Refugee / Asylum Seeker / Citizenship /Immigration Law
This section includes literature on:- national, regional and international refugee, asylum and citizenship law
- movement across national, regional borders
Abstract: During the XXI century, South America has been the epicentre of vibrant discussions on human mobility. A new vocabulary emerged with legal principles such as the non-criminalization of irregular migration or the right to migrate as a fundamental right taking central stage. The combination of the arrival of COVID-19 together with the important emigration of Venezuelans in the region, as well as economic and political crisis are putting into question some of these advances and present a complex scenario of migration governance in the region for the years to come.
‘Affirmative Duties in Immigration Detention’ (2021) 134(7) Harvard Law Review 2486–2508 Abstract: The article examines the duty of the U.S. government to protect noncitizens in immigration detention. Topics discussed include the tendency of the case law in the area to tolerate ambiguity and inconsistencies, changes in the legal landscape caused by the lawsuits filed by immigrant detainees over confinement in overcrowded and inadequate conditions during the COVID-19 pandemic, and the use of the power to incarcerate in the duty to protect argument in the pandemic litigation.
Ahmad, Nadia B, ‘The Cliodynamics of Mass Incarceration, Climate Change, and “Chains on Our Feet”’ (2022) 49(2) Fordham Urban Law Journal 371–400 Extract from Introduction: This Essay continues the discussion in my earlier article, Climate Cages: Connecting Migration, the Carceral State, Extinction Rebellion, and the Coronavirus Through Cicero and 21 Savage, where I access the unmapped linkage of mass incarceration and encagement as responses to climate change and the coronavirus. This Essay considers how the internal and external factors involving carcerality and climate change will lead to a worsening crisis of migration, criminalization, and dire climate change impacts. I offer observations on these systems so that others can establish the mechanisms to expand the scope of climate and carceral state responsiveness. Climate modeling and carceral rates can only provide snapshots of the looming crises,but examining the past and reassessing current predictions will show how swiftly and furiously policymakers, innovators, and scientists must work to broaden the scope of impact to frontline communities and delicate ecosystems.
Ahmad, Nadia, ‘Climate Cages: Connecting Migration, the Carceral State, Extinction Rebellion, and the Coronavirus through Cicero and 21 Savage’ (2020) 66 Loyola Law Review Review 293 [pre-print available on SSRN] Abstract: This article addresses the unmapped linkage of mass incarceration and encagement as responses to climate change and the coronavirus. I coin the phrase, climate cages, to highlight how public policy responses to atmospheric dynamics limit mobility, worsen prison conditions, and increase carcerality. In this article, I use the song lyrics of 21 Savage’s ‘A Lot’ and his subsequent arrest as an example to highlight the intersectionality of race, climate change, migration, protest movements, and COVID-19. Further, I reexamine Cicero’s adage of ‘summum ius summa iniuria’ to show problematic configurations of the carceral state and the edifice of the law generally. A warming planet has decreased available land, freshwater, and clean air to live and earn a livelihood. The world’s megacities from New Delhi to Houston are choking from air pollution of their vehicles, power plants, factories, and industrial facilities. Not even rural areas are immune from the impacts of chemicals from agricultural activities. These natural resource stresses have served as threat multipliers for conflict, compounding centuries of economic and racial inequality. Economic and environmental chokepoints are leading to migration, movement, and higher rates of mass incarceration. Currently, the level of income inequality is at its peak, and record high and low temperatures are becoming the norm. The governmental response from the halls of Congress to the desk of the Oval Office has not been to find solutions to the climate crisis, but to restrict mobility and incarcerate black and brown people to maximize available land and space for those who are either more affluent and/or of the more preferred race, religion, and national origin. While historically human hierarchies and caste systems have existed for thousands of years, the impacts of intensified global warming have correlated with the increased prison populations and worsening prison conditions in the age of the Anthropocene.
Ageeva, A and N Strelkovskii, ‘Regulation of the Migration Policy of the European Union Countries in the Face of the COVID-19 Pandemic’ [2021] (5) Obshchestvo i ekonomika 117–128 Abstract: The article presents main data on the employment and contribution of migrants to the economies of the EU member states, as well as on working conditions in those sectors where migrants are predominantly employed. Solutions are proposed for reforming migration policy and modernizing welfare and public health systems with the view of minimizing the pandemic crisis consequences. The author suggests using the agent-based method of simulation to predict the socio-economic effect of the pandemic and to select the most effective strategies for countering crisis processes.
Aji, Koesmoyo Ponco, Anindito Rizki Wiraputra and Sri Kuncoro Bawono, ‘The Impact of the Covid-19 Pandemic on the Legal Concept of Visas in Indonesia’ (2022) 1(4) Law and Humanities Quarterly Reviews 40–53 Abstract: The Covid-19 pandemic that has been going on globally since March 2020 has led to the universal closure of national borders. The exponential spread of the Covid-19 virus has resulted in a new phenomenon in the immigration field: stranded foreigners. To avoid the continued access of these stranded foreigners, Indonesian immigration issued a series of visa regulations. This study aims to analyse the impact of the Covid-19 pandemic on the concept of visa law applicable in Indonesia by existing formal law. The concepts and theories used in this research are the rules of law concept with an analytical knife in the form of a hierarchy of laws and regulations theory and the theory of sovereignty. The results show that there is a shift in the concept of visa law in Indonesia as a result of the Covid-19 pandemic. In the theoretical study, it is known that this shift in the idea of visa law has ruled out the visa doctrine that has been regulated in Indonesian immigration law. However, the principle of relative sovereignty that respects the principles of international law is the justification for changing the concept of visa law in Indonesia during the Covid-19 pandemic.
Amon, Joseph J, ‘COVID-19 and Detention: Respecting Human Rights’ (2020) 22(1) Health and Human Rights Journal 367-370 Extract from Introduction: This summary presents a picture of extraordinary numbers already affected and at risk and unprecedented response. However, one area where there has been too limited of a response to date is action to prevent transmission in detention centers, including jails, prisons, and immigration detention facilities
Aranda, Elizabeth et al, ‘Normalized Expendability: Navigating Immigrant Legal Status During A Global Pandemic’ [2024] American Behavioral Scientist (advance article, published online 6 February 2024) Abstract: Using longitudinal qualitative data, we examine how undocumented immigrants in Florida navigated the first year of the COVID pandemic. Building on the concepts of compounded vulnerability and legal violence, we demonstrate how heightened exposure to COVID shaped immigrants’ well-being by virtue of being overrepresented among frontline workers, underserved by the healthcare industry, and excluded from government pandemic aid. We demonstrate how immigrants’ anxieties overlay onto existing vulnerabilities facing those without legal status; although undocumented immigrants were often at even greater risk for negative outcomes related to the pandemic, access to mitigation efforts was denied to them because of policies and laws that allow for—and normalize—the unequal treatment of noncitizens. Findings demonstrate that undocumented immigrants and their families experienced legal violence through the mechanisms of restricted government aid, for which they were ineligible, in addition to bureaucratic delays in immigration paperwork renewals that resulted in expiring work permits for some with Deferred Action for Childhood Arrivals. These experiences further compounded their economic and social marginalization, rendering immigrants an expendable social group. We identify coping strategies that allowed immigrants to persevere in the face of uncertainty and distress and discuss how policies can diminish some of these vulnerabilities and improve their well-being.
Arbel, Efrat and Molly Joeck, ‘Immigration Detention in the Age of COVID-19’ in Catherine Dauvergne (ed), Research Handbook on the Law and Politics of Migration (Edward Elgar, forthcoming, 2021) Jurisdiction: Canada
Abstract: In this chapter, we analyze Canada’s response to the outbreak of COVID-19 as it relates to immigration detention. We focus on decisions released by the Immigration Division (ID) of the Immigration and Refugee Board, the quasi-judicial administrative tribunal tasked with detention-related decision-making in Canada. Writing in the four months after pandemic measures were first introduced in Canada, our analysis is by necessity provisional, and focuses on seventeen ID decisions released between mid-March and mid-May 2020, at the height of the pandemic in Canada. Our analysis of this dataset reveals an identifiable shift in ID practice: prior to the outbreak of COVID-19, ID members generally refused to hear arguments related to conditions of detention, and rarely ordered release on that basis. With the onset of the pandemic, however, ID members have not only entertained arguments identifying COVID-19 as a condition of detention, but more significantly, have explicitly relied on this condition as a basis for release. We argue that this shift in ID practice is significant. Legally, it allows detainees to argue the conditions of their own confinement before the administrative body tasked with overseeing their detention. This renders those conditions actionable, and therefore legally meaningful. Materially, this shift empowers detainees, allowing them to more effectively advocate for their own release, while lessening the violence inherent to the detention review process. Conceptually, the decisions suggest a shift in the paradigm within which legal decisions governing detention are made. Before COVID-19, the release assessment was firmly entrenched in the familiar ‘us/them’ paradigm that characterizes the disciplinarity of immigration detention. The post COVID-19 decisions suggest that this paradigm may have shifted temporarily: the line distinguishing us from them has blurred in the shadow of a common threat, and the location of risk has shifted in relation to that line. Rather unexpectedly, the previous conception of the inherent riskiness of migrants has been displaced by the disruptive, risky, pandemic – a change that was surely buttressed by the closure of the Canadian border, in particular to asylum seekers. Reflecting on the broader implications of this shift in ID conduct, we suggest that the onset of COVID-19 has revealed the ways in which the containment and confinement of noncitizens can be reconfigured in Canadian law. Mindful of the potentially limited nature of this shift, we identify the progressive possibilities hidden in that reconfiguration, and urge for it to continue even as the worse of the pandemic begins to pass.
Ashraf, Tasawar and Umut Korkut, ‘The Right to Seek Asylum at the Face of Confluence between Informal Externalisation Agreements and COVID-19’ (SSRN Scholarly Paper ID 3783460, 18 August 2020) Abstract: The outbreak of COVID-19 Pandemic and swift closure of international borders has placed the right to seek asylum in a precarious position. The paper questions the impact of COVID-19 on the right to seek asylum at the face of the informal externalisation agreements (IEA) concluded by the European Union (EU) Border States to shift border management to neighbouring transit states. The paper argues that IEA have made the right to seek asylum obsolete well before the Pandemic outbreak. The paper further argues that the Pandemic’s impact on the right to seek asylum is temporal and defusable through enhanced procedural measures. However, in the long run, the Pandemic will boost informal externalisation to transit states. Thereby, along with IEA, the Pandemic will become highly detrimental to the right to seek asylum because it provides an alibi to the Border States to expel asylum seekers arriving at their borders.
Auethavornpipat, Ruji, ‘Hate Speech and Incitement in Malaysia’ in Preventing Hate Speech, Incitement, and Discrimination: Lessons on Promoting Tolerance and Respect for Diversity in the Asia Pacific (Global Action Against Mass Atrocity Crimes, 2021) 119–158 Abstract: This chapter examines how COVID-19 not only instigates hate speech and incitement but also increases the vulnerabilities of migrants and refugees in Southeast Asia. It starts with a regional overview of public attitudes towards foreigners and refugees before narrowing down to illustrate how and why the Rohingya populations have become the target of hate speech and incitement in Malaysia. The detailed examination of the Rohingya in Malaysia is motivated by the fact that hateful remarks were expressed by online social media users as if there was a consensus among the local population. It is thus highly significant to understand such a phenomenon. The findings reveal that the global pandemic heightened public anxieties and subsequently led to the proliferation of hate speech and incitement against ‘unwanted’ foreigners perceived as intruders in the country. The situation was also significantly worsened by the wide spread of misinformation about victims of hate speech, which in turn resulted in incitement of violence.
Bah, Tijan L et al, ‘How Has COVID-19 Affected the Intention to Migrate via the Backway to Europe and to a Neighboring African Country? Survey Evidence and a Salience Experiment in The Gambia’ (NOVAFRICA Working Paper Series No 2107, 2021) Abstract: The COVID-19 pandemic has resulted in border closures in many countries and a sharp reduction in overall international mobility. However, this disruption of legal pathways to migration has raised concerns that potential migrants may turn to irregular migration routes as a substitute. We examine how the pandemic has changed intentions to migrate from The Gambia, the country with the highest pre-pandemic per-capita irregular migration rates in Africa. We use a large-scale panel survey conducted in 2019 and 2020 to compare changes in intentions to migrate to Europe and to neighboring Senegal. We find the pandemic has reduced the intention to migrate to both destinations, with approximately one-third of young males expressing less intention to migrate. The largest reductions in migration intentions are for individuals who were unsure of their intent pre-pandemic, and for poorer individuals who are no longer able to afford the costs of migrating at a time when these costs have increased and their remittance income has fallen. We also introduce the methodology of priming experiments to the study of migration intentions, by randomly varying the salience of the COVID-19 pandemic before eliciting intentions to migrate. We find no impact of this added salience, which appears to be because knowledge of the virus, while imperfect, was already enough to inform migration decisions. Nevertheless, despite these decreases in intentions, the overall desire to migrate the backway to Europe remains high, highlighting the need for legal migration pathways to support migrants and divert them from the risks of backway migration.
Bellissimo, Mario D, ‘COVID-19: Practicing Immigration Law in the Face of Closing Borders’ (2020) 16(3) ImmQuest 1-5Jurisdiction: Canada Bennett, Belinda, Ian Freckelton and Gabrielle Wolf, ‘Restrictions on Interstate and International Movement’ in COVID-19, Law, and Regulation: Rights, Freedoms, and Obligations in a Pandemic (Oxford University Press, 2023) Berg, Laurie and Bassina Farbenblum, ‘As If We Weren’t Humans: The Abandonment of Temporary Migrants in Australia during COVID-19’ (SSRN Scholarly Paper ID 3709527, 11 October 2020)
Abstract: In March 2020, nationwide lockdowns to contain the spread of COVID-19 in Australia caused widespread job loss among temporary visa holders. This had a devastating financial impact on these workers, including international students, backpackers, graduates, sponsored workers and refugees, leaving many unable to meet their basic living needs such as food and rent. However, unlike some other similar Western countries, the Australian government excluded temporary migrants from wage subsidies and almost all other forms of financial support.
This report assesses the humanitarian impact of government policies related to COVID-19 on the hundreds of thousands of temporary migrants who remained in Australia. It presents findings from a survey conducted in July 2020 of over 6,100 temporary visa holders on their experiences of financial insecurity, precarious housing and homelessness, humanitarian need, racism and social exclusion, as well as their attitudes on their time in Australia. In doing so, it seeks to establish a platform for temporary migrants to voice their experiences and establish current large-scale first-hand empirical data to inform government decision-making.
Bhasin, Asees, ‘The Telehealth “Revolution” & How It Fails to Transform Care for Undocumented Immigrants’ (2022) 24(1) North Carolina Journal of Law & Technology 1–48 Abstract: The outbreak of Covid-19 led to the rapid adoption and expansion of telehealth services. Upon understanding its potential for underserved populations, people began referring to this method of health care delivery as ‘revolutionary.’ This reputation stuck, even though it quickly became obvious that telehealth utilization was more common among White, educated, and relatively richer individuals. Meanwhile, advocates of telehealth equity found that the benefits of telehealth did not adequately trickle down to lower-income and rural communities, as well as communities of color. Undocumented immigrants as a group were often ignored during considerations of these disparities. This Article is among the first, even within inter-disciplinary scholarship, to center undocumented immigrants and their (in)ability to access telehealth services. It begins with a discussion of federal and state immigration policies that govern health care access for immigrants and goes on to analyze their health care needs and enhanced vulnerability during the pandemic. It then discusses four themes along which undocumented status makes telehealth services harder to access, namely insurance and affordability, fears of privacy breaches and surveillance, access to technology and digital skills, and limited English language proficiency. This Article concludes by making certain recommendations for changes to state and federal immigration policies that may help undocumented immigrants realize the novel and innovative ways to access health care which were promised by the telehealth revolution.
‘Biden Administration Reverses Trump Administration Policies on Immigration and Asylum’ (2021) 115(2) American Journal of International Law 340–347 Abstract: After taking office, the Biden administration quickly moved to reverse or revoke a number of the Trump administration’s immigration-related policies. On inauguration day, President Joseph Biden announced several significant changes, including termination of the national emergency at the southern border, halting border wall construction, and removal of discriminatory travel restrictions imposed primarily on Muslim-majority countries. In the following weeks, Biden continued to reverse Trump administration policies, including by overhauling the asylum-seeker regime, creating task forces to undo the harms caused by Trump-era border practices, and reimposing some COVID-related travel restrictions, while revoking others. The Biden administration’s proposed immigration legislation could introduce even broader reforms going forward.
‘The Biden Administration Takes Actions to Restructure Migration to the U.S.-Mexico Border’ (2023) 117(3) American Journal of International Law 528–534 Abstract: Anticipating the expiration of the COVID-19 public health emergency on May 11, 2023, and with it the end of the special immigration regime instituted by the Center for Disease Control and Prevention’s (CDC) public health orders, the Biden administration has taken measures to restructure migration to the U.S.-Mexico border. Incentives for migrants in the form of new and expanded pathways for entry have been created, and disincentives in the form of exclusions from these and other pathways have been constructed. These actions are designed to reduce the number of migrants and asylum seekers who travel to the border. In conjunction with Canada, Colombia, Guatemala, Mexico, and Spain, among others, the Biden administration is seeking to establish a regional, comprehensive, and collaborative approach to migration, as envisioned in the Los Angeles Declaration on Migration and Protection in June 2022. Two of the key components of the administration’s strategy are parole processes for migrants from four countries and a rebuttable presumption of asylum ineligibility for non-citizens who enter the United States from Mexico without entry documents. Both were immediately challenged in court.
Bier, David, ‘Deregulating Legal Immigration: A Blueprint for Agency Action’ (Cato Institute Study, 2020) Abstract: President Trump restricted legal immigration through a series of unprecedented regulations and presidential orders during his one term. Once President‐elect Joe Biden takes office, he will have the opportunity to reverse these actions and deregulate what is—and was even before Trump—an overly burdensome and expensive legal immigration system. This compendium of 30 concise proposals by 15 authors—including several of America’s leading immigration law experts—can help the Biden administration operate the immigration system as openly and efficiently as the laws allow. These proposals focus entirely on agency measures to improve the process for legal immigrants. Keeping with Biden’s campaign theme of ‘building back better,’ they look past simply repealing Trump’s misguided executive actions to instead create new, better rules for a fully recovered America. For this reason, these reforms do not address temporary actions needed only to address COVID-19 nor do they specifically focus on repealing regulations or orders promulgated during the Trump administration. Congress would still need to pass better laws to eliminate many of the statutory restrictions that these agency actions only help ameliorate, but this compendium should serve as a blueprint for how a new administration can deregulate legal immigration to the fullest extent possible under the laws that exist today.
Birdsall, Andrea and Rebecca Sanders, ‘Opportunistic Oppression: U.S. Migration Restrictions and Public Health Policy during the COVID-19 Pandemic’ (2023) 27(5) The International Journal of Human Rights 809–829 Abstract: As the COVID-19 pandemic swept the world in Spring 2020, the Trump administration invoked war against the coronavirus to severely restrict admission of migrants and asylum seekers into the United States. At the same time, it declined to enact national measures to control viral community spread and sharply criticised public health policies. We analyse this notable inconsistency as a case of opportunistic oppression whereby policymakers take advantage of a crisis to pursue pre-existing, and often unrelated, policy preferences. We identify how the securitisation of health and the crisis-enabled politics of enmity allowed the Trump administration to cynically erode migrant human rights protections while simultaneously failing to contain the pandemic. Opportunistic oppression represents an attractive strategy for states facing real and imagined emergencies to pursue political agendas that are not necessarily part of a coherent and effective response to the crisis at hand.
Bohdan, Anna, Bartosz Maziarz and Agnieszka Dornfeld-Kmak, ‘Impact of the COVID-19 Pandemic on the Legal Migrant in Poland, Portugal, Latvia, and Belgium’ (2021) 24(1) European Research Studies Journal 522–531 Abstract:
Purpose: The article aims to analyze the impact of the COVID-19 pandemic about legal migrants in selected European Union countries amidst the tighter restrictions and travel constraints introduced worldwide.
Design/Methodology/Approach: The article uses data and source analysis and a modeling method to demonstrate the extrapolation of migration trends.
Findings: The employed methodology enabled the authors to establish that in Poland, Portugal, Latvia, and Belgium, measures were taken to respond to the COVID-19 pandemic in the context of legal migrants residing on their territories during the introduction of the movement restrictions.
