By Ella Casey, Maria O’Sullivan, Sean Paulding and Abby Zizek
Governments worldwide are adopting an increasingly strict stance towards immigration, particularly in the context of populist government agendas that have created hostile environments for refugees and migrants. In the US and UK, authorities are attempting to deport large numbers of immigrants on the basis that those persons have an unauthorised status. However, many of these people have been resident in those countries for a significant number of years (in some cases, 15-20 years or more). This was clearly illustrated by the recent controversy raised by the UK Government’s attempts to deport the long-standing ‘Windrush Generation’.
The way other countries have dealt with the deportation of long-term residents provides some salient lessons for Australia. This is because of Australia’s use of temporary visas for refugees.
Unlike arrivals by plane, who are eligible for a Permanent Protection Visa (and permanent residency), boat arrivals who are granted refugee status are only entitled to receive either a Temporary Protection Visa (TPV – 3 years) or Safe Haven Enterprise Visa (SHEV – 5 years).
We are focusing on TPVs in particular in this blog because Australia now uses ‘rolling’ TPVs for these refugees. These are ‘rolling’ because they are renewable every three years and cannot be used as a pathway to permanent protection status or permanent residency. This means that such refugees can live in Australia indefinitely but without being given the legal status of permanent residency or citizenship.
We therefore want to highlight some problems which have arisen in other countries to illustrate why the use of ‘rolling TPVs’ in Australia is likely to lead to a number of legal difficulties in the future when attempts are made to deport these persons. We are focusing on a number of case studies from the USA to illustrate some lessons for Australia and propose a way of dealing with these issues at the end of the blog.
Deportation of Long Term residents from the United States
In the US, immigration policies over the past two decades have generally prioritised the deportation of deeply-rooted immigrants without considering their individual circumstances. Although the Obama administration made some attempts to shift this focus, Donald Trump has been determined to solidify anti-immigration rhetoric against immigrants who have become integrated in US society. President Trump has made repeated attempts to undermine two of the key immigration protection policies in the US, including Temporary Protected Status (TPS) and the Deferred Action for Child Arrivals (DACA) programs.
(i) Temporary Protected Status (TPS)
TPS is granted to nationals of specifically designated countries that are facing ongoing armed conflict, environmental disaster, or extraordinary and temporary conditions. TPS is not a grant of permanent legal status and there is no route to permanent residence that follows from the grant. This is despite some TPS holders residing in the US for many years. For example, some TPS holders from Somalia and El Salvador have been in the United States for more than 20 years. TPS beneficiaries receive provisional protection against deportation and may apply for permission to work in the United States for a limited period of time.
What happens to TPS recipients when TPS designation is terminated?
The Homeland Security Secretary must determine whether or not to renew a country’s TPS designation 60 days before the expiration of the TPS period. If it chooses not to renew the designation, former TPS recipients will return to the status they held before receiving TPS, which often means that they become undocumented.
As part of its national push to restrict immigration, the Trump administration has recently declared it will not renew TPS status for El Salvador, Haiti, Nicaragua and Sudan. This will place hundreds of thousands of immigrants under pressure to leave the US, despite residing there for the vast majority of their lives. Further, if a former TPS recipient has a child in the U.S, and that child is a U.S citizen, the family is faced with a difficult choice of whether to leave the child in the country with friends or relatives.
If an undocumented former TPS-recipient elects to stay in the US, they will face the risk of deportation. A White House executive order in January 2017 enhances law enforcement agencies’ powers to pursue the removal of all undocumented immigrants. Those with prior involvement in the criminal justice system and those with prior removal orders are at greater risk of enforcement.
Can TPS recipients adjust to lawful permanent resident status?
A small number of TPS recipients may be able to apply for permanent resident status via sponsorship by a US relative or employer, or by marrying a US citizen. However, US Immigration law provides that non-citizens are generally not permitted to apply for permanent residence unless they had been ‘formally admitted or paroled’ into the U.S. This is problematic because the Department of Homeland Security takes the position that a grant of TPS is not an admission or parole. Further, the requirements of US immigration law means that TPS holders may not be eligible to be granted permanent residency (even if they are sponsored).
Recently, five pieces of draft legislation have been introduced in Congress by both Republican and Democrat lawmakers in an attempt to provide TPS recipients with a path to becoming permanent residents. Although the bills are varied, they have a common requirement: that TPS recipients should be permitted to apply to become citizens within five to six years.
(ii) Deferred Action for Child Arrivals (DACA)
DACA is an immigration policy that allows some individuals who were brought to the United States illegally before turning 16 years old to receive a renewable two-year period of deferred action from deportation and become eligible for a work permit in the US. The policy was not supported by legislation, making it vulnerable to repeal via a subsequent change of policy.
There are a very large number of persons with this status: as of September 2017, there were 689,000 DACA recipients. Renewal of DACA status is determined on a case-by-case basis provided that the DACA person continues to meet eligibility criteria (i.e. continuous residency in the US and compliance with criminal law). While DACA does not provide a path to citizenship, it at the very least provided protection for immigrants who had arrived in the US as children, and took a positive step in assessing renewals on an individual basis.
However, in September 2017, the Trump Administration announced its plan to end the DACA program. This has been the subject of litigation: on 9 January 2018 a federal judge in the US District Court in San Francisco temporarily blocked the Trump administration action, ruling that it had to continue processing DACA renewals while a legal challenge proceeds (the Trump Administration applied to the Supreme Court for a review of this decision, but the Supreme Court declined to hear the appeal). Several bills have since been proposed in Congress to create a path to legal status for DACA recipients, however these are yet to pass. Therefore, their status remains uncertain.
Lessons for Australia and Recommendations
The two American examples discussed above have certain similarities with the situation for those on ‘rolling’ TPVs in Australia. That is, like the TPS and DACA cohort, there is no pathway for those on TPVs in Australia to ever obtain permanent residency or citizenship.
This raises a number of concerns for fairness and certainty of the law. A law which grants only ‘rolling’ temporary visas to a vulnerable immigrant group in society is not a sustainable long-term solution. As illustrated above, persons on renewable visas may live in a host state for many years (perhaps even up to 20 years’ duration). They are likely to socially and legally integrate into the host state – by marrying, making a family, purchasing a house and so on. It is therefore legally complex and difficult to then deport a person who has resided in a country for such a lengthy period of time.
While we acknowledge that there is no recognised ‘right to permanent residency’ in another country, it is arguable that individual circumstances can create a situation of reliance in which immigrants can legitimately expect to be eligible for permanent residency (or at least protection from deportation after a number of years in a country).
Given the context of such decisions, we argue that there should be fairness and certainty in the way the law operates and it should reflect the practicalities of what is happening in society. For the Australian situation, this means that a time limit must be placed on the number of years that a refugee is on a TPV. Further, if deportation proceedings are made against them, the integration links they have made in Australia should be a relevant consideration. In this way, Australian migration law and policy can be fair, certain and avoid the legal difficulties and policy mistakes that have occurred in other comparable jurisdictions.
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