Mobility without membership: Do we need special passports for vulnerable groups?

Jelena Džankić (European University Institute) and Rainer Bauböck (European University Institute and Austrian Academy of Sciences)

Passports issued by wealthy countries have become a pricy commodity that is in much demand among Russian oligarchs seeking safe places where to stow away some of their wealth (Dzankic 2019). For middle-class descendants of European ancestry in South America or Israel EU passports are both an insurance policy for an uncertain future and a “positional social good” that raises their prestige vis-à-vis less fortunate members of their societies (Harpaz 2019). Neither of these groups is primarily interested in using their second, third or fourth passports for international migration. Whatever the individual motives, instrumental reasons for acquiring additional citizenships have become stronger with the onset of globalization and have challenged the meaning of the status as an expression of “genuine ties” of individuals to particular countries (Bauböck 2019, Joppke 2019, Shachar 2018, Spiro 2019).

Yet on the other side there are millions who would desperately need the right passports to move to places where they can find protection or work. Some of them want to resettle elsewhere, but greater numbers need to move across borders to build better lives for themselves or their families back in their home countries. Temporary migrant workers and border commuting workers never gain access to the citizenship of their host countries that would allow them to move back and forth as a matter of individual right. Most refugees remain stranded in the regional neighbourhoods of their countries of origin in the global South and stuck in camps where they do not enjoy mobility rights even within their host states (Achiume 2018). Those who make it to wealthy countries in the global North as asylum seekers or through resettlement programmes get access to a new citizenship only after many years of residence. Before that, they lack opportunities to choose other destinations where their cultural and economic skills might find better uses. Indigenous peoples in the Americas find their traditional patterns of mobility constrained if their homelands are divided by international borders that have become militarised as a result of armed conflicts or efforts to curb irregular migration.

These are just a few illustrations of a problem that results from one of the core functions of citizenship in the international state system – to allocate international mobility rights. Free movement inside a state’s territory is a universal human right, but free movement across international borders is a citizenship-based right. States have to readmit their own nationals almost unconditionally. Those who possess several citizenships can therefore move freely between the states whose passports they carry. The citizens of a regional union of states, such as the EU, MERCOSUR, ECOWAS or the East African Union, enjoy free movement rights because they are nationals of the member states of these unions. Ordinary “third country migrants” and refugees can only gain access to such mobility privileges through acquiring the citizenship of their host country, which is often impossible or paradoxically requires them first to abandon mobility and become long-term residents. Unlike those who buy their way into citizenship of a country where they do not take up residence or those who get it for free because they have the right ancestry, immigrants are expected to first develop genuine links before becoming citizens and voters. And this is not an unreasonable request since citizenship gives them also the vote in national elections through which they can shape the future of the country. Yet this becomes a major hurdle for migrants who need mobility rights rather than a new membership.

The easy response to this conundrum is to advocate for open borders worldwide. This is an attractive utopia, but the question is which path could lead to this “nowhereland”. Political philosophers have suggested to extend current catalogues of human rights by complementing the right of free internal movement and the universal right to leave any country with an equivalent right to enter other countries (Carens 1987; Cassee 2016; Cole 2006;  Oberman 2011, etc.). But this route remains closed off since the power to control immigration is a core aspect of sovereignty in the international state system and can also be justified on grounds of “compatriot partiality” (Miller 2005), i.e., special duties of states towards the citizens and residents in their territories. As long as they claim this power, states can only be expected to grant free movement rights on a basis of reciprocity; that is, to the citizens of states with which they share membership in a regional union or the citizens of states from which they are not separated by deep disparities in living standards and welfare rights.

A second path might thus be to expand and multiply regional unions of states and to narrow disparities of social welfare between the global South and North through resource distribution and effective development policies. While we are in favour of travelling this path, it is a long and winding road that leaves those who urgently need mobility rights here and now by the wayside.

A third path could be to radically expand extraterritorial access to desired citizenships, making them accessible to those who need but cannot afford them. As a side-effect, this would ‘destroy the business of the golden passport sellers’ through mass production of the commodity on the scarcity of which their profits depend. If access to the citizenship of wealthy countries were easy for everyone who needs mobility rights, then nobody would need to cough up large sums of money for it or be willing to do so. Yet, widely opening the door to citizenship for those without genuine links is a hard sell in democracies, since it devalues citizenship as a status of equal membership in a political community whose members share an interest in the common good and future of a particular polity. If extraterritorial naturalisation becomes the norm rather than the exception, this could be fateful for the democratic substance of citizenship. Moreover, its mobility value might suffer as well if states come to regard multiple citizenship as a backdoor for uncontrolled immigration.

