NGOs in Ukraine’s Multi-Scalar Asylum Governance – Between Influence and Dependence on State Authorities

ABSTRACT

This article analyses the role of NGOs in asylum policies in the 2010s in Ukraine – a country often considered merely of transit for migrants. Which dynamics characterised the relationship between NGOs and the administration in a context of relative retreat of the state and low politicisation of asylum issues? While in Western Europe the state is frequently responsible for a large part of the funding of NGOs providing services to it, asylum NGOs in Ukraine received funding exclusively from international organisations and foundations. Better funded than the Ukrainian administration and following the norms of their donors, these NGOs took over tasks traditionally considered to be the responsibility of states. NGOs used their resources to gain access to the administration, with the aim of supporting some asylum seekers and more broadly to influence administrative practices in line with international asylum norms. While these resources seemed to place NGOs in a strong position, NGOs sought to maintain consensual relations with the authorities, depoliticising their work and avoiding to publish their criticism. By highlighting the ambivalent place of NGOs between influence and dependence on the administration, this study contributes to research on the role of NGOs in national and international migration regimes.

KEYWORDS:

• Asylum
• migration
• Ukraine
• NGOs
• multi-level governance
• European Union

Introduction

The roles of states have undergone profound transformations over the last decades. While many scholars have argued that state sovereignty has been eroded by globalisation (Strange 1996; Beeson 2003), others have argued that it has changed without necessarily decreasing in strength. Saskia Sassen observed conflicting processes of denationalisation and renationalisation of politics and policies (Sassen 1996). Immigration is a particularly interesting case for studying such developments. On the one hand, it is seen as a classical domain of state sovereignty and is regularly renationalised by domestic politicians asserting national control over borders and human mobility. On the other hand, it is an intrinsically transnational phenomenon subject to international rights regimes that limit the possible policies that states can implement. Sassen contends that the national and the global should not be opposed but analysed as intertwined (Sassen 2008). Indeed, increasing numbers of normative orders or specialised assemblages coexist. International law, for instance, operates partly inside the state through national courts, producing specialised, partly denationalised spaces within what has been historically constructed as the national space. More diverse actors have become involved in national policies, business actors but also international and non-governmental organisations that intervene in the policy process, for example, by lobbying or taking cases to court.

Research has also shown that the roles of states have changed in the course of the spread of multi-scalar (often called multi-level) governance.

[T]hree minimum elements of MLG [multi-level governance] as a specific policy arrangement can be put forward: (1) it challenges vertical, state-centred formal hierarchies of distribution of power and responsibility over migration and, at least to some extent […], horizontal state/society boundaries through the incorporation of nongovernmental actors in policy-making processes; (2) actors in MLG arrangements have to be interdependent in the sense that a certain policy cannot be carried out by just one level of government, but requires the involvement of other tiers and eventually of nonpublic actors; and (3) this interaction should imply some degree of bargaining and negotiation. (Caponio and Jones-Correa 2018: 2006)

Scholars have argued that central state apparatuses have shifted responsibilities in migration policies up (to supranational or transnational organisations, for example, to the European Union (EU)), down (for example, to local administrative bodies or street-level bureaucrats) and out (to domestic non-public actors but also to third states, such as EU neighbours) (Guiraudon and Lahav 2000; Caponio and Jones-Correa 2018). Put differently, states and other actors seek to extend their reach via the ‘dispersion of [their] own elements, or through the mediation of public or private relays, such as think tanks, civil society organisations or agencies’ (Lacroix 2022: 4).

While much has been written on multi-scalar governance within the EU and at different domestic state scales (Bache et al. 1996; Bomberg and Peterson 1998; John 2000; Marshall 2005; Adshead 2014), little is known about how non-governmental organisations (NGOs) and international organisations (IOs) resort to multi-scalar strategies. Paul Stubbs described how local NGOs can ‘jump’ to another scale, for example, by turning directly to IOs (Stubbs 2005: 77). Following research in human geography, I understand scales (also called levels) not as given but as socially produced and constantly renegotiated (Swyngedouw 1997; Brenner 2001; Smith 2004; Moore 2008). Vertically differentiated spaces and socially produced power relations between different actors, scales can correspond to administrative tiers, such as districts or states, but can also be constructed independently or opposed to state institutions (Evans and Davies 1999: 368; Hill and Hupe 2002: 125–126; Marshall 2005; Dufour and Goyer 2010). This article analyses how NGOs and IOs actively seek to shape state policies through multi-scalar strategies: they turn to state actors at various scales, whose accessibility and means of influence vary depending on their position in the state apparatus.

The present contribution examines the changing relations and interdependencies between the different – state and non-state, local, national and international – actors involved in migration policies. How do non-governmental or international organisations try to shape the policies? Which activities and tasks, among them those traditionally considered state tasks, do they take over and which ones don’t they? And why? In short, which roles do non-state actors play in a migration regime (Pott et al. 2018; Mützelburg 2019)?

