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Can indigenous persons who lack citizenship be deported?

Not every individual or group can be neatly classified in terms of citizenship and membership. We saw this when previously touching on the peculiarities regarding the citizenship status of indigenous/tribal nations as well as nomads. One of our other posts was on former Australian prime minster Kevin Rudd’s proposal to grant a safe haven (including Australian citizenship) to climate change victims from Pacific islands such as Tuvalu, who are at risk of becoming stateless due to the disappearance of their country.

Against that backdrop, a unique case on the deportation of two indigenous men has been brought before the Australian high court. According to The Guardian, “it is the first time the court has been asked to rule on the commonwealth’s use of its alien powers in this way, and the lawyers now representing the two men argue the term must be defined by the court, not parliament”. The case concerns two men, born in 1979 and 1988 and belonging to the indigenous Kamilaroi and Gunggari tribes respectively, who had a link to Australia through the citizenship of one of their parents. Despite having lived in Australia and being eligible for Australian citizenship, they only hold the citizenship of Papua New Guinea and New Zealand respectively. Both were at some point convicted of crimes, had their visas cancelled relating to character and deportation proceedings were started.

The case revolves around the relationship of the men’s status as indigenous persons and the relationship of that to citizenship. Commentators expect that the Court will take into consideration the Australia’s obligations under the 1954 and 1961 Statelessness Conventions, but more importantly will draw on case law dealing with aboriginal rights. A complicating factor is the relation with Papua New Guinea, which became independent from Australia in 1975. As a result, “a complex web of citizenship laws and successive changes to them in both PNG and Australia has threatened to leave some people stateless, as both countries assumed people had citizenship of the other and revoked their own, but failed to properly communicate it to individuals”.

The case also shows the continued relevance of citizenship. There is certainly merit in the claim by authors such as Peter Spiro (in Beyond Citizenship) that today “citizenship makes very little difference” and “the real prize is legal residency, not citizenship. It’s all about the green card, not the naturalization certificate”. In some respects, citizenship seems to matter even less in Europe, where Article 8 of the ECHR offers considerable protection against deportation of permanent resident aliens, particularly if their family life is affected. Third country nationals may also be covered by the EU family reunification directive. However, the Australian case shows how consequential citizenship status still is in the realm of immigration control. In contrast to legal permanent residents, citizens cannot be deported.

Author: Dr. Olivier Vonk

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