Contested control at the margins of the state

ABSTRACT

While the fact that the implementation of migration policies fails to perfectly manage migration is well known, the actual dynamics of policy implementation have received little attention to date. A serious engagement with this phenomenon requires a move beyond policy texts and political intentions, and towards a ‘migration regime’ perspective that pays attention to the inherent contradictions, conflicts of interest and competing logics within migration control practices. This collection posits a multi-actor perspective that includes state agents, migrants and non-state actors alike and proposes three key factors that require a closer examination: competing institutional logics, discretionary practices and migrants’ agency. Based on original empirical research, the contributions of this collection ‘zoom in’ on specific asymmetrical negotiations over the right to enter or remain in Europe, and focus on the institutional logics and interplay between the different actors involved.

KEYWORDS:

• Irregular migration
• migration policy
• migration regime
• migrant agency
• border control

Introduction

However small in number or seemingly invisible, irregular migration provokes heated debates over the limits of state power (Dauvergne 2004; Triandafyllidou and Vogel 2010). At the same time, refined control policies directly affect irregular migrants’ tactics to enter a state, take up residence or circulate transnationally, thereby undermining the prescribed rules of transnational mobility and appropriating their right to movement. States install new hurdles to be cleared, while migrants are forced to invent ever new and trickier strategies of avoiding and resisting the tightened control regimes. There is a constantly evolving field of contested control in which state authorities and migrants engage in a reciprocal cycle of discipline and resistance, law enforcement and avoidance, exclusion from the right of transnational mobility and its appropriation against the state. This field is shaped by a wide range of intervening actors, such as private companies, civil society groups, bureaucrats or supranational courts, which can enable or restrict migrants’ agency and a state’s capacity to wield power. Moreover, there is an increasing range of infrastructures, biometric technologies and databases that take part in the production of the ‘migration regime’, accelerate or slow down its implementation and at the same time become targets of contestation. State actors aware of their limited powers and migrants severely curtailed in their individual mobility thus occupy the pre-structured spaces of negotiation that this special issue focuses on. It adds to recent debates in the field that characterise the interplay between different policies, agents and migrants as ‘migration regime’ by bringing together empirically rich contributions that flesh out the dynamics of contested control, and map out the spaces of asymmetrical negotiation in which these interactions take place.

Spaces of asymmetrical negotiation: the contributions of the special issue

Recent developments have directed public attention to the fragility, dynamics and contradictions inherent in the ‘migration regime’. In summer 2015, when hundreds of thousands of refugees successfully crossed European borders that are supposed to prevent such ‘undesired’ movement into the Schengen Area, it became apparent to a wider public that migration cannot be fully controlled. In solidarity with refugees, many European citizens supported refugees at or on their way towards their favoured destinations. At the same time, infrastructures, such as international bus and train connections, were halted by European Union member states to prohibit illicit border crossings and, therefore, were incorporated into the border regime. As a reaction to the movement of refugees in summer 2015, ‘hotspots’ were installed in Greece and Italy (see Tazzioli [2018] in this special issue), the European Union made an agreement with Turkey to prevent refugees from leaving Turkey in direction of the European Union and the Dublin Regulation is currently in the process of being reformulated – not least as a reaction to these events. Moreover, numerous solidarity groups within European civil society arose that aimed to support refugees in need. At the same time, right-wing groups in Germany and other countries attacked asylum shelters.

While these events gained a lot of public attention and were surely remarkable in their extent, it is important to emphasise the everyday occurrences of such frictions, changes and resistances within the implementation of migration policy in Europe. For this, it is useful to replace the ‘legal regime’ concept that mostly considers policy frameworks with that of a ‘border regime’ or ‘migration regime’. We understand this European ‘migration regime’ as a conflictual field of interests, negotiations, discourses and struggles on inclusion and exclusion between different actors (Casas-Cortes et al. 2015; Papadopoulos, Stephenson, and Tsianos 2008; Sciortino 2004; Tsianos and Karakayali 2010). These actors may be migrants, facilitators, private companies or state agents. They have in common that their border practices and border knowledge contribute to the formation of the European migration regime. Such a practice-oriented approach makes it possible to take a closer look at how borders are produced and how their control is constantly contested (Tsianos and Karakayali 2010). Not only collective protests that gain a lot of media attention (see e.g. Ataç, Rygiel, and Stierl 2016; Laubenthal 2007) can challenge the migration regime and cause changes. The everyday practices of a variety of actors with diverging intentions also add to the dynamic and contradictory nature of its formation. Migrants subvert border control and appropriate mobility (see Scheel [2018] in this special issue, which highlights the fragility and inconsistencies of the migration regime but also the interdependencies between different actors, which become apparent in spaces of asymmetrical negotiations. However, although resistance and subversion of border control by migrants and solidarity groups exist, the incisive consequences of the means of border control on the lived realities of migrating people must not be neglected. The power distribution among different actors engaging in the formation of the migration regime is far from being equal. With a focus on spaces of asymmetrical negotiations, we want to first, emphasise these unequal power relations and second, point at the interdependencies and dynamics of different actors by using the term ‘negotiations’.