In this forum we would like to propose and discuss a fourth option, which is not meant as a pathway towards global freedom of movement, but rather as a response to urgent needs and specific disadvantages faced by those for whom mobility is not a luxury but a necessity. Our proposal is to create a new type of passports that provide limited and tailor-made mobility rights to those who need them most and who have no chance to acquire them via the citizenship route.

The need for this fourth option has come into the limelight particularly during the COVID-19 pandemic, when the privileged mobilities continued, and most of the necessary ones were put to a halt. While the world’s wealthiest could find a “safe haven” in one of the Caribbean Islands of which they hold citizenship, or European states like Cyprus or Malta that have become notorious for their investor citizenship programmes, low-skilled temporary labour migrants as well as those fleeing persecution  have become destitute, been stranded, left in a limbo, or – in the worst case scenario – have been deported. Tens of thousands of Indians working in the construction sector or allied industries in the Arab Gulf states faced unemployment and thus the termination of their temporary migrant status due to the pandemic. The United Arab Emirates and Kuwait called for an immediate repatriation of such individuals, threatening that they would impose a quota system in the future. Asylum seekers and refugees unable to obtain documents from their countries of origin, or those stranded in countries that halted the processing of claims during the pandemic face deportation or detention in camps.

Even so, while COVID-19 halted most of the “non-essential” global mobility, exceptional emergency regimes enabled some necessity-based crossing of international borders. These exceptions included freight transporters, pilots, medical personnel, and in some cases cross-border workers and seasonal employees in the agriculture sector. In all of these cases, the “necessity” for mobility was not that for individuals, but rather based on the “need of the state”. It is still significant that these exceptional emergency regimes transcended citizenship-based mobility rights, indicating that states can indeed enhance and protect mobility rights of certain groups, regardless of which citizenship they hold. Can we generalise from this experience? Would it be possible to create special mobility rights for vulnerable groups in addition to those attached to passports? If so, who would these groups be, what rights should they enjoy and who would guarantee them such rights?

Instituting exceptional mobility regimes for vulnerable groups would start with recognising their individual needs to cross international borders to receive protection or perform a designated service. One such group would be environmental migrants or refugees. The International Organisation for Migration (IOM) has defined this group as ‘persons who, for compelling reasons of sudden or progressive changes in the environment that adversely affect their lives or living conditions, are obliged to leave their habitual homes, or choose to do so, either temporarily or permanently, and who move either within their country or abroad’. The legality of international border crossing by people fleeing environmental disasters remains an issue under international law, and they are frequently referred to as “climate migrants” rather than “climate refugees”. They clearly do not fit the definition of the 1951 Refugee Convention, according to which a refugee is a person who ‘owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country’. Even the broader definition of the non-binding 1984 Cartagena Declaration by Latin American states does not obviously cover them. It refers to ‘persons who have fled their country because their lives, safety or freedom have been threatened by generalised violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order’.  Yet only in 2019, nearly 1,900 extreme weather events such as hurricanes, sea-level rise, draught and water scarcity have resulted in 24.9 million displacements across 140 countries, and an unknown number of border-crossings, mainly in the Americas, Asia and Oceania. Upon arrival in the destination state, individuals fleeing environmental catastrophe are often faced with an extremely precarious situation, and virtually stripped of any rights in international law. Unlike in cases of Pacific island states being submerged by rising sea levels where resettlement is the only remaining option, many more people are displaced temporarily by climate change effects. Enhanced international mobility rights might help them survive in areas where local livelihoods have been destroyed. Hence in the absence of an international regime for climate refugees, setting up a special mobility regime for populations forced to flee due to environmental factors could save millions of lives.

Another example would be the temporary labour migrants working in industries like agriculture, construction or care work. In most cases, mobility rights of these groups are dependent on their citizenship of origin. Their temporary status prevents them from transitioning to a more secure settlement permit or citizenship in the destination country. Their mobility rights and thus their access to work and income remain precarious, while their services are indispensable for the functioning of the host state’s society and economy. Apart from the Indian construction workers in the Gulf countries mentioned above, such essential workers would include the East European fruit pickers in Germany and the UK, or the care and nursing personnel from the Western Balkans in northern Europe. Unlike, for instance, highly skilled medical personnel or engineers, these low-skilled temporary workers are at the same time a necessary and a vulnerable category. Regulating their mobility rights through a special regime would thus be beneficial to both individuals and recipient societies.

