Membership Without Mobility: The Counterfactual as Fact

Post by Leanne Weber. Leanne is Professor of Criminology in the Canberra Law School at the University of Canberra, Australia and a Research Associate at the Centre for Criminology, Oxford University. She researches policing and border control using criminological and human rights frameworks. This article was first published on the Global Citizenship Observatory hosted by the European University Institute. It is part of a series entitled ‘Mobility without Membership: Do we need special passports for vulnerable groups?’ initiated by Jelena Džankić and Rainer Bauböck.

In this article I contribute to the debate sparked by Jelena Džankić and Rainer Bauböck’s proposal for the reintroduction of Nansen-style passports to facilitate cross-border mobility by vulnerable groups, by taking something of a detour, rather than tackling their arguments head-on. Several authors have responded by emphasising that vulnerable groups need protections beyond permission to enter - protections that are often reserved for members (see Buxton; Ottonelli and Torresi; Soysal).

But, turning that point on its head, what if even full membership no longer conferred a guarantee of mobility? We do not need to imagine what this counterfactual might look like, since that is exactly what has transpired in Australia in response to the global coronavirus emergency.

Border control as biosecurity

Australia has a longstanding reputation for exceptionalism in relation to border control, having implemented extremely harsh measures against asylum seekers in the name of national security with scant consideration of international obligations. Against this backdrop, it is hardly surprising that the Australian government would view its national border as a key site for the production of biosecurity, with strict border controls emerging early in the pandemic as the main arm of its public health response. (For comparative information about the use of border control to prevent coronavirus infections see Džankić et al.)

It has also been unsurprising to many that these measures have fallen unequally across different groups of non-citizens wishing to enter Australia. In the early stages of the pandemic, arrivals were curtailed selectively from specific countries, ostensibly due to risks posed to public health, but with an inconsistency that reflected pre-existing discriminatory practices (Weber 2020). Once the border closed more comprehensively, individual exemptions from travel restrictions were required in addition to visas. Only 7.2% of exemption applications from Indian citizens for entry to Australia were approved between August 2020 and March 2021 (prior to the emergence of the delta variant), while applications from the United Kingdom and South Africa – both heavily affected by the coronavirus – succeeded 23.4% and 30.7% of the time. While these statistics may mask differences in reasons for travel, racism has also been cited as contributing to these discrepancies (Jeffries and McAdam 2021). Even those already holding  humanitarian visas that confer permanent residency from the time of arrival have been denied entry.

In relation to Džankić and Bauböck’s concept of ‘necessary mobility’, the Australian government has maintained tight control over what cross-border mobility it considers necessary. As John Torpey has noted, ‘the criterion of necessity is inherently slippery’, leaving space for governments to impose their own interpretations. But, beyond this strict control in relation to non-citizens, it has come as a shock to many that the government has made the same decisions in relation to the mobility of citizens.

Generalised caps on entry

From early in the pandemic, opportunities for Australians to return home have been limited indirectly through caps on the entry of international travellers that have been justified on the grounds that quarantine facilities are limited. In addition, the closure of borders to non-citizens has had the effect of dramatically reducing available commercial flights on many routes and pricing them out of the reach for many travellers, regardless of nationality.  Repeated calls for more subsidised repatriation flights and the expansion of quarantine facilities to assist returning Australians have gone largely unheeded. An estimated 34,000 Australian citizens remained ‘stranded’ overseas as of July 2021. In fact, in that month the federal government reduced the quota for international arrivals by half (McAdam and Jeffries 2021).    

Figures from the Australian Bureau of Statistics (ABS) for June 2021 show that New Zealand citizens (who have special entry arrangements under the longstanding Trans-Tasman Travel Agreement, and have enjoyed intermittent access to a relatively open ‘travel bubble’ during the pandemic) were more likely than Australian citizens to enter Australia during that month, making up 42% of all international arrivals. This compared with 39% for Australian passport holders and 9% for permanent visa holders.