Practical Implications: According to the authors, the exposure of the measures against the negative impact of the COVID-19 pandemic on migrants may deepen cooperation between the country authorities concerning helping legal migrants, leading to strengthened security in this area.
Originality/value: In the face of the COVID-19 pandemic and the dynamically changing health situation in the world, as well as the related lack of up-to-date sources and studies, partial scientific studies demonstrating a selected fragment of reality are critical. In the short and long term, they will enable researchers to learn about the type of actions taken by state authorities concerning migrants legally residing in their territory.
Bolton, Syd and Catriona Jarvis, ‘Left to Grieve Alone: Migration, Dignity and Dying in the Time of Covid-19: Some Early Reflections’ (2020) 34(3) Journal of Immigration Asylum and Nationality Law 198-215Purpose: The article aims to analyze the impact of the COVID-19 pandemic about legal migrants in selected European Union countries amidst the tighter restrictions and travel constraints introduced worldwide.
Design/Methodology/Approach: The article uses data and source analysis and a modeling method to demonstrate the extrapolation of migration trends.
Findings: The employed methodology enabled the authors to establish that in Poland, Portugal, Latvia, and Belgium, measures were taken to respond to the COVID-19 pandemic in the context of legal migrants residing on their territories during the introduction of the movement restrictions.
Practical Implications: According to the authors, the exposure of the measures against the negative impact of the COVID-19 pandemic on migrants may deepen cooperation between the country authorities concerning helping legal migrants, leading to strengthened security in this area.
Originality/value: In the face of the COVID-19 pandemic and the dynamically changing health situation in the world, as well as the related lack of up-to-date sources and studies, partial scientific studies demonstrating a selected fragment of reality are critical. In the short and long term, they will enable researchers to learn about the type of actions taken by state authorities concerning migrants legally residing in their territory.
Abstract: Asks how human rights, humanitarian law and international rights instruments can be upheld during the coronavirus pandemic. Explains how the Mytilini Declaration for the Dignified Treatment of all Missing and Deceased Persons and their Families as a Consequence of Migrant Journeys, developed by the Last Rights Project in 2018, offers human rights and best practice standards which can protect vulnerable migrants during the time of Covid-19.
Bonizzoni, Paola and Senyo Dotsey, ‘Migration and Legal Precarity in the Time of Pandemic: Qualitative Research on the Italian Case’ (2021) (54) Dve Domovini / Two Homelands 117-129 Abstract: The Covid-19 pandemic has unequally affected the lives of Italians. The article is based on data from 47 semi-structured interviews with different groups of migrants. These show how temporary solutions built into the Italian migration management system affect both the uncertain legal status of migrants and their access to social protection. Although migrants with a regulated legal status or citizenship do not have much to do with the Italian bureaucracy, they still do not have easy access to social welfare, which depends on their employment and financial status. Precarious migrants were most affected by the secondary effects of the pandemic. The authors’ findings are important both for migration management policy and for future research.
Boris, Eileen, ‘Vulnerability and Resilience in the Covid-19 Crisis: Race, Gender, and Belonging’ in Anna Triandafyllidou (ed), Migration and Pandemics: Spaces of Solidarity and Spaces of Exception (Springer, 2022) 65–84 [OPEN ACCESS E-BOOK] Abstract: During the early months of the 2020 pandemic, migrants who travelled to the United States to pick crops, scrub floors, stock warehouses, and tend to elders became ‘heroes’ for performing necessary labour – unless they were surplus bodies crammed into prison-like detention waystations before being deported for the crime of arriving without proper papers. The pandemic intensified states of precarity. Especially among those labelled as ‘essential workers’, the lack of protective equipment and labour rights put them on the frontline of exposure. But domestic and home care workers, meatpackers, fieldhands, and others in the US stepped out of the shadows to demand inclusion in social assistance, occupational health and safety laws, and other state benefits. This chapter historicises the recent hardships and the organising of (im)migrant workers: it shows that the policies of Donald J. Trump were not an aberration, but part of a national pattern of racial differentiation with gendered inflections. Vulnerability, however, is only part of the story. Workers remained resilient in the face of the hidden enemy of Covid-19, as they sought safe and decent living and working conditions.
Box, Kaitlyn and Shoba Sivaprasad Wadhia, ‘COVID-19 and Immigration: Reflections from the Penn State Law Center for Immigrants’ Rights Clinic’ (2020) 2 Frontiers in Human Dynamics Article 592980 Abstract: Since the 2016 Presidential Election, the Center for Immigrants’ Rights Clinic (CIRC) at Penn State Law in University Park has been at the forefront of responding to rapidly changing immigration policies that include the ‘travel ban,’ efforts to end a policy called ‘DACA,’ policies to curb asylum at the southern border, and efforts to more easily exclude international students and scholars. Some of the tools CIRC has used to respond to these changes include easy to understand ‘fact sheets,’ in person and virtual ‘town halls,’ and legal support for individuals fighting deportation or seeking refuge. This essay will use CIRC as a case study to demonstrate how one set of student advocates used the same tools developed over 3 years of responding to ever-evolving immigration policies to respond to changes surrounding COVID-19. Specifically, we describe CIRC’s responses to changes at international borders, stalemates in immigration detention, expansions to asylum restrictions, and the status of DACA at the Supreme Court. This article explains how the same responses that have long been used to address the current administration’s immigration changes can also be used to respond to immigration policy changes resulting from the COVID-19 pandemic. This essay discusses how CIRC responded to each significant immigration policy change arising out of COVID-19, as well as explains how CIRC moved from an in-person to remote platform in spring 2020 alongside many law clinics across the country, shares reflections from those students, and offers lessons that can be drawn for legal education moving forward.
Bradley, Liz and Hillary B Farber, ‘Virtually Incredible: Rethinking Deference to Demeanor When Assessing Credibility in Asylum Cases Conducted by Video Teleconference’ (2022) 36(2) Georgetown Immigration Law Journal 515–570 Abstract: The COVID-19 pandemic forced courthouses around the country to shutter their doors to in-person hearings and embrace video teleconferencing (VTC), launching a technology proliferation within the U.S. legal system. Immigration courts have long been authorized to use VTC, but the pandemic prompted the Executive Office for Immigration Review (EOIR) to expand video capabilities and encourage the use of video ‘to the maximum extent practicable.’ In this technology pivot, we must consider how VTC affects cases for international humanitarian protections, where an immigration judge’s ability to accurately gauge an applicant’s demeanor can have life-or-death consequences. This Article takes a deep dive into the law and social science regarding demeanor-based credibility assessments and examines the potential impact of VTC on the adjudication of asylum, withholding of removal, and Convention Against Torture (CAT) claims. With empirical and doctrinal grounding, it recommends a prohibition on adverse credibility findings based on demeanor for hearings conducted via video. The assumptions that underpin the extraordinary deference afforded to immigration judges’ demeanor assessments are incongruous with the realities of virtual hearings. Demeanor is an unreliable metric for credibility, even for in-person hearings. Video distorts how we interact and further strains the tenuous relationship between demeanor and truthfulness. The current legal framework is ill-suited to safeguard against erroneous demeanor findings. A prohibition on demeanor-based adverse credibility findings for hearings conducted via VTC would embrace the benefits of our technological advancements while instilling greater confidence in the fair adjudication of humanitarian protection claims.
Brennan, Deirdre and Thomas McGee, ‘Risks of “Covidisation” in Statelessness Work?’ (SSRN Scholarly Paper No 4046970, 1 June 2020) Abstract: What is the potential impact of world attention turning to the COVID-19 pandemic and its socio-political consequences, on statelessness research? The term ‘Covidisation’ has been coined by Dr. Madhukar Pai for the reorientation of research in this manner. By examining how COVID-19 may impact on funding, the representation of stateless people and awareness-raising, this blog offers a reflective analysis of this very sudden change in our working landscape, and coincides with the recent launch of 'The Critical Statelessness Studies Project’ by the Peter McMullin Centre on Statelessness. The project interrogates dominant narratives and approaches in the contemporary study of statelessness.
De Bruycker, Philippe, ‘The Covid-19 Crisis Resurrects the Public Heath Exception in EU Migration Law’ (2020) 2 Frontiers in Political Science Article 618664 Abstract: One of the consequences of the covid-19 crisis is the reintroduction of controls at the external and internal borders of the EU Member States. This happened in disorder because the competent authority are each Member State despite decisions appear to be taken at the European level. Public health is not always foreseen as a legal basis for those measures, but they can be justified by the exceptional crisis comparable to a threat for public order. The measures taken are not only border controls but more precisely border closures more or less selective. Member States were supposed to cooperate between each other and with the European Commission when taking those measures. All persons (nationals, EU citizens and third-country nationals) were targeted) knowing that most of them have the right to return to their Member State of nationality or of residence. Borders measures have been quickly replaced by health measures so that the Schengen are is not at risk of collapsing.
Buley, Tim et al, ‘Challenging Immigration Detention in the COVID-19 Pandemic’, Landmark Chambers (Blog post, 15 April 2020)Jurisdiction: UK
Extract: Perhaps the first significant issue arising out of the COVID-19 pandemic to come before the Administrative Court has been the question of the continued legality of immigration detention in the face of the risks and practical difficulties arising from the crisis. The pandemic raises two stark issues affecting the legality of immigration detention; on the one hand, that detainees may face an increased risk of infection by reason of the “congregate” setting of detention centres, and on the other that removals in the short term will be impossible and that the prospects of removal are at best uncertain even in the medium term.
The first such claim was brought by the NGO Detention Action, seeking wide-ranging generic interim relief in relation to all current detainees. The application for interim relief (discussed in more detail below) did not succeed, and the Home Office has sought to rely upon certain of the court’s remarks to resist claims by individuals.
Calzada, Igor, ‘Pandemic Citizenship: Will COVID-19 Reinforce Nation-States’ Borders and Liquify Citizens?’ (2021) Academia Letters, Article 910 Abstract: Yet, what is the significance of nation-states and citizenship in this rapidly shifting context? All sort of pandemic adjustments are having different consequences both for directly citizens (depending to which country they call home and their living conditions) and indirectly for nation-states. Therefore, the main hypothesis of this Academia Letters is that seemingly borders might be making a comeback affecting ‘pandemic citizens’ directly but not all equally.
Calzada, Igor, ‘Pandemic Citizenship Amidst Stateless Algorithmic Nations: Digital Rights and Technological Sovereignty at Stake’ (Coppieters Foundation/Post-Covid Europe Series No 4, 1 October 2020) Abstract: COVID-19 has hit citizens dramatically during 2020, not only creating a general risk-driven environment encompassing a wide array of economic vulnerabilities but also exposing them to pervasive digital risks, such as biosurveillance, misinformation, and e-democracy algorithmic threats. Over the course of the pandemic, a debate has emerged about the appropriate techno-political response when governments use disease surveillance technologies to tackle the spread of COVID-19, pointing out the dichotomy between state-Leviathan cybercontrol and civil liberties. In order to shed light on this debate, this article introduces the term ‘pandemic citizenship’ to better understand extreme circumstances in which citizens have been surviving. Particularly, this article attempts to provide an overview by focusing on stateless nations and the need to conduct further research and gather policy evidence to articulate counter political strategies as ‘algorithmic nations’. The COVID-19 pandemic has inevitably raised the need to resiliently and techno-politically respond to threats that hyper-connected and highly virialised societies produce. Amidst the increasingly AI-driven governance systems in several nation-states in Europe, this article spotted the need to devolve data power to citizens through data ecosystems in European stateless algorithmic nations. This article argues that in the absence of a coordinated and inter-dependent strategy to claim digital rights and technological sovereignty by a set of stateless algorithmic nations in Europe, on the one hand, Big Tech data-opolies, and on the other hand, the GDPR led by the European Commission, might bound and expand respectively, stateless nations’ capacity to mitigate the negative side effects of the algorithmic disruption. Individually, we already observed subtle reactions in several nations, including Catalonia and Scotland, that are unlikely to be consistent unless a joint strategy takes place at the European level by stakeholders operating in these nations’ techno-political spheres.
Canefe, Nergis, ‘Ethical Limits of Pandemic Governance: Populations on the Move and the Law’ (2022) 3(2) Amicus Curiae, Series 2 170-187 Abstract: This article explores the context-bound qualities of the legally sanctified practices of ‘quarantine’ and border closures as it examines the normalized invisibility of populations on the move who have not been ‘protected’ through the use of such standard Covid-19 measures. Inside national borders, isolation and quarantine orders are traditionally issued by states in accordance with the state’s broad powers to protect public health. Throughout the Covid-19 pandemic, these orders have been either not applied to or on certain occasions intervened with or suspended when a quarantine was deemed unreasonable or inapplicable with reference to migrants, refugees and displaced people. The article proposes a redefinition of death as ‘death-in-living’ and ‘grievable lives’ as ‘disposable lives’ in order to understand the conundrum concerning the selective application of Covid-19 measures to irregular migrants, refugees, undocumented and non-status peoples and stateless communities. Legal responses to the pandemic continue to have a far greater impact upon populations on the move, displaced communities and refugees in radically unequal ways. The article reveals the ethical limitations of global pandemic governance in terms of how legal and policy-based practices systemically fail and desert certain populations and advances a notion of justice that starts from a deeper understanding of existing injustices.
Caraballo, Krystlelynn, ‘Immigration, Law, and (In)Justice: Coronavirus and Its Impact on Immigration’ (2020) International Criminal Justice Review (online advance article, published 26 August 2020)Jurisdiction: USA
Abstract: This introduction to the International Criminal Justice Review provides … an overview of the key immigration policy changes and legal challenges that have occurred in the midst of the coronavirus (COVID-19) pandemic between March and July 2020. This health crisis exacerbated the struggles faced by the immigrant community and exemplify the systemic barriers that impede integration.
Carlotti, Sebastian, ‘Migration Policy and Health Insecurity. Italy’s Response to COVID-19 and the Impact of the Security Decree’ [2020] (2) Rivista Trimestrale di Scienza dell’Amministrazione_ _Abstract: The recent reform of the Italian immigration policy produced a major impact on the health protection available to migrants against the COVID-19 virus. In 2018, the Security Decree determined a deep transformation of the reception system and of the services provided to migrants. As a consequence of these developments, migrants and asylum seekers are now among the most vulnerable subjects to the Coronavirus and receive only limited support from the State. Due to their status, undocumented migrants are generally forced to live in unhealthy and overcrowded spaces. Without the required legal documents, these migrants experience a severe limitation in the healthcare services they can access. Over the last years, as a result of restrictive migration policies, the number of undocumented migrants has significantly increased and has become a potential breeding ground for COVID-19. This article analyses the repercussion of the Security Decree in relation to the outbreak of the Coronavirus. Successively, this work provides an outline of the general situation faced by migrants in Italy and the institutional causes which might facilitate the spread of the Coronavirus in migrant communities. Finally, the regularization programme, as introduced by the Decreto Rilancio, will be the object of an early critical comment and of a discussion on its efficiency against the COVID-19 virus.
Castellanos-Jankiewicz, León,’US Border Closure Breaches International Refugee Law’ in Barrie Sander and Jason Rudall (eds), Opinio Juris Symposium on COVID-19 and International Law (March-April 2020) Extract from Introduction: As nearly half the world goes under lockdown to contain the spread of COVID-19, migrants have been especially helpless in the face of governmental measures restricting the movement of persons. Recent reports have documented the plight of seasonal workers stranded in India, as well as the precariousness of migrant camps in Greece, Italy and Bangladesh. The border between Mexico and the United States constitutes another flashpoint where conditions are rapidly deteriorating… However, the pandemic is also being invoked by the Trump administration to roll out unprecedented measures aimed at deporting migrants and asylum seekers.
Chen, Ming Hsu, ‘Pursuing Citizenship During COVID-19’ (2022) 93(2) University of Colorado Law Review 489–539 Abstract: In this Epilogue, I begin with the key themes in my book, Pursuing Citizenship in the Enforcement Era. Then, I survey policy developments and political conditions since the publication of the book, focusing especially on the prospects for immigration reform presented by a new presidential administration and COVID-19. In light of this shifting landscape, I present a theoretical justification for expanding citizenship to essential workers on the basis of jus meritum (the right of merit) and a recognition of the civic character of civilian service. In comparison to the Citizenship Act of 2021 and stand-alone proposals to legalize essential workers, my Citizenship for Essential Service proposal would expand the spectrum of immigrants who are eligible to legalize and would incorporate a self-updating mechanism lodged in a service-based agency, rather than letting an enforcement agency decide who qualifies for a green card. My proposal serves as an illustration of where the changed conditions might lead to a transformation of national immigrant-integration policy. The Epilogue concludes with thoughts on how bold reforms can and should be to meaningfully advance service as a basis for citizenship in the United States.
Chen, YY Brandon, ‘Fortress World: Refugee Protection during (and after) the COVID-19 Pandemic’ in Jean-Louis Denis, Catherine Régis and Daniel Weinstock (eds), Pandemic Societies (McGill-Queen’s University Press, 2021, forthcoming) Abstract: The COVID-19 pandemic has laid bare the fragility of the international refugee protection system. It turns out that on account of public health concerns, many high-income countries, Canada included, are quick to abandon their legal duties with respect to the right of asylum and non-refoulement, as well as their commitment to responsibility sharing in the context of refugee resettlement. This has led to an immobility crisis among asylum seekers and refugees, exacting a heavy toll on this already-marginalized group.This paper explores such impact of COVID-19 related travel restrictions on international refugee protection. It begins by providing a bird’s-eye view of the global situation before zeroing on the Canadian context. It shows that as the global demand for asylum persists, travel restrictions either trap asylum seekers and refugees in precarious circumstances or force them to attempt more dangerous routes to arrive at intended destinations. Leaning on international law as well as Thomas Pogge’s theory of global justice, this paper argues that affluent countries have a duty to ameliorate these harms perpetrated against one of the world’s most vulnerable populations.
Chen, YY Brandon, ‘Migrant Health in a Time of Pandemic: Fallacies of Us-Versus-Them’ in Flood, Colleen et al, Vulnerable: The Law, Policy and Ethics of COVID-19 (University of Ottawa Press, 2020) 407Jurisdiction: Canada
Abstract: International migrants—including, among others, immigrants, refugees, asylum seekers, foreign workers, and international students— are at greater risk of being affected by COVID-19. However, following the onset of the pandemic, many of them continue to be denied publicly funded health care and income supports in Canada. For migrants who are granted entitlement to these government programs, significant access barriers exist. These exclusionary policies underscore a dynamic of us-versus-them, in which migrants are portrayed as a threat to public health and undeserving of the Canadian society’s help. This process of “othering” fails to adequately appreciate migrants’ belonging in and contributions to Canada. It runs counter to the principles of equality and reciprocity that are central to our legal order, and it also risks compromising our collective pursuit of public health. An effective response to the current pandemic requires solidarity among all members of society instead of insistent line drawing between citizens and migrants who are similarly situated.
Chetail, Vincent, ‘Crisis Without Borders: What Does International Law Say About Border Closure in the Context of Covid-19?’ (2020) 2 Frontiers in Political Science Article 606307 Abstract: This paper is assessing the legality of border closures decided by a vast number of countries with the view of limiting the spread of Covid-19. Although this issue has raised diverging interpretations in relation to International Health Regulations and regional free movement agreements, international human rights law provides a clear-cut answer: the rule of law stops neither at the border nor in times of emergency. Against this normative framework, border control can and must be carried out with the twofold purpose of protecting public health and individual rights, whereas border closure is unable to do so because it is by essence a collective and automatic denial of admission without any other form of process. This paper argues that blanket entry bans on the ground of public health are illegal under international human rights law. They cannot be reconciled with the most basic rights of migrants and refugees, including the principle of non-refoulement and access to asylum procedures, the prohibition of collective expulsion, the best interests of the child and the principle of nondiscrimination. The paper concludes on the ways to better integrate at the borders public health and human rights imperatives in due respect with the rule of law. In both law and practice, public health and migrant’s rights are not mutually exclusive. They can reinforce each other within a comprehensive human rights based approach to health and migration policies.
Cox, Darren, ‘Immigration’ (2020) 65(7) Journal of the Law Society of Scotland 32-33 Abstract: Analyses R. (on the application of W (A Child)) v Secretary of State for the Home Department (Admin), a challenge brought by the child of a single mother who was unable to work due to COVID-19, on whether the Home Office’s “no recourse to public funds” policy, imposed on non-EEA migrants who obtain temporary residence in the UK, was in breach of ECHR art.3 where an individual is destitute or is facing destitution.
