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Australians Exiled in India: Marooned or Banished?

Due Process
With Michael Krakat

Legal Scholar Michael B. Krakat observes investment migration through the lens of international, constitutional, and administrative law.

The Bubonic Plague (or ‘Black Death’) killed 20 million in 14th century Europe, with Venice imposing on all incoming ships and persons a 40-day (the ‘quarantinario’ period) of waiting time in hospital quarantine on an offshore island. 

At any rate, while there were local measures, there were no complete border closures. The idea of putting the possibly sick in quarantine goes back to the ancient texts: The book of Leviticus refers to the quarantine of lepers. Throughout history, the sick have been exiled within their country (such as the US typhoid quarantine camps of 1892), but not outright banished from it.

Likewise, the cost and consequences of quarantining one’s citizens are not usually imposed on third states.  

A de-facto, temporary exile for Australians in India

Today, there are at least 36,000 Australian citizens stranded globally, a number that includes only those who have registered for government help to fly home. Prior to the pandemic, an estimated one million Australians lived overseas. Australia was one of the first nations to close its borders, in March 2020, barring arrivals except returning nationals, residents, and people granted exemptions (including celebrities or sports stars).

Since October 2020, Australia has also allowed travelers from New Zealand. All arrivals are forced to undertake and personally fund a two-week hotel quarantine. Also, citizens wishing to leave Australia must obtain permission to do so: The right to leave is now subject to, for example, showing that you’ll be away for at least 3 months. There are temporary travel caps, and about 7,000 people are allowed back into Australia a week. The authorities may change this number at any time. In January, they halved it due to the global virus mutations and local community outbreaks.

Some 9,000 Australians are currently stranded in India. The world’s second-most populous nation contends with a surge in COVID-19 cases and deaths. In a controversial and problematic move, let alone from a point of citizenship theory, the Australian government has imposed a de-facto exile on its citizens in India, who are not allowed home.

Australian residents and citizens who have been in India within 14 days of the date they plan to return home will be banned from entering Australia as of Monday May 3rd 2021. The temporary emergency determination, issued late on Friday, is the first time Australia has made it a criminal offense for its citizens to return home. Those who disobey may face fines and jail – punishable by five years in prison or a A$66,000 (US$51,000) fine. It remains to be seen if Canberra will extend this logic to other places and groups. 

“The government does not make these decisions lightly,” Australian Minister for Health Gregory Hunt said when announcing the measures. He emphasized, however, that the integrity of the Australian public health and quarantine systems are to be protected and the number of COVID-19 cases in quarantine facilities must be reduced to a manageable level. Further, the government will reconsider the restrictions on May 15th, 2021. Human Rights Watch’s Australia director, Elaine Pearson stated that “[t]his is an outrageous response. Australians have a right of return to their own country.”

The fine print of the social contract

This example may show that citizenship is not an absolute individual right but, if anything, subject to the collective social contract. Based on the notion of service to the collective general good, inroads into the individual rights approach of citizenship (including the purchase of citizenship in CBI mechanisms) may be justified. In a risk of harm assessment, individual cases are weighed against the collective polity/all other citizens. The ban on citizens returning from India may be justifiable under the current spirit of emergency of the pandemic. 

Measures such as this are in need of a clear sunset clause, which the government has arguably provided by promising a reconsideration on May 15th. These measures are limitations to rights subject to exceptions. It appears that the above measures are to protect the health system from overload and to safeguard the existing population. Polls show that Australians at home support keeping the borders shut. 

Generally, as the pandemic still poses an emergency, Australia appears to here evoke the floodgate argument and utilitarian weighing of internal safety vs. its obligations to those citizens currently outside the polity. It is not clear, but possible, that the government could have extended the quarantine system by adding further facilities instead of reducing the number of plane arrivals allowed to come in each week or imposing blanket bans.

Imposed exile, even if temporary, may have repercussions for the individual or the exiled group and their perception of the social contract. Citizenship is not only a legal status you can switch on and off subject to the bordered paradigm. Beyond the doubtful legal aspects of this exercise, we should remember that, to most people, citizenship is not merely a legal or a commercial link, but something they associate with the social contract; an obligation to solidarity and burden-sharing, as well as an identity coming with a moral code.

Which country is responsible for the dual citizen?

It is not clear whether Australia could make and successfully rely on the (at any rate flawed) argument that its citizens currently in India may be dual- or multiple citizens, so that their other home country, India, should look after them and shoulder the cost to do so. Such a line of argumentation may diminish the status of citizenship itself, leading to fragmentation of citizenship into class citizenship, with dual citizens – in effect – holding a lesser version of the same citizenship. 

At the same time, where there are dual citizens, responsibility by proximity may indeed require that India attend to its own citizens currently in India. But that, again, at any rate, may not take away anything of a country’s responsibility to allow its citizens to return.  

While Australia permits “citizenship of two or more countries”, provided this is legal according to all the relevant parties, India does not in principle recognize plural (dual- or multiple) citizenships. India would expect renunciation of Indian citizenship by anyone asserting Australian or other citizenship.