The different contributions in our special issue examine how (state) actors secure borders on the one hand, and how they enable the transnational circulation of people on the other hand. At the same time, we analyse how migrants’ mobile practices undermine, appropriate and disregard the institutional rules of mobility. The common theme of all the articles is the question how these various actors coproduce and reshape the European migration regime and how its formation takes place in manifold spaces of asymmetrical negotiations. Our attention lies on specific sites, policies, technologies and infrastructures as spaces where the contested nature of the migration regime and the entanglement of conflicting actors become visible. These spaces of asymmetrical negotiations and struggles over mobility require close examination, since migration policies are always and necessarily inconsistent and messy, which creates gaps and loopholes that allow migrants appropriating and exercising their right to mobility. The special issue takes up contemporary debates on the interplay between various actors involved in the field of migration policies and the resulting struggle over the effectiveness of the state. This focus on negotiation practices with regard to migration control is severely underrepresented in the literature so far (but see Laubenthal 2011; Scheel 2013; Tuckett 2015).

Instead of taking a more abstract view, the contributions to this special issue ‘zoom into’ various scenes of governance and thus try to grasp migration management as contested control practices at the margins of the state. We do not wish to suggest that an analysis of a migration regime has to start either from the perspective of the movements and trajectories of migration (Casas-Cortes et al. 2015) or from the side of power-brokers involved in the securing of borders (Côté-Boucher et al. 2014). Rather, these two sides are mutually dependent and influenced by historically and locally specific discourses and contexts. We thus suggest conceptualising migration regimes as being produced within manifold spaces of asymmetrical negotiations and struggles. They are shaped by the actors’ respective position in this field with regard to power structures. The contributions to this special issue highlight three key factors that all shape these spaces of asymmetrical negotiations.

First, the contributions study how migration policies – far from following a unified and concise intention – comprise conflicting logics and aims. This produces opportunities and constraints for transnational mobility at the same time (see also Mau et al. 2012). Simon Sontowski’s (2018) article draws the attention to this point when it describes the trade-off between two conflicting aims the newly emerging smart-border technologies are striving for: smooth and quick procession of border controls, on the one hand, and increasing security through a more accurate detection of blacklisted border-crossers on the other hand. Similarly, William Walters’ contribution (2018) shows how deportations are more and more dependent on – and disputable for – international logistical infrastructure, for example, in the organisation of joint charter flights. As a second key factor, the contributions identify informal negotiations and discretionary practices that necessarily deviate from black letter law. Stephan Scheel’s ethnographically informed study, for example, explores how street-level bureaucrats (Lipsky 1980) process Schengen visa applications in a European embassy in North Africa. He shows how they negotiate between the abstract rules of bureaucracy and the concrete social reality on the ground. Tobias Eule’s article (2018) suggests a similar direction. He concludes that the everyday practices of migration bureaucrats consist in a generous dose of pragmatism and nonchalance in order to navigate between the bureaucratic directives and the practicability of their implementation. And a third key factor can be located with regard to migrant agency, such as seen in the spontaneous reaction of migrants to new opportunities, which gives their journeys a fragmented, ever transitional character and co-produces the effects of the migration regime. This aspect is explored in Tazzioli’s study on the emerging hotspot system at the Schengen borders in the Mediterranean. The special issue thus provides new perspectives on the governance of migration as multiple fields of negotiation and contested control. Through presenting different spaces in which law enforcement agents and migrants interact, it contextualises the dominant perspectives on either migrants’ practices or migration policy and highlight their interdependencies.

