Mobility without membership: Do we need special passports for vulnerable groups? – a rejoinder
Jelena Džankić (European University Institute) and Rainer Bauböck (European University Institute and Austrian Academy of Sciences)
Introduction
When we started this forum debate, we hoped that the responses we would get to our proposal for a special passport for vulnerable mobilities would not merely raise objections on the grounds of principle. Rather, we hoped that this exchange would yield some novel practical solutions how to enable mobility across international borders for those who need it most. Few, if any, of the fifteen excellent responses we received in this forum raised any objections on grounds of principle, yet many commentators questioned the feasibility of our proposal. Some have also offered constructive ideas, or alternative proposals and all acknowledged the need for a forward-looking approach to break the circle of precariousness for those who need to move but are constrained by restrictions tied to their citizenship of origin. Unlike the wealthy investors, who can purchase membership-free passports, or those with ancestry in countries of the global North, who obtain them through presumed connections, these vulnerable groups need to become sedentary in order to qualify for naturalisation in a destination state before they can become mobile as owners of a valuable passport. In other words, our main premise – that it is necessary to enhance the mobility rights for these vulnerable groups – has remained uncontested.
Yet, in reading the comments to our proposal, we have realised that we need to clarify its scope. Our proposal does not aim to cover all forms of necessity driven movement across borders. It focuses specifically on people who need mobility more than a new permanent place of residence or country of citizenship. Valeria Ottonelli and Tiziana Torresi capture well our core concern when highlighting that there are numerous “circumstances in which what people need and want is simply those mobility rights, without also necessarily aiming to become full members of the society they move into”. In such contexts, we believe that it is essential to guarantee such individuals “the right to move freely back and forth between the receiving country and their home country, without being subject to limitations imposed on migrants by current migration regimes”.
Conditions of environmental risk or economic hardship most strongly affect people in developing countries, who have thus the greatest need for new legal channels of mobility. Yet why would destination states in the global north accept such an approach? John Torpey invokes John Rawls’ idea of the ‘veil of ignorance’: at some point we could all be necessity fleers. This veil has probably become a bit more transparent with the COVID-19 pandemic and recent climate disasters and has revealed a more general – human – vulnerability. We find Torpey’s argument convincing, as it highlights that for any proposal akin to ours to materialise, and be accepted globally, the way people in the global north think about mobility needs to be reframed. Or rather it needs to change from “mobility rights are needed mostly by the poor and endangered countries or the less well-off in the developed world” to “our lives are not as risk-free as we may be thinking and mobility can be an insurance for the future”. Linking the need for mobility to the contemporary human condition may help prepare the ground for global solutions highlighted also by Michael Doyle, Janine Prantl and Mark James Wood, and Yasemin Soysal.
Yet waiting for a global consensus to emerge might take a very long time. The pathway to a global mobility regime must harness the interests of sending as well as receiving states and must aim to generalise existing good state practices. In our conversation, Diego Acosta highlights the policies of some Latin American and European Union countries that have introduced special humanitarian admission permits. However, as ad hoc arrangements for resettlement from specific regions to specific destinations, such permits enable mostly one-way movement, not mobility between countries. While acknowledging the value of such initiatives, we believe that they are likely to remain small scale and unlikely to set an example for many other states.
Alternative pathways to mobility
Our idea for a special passport for vulnerable mobilities is not the only answer to the problem. In our kickoff essay we sketched three alternative pathways to enhanced mobility for those who need it most. Each of these has been picked up by some of our respondents and defended in much more nuanced ways than we had initially imagined. These approaches consider broader global mobility regimes, regional solutions, and expanding extraterritorial access to citizenship.
(1) Global free movement: still a utopia
As we expected, none of our commentators has pushed for the global free movement utopia. However, Doyle et al and Soysal argue for focusing on what could be achieved at the global level in terms of strengthening mobility rights. In this view, the Global Compact on Migration and the Global Compact on Refugees point the way. Doyle et al. base their advocacy for an all-encompassing international solution on a global responsibility sharing approach, rather than on “imposition”. Soysal highlights that for such a system to be legitimate and operational the developed countries need “to treat the states in the South as equal stakeholders”. She notes the significance of the Western states’ systematic contribution to a broader global strategy of migration and mobility management through resettlement quotas, humanitarian visas and other initiatives that would reflect states’ responsibility for the common approach.