Coyne, Christopher J and Yuliya Yatsyshina, ‘Immigration Reform Is Key in the Recovery from the COVID-19 Crisis’ (Mercatus Centre, COVID-19 Response Policy Brief Series, 2020) Jurisdiction: USA
Abstract: Recent immigration policies regarding F-1 student visas and H-1B work visas, aligned with the protectionist executive order known as ‘Buy American and Hire American,’ introduced by the Trump administration in 2017, have been reducing the application rates of foreigners wishing to enter universities and the workforce in the United States. This reduces America’s access to a significant number of talented and creative people and the associated benefits.If current visa policy stands, it is likely that COVID-19 will further limit foreign student admissions to US universities in the coming year and perhaps beyond. This will have long-lasting effects on innovation and economic growth. Therefore, policymakers should treat the COVID-19 pandemic as a unique opportunity to relax or reverse current restrictive policies regarding student visas and H-1B visas. Effective reforms will attract bright young people who will enrich American society in many ways, not least of which being their contribution to innovation and the entrepreneurial spirit that makes the United States an economic powerhouse.
Crebelli, Marta, ‘Covid-19 and Its Impact in the United States and European Union: A Tool to Circumvent Refugee Protection?’ (2020) 27(1) ILSA Journal of International & Comparative Law 27–54 Abstract: The first part of this article will discuss basic concepts, such as the definition of ‘refugee,’ who is entitled to that status, and an analysis on the principle of non-refoulement. The second part will discuss the impact of the COVID-19 pandemic on asylum seekers in both Europe and the United States (U.S.). The third section of this article will discuss the most recent orders, as of this publishing, and directives issued in those two countries as a response to the pandemic emergency and the impact on migrants. A legal comparative analysis will follow. This article will conclude by discussing whether those measures constitute a violation of human rights and whether governments are using this health emergency as a tool to circumvent international refugee obligations.
Criddle, Evan J and Evan Fox-Decent, ‘The Authority of International Refugee Law’ (2020) 62(4) William and Mary Law Review 1067–1136 Abstract: As COVID-19 has spread around the world, many states have suspended their compliance with a core requirement of international refugee law: the duty to refrain from returning refugees to territories where they face a serious risk of persecution (the duty of non-refoulement). These measures have prompted some observers to question whether non-refoulement will survive the pandemic as a non-derogable legal duty. This Article explains why the international community should embrace non-refoulement as a peremptory norm of general international law (jus cogens) that applies even during public emergencies, such as the coronavirus pandemic. Viewed from a global justice perspective, the authority that international law entrusts to states—including the sovereign power to regulate migration across national borders—can be legitimate only if states refrain from refoulement. For international legal order to claim to possess legitimate authority over exiled outsiders, it must treat non-refoulement as a jus cogens norm. A failure to regard non-refoulement as a peremptory norm would thus strip the international legal system of its claim to legality vis-à-vis asylum seekers, supplanting the rule of international law in this context with mere coercive force. To test this account of the authority of international refugee law, the Article surveys closed-border policies that states have adopted in response to COVID-19 and explains why the associated restrictions on non-refoulement are unjustifiable and incompatible with the rule of law. Even during a genuine national emergency, such as the COVID-19 pandemic, receiving states cannot return refugees to persecution without subverting their own claims to legal authority.
Čučković, Bojana, ‘EU Asylum System in and After the Covid-19 Pandemic: Disclosing the Weaknesses of the Current Rules and Assessing the Prospects of the New Pact on Migration and Asylum’ (2021) 5(EU 2021 – The Future of the EU in and After the Pandemic) EU and Comparative Law Issues and Challenges Series (ECLIC) 3–29 Abstract: The paper analyses the influence that the Covid-19 pandemic has had on the functioning of the European asylum system. The analysis is divided into three parts and addresses problematic issues associated with different stages of the pandemic. In the first part of the paper, the author outlines the asylum practices of EU Member States in the initial stage of the Covid-19 pandemic during which the pandemic was perceived as a state of emergency. By exploring the legal possibilities to derogate both from the EU asylum rules and international human rights standards, the author offers conclusions as regards limits of derogations and the legality of Member States’ practices, especially their failure to differentiate between rules that are susceptive of being derogated in emergency situations and those that are not. The second part of the paper analyses the current phase of the pandemic in which it is perceived as a ‘new normal’ and focuses on making the EU asylum system immune to Covid-19 influence to the greatest extent possible and in line with relevant EU and human rights rules. The author insists on the vulnerability as an inherent feature of persons in need of international protection and researches upon the relationship between the two competing interests involved – protection of asylum seekers and ensuring public health as a legitimate reason for restricting certain asylum seekers’ rights. The final part of the paper analyses the prospects of the future EU asylum system, as announced by the New Pact on Migration and Asylum in September 2020, to adapt to the exigencies of both the current Covid-19 crisis and pandemics that are yet to come. With an exclusive focus on referral to Covid-19 and provisions relevant for the current and future pandemics, the author criticizes several solutions included in the instruments that make up the Pact. It is concluded that the Pact failed to offer solutions for problems experienced during the Covid-19 pandemic and that, under the pretext of public health, it prioritizes the interests of Member States over the interests of applicants for international protection.
Davies, Gareth, ‘Does Evidence-Based EU Law Survive the Covid-19 Pandemic? Considering the Status in EU Law of Lockdown Measures Which Affect Free Movement’ (2020) 2 Frontiers in Human Dynamics Article 584486 Abstract: When Member States restrict free movement on public health grounds they must show that their measures have a sound scientific basis. However, during the pandemic Member States have imposed a wide variety of restrictions, at the border, and internally. While Member State governments have invariably had local scientific advice, the variety of their measures suggests that their actions have also been driven, to some extent, by public opinion, contrary to what EU law generally allows. This situation could be seen as a defeat for EU law as traditionally conceived, and the triumph of local preferences over scientific standards. Perhaps we learn that in a crisis, local desires for symbolic security and closure trump both law and science. Alternatively, it can be argued that the Court of Justice’s emphasis on exclusively objective justifications for measures is unrealistic and over-strict. The pandemic responses show that (i) science is often neither clear nor determinative, and (ii) policy is invariably a mix of science and values, even in apparently technical fields. In either case, the absence of legal challenges to Member State actions leaves free movement in an uncertain state. Have we entered a new phase, where national fears are a more legitimate justification for restricting movement, or will the pandemic be treated as so exceptional as to be beyond law, and thus not a precedent?
Dehm, Sara, Claire Loughnan and Linda Steele, ‘COVID-19 and Sites of Confinement: Public Health, Disposable Lives and Legal Accountability in Immigration Detention and Aged Care’ (2021) 44(1) University of New South Wales Law Journal 60–103 Abstract: The global COVID-19 pandemic starkly revealed the underlying structural harms and produced vulnerabilities for people living in closed congregate settings like immigration detention centres (‘IDCs’) and residential aged care facilities (‘RACFs’). This article compares the Australian legal regimes that regulate IDCs and RACFs, conceptualising both as authorising and enabling sites of control, confinement and social isolation. We argue that specific COVID-19 measures have intensified a logic of social exclusion and disposability towards people in IDCs and RACFs. Through comparing recent COVID-19 litigation, the article explores the possibilities and limitations of engaging legal strategies to achieve social reform and legal accountability within both sites of confinement. Ultimately, we suggest that such COVID-19 litigation has the greatest possibility of advancing social justice when it is embedded in a broader politics of de-incarceration and abolition oriented towards political inclusion, public health and building more equitable and just communities.
Dehm, Sara and Anthea Vogl, ‘Immigration Amnesties in Australia: Lessons for Law Reform from Past Campaigns’ (2022) 44(3) Sydney Law Review 381–413 Abstract: In the wake of the COVID-19 pandemic, there have been growing calls to regularise the status of the over 64,000 undocumented people currently living in Australia without regular immigration status. Australia has previously had three legal immigration amnesties in 1974, 1976 and 1980. Yet, the history of these amnesties is little known. This article draws on newly-released and previously unexamined historical materials, including archival government documents and contemporaneous jurisprudence, to present an original account of Australia’s three past immigration amnesties as novel moments of executive power and decision-making in the realm of migration law. In doing so, it analyses their legislative context, their implementation and effectiveness in practice, and their legal legacies. Finally, the article addresses the lessons of these past immigration amnesties for current law reform and regularisation efforts, and for Australian migration law today.
Dennison, James, Alexander Kustov and Andrew Geddes, ‘Public Attitudes to Immigration in the Aftermath of COVID-19’ (SSRN Scholarly Paper ID 3884912, 9 July 2021) Abstract: How has the COVID-19 pandemic affected public opinion towards immigration? Long-term evidence in Europe and the United States suggests attitudes to immigration are relatively stable and, in some cases, becoming more favorable with high volatility instead in the perceived importance of the issue. However, theoretically a global pandemic could exacerbate people’s fears of outsiders or that migration may contribute to the disease. By contrast, attitudes could remain stable if their distal drivers prove to be robust enough to withstand the shock of COVID-19, which may instead highlight the disproportional importance of migrant workers. We draw from Eurobarometer data from 2014 to 2020 across 28 European countries, weekly national survey data during the outbreak from the US and individual panel data from the UK and Germany to find little systematic change in immigration preferences and no country-level correlation between the observed changes and the severity of the outbreak. Instead, the perceived importance of immigration has consistently and significantly decreased. These findings suggest that, if COVID-19 is to have an impact on attitudes to migration, it is likely to emerge via longer-term means, such as early-life socialization and value change, rather than reactions to the immediate shock of the pandemic.
Doebbler, Curtis, Geoffrey A Hoffman and Javier Maldonado, ‘The Habeas Petition, And Other Options for Immigrants, in the Federal Courts’ in Federal Immigration in Litigation (2020, forthcoming)Ch 7Jurisdiction: USA
Abstract: The petition for a writ of habeas corpus is an important tool in the arsenal of immigration attorneys who seek to fully represent their clients. Going to federal court in an attempt to obtain habeas relief may be the only remaining remedy after all other administrative options have been exhausted. Traditionally, habeas has been used to challenge prolonged detention post-final order of removal, prolonged detention pre-final order, and to challenge unlawful detention, but increasingly it is used to challenge such related issues as unlawful deportations in violation of the statute or regulatory provisions, and/or violations by CBP, USCIS or other agency actions during the expedited removal process under 8 U.S.C. § 1225(b). In response to the Covid-19 pandemic, the federal courts have changed operations to limit the spread of the disease. Also, there have been other significant changes to the operations of USCIS and EOIR, in recent days. The article addresses some of the issues to be considered by the habeas petitioner when going forward in federal court proceedings given the Covid-19 pandemic.
Doliwa-Klepacka, Anna, ‘The New Pact on Migration and Asylum as a Response to Current Migration Challenges: Selected Issues’ (2021) 1(26) Białostockie Studia Prawnicze 9–21 Abstract: The Covid -19 pandemic has significantly affected the movement of people within the European Union, both in terms of nationals of the Member States and others. On many occasions, as an instrument to combat or contain the spread of the virus, EU Member States have made use of the possibility of temporarily reintroducing border controls in the Schengen area, or even temporarily closing their national borders. Despite the Covid -19 pandemic, the migratory pressure on the countries of the European Union has not ceased, although the scale of this phenomenon has decreased in many areas. A separate problem is also the influx of illegal migrants to the territory of European Union Member States and the effective implementation of instruments to combat this practice. The regulations in force in the European Union in the area of migration and asylum were developed under different conditions, i.e. standard migration flows, and despite many modifications (e.g. in the context of the competences and tasks of Frontex) they have not proved effective in emergency situations. Consequently, many attempts have been made to amend these regulations. In 2020, they were replaced by a new comprehensive Pact on Migration and Asylum. The aim of this paper is to present and analyze selected legal problems related to the influx of irregular migrants to the European Union in the light of current migration trends and to show, against this background, the main demands for changes contained in the submitted legislative proposals.
Doliwa-Klepacka, Anna and Mieczysława Zdanowicz, ‘The European Union Current Asylum Policy: Selected Problems in the Shadow of COVID-19’ (2022) 35(3) International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique 1001–1017 Abstract: Recent years in Europe have generated situations requiring the European Union to take extra-coordinated action in the field of asylum policy. The sudden and growing influx of refugees to Europe in 2015 and 2016 has caused the collapse of the previous common European asylum system. The European Union has taken a number of measures to resolve this crisis situation. When the situation seemed to be under control, a new challenge emerged in early 2020. The first COVID-19 infectious disease case was reported in Europe, and on 13 March 2020 the WHO reported that Europe had become the epicentre of the coronavirus pandemic. The measures taken by individual countries and the European Union to limit the spread of the virus have had a significant impact on many spheres of state and individual functioning, including the situation of persons seeking international protection. This publication consists of three parts. The first part discusses actions taken by the European Union in the face of the migration and refugee crisis that emerged in 2015 and 2016. The second part presents one of the limitations introduced in connection with preventing the spread of COVID-19, which has a huge impact on persons wishing to seek international protection, i.e., changes in the regime of crossing borders and entering the territory of particular countries. The third one points out selected problems experienced by persons seeking protection who already stay in the territory of EU Member States.
Dye, Alaina, ‘The Right to Health in Immigration Detention during the COVID-19 Pandemic: An Examination of Federal and International Law’ (University of San Diego, Centre for Health Law and Bioethics, CHLB Research Scholarship No 74, 2020) Jurisdiction: USA
Abstract: This article examines the United States’ response to the severe impact of the coronavirus (COVID-19) in immigration detention centers and considers the United States’ obligations to the vulnerable population of immigrant detainees. This article argues that the COVID-19 pandemic further demonstrates the United States’ lack of guaranteed health care for immigrant detainees and deportees despite international recognition of the human rights to health and life. The United States violates international law when immigrant detainees’ human rights are disregarded by lack of appropriate access to health care during a global pandemic. This article recognizes that discrimination against immigrants under the Trump Administration and inconsistent treatment of detained populations further the vulnerability of immigrant detainees during the COVID-19 pandemic. Lastly, this article urges for reform in the United States immigration detention system, in regard to health care, to protect immigrant detainees and deportees during the harsh times of the COVID-19 pandemic.
Eijken, H van and JJ Rijpma, ‘Stopping a Virus from Moving Freely: Border Controls and Travel Restrictions in Times of Corona’ (2021) 17(3) Utrecht Law Review 34–50 Abstract: One year down the road, this article evaluates the travel restrictions imposed in response to the Covid-19 pandemic, first, in the light of the rules of the Schengen acquis (controls at the internal and external borders) and, second, under the provisions on the free movement of EU citizens. It will be argued that, as often is times of crisis, the existing legal framework has proven inadequate to respond to unforeseen circumstances. The result has been the primacy of national executive action. Despite the active role of the EU institutions in coordinating national responses and bringing them in line with EU law, ultimately, more binding coordination and regulation is required to ensure legal certainty and manage mobility, especially if the coronavirus is here to stay.
Elias, Stella Burch, ‘Law as a Tool of Terror’ (2021) 107(1) Iowa Law Review 1–62 Abstract: The immigration laws and policies of the United States from January 2017 through January 2021 serve as a cautionary example of what may happen when the rule of law and the equitable administration of justice are subverted by policymakers pursuing an extreme and coercive political agenda. For four years the Trump Administration used its lawmaking powers to isolate and terrorize immigrant communities. Simply put, the Trump Administration used immigration law as a tool of terror. The same administrative structures and legal provisions that were originally created in the aftermath of 9/11 to combat terrorism and protect human rights were weaponized and turned against refugees, migrants, and naturalized U.S. citizens. The Department of Homeland Security was transformed from an organization dedicated to combatting terrorism to an organization that instead inspired terror in immigrant communities, particularly among immigrants of color. Inflammatory rhetoric, denigrating specific groups of migrants on the basis of their race, religion, and/or national origin shaped anti-immigrant legal measures, with catastrophic results. At the border and in the interior of the United States, immigration laws were reinterpreted, regulations were amended, executive decrees were issued, and terrifying rumors about potential new initiatives were perpetuated on a daily basis. In the shadow of the COVID-19 pandemic and in the absence of stable and settled law, immigrant communities that were already living in extreme precarity experienced heightened and crushing uncertainty; in short, they were living in a state of constant terror. The Biden Administration is now embarking on the project of reversing these damaging initiatives, rebuilding trust in immigrant communities, and restoring the global reputation of the United States. But the harm that has been done—to individuals, to communities, and to the law itself—will likely persist for many years. The Trump Administration’s changes to U.S. immigration law and policy illustrate the inherent fragility and malleability of existing legal protections for vulnerable and marginalized immigrant communities. Policymakers, legislators, jurists, and legal scholars must therefore work together in the months and years ahead to ensure that the tragedy of last four years is never repeated, by meaningfully reforming our immigration laws and restructuring the agencies charged with their administration.
Farbenblum, Bassina and Laurie Berg, ‘“We Might Not Be Citizens but We Are Still People”: Australia’s Disregard for the Human Rights of International Students during COVID-19’ (2021) 26(3) Australian Journal of Human Rights (forthcoming) Abstract: Globally, in 2020, the health, social and economic consequences of lockdown laws that were enacted to contain the pandemic disproportionately disadvantaged temporary migrants. In his now infamous statement to visa holders in March 2020, the Australian Prime Minister contrasted ‘good times’ during which ‘it’s lovely to have visitors to Australia’ with ‘times like this’ in which non-residents were no longer welcome in Australia. Despite its relative global affluence, Australia excluded temporary visa holders from virtually all government wage subsidies and other financial support packages. Against the backdrop of Australia’s human rights obligations to migrants in its territory, this article empirically examines the impact of Australia’s response to the pandemic on international students in Australia, the largest group of long-term temporary visa holders who, with their limited work rights during their studies, have become a de facto low wage migrant workforce in this country. It presents new large-scale data from a July 2020 survey of over 5,000 international students and recent graduates reflecting widespread inability to pay for essential needs (including food and medical needs), lack of access to secure housing, lack of access to emergency support, and their experiences of racism, discrimination and social exclusion in Australia during the pandemic. The article concludes that there must be a national and global reckoning with the immediate and long-term impact of government policies on migrants during the pandemic and reinvigoration of the relevance of the human rights framework during ‘times like this’.
Farrell, Janet and Jed Pennington, ‘Immigration Detention: Update’ [2020] (September) Legal Action 17-22Jurisdiction: UK
Abstract: Discusses: inquiries, reports and policy updates on immigration detention; and case law on the impact of the coronavirus pandemic on detainees, public law errors in immigration rulings, whether a curfew amounted to false imprisonment, “grace periods” for making suitable arrangements for release, immigration bail, paid work for immigration detainees, and the transfer of damages claims from the Administrative Court.
Fisher, Roger S, ‘Travel Restrictions and Border Security Measures on the Canada–US Border During the COVID-19 Pandemic: Does Law Matter in a Crisis?’ in Stanley D Brunn and Donna Gilbreath (eds), COVID-19 and a World of Ad Hoc Geographies (Springer, 2022) 379–398 Abstract: Limited travel restrictions and border controls may be justified on a short-term emergency basis in the early stages of an outbreak of infectious disease even though such measures, if applied broadly, may not conform to the principles of ethical public health practices and almost certainly infringe on constitutionally protected rights and freedoms. Although the broad travel restrictions and border controls on the Canada-U.S. border raise a number of novel legal and public policy issues in terms of their necessity, efficacy, and constitutionality, a tradition of judicial deference in cases involving public health measures during a pandemic suggests that the courts may uphold the travel restrictions and border control measures as a necessary and reasonable limit on constitutionally protected rights and freedoms.
Fotheringham, Ellen and Caitlin Boswell, ‘“Unequal Impacts”: How UK Immigration Law and Policy Affected Migrants’ Experiences of the Covid-19 Pandemic’ (Public Interest Law Centre No May 2022, 2022) 28 Abstract: This report explores how UK immigration policy, law and government decision-making have exacerbated the impact of Covid-19 on migrants, particularly those with insecure immigration status. It focuses on access to justice, Home Office applications, state support, healthcare, and the asylum accommodation system, as well as immigration enforcement. Across all these areas, we highlight how the government’s anti-migrant approach has exposed migrants to increased risk from Covid-19, undermined public health efforts and introduced greater dysfunctionality into an already-broken immigration system.
