The COVID-19 Measures Impact on the Rights of Migrants and Refugees in the EU

Karolina Babicka is a Legal Adviser with the Europe and Central Asia Programme of the International Commission of Jurists, in Brussels

Since January 2020, the Coronavirus pandemic has been spreading in Europe. As a result, all EU Member States have taken measures with the stated intention of containing the spread of the virus. These included restrictions on public gatherings, requirements to stay at home except for limited essential activities, and orders to close businesses and cultural and educational institutions. The most severe of these restrictions were in place between March and May 2020, which is the period covered here.

Some EU Member States have additionally closed their borders; stopped the registration and lodging of asylum applications; or freedom of movement in and out of reception centers was restricted. Many of these measures affected, sometimes disproportionately, the rights of migrants and refugees.

While the situation is getting back to “normal” in many EU countries, let’s look at how the most vulnerable in our societies were treated during the pandemic and what the obligations under international law are.

The closure of external borders and suspension of new and on-going asylum applications

Following the outbreak of the COVID-19 pandemic, the majority of EU Member States introduced restrictions for third-country nationals crossing the EU’s external border. In some cases, EU Member States banned entry to asylum applicants (Cyprus, Greece, Hungary) or declared their ports “unsafe” (Italy and Malta). Other Member States (like Belgium) closed their arrival centers, ultimately restricting access to asylum. The state of emergency due to COVID-19 declared in Hungary, led to the suspension of the right to apply for asylum. In Spain, processing of asylum applications has been temporarily suspended since the state of emergency entered into force on 15 March.

A more human-rights compliant approach has been taken by countries such as Germany and Sweden, which allowed access to filing of new asylum applications and also for entry to the country in order to seek asylum. The status of people who already were in the process of applying for international protection was also automatically extended in Luxembourg. In Portugal, it was decided that “persons who applied for international protection will be considered to be regularly in the country and thereby qualified for health care and public services.”

The right to seek and enjoy asylum is guaranteed under international human rights, refugee and EU law. Article 18 of the EU Charter of Fundamental Rights guarantees the right to asylum. The principle of non-refoulement prohibits States from transferring – in any manner whatsoever – anyone to a country or a territory where their life or freedom would be threatened on account of their race, religion, nationality, membership of a particular social group or political opinion or where they would otherwise face a real risk of serious harm. As such, it is one of the strongest limitations under international law on the right of States to control entry into their territory and to expel aliens as an expression of their sovereignty.

The European Commission has recommended that: “Measures taken by Member States to contain and limit the further spread of COVID-19 should be based on risk assessments and scientific advice, and must remain proportionate. Any restrictions in the field of asylum, return and resettlement must be proportional, implemented in a nondiscriminatory way and take into account the principle of non-refoulement and obligations under international law.”

It is clear from international standards and EU guidance that there should be an exemption to border closures to allow claims for international protection. Restrictions at borders imposed in the interests of public health must not result in denying an effective opportunity to seek asylum or in refoulement, in violation of states’ obligations under international law. In order to ensure that restrictions on rights involved in border closures respect such international law obligations, measures other than blanket closure of the borders, such as health checks at the borders and/or possible quarantine of newly arrived persons for 2 weeks as suggested by the European Commission guidelines, should have been considered first in response to COVID-19. Emergency measures that restrict human rights, such as exceptional closure of borders, should be time-bound and have a final date or have a date established on which these measures will be-reassessed.

Reception and living conditions of refugees and migrants

A majority of reception centers were in the first place not well suited or equipped to allow for special measures in order to contain COVID-19. In many cases the centres are in the long-term overcrowded, and it may be very difficult for asylum seekers, and especially the most vulnerable, to access kitchens and bathrooms safely due to these being shared with other residents. For instance in Greece, as of May 5, the population of the hotspots on Lesbos, Chios, Samos, Kos, and Leros was 37,847 people in facilities with a total capacity of just 6,095. Medecins Sans Frontieres reported on the need to evacuate refugee camps on the Greek islands as unhygienic conditions and overcrowding pose a real threat to public health. People in such camps have to queue to access toilets or to get food, have no access to health care and suffer from insecure conditions, all in all having serious negative impact on people’s mental health. Migrant support organisations in Ireland have expressed concern about the conditions in reception facilities, warning that an outbreak would be devastating, due to the inability of those living there to self-isolate or maintain social distance. The concern has materialized in an outbreak of the coronavirus in one of the centres in early May. In countries where the registering and lodging of asylum applications were temporarily suspended (Belgium, France, Greece or Hungary), asylum seekers unable to register risked being left destitute in the streets. Also, some reception centers were closed which led immediately to more people in precarious situations, who were forced to live in the streets.

The right to the ‘highest attainable standard of physical and mental health’ in international human rights law is a right of everyone, irrespective of citizenship or immigration status and wherever they may reside to healthcare systems, facilities, goods and services that are available, accessible, acceptable and of sufficient quality. Migrants including refugees are especially at risk due to lack of ties to host country health systems. Those already facing extreme hardship, including shortage of food, water and healthcare (which is for instance the case of asylum seekers in reception in Greece) were at a grave risk of violation of their right to health under COVID-19 measures.

Article 31.2 of the European Social Charter places a positive obligation on States to introduce emergency measures to reduce homelessness, such as the provision of immediate shelter, which must comprise of enough places and must provide conditions compatible with human dignity, and measures to help persons without a shelter to overcome their difficulties and prevent them from returning to a situation of homelessness. To ensure respect of dignity of persons sheltered, shelters must meet health, safety and hygiene standards.

EU law (the EU Charter, and the Reception Conditions Directive as clarified by the CJEU) equally provides for respect protection of human dignity, material conditions provided from the moment the asylum seeker applies for asylum. Article 19 of the EU Reception Conditions Directive requires that applicants receive the necessary health care, which shall include, at least, emergency care and essential treatment of illnesses and of serious mental disorders. The European Commission established, that “[m]ember States should take the necessary measures to ensure that such health care include, where necessary, treatment for COVID-19.”

EU Member states clearly have obligations not only towards their nationals, but all people on their territory, to ensure they have access to adequate housing, without discrimination on grounds of status, nationality or ethnic origin. The right to housing is closely connected to the right to life and is crucial for the respect of every person’s human dignity. In light of covid-19 there is a particular onus on States to ensure equal access to housing that is adequate to avoid the virus from spreading.

During such a pandemics, states must make sure that all migrants, refugees and asylum seekers have an adequate place to stay, so that they can self-isolate if needed, and that they can comply with the measures of social distancing, and regular hand-washing. The safety of people who are particularly vulnerable to COVID-19 (older or with existing pre-conditions) must be made a priority, including by taking them to safety from unsanitary reception centers.