Will Asylum in the EU Become Collateral Damage in the COVID-19 Crisis?

This is a repost of a blog contribution published at the Kaldor Center on 9 April 2020.

In theory, international protection in Europe is well governed. All States are bound by the 1951 Refugee Convention and its 1967 Protocol and the European Convention on Human Rights (ECHR). The European Union Member States (plus Iceland, Liechtenstein, Norway and Switzerland, at times) are also bound by the instruments that comprise the Common European Asylum System (CEAS) which sets common standards for the qualification, accommodation, welfare, and integration of people in need of international protection, and rules about which State is responsible for examining individual claims. Despite these common standards, in practice, States often work against each other. Now, the COVID-19 crisis is weakening Europe’s already-fragile protection regime, with policy responses so far that not only undermine solidarity but are also unlawful and dangerous.

Border Controls and Public Health

Just in time for the 25th anniversary of abolishing internal border controls between initially seven EU Member States (Belgium, Germany, France, Luxembourg, the Netherlands, Portugal and Spain) on 26 March 2020, five of those countries (Belgium, Germany, France, Portugal and Spain) are carrying out comprehensive internal border controls. A further 11 of the total 26 countries in Europe’s Schengen area have temporarily reintroduced controls at their internal borders (Austria, Czech Republic, Denmark, Estonia, Finland, Lithuania, Hungary, Norway, Poland, Sweden, Switzerland). Additionally, four carry out controls without having notified the EU Commission (Italy, Latvia, Slovakia and Slovenia).

Member States may legally order these controls, through a process including notification and consultation, if there is a threat to public order or internal security that cannot be otherwise averted. As the responsible EU Commissioner, Ylva Johannsson, and the World Health Organization have emphasised, though, border control measures are not appropriate for interrupting the chains of infection.

Yet, on the birthday of internal free movement in Europe, internal border controls were the new norm. Of the Member States currently conducting border controls, only France and Sweden do not justify these controls on the grounds of the coronavirus crisis.

Asylum Applications

In mid-March, the EU Commission outlined categories of travellers who should not be subject to entry restrictions. The list includes health care workers, certain people travelling for work, and those in need of international protection or seeking entry for other humanitarian reasons (in other words, asylum seekers, recognised refugees, and people who are clearly ill and in need of treatment). The Commission’s guidelines on border management and subsequent guidance emphasised that these people should be allowed to enter the Schengen area via an external border. In reality, people seeking protection are probably often turned away. Indeed, Greece just passed a law legalising a decree that prevented people from applying for asylum during March 2020 (with the possibility of extension).

At internal borders, the situation is equally alarming. Switzerland and Austria have announced they will return those trying to apply for asylum at the border without opening a procedure. Other countries, such as Belgium and the Netherlands, are simply no longer accepting asylum applications due to the crisis situation.

It is often unclear how protection seekers are treated during these border controls. Germany’s announcement about reintroducing border controls did not mention asylum seekers at all. Although the federal police are supposed to call in health authorities in the case of recognisably ill persons, rejection is evidently preferred. The situation in other Member States is comparable. Overall, it appears that governments in the Schengen area are all too willing to use the coronavirus crisis to restrict the right to apply for asylum.

In the light of these developments, the United Nations High Commissioner for Refugees (UNHCR) summarised the legal requirements concerning access to the territory for refugees in the context of COVID-19. UNHCR highlighted non-refoulement, the international legal prohibition on returning a person at risk of persecution, torture or other inhuman or degrading treatment. This is found not only in Article 33 of the Refugee Convention, but also in Article 7 of the International Covenant on Civil and Political Rights and, in the European context, particularly importantly in Article 3 of the ECHR and in Article 19(2) of the EU Charter of Fundamental Rights. No exceptions are permitted, even in a state of emergency.

According to the case law, this has a procedural component, in that the right not to be returned must also be enforceable. At the border or during a border control, officials must observe the principle of non-refoulement. So, if someone indicates orally or through their behaviour that they wish to be protected, there must be the possibility of applying for asylum.

In such cases, States cannot point to protection available elsewhere, or refer someone elsewhere without prior individual examination. The European Court of Human Rights (ECtHR) has clarified this on several occasions. The European Court of Justice (CJEU) made it even clearer on 19 March 2020 in two cases (LH and PG) concerning Hungary, clarifying that access to the asylum procedure must always be guaranteed (PG, para. 56), and also that an independent, individual and thorough judicial review must be carried out with regard to the need for protection (PG, para. 29) or the protection existing in the third country (LH, para. 35ff.). The court must not be prevented from carrying out a comprehensive review by time limits and other legal requirements or factual circumstances (LH, para. 68 et seq. and PG, para. 26 et seq.).

Yet, despite clear statements by the ECtHR, the CJEU, the EU Commission, and UNHCR, not all States of the Schengen area are adhering to the applicable minimum standards under international and EU law.

Asylum Procedures, Access to Welfare and Accommodation

Federal Office for Migration and Refugees (BAMF) states states: ‘In order to avoid contact, the Federal Office […] now only accepts asylum applications in writing.’ However, submitting a written application is not possible at the border, but only after registration with an initial reception facility. The French and UK asylum agencies have put similar procedures in place. However, in-person applications are still possible in some Member States, including Italy, where one facility in Rome registers asylum applications.

As a rule, oral hearings are likewise not being conducted. To avoid health risks for officials, Germany has suspended asylum procedures where information must be provided in person. Most EU countries have suspended procedures for allocating responsibility for assessing asylum applications, for decision-making, and for deportations. This last development has led to the release of some people from pre-deportation detention.

Member States do, in general, grant access to housing and welfare benefits to asylum seekers. Portugal even changed its approach to enable asylum seekers to access social welfare through a regularisation of their stay during the corona crisis.

Less consistent is the accommodation of asylum seekers during the COVID-19 pandemic. Some States, including Switzerland, are opening new reception facilities to enable physical distancing also for protection seekers, incorporating them into the strategy to suppress COVID-19. They are accepted as being particularly vulnerable to catching the virus due to their accommodation situation and are included in the national measures to counter the spread of the virus.

By contrast, Greece and Germany have restricted asylum seekers from leaving and severely limited the services available. In these States, asylum seekers are mainly constructed as a threat to public health. The non-evacuation of the camps on the Greek islands is a dangerous gamble with the public health at large: If the virus were to spread in an accommodation centre, infection of the local population would be inevitable.

To support public health, Europe urgently needs to adapt its approach to people in need of protection. As UNHCR noted, if asylum seekers are turned away at the border, they find themselves in an uncontrolled and uncontrollable ‘in-orbit’ situation. This can lead to uncontrolled virus proliferation unstoppable by borders.

As the changes in the Swiss accommodation scheme acknowledge, it is simply too great a health risk to society as a whole in these times to allow people of any provenance to come together in large groups in a confined space, whether within or at the borders. I fear this understanding will reach the collective consciousness only once this danger has become real and many people near borders or overcrowded camps are suffering from COVID-19. A timely intervention that is human rights-based and public health-sensitive would be a much better solution for everyone – and not ‘only’ for the refugees.

Dr. Constantin Hruschka is a Senior Research Fellow at the Max Planck Institute of Social Law and Social Policy in Munich. Additionally, he is a lecturer at Bielefeld University as well as at the Universities of Applied Sciences in Bern and St. Gallen. He is also conducting a case study on Germany in the framework of the nccr – on the move project Free Movement and National Welfare Systems.