This article analyses the case of the asylum regime in Ukraine before the full-scale Russian invasion in February 2022. Ukrainian politicians have passed asylum laws since 1993, shortly after the state gained independence in 1991.¹ The first law on refugees from 1993 introduced the concept of ‘refugee’, following closely the definition of the 1951 Refugee Convention. Ukrainian law-makers also formally included the prohibition of refoulement into domestic legislation but maintained loopholes that allowed for refoulement (Mützelburg 2022, chap. 3). Asylum seekers’ and refugees’ right to social benefits remained limited and vague, so that in practice access to these benefits was often difficult or impossible. Indeed, Ukrainian politicians gradually adapted domestic law to international (primarily UNHCR) asylum norms, but without constructing asylum as a public policy problem (Mützelburg 2022). Between 1993 and 2010, Ukrainian politicians primarily included international asylum norms into domestic law and joined the 1951 Refugee Convention to show to a domestic and international audience that they were democratising and Europeanising the Ukrainian state. They sought to obtain positive evaluations by international organisations, including in order to join the Council of Europe in 1995.

Ukrainian decision-makers expanded asylum laws and policies over time and in particular between 2010 and 2016 under the influence of EU conditionality, when the EU made the abolition of visa requirements for Ukrainian tourists conditional upon reforms in various spheres, including asylum. The Law on Refugees and Persons in Need of Complementary and Temporary Protection in Ukraine from 2011 (reviewed in 2014) introduced two additional protection statuses, imitating statuses enshrined in the EU Qualification Directive (2004): the status of complementary (or subsidiary) protection and the status of temporary protection. After the end of the EU conditionality in 2016 until the beginning of the Russian invasion in 2022, the imported norms and policies were upheld but were not further deepened.

Nevertheless, asylum never attracted much attention and interest from the Ukrainian media, citizen activism, or domestic politicians. It remained a policy area dominated by international organisations, namely UNHCR, and professionalised non-governmental organisations. One can therefore consider this a case in which IOs and NGOs played particularly prominent roles, or speaking with Sassen, a case of likely spaces of denationalisation.

The limited domestic visibility of asylum can be mostly explained by the low number of asylum seekers and refugees in Ukraine. Apart from more substantial arrivals of protection seekers in the early 1990s (for example, in 1992, Ukraine granted protection to 60,000 fugitives of the war in Transnistria), numbers did not exceed more than a few thousand applicants per year. In the first six months of 2022, the number of applicants dropped to about a hundred, reflecting the loss of relevance of asylum in Ukraine in the context of the new phase of the war. In the last decade, between 2000 and 4000 recognised refugees and people in need of complementary protection were living in Ukraine. It is likely that more foreign fugitives lived in Ukraine but did not obtain or did not try to obtain a protection status because of the small benefits associated with it and because of their fears of Ukrainian authorities (Rechitsky 2016: 173). Protection seekers in Ukraine came primarily from other former Soviet Republics, Afghanistan, Syria, Iraq, Palestine, Somalia, Sudan, Congo and temporarily from India and Pakistan. The average recognition rate fluctuated strongly in Ukraine. It had been high until 2001 (between 37 and 80 per cent), and has been fluctuating since then, often being very low.²

This contribution is based on extensive fieldwork carried out in the cities and towns of Ukraine with the highest numbers of migrants – Kyiv, Lviv, Uzhhorod, Mukachevo, Odesa, Chernihiv and Kharkiv – primarily between 2013 and 2015. Semi-structured interviews were carried out with central and regional state officials, and employees of IOs and NGOs.³

Research on post-communist countries has identified two types of NGOs: those that are professionalised, close to IOs and critical of the government, and those that have a role as a government affiliate supporting the state in carrying out its tasks (Petrova and Tarrow 2007; Fröhlich 2012; Saxonberg 2016: 2). I will show that in the case analysed here, this dichotomy does not apply. NGOs both took over state tasks and tried to influence the way the state worked. Most NGOs adopted a strategy based mainly on personalised relationships with state agents – alternating between a critical position towards the authorities and a role as a government affiliate.

This study shows that even though domestic political and administrative actors showed little commitment to asylum policies, they maintained official control over the prerogatives commonly associated with state sovereignty, namely the attribution of legal statuses to aliens. Nevertheless, the international and the national, the governmental and the non-governmental spheres were intertwined, with their actors constantly interacting and depending on each other. Not only did non-state actors take over certain state tasks, they also sought to influence regal domains through multi-scalar strategies. They did this partly by criticising state practices at different scales and occasionally by triggering international pressure. Most of the time, however, they did this by adopting consensual strategies, training and persuading state officials at different scales, turning certain officials into allies, and shaping formal laws and procedures.

The first part of this article focuses on the dependence of asylum NGOs in Ukraine on international organisations. The second part shows how NGOs took over certain state tasks, supporting the authorities without threatening regal domains. The following parts analyse the ways in which NGOs tried to influence administrative practices. In the third part, I present the confrontational strategies used by non-state actors, while in the fourth part, I present the more consensual strategies, which were based on personal contacts. The final part explores in more detail a particular kind of strategy to influence state policies and laws: when NGOs tried to turn state agents into allies.

Asylum NGOs in Ukraine – Dependence on International Organisations

Migration NGOs do not always emerge spontaneously, but sometimes arise as a result of an external strategy. International organisations, seeking to establish their norms and to engage in concrete activities that support migrants or domestic authorities, often delegate (some of) these tasks to smaller organisations. Since the end of the 1990s, IOs provided funding for programmes and projects to bring asylum policies and practices in Ukraine closer to international standards (Mützelburg 2018). A substantial part of this funding originated from the European Commission, as since the late 1990s the EU has tried to reduce unwanted immigration flows to its territory by supporting the establishment of asylum systems in transit countries. The European Commission has attributed its funding primarily to large international organisations. These organisations, such as the United Nations High Commissioner for Refugees (UNHCR), have opened offices in various countries, including in Kyiv, the capital of Ukraine, lobbied Ukrainian political and administrative decision-makers and carried out activities to support asylum seekers and recognised refugees.