Inside the ‘migration regime’

As the Schengen Agreement has significantly eased mobility within Europe, external border control has been improving quickly (Carr 2012; Dijstelbloem, Meijer, and Besters 2011). These relatively new developments have since received substantial attention (e.g. Andersen, Klatt, and Sandberg 2012; Carr 2012; Zaiotti 2011). Mau et al. (2012) show that alongside increased deterrence, entry into Europe is eased for members of selected nationalities or with specific skillsets, making the migration regime less a ‘fortress’ than a site of selective permeability. One of its key characteristics has been the strategy of externalising border control and maintaining surveillance of migrants before they reach the border (Boswell and Geddes 2011; Lahav and Guiraudon 2006; Ryan and Mitsilegas 2010; Seiffarth 2011; Zaiotti 2016). This includes attempts to prevent migration flows to Europe through a triple approach of development, deterrence and information-spreading in countries of origin (Niederberger and Wichmann 2004; Pécoud 2010). As a result, legal migration opportunities have been limited and illegal entry has been rendered more difficult. Hence, migrants are pushed to take ever-riskier routes and means of transportation.

In recent years, numerous authors have shown that migration policy is formed as a result of a complex amalgam of national and international actors, interest groups as well as coincidence (Andersson 2014; Boswell and Geddes 2011; Feldman 2012; Hampshire 2013), rather than the outcome of consistent planning. European legal regimes are thus by nature polycentric (Betts 2011; Lavenex 2006, 2016), in that they operate on multiple levels that overlap and sometimes, but not always cooperate. Furthermore, the fact that it is impossible for states to fully regulate immigration is well documented (see Benz and Schwenken 2005; Bommes and Sciortino 2011; Castles 2004; Massey 1998). Various explanations for this are on offer, ranging from frictions between migration policies (Boswell and Geddes 2011; Feldman 2012; Fischer 2012), implicit or tacit toleration (Ambrosini 2015; Engbersen and Broeders 2011; Düvell 2006), the needs of capital (De Genova and Peutz 2010), emerging interests of an ‘industry of border controls’ (Andersson 2016) and inherent bureaucratic inefficiency (Eule 2014). The practical difficulties of applying un-implementable policies are highly relevant. Migration agencies have to permanently react to new – and often creative – strategies of irregular migrants to circumvent controls that lack a coherent legal framework (e.g. Engbersen and Broeders 2011). Similarly, several studies have stressed the resistance and creativity of irregular migrants when confronted with ever improving border technologies (Engbersen and Broeders 2011; Panagiotidis and Tsianos 2007; Kuster and Tsianos 2016). Kuster and Tsianos (2016) identify the need to take migrant’s subjectivity seriously also with regard to border technologies. Both Sontowski’s as well as Scheel’s contributions fulfil such a claim by pointing at the weaknesses of information and communication technologies and their implementation. They render visible that far from being omnipotent tools technologies still rely on human – and, therefore, not always easily calculable – enforcement. The permanent ‘failing’ of the explicit rules of transnational mobility and their enforcement is constitutive for the European migration regime, as it is the only way to keep it running.

Starting point for our reflection on the various forms of contested control at the margins of the state is the concept of the migration regime. The term allows us to focus on the dynamic aspect of border: It is the always provisional result of ‘negotiations’ through practice (Moulier Boutang 2007). Therefore, the notion of a regime can be defined as ‘a mix of implicit conceptual frames, generations of turf wars among bureaucracies and waves after waves of “quickfix” to emergencies, triggered by changing political constellations of actors’ (Sciortino 2004, 32). This implies that the regime is necessarily always in flux (Papadopoulos, Stephenson, and Tsianos 2008). Here, our understanding differs from a more static understanding of ‘border regimes’ (Berg and Ehin 2006; Ghosh 2000), as we seek to highlight the productiveness of ongoing (re)negotiations and (re)contestations of control, as well as the impact of migrants’ agency. Actors thus respond through permanent adjustment of their border practices to changing external social conditions, thereby modifying these conditions. Action in the migration regime resembles ‘bricolage’ (Lévi-Strauss 1990), as it does not follow a central logic or a ‘masterplan’. Therefore, this special issue does not work out a unifying and coherent logic, but aims at an understanding of the migration regime through the analysis of frictions, inconsistencies and contradictions as well as taking seriously migrant agency (cf. Pott and Tsianos 2014; Tsianos and Kasparek 2015). The latter should not implicate disregarding the often tremendous effects of states’ control practices on individual migrants. Migrants are constrained by ever more sophisticated technologies and need to find new loopholes to thwart states’ endeavours to prevent their access to territories and rights. They have to endure being stuck in so-called transit zones (Hamood 2006; Schapendonk 2012) or in a semi-legal (Kubal 2013) limbo while waiting for a decision to an asylum application and often have to endure precarious living or working conditions (Bloch and McKay 2016; Sager 2015; Griffiths 2013, 2014; Turnbull 2016). Furthermore, several researchers have shown that the restrictive European migration regime has led to changing migrant journeys that often become longer and more dangerous (Andersson 2016; Collyer 2007; Dijstelbloem, Meijer, and Besters 2011). Legal channels to Europe have become very scarce for people from outside of Europe and almost only reserved for highly skilled migrants while the rest is exposed to illegalisation and the constant threat of expulsion. However, studies on the ‘transitory’ nature of migration also shed light on the resistance that migrants exhibit regarding the growing fences around Europe and the fact that they are not deterred by the improving border control technologies (Papadopoulou-Kourkoula 2008). Hence, it is crucial to focus on the interdependencies of migrants’ tactics and the effect of control practices on migrants’ lived experiences and thus zooming into the asymmetrical spaces of negotiations. Paying attention to migrants’ room for manoeuvre and depicting them as strategic agents involves the claim to take them seriously in political processes (Collyer 2012; Mainwaring 2016). Collyer (2012, 507) points at the negligence of irregular migrants as strategic actors when it comes to policy making, which adds to the ‘gap between the objectives and outcomes of migration policy’. He shows how migrant tactics combined with the making and implementation of policy help us understand the ‘often chaotic and in many cases fatal outcomes of migration control’ (Collyer 2012, 506) and hence supports our claim to take seriously the variety of actors producing and challenging the European migration regime. Indeed, the contributions in this volume show how policy ‘failure’ can be caused by a combination of legal, structural and individual factors, and how examining the negotiations between agencies, migrants and civil society actors can improve our understanding of the often messy European migration regime.

Three key factors shaping asymmetrical negotiations

As already indicated, with this special issue, we draw the attention to three exemplary key factors that shape the asymmetrical spaces of negotiations: the competing institutional logics among and within state agencies, the informal negotiations and discretionary practices of migration bureaucrats and migrants’ agency.

Migration regimes are the always provisional outcome of competing institutional logics among and within state agencies. This is the first key factor that shapes the asymmetrical spaces of negotiations we are focusing on in this special issue. It means to identify and trace the lines of conflict not between state agencies and migrants, but among state agencies themselves (Evans 2010; Lipsky 1980). Instead of following a consistent and unified logic, different state agencies pursue different – and often conflicting – aims when governing transnational mobility (Andersson 2014). For some agencies, the policing of the borders and the identification and prevention of undocumented migration may indeed be high priority – as it is the case for border patrols (Walters 2015). At the same time, other state agencies are more concerned about social security or public health than about the enforcement of migration law, although they are in contact with irregular migrants on a daily basis. And even agencies with an at first sight clear mission may navigate between different conflicting aims in their everyday work. Limited financial and personal means may lead to a trade-off between the security-driven ideal of comprehensive border control and efficiency, in particular as border controls should not impede the flow of the majority of allowed border-crossers, but only select the unwanted ones (Mau et al. 2012).

As a second key factor, this special issue identifies informal negotiations and discretionary practices. Engbersen and Broeders (2011, 171) argue that implementation practices are especially important as the use of ‘classification power’ is one of the key mechanisms of controlling irregular migrants. Eule’s (2014) work on German immigration offices shows a significant gap between formal policy and the actual practice of administering migration (see also Ellermann 2009; Lahav and Guiraudon 2006). These discrepancies between formal migration policies and their actual implementation are also observed by Zampagni (2016) in her research on bureaucrats’ practices in an Italian consulate. The observed gap results from both the legal basis of decision-making, which is highly complex, constantly changing and overabundant with imprecise terms, and the defunct, under-resourced structure of immigration administration that allows for informal and diverging practices. Furthermore, the implementation process is greatly influenced by interventions from several sub-federal levels of both executive and judicial power, and local representatives of civil society. As a result, shifting categorisations of migrants have to be analysed as part of the management of irregular migration, with specific attention to the local implementation of law and the practical consequences of the different legal labels attached to migrants and their moves through Europe. Therefore, discretionary practices cannot only be observed in the context of state authorities. NGOs, for example, may also become part of the governance of migration and have to navigate between different competing principles, as the work of Cabot (2013) in Greece or Tuckett (2015) in Italy shows.