First of all, we welcome this broader perspective, and would encourage scholars to explore its potential. So far, there has been a very limited amount of both conceptual and political work on special mobility needs compared to the other types of human movement across borders. Second, we would like to promote mobility options also at levels below the global arena, in which bold solutions are harder to agree on and get more frequently levelled down to a minimum. Unlike responses to the global climate crisis, which must be primarily agreed and pursued at the global level because of the nature of the threat, migration and mobility challenges can often be tackled better at multilateral and regional levels below the global one. Global solutions will never truly enable free movement as a human right, as long as the power to control immigration remains a core feature of sovereignty that states cannot be expected to renounce. At regional levels and for specific kinds of movement states might be more willing to relax or fully suspend their immigration control powers, since this does not undermine their claims to sovereignty within the international community of states.
(2) Expansion and multiplication of regional unions: plausible, but with limitations
In his response, as well as in his scholarship, Diego Acosta has pointed to a steady increase of regional free movement law and arrangements around the world, and has advocated for further expansion and multiplication of such regimes. Regional free movement arrangements, as the May 2021 extension of the Andean Migratory Statute shows, can be extended to nationals of third countries. They can also unilaterally include non-ratifying countries, as Brazil and Uruguay did when they extended the MERCOSUR Residence Agreement to Venezuela.
While certainly being a more immediately feasible solution compared to global free movement, regional unions have their limitations when it comes to ensuring mobility for vulnerable groups. First, they are unlikely to be possible in all the regions of the world. As Torpey has observed, there are scarcely any prospects of regional free movement in the Persian Gulf, and such initiatives are just as unlikely throughout South and Eastern Asia. Second, as also pointed out by Martin Ruhs, the main limitation of regional free movement is that they are only possible between countries with roughly similar levels of development and social welfare systems. Regional free movement arrangements have so far been established between rich countries in the global North (in Europe), threshold economies in the South (in South America) and poor developing countries (in sub-Saharan Africa), they have never bridged the gap between very rich and very poor countries. Third, regional free movement agreements do not specifically target vulnerable groups. As highlighted by Oreva Olakpe and Anna Triandafyllidou, the focus of new initiatives should be on those who do not already enjoy mobility rights at regional levels.
(3) Expanding access to high value citizenships: a twisted route
A number of commentators in the forum have argued against separating mobility from citizenship, either by emphasising that the rights of necessity fleers at destination will remain vulnerable unless they have access to citizenship there, or by exploring possibilities for obtaining passports extraterritorially. Rebecca Buxton has reminded us that having entry rights through a passport is not enough, but that those who are refugees in a wider sense need to be afforded protection of their basic rights. She also highlights the normative functionality of citizenship in securing the protection of those rights. Refugees who have lost the protection of their citizenship need to be offered the citizenship of another country where they can rebuild their lives. Yet those who need to be temporarily mobile across international borders rather than to settle elsewhere need a passport, temporary residence and access to employment rather than full citizenship. Making access to full membership a normative requirement built into mobility schemes is often neither feasible nor defensible if it would greatly reduce the numbers who are admitted and ignore their own life plans. These insights in work by Martin Ruhs, Valeria Ottonelli and Tiziana Torresi, amongst others, were important for our proposal for special passports that enable mobility, instead of aiming to substitute for an ineffective citizenship, which is what asylum is about, or providing a pathway to citizenship for settled immigrants.
Noora Lori’s account of the UAE purchasing Comoros passports for their stateless bidoon populations and some groups who had previously held UAE citizenship illustrates the negative potential of special passports that were designed not to enable mobility but to prevent it while perpetuating or even enhancing the stigmatisation of marginalised groups. One cannot exclude that special passports created for the opposite purpose of enhancing mobility might in some contexts also be used to identify people as a security threat. Does that mean that we should not settle for anything less than full citizenship at destination for necessity movers? As Ottonelli and Torresi point out, doing so would not only forgo tangible improvements for the sake of unrealistic demands on destination states; it would also misrepresent the intentions of migrants whose goal is mobility rather than resettlement.
