The End of the Right to Seek Asylum? COVID-19 and the Future of Refugee Protection

The global pandemic has stopped asylum seekers in their tracks, as States across the world have sealed their borders, suspended asylum procedures, and – in some cases – summarily deported asylum seekers. Some of these measures have been explicitly justified using public health emergency laws. Others have been implemented quietly and informally behind the scenes. As a result, it has been almost impossible for most asylum seekers to travel to access protection. While these drastic measures have come as immediate responses to the spread of COVID-19 across borders, they are best understood as an exacerbation of underlying tendencies towards the extinguishment of the right to seek asylum in the global North. Access to asylum in the developed world has been under pressure since the end of the Cold War, with the emergence of a vast array of non-entrée measures to prevent asylum seekers accessing the territory or asylum procedures of destination States.1 Over the past 30 years, lack of legal access to asylum for refugees has become one of the most studied topics in refugee studies.2 Even before the outbreak of COVID-19, scholars documented the emergence of today’s ‘deterrence paradigm’3 and predicted the end of the right to seek asylum in the traditional asylum countries in the global North.4 We argue that COVID-19 has precipitated existing trends towards the end of the right to seek asylum in Australia, Europe, the United States (US), and Canada.5 As a result, perhaps for the first time since the construction of the modern international refugee regime, the early months of 2020 saw an effective extinguishment of the right to seek asylum. The extent to which that right will bounce back from this state of emergency footing remains to be seen. However, COVID-19 provides an opportunity to explore the implications of the potential end of the right to seek asylum, and to set out some thoughts about how to prevent that eventuality. This article proceeds in four parts. First, we briefly set out the content of the right to seek asylum under international law. Secondly, we frame the impact of COVID-19 on asylum seekers by reference to existing measures restricting access to asylum in the global North. Thirdly, we examine what happened to the right to seek asylum between March and August 2020, when destination States largely closed their borders. Finally, we canvass ways to protect the right to seek asylum beyond the pandemic. The term ‘asylum’ lacks accepted legal definition and the institution of asylum is not a straightforward area of international law.6 While article 14 of the Universal Declaration of Human Rights sets out an individual right to ‘seek and enjoy’ protection from persecution, the 1951 Convention relating to the Status of Refugees (Refugee Convention) is silent on access to asylum.7 Instead, the Refugee Convention sets out the principle of non-refoulement, which prohibits the removal of a refugee ‘by any manner whatsoever’ to a risk of persecution.8 The principle is also embedded in international and regional human rights law instruments, which proscribe (inter alia) the removal of individuals to a real risk of torture or cruel, inhuman or degrading treatment or punishment.9 As a corollary to the principle of non-refoulement, there exists an individual right to seek asylum, in the sense of applying for protection. It does not amount to a right of admission per se,10 but rather is a procedural right to claim international protection from State authorities and to access a fair and effective procedure to assess the veracity of that claim.11 It is this procedural right to apply for protection with which this article is principally concerned. The individual right to seek asylum was under pressure in the global North long before the outbreak of COVID-19. Below, we provide a brief overview of deterrence and non-entrée practices targeting different modes of travel that have limited access to asylum in Australia, Europe, Canada, and the US over the past three decades. As part of the phenomenon that Ayelet Shachar has labelled the ‘shifting border’,12 enforcement measures not only block physical departures by plane, sea, and land, but occur across the entire travel continuum, including ‘visa screening, airport check-in, points of embarkation, transit points, international airports and seaports’.13 Alongside these measures, States have also developed a suite of policies to facilitate the removal of asylum seekers who manage to circumvent such controls and physically reach another country. A combination of visa controls and carrier sanctions has proved incredibly effective in preventing asylum seekers from travelling by plane. It has become impossible for most citizens of refugee-producing countries to board a plane heading to the States of the global North without a visa. States do not issue visas for the purpose of seeking protection and employ elaborate ‘risk factor’ algorithms to deny potential asylum seekers access to other temporary visas (such as tourist visas). The enforcement of these visa restrictions is outsourced to private airline companies, that are tasked with ensuring that individuals without a valid visa are prevented from travelling. Airlines that fail to uphold this responsibility are punished through carrier sanctions, which can include significant fines and the impounding of aircraft.14 States also deploy airline liaison officers in transit and departure States to assist and advise the airline companies on their visa enforcement responsibilities.15 The resulting document and immigration checks make it almost impossible for persons seeking asylum to travel and claim protection elsewhere (aside from a small minority who succeed in circumventing the risk factor algorithms and obtain a tourist or other similar visa). These barriers to air travel have pushed asylum seekers to use far more dangerous modes of irregular travel by land and sea. In recent years, States around the world have erected border walls at an unprecedented pace.16 Prominent examples include the US–Mexico border, Norway’s arctic border with Russia, Hungary’s border with Serbia, the Bulgaria–Turkey border, and the Spanish enclaves in Morocco. Here again, border enforcement is shifting outwards, with transit and source countries being coopted as ‘buffer zones’.17 As well, government authorities