Non-refoulement During a Health Emergency

The rapid spread of the COVID-19 virus worldwide has sparked continuous scientific debates about the impact of the health emergency and its legal implications. In an attempt to expand this growing debate, this short post aims to shed some light on the impact this emergency is having on asylum seekers and, therefore, to examine the possible tensions vis-à-vis the application of the principle of non-refoulement. These tensions are in particular raised by the emergency measures adopted by a number of States, in Europe and beyond, resulting in the closure of their borders. The pressing question that will be addressed here is whether health emergencies, such as the one caused by COVID-19, can affect the scope of States’ obligations stemming from the principle of non-refoulement, namely access to an effective asylum procedure and to other fundamental rights, including access to primary to healthcare.

Border closures and the right to seek asylum

While the pandemic continues to take its toll, States have progressively adopted restrictive measures to limit free movement within their territories and across their international borders. Such a scenario offered many governments the pretext to curb migratory flows, restricting ipso facto the right to seek asylum. The cases of the United States (US), the European Union (EU) and its Member States are particularly telling.

On 20 March 2020, the US Centers for Disease Control and Prevention, which is a branch of the US Department of Health and Human Services, issued an Order that suspends for public health reasons until mid-May 2020 the entry of persons traveling from Canada or Mexico (regardless of their country of origin) who require processing at the borders. As documented by Human Rights Watch and others, this Order applies and has been enforced against asylum seekers. The Order itself is also based on the assumption that the refugee camps at the Mexican borders can constitute a reservoir of proliferation of the virus, owing to the precarious hygiene conditions and the overcrowding.

In Europe, on 16 March 2020, the European Commission invited the European Council to adopt a Temporary Restriction on Non-Essential Travel from  third   countries   into   the  Schengen  area with immediate effect at all parts of the Schengen external borders (COM(2020) 115 final), known as the ‘EU Travel Ban.’ This proposal was accepted by the European Council in its meeting of 17 March 2020. The Commission provided guidelines to implement the EU Travel Ban (C(2020) 2050 final), clarifying that third country nationals who are persons in need of international protection or for other humanitarian reasons can be authorised to enter the EU, despite the closure of the EU external borders. As a consequence, most Schengen State Parties have adopted measures giving effect to the EU Travel Ban and many EU Member States have contextually declared the state of emergency or exception to limit the entry of all non-nationals. Only Bulgaria, Ireland, Luxembourg, and Romania expressly clarified that persons in need of international protection or applying for protection for other humanitarian reasons are able to enter into the territory; the Netherlands, Portugal and Spain also allow entry but with restrictions (Carrera and Chun Luk, 2020: Annex II).

Pointedly, as has been commented by Pelliconi, the Inter-ministerial decree No. 150 adopted by Italy on 7 April 2020 declares that Italian ports do not fulfil the requisites for the classification and definition of ‘place of safety,’ according to the  1979 International Convention on Maritime Search and Rescue. The decree, which practically determines a closure of Italian ports, has been justified with the alleged presumption that the disembarkation of migrants can endanger the effectiveness of the measures adopted to fight COVID-19. What is more, the rationale of such a measure is that the current strenuous circumstances create a risk that Italy will be unable to ensure to persons rescued at sea the absence of threats to their lives, the fulfilment of primary needs, and access to fundamental services. The Maltese government echoed the Italian decree with a similar measure entailing the closure of its ports based on the same rationale, namely that: ‘it is presently not possible to ensure the availability of a safe place on the Maltese territory, without compromising the efficiency/functionality of the national health, logistic and safety structures, which are dedicated to limiting the spread of the contagious disease, as well as to provide assistance and care to COVID-19 patients.’

On the non-derogable nature of non-refoulement in times of emergency

It is doubtful that these measures are compatible with the principle of non-refoulement. As is known, that principle, apart from constituting ‘the cornerstone of international refugee protection’ (UNHCR, 2007: para. 5), is a corollary of the prohibition of torture and inhumane and degrading treatment, and has attained the status of jus cogens as reiterated by the UNHCR and the most recent doctrine (Costello & Foster, 2016). The intertwined relationship between international refugee law and international human rights law has, in fact, significantly expanded the material scope of application of the principle of non-refoulement. It has also progressively narrowed the exceptions to non-refoulement, including the one contemplated by Article 33 (2) of the 1951 Refugee Convention, which precludes the benefit of the non-refoulement provision where ‘there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.’

