COVID-19 and International Law Series: States’ Obligations to Refugees and Migrants in Detention

[Editor’s Note: This article is part of a Just Security series, COVID and International Law. All articles in the series can be found here.]

The emergence and transnational spread of COVID-19 poses a distinctive threat to marginalized communities across societies. For refugees, asylum-seekers and other migrants seeking protection in foreign countries and awaiting regularization of their legal status under the care or custody of national governments, the virus compounds a litany of already-daunting vulnerabilities. Migrants arriving to foreign territory in large-scale influxes and residing in camps or settlements often face conditions that can elevate the risk of infectious transmission. Resources for sanitation, including clean water, soap, and personal protective equipment are sometimes in short supply or not available at all. Limited space and overcrowding may make social distancing completely infeasible. The disease’s lethality may also be heightened in these environments if medical services are unavailable or inadequate, or if residents suffer from other chronic ailments that leave them more susceptible to COVID-19.

These challenges are particularly salient in Greece, for instance, where government authorities have quarantined camps where asylum-seekers and migrants are living in substandard conditions after camp residents were found to have contracted COVID-19. The dire conditions in these sites pre-date the outbreak of pandemic:  prior to the Moria camp’s destruction due to fire in September, for example, the site housed at least 10,000 asylum-seekers in a space originally intended to shelter only 3,000 individuals. Aid organizations seeking to assist residents of camps across the island of Lesvos contend that the Greek government is using the virus as a pretext for detaining migrants while failing to adequately provide for their health in detention.

The danger of COVID-19 is similarly heightened for refugees, asylum-seekers, and other migrants whom governments formally confine in detention centers or reception centers at ports of entry around the world. Governments may endanger the lives of detainees through acts of commission or omission. In the United States, for example, the Department of Homeland Security has reportedly failed to adequately care for asylum-seekers (and foreign nationals more broadly) held in its custody in detention centers. Conditions within these facilities have been deplorable. The American Civil Liberties Union (ACLU) has filed over fifty cases regarding Immigration and Custom Enforcement’s (ICE) handling of COVID-19 in detention facilities.  The suits allege that ICE willfully transferred people between facilities knowing that they were positive for COVID-19, increasing the risk of exposure among detainee populations. There are reports of inadequate medical monitoring, delayed action in providing medical attention when needed, overcrowding, and inadequate sanitation in these facilities, all of which have contributed to a heightened risk of COVID-19 contraction and transmission. Since the emergence of COVID-19, there have been more than 6,700 positive cases of COVID-19 across 99 ICE facilities (representing approximately 13% of individuals tested).

This article is the second describing the aspects of international refugee law that the COVID-19 pandemic and resultant government responses implicate. It focuses on how COVID-19 might and should affect governments’ treatment of asylum-seekers, refugees, and other migrants under their care in large-scale camps or in custody in smaller facilities, domestically or at points of entry. This article first summarizes States’ health-related obligations as they pertain to migrants in State-operated or State-authorized facilities, including camps, detention facilities, or reception centers at points of entry. It then turns to States’ obligations to immigration detainees during a pandemic. Finally, it considers States’ obligations to immigration detainees in the particular context of COVID-19 and suggests approaches States might undertake to fulfill these obligations.

Health-Focused International Law Obligations to Immigration Detainees

Governments have a range of international law duties pertaining to their treatment of refugees, asylum-seekers, and other immigrants under their care or custody, whether domestically or at points of entry. These obligations are clearly established in the 1951 Refugee Convention and its 1967 Protocol, the core sources of international refugee law. Further, principles of international human rights law enshrined in human rights treaties including the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the Convention Against Torture and Cruel, Inhuman or Degrading Treatment (CAT) also identify State obligations relevant to State-run or State-authorized facilities for States that are party to those treaties. Many obligations established by these treaties also reflect customary international law binding on all States, though we do not explore that in depth here. Regional human rights treaties and refugee-specific regional instruments (including the Organization of African Unity 1969 Convention and the 1984 Cartagena Declaration) also establish obligations.

The 1951 Convention identifies a broad range of rights that refugees and asylum-seekers in the custody or under the care of governments should be afforded. The Convention specifies core obligations of States Parties to these individuals, regardless of their status or length of stay in the country (including respecting freedom of religious practice and ensuring access to courts and legal assistance, for example). In addition, the various human rights treaties identified above establish obligations on States Parties to ensure certain minimum conditions of confinement and treatment for those held in State-administered facilities or State-authorized camps and settlements. The right to health, as protected in international human rights law and as explained in a prior article of this series, is particularly relevant. ICESCR Article 12 requires States Parties to “recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.” Thus, the Article 12(2)(c) duty to prevent, treat, and control epidemics would also extend to migrants. As the Committee on Economic, Social and Cultural Rights explains in General Comment No. 14, States Parties are required to “respect the right to health” by “refraining from denying or limiting equal access for all persons, including prisoners or detainees, minorities, asylum-seekers and illegal immigrants, to preventive, curative and palliative health services.”

