B. Values, Principles, and Constitutional Citizenship

The type of equal citizenship trumpeted in many constitutions across the world is just as elusive as the idea of an equal opportunity pandemic. Formal constitutional law in many countries asserts the equality of citizens, often alongside the imperative of avoiding statelessness. This may be found in the texts of constitutions themselves and in principles found elsewhere within constitutional law, many of which have been interpreted and upheld by courts with constitutional mandates.^{Footnote 25} Such texts may promise equal citizenship for all, but the reality, once context is brought back in, is that citizenship is often experienced unequally. This point applies across citizenship’s many dimensions: as regards issues of legal status or “access,” often termed “nationality”; as regards the bundle of rights and duties that are sometimes conflated with the membership principle itself; and as regards the political, identarian, and symbolic aspects of citizenship and its capacity to define who “we” are and how we can act responsibly towards each other and towards the institutions that shape our common existence. In sum, “full membership” may be inaccessible for many, both for reasons of socio-economic exclusion and because of the inaccessibility of public spaces for political participation.

Inequality has long been a pervasive condition of citizenship and of citizens both within and across states,^{Footnote 26} but it has perhaps become even more visible in recent years, in tandem with a noticeable rise in political movements of nationalism, populism, and often authoritarianism, which have been infecting many national citizenship regimes.^{Footnote 27} Inequality in relation to the various dimensions of citizenship has not only been fostered by the same types of societal and economic factors which have engendered the inequality effects of the pandemic/syndemic, but also by a range of other crises, such as conflicts in Iraq and Syria (giving rise to forced migrations of many thousands of people) and the financial and later sovereign debt crises of the late 2000s and early 2010s, which have engendered policies of austerity. Of similar importance for understanding the reality of unequal citizenship are systemic and ongoing challenges such as climate change and embedded gendered and racialized structures, especially within post-colonial societies. Equality is therefore at best an aspirational principle, which ends up reinforcing the continually contested character of citizenship and the struggles of citizens and non-citizens alike for equality and full recognition within the context of the boundaries set by citizenship, operating as membership principle. Sometimes equality claims can be successful in righting historic wrongs or opening the door for excluded groups, especially in the context of constitutional litigation, but this is a relatively rare outcome. In fact, the history of citizenship can best be characterized as an ongoing “struggle to reconcile boundaries with equal treatment, collective identity with individual rights, democratic self-government with individual self-realization, and the ideal of a ‘universal personhood’ with the realities of a particularistic ‘citizenship,’ which for many is nominal at best.”^{Footnote 28}

The case for adopting a framing of constitutional citizenship for understanding the pandemic/syndemic is strong. When we look closely, we can see that the pandemic, as perhaps the greatest public health emergency the modern world has ever known, contributes to stripping citizenship back to its fundamentals, revealing it to be not only an artefact of government (in the sense of determining the basic facts of membership and of in/exclusion) but also an omnipresent element of human community and of political organization. In that sense, the pandemic has the capacity to throw into relief the organizing moral and social principles of the idea of a bounded community, as well as challenging the political nature of those bonds and boundaries. The virus attacks core principles of human sociality by casting doubt on the desirability of touch,^{Footnote 29} physical proximity (“social distancing”), and the possibility of certain types of group behavior,^{Footnote 30} whilst at the same time challenging us as individuals and communities to find new and ethical modes to develop and show resilience within and across boundaries and to minimize risk for ourselves and others. All of these factors relate clearly to the constitutional foundations of different polities, and, as noted, these observations shed important light upon the pandemic’s obviously disparate impacts according to well-established vectors of difference because of the clear congruence with citizenship’s own conflicted relationship with equality. In that sense, any analysis of the “people and the pandemic” needs to grapple with the inevitable tensions between the symbolic role of the citizen at the heart of constitutionalism (and thus the cherished principle of equality as socio-economic and political ideal, alongside related values such as human dignity and freedom), the instrumental behavior of states and governments in relation to citizenship status and citizenship rights, and the unequal healthcare and socio-economic outcomes that flow out of the pandemic. At the same time, COVID-19 has seen the strengthening of the state across many dimensions, with extensive mobility restrictions and the use of emergency powers to enforce lockdowns. This has thrown into relief the ongoing contestation of sovereign powers between citizens themselves as political agents and states as constituted powers.

Furthermore, a framing of constitutional citizenship can also capture the dynamics of membership in times of crisis, as occurred, for example, in post-revolutionary France or in post-Civil War United States of America, with the adoption of the Fourteenth Amendment and its extension of birthright citizenship.^{Footnote 31} For example, enhanced citizenship status or rights have regularly been used during and after wars to reward combatants, or those whose status within society has changed as a result, for example, of labor shortages. A good example is the granting of female suffrage in many countries after the First World War during which many women had become involved in the labor market.^{Footnote 32} The relationship between citizenship and war is complex, and goes back many centuries, right to Roman times, but has evolved in more recent times to encompass also an enhanced concern about the relationship between enemy aliens and national belonging, which casts into doubt also the allegiance of naturalized citizens.^{Footnote 33} During the COVID-19 pandemic, tropes of war and dis-allegiance have invaded the language of many politicians, who have employed martial metaphors to suggest that combatting the virus/disease is something like a case of going to war, and who have invested the description of the virus with xenophobia, such as Donald Trump’s use of “China virus”, or the negative connotations invested in the naming of the “Indian variant” until the World Health Organization (WHO) retitled the variants of the virus according to the Greek alphabet in substitution for the place where they were first sequenced.

