“If you have a current valid visa to travel, we welcome you. But unregulated, unvetted travel is not a universal privilege.” (US Secretary of Homeland Security John Kelly, March 6, 2017)
Taking his words literally, Secretary Kelly got it half right. But fundamentally, he got it all wrong, in his statement today on the #MuslimBan 2.0 Executive Order signed today by President Trump. (Here’s a redlined comparison with the #MuslimBan 1.0 Executive Order which it replaces.)
Travel by asylum seekers isn’t a universal “privilege”. It’s a universal right.
Much can, and no doubt will, be said about other aspects of today’s Executive Order. Most of our comments on #MuslimBan 1.0 apply equally to #MuslimBan 2.0, which will continue to be enforced (illegally) primarily by airline and travel agency staff at ticket offices and check-in counters at foreign airports.
First, US law and numerous bilateral and multilateral aviation treaties recognize a public right to travel by air, and define and license airlines as “common carriers”. This means (among other things) that airlines are required to transport all passengers willing to pay the fare in their tariff. In the absence of an order by competent authorities with jurisdiction over the location, refusal to sell a ticket or board and transport a ticketed passenger is a violation of an airline’s duties and its operating license. Allowing an airline to refuse passage on its own say-so is a violation of the national government’s duties under those treaties. Speculation by airline “immigration and asylum pre-crime” staff (in practice, civilian ticket sales and check-in staff with no legal competence whatsoever) as to whether a would-be passenger might, on arrival at their intended destination, be able to establish an acceptable asylum claim, or might be deported, is simply irrelevant to the entitlement of the passenger to travel if they are able and willing to pay the fare and to take their chances on deportation at their own expense after they arrive.
Second, the US has no basis for a claim of extra-territorial jurisdiction over foreign-registered aircraft taking off from foreign airports, or their passengers. Except to the extent that foreign governments exercise their sovereignty by authorizing the presence and operation, within limits prescribed by their laws, of US “preclearance” facilities, the US government has no authority to determine who is or isn’t “allowed” to board those flights. US jurisdiction begins when a person, vehicle, vessel, or aircraft enters US territory, territorial waters, or airspace. At that point — even if the aircraft is forced to land at the nearest US airport — the passengers have already traveled to the US (and are entitled to seek asylum), and the issue is whether they will be allowed to remain. The “right to travel” only becomes an issue if either (a) a country such as the US asserts a claim of extra-territorial jurisdiction over passenger boardings and takeoffs by foreign-flag aircraft at foreign airports, or (b) an airline disregards its duty as a common carrier, and claims extra-judicial authority for its staff to act as immigration and asylum judges, guess which passengers they think the government of a destination will or will not admit or deport on arrival, and restrict boarding on the basis of those guesses (as many airlines illegally do, and as many governments including the US illegally encourage and incentivize them to do through financial “carrier sanctions” in the form of civil penalties).
Third, the right of refugees in particular to travel and to enter other countries for the purpose of seeking asylum is recognized by international human rights treaties to which the US is a party: the 1951 Geneva Convention Relating to the Status of Refugees (Articles 26-28 and 31), the 1967 Protocol expanding the scope of applicability of the Convention, and the Schedule of rules for refugee travel documents incorporated by reference in Article 28 of the Convention. Case law interpreting this body of treaty law makes clear that refugees cannot legally be required to have identity or travel documents as a precondition of travel to a country of potential asylum, and cannot legally be punished for failure to comply with document or other travel requirements.
Fourth, despite Secretary Kelly’s disingenuous claim that, “If you have a current valid visa to travel, we welcome you,” there is no such thing as a “valid visa to travel” to the US as an asylum seeker. As the Secretary of Homeland Security and his legal advisors should know, a person can apply for asylum only after they arrive and while they are physically present in the US. There is no US “asylum seeker visa” and no procedure that would permit lawful adjudication of an asylum claim in advance of arrival in the US. In practice, as noted above, life-and-death asylum claims are “adjudicated” in advance, but on an extra-judicial, unlawful, and unreviewable basis by airline ticket sales and check-in staff in foreign countries who act as de facto immigration and asylum judges of first and last resort. Restriction of asylum claims to holders of valid visas (which could only be issued if they have some basis for admissibility other than their potential asylum claim) would amount to a ban on admission to the US of asylum seekers other than those who have first made it to Canada or Mexico, and enter the US by land.