In addition, UNHCR provided funding to local NGOs. In order to broaden the number and geographical distribution of their activities, IOs support, reorient and sometimes even indirectly establish local NGOs (see Table 1). Numerous studies have documented and analysed the aid industry and shown how NGOs acquire money in the transnational aid economy with short contracts and competitive tenders (Cooley and Ron 2002). UNHCR in Ukraine published tenders through which it recruited organisations called ‘partners’, which obtained institutional funding and implemented UNHCR projects. In the 2010s, around seven NGOs worked as UNHCR ‘partner’ organisations, often sharing the work areas – as requested by UNHCR – between legal support (dealing with asylum procedures and appeals) and social support (providing material, financial and psychological support, as well as advice and accompaniment in job search and administrative procedures to obtain social benefits, schooling, etc.). While in other sectors, researchers have shown that this type of international funding can support and increase the means and influence of national or local NGOs already committed to the ideas in question (Börzel and Risse 2012; Bruszt and McDermott 2012), this was not the case in the asylum sector in Ukraine. In many countries the creation of pro-migrant NGOs was the result of grassroots mobilisation in support of migrants (for example, in Poland, France, or Israel (Halluin-Mabillot 2012; Havkin 2017; Follis 2019)); these NGOs obtained international or institutional funding later. In contrast, in Ukraine, the majority of NGOs subcontracted by UNHCR were not active in this field before international funding was made available, and their employees were not migrant rights activists before being hired by an NGO for the first time. During interviews, employees admitted to having had no knowledge of asylum before their first employment contract with an NGO that operated on the basis of international funding.

Table 1. Activities of Asylum NGOs in Ukraine in the 2010s.

Full name of the organisation	Place (office)	Spheres of involvement other than asylum
Danish Refugee Council (DRC)	Kyiv	Since 2014: IDPs only
Hebrew Immigrant Aid Society (HIAS) Right to Protection (R2P)	Various places in Ukraine	Initially: Jews; since 2015: IDPs
Chernihiv Public Committee of Human Rights Protection (CPCoHRP)	Chernihiv	Human rights, anti-discrimination, anti-human trafficking, anti-corruption
Rokada Charitable Foundation	Kyiv
Vinnytsya Human Rights Group	Vinnytsya	Various human rights topics
Public Movement Faith Hope Love	Odesa	Health, human trafficking
10th April/Desyate Kvitnya (former South Ukrainian Centre of Young Lawyers)	Odesa	Roma, integration of foreigners, emigration of Ukrainians
Red Cross	Various places, in this case: Odesa	Disasters, human trafficking, first aid …
Social Service of Assistance (former Caritas Kharkiv)	Kharkiv	Vulnerable, elderly, children, IDPs
Charitable Foundation World/Svit	Kharkiv
International Foundation of Health and Environment Protection Region Karpat (NEEKA)	Mukachevo	Children, Roma, anti-racism, environment
Comité d’Aide Médicale Zakarpattya (CAMZ)	Uzhhorod	Healthcare, vulnerable groups, all groups of migrants
Caritas of Mukachevo Greek-Catholic Diocese	Mukachevo	Mostly elderly, since 2014 also IDPs
Jesuit Refugee Service (JRS) From Jesuits of Ukraine	Lviv
No Borders Project/Social Action Centre	Kyiv	Anti-xenophobia, LGBT rights

Source: Author’s production.

Over the course of their work in these NGOs, employees learnt about the international asylum standards promoted by UNHCR. For instance, they learnt that it was important to distinguish between illegitimate migrants and ‘true’ refugees who fulfilled UNHCR criteria and who deserved support. For example, the head of a UNHCR subcontractor NGO reported how shortly after founding the NGO in the late 1990s she was invited to a UNHCR training workshop in France, together with representatives of the migration service of Ukraine. At the time, she knew little about asylum. Nearly two decades later she claimed that this training was ‘excellent’. They saw how in France the different groups were kept separate, ‘migrants, asylum seekers and refugees’: ‘Afterwards we also decided to separate the groups’ (Interview, head of a local asylum NGO 2014). NGO workers also adopted a committed discourse that could be described as an activist – for example, emotional criticism of state practices that they denounced as unfair to the applicants. Nevertheless, their discourse generally remained within the limits of the ideas promoted by UNHCR (for example, the demand for an asylum procedure according to international standards and not the abolition of borders). This adoption of UNHCR standards can be explained by the strong legitimacy of the UN agency in the field of refugees, but also by the absence of strong prior beliefs on migration among NGO staff (Checkel 2001: 563, 2002).

In addition to the socialisation through work and training offered by UNHCR, NGO employees implemented the work standards of their donor, on which they were financially dependent: They adapted their activities and practices to the expectations of UNHCR (Mützelburg 2020). Thanks to its nearby office, located in Kyiv, and its expertise, UNHCR was able to regularly monitor the work of the employees of the NGOs it funded. Since the NGO workers carried out their activities as paid work, they were limited in their freedom: Although they enjoyed some leeway, these workers had to follow their donor’s asylum norms and work standards. Indeed, the non-state asylum sector remained entirely dependent on the existence of international funds due to the lack of volunteers and Ukrainian foundations that would otherwise provide support to asylum seekers or refugees.