And as a third key factor, this special issue takes migrants’ agency as a starting point for the analysis. Exploring the interdependencies of state actors, migration policies and unwanted migrants, and acknowledging the fact that migration control is never complete results necessarily in perceiving migrants as subjects that find gaps to subvert or resist the migration regime. Several authors have underlined the importance to take into account migrants’ agency and to go beyond their representations as either ‘victims’ or ‘villains’ (Agustin 2003; Collyer 2012; Sigona 2012). We agree with Mainwaring (2016, 291) that ignoring migrant agency ‘reifies the power of the state to “secure” borders and control migration, and conceals the contested politics of mobility and security evident in negotiations between migrants, borders guards, smugglers, fishermen, and other actors’.

Some recent publications have sought to lend ‘autonomy’ to migration (Mezzadra 2005; Papadopoulos and Tsianos 2007). They understand migration as an autonomous force that sometimes disregards, and sometimes aligns with the explicit rules of mobility. The autonomy of migration approach underscores migrants’ role as agents while putting the individual and collective practices, the desires, the expectations and the behaviours of the migrants themselves into the focus of analysis (Karakayalı and Tsianos 2005). Migration is thus conceived as a creative force and a transformative power within social, cultural and economic structures (Papadopoulos, Stephenson, and Tsianos 2008). Whereas the autonomy of migration approach rightly sheds light on migrants’ agency, the term has been criticised for not taking seriously enough the tremendous effects that border practices can have on the lives of migrant subjects (Benz and Schwenken 2005; Omwenyeke 2004). We appreciate Scheel’s (2018) engagement with this strand of literature. He reconceptualises the autonomy of migration approach by introducing the notion ‘appropriation’ to the autonomy of migration framework. As such, it becomes possible to look at individual migrants’ strategic tactics and negotiations within manifold constraints they have to face when trying to meet their aspirations. Hence, the agency of irregular migrants might – due to their marginalised position – often be better grasped by looking at their everyday resistances that paradoxically might become manifest in practices of compliance rather than in open and collective protests (Scott 1985). Similarly, Hasselberg (2016, 137) conceptualises compliance as a ‘strategy of resistance’ and argues ‘that resistance is enacted through the channels that the dominant power makes available to migrants’. Nevertheless, our contributions show that migrants’ agency is manifold. It becomes apparent both in moments of collective protest (see Tazzioli 2018 in this special issue; see also Ataç, Rygiel, and Stierl 2016; Cappiali 2016) and in rather silent everyday practices (as in Scheel’s contribution).

Refocussing the debate on irregular migration

This special issue brings together current research perspectives on the practical realities of irregular migration. Crucially, they move beyond one-sided perspectives that focus on one particular set of actors (‘the’ state, ‘the’ migrants, etc.). In this, the contributions portray a fuller picture of what we call the asymmetrical spaces of negotiation between imperfect governance, some third-party intervention and restricted migrant agency. They not only show the imperfection of the European migration regime, but also point to the productivity of informality and messiness. Policy frictions leave room for migrant manoeuvring; discretionary powers allow control agents to follow their personal preferences.

Following this introduction, the special issue opens with a contribution that zooms into the complexities and challenges surrounding the technological elaboration of border control. Simon Sontowski analyses how the recently emerging smart border technologies affect the governance of mobility into the Schengen area. He argues that the unavoidable trade-off between the smooth and quick procession of automated border control on the one hand, and the security considerations on the other hand creates loopholes that can be exploited by certain migrants to appropriate and exercise their right of transnational mobility against the prevailing law. Sontowski’s contribution particularly examines on a policy level the lengthy and controversial political negotiations surrounding border control.

