Why special passports are not enough. Mobility rights may be similar, but protection claims are different
Valeria Ottonelli (University of Genova) and Tiziana Torresi (University of Adelaide
Jelena Džankić and Rainer Bauböck suggest creating special passports to facilitate the mobility of specific vulnerable groups of migrants. Their proposal responds to a crucial insight, which so far has been insufficiently theorised in the normative debate on international mobility. Citizenship rights include and entail mobility rights that are enormously valuable, independently of all the other rights and privileges usually attached to the status of citizen. Moreover, there are many 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 other words, often people on the move do not need (or want) citizenship in the receiving state, but need—sometimes desperately, as a matter of survival—the mobility rights they would enjoy if they were citizens of that state.
This crucial point is often neglected in the current normative theory of migration, which tends to assume that movements are meant to be permanent, and even more importantly tends to see citizenship as an indissoluble and inseparable bundle of rights which cannot be disaggregated, so that a regime of free mobility must necessarily come with some form of citizenship.
Both assumptions are unwarranted. In their discussion, Džankić and Bauböck point to various typologies of migrants who need mobility rights without also requiring the whole set of rights normally associated to citizenship. A typical example, to which we have drawn attention in our previous work, is constituted by temporary migrant workers. Although in many cases temporary migration aims or eventually leads to permanent settlement, there are many other cases in which migrants intend to return home after a period of work or training abroad. In these cases, one of the most important rights they need is 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.
Temporary migrants’ need for mobility
A striking illustration of the importance and the effects of these mobility rights is represented by the case of temporary migration across the Mexico-US border. Massey, Durand and Pren (2016) show that the introduction of a stricter regime of immigration controls since 1986 has led to an increase in the number of the undocumented Mexicans who settled permanently in the US, and a corresponding fall in returns. In the same years, returns and temporary forms of migration increased for documented migrants and those who had achieved citizenship status or permanent residence in the US. This is an apparently paradoxical result: evidently, acquiring citizen status in the destination country is what enabled migrants to return home. The apparent paradox is easily explained away once we consider that along with citizenship or permanent residence in the destination country also come mobility rights that allow for the freedom to travel back and forth at one’s convenience, without the need to acquire special visas. This gives migrants the ability to pay frequent visits to their families and communities back home, keep alive their ties to their place of origin, plan their return at the most appropriate time and also, very importantly, decide to return back home with the confidence that the option to travel again or to visit their former destination country at their convenience will always be open to them. In contrast, those who overstay their temporary visa and irregular migrants do not have that option. They know that if they return home, either for a short visit or for good, they will not be able to re-enter the host state, or will be able to do so only at enormous costs and risks. This creates a “caging” effect that traps within the borders of the host state migrants who would otherwise engage in temporary and circular forms of migration.
The case of the US-Mexico border, and more in general of temporary labour migration, is just an example among many others where mobility rights, which are so important in the lives of migrants, could be completely detached from full citizenship in the destination country. Another salient case mentioned by Džankić and Bauböck is that of climate refugees who need temporary resettlement in a foreign country, and more generally displaced people who need to cross international borders. In these circumstances mobility rights are not instrumental to permanent settlement and full membership in the receiving society but are instead useful precisely to facilitate return or further mobility. Džankić and Bauböck’s proposal to establish a passport that allows mobility rights without conferring citizenship responds to this fundamental insight.
Limitations of the Nansen passport system
However, while we share Džankić and Bauböck’s advocacy of a more liberal regime of mobility rights detached from citizenship and tailored on the needs of specific groups of vulnerable migrants, we are unsure that the best way to provide such mobility rights should be simply through the institution of a special passport.
Džankić and Bauböck point to the Nansen passport as a close historic prototype of the kind of passport they have in mind. Looking at the Nansen passport, the circumstances in which it was created and the goals it was meant to achieve may help us to focus on the reasons why under the present circumstances establishing a new special kind of passport may not be sufficient.
The Nansen passport was originally created to provide an identification document to stateless people, or people who had de facto lost their citizenship and with that the means to have their identity certified by their state of origin. The need for this form of identification had become vital after WWI, because during the war everywhere in the Western world the practice to require passports as a necessary condition for travelling had been revived, after a period of liberalisation of free movement at the local and international level (Torpey 2000). Moreover, in the same period states had become the only source of production of passports, and passports had come to be tied to citizenship of the state. Stateless people, then, were automatically deprived not only of citizenship, but also of a necessary condition for enjoying mobility rights.
It is important to note, though, that the Nansen passport, by itself, did not guarantee free mobility (Aleinikoff 2018). As it was remarked by a commentator a few years after its introduction, without the issue of a visa or an agreement to admit its bearers without a visa, the Nansen passport was “often useless” (Reale 1931:507). This is to say that although a passport was, and is, often a necessary condition for international free movement, whenever a visa is required having a passport is not sufficient to travel freely from country to country.
Still, the Nansen passport succeeded in facilitating the movement of high numbers of refugees and stateless people to countries willing to accept them. One of its main purposes was to provide them with the possibility to travel to countries where they could join the workforce and be able to sustain themselves. In a way, thus, the passport gave stateless people the chance to become immigrant workers (Long 2013). However, given their status of non-citizens, bearers of the Nansen passport were guaranteed none of the welfare and employment protections enjoyed by the citizens of the receiving state (White 2017).
Today, mobility rights come with protection claims
Today’s situation is of course very different to the one that saw the institution of the Nansen passport. What has critically changed in the meantime are the background international political conditions and the political and social conformation of states.
