin’s strategy as extralegal, though arguably in a broader sense than proposed by Oomen et al. While not illegal in the sense of already taking ultra vires measures that would entail adjudication of a fait accompli, the State of Berlin defends an interpretation of Section 23(1) of the Residence Act that, judged by the conduct of the federal government and other German states, is not seen as legally permissible, at least until the Federal Administrative Court declares otherwise. This course of action is clearly meant to lead to “a change in the law” that “produce[s] large-scale results.”Footnote ⁴⁰ It is notable that Berlin’s defiant legal challenge to national frameworks follows an initial push for legal reform, even if these efforts failed in the present case.

Berlin’s hesitancy to use another provision, namely Section 22 of the Residence Act, marks an interesting contrast to this strategy of defiance. This provision offers the possibility to grant admission “for the purpose of admission from abroad in accordance with international law or on urgent humanitarian grounds” – though on an individual basis.Footnote ⁴¹ Legal experts assert that local authorities in Berlin could use this basis to facilitate admissions specifically in the case of transfers from the Greek camps because of their inadequate reception conditions.Footnote ⁴² Likewise, it could be a ground to facilitate family reunifications if read in conjunction with Art. 6 of the German Basic Law, which holds that the family “shall enjoy the special protection of the state.” Civil society representatives interviewed for this chapter criticize Berlin for not using this particular provision and the discretionary space that it offers,Footnote ⁴³ with Berlin’s Refugee Council explicitly demanding such a step in a policy document prepared for the state elections in 2021.Footnote ⁴⁴

A third strategy of divergence appears in Berlin’s approach to housing those who have reached in the city, which is another key priority identified by Seebrücke under the category “communal arrival.”Footnote ⁴⁵ Section 47 of the Asylum Act places an obligation on asylum seekers to remain in a reception center until a decision on their application has been made and up to a maximum of eighteen months after their arrival (six months in the case of families).Footnote ⁴⁶ Interestingly, Berlin in its role as a Land has made use of the broadly discretionary Section 49(2) of the Asylum Act to relieve vulnerable asylum seekers of this obligation.Footnote ⁴⁷ This policy, which is unique in Germany,Footnote ⁴⁸ was mentioned as a notable though largely implicit welcoming practice by Berlin’s State Secretary Tietze.Footnote ⁴⁹ The impact of this strategy of dilution is however limited in practice by the shortage of available affordable housing in Berlin,Footnote ⁵⁰ due to which most asylum seekers still end up in accommodation provided by the local authorities. This outcome is highly problematic from the perspective of the refugees who arrive: Some of the housing in Berlin as provided by the local authorities is designated as a reception center (in the sense of Section 47 of the Asylum Act) rather than a “collective accommodation” (as established under Section 53), one key difference being that asylum seekers residing in the latter are allowed to work and rent an apartment.Footnote ⁵¹ However, in several instances, the designation provided by the local government did not correspond to the narrow definition of a reception center provided in Section 44 of the Asylum Act.Footnote ⁵² In other words, Berlin’s ostensible dilution strategy, which would have been favorable for migrants, is effectively transformed into an extralegal but implicit strategy of dodging national laws, according to the Berlin Refugee Council for the purposes of deterring migrants.Footnote ⁵³

There are more aspects of Berlin’s local policies (and wider practices) that could have been discussed here; most notably, the question of deportations has loomed large in the city; even the different parties within the local government coalition are not presenting a united front.Footnote ⁵⁴ However, crucial for our chapter is the insight that within the same locality, there can be multiple and, from the vantage point of migrants and their supporters, contradicting strategies of divergence – as well as the occasional nonusage of discretionary spaces, in Berlin’s case when it comes to Section 22 of the Residence Act. While this is in line with recent scholarship that highlights variance in local policies (as opposed to earlier works that seem to have presumed a more unitary “local dimension”),Footnote ⁵⁵ we have further been able to show how these strategies can still be classified using the four-fold taxonomy by Oomen et al., which offers us a tool to describe and map them in their heterogeneity.

