Covid-19 and the response of Portugal: choosing an inclusive path
When the pandemic started to spread across the EU, like many other Member States, Portugal had a substantial backlog of migration and asylum-related applications. Unlike numerous other Member States, instead of simply closing registration centres and de facto turning reception centres into detention centres, Portugal chose another route: temporary regularisation. Any migrant or asylum seeker who had a pending application on 20 March 2020 was automatically granted a status which included equal treatment with Portuguese nationals as regards work, education, access to health services and social services, including housing and social benefits.
The arrival of the Covid-19 pandemic in Europe, starting in February 2020, led to extraordinary measures to slow down the spread of the virus, in particular through restricting the movement of persons.
These restrictions included the closure of many parts of public administrations, access to ports for rescue vessels in Italy and serious disruption to all means of travel. For migrants and asylum seekers arriving or recent arrivals to the EU, these measures had unintended (mainly) and severe consequences.
The closure of ports meant no access to EU territory. Shutting registration centres and application processing units meant that asylum seekers on the territory could not make their claims (a necessary prerequisite to receiving reception conditions). It also meant migrants could not pursue their applications and, in some cases, they became irregular as they were unable to renew their residence document. The knock-on effect was destitution and irregularity in this sector of the population.
The exclusion of part of the population, in particular from access to health services because of their irregular status, put the whole EU population at greater risk. Accordingly, the problem was not only the rights of migrants and asylum seekers but also a public health challenge.
Yet some Member States, led by Portugal, chose a different path which both met the requirements of the public health emergency and ensured that migrants and asylum seekers were beneficiaries of all the relevant rights in EU, European and international fundamental rights law.
Guaranteeing the rights of the vulnerable became a priority
When the pandemic started to spread across the EU, like many other Member States, Portugal had a substantial backlog of migration and asylum-related applications. Unlike numerous other Member States, instead of simply closing registration centres and de facto turning reception centres into detention centres,
Portugal chose another route: temporary regularisation. Any migrant or asylum seeker who had a pending application on 20 March 2020 was automatically granted a status which included equal treatment with Portuguese nationals as regards work, education, access to health services and social services, including housing and social benefits.
Although this status was temporary (and was extended in November 2021) it meant that no migrant or asylum seeker was placed in a position of destitution as a result of discrimination in access to health care, work or social benefits because of measures taken to address the pandemic (and delay in the administration’s prompt determination of their applications).
Most critical in the context of the pandemic was access to healthcare. This was provided on the basis of non-discrimination to all persons irrespective of immigration status. As stated by the Minister of Internal Affairs, Mr. Eduardo Cabrita, ‘In a State of Emergency, the priority is the defence of collective health and safety.
It is in these moments that it becomes even more important to guarantee the rights of the most fragile, as is the case of migrants. Ensuring migrant citizens’ access to health, social security and job and housing stability is a duty of a solidary society in times of crisis’.
Equal treatment is an effective response to a pandemic
The most important policy implication of this investigation is that the differential treatment of migrants, asylum seekers and citizens in the context of a pandemic is not necessary. States make choices about how to deal with pandemics and what measures to take. But the differential and disadvantageous treatment of migrants and asylum seekers is not a ‘universal’ necessity.
The lesson to be learnt from this example of policy and practice choices of one Member State is that discrimination on the basis of immigration status in the treatment of a pandemic is not an obvious choice from a public health perspective. The equal treatment of everyone on the territory, irrespective of immigration status, can be chosen as a more effective and efficient approach to pandemic control measures.
The policy implication of this finding based on the experience of one Member State is that the choice of how to treat migrants and asylum seekers is politically determined. There is nothing self-evident or necessary about exclusion of these two categories of people from socio-economic rights as a reaction to a pandemic.
Public health emergencies as a justification for discrimination
State authorities need to reflect on the reasons why their policy choices to exclude migrants and asylum seekers from equal treatment in socio-economic rights during a pandemic are justified. Reflection on the example of other Member States rather than a knee-jerk reaction of exclusion of migrants and asylum seekers needs to be undertaken. The socio-economic costs, let alone the human rights consequences, of such exclusion is by no means self-evident.
Before adopting measures which exclude and discriminate against people present on the territory on the basis of their immigration status, Member State authorities must justify why such measures are necessary, what the consequences of such measures will be, in human rights terms, for those affected but also in public health and safety terms for the whole of the population.
Any justification in favour of such discrimination should be made public and not hidden on the basis of emergency measures taken against a pandemic.
Public health emergencies must never be instrumentalised as a justification for discrimination against migrants and asylum seekers.
It is incumbent on the EU to set a high fundamental rights standard across the Member States in addressing the pandemic. Suffice it to finish by noting that other states, such as Colombia, when faced with the expanding national consequences of the pandemic, took the opportunity to regularise Venezuelan asylum seekers (37% of the total asylum seekers from this country in the South America Caribbean region) in order to provide them with life chances during the pandemic.
 https://www.easo.europa.eu/sites/default/files/easo-special-report-asylum-covid.pdf [visited 11 May 2021].
 https://ec.europa.eu/migrant-integration/news/covid-19s-impact-on-migrant-communities-20 [visited 11 May 2021].
 https://www.easo.europa.eu/sites/default/files/easo-special-report-asylum-covid.pdf [visited 12 May 2021].