Golden Passports

'Escaping the Exchange of Information: Tax Evasion via Citizenship-by-Investment' by Dominika Langenmayr and Lennard Zyska (CESifo Working Papers, 2021) comments 

 Over the last decade, the OECD and G20 countries launched various initiatives to promote international tax transparency. In the wake of these activities, countries have signed more than 3000 bilateral tax information exchange treaties; more than 100 countries have committed to automatic exchange of tax information. The exchange of tax information between countries has become the main policy instrument to enforce the taxation of capital income across borders. 

Several recent papers show that while tax information exchange decreases offshore tax evasion at the bilateral level, a large share of tax evaders does not repatriate their funds, but instead finds other ways to hide their money (see e.g. Johannesen and Zucman, 2014; Miethe and Menkhoff, 2019). However, previous literature did not identify how tax evaders circumvent tax information exchange. Our paper fills this gap by suggesting that one such strategy is the use of citizenship-by-investment programs. 

Citizenship-by-investment (CBI) programs offer citizenship rights in return for a financial investment in the country or for a donation as low as US$100,000. If a tax evader uses the acquired citizenship to open a bank account in a tax haven, the tax haven will exchange tax information with the country of acquired citizenship, not the true country of (tax) residency. Thus, CBI programs enable tax evaders to escape tax information exchange. 

We first illustrate the interplay between tax information exchange and citizenship- by-investment programs in an analytical model. The model frames tax evasion as a rational decision. Individuals can evade taxes by transferring money to a tax haven. The risk that the home country detects this tax evasion depends on whether the tax haven exchanges tax information with it, and on whether the individual has acquired a foreign citizenship. We model the agreement to exchange tax information as a Nash bargain between the individual’s home country and the tax haven. We show that high- income individuals evade taxes and the richest evaders acquire a new citizenship to lower the detection probability when evading taxes. The existence of CBI programs has two effects on tax evasion: First, these programs decrease individual detection probabilities (and thus, from the high-tax country’s point of view, expected fines). Second, they make it less likely that countries exchange tax information, as part of the potential revenue gain from information exchange is siphoned off by the CBI country. 

We then provide indirect empirical evidence that CBI programs are indeed (mis)used to circumvent tax information exchange. To do so, we use bilateral, quarterly information on cross-border bank deposits provided by the Bank for International Settlements (BIS). Consider the example of a German who acquires Dominican citizenship for US$100,000 and uses her new passport to open a bank account in Switzerland. With the new citizenship, her deposits in Switzerland will appear in the BIS data as a deposit from Dominica (instead of Germany), even though she continues to live in Germany and is still tax resident in Germany. We thus expect that the deposits in tax havens originating from countries offering CBI programs increase after such programs have been installed. Using regressions with country-pair fixed effects and an event study approach, we find that tax haven deposits from CBI countries increase by about half after the introduction of CBI programs, compared to deposits from countries not offering CBI. Our results are robust to using a large number of country-level control variables and different samples. We find no effect for residency-by-investment programs, potentially because they are less suited to circumvent tax information exchange. 

Our paper adds to two strands of literature. First, it contributes to the literature on individual tax evasion (see Sandmo, 2005; Slemrod, 2007; Alm, 2012, for reviews). Recently, several papers in this literature have evaluated the success of tax information exchange as an instrument to fight offshore tax evasion. TIEAs (Johannesen and Zucman, 2014; Hanlon et al., 2015; Heckemeyer and Hemmerich, 2020; Ahrens and Bothner, 2020), the EU Savings Directive (Johannesen, 2014; Caruana-Galizia and Caruana-Galizia, 2016), the U.S. Foreign Account Tax Compliance Act (FATCA, De Simone et al., 2020), and the OECD’s Common Reporting Standard (Miethe and Menkhoff, 2019; Casi et al., 2020) all decreased offshore tax evasion at the bilateral level. However, several of these studies have found that many tax evaders did not repatriate their funds, but relocated the money to other, non-compliant countries (Johannesen, 2014; Johannesen and Zucman, 2014; Casi et al., 2020) or invested in alternative assets not subject to reporting, such as residential real estate and artwork (De Simone et al., 2020). Overall, there is no evidence that information exchange led to a transition to legality. Our paper contributes to this literature by pointing out a novel way in which tax evaders can circumvent information exchange. 

Closest to our paper, Ahrens et al. (2021) analyze whether tax evaders engage in regulatory arbitrage to circumvent tax information exchange from a political science perspective. They study citizenship- and residency-by-investment programs as well as anonymous trusts and shell corporations as options for such regulatory arbitrage. In contrast to our paper, they find little evidence that CBI programs are used to circumvent tax information exchange. The fundamental difference in the results can be explained by several factors: First, Ahrens et al. (2021) look at over forty citizenship-and residency-by-investment programs together, while we focus on a subset of “high- risk” CBI programs defined by the OECD. Second, they use a smaller sample, focussing on investments in twelve major financial markets, while we focus on investments in tax havens. Thus, while the overall topic is similar, our paper is more narrowly focused on the use of CBI for offshore tax evasion and reaches rather different conclusions. 

As a second contribution, our paper also adds to the small literature studying the economic implications of CBI programs. Xu et al. (2015) discusses recent developments and implications of such programs for the real economy, i.e. risks to macroeconomic and financial stability for the mostly small countries offering such programs. Konrad and Rees (2020) focus on CBI programs in the European Union. Because of free movement in the EU, these programs automatically give a right to settle in any country within the EU. The authors argue that individual EU countries sell their citizenship at prices lower than what would be optimal from an EU perspective, as they do not consider the effect of their CBI programs on other European countries. Parker (2017) points out that such a conflict is inherent in the idea of ‘post-national’ citizenship championed by the EU. Our analytical model argues that the proliferation of tax information exchange made it attractive to offer CBI for tax reasons, and points out that individuals acquiring citizenship do not necessarily relocate to their new country. This idea complements the literature above, which mostly focused on the implications of people relocating after acquiring the new citizenship. 

Section 2 provides some background information on tax information exchange and citizenship-by-investment programs, and Section 3 illustrates their interplay in a simple model. Section 4 presents the empirical setting, including some descriptive evidence. Section 5 discusses the results, and Section 6 concludes.

A study of Vanuatu is noted here. 

The new OCCRP 'Passports of the Caribbean' report notes that Dominica, with a population of around 70,000, appears to have sold upwards of 7,700 passports since 2007.

Visas

'Assessing Refugee Protection Claims at Australian Airports: The Gap Between Law, Policy and Practice' by Regina Jefferies, Daniel Ghezelbash and Asher Hirsch in (2020) 44(1) Melbourne University Law Review comments

Australia’s current approach to processing individuals who arrive by air and raise protection claims at or before immigration clearance at Australian airports has not been previously explored. This article reveals a set of policy and procedural instructions, recently released by the Department of Home Affairs (DHA) under the Freedom of Information Act 1982 (Cth), which establishes the administrative process of ‘entry screening’. The article examines entry screening within the transnational framework governing Australia’s legal obligations towards individuals seeking international protection. While much scholarly and public attention has been directed towards policies such as offshore detention and interdiction at sea, the documents reveal that policies designed to deter ‘unauthorised mar time arrivals’ have similar manifestations — and consequences — for ‘unauthorised air arrivals’. The article then turns to an analysis of domestic law, arguing that the Migration Act 1958 (Cth) does not authorise the entry screening procedures and that the procedures contradict certain statutory guarantees and procedural fairness. The documents further indicate that DHA lacks accurate data on protection claims made in Australian airports. Finally, the article examines why the current practice of entry screening violates Australia’s international legal obligations of non-refoulement and non-penalisation. 

Despite playing a key role in the development of the post-World War II international refugee law framework, in recent years Australian practice has openly challenged well-settled international legal norms through the use of policies meant to deter individuals from seeking protection in Australia. While much scholarly and public attention has been directed towards the Australian government’s attempts to create zones free of legal protections and judicial review through the use of externalisation policies such as offshore detention and interdiction at sea — essentially leveraging physical spaces away from the Australian mainland to effect policy objectives — information recently released by the De- partment of Home Affairs (‘DHA’) in response to requests under the Freedom of Information Act 1982 (Cth) (‘FOI Act’) reveals the creation and maintenance of similar zones on the Australian mainland. 

