Jodie Bougaard, Senior Political Risk Analyst at red24
red24 is a risk management company delivering a range of products and services to businesses, organisations and individuals around the world. Part of these services includes a full suite of travel safety and crisis management services.
This week’s analysis originally ran as a security briefing from red24 and is reproduced with their kind permission.
United States: Trump travel ban
US President Donald Trump issued an executive order on 27 January which, among other things, banned nationals from several Muslim-majority North African and Middle Eastern countries from entering the US for at least 90 days. The order was enacted as a temporary measure, to aid the review of pre-existing visa and immigration vetting procedures. The details of the order are listed below:
- The affected countries include iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen.
- The US Refugee Admissions Program (USRAP) has been suspended for 120 days.
- Syrian refugees have been barred indefinitely, while nationals of the remaining six countries have been banned for 90 days.
- The order calls for a review of the Visa Interview Waiver Program, which allows travellers from 38 countries to renew travel authorisations without an in-person interview.
- Nationals traveling on diplomatic visas, NATO visas, G-1, G-2, G-3, and G-4 visas, and C-2 visas for travel to the UN are exempt from the executive order.
An uncertain order
There has been much confusion regarding the order and to whom the restrictions may apply amid claims that the directive is vague and imprecise. Passport holders from the aforementioned countries have been blocked from passing through customs at US airports, while others have been prevented from boarding US-bound planes or have been detained upon arrival in the US. Various agencies including the Travel Security Administration (TSA), Department of Homeland Security (DHS) and US Customs and Border Protection (CBP) have been operating without clear directives on how to enact the order.
One of the main areas of uncertainty regards green card holders, who are technically permanent legal residents. At first, the order applied to green card holders from the seven countries outlined in the order, without exception. However, on 30 January, following guidance from the US Citizenship and Immigration Services (USCIS), green card holders from those seven countries were advised that a waiver from the agency would be needed to re-enter the US, which would be evaluated on a case-by-case basis.
US embassies in Europe have issued advisories directing dual nationals (from the seven banned countries and European countries) not to apply for visas, which effectively includes them in the executive order. However, British Foreign Secretary Boris Johnson has indicated that British dual citizens will not be affected by the executive order.
The order was also met with legal challenges immediately after its implementation. Numerous judges have granted temporary relief for nationals belonging to the seven countries who are already in US airports or who hold valid visas or green cards. At least four US states, namely New York, Massachusetts, Virginia and Washington, have launched legal challenges against the executive order. Federal lawsuits have been filed against the executive order by the American Civil Liberties Union (ACLU), the Urban Justice Center (UJC) and other organisations seeking a restraining order to stop enforcement of the ban. Furthermore, acting attorney general, Sally Yates, who was appointed during the Obama administration, was reportedly dismissed on 31 January for refusing to enforce and uphold the legal order designed to protect US citizens. Dana Boente has since been appointed in the position and has rescinded Yates’ guidance regarding the executive order.
Widespread criticism of the executive order has manifested in the form of various acts of civil disobedience and large-scale protests. Protesters have been gathering in public squares, in front of prominent government buildings and at airports across the US. Recently affected areas include New York City, Atlanta, Los Angeles, Washington DC, Dallas and Chicago. Large-scale protests have also been reported in cities in Canada and across Europe, most notably in the UK’s capital, London. Protests in opposition to the order and Trump’s planned visit to the country have also occurred. A petition, which has garnered at least 1.65 million signatories, has been circulated to further oppose President Trump’s proposed state visit.
The continued implementation of the executive order is expected to result in further protests in the near-term. Demonstrations have not been marked by significant levels of violence, but have been disruptive, particularly those at airports. Additional security forces have been deployed to these facilities and other sensitive sites as a precaution against unrest. These are expected to remain in place amid the period outlined in the executive order, and possibly beyond it.
Reciprocal banning threat
The governments of the seven countries listed in the executive order are likely to pursue diplomatic counteractions in the face of strained bilateral relations with the US.