States Parties to the ICESCR have core obligations to all individuals under the effective control of the State, regardless of their legal status. As the Committee underscores, “all people under the jurisdiction of the State should enjoy Covenant rights,” including “asylum seekers and refugees, as well as other migrants, even when their situation in the country concerned is irregular.” In pursuit of this right, States are expected to take steps to ensure “[t]he prevention, treatment and control of epidemic . . . and other diseases” and to secure access to “medical service and medical attention in the event of sickness.” In consequence, if public authorities are unable to provide adequate medical services or supplies to immigrants in State custody or in authorized camps and settlements, they arguably must at least permit independent organizations who can provide such services to do so. These duties as applied to points of entry and reception centers are not solely rooted in obligations toward those individuals in State-operated or -authorized facilities. They are also related to the obligations of States Parties to the WHO Constitution to, as the International Health Regulations require, “ensure… that facilities used by travelers at points of entry are maintained in a sanitary condition and are kept free of sources of infection or contamination.”

Additionally, in General Comment No. 36, the Human Rights Committee specifies that States Parties to the ICCPR are obligated under Article 6 to “take special measures of protection towards persons in situation of vulnerability,” a category that includes “displaced persons, asylum seekers, refugees, and stateless persons.” Of note, “a heightened duty to protect the right to life also applies to individuals quartered in liberty-restricting State-run facilities, such as… refugee camps and camps for internally displaced persons.” Protecting the right to life is not only incumbent upon the State for facilities and camps within the territory, but is an obligation that extends to points of entry, international zones, or foreign territory where the State has detained asylum-seekers or migrants. As the Human Rights Committee puts it: “States parties must respect and protect the right to life of all individuals arrested or detained by them, even if held outside their territory.”

Regional human rights instruments and bodies echo these obligations. In particular, the European Court of Human Rights (ECtHR) has decided cases related to the health of detainees on numerous occasions. In Yoh-Ekale Mwangje v. Belgium, the Court determined Belgium had violated a Cameroonian national’s right against inhuman and degrading treatment by detaining her in a closed transit center without providing adequate or timely medical care appropriate for her status as an HIV-positive woman. By failing to act with due diligence in protecting the woman’s health while she awaited deportation in State custody, Belgian authorities subjected her to unnecessary suffering. In Ghavtadze v. Georgia and related cases, the ECtHR found Georgian authorities had subjected a prisoner suffering from hepatitis C and tuberculosis (both contracted in prison) to inhuman and degrading treatment by failing to provide him adequate or effective medical services. Though the case concerned detainees serving penal sentences rather than migrants detained temporarily, the principles the ECtHR conveyed in its ruling demonstrate the Court’s concern with conditions in State-operated detention facilities. The Inter-American Court of Human Rights has also called on States to protect the health of migrants. In a 2014 Advisory Opinion focused on treatment of children, the Court determined States “must guarantee” medical care while children are in State custody awaiting refugee status determination, including specialized care services tailored to each child’s specific needs.

States’ Obligations to Immigration Detainees During a Pandemic

Governments’ health-related obligations to migrants under their care or within their custody certainly continue during public health emergencies such as pandemics. In fact, States must carefully weigh the risk of infectious disease contraction or transmission within their facilities when deciding whether to detain or confine a migrant in the first instance. States’ abilities to restrict movement of migrants (whether in camps, detention facilities, or ports of entry) are not absolute. Article 31 of the 1951 Refugee Convention prohibits States Parties from imposing restrictions on the movements of refugees and asylum-seekers “other than those which are necessary,” and only permits such restrictions while the confined individual’s status in the country is being regularized (or until they obtain admission in another country). This obligation applies even if the State views the refugees or asylum-seekers as unlawfully present in the State’s territory. While States may initially confine refugees and asylum-seekers for a set period in order to undertake health checks “as a preventative measure in the event of specific communicable diseases or epidemics,” as the UN High Commissioner on Refugees (UNHCR) indicates, refugees and asylum-seekers who ultimately apply for protection are entitled to freedom of movement within the foreign State’s territory per Article 26 of the 1951 Refugee Convention.

A State that has detained migrants or confined them to a camp is restricted in its ability to assess the medical status of detained individuals. The WHO International Health Regulations specify that when there is evidence of a public health risk, States Parties to the WHO Constitution may undertake, on a case-by-case basis, “the least intrusive and invasive medical examination that would achieve the public health objective of preventing the international spread of disease.” Authorities must acquire travelers’ express informed consent (or that of their parents or guardians) before subjecting individuals to medical examinations or vaccinations, which must be administered in accordance with established safety guidelines to minimize risk of disease transmission. States Parties isolating or quarantining travelers (including refugees and asylum-seekers) are to arrange for adequate food and water, appropriate accommodation and clothing, medical treatment, and means of communication in a comprehensible language; moreover, such quarantine or isolation measures must be limited in time.