Freier, Luisa Feline and Marcia Vera Espinoza, ‘COVID-19 and Immigrants’ Increased Exclusion: The Politics of Immigrant Integration in Chile and Peru’ (2021) 3 Frontiers in Human Dynamics Article 606871 Abstract: The COVID-19 pandemic has put into sharp relief the need for socio-economic integration of migrants, regardless of their migratory condition. In South America, more than five million Venezuelan citizens have been forced to migrate across the region in the past five years. Alongside other intra-regional migrants and refugees, many find themselves in precarious legal and socio-economic conditions, as the surge in numbers has led to xenophobic backlashes in some of the main receiving countries, including Chile and Peru. In this paper, we explore in how far the COVID-19 crisis has offered stakeholders an opportunity to politically reframe migration and facilitate immigrant integration or, rather, further propelled xenophobic sentiments and the socio-economic and legal exclusion of immigrants.
Friedery, Réka, ‘Pandemic, Free Movement Restrictions and EU Soft Law’ (International Law and Crisis – Impact and Challenges, Collection of Papers from the International Academic Online Conference, Comenius University in Bratislava, Faculty of Law, 22nd – 23rd of April 2021, 2021) Abstract: Covid-19 pandemic generated such a threat that Member States of the European Union restricted free movement between Member States on the ground of public health as part of their crises management. Nevertheless, free movement of persons between Member States and the limitation of this freedom have multiple layers. The paper aims to analyse the complementing nature of EU soft law and Member States’ free movement restrictions during the present pandemic, with a special focus on the EU Commission’s key role. The paper presents the multiple layers of free movement and its restrictions: public health, border policy and soft law form the frame of free movement restrictions. The main aim of the article is to define the scope of role soft law can play in the integrated approach during time of crises in the EU; the article helps to understand the EU’s use of soft law in crises management.
Gerson, Pedro, ‘Embracing Crimmigration to Curtail Immigration Detention’ (SSRN Scholarly Paper ID 3678812, 21 August 2020) Abstract: Immigration advocates have long objected to both the constitutionality and the conditions of immigration detention. However, legal challenges to the practice have been largely unsuccessful due to immigration law’s ‘exceptionality.’ Placing recent litigation carried out against immigration detention in the midst of the COVID-19 pandemic within the context of the judiciary’s approach to immigration, I argue that litigation is an extremely limited strategic avenue to curtail the use of immigration detention. I then argue that anti-immigration detention advocates should attempt to incorporate their agenda into criminal legal reform and decarceration efforts. This is important for both movements. Normatively, immigration detention raises comparable concerns: Namely, that jailing people is, on the one hand an extreme and cost-ineffective form of social control, and on the other, a tool to marginalize or ‘otherize’ entire communities. Furthermore, there is evidence that ongoing efforts to decarcerate states and localities may be foiled by immigration detention. To the extent, therefore, that decarceration is based on commitments to freedom or condemnation of the extensive use of carceral institutions, they are incomplete and even dangerous without including measures to address immigration detention. Immigration advocates, on the other hand, are more likely to succeed by placing the anti-immigration detention agenda within the scope of larger criminal legal reform than by pursuing either immigration detention reform or anti-detention litigation.
Ghezelbash, Daniel and Nikolas Feith Tan, ‘The End of the Right to Seek Asylum? COVID-19 and the Future of Refugee Protection’ (Robert Schuman Centre for Advanced Studies Research Paper No RSCAS 2020/55, 2020) Jurisdictions: Australia, Canada, Europe and USA
Abstract: The COVID-19 pandemic has had a devastating impact on the institution of asylum, exacerbating longer term trends limiting the ability of asylum seekers to cross-borders to seek protection. As a result, the early months of 2020 saw an effective extinguishment of the right to seek asylum. This working paper examines how this played out in Australia, Canada, Europe and the United States. National and regional responses varied, with Australia and the United States effectively ending asylum seeking. In Europe, some states upheld the right to seek asylum by exempting asylum seekers from general border closures, while other countries used the crisis to suspend the right to seek asylum. Finally, this working paper explores strategies for restoring and protecting the right to seek asylum beyond the pandemic.
Gilbert, Geoff, ‘Forced Displacement in a Time of a Global Pandemic’ in Ferstman, Carla and Andrew Fagan (eds), Covid-19, Law and Human Rights: Essex Dialogues (School of Law and Human Rights Centre, University of Essex, 2020) 167-175 (published 30 June 2020) Abstract: Covid-19 has limited ‘access’ by refugees and internally displaced persons (IDPs). First, access to protection at the frontiers of states and access to services in a state. Covid-19 was defined in terms of a disease from abroad, so refugees who were always seen as ‘other’ are seen as tainted in yet a new way. Nevertheless, states have a right to control their own borders and in a time of a global pandemic, entry can be restricted. This paper will argue, however, that those controls cannot be arbitrary and must respect international refugee law and international human rights law, as well as the international rule of law. Those seeking asylum from persecution cannot be sent back to the frontiers of a territory where their life or freedom would be threatened, even if they are Covid-19 infectious. Secondly, those admitted to the state must have the same access to life saving health care as anyone else within the territory of the state; to deny access to health care is not to make the problem go away, but to drive those fearing expulsion underground, placing even more people at risk during a pandemic. Beyond health care, refugees and IDPs must have access to all other rights during any lockdown and there can be no discrimination based on forced displacement status.
Gilman, Denise, ‘Barricading the Border: COVID-19 and the Exclusion of Asylum Seekers at the U.S. Southern Border’ (2020) 2 Frontiers in Human Dynamics Article 595814 Abstract: What years of deterrence efforts and restrictions on asylum did not achieve to block the U.S. southern border to asylum seekers, the Trump Administration has now accomplished using the COVID-19 pandemic as justification. New measures exclude asylum seekers from U.S. territory, thereby effectively obliterating the U.S. asylum program, which had promised refugee protection in the form of asylum to eligible migrants who reach the United States. In some cases, the policies adopted during the COVID-19 pandemic harden impediments to asylum already in place or implement restrictions that had been proposed but could only now be adopted. In others, the policies could never have been imagined before the pandemic. Overall, the force of these measures in dismantling the asylum system cannot be overemphasized. Once adopted, using an emergency rationale based on the pandemic, these policies are likely to become extremely difficult to reverse. This is particularly true where the restrictions exclude asylum seekers from the physical space of the United States. This article will thus explore two modes of physical exclusion taking place at the U.S. southern border during the COVID-19 pandemic: 1) indefinitely trapping in Mexico those asylum seekers who are subject to the so-called Migrant Protection Protocols; and 2) immediate expulsions of asylum seekers arriving at the southern border pursuant to purported public health guidance issued by the U.S. Centers for Disease Control and Prevention.
Gosewinkel, D, ‘Corona and the Legal Barriers of National Border Restrictions’ in Werner Gephart, (ed), In the Realm of Corona Normativities: A Momentary Snapshot of a Dynamic Discourse (Vittorio Klostermann, 2020) 95–102
Grieshofer, Tatiana, ‘Remote Interpreting in Immigration Tribunals’ (2023) 36(2) International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique 767–788 Abstract: As part of the response to the COVID-19 pandemic, many jurisdictions across the world introduced remote hearings as an alternative way of continuing to offer access to courts. This practice-based article discusses the report prepared by the author for a judicial review case which revolved around the claim that in immigration settings the quality of interpreting conducted in fully online hearings is inferior to interpreting in face-to-face hearings. In the absence of pre-existing research comparing the impact of the physical and fully online settings on interpreting, the author’s expert witness report explored linguistic principles governing conversation and turn-taking management, power relations and narrativisation and discursive practices in online and physical settings to illustrate communicative advantages and disadvantages of each environment. The article draws on the investigations conducted for the expert witness report and pursues the following aims: (1) reflect on the role of linguistic expertise required for the case; (2) detail the conclusions drawn and recommendations endorsed in the report; (3) discuss the importance of effective communication in immigration settings; (4) challenge common misconceptions in relation to how narratives are elicited, shared and perceived; (5) explore safeguarding strategies for enhancing discursive practices in fully remote hearings in order to improve non-native speakers’ access to justice.
Guild, Elspeth, ‘Covid-19 Using Border Controls to Fight a Pandemic? Reflections From the European Union’ (2020) 2 Frontiers in Human Dynamics Article 606299 Abstract: When Covid-19 was acknowledged to have arrived in Europe in February-March 2020, politicians and public health authorities scrabbled to find appropriate and effective responses to the challenges. The EU obligation contained in Article 9 Treaty on the Functioning of the European Union (TFEU) requiring the EU (including the Member States to achieve a common protection on human health, however, seems to have been missing from the responses. Instead, borders and their control became a site of substantial political debate across Europe as a possible venue for effective measures to limit the spread of the pandemic. While the most invasive Covid-19 measures have been within EU states, lockdown, closure of businesses etc, the cross-border aspects (limitations on cross border movement) have been important. In the European Union this had important consequences for EU law on border controls, in particular free movement of persons and the absence of controls among Schengen states. While EU law distinguishes between Schengen borders where no control takes place on persons, non-Schengen EU borders, where controls take place but are limited to identity checks and border controls with third countries and external borders with third countries (non EFTA or Swiss) the responses of many Member States and the EU institutions abandoned many aspects of these distinctions. Indeed, the difference between border controls between states (inside Schengen, the EU, EFTA or outside) and internal restrictions on movement became increasingly blurred. Two approaches – public health and public policy – were applied simultaneously and not always in ways which were mutually coherent, or in any way consistent with the Article 9 TFEU commitment. While the public health approach to movement of persons is based on ensuring identification of those in need of treatment or possibly carrying the disease, providing treatment as quickly as possible or quarantine, the public policy approach is based on refusing entry to persons who are a risk irrespective of what that may mean in terms of propagating the pandemic in neighbouring states or states of origin.
Gupta, Setu, ‘Non-Refoulement During a Pandemic: With a Contextual Analysis of Border Closures Imposed by the EU, the US and India’ (SSRN Scholarly Paper No 4398374, 21 November 2022) Abstract: Non-refoulement is the most basic protection afforded to a refugee. Despite agreeing in theory, States often ignore this principle in practice ending up refouling refugees from their territories or frontiers. In times of COVID-19 crisis, refugees require asylum and healthcare not only as a human right but also to prevent the further spread of the virus. Violation of this principle jeopardises both. This article analyses the scope and extent of the principle of non-refoulement in refugee law, customary international law and human rights law. It also evaluates the ‘national security’ exception and whether it could be invoked to justify refoulement on the basis of a public health emergency. It probes the validity of border closures imposed by the EU, US and India in light of their respective commitments to international treaty and customary law. The article concludes by summarizing the analysis and suggesting alternatives to violation of non-refoulement obligations.
Hadi, Suhair Hassan and Enas Makki Abdel Nassar, ‘Legal Guarantees for Refugees to Obtain Compensation During the Outbreak of The Covid-19 Virus A Comparative Study’ (2022) 14(4) AL- Mouhaqiq Al-Hilly Journal for Legal and Political Science 571–590 Abstract: The right to asylum is one of the most controversial issues at the international level, as a result of what has recently witnessed in most countries the presence of many refugees for various purposes, including political, economic and social, and in large numbers, and this refugee may be exposed while he is in the host countries to harm when a mistake occurs from others . These incidents may occur during the outbreak of the Covid epidemic, so in order for this refugee to obtain his right, legal guarantees must be available to him to ensure his obtainment. These legal guarantees are represented by the right to litigation, which is a right guaranteed to refugees under the Geneva Convention of 1951 on the one hand, and compulsory insurance, which constitutes the second guarantee for the refugee to obtain his right, even if these guarantees are what guarantee obtaining his right to compensation, whether in normal circumstances or during an outbreak. Corona Virus. Accordingly, researching the legal guarantees that pertain to the refugee under these circumstances is an urgent necessity because of its importance for every refugee who claims his right to compensation. For example, there must be other, more effective ways and means. The refugee has become a citizen and is among the nationals of the host country, so he obtains his rights, as is the case with other citizens.
Häkli, Jouni, ‘COVID-19 Certificates as a New Form of Mobility Control’ (2021) 12(2) European Journal of Risk Regulation 362–369 Abstract: The global volume of travel has grown steadily for decades and hence the border closures and travel restrictions in response to COVID-19 have created an unforeseen impact on the number of international border crossings. In air traffic alone the data show a striking 75.6% decrease in the number of scheduled international passengers. We might hasten to think that the strict travel restrictions due to the COVID-19 crisis have in principle treated mobile populations equally – for once we have all been banned from travelling. We could even consider the recent initiatives to introduce ‘vaccination certificates’ as a fair and democratic way to reintroduce safe international travelling. In reality, the idea of a COVID-19 certificate is but a new layer in the broader landscape of highly uneven global mobility where travellers’ citizenship and place of origin truly matter. This article discusses some of the major inequalities embedded in the global mobility regime and argues that the idea of the COVID-19 certificate as an equaliser remains completely disconnected from these underlying realities. To conclude, the article discusses problems related to uneven access to digital travel documents, such as the proposed COVID-19 certificate.
Haldimann, Orianna and Lukas Biedermann, ‘Distribution of Face Masks in Kakuma Refugee Camp during a Pandemic: Legal Obligations and Responsibilities’ (2022) 22(2) African Human Rights Law Journal 451–475 Abstract: This article argues that the inhabitants of the Kakuma refugee camp are in a special relationship with the state, resulting in an increased duty of care of the latter towards the former. The effect of this increased duty of care ultimately results in a positive obligation to provide face masks to the inhabitants to protect them from COVID-19, based on the right to the best attainable standard of health and the right to life. The article then turns to the question of who is responsible to provide such face masks in the camp. After first analysing the situation on site, the article argues that a shift of responsibility of the host state to the UN Refugee Agency took place.
Hambly, Jessica, ‘International Refugee Law in Crisis: Islands, Incarceration and Neo-Refoulement during COVID-19’ (2021) 39(1) The Australian Year Book of International Law Online 49–64 Abstract: Abstract Attempts by states to deter refugee movement have evolved to a point that routine and systematic breach of non-refoulement and associated human rights frequently constitutes a central pillar in their asylum architectures. The expansion of state policies and practices under which people seeking asylum are prevented from reaching safe places and lodging asylum claims has accelerated during the Covid-19 pandemic. Drawing on examples from Australia and Europe, this article uses neo-refoulement—a concept introduced by geographers Jennifer Hyndman and Alison Mountz—to signal not only the rise in pushbacks at land and sea borders, but also practices that occur well within the boundaries of sovereign territory. These include the use of island incarceration, fast-track border procedures, and denial of legal presence on sovereign territory, even where physical presence is achieved. Such measures have often been introduced under the pretext of responding to situations of ‘mass influx’. And yet, far from providing an adequate response to a so-called ‘refugee crisis’, they serve only to facilitate a greater humanitarian crisis.
Hamid, Zuraini Ab and Mohd Hisham Mohd Kamal, ‘Covid-19 Pandemic: A Demand for Malaysia to Support Refugees under International and Domestic Law’ (2022) 15(1) Journal of East Asia and International Law (JEAIL) 61–76 Abstract: The WHO reported the Covid-19 outbreak infected 486,761,597 people, involving 6,142,735 deaths worldwide as of 1 April 2022. This contagious disease has spread rapidly throughout the world, including Malaysia. Since the outbreak in Malaysia began in March 2020, the Movement Control Order (MCO) has been implemented nationwide, leaving a significant impact on its citizens, non-citizens, as well as refugees. There is some exploitation of refugees, where enforcement officers are targeting them for criminal offences. Stakeholders claimed the Malaysian government did not provide any assistance to refugees during the pandemic, including health care and economy. This article examines Malaysia’s responsibilities as a host country to refugees during the Covid-19 outbreak. The Malaysian government is proposed to continuously support refugees on humanitarian grounds based on the country’s economic development capabilities. This paper will look into the current situation of the Refugees in Malaysia; discuss the challenges that the Refugees in Malaysia are facing; analyse the legal framework governing the status of refugees; and check the responsibility Malaysia should assume as a host country.
Heeren, Geoffrey J, ‘Building on the Legacy of the University of Idaho’s Immigration Clinic During the Pandemic’ (2021) 64(9) Advocate 32–34 Introduction: The growing presence of immigrants in Idaho is one of the reasons why the University of Idaho College of Law has had an immigration clinic since the early 2000s. Immigrants make up 6% of Idaho’s population and 8% of its labor force. Moreover, Idaho’s growing immigrant population is a driving force for its economy. Immigrants—both those with lawful and undocumented status—pay tens of millions of dollars of taxes in the state. In some strategic sectors of the Idaho economy, like the enormously lucrative dairy industry in Southern and Eastern Idaho, immigrants overwhelmingly make up the work force. The increasing presence of immigrants in the state—and in neighboring regions like Eastern Washington—means there is a need for attorneys to help non-citizens with an area of law that one federal court called a ‘labyrinth that only a lawyer could navigate.’ This pressing need equates to the availability of jobs for University of Idaho law graduates trained in immigration law. The Immigration Litigation and Appellate Clinic at the University of Idaho College of law offers these opportunities. This year, the clinic adapted to the pandemic in order to continue its legacy of excellent immigrant representation. This article will provide an overview of the clinic, its recent work, and its scope.
Hicks, Elizabeth, ‘Proportionality and Protracted Emergencies: Australia’s COVID-19 Restrictions on Repatriation Rights’ (2023) 45(1) Sydney Law Review (forthcoming) Abstract: The COVID-19 pandemic plunged governments into a world of ‘tragic choices’. With minimal forewarning and limited available infrastructure to enable freedoms in an alternative way, governments were required to restrict rights to meet the more urgent, ‘existential’ need to control threats to life. The nature of the emergency limited the role of courts in assessing challenges that raised rights and proportionality arguments against restrictions. In this article I argue that rights based proportionality reasoning can nonetheless retain a meaningful role in emergency settings. To do so, I compare how courts in Israel, New Zealand and elsewhere applied proportionality reasoning in public law challenges to restrictions on repatriation rights during the pandemic. I argue that judicial scrutiny of a restriction’s proportionality can intervene in ‘executive path dependency’ — the failure of executive emergency governance to invest in infrastructure over time to render restrictions less necessary. Such scrutiny can also provide for more principled systems of allocating scarce resources. I then demonstrate how various Australian mechanisms — constitutional, administrative and political — failed to supply the same protection in challenges to restrictions on repatriation rights. I trace this to the faith that the Australian system places in popular, majoritarian accountability mechanisms, whose operation is altered in emergency settings.
Hoffman, Geoffrey A, ‘What Should Immigration Law Become?’ (SSRN Scholarly Paper ID 3680813, 25 August 2020) Jurisdiction: USA
Abstract: This Essay explores the future of immigration law and asks what it should become after the 2020 election. It begins with a discussion of some of the changes brought about by the Trump administration and exacerbated by the COVID-19 pandemic. In thinking about a starting place for immigration law, one can and should begin with human rights, ensuring international norms are met, providing the most vulnerable urgent protections, as well as responding to humanitarian crises. Simultaneously, immigration law can be viewed as a facet or subset of national security law, administrative law, or constitutional law, and at times all of these sources acting at once upon a particular immigrant or set of immigrants. This confluence of concerns drives the cacophony of voices, and hence the confusion and obfuscation which has frustrated comprehensive immigration reform and remedies for immigrants for decades. Other areas also of course impact the field. Another way of asking the same question is: How do we begin to explore imaginative possibilities at fixing the broken immigration system? In determining what immigration law should become this essay examines the possibilities inspired by three distinct ‘buckets’ or categories: (1) Supreme Court decisions; (2) proposed and, thus far, unsuccessful legislation, including the immigration plan of candidate and former Vice President Joe Biden; and (3) remedies and approaches inspired by other fields of law. The Essay concludes with a discussion of legal analysis and a proposal for change.
Hoffman, Steven J and Patrick Fafard, ‘Border Closures: A Pandemic of Symbolic Acts in the Time of COVID-19’ in Flood, Colleen et al, Vulnerable: The Law, Policy and Ethics of COVID-19 (University of Ottawa Press, 2020) 555 Abstract: COVID-19 provoked unprecedented national border closures. Some countries stopped travel from particular regions, despite evidence that such closures are ineffective and illegal under the International Health Regulations (IHRs). Even more countries banned all incoming travel by non-citizens. It has been suggested that these more restrictive total border closures are theoretically effective and arguably permissible under international law. Yet a closer analysis reveals that total border closures are probably still illegal given the IHRs require countries to adopt less restrictive alternatives when possible, such as a 14-day quarantine order for incoming travellers. If border closures are largely ineffective and illegal, then why have at least 142 countries implemented them? The answer lies in the realities of politics. Even if governments know the science and law of border closures, they still feel compelled to enact them because of intense domestic pressure and to avoid blame for not acting. Therefore, border closures are best regarded as powerful symbolic acts that help governments show they are acting forcefully, even if these actions are not epidemiologically helpful and even if they breach international law. As a result, citizens should be critical of border closures when these symbolic acts are motivated by political advantage without regard to immense collateral damage.