Even if we accept the citizenship route, we believe that there are some shortcomings to Lori’s imaginative proposal to harness the emerging global market for passports by allocating a share of it for migrants in need. As Lori suggests, this could be done by taxing the sale of passports by states, pro bono work by private companies, or setting aside quota of investor passports for vetted necessity movers, all of which would entail accepting and legitimising the industry promoting the sale of citizenship globally (see our earlier forum on this issue). Moreover, it is difficult to imagine that states would “donate citizenships” in addition to selling them. Doing so would undermine the logic of investor citizenship schemes and lower their commercial value. It would be like asking real estate companies selling luxury properties on the Côte Azure to donate a few of these to homeless people. This is why some firms involved in the citizenship industry that want to polish their image through charitable activity invest into resettling refugees in newly created settlements, rather than in awarding them with passports. The mobility value of passports would also likely be curtailed if necessity movers are included in the global market for investor citizenship, since destination states would then be less likely to honour visa waiver agreements.
If extraterritorial access to citizenship is blocked for most necessity movers, the only alternative access to it involves, as noted by Ottonelli and Torresi, a paradox. In order to be mobile between a country of origin and destination, they would need to acquired destination country citizenship through ordinary naturalisation and without having to renounce their citizenship of origin. But ordinary naturalisation presupposes permanent settlement, so they would have to abandon mobility in order to acquire mobility rights.
There are cases where even the naturalisation route may fail to secure mobility rights. Drawing on the Australian experience during the pandemic, Leanne Weber worries that in global emergencies even full citizenship cannot guarantee mobility rights – in spite of the exceptionally strong obligation of states under international law to allow their citizens to leave and to readmit them when they want to return. Her contribution has taught us a valuable lesson: citizenship-based mobility rights may not be as crisis-proof as we had previously thought. Rather than being dictated by the crisis itself, restrictions are political decisions, and their acceptability will depend on the nature of the crisis and available scientific knowledge about its trajectory. We acknowledge that already legally entrenched mobility rights of citizens and residents jeopardized in a state of emergency may need special protection by independent courts that are able to judge whether temporary restrictions are proportionate. Our proposal’s guiding idea is, however, that mobility needs that are triggered or enhanced by crises need new legal and policy instruments that are lacking so far. The citizenship route is still the most promising one for expanding free movement between states either through toleration of multiple citizenship or through a common citizenship in a regional union of states; it is not a promising pathway for crisis-induced mobility needs.
Mobility passports and similar proposals
The upshot is that none of the fundamental alternatives discussed above seems to respond adequately to the special mobility needs that have come to the foreground in the covid-19 pandemic and that are likely to emerge at much bigger scale as a result of climate disasters.
We support the plea by Doyle et al. that the wealthiest countries should contribute massively to refugee resettlement by either taking in refugees or assisting other countries to do so. But our proposal aims also at sidestepping the political deadlock that has blocked any fundamental redesigning of the international refugee protection system after the end of the Cold War. It focuses on enabling mobility for those who need it most and tries to harness as far as possible state interests in mobility opportunities for their own citizens and in the availability of a mobile workforce for some of their essential industries and services.
Several contributors have accepted this motivation and rationale for our suggestion while proposing different instruments for achieving the same target. This conversation has convinced us that the goal of a single standardised and internationally recognized mobility passport – if it can ever be reached – can be usefully approached, even if not replaced, by smaller scale instruments targeting specific groups.
We therefore fully support Olakpe’s and Triandafyllidou’s idea of a green passport lottery in the context of EU-African migration-development partnerships. This policy would target young migrants who are otherwise likely to engage in irregular migration to Europe. The proposal seems to us also carefully crafted to take into account the interests of origin as well as destination states (e.g. by selecting migrants at mid-skill level). Moreover, the idea of a passport lottery could have the beneficial effect of preparing the ground for a gradual increase in numbers while incentivising those who fail to get immediate access to wait for a next round instead of buying the services of human traffickers.