Asylum NGOs Taking Over Certain State Tasks – Supporting the State Without Threatening Regal Domains

NGOs and UNHCR took over various state tasks. As long as this remained supportive and complementary to the administration, state officials often saw this positively. A caseworker of a local migration service explained how NGOs had more resources and took over tasks her administration was unable to ensure:

They [NGOs] provide us with social and psychological help. Psychologists, sociologists, social workers have more resources – they may use grants. […] Sometimes we just don’t have enough time. For example, a girl is pregnant and she doesn’t know how to go to the doctor. She will not go with some random person. She needs to be accompanied by an understanding woman. […] So this lack of social workers is somehow compensated by NGOs. There are also medical workers, professional psychologists – they are very important for women and children. We do not have a psychologist among our staff, so … Contact is very important for these people. I just don’t have time to communicate enough. […] So, they also have the girls-volunteers. If there is some help needed – to process documents for the pension or receive maternity aid or to enrol the child at school. In the past, I used to do all this stuff. (Interview, local caseworker, 2014)

After selecting the asylum seekers they considered deserving and fitting by UNHCR asylum criteria, UNHCR subcontractor NGOs advised and supported them concerning their asylum procedure at the state authorities as well as in other areas, helping them, for instance, to enroll in education and obtain healthcare. Since asylum seekers did not receive any significant social benefits from the Ukrainian state, NGOs and UNHCR attributed material support to some of the migrants they classified as deserving. Until the early 2010s, the organisations often arranged and paid for migrants’ healthcare, language classes and interpretation at the migration authorities. Even though Ukrainian legislation and the government’s plan for the integration of refugees foresaw that the state would provide these services, and UNHCR and its subcontracting NGOs tried to persuade state actors that these services were their responsibility, the authorities did not follow through on the promises made by the state.

As long as NGOs and IOs ensured these costly services, state authorities did not assume responsibility for them. International organisations decided to withdraw from several of these activities in order to push the Ukrainian authorities to replace them. The head of a UNHCR subcontracting NGO explained in 2014 that UNHCR had paid for Ukrainian language classes for refugees but then stopped because it wanted the Ukrainian government to pay – so far without the desired effect. In 2014, UNHCR asked its subcontractors to stop providing interpreters for asylum interviews at migration services, hoping that the authorities would fund this service on their own. Similarly, in December 2011 the Danish Refugee Council and the International Centre for Migration Policy Development terminated funding for a unit they had previously funded to carry out country of origin information research for the state migration service. In all of these cases, the Ukrainian administration asked NGOs and IOs to resume this funding as the lack of these services hindered its work significantly.

Even though NGOs and IOs took over activities that allowed the administration to function, the Ukrainian authorities did not cede regal domains. While in some countries, UNHCR was the only actor carrying out refugee status determination and granting protection status(es) (for example, in Israel until 2009 (Havkin 2017)), and in some places its decisions were even recognised as official (for example, in Kenya from 1991 to at least 2006), in Ukraine, UNHCR and its ‘partners’ recognised migrants as refugees in parallel and often contrary to the Ukrainian state. According to NGO workers critical of state practices, the decisions taken by non-state and state actors frequently diverged. The Ukrainian state did not let IOs and NGOs take over activities that directly impeded upon traditional sovereign prerogatives, such as controlling access to the state territory or deciding on who is allowed to enter or stay in the country.

For about six months in 2013, due to material and organisational difficulties, the Ukrainian administration did not deliver the document proving that a migrant had applied for asylum and therefore had a legal status in Ukraine. During this time, UNHCR refugee certificates (including the name and photo of the migrant) were used by migrants to prove the legality of their stay in Ukraine, for instance when confronted with a police control. While mistrustful at first, police officers became used to these ‘documents’ and started recognising them as para-documents. When the Ukrainian administration started issuing formal documents again, UNHCR lost this informal capacity to produce recognised documents.

In short, NGOs and IOs were welcome to take over state tasks (social support to migrants and support for the practical functioning of the administration) that were perceived by state actors as non-threatening to state sovereignty. However, the control of the borders and the attribution of legal documents to aliens remained state prerogatives that were not shared with non-state actors.

Asylum NGOs Trying to Influence Administrative Practices – Multi-Scalar Confrontational Strategies

NGOs and IOs also tried to influence regal prerogatives by shaping the beliefs, knowledge and practices of the Ukrainian state officials who implemented asylum policies, including asylum case workers in regional and central migration services. NGO staff explained in interviews that lack of knowledge and empathy, racism and ‘misconceptions’ among state agents led to ‘problematic’ practices that were not in line with Ukrainian law and international standards. One of the main tasks of NGOs active in the field of asylum was to ‘educate’ the staff of the Ukrainian administration to change their practices. Different modes of interaction can be distinguished in these educational activities: formal or informal, confrontational or non-confrontational, ad hoc or regular. NGOs and IOs also targeted different scales of the state apparatus.

Turning to Higher State Scales to Complain About State Practices

As part of a multi-scalar approach, non-state actors tried to benefit from the legal authority of domestic state bodies (Weber 1922, pt. I; Chapter III) by triggering administrative control and instructions by officials with a higher scalar identity to change the practices of state officials seen as subordinate.