Hunt, Joanna ‘Complying with Business Immigration Law During the COVID-19 Pandemic’ (2020) 210(May) Employment Law Journal 16-18Jurisdiction: UK
Abstract: Considers changes to immigration policy as a result of the coronavirus pandemic and how this is likely to affect employers and migrant workers. Looks at the effect on applicants who are unable to enter the country, foreign national employees outside the UK and foreign national employees inside the UK. Discusses how the Government has adapted right to work checks for new starters where employees are working at home, and the duties of Tier 2 sponsor licence holders.
‘Immigration, Extradition, Deportation and Asylum’ [2020] (July) Public Law 563-566Jurisdiction: UK
Abstract: Reviews immigration-related developments including R. (on the application of Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department (CA) on whether measures preventing landlords from letting to persons without leave to remain in the UK was discriminatory and breached ECHR arts 8 and 14. Notes the automatic extension of the visas of overseas health care workers beyond 1 October 2020.
Note: link to R (on the application of Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department [2020] EWCA Civ 542 on BAILII.
Jakobson, Mari-Liis and Leif Kalev, ‘COVID-19 Crisis and Labor Migration Policy: A Perspective from Estonia’ (2020) 2 Frontiers in Political Science Article 595407 Abstract: Crises can function as catalysts for policy change, but change depends on multiple factors such as the actual content of the event, the agenda-setting power of the advocates of change, and their abilities to foster advocacy coalitions and break up policy monopolies. The COVID-19 crisis is an event that halted virtually all movement, including labor migration across the world, thus having great potential to act as a major focusing event. This article will look into the possibilities of this crisis to induce permanent labor migration policy change based on the case of Estonia. The article thus contributes to the literature on migration policy change from the Central and East European perspective.
Jefferies, Regina and Jane McAdam, ‘Locked in: Australia’s COVID-19 Border Closures and the Right to Leave’ (2023) 40(1) The Australian Year Book of International Law Online 185–231 Abstract: In March 2020, Australia became one of a handful of democratic states worldwide to adopt a blanket prohibition on the right of citizens to leave its territory, whether temporarily or permanently, in response to the COVID-19 pandemic. The International Health Regulations, which bind all members of the World Health Organization (‘WHO’), including Australia, provide an international legal framework to guide the public health response to the international spread of disease in a manner which respects human rights and fundamental freedoms. The right to freedom of movement in international human rights law is enshrined in the International Covenant on Civil and Political Rights (‘ICCPR’), which Australia ratified in 1990. Although states can place restrictions on freedom of movement to protect public health, they must be appropriate to achieve their protective function, the least intrusive instrument which might achieve the desired result, and proportionate to the interest to be protected. This article argues that in adopting sweeping restrictions on outbound travel, Australia re-purposed aspects of its migration control regime—ordinarily employed to externalise its international border and prevent people from entering the country—in order to prevent Australian citizens and permanent residents from leaving Australia. The outbound travel restrictions further bypassed an analysis of the intrusiveness and proportionality of the measures themselves, and shifted the burden onto individuals to request an exemption where the regulation of exit proved overly intrusive or disproportionate in their particular circumstances. In examining parliamentary transcripts, press statements by government officials, and recently revealed data regarding outbound travel exemptions, this article raises serious questions regarding the legality of the restrictions over time and their implementation in light of international law.
Jefferies, Regina, Jane McAdam and Sangeetha Pillai, ‘Can We Still Call Australia Home? The Right to Return and the Legality of Australia’s COVID-19 Travel Restrictions’ (2022) Australian Journal of Human Rights (Advance article, published online 24 January 2022) Abstract: In the two years since Australia logged its first COVID-19 case and sealed its borders, thousands of citizens and permanent residents were locked out. Despite having a formal right to return, their ability to come home was hampered by a ‘one size fits all’ approach to hotel quarantine, travel caps linked to state/territory capacity, and a lack of federal facilities. This article examines the legality of Australia’s entry controls in light of international and domestic law. It documents the evolution of Australia’s response from the initial outbreak in China to the 2021 Delta outbreak in India, analysing the (limited) publicly available information as to the rationale for the restrictions. It examines the right to return in Australian domestic law, including whether citizens have a constitutionally protected right of entry. It also analyses the right to enter under international law, evaluating whether Australia’s settings constitute an arbitrary restriction of that right—especially since the drafters of the International Covenant on Civil and Political Rights thought it ‘inconceivable’ that a government would prevent citizens from returning for public health reasons.
Kaushal, Asha, Bethany Hastie and Devin Eeg, ‘Bordering the Pandemic: COVID-19, Immigration, and Emergency’ (2020) 41(2) National Journal of Constitutional Law 1–29 Abstract: In March 2020, the COVID-19 pandemic led to the closure of Canada’s international borders. This closure was not absolute; it was marked by several exceptions. Those exceptions were contained in a series of Orders-in-Council (OiCs) which became the Canadian governments mechanism of choice for governing the border. OiCs are swift, efficient, and flexible legal instruments, which makes them well-suited to a public health emergency. In this article, we explore the nature, function and impact of regulating Canadas borders through OiCs. Focusing on both the procedural and substantive dimensions of OiCs, we interrogate their potential political, legal, and social consequences. We draw on the theory of the emergency to unpack and illustrate how this unfolds, and to explain why it creates serious challenges for longer-term immigration regulation. We demonstrate how the use and content of the pandemic OiCs with respect to the border has reignited reliance on status-based distinctions in immigration regulation, and we consider the ways in which this may produce discriminatory effects at and within Canada’s borders.
Kessels, Ron, ‘COVID-19 Impacts on Immigration Law and Policy’ [2020] (68) LSJ: Law Society of NSW Journal 72-73 Abstract: Australia’s post-COVID fortunes hinge on rapid and sustained economic growth. That will simply not be possible without employers being able to sponsor foreign workers from overseas. But COVID-19 has shut our borders and created an army of unemployed Australians, making people movement much more difficult for employers and a political issue for government. So, what will COVID-19 mean for our immigration laws and policies, and the ability of employers to access the skilled people they will need?
Knight, Dean R and Jane Calderwood Norton, ‘New Zealand's Pandemic Border Fortress: Community Health and Wellbeing versus Citizens' Right to Return’ (2022) 33(3) Public Law Review 186 Introduction: Aotearoa New Zealand's elimination strategy was one of the international successes of the first two years of the COVID-19 pandemic. The virus was, by-and-large, kept at bay for much of that time. A strict “stamp it out, keep it out” approach kept cases numbers and deaths at comparatively very low levels and allowed the country to enjoy extended periods without any virus in the community. Many factors contributed to these extraordinary health outcomes, including: a strict nation-wide lockdown of 7½ weeks in the early months; similar periodic regional lockdowns in later stages (including the largest city, Auckland, for over three months in one instance); careful ongoing surveillance and contact tracing; and aggressive tailored measures to isolate and stamp out any community cases that appeared. Generous public support for the government's actions and high levels of compliance with health measures were also crucial. Elimination within the country, however, was only made possible by a heavy border fortress. This created a nationwide bubble enabling the internal health measures to succeed. All those travelling to New Zealand were required to quarantine for a period on arrival in state-managed facilities until health officials were assured that those arriving did not have the virus. While this managed isolation and quarantine system, or MIQ as it came to be known, was integral to New Zealand's successful health outcomes, it came at a cost: many New Zealand citizens were unable to return home at the time of their choosing. In other words, the managed isolation and quarantine system operated as a limitation on citizens' much cherished right to return enshrined in s 18 of the New Zealand Bill of Rights Act 1990 (NZ) (Bill of Rights Act). The question – at law and in public discourse – was whether that border restriction was justified to protect the health and wellbeing of the community within New Zealand.
Koroutchev, Rossen, ‘The Covid-19 Mobility Impacts on the Migration Flow in South-East Europe: The Situation in 2021 and Before 1989’ (2021) 7(1) Journal of Liberty and International Affairs 39–50 Abstract: In this paper, we analyze the current travel restrictions due to the COVID-19 pandemic imposed by the countries from South-East Europe and briefly compare them with those imposed by the Central European countries. By using official data collection of displacement tracking matrices and analyzing the porosity of the borders in this part of Europe, we research the impact of COVID-19 on human mobility and the related economic and social aspects. Discussions are presented regarding this impact on the travelers, the seasonal workers from some of the selected countries, and the immigrants from the Middle-East. A formal analysis is performed relating the current travel restrictions and the travel ban during the iron curtain.
Kosinska, Anna Magdalena, ‘Has the CJEU Made the First Step to Put a Stop to the Criminalisation of Migration? Commentary to the Judgement in the Case of JZ in the Context of COVID-19 Pandemic Commentary’ (2021) 26(6) Bialystok Legal Studies / Bialostockie Studia Prawnicze 207–224 Abstract: The paper presents a critical discussion of the CJEU judgment in the JZ case (C 806/18), in which the Court interpreted Article 11 of Directive 2008/115 that regulates entry ban issuance. The author asks a question of whether an entry ban as a measure limiting the right to free movement has a moral and legal ground in international law and EU law. Moreover, the author focuses on the problem of the criminalisation of irregular migration – both in the context of the established line of the Court’s case law and in the case of a vague national law standard that penalizes illegal stays – the possibility to apply the criminal law concept of error in law and thus exclusion of criminal liability of an illegal migrant. The judgment fits within the human rights discourse on the elimination of the criminalisation of irregular migration. It is worth noting that this is the first CJEU judgment on this phenomenon issued during the COVID-19 pandemic. Given the current social situation, it gains particular significance. Prisons are not safe places during the pandemic, and it is difficult to find arguments for risking the health and lives of third-country nationals, especially where they do not fully realize the nature of the prohibited act committed since they do not know criminal law regulations of the host country. All the more so, since in the light of the Union’s law, an effective return is to be a priority with regard to such persons. The problem of effectiveness of the criminalisation of migration, in the light of the return policy, gains special importance in the time of the COVID-19 pandemic80 – in my opinion the coronavirus epidemic should encourage effective implementation of returns rather than placement of migrants in prisons, which, unfortunately, are often overcrowded and facilitate transmission of the virus.
Kritzman-Amir, Tally Amir, ‘Flattening the Curve, Constitutional Crisis and Immigrants’ Rights Protections: The Case of Israel’ (2020) 2 Frontiers in Political Science Article 592150 Abstract: Despite being a small and relatively secluded country, managing the COVID-19 pandemic has so far been quite a challenge for Israel. This contribution seeks to explain how Israel had managed migration and the pandemic amidst a constitutional crisis between February and July 2020.
Kurichety, Karlyn, ‘Deliberate Endangerment: Detention Of Noncitizens During The COVID-19 Pandemic’ (2020) 168(Special Issue: Law Meets World) UCLA Law Review Discourse 118–128 Abstract: In the midst of worldwide efforts to mitigate the COVID-19 pandemic, Immigration and Customs Enforcement (ICE) continues to detain noncitizens in dangerous conditions that create a high risk of infection. This Article explores the dire situation facing detained noncitizens as a result of the government’s decision to imprison tens of thousands of people in civil confinement during an unprecedented global pandemic.
Kylasam Iyer, Deepa and Francis Kuriakose, ‘Glitch as Narrator of Pandemic Citizenship in India’ (SSRN Scholarly Paper No 4280176, 18 November 2022) Abstract: The COVID-19 pandemic turned into a question of access to safety and security for millions worldwide. This study examines how the narratives of pandemic citizenship unfolded for India’s internal migrant workers who lost their livelihood and housing during the lockdown and were forced to return to their native villages. Using the framework of Legacy Russell’s glitch politics, this paper illustrates two instances of glitchy encounters that relayed migrant worker stories during the first national lockdown between March and June 2020. The first instance was the long walk home that became a collective act of refusal to be rendered invisible in the pandemic narratives. The second example was citizen journalism that used mainstream media as amplifiers of migrant worker voices. The main argument of the study is that glitches enabled seemingly marginal narratives to momentarily overcome structural inequalities and become powerful chroniclers of the pandemic.
Lambert, Hélène, Michelle Foster and Jane McAdam, ‘Refugee Protection in the COVID-19 Crisis and Beyond: The Capacity and Limits of International Law’ (2021) 44(1) UNSW Law Journal 103–124 Abstract: The current pandemic and concomitant framework of crisis has led to unprecedented restrictions on global movement, and hence on the ability of refugees to seek protection. These measures have been implemented as a matter of urgency on account of the immediacy of the public health challenge, yet risk violating international refugee and human rights law. This experience provides an opportunity to reflect on an equally compelling, although less imminent, threat, namely displacement linked to the impacts of climate change. This article considers these twin challenges and reflects on the capacity and limits of international law to address both crises, while balancing the competing rights and interests at stake. It argues that a key challenge for international law and policy is how to harness the sense of urgency generated by COVID-19 for the long-term ‘climate crisis’, without resorting to emergency mechanisms of reactive, short-term, restrictive, and exceptional measures.
de Lange, Tesseltje, ‘COVID-19 Migration Policy Measures for International Students and Graduate Job Searchers: A Lost Round in the Battle for Brains’ (2020) 2 Frontiers in Human Dynamics Article 594420 Abstract: Global policy responses to COVID-19 in terms of international students migration and foreign graduate job searchers demonstrate huge disparities and insecurities regarding their migration status. Three main issues can be distinguished in COVID-19 related visa and migration policy measures for international students and graduate job searchers: Policies on returning or remaining during the lockdown, policies on extending students’ and job searchers legal stay and policies allowing new students to arrive. This contribution maps migration policy responses in five popular destination countries across the globe. This mapping exercise identifies three patterns of response to COVID-19: Facilitating, blocking or ambiguous. The policy responses are critically assessed in the context of the so called ‘battle for brains’. From a concise overview of the interests at stake with international student migration policy a change in perspective from development of the country of origin to development of the labor markets and innovation in the countries of destination can be distinguished. International students are stuck between the interests of their countries of origin, the destination countries and HEI, and their own interests in receiving an international education, onward migration, and an international career are not always represented. The COVID-19 crisis has shown how in some countries of destination, international students and graduates, although high-skilled and ‘home-trained’, are not treated as belonging to the country of destination. Their home is still in their country of origin. The crisis reveals that they may be little more than future (high-skilled) guest workers, disposed of in times of crisis.
Lanzarone, A et al, ‘When a Virus (Covid-19) Attacks Human Rights: The Situation of Asylum Seekers in the Medico-Legal Setting’ [2020] Medico-Legal Journal (advance online article, published 23 July 2020) Abstract: The Covid-19 pandemic is a global health emergency that requires immediate, effective action by governments to protect the health and basic human rights of everyone’s life. Refugees and migrants are potentially at increased risk because they typically live in overcrowded conditions often without access to basic sanitation. Since the beginning of the official lockdown for Covid-19, the medico-legal assessment of physical violence related to obtaining status or other forms of human protection has been frozen.
Lindberg, Annika et al, ‘Governing Through Ignorance: Swedish Authorities’ Treatment of Detained and Non-Deported Migrants during the COVID-19 Pandemic’ (2022) 30(3) Feminist Legal Studies 309–329 Abstract: Tensions between migration enforcement and migrants’ health and rights have gained renewed urgency during the COVID-19 pandemic. This article critically analyses how the pandemic has affected detained and deportable people in Sweden. Building on an activist methodological approach and collaboration, based on a survey conducted inside Swedish detention centres during the pandemic and the authors’ research and activist engagement with migrants who are detained or legally stranded in Sweden, we argue that migration authorities’ inadequate measures to protect detained and deportable people during the pandemic is a case of governance through ignorance enabled by structural racism. The article traces how this ignorance operates on a structural, institutional and micro-level, enabling public disregard and political irresponsibility for the harmful effects of migration enforcement. A broader aim of the article is to challenge the structural, societal and epistemic ignorance of the conditions for detained and deportable persons and to contribute to political change.
Lopez, Miriam Magaña and Seth M Holmes, ‘Raids on Immigrant Communities During the Pandemic Threaten the Country’s Public Health’ (2020) 110(7) American Journal of Public Health 958–959 Extract: On the first day of California’s stay-at-home order, US Immigration and Customs Enforcement (ICE) agents—each with N95 medical protective masks at the ready—raided immigrant communities in Los Angeles, California. That same day, an asylum seeker in a detention center in Colorado was alerted that ICE planned to deport him to Nicaragua shortly thereafter. As the pandemic spread quickly and the death toll rose, ICE raids continued in multiple parts of the United States. On March 18 (the same day as three raids in New York City—the area with the highest COVID-19 prevalence), ICE issued a public statement indicating that “[the agency’s] highest priorities are to promote life-saving and public safety activities.” Far from promoting public health and safety, these raids, detentions, and deportations contravene public health recommendations and threaten to worsen the pandemic in the United States and beyond on several important levels—leading to avoidable exposures, infections, and deaths.
Macklin, Audrey, ‘(In)Essential Bordering: Canada, COVID, and Mobility’ in Anna Triandafyllidou (ed), Migration and Pandemics: Spaces of Solidarity and Spaces of Exception (Springer, 2022) 23–43 [OPEN ACCESS E-BOOK] Abstract: The global spread of Covid-19 not only disrupted transborder movement. In many (if not most) states, stasis and closure became the default norm at and within borders. This, in turn, generated exceptions organised around an idea of ‘essential’ entry. The category of ‘essential’ was produced, revised, and represented through the interaction of pandemic-driven exigencies and nationally-specific articulations of the legal, political, and economic priorities and constraints in play. To understand how the admission into Canada of certain people was accepted as legally, economically, and/or politically essential, one must take account of Canada’s character as a settler society and its economic integration with the United States. Other relevant considerations are the growing dependence on migrant workers to subsidise the cost of food production for Canadian agribusiness, and on international students to subsidize the cost of higher education for nationals.
Maio, Michael, ‘The Right to Asylum During the Covid-19 Pandemic: A Legal Review of the Power to Expel Noncitizens Under Title 42’ 86(3) Albany Law Review 649-681 Abstract: This Note will delve into the legality, discriminatory use, and fabricated public health rationale of the Title 42 expulsion policy. Part II provides an overview of the history of Title 42, its implementation during the COVID-19 pandemic, and its impact on immigration policy through caselaw. Part III examines how Title 42 violates both domestic and international law. Part IV analyzes how the policy’s discriminatory enforcement against noncitizens and minorities discredits its public health rationale. Lastly, Part V provides recommendations for how Title 42 could be amended in order to properly and legally achieve its intended purpose.
Makhlouf, Medha D, ‘Health Care Sanctuaries’ (2021) 20(1) Yale Journal of Health Policy, Law and Ethics 1–67 Abstract: It is increasingly common for noncitizens living in the United States to avoid seeing a doctor or enrolling in publicly funded health programs because they fear surveillance by immigration authorities. This is the consequence of a decades-long shift in the locus of immigration enforcement activities from the border to the interior, as well as a recent period of heightened immigration enforcement. These fears persist because the law incompletely constrains immigration surveillance in health care. This Article argues that immigration surveillance in health care is a poor choice of resource allocation for immigration enforcement because it has severe consequences for health and the health care system; additionally, it compromises the legitimacy of the state vis-à-vis its noncitizen residents. The consequences include public health threats, health care system inefficiency, ethical dilemmas, and increased vulnerability in immigrant communities. Laws permitting immigration surveillance in health care also create legitimacy harms by obstructing noncitizens’ access to health care and undermining their privacy and rights to public benefits. The COVID-19 pandemic starkly illustrates these dangers, but they exist even in the absence of a novel disease outbreak. Health care access for noncitizens has largely been left to the vagaries of immigration policy. Immigration surveillance in health care should prompt us to consider the scope and limits of health law and the role of discretion in immigration law. Health care sanctuaries — durable legal protections against immigration surveillance in health care — recover some of the lost equilibrium between immigration enforcement and other goals and values of public policy.
