Australians Exiled in India: Marooned or Banished?
Due Process
With Michael Krakat
Legal Scholar Michael B. Krakat observes investment migration through the lens of international, constitutional, and administrative law.
The Bubonic Plague (or ‘Black Death’) killed 20 million in 14th century Europe, with Venice imposing on all incoming ships and persons a 40-day (the ‘quarantinario’ period) of waiting time in hospital quarantine on an offshore island.
At any rate, while there were local measures, there were no complete border closures. The idea of putting the possibly sick in quarantine goes back to the ancient texts: The book of Leviticus refers to the quarantine of lepers. Throughout history, the sick have been exiled within their country (such as the US typhoid quarantine camps of 1892), but not outright banished from it.
Likewise, the cost and consequences of quarantining one’s citizens are not usually imposed on third states.
A de-facto, temporary exile for Australians in India
Today, there are at least 36,000 Australian citizens stranded globally, a number that includes only those who have registered for government help to fly home. Prior to the pandemic, an estimated one million Australians lived overseas. Australia was one of the first nations to close its borders, in March 2020, barring arrivals except returning nationals, residents, and people granted exemptions (including celebrities or sports stars).
Since October 2020, Australia has also allowed travelers from New Zealand. All arrivals are forced to undertake and personally fund a two-week hotel quarantine. Also, citizens wishing to leave Australia must obtain permission to do so: The right to leave is now subject to, for example, showing that you’ll be away for at least 3 months. There are temporary travel caps, and about 7,000 people are allowed back into Australia a week. The authorities may change this number at any time. In January, they halved it due to the global virus mutations and local community outbreaks.
Some 9,000 Australians are currently stranded in India. The world’s second-most populous nation contends with a surge in COVID-19 cases and deaths. In a controversial and problematic move, let alone from a point of citizenship theory, the Australian government has imposed a de-facto exile on its citizens in India, who are not allowed home.
Australian residents and citizens who have been in India within 14 days of the date they plan to return home will be banned from entering Australia as of Monday May 3rd 2021. The temporary emergency determination, issued late on Friday, is the first time Australia has made it a criminal offense for its citizens to return home. Those who disobey may face fines and jail – punishable by five years in prison or a A$66,000 (US$51,000) fine. It remains to be seen if Canberra will extend this logic to other places and groups.
“The government does not make these decisions lightly,” Australian Minister for Health Gregory Hunt said when announcing the measures. He emphasized, however, that the integrity of the Australian public health and quarantine systems are to be protected and the number of COVID-19 cases in quarantine facilities must be reduced to a manageable level. Further, the government will reconsider the restrictions on May 15th, 2021. Human Rights Watch’s Australia director, Elaine Pearson stated that “[t]his is an outrageous response. Australians have a right of return to their own country.”
Article 9 of the Universal Declaration of Human Rights states that “No one shall be subjected to arbitrary arrest, detention or exile.”
It is doubtful that banning Indian-Australians from returning home is indeed something akin to ‘exile’ at all, as any act of actively exiling or punitive or political reasons may be missing. Likewise, the move may not at all be arbitrary. The ban could well be justified at least as to the letter of the law. Even banishment is unlikely where there is no active sending away of someone from a country. However, that does not make the move by a state to impose a return ban on its own member any less problematic.
The fine print of the social contract
This example may show that citizenship is not an absolute individual right but, if anything, subject to the collective social contract. Based on the notion of service to the collective general good, inroads into the individual rights approach of citizenship (including the purchase of citizenship in CBI mechanisms) may be justified. In a risk of harm assessment, individual cases are weighed against the collective polity/all other citizens. The ban on citizens returning from India may be justifiable under the current spirit of emergency of the pandemic.
Measures such as this are in need of a clear sunset clause, which the government has arguably provided by promising a reconsideration on May 15th. These measures are limitations to rights subject to exceptions. It appears that the above measures are to protect the health system from overload and to safeguard the existing population. Polls show that Australians at home support keeping the borders shut.
Generally, as the pandemic still poses an emergency, Australia appears to here evoke the floodgate argument and utilitarian weighing of internal safety vs. its obligations to those citizens currently outside the polity. It is not clear, but possible, that the government could have extended the quarantine system by adding further facilities instead of reducing the number of plane arrivals allowed to come in each week or imposing blanket bans.