Human rights advocates have argued that the arrivals cap breaches Article12 of the International Covenant on Civil and Political Rights (ICCPR) which guarantees the right to enter one’s country of citizenship. Moreover, research into the drafting of the treaty indicates that ‘the grounds for restricting this right were intended to be narrowly construed and specifically excluded health grounds, for which other measures such as quarantine should be available’ (McAdam and Jeffries 2021). But, without effective apparatus to enforce human rights in Australia, legal challenges in Australian courts have so far failed.

The arrival of non-citizens – including celebrities, but also temporary workers and business travellers – has often been construed in public debate as ‘taking a place’ in quarantine that should rightfully be allocated to a returning citizen. This has prompted complaints about ‘queue jumping’, reminiscent of the longstanding discourse around asylum seekers. Stranded Australians have, superficially at least, become ‘Covid refugees’ – immobilised in situations of dislocation and sometimes danger by their own country’s border control policies; separated from their families and expected to wait in an ill-defined ‘queue’ for an opportunity to enter.

Legal bans on outward travel

The Australian government has acted even more explicitly to restrict the departure of citizens. This has been enacted in law through travel bans authorised under Biosecurity Determination 2020 which can only be circumvented by obtaining an individual exemption. The bans have not been instigated out of concern for public health in receiving states but, once again, to limit the burden on quarantine requirements at the time of re-entry and reduce the risk of initiating new outbreaks in Australia.

Citizens effectively need to obtain an exit visa to travel overseas, and these will only be granted in exceptional circumstances for pressing personal or business reasons. Once again, it is the Australian government that decides whose outward travel is necessary. As of August 2020 only a quarter of exemption requests had been granted – others apparently failing to convince border officials that there were ‘exceptional and compelling’ grounds for travel. Unsurprisingly, data obtained on applications to leave from August 2020 to April 2021 showed that those engaged in critical industries or business activity had the highest success rate at 55.2%, while applications for urgent and unavoidable personal travel fared the worst at 19.6% (Jeffries and McAdam 2021). This extraordinary policy has created heart-breaking stories of family separation that have primarily affected naturalised citizens, including inability to attend funerals or care for elderly parents living abroad.

An analysis of exemption applications from August 2020 to April 2021 found major variations in the success of applications to leave, depending on destination (Jeffries and McAdam 2021). India, China and the UK were the most frequently cited destinations. India had the lowest success rate of all (46%), significantly below the overall average of 57%. Travellers to China (59%), and the UK (68%) fared much better. While some of the discrepancy might be related to differing reasons for travel, the researchers concluded that decisions about necessary outward travel by citizens were not being made solely on health grounds. Moreover, anyone with an exemption to travel to India had it revoked after early May, following the emergence of the highly infectious delta strain. Jeffries and McAdam note this action was not taken in relation to any other destination, although all countries other than New Zealand were rated ‘high risk’ at the time by the Department of Health.

Australia appears to be unique amongst western democracies in instigating strict outward travel controls on citizens and permanent residents in response to the Covid crisis. As of April 2020, Australia was in the company of a handful of countries in Africa, South America, the Middle East and the former Soviet bloc in instigating exit controls that either prevented or significantly curtailed the outward mobility of citizens  (Ogg 2020). This small number is not surprising given the guarantees provided in Article 12 of the ICCPR of the right to leave. As to the reasonableness of citing public health grounds to curtail this right in relation to citizens, the UN Human Rights Committee (HRC) has stated that ‘it is not sufficient that the restrictions serve the permissible purposes; they must also be necessary [and] they must be the least intrusive instrument among those which might achieve the desired result’. (See Council of Europe 2013 for a comprehensive treatment of the right to leave.)