Makhlouf, Medha D and Jasmine Sandhu, ‘Immigrants and Interdependence: How the COVID-19 Pandemic Exposes the Folly of the New Public Charge Rule’ (SSRN Scholarly Paper ID 3597791, 2 May 2020) Abstract: On February 24, 2020, just as the Trump administration began taking significant action to prepare for an outbreak of COVID-19 in the United States, it also began implementing its new public charge rule. Public charge is an immigration law that restricts the admission of certain noncitizens based on the likelihood that they will become dependent on the government for support. The major effect of the new rule is to chill noncitizens from enrolling in public benefits, including Medicaid, out of fear of negative immigration consequences. These chilling effects have persisted during the pandemic. When noncitizens are afraid to (1) seek treatment or testing for COVID-19 or (2) access public benefits in order to comply with stay-at-home guidance, it impedes efforts to slow the spread of COVID-19, contributing to the strain on the health care system. This Essay describes how the pandemic has exposed the folly of the public charge rule: Discouraging noncitizens from accessing public benefits to support their health and well-being is and always has been unwise from a public health perspective. The pandemic merely magnifies the negative consequences of this policy. This Essay contributes to scholarly conversations about how immigration law and policy have framed the United States’ response to the COVID-19 pandemic. Specifically, it provides an in-depth analysis of the negative public health consequences of the new public charge rule during the pandemic.
Makhlouf, Medha and Patrick Glen, ‘Immigration Reforms as Health Policy’ (2022) 15(2) Saint Louis University Journal of Health Law & Policy 275–330 Abstract: The 2020 election, uniting control of the political branches in the Democratic party, opened up a realistic possibility of immigration reform. Reform of the immigration system is long overdue, but in pursuing such reform, Congress should cast a broad net and recognize the health policies embedded in immigration laws. Some immigration laws undermine health policies designed to improve individual and population health. For example, immigration inadmissibility and deportability laws that chill noncitizens from enrolling in health-promoting public benefits contribute to health inequities in immigrant communities that spill over into the broader population—a fact highlighted by the still-raging COVID-19 pandemic. Restrictions on noncitizen eligibility for Medicaid and other public benefits contribute to inequitable access to health care. Moreover, visa restrictions for noncitizen health care professionals run counter to health policies promoting access to health care during a time of severe shortages in the health care professional workforce. It is time that health policy be incorporated into the immigration-reform debate, with Congress considering whether and how such reforms are helping to achieve health policy goals relating to improving individual and population health.
Mantu, Sandra, ‘EU Citizenship, Free Movement, and Covid-19 in Romania’ (2020) 2 Frontiers in Human Dynamics Article 594987 Abstract: Traveling freely, smoothly and unburdened by excessive formalities and the adjoining right to reside in another EU state for work, leisure or study are the hallmarks of the mobility regime applicable to EU citizens and their family members. Measures taken by the majority of EU states to deal with Covid-19 have severely disrupted EU mobility and led to the reestablishment of internal border controls, the introduction of restrictions to travel and even travel bans. These obstacles to mobility have highlighted the EU economy’s reliance on EU migrant labor in several sectors, which was further exacerbated by the introduction of an EU travel ban at the external border. This contribution discusses measures taken by Romania that sought to restrict travel to and from Romania, while simultaneously allowing exceptions for nationals to travel to other EU states as essential workers. The Romanian response is discussed in relation to the wider EU attempts to reply to the proliferation of national measures affecting EU free movement and the functioning of the internal market and as an illustration of the need to ensure that mobility goes hand in hand with protection.
Marin, Luisa, ‘The COVID-19 Crisis and the Closure of External Borders: Another Stress-Test for the Challenging Construction of Solidarity Within the EU?’ (European Papers - European Forum, 28 October 2020) Abstract: This Insight assesses the impact of the COVID-19 pandemic on the external borders of the EU. It first presents measures enacting the EU travel ban and also their implications on the European asylum system, as implemented by Member States’ administrations. In this context, it discusses some of the challenges which emerge: these concern mainly the soft law instruments deployed and their relation with the EU legal order, and the complex achievement of solidarity within the EU.
Marouf, Fatma E, ‘The Impact of COVID-19 on Immigration Detention’ (2020) 2 Frontiers in Human Dynamics Article 599222 Abstract: COVID-19 has spread quickly through immigration detention facilities in the United States. As of December 2, 2020, there have been over 7,500 confirmed COVID-19 cases among detained noncitizens. This Article examines why COVID-19 spread rapidly in immigration detention facilities, how it has transformed detention and deportation proceedings, and what can be done to improve the situation for detained noncitizens. Part I identifies key factors that contributed to the rapid spread of COVID-19 in immigration detention. While these factors are not an exhaustive list, they highlight important weaknesses in the immigration detention system. Part II then examines how the pandemic changed the size of the population in detention, the length of detention, and the nature of removal proceedings. In Part III, the Article offers recommendations for mitigating the impact of COVID-19 on detained noncitizens. These recommendations include using more alternatives to detention, curtailing transfers between detention facilities, establishing a better tracking system for medically vulnerable detainees, prioritizing bond hearings and habeas petitions, and including immigration detainees among the groups to be offered COVID-19 vaccine in the initial phase of the vaccination program. The lessons learned from the spread of COVID-19 in immigration detention will hopefully lead to a better response to any future pandemics. In discussing these issues, the Article draws on national data from January 2019 through November 2020 published by Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP), two agencies within DHS. The main datasets used are detention statistics published by ICE for FY 2019 (Oct. 2018-Sep. 2019), FY 2020 (Oct. 2019-Sep. 2020), and the first two months of FY 2021 (Oct. 2020-Nov. 2020). These datasets include detention statistics about individuals arrested by ICE in the interior of the country, as well as by CBP at or near the border. Additionally, the Article draws on separate data published by CBP regarding the total number of apprehensions at the border based on its immigration authority under Title 8 of the United States Code, as well as the number of expulsions at the border based on its public health authority under Title 42 of the United States Code.
McAdam, Jane, ‘Submission 38: Temporary Migration’ (UNSW Law Research Paper No 21–22, 23 March 2020) Abstract: As the Director of the Andrew & Renata Kaldor Centre for International Refugee Law at UNSW Sydney, Jane McAdam provided a short submission to the Senate Select Committee on Temporary Migration. One of the Kaldor Centre’s areas of expertise is mobility in the context of climate change and disasters. In particular, their work examines how well-constructed temporary migration schemes – as one component of a comprehensive migration programme – can provide a safety valve for people who wish to diversify their livelihoods but not move permanently elsewhere, especially where they enable circular mobility. The submission below focuses on this issue.
McAdam, Jane and Guy S Goodwin-Gill, ‘Submission to the Parliamentary Joint Committee on Human Rights in Relation to Bills and Instruments Concerning COVID-19’ (UNSW Law Research Paper No 21–17, 5 May 2020) Abstract: Jane McAdam and Guy S. Goodwin-Gill submitted on behalf of the Andrew & Renata Kaldor Centre for International Refugee Law at UNSW Sydney this submission to the Parliamentary Joint Committee on Human Rights in relation to its scrutiny of federal bills and instruments which deal substantially with matters related to COVID-19. Enclosed is the Principles of Protection for Migrants, Refugees, and Other Displaced Persons, which were developed by an expert group of international refugee and human rights lawyers to guide governments in their responses to COVID-19. As members of the drafting committee, they believe that the 14 Principles provide a useful tool for analysis of whether legislation complies with Australia’s obligations under international law, particularly when it comes to restrictions on movement (including immigration detention), access to health care, the right to information, and due process. The Principles have been endorsed by 800 international experts.
McAdam, Jane and Frances Voon, ‘Submission 39: Inquiry into the Implications of the COVID-19 Pandemic for Australia’s Foreign Affairs, Defence and Trade’ (UNSW Law Research Paper No 21–18, 29 June 2020) Abstract: As members of the Kaldor Centre for International Refugee Law at UNSW Sydney, Jane McAdam and Frances Voon provided this submission to the Inquiry into the implications of the COVID-19 pandemic for Australia’s foreign affairs, defence and trade. Their submission considers two issues relevant to the Inquiry’s terms of reference and the Centre’s expertise. The first is how States’ responses to refugees and people seeking asylum in the context of COVID-19 pose challenges to the international rules-based order, in Australia’s region and beyond. The second is the implications of COVID-19 for the Pacific, particularly the need to promote longer-term resilience through measures to address the impacts of climate change, such as enhancing mobility.
Mégret, Frédéric, ‘Returning “Home”: Nationalist International Law in the Time of the Coronavirus’ in Barrie Sander and Jason Rudall (eds), Opinio Juris Symposium on COVID-19 and International Law (March-April 2020) Extract from Introduction: What has been striking about the coronavirus epidemic is the rapidity with which many émigrés, particularly those with the privilege of mobility, have sought refuge in their country of origin. In turn, what has been remarkable in those states is the combination of further closing borders to foreigners whilst going out of their way to repatriate nationals.
Mencutek, Zeynep Sahin, ‘Voluntary and Forced Return Migration Under a Pandemic Crisis’ in Anna Triandafyllidou (ed), Migration and Pandemics: Spaces of Solidarity and Spaces of Exception (Springer, 2022) 185–206 [OPEN ACCESS E-BOOK] Abstract: The Covid-19 pandemic has an impact on migrants’ return desires and actual returns across the globe. Border closures in the face of pandemic lead to the panic mobility of those returning home. The ensuing lockdowns and economic difficulties restricted migrant workers’ access to income and protection, pushing them to return. The pandemic brought evident risks for the regular migrants’ access to healthcare, financial security, and social protection, forcing them to consider the return option too. For irregular migrants, the pandemic further increased the risk of forced returns, including detention, deportation, and pushbacks. For all migrants, decisions are marked by a deep dilemma between staying and returning. Meanwhile, receiving, sending, and transit countries, as well as international organisations are involved in return processes by providing logistics, on the one hand, and stigmatising returnees as carriers of virus, on the other. This study is based on desk research and analysis of the scholarly literature, reports, and grey literature from international organizations, civil society reports, scientific blogs, and media reports. An emphasis on returns provides us broader insights to evaluate changing characteristics of migration and mobility in ‘pandemic times’, the governance of returns, its consequences, and the rhetoric about returnees.
Mercier, Elise and Sean Rehaag, ‘The Right to Seek Asylum in Canada (During a Global Pandemic)’ (2021) 57(3) Osgoode Hall Law Journal 705–738 Abstract: This article analyzes the effect that the Canadian Government’s use of emergency powers during the COVID-19 global pandemic has had on the right to seek asylum in Canada. The article suggests that that the federal government has taken advantage of a public health crisis to make a contentious political problem—the entry of asylum seekers between land ports of entry (such as at Roxham Road)—go away. It details how the Quarantine Act and various Orders in Council have been used to temporarily extend the Safe Third Country Agreement between Canada and the United States (STCA) across the entire length of the Canada-US border. It then details how this de facto extension of the STCA, which previously applied only at official land ports of entry, violates international refugee law and overviews several ways in which the global pandemic has made the United States even less ‘safe’ for refugees. The article concludes by urging the federal government to champion asylum seekers’ rights by suspending the STCA and by recognizing that crossing the border to seek asylum is amongst the most ‘essential’ forms of international travel that there is.
Miller, Holly Ventura et al, ‘Immigration Policy and Justice in the Era of COVID-19’ (2020) American Journal of Criminal Justice 1-17 (advance article, published 11 June 2020) Abstract: The U.S. immigration system has not escaped the challenges presented by the COVID-19 pandemic. Concerns have been raised about policy changes, enforcement actions, immigrant detention, and deportation practices during the outbreak. In response, dozens of lawsuits have been brought against the government on behalf of undocumented immigrants and detainees, ranging from the conditions of ICE detention facilities to the public charge rule. While most cases continue to move through the federal court system, a number of district court judges have already ruled in favor of the plaintiffs. This paper focuses on three particular areas of immigration policy and practice during COVID: ICE enforcement actions, immigrant detention, and deportations. We summarize the current state of extant data and evidence on each of these and examine questions that remain for further research.
Molnar, Petra, ‘Territorial and Digital Borders and Migrant Vulnerability Under a Pandemic Crisis’ in Anna Triandafyllidou (ed), Migration and Pandemics: Spaces of Solidarity and Spaces of Exception (Springer, 2022) 45–64 [OPEN ACCESS E-BOOK] Abstract: People on the move are often left out of conversations around technological development and become guinea pigs for testing new surveillance tools before bringing them to the wider population. These experiments range from big data predictions about population movements in humanitarian crises to automated decision-making in immigration and refugee applications to AI lie detectors at European airports. The Covid-19 pandemic has seen an increase of technological solutions presented as viable ways to stop its spread. Governments’ move toward biosurveillance has increased tracking, automated drones, and other technologies that purport to manage migration. However, refugees and people crossing borders are disproportionately targeted, with far-reaching impacts on various human rights. Drawing on interviews with affected communities in Belgium and Greece in 2020, this chapter explores how technological experiments on refugees are often discriminatory, breach privacy, and endanger lives. Lack of regulation of such technological experimentation and a pre-existing opaque decision-making ecosystem creates a governance gap that leaves room for far-reaching human rights impacts in this time of exception, with private sector interest setting the agenda. Blanket technological solutions do not address the root causes of displacement, forced migration, and economic inequality – all factors exacerbating the vulnerabilities communities on the move face in these pandemic times.
Mulder, Thomas, Gabrielle Simm and Sarah Williams, ‘Regime Interaction and the Protection of Refugees during COVID-19’ (2022) 3(1) Yearbook of International Disaster Law Online 92–125 Extract from Introduction: The COVID-19 pandemic has highlighted the challenges of protecting refugee populations where a combination of factors, such as conflicts and a pandemic, produce humanitarian emergencies. For example, after the first COVID-19 case in a Rohingya refugee camp in Bangladesh was confirmed, the camp was placed in lockdown.1 However, due to the overcrowded conditions, social distancing was not possible. There was a shortage of masks, soap and disinfectants and limited access to health care professionals and facilities such as hospital beds, as well as appropriate personal protective equipment to ensure the safety of health professionals, officials and refugees.2 Complicating these practical challenges are the multiple legal regimes that potentially apply to those individuals in refugee camps during a humanitarian emergency. The existence of multiple legal regimes raises the possibility of overlapping or conflicting obligations as well as ‘gaps’ in the protection of refugees. Different rules and institutions may pose problems for policymakers and practitioners that could cause confusion and delay protection. The complex legal situation also feeds into long-standing anxieties within the discipline about the risk of fragmentation of international law into specific regimes in the absence of clear guidance on regime interaction. This article seeks to explore regime interaction through a focus on the protection of refugees in camps. The study of regime interaction in a humanitarian emergency is particularly significant as the pandemic has highlighted how a health emergency exacerbates pre-existing inequalities. Two review mechanisms commissioned by the World Health Assembly (WHA)3 following COVID-19, the Independent Panel for Pandemic Preparedness and Response (IPPPR)4 and the Review Committee on the Functioning of the International Health Regulations (2005) during the COVID-19 response (IHR 2005 Review Committee),5 have called for reform of key legal instruments, including the adoption of a new framework convention for pandemic response and preparedness. We argue that reform of one regime, i.e. global health law, should not be done in isolation from intersecting regimes.
Nascimento, Luiz Sales do et al, ‘The Closure of the Brazilian-Venezuelan Border during the Covid-19 Pandemic: International Law Analysis of Ordinance No. 120 of March 2020’ [2022] Revista Direito e Práxis (advance article) Abstract: This study investigates how Regulatory Ordinance No. 120 of March 17, 2020, reflects the constitutional principles and international treaties recognized by Brazil. This Ordinance is a non-statutory regulation to fight COVID-19 seeking to prohibit the entry of people from Venezuela during this pandemic. This deductive investigation assumes that this measure is not supported by the national and international migration laws incorporated by Brazil. The legal justifications the act used as arguments were found to be inconsistent with the formal requirements for the act itself as per the Brazilian legal framework. Verification of its legal and technical justifications showed a lack of legal, scientific, and empirical support, turning the Ordinance into a target of criticism by Civil Society organizations. In light of national and international law, the analyzed instrument can be considered in breach of international technical guidelines for administering vulnerable migrant influxes as is the case of Venezuelans in Brazil.
Ní Ghráinne, Bríd, ‘Covid-19, Border Closures, and International Law’ (SSRN Scholarly Paper ID 3662218, 28 July 2020) Abstract: Covid-19 pays no heed to borders. Globalisation has carried the virus from a market in Wuhan, China, to almost every country in the world. In response to the virus, some governments have closed their borders to refugees and/or have pushed back refugees from their territories, even though they are well-aware of the dire circumstances that have caused these people to flee their homes. This reflection sets out the compatibility of such practices with international refugee and human rights law. It argues that while states may put in place measures to restrict the spread of the virus (such as health screening, testing, and/or quarantine) vis a vis refugees, such measures may not result in refoulement or in denying them an effective opportunity to seek asylum.
Nirmal, BC and Prakash Sharma, ‘Responsibility Sharing under International Refugee Law with Special Reference to Global Compact on Refugees’ (2021)] 2020-2021 ISIL Yearbook of International Humanitarian and Refugee Law 213–241 Abstract: International Refugee Law continuous to remain a tensed area of study, especially in the light innumerable instances of refugee rights violation. For all the success, the rhetoric of threat, fear to deter migrants, sealed borders etc. reveal many of the disappointments in the refugee regime. There are limited efforts to correct, yet more than often they remain largely insufficient. In this perspective, the Global Compact on Refugees (GCR), which focusses on improving the structure of responsibility-sharing in refugee protection demands careful examination. The paper argues that the States, which were reluctant in the past, have shown sincere willingness to repair disjointed aspects of the international refugee protection system. Being a ‘political will’ and ‘collective ambition’ of the international community, the possibility for strengthening ‘cooperation’ and ‘solidarity’ with refugees and affected host countries, appear imminent. The paper concludes that, so far, the text of GCR looks like an important step towards achieving ‘durable’ solutions.
Ogg, Kate and Olivera Simic, ‘Becoming an Internally Displaced Person in Australia: State Border Closures during the COVID-19 Pandemic and the Role of International Law on Internal Displacement’ (2022) Australian Journal of Human Rights (forthcoming) Abstract: In response to COVID-19, Australian states and territories have, at various times, restricted entry to returning residents. Consequently, many people have been unable to return to their homes, some for significant periods. While there have been discussions of the human rights implications of COVID-19 international travel bans and lockdowns, there has been little consideration of the application of international human rights law to those stranded by internal border closures. In this paper, we contend that these ‘stranded’ people are internally displaced persons (‘IDPs’) within the meaning of international law and examine how international law on internal displacement can inform domestic human rights law and processes. In doing so, this paper contributes to scarce scholarship on IDPs in higher-income nation-states and internal displacement associated with pandemics. We argue that while internal border closures were implemented to reduce the spread of COVID-19, the nature of the restrictions and the manner in which they were implemented were a disproportionate interference with rights to freedom of movement, family unity, education, healthcare and culture. Our analysis has lessons for responses to disaster displacement (a phenomenon likely to increase with acceleration of climate change), future pandemics and central themes in international scholarship on IDP protection.
Ogg, Kate and Chanelle Taoi, ‘COVID-19 Border Closures: A Violation of Non-Refoulement Obligations in International Refugee and Human Rights Law?’ (2021) 39(1) The Australian Year Book of International Law Online 32–48 [pre-published version available on SSRN] Abstract: COVID-19 has presented a number of challenges for the international refugee protection regime. An issue that has received little attention is the relationship between states tightening their borders in an effort to reduce the spread of COVID-19 and their non-refoulement obligations. This raises the question of how international law responds when non-refoulement obligations may conflict with other international human rights such as the rights to life and health. Further, the legal analysis of whether a particular COVID-19 border policy is in violation of non-refoulement obligations must take into account how the travel restriction will be implemented. This article provides an overarching analysis of non-refoulement provisions in international refugee and human rights law and which COVID-19 international travel restrictions may be in breach of these obligations. We examine different types of COVID-19 travel restrictions and argue that many are undoubtedly violations of non-refoulement, but others raise unsettled questions of international law. Nevertheless, there is jurisprudence and scholarship to support the proposition that a state’s non-refoulement obligations can be triggered even in these more contested scenarios.