The main part of the analysis in this article highlights some of the most important areas where we can see an impact of the pandemic on aspects of citizenship as understood in its constitutional context, where there are risks that such impacts may be exacerbated by existing vulnerabilities or inequalities. There is inevitably some overlap between the different topics discussed, and the coverage is certainly not comprehensive, not least because the pandemic/syndemic remains an evolving scenario. Since the coronavirus first emerged as a threat to human health and wellbeing at the end of 2019, the COVID-19 epidemic has already passed through a number of phases. These have revealed the tensions that exist, for example, between human rights and health protection. During the initial phases of the pandemic, the primacy of health protection was characterized by strong movement restrictions, adopted in order to reduce drastically the contacts between people. In the shorter term, these could be justified on emergency grounds. In the longer term societies may need substantial regulatory and structural adjustments in order to make it possible for humans to co-exist successfully with the virus, which is likely to remain in circulation in most countries.^{Footnote 34} Out of emergency may emerge a new experimentalism.^{Footnote 35} Even so, the fundamental tension between individual freedoms, as well as broader social questions such as the impact on mental health, education, the economy, and the protection of the right to life and to health, especially of the most vulnerable, will persist, although how precisely this tension plays out will vary from country to country and according to the point in the cycle of the pandemic at which any given country is located. The calculus in relation to the mix of measures to be adopted depends upon scientific and medical questions as well as socio-economic and political ones. There are also profound tensions between thinking about a rights-based approach in a national context involving the partial or complete closure of borders, where the protection of the existing resident population is given precedence above other interests, and broader internationalist or global perspectives on human rights, which take into consideration, for example, the capacity of richer countries to corner supplies of drugs or vaccines,^{Footnote 36} which are desperately needed elsewhere in the world, or place additional weight upon the negative effects of border closures on certain groups, such as migrants or transnational families.^{Footnote 37} These are all factors which will be built into the analysis.

The general focus in the following sections is on what might be termed the “linear effects” of COVID-19 in relation to matters of citizenship, that is to say, on the types of measures that might ordinarily be expected in a public health emergency for the purposes of saving lives or ensuring the availability of health care. For example, if public offices are closed or certain types of administrative processes are curtailed because of social distancing or other measures of infection control, then we must expect there to be impacts upon different dimensions of the citizenship principle. Both democratic and authoritarian regimes are likely to take such measures, but such measures may have differing meanings according to context. While the impacts on citizenship that emerge from public health and public order measures may be typical governmental responses to the pandemic and are not necessarily the products of the political dynamics of populism or authoritarianism, in fact such impacts are or could become problematic insofar as they may lead to major and even permanent changes to the constitutional dynamics of citizenship that have not been subject to proper scrutiny by elected representatives or consented to by the public itself.^{Footnote 38} They therefore need to be individually assessed against standard national and international public law criteria around accountability, which themselves should have regard to questions of equality. Inevitably some measures and practices will be good, some will be bad, and some will be just what is normal.^{Footnote 39}

An underlying concern of the article is to consider how we may be able to challenge the impacts of COVID-19 on citizenship in the light of legal and constitutional standards. It is easy to see that there are a number of areas which could, in the future, be subject to legislative or judicial intervention, for example, to protect the rights or status of certain minority or vulnerable groups, in the light of principles such as equality and human dignity. Indeed, “human rights” approaches to studying the pandemic and contesting its consequences abound.^{Footnote 40} Measures such as the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights,^{Footnote 41} which have been discussed in the extensive literature assessing the COVID-19 pandemic from a human rights perspective,^{Footnote 42} may become increasingly important for such assessments. It may be the case in the long term that durable and wide-ranging change is more likely to flow from political rather than judicial action.^{Footnote 43} This may also be more in keeping with the political weight accorded to the oft-quoted mantra of “build back better,” a phrase which stems from United Nations led work on disaster management^{Footnote 44} but which has now been widely adopted as a motivating slogan at national level for the post-COVID-19 era. While this article focuses on a preliminary scoping out of how the pandemic’s effects are heightened by existing inequalities and vulnerabilities, it also sets the scene for further research as the world moves through the various phases of the pandemic towards, it is hoped, better therapies, a raft of effective vaccines, an improved understanding of risky behaviors and the trade-offs involved, including for mental health, and finally a comprehensive economic recovery for all sectors of society and parts of the globe.

C. The Impact of COVID-19 on Citizenship as Legal Status

The effective operation of a citizenship regime is dependent not just upon constitutional norms and legislative measures but also on a literate and comprehensive bureaucratic apparatus that can ensure that life-course milestones such as births, marriages, and deaths are properly documented. These measures—especially birth registration and the provision of identity documentation, which often depends upon accurate and timely birth registration—are what give meaning to any constitutional commitment to the right to citizenship or constitutional mandate for the avoidance of statelessness. While delays in birth registration have been common in many countries during the pandemic,^{Footnote 45} in some countries non-registration at the time of birth could translate into lifelong statelessness and inability to prove identity for the purposes of schooling, healthcare, employment, and access to other public goods. For those whose position is already precarious, or in countries where birth registration is not fully established, the impact of the pandemic is liable to amplify existing inequalities.

Although the pandemic may not generate substantial new incidences of statelessness, there is no doubt that being stateless and thus lacking the safe harbor of citizenship and the rights attached to it can be a significant aggravating factor in relation to the impact of the pandemic. This has motivated considerable efforts on the part of international public authorities and especially non-governmental organizations focused on the elimination of statelessness to try and map in detail where there are “pinch-points” in the system, for example, because of interferences with ongoing civil registration work or disruptions to asylum and statelessness determination procedures.^{Footnote 46} These problems may leave large numbers of people in limbo with the result that they are more likely to be deprived of rights in relation to health care, access to socio-economic support in host countries, and rights to civic and political participation. Furthermore, if societies are turning increasingly inward then there is potential for increase in discriminatory and xenophobic practices and incidences of hate and even violence against vulnerable and marginalized communities. The very “hidden” nature of statelessness can be a strong exacerbating factor in increasing exclusion and vulnerability, for example, making it easier for these groups to be missed during vaccine rollouts, whether accidentally or intentionally.^{Footnote 47}

A further area of citizenship practice to feel the effects of COVID-19 has been that of naturalization. There have been delays to naturalization processes because of the inability to fulfil the social aspects of citizenship acquisition including handshakes or in person ceremonies, as well as problems obtaining (and indeed renewing) passports. These are all more likely to pose substantial challenges for those who find themselves at the margins or “fringes” of citizenship.^{Footnote 48} That would include some of those who are seeking to gain citizenship by naturalization based on regular lawful residence and the fulfilment of other conditions because of their status as migrants in the host polity. So, for example, delays and obstacles may cause problems for those who risk clocking up too many days spent outside the host country because of pandemic-related travel restrictions or for young people who can no longer roll their own naturalization under the banner of those of their parents because they have passed a certain age limit.