Special mobility regimes disconnected from citizenship are not a historic novelty. They have only been forgotten. In 1921, upon the initiative of Fridtjof Nansen, the League of Nations started issuing special certificates to Russians who fled their country and whose citizenship was revoked. In the following decade, the League of Nations expanded the scope of the ‘Nansen passport’ to also include Armenian, Assyrian, and Turkish refugees who needed mobility rights but would not be recognised by their national authorities. The Nansen passports were issued by the country where the person was located, but without any social or welfare entitlements for their holders in that country. They granted the holder the right to leave the country of issue, travel to another country recognising this document, and be readmitted to the country of issue. In other words, Nansen passports provided a vulnerable community with recognition and mobility rights, but not with membership. By 1942, about two million persons held Nansen passports that were recognised in 52 countries – more than half of those existing in the world at the time.

More recently, Alexander T. Aleinikoff and Leah Zamore (2019) have argued for exceptional mobility regimes that would better accommodate the reality of refugees in the contemporary world by offering them (regional) free movement rights. They introduce the notion of the “necessary flight” to take the broad array of motives for which people flee their homes into account. Building on the need to go beyond the “fear of persecution”, Aleinikoff and Zamore develop a practical proposal for creating a policy space to protect displaced persons through globalised responsibility-sharing. A “modern-day Nansen passport” would grant the “necessary fleers” the possibility to escape the limbo of being unable to return to their home country and unable to leave a destination state where they cannot build a new life.

Our proposal builds on this idea of the “necessary flight” applying it more broadly to contexts of environmental and socio-economic vulnerabilities and needs. The exceptional mobility regime we envisage would grant to a set of vulnerable groups a special ‘passport’ recognised in a uniform manner by different national immigration systems. Similar to the Nansen passport, the special mobility passport would separate two core aspects of citizenship. While it would not grant its holders any political rights in the destination state, it would give them rights to territorial admission and return. Settlement rights or citizenship would still have to be recognised in case an individuals’ life course leads to multiannual residence (e.g., for environmental refugees) but would then involve a transition to the legal status of a regular immigrant. By contrast, the special mobility passport would be temporary, renewable, and subject to conditions of vulnerability and necessity. States would seek to retain national control over access to employment and social welfare rights, although a set of minimum rights in these respects will be essential to prevent that necessity movers end up in extreme exploitation or destitution and host states come to regard them as undermining social standards. The process initiated by the UN Compact on Safe, Orderly and Regular Migration and the more far-reaching initiative for a Model International Mobility Convention could be harnessed to develop such norms also for necessity movers.

Even then, would these exceptional mobility regimes detached from membership not generate even more precarious mobilities? The answer to this question depends on the thorny question of who would issue such passports and how states could be made to recognise them. Commonly, states regulate their immigration through reciprocity and bilateral agreements that benefit their own nationals. States are thus generally willing to accept free movement only if their citizens are granted similar rights by the other states involved. Hence the way to make this exceptional mobility regime acceptable to states is to ensure that their own vulnerable communities would be afforded the same rights should they need them. However, disparities of wealth and power between states in the global North and South make such reciprocity-based incentives probably not strong enough. Negotiating special mobility passports will therefore require an international setting in which states are formally equal as well as strong mobilisation by transnational civil society organisations.

We do not have ready-made responses to the many questions raised by our proposal. We hope that the forum debate that we are now kicking off will not only raise objections on grounds of principle or feasibility, but will also yield some novel practical solutions.

The reason why we think our proposal is both timely and realistic is that the world may be entering a new historic period. Hyper-globalisation since the 1990s has greatly increased the volume of global mobility, but the short-term effects of the pandemic and the long-term effects of the climate crisis are likely to dampen the non-necessary types of mobility, such as international tourism and business travels. Moreover, the digital revolution and securitisation of migration have created “shifting borders” (Shachar 2020) that allow states to control the movement of people far beyond their territory. It is thus possible that there will be a significant reduction of global opportunities for mobility. The pandemic and climate crises have, however, increased the need for mobility rights as individual exit options from intolerable circumstances as well as the societal demand for a transnationally mobile “essential workforce”. States have therefore not only humanitarian reasons for carving out exceptions to citizenship-based mobility regimes. They may also need them to protect their own vulnerable necessity-movers and to keep their national economies and public services afloat when the supply of native workers dries up.

Maybe the most likely development is a proliferation of ad hoc mobility rights that differ for temporary labour migrants, environmentally displaced persons, indigenous peoples and other groups and that are negotiated between particular states. We are not opposed to such tailor-made solutions but believe that they should be embedded in a broader international process in which the principle of necessity-based mobility is recognised and a minimum set of rights for necessity movers become entrenched in international law. What could better express this commitment than creating a new kind of international passport for them?