Paquet, Mireille et al, ‘Sanctuary Cities and Covid-19: The Case of Canada’ in Anna Triandafyllidou (ed), Migration and Pandemics: Spaces of Solidarity and Spaces of Exception (Springer, 2022) 85–102 [OPEN ACCESS E-BOOK] Abstract: In Canada, urban centres have been especially hit by the Covid-19 pandemic and this public health crisis has generated particular risks for non-status and precarious migrants. Using official data and published research, this chapter explores how city sanctuary policies in Canada have addressed these pandemic risks and, more broadly, the future for Canadian sanctuary policies in the post-Covid-19 recovery. We highlight the specificities of sanctuary policies in the Canadian context and document that while cities have not rescinded these interventions during the pandemic, they also have not built on them when developing COVID-19 responses for urban residents. We propose that this demonstrates the need to maintain pressure for reforms that increase the resources and capacities of cities in Canada so that they can be in a better position to implement and institutionalise policies for non-status and precarious migrants.
Parlindungan et al, ‘Contextual Analysis of Immigration Legal Policies in Indonesia Post-COVID-19 Pandemic’ (2024) 4(1) International Journal of Criminal, Common and Statutory Law 201–206 Abstract: The purpose of this study is to analyze and identify the context of immigration policy in the tourism industry, visa arrangements, supervision of foreigners, treatment of foreign refugees, and overseas job training regulations after the COVID-19 pandemic in Bali. This research uses a policy-oriented legal theory approach, a form of empirical legal research called sociological jurisprudence. The results show that the fundamental elements of vigilance measures to formulate appropriate policies in immigration are faced with problems including the emergence of the threat of overtourism in Bali; visa arrangements for conflict countries; ineffective inter-agency coordination in the supervision of foreigners; schemes for handling foreign refugees who fail to reach their legitimate destinations; and inadequate protection mechanisms for Indonesian migrant workers and interns working abroad.
Parmet, Wendy E, ‘Immigration Law's Adverse Impact on COVID-19’ in Scott Burris et al (eds), Assessing Legal Responses to COVID-19 (Public Health Law Watch, 2020) 240-245Jurisdiction: USA
Abstract: Immigration law has played a large and deleterious role during the pandemic. In early 2020, the Trump administration relied on the Immigration and Naturalization Act to bar entry of non-nationals from affected areas. Once the pandemic spread widely in the United States, the administration imposed broad restrictions on immigration, including blocking entry at land borders, effectively overriding asylum laws. While furthering the administration’s pre-pandemic, anti-immigration agenda, these measures did little to keep the virus out of the country, or reduce its impact. Immigrants have also suffered disproportionately from COVID-19 due to numerous factors, including high rates of employment as essential workers, substandard housing, and immigration-based restrictions on non-citizens’ access to public benefits, including Medicaid. The recently promulgated public charge rule, plus ongoing immigration enforcement activities and antiimmigrant rhetoric, have compounded these vulnerabilities, leaving many immigrants afraid to access health care or interact with public health workers. SARS-COV-2 (the virus responsible for COVID-19) has also spread widely in immigration facilities, where detainees are unable to practice social distancing and lack access to adequate hygiene and health care.
Passalacqua, Virginia and Lorenzo Grossio, ‘Migrants’ Equal Access to Social Benefits under EU Law: Fragmentation and Exclusion during the Covid-19 Crisis in Italy’ (2023) 19(3) Utrecht Law Review 57–72 Abstract: This paper uses the case of Italy during the Covid-19 pandemic to critically assess the EU legal framework on third-country national migrants’ equal access to social benefits. In Italy, migrants are structurally excluded from core social protections, a situation that during the pandemic led to a worsening of existing patterns of inequality; migrants have been more exposed than citizens to poverty, unemployment, and destitution. The first part of the paper looks for the EU legal root of this situation: it examines the EU legal framework in the migration field, showing that it is affected by fragmentation and inconsistencies. These problems become even more acute at the national level, where the Italian legislature mis-transposed the EU migration directives, thus affecting the use of discretionary clauses therein and severely curtailing migrants’ equal treatment rights. Then, the second part of the paper asks whether adopting a mainstreaming approach to enhance equality could improve the situation of migrants. The paper argues that equality mainstreaming in the migration field shows good potential, while also encountering some structural limits. Therefore, it can hardly be considered a silver bullet against the problem of migrants’ discrimination.
Peacock, Ian and Emily Ryo, ‘A Study of Pandemic and Stigma Effects in Removal Proceedings’ (2022) 19(3) Journal of Empirical Legal Studies 560–593 Abstract: This study examines how a rapid change in social perceptions of a national-origin group triggered by the COVID-19 pandemic influenced immigration judges’ decision-making in US removal proceedings. Using originally compiled court data on removal proceedings decided between 2019 and 2020, we applied a difference-in-differences framework to produce three key findings. First, consistent with theory of event stigma, Chinese respondents experienced a significantly higher removal rate during the early pandemic period. Second, consistent with theory of associative stigma, East and Southeast (E/SE) Asian respondents also experienced a significantly higher removal rate during the early pandemic period. Third, the removal rate declined for both Chinese and E/SE respondents during the later pandemic period, but this decline was more gradual and lagged for E/SE Asian than for Chinese respondents. Finally, increases in the number of cases involving Chinese respondents increased the removal rate for E/SE Asian respondents during the early months of the pandemic. The last two findings suggest that associative or indirect stigmatization may be harder to combat than direct stigmatization owing to the implicit nature of bias underlying associative stigma. This study highlights the socially constructed nature of national origin groups, and the importance of both direct and indirect stigmatization in the production of social inequality.
Persaud, Randolph B and Jackson Yoder, ‘Human Right: Which Human; What Rights? Biopolitics and Bare Life in Migration and COVID-19’ (2020) 21(2) Seton Hall Journal of Diplomacy and International Relations 62-76 Abstract: This article argues that human rights are outcomes of relations of power. Invariably, the privilege of enjoying state protected rights are at the expense of vulnerable and marginalized populations. We apply the concepts of homo sacer and bare life to interrogate differential rights in the Europe and the United Sates with specific focus on two issue areas – migrants/refugees/ asylum seekers, and the effects of Covid-19 on African Americans.
Pillai, Deepa and Leena Dam, ‘Saga of Migrant Workers in India: Measures to Strengthen Social Security’ (SSRN Scholarly Paper ID 3784814, 30 December 2020) Abstract: COVID-19 pandemic has thrown up bitter colors when India witnessed the large scale gory sage of reverse internal migration of unorganized workforce. As compared to intercontinental migration the degree of internal migration is twice. Displacement, lockdowns, loss of employment, starvation and social distancing provoked a frenzied course of mass return for internal migrants in India and other parts of the world. In India there is a peculiar trend of unorganized workforce migration. Out of 29 states and 7 union territories, few states dominate where migrants flock for seeking livelihood. The fleeing of migrants to their inherent origin has weakened the economic activities towards slowdown in the economic growth. This thematic review paper discusses the problems of the internal migrants and their state during and post lockdown announcements in India. The data included extracts of articles, opinions and reviews for which codes were recognized which lead to formulation of research themes. The review also highlights government interventions in addressing the challenges confronted by the internal migrants with social security. This study proposes an arrangement as migrant exchange at state level for efficient policy formulation and accomplishment of social security standards.
Pillai, Priya, ‘COVID-19 and Migrants: Gaps in the International Legal Architecture?’ in Barrie Sander and Jason Rudall (eds), Opinio Juris Symposium on COVID-19 and International Law (March-April 2020) Extract from Introduction: This post raises a few basic questions concerning the legal protection of migrants during a pandemic, for further analysis. What is the impact of this global pandemic on legal obligations of states, and how does this relate specifically to migrants? There are multiple overlapping legal regimes, including international human rights law, refugee law, and international health law. It is hoped that these legal regimes will be able to reinforce rights of the most vulnerable, but are there gaps in protection?
Pîrvu, Eleodor, ‘Asylum Systems in the Context of the Pandemic Situation’ (2020) 14(2) Fiat Iustitia 48–60 Abstract: The current pandemic, caused by the rapid transmission of COVID-19 and the infection ofa great number of people worldwide, has direct consequences on the way EU asylum and return rules are implemented, as well as a disruptive effect on resettlement. Urgent action is needed to support Member States, providing them with guidance on how EU rules can be applied flexibly,so as to ensure the greatest possible continuity of procedures and, at the same time, the full protection of citizens’ health and rights. Even in an emergency situation adopted by a Member State, individual fundamental rights must be safeguarded. The Commission will be forced to fully acknowledge the difficulties that Member States are currently facing. Practical solutions must beprovided in any guidelines drafted and decisions taken at European level, taking into account the legitimate constraints of the Member States. Any measures taken in the area of asylum, resettlement and return will be directly related to the health protection measures introduced by Member States to prevent the spread of coronavirus. Particular attention will be paid to vulnerable people, especially unaccompanied minors, and families.
Politi, Emanuele, Antoine Roblain and Laurent Licata, ‘Are We Really Going to Get out of COVID-19 Together? Secured Legal Status and Trust Among Refugees and Migrants’ (2023) 11(1) Journal of Social and Political Psychology 45–59 Abstract: Building up on pre-existing vulnerabilities and social exclusions, refugees and migrants are disproportionately suffering from the negative effects of the COVID-19 outbreak. Insecure legal status is an additional stressor that may accentuate social cleavages and ultimately impair their trust in host society and institutions. Based on a diverse sample of refugees and migrants in Belgium (N = 355), the present study investigates direct and indirect effects of legal status—measured as the type of residence permit held by participants—on social and political trust during the COVID-19 outbreak. Secured legal status was positively associated with social and political trust directly, and indirectly via a serial mediation composed by two cumulative stages. First, participants with a more secured legal status experienced less material difficulties to cope with the pandemic (i.e., first material stage). Second, participant who experienced less material difficulties identified more with the host society (i.e., second symbolic stage). In turn, reduced material difficulties and increased identification with the host society were both positively associated with social and political trust. Our findings advocate for securing legal status of refugees and migrants to help societies cope cohesively with the long-lasting effects of the COVID-19 outbreak.
Pranevičienė, Birutė, Violeta Vasiliauskienė and Harald Scheu, ‘COVID-19 Restrictions of Freedom of Movement in Czech Republic and Lithuania: Legal Basis and Proportionality’ (2021) 12 Czech Yearbook of Public and Private International Law 227–245 Abstract: The article analyzes the legal measures that were taken in connection with the COVID-19 pandemic and led to a massive restrictions of the freedom of movement in Lithuania and the Czech Republic. The authors focus on the legal basis of emergency measures in both states, the specific executive practice and the difficult role of the judiciary. Relevant Lithuanian and Czech legal measures, such as the closure of borders for different categories of persons, including citizens, quarantine measures restricting free movement between municipalities and districts or similar isolation measures, affected both the internal and the external dimensions of free movement.
Puspita, Natalia Yeti, ‘Revisiting State Sovereignty Interpretation in Managing Rohingya Refugee Arrivals Amid the Covid-19 Pandemic in Indonesia’ (2024) 25(2) Asia-Pacific Journal on Human Rights and the Law 127–152 Abstract: There is a controversy between the application of the principle of state sovereignty and the principle of non-refoulement regarding the entry of Rohingya refugees into Indonesia during the covid-19 pandemic. The results show that the covid-19 pandemic is a global threat to human security, regardless of citizenship status. Thus, everyone needs protection and guarantees of human rights, including refugees. Even though Indonesia is not obliged to accept refugees because it has not ratified the 1951 Refugee Convention and its 1967 Protocol, and immigration is tightened to prevent the spread of the covid-19 pandemic, Indonesia continues to do so. Indonesia’s policy justification is based on its interpretation of state sovereignty as a humanitarian and non-discriminatory protection authority.
Raghuram, Parvati and Gunjan Sondhi, ‘The Entangled Infrastructures of International Student Migration: Lessons from Covid-19’ in Anna Triandafyllidou (ed), Migration and Pandemics: Spaces of Solidarity and Spaces of Exception (Springer, 2022) 167–184 [OPEN ACCESS E-BOOK] Abstract: The impact of Covid-19 on international student mobility has been noted by policy makers and the media ever since the global lockdowns started in early 2020. However, most of the concerns focus on what the drop in student mobility means for the finances of the countries and educational institutions to which students would have moved; there has been little exploration of the students’ own experiences of Covid-19. This chapter explores the entangled education, migration, and finance infrastructures that shape international student migration and how they failed the students during the pandemic. It draws on questionnaires and interviews conducted with international student migrants from a range of countries and who are registered to study in the UK to point to how migration policies, consular services, educational institutions, and travel industry all affected students. It points to how these components are entangled, and that their failure during the pandemic led to particular forms of immobility and mobility, leaving many students stuck in uncertain and precarious situations. The chapter ends by suggesting that reading the pandemic as an acute unprecedented event is important but inadequate. It is also a window into the everyday failures that the entangled infrastructures of international student mobility posed before Covid-19, how these came to be and who benefited from these infrastructures.
Ramji-Nogales, Jaya and Iris Goldner Lang (eds), Migration in the Time of COVID-19: Comparative Law and Policy Responses (2021) OPEN ACCESS BOOKNote: individual chapters in this book are listed in this section as articles in Frontiers in Human Dynamics and Frontiers in Political Science_
_Book summary: This Research Topic aims to provide one of the first comparative analyses of migration law and policy responses to the COVID-19 pandemic. In response to the pandemic, governments have reinstituted border controls in the Schengen region and any ‘non-essential travel’ to the EU has been suspended. The U.S. government has instituted travel bans on non-citizens from a range of countries. Asylum seekers have been refused entry in violation of international refugee law, and advocates have filed lawsuits demanding the release of immigration detainees in the face of the risks posed by COVID-19. Other migrant-receiving states such as Australia and Israel have also responded in similar ways. Bringing together experts in migration law from Australia, Europe, Israel, and North and South America, the authors will begin to map the range of responses, identify common patterns, and offer predictions and solutions.
Raposo, Vera Lúcia and Teresa Violante, ‘Access to Health Care by Migrants with Precarious Status During a Health Crisis: Some Insights from Portugal’ (2021) 22(4) Human Rights Review 459–482 Abstract: In March 2020, the Portuguese Government issued a remarkable regulation by which irregular migrants who had previously started the regularization procedure were temporarily regularized and thus allowed full access to all social benefits, including healthcare. The Portuguese constitutional and legal framework is particularly generous regarding the right to healthcare to irregular migrants. Nevertheless, until now, several practical barriers prevented full access to healthcare services provided by the national health service, even in situations in which it was legally granted. This decision is not only remarkable in light of the fulfilling of migrants’ rights to health, as imposed by international commitments assumed by, but also in view of the fight against COVID-19. The decision is grounded both on human rights and in public health reasons. The paper is divided in two main parts. In the first one, it analyzes national State obligations with regard to healthcare provision to migrants in irregular situation. In the second part, it analyzes the Portuguese solution, using this case study to discuss the possible mechanisms to comply with such obligations.
Rehaag, Sean, Janet Song and Alexander Toope, ‘Never Letting a Good Crisis Go to Waste: Canadian Interdiction of Asylum Seekers’ (2020) 2 Frontiers in Human Dynamics Article 588961 Abstract: This article examines two moments of crisis at Canada's border with the United States: the aftermath of September 11th, 2001 (“9/11”) and the COVID-19 pandemic. The Canadian government leveraged both crises to offshore responsibilities for asylum seekers onto the United States. In the first case, Canada took advantage of U.S. preoccupations with border security shortly after 9/11 to persuade the United States to sign the Canada-U.S. Safe Third Country Agreement (“STCA”)—an agreement that allows Canada to direct back asylum seekers who present themselves at land ports of entry on the Canada-U.S. border. In the second case, Canada used heightened anxieties about international travel during the COVID-19 pandemic to persuade the United States to block irregular border crossings that asylum seekers were increasingly using to circumvent the STCA. After reviewing Canada's successful use of these moments of crisis to persuade the United States to take on additional responsibilities for asylum seekers for whom Canada would have otherwise been responsible, the article discusses a recent Canadian Federal Court decision that may make all this political maneuvering moot. This decision found that Canada cannot send asylum seekers back to the United States without violating constitutional rights to life, liberty, and security of the person. Given past practice, however, we can expect the Canadian government to continue to pursue avenues to persuade the United States to take on additional responsibility for asylum seekers—and moments of crisis will be important drivers for those efforts.
Roksandić, Sunčana, Krešimir Mamić and Robert Mikac, ‘Migration in the Time of COVID-19: Policy Responses and Practices in Croatia Concerning the Western Balkan Routes and Readiness for the Post-COVID-19 Society in Which the Right to Health Care for the Most Vulnerable Is Guaranteed’ (2021) 3 Frontiers in Human Dynamics Article 595189 Abstract: This research article aims to provide answers on how COVID-19 pandemics influenced migration law, policy responses, and practices in Croatia, particularly concerning migrants on the Western Balkan route. Throughout the EU, governments have reinstituted border controls in the Schengen region and any ‘nonessential travel’ to the EU has been suspended. In this study, it is analyzed whether asylum seekers have been denied entry in violation of international refugee law and whether immigration officers held detainees because of the risks posed by COVID-19 alongside Croatian borders. In addition, the study addresses the question whether and to what degree the COVID-19 pandemic influenced the overall approach toward migrants and their access to services, primarily the right to health care. Also, it is researched whether facilities for migrants and asylum seekers have appropriate health care and whether the measures imposed by the Croatian Institute of Public Health and by the National Emergency Response Team are respected when dealing with migrants. In addition, it is researched whether the EU, UN, and WHO policies and recommendation concerning COVID-19 and migrants, where applicable, are respected in the Republic of Croatia and whether specific policies concerning migrants and COVID-19 were introduced. All legislation, policy responses, and practices will be critically approached and examined. The text will make proposals for implementation of best practices and policy responses for migrants in the context of COVID-19. All statistical data that are necessary for this research are requested from the Ministry of the Interior of the Republic of Croatia.
Sadler-Venis, Jennifer, ‘COVID-19: Emergency Travel Bans Raise Immigration Concerns’ [2020] (Apr/May) IBA Global Insight 9 Abstract: Discusses human rights issues with the trend to ban or restrict immigration during the coronavirus pandemic, focusing on US President Donald Trump's travel restrictions. Considers the proportionality of such measures, in view of World Health Organisation advice.
Sahloul, Adham and Diana Rayes ‘National Security Lessons Regarding the Disproportionate Impact of COVID-19 on Migrant and Refugee Communities in the United States and Canada: A Bilateral Approach’ in Leah West, Thomas Juneau and Amarnath Amarasingam (eds), Stress Tested: The COVID-19 Pandemic and Canadian National Security (University of Calgary Press, 2021) 245 (open access E-book) Introduction: The COVID-19 pandemic has illuminated the public health, economic, and political challenges facing minority communities. These challenges are particularly pronounced in high-income countries that are home to large migrant and refugee communities, such as the United States and Canada. Evidence revealing the disproportionate impact of the COVID-19 pandemic on migrants worldwide and the historic, cultural, and economic ties between the United States and Canada, the world’s deepest bilateral relationship, presents opportunities to address this regional dynamic through unique channels of bilateral co-operation. Using a comparative approach, this chapter first examines how COVID-19 has disproportionately impacted migrant and refugee communities in the United States and Canada. We then assess how these outcomes could have been mitigated with higher-quality data, and how data can be integral to preventing future national and global security threats. We conclude by proposing enhanced bilateral co-operation when it comes to addressing health disparities among migrant communities.
Sakharina, Iin Karita, ‘Situation and Conditions of International Refugees in the Pandemic of COVID-19 (Law Review of International Refugees)’ 2020 2(2) Awang Long Law Review 56-63 Abstract: Refugees are people who leave their countries and go to other countries to ask for protection. During the Covid-19 pandemic, refugees also became one of the groups affected by the spread of the virus that has claimed many lives almost throughout the country and became a global disaster. Countries that are affected by the spread of this virus are very vulnerable, both susceptible to disease, exposed to the virus are also vulnerable to eviction, especially for a number of countries that apply lockdown. Therefore there needs to be a study that examines the protection and efforts that can be made by countries that are currently accommodating refugees as well as UNHCR as a UN organization that deals with this refugee problem, so that refugees remain protected during this pandemic.