During the pandemic, states have often been slow to rethink their approaches. Thus Ireland, which already has a notoriously slow naturalization process, stopped in person ceremonies at the inception of the pandemic. It was only in January 2021, by which time there was a backlog of 24,000 applications and 4,000 applications which were “ceremony-ready,” that the national authorities replaced the ceremony with a temporary process based on a statutory declaration.^{Footnote 49} Furthermore, the pandemic, which has changed social behaviors in so many areas, has inevitably raised questions about why handshakes may still be seen as a necessary part of a citizenship acquisition process in circumstances where handshakes have come to be seen as potential vectors of infection. Similar questions have been raised about the intersection between citizenship and veiling, given that in a number of countries the wearing of a face-covering such as the burqa and the niqab has been prohibited or regarded as a factor that could exclude the wearer from access to the host state citizenship via naturalization.^{Footnote 50} In many countries, the wearing of a face covering as infection protection measure has become a normal practice. In some cases, the practice may extend—as has already been the case in East Asia—well beyond the parameters of the present pandemic. It might be argued that the adoption of face coverings for infection protection as standard practice should lead to questions about why other types of face coverings are seen in some countries with Muslim minorities as evidence of bad, not good, citizenship. It does not seem likely that the pandemic will generate new insights into the paradox that some face coverings are banned and others are compulsory in certain circumstances. Indeed, in the midst of the pandemic, Swiss citizens voted in a nationwide referendum in favor of a prohibition on the wearing of face coverings in public, unless this was for a health protection purpose. This is a clear step towards generating greater marginalization for the tiny minority of women of Islamic faith in that country who would choose to wear a face-covering burqa or hijab for religious reasons when in public.^{Footnote 51}

It would be incorrect to assume that all linear consequences of measures taken in relation to the pandemic as regards citizenship are in fact rights-restrictionist. In some cases, the enhancing of national and other solidarities, which many regard as central to combatting COVID-19,^{Footnote 52} has given rise to what might be described as generous responses. Early on during the initial “first wave” of the pandemic, it was widely reported in the media that Portugal was conferring temporary citizenship rights upon a group of migrants within the country. On closer inspection,^{Footnote 53} it became apparent that the Portuguese migration authorities had issued secondary legislation protecting the situation of those who have pending applications under the Foreigners’ Law or under the Asylum Law, who—after the declaration of a National State of Emergency on March 18, 2020—could no longer be seen by the relevant authorities in person in order to review their cases. Time stood still on their applications until June 30, 2020, and the measure simply secured their existing rights as lawfully resident non-citizens, thus permitting, for example, access to healthcare, to work, and to welfare benefits. Even those without legal residence status in Portugal were also given partial protection so far as concerns their right to emergency healthcare, including treatment for COVID-19 and maternal, fetal, and new born health conditions. Combined with Portugal’s relatively accessible naturalization regime and newly minted ius soli principles for the second generation born in the country,^{Footnote 54} such measures have the capacity to open out citizenship in times of crisis. We can also note the measures taken in France to accelerate the naturalization of key frontline workers who had already applied for citizenship by reducing the qualification time required for citizenship to be conferred^{Footnote 55} and the new pathways to permanent residence for certain groups of desired workers extended to those living in Canada during the pandemic.^{Footnote 56} This in turn provides a pathway to citizenship through naturalization, as does the extension of indefinite leave to remain in the UK for non-citizen relatives of National Health Service (NHS) workers who died of COVID-19 during the pandemic.^{Footnote 57}

It is certainly clear that the impact of travel restrictions will undoubtedly have constrained what might be termed one of the “markets” for citizenship, namely that related to birthright citizenship of convenience, or “birth tourism.” This term refers to those who travel in the later stages of pregnancy to a country with unconditional ius soli with a view to giving birth in that country and thereby seeing the citizenship of that country conferred on the child.^{Footnote 58} While the term “birth tourism” is generally used by those who are opposed to the practice as in some way abusive of the ordinary rules of birthright acquisition in target countries such as the U.S. or Canada, the fact that this practice occurs (and indeed has been documented by researchers such as Yossi Harpaz^{Footnote 59}) opens new policy options for governments in the pandemic and post-pandemic world wishing to erect tighter citizenship borders.