NGO workers first tried to shape administrative practices by interacting directly with the street-level bureaucrats in charge and requesting changes in their behaviour. They frequently accompanied asylum seekers and refugees to various state bodies in order to request access to their rights (for instance rights to social benefits, education, registration and documents – and this without bribes), referring to formal rules and laws. When subordinate state officials did not fulfil their demands, NGOs often contacted higher instances of the same institution – or threatened to contact them. For instance, NGOs threatened police officers who requested bribes from asylum seekers that they would report about this to their superior. To maintain their friendly relations with the authorities, NGOs occasionally communicated their criticism indirectly, for instance by asking UNHCR to publish it.

NGOs alternated between different strategies, observed the state authorities’ reactions and adapted. Indeed, higher positioned officials could choose to ignore the complaints about the lower state bodies. For instance, several NGO directors reported how they regularly complained to the central state migration service and ministries about violations of laws by the regional migration services (for example, imposing illegal fines and penalties, failing to issue asylum seeker or refugee documents, conducting asylum interviews in parallel in the same office in violation of confidentiality standards), but their complaints were often ignored. If higher positioned officials disagreed with the complaint or viewed NGOs and IOs as aggressive and too assertive, this type of contestation remained ineffective. When the approached official could not or did not want to exercise legitimate domination over the subordinate state actor, the NGOs contacted another state actor.

Triggering International Pressure to Counter Domestic Resistance

Local NGOs sometimes benefited from more powerful actors with an international scalar identity to counterbalance their weak position in relation to domestic state authorities (Mützelburg 2022). Margaret Keck and Kathryn Sikkink argued that NGOs in states which are reluctant to comply with international norms can influence state policies by activating transnational networks, which exert pressure on the state from the outside (Keck and Sikkink 1998).

When NGOs had exhausted all domestic channels, they turned to international actors for help. Major issues of conflict concerned practices or attempts of refoulement⁴ of potential refugees, as in the 2000s and 2010s, NGOs and IOs harshly criticised Ukrainian authorities for prioritising cooperative relations with refugee producing CIS regimes over the right to asylum (Border Monitoring Project Ukraine and Stiftung PRO ASYL 2010; Amnesty International 2013). Thus, when NGOs and IOs observed possible refoulement, the detention of minors, or people being denied access to the Ukrainian territory or the asylum procedure, they turned first to the Ukrainian authorities by contacting the state migration service, the General Prosecutor’s Office, the Ministry of Justice and the Ombudsman’s Office. When this direct contestation was not successful, NGOs filed Rule 39 requests to the European Court of Human Rights (ECHR), asking for an interim measure to suspend the Ukrainian state procedure (usually the extradition procedure) and then a full application against the state.⁵ As a regional court, the ECHR interpreted Ukraine’s human rights obligations, including concerning non-refoulement, and in some cases it sent a letter asking the Ukrainian state to suspend the extradition procedure. This letter usually had the desired effect (‘Case of Abuyev v. Ukraine’ 2013; ‘Case of Bayasakov and others v. Ukraine’ 2010; ‘Case of Kaboulov v. Ukraine’ 2009; ‘Case of Soldatenko v. Ukraine’ 2008; ‘Case of Svetlorusov v. Ukraine’ 2009; ‘Case of Kebe and others v. Ukraine’ 2013): Several case decisions by the ECHR document how, between 2008 and 2015, the Ukrainian General Prosecutor’s Office initially ordered the extradition of the applicant but the Prosecutor’s Office ultimately refused the extradition and released the applicant from detention after the appeal to the ECHR (‘Case of Abuyev v. Ukraine’ 2013; ‘Case of Kreydich v. Ukraine’ 2009; ‘Case of Svetlorusov v. Ukraine’ 2009). Thus in instances where the ECHR followed the NGOs’ argument, the court’s intervention altered the Ukrainian state decisions on the individual cases.

IOs and NGOs in Ukraine also turned to the EU to influence individual decisions of Ukrainian state bodies. In cases where there was deemed to be a risk of refoulement, UNHCR contacted EU institutions in Brussels (for example, the High Representative for Foreign Affairs and Security or her deputies) and the EU Delegation in Kyiv. They then asked the EU ambassador to communicate the criticism of the pending extradition to Ukrainian politicians. In the cases where the EU stepped in, the refoulement did not take place. For instance, in 2013, in the case of Abdumalik Abdulajanov, the former prime minister of Tajikistan, the EU contacted the Ministry of Justice. After a month of detention, Abdulajanov was released. Non-state actors hoped that the anticipation of an international outcry would discourage Ukrainian state authorities from violating asylum law. In a political context in which domestic politicians wanted international actors to see them in a good light (for example, the EU between 2010 and 2016), the threat of damaging the state’s international reputation and possibly failing to obtain certain incentives led domestic officials to give in. However, such contentious strategies often contradicted and hindered other, non-contentious strategies used by non-state actors.

Criticising to Transform or Not Criticising to Maintain Contacts

When non-state actors criticised authorities in public, they risked losing their personalised relationships and the possibilities for influencing state practices in a non-contentious way. NGOs, on the one hand, supported individual asylum seekers with their applications and appeals and tried to save migrants from refoulement. On the other hand, they tried to influence the daily practices of the asylum administration by establishing cordial links with the employees. These objectives and strategies could prove to be contradictory, with some putting others at risk.

