Airports, airlines, and travelers face a number of dynamic questions and challenges in the wake of the Trump administration’s abrupt televised announcement that the federal government “will be suspending all travel from Europe to the United States for the next 30 days.” The announced European travel ban (sometimes the “Ban”) is set forth in a Presidential Proclamation on Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting 2019 Novel Coronavirus (the “Proclamation”). As discussed below, the Proclamation provides further detail that was not immediately clear after the President’s brief televised announcement on Wednesday night.
First, as its name suggests, the Proclamation bans the entry or attempted entry into the United States of “all aliens who were physically present within” a defined area of Europe during “the 14-day period preceding their entry or attempted entry into the United States.” Proclamation § 1 (italics added). Under U.S. immigration laws, the term “alien” means “any person not a citizen or national of the United States.” 8 U.S.C. § 1101(a)(3). The Ban therefore does not apply to U.S. Citizens who are, or recently have been, physically present in Europe. However, U.S. Citizens who are currently abroad should be aware that they may be subject to other measures, including mandatory self-quarantine upon returning to the United States. Additional information may be found on the CDC’s website.
Second, the Ban contains a number of exceptions. For example, it does not apply to lawful permanent residents, or the non-citizen spouses and children of citizens and lawful permanent residents. See Proclamation §§ 1, 2(a). It also does not purport to limit a non-citizen’s eligibility for asylum within the United States. Id. § 2(b). Further, and of particular import to the aviation community, “any alien traveling as a nonimmigrant pursuant to a C-1, D, or C-1/D nonimmigrant visa as a crewmember or any alien otherwise traveling to the United States as air or sea crew” will be exempt from the Ban. Id. § 2(a)(vii). Thus, flight crews and their aircraft will not be stranded in Europe once the Ban goes into effect.
Third, the Ban applies only to the Schengen Area, a passport-free zone comprised of 26 European States that includes Italy, Germany, France, Spain, and Greece. See Proclamation § 1. For those of us not immediately familiar with the term, the Schengen Area takes its name from the Schengen Agreement, a 1985 treaty that largely ended border controls between European Union member states. For anyone who has travelled to Europe since the mid-1980s, the Schengen Agreement is what allows you to fly from JFK to CDG (for example), go through customs in Paris, and then travel freely to Italy, Austria, and Germany without going through any further customs or border controls in those countries. The United Kingdom and Ireland are not within the Schengen Area. See Proclamation § 1. Their citizens and residents will therefore be free to enter the United States notwithstanding the Ban, provided that they were not physically present in the Schengen Area within the last 14 days. Id.
Fourth, the Proclamation does not purport to place an outright ban on flights from Europe to the United States. This means that airlines can continue to fly to the United States from within the Schengen Area, provided that their flight crews are either 1) U.S. Citizens that are not subject to the Ban, or 2) fall within the air crew exemption set forth in section 2(a)(vii) of the Proclamation. Whether such flights will be economically viable for the airlines in light of the Ban’s other restrictions remains to be seen.
Fifth, the Ban only applies to foreign nationals seeking entry into the United States. If you permanently reside within the Schengen Area, but are currently present within the United States, the Ban should not directly impair your ability to return to your country of origin. It may indirectly impair your ability to do so in the event that airlines begin to cancel flights from the U.S. to Europe due to a drop in demand or other factors.
Sixth and finally, the Ban is not currently in effect. The Ban will officially become effective at 11:59 PM Eastern Daylight Time on Friday, March 13. Proclamation § 5. Any person who is aboard a flight to the U.S. that departed prior to that time will be exempt from the Ban. Id. This has left affected foreign travelers roughly 48 hours from the time of the President’s announcement to book and board a flight to the United States. The Ban will remain in effect “until terminated by the President.” Id. § 4. Despite the President’s televised remarks on Wednesday March 11 that the Ban will be in effect “for the next 30 days,” by its terms the Proclamation can continue indefinitely.
The full impact the Ban will have on air travelers, air carriers, and airports is not immediately clear. It is likely that air carriers will face a large number of cancellation and refund requests in the coming weeks given the large number of potential travelers who will be denied entry based on the Ban. This will present air carriers with the stark choice of either cancelling some or all of their flights to the U.S. from the Schengen Area, or flying planes with a large volume of empty seats. This reduction in passenger and flight volume will have trickle-down impacts on international airports in the U.S., along with the FBOs and concessioners who operate within them. And airports within the U.S. that have accepted AIP funding will be required under their Grant Assurances to comply with the Proclamation, and any further policies or regulations implemented by the Department of Homeland Security in enforcing the Ban “at and between all United States ports of entry.” See Proclamation § 3(c).
The situation is in its nascent stages, and will continue to develop over the coming weeks. Check back in for further updates, and feel free to contact the author if you are facing a specific legal issue.