A number of recent media reports concerning people seeking asylum at Australian airports demonstrate Australia’s approach to people seeking asylum by air. In February 2019, an Australian Broadcasting Corporation (‘ABC’) investigation found evidence that the Australian Border Force (‘ABF’) had turned back at least two young Saudi Arabian women at Sydney Airport after the women requested asylum. The ABC reported that one of the women, called Amal, arrived at Sydney Airport in November 2017 when ABF officials became suspicious that she intended to request asylum. After informing Amal that she would not be allowed to enter Australia, Amal made clear her intention to claim asylum to officials, which the ABF apparently denied. Amal was then transferred to an immigration detention centre, where she was not offered a lawyer, before being removed to South Korea (where she had boarded her flight to Australia). 

In November of the same year, the Guardian Australia reported that two gay journalists from Saudi Arabia had been detained after seeking asylum at an Australian airport. The men fled Saudi Arabia, where homosexuality is illegal and punishable by death, after being outed as gay by Saudi state security. According to their Australian lawyer, the men had already cleared passport control on valid tourist visas before ABF officials in customs inspected their bags and phones and asked if they intended to apply for asylum. When the men indicated that they did intend to apply for asylum they were detained. They were released from detention on bridging visas in December 2019. These incidents do not appear to be isolated, though the DHA does not keep accurate data regarding the number of individuals who have raised protection claims at Australian airports. 

The transnational framework governing Australia’s legal obligations towards individuals seeking international protection, like Amal and the men discussed above, consists of a complex web of legal sources including international law, domestic legislation, judicial decisions, administrative law, and executive power. International law provides the footing upon which the Australian domestic protection framework rests, however imperfectly. Australia’s ability to act is underpinned by the international legal norm of non-refoulement, which prohibits the return or removal of an individual to a place where they risk persecution or other serious harm, as well as by rule of law principles such as procedural fairness. While reflected in international treaties, the principle of non-refoulement also forms part of customary international law, and Australian domestic law. Yet successive federal governments have taken explicit steps to weaken the application of the obligation of non-refoulement, in part by framing full and effective implementation of the obligation as being at odds with state sovereignty. 

Whether the Saudi cases represent a small segment of individuals removed from Australia after seeking asylum, or whether their stories form part of a larger pattern of behaviour is not known. The DHA has confirmed that although ‘referrals for persons seeking to engage Australia’s protection claims are in fact recorded’, the DHA’s record keeping procedures render it impossible to determine ‘the total number of persons raising protection claims at Australia’s borders.’ Until recently, little conclusive information was publicly available regarding the current entry screening procedures for individuals seeking protection at airports on the Australian mainland. This article brings those procedures to light, while analysing their domestic and international legal implications. 

Part II of this article examines the entry screening procedures for individuals who seek protection before, or during, immigration clearance at an Australian airport. This Part defines key terms and explores the content and operation of the policy guidance and procedural instructions. This article does not address the procedures for individuals who seek protection after passing through immigration clearance, as those claims are subject to a different process. Part II concludes with an examination of the claimed statutory basis for the policy, as well as the legal protection framework within which the entry screening procedures are meant to operate. Part III then turns to an analysis of the various domestic legal and practical issues implicated by the entry screening process, as well as potential bases for challenging the policy and procedures. This Part explores the right to access to counsel and the right to visa application forms where a non-citizen is detained, as well as the lack of review of entry screening decisions, the validity of the entry screening process under the Migration Act 1958 (Cth) (‘Migration Act’) and the practical considerations that impede an individual’s ability to raise these claims while detained at an airport. 

Part IV examines the international law implications of the entry screening procedures, including the interplay between the entry screening procedures and the obligation of non-refoulement as contained in various international refugee law and human rights treaties, as well as the prohibition on state penalisation of refugees and asylum seekers on account of their illegal entry or presence under international law. This Part seeks to initiate a deeper exploration of the international law implications of a policy that has not previously been the subject of scholarly consideration. Part V concludes that the entry screening procedures may be inconsistent with both domestic and international law. 

As vividly demonstrated in the two Saudi cases, the entry screening procedures go beyond a simple inquiry into whether an individual is seeking protection. Rather, entry screening enables discretionary decision-making as to the strength and validity of a protection claim in a procedure lacking transparency and largely shielded from judicial review.

Passports and Standardisation

'Standardizing Movements: The International Passport Conferences of the 1920s' by  Sara Kalm comments 

The First World War is usually conceived as a turning point in the history of migration policy. Before the war, borders were largely open, passports were in most places abolished, and the movement of people as well as capital and traded goods was understood through an optimistic and liberal institutionalist lens. At the outbreak of the war, states reinstated passport controls, presumably as a temporary measure, but they were never again dismantled. In this paper, I suggest that in order to comprehend this general norm change, it is useful to approach these developments in a piecemeal manner to uncover changes in governmental thought and practice. The focus is the International Passport Conferences, that were organized by the League of Nations in the 1920s, and which laid the groundwork for the modern passport regime. The argument is that the work of these conferences can be aptly analyzed as a process of standardization –a technology of government which was widespread at the time, that has particular characteristics as concerns forms of governing, the status of knowledge and the construction of identities. Among other things, this approach allows us to detect linkages to international technical standardization, and to states domestic attempts at homogenizing and making legible their own populations.

Kalm argues 

The First World War is often understood as a turning point in the history of migration controls. Before the war, movement was largely unregulated and most states had since a few decades abolished passports and exit restrictions. With the outbreak of the war, states reinstated controls, both in order to control the inflow of possibly dangerous individuals, and to prevent the outflow of potential soldiers. Controls were never dismantled after the war, but instead came to be seen as a legitimate and indeed necessary element of international relations. The contemporary Italian diplomat Egidio Reale explained in 1931 that the passport question had been “entirely settled” in the early 20th century– it was then deemed a “despotic and unnecessary barrier to the freedom of communications”. After the war, all “reasonable persons” expected the soon revival of the pre-war regime, but, deplorably, the compulsory passport system was not abolished but instead strengthened (Reale 1931). Thus, the war and its aftermath – including the newly established passport regime – is often interpreted as indicating a shift in policy paradigm, from liberal internationalism to a more realist model (Strikwerda 1999). 

The question is how such a change occurs. Constructivist scholars in international relations doubt that sudden policy diffusions, whereby many countries adopt similar measures at about the same time, can be explained by domestic factors only. They are instead indicative of a change in international norms for state behaviour, to which states adjust their actions through the “logic of appropriateness” (March and Olsen 1998). The mechanisms whereby this norm change may occur include learning, mimicry, persuasion and sometimes coercion. In the longer run, a successful process of norm change makes states internalize the norms, leading to socialization and identity change (Checkel 2005; Finnemore and Sikkink 1998). But what sets this process in motion? Here is a bone of contention for constructivists. Some refrain from ascribing identifiable agents with the power to incite norm change, and instead point at broad discursive developments and historical contingencies. Others however argue that actors play a decisive role, and that the initiation of norm change can be attributed to their conscious efforts to influence state behaviour. Non-state actors, such as transnational activist networks, NGOs and social movements are especially important, and many studies have identified the mobilization among such actors as instrumental norm change in for instance the human rights field (Brysk 2013; Keck and Sikkink 1998). Such influence is possible in our days, when non-state actors mobilize across borders and when international institutions give them access to consultation. But it seems more questionable if we go a bit back in time. 

My approach is slightly different. I will concentrate on one particular process in the post-war reorientation of migration controls, namely, the International Passport Conferences of the 1920s. These conferences were organized under the auspices of the League of Nations and gathered experts and state representatives to debate and negotiate the usage of passport and migration controls. I argue that the efforts of these conferences can fruitfully be analysed as an instance of standardization. This is to some extent to state the obvious: the conferences are known for having initiated the standardization of modern international passports. But what I propose here is to take standardization seriously and bring it into the analytical exercise on its own terms. Processes of standardization are ubiquitous and occur in the spheres of technology, economy, management, health, education, as well as bureaucracy. They tend to fall into the category of “dull things” of mundane and technical regulations, and therefore often pass unnoticed and unscrutinised although they often have far-reaching implications for power and democracy (Timmermans and Epstein 2010: 71). The standardized passport is one example; it works well for millions of people and therefore meets with little opposition. Nevertheless, it is a source of anxiety for stateless people or those with otherwise unclear nationality status (Star and Lampland 2009: 7–11). I take standardization to be one element of norm change, but not the norm change as such. My suspicion is, moreover, that it merits more attention within the study of norm change in international relations than has so far been the case. The literature that approaches standards as social regulations pertains mainly to sociology, management and organization studies (Brunsson and Jacobsson 2000; Bowker and Star 1999; Star and Lampland 2009; Timmermans and Epstein 2010; Thévenot 2009). Much less has been written about standardization from a perspective that directly concerns matters that are of concern to international relation scholars, such as international norms (but see Peña 2015; Loya and Boli 1999; parts of Ponte et al 2011 and Higgins and Larner 2010). 

