Passports at the junction of international and domestic law – Richard Alton

30 August 2015 by Guest Contributor

Western governments are increasingly concerned to establish that they have the power to prevent individuals from traveling to the Middle East to engage in terrorism-related activity (see Rosalind English’s recent post on Jihadi Brides). This has resulted in a spike in passport seizures, especially on the domestic level.  Under Chapter 1 of the Counter-Terrorism and Security Act 2015 the UK government has the authority to seize UK passports

where a person is suspected of intending to leave Great Britain or the United Kingdom in connection with terrorism-related activity.

These events encouraged me to revisit a 2010 publication I co-authored with my colleague Jason Reed Struble, entitled ‘The Nature of a Passport at the Intersection of Customary International Law and American Judicial Practice’ (16 Ann. Surv. Int’l & Comp. L. 9 (2010)). In that piece we discussed the very nature of a passport and its role in both international and United States domestic law. This article focussed on the seizure of foreign passports by the U.S. Department of Homeland Security, and the subsequent tribulations that follow. Thus, the work focused on a different spectrum of passport seizures, i.e. a government seizing another government’s passport, as opposed to a government seizing passports of its own nationals.

The importance of foreign passport seizure cannot be understated. At the outset, it involves the seizing of another country’s property, in addition to the personal infringement upon an individual’s right to travel. It could be time for the international community to reevaluate and legislate on these activities, so travellers and foreign citizens become aware of what is truly at risk.  In this post will I will revisit some of those issues touched on in the original piece and also examine foreign passport seizures around the globe, including the impact of my work in the United States. In doing so, I hope to encourage the international community to reexamine the role of foreign passport seizures, especially in its relation to an individual’s rights and expectancies.

The Nature of a Passport

Passports have existed for centuries. The word “passport” is a combination of the French words “passer,” meaning to pass, and “port,” meaning a port or a gate. It is thought that the term “passport” is derived from a medieval document required to pass through the gate of a city wall. Like the word’s two-part composition, the term also embodies two distinct notions.

1. it includes the old technical notion under international law of a passport that it is “written permission given by a belligerent to enemy subjects or others allowing them to travel in his territory or enemy territory occupied by him.”
2. the word passport embodies the everyday notion of an identity card, usually issued during times of peace, which serves as a statement of nationality and permits the holder to leave their country and travel abroad.

Although passports have existed for centuries, no other subject has received so little attention in international law literature. In the United States, the Department of Homeland Security (“DHS”) confiscates a foreign national’s passport when he or she is in removal proceedings. This is done for practical reasons, such as to prevent flight and facilitate return of the foreign national to his or her country of origin if he or she is ordered deported. If the foreign national is removed, he or she will be able to return to their place of origin. If the foreign national is not removed, his or her passport will be returned. From my understanding, this practice is standard across the globe.

Foreign passports are also seized by governments when dealing with international child custody cases and criminal arrests. As an immigration attorney, I have had many unpleasant experiences ensuing from the impounding of a client’s foreign passport by the DHS before placing him or her in removal proceedings. In 2010, I found myself desirous of a legal standard that could be used to prevent the DHS from confiscating my client’s foreign passports because the unfortunate reality that flows from the DHS’s administrative confiscation of a foreign national’s passport is that the DHS either misplaces the passport, or fails to return it in a timely manner upon completion of the removal proceeding. As a result, people have been forced to either wait months in detention until the passport is located, or request travel documents from their consulate in the United States, which causes further unnecessary delays.

However, throughout my work I determined that the legal issue of standing presides, since passports are the property of the issuer, i.e. the foreign government, and not of the holder, i.e. the foreign citizen. This means that those individuals who have had their foreign passports seized by a government, lack standing to sue its return. My co-author and I urged that the U.S. government should codify regulations regarding foreign passport seizures in relation to the DHS, as the only procedures for such an act currently reside in Standard Operating Procedure manuals issued by the DHS. Our suggestion was subsequently cited  by at least one U.S. Court regarding the issue of standing and the subsequent denial to return a foreign passport. Although this was, no doubt, an unintended consequence of my work, the question remains: where does the law truly stand?

US v Abdul-Ganiu

A look towards U.S. and U.K. courts’ decisions should prove fruitful. U.S. v. Abdul-Ganiu, a 2012 non-precedential case from the U.S. Court of Appeals for the Third Circuit, the Court relied specifically on my work in determining whether to release the claimant’s Nigerian passport. (This case has been subsequently relied upon by a U.S. District Court on issues outside of the seizure foreign passport, which beckons a discussion on whether non-precedential cases still exist in the U.S.  An idea for another discussion on another day.)

A jury had convicted Mr. Abdul-Ganiu of possession with the intent to distribute 100 grams or more of heroin in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(i), and of importing a controlled substance into the United States in violation of 21 U.S.C. §§ 952(a) and 960(b)(2)(A). A timely appeal followed, challenging both his conviction and his sentence. The court affirmed the lower court’s decision. However, the Court also addressed the issue of the return of his Nigerian passport. The case also questions the propriety of the District Court’s order at sentencing that he surrender his Nigerian passport. We conclude that Abdul-Ganiu lacks standing to contest the District Court’s directive as passports are the property of the issuing sovereign, not the holder of the passport (see Richard A.C. Alton & Jason Reed Struble, The Nature of a Passport at the Intersection of Customary International Law and American Judicial Practice, 16 Ann. Surv. Int’l & Comp. L. 9, 15 (2010); Cf. 22 C.F.R. § 51.7 (providing that “[a] passport at all times remains the property of the United States”).