Lorenzo Piccoli’s proposal of targeted visa waivers provides a similar stepping stone. This measure can be implemented fast as it requires only unilateral action by destination states. Piccoli considers both country-specific and group-specific visa waivers. In cases of country-level emergencies like the one we are witnessing now in Afghanistan, the former would help people exit but would require coordination among destination states since a single one opening its territory could soon be overwhelmed and face severe domestic backlash. The hardening of European visa and border regimes since 2015 and the current humanitarian disaster at the border between Belorussia and Poland do not augur well for such proposals. Group-specific visa waivers seem more realistic. The example quoted by Piccoli concerns only 200 Afghan journalists who had worked for British media (The Guardian). The more innovative proposal would be visa waivers for larger groups including those without previous connection to a destination state, such as “all individuals fleeing a territory where there has been a natural disaster, or all qualified cross-border care providers”. As Piccoli points out, the advantage but also limitation of visa waivers is that, unlike special mobility passports, they do not require international recognition by other states and limit therefore also the beneficiaries’ further mobility options. Moreover, visa waivers merely permit entry and a limited time-period within which migrants can try to sort out their legal status, the regulation of which would remain fully within the powers of the destination state. While they avoid irregular border crossings and thus ‘destroy the business model of the traffickers’, meeting thus a main goal proclaimed by European policy-makers, they still risk shifting irregularity to overstaying. By contrast, the issuing of special travel documents creates a higher level of commitment than merely abolishing visa restrictions and is thus more likely to be combined with positive regulations concerning residence rights and their renewal, or access to employment.
This raises three critical questions that have been discussed in this forum: Who would be the beneficiaries of special mobility passports? What rights would be attached to these? And who will determine the status and claims of special passport holders?
(1) Potential beneficiaries
When discussing which groups would most benefit from special mobility passports we mentioned two: environmentally displaced persons and temporary migrant workers. With regard to the former category, Caroline Nalule rightly points out that most are currently internally displaced persons. This is partly so because of other states’ reluctance to open their borders for potentially massive numbers who had to leave their places of residence because of draughts or flooding. The other reason is, however, that people displaced by rapid onset disasters like extreme weather events are unlikely to permanently abandon their homes – unlike those displaced by slow onset disasters like rising sea levels who have no place to return to. The latter group of victims, too, will initially try to find internal flight alternatives, such as joining the millions that have already moved from the countryside into the megacities of the global South. Yet it would be shortsighted to think that this current pattern of predominantly internal climate-driven migrations is likely to persist as temperatures continue to rise and life in big cities in the hottest climates becomes impossible for those who cannot afford air conditioning in their apartments. We expect therefore that climate driven migration will in the near future increasingly spill across international borders with many migrants seeking, however, mobility (e.g. seasonal circulatory migration) rather than permanent resettlement. Our proposal for a special mobility passport for some of these groups builds on this expectation.
With regard to temporary labour migrants in sectors such as agriculture, construction and care, Nalule points out that their vulnerability is not created through mobility restrictions but through a lack of rights in host states. It is true that these migrants usually possess multi-entry visas, but these often come with short expiry dates and persons holding them remain strongly exposed to risks of denial of entry at the border or deportation. Martin Ruhs confirms that the “key source of migrants’ vulnerability is precisely their restricted mobility, both in terms of their labour market mobility within the host country and their physical mobility across international borders.” For Ruhs, the main source of vulnerability of temporary migrant workers is their lack of mobility in the host society’s labour market and their risk of running into debts because they need to bear high costs for recruitment and remittances. We agree that the admission of labour migrants is premised on a perceived need and expected benefit of the receiving state, so the problem of cross-border mobility seems somewhat less urgent for this category and the focus should be instead on securing their rights in the destination country. Yet mobility restrictions do remain an important aspect of precarity and our proposal aims to counter it, as Ruhs says by enabling “unrestricted circular labour migration” for those who have been accepted into a special passport regime for migrant workers.
Ruhs worries that “such a policy could further prolong structural inequalities between temporary migrant workers and other workers in the host country, in a way that is incompatible with long-term standards of equality and inclusion in a liberal democracy.” This risk is real, but the answer should be, as Ruhs suggests, not to curb the mobility of temporary migrant workers, but rather to narrow the gap between their labour and social welfare rights and those of permanent immigrants and natives.