All of these reflections raise a more general question about whether the pandemic could lead to a substantial reshaping of patterns of citizenship acquisition and loss and the increasingly transnational character of citizenship for many people. Dual and even multiple citizenship arises for a variety of reasons including by birth, via various forms of ordinary residence-based naturalization and registration for migrants and their families, and via facilitated naturalization for certain privileged groups of non-residents. State tolerance of dual citizenship has increased dramatically since the Second World War, and gradual liberalization continues in some parts of the world.^{Footnote 60} Peter Spiro does not see any serious likelihood of the trend towards wider acceptance of dual citizenship being reversed in the post-pandemic world, even though much of the normal churn of immigration-related mobility did grind to a halt as a result of travel restrictions at least in the earlier phases of the pandemic. However, he acknowledges that in relation to one segment of the dual citizenship universe, that is, the conferral of citizenship upon non-residents in return for an investment, the impact of the pandemic on mobility is likely to have at least a short-term effect, as these types of “luxury good” citizenships no longer confer travel privileges in the same way in a world that has been, at least temporarily, less mobile even for the most privileged groups.^{Footnote 61} Yet, neither he nor Kristin Surak^{Footnote 62} see that market as likely to be substantially impinged upon in the longer term. Surak suggests adjustments so that residence by investment rather than non-resident citizenship, with its connotations of a safe haven, becomes potentially the most desirable good for the super-wealthy to purchase. Meanwhile, Jelena Džankić suggests that thus far the impacts of the pandemic upon states may have been underestimated and a different type of cost-benefit analysis may flow if states become more protective of their borders and healthcare systems.^{Footnote 63} Yet, by definition, investor residents and citizens are supposed to be net payers, and under conditions where states have lost other types of conventional tourism income—for example, in the Caribbean—investment citizenship may seem doubly desirable. That speaks to the supply side of the equation. Judging the demand side is a tricky task, not least because this is a group that remains hard to research.^{Footnote 64}

These possible effects in relation to acquisition and loss of citizenship, however, stand at the opposite end of the spectrum to where the primary concern of this article lies, namely with the potentially exclusionary effects of the pandemic on those for whom even a single effective citizenship is a chimera in the distance. For the latter groups, it is clear that delays in birthright registration and restrictions on immigration during the pandemic have the potential to exacerbate existing inequalities in relation to access to the public goods associated with citizenship as membership. It is to the wider framing of that latter point on immigration, namely pandemic (im)mobilities, that we now turn.

D. (Im)mobility in a Pandemic

The pandemic has given rise to a dramatic reduction in mobility, according to data available from mobile phone companies and transportation authorities.^{Footnote 65} Far-reaching governmental measures were imposed first in China and then around the world as the virus itself traveled to every corner of the globe. Under this heading, we could subsume not just travel restrictions within and across states^{Footnote 66} but also stay-at-home mandates that have reduced the numbers of contacts at a population level and correlated with lower transmission rates for COVID-19 infections.^{Footnote 67} Stay-at-home mandates, which can be thought of as “everyday mobility” restrictions, are, however, best examined under the category of intrusions into the private lives of citizens. These are the focus of the following section. This section looks mainly at the management of borders, especially state borders, in the context of the pandemic, and thus the impact on travel. This is a place where engagement with the boundaries of citizenship is especially clear.

The most visible aspect of the management of borders during the course of the pandemic has been the imposition of widespread travel bans and restrictions, including new bureaucracy around traveling such as tests, passenger locator forms, and quarantine/isolation requirements. Yet at the same time as travel restrictions have reduced mobility at the aggregate scale, so also various other forms of involuntary or less-than-wholly-voluntary mobility have continued throughout the period, even if at reduced levels.^{Footnote 68} The involuntary mobile are not all travelers in any conventional sense. The category includes homeless persons, who have no home to stay in,^{Footnote 69} and migrant workers in countries like India, forced to leave the cities to return to the countryside.^{Footnote 70} Across the world armed conflicts—which result in displaced civilian populations—have continued or restarted, feeding the volume of involuntary mobile persons.^{Footnote 71}

Throughout the period, some voluntary mobility has continued, especially amongst groups which have privileged access to the extra resources, such as testing and vaccination, which are now generally required for travel. Elite athletes, for example, have not been subject to the same travel restrictions as others because they are frequently tested and so are not always required to quarantine in the same way as ordinary travelers^{Footnote 72} or have had privileged access to certain countries, as in the case of tennis players traveling to Australia for the Australian Open tournament in 2021.^{Footnote 73} The capacity to travel and even to travel for vaccination purposes^{Footnote 74} has become a new kind of luxury good, like citizenship by investment.^{Footnote 75} The rise in costs has substantially burdened migrant workers and those with transnational families, for whom travel is part of family life, not a luxury, a recreation, or a lucrative business.^{Footnote 76} This could be described as the decline of the everyday global citizen.^{Footnote 77}

New norms are emerging in relation to immigration, blurring the distinction between voluntary and involuntary mobility.^{Footnote 78} There are still many migrant workers crossing borders in many parts of the world,^{Footnote 79} either returning home because the jobs they performed no longer exist, or traveling to work because various countries require temporary migrants to do certain types of jobs, for example, in the agricultural, agri-industrial, and food processing domain. Countries can justify ostensibly risky mobility on grounds of food security^{Footnote 80} or even consumer preference.^{Footnote 81} The churn of migration may have reduced, but it has not ended,^{Footnote 82} and this has consequences for public policy.^{Footnote 83} For these purposes, new concepts of essential and inessential travel have been developed, and the interface between these concepts and economic power and affluence—both at the societal and individual levels—has given rise to new sites of inequality and sources of vulnerability, for example, in relation to access to healthcare and vaccines. The application of these concepts needs to be understood in context: As Audrey Macklin shows, in the context of Canada it is the context of being a settler colonial “country of immigration” that matters as regards whether travel by non-citizen family members of residents or seasonal workers is deemed essential or inessential.^{Footnote 84}

A connection is often drawn between borders and citizenship or nationality, as the border is commonly the place where we must prove our identity or our belongingness to a given community. However, borders are now complex and multi-facetted structures, and understanding them must go beyond the conventional binary of “open” or “closed”. As Ayelet Shachar argues,^{Footnote 85} we need to take a nuanced perspective on the nature and effects of borders, not all of which are located at the edges of countries, but may also be found internally. Actions taken by states to restrict non-citizen entry and to encourage non-resident citizen return along with—at the micro level—the changes in personal lifestyle and migration calculations made by many migrants all seem to point to a degree of de-globalization occurring, as well as a reversal of trends in immigration and emigration that may not be reversed for some years or even decades. The picture, however, is complex, and other factors such as the direction of travel, in or out, the origin and destination of the traveler, and whether the restriction is on internal movement or movement across state borders will also matter.^{Footnote 86} Furthermore, the evolution of green, amber, and red lists of countries, as in the UK, has often been determined as much by political considerations as it has by reference to epidemiological or scientific data. Travel restrictions have even, as the pandemic has moved into its later stages, been conditioned by the availability of vaccines, which the richer countries themselves largely control. This profoundly undermines the position of those with the citizenship of, or family or business connections with, those countries that are deemed to pose greater risks. It highlights familiar neo-colonial patterns organized around the racialization of risk and disease.^{Footnote 87}