in these States are mobilized to apprehend migrants and disrupt their journeys in return for aid, capacity building, and other forms of inducement or coercion.18 The US and Australia have long-standing policies of intercepting and returning asylum seekers at sea, processes that have been tacitly upheld by domestic courts.19 Both States also summarily transfer asylum seekers to extraterritorial processing sites. The US has operated the Migrant Operations Center on Guantánamo Bay, Cuba, since the 1990s. This provided the blueprint for Australia’s offshore processing of asylum seekers on Nauru and Papua New Guinea from the early 2000s.20 These policies have been effective in deflecting almost all asylum seekers who seek to travel by sea to the US or Australia.21 The European Convention on Human Rights (ECHR) and the EU asylum acquis provide the most robust protection of the right to seek to asylum in the global North.22 However, access to asylum has long been subject to a range of migration control measures.23 Deterrence has been particularly marked since the migrant and refugee crisis of 2015, sparked in part by the flight of Syrian protection seekers. This is particularly evident in the central Mediterranean, where EU and Italian cooperation with the Libyan government includes funding, equipping, and training the Libyan coast guard and a reprisal of bilateral agreements between Italy and Libya to combat irregular migration.24 Following the European Court of Human Rights’ (ECtHR) decision in Hirsi,25 prohibiting Italy’s interdiction and return of asylum seekers to Libya,26 EU and Italian actors have attempted to circumvent their non-refoulement obligations by avoiding direct contact with asylum seekers, instead coordinating search and rescue in concert with the Libyan coast guard, an approach currently the subject of a legal challenge before the ECtHR.27 In the western Mediterranean, Spain has strengthened bilateral cooperation with Morocco to prevent departures and assist ‘hot returns’ by land and sea.28 Even when asylum seekers manage to circumvent the non-entrée policies outlined above and reach the destination State, they may still be denied the right to seek asylum. An increasingly common policy used to this end is the safe third-country notion. Developed in Europe in the 1980s, and subsequently spreading to almost all countries of the global North, it allows the return of an asylum seeker to a particular country on the basis that he or she can purportedly access effective protection there. The Dublin Regulation in the EU assigns responsibility for assessing asylum seekers’ protection request to the State of entry.29 As a result, coastal States at the EU’s southern sea border, notably Greece, Italy, and Spain, and States at the EU’s eastern land borders, such as Hungary, have attracted significant numbers of asylum seekers and have become the key migration control sites. The EU–Turkey Statement of March 2016 allows asylum seekers arriving in the Greek Aegean islands to be returned to Turkey. While there has been a significant reduction in irregular migration between Turkey and Greece,30 there have been serious concerns raised as to the welfare and safety of returnees to Turkey.31 In North America, the Canada–US Safe Third Country Agreement continues to be relied upon by Canada to return asylum seekers to the US, notwithstanding a recent court decision declaring the agreement unconstitutional.32 More recently, the 2019 Migrant Protection Protocols allow the US to return undocumented asylum seekers to Mexico, where they must await the conclusion of their asylum proceedings.33 In some cases, asylum seekers are sent to destinations with which they have no pre-existing relationship. Australia’s offshore processing policy is one such example, pursuant to which asylum seekers who have transited through Indonesia or Malaysia are transferred to Nauru (and formerly to Papua New Guinea).34 Australia’s approach appears to have inspired a series of similar arrangements between the US and Guatemala,35 Honduras,36 and El Salvador37 to accept the transfer of asylum seekers who arrive at the US–Mexico border. There is no requirement that the asylum seeker has previously transited through the country to which they are transferred. In sum, prior to COVID-19, the right to seek asylum already stood on shaky ground. A combination of visa regimes, carrier sanctions, maritime interdiction, extraterritorial asylum, and safe third-country rules rendered access to asylum difficult and dangerous. 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 almost impossible to seek asylum in Australia. While the sea route to Australia was effectively 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 this. On 18 March 2020, Australia declared a human biosecurity emergency38 which activated expansive powers under the Biosecurity Act 2015.39 Shortly thereafter, Prime Minister Scott Morrison announced that Australia would close its borders to all non-citizens and non-residents from 20 March 2020.40 On 8 December 2020, the government extended the travel ban to 17 March 2021.41 Exemptions can only be issued by the Border Force Commissioner, where there are compassionate or compelling reasons to travel to Australia. The need to seek protection is not one of the grounds for seeking an exemption.42 The US 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) authorizes the immediate deportation of undocumented aliens arriving overland from Mexico and Canada.43 The order is effective until 20 March 2021 (unless repealed earlier). The cited legal basis for the order is the Public Health Service Act, which authorizes the suspension of entry of persons to the US where there is a serious danger of the introduction of a communicable disease.44 Significantly, the order operates completely outside the regular immigration removal process, allowing asylum seekers to be sent back without a hearing or any opportunity to raise protection concerns. The only narrow exception to the order 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.45 Given the rapid timeframe and lack of information, it is unsurprising that virtually no asylum seekers are being assessed as meeting this threshold. By 31 July 2020, more than 105,000 individuals had been returned to Mexico under the rapid-expulsion procedures.46 Comprehensive statistics are not available for asylum claims made by that cohort. However, it