(2) Rights
One of the questions that have been raised by many in the forum was what rights would be associated with the special passports. Our proposal is based on the premise of ‘mobility without membership’ for vulnerable groups, and thus the special passport would guarantee the rights of admission and return, yet it would be disconnected from political rights. Admission to permanent residence, citizenship and advanced welfare rights would not be automatically conferred to vulnerable groups by means of this special document but would remain available to individuals meeting immigration or naturalisation conditions. In order to avoid making mobility rights too ‘expensive’ for destination states, it is important to design them with a view towards temporary mobile populations, not resettled refugees or permanent immigrants. Even so, there will always be individual cases where what had been envisaged as temporary mobility becomes permanent settlement. We believe that such changes of status must be possible without being automatic, which would subvert the purpose of a conditional temporary admission scheme.
This is not yet a full answer, since also temporary residents need a protections and rights. Many of the contributors to this forum debate see the access to rights, rather than mobility per se as the key for reducing vulnerability. Ottonelli and Torresi, Julija Sardelic and Soysal argue that our proposal can scarcely make any difference without guarantees of rights at destination, such as those to shelter, work, healthcare, and education. This objection is corroborated by the legacy of the Nansen passports, which did not cover welfare rights. We agree that mobility alone is insufficient to eradicate vulnerabilities, and that additional protection of rights short of citizenship is needed to avoid creating a category of extremely vulnerable migrants. In our scenario, mobility would entail certain protections of rights at destination. In liberal states, fundamental rights are guaranteed also to temporary residents by the constitution and a principle of equal protection under the law. On top of these, the special passport could also be associated with a “regime of special and differentiated rights that fit the specific condition of each group considered”, as Ottonelli and Torresi propose.
What this approach suggests is that there is a need for minimum sets of rights that ought to be agreed to by all states participating in a special passport regime, while there must also be significant leeway that allows for differentiation for particular groups of migrants. Variation with regard to schedules of rights across destination states is more problematic, but we have to accept that it is inevitable too, given the different nature of national constitutional and welfare regimes.
Looking at the current situation in EU member states, most of which have been experiencing a political backlash against migration and some of which have also witnessed a serious backsliding of democracy, does not leave much room for optimism. Sardelic’s example of the failure of EU states to use the available instrument of the Temporary Protection Directive in response to the 2015 ‘refugee crisis’ supports a pessimistic view. Where moral migration panics prevail, states cannot be trusted to apply mobility enabling instruments even where they have agreed to these. Hence it is important to put both voluntary and binding instruments into practice before such crises. For instance, some groups of states could work out and implement common standards for the rights of special passport holders that can later serve as a template for agreements with a broader scope.
Sardelic provides another troubling example that demonstrates that even the most comprehensive package of rights for temporary migrants currently available may not be sufficient to overcome entrenched vulnerabilities. EU citizenship enabled mobility for Roma, but “did not live up to the promise of protection for Romani EU citizens”. This is indeed an important caveat, but more a reason to consider mobility based on supranational citizenship as an unfinished project also in the EU, not a reason to doubt that it has been overall beneficial for Europe’s most vulnerable ethnic minority compared to the status quo ante.
(3) Determining necessity and recognition
Torpey has reminded us that ‘necessity’ is an inherently slippery concept that states can use and abuse in pursuit of their own interests, and that it is essential to determine criteria, such as persecution or fleeing violence. Nalule notes that even if such criteria exist, they will be interpreted by states restrictively with reference to existing legal frameworks, like the Global Refugee Compact. Her criticism is that, in this case, special passports would not make much difference. We agree that states are likely to select necessity movers based on a mix of self-interest and recognition of existing legal obligations. Our proposal, however, is not so much focused on criteria for selection (determination of necessity) but on the mobility rights of those whom states agree to select. In such cases multi-entry visas or special passports might improve the situation of those who are not selected for resettlement but who need temporary shelter and return options.