Imposed exile, even if temporary, may have repercussions for the individual or the exiled group and their perception of the social contract. Citizenship is not only a legal status you can switch on and off subject to the bordered paradigm. Beyond the doubtful legal aspects of this exercise, we should remember that, to most people, citizenship is not merely a legal or a commercial link, but something they associate with the social contract; an obligation to solidarity and burden-sharing, as well as an identity coming with a moral code.
At law, however, citizenship is only that what it is actually stipulated for. In other words, citizenship rules may demand language or cultural tests, naturalization or exemptions (CBI), but the law cannot ensure solidarity, belonging, a moral code or (meaningful) political participation, which are all aspects virtually rendered redundant at law and spheres that are often, but wrongfully, conflated with citizenship’s legal lens.
In its legal dimension, citizenship is not a moral code or political value statement, but only that what it is actually stipulated for. In other words, while citizenship rules may demand language or cultural tests, naturalization or exemptions (CBI), the law cannot ensure solidarity, belonging, a moral code or (meaningful) political participation, which are all aspects virtually rendered redundant at law and spheres that are often, but wrongfully, conflated with citizenship’s legal lens. Citizenship at law can act as a mechanism that pertains to the bordered paradigm, and enforce decisions of the community over the individual, including inroads into that individual’s rights.
Which country is responsible for the dual citizen?
It is not clear whether Australia could make and successfully rely on the (at any rate very likely flawed) argument that its citizens currently in India may be dual- or multiple citizens, so that their other home country, India, should look after them and shoulder the cost to do so. Such a line of argumentation may diminish the status of citizenship itself, leading to fragmentation of citizenship into class citizenship, with dual citizens – in effect – holding a lesser version of the same citizenship.
At the same time, where there are dual citizens, responsibility by proximity may indeed require that India attend to its own citizens currently in India. But that, again, at any rate, may not take away anything of a country’s responsibility to allow its citizens to return.
While Australia permits “citizenship of two or more countries”, provided this is legal according to all the relevant parties, India does not in principle recognize plural (dual- or multiple) citizenships. India would expect renunciation of Indian citizenship by anyone asserting Australian or other citizenship.
However, even in India, a certain type of “dual citizenship” does exist: Based on the recommendations of the High-Level Committee on the Indian Diaspora, the Government of India decided to create and grant Overseas Citizenship of India (OCI). OCI is a form of residency and is not to be misconstrued to function as immediate dual citizenship. A person registered as OCI is eligible to apply for a grant of Indian citizenship under section 5(1) (g) of the Citizenship Act 1955 if they are registered as OCI for five years and have been residing in India for one year out of five years before making the application.
At any rate, while on OCI status, card holders retain only some of the rights of Indian citizens, including the right to live and work in India permanently. Persons of Indian Origin (PIOs) who migrated from India and acquired citizenship of a foreign country other than Pakistan and Bangladesh, are eligible for grant of OCI as long as their home countries allow dual citizenship in some form or other under their local laws.
Persons registered as OCI have no right to vote, to run for election to Lok Sabha/Rajya Sabha/Legislative Assembly/Council, nor to hold Constitutional posts such as President, Vice President, or Judge of Supreme Court/High Court, etc. Registered OCIs are entitled to the following benefits:
- Multiple-entry, multi-purpose life-long visa to visit India;
- Exemption from reporting to Police authorities for any length of stay in India; and
- Parity with NRIs in financial, economic, and educational fields except in the acquisition of agricultural or plantation properties.
Further benefits to OCIs, if any, will be notified by the Ministry of Overseas Indian Affairs (MOIA) under section 7B (1) of the Citizenship Act, 1955.
Again, OCI status alone is no Indian citizenship, with civic responsibilities missing, such as the right to vote.
It is not clear whether the stranded are in fact OCI cardholders. More information would be needed here. However, this question may not make much difference: Neither OCI nor dual citizenship are likely to affect Australia’s responsibilities toward its citizens.
The take-away from this situation may be in case that CBI systems of passport plurality pose at least one resolution and alternative to this current situation: By holding another option beyond the Australian passport, Australians in India could make use of CBI strategic diversification and, in other words, allow the escape from both risk to health in India as well as from politically imposed restrictions in Australia.
Michael B. Krakat is a lecturer and coordinator for comparative Public law – International, Constitutional and Administrative Law – at the University of the South Pacific at Vanuatu and Fiji campuses. Michael is also a researcher at Bond University – Queensland – and Solicitor at the Queensland Supreme- and the High Court of Australia. He also is an academic member of the Investment Migration Council. He can be contacted at michael.krakat@usp.ac.fj.