4 Interaction between the Seebrücke Movement and Berlin’s Local Government

Those familiar with past and present narratives on Berlin as a city might not be surprised to read that Berlin’s “safe harbor” policies are complex, even contradictory. The notion of Berlin as a diverse and cosmopolitan “global city” is rather recent, with urban scholar Stephan Lanz identifying three stages in its urban governance of migration: The notion of a “nationally homogenous city” (from 1871) was replaced first by a “multicultural, differential” dispositive (from 1981) and later, from 2001, by said less nationally focused, more cosmopolitan vision.Footnote ⁵⁶ Even then, however, “against a backdrop of social polarization and fragmentation processes, exclusionary elitist and racist discourses [have been] on the rise as well,” with historian Paul Nolte and especially former SPD politician Thilo Sarrazin giving these factions a voice from the early 2000s onward.Footnote ⁵⁷ In short, the outlook of the city (in its broadest sense) has been shaped by discourses that change as the social and urban structures and demographic composition of Berlin themselves evolve – a finding that resonates with scholarship underlining the impact of structural forces such as economic globalization on local approaches to migration governance, including at different scales of governance.Footnote ⁵⁸ While it is important to keep all of this in mind, our narrower focus on the Berlin’s recent policies concerning the support of sea rescue and the transfer and reception of forced migrants allows us to demonstrate how these are shaped specifically by the interaction between the local government and the Seebrücke movement. It is here, in our view, that we find important explanations for the adoption of the complex set of strategies outlined in Section 3.

To better understand the dynamic between the local authorities and Seebrücke, it is helpful to consider first where the City “stood” at the time when the movement gained traction in 2018. During our interviews, we asked to what extent Berlin was a safe harbor even before signing its declaration – prior engagement toward similar goals would speak in favor of any subsequent strategies genuinely seeking to advocate admitting and integrating refugees. According to State Secretary Tietze, “some formats and part of the demands of initiatives like Seebrücke had already been a part of the government’s agenda during the coalition talks”Footnote ⁵⁹ in autumn 2016, thus prior to the rise of Seebrücke. This is confirmed by statements made by Berlin’s Mayor Müller in December 2016 that Berlin still had capacities to accept refugees and that “we can perhaps do even more than we have done up to this point.”Footnote ⁶⁰ It should be noted in this context that Seebrücke with its specific agenda draws on the similar, though somewhat less popular Save Me campaign in Germany in 2008, which sought to establish a permanent refugee admissions program.Footnote ⁶¹ Still, the importance of the inclusion of refugees (as well as asylum seekers and persons with exceptional leave to remain) were already flagged in the Senate’s 2007 integration concept, which portrayed diversity “as an asset that shall be fostered by public policy.”Footnote ⁶²

All this evidence points to Berlin having taken a principally progressive approach already prior to the mobilization that led to the safe harbor declaration and the establishment of the Safe Harbor Alliance. A member of Seebrücke, however, takes a more critical perspective:

Besides offering a more differentiated evaluation, the quote illustrates the ambivalent relationship between local governments, in our case in Berlin, and civil society actors, which could variably be “cooperating, tolerating, or conflicting.”Footnote ⁶⁴ This stands in contrast to early scholarship on the “local turn” in migration policy that often stressed the collaborative, results-oriented interaction between these actors.Footnote ⁶⁵ Still, in the case of Berlin and Seebrücke, it even goes beyond Ambrosini’s piercing metaphor of “battleground” of asylum and immigration policy,Footnote ⁶⁶ which still does not fully capture the story: “allies” and “adversaries” at the same time and depending on the policy question, the two actors’ strategies are both distinct and co-productive. The terrain of the “battleground” is a rather distinctive one, resembling more the volatile and situational interaction of business competitors in a growth market, which find their interest converge and diverge at different moments. At the same time, it represents a strong “bond” in the sense that it generates dynamics with potentially far-reaching consequences such as changing the accepted interpretation of Section 23(1) of the Residence Act, which would elevate the competency of all states, including city-states such as Berlin and allow more autonomous action on refugee admissions. The possibility for such a change adds a concrete dimension to recent studies that, looking at the ambitions behind Berlin’s policies and the mobilization by Seebrücke, have concluded that these “urban solidarities … transcend municipal boundaries.”Footnote ⁶⁷

It has been pointed out that multilevel governance frameworks have done poorly in integrating the “horizontal” dynamics between state and nonstate actors into their largely “vertical” approach focused on different levels of government.Footnote ⁶⁸ Not surprisingly, they therefore do not provide enough conceptual material to explain how, even within the same locality and a relatively narrow timeframe (2018–2020), the interaction between local authorities (like the ones in Berlin) and a forceful civil society movement (like Seebrücke) can bring about the complex and partially contradictory set of strategies outlined in Section 3. “Scalar thought” and “multi-scalar” perspectives fare only marginally better. While both Seebrücke and the Safe Harbor Alliance are arguably involved in “a profound transformation in the very logic of governance” that is of “immanently political character” and “embedded … in hierarchies of power,” it is not obvious what is gained analytically by the mere characterization of these specific interactions as a part of “processes of scaling.”Footnote ⁶⁹

We claim that this theoretical vacuum can be filled (at least partially) by distinguishing various constellations that local authorities find themselves in, which are defined by both social and legal realities – the relevance of latter being worth noting given that they have been frequently sidelined in migration scholarship.Footnote ⁷⁰ These factors, in their combination, place a local government in different strategic positions vis-à-vis the same civil society actors depending on the issues that are at stake. Furthermore, in their sum and also considering their interplay, these socio-legal constellations allow us to grasp the strategies taken by the local authorities in Berlin in their variance and seeming inconsistency.

What we mean by socio-legal constellations is best illustrated by means of example: In the case of Berlin, the first strategy of divergence that we identified (in Section 3) was one of dilution, with the local authorities invoking “humanitarian reasons” in accordance with Section 51 of the Asylum Act to accept especially vulnerable migrants beyond their designated state (Königsstein) quota. Given that these are mostly refugees that already find themselves in Berlin when these decisions are taken, we observe the pragmatic recognition of the status quo rather than an attempt to change it. This, in turn, reduces the incentives for the local authorities to engage in a substantive public debate on this practice. In such a case, local migrant rights defenders would likely question the progressiveness of the policy and draw attention to the relatively narrow scope of Section 51, whose application is therefore an exception rather than a rule. They would also start scrutinizing the vulnerability categories defined in the “Hamburg catalogue,” which are determined by the representatives of the states (Länder), including Berlin. It should be mentioned here that Seebrücke members are already critical of the selectiveness of the local government, for example, in the context of the state admission program whose legality is currently being assessed in court:

Rather than opening Pandora’s Box regarding the application of Section 51 of the Asylum Act, the local authorities thus stick to a dilution strategy. Even during our interview, State Secretary Tietze mentioned the provision but did not elaborate on his claim that the City was using it “very actively.”Footnote ⁷² One possible reason for this lies in the scope of Section 51, presently appropriately narrow from the point of view of the local authorities, as well as the fact that their – in this context pragmatic – approach does not fully resonate with the principled goals of Seebrücke and other progressive movements.

In the case of the second strategy of divergence, we observe an entirely different socio-legal constellation. Pursuing a defiant approach, Berlin is pushing for a new interpretation of Section 23(1) of the Residence Act, one that would essentially remove the requirement of consent by the federal authorities to adopt state admissions programs. The interests of Berlin’s local authorities and Seebrücke are hereby fully aligned in opposition to the national government and the limitations that, based on Section 23(1), are placed on the city’s admission program. Accordingly, the Seebrücke member who we interviewed was positive about the fact that Berlin used its specific legal status to launch judicial proceedings against the Ministry of the Interior. He even expressed the hope that such open defiance of restrictive national policies would become “a role model” for other cities.Footnote ⁷³ This assessment was made in clear awareness of the inherent limitations of legal action:

The last part of the quote illustrates that the decision to take legal action proves to local civil society that Berlin “very much stands up” for the shared goal of creating noncentralized admission programs.Footnote ⁷⁴ That said, it is analytically significant that the local authorities are using their specific, constitutionally allocated competencies to show their support. This sets them apart from all (but two) other cities in Germany that do not have this option, effectively elevating Berlin’s importance as a strategic partner for Seebrücke. On the flipside, the movement created the political momentum that allowed the City of Berlin to push for this expansion of its competencies through the initial legislative initiative and eventually the legal proceedings, both in full confrontation with the national government. It is also hard to believe that without the mobilization achieved by Seebrücke, the SPD would have joined Berlin as a plaintiff against the national government, of which it was a coalition partner. In short, in this specific socio-legal constellation, the relationship between Berlin and Seebrücke seems almost symbiotic as both could act in ways that they would not be able in the absence of the other.

The previous quote brings up another aspect: As the movement’s stand-in plaintiff, Berlin seems to feel less pressure to take other measures. Notable is yet again the contrast with its nonusage of Section 22 of the Residence Act permitting admissions on an individual basis. This (lack of) action is mentioned by Seebrücke members but does not seem to be as important a factor in their evaluation of the local government’s overall performance, which illustrates how Berlin’s status as a city-state works to its advantage. In general, the highly specific socio-legal constellation arising from the debate on Section 23(1) enables the local government in Berlin to position the city-state as a true champion of admission programs and even as a potential role model for safe harbors when its policies are actually more ambiguous in practice – and the eventual outcome of the legal proceedings uncertain.

Berlin’s third and final strategy (or rather strategies) of divergence arose regarding the question of housing. Here, what in principle appears to be a dilution strategy – using Section 49(2) of the Asylum Act to relieve vulnerable asylum seekers of a duty of residence – turns out to be a dodging of established categories of housing to the detriment of newly arrived refugees and asylum seekers. The fact that the latter runs clearly against Seebrücke’s demand for “communal arrival” explains the implicit nature of the local authorities’ actions in this area. The situation certainly could have been otherwise: academic reports approvingly note the principled decision “[to] consider … the accommodation of vulnerable persons in collective reception centers per se as unreasonable (in derogation from the general principle).”Footnote ⁷⁵ Were the implementation of this policy not structurally inhibited by Berlin’s pressured housing market – and members of Seebrücke recognize that it is “a city-wide problem that there is not enough affordable housing”Footnote ⁷⁶ – the local authorities would almost certainly have made their legal yet uniquely progressive reading of Section 49(2) more explicit to buttress Berlin’s standing as a welcoming city. All in all, this example shows how economic factors are also relevant when it comes to the formulation of strategies of divergence, though it is yet again the strong presence of migrant rights supporters and their organizations that is likely at the root of the decision of the local authorities in Berlin to keep their approach to housing questions under wraps.

In conclusion, there is a strong and intimate link between the Seebrücke movement and the strategies of divergence adopted by the local authorities in Berlin. That is in itself not surprising given the immense success of the mobilization, which eventually led to the creation of the Safe Harbors Alliance. However, this section also revealed that the two actors link up in rather different socio-legal constellations, with their interests aligning on some occasions and being at odds in others. These constellations also have an impact on their legal and political capacities. The decision of the City of Berlin to instigate legal proceedings against the federal authorities on the interpretation of Section 23(1) of the Residence Act is closely linked to the rise of Seebrücke in a twofold way: not only does Berlin use its heightened legal capacity (as a city-state) to bring such a case and thus accommodate the demands of the movement, but it also simultaneously benefits from the political momentum created by the latter pushing for state admission programs in Germany and beyond. Given all of this, the metaphor of migration and asylum policy being a “battlefield” only describes an abstract condition where the concrete terrain, alliances and specific tactical decisions are contingent on the specific socio-legal constellations in which local authorities and civil society find themselves.

