Written by Professor Elspeth Guild and Kathryn Allinson, Queen Mary University of London
Human rights in international law and the EU Charter are not dispensable in times of pandemics. They are essential characteristics and integral to promoting the European Way of Life which “is founded on the values of the respect for human dignity, freedom, democracy, equality, the rule of law and respect for the human rights, including the rights of persons belonging to minorities.”
On 3 March 2020, the heads of the key EU law-making institutions met at the Greek-Turkish border to support the efforts of the Greek border guards in pushing back and refusing crossing to a number of people (apparently not Turkish or Syrian nationals) seeking to flee Turkey and enter the EU. On 4 and 6 March respectively, the EU Councils for Home Affairs and Foreign Affairs, made statements applauding the action of the four heads of EU institutions in support of Greek border guards stating “The EU and its Member States remain determined effectively to protect the EU’s external borders. Illegal crossings will not be tolerated.”
The problem in international law with the actions of the Greek border guards, and their encouragement by the four heads of the EU institutions, is that they are not consistent with the obligations of the Member States and the EU (as stated in Article 78(1) Treaty on the Function of the European Union). This provision states that the EU is committed to respecting the UN Convention Relating to the Status of Refugees 1951 and the 1967 Protocol. Article 33 of that Convention provides that ‘no one shall be sent back to a state where he or she is at risk of persecution.’ This principle of non-refoulment is thus protected in international refugee law but is also a non-derogable obligation under international human rights law and considered to have customary law status.
What happened at the Greek Turkish borders was not consistent with the right of the individuals being pushed back to protection from refoulment. The EU contends that it is simply carrying out border control operations consistent with EU law. However, UNHCR argues that the EU Member States, as signatories of the Refugee Convention, are obliged, before refusing admission to anyone at the external border, to ensure that the individual has an opportunity to seek international protection and, if he or she exercises that opportunity, that their application will be considered on its merits. EU Regulation 2016/399 recognises the priority of a refugee claim over border controls in Article 3 – its scope does not affect the rights of refugees. In other words, the Schengen Borders Code does not apply to anyone seeking asylum.
This standoff between EU border control activities and the obligation to protect individuals from refoulement rapidly escalated as the Covid19 pandemic resulted in the ever firmer closure of EU external borders (and also internal borders). On 16 March, the EU Commission issued Guidelines for border management measures to protect health and ensure the availability of goods and essential services. These Guidelines acknowledge that border management coordination at the EU level is key to an EU border management response to the Covid19 challenge. Disruption of free movement of persons was to be avoided and to this end, the Guidelines state “Member States have the possibility to refuse entry to non-resident third country nationals where they present relevant symptoms or have been particularly exposed to risk of infection and are considered a threat to public health.”(para 15). As something of an afterthought, para 16 states “Alternative measures to refusal of entry such as isolation or quarantine may be applied where they are considered to be more effective.” From a public health perspective it may well be that confinement and containment to reduce a pandemic require that the people being confined or contained have somewhere to be confined to. At the border, refusing entry without any consideration of where people will go, or what they may do, may well have far-reaching negative effects. Building up numbers of persons refused entry at external borders who have no access to housing and other resources is unlikely to be an effective response to a pandemic (For further discussion, see Pillai (2020) on balancing public health and border controls under international law and the recent Refugee International Report on Covid19 and humanitarian emergencies).
More problematic, from the perspective of international law, is the failure of the Guidelines to make any mention at all of refugees, non-refoulement and the duty to consider asylum claims. Instead, Member State authorities, on reading the Guidelines, are left with the impression that they have no non-refoulement duties in times of the Covid19 pandemic and can refuse anyone entry at the external borders without an examination of their claim to asylum, on the basis of public health concerns. This is plainly not the case given the jus cogens nature of non-refoulment obligations.
This position was intolerable for the UNHCR, the organisation responsible for the correct application of the Refugee Convention. On the same day that the EU Guidance was issued, it issued a statement of Key Legal Considerations on access to the territory for persons in need of international protection in the context of Covid19 response. While acknowledging that states are entitled to take measures to ascertain and manage risks to public health, re-foulement at the border is unlawful and inconsistent with states duties under the Convention. According to UNHCR “denial of access to territory without safeguards to protect against refoulement cannot be justified on the grounds of any health risk.” The Considerations go on to explain that imposing a blanket measure to preclude the admission of refugees without evidence of a health risk also constitutes prohibited discrimination.
UNHCR followed up the Considerations with a further communication dated 18 March 2020 addressing specifically the EU Commission’s Guidelines on border management. Clearly the Commission’s Guidelines had set alarm bells ringing in Geneva (the seat of UNHCR). Here, UNHCR emphasises, with specific reference to the Commission’s Guidelines, that international and EU law provide that measures on border management, including management of health risks, must not prevent non-nationals from seeking protection from persecution and ill-treatment. It reminds the Commission of Article 18 Charter of Fundamental Rights which expressly protects the right to seek asylum. UNHCR makes three specific legal points:
- Non-discriminatory health screening at borders is a legitimate measure to protection public health;
- Information must be provided to all passenger at border so they know what the measures are;
- Asylum seekers arriving at borders must have continued access to asylum procedures and enjoy full respect for the principle of non-refoulement in line with applicable international and EU law.