In this paper, I understand the standardizing efforts at the International Passport Conferences from the point of view of a framework inspired by Michel Foucault. Standardization is then seen as a “technology of government” which has particular and recognizable characteristics but can be invested with different rationalities and be used in different contexts and for different purposes (Rose and Miller 1992; Higgins and Larner 2010). This allows me to trace the roots of the studied standardization to other practices of standardization, rather than (only) to pre-existing norms, state interests or advocacy by different groups. It also allows me to historicise the efforts of the conferences, and to consider the constructive and exclusionary practices on which they progressively erected their passport standards (cf. Ewald 1990; Higgins and Tamm Hallström 2007). 

The focus on standardization also distinguishes my effort from existing studies of the history of the passport. That scholarship has investigated how states use the passport for state making purposes, and I use many of their insights in my analysis (Torpey 2000; Caplan and Torpey 2001; Salter 2003; Robertson 2010; Lloyd 2005). 

The next section expands on the notion of standardization as a governmental technology. It is followed by a section on two main forms of standardizations that were influential at the time and that are particularly relevant for the present case. We then turn to the policy background in the League of Nations and its other engagements with international movements of people, which is followed by the case study of the Passport Conferences. The material that I use for the investigation consists mainly of the League of Nations’ documentation from the Conferences and the in-between work by related bodies, but also of secondary sources. The paper ends by a summary.

Schengen Border Technologies

The Statewatch report Automated suspicion: The EU's new travel surveillance initiatives comments 

 

This report examines, explains and critiques a number of large-scale EU information systems currently being planned or built that will significantly extend the collection and use of biometric and biographic data taken from visitors to the Schengen area, made up of 26 EU member states as well as Iceland, Liechtenstein, Norway and Switzerland. In particular, it examines new systems being introduced to track, analyse and assess the potential security, immigration or public health risks posed by non-EU citizens who have to apply for either a short-stay visa or a travel authorisation – primarily the Visa Information System (VIS), which is being upgraded, and the European Travel Information and Authorisation System (ETIAS), which is currently under construction.

 

The visa obligation has existed for years. The forthcoming travel authorisation obligation, which will cover citizens of non-EU states who do not require a visa, is new and will massively expand the amount of data the EU holds on non-citizens. It is the EU’s equivalent of the USA’s ESTA, Canada’s eTA and Australia’s ETA. These schemes represent a form of “government permission to travel,” to borrow the words of Edward Hasbrouck, and they rely on the extensive processing of personal data.

 

Data will be gathered on travellers themselves as well as their families, education, occupation and criminal convictions. Fingerprints and photographs will be taken from all travellers, including from millions of children from the age of six onwards. This data will not just be used to assess an individual’s application, but to feed data mining and profiling algorithms. It will be stored in large-scale databases accessible to hundreds of thousands of individuals working for hundreds of different public authorities.

 

Much of this data will also be used to feed an enormous new database holding the ‘identity data’ – fingerprints, photographs, names, nationalities and travel document data – of non-EU citizens. This system, the Common Identity Repository (CIR), is being introduced as part of the EU’s complex ‘interoperability’ initiative and aims to facilitate an increase in police identity checks within the EU. It will only hold the data of non-EU citizens and, with only weak anti-discrimination safeguards in the legislation, raises the risk of further entrenching racial profiling in police work.

 

The remote monitoring and control of travellers is also being extended through the VIS upgrade and the introduction of ETIAS. Travel companies are already obliged to check, prior to an individual boarding a plane, coach or train, whether they have the visa required to enter the Schengen area. This obligation will be extended to include travel authorisations, with travel companies able to use the central databases of the VIS and ETIAS to verify whether a person’s paperwork is in order or not. When people arrive at the Schengen border, when they are within the Schengen area and long after they leave, their personal data will remain stored in these systems and be available for a multitude of further uses.

 

These new systems and tools have been presented by EU institutions as necessary to keep EU citizens safe. However, the idea that more personal data gathering will automatically lead to greater security is a highly questionable claim, given that the authorities already have problems dealing with the data they hold now.

 

Furthermore, a key part of the ‘interoperability’ agenda is the cross-matching and combination of data on tens of millions of people from a host of different databases. Given that the EU’s databases are already-known to be strewn with errors, this massively increases the risks of mistakes in decision making in a policy field – immigration – that already involves a high degree of discretion and which has profound implications for peoples’ lives.

 

These new systems have been presented by their proponents as almost-inevitable technological developments. This is a misleading idea which masks the political and ethical judgments that lie behind the introduction of any new technology. It would be fairer to say that EU lawmakers have chosen to introduce unproven, experimental technologies – in particular, automated profiling – for use on non-EU citizens, who have no choice in the matter and are likely to face difficulties in exercising their rights.

 

Finally, the introduction of new databases designed to hold data on tens of millions of non-citizens rests on the idea that our public authorities can be trusted to comply with the rules and will not abuse the new troves of data to which they are being given access. Granting access to more data to more people inevitably increases the risk of individual abuses. Furthermore, the last decade has seen numerous states across the EU turn their back on fundamental rights and democratic standards, with migrants frequently used as scapegoats for society’s ills. In a climate of increased xenophobia and social hostility to foreigners, it is extremely dangerous to assert that intrusive data-gathering will counterbalance a supposed threat posed by non-citizens. ... If all non-citizens are to be treated as potential risks and assessed, analysed, monitored and tracked accordingly, it may not be long before citizens come under the same veil of suspicion.

Citizenship Selling

'Millionaire mobility and the sale of citizenship' by Kristin Surak in (2020) Journal of Ethnic and Migration Studies asks

Why do wealthy people purchase citizenship in peripheral countries? This article investigates the demand for citizenship by investment programmes, which enable naturalisation based on a donation or financial investment. Extending research on long-distance naturalisation among the middle class and on residence by investment programmes, I examine the motives of the wealthy using citizenship by investment options. Based on over one hundred interviews with rich naturalisers and intermediaries in the citizenship industry, I find that mobility, both in the present and as a future hedge, is a strong driver, followed by business advantages. Often it is privileges in third countries – not the place granting the citizenship – that are sought. In contrast to middle-class strategic naturalisers, quality of life, education options, and job prospects were not important, though navigating geopolitical barriers and risks were. Many naturalisers were not compensating for the failures of their citizenship at birth, but manoeuvering within a world of state competition. Finally, some individuals inverted the citizenship hierarchy and downgraded from ‘first tier’ memberships when, after years of living abroad, their nationality became a liability. The conclusion elaborates on the duplex structure of intra-state and inter-state inequality that channels demand, and the implications for citizenship more broadly.

Borders

'The many lives of border automation: Turbulence, coordination and care' by Debbie Lisle and Mike Bourne in (2019) Social Studies of Science comments

Automated borders promise instantaneous, objective and accurate decisions that efficiently filter the growing mass of mobile people and goods into safe and dangerous categories. We critically interrogate that promise by looking closely at how UK and European border agents reconfigure automated borders through their sense-making activities and everyday working practices. We are not interested in rehearsing a pro- vs. anti-automation debate, but instead illustrate how both positions reproduce a powerful anthropocentrism that effaces the entanglements and coordinations between humans and nonhumans in border spaces. Drawing from fieldwork with customs officers, immigration officers and airport managers at a UK and a European airport, we illustrate how border agents navigate a turbulent ‘cycle’ of automation that continually overturns assumed hierarchies between humans and technology. The coordinated practices engendered by institutional culture, material infrastructures, drug loos and sniffer dogs cannot be captured by a reductive account of automated borders as simply confirming or denying a predetermined, data-driven in/out decision.

