LexisNexis

Covid-19: abrupt border closures raise legal issues for expatriates and travellers

Katie KouchakjiWednesday 22 April 2020

Throughout March, many countries closed their borders with little or no warning as a result of the Covid-19 pandemic. This left holidaymakers trapped overseas – and in some cases expatriates, who had lost their jobs and consequently their visas due to the pandemic, were also left stranded.

Tourists around the world were caught by sudden border closures and commercial airlines dropping routes, and were unable to return to their home countries. Some countries, including a host of European Union Member States, New Zealand and Thailand, have automatically extended temporary visas – such as those issued to students or tourists. The governments of both Australia and New Zealand moved quickly to ease restrictions on the hours that student visa holders can work in supermarkets and healthcare, to ensure essential services can still be delivered.

However, in other nations such as the United Kingdom and United States, things are less straightforward.

'They haven’t changed the laws [in the UK] – it’s slightly unsatisfying,’ says Nicolas Rollason, Secretary of the IBA Immigration and Nationality Law Committee and head of Business Immigration at Kingsley Napley. While the UK government has said that temporary visas are being automatically extended until 31 May 2020, people still need to request the extension be applied to them.

It’s a primary responsibility of government to repatriate citizens, but you have to balance that against health risks

Anne O’Donoghue
Co-Chair of the IBA Immigration and Nationality Law Committee

The other big issue, says Rollason, is that these decisions have all been communicated via announcements and are absent any legislation to underpin them. ‘It’s good that they are policy announcements, as they can be flexible, but it also leaves questions and is unsatisfactory,’ he adds.

In the US – which at the end of March took over as the epicentre for the virus in terms of case numbers – there have been no changes or temporary remedies for visa holders, with applicants still expected to file paperwork on time except for in exceptional circumstances. ‘That has been a big source of contention,’ said Greg Siskind, Senior Membership Officer of the IBA Immigration and Nationality Law Committee and a founding partner at Siskind Susser in Tennessee.

Even healthcare workers are having to go through the usual steps, with Siskind stating that there are ‘thousands of nurses’ ready to work as soon as they acquire visas. ‘Congress could do something about this – we know there are discussions about language to fix things for healthcare workers,’ he says. ‘We’ve not had a pro-immigration bill in the US for 15 years – this might be the opportunity for that because there are a lot of Republicans saying they want a fix.’

A growing problem is the status of workers who have lost their jobs owing to the economic downturn the pandemic has caused, and thus have a narrow window of time to either find a new job and sponsor, or have no legal right to remain in the country – yet they have no way to leave.

‘The problem is we don’t have any communications about what we should be doing,’ says Siskind.

US work visas are tightly controlled, with government approval needed for any changes, including salary, hours and work site, explains Siskind. This creates a series of problems during this crisis, ranging from those around furloughing employees to allowing doctors to change their focus to treat Covid-19 patients.

The UK has taken a different approach here, with Rollason pointing to rules relaxing the use of unpaid leave – which is otherwise typically capped at four weeks to preserve status – and also income thresholds, to account for those whose employers have placed them on furlough, at 80 per cent of their pay, rather than terminate their employment outright. This has enabled some employers to rehire staff who they had made redundant and instead place them on furlough, thus preserving their immigration status for the time being. Longer-term questions remain however, such as what happens if, after furlough, an employee is then made redundant.

‘We’re seeking urgent clarification from the Home Office on the furlough scheme, as there are lots of questions,’ Rollason says.

The other piece of the immigration puzzle is travellers who have been stranded due to travel restrictions. There have been calls for governments to help repatriate their citizens, especially given the abrupt cancellation of commercial routes. For those that have been able to find flights, reports say that the prices have been astronomical.

‘I think it’s a primary responsibility of government to repatriate citizens, but you have to balance that against health risks,’ believes Anne O’Donoghue, Co-Chair of the IBA Immigration and Nationality Law Committee, and Managing Director and Principal Lawyer at Sydney-based Immigration Solutions Lawyers.

‘The UK doesn’t actually have an absolute obligation to repatriate its citizens,’ says Rollason. ‘The [Foreign and Commonwealth Office] has been at pains to point out that UK nationals stuck overseas have no legal right to consular assistance… but wants to be seen to be helping at times of emergency.’

‘There is no legal obligation, but perhaps a moral one,’ adds Rollason.

Indeed, governments around the world have been repatriating their citizens more actively in recent weeks – often partnering with commercial airlines – although with varying approaches. In the US, for example, there is no guarantee that the flight will be to one’s final destination and subsequent transport within the country is down to the individual.

Further, typically government-organised flights are from just one location and travellers are expected to make their own way there. This presents a challenge at a time when local transport links are mostly closed.

However, cases where people have gone on holiday despite the outbreak are unfavourably viewed by the public, and the government is loath to help in these situations, says Rollason.

In Australia, despite an 18 March advisory to avoid all non-essential travel, an estimated 16,000 people still went overseas in the two weeks immediately following this date. The country closed its borders to all non-citizens on 20 March and introduced a mandatory 14-day quarantine for citizens at designated facilities upon their return, with calls for those who ignored the advice not to travel to cover their own costs.

‘I don’t think it’s right for taxpayers to foot the bill for their quarantine,’ says O’Donoghue.

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