As such, U.S. Courts appear to be content to rely on the issue of standing with regard to foreign passport seizures. It is important to note that my work served a central tenet in the decision. The only law the Court could consider concerns U.S. property rights over its own passports, which is not the issue at fact in the case. This serves as an important reminder that there is no law regarding foreign passport seizures in the United States, and that this decision and others like it in the future will rest on standing.

Comparably, in the United Kingdom, we are presented with an interesting nuance, but also a reaffirmation of the standard. Atapattu, R. v The Secretary of State for the Home Department 2011 and SH v. BH 2014 ( see Rosalind English’s excellent overview of the Atapattu case). Mr. Atapattu was a Sri Lankan national who worked in the merchant navy. He had applied for a student visa to enter the United Kingdom. In January 2010, following two failed attempts, he re-applied by submitting his passport to the British High Commission in Sri Lanka. However, he received neither a response nor the return of his passport. Mr. Atapattu applied for judicial review and during which time his visa was granted. The passport was returned in August 2010, but Mr. Atapattu still pursued his claim, seeking to recover damages. As Rosalind English notes, he contended that the retention of his passport meant that he was not able to pursue employment in the merchant navy, which caused actual loss of earnings, and that since the failure to grant a visa meant that he could not pursue a course of study in the UK, he had been prevented from qualifying as a ship’s master, which caused loss of enhanced earnings. Among other claims, Mr. Atapattu claimed that the wrongful retention of his passport made the secretary of state liable for damages for conversion under the Torts (Interference with Goods) Act 1977. The application for judicial review granted on the conversion basis. As Rosalind English confirms,

[c]laims for conversion required that a party had title to sue, an unconditional demand for the goods or item’s return had been made, and such request had been refused or delivery of the item had failed.

…Since it was possession of property, not ownership, which gave title to sue for possession, the claimant’s right to possession of his passport was sufficient to give him title to sue for conversion.

Mr. Atapattu was found to be entitled to damages for that element of the claim. A fascinating result, in that conversion was used to bypass the standing issue. This no doubt opens up an important issue, for example, could an unlawful seizure by government officials allow an individual in the United States to sue for the return of his passport, even though that passport does not belong to him? However, before I herald the U.K. as a vanguard of passport rights, a 2014 case is worthy of mention.

In SC v BH , the Family Division of the High Court granted a U.K. mother’s application to seize the U.S. passport of her child’s father if he enters the U.K., along with the passport of the minor child if one is in the father’s possession (see commentary on this case here). The U.K. mother had relocated from the United States after the birth of their child. The judge concluded that it would be inimical to the minor child’s welfare for her to be removed from her mother’s care by her father who was a total a stranger and for her to be taken from all she knows to a foreign country. Rather, the father should accept the reality that the child’s home was in the United Kingdom with her mother and, having accepted that, he start working with these courts and with the mother to establish contact and to build up a relationship with his child. Until such time as he did that, the judge took the view that his actions to date led to a real risk that the father would use the vehicle that he had put in place, namely passport and Texan orders, to enter into this country and abduct the child.

The High Court relied on a similar standard used in the U.S. judicial family court system which is ‘the best interests of the child’. No specific law or regulation was cited with regard to the order to seize the passport. Thus, the U.K. justice system has no qualms, and feels as justified as the U.S. justice system in maintaining the systematic seizure of foreign passports. Yet what does this mean for the global community in general?

Somalia’s Radio Shabelle Owner’s U.K. Passport Seized

Precisely this issue came into play with the seizure of Abdi Malik’s U.K. passport in October 2014. Mr. Malik was the owner of a Somali radio station. A court in Somalia ordered the seizure of his UK passport after he was accused of threatening national security. The allegations related to fighting that followed the government’s disarmament of some clan militias in the capital, Mogadishu, in August. However, the case underpins the lack of domestic clarification and international involvement in the seizure of foreign passports. It shows that while individuals may believe they have a vested property right in their passport, they are increasingly discovering that is not the case. The reality is that the Somali government has seized property of the U.K. If the U.K. so desired, it would have every right to file a claim against the Somali government. This is true for every sovereign state whose citizens have their passports seized by a foreign government.

The quagmire will be impressive if eventually one country finally decided to enforce its jurisdictional rights over its own property. At the present, there appears to be an unspoken bond between countries about the seizure of foreign passports. This was not always the case though, and I encourage readers to review my initial 2010 work on this topic for a more thorough history.

Current Climate

My final thoughts from my 2010 article have not changed. Now is the time to clarify the current position on the issue of impounding foreign passports because it would remove the current policy standard from mere dicta and inter-governmental memoranda to a more authoritative realm. If governments desire to continue impounding foreign passports in violation of customary international law, they should codify into law the means by which their respective agencies may impound foreign passports. The international community should take an active rule, by creating such laws, and thus set a standard by which the impounding of foreign passports can occur, as well as enact an enforceable domestic jurisdictional defense in the international arena to avoid being drowned by international claims.

Richard A. C. Alton specialises in immigration law in Miami, Florida