State officials responded to criticism of their state’s actions as if it were directed at them personally. If NGO employees nevertheless criticised the administration in public or even took it to court (at the national scale or to the European Court of Human Rights), they risked suffering the consequences in a cooling of their previously friendly relations. The director of an NGO explained that his contact people in the administration called him to complain about an appeal against a negative decision concerning an asylum seeker and threatened that they would not ‘have breakfast’ with him anymore. In the case of an international disclosure of Ukrainian state deficiencies, the punishment sometimes meant the complete termination of cooperation with the NGO in question. Several NGOs were depoliticising their activities and did not openly criticise the state. They only selectively resorted to public criticism or legal instruments when they considered divergences from international standards to be too great or when they believed the situation was particularly dangerous for asylum seekers. Indeed, a major strategy to influence state practices relied on establishing personalised relations with relevant state officials, blurring the boundary between state and non-state actors.

Asylum NGOs Trying to Influence Administrative Practices Through Personal Contacts

Formal and Occasional Interactions with State Officials to Shape Norms and Establish Initial Contacts

UNHCR and subcontractor NGOs organised seminars, training and study tours for state agents, whose participation depended on a decision made at a higher scale. The number of such trainings was such that all the administrative officials interviewed for this study had participated in at least one of these events, which covered the following topics: international standards on asylum; Ukrainian legislation; interview techniques; drafting of recommendations for refugee status; unaccompanied minors; and information on certain countries of origin of asylum seekers. During these one-off training sessions, the employees of IOs and NGOs tried to trigger particular emotions (compassion, recognition of deservingness, identification) (Traïni 2010; Salaris 2017), presented models of asylum systems in other countries (sometimes in situ), and referred to international standards as authoritative arguments.

Given the discrepancies with the participants’ pre-existing normative framework, the ideas promoted by the trainers frequently met with resistance. Nevertheless, at these events, NGO and IO workers enjoyed a strong legitimacy as they played the role of teachers, presented themselves as transnational experts, set the agenda, and occasionally invited people who would support their positions (for example, asylum lawyers or an employee of the Ombudsman’s Office). During a training conducted in a city in Ukraine in 2014, a clear discursive shift could be observed. While at the beginning of the event several participants vigorously questioned some of the ideas promoted by the organisers, these voices diminished over the course of the two days. At the end, all the participants conformed discursively to the norms taught, even in small groups during the breaks. These participants, as well as the state agents of the asylum services interviewed elsewhere, had become aware of the existence of these international standards and their legitimacy in certain contexts, which led them to respect them in their discourse.

These seminars were also crucial networking moments when NGO employees established personal contact with state agents. These contacts were essential for informal and more regular attempts to influence state practices.

Regular and Informal Interactions to Build Strong Relationships and Transfer Norms

Most asylum NGOs in Ukraine sought to spread their norms and help their clients via personalised relationships with state officials. NGO workers consistently explained that the beginning of their interactions with the authorities was marked by distrust on the part of public officials. The associations sought to reassure their interlocutors and to convince them of the benefits they could derive from cooperation. NGOs regularly interacted with some state representatives, including informally, to put their relations on a more personal footing. By offering favours and sharing their resources, NGOs strengthened their links with state services. Indeed, NGOs had knowledge (particularly in the field of international asylum law and information on migrants’ countries of origin); language skills (more widespread mastery of English, access to interpreters and translators for migrants’ languages); financial means (for language courses, medical care, grants for setting up small businesses); and sometimes legitimacy (a reputation for behaving in a moral and non-corrupt way – this applied particularly to faith-based organisations). Given the scarce resources available to public bodies and given the governmental pressure to fulfil top-down expectations, especially during the period of conditionality of the EU Visa Liberalisation Plan and in the context of political change after the Maidan protests in 2014, state agents became de facto dependent on NGO support. In order to meet expectations despite the lack of resources, in their reports regional state authorities included activities that were actually implemented by NGOs. For instance, regional officials indicated in their report that language courses for refugees ‘were organised’, suggesting that they had organised them, while actually NGOs had organised them.

NGO workers used their interactions with officials to change the latter’s practices – through information, emotions and personalised relations. Indeed, as a result of repeated interactions – including outside working hours – NGO staff developed personal relationships with state agents, which they frequently described as ‘friendship’. An asylum lawyer working for a local NGO explained how she became ‘friends’ with different regional state actors to shape their ideas about asylum seekers.

Judges are also humans. At the beginning there was no contact. I told them sad stories and they looked at me with round eyes and didn't understand. […] At the beginning it was difficult to explain to the judges but some judges invited me, asked me to give them articles and legislation. This means it was possible to discuss […] I also have good relations with the migration service. I have not argued with them. In 2011 when there was a new law and the reorganisation of the governmental organs, so new people came to the government organs who didn't know anything. And started … And they needed our help. They needed interpreters. I tried to help them to find interpreters. It's very difficult to find interpreters. It was necessary to pay. So we started to become friends. This was the possibility to talk with them, explain. (Interview, lawyer of a faith-based asylum NGO, 2014)

These personalised contacts with the authorities enabled NGO and IO employees not only to support migrants whom they might not otherwise have been able to help, but also to act as advisers to officials, who asked them for advice and information and accepted criticism of their practices. Some NGOs and IOs even managed to second one or two of their employees to government departments, giving them the opportunity to interact on a daily basis with government officials, to develop collegial links and to influence the norms and practices of officials, for example, by reviewing and commenting on asylum applications. By blurring the boundaries between the state and non-state spheres, these NGO workers were able to discreetly gain access to state prerogatives and directly influence administrative practices.

Turning State Agents into Allies

Non-state actors built personal contacts with state actors not only to influence their practices, but also to turn them into allies, who might themselves spread the desired norms and practices. The way these agents fulfilled this role varied, depending on their position in the state apparatus.

Subordinate Agents: Disseminators of Information and Norms

Employees of NGOs and IOs in Ukraine turned some lower-ranking state agents into allies, who spread information about formal rules, but also ideas and values, among their colleagues. Some agents who processed asylum applications remained in the same service for an exceptionally long period of time (more than ten years) and played a crucial role in the functioning of these regional migration services. Indeed, the officer with the most experience was the resource person for new employees, introducing them to the work and being the first disseminator of standards and practices. This was reflected in the fact that certain ideas and interpretations of laws were shared among employees of the same regional service – even when these ideas were not mentioned in the law – and differed from the ideas present in other offices. For example, I observed that in some regional offices, all the employees subscribed to the idea that migrants who had been intercepted trying to cross the border with the EU could not be refugees, while employees in other regional offices claimed the opposite, which was in line with the ideas spread by international and non-governmental organisations. Indeed, long-serving staff generally participated in numerous training events organised by non-state actors. Having gradually adopted many of the international standards on asylum, they acquired a role as facilitators of these standards within their own institution, which was precisely what non-state actors had intended.

Therefore, in the 2010s, non-state and international actors began to formalise and strengthen this role of their bureaucratic allies as norm spreaders. An EU-funded programme under the Prague Process organised the training of experienced and UNHCR-friendly caseworkers who then acted as trainers for other Ukrainian asylum caseworkers. This approach of training the trainers clearly aimed at delegating the task of disseminating international standards and practices in the field of asylum to the internal agents of the administration. Indeed, these officials benefited from an internal network within the administration and from legitimacy as state agents that non-state actors did not enjoy. Nevertheless, the effective influence of these subordinate state allies was commensurate with their low position in the state apparatus. Public officials with a middle or high scalar identity were in a better position to promote or even impose standards within the administration.

Officials in a Key Position: Allies Who Can Impose Changes in the Administration

Non-state actors searched for allies among administrative officials in positions perceived as higher up in the hierarchy. These included, for example, the director of the asylum department in the central migration service, but also people working for the Ukrainian Parliament Commissioner for Human Rights (frequently referred to as the ‘ombudsman’). A member of UNHCR in Ukraine illustrated this top-down influence via allies at ministries:

For example, from the Ministry of Education there is now a person who knows very well the rights of refugees in the area of education. There are no problems anymore now or if there are you know whom to address on them. […] There is nothing being done if it doesn’t have to be done; it only gets done if there is an official order. (Interview, Ukrainian employee of UNHCR, 2013)

Contacts with officials in key positions enabled IOs and NGOs to bring about changes in state practices. These allies played different roles depending on their institutional position. Allies in key positions could disseminate information and recommend or even request certain changes in administrations over which they had authority. An ally in a key position could disseminate the solution agreed upon by the NGO and a regional institution to all relevant state bodies. NGOs could also encourage their state allies to publish recommendations for subordinate institutions. However, when internal allies could only issue non-binding recommendations or when they did not have legal authority over officials implementing policies, the latter could resist such attempts to influence them by ignoring the rules. Therefore, state allies were only as useful as the authority they had over the state agents implementing the policies.

Some NGOs managed to set up regular meetings with certain officials, during which they voiced their complaints about officials subordinate to that person. For example, the members of an NGO complained at a meeting with the director of the asylum department of the central migration service that regional migration services were imposing excessive fines on refugees who had not registered their place of residence. The director, who agreed that this treatment was not legal, sent a letter to the responsible services.

However, for most officials, interacting with NGOs and IOs, following up on their requests, and opposing other administrative actors for migrants was a commitment that went beyond the work officially required of them (and could even be considered corruption in a context in which strong involvement at work in favour of asylum seekers was seen with mistrust at the state authorities). While non-state actors sometimes managed to find state allies in key positions, they had little control over the measures that these officials pursued. The latter could choose to engage in one case and not do so in another; they could choose to support the spread of one norm and not another.

Hoping to Overcome the Precariousness of the Personalised Approach – Formalising Change Through Personal Contacts

The strategy of acting via state allies remained fragile because of its dependence on individual officials. While NGOs appreciated the access that contacts at state authorities provided, they feared that this influence might disappear with changes in staff at the administration. For example, an NGO worker described how they lost their ally at the regional migration service.

