New Year, New …Nationality?
The world is currently reeling from the outbreak of Coronavirus in Wuhan City, China and its potential spread around the world. At the international level, the World Health Organisation has taken the lead, advising states and the public on the development of the virus and providing national health authorities on what information they should be giving to international travellers.
In China, the authorities have locked down city after city as the virus has spread from Wuhan to other places. The proximity of the outbreak with Chinese New Year has been most unfortunate for Chinese state authorities’ capacity to prevent travel as a means of fighting the spread of the virus. The virus appears to be highly dangerous, very easily transmitted among humans and unpredictable regarding its capacity to mutate. Further, the symptoms are unhelpfully ‘ordinary’ – a fever and shortness of breath.
In this blog we examine some of the immigration consequences of the outbreak from a UK perspective. There are four aspects which we will examine here:
As the Coronavirus outbreak shows, infectious diseases do not respect border controls. The Chinese authorities notified the WHO of the outbreak of the virus in Wuhan on 31 December 2019. Already by 13 January 2020, the Thai authorities had notified the WHO of the first case on its territory followed two days later by a notification by the Japanese authorities. By the end of January countries around the world have begun notifying the WHO of cases, including Australia, Canada and the USA. In the UK 73 people have been tested for it with negative results. However, the virus is far from being under control.
The WHO is issuing daily public situation reports on it which include advice regarding travel. In the UK, the Foreign and Commonwealth Office has been issuing advice on the advisability of travelling to places where there have been confirmed cases of the new virus and last night, the FCO changed its advice to recommend against all but essential travel to China. This is in response to reports coming in from Japan and Germany where there have been cases of the virus not linked to travel to China. On 28 January 2020, the Japanese health ministry announced that a Japanese driver has been diagnosed with the Coronavirus, despite never having step foot in Wuhan, making it the first human-to-human transmission. The Japanese driver was ferrying Wuhan tourists from Osaka to Tokyo in early January and later taken ill and diagnosed with the virus.
The FCO is now under even more pressure to repatriate British nationals in Wuhan City (and Hubei Province), a measure which a number of other countries have been taking. But the FCO advice on travel is based on that of Public Health England (a Department of Health and Social Care body), indicating that the front line ministry in respect of all aspects of the UK’s alerts about the virus is Health and Social Care. It is reported that the government is now finalising plans to evacuate British nationals from Wuhan. However, the question remains on what would happen to non-British family members of British nationals. While other countries are reported to be evacuating foreign family members of their citizens, the FCO does not seem to be doing so. As such, non-British family members would need to seek assistance from their own country of nationality and for any Chinese national family members, they would need to remain in Wuhan while the travel ban issued by the Chinese authorities on Wuhan residents remains in force.
Because so much of the emphasis on the transmission of the virus relates to travel both internal and international, the issue of what happens at the border is of substantial concern. Again, the UK Department of Health is in control; according to its website it has introduced advanced monitoring at airports with direct flights from China and has placed a team of public health experts in Heathrow to support anyone travelling in from China who feels unwell. At the moment the Ministry of Health is planning to put into isolation for a fortnight the 1,500 people who have flown from Wuhan to the UK since mid-January 2020 but this is hampered by the fact that they can only find about one in ten of them (according to the Daily Telegraph). At the moment it seems that the isolation will be voluntary.
For the moment, there are no press releases from the Home Office or Border Force about the virus. Because people travelling to the UK include both British citizens coming home and foreign nationals, it is very difficult to place a blanket ban on arrivals from China as this would be contrary to the right of British citizens to come home. Banning all foreign nationals (eg Chinese) from coming to the UK on the basis of the epidemic in China is a very heavy handed measure and not one that would be taken lightly as it would have very substantial consequences for trade and diplomatic relations. The outbreak will have to get a lot more serious before such a measure might be contemplated.
So, the role of Border Force is very much one of aid and assistance to the Department of Health. At the moment they are assisting the Department of Health and Social Care to find the 1,500 passengers who have arrived from Wuhan recently. Together with the airport authorities, Border Force can also help in practical matters assisting public health experts to get quick access to people getting off planes and suitable resources. But there is also a role of Border Force to assist the public health experts through their power to access passenger name records held by airlines and their subcontractors. One of the issues of concern in the outbreak has been when a traveller starts to show symptoms of the disease, public health authorities want access as quickly as possible to information about other persons who were on the same flight and in proximity. Border Force’s long working relationships with the airlines over PNR and other measures (such as carrier sanctions) is useful.
Primary responsibility for advising British citizens planning to travel regarding the relative safety of their destination falls on the FCO. It issues regular reports on risks, country by country, and currently has an increasing extensive list of travel advice notifications which concern Coronavirus. As mentioned above, however, the FCO, is subordinate to the Department of Health and its notifications direct the reader to Public Health England for more information. If British citizens decide to travel to Wuhan, there is little that the government can do to stop them. While there is legislation to prevent British citizens travelling abroad (eg football banning orders, and British citizens seeking to go abroad to participate in terrorism) it is limited in scope. Further, there are many British citizens who are already outside the UK whose travel is impossible to control from here. British citizens returning to the UK have a right to enter and are not subject to immigration control. The only way to keep them from coming back is to deprive them of their British citizenship but this is a very severe measure only adopted by the Home Office in exceptional cases.
More than 730,000 British visit visas were issued to Chinese nationals in 2018 an increase of 11% over the previous year. China sends more foreign students to the UK than any other country (in 2018 more than 106,530). Many Chinese students will be coming to the end of their UK study visas as higher education institutions finish their graduation ceremonies. There are no reliable statistics on how many of these students and visitors come from Wuhan City. However, as the virus spreads across China, some students and visitors may wish to extend their stay in the UK until the situation has been brought under control. The UK has rules for extension of visit visas for medical purposes but this category is not relevant for these Chinese nationals who are trying to avoid medical treatment (or to avoid an epidemic) by staying a little longer in the UK. The same for Chinese students or Chinese migrants from other visa categories – if they do not meet the immigration requirements specific to their visa category to extend, would there be scope to argue the Home Office should consider extending their stay a little due to this epidemic? Quite possibly if the outbreak worsens and where there could be human rights implications.
The Minister for Health and Social Care was questioned in Parliament on 23 January 2020 about Coronavirus when a number of MPs asked for advice for their constituents who are Chinese or have Chinese relatives or have universities with strong links with universities in Wuhan, including student exchanges in the Members’ constituencies. But the Minister had nothing to say about visas. The Home Office may wish to address this issue as soon as possible.
For more information about the immigration issues raise, please contact a member of our immigration team.
Elspeth Guild is a partner in the immigration team best known for her expertise in the field of European Union free movement of persons, immigration and borders law and practice. She is widely recognised as an expert in her field. Elspeth is also a law professor at Queen Mary University of London and regularly teaches lawyers and judges in the EU on issues of EU borders and migration law and acts as an expert for international organisations such as the Council of Europe, UNHCR, and the European Commission and Parliament.
Jessica Jim is an associate in our immigration team with experience advising on all aspects of UK immigration, nationality and European matters. She has particular expertise in advising entrepreneurs and acts for many high net worth individuals and families, particularly those from the Asia-pacific region. Jessica is a fluent Cantonese speaker and speaks some Mandarin.
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