5 Normative Implications of Complex Strategies of Divergence

One persistent assumption, both in migration scholarship and more generally, is that large, metropolitan cities will be welcoming to migrants. As “global cities”Footnote ⁷⁷ that are “characterized both by a relatively high scale of migration … and by a growing complexity of diversity,”Footnote ⁷⁸ they often tend to consider the arrival of newcomers as a given and as desirable, with local authorities being responsible for managing the how, rather than the if, of the phenomenon. Berlin appears to be a typical specimen in this regard, with both the local government and the majority of the population embracing an “urban imaginary”Footnote ⁷⁹ that considers Berlin to be open to migrants and progressive in the formulation of its policies. The signing the safe harbors declaration was, from this perspective, not just in line with governing policy but arguably inevitable once the political movement initiated by Seebrücke had gained sufficient political momentum. A quote from State Secretary Tietze serves to illustrate this self-image:

From this angle, the creation of the Cities of Safe Harbor Alliance can also be interpreted as a measure to stay abreast of the movement. Even if only declaratory in nature, these commitments are as genuine as they are self-speaking, being rooted in the social and political reality typical of many other global cities. Normatively speaking, the example of Berlin thus seems to support arguments for a reorientation of migration policy toward urban, cosmopolitan areas for the purpose of protecting diversity and affirming migrant rights.Footnote ⁸¹

That said, our evaluation shows that the picture is more nuanced when it comes to concrete local policymaking and implementation. Some decisions that are favorable to forced migrants (such as the legal proceedings) are flagged while others (such as the regular usage of Section 51 of the Asylum Act) are not; more importantly still, there are policies such as the dodging of established categories of housing for migrants that are straight up dubious from the perspective of migrant rights. To be sure, the theorem that large cities are necessarily more open and welcoming to newcomers has already been challenged on empirical grounds: Particularly when one takes a process perspective, it turns out that “in some cities … the transformation into a superdiverse city is more problematic and accompanied by political upheaval, while in other cities it seems to be a more smooth process.”Footnote ⁸² Previous research has in fact demonstrated that even local authorities that pioneer progressive reception policies are forced to navigate the “conflicting demands” of stakeholders.Footnote ⁸³ Such pulls in different directions are also palpable in Berlin, where the cosmopolitan imaginary is arguably still recent and subject to contestation.Footnote ⁸⁴ In our interviews, local civil society members likewise suggested that the local government in Berlin will seek to “accommodate … different constituencies” by adopting varying approaches to different policy questions.Footnote ⁸⁵ Taken by itself, this insight would not be as normatively problematic considering that conflict seems unavoidable in a city as large and diverse as Berlin – as long as the general trend, in spite of setbacks, points to an increasingly welcome and open attitude.

Still, our specific findings lead us to take a more skeptical attitude. With multiple policies co-existing simultaneously, it becomes even more pressing to question the reasons behind the discrepancy between the “overarching discourse” and “actual policy practices,” a finding also made by Hoekstra in her study of local migration policies in The Hague and Amsterdam.Footnote ⁸⁶ Hoekstra’s explanation is that “policy actors locate difference … unevenly across spatial scales, urban areas, and population groups,” which leads her to emphasize that “municipal policy actors make sense of difference in relation to the urban context.”Footnote ⁸⁷ While this is a generally sensible interpretation also of the situation in Berlin, our findings suggest that policy practice may be less “fragmented”Footnote ⁸⁸ than it first appears. Although seemingly contradictory strategies of divergence are rooted in various socio-legal constellations, there are good reasons to believe that they still form part of a wider whole; at the very least, evidence demands us to consider their interrelation. Based on its interaction with its constituencies and especially the Seebrücke movement, the local government in Berlin decided to defy the national government on the question of state admission program but kept a relatively low profile in diluting national quotas through “beyond quota” admission of vulnerable migrants who are already present. Not only is the prior better suited to show support with the Seebrücke movement (which, after all, pushes for systemic change to introduce local-level admissions), but it also enables Berlin to divert attention away from legal categories of vulnerability that could, in principle, be expanded. What is more, the preponderance of questions of legal interpretation renders both these strategic actions and their interrelation concrete: They require the involvement of the same legal officers and departments. Indeed, as State Secretary Tietze revealed during our interview (which took place shortly prior to the launching of the court proceedings), the possibility of taking legal recourse was undergoing a process of “internal review,” the question being “what the better way is to lead this contest also legally speaking.”Footnote ⁸⁹

