COVID-19: An Inadequate Excuse to Disregard Immigration Law

by Mallory Perazzo, Business Manager, University of Cincinnati Law Review Vol. 91

I. Introduction

Asylum seekers are repeatedly forced to travel through harrowing and dangerous conditions to escape persecution and torture, often to be treated inhumanely and illegally at the border of their ostensibly safe place of refuge. Recently, countries have used the COVID-19 pandemic to justify denying immigrants their rights, including the right to seek asylum and the right to health.¹ The United Nations High Commissioner for Refugees (“UNHCR”) has asserted that over sixty countries have used the pandemic as pretext to deny asylum seekers, which has contributed to delayed rescues at sea and unlawful expulsions of immigrants.² Certain travel restrictions and limitations of movement are legitimate ways to decrease the spread of the virus, but countries illegally overreach if they turn away all immigrants or otherwise deny them their rights.³ By denying immigrants’ right to health and safety, countries illegally and immorally exacerbate the negative impact on vulnerable populations.⁴ Experts have repeatedly denounced the methods as violating international and human rights agreements and reported the violations as causing thousands of injuries, illnesses, and deaths.⁵

This article explains the various criticisms from activists regarding the treatment of refugees and asylum seekers since the beginning of COVID-19 and calls on countries to end policies which violate international law. Part II of the article discusses the international agreements which countries are lawfully bound to follow. Part III exposes practices in the United States and the European Union which violate those international agreements. Part IV concludes with a call to end the pandemic pretext of denying immigrants human rights.

II. Background

The Convention Relating to the Status of Refugees (“The Refugee Convention”) and its 1967 Protocol contains the principle of non-refoulment, which prohibits States from expelling or returning migrants to a country where it is reasonable to believe they would face persecution, torture, or cruel, inhuman, or degrading treatment.⁶ It applies to all people, regardless of nationality, migrant status, citizenship, or statelessness.⁷ The concept of non-refoulment applies anywhere that a State exercises jurisdiction or effective control, including in the water surrounding its country and even outside the State’s territory.⁸ Furthermore, international maritime law requires States to rescue people lost or in distress at sea.⁹ The Refugee Convention contains certain laws which apply to all signatories of the agreement, but other laws, called rules of customary international law, are binding on all States, including those that are not party to the convention.¹⁰ The UNHCR has recognized non-refoulment as a rule of customary international law, and therefore applies to all States.¹¹

A restriction to the principle of non-refoulment is if there is reason to believe the refugee is a danger to the security of the country.¹² However, this exception is limited: it does not apply if there are substantial grounds to believe that the refugee would be tortured or face other irreparable harm upon expulsion.¹³ Moreover, the exception requires an individualized showing and cannot be applied on a blanket basis to everyone seeking asylum.¹⁴

Governments also have obligations pertaining to how they treat refugees within their borders and within their custody.¹⁵ States are permitted to restrict the movement of refugees and asylum seekers when it is necessary, but the State still must respect a detainee’s rights and humanity.¹⁶ For example, all humans have the right to the highest attainable standard of physical and mental health.¹⁷ Thus, countries have a duty to reasonably attempt to prevent and treat epidemics for migrants as well as their own citizens and may not limit access to healthcare.¹⁸ In fact, States are required to take special measures of protection toward vulnerable people and people in State-run facilities.¹⁹ In part, this means that States must assess the risk of infectious disease within their facilities when determining whether to detain an immigrant in the first place.²⁰

III. Discussion

The pandemic does not provide a blanket exception to international and human rights laws, and thus many countries–including the United States and various countries in the European Union–have engaged in unlawful practices in the past two years.²¹ The exception for non-refoulment in the case of a refugee that poses a threat to the host country requires individualized determination, so any overbroad policy of refusing all asylum seekers is illegal.²² States are entitled to manage risks to public health and implement disease screening protocols and quarantine requirements, but they may not return refugees en masse or deny them based on generalized COVID-19 concerns.²³

If a migrant is admitted to the State, the State is required to treat the migrant humanely and uphold their right to health.²⁴ While a State cannot be expected to effectively prevent all health concerns, it must prevent and treat diseases to the extent possible to its migrants, including in detention centers.²⁵ Nevertheless, many of the detention centers that migrants are placed in have inhumane and unsanitary conditions which violate the detainees’ human rights.²⁶ An ongoing pandemic does not justify ignoring these laws, and instead amplifies a country’s responsibility to ensure that, if it chooses to detain a person for an extended period, it can provide necessary safety standards, including those to reasonably attempt preventing COVID-19.²⁷

Furthermore, many of the practices are ineffective in preventing the spread of the coronavirus, raising question as to the true motive for decreasing migrant protections.²⁸ Human rights and public health advocates criticize that in some cases the border closures and pushbacks did not actually affect the number of COVID-19 cases and were used purely as pretext for tightening border control.²⁹ This section analyzes how the United States and the European Union used COVID-19 as an excuse to violate moral and legal international obligations, and that those practices did not in fact protect the population from the virus.³⁰

A. United States

The United States is legally obliged to follow the principles of non-refoulment, but the nation has unlawfully used public health law to override these obligations.³¹ Early in the pandemic, the Trump administration effectively prevented immigrants from entering the country to seek asylum by encouraging the CDC to invoke a little-known law, Title 42 of the Public Health Service Law.³² Title 42 gave the government power to take emergency action to prevent introduction of communicable diseases.³³ The newly invoked law allowed federal officials to ban people from entering the U.S. without any opportunity to present their cases of persecution or to contest their expulsion.³⁴ The government has also since expelled 1.8 million people to Mexico or their home countries, citing COVID-19 as the reason.³⁵ Title 42 allowed the United States to reject migrants solely due to COVID-19 and without an individualized analysis as to whether the immigrant was a danger to the security of the country.³⁶ Therefore, the United States violated international law by expelling and rejecting immigrants without ensuring they would not be subjected to torture or persecution on their return.³⁷

