Leeway and Improvisation at the Administration – Consequences of Political Resistance Against Norm Transfer

What does policy implementation by the administration look like when politicians failed to foresee the means necessary for the implementation? The present contribution looks at administrative practices at the asylum authorities in Ukraine. Asylum law and policies in Ukraine have been the result of transfer activities by international organisations, namely UNHCR and the European Union, since the independence of the Ukrainian state in 1991. Instead of domestically supported import of international norms (e.g. policy learning), the Ukrainian asylum policies have emerged due to external incentives and pressures, including, since 2010, EU conditionality. This EU conditionality and monitoring has pushed Ukrainian politicians to increasingly adapt domestic policies to EU standards and demands – at least superficially. However, general characteristics of the Ukrainian state institutions combined with a lack of domestic political support for the substance of asylum policies and subtle policy resistance meant that implementation of laws and government action plans has been hindered. Indeed, general laws have often remained without secondary legislation, laws were contradictory and administrative staff has failed to be informed about the practical details of implementation. Similarly, many measures were designed to remain dead letters due to absent or inadequate allocation of financial and material resources. Some top-down obstacles made the implementation of norms completely impossible. For instance, until 2011 the unclear distribution of competences between institutions and the repeated restructuring of the state body responsible for asylum claims due to political power struggles caused phases during which the bureaucracy did not work at all. Several other top-down obstacles have seriously obstructed implementation. In these cases, regional authorities have responded heterogeneously. While some regional services have remained passive and have ignored the formal norm, others have tried nevertheless to implement it by rule bending, improvising and volunteering. For example, some state officials have accepted to transgress a formal procedure to allow for the implementation of a legal right. The way street-level bureaucrats have used their leeway has depended on their own social norms as well as the ones of their head of department. Heads of regional departments have affected the employees’ practices by spreading legal and social norms via everyday interactions and by expelling employees with deviant practices or ideas. Moreover, the officials’ practices have depended on their moral and affective judgements in regard to the individual applicants. Work practices have therefore not been homogeneous but depended on whether the state official considered the applicant innocent and deserving – which could lead the official to rule bending, improvising and volunteering in order to help the applicant. Overall, this contribution, based on extensive fieldwork in Kyiv, Lviv, Uzhhorod, Mukachevo, Odesa, Chernihiv and Kharkiv with central and regional state officials, NGOs and migrants between 2013 and 2015, highlights that subtle political resistance against externally triggered norm transfer does not necessarily lead to the absence of implementation. Instead, when there is a lack of political interest, policy implementation, affected by individual and organisational factors, becomes highly heterogeneous.