What does protection from persecution look like during a pandemic?

Tijuana, Mexico. Joebeth Terriquez/EFE.

As the pandemic progresses, our collective obligation to provide international protection across borders takes on new dimensions.

Some states are closing borders to asylum seekers, using the pandemic as justification. Greece is allegedly expelling asylum seekers to Turkey without giving them a chance to make their asylum claims. The United States is not only closing its southern border to selectively defined “non-essential” travelers, blocking asylum seekers, but is also seeking to change the law to state that people with Coronavirus will not be included in the group of people eligible to apply for asylum.

These policy decisions are neither predetermined nor inevitable: we have a choice. Norway and Sweden for example, understanding that “that the ‘right to asylum’ should not be affected by the coronavirus,” have explicitly exempted asylum seekers from COVID-19-related border closures. Portugal has even granted full residency and health care rights to asylum seekers and migrants until June 30, while the country battles the pandemic. Epidemiologists have stated that there is no scientific evidence that banning asylum seekers is a logical public health strategy to stop the spread of the virus; in fact, ten years of US federal data indicates that there is no statistical relationship between admission of asylum seekers and flu, including during the H1N1 pandemic and initial months of the COVID-19 pandemic. Public health measures to provide health screening at borders are important and necessary, but they should not be the pretext for a discriminatory refusal of all asylum claims.

Consider the following possible scenarios, where COVID-19 and persecution intersect:

  • An asylum-seeking mother and her daughter who has Down syndrome, as well as congenital heart issues, which put her at greater risk for contracting COVID-19, are unable to stay in the local hotel in Mexico because her daughter cries loudly in the night. When the hotel kicks them out for “disturbing” other hotel occupants, they are kidnapped by a cartel and only released by a borrowed ransom. The mother and daughter cannot return to their home country where gangs are threatening them there too. There are only 10 ventilators in the city where they are living in Mexico.
  • A transgender asylum seeker, who has been refused medical treatment in her home country in the past because “our hospital only has male and female wards”, is HIV positive and immunocompromised. She fled after being beaten and threatened due to her gender identity. Safe houses and shelters in her country have been shut down in order to prevent the spread of Coronavirus, where she might otherwise have found safety.
  • A 71-year-old man, in good health but with managed diabetes, fled his country due to a breakout of armed conflict. His country states that during the pandemic, those over the age of 65 who come to the hospital with Coronavirus will not be given access to ventilators, even if they cannot breathe on their own. In the nursing home where he once lived in his country, residents are found abandoned, dead in their beds.
  • A nurse on vacation tweeted about her country’s poor response to the COVID-19 crisis, including the reality that it is not only almost impossible to get critical items such as disinfectant and respirator masks, but that many hospitals do not have regular access to electricity and water. Now she has heard that colleagues back home who similarly complained have been arrested or threatened with demotion and retaliatory lawsuits, and she is afraid to return.

The material changes to global conditions that we are seeing as a result of COVID-19 involve dire and imminent threat to life, with millions of people infected and currently more than 255,000 known dead.

When states intentionally ignore public health experts’ advice when making policy decisions about the COVID-19 response, conceal information from the public regarding the magnitude of the public health threat, and deny testing or treatment in a discriminatory manner, it may amount to an arbitrary deprivation of life. This in turn triggers the prohibition on refoulement, the law that prohibits states from returning individuals to countries where their lives are clearly threatened.

Obviously, at the moment there is no cure or proven treatment for COVID-19 in any country. But we do know that ventilators are essential for ensuring individual survival and that personal protective equipment and the ability to self-isolate are essential for saving lives. We know that many individuals, such as those who are over 65, or those who have heart conditions, diabetes, respiratory conditions, and/or are immunocompromised, are at much higher risk. We know that in many countries, people belonging to minority groups (whether religious, ethnic, or related to sexual identity or other status) may be denied access to care due to discrimination. In some countries, health systems are beleaguered by years of conflict-related attacks on health facilities. In some states, doctors and journalists face repression if they speak out about the truth of the spread and impact of the virus.

Individuals who find themselves under threat due to state actions and their own personal characteristics may be members of a particular social group which is entitled to international protection under the UN Refugee Convention, such as “elderly people denied ventilators”, “transgender women denied medical care due to their gender identity”, “medical workers who publicly report health system failings” or “homeless children with underlying conditions”.

The UN Refugee Agency issued a clear statement in March 2020 that states have an obligation, even in times of emergency, to individually screen people arriving at borders to see if they will face severe harm if removed. In fact, the increased risks caused by COVID-19 may heighten the obligation of states to admit asylum seekers who face death from the virus if they return home, due to their individual circumstances such as pre-existing conditions and the living conditions and healthcare access in their home countries.

legal group in the US has recently argued that the severity of harm caused by COVID-19 triggers review during all stages of the removal process for individuals who have demonstrated the past persecution needed for asylum but insufficient future danger. Under existing precedent, disease prevalence and response capacity in their country of origin should be a serious consideration when determining if a migrant needs protection, especially if they will be denied treatment or appropriate medical care.

Under US law, such individuals might be entitled to humanitarian asylum based on a “reasonable possibility of other serious harm” unrelated to any past mistreatment; many other countries also mandate similar forms of complementary protection.

States created international refugee law as an accepted standard for granting asylum to those fleeing severe harm, including in moments of great instability and turmoil. It makes no sense to abandon this longstanding legal framework at the very moment when protection is most needed.