Schotland, Sara, ‘A Plea to Apply Principles of Quarantine Ethics to Prisoners and Immigration Detainees During the COVID-19 Crisis’ (2020) 7(1) Journal of Law and the Biosciences Article lsaa070, published 24 August 2020 Abstract: Individuals who are detained in prisons and immigration centers are exposed to a high risk of illness and death from COVID-19. These facilities generally contain both isolation units for those who are already infected and quarantine units for those who are suspected of having the virus.1 Even where individual inmates and detainees are not personally suspected of having the virus (such as would require assignment to the quarantine unit within the facility), virtually all those confined are at risk, due to close contact from overcrowding and multiple challenges in maintaining sanitation. Under these circumstances I argue for facility-wide applicability of principles of Quarantine Ethics that provide for adequate medical treatment and safe, healthful conditions of confinement.
Shaw, Jo, ‘Citizenship and COVID-19: Syndemic Effects’ (2021) 22(8) German Law Journal 1635–1660 Abstract: This article begins the task of outlining the impacts of the COVID-19 pandemic in relation to matters of citizenship, using what is termed a ‘syndemic analysis.’ This type of analysis places both the pandemic and citizenship in their wider contexts. The synergistic or intersectional thinking encouraged by the characterization of the pandemic as a syndemic, which links together health, socio-economic issues, and political questions, is useful for highlighting how much more vulnerable to many of the negative impacts of the pandemic in the sphere of citizenship are those who are also more vulnerable both to catching and suffering more seriously from the virus and to experiencing negatively the externalities of the measures taken to restrict social contact by shutting down economies. While the scope of the review is relatively broad and encompasses many different domains of ‘pandemic life,’ what emerges from the analysis are important insights into how many of the impacts of the pandemic in fact operate at the intersection of citizenship and constitutional law and thus play out in the form of changes in relation to constitutional citizenship, both as ideal and as practice. The article takes an important step towards developing the use of constitutional citizenship as a framing device for understanding citizenship as putative full membership in a given society.
Shen, Lucas, ‘International Trafficking in Persons and the Global Spread of Diseases: Cross-Country Evidence from Two Modern Pandemics’ (SSRN Scholarly Paper ID 3603201, 20 May 2020) Abstract: This paper exploits cross-country differences in coastline distances (and drug trafficking inflows) to estimate the relative risk of trafficking in persons (TIP) inflows, finding smoking gun evidence that countries with higher risk of TIP inflows have higher local confirmed cases during the H1N1 and COVID-19 pandemic. Institutional and health factors mainly influence confirmed numbers through the TIP channel, with their effects largely muted in the second stage. In addition, once the instrumented risk of TIP inflow is controlled for, migration flows, including flows originating from the pandemic source country, is no longer positively associated with local confirmed numbers. Countries with a larger dependence on tourism in the export sector however, face systematically higher confirmed numbers. Controlling for COVID-19 testing numbers also produces the most precise estimates, indicating that the accuracy of reported numbers are indeed increasing in testing efforts.
Simic, Olivera and Kim Rubenstein, ‘The Challenge of “COVID-19 Free” Australia: International Travel Restrictions and Stranded Citizens’ (2023) 27(5) The International Journal of Human Rights 830–843 Abstract: This paper uses Australia as a case study to analyse restrictions on international movement during the COVID-19 pandemic. Restrictions on inbound and outbound travel have been a key tool deployed by governments across the globe to suppress the COVID-19 pandemic. We use ‘COVID zero’ Australia as a case study to assess an extreme response to restricting international movement. We look at the recent complaint launched before the United Nations Human Rights Council in Geneva. The action was raised with the support of a group of Australian citizens stranded abroad with the assistance of the expert in Australian constitutional law who is the second author of this paper. We argue that the measures implemented by Australian governments to effectively eliminate COVID-19 domestically have provided insufficient consideration of, and alternatives to, the current system’s failure to facilitate essential international travel. For this reason, Australia’s framework for restricting international movement lacks proportionality and necessity from the perspective of human rights and freedoms.
Simović, Miodrag N and Jelena Kuprešanin, ‘Protection of Human Rights in Bosnia and Herzegovina- Migration Management Challenges in Society Recovering from the Covid-19 Pandemic’ (2022) 6 EU and Comparative Law Issues and Challenges Series (ECLIC) 576–590 Abstract: Migration management, among others, is one of the challenges Bosnia and Herzegovina and the Western Balkan countries have faced in recent years. The uncertain and complex situation has been exacerbated by the corona virus pandemic, and existing material and human resources are now focused on repairing its consequences. The end of the pandemic remains uncertain, social problems are becoming more complex, and systemic support is needed for a growing number of different vulnerable categories in the country. The protection of human rights and fundamental freedoms is imperative, especially in times of crisis. Although significant activities have been implemented, they are still insufficient to adequately respond to migration management. The support of the international community remains necessary. Multisectoral action, coordination and sharing of experiences should be intensified. The European Commission’s 2021 Report for Bosnia and Herzegovina pointed to very limited progress in migration and asylum management and the need to significantly improve this area, ensure effective coordination and provide sufficient and adequate accommodation capacity. The response to the crisis during the outbreak of COVID-19 was assessed as satisfactory by the European community, and greater spread and more severe consequences for the migrant population were prevented. According to some reports, the rights of minorities and asylum seekers continue to be a serious concern for human rights in Bosnia and Herzegovina. Unaccompanied children face specific challenges and vulnerabilities, and their protection and adequate response to their needs is one of the priorities for future action. Media coverage of migrants needs to be reviewed and directed in a way that is in line with the human rights of vulnerable categories and advocating the necessity of their protection. The media is one of the key links in monitoring the protection of human rights, but also in focusing on areas that require urgent action. Preventive activities should become an integral part of the strategic directions of local and national governments, and the support of the international community, cooperation, adequate assessment and protection of the best interests of all citizens are a prerequisite for social security in Bosnia and Herzegovina.
Sirleaf, Matiangai, ‘Entry Denied: COVID-19, Race, Migration, and Global Health’ (2020) 2 Frontiers in Human Dynamics Article 599157 Abstract: This essay uses the novel coronavirus pandemic as an entry point to explore the intersections between race, migration, and global health. The pandemic is simultaneously reviving stereotypical colonial imaginations about disease directionality, but also challenging racialized hierarchies of diseases. This essay illuminates how the racialization of diseases is reflected in historic and ongoing United States’ migration law and policy as well as the global health law regime. By demonstrating the close relationship between often separately treated areas, the essay clarifies underlying currents in global health and migration law and policy that stem from fears of the racialized other. Rendering these intersections visible creates avenues for rethinking and reshaping both theory and praxis toward anti-subordination efforts.
Smith, Patriann and S Joel Warrican, ‘Race(Ing) towards Legal Literacy for (Im)Migration amidst COVID-19’ (2020) 5(1) International Journal of Multidisciplinary Perspectives in Higher Education 141–149 Abstract: Historically and contemporarily, immigration laws have disproportionately affected immigrant faculty and students of color because they often inadvertently function as racial policy. (Critical) legal literacy enacted via a bottom-up approach can help to address such laws. Higher education institutions, organizations, labor unions and associations are uniquely positioned to use critical legal literacy as a tool of advocacy for immigrant faculty and students of color amidst the adverse effects of COVID-19.
Tepepa, Martha, ‘Public Charge in the Time of Coronavirus’ (SSRN Scholarly Paper ID 3571721, 8 April 2020) Abstract: The United States government recently passed legislation and stabilization packages to respond to the COVID-19 (i.e., coronavirus disease 2019) outbreak by providing paid sick leave, tax credits, and free virus testing; expanding food assistance and unemployment benefits; and increasing Medicaid funding. However, the response to the global pandemic might be hindered by the lassitude of the state and the administration’s conception of social policy that leaves the most vulnerable unprotected. The administration’s ‘zero tolerance’ immigration campaign poses public health challenges, especially in the prevention of communicable diseases. In addition to the systemic obstacles noncitizens face in their access to healthcare, recent changes to immigration law that penalize recipients of some social services on grounds that they are a public charge will further restrict their access to treatment and hinder the fight against the pandemic.
Triandafyllidou, Anna, ‘Spaces of Solidarity and Spaces of Exception: Migration and Membership During Pandemic Times’ in Anna Triandafyllidou (ed), Migration and Pandemics: Spaces of Solidarity and Spaces of Exception (Springer, 2022) 3–21 [OPEN ACCESS E-BOOK] Abstract: This chapter starts by introducing the policy and political context of the Covid-19 crisis, surveying some of the changes it brought to immigration policies in different countries: border closures for non-citizens; disruption for temporary migrants; and special arrangements for essential (migrant) workers like doctors and nurses or farmworkers to ensure emergency wards are staffed and the food processing chain is not disrupted. The chapter critically reviews these changes and discusses the main analytical and policy questions which the book addresses. It investigates how the pandemic forces us to rethink notions like membership, citizenship, belonging, but also solidarity, community, essential services or ‘essential’ workers. Migrants expose tensions and contradictions within these concepts and values. Citizens (who may carry the virus) cannot be banned from return to the homeland as they travel internationally or domestically; by contrast, temporary migrants or asylum seekers may be locked in their dormitories because of an outbreak in their midst to prevent spread and protect the citizens. This chapter shows that the specific tensions of the global pandemic for migration are linked to the more long-term tensions of globalisation, migration, and the nation-state, suggesting that the pandemic is but a magnifying lens. The chapter concludes with an overview of the book’s contents.
‘Trump Administration Further Restricts Asylum Seekers at the Southern Border Through the Migrant Protection Protocols, Asylum Cooperative Agreements, and COVID-19 Procedures’ (2020) 114(3) American Journal of International Law 504–511 Abstract: During the spring of 2020, the Trump administration continued efforts to reduce the ability of individuals to seek asylum in the United States, particularly at its southern border. The administration received temporary authorization from the U.S. Supreme Court to put into effect the Migrant Protection Protocols (MPP)—an arrangement that requires non-Mexican asylum seekers to wait in Mexico for the duration of their immigration proceedings—while the administration petitions the Court to reverse a lower court decision enjoining the MPP’s implementation. The administration has also sought to implement its asylum cooperative agreement with Guatemala, whereby the United States sends certain non-Guatemalan migrants to Guatemala to apply for asylum there. The legality of this agreement is presently being challenged, and, in March of 2020, the COVID-19 pandemic caused Guatemala to stop accepting flights of migrants sent by the U.S. government. Citing COVID-19, the Trump administration itself issued various suspensions of entry into the United States of noncitizens during the spring of 2020, including with respect to asylum seekers at the U.S.-Mexico border.
Turanjanin, Veljko, ‘Migrants and Safety in Serbia During and After Coronavirus Pandemic’ (2022) 6 EU and Comparative Law Issues and Challenges Series (ECLIC) 410–429 Abstract: The removal of internal borders and the establishment of freedom of movement are important aspects of the EU’s history, but they are not accompanied by a uniform legal system. The migrant dilemma isn’t going away, and the pattern and character of these movements have evolved dramatically over the previous six decades. The author of this article addresses the issue of migrants’ position in Serbia’s rural areas during the coronavirus pandemic. During the period of emergency, Serbia enacted policies that imprisoned migrants in detention centres, effectively depriving them of their liberty. According to the government’s reasoning, it was done to protect migrants’ health. Given the rising violence between migrants and the local people, the question is whether the state intended to safeguard migrants’ health or citizens from migrants in this manner. The author conducted a survey in these areas, explains the findings in depth, and draws a conclusion based on his findings. The paper is comprised of several units. In the first place, the author briefly explains the state of emergency in Serbia and gives an overview of migration centers in Serbia. The central part of this paper deals with the research between citizens in relation to migrants, both in their general attitude and in terms of the relationship between migrants and crime. Residents of migrants’ areas were surveyed, as the author believed thought that due to the location of migration centres, they would be most affected by waves of migrants and possibly, crimes committed by migrants. The author set two initial hypotheses and both were confirmed, and according to the research, the population has a negative attitude towards migrants. At the same time, most respondents show distrust of the state’s claim that migrants are imprisoned for their health. The author believes that this move by the state at that time was a hasty reaction in order to prevent the uncontrolled movement of migrants and the potential spread of the infectious coronavirus disease. In the same time, the author tries to answer to the question about the migrants’ position today and in the near future.
Van Hout, Marie Claire, ‘Environmental Health Rights and Concepts of Vulnerability of Immigration Detainees in Europe Before and Beyond COVID-19’ (2023) 15(2) Journal of Human Rights Practice 621–645 Abstract: The global COVID-19 health emergency has radically changed detention spaces, by heightening state and provider obligations to provide humane conditions and protect those detained against disease and subsequent ill-health. Using a socio-legal lens, this policy and practice note focuses broadly on the balance of European immigration detention regulations, and the actual conditions and treatment of immigrant detainees, putting an emphasis on developments before and after COVID-19. The special protections afforded to detainees assessed as vulnerable is unclear in the Global Compact for Safe, Orderly and Regular Migration. While cognisant of aspects of legal positivism by outlining relevant legal provisions and extant European Court of Human Rights (ECtHR) jurisprudence where conditions of detention have violated Article 3, a socio-legal argument is presented around state obligations to protect the health of all immigration detainees; the challenges in using simplistic/categorical definitions of vulnerability; and the imperatives to broaden considerations to include health vulnerability in the context of contagion and future pandemics. By analogy extant ECtHR jurisprudence on the rights of prisoners relating to right to health and disease mitigation (human immune-deficiency, tuberculosis) may offer additional protections. Broad consideration of environmental health factors in light of threats of disease in detention spaces warrant further consideration when establishing the threshold of the severity of conditions and when assessing detainee vulnerability (not limited to age, gender or health status). A public health rights-based argument can shape effective immigration detention policy reform by enhancing protective parameters based on broad definitions of health vulnerability within immigration detention spaces.
Veraldi, Jacquelyn D and Dimitry Kochenov, ‘EU COVID Certificate: A Vehicle of Arbitrary Restrictions’ [2021] (October) EU Law Live (forthcoming)) Abstract: Boasting numerous positive pretexts underpinning its introduction, the EU COVID Certificate is not such a positive development, we demonstrate. Doubt can be cast on the suitability of the COCVID Certificate in facilitating freedom of movement; an extreme fragmentation remains when it comes to cross-border travel rules in the EU. This fragmentation, caused by the violations of the Treaties by numerous Member States, is not acted upon by the Commission. Instead of safeguarding EU citizens’ rights, it seems to rejoice in the ability of the new Regulation introducing the EU Digital COVID Certificate to harm these rights: seemingly a legislative carte blanche for arbitrariness and abuse of power. Doubt can also be shed on the public-health asserted grounds for excluding non-EMA vaccines from the mutual recognition obligation in the Regulation. Member State restrictions on cross-border movement raising doubt on their compatibility with EU law have so far gone unchallenged, yet the DCC Regulation left broad scope for the implementation of arbitrary, discriminatory or disproportionate restrictions on cross-border movement.
Wallace, Simon, ‘Untangling Deportation Law from National Security: The Pandemic Calls for a Softer Touch’ in Leah West, Thomas Juneau and Amarnath Amarasingam (eds), Stress Tested: The COVID-19 Pandemic and Canadian National Security (University of Calgary Press, 2021) 231 (open access E-book) Extract from Introduction: There is a significant overlap between national security law and deportation law. Non-citizens, even refugees and permanent residents, found to be terrorists, members of organized criminal groups, spies, criminals, or money launders can be declared “inadmissible” and deported from Canada. For the government, deportation is a security-enforcement tool. This chapter examines how the COVID-19 pandemic impacted CBSA’s ability to enforce deportation orders. Contrary to public reports and statements from government officials, I find that the pandemic significantly compromised CBSA’s ability to deport people. At its core, deportation is a forceful process. Deportations happen because CBSA— using a network of jail cells, enforcement officers, and coercive tools—gets people onto planes. The pandemic, work-from-home rules, and reduced air travel all limited CBSA’s ability to be coercive. As a result, it deported substantially fewer people. However, CBSA did not “down tools” in the pandemic; it retooled. CBSA used the pandemic as an opportunity to assume a more nimble, effective, and forceful deportation posture for the post-pandemic world.
Walpole, Samuel and William Isdale, ‘COVID-19, the Principle of Legality and the “Legislative Bulldozer” of the Biosecurity Act 2015 (Cth)’ (2021) 32 Public Law Review 287–290 Abstract: The COVID-19 pandemic has prompted wide-reaching and stringent public health measures, many of which draw their legal authority from the framework provided under the Biosecurity Act 2015 (Cth). Perhaps the most controversial measure has been the determination made by the Minister for Health and Aged Care (the Minister) under s 477 of the Biosecurity Act on 30 April 2021 that, for a period of two weeks, it would be prohibited for a person to enter Australian territory by aircraft without an exemption if that person had been in India within 14 days of the aircraft’s scheduled date of departure. Following the making of the determination, the applicant, Mr Newman, brought proceedings in the Federal Court challenging the validity of the determination and the statutory provision under which it was made. Mr Newman’s application raised a number of arguments, including that there existed in the Commonwealth Constitution an implied freedom of all citizens to enter Australia. Owing to the time limited nature of the determination, the Federal Court ordered that the hearing of grounds that did not involve a constitutional question be expedited.On 10 May 2021, in Newman v Minister for Health and Ageing (Newman), Thawley J dismissed the challenges to the validity of the determination based on administrative law grounds, giving extempore reasons. This note focuses on one of these grounds, which contended that – in accordance with the principle of legality – the Biosecurity Act had not abrogated the fundamental common law right of citizens to re-enter their country of citizenship with clarity sufficient so as to render the determination valid.
Walters, Ashley, Taryn Painter and Heidi Meyers, ‘“I Don’t Know What Tomorrow Will Bring”: Understanding COVID-19’s Impact on the United States’ Stateless Population’ (2023) 5(2) The Statelessness & Citizenship Review 186–201 Abstract: In March 2020, COVID-19 was declared by the World Health Organisation (‘WHO’) as a global pandemic. Since the WHO’s declaration, it has become increasingly clear that the most vulnerable communities have experienced the brunt of the pandemic. Though race, ethnicity and economic status are considered in a majority of reports on the social, physical and financial impacts of COVID-19, there is little to no information on the impact of COVID-19 on stateless communities within the United States (‘US’). This research endeavours to add to the understanding of statelessness in the US by determining the impacts of COVID-19 on stateless people in the US through a survey scoping project. Through anonymous questionnaires completed by stateless individuals (n=19) in the United States, this study explores how stateless individuals have been impacted by the pandemic, including experiencing economic hardships, mental health challenges, physical health concerns and issues with documentation and legal status.
Zhang, Zheng, ‘Counterterrorism in the Post-Epidemic Era’ (SSRN Scholarly Paper No 4169237, 1 April 2022) Abstract: The global outbreak of the COVID-19 epidemic in 2020 has shifted the world’s focus from counter-terrorism to epidemic prevention, yet the act of counter-terrorism cannot be ignored. This paper first attempts to understand Jihad from the perspective of Islamic law and then analyzes possible post-epidemic acts of terrorism. It then focuses on the FTF, not only in terms of the status of its members but also in terms of the pre-epidemic preventive measures taken by states, such as deprivation of citizenship or nationality. However, it is worth considering whether prohibiting FTFs from returning to their home countries by depriving them of their citizenship or nationality in an epidemic is a violation of their right to vaccination. Finally, the question of whether it is appropriate for the military to take over counter-terrorism operations that would otherwise belong to the police is explored.
Zinchenko, Av, ‘Japan’s Revised Immigration Law of 2018 and Its Application After the COVID-19 Pandemic’ (2023) Current Issues in the Study of History, International Relations and Cultures of the Eastern Countries 91–96 Abstract: One year before the COVID-19 pandemic, the Japanese government revised its immigration law to attract new foreign workers and deal with labor shortages in key sectors. In April 2019, the revision went into effect, and since then, Japan has been accepting foreign workers under two types of ‘specified skills’ visas 特定技能 tokutei ginō. This article is devoted to the question how the Covid-19 pandemic has affected the adoption of the new immigration law and what impact this law may have on Japanese society after the end of the Covid-19 pandemic.
Zlătescu, Irina Moroianu and Alexandra Bucur-Ioan, ‘Current Challenges On Migration, Artificial Intelligence And The Covid-19 Pandemic’ (2020) 14(2) Fiat Iustitia 31–36 Abstract: The increase in technical possibilities in recent years has made artificial intelligence an important factor in managing migration. The article presents the current challenges related to migration management, such as the use of artificial intelligence and the consequences of the COVID-19 pandemic. The use of new technologies brings new opportunities for performances, which are used for the efficient management of migratory flows, as well as for the prevention of COVID-19 alien disease, thus states adapting their systems to the current situation with the help of artificial intelligence.
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