With no domestic human rights legislation to call upon, the Federal Court in Australia dismissed a challenge to the exit controls confirming that the Minister for Health had the legal authority to make these orders under emergency powers. According to media reports, surveys have shown that strict border controls to manage the pandemic are popular with a majority of Australians, who are seemingly accustomed to reliance on border control to reduce all manner of real and purported risks. However, it is the 30% of Australians born overseas who have borne the brunt of these emergency restrictions. This calculus has shifted slightly recently, with still further announcements that Australian citizens living abroad may be prevented from leaving Australia if they return home for a short visit.

Criminal sanctions

As if these measures were not sufficiently controversial, the Australian government responded to news of the upsurge in Covid cases in India by making an emergency declaration in April 2021 that applied only to travel to and from that country. Not only were Australian citizens banned from entering Australia from India, but anyone attempting to do so was threatened with a substantial fine or prison term. One commentator described this extraordinary development as opening up a ‘new front in crimmigration practice’ through the merging of border control with criminal sanctions in relation to citizens (Gerard 2021).

The emergency declaration left 9000 Australian citizens stranded in India (Pillai 2021), many of them amongst the 3% of Australian citizens born in that country (Gerard 2021). While the intensified threat from the delta virus was real, no comparable measures had been taken when new variants had emerged in the UK or elsewhere, or when the virus had spiralled out of control in the USA. These targeted measures were widely condemned as racist, especially since the return of the Australian cricket team from their Indian tour was expedited, after a short recuperation stay in the Maldives. While the established relationship between citizenship and mobility had already been undermined by the general travel bans, hierarchies of entitlement were becoming more apparent as the crisis intensified. 

No prosecutions have been reported under the emergency provisions, prompting suggestions that the sanctions were intended primarily as public spectacle - just another misguided attempt at using deterrence as a tool of border control (Gerard 2021). The measures were short-lived, being repealed on May 15. The one legal challenge that was partially heard by the Federal Court upheld the government’s actions on several points of law but did not consider the underlying constitutional questions, leaving one legal analyst to conclude: ‘With no mention of Australian citizenship in the Constitution, and no case law directly on the point, the case for a constitutional right of entry is very speculative’ (Pillai 2021a).

Conclusion: Destabilising the citizenship-mobility nexus

As Džankić and Bauböck remind us, ‘[s]tates have to readmit their own nationals almost unconditionally’ (emphasis added). The response of the Australian government to the bio-security threat presented by the Covid pandemic has revealed the limits of that guarantee, destabilising the long-established citizenship-mobility nexus in unexpected ways. Even confirmed members have been exposed to governmental control over inward mobility that has previously applied only to non-citizens; and have experienced exit controls that are unique to those who enjoy a right to return. One commentator has described this as a ‘casual degradation of citizenship rights’ forged against a backdrop of ‘racism, risk and emergency’ (Gerard 2021).

Džankić and Bauböck note that pandemic responses have generally allowed for cross-border movement that is judged necessary to meet the ‘needs of the state’. What their proposal did not anticipate is that this calculus could trump the individual mobility rights that citizenship is generally understood to confer. An eminent Australian historian has summed up this unprecedented treatment of Australian citizens with considerable insight, noting that ‘[w]e have learned that governments give priority to “Australia” – understood as a land mass and its citizens (and perhaps permanent residents) – over “Australians”, understood as a people who might be found anywhere from Melbourne to Minsk’ (Bongiorno 2021).

The security fixation that has characterised Australian politics for several decades, and the manipulation of borders to achieve apparent security for members at the expense of certain non-members has taken an unexpected turn in response to a novel bio-security threat - eroding the protection of some, and potentially all, Australian citizens. Border security has become an end in itself; its objective to maintain total control over ‘necessary mobility’ to and from Australia for political gain, with scant regard for the wellbeing of marginalized Australians, and even less for international norms and global responsibilities. The barriers to opening up mobility for non-members in this super-securitized environment are therefore profound. At the same time, that goal remains profoundly important.

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How to cite this blog post (Harvard style) 

Weber, L. (2021). Membership Without Mobility: The Counterfactual as Fact. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2021/09/membership [date]