While the implications of the mobility and travel restrictions that have been imposed stretch beyond the issue of citizenship, they are none the less frequently conditioned by the contours of formal membership. For example, holding a national passport or having permanent resident status is necessary for entry or for residence in a particular part of a country.^{Footnote 88} COVID-19 related emergency measures have impacted upon different groups of citizens in different ways. Amongst the groups of citizens who were located outside their home country at the point when the restrictions were imposed there will be those whose absence from the home country is temporary and those whose absence is permanent, along with many shades between the two. These groups will also include those who hold single citizenship (perhaps in combination with a residence permit in the host country or a special status like India’s Overseas Citizenship to allow return to the country of origin where citizenship has been lost) and those who are dual or multiple citizens. Diasporas have come to the forefront of policymaking during the pandemic, notably as a result of the dilemma as to whether to persuade them to return “home” or to “stay put” and thus to continue producing the remittances that may contribute to offsetting the economic impact of the pandemic and that can move digitally without any requirement of physical movement in our financially interconnected world. A minority of countries have imposed restrictions on their “own” nationals, in apparent violation of Article 12(4) of the International Covenant on Civil and Political Rights, which provides for the right for everyone to be able to return to their “own country.”^{Footnote 89} This raises doubts about the caps placed by New Zealand and Australia on returning citizens on the grounds of limited quarantine capacity,^{Footnote 90} about the steps taken by Australia to criminalize citizens returning from India at certain points, although these have been upheld in the courts,^{Footnote 91} and about India’s withdrawal of the visa privileges associated with the status of overseas citizen or person of Indian origin.^{Footnote 92} There are a number of countries which have prohibited citizens from leaving without permission during the pandemic.^{Footnote 93}

If the effects of various measures taken to contain the pandemic or its socio-economic dimensions restrict citizenship privileges and rights, then this will once again impact more significantly upon those with weaker economic status, as well as those with the citizenships of poorer countries or of countries lacking the infrastructure or will to act protectively. Commentators have noted that some rich countries were quick to mount repatriation efforts, expending consular, financial, and medical resources in order to protect “their” nationals^{Footnote 94} and to issue come home calls.^{Footnote 95} This has resulted in difficulties for multiple citizenship families. For example, China was reluctant to allow its citizens married to citizens from other countries and with non-citizen children to leave China with their families and some countries—such as Canada initially, but it eventually changed its policy—have been reluctant to allow non-citizen spouses to enter, even with their citizen children for whom they are the primary caregivers. However, the majority of countries have instituted exceptions in relation to entry for permanent residents.^{Footnote 96}

Many of these scenarios raise questions of diplomacy, as well as, classic international law dilemmas about the character of nationality as a link between the state and the individual and its recognition under principles of international diplomacy via the controversial Nottebohm “genuine link” principle.^{Footnote 97} Frédéric Mégret^{Footnote 98} describes the general tenor of national policies as involving a romantic emphasis on nationality, and draws on Michel Foucault to suggest that this involves states taking governing to be “a ‘pastoral’ mission—including in its sacrificial function of deciding who to ‘let die’”—where the shepherd is seen to rally its “stranded” flock. He also suggests that this represents an archaic approach to the concept of “protection,” insofar as it is clear that most of the “shielding” that closing borders provided has been illusory rather than real, except in cases like New Zealand, which benefits from geographical advantages of insularity and remoteness.

Of particular interest are the restrictions on mobility imposed by states in the context of the European Union, especially because of the implications of these for the supranational status of European citizenship. These restrictions need to be viewed in the context of EU law, which has both a framework providing the free movement of persons (including the free movement of labor) and non-discrimination on grounds of nationality as core principles and a framework for the elimination of internal border controls and the creation of a common approach to the management of the external border as part of the Schengen zone. This zone gathers together most EU Member States and a number of third countries. Open borders, along with the protection provided by principles of free movement and non-discrimination for the legal rights of EU citizens, have substantial symbolic power and pull for the EU.^{Footnote 99}

Faced with a huge diversity of responses by the Member States, the European institutions’ response to the challenge posed by closed borders within the EU, especially during the first wave of the pandemic in March to June 2020, was marked by extensive recourse to “soft law,” rather than vain efforts at legal enforcement to force collective action. The aim was to persuade the Member States to keep certain sorts of movement going throughout and then gradually to loosen restrictions on mobility within the EU^{Footnote 100} and also at the external borders.^{Footnote 101} Iris Goldner Lang describes this as an application of the precautionary principle in the context of public health derogations that are undoubtedly permitted under the existing free movement principles.^{Footnote 102}

Closer—and critical—attention^{Footnote 103} has been paid to the creation of an EU Digital COVID certificate,^{Footnote 104} related to proof of COVID-19 vaccination, test, or recovery, to allow not just free movement between states and passage across the external frontiers of the EU^{Footnote 105} but also—at the discretion of Member States—access to facilities within states, such as museums, leisure facilities, concerts, and even shops. As regards issues of mobility across borders, this development is part of a wider global movement towards the adoption of vaccine passports. It builds upon some of the existing digital trust schemes to promote easy mobility for global elites through airports and across frontiers. The main challenges for regulators include data protection issues,^{Footnote 106} the regulation of novel technologies,^{Footnote 107} fairness and equity questions^{Footnote 108} stemming from uneven vaccine distribution across the globe and even within countries that apply age and priority focuses or that de jure or de facto exclude marginalized populations.^{Footnote 109} There are also issues which arise for those who are unable to take up vaccination opportunities because of underlying health conditions. Finally, there is the overriding question of how far it is permitted, in the interests of combatting a public health emergency, for regulators to intrude in the private life of citizens, residents, and visitors. Leaving behind the question of pandemic (im)mobilities, it is to this issue that we now turn.

