THE END OF THE RIGHT TO SEEK ASYLUM? COVID-19 AND REFUGEE PROTECTION

Daniel Ghezelbash and Nikolas Feith Tan

January 2021

The global pandemic stopped asylum seekers in their tracks, as states across the world have sealed their borders, suspended asylum procedures and – in some cases – deported asylum seekers without hearing their protection claims. The COVID-19 pandemic has had a devastating impact on the institution of asylum, exacerbating longer term trends limiting the ability of asylum seekers to cross borders to seek protection. This contribution gives an overview of the right to seek asylum during the first months of the pandemic in Australia, Europe and the United States.

The individual right to seek asylum amounts to a procedural right to claim international protection from state authorities and to receive a fair and effective procedure assessing the veracity of that claim. To comply with this obligation, states are obliged to conduct an individual, fair and efficient procedure to determine the protection needs of an asylum seeker. The right does not amount to a right of enter the country, but does require that states conduct an assessment of the claims of the asylum seeker.

The right to seek asylum was under pressure in the Global North long before COVID-19. Governments built border walls, intercepted and returned boats carrying asylum seekers and visa regimes and carrier sanctions were used to stop asylum seekers from travelling by air. We saw policies blocking asylum seekers from travelling by plane, sea and land across the entire travel continuum. Alongside these measures, states have also developed a number to remove asylum seekers who manage to circumvent those controls and physically reach sovereign territory.

In sum, the right to seek asylum stood on shaky ground prior to COVID-19. Then came the pandemic.

The COVID-19 pandemic brought the deterrence measures outlined above to their logical conclusion, as border closures and states of emergency in destination states largely suspended the right to seek asylum. It is now near-impossible to seek asylum in Australia. While the sea route to Australia was shut down some time ago, prior to the pandemic, some asylum seekers had been able to fly to Australia on valid visas and subsequently apply for protection. COVID-19 travel restrictions now prevent people from entering Australia unless they are an Australian citizen or permanent resident.

The United States has gone down a similar path, announcing travel restrictions on 20 March 2020 that allow border agents to deny entry to almost all asylum seekers. The order issued by the Centers for Disease Control and Prevention (CDC) authorises the immediate deportation of undocumented aliens arriving overland from Mexico and Canada. The order is effective until 20 March 2021. The only narrow exception is limited screening for claims under the Convention Against Torture where an asylum seeker makes an ‘affirmative, spontaneous and reasonably believable claim’ of a fear of torture. Virtually no asylum seekers are being assessed as meeting this threshold, with just two asylum seekers of approximately 20,000 who entered via the southern border allowed to remain between 20 March and 13 May 2020.

In the EU, COVID-19 precipitated external and internal border closures, initial suspension of asylum procedures and further restrictions in the Mediterranean. As a result, asylum applications dropped to just 8,730 in April and 10,200 in May 2020, down from 34,737 in March and 61,421 in February. Promisingly, the EU Commission recommended that border closures include exemptions for asylum seekers and most states in fact continued to admit asylum seekers, including Austria, Denmark and Sweden. However, the right to seek asylum was suspended or curtailed in other European countries. In Hungary, for example, a state of emergency declared in relation to COVID-19 has suspended the right to seek asylum.

Further restrictions were introduced to block asylum seekers attempting to cross the Mediterranean. Italy, Malta and Cyprus closed their ports for most boats, citing public health concerns, preventing the disembarkation of asylum seekers rescued at sea. Malta went further, using private vessels to detain asylum seekers at sea or return them to Libya. In the eastern Mediterranean, Greece appears to have copied Australia’s policy of using lifeboats in push-back operations to Turkey.

The early months of 2020 saw an effective extinguishment of the right to seek asylum in Australia, Europe and the United States. Later, national and regional responses varied, with Australia and the United States effectively ending asylum seeking. In Europe, some states upheld the right to seek asylum by exempting asylum seekers from general border closures, while other countries used the crisis to suspend the right to seek asylum.

What lessons do these first critical months of the pandemic hold for the future of the right to seek asylum? First, there is a real danger that temporary measures harden into permanence. For example, Schengen border controls introduced at the height of Europe’s 2015 migrant and refugee crisis in some cases remain in place today. Second, there are already signs that destination states are exploiting states of emergency during the pandemic to limit access to asylum. The United States’ CDC order is the most egregious example of a state using the pandemic as cover for policy priorities unfeasible before COVID-19.

The implementation of international law into state practice requires leadership— it needs states to set an example to convince other states to adhere to protection norms. The question is will any state rise up to this challenge in the post-pandemic world?