Confusing Messaging From The US Regarding Travel Bans

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Last week, the US announced that all arrivals to the country would need a negative Covid-19 test administered no more than 72-hours before departure, effective January 26, 2021 (read more here).

My phone was buzzing last night when an alert came from WSJ that the outgoing administration is removing the travel ban from EU and Brazil arrivals. Less than an hour later, another alert that the new administration would keep it in place and strengthen it.

Here’s the termination of the ban:

Proclamation Terminating Restrictions on Entry of Certain Travelers from the Schengen Area, the United Kingdom, the Republic of Ireland, and Brazil

In the wake of the unprecedented outbreak of COVID–19 in the United States, I took action to suspend and limit the entry of aliens recently present in certain foreign jurisdictions where significant COVID–19 outbreaks had occurred.  These jurisdictions included the People’s Republic of China (excluding the Special Administrative Regions of Hong Kong and Macau), the Islamic Republic of Iran, the Schengen Area, the United Kingdom (excluding overseas territories outside of Europe), the Republic of Ireland, and the Federative Republic of Brazil.

Understanding that the nature of the threat posed by COVID 19 would evolve over time, I directed the Secretary of Health and Human Services to make recommendations to me regarding whether to continue, modify, or terminate the restrictions that I had previously imposed.  On January 12, 2021, the Centers for Disease Control and Prevention (CDC) issued an order, effective January 26, 2021, requiring proof of a negative COVID-19 test or documentation of having recovered from COVID-19 for all air passengers arriving from a foreign country to the United States.  The Secretary has explained that this action will help to prevent air passengers from the Schengen Area, the United Kingdom, the Republic of Ireland, and the Federative Republic of Brazil from spreading the virus that causes COVID-19 into the United States, as it is the Secretary’s understanding that the vast majority of persons entering the United States from these jurisdictions do so by air.

Moreover, the Secretary expects cooperation from those jurisdictions in implementing the testing order.  Public health officials in the jurisdictions have a proven record of working with the United States to share accurate and timely COVID-19 testing and trend data, and the United States has active collaborations with the jurisdictions regarding how to make travel safe between our respective countries.  As a result of that record, the Secretary reports high confidence that these jurisdictions will cooperate with the United States in the implementation of CDC’s January 12, 2021, order and that tests administered there will yield accurate results.

This cooperation stands in stark contrast to the behavior of the governments and state-owned enterprises of the People’s Republic of China and the Islamic Republic of Iran, which repeatedly have failed to cooperate with the United States public health authorities and to share timely, accurate information about the spread of the virus.  Those jurisdictions’ responses to the pandemic, their lack of transparency, and their lack of cooperation with the United States thus far in combatting the pandemic, cast doubt on their cooperation in implementing CDC’s January 12, 2021, order.

Accordingly, the Secretary has advised me to remove the restrictions applicable to the Schengen Area, the United Kingdom, the Republic of Ireland, and the Federative Republic of Brazil, while leaving in place the restrictions applicable to the People’s Republic of China and the Islamic Republic of Iran.  I agree with the Secretary that this action is the best way to continue protecting Americans from COVID-19 while enabling travel to resume safely.

NOW, THEREFORE, I, DONALD J. TRUMP, President of the United States, by the authority vested in me by the Constitution and the laws of the United States of America, including sections 212(f) and 215(a) of the Immigration and Nationality Act, 8 U.S.C. 1182(f) and 1185(a), hereby find that the unrestricted entry into the United States of persons who have been physically present in the Schengen Area, the United Kingdom (excluding overseas territories outside of Europe), the Republic of Ireland, and the Federative Republic of Brazil is no longer detrimental to the interests of the United States and find that it is in the interest of the United States to terminate the suspension of entry into the United States of persons who have been physically present in those jurisdictions.  Accordingly, I hereby proclaim:

Section 1.  Terminations.  Proclamation 9993 of March 11, 2020 (Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting 2019 Novel Coronavirus), Proclamation 9996 of March 14, 2020 (Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting 2019 Novel Coronavirus), and Proclamation 10041 of May 24, 2020 (Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting 2019 Novel Coronavirus), are hereby terminated effective at 12:01 a.m. eastern standard time on January 26, 2021.

Sec. 2.  General Provisions.  (a)  Nothing in this proclamation shall be construed to impair or otherwise affect:

(i)   the authority granted by law to an executive department or agency, or the head thereof; or

(ii)  the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b)  This proclamation shall be implemented in a manner consistent with applicable law and subject to the availability of appropriations.

(c)  This proclamation is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

IN WITNESS WHEREOF, I have hereunto set my hand this eighteenth day of January, in the year of our Lord two thousand twenty-one, and of the Independence of the United States of America the two hundred and forty-fifth.

DONALD J. TRUMP

And here’s an update from the administration that will take over tomorrow at noon:

Conclusion

The US’s travel ban has made very little sense because they have only banned people arriving who had not been to select countries in the past 14 days.

Europeans have been able to travel to the US by first being in Covid-19 hot spots such as  Mexico or Turkey (any other country not on the ban list is fine too) for 14 days as long as they still have had a valid ESTA. Canadians have been welcomed to the US the entire time, but only by air.

None have required negative Covid-19 tests, but this will change next week.

It is interesting to see if the new administration can implement more coherent Covid-19 policies in the United States and how they will affect the travel sector.

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