The authors argue

 Since the first e-gates were deployed at Faro and Manchester airports in 2008 (Foreign & Commonwealth Office, Home Office and Border Force, 2017; Frontex, 2014), air, land and sea borders in Europe and the UK have been shaped by an intense drive towards automation. As part of the European Union (EU)’s 2013 Smart Borders package, millions of Euro have been invested in technology projects such as ‘ABC4EU’ and ‘FASTPASS’, which use e-gates to bring together e-passports, ‘live’ biometrics (e.g. photographs) and pre-existing databases (e.g. the Registered Travellers Programme) (ABC4EU, 2019; FASTPASS, 2019; see also iBorderCtrl, 2019). Similar technologies have been rolled out in the UK: By the end of 2017 there were 239 e-gates in operation in all major UK airports (Foreign & Commonwealth Office, Home Office and Border Force, 2017). Globally, the market for Automated Border Control e-gates and kiosks alone is expected to grow to $1.58 billion by 2023 (MarketsandMarkets.com, 2017). This drive towards automation is constituted by two interrelated modes of filtering: (i) the databases and sophisticated algorithms capable of gathering, analysing and comparing massive amounts of data on the mobility of people and goods, and (ii) the technologies used in border spaces that translate pre-emptively generated data to make an instantaneous in/out border decision. The widespread embrace of border automation in the UK and EU is underscored by a powerful fantasy that integrates these two modes of filtering: A perfect in/out decision is produced when the algorithms pre-emptively construct a data double that is ‘safe’ or ‘dangerous’, and the automated technology at the border (e.g. the e-gate or the handheld scanner) either confirms or denies that identity. Amidst growing volumes of passengers and freight, the allure of automation emerges as the perfect resolution of tensions between mobility and security. This fantasy of border automation rests on three major claims. First, automated border decisions are instantaneous: Unlike human border guards who struggle to decide within an average of 12 seconds (Frontex and Ferguson, 2014), automated borders draw on the pre-emptive data collection and analytics to produce in/out decisions in a fraction of a second, thereby increasing the convenience of border crossing for predesignated travellers, baggage and freight. Second, border automation enhances the accuracy of decisions because they attach specific pregiven information harvested from large databases to specific bodies in specific sites. In other words, automated borders are the final confirmation that the bodies, bags and boxes in front of them align with the information in the databases. The accuracy provided by automated borders is guaranteed by the certainty and reproducibility of the data driving the decision. Data is stored and can therefore be accessed, rechecked and consulted to identify novel patterns that can aid prediction and ‘future proof’ the border. And finally, automated border decisions are objective and neutral: Because they draw on the algorithmic processing of huge amounts of data, they avoid the biases, prejudices and irritations of human border guards. In this sense, automated borders respect the rights of ‘safe’ persons (because they are not falsely identified), ‘safe’ goods (because they can proceed uninterrupted to their destination), and even suspect persons (because immigration forces have time to plan a humane arrest) (European Commission, 2016a). 

Drawing from a multisited and multinational ethnographic study that ran from 2014 to 2016, this article explores the extent to which this powerful fantasy of automation shapes (or indeed, doesn’t shape) the everyday practices and sense-making of our informants: customs officers, immigration officers and airport managers. We critically reflect on how these border agents at a major UK airport and a medium-sized European airport make sense of and interact with the automated technologies put in place to supposedly make their jobs of ‘bordering’ more efficient, accurate and objective. We know from critical border studies and critical security studies that the prevailing fantasy of automation reproduces a problematic anthropocentric landscape in which human operators are separated from the inert technologies they use for bordering (Glouftsios, 2017; Leese, 2015; Schouten, 2014; Sohn, 2016). We are interested in how that anthropocentrism is articulated and troubled in the sense-making and working practices of those using automated borders. In this article, we develop two related questions. First, we explore the extent to which the anthropocentrism underscoring this powerful fantasy of automation operates as a regulative ideal, how it governs the behaviours, practices, relations and imaginaries of those managing automated borders. Here, we build on Allen and Vollmer’s (2018) study of how UK border managers carefully traffic between believing in the promises of border technologies and being deeply suspicious of the machine’s ability to ‘read’ humans. We are particularly interested in the extent to which border agents feel trapped inside a ‘pro-automation’ vs. ‘anti-automation’ debate that forces them to staunchly defend either technology or humans. Certainly, we pay attention to how border agents often unthinkingly reproduce these polarised positions, though we are more interested in how they carefully recognise and acknowledge the limitations of such pregiven positions as they make sense of automation. Indeed, our interviews and observations revealed a great deal of anxiety over who or what is actually making the in/out border decision, and who or what is the best agent to do so. These moments of doubt and uncertainty, often expressed through frustration, loss and lament, lead to our second question, which engages the new working practices emerging as border agents work with, around and in proximity to automated borders. We are particularly interested in the coordinated actions, unexpected improvisations and creative work-arounds that are developing between humans, machines, and other nonhumans. To get a meaningful picture of these new practices, we telescope out from the specific automated technologies of the border to focus on the wider entanglements that are shaping supposedly ‘clean’ in/out border decisions. Through our interviews and observations, we uncovered a complex and expansive understanding of automation, which exceeds the simple and unidirectional flow from pre-emptive data-based filtering to the automated border technology that simply confirms or denies a pregiven decision. Here, we draw from critical work detailing the deterritorialised nature of borders, such as de Goede’s (2018) analysis of the ‘chains of translation’ that constitute the governing of suspicious financial transactions, and Jeandesboz’s (2016) account of the ‘chains of association’ that constitute border policy-making (see also Parker and Adler-Nissen, 2012; Popescu, 2015b). Thinking about automated borders through this radically deterritorialised landscape is important because it creates more space to consider questions of agency. Not only are airport managers and customs and immigration officers repositioned as active agents using technologies in creative, surprising and inventive ways, but the supposedly ‘inert’ technologies of bordering are understood as entities acting, exerting force and directly shaping in/out border decisions in ways that exceed a simple confirmation or denial of a pregiven decision. As our interviews and observations reveal, the multiple relations and attachments between these agents are producing new coordinated practices around automated borders that often confound the deep anthropocentrism underscoring the fantasy of automation

They conclude

The prevailing pro/anti debate over border automation would have us believe that in/out border decisions are the result of either superior technologies capable of translating pregiven data with more speed, accuracy and objectivity, or superior human capabilities such as intuition, experience and tradecraft offering more relevant translations of pregiven data in specific situations. But these two narratives share a crucial assumption: that proper, robust and reliable in/out border decisions come primarily from single actors – either automated technologies or sophisticated human agents. This article contests that deeply reductive ontology and looks instead at what kind of sense-making and working practices emerge when we approach border automation through a lens of entanglement. Our observations and interviews at two airports revealed a complex set of coordinated practices between some expected humans and machines (e.g. immigration officers and e-gates), as well as some unexpected other nonhuman actors (e.g. parking spaces, packing tape, sniffer dogs, cement walls, shit). We came to understand automated borders not as a single moment of decision where an e-gate or e-manifest confirms or denies entry based on pregiven data, but rather as an elongated set of coordinated practices that are irreducible to either human or technology. To be sure, there is much more research to be done on how these practices emerge and transform. For example, what kind of automated border appears in the dedicated training sessions for specific technologies, or the professional mentoring structures that sustain its use? What kind of coordinated practices emerge around the care, maintenance, fixing and cleaning of automated border technologies? And if our turbulent cycle of automation operates across airport space, what are the different intensities operative in each sector? Our purpose in reframing automated borders through their constitutive entanglements and emerging practices of coordination, is to reveal the profound contingency of in/out border decisions, no matter how automated those decisions purport to be. The insights we gleaned from our interviews and observations helped us to contest the isolation, instrumentality and purity of automated borders, and foreground the congregation of agents and multiplicity of ‘situated actions’ that are enrolled in these seemingly simple in/out decisions.

Character, Visas, Citizenship and ID Mills

Ongoing tightening of character requirements regarding migration is evident in the national government's  Ministerial Direction, effective 28 February 28,  "stop the entry to Australia of people convicted of violent crimes against women and children".

