President Trump signed a revised executive order on 06 March 2017 which temporarily suspends new entries of nationals to the US from Iran, Libya, Somalia, Sudan, Syria and Yemen.

 

There is a significant narrowing of the controversial executive order of 27 January which caused chaos at US airports and was challenged successfully in the courts. The previous order was blocked initially by a district court in Washington State and then an appellate panel of the 9th US Circuit Court of Appeals.

The new order revokes the earlier one and takes effect on 16 March. The key features of the new order are:

  1. It cuts refugee settlement this fiscal year to 50,000 from an earlier target of 110,000 and puts a stop to refugee admissions for 120 days. The new order also retreats from the attempt to prioritise applications from minority-religion refugees.
  2. The new order restricts nationals of Iran, Libya, Somalia, Sudan, Syria and Yemen from entering the US unless they had valid visas as of 27 January. The justification for this restriction is that new admissions from these countries would be “detrimental to the interest of the United States”.
  3. There is a departure from the previous order which included Iraq in the list of countries.
  4. There is a significant departure from the previous order which banned the entry of those who had valid visas, including permanent residence and suspended the resettlement of Syrian refugees. The new order allows nationals from the six countries to apply for case by case waivers and provides examples as to when waivers might be exercised e.g. where an individual has previously established significant contacts in the US or are seeking to visit immediate family members who are legally resident in the US.

Nationals from the six designated countries have already been undergoing greater scrutiny and vetting procedures compared to nationals of other countries. Nationals from Iran, Syria and Sudan face further scrutiny procedures since these countries have been designated state sponsors of terrorism by the US State Department.

Further, nationals from Iran, Sudan and Syria and recent travellers to all of these six countries are excluded from visa free travel under the Visa Waiver Program even if they hold citizenship of one of the 38 countries participating in the Visa Waiver Program.

The 27 January order was flawed on a number of counts and argued to be a breach of the US Constitution. The 9th Circuit Court also indicated that this order violated the First Amendment by discriminating against a particular religion. These matters will now become academic as the 06 March order revokes the previous one. The new order has tried to address the points of challenge in the previous order and the basis for a legal challenge has now been narrowed.

Trump’s administration continue to maintain that travel bans as set out in the new order are necessary and rely on the Immigration and Nationality Act 1952 and in particular section 212 (f) which allows the president to suspend entry of certain foreign nationals if he finds that their entry would be “detrimental to the interests of the United States”. Whilst this statuette has been used by previous presidents it is argued that it has never been used as broadly (and without a response to a specific event or threat) as Trump’s order. This therefore may be the starting point to any legal challenge.