In the past we had normal relations with the migration service [in city]. The vice-head was a woman who wanted to help. She went personally to the employment centre to help. But then she was charged with corruption and kicked out. She was too active. That didn’t suit them. She came to our seminars. There we met. […] She knew many files. She made an effort to help. But it’s only one person. She argued with the head of the migration service. […] The new head […] is not interested in refugees. We met him a few times and realised that there is no point. He didn’t help anyone. Everything we have done for integration is lost. (Interview, local asylum NGO, 2014)

Therefore, NGOs and IOs sought to formalise change by calling for the modification or introduction of formal norms and rules that would bind implementing officials. Again, this formalisation of transfer took place through personal contacts: Employees of NGOs and IOs approached senior public officials in state services with a request to produce formal documents, instructions and guidelines for subordinate staff. A former director of the State Committee for Nationalities and Religions (interview, 2014) explained that the internal working procedures came from UNHCR: On the proposal of and in collaboration with the UN agency, the staff of his institution developed instructions for the regional administration (for example, the documents required; the system according to which files must be filed; the form of an asylum application; the aspects to be checked in the asylum seeker’s story). The standards and practices disseminated by UNHCR were thus integrated into a process and discourse of standardisation and professionalisation of state bodies. These homogenised documents and procedures remained in use even when officials who produced or imported them had moved on.

However, formal rules always allow the implementing officials some leeway. In particular, when the documents drawn up by state authorities under the influence of NGOs were vague, NGOs had once again to rely on individuals in the administration to implement rules in line with the NGO expectations. For example, NGO staff contributed to the development of the official procedure for assessing the age of unaccompanied minors. However, some aspects of the document remained vague and contradictory, leaving a lot to the discretion of the staff implementing them. Subsequently, the NGO’s ally at the Ministry of Health, who had promised to interpret the document in line with the NGO’s standards, left his position and other state agents applied the document differently. The more imprecise the texts, the more room the agents in charge of their implementation had for interpretation. In that case, NGOs remained dependent on allies within the administration to oversee the interpretation and application of the formal rule.

Conclusion

In pre-invasion Ukraine, IOs and NGOs had a (seemingly) weak position in a policy area such as asylum, associated with state sovereignty. While non-state actors were welcome to take over certain state tasks (for example, providing social support to migrants and logistical and material support for the functioning of the administration), the Ukrainian state actors maintained official control over regal domains, in this case the attribution of legal statuses to aliens. Non-state actors therefore adopted multi-scalar strategies to try to shape asylum policies according to their norms. To change how subordinate state officials worked, they appealed to higher state scales and, in exceptional situations, to international actors, such as the ECHR and the EU, in order to bring external pressure to bear on the Ukrainian authorities. NGOs and IOs also interacted with officials at different scales to persuade and inform them about international norms and domestic laws, and to establish personal contacts that allowed them to intervene directly in administrative practices. While lower-scale state officials were more accessible and could spread certain norms among their colleagues, higher-scale officials could use their legal authority to impose certain decisions, practices, or even formalised rules on their subordinates. Non-state actors hence targeted different scales of the state apparatus to achieve their goals. They shifted between confrontational and non-confrontational strategies: while they blurred the boundaries between state and non-state actors by establishing personal contacts and turning officials into allies, they also threatened their contacts and re-exposed those very boundaries by criticising state practices. Asylum policies in Ukraine were constantly being denationalised and renationalised through the negotiations, tensions and dependencies between governmental and non-governmental actors, and between domestic and international actors. And these categories were themselves constantly being blurred and reaffirmed through the strategies adopted by IOs and NGOs.

Asylum NGOs and IOs were part of the Ukrainian and international migration regimes. While pursuing their own interests and norms, they were also used by larger actors, such as the EU and its member states, to extend their reach beyond their own territory. Via chains of funding, delegation and information provision, boundaries between governmental and non-governmental spheres as well as between national and transnational spheres were blurred.

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Additional information

Notes on contributors

Irina Mützelburg

Irina Mützelburg is a political scientist and postdoctoral researcher at the Centre for East European and International Studies (ZOiS) in Berlin, at the German-French (ANR-DFG) project LimSpaces. Her research interests include education, migration and asylum policies in the EU and its neighbourhood, namely Ukraine, norm and policy transfer, and interdependencies between state and non-state, international and national actors. Currently, she studies the educational situation of Ukrainian pupils displaced to Germany, including education policies and families’ choices. Before coming to ZOiS, she worked as a lecturer and research assistant in political sociology at Sciences Po Lyon (2019–2021) and at the Master of European Studies at the European University Viadrina in Frankfurt/Oder (2018–2019) Until 2019, she did her PhD at Sciences Po Paris on the transfer of international asylum norms to Ukraine. Her book “Transferring Asylum Norms to EU Neighbours. Multi-Scalar Policies and Practices in Ukraine” has been published in 2022 by Palgrave Macmillan.

Notes

1 For a more detailed discussion of the legislative adoption of international asylum norms in Ukraine see (Mützelburg 2022, chap. 3).

2 The recognition rate dropped suddenly in 2002 (mostly between 0 and 5 per cent until 2008), then increased again (10–37 per cent 2009–2015). In the following, it strongly fluctuated (2–25 per cent between 2016 and 2022).

3 This study was carried out under the framework of the Institut d’Études Politiques de Paris, which did not foresee an evaluation of studies through an ethics committee. All information about human informants has been thoroughly anonymised to avoid any negative implications.

4 Refoulement refers to the forcible transfer of people to a place where they face a risk of serious human rights violations or abuses. Refoulement is prohibited (non-refoulement principle) by international refugee law and other human rights treaties (Amnesty International 2013: 6).

5 IOs train employees of NGOs (namely UNHCR subcontractors) on how to write ECHR complaints, helping to make this approach more widespread.