The Direction to visa decision-makers under s499 of the Migration Act 1958 (Cth) builds on existing law, including mandatory cancellation powers in s501 of the Act providing that a person’s visa must be cancelled if they have been sentenced to 12 months or more in prison.

The Direction applies to decision-makers within the Department of Home Affairs who are considering the cancellation or refusal of a visa under s501 of the Act  or who are considering the revocation of a mandatory cancellation of a visa under s501CA.

 The Direction is binding on departmental decision-makers and the Administrative Appeals Tribunal. In considering a case, the decision-maker or AAT member must consider all crimes against woman and children as serious and abhorrent crimes, regardless of the length of sentence imposed by the courts.

The Direction further specifies that in these circumstances, individuals should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in Australia.

The Home Affairs media release states  that under the previous Government (in five years between 2009 and 2013) 582 visas were cancelled under the character provisions in s 501 of the Act. The current Government has cancelled over 4150 visas of foreign criminals.

Three recent AAT Decisions are

Navab Esfahani and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 4221 - AAT affirmed the Home Affairs’ decision to refuse Australian citizenship to the applicant finding he did not pass the character due to his past conduct. 

Nkali and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 76 - AAT affirmed the Home Affairs’ decision to refuse to grant Australian citizenship to the applicant. The applicant did not satisfy the general residence requirement because he was an unlawful citizen a year prior to their application. 

QSNT and Minister for Home Affairs (Citizenship) [2019] AATA 24 - AAT set aside the Home Affairs’ decision to refuse to grant Australian citizenship to the applicant. The primary issue was whether the AAT was satisfied of the applicant's identity.

A perspective on identity documentation is provided in Lee v R [2019] NSWCCA 15, one of those judgments that specifically refers to the manufacture of fake IDs.

The judgment notes

 Michael Lee (“the applicant”) was sentenced in the District Court at Sydney on 28 June 2018 after pleading guilty to the following four counts on an indictment: 

“1 [O]n the 17th day of December 2015, at Campsie in the State of New South Wales, did possess an Embossing machine, Fargo card printer, Fargo HDP colour ribbon, blank cards, blank cards with black magnetic strip, blank cards with blue magnetic strip, laminator, computer hardware and clear film designed/adapted for making a false document, knowing that it is so designed/adapted and intending that the said Embossing machine, Fargo card printer, Fargo HDP colour ribbon, blank cards, blank cards with black magnetic strip, blank cards with blue magnetic strip, laminator, computer hardware and clear film will be used to commit the offence of forgery. ... 

2 Between the 1st day of July 2015 and the 18th day of December 2015, at Sydney in the state of New South Wales, did deal in identification information relating to 33 persons, with the intention of facilitating the commission of an indictable offence, namely fraud. ... 

3 [B]etween the 1st day of July 2015 and the 18th day of December 2015, at Sydney in the state of New South Wales, did deal in identification information relating to 26 persons, with the intention of facilitating the commission of an indictable offence, namely fraud. 

Factual background 

In July 2015 the Identity Security Strike Team (“ISST”) commenced Operation DRAX to investigate the manufacturing and distribution of fraudulent identity documents. At about 6.15am on 16 December 2015 police executed a search warrant at the applicant’s residence. During the search, items including blank card stocks, blank cards with magnetic strips used with Medicare cards, an embossing machine, computer equipment containing images of NSW Driver’s Licences, a ‘Fargo’ card printer, printer colour ribbon, clear film, laminators and electronic data storage devices were located. 

The investigation revealed the applicant and co-offenders were engaged in an operation whereby orders for fraudulent documents would be placed by Mohammed with Cao. Cao would relay orders to Zhang for a fee. The orders would then be forwarded to Yeoh who arranged for documents to be manufactured by the applicant. After the fraudulent documents were produced, they were transferred in reverse order until they reached Mohammed. These fraudulent documents were then used to approach financial institutions, in order to obtain loans and credit cards. 

On one occasion, Abraham Maka, an associate of Mohammed, attended the Marrickville branch of the National Australia Bank and obtained a personal loan of $24,500 using the false identity of “Vinod Sam”. Cao remained in telephone contact while Mohammed was at the bank and throughout the entire transaction. The money was paid into a nominated bank account of Maka and at the time of sentencing had not been recovered by the Bank. 

Over the course of about six months, the co-offenders operated in a criminal group, each with a different role. The applicant, in his role, produced approximately 34 sets of false identification documents with which loans were obtained amounting to a sum of $595,821.43. ... 

In an unsworn statement, the applicant accepted that he made false documents and did so due to his financial difficulties. He stated that he did not know the co-offenders other than Yeoh, who would order the false documents and provide him with a list of names, personal details and other specifications. The applicant would then make the products and Yeoh would pay him $300 for a false Driver’s License and $100 for a false Medicare card. He apologised to the court for his offence which he said was “serious and unforgiveable”. 

At the time of sentence, the applicant was 52 years old. His prior criminal history disclosed that he was sentenced to 6 years imprisonment with a non-parole period of 3 years 6 months in the District Court at Sydney, on 23 November 2001, for attempting to obtain possession of an imported prohibited drug, namely not less than the traffickable quantity applicable to methylamphetamine. 

Some findings by the judge 

The judge found that the dealing with information charges revealed a sophisticated and organised criminal operation. His Honour noted that the orders for fake Driver’s Licenses and Medicare cards were placed by Mohammed with Cao. The orders were then passed on to Zhang and Yeoh, before ending up with the applicant. The applicant would then make the false identification documents, which would be supplied back through the chain of people in the reverse order. His Honour observed that “...[t]his process provided some protection from detection for the persons involved in the offences”. 

His Honour said that the applicant possessed and used equipment to make all the false identification documents involved in the scheme. He was paid per item: $300 for a Driver’s License and $100 for a Medicare card. His Honour observed that the documents were of high quality and were accepted repeatedly as authentic documents by a number of different persons. 

His Honour found that the involvement and skill of the applicant was essential to the success of the scheme and the false identification documents were used to obtain loans that were not repaid, resulting in a loss of $595,821.43 to the banks.

Guest Workers

Cultural Exchange or Cheap Housekeeper? Findings of a National Survey of Au Pairs in Australia by   Laurie Berg and Gabrielle Meagher reports that the majority of au pairs in Australia are paid as babysitters but work like housekeepers.

The report draws on responses from 1,479 participants who had au paired in Australia households in every Australian state and territory.

 Key findings include:

•  Most participants came to Australia looking for a traditional ‘cultural exchange’,
• almost 60% however found themselves working for around 36 hours a week, doing not only childcare but daily cooking, cleaning and other household tasks. 
•  Average working hours were 34 hours per week; nearly a third (30%) worked 40 hours per week or more. 
•  Taking into account a generous value of room and board, a majority of participants (58%) were paid less than the national minimum wage. 
•  A third of participants worked in families who lived in the most advantaged 10% of suburbs in Australia. 
•  Cultural agencies promote au pairing as a cultural experience. However, participants who used an agency to arrange their placement fared no better than others in relation to working hours, rates of pay or inclusion in family activities. 
•  Most participants did not understand how Australian visa rules relate to au pairing and the consequences of breaching visa conditions.

The authors note

This report presents the first comprehensive study of living and working conditions of au pairs in Australia. It draws on responses from 1,479 au pairs across 34 nationalities to an online survey in 2017. The study seeks to provide an evidence base to indicate the contours and variety of au pair experiences across this country. 

The concept of au pairing has arisen informally in Australia as a version of a European tradition where young women spent a year-long cultural exchange with a host family in a different European country, learning a foreign language and earning ‘pocket money’ while undertaking light childcare duties. It seems likely that the use of au pairs by Australian families has increased in recent years. Media reports have revealed both the growing dependence of families on au pairs as a source of flexible and affordable childcare, and the risk of au pairs’ exposure to exploitative working conditions. However, there is no official au pair program, dedicated visa, or even any official guidelines for families or au pairs, and so we lack even an agreed definition about what an au pair is. 