E. Intrusions of COVID-19 into the Sphere of Private Life

Rights to privacy and respect for private and family life are not, as such, rights of citizenship. Such rights are very often also extended, although not always to the same extent, to non-citizens accessing or residing in a country. There are therefore blurred boundaries to be drawn between constitutional rights, fundamental rights, human rights, and rights of citizenship. Nonetheless, it remains important to discuss the rights dimension of COVID-19’s impact as a dimension of membership, as the contestation of rights is not only politically salient but can also give rise to potential legal claims for citizens and others that reconstruct both the underpinning values of universal personhood and the concept of citizenship as bounded membership.^{Footnote 110}

Trying to combat the spread of a virus where there is asymptomatic and pre-symptomatic spread unsurprisingly entails substantial incursions into personal freedoms, going beyond the strict stay-at-home orders and travel bans that were common in the lockdowns during the so-called first wave of infections both in democracies and authoritarian states.^{Footnote 111} Controlling the virus has not only taken the form of isolation measures^{Footnote 112} or access restrictions, for example, care home or hospital visit bans, but also surveillance measures such as apps on mobile phones which have become widespread as voluntary supplements to contact-tracing efforts in many countries, but which residents, and especially arriving travelers, are required to use in some countries. Such apps have profound implications for privacy if they are not set up in such a way as to remain anonymous and unless they are designed with ethical usage in mind to avoid, for example, subtle coercive pressures.^{Footnote 113} Furthermore, as remote learning became increasingly normalized, the use of apps such as proctoring software for remote examinations has also become more common.^{Footnote 114} Normalizing the use of these types of technologies may represent not only a gift to authoritarian governments but also a consolidation of the power of technology companies.^{Footnote 115}

It has been argued that quasi-compulsion around any sort of immunity certification process for access to certain facilities not only raises profound issues in relation to liberty and personal privacy but may also impact most significantly on those who fall at the margins of society, for example, those who struggle to access vaccines.^{Footnote 116} There will also be cost issues, since in many countries this will mean—in the absence of vaccination—investing in a succession of tests for which there is a charge. Such “green pass” measures are an alternative to making vaccination mandatory, but, like mandatory vaccination, inevitably also raise legal concerns around the right to private life. The surge in numbers booking vaccination appointments in France after an announcement^{Footnote 117} by President Macron that immunity certification would be required from August, 2021 for access to many public and private facilities, including bars and restaurants, highlights the potential effectiveness of such an approach.^{Footnote 118} This goes well beyond the restrictive measures approved previously by France’s Conseil constitutionnel in respect of participation in large gatherings.^{Footnote 119} Unsurprisingly, the announcement also provoked a substantial backlash, which meant that the government softened the proposed scope of the scheme and the sanctions for non-compliance—which was probably a “price” already built into the scheme when it was announced^{Footnote 120} —even though the Conseil d’Etat green-lighted the proposals in advice that was handed down prior to adoption.^{Footnote 121} Although approved in the Assemblée nationale, the legislation to underpin the scheme was referred to the Conseil constitutionnel before it could enter into force. The Conseil constitutionnel found most of the provisions of the law, in particular those relating to the so-called passe sanitaire, to be in conformity with the constitution.^{Footnote 122} An alternative model is provided by Israel’s “green pass,” the legislative basis for which disappeared within a few months, as it was introduced with a sunset clause and was not extended.^{Footnote 123} Supporters of the green pass pointed out that such measures would always work best and be most likely to pass constitutional scrutiny if a legitimate purpose for their introduction could be identified and they were also subject to periodic review.^{Footnote 124}

The question of vaccination take-up became an urgent issue as soon it became apparent that highly effective vaccines were set to become a part of the international conversation about combatting COVID-19 from late 2020 onwards. Mandatory or effectively mandatory vaccinations for children against communicable diseases that can cause them or the people they come into contact with significant harm are quite common and have been recently upheld by the European Court of Human Rights (ECtHR) in the face of a challenge to a Czech requirement that for children to be admitted to school they must be vaccinated against nine specific diseases. This judgment, in a case which reached the ECtHR before the COVID-19 pandemic, could not have been more timely, and the case was “upgraded” to the Grand Chamber in the light of its potential future relevance. In essence, the ECtHR decided that making vaccination a requirement for access to educational facilities could be regarded as “necessary in a democratic society,” although it concluded that the policy fell within the scope of the Article 8 protection of the right to private life.^{Footnote 125} However, any interference with Article 8 rights had to be balanced against the state’s positive duty to protect human life, and national decisions should be taken in the light of scientific consensus about the safety and efficacy of the vaccines in question, which comes into play in the context of the necessity and proportionality assessment of any mandatory vaccination policy.

Focused on the “standard and routine vaccination of children against diseases that are well known to medical science” and on indirect measures which penalize non-vaccination rather than state coercion in relation to bodily integrity, the case offers only limited analysis to guide how we should understand the legal treatment of COVID-19 vaccination in European states.^{Footnote 126} However, it seems likely that a carefully circumscribed policy based on an enabling legislative measure, in line with scientific evidence and adopting a proportionate approach to the attainment of whatever objectives have been set, would probably be upheld by the ECtHR. Moreover, casting the net beyond Europe, the reasoning is quite closely aligned with several recent judgments of the Supreme Federal Tribunal of Brazil, which supported the constitutionality of compulsory but not coercive vaccination for COVID-19.^{Footnote 127} Interestingly enough, however, the Inter-American Commission on Human Rights seems to have pointed in a different direction, by emphasizing in guidance issued that all vaccinations must be given on the basis of free and informed consent.^{Footnote 128}

So far, there appear to be relatively few examples of wide-ranging vaccine mandates put in place by states, other than for certain professions or as a condition for the exercise of certain privileges, for example, international travel or removal of quarantine requirements.^{Footnote 129} However, there are a huge number of variables to be considered in relation to these issues. These include the extent of exemptions for sincerely held beliefs, the extent of trust in science in a given country, processes of social exclusion that mean that members of ethnic and racial minorities in many countries have lower access in practice to vaccinations, and the ethics of suggesting or mandating vaccinations for children, given that they are much less affected by COVID-19 and that the trial and approval processes for these vaccines have been taken less time than ever before in modern medical history. Exactly how any given polity parses the balance of interests between the collective and the individual is likely to be a function of specific national or other contexts. An argument for the application of the principle of Ubuntu—or an ethic of care and respect for humanity—in the context of the application of South African constitutional rights to the question of vaccination nicely illustrates the latter point.^{Footnote 130} These are ethical questions, for sure, but also questions about what we owe each other in a specific social context, not as a matter of ideal theory or in view of universal principles, but in practical terms. For these purposes, rationalizing decision-making in relation to intrusions into private life within a framing of citizenship as social membership is a productive approach. It offers a clear pathway to understanding how these interests can best be balanced against each other, whilst at the same time adopting an intersectional analysis which takes into consideration differential vaccination rates between different social and ethnic groups, given that these often stem from unequal access as well as distrust of the state and medical institutions.

F. The Side-lining of Democracy: The Challenge of Oversight of Decision-making in a Crisis for Citizens and Their Representatives

Given the centrality of political citizenship and associated civil liberties, such as freedom of expression and of assembly, to the constitutional and democratic foundations of many polities, framing key questions about the impact of the pandemic in the political domain in terms that combine citizenship and constitutional principles is both an important and a relatively straightforward task. Political citizenship is intimately connected with questions of political participation and the legitimacy of decision-making. It is vital, therefore, to explore this issue in the context of a syndemic analysis of COVID-19.

For example, the pandemic has the capacity to interrupt the normal lines of political participation. It can do this through its impact on elections and campaigning and other similar episodic events such as referendums.^{Footnote 131} It may also disrupt both non-violent civil resistance or protest as an expression of citizenship^{Footnote 132} and armed conflict aimed at political change,^{Footnote 133} if individuals and groups can no longer safely gather in person because of fears of contagion. A number of observatories have been tracking the impacts of the pandemic on all aspects of the political process, including comparing the incidence of protest and conflict during the pandemic to the period immediately before as well as assessing the measures taken either to support or to repress political action.^{Footnote 134} Early findings, based thus far largely on anecdotal evidence, seemed to indicate a substantial rapid drop in all types of protest activities as soon as the pandemic took hold and lockdowns were established, followed by a subsequent rise.^{Footnote 135} Based on the analysis of previous pandemics and epidemics, this is the pattern that is to be expected. However, over the longer term, the intersections between conflicts related to the pandemic itself and the existing areas of political conflict that engender protest are likely to be complex.^{Footnote 136} The same can be said of civic and political engagement within democracies, where early evidence highlights that pandemic conditions largely reproduce existing political inequalities, although threat perceptions in relation to the ongoing challenge of the pandemic may be giving rise to changed patterns of engagement and protest.^{Footnote 137}

There are clearly practical problems involved in running elections during a pandemic. These are well exemplified by the case of Croatia, where the Constitutional Court held that it was constitutional for measures to be taken to restrict access to voting in person in the case of those who had tested positive for COVID-19 and to make alternative arrangements for them to vote.^{Footnote 138} In view of the inevitable levels of disruption, the question arises as to whether it is more or less democratic to go ahead with the election or to postpone it.^{Footnote 139} The holding of elections is likely, at the very least, to be more expensive than in “normal times,” given the costs of social distancing and other measures to protect voters, candidates, and poll workers.^{Footnote 140} The usual integrity and fairness problems regarding information around elections and campaigning are bound to arise—including access to broadcast and print media—and it is clear that the pandemic raises the stakes around issues of “truth” and makes the relationship between scientific expertise and political communications more complex than ever.^{Footnote 141} Singapore offers an interesting example of a country where elections went ahead despite the pandemic, and where some of the changed conditions brought about by the pandemic, including a greater degree of interaction between citizens and state authorities, may have led to greater democratic consolidation.^{Footnote 142} In the Vienna City Elections, held during the pandemic, voters moved decisively away from far right-wing parties using populist rhetoric and engaging with misinformation about the pandemic.^{Footnote 143} In France, however, research has shown that lower participation levels in municipal elections correlate with factors such as age, which is an important indicator of COVID-19 vulnerability.^{Footnote 144} In other words, vulnerability to COVID-19 may increase abstentionism amongst voters.

Of fundamental importance to the evolution of constitutionalism more generally are the effects of the pandemic on the legislative-executive-judicial balance and on the separation of powers.^{Footnote 145} As Bonnie Honig reminds us, “Enacting or exacting accountability is one of the essential responsibilities of democratic citizenship.”^{Footnote 146} In that respect, the COVID-19 crisis has clearly engendered significant challenges to both democratic principles and democratic performance.^{Footnote 147} Certainly in the early days of the pandemic, decisions had to be taken in great haste and emergency powers were often invoked. One early assessment warned of a pandemic of authoritarianism as a result of the flood of emergency measures.^{Footnote 148} Indeed, it is not difficult to mount an argument that excessive reliance upon executive action on the grounds that it is needed in an emergency may encourage further authoritarian responses and may lead to long term democratic degradation. It is unfortunate that this should occur at a moment when democracy seems already to be under significant threat in many countries in an age of populist politics.^{Footnote 149} The pandemic has been described as an “inflection point” for democracies already under stress.^{Footnote 150} Yet at the same time, as the rich country-based data gathered by several projects/observatories^{Footnote 151} and the preliminary comparative research now available^{Footnote 152} both highlight, it would be incorrect to generalize or to draw firm conclusions about what the implications of the pandemic for democracy might be, or whether it can be said that democracies or autocracies have performed better in relation to combatting the pandemic.^{Footnote 153} The balance is changing over time, and also between countries. The evidence points in different directions and may be contradictory.^{Footnote 154} Furthermore, it is not only the formal governmental institutions that are relevant here, but also the inputs of scientific experts^{Footnote 155} and of non-governmental organizations and levels of trust in particular countries in both science and politics that operate as key variables. This is an issue which will require careful monitoring over the longer term for clearer comparisons to be drawn of “before” and “after,” or across countries, regions, continents, or regime types. Further work will need to be done to calibrate across the issues of inequality and vulnerability which are central to the analysis in this article. It will be some time before we can see clearly the extent to which the degradation of democratic citizenship amidst the pandemic may correlate to or even cause the adoption of measures that either undermine or protect certain vulnerable groups in relation to how the pandemic impacts upon them.

G. Protecting the Vulnerable in a Pandemic

Where previous sections have discussed how the syndemic (that is to say, the health and the socio-economic) impacts of COVID-19 in relation to citizenship have had a disproportionate impact on certain groups, this final substantive section of the paper places those same groups at the center of the analysis by asking how best we can protect the vulnerable in a pandemic and in the recovery from a pandemic. One of the primary critiques of citizenship is that it promises but does not deliver equality, and that this failure to match promise and reality has particularly damaging consequences for certain groups defined by their “vulnerability.”^{Footnote 156} Those groups include those within the polity who find themselves unable to articulate an effective claim to “full membership” because they belong to a marginalized group or minority, as well as those who fall foul of the arbitrary and often coercive boundaries of the state-based membership status and for whom any protection provided under international law is also often rather sparse. Some groups, such as migrant care workers, for example, cut across both categories of the excluded.^{Footnote 157} Of course, it is clear that human rights norms, both internally and in terms of international law, can be useful tools in terms of contesting failures to protect effectively those with additional vulnerabilities to the effects of the pandemic within states and across the world.^{Footnote 158} It is, however, also fruitful to think about the contestation of vulnerability in terms of constitutional citizenship.

For example, concepts of social citizenship buttressed by constitutional rights such as those protecting health or human dignity, as well as the right to life, could be brought into play to develop the argument that responses to the pandemic require a new type of social contract that prioritizes the protection of those who are more vulnerable to the effects of the virus.^{Footnote 159} This has been a consistent theme of the scholarship on the pandemic which has sought to look forward rather than simply commenting on contemporaneous events. What is needed is work which goes beyond compiling a laundry list of protective measures and which moves towards adopting more holistic approaches. Such approaches need to weigh the cost of different measures for different groups, and to consider not only the classic binary of libertarian and authoritarian approaches to the scope of restrictions imposed in the interests of health and life but also the fundamentally social democratic nature of the protection of public health.^{Footnote 160} This way of valuing public health protection stands in contradistinction to the powerful neoliberal ethos that has dominated most socio-economic debates in recent years.^{Footnote 161} A social democratic analysis can give communities the tools to resist the inevitability that those who have suffered most from the pandemic should also “pay” for it through austerity, as happened after the financial crisis of 2008 onwards. That these communities have indeed paid can be demonstrated by the calculations of researchers who have estimated that there have been tens of thousands of preventable deaths from austerity just in the UK.^{Footnote 162}

One further advantage of a citizenship rather than human rights framing for future-focused arguments about protecting the vulnerable is that it fosters a focus on obligations as well as rights. In other words, a revived and potentially constitutionalized conception of social citizenship can be used to justify restrictions on individual freedoms in the collective interest but in such a way that pays special attention to the vulnerable. For example, a mask mandate may seem to be a straightforward way of reducing risk, especially indoors.^{Footnote 163} Yet certain groups, such as those with hearing difficulties or asthma, or others who have faced previous trauma around suffocation, may find themselves marginalized by a mask mandate applied without regard to their specific interests. Designing sensitive policies needs to engage policymakers and other stakeholders. Courts cannot be the primary actors as there would be limits to the extent that they could effectively intervene in areas requiring complex policy solutions, except to prevent egregious interferences with individual freedoms or to protect specific groups whose interests have been left out of the policy-making process. That said, there have already been examples where courts have engaged constructively in the contestation of similar political choices, for example, in a federal context in Brazil.^{Footnote 164}

An obligations approach can also be supplemented by a principle of gratitude, which can be seen in some countries that have taken steps to give permanent residence to frontline workers in precarious situations.^{Footnote 165} As an emotion, gratitude has been brought to the fore, as shown by examples such as “clap for carers” and other measures taken in the UK and elsewhere to express thanks to those who have taken on an outsize level of risk during the pandemic. This was especially salient at the outset of the pandemic, when the risks were not well understood and there was a shortage of personal protective equipment. But, later on, emotions have spilled over into anger at the failure of public authorities to translate gratitude into concrete steps to reward at-risk groups.^{Footnote 166} One sign of a broken social contract is a requirement that workers isolate themselves if they have tested positive or come into contact with someone who has tested positive, and yet they are not provided comprehensive sick pay coverage to prevent personal financial loss. Across the world, the pandemic has reworked concepts of risk and skill such that it could be conceivable to develop new frames of deservingness that do not replicate the pitfalls of current approaches and that can decrease rather than increase the effects of marginalization.^{Footnote 167} These are the raw materials on the basis of which societies can truly “build back better.”