States today offer to their citizens, and by and large their permanent residents as well, a whole constellation of social, economic and political rights which were not guaranteed to citizens in the past. Destination states in the global North have developed, in other words, a welfare system of rights and entitlements that guarantees a modicum of protection to all members of the political community. This has two notable impacts on policies of entry and mobility. First, it makes inclusion more expensive for states and, second and relatedly, it makes denying rights to individuals present within the territory more problematic. States seek to control their membership very tightly partly because they find it difficult to avoid extending rights and protections to all present within their territory for long periods of time. The presence within liberal democracies of groups of people who do not enjoy welfare protections is impermissible from a normative standpoint and consequently, also politically unfeasible. This is demonstrated in the controversy surrounding temporary migration programmes, and in the difficulty states often experience in removing people they admitted temporarily once they are in the community. Presence within the state’s territory normatively grounds a claim to protection which is also politically recognised as such by significant parts of the population, and also recognised by people who oppose further immigration on the basis of the costs associated to such recognition of rights.
Thus, it is hard to imagine that the kind of policy suggested by Džankić and Bauböck could be politically feasible, as it is likely that it would generate similar reactions. The categories of people that Džankić and Bauböck discuss in their opening contribution, such as temporary migrants or climate refugees, do not necessarily and only comprise people lacking citizenship and identification papers – although, of course, missing or lost identification papers may be the result of some of the conditions they find themselves in. Their plight is not generally a lack of political membership such as that suffered by the stateless people the Nansen passport was primarily conceived to address. Given this, and the changed political and social conditions, it is unlikely that states could bring in guests, without also bringing in people to whom rights are owed. As Torpey reminds us, with guest worker programmes “we wanted workers, but got people”; similarly, the kind of policy suggested by Džankić and Bauböck gives rise to the question of what rights and protections would be owed to the policy recipients.
The central point here is that mobility rights, as important as they are, by themselves cannot be considered sufficient in meeting the needs of the migrants concerned. Of course, they are certainly better than nothing. For people stuck in very dangerous, precarious conditions the possibility to move, even if not associated to other rights, is obviously precious. But the fact that mobility rights are better than nothing and valuable to the person concerned does not mean that it is acceptable, normatively, to limit entitlements to sheer mobility rights without some other protections and provisions once the migrants are in the receiving country, nor that such a proposal would be politically feasible. Failing to provide such protections would mean engendering for people who exercise their mobility right a condition of extreme vulnerability, and this may follow from an already difficult situation the migrants are leaving behind. Many of the people belonging to the categories Džankić and Bauböck refer to will have been subject to extreme deprivation and trauma to start with and would therefore be in particular need of protection in the receiving country. Affording rights and protections does not, however, mean necessarily giving access to citizenship. As we have argued, Džankić and Bauböck are correct in claiming that the two can be separated. The point remains, however, that some rights and protections must be accorded to migrants present within the territory of the receiving state beyond mere mobility rights.
Coupling mobility with differentiated entitlements
In sum, we endorse the idea of creating a freer regime of mobility for certain groups of people for which migration serves vital goals, but who do not necessarily need citizenship in the receiving state. To that purpose, it could make sense to establish a new kind of undifferentiated passport to cover the mobility needs of all these diverse categories of migrants, given that mobility rights, per se, constitute a more or less unvaried set of rights. Moreover, it would be optimal not to tie this passport to any purpose-specific type of visa with a short and pre-determined time frame. The case of temporary migrants from Mexico illustrates how short-term and purpose-specific temporary visas may in fact hinder return and the kind of mobility that migrants really need.
However, we insist that the proposed regime must also include some substantive and effective rights and protections to migrants in addition to mobility rights. Such rights and protections should be available to migrants after they have entered the receiving state. We are not suggesting here, therefore, the institution or extension of special visa categories or temporary migration programmes similar to current provisions, but rather the institution of special protections within the architecture of rights guaranteed in the receiving state. It seems necessary that such a rights regime be differentiated on the basis of the needs and intentions of different categories of migrants, the recipients’ specific conditions, their needs and vulnerabilities as well as their migratory projects. There are very significant differences both between and within the groups of migrants that Džankić and Bauböck mention. For example, temporary labour migrants and climate refugees will have different needs, specific vulnerabilities and intentions. Temporary labour migrants will most urgently need protection in the labour market, such as all the rights necessary at preventing exploitation. In the case of climate migrants, needs may be different, and may also vary depending on whether their stay is intended to be temporary, whether return is possible, and on how long their stay is likely to be, even when temporary. Moreover, in the case where return is not possible, rights will be needed that aim at integration and permanent settlement. In both categories, where return is desired and possible, the regime of rights they will need ought instead to be one aimed at return and different from what is needed to facilitate access to citizenship.
But even within the same category, the populations discussed will not necessarily be homogenous. Climate refugees, like refugees and displaced people, will have among them not just young persons, about whom it is imaginable that, if granted mobility rights, they would be able to pay their way in the receiving country, but increasingly also very vulnerable individuals. These populations include today older men and women, individuals who survived trauma and, also, unaccompanied minors, all of whom may find survival in the receiving country very hard without appropriate, substantive protections. Moreover, even in the case of vulnerable people who move with their family who can provide for their material support through independent work, there remains the question of what other specific rights they ought to have. For example, what kind of educational provisions will be available to minors? What degree of access to health care should they receive? Similar questions can be raised in relation to other welfare provisions, such as pensions.
Therefore, it seems that what is required here to address the needs of the groups Džankić and Bauböck discuss is not simply a passport that guarantees mobility rights, nor a generic set of catchall protections, but rather a regime of special and differentiated rights that fit the specific condition of each group considered.