The cornerstone of au pairing, in popular culture around the world, and as it is promoted by Australian au pair agencies which facilitate placements, is that it is a ‘cultural exchange’ where au pairs are hosted as part of a family. Accordingly, Australian agencies, industry associations and matching websites carefully distinguish au pairs from live-in nannies or housekeepers in ongoing employment. They often use the term ‘pocket money’ or ‘stipend’ to describe their pay and most stipulate that au pairs undertake mainly childcare-focused tasks, including cooking for, cleaning up after and driving children, rather than regular domestic work for the whole household. However, the distinction between cultural exchange and work (if it was ever observed in practice) appears to be breaking down. Courts in Ireland and New Zealand have ruled that au pairing constitutes employment. In Australia, select agencies have explicitly pegged au pairs’ remuneration to legal minimum wage rates in Australia. 

Critically, because au pairing is an informal arrangement, very little is known about the day-to-day experiences of au pairs in this country, or how prevalent this practice is. One government agency adopted an estimate of 10,000 au pairs in Australia in 2013. Despite press interest in the apparent upsurge of au pairs in this country, almost no empirical research has investigated the living and working conditions of au pairs in Australia, how they arrange their placement or which visas they hold during their stay. Still less is known about how experiences vary between different cohorts, such as nationality groups, host families’ locations, and au pairs who use agencies to arrange their placements as compared with other means. 

This study begins to fill these gaps. It reveals participants’ demographic profile (including nationality and visa used while au pairing in Australia), the characteristics of their first au pair placement (including tasks they performed in the home, rates of pay and hours), problems they encountered in Australia and how they sought assistance to resolve these, and their motivations for au pairing, benefits gained and overall appraisal of their experience, including whether they considered the experience to be closer to a cultural exchange or to work. The survey was conducted online between November 2016 and April 2017, in four languages in addition to English. The survey was anonymous and open to any individual who had been an au pair in Australia.

Further

The vast majority of participants were young European women. Classic Au Pairs had the greatest proportions of nationals from Western and Northern Europe. Nanny Housekeepers comprised larger proportions of participants from native English-speaking countries.

• Almost all participants (97%) were women. 

• Women were more likely than men to be Nanny Housekeepers (focussing on childcare and housework). Men were more likely to either be Classic Au Pairs (only carrying out child-related tasks) or to also routinely undertake gardening and pet care. 

• Two thirds of participants (67%) were 23 years old or younger at the time of the survey. More than a quarter (27%) were 18 or 19 years old. 

• Four in five participants (81%) were from Europe, with over a third (35%) from Germany, followed by France (14%) and the United Kingdom (11%). 

Participants’ first placement was more likely to be with a larger than average two-parent family, in a major city, and in a suburb of relative social advantage.

• The proportion of participants in each state or territory corresponds roughly with the distribution of families with children under 15 years in Australia, as recorded in the 2016 Census. 

• Four in five of participants’ first placements (80%) were in a major city. 

• Families in outer regional areas hosted greater proportions of Nanny Housekeepers. 

• A third of first placements (32%) were with families who lived in the most advantaged 10% of suburbs and localities in Australia. 

Participants overwhelmingly held Working Holiday visas while au pairing in Australia, and frequently used matching websites to arrange their first placement. A majority did not sign a written agreement prior to starting that placement.

• Visa held during first placement. The overwhelming majority of participants reported holding a Working Holiday visa while au pairing in Australia (94%). Only 2% reported holding a tourist visa while au pairing, which would have constituted a breach of the visa condition prohibiting work in Australia. 

• A majority of participants did not accurately understand how Australian visa rules relate to au pairing, and the implications of breaching work-related visa conditions. 

• Use of an agency. A third of participants (31%) used a cultural exchange agency to arrange their first au pair placement. Over two thirds (69%) arranged their first placement without an agency. The greatest proportion of participants used a matching website like AuPairWorld to arrange their first placement (40%). 

• Written contract. Only two in five participants (39%) reported having signed a written agreement with their host family. 

• For the majority of these, the family presented the participants with a final written contract rather than them negotiating the terms together. 

• A much greater proportion of participants who paid an agency to arrange their first placement signed a written contract with their family beforehand (81%). Among these, an even greater proportion was presented with a final contract by the family. 

• Just under half (44%) of participants indicated they had obtained either a Working With Children Check or police check or both. This proportion increased to 88% for participants who paid an agency to arrange their first placement. 

On average, participants worked full time in their first placement for less than the national minimum wage ($17.70 per hour) at the time of the survey. Most had a weekly schedule that was honoured in the breach. Early termination, notice and prior agreements as to notice each revealed asymmetries in the power relations between families and au pairs.

• Average weekly hours. Survey participants worked an average of 34 hours per week in their first placement. 

• Just under a third (30%) worked 40 hours per week or longer. Nearly one in twelve (8%) worked 50 or more hours per week. 

• The few male participants worked shorter average hours than females. 

• Long hours were more frequently reported by Nanny Housekeepers than Classic Au Pairs. 

• The average notional hourly wage2 for all participants was around $17.10 including the inferred value of in-kind board and lodging, while the median was $15.31. 

• The average notional hourly wage was 25% higher for male than female participants. 

• The average notional hourly wage was a little higher for Classic Au Pairs, and a little lower for Nanny Housekeepers. 

• The distribution of notional hourly wage rates did not differ substantially between participants who used an agency to which they paid a fee, an agency to which they did not pay a fee, or did not use an agency. 

Participants in major cities earned the highest average notional hourly wage. The few participants in very remote locations earned the lowest. 

• Signing a contract before starting the first placement raised the floor of notional hourly wages for the bottom quartile of earnings for all participants, but did not result in higher notional hourly wage rates in higher quartiles. 

• The notional hourly wage rate fell below the national minimum wage for 58% of participants and below the lowest rate in the Children’s Services Award for 77% of participants. 

• Four fifths of participants (79%) reported having weekly schedules setting out expected hours in advance. 

• However, a similar proportion (82%) was asked to work extra hours. Over half (53%) of these were not given 2 days’ notice of these extra hours, and less than half (47%) were paid for them. Half (52%) of those who were paid extra received $10 per hour or less. 

• Larger proportions of Nanny Housekeepers were asked to do extra hours, compared with Classic Au Pairs, with smaller proportions paid for these extra hours. 

• Early termination, notice and prior agreements as to notice each revealed asymmetries in the power relations between families and au pairs. 

• Over half of participants (56%) reported having agreed that the au pair would give notice if they decided to end the placement. By contrast, only 46% of participants had an agreement that the family would give notice if they decided to terminate the placement. 

• A third of participants’ first placements ended early, which suggests that au pairing is an extraordinarily insecure form of childcare. 

• More than a third (36%) of participants who were asked to leave early were given one day or less to leave. Just over a half (53%) were given four days or less. By contrast, among the participants who chose to leave their first placement early, only one in five (20%) gave their family four days’ notice or less. 

• A smaller proportion of participants who used an agency were asked to leave early, although they did not get more notice. Families appeared to benefit from their au pair using an agency in that a smaller proportion of these participants gave their family 4 days’ notice or less. 

A substantial minority of participants experienced serious problems while au pairing in Australia, including coercive and exploitative working conditions and non-inclusion in family activities. Few who experienced serious problems sought assistance.

• More than two in five participants experienced one or more serious problems, including feeling compelled to work more than they expected (26%), feeling compelled to work different tasks than they expected (21%), non-payment of money promised (10%), verbal abuse (8%) and sexual harm (1%) ). 

• Nanny Housekeepers were more likely to be subjected to psychological harm (including verbal abuse, and other disrespectful or predatory behaviour) than Classic Au Pairs. 

• A third of participants reported exploitative working conditions. 

• Nanny Housekeepers + were much more likely to report exploitative conditions (46%), than Classic Au Pairs (26%). 

• Proportions of participants reporting exploitative conditions did not vary among those who had a written contract or used an agency (whether or not they paid a fee) 

• One in five participants reported non-inclusion in family activities in their first placement. 

• While agencies promote au pairing as an immersive cultural experience, they do not appear to be able to guarantee this. Use of an agency did not coincide with greater inclusion in family activities. 

• One in six participants reported that they felt forced to stay in their placement even in the face of problems, most frequently because they lacked alternative accommodation. 

• Few who experienced serious problems sought assistance from someone in Australia (27%), and were more likely to do so where they paid an agency to arrange the placement. 

Participants’ attitudes towards their au pair experience in Australia were, overall, extremely positive.