The UNHCR rebuke to the EU Commission is clear. The Commission’s failure in its Guidance to recognise the overarching nature of right to protection against non-refoulement, which takes priority over health risk management measures at the borders, is inconsistent with both international law and the EU’s own law.
On 30 March 2020 the EU Commission issued a Communication setting out Guidance on the implementation of temporary restrictions on non-essential travel to the EU. This Guidance is much better developed than the initial efforts of 16 March which seemed to come as a palliative to the astonishing action of the leaders of the four EU institutions at the Greek-Turkish borders on 3 March 2020. The new Guidance, by contrast, under the heading “Other third country nationals who can be authorised to enter the EU despite of [sic] the closure of the EU external borders” stated that temporary restrictions on non-essential travel should not apply to persons with essential function or need, including (after seven other categories): “persons in need of international protection or for other humanitarian reasons respecting the principle of non-refoulement.”
While it seems a little inappropriate to suggest that someone fleeing persecution or torture is “effecting non-essential travel,” the inclusion of this exception is very important. It is also a warning to Greek border guards that, legally, they are not allowed to engage in ‘refoulement sauvage’ (pushing back potential asylum seekers across an international border without consideration of the merits of their claims). However, the treatment of asylum claimants at EU external borders during the Covid19 pandemic surely deserves more than two lines in a 12 page document. It would have been more obvious in conformity with EU law that the Guidance contains a full section on the duties of guards at the external borders of the EU towards asylum seekers and refugees. Article 7 of the Schengen Border Code already requires these guards to exercise their powers in full respect, not only for human dignity but also in respect of persons in vulnerable situations. Asylum seekers and refugees are, by definition, in situations of great vulnerability.
The events of March 2020, between the EU official applause for practices which appear to be refoulement sauvage at the Greek-Turkish border, followed by a carte blanche EU Commission Guidance to Member States border guards to use the public health risk of Covid19 to refuse entry at EU external borders to refugees constitutes a new low point for the EU’s respect of international law. That it took two Guidance Notes from UNHCR to remind the EU institutions of their duty of non-refoulment in respect of refugees, not only in international law but also in their own internal law, before they corrected the Guidance is not impressive. Human rights in international law and the EU Charter are not dispensable in times of pandemics. They are essential characteristics and integral to promoting the European Way of Life which “is founded on the values of the respect for human dignity, freedom, democracy, equality, the rule of law and respect for the human rights, including the rights of persons belonging to minorities.”
It seems that the tension may not be over. On 31 March, a joint statement from the World Health Organization (WHO), the Office of the High Commissioner for Human Rights (OHCHR), International Organization for Migration (IOM) and the office of the UN High Commissioner for Refugees (UNHCR), urged greater protection for the rights of refugees in the face of Covid-19. It will be vital to monitor how individual States, and the EU Commission, respond to this over the coming weeks.
Included in footnotes:
1 Council of Europe Press statement 126/20, 4 March 2020 and 6 March 2020.
2 “1. The Union shall develop a common policy on asylum, subsidiary protection and temporary protection with a view to offering appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of non-refoulement. This policy must be in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees, and other relevant treaties.”
3 UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137, available at: https://www.refworld.org/docid/3be01b964.html [accessed 7 April 2020]
4 Article 33 “1. No Contracting State shall expel or return (” refouler “) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” Refugee Convention.
5 Schengen Borders Code Regulation2016/399.
6 Article 3: “This Regulation shall apply to any person crossing the internal or external borders of Member States, without prejudice to:
(a) the rights of persons enjoying the right of free movement under Union law;
(b) the rights of refugees and persons requesting international protection, in particular as regards non-refoulement.”
7 COM(2020)1753 final.
8 Jean Allain, The jus cogens Nature of non‐refoulement, International Journal of Refugee Law, Volume 13, Issue 4, October 2001, Pages 533–558, https://doi.org/10.1093/ijrl/13.4.533
9 UNHCR, 16 March 2020: UN High Commissioner for Refugees (UNHCR), Key Legal Considerations on access to territory for persons in need of international protection in the context of the COVID-19 response, 16 March 2020, available at: https://www.refworld.org/docid/5e7132834.html [accessed 7 April 2020]
10 “Central to the right to seek asylum is the principle of non-refoulement, which prohibits, without discrimination, any State conduct leading to the ‘return in any manner whatsoever’ to an unsafe foreign territory, including rejection at the frontier or non-admission to the territory.” Para 2.
11 UN High Commissioner for Refugees (UNHCR), UNHCR Legal Considerations with regard to the EU Commission´s Guidelines for border management measures to protect health and ensure the availability of goods and essential services, 18 March 2020, available at: https://www.refworld.org/docid/5e7882484.html [accessed 7 April 2020]
12 EU Commission COM(2020)2050.
13 Page 5, section (2).
14 Article 7 “Border guards shall, in the performance of their duties, fully respect human dignity, in particular in cases involving vulnerable persons.”
15 https://ec.europa.eu/info/strategy/priorities-2019-2024/promoting-our-european-way-life_en accessed 7 April 2020.