However, even in India, a certain type of “dual citizenship” does exist: Based on the recommendations of the High-Level Committee on the Indian Diaspora, the Government of India decided to create and grant Overseas Citizenship of India (OCI). OCI is a form of residency and is not to be misconstrued to function as immediate dual citizenship. A person registered as OCI is eligible to apply for a grant of Indian citizenship under section 5(1) (g) of the Citizenship Act 1955 if they are registered as OCI for five years and have been residing in India for one year out of five years before making the application.

At any rate, while on OCI status, card holders retain only some of the rights of Indian citizens, including the right to live and work in India permanently. Persons of Indian Origin (PIOs) who migrated from India and acquired citizenship of a foreign country other than Pakistan and Bangladesh, are eligible for grant of OCI as long as their home countries allow dual citizenship in some form or other under their local laws.

Persons registered as OCI have no right to vote, to run for election to Lok Sabha/Rajya Sabha/Legislative Assembly/Council, nor to hold Constitutional posts such as President, Vice President, or Judge of Supreme Court/High Court, etc. Registered OCIs are entitled to the following benefits:

  • Multiple-entry, multi-purpose life-long visa to visit India;
  • Exemption from reporting to Police authorities for any length of stay in India; and
  • Parity with NRIs in financial, economic, and educational fields except in the acquisition of agricultural or plantation properties.  

Further benefits to OCIs, if any, will be notified by the Ministry of Overseas Indian Affairs (MOIA) under section 7B (1) of the Citizenship Act, 1955.

Again, OCI status alone is no Indian citizenship, with civic responsibilities missing, such as the right to vote. 

It is not clear whether the stranded are in fact OCI cardholders. More information would be needed here. However, this question may not make much difference: Neither OCI nor dual citizenship are likely to affect Australia’s responsibilities toward its citizens.  

The take-away from this situation may be in case that CBI systems of passport plurality pose at least one resolution and alternative to this current situation: By holding another option beyond the Australian passport, Australians in India could make use of CBI strategic diversification and, in other words, allow the escape from both risk to health in India as well as from politically imposed restrictions in Australia. 

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The post Australians Exiled in India: Marooned or Banished? appeared first on Investment Migration Insider.

Khanna: Even After Vaccinations, Mobility Will Be Tied to Individuals, Not Just Passports

Many of the restrictions on travel and migration introduced in response to the pandemic – initially thought temporary – will remain long after COVID has been repressed, suggests global strategy analyst Dr. Parag Khanna.

Right up until the outbreak of the pandemic, global mobility had been on a multi-decade, uninterrupted tear; between 2006 and 2019, the average number of visa-free destinations available to holders of the top 20 passports – according to the Henley & Partners Passport Index – grew from 126.5 to 187.

That trend had appeared unassailable until March 2020. Now that vaccinations are being rolled out at the rate of more than 10 million a week (a clip that will continue to accelerate), many are hoping for and expecting temporary mobility restrictions to fall away in tandem with case counts. Dr. Parag Khanna, however, a man who makes a living in part by predicting the future of globalization, considers such a “return to normal” unlikely.

“The system will not return to what it was: Nationality will not suffice to guarantee safe passage,” Khanna writes in the Global Mobility Report 2021 Q1, released today. Pointing to the US as the most prominent example of a country whose citizens have seen a drastic reduction in mobility (from 184 visa-free destinations in January 2020 to, effectively, 75 today), he hints that a return to former heights will come only gradually.

“Even for still-powerful passports such as [those of] Japan, Singapore, South Korea, and members of the EU, additional protocols will be required to re-attain relatively frictionless mobility. For example, to avoid onerous quarantines, individuals will have to certify their health immunity through vaccination certificates and other special registrations.”

But wide-spread vaccinations, in themselves, he points out, will not be an instant panacea that quickly restores international mobility; freedom of movement, when it does return, will only take on an intra-regional nature at first.

“Even in a scenario of rapid global deployment of a vaccine, large-scale migration will surely be limited and entrenched at the regional level: Europeans within Europe, Asians within Asia, Latin Americans within the western hemisphere. The current economic depression in many countries, depleted savings, political and cultural xenophobia, and other contemporary realities make this all but certain.” 

Dour as this prognosis might appear, it also portends a world in which mobility discrimination takes place on the basis of individual qualifications rather than on a person’s belonging to a certain group by accident of birth, an oft-lamented state of affairs that many industry observers consider inherently unjust.

“Mobility will therefore be tied much more to individual merit. For those seeking a clean start far from their regions of origin under existing and expanding highly skilled migrant programs, irrespective of their nationality, rigorous checks on their financial, criminal, and professional history are already the norm. This may seem an onerous development, but it also levels the playing field for hard-working professionals from developing countries.”

As far as the prospects of the residence and citizenship by investment business are concerned, however, Khanna believes the pandemic has had a favorable effect.

“There is no question that these trends in combination have boosted the appeal of investment migration, whether for digital nomads, those looking to acquire second passports, or those changing nationality altogether.”

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The post Khanna: Even After Vaccinations, Mobility Will Be Tied to Individuals, Not Just Passports appeared first on Investment Migration Insider.