• A clear majority of participants reported that their expectations for their au pair experience were met or exceeded. 

• More than three quarters would recommend au pairing in Australia with almost half stating they would definitely recommend the experience. 

• More than a third characterised the experience as more like work than a cultural exchange (37%). One in five (21%) characterised it as midway between work and cultural exchange. 

• Participants who paid an agency to arrange their first placement reported the same positive averages as all other participants in relation to whether the experience exceeded their expectations and to recommending au pairing to their peers. They reported on average that the experience was slightly more like work than a cultural exchange, as compared with other participants. 

• Participants who experienced non-inclusion in family activities reported, on average, lower degrees to which au pairing met or exceeded expectations than those who experienced exploitative working conditions, and were more likely to consider the placement to be closer to work than a cultural exchange. 

• The top five benefits of au pairing reported by participants all related to classical constructions of au pairing as a cultural exchange.

The authors provide the following  recommendations

1. The government must resource flexible and affordable childcare alternatives to the precarious private employment of au pairs. 

2. The Fair Work Ombudsman and other relevant government agencies, including occupational health and safety authorities, should provide clear guidance that childcare and housekeeping duties routinely undertaken by an au pair under a family’s supervision meet the legal threshold for employment in the vast majority of cases. 

3. In light of the specific nature of the au pair role, and other live-in care work, the government should provide families and au pairs with guidance on acceptable minimum standards for au pair placements and information about applicable immigration restrictions. 

4. The Australian Taxation Office should provide clear, detailed guidance on the superannuation liabilities and taxation obligations of au pairs and employing families. In the context of current arrangements, this should include information about applicable tax rates for Working Holiday Makers, the process for withholding tax and lodging a tax return and the requirement for employers of Working Holiday Makers to register with the ATO. 

5. A government-funded service, whether within or adjacent to the Fair Work Ombudsman, should provide assistance and advice to au pairs and families. This should include mediation services for disputes and referrals of unresolved disputes to the Fair Work Ombudsman or other legal service providers. 

6. A dedicated au pair visa scheme should not be adopted if validity of the visa would be subject to agency sponsorship, host family sponsorship, or continued stay in an au pair placement.

Migration and Democratic Self-Determination

Why Does the State Have the Right to Control Immigration?' by Sarah Song in (2017) LVII Nomos comments 

Public debate about immigration proceeds on the assumption that each country has the right to control its own borders.1 The right to control immigration is broadly assumed to flow from state sovereignty. This view is reflected in early American immigration jurisprudence. In establishing the national government’s power over immigration, the U.S. Supreme Court declared, “Every nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominion, or to admit them only in such cases and upon such conditions as it may see fit to prescribe.”2 The power to control immigration has been qualified in certain respects by international law, such as in the case of diplomats whose privileges are well-defined in law and over whom the host state’s discretion is limited. However, when it comes to the question of the right to exclude foreigners, international law accords enormous discretion to states. While there are constitutional limits in some countries on how noncitizens already inside the territory can be treated, when it comes to foreigners outside the territory, states may act solely on the basis of considerations of advantage or convenience. As Linda Bosniak has observed, this “hard on the outside and soft on the inside” approach is reflected not only in law but also in many normative theories of migration and citizenship: an ethic of inclusion applies to noncitizens inside the territorial boundaries of the state, while an ethic of exclusion applies to those outside. 

But what, if anything, justifies the modern state’s power over borders? Why, if at all, does the state have the right to control immigration? Many scholars of immigration and citizenship take this question for granted, focusing instead on questions about the substantive content and procedures of immigration law and policy. The reason for this is partly pragmatic. After all, states exist, and they exercise power over borders, whether or not there is a good justification for such exercise. In addition, scholars of migration and citizenship understandably focus their attention on more pressing questions about the substance and procedures of immigration policy. But I also think that many immigration scholars really believe that the state has the right to control its own borders, even if they have not developed the normative grounds of their view. 

How, if at all, might the state’s right to control immigration be justified? This chapter provides an answer in three sections. First, I examine the earliest immigration law cases in U.S. history in order to uncover the underlying assumptions about sovereignty and immigration control that make up the normative foundations of U.S. immigration law. These cases rely on dominant principles of international law of the day, especially the work of Emer de Vattel. I argue that while these cases make clear the great extent of the state’s power over immigration, the leading theorist they rely on falls short of providing adequate normative justification of the state’s right to control immigration. In the second section, I turn to contemporary political theory and philosophy for justifications of the right to control immigration. I critically assess three leading arguments, based on (1) cultural and national identity, (2) freedom of association, and (3) property. In the third and final section, I offer an alternative argument based on the idea of democratic self-determination.

Song argues

We can build on the idea of self-determination to develop an alternative, democratic justification for a state’s right to control immigration. My argument consists of the following claims:

1. A people/demos has the right of self-determination. 

2. The right of self-determination includes the right to control admission and membership. 

3. The demos should be bounded by the territorial boundaries of the state. 

4. Citizens of a territorial state, in virtue of their role as members of the (territorially defined) demos, have the right to control admission and membership.

I briefly elaborate each of these claims in the following. 

(1) A people/demos has the right of self-determination. 

This is the idea of popular sovereignty: that a group of people (the demos) ought to have independent political control over significant aspects of its common life. As a concept in international law, self-determination was seen to apply only to specific territories (first, the defeated European powers; later, the overseas trust territories and colonies) and was understood primarily as a right of secession. It has evolved to be understood as a right of all peoples to participate in democratic processes of governance. The claim of self-determination need not be understood solely as a claim for full political independence or autonomy; it is a claim for some independent political control over significant aspects of its common life. Self-determination implies an independent domain of political control, but it leaves open the domain of control (what sorts of activities and institutions the group controls), the extent of its control over various items in the domain, and the particular political institutions by which the group exercises control over its domain. 

What is the content of the right of self-determination? We can begin by looking to the principles and practices of international law. Thomas Franck suggests three components to the normative entitlement to democracy in international law, which already enjoy “a high degree of legitimacy in international law”: the right to participate in political processes, the right of free political expression, and the right to take part in “periodic and genuine elections which shall be taken by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.” Together these elements aim at “creating the opportunity for all persons to assume responsibility for shaping the kind of civil society in which they live and work.” Turning to moral and political theory, a more minimalist interpretation of the right of self-determination says it is a right to some say in the making of the policies to which one is subject. For example, one might focus on accountability rather than equal rights of participation, identifying, as Buchanan does, three features that make up a more minimal conception of democracy: (1) representative majoritarian institutions for making most general laws “such that no competent individual is excluded from participation,” (2) the highest government officials are accountable to the people by being subject to removal from office, and (3) there are institutionally secured freedoms of speech, association, and assembly, which are required for reasonably free deliberation. On a more demanding interpretation of self-determination, what is required are equal rights of participation in the governing processes. For example, Thomas Christiano defends the idea of each citizen having “an equal say” in determining the most fundamental public rules. This more demanding interpretation is required for an account of self-determination to count as democratic self-determination. 

What are the grounds of the right of democratic self-determination? To anticipate the objection that democratic self-determination is inherently incompatible with respecting individual human rights, it is important to see that self-determination can be derived from the premise that all persons qua persons should be treated with equal concern and respect (the moral equality principle). There are different views about what it is about persons that is to receive equal respect (e.g., whether it is the well-being/good of persons or the autonomy of persons that is the proper object of equal consideration), which we need not settle here. The moral equality principle is the most common justification offered for basic human rights, rights whose violation poses the most serious threat to the individual’s chances of living a decent human life. The familiar list of basic human rights includes the right to life, the right to security of the person, the right against enslavement and torture, and the right to resources for subsistence, among others. More controversially, the case can be made that respecting the moral equality of persons also requires recognition of the right to democratic governance. Equal consideration requires that all persons be regarded as equal participants in significant political decisions to which they are subject. The right to democracy is an important element of the institutional recognition of the equality of persons. 

Even if one rejects the idea of a human right to democratic governance, there are instrumental reasons for recognizing the right to democracy as a legal aspiration in international law. Democratic governance is of such great instrumental value for the protection of human rights that it ought to be required for any government to be considered legitimate. Evidence in support of this argument is Amartya Sen’s work showing famines are much less likely in democracies, as well as the “democratic peace” literature that suggests democracy is the most reliable form of government for securing peace, which should lessen the violation of human rights. These arguments support the case for understanding the right of self-determination as a right to democratic governance. 