The question of who defines the contours of ‘necessity’ is linked to another one raised by most commentators: who will issue and recognise mobility passports? We do not think that such passports should be issued by countries of origin, as this would amount to merely duplicating existing passports without much added value. What matters is that special passports are recognised by transit and destination states. Destination states that issue such passports would obviously have to recognise them, but then the question is whether humanitarian visa would not meet the same purpose. In line with the responses by John Torpey and Gezim Krasniqi, we believe that passports issued by an international organisation, such as IOM or UNHCR would be most beneficial. If a sufficient number of states signed up to an agreement with an international organisation, this would offer the best chances not just for mobility within a larger group of destination states, but also for visa-free entry and temporary stay in transit countries.
The matter of recognition is also pertinent for Krasniqi’s concern that special passports need to register a pre-existing legal identity, normally the beneficiaries’ nationality. If such passports were to be issued by countries of origin, this would indeed risk excluding stateless persons. If they were to be issued by individual countries of destination, those living in irregular territories not recognised by the country in question would also be at risk. However, if the document were to be issued by an international organisation, it could be easier to circumvent such obstacles and to create for these persons a new legal identity based on unique biometric data and the territory where they originally resided that could also be recognised by states signing up to the arrangement. This is not meant to belittle the dangers of creating new digital identities, discussed in an earlier GLOBALCIT forum, but emergencies like pandemics create opportunities for social innovations and a push towards globally recognised legal identities that are in principle separable from nationality could be such an innovation. Such identities will not replace nationality, which remains indispensable as a tool for assigning special responsibilities for individuals to states (such as the duty of unconditional readmission). Nationality-based rights and identities inevitably reproduce global hierarchies of power and wealth between states. Creating special passports for those whose mobility is blocked by their nationality seems to us a tool for mitigating, although not fully overcoming, the inegalitarian effects of the birthright citizenship lottery from a global perspective.
Conclusions: A realistic utopia?
Audrey Macklin articulates a quite fundamental critique: the objections that we raise specifically against open borders utopias apply also to our own proposal that seems unrealistic given the sovereignty hurdles that she specifies. So why not be more radical and promote open borders in the knowledge that states will resist them fiercely? On Macklin’s account, states “resist the admission of people whom the state does not individually select, even where the state consents in advance to their admission as a class, and even if their admission is framed as advancing domestic economic self-interest.” Second, where they are bound by common standards of admission, they want to retain the power to determine the beneficiaries themselves.
We think this skepticism is only half warranted. Regional free movement in the EU and elsewhere shows that many states do – also for reasons of economic self-interest – agree to admit the citizens of other member states and they even agree that they cannot select the beneficiaries, since these are determined by the other member states’ citizenship laws.
We agree, however, that there are few signs that states are ready to waive sovereign immigration control powers for ‘third country nationals’. However, global crises have been incubators of social and political innovations in the past that outlasted the immediate emergency. The creation of the UN system, the coding of international human rights, the emergence of the European Union are all examples of serious self-imposed constraints on state sovereignty born out of exceptional global crises. In retrospect we celebrate the innovators who dared to design then institutions that had seemed completely unrealistic in the preceding period. Why should we not imagine today that the pandemic and the bigger global climate crisis will also provide fertile grounds for challenging and further constraining state sovereignty?
Macklin suggests that if states were willing to pool that much of their sovereignty, bolder moves than ours towards open borders might also be feasible. Yet, we believe it is not a good strategy to present our proposal as a half-way move towards an open-border world. Instead, we take as given that the world consists of independent states that offer vastly unequal opportunities to their citizens and are for that very reason not ready to open their borders indiscriminately. Within this far from ideal world, it has been possible to expand opportunities for free movement in regional unions of states and through the increasing toleration of multiple citizenship. Our proposal is modest rather than utopian in aiming to enhance mobility opportunities also for those who are most disadvantaged by the mobility blockages within the present system and to harness states’ self-interest for such reforms, such as their need for ‘essential migrant workers’ or their desire to promote mobility opportunities for their own nationals. Our hope is that the thoroughly dystopian potential of the global crises of our time will make these suggestions sound much less utopian than they might have seemed even a few years ago.