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The astonishing breadth of Trump’s Muslim ban is truly breathtaking

The astonishing breadth of Trump’s Muslim ban is truly breathtaking

Take Trump seriously but not literally, said Peter Thiel, Paypal founder, Gawker litigation financier and prominent Trump supporter. Well, it turns out that Trump meant what he said. Literally. Muslims will be banned, literally. The wall will be built, literally. Mexico will pay for it, literally.

If you doubt the discriminatory intent and think this is about national security or public safety, it isn’t. Former New York City Mayor and Trump supporter Rudy Giuliani has talked in public about being asked by Trump to implement a ban on Muslims but in a “legal” way.

The resulting ban on Muslims took effect by means of an Executive Order signed by President Trump on Friday (full text). The order took effect immediately, affecting even passengers on flights to the US at the moment it was signed. The text of the order had not been released publicly beforehand. It turns out that almost no-one had actually seen it, including US Government lawyers (see also New Yorker piece). To make that crystal clear: there seems to have been no legal input into the text of the order. It is entirely political. It is not really a “law” in the conventional sense at all. It is literally prejudice given written expression.

This shows; as well as being appalling in principle it is appallingly drafted.

There are two main effects:

  1. The suspension of the US refugee resettlement programme, even for refugees who had gone through months of checks by the US Government and were literally in the process of being flown to the US for resettlement.
  2. An immediate temporary ban on entry to the US of non-US citizens “from” seven Muslim countries.

The ban on the entry of refugees is deliberately provocative, cruel and an abdication of the US Government’s international humanitarian responsibilities. Refugees who were en route to their new homes were denied boarding or even detained on arrival in the US and turned back. There is no more really to say about it.

The ban on entry of non US citizens “from” certain countries is truly astounding, through. The critical passage is at section 3(c):

I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order

There are certain limited exceptions and the Secretaries of State and Homeland Security may personally “on a case-by-case basis, and when in the national interest, issue visas or other immigration benefits to nationals of countries for which visas and benefits are otherwise blocked.” The emphasis here seems to be on individual decisions to make exemptions.

The countries directly affected are Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen. The effect of the order is actually much wider, though. The order affects “aliens from” the countries concerned, both “immigrants and non immigrants”. What does this mean? It certainly was not drafted by a lawyer because the meaning is imprecise and open to a variety of interpretations. So far information on the ground suggests that as well as “ordinary” citizens of those countries, the following groups are also affected:

(1)   Dual citizens of the seven countries. British citizen and Somali like Sir Mo Farah? Can’t travel to the US. He lives in the US, you say? He has lived there for several years legally and has long term residence? Well, he now cannot travel outside the US because he will not be able to get back in. What about someone who lives and works in the US but was on holiday (to any country in the world)? Well, they are now stranded abroad and cannot return to their home and their job in the US. They were en route to the US when the order was signed? They were detained on arrival, some seemed to have been expelled and those fortunate enough to have lawyers may eventually have been readmitted.

(2)   Even a former citizen of the seven countries seems to be affected, as they are potentially “from” those countries. British citizen of Iraqi origin like Tory MP Nadhim Zahawi? No longer an Iraqi citizen? Can’t travel to the US. Already live in the US? Well, you get the picture.

(3)   The order could potentially be interpreted even more widely as affecting all travel of non US citizens from the countries concerned, even nationals of other countries with no links to the seven listed countries other than that they happen to be travelling “from” one of those countries to the US. This would effectively stop absolutely all travel to the US from those countries. The order does not seem to have been interpreted this widely. Yet.

(4)   Anyone needing to transit through the US who falls into these groups now cannot do so. Are you an Italian citizen of Iranian origin on way home to UK from holiday but transiting through US? You’ll need to buy new flights and find an alternative route. Which will be very expensive, of course.

(5)   The order also applies to pilots and flight crew. Again, this is likely to close down travel from those countries to the US almost completely.

The breadth of the effects illustrates the inherent problem with discriminating against people purely on the basis of nationality, or any other characteristic for that matter. Using Sir Mo Farah as an example, he is affected just as much as any other person holding Somali citizenship, which is textbook prejudice, is utterly disproportionate and is plain crazy. Of course governments are entitled to conduct extensive security checks on non citizens seeking entry. But to ban anyone at all “from” a country is utterly in violation of common sense as well as all the legal norms we have developed since the Second World War to protect ourselves.

The Canadian Prime Minister, Justin Trudeau, seems to think Canadian citizens have some sort of class or group exemption, but it is hard to see how this is possible given that exceptions need to be made “case by case”. If true, this suggests the order is already basically being ignored or “reinterpreted” on the hoof, which underlines the point that it is a “law” in name only, not in substance. The reality is that it is arbitrary rule.

UK Foreign Secretary Boris Johnson is seeking similar assurances but so far it seems with limited success given that the ban still applies to UK citizens travelling from the seven affected countries.

The Prime Minister, Theresa May, who last week said that the UK and US had “shared values”, has refused to criticise the executive order, saying initially merely it was a matter for the US. Eventually Number 10 stating that if it did affect British citizens then representations would be made.

This is not OK. This is not a time to remain silent. History is being made. History will judge.

Colin Yeo
Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder and editor of the Free Movement immigration law website.

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