(2) The right of self-determination includes the right to control admission and membership. 

The right of self-determination of a people is the right to independent political control over significant aspects of its common life. As Frederick Whelan puts it, “The admission of new members into the democratic group . . . would appear to be such a matter, one that could not only affect various private interests of the current members, but that could also, in the aggregate, affect the quality of their public life and the character of their community.”95 Walzer goes even further: “Admission and exclusion are at the core of communal independence. They suggest the deepest meaning of self-determination.”96 I agree with the basic claim made here by Whelan and Walzer but part ways with Walzer on the grounds for self-determination. In my view, the right of self-determination derives not out of a concern to preserve a distinctive cultural identity as discussed earlier, but rather from respecting the right of individuals to be regarded as equal participants in significant political decisions to which they are bound.

(3) The demos should be bounded by the territorial boundaries of the state. 

This is a controversial claim, which I have defended in another essay and which I can only briefly summarize here. I begin with the normative requirements of democracy. A settled conviction about democracy is that it is rule by the people who regard one another as equals. What is required to meet this demand of equal regard? The idea of equality might enter a theory of democracy at different levels: at the level of normative justification and at the level of institutional design. A more complex view of democracy differentiates between normative justification and the institutional requirements of democracy. As a matter of justification, the idea of equality places limits on the sorts of reasons that may be given to explain why we should accept one rather than another conception of fair terms of democratic participation. It is the role of a theory of political equality to connect the normative justification with the institutional requirements of democracy. Political equality is a constitutive condition of democracy. Political equality requires protecting certain equal rights and liberties, as well as ensuring the equal worth of these rights and liberties by providing equal opportunities for political influence. The realization of political equality depends on the existence of a stable bounded demos. The modern state demarcates such a stable demos. The boundaries of the demos are already demarcated according to the boundaries of state membership, but my argument is not that we should accept the state system because it is the status quo. My point is that we have reasons internal to democracy for bounding the demos according to the territorial boundaries of states. What are these democratic reasons? 

First, it is a historically contingent but morally relevant fact that the modern state is the primary instrument for securing the substantive rights and freedoms constitutive of democracy. Without the state, individuals will disagree about what rights they have and when rights are violated. Even if individuals agree on what rights they have, some people may not respect those rights without a common third-party enforcer. A state system of public law establishes a common view of the rights of individuals, and it has the coercive means to enforce that view. The state also provides institutions for adjudicating conflicts among individuals. In short, the institutions of the modern state serve legislative, executive, and judicial functions necessary for the creation and maintenance of the system of rights, including rights of participation. A second reason for bounding the demos according to the boundaries of the territorial state has to do with solidarity. The state is not simply an instrument of decision making or a means to securing rights; it is also a key site of solidarity, trust, and participation. Democratic participation happens not in a vacuum but in relation to a rich network of institutions. Trust plays an indispensable role here. As Charles Tilly has argued, trust “consists of placing valued outcomes at risk of others’ malfeasance, mistakes, or failures.” Trust relationships are those in which people regularly take such risks. Trust is more likely among a group of people who come together repeatedly within a stable infrastructure of institutions and who share a sense of solidarity rooted in a shared political culture. To the degree that individuals integrate their trust networks into political institutions, the greater the stake people have in the successful functioning of those institutions. As Tilly puts its, individuals “acquire an unbreakable interest in the performance of government. The political stakes matter.”100 A shared political culture based on common citizenship is crucial for fostering trust and solidarity, which in turn enables democratic participation. 

A third reason for bounding the demos according to the territorial boundaries of states focuses on the connection between citizens and their political representatives. Democratic representatives must be accountable to a specified demos. As Seyla Benhabib has argued, “Democratic laws require closure precisely because democratic representation must be accountable to a specific people.” A system of territorial representation ensures that political representatives know in advance to whom they are accountable. Territorial representatives know they are acting on behalf of the citizens of their state, and the solidarity based on a common political culture within a state is likely to make representatives more attentive to their constituents than if the constituents were all of humanity constituting a global demos or episodic demoi defined by the “all subjected” or “all affected” principles of democratic legitimacy. In sum, the demos should be bounded by state boundaries because the state (1) is the primary instrument for securing the conditions of democracy, (2) serves as the primary site of solidarity conducive to democratic participation, and (3) establishes clear lines of accountability between representatives and their constituents. 

Among the many objections one might raise is that democratic theory, properly understood, presupposes an unbounded demos. Focusing directly on the issue of border control, Arash Abizadeh has argued that the democratic theory of popular sovereignty is incompatible with “the state sovereignty view,” which says immigration control should be under the unilateral discretion of the state itself. Abizadeh comes to this conclusion by way of two premises: (1) that the demos is, in principle, unbounded, and (2) that democratic justification for a state’s regime of border control is owed to all those subject to the border regime’s coercive power. He defends the first premise by arguing that the contrary thesis (that the demos is inherently bounded) is incoherent. The incoherence is said to stem partly from the “boundary problem” in democracy theory: that democracy “cannot be brought to bear on the logically prior matter of the constitution of the group itself, the existence of which it presupposes.” As I have argued elsewhere, the claim that democratic theory cannot answer the boundary problem rests on a narrow, proceduralist conception of democracy. If we instead view democracy as a broader set of substantive values and principles, including the principle of political equality, we have reasons internal to democracy for bounding the demos according to the territorial boundaries of the state. Abizadeh argues that the incoherence of attempts to bound the demos also stems from an externality problem: state action, including its border policies, always involves exercising coercive power over members and nonmembers, and such power must be justified to all subjected to coercion. This point connects to Abizadeh’s second major premise that interprets the idea of democratic legitimacy as requiring all those subject to a state’s coercive power to have an equal say in the exercise of that power. While I agree with Abizadeh that justification is owed to all those subject to the coercive power of the state, I disagree with the conclusion that justification must take the form of equal enfranchisement of all members and nonmembers in state policy making. It is plausible to think the demand for justification can be met in other ways that are compatible with democratic principles, such as supporting policies that respect the basic human rights of all those subjected to the policy and supporting the development of democratic institutions in the home states of nonmembers. 

One reason for thinking that it may be compatible with democratic principles to have different responses for members and nonmembers arises from distinguishing coercion and authority in theorizing democratic legitimacy. Abizadeh interprets the principle of democratic legitimacy as requiring justification to all those who are subject to a state’s coercive power. Another way of approaching democratic legitimacy is more attentive to, in Joshua Cohen’s words, “democracy’s institutional character”: democratic legitimacy “arises from the discussions and decisions of members, as made within and expressed through social and political institutions designed to acknowledge their collective authority.” We can recognize that democracy comes in many forms, but “more determinate conceptions of it depend on an account of membership in the people, and correspondingly, what it takes for a decision to be collective—made by citizens ‘as a body.’” The demos is not an aggregation of individuals who happen to be coerced by the same power but rather an enduring collective that makes decisions with binding authority. 

(4) Citizens of a territorial state, in virtue of their role as members of the (territorially defined) demos, have the right to control admission and membership. 

If claims 1 to 3 are plausible, then it is citizens of a territorial state, in virtue of their role as members of the territorially defined demos, who have the right to control borders and membership. Citizens are both the ultimate beneficiaries and the ultimate authors of the exercise of jurisdictional authority, through democratic processes of participation and representation. In contrast to the property justification, the state’s right to control immigration is neither an instance of nor derived from private property rights; it is a jurisdictional right. In contrast to the cultural and nationalist accounts, the state’s right to control immigration is not grounded on a claim about the importance of preserving a distinctive culture or national identity; it rests on the right of members of the territorially defined demos to be self-governing as political equals. Selfgovernance includes not only control over current collective decision making and the future direction of the political system but also the right to regulate admission into the territory and into full membership. In contrast to the freedom of association argument, the state’s right to control immigration does not rest on analogies with marriage, religious associations, and golf clubs, and it does not elide property rights over golf clubs with jurisdictional rights over a state’s territory. The state is importantly disanalogous from other associations not only because state membership is typically nonvoluntary but also because of the state’s indispensable role in meeting the constitutive and instrumental conditions of democratic participation and representation.