Nonetheless, there are a plethora of cases of unlawful rejections at the frontier or non-entrée policies with the effect of preventing refugees from even reaching the point of being able to present their asylum claims to State authorities (Hathaway, 2015). Scant examples are available applying the principle of non-refoulement in situations of a health emergency. Accordingly, since the case of COVID-19 can set a dangerous precedent, especially in a context which has become increasingly hostile to migrants, it is crucial to reflect on whether the situation of pandemic disease can affect the scope of States’ non-refoulement obligations. In international refugee law situations of emergency have been especially determined in receiving States by circumstances, such as mass influx of asylum seekers. While such circumstances can certainly create difficulties for States as to the full application of the long-term rights enshrined in the Refugee Convention, they cannot result in practices of refoulment. As emphasized, ‘the immediate imperative of admission to safety’ (Durieux and McAdam: 2004) is to be preserved. Decisions like the one adopted by the National Security Council of Greece, following the problematic developments at the Greek-Turkish borders, establishing ‘the temporary suspension, for one (1) month… of the lodging of asylum by those entering the country illegally’ and the ‘immediate return…, of those who illegally enter the Greek territory,’ constitute flagrant violations of the principle of non-refoulement. As reiterated by the UNHCR, non-refoulement ‘must be scrupulously observed’ even in situations of mass influx of migrants (UNHCR, 1981).

Non-refoulement and access to the territory during a public health emergency

The nature of the principle of non-refoulement does not allow for derogations. States seem to choose not to fulfil the requirements for being considered places of safety for asylum seekers in order to avoid the positive obligations deriving from the principle of non-refoulement, namely the right to an effective asylum procedure. This practice is highly debatable for three main reasons. One, it is extremely doubtful that the disembarkation of migrants or their admission to the territory, especially beyond a situation of large-scale influx, can significantly deteriorate the functionality of the health system. Two, denying disembarkation or entry to the territory could worsen the precarious conditions of migrants, thereby forcing them to either stay in swamped camps at international borders or in a protracted situation of distress at sea. The illegality of the latter situation has been recently affirmed by the Italian Supreme Court in the Rackete case. Three, the Refugee Convention, unlike other human right treaties, does not contain any derogation clause for times of national emergencies. As pointed out, the drafters ‘considered, but rejected, an all-embracing power of derogation in time of national crisis’ (Hathaway 2005: 261). Even conceding that a situation of a health emergency can create risks for the lives of migrants themselves, it is all the more urgent to take action to protect their fundamental rights, including the right to healthcare. It is essential to recall that the United Nations Committee on Economic, Social and Cultural Rights stated clearly that governments are under an ‘obligation to respect the right to health by inter alia, refraining from denying or limiting equal access for all persons, including…asylum-seekers and illegal immigrants’ (HRI/GEN/1/Rev.7: 95, 34).

In its Legal Considerations on the recent European Commission’s Guidelines, the UNHCR stressed that alternative solutions to denial of entry must be considered such as isolation or quarantine to ‘enable authorities to manage the arrival of asylum-seekers in a safe and orderly manner, while respecting the right to asylum and the principle of non-refoulement.’ This recommendation is also in line with the provisions of EU asylum law. Article 13 of the Reception Directive establishes that ‘Member States may require medical screening for applicants on public health grounds.’ This can be regarded as a specific measure compatible with the Member States need to fight the COVID-19 emergency. Nonetheless, in no way does it allow derogation from the obligations established in Article 17 (2) of the Reception Directive, requiring that Member States ‘ensure that material reception conditions provide an adequate standard of living for applicants, which guarantees their subsistence and protects their physical and mental health.’

Concluding remarks: Collaborative duties to respect non-refoulement

Overall, provided that no derogation from non-refoulement, including non-rejection at the frontier, is allowed in times of emergency, States are under the obligation to grant at least temporary admission to territory. In the event the situation in the host State does not allow for the full application of the long-term rights established in the Refugee Convention and other relevant regional instruments, it is urgent to call for greater responsibility sharing to protect refugees. This will allow for a gradual evolution of the duty of temporary admission to territory predicated by the principle of non-refoulement to the gradual accrual of rights aimed at long-term solutions for refugees, described as ‘non-refoulement through time’ (Goodwin-Gill and McAdam 2007: 204). The system of international protection of refugees is embedded in a general principle of solidarity which calls for international cooperation to ensure satisfactory solutions for refugees, also in light of the particular pressure that refugees can cause to a particular State. Such a duty of cooperation is even more compelling within a process of integration, like the EU, of which ‘solidarity is the lifeblood’ (Advocate General Sharpston’s Opinion, C-718/17: para. 253). To conclude, the COVID-19 crisis cannot be used as a pretext for States to expose migrants to the risk of fundamental rights violations resulting from border closures, unavailability to pursue search and rescue operations at sea or unsafe returns to third countries. As stressed by the Council of Europe Commissioner for Human Rights, Dunja Mijatović, ‘solidarity and concrete action to share responsibility and protect human rights is now more than ever of the essence.’