Taken in isolation, our observation that Berlin’s approach is reflective of (rather than evidence against) deliberateness on the part of the local authorities could be perceived positively if reactive, ad hoc decision-making is the alternative. At the same time, much has been made in the past of the “pragmatic problem-coping” character of local governments as one of the reasons behind “the emergence of inclusionary local immigration policies in the context of restrictive national immigration policies.”Footnote ⁹⁰ The example of Berlin shows that this dichotomy is not helpful: While clearly adjusting their responses to particular socio-legal constellations as they present themselves, the combination of the strategies still forms what can be seen as a coherent whole. Put differently, deploying a complex set of strategies of divergence represents a pragmatic approach from the perspective of the local government. Echoing Hoekstra’s claim that “the notion of pragmatism … should be unpacked,”Footnote ⁹¹ we must then ask what the normative consequences are. Our analysis in Section 3 shows that our view of pragmatism as strategic deliberativeness does not necessarily entail only positive outcomes from the perspective of forced migrants. Even in the “global city” of Berlin, socio-legal constellations lead the local authorities to adopt a set of strategies that generally resonates with local migrant rights supporters but also retains significant gaps in protection. While “urban imaginaries” existing within a city certainly matter, practical outcomes are thus also shaped by the opportunities that present themselves to city governments, with the symbolically most rewarding options not necessarily being the ones that are most beneficial for migrant populations.

One final normative aspect that arises from our analysis concerns the question of the legal competencies of local authorities. More specifically, given that “[i]ssues of immigrant settlement and integration … tend to bear more directly on cities than on the countryside,”Footnote ⁹² should cities such as Berlin be legally empowered? While we still believe that such empowerment would overall be favorable for forced migrants, our case study does caution against overly firm normative conclusions. On the one hand, we find that even Berlin, a city-state with significantly more legal powers compared to other German cities, still adopts complex strategies of divergence with ambivalent outcomes. Providing further legal competencies for local authorities does not, therefore, necessarily improve the situation of forced migrants. While this might not be too surprising of a finding, it is still striking in the case of Berlin, where the overall context seems particularly favorable for migrants: a legally resourceful city governed by a center-left/left coalition that is also experiencing social and political tailwind, in the form of the Seebrücke movement, for its principally cosmopolitan and inclusive orientation. On the other hand, had the city-state of Berlin more competencies, most notably to introduce a state admission program, no high-profile legal action would have to be launched against the national government – this would open up the space to discuss other relevant questions, such as Berlin’s housing policies or the scope of vulnerability criteria. The legal fight over competencies thus stifles the emergence of other debates that could be meaningful for the practical enjoyment of migrant rights, but possibly also more troublesome from the municipality’s perspective. Strikingly, this downside of formal debates concerning the scope of legal authority echoes issues that have arisen in the United States in the context of sanctuary policies.Footnote ⁹³

6 Conclusion

Berlin, a cosmopolitan “global city” located in the heart of Europe, has the reputation of being open and welcoming to refugees. This was true already prior to 2018, marking the arrival of the Seebrücke movement, which has stood up for increased sea rescue and human rights-compliant policies based on direct admission to cities and towns. Since then, the local authorities in Berlin continue to be perceived as supportive of this mobilization – and plausibly so, having publicly declared the German capital a “safe harbor” that would be willing to host stranded refugees, and even creating the Cities of Safe Harbor Alliance, which rallies over 100 German cities and towns in solidarity with Seebrücke and the refugees the movement seeks to protect.

