Detention of refugees, asylum seekers and migrants under Corona lockdown risks becoming arbitrary
By Professor Elspeth Guild, and Kathryn Allinson, Queen Mary University of London
Photo: Phil Botha/Unsplash
As the Covid-19 pandemic has tightened its grip on many western states, many refugees, asylum seekers, and migrants continue to be detained in reception and detention centres, without any prospect of release. With asylum processing at a standstill and returns to countries of origin on hold, detention of these individuals risks becoming arbitrary, if not inhumane.
“Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence”, states article 12(1) of the International Covenant of Civil and Political Rights (ICCPR). The liberty of movement is a human right – a right that has been severely curtailed since the outbreak of the Covid-19 pandemic.
In order to reduce disease dissemination, states worldwide have put in place severe travel and movement restrictions, affecting both internal and external travelling. Article 12(1) is a qualified right and so exceptions can be made in the context of public health necessity. These restrictions have resulted in lockdowns in countries around the world, confining people to their homes with only specific exceptions permitted.
But for some refugees, asylum seekers, and migrants, the general restrictions on freedom of movement have been accompanied by other measures that constitute detention. Many asylum seekers in EU states are provided with housing in reception centres. Normally these centres are open and asylum seekers can come and go as they wish (within reason). This is permitted, for instance, by the EU Reception Conditions Directive. Some migrants in respect of whom states have taken expulsion decisions are held in detention, in particular, where the state has made an assessment that they are likely to abscond if allowed out. But this detention is only lawful where it has a lawful objective – expulsion. It becomes arbitrary where expulsion is no longer being pursued by the state, as is the case in all EU states at the moment, where there are no longer the means to expel irregularly present migrants.
The ICCPR protects all people from arbitrary detention. Article 9 states “1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention…” As the Covid-19 pandemic has tightened its grip on many western states, receptions centres which had been open have now closed their doors, preventing asylum seekers from leaving. Rather than this simply being a matter of interference with the right of freedom of movement, it becomes detention. Further, the detention of migrants where there is no possibility of pursuing expulsion is no longer justified by a legitimate objective. Detention, as opposed to an interference with the right of free movement, is the result. While the restrictions on free movement apply to everyone on the territory without discrimination, detention applies only to those who are arrested or convicted of criminal offenses, on mental health grounds where there is a risk of harm and in respect of asylum seekers and migrants. Thus, detention applies in a discriminatory manner on the basis of the immigration status of the individual.
UNHCR has been particularly concerned about the detention of asylum seekers and the correct application of international human rights law to such detention. In its 2012 Guidelines on Detention of Asylum Seekers it reiterates that this must be a measure of last resort and based on the personal circumstances of the individual. The Marrakesh Compact specifically states that detention of migrants must be used only as a last resort after all alternatives have been found to be unsuitable (Para 16). The Global Compact on Refugees equally commits states to using detention only where community-based alternatives are not possible (Para 60). Thus, very recently the international community has reaffirmed their political commitment to delivering freedom of movement for refugees, asylum seekers, and migrants.
What has happened in many countries with the slippage from open reception facilities to detention as a result of Covid-19 is inconsistent with international human rights law and states’ commitments. The resulting detention is not based on an assessment of the personal circumstances of the individual but on general preventative grounds. But these grounds are discriminatory as they are much more severe for those who are in reception centres, than the general public. Secondly, migrants who are in detention awaiting expulsion are also no longer being held in accordance with international human rights law as the purpose of the detention – to achieve expulsion is no longer possible. The detention has, thus, become arbitrary. Further, as many states have acknowledged by releasing as many prisoners as possible into the community from the criminal justice system, prisons are particularly vulnerable to the rapid spread of Covid-19. The possibilities to maintain distancing are limited and conditions are frequently not adapted to make this possible, such as having to share all facilities, including toilets.
Examples of the hardship which is resulting from these practices in EU states are many. In the UK, the BBC has reported that detention centres are being placed in lockdown with people unable to leave their rooms. 750 people remained detained in the UK awaiting deportation or release. While processes are suspended for effectuating these, their detention becomes increasingly prolonged and arbitrary. As a result, 10 immigration organisations, led by Detention Action, brought legal proceedings against the government challenging the use of detention during a pandemic. The challenge relies on the expert evidence of Professor Richard Coker concluding that detention centres present ideal incubation conditions for the spread of Covid-19. In response, the Home Office released 300 detainees, but over 700 remain detained within the UK with drastically restricted freedom of movement and rising fears that they will contract the virus.
During a parliamentary debate on 23 March 2020, Stuart McDonald MP said: ‘We know now that there is no realistic prospect of immigration removals taking place imminently, and imminent removal is, of course, the legal threshold for justifying detention. The clear consequence of these two facts…is that continued detention is not only morally wrong, but it undermines the public health response to the coronavirus outbreak and is almost certainly illegal.’
Within asylum housing in the UK, people are being forced to share rooms and beds in contravention of Covid-19 guidance. On 24 March 2020 the Home Office announced that for the next three months, people will not be evicted from their asylum accommodation. Whilst this is positive in terms of continued support to asylum seekers, there is insufficient capacity to safely house the asylum seeker population. In a judgment last week, the high court ordered the Home Secretary, Priti Patel, to rehouse a man who developed Covid-19 symptoms after another symptomatic asylum seeker was put in his room. As a result, vulnerable asylum seekers are reporting that they are afraid to apply for support as they fear they will be forced into accommodation with a high-risk of contracting Covid19.
In Greece, Human Rights Watch have reported that the government has, since March 1, implemented a policy of detaining asylum seekers arriving at its borders whilst simultaneously suspending the asylum procedure. Thousands are currently held in prisons and detention centres throughout Greece. Since mid-March, the government has transferred at least 1,300 new arrivals from the islands into detention sites on the mainland. Similar policies are reported in Italy and France.
On 26 March the EU Commissioner for Human Rights called for a release of all immigration detainees as far as is possible in response to Covid-19 and the suspension of returns and hearings. Arguing that ‘under human rights law, immigration detention for the purpose of such returns can only be lawful as long as it is feasible that return can indeed take place. This prospect is clearly not in sight in many cases at the moment…’ The UK has now announced a review of the situation of all those in detention, a move that should be echoed across the EU and further afield to ensure the protection of the human rights and lives of refugees and migrants.
The undertaking of governments expressed in the Marrakesh Compact is ever more important in times of a pandemic. Detention of migrants must be reduced to the absolutely minimum and in all cases satisfy the human rights test of legality. The political commitment of states expressed in the Marrakesh Compact is now being put to the test – bringing their national laws and practices into conformity with the Compact must be a priority.
About the authors
Elspeth Guild is Jean Monnet Professor ad personam at the Queen Mary University of London as well as at the Radboud University Nijmegen, Netherlands. Her research interests and expertise lie primarily in the area of EU law, in particular EU Justice and Home Affairs, including immigration, asylum, border controls, criminal law, and police and judicial cooperation in criminal matters. She also researches EU privacy and data protection law and the nexus with human rights.
Kathryn Allinson is a Ph.D. candidate in the Department of Law at the Queen Mary University of London. Her doctoral thesis, “Establishing responsibility for causing displacement: An inquiry into the role of ‘Displacing Third States”, addresses two key questions. Firstly, the scope of the international legal prohibition on causing displacement and its application to non-territorial States. Secondly, how the frameworks for establishing state responsibility can apply to these States when they have caused or contributed to cause, displacement. Allinson is also a Teaching Associate at Bristol University Law School, the Managing Editor of The International Community Law Review, and a Research Affiliate of the Refugee Law Initiative.