States’ Obligations to Immigration Detainees in the Context of COVID-19

States that detain those seeking to enter the country have a responsibility, to the extent possible, to prevent, treat, and control the COVID-19 pandemic within and between their detention facilities. This obligation entails working to ensure the availability of health care services, medical and hygiene supplies (including masks), and adequate sanitation and ventilation in such sites to prevent virus transmission. Medical services and supplies necessary to treat those individuals who have contracted the virus in these facilities and camps are also critical. These duties are among those that hundreds of international experts on refugee and migrant protection have endorsed.

Human rights bodies have expressly affirmed these obligations. UNHCR compiled an extensive “toolkit” that outlines a number of treaty obligations that States parties to various human rights obligations have toward detainees during the COVID-19 pandemic. And in May 2020, the Inter-American Court of Human Rights issued a resolution in the case of Vélez Loor vs. Panamá requiring the Panamanian government to take appropriate measures to protect the rights to health, personal integrity, and life of transiting migrants detained at migration reception stations. Warning of the potential for a COVID-19 outbreak within the facilities, the Court specifically noted the government’s duties, among others, to conduct health checks for all individuals entering the facilities; adopt appropriate quarantine policies when necessary; provide migrants with free and non-discriminatory access to health care services that have the same standard of care as those available in the community; ensure ventilation, cleanliness, disinfection, and waste collection; provide free masks, gloves, and other supplies; and promote personal hygiene to prevent disease transmission.

Beyond providing adequate and accessible medical services and supplies, governments should consider means of reducing overcrowding and limiting transfers of detainees that might increase the risk of transmission of COVID-19 within the detainee population. State authorities might allow individuals in their custody or under their care to transition to reside in host communities where they might socially distance more effectively, within the bounds of official processes for determining status. Some States have already taken this approach: the Norwegian government has released some migrants from detention in light of the pandemic on a case-by-case basis, allowing selected individuals to seek accommodation with their contacts in the country so long as they regularly report to public authorities. Further, as Foreign Policy indicates, courts in Portugal, France, Japan, Indonesia, and elsewhere have occasionally ordered the release of immigrants from facilities in response to COVID-19; Portugal went further, offering temporary legal status to migrants and asylum-seekers to encourage them to report and seek treatment for suspected COVID-19 cases.

The Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment underscores this recommendation in advising States Parties to the Optional Protocol to the CAT to “review the use of immigration detention centres and closed refugee camps with a view to reducing their populations to the lowest possible level.” UNHCR, together with the International Organization for Migration, WHO, and the Office of the High Commissioner for Human Rights, urges that migrants held in overcrowded and unsanitary conditions “be released without delay” in light of “the lethal consequences a COVID-19 outbreak would have.” Most States, however, have proven reluctant to respond to these calls to release detained migrants, likely fearing that, once released, the migrants may not return. The consequences of this reluctance may be deadly.

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COVID-19 represents a distinct and substantial challenge for States that detain refugees, asylum-seekers, and other immigrants. These States have significant international law obligations to protect the especially vulnerable populations under their care in immigration facilities, detention centers, and refugee camps. Meeting these obligations is not only required by international law, but it is also essential to stemming the pandemic.

Image: MIAMI, FLORIDA – AUGUST 15: Activists stand at the entry gate to the Krome Service Processing Center as they honor the life of Kuan Hui Lee on August 15, 2020 in Miami, Florida. Lee was 51 year old man from Taiwan who recently died while in the custody of the Immigration and Customs and Enforcement at the Krome Service Processing Center. The activists held a vigil near the entrance to the facility as they bring attention to the preventable deaths at the hands of ICE including those being killed by COVID-19 while in custody. (Photo by Joe Raedle/Getty Images)

 

About the Author(s)

Oona Hathaway

Gerard C. and Bernice Latrobe Smith Professor of International Law at Yale Law School and Director of the Center for Global Legal Challenges at Yale Law School. Member of the editorial board of Just Security. Member of the editorial board of Just Security. You can follow her on Twitter (@oonahathaway).

Preston Lim

J.D. student at Yale Law School, former Schwarzman Scholar at Tsinghua University - Follow him on Twitter (@PrestonJordanL1).

Mark Stevens

Mark Stevens is a 2021 J.D. candidate at Yale Law School and Hansell Fellow at the YLS Center for Global Legal Challenges. Follow him on Twitter at (@MarknotSteve)