This being said, our chapter shows that is worthwhile to take a closer look at the strategies that Berlin has adopted in practice. Even within the narrow timeframe of our study focusing on the three years following the rise of Seebrücke, we find that Berlin adopts multiple, at first glance contradictory strategies to diverge from the restrictive policies of the national government. More specifically, using the conceptual framework by Oomen et al., we were able to identify the coexistence of strategies of defiance, dilution and dodging, as well as inaction, on different policy questions. Berlin’s authorities are defiant insofar as state admission programs are concerned, initiating first legislative and then legal proceedings to get rid of the legal requirement of obtaining prior consent from the national government. By contrast, the local government does not make use of another legal basis in the same Residence Act to proceed with transfers on an individual basis. Dilution and dodging strategies can be found when it comes to providing accommodation for refugees: The City does not flag its decision, although unique among all German states, to dispense vulnerable refugees of a duty of residence. Its implicit strategy can be understood against the backdrop of pressures in the housing market and the fact that in practice, many refugees still end up in reception centers that are wrongly designated as such, thereby barring its inhabitants from work or looking for private accommodation. In short, the actual approach taken by the municipality in Berlin is much more complex and indeed ambivalent for migrants than its vocal support for Seebrücke would suggest.

To explain the existence of these complex strategies of divergence, we referred to the multitude of “socio-legal constellations” in which they arise. Particularly in a context where the rise of the Seebrücke movement has given rise to considerable civil society pressure, the local government in Berlin finds itself in various rather specific strategic positions as shaped by legal and social realities. Most notably, its legal status as a city-state enables it to file legal proceedings against the national government on the question of state admissions programs. This puts it in an almost symbiotic relationship with Seebrücke, which has achieved considerable political mobilization for this point. By contrast, the local authorities have little to show but much to lose were the issue of housing to gain greater salience among migrant rights supporters. Importantly, those differing socio-legal constellations should be considered in their interplay, with the decision to launch openly defiant legal proceedings dampening at least some of the pressure that Berlin could face on other fronts, such as on housing. Having identified both the strategies of divergence and the socio-legal constellations that underlie them, we finally cautioned against normative perspectives that all too quickly embrace legal empowerment of cosmopolitan cities such as Berlin as a silver bullet to securing the rights of refugees and other forced migrants. While it is true that their urban imaginaries are mostly pro-migrant, the example of Berlin demonstrates that local authorities may find ways to position themselves within such a frame while also pursuing policies that are not congruent with it. Whether or not legal empowerment would diminish such ambivalent strategies is an open question; the fact that the city-state of Berlin already enjoys relatively more constitutional powers as compared to other German cities renders us at least somewhat skeptical in this regard.

Having considered only one case study, our findings would have to be tested in other contexts, both in and outside Germany, and in large as well as medium-sized and small cities. We would hypothesize that strategies of divergence are more likely to be fractured and complex in large and especially in legally resourceful cities that face a greater variety of socio-legal constellations. That said, our framework would place any strategy of divergence, even a “singular” one adopted by a smaller town, within a particular socio-legal constellation. More empirical case studies and comparisons are needed to further delineate the relation between strategies of divergence and socio-legal constellations: Ideally, the taxonomy of the former should be matched by a separate set of categories of the latter. If we reach a better understanding of the prevalence of particular socio-legal constellations and the strategies of divergence that they produce, we would also be able to draw firmer normative conclusions as to whether greater involvement of cities and other subnational authorities in migration is desirable at the end of the day.