Published by The Lawfare Institute
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On March 27, a judge in the U.S. District Court for the Southern District of New York ordered the release of four immigrants from Immigration and Customs Enforcement (ICE) detention, charging that the government “had shown ‘deliberate indifference’ to their medical needs.” A few days earlier, ICE had acknowledged the first confirmed case of COVID-19, the respiratory disease caused by the novel coronavirus, among detainees in its custody. ICE is not unique in its treatment of migrant and refugee communities during the outbreak. Millions of forced migrants live in overcrowded neighborhoods, displacement camps and detention centers around the world, where the virus could spread at an alarming rate. This “deliberate indifference” shown by ICE toward migrants’ basic rights during the pandemic is particularly worrisome because it’s not occuring in a vacuum. Rather, it has come at a time when states have been waging, and arguably winning, an assault against migrant and refugee rights.
States worldwide have adopted emergency measures and a combative tone in response to the crisis—tightening borders, halting refugee resettlement and scapegoating of foreigners. While the immediate threat that the virus itself poses to migrant and refugee communities cannot be overstated, there is another, ominous threat looming: the risk that states and international organizations will allow COVID-19-inspired emergency policies to endure post-crisis. If they persist, these policies could have disastrous consequences and potentially upend the already fragile global refugee and asylum regime.
Border Closures Amid Assault on Asylum
Under the auspices of stemming the spread of the novel coronavirus, there has been a rapid closure of international borders, a move that explicitly or de facto restricts access to asylum. Mexico has temporarily halted refugee applications, Brazil has closed its border to Venezuelans amid one of the worst refugee crises of the decade, and the U.S. announced that it will immediately return migrants and asylum-seekers who cross into the U.S. outside designated ports of entry to the country they entered from, in some cases without any opportunity to make a legal claim to asylum.
Even Canada, often lauded as a global leader in supporting refugees, announced that asylum-seekers who enter the country irregularly through the U.S. border would be handed over to U.S. authorities. Coupled with travel restrictions on international flights, this move all but eliminates the possibility for asylum-seekers to reach the Canadian border. Moreover, the United States has made it clear that they will be sending asylum-seekers that Canada turns away to their countries of origin—effectively violating the cornerstone principle of international refugee law: non-refoulement, which makes it illegal to send refugees back to places where their lives or liberty are in danger. Turning away asylum-seekers, even if they enter outside of official checkpoints, violates non-refoulement.
In many cases, such a move can also contravene countries’ domestic laws, which often incorporate relevant international legal obligations. For example, the 1980 Refugee Act incorporates international legal obligations that the United States agreed to when it became a party to the 1951 Refugee Convention and its 1967 Protocol. Today, many of the cases challenging the Trump administration’s new immigration policies (such as Innovation Law Lab v. Wolf) cite the 1980 Refugee Act and its link to U.S. treaty obligations in support of arguments that policies like Remain in Mexico (MPP) are illegal.
Even in cases where COVID-related measures do not explicitly change asylum procedures—for example, in the recently announced 30-day travel ban to the European Union and Schengen Zone—the options for asylum become even more narrow, if not impossible if only nationals and residents are allowed to travel.
While shuttering international borders is an age-old response to pandemics, expert advice—including ongoing World Health Organization (WHO) guidance—questions the effectiveness of the strategy. One worry is that the focus on border closures may divert resources from much more important public health interventions. In some cases, governments may be using the cover of the pandemic to further their pre-COVID agenda of restricting migrant and asylum-seekers’ rights. For example, Hungary, like the current U.S. administration, stands out for its vocal opposition to refugees and migrants. Amid the pandemic, Hungary has closed access to its migration “transit zones”—the only places in the country where asylum claims, though already severely limited, can be filed.
Given the unprecedented nature of the current crisis, these policies may appear justified, even necessary, to stem the spread of a virus. But there has been no evidence that asylum-seekers have been a significant driver, if at all, of the spread of COVID-19.
What is clear is that for the past five years there has been a marked increase in governments across the world looking for loopholes or exigencies that allow them to prevent refugees from crossing their borders. The EU has been considering the use of “disembarkment platforms” to reroute asylum-seekers to other countries for claims processing. The Trump administration has sought to force asylum-seekers to apply for asylum in Mexico or Guatemala. And most recently, Greece announced that it would halt the processing of asylum claims for one month in response to a move by Turkey to encourage migrants and refugees to cross into Europe. The U.N. Refugee Agency (UNHCR) took objection to Greece’s move, stating that “[n]either the 1951 Convention Relating to the Status of Refugees nor EU refugee law provides any legal basis for the suspension of the reception of asylum applications.” Yet the UNHCR has not issued similar statements regarding the measures adopted in the face of the coronavirus threat.
As more countries move to close their borders to all migrants—including asylum-seekers—in response to the spread of COVID-19, the concern is that decisions like these will appear less and less anomalous. Ultimately, this could normalize the violation of non-refoulement at a time when this cornerstone of refugee law is already under assault. A failure to reopen borders to regular travel after a certain period would be met with universal outrage and accusations that states were engaging in the large-scale deprivation of basic rights to freedom of movement. But not reopening the border to asylum-seekers could pass by without much notice. Given the hostility toward asylum-seekers and refugees prior to the COVID-19 crisis, many politicians may have incentives to keep those emergency restrictions in place or at least to maintain some of the restrictions.
The historical record suggests that citing the threat of infection would be an effective tool to do so. As other experts have explained, countries have used the threat of infection to justify imposing restrictive immigration policies, with disturbing consequences for ethnic minorities. One particularly notable example: The U.S. Immigration Act of 1891 cites preventing the spread of disease as a rationale for broadening the classes of individuals banned from entry.
Endangering Already Precarious and Reduced Refugee Resettlement
The same concern about the normalization of emergency measures applies to the suspension of refugee resettlement. On March 17, the UNHCR and the International Organization for Migration (IOM) announced they would temporarily halt refugee resettlement. Critically, the UNHCR and the IOM did not make clear when these temporary measures would lapse. The organizations’ statement says that the freeze on resettlement will remain in place “only for as long as it remains essential” but does not define what “essential” means. Without tying the temporary freeze to an identifiable target—for instance, a WHO assessment that the severity of the pandemic has decreased to a certain fixed point—the organizations leave the term “essential” open to interpretation and political pressure.
In fact, it’s unclear whether this policy is really “essential” at all. The UNHCR and the IOM cite the risk of refugees contracting COVID-19 during travel as a main reason for the emergency measures. However, the vast majority of refugees live in countries with fragile medical systems where, whether they live in camps or in urban settings, they face as great (if not greater) risk of contracting COVID-19. Moreover, it’s unclear whether the organizations considered other measures—such as testing refugees slated for resettlement for COVID-19, chartering noncommercial flights, and arranging for two-week quarantines upon arrival in the host countries. And if these alternatives were considered, there’s no indication as to why this blanket measure ended up as the preferred choice. In a period where resettlement has become an increasingly small part of the global response to forced displacement, this is quite worrisome.
Empowering Nationalist Anti-Migrant Politics
Finally, leaders’ continued use of racist and anti-migrant narratives exacerbates the societal impact of prominent closures of borders. Together, the hostile rhetoric and the closures stoke xenophobia and risk further empowering nativist movements. Some commentators on the right in the U.S. spent the early months of the outbreak calling the novel coronavirus the “Chinese virus.” And in the United States, we are already seeing a marked increase in hate crimes toward Asian Americans. President Trump has said he will refrain from using this racist terminology in future, but the U.S. is still lobbying the U.N. Security Council to pass a resolution largely blaming China for the pandemic. And it isn’t just Trump. In Hungary, nationalist and anti-migrant Prime Minister Viktor Orban has directly blamed the crisis on migrants. He has passed legislation that enables his government to rule by decree for an unlimited period of time, enabling him to more readily implement further draconian anti-migrant measures well into the future.
To be clear, the reality is not all bleak. Some countries are already providing examples of how the virus need not serve as a justification for a retrenchment of migrant and refugee rights. Portugal announced that all asylum-seekers and undocumented migrants seeking regularization would automatically be granted temporary residence, with access to all public services. The government called it an act of social solidarity in a time of crisis but also emphasized the importance of these measures for collective health and safety. The U.K. Home Office has also passed a set of measures, including a halting of evictions and an extension of support for asylum claimants and a temporary suspension of assisted voluntary return, to mitigate the consequences of COVID-19 on asylum-seekers and refugees in the country. In mid-March, New York City Mayor Bill de Blasio announced that hospitals would not ask for migration status documentation, amid worries that undocumented migrants would be too scared to seek treatment. These policy choices are important and should be lauded. Still, they are focused on those migrants already on the territory. More needs to be done to ensure that those awaiting protection, suffering persecution, in transit, or in contexts of ongoing war are not forgotten.
At the very least, states should offer clear commitments that these temporary measures, whether the suspension of asylum procedures or the halting of resettlement, will end as travel restrictions on the broader public are loosened. Moreover, the UNHCR and the IOM should negotiate commitments from states to ensure that those persons slated for resettlement in 2020 will be offered protection as soon as travel restrictions are lifted, and that the number of resettlement spots committed for future years will be unaffected by these measures. As COVID-19 continues to spread worldwide, its consequences—both direct and indirect—will be far reaching. It’s critical that COVID-19 not serve as a pretext to further weaken the limited rights and protections available to some of the world’s most vulnerable populations.