Furthermore, despite Title 42 requiring that the emergency measures issued must be proportionate and limited to the extent strictly required by the exigency of the situation, the practices were unnecessary to prevent COVID-19.³⁸ Public health and medical experts agreed from the early days of the pandemic that this law would fail to protect public health.³⁹ There is no statistical evidence that border expulsions under Title 42 resulted in less cases of COVID-19.⁴⁰ The Chief Medical Advisor to the President of the United States, Dr. Fauci, also asserted that expelling immigrants was not a solution to the COVID-19 crisis.⁴¹ Critics argue that the law, which was in fact written in over seventy years ago, reads like it is from a time before vaccines, testing, and treatment.⁴² The law also remained in effect long after other COVID-19-related restrictions and recreational travel bans were lifted, raising question as to the motive of preventing only some people from crossing the border.⁴³

Title 42 unlawfully and dangerously limited the rights of immigrants, which has led to many injuries, illnesses, and deaths.⁴⁴ Although the law was unnecessary to protect Americans from COVID-19, experts say the expulsions did pose a health threat to the expelled migrants, as they are often detained together for long periods of time.⁴⁵ Moreover, human rights organizations documented nearly ten thousand instances of violent crimes, including murder, toward the victims sent back to the countries from which they were persecuted.⁴⁶ As many predicted, the law has caused significantly more harm than protection.⁴⁷ The future of these dangerous immigration policies remains uncertain, but in late June of 2022 the Supreme Court handed down a hopeful decision which should allow the Biden administration to terminate Title 42.⁴⁸

B. The European Union

The UNHCR and several non-governmental organizations (“NGOs”) have accused various European countries, including Greece, of using COVID-19 as pretext to close its borders entirely and abandon distressed migrants at sea.⁴⁹ Greece suspended its asylum procedures for several months in 2020, deporting individuals to their home country or to Turkey.⁵⁰ Countless migrants have told stories of being pushed back to sea, sometimes after authorities disabled their boats.⁵¹ Asylum seekers have also reported stories of believing they were being transferred to the mainland, but instead were deported to Turkey.⁵² International and maritime law dictate that these pushbacks are illegal.⁵³ The European Union also claims that protective measures should never result in inhuman or degrading treatment.⁵⁴ Prior to the pandemic, there was evidence that Greece was participating in pushbacks, but the nation denied it.⁵⁵ Since COVID-19, however, the country has grown the practice to make it more systematic and coordinated, with a massive drop in the number of arrivals to Greece, while evidence of illegal pushbacks mounts.⁵⁶

The Greek government has also stated that it is detaining migrants to contain the spread of the virus, but the camps have failed to provide humane conditions or access to basic healthcare for thousands of detainees.⁵⁷ States may justifiably restrict freedom of movement to protect public health, but those restrictions must be based on scientific evidence and be respectful of human dignity.⁵⁸ The government continued to extend detention times even when there were no cases of COVID-19 in the camps, bringing into question the scientific evidence which required the extensions.⁵⁹ The overcrowded camps also had insufficient water, sanitation, and hygiene products, and thus did not do the legal minimum to uphold the migrants’ basic human right of health regardless of the pandemic.⁶⁰ Furthermore, the camps lack security and regulations, and therefore can be dangerous, especially for the most vulnerable populations.⁶¹ Doctors Without Borders condemned the discrimination against migrants, asserting the conditions were absolutely unjustified from a public health point of view.⁶² These detention camp lockdowns have caused injuries and deaths to many, and lack evidence to support that they serve a purpose that benefits the public health.⁶³

Like Greece, Malta and Italy have also closed their borders since 2020 and have failed to respond to overloaded boats in distress and have turned away immigrants that were rescued by NGOs at their ports.⁶⁴ In 2020, the Italian and Maltese government both closed its harbors to migrants, claiming that their land could no longer be considered a place of safety anymore due to the spread of the pandemic, despite the fact that at that time only one COVID-19 related death had been recorded in Malta.⁶⁵ Maltese authorities also kept immigrants at sea in international waters for weeks to prevent them from applying for asylum, and refused commercial vessels to bring rescued migrants to its port.⁶⁶ Instead, it allowed Libya’s Coast Guard to enter its waters and take migrants back to Tripoli.⁶⁷ These European countries are in clear violation of the human right to health as well as the principle of non-refoulment.⁶⁸

IV. Conclusion

The global pandemic does not give countries a catch-all excuse to override international law.⁶⁹ Immigrants maintain their rights, including the right to health and the right to seek asylum when facing persecution.⁷⁰ In fact, a health crisis increases requirements to ensure that detention centers are safe and, if they are not, to reconsider using them.⁷¹ Furthermore, the practice of closing borders entirely to asylum seekers and refugees is not only illegal, but highly immoral, as it has decidedly caused a great deal of harm.⁷² Countries that have not yet done so should cease any immigration policies which take advantage of the pandemic to violate international law.

Cover Photo by Eric Masur on Unsplash

Mallory Perazzo

With a background in working in nonprofits and advocating for human rights, Mallory Perazzo is grateful to write about immigration law, employment law, global crises, and criminal justice. Mallory looks forward to beginning a career in public interest and continuing to learn about and promoting policy change.

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32
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69
See discussion infra Part II.
70
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71
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72
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