The second contribution draws attention to attempts of border control directed at migrants trying to access European territory. In his study on the Schengen visa regime, Stephan Scheel shows how irregular migrants are supposed to be prevented from stepping foot on the European continent, on the one hand, and how migrant agency challenges such border control efforts, on the other. He discusses how visa applications from third country nationals are processed in an embassy in a North African country. This ethnographically informed study examines how migrants appropriate ‘legal paths’ of transnational mobility, who are—due to their socio-economic and racial status—excluded from transnational mobility legally permitted by the European Union. Simultaneously, Scheel shows how migration bureaucrats in the embassies struggle to reconcile written law and bureaucratic procedures with the social reality on the ground. With its focus on written evidence, bureaucratic requirements to obtain a Schengen visa are often doomed to fail, even in the case of those who should be granted access to and mobility within the Schengen area. At the same time, this gap between excessive regulations and requirements in written laws and directives on the one hand and the social reality on the ground opens new possibilities to appropriate transnational mobility for those who are originally excluded. Therefore, Scheel concludes that the tight regulations aimed at a strict control of transnational mobility produce contrary effects. While Sontowski argues that this incompatibility arises from two incommensurable principles of automated border control; pace and security, Scheel locates the incompatibility in the contrast between black letter law and the contradicting social reality.

Martina Tazzioli’s contribution takes up this theme in her study of the emerging so-called hotspot system in the Mediterranean. The article’s focus moves to the shores of Europe and the two countries where the highest amount of migrants illegally crossed the external Schengen borders: Italy and Greece. As a consequence, these countries became important sites of innovation in the field of European migration policy. Intended to systematise the registration of migrants arriving clandestinely at the Northern shores of the Mediterranean, Tazzioli shows how the hotspot system introduces new configurations of mobility control at EU’s external borders. Drawing on material of Lampedusa and Lesbos, she suggests to read the hotspots as pre-emptive barriers that regulate the access to the asylum system, rather than as the institution that hampers the access to the Schengen area itself. Hotspots discriminate between migrants who are ‘worthy’ to be included into the asylum system and the others who are not.

Picking up on the contrast between regulations and reality, Tobias Eule engages in research on the street-level within the Schengen Area. Eule focuses on the governance of irregular migration in Germany and the daily encounters between street-level bureaucrats and irregular migrants. Based on ethnographic fieldwork in migration offices, with police agents and home office bureaucrats, the article shows that migration bureaucrats are well aware that their action has limited effects. Even during the so-called refugee crisis in 2015 migration officials’ actual practices rather displayed pragmatism and nonchalance than signs of spectacle or exception. Eule’s close look at everyday occurrences with regard to border control practices provides as further understanding of an observed implementation gap.

We conclude our special issue with the contribution of William Walters who examines how states try to deport irregular migrants who have succeeded at entering European territory but failed at gaining the necessary residence authorisation. While the previous contributions focus on asymmetrical spaces of negotiation in the case of access to and the circulation within the Schengen area, the author analyses the other end of the process; the enforcement of negative asylum decisions. Walters’s analysis of charter flights as a comparatively recent mean of deportation suggests to bring in conversation critical studies of infrastructures with migration and deportation studies. Initiating this conversation, Walters sketches possible future paths of research at the same time.We conclude our special issue with the contribution of William Walters who examines how states try to deport irregular migrants who have succeeded at entering European territory but failed at gaining the necessary residence authorisation. While the previous contributions focus on asymmetrical spaces of negotiation in the case of access to and the circulation within the Schengen area, the author analyses the other end of the process; the enforcement of negative asylum decisions. Walters’s analysis of charter flights as a comparatively recent mean of deportation suggests to bring in conversation critical studies of infrastructures with migration and deportation studies. Initiating this conversation, Walters sketches possible future paths of research at the same time.

Acknowledgments

The authors would like to show their gratitude to the Young Researchers Association, the Institute of Sociology, and the Institute of Social Anthropology who generously supported their workshop on ‘Contested Control at the Margins of the State. Control Practices and Migrants’ Mobility in the Schengen/Dublin Area’ held in 2013 at the University of Bern. The special issue originates from this workshop. Furthermore, the authors thank Christian Joppke for his constructive comments on an earlier draft of this paper.

Disclosure statement

No potential conflict of interest was reported by the authors.