The majority of Iraqi lawmakers voted on 30 January to recommend a reciprocal ban; however, the ban is non-binding. Either Iraq’s President, Fouad Massoum, or alternatively Prime Minister Haider al-Abadi, will ultimately be responsible for the passing of the legislation. In addition, on 31 January, Iranian Foreign Ministry spokesperson, Bahram Qassemi, issued a statement that US nationals will no longer be issued Iranian visas; however, US nationals already in possession of valid visas will be exempt from the ban. Further details surrounding the restrictions and the implementation of these reciprocal bans remain unclear.
The Trump administration cites the enforcement of the Immigration and Nationality Act, legislation that regulates immigration to the US, as the basis for the executive order. President Trump further elaborated by stating his duty and obligation to protect American citizens from terrorist attacks.
On 29 January, White House Chief of Staff, Reince Priebus, stated the list of countries whose citizens are barred from entering the country may be expanded upon. Additional countries added to the executive order may include Saudi Arabia, Pakistan, Afghanistan and Egypt.
Furthermore, the review on the Visa Waiver Program, which is outlined in the executive order, may result in travel restrictions or in-person interviews for nationals from 38 countries over the medium-term. Should this occur, it is only likely to be implemented after the initial 90-day ban period has lapsed.
There are a number of ways in which the ban may be nullified, which also constitute the reasons that foreign governments and opposition, advocacy and human rights organisations have vehemently opposed the executive order. These include:
- Constitutionality: If the order is assessed as violating the constitution, courts may prohibit its enforcement. The ‘establishment clause’, which states that ‘one denomination cannot officially be preferred over another’, has been cited as a means of opposing the executive order. The order, called a ‘Muslim ban’ by opponents, is viewed as imposing selective bans on Muslim-majority states and intentionally discriminating on the basis of national origin.
- Legality: The executive order establishes preferential treatment for refugees seeking asylum who are identified as ‘minority religions’ in their country of origin. Opponents have stated that this clause is intended to give priority to Christian asylum seekers.
- Legitimacy: Opponents of the executive order have argued that almost none of the attacks carried out on US soil since the 11 September 2001 attacks have been perpetrated by nationals from the countries listed in the executive order.
- Due process: Detaining or deporting people with valid visas is illegal and a violation of their Fifth Amendment procedural and substantive due process rights.
- Congress: In addition, the executive order may also be overturned by the congress or legislative branch, by passing a law to nullify it. This seems unlikely to occur given that the Republican Party retains a majority of seats in the congress.
In light of the amount of uncertainty surrounding the legality and legitimacy of the executive order, the situation remains fluid and subject to change in the medium- to long-term. The judicial review process may be able to nullify the executive order; however, this process is unlikely to be completed before 90 days. This is because the order does not contravene any existing legislation and is related to matters of national security.
In the short-term, the Trump administration is likely to provide greater clarification regarding the executive order and the implications for travellers and asylum seekers. However, despite widespread criticism and opposition, President Trump is unlikely to rescind the executive order. The order, as well as the initial 90-day and 120-day periods outlined therein, are likely to remain in place for their full duration.
- All affected nationals, green card holders or dual citizens from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen are advised to consult with their local US diplomatic mission and/or legal representatives before attempting travel to the US during the 90- or 120-day period.
- Affected nationals currently abroad who want to travel to the US amid the current ban are advised to contact their nearest US Embassy, relevant airport authority and airline for further guidance and clarity regarding the travel ban.
- Nationals wanting to depart the US with the intention of returning to the country are advised to consult the relevant embassies and to seek legal counsel.
- Businesses with persons in-country or planning to travel to the US are advised to contact their travel provider for further guidance and assistance regarding the travel restrictions. The US diplomatic mission in-country should also be liaised with.
|Like what you read? Sign up here for our free Daily Updates.
We also send out a Weekly K+R Update, bundling together all the kidnap, ransom and extortion news of the week in one easy to read newsletter. (Same form – options at the end.)
Other ways to stay up to date: