The COVID-19 pandemic is affecting almost every country across the globe and creating a multitude of challenges for the international community. Refugees and asylum seekers face an even greater challenge, as the pandemic does not necessarily stop persecution. States have been closing their borders to asylum seekers using the pandemic as a justification. Securing public health and protecting refugees should not be treated as mutually exclusive interests and the adoption of necessary, stringent measures by governments to protect the former must not impair the long-recognised right to seek asylum.
RESTRICTIONS TO ASYLUM SEEKING USING THE COVID-19 PANDEMIC AS A JUSTIFICATION
The COVID-19 pandemic is making it increasingly difficult for asylum seekers to exercise their rights. The pandemic affects asylum seekers at the most fundamental level: their ability to seek protection in another country. The United Nations High Commissioner for Refugees (UNHCR) estimates that 167 countries have so far fully or partially closed their borders to contain the spread of the virus and at least 57 states are making no exceptions for people seeking asylum. Such measures are effectively suspending the right to seek asylum for people trying to flee situations of systematic violence and armed conflict around the world.
In response to the spread of COVID-19, the US Centres for Disease Control and Prevention (CDC) issued an orderallowing authorities to temporarily suspend entry of individuals traveling from Mexico or Canada (regardless of their country of origin) into the US, with a list of exceptions, such as US citizens and lawful permanent residents. On the basis of the CDC Order, the US Department of Homeland Security (DHS) quickly started summarily deporting large numbers of individuals arriving at the border. Previously, unaccompanied children arriving at the border would be transferred to the Department of Health and Human Services for a review of their situation. Many asylum-seekers are now deported without any screening or due process within hours of their arrival, and despite expressing fear for their safety. The US Customs and Border Protection's (CBP) own statistics and press reports revealed that the measures taken by the DHS effectively halted the possibility of seeking asylum at the US border.
The numbers of asylum applications in the EU are also heading towards new lows. Notably, applications for asylum in the EU dropped by 43% between February and March, due to travel restrictions introduced because of COVID-19. Resettlement operations allowing refugees to legally enter EU borders have been temporarily suspended. Italy and Greece, two of the countries receiving the largest numbers of migrants, have sought to close their borders. Italy has taken the unprecedented decision to declare its own seaports “unsafe” due to the COVID-19 pandemic, effectively preventing rescue boats with undocumented migrants from landing.
LEGITIMACY OF THE DEROGATIONS FROM THE RIGHT TO SEEK ASYLUM
Restrictive measures on the right to freedom of movement, including the inherent right to leave any country, and the right to seek asylum are legitimate only insofar as they meet international human rights standards. The right to seek asylum is a fundamental human right, and, as such, it can only be derogated from if the criteria set forth by article 4.1 International Covenant on Civil and Political Rights (ICCPR) are met. This article claims that States can derogate from their human rights obligations only in the case of an officially proclaimed state of emergency, which is to be understood as a crisis that truly threatens the life of the nation, according to General Comment no. 29, and not all catastrophes would qualify as such. A public health crisis such as COVID 19 is in itself insufficient, as the crisis must be officially proclaimed as a state of emergency in accordance with the state's constitution and domestic law. Additionally, according to article 4.1, any measures restricting fundamental rights must also fulfil the principles of strict necessity, proportionality, and non-discrimination. For example, the US declared a state of emergency but it is doubtful whether a public health crisis like COVID 19 can justify the derogation set forth by article 4.1. The CDC order issued with exceptions for US citizens and lawful permanent residents is unjustified and inconsistent with obligations under the ICCPR, to which the US is a state party.
Epidemiologists have stated that there is no scientific evidence to suggest that banning asylum seekers is a logical public health strategy to stop the spread of the virus. Also, there is no statistical relationship between admission of asylum seekers and flu and other flu-like diseases, such as H1N1 and COVID-19. It follows that the COVID-19 crisis does not meet the condition of strict necessity to allow derogation from ensuring the right to seek asylum.
People seeking safety and shelter are being turned away at land borders or at sea, and returned or transferred to other countries where they may face serious threats to their lives and freedom. In one notable example, Greek authorities have closed the border with Turkey to refugees and other migrants and are allegedly expelling asylum seekers to Turkey without giving them a chance to make their asylum claims. These kinds of expulsion, rejection or non-admission of asylum seekers at the borders violate the principle of non-refoulement, which is absolute and cannot be derogated from even during a pandemic. The principle is uniquely important in safeguarding human rights as it goes beyond the right to seek asylum, and implicates the asylum seekers' right to life and right to freedom from torture. The United Nations Human Rights Committee, in addressing public emergencies threatening a nation, has emphasised the non-derogable character of the right to life and the prohibition of torture, regardless of the type or severity of the public emergency. International law is very clear that the principle of non-refoulement is absolute and applicable at all times, including during times of war, political instability, and any other major public emergencies, including a pandemic.
Asylum seekers who are deported or pushed back to their country of origin (or transit) are not only facing the risk of persecution, but they are also potentially exposed to additional risks related to limited health care and lack of quarantine measures. Public health measures along with health screening at borders are important and necessary, but they must not be used as a pretext to reject or non-admit asylum claims, as that may threaten the right to life of asylum seekers. The Canadian government, for instance, has responded to the pandemic with border policies that preserve both the right to seek asylum and the protection of public health through non-discriminatory screening procedures and self-isolation measures. Conversely, other state policies imposing discriminatory health screening at the border, expelling asylum seekers, and potentially ignoring asylum claims in the name of public health measures deviate from the international law standard.
States are closing borders to asylum seekers using the COVID-19 pandemic as a justification even though there is no evidence that a ban on asylum seekers would improve public health. Social distancing and home isolation are the measures that are most likely to limit the spread of the disease. States must thus realise the essence of the right to seek asylum while responding to the pandemic.
Mahmuda Amir Eva is an Apprentice Lawyer at District and Session Judge Court, Dhaka, Bangladesh. She is pursuing her LL.M degree from the Department of Law, Jagannath University, Bangladesh and is interested in International Human Rights Law, International Humanitarian Law and Comparative Law.