has been reported that just two of approximately 20,000 asylum seekers who entered via the southern border were allowed to remain between 20 March and 13 May 2020.47 It is not just asylum seekers apprehended at the border who are being returned. It appears that US Customs and Border Protection has taken a broad view of the powers given to it by the public health order and has targeted asylum seekers already in the country, including unaccompanied children, for summary removal.48 Even Canada, a State that in the past has resisted the same levels of restriction, since 14 March 2020 has been turning back asylum seekers who try to enter the country irregularly over land. It has continued to rely on its safe third-country agreement with the US, notwithstanding the potential risk of chain refoulement and the Federal Court finding that the agreement violates the Canadian Charter of Human Rights.49 In the EU, COVID-19 precipitated external and internal border closures, the 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. In June 2020, asylum applications increased to 31,500, but remain well below pre-pandemic levels.50 Promisingly, the EU Commission recommended that border closures include exemptions for asylum seekers and most States, including Austria, Denmark, and Sweden, in fact continued to admit asylum seekers.51 However, the right to seek asylum was suspended or curtailed in some other European countries. In Hungary, for example, a state of emergency declared in relation to COVID-19 suspended the right to seek asylum.52 For asylum seekers reaching European territory during the pandemic, the suspension of asylum procedures has delayed access to asylum. Greece suspended its asylum procedure for one month for asylum seekers crossing via the Turkish land border, giving rise to concerns of collective expulsion and refoulement.53 Most other European States closed asylum offices, thus effectively suspending the asylum procedure, while some basic registration processes continued.54 Some countries halted in-person interviews, but kept open channels for written applications for protection.55 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.56 Malta went further, using private vessels to detain asylum seekers at sea or return them to Libya.57 In the eastern Mediterranean, Greece appears to have copied Australia’s policy of using lifeboats in pushback operations to Turkey.58 The UK is also now considering emulating Australia’s boat pushback policy in the English Channel.59 As this overview shows, the right to seek asylum during the first months of the pandemic suffered badly in the global North. In Australia, the closure of routes to protection by air, alongside existing measures for those seeking asylum by sea, effectively extinguished the right to seek asylum. Similarly, the Trump administration’s use of a sweeping public health order effectively ended (at least for those crossing land borders) territorial asylum in the US. While the newly elected Biden administration has introduced a number of executive orders reversing some of the Trump administration’s asylum policies, this did not extend to the CDC public health order, which remains in force at the time of writing in February 2021. The picture is more mixed in Europe. While some European States upheld the right to seek asylum by exempting asylum seekers from general border closures, others used the crisis to suspend the right to seek asylum. At the external border, some States pushed back and refused port to asylum seekers arriving by sea. 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 migrant and refugee crisis in some cases remain in Secondly, there are already that destination States are states of emergency during the pandemic to access to asylum. The US CDC is the most of a State using the pandemic as for policy before COVID-19. what extent will the right to seek asylum the The COVID-19 pandemic at least all but extinguished the right to seek asylum in States of the global North. What can be to it in a Most there may be to challenge the of restrictions introduced on public health emergency grounds in domestic Some measures, such as the CDC in the US, may have been valid in the first travel while valid when may to be as the public health emergency is the underlying long-standing towards access to asylum will be more in domestic and will be Given the key that extraterritorial controls have in access to asylum, the to be on ways to hold for their beyond their borders. This will include under international human rights and refugee law that a State has it it is to and beyond human rights and refugee For example, there have been some in using as well as to hold for extraterritorial against asylum will not be At the of the of the right to seek asylum is a crisis of States have a increasingly measures at shifting asylum to other States to or policies in other or the of increased asylum A similar will make States to be first when it to asylum between States on how and when to restrictions these concerns. be and by such as the United for Refugees or EU to and responsibility are to the long-standing of the institution of asylum. In this the in the on Refugees including to refugee countries and and are these will not be The of the be further towards the right to seek asylum, including through the and by practices in this in has an to in the international refugee protection regime, and is one in which States can However, its that it can be a for the right to seek asylum. States have an as to how and refugees to accept under their This was by State responses to the COVID-19 pandemic. were suspended around the and refugees who had already been accepted were prevented from In the first of 2020, just refugees for Even before the pandemic, the number of available was in and has been close to meeting the right to seek asylum, States of the global North must by by that There are some examples of with Sweden, to some Canada the the right to seek asylum in the developed world the real risk of in the global where per of the refugees destination States to the examples set by countries such as and which their borders open to far more asylum seekers than any State in the global North. The of international law in State – States must set an to other States to to protection The now will any State rise to this challenge in the An of this article was as

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