We can secure both public health and the rights of refugees to protection

The UN Secretary-General has declared the COVID-19 pandemic to be a global health crisis unlike any other in the 75-year history of the United Nations. The pandemic also creates an international protection crisis, for in the face of COVID-19, we are all vulnerable. The virus has shown that it does not discriminate. Over 71 million asylum seekers and refugees, as well as those who are internally displaced or stateless, are especially vulnerable to health risks. Three-quarters of them live in overcrowded camps, settlements, makeshift shelters or reception centres, where they lack access to adequate health care and sanitation. Social distancing and handwashing in clean water are difficult, if not impossible. 

As governments around the world adopt increasingly stringent measures to protect public health, as they have a duty to do, fundamental norms of refugee and human rights law are under threat. 

It is ironic that, as the 1951 Refugee Convention enters its 70th year, the legal norms that underpin the mandate of the United Nations High Commissioner for Refugees (UNHCR) are challenged at a time when the many millions of those in need of international protection are at an unprecedented high. A long-term risk posed by COVID-19 is that the adoption of emergency laws and policies may become entrenched or ‘baked in’. When the pandemic has passed – and it will – adherence by many in the international community to democratic principles and human rights will have regressed, taking many years to rebuild. We need to be especially vigilant in upholding the rights of refugees to protection. 

UNHCR estimates that about 123 countries have fully or partially closed their borders to contain the spread of the virus, with some 30 states making no exception for access for asylum seekers. Many have suspended the right to seek asylum, with risks of refoulement as asylum seekers are turned away at the border or transferred to unsafe third countries. As international flights have ceased in response to COVID-19, the resettlement of refugees through UNHCR has been temporarily suspended.

Not only have national responses to COVID-19 led to the denial of fundamental refugee rights, but they have also resulted in the unnecessary and disproportionate use of immigration detention, a dramatic rise in sexual violence, discriminatory restrictions on access to health and social services, the loss of livelihoods, and the closure of schools. Such national measures to contain the virus fall heavily on refugees and others in need of international protection. 

A key question, and one that many in the community rightly ask, is whether long-recognised refugee laws can be respected at the same time as governments are adopting stringent measures at the border to protect public health. 

It is well understood that states have a responsibility to protect public health and may temporarily close their borders to limit the transmission of COVID-19, provided that any such measure is non-discriminatory, necessary, proportionate and reasonable in all the circumstances. 

Similarly, it has been long recognised that asylum seekers have a right to seek international protection at those borders. They must not be returned – either directly or indirectly – to a country where they face a real risk of persecution or danger. The principle of non-refoulement is one of the most widely accepted norms of customary international law, and is reflected in the 1951 Refugee Convention and other international instruments. 

The challenge is to strike a balance. Blanket measures precluding the admission of refugees or asylum seekers without measures to protect against refoulement will breach international law. 

With good faith and creativity, a country can both secure public health and the rights of refugees to protection. States can impose measures at the border such as health screening, testing, and self-isolation to manage health risks while also respecting the principle of non-refoulement. Quarantine measures may, for example, be a legitimate restriction on the right to freedom of movement provided they meet international human rights standards. By contrast, health concerns do not justify the systematic or arbitrary use of immigration detention. 

Where health restrictions prohibit face-to-face interviews, technology may enable remote interviewing and processing of asylum claims. Technical advice, guidance and financial support might be necessary and should be provided. Other protection measures, such as automatically extending registration cards or residency permits to enable refugees and asylum seekers to access health and other services, may also be adopted. 

UNHCR is concerned that COVID-19 will hit with the greatest severity those communities that are marginalised and poor, including refugees and others who are forcibly displaced.  COVID-19 will be controlled only if there is an inclusive approach which protects every individual’s right to life and access to adequate health services.  Efforts are needed to support host countries and local communities to strengthen health facilities and to ensure that the pandemic does not have disproportionate impacts. In particular, the pandemic raises the need to prioritise risks facing elderly people and those with disabilities or specific health conditions. 

About 50 per cent of the worlds refugees and other displaced people are children. The closure of schools on account of COVID-19 has dramatically impeded their right to education.  Children are especially vulnerable to exploitation through child labour, even trafficking. Special efforts are needed to ensure their protection where families face economic stress.

Strict confinement, loss of income and livelihood activities, isolation, and increased psychosocial needs have also led to a spike in sexual and domestic violence, including among refugees and displaced persons. Lack of documentation has restricted access to national health systems and other social services. Increased incidents of xenophobia, stigmatisation, and targeted attacks against displaced populations, as a result of misinformation about the spread of COVID-19, are equally of concern.

Communications with refugees, asylum seekers and the internally displaced should be enhanced, including through expanded networks, hotlines/call centres and internet platforms. Cash support programs may also be expanded. The displaced are themselves often the first responders and frontline advocates for their own protection. They should therefore be included in decision-making and have access to all relevant information. 

Finally, when faced with risks to public health on account of COVID-19, many host countries have found it burdensome to receive and protect refugees and asylum seekers while also meeting the needs of their own citizens. These states need additional support to strengthen their health systems and to include refugees and other displaced people in national social security programmes. In the spirit of the Global Compact on Refugees, international solidarity and support is vital to share responsibility for all those in need of international protection.