European states are utilizing emergency powers to curtail people’s rights and stop migration flows during the COVID-19 pandemic. In March, Schengen Area (visa free zone) states closed their borders and agreed to a European Commission plan to close Europe’s external borders for thirty days. This closure was extended until May 15 and could be extended again, even as states lift their stay-at-home orders. Although travel restrictions and quarantines have slowed down COVID-19’s spread within the general population, refugees are increasingly at risk of catching the deadly virus and facing harms as a consequence of continued human rights violations.

Prior to the COVID-19 outbreak, European states committed serious infringements on refugee rights. Since the 2015 refugee crisis began, states have blocked asylum seekers from passing through their borders. They’ve arbitrarily detained refugees and openly thwarted due process while forcing asylum seekers to live in inhumane living conditions. Far-right politicians use refugees as scapegoats to explain economic and societal problems. As populist support grows, states are adopting hardened migration policies that reflect rising xenophobia. Most recently, Greece declared a state of emergency after Turkey allowed migrants to pass into Greece in February 2020. Under this state of emergency, Greece suspended acceptance of new asylum applications and extended emergency powers due to COVID-19. Other European Union (EU) states’ responses to COVID-19 include their own declarations of states of emergency.

As external borders remain closed, asylum seekers cannot apply for international protection and can be sent back to potentially life-threatening conditions. Although the right to seek asylum isn’t secured under customary international law, it’s guaranteed through Article 18 of the Charter of Fundamental Rights of the EU. The principle of non-refoulement, which prohibits the return of refugees to a state where they may face persecution is in the 1951 Refugee Convention and Article 19 of the Charter of Fundamental Rights of the EU. Although states have sovereign control over their borders and can determine entry, two recent European Court of Justice (ECJ) cases ruled that states must always allow asylum seekers to lodge claims and that claims must be allowed to be reviewed by courts, even during national emergencies. Although states may derogate on certain rights during emergencies, the right to lodge an asylum claim and the principle of non-refoulement must be upheld under European law. 

The European Commission recently released guidelines on asylum, deportations and resettlement during COVID-19. Any restrictions must be, “proportional, implemented in a non-discriminatory way and take into account non-refoulement.” Although borders are closed to all and don’t single out asylum seekers, the closure violates the rights of those seeking international protection. Article 19 of the Charter of Fundamental Rights of the EU also prohibits the “collective expulsion” of asylum seekers and closing borders is effectively a collective expulsion.

Without access to the European asylum system, states aren’t only infringing on refugee’s rights to seek protection but may be violating the non-derogable right to be free from torture or other inhumane, degrading treatment or punishment found both in international law and in Article 3 of the European Convention on Human Rights. The European Court of Human Rights (ECHR) concluded in Sharifi and Others v. Italy and Greece (2014) that states violated the prohibition of torture by sending asylum seekers to Afghanistan without being given the possibility to apply for asylum. In Ilias and Ahmed v. Hungary (2019), the Court ruled under the prohibition of torture that asylum seekers cannot be sent to unsafe third countries where insufficient asylum procedures may lead to rejected claims and return to a dangerous home country. Closed borders may lead to increased refoulement and thus unlawful derogations.

Europe’s border closure, stay-at-home policies and the need for all emergency personnel to assist with the crisis has eliminated Mediterranean search and rescue (SAR) missions. Despite the pandemic, the UNHCR reported that 800 people traveled from Libya to Europe in March 2020. When boats have reached Europe, they can’t dock and are turned away. The German NGO Sea-Eye, which recently reinitiated its SAR operations, was refused disembarkment in Italy. After international outcry, the Italian government finally agreed to let passengers disembark but only after a two week quarantine on the boat. Malta reportedly ignored distress calls and then later sent a Navy boat to cut a migrant boat’s electricity cable. Médecins San Frontiers condemned Italy and Malta’s actions, and pleaded for states to stop using COVID-19 as an excuse to enact inhumane migration policies.

By turning boats away, states aren’t giving refugees a chance to present themselves for asylum. The ECHR ruled in Hirsi Jamaa and Others v. Italy (2012) that states violate non-refoulement, the prohibition of torture, and the prohibition on collective expulsion by refusing asylum seekers a place to disembark. States can reject a claim but, in this instance, they cannot send an asylum seeker to an unsafe third country like Libya. Although states legally aren’t obligated to send SAR missions, they are responsible for upholding the right to life, a non-derogable right that cannot be infringed upon in a public emergency. It’s well documented that migrant boats are unstable; more than 27,000 migrants have drowned in the Mediterranean since 1993. States are unequivocally failing to uphold obligations to non-refoulement and the right to life by closing their borders to asylum seekers.

Even if Europe lifted its border closure, refugees would face perilous circumstances inside detention centers and camps. Thus, more will be needed to ensure right to life of refugees in detention. The 2016 EU-Turkey Migration Deal led to increased overcrowding of camps as the agreement mandates detention of asylum seekers while their application is processed. Many camps are at overcapacity such as Greece’s Moria Camp, where 13,000 people live in facilities built for 3,000. States repeatedly fail to expand accommodations and access to necessities like water. As a result, refugees are unable to practice social distancing or adequate handwashing to combat COVID-19.

Many have criticized states for keeping asylum seekers detained throughout this crisis as asylum courts are closed and deportations suspended. If entry restrictions were lifted and more asylum seekers were detained, COVID-19 may spread. Therefore, states should determine whether detention is necessary and expand accommodation centers as well as refugee’s access to state resources. Portugal recently granted asylum seekers who already filed residency applications full citizenship rights. Maintaining overcrowded and unsanitary centers leaves refugees in life-threatening conditions.

Europe’s post-World War II refugee crisis propelled the world to solidify state obligations to protect refugee rights through the Refugee Convention. The EU has taken protections a step further by guaranteeing the right to seek asylum. Therefore, European countries have a moral and legal obligation to respond to all crises that drive people to seek international protection, even during pandemic emergencies. Europe has consistently struggled with upholding refugee rights since the 2015 refugee crisis began. A global pandemic is not an excuse to further infringe on refugee’s rights and implement xenophobic migration policies that have become the new global norm.