Legal Perspectives on Im/mobility Regimes in Times of Crises
When crises strike, the ability to move, or to be forced to stay, often comes down to legal status. Whether it is lockdowns during the pandemic, or the special protection offered to Ukrainian refugees, laws regulate who gets to cross borders, who has to stay in place, and under what conditions. They shape more than just movement, they expose underlying inequalities, with mobility rights shifting based on who you are, where you come from, and how governments respond in times of emergency.
A basic definition of a legal regime describes it as a “system or framework of rules governing some physical territory or discrete realm of action that is at least in principle rooted in some sort of law” (Hurst 2018, 21). This understanding applies to different areas of law, such as family law, work law, and as well migration law. Those specific areas of laws contain rules that govern, state, give, and deny certain rights and/or obligations for natural or moral persons, including states and other public entities. Additionally, those legal rules set principles and the margin of discretion on all such legal subjects.
In some cases, specific legal regimes may overlap so that several bodies of law apply to a single case. For example, if a foreign national loses her/his job and asks for social assistance, there is an overlap between migration law and regulations on social welfare (Borrelli et al. 2021).
Legal regimes govern the daily lives of persons within their respective territorial areas of application. Such application is not always visible, perceptible or tangible. In fact, while all individuals and legal entities live and act within a legal system or framework, the latter only becomes obvious when difficulties arise or when rights are reclaimed or denied.
Im/mobilities in Legal Regimes
The question of who can or cannot be mobile is, from a normative standpoint, one of legal categorization. Nationality, the holding of a residence document or even the fact of fulfilling the conditions laid down by a certain body of rules – e.g. being a refugee as defined in the 1951 Geneva Convention – will determine who can be considered to be im/mobile on the local, national, transnational and/or international level, and to what degree.
For example, the Federal Constitution of the Swiss Confederation states in Art. 24 para 1: “Swiss citizens have the right to establish their domicile anywhere in the country.” Here, the right to be mobile within Switzerland is granted to Swiss nationals with the exclusion of non-nationals. Art. 7 of the Agreement on the Free Movement of Persons (AFMP) grants a similar right of “geographical mobility” to EU citizens and the members of their families, so long as they fulfill further conditions such as being a worker.
Conversely, Art. 36 of the Federal Foreign Nationals and Integration Act (FNIA) states that “persons with a short stay, residence or settlement permit are free to choose their place of residence within the canton that granted the permit.” Thus, the mobility of those persons is limited to a canton or, to put it differently, the fact that they belong to a given legal category implies that they are subject to an “immobility regime” insofar as taking residence outside of the canton is concerned.
… During Times of Crises
The Covid-19 pandemic provided a remarkable example of the interplay between legal categorization and mobility – here understood broadly, as for example crossing borders or going outside the home to work instead of working from home. In the context of generalized immobility, such a right to mobility was particularly given to those groups of workers whose work was considered “essential.” Thus, the right to mobility was connected to a legal categorization of who is “essential” for the economy (and society) to have the right to cross state, local and regional borders (Piccoli et al. 2023). Such legal categorization was introduced through emergency legislation and lasted temporarily.
Another example is the case of persons fleeing from Ukraine. The European Union as well as Switzerland implemented the temporary protection and respectively the protection status S in 2022. In doing so they created categories of protected third-country nationals based on time (after 24 February 2022) and on belonging to circumscribed groups – Ukrainian nationals, permanent stay holders in Ukraine, who are not temporary stay holders or refugees nor asylum seekers from Ukraine.
Im/mobility in Legal Regimes: Strengthening Structural Differentiations?
Legal regimes create and enforce categorizations that grant or deny mobility rights to both citizens and non-citizens. The role of legal frameworks in defining who can be mobile – or is forced into immobility – is especially visible during crises, where laws, regulations, and classifications determine mobility rights based on legal status and temporal factors.
As we have seen, during crises like the COVID-19 pandemic or the war in Ukraine, governments introduced temporary legal categories that altered mobility rights. These responses illustrate that im/mobility is not just a physical, but a legal act which is shaped by crisis-specific categorizations and can shift depending on the situation.
This legal perspective, in turn, highlights the complex and often contested nature of laws governing who has the right to move. Legal regimes that regulate (im)mobility are tied to legal categorization, influencing the lives of individuals – whether they are aware of it or not – who move across state or local boundaries. These regimes often reinforce structural differentiations by determining mobility rights along the lines of citizenship, legal status, perceived necessity, and in times of crises also along temporalities.
Stefanie Kurt is a Professor at the School of Social Work at the University of Applied Sciences and Arts in Siders (VS). Her research interests focus on migration law, integration and citizenship. She is also a co-leader of the nccr – on the move project „Evolving (Im)Mobility Regimes: Migrant Workers’ Entitlement and Precarization in Times of Crisis.„
Francesco Maiani is a Professor of European Union (EU) Law and Faculty Dean at the University of Lausanne. His research interests include EU constitutional law, the law of the relations between the EU and its neighbors, as well as EU and International migration law. He is also a co-leader of the nccr – on the move project „Evolving (Im)Mobility Regimes: Migrant Workers’ Entitlement and Precarization in Times of Crisis.„
References:
–Borrelli, Lisa Marie, Stefanie Kurt, Christin Achermann, and Luca Pfirter. 2021. “(Un)Conditional Welfare? Tensions Between Welfare Rights and Migration Control in Swiss Case Law.” Swiss Journal of Sociology 47 (1): 73–94.
–Hurst, William, ed. 2018. “Understanding Legal Regimes.” In Ruling before the Law: The Politics of Legal Regimes in China and Indonesia, 13–47. Cambridge Studies in Law and Society. Cambridge: Cambridge University Press. https://doi.org/10.1017/9781108551502.003.
–Piccoli, Lorenzo, Jelena Dzankic, Didier Ruedin, and Timothy Jacob-Owens. 2023. “Restricting Human Movement During the COVID-19 Pandemic: New Research Avenues in the Study of Mobility, Migration, and Citizenship.” International Migration Review 57 (2): 505–20. https://doi.org/10.1177/01979183221118907.
