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.