Blog post by Emilie McDonnell, a DPhil in Law candidate at Hertford College, University of Oxford and the 2016 Tasmanian Rhodes Scholar. Emilie is a qualified lawyer from Australia and an Adjunct Researcher at the University of Tasmania School of Law. She is also an RLI Research Affiliate.
The COVID-19 pandemic has sent shockwaves throughout the world, putting millions of people at risk, with the death toll and confirmed cases ever-increasing. In an effort to contain the virus, states have introduced sweeping travel restrictions, from border closures and travel bans to the suspension of visa waivers and visa services, as well as internal movement restrictions, including full lockdowns and quarantine for incoming passengers.
Highly mobile travellers, such as tourists and businesspersons, have been forced into immobility, unable to travel freely across borders. Some are stuck in limbo, unable to fly back home, while others are separated from their family and friends.
However, for millions of people forced immobility and family separation are not new. Many individuals and groups are routinely excluded and discriminated against in the global (im)mobility regime; targeted by the externalisation strategies of destination states that are designed to contain certain (would-be) migrants and deny their freedom of movement.
Given the impact of COVID-19 on human movement, it is pertinent to reflect more generally on how the global mobility regime is constructed, its incompatibility with several human rights, and how to limit the negative and counterproductive effects of COVID-19 restrictions. As the global community works to overcome this pandemic, we are presented with a unique opportunity to challenge and re-consider the global (im)mobility regime.
The Mobile and Immobile
People are now being given a sense of the forced immobility many individuals from low-income and/or refugee-producing states experience as part of their everyday lives. These individuals have been denied freedom of movement well before COVID-19.
The global mobility infrastructure, as Professor Spijkerboer terms it, stratifies individuals into two groups: the privileged that can access safe, quick and cheap travel and the excluded who are subject to stringent visa checks and longer queues, with travel being costly and high risk (Spijkerboer 2018).
Through visa requirements, states exercise their right to control the entry of non-nationals, facilitating selective mobility. Visa requirements often target refugee-producing, unstable, and low-income states. Those requiring a visa become prisoners of their nationality, as well as race, class and gender; having to prove they are the exception to the rule and do not pose a risk in order to be able to travel.
In comparison, visa-free travel is granted most frequently to high-income, Western, democratic states, being highest amongst OECD citizens (Czaika et al 2017). Privileged travellers with access to the global mobility regime enjoy the full protection of international law, with greater protection of their rights to life, family life, health, housing and work (Spijkerboer 2017). Rather than being labelled ‘migrants’, they are the ‘tourist’, the ‘expat’, or the ‘businessperson’.
This infrastructure raises clear compatibility issues with several human rights, including the right to leave any country, right to seek asylum, right to life, right to equality and non-discrimination, and non-refoulement obligations. Despite states routinely portraying their restrictive measures as saving lives and combatting people smuggling and trafficking etc, perversely, the regime itself contributes to the deadly, dangerous flight of migrants. Visa requirements as enforced by carrier sanctions, where airlines and other transport operators deny boarding to those without a valid visa or passport to avoid penalties, mean that migrants lacking such documentation cannot simply get on a plane or ferry. With regular routes closed off, some migrants are deflected into irregular, dangerous modes of travel (Czaika and Hobolth 2014).
Access to the global mobility infrastructure is closely intertwined with the externalisation strategies of destination states. Destination states, notably Australia, the US and EU Member States (and the EU itself), utilise a range of practices designed to obstruct the movement of asylum seekers, refugees and other migrants and prevent their arrival to state territory, including visas and carrier sanctions, offshore detention and interceptions at sea and on land, often working with states of origin and transit.
COVID-19 Restrictions and Counterproductivity
Externalisation measures are clearly directed at containment. Numerous measures taken in response to COVID-19 also seek to contain (both the virus and people). However, as was shown above, externalisation measures can have perverse effects, with visas and carrier sanctions narrowing lawful, safe travel options. Learning from this, it is critical that COVID-19 mobility and other restrictions are effective and not counterproductive.
The WHO and commentators have emphasised that while international travel restrictions may be temporarily necessary to contain an outbreak and may prove effective once the virus is in the community, blanket travel bans are often ineffective and counterproductive. Travel bans have a significant economic and social impact and may hamper international cooperation and solidarity in a time when the movement of aid and other forms of support, such as health workers, is critical. With many routes closed, those in search of international protection may attempt to enter through alternate, more hidden routes, which is hardly desirable given the need to identify and track those who are infected.
The UNHCR has reiterated that any measures taken by states to restrict entry to protect public health must not deny the right to seek asylum nor result in refoulement. Not only does it violate international law, but it may actually heighten risk, sending such individuals into ‘orbit’ in search of a place of refuge and potentially further spreading the virus. Nonetheless, EU and Schengen states have been restricting access to asylum. For example, Greece and Hungary have suspended the right to seek asylum, while Italy has closed its ports to migrant boats, declaring its own ports to be unsafe due to the virus.
During this pandemic, states must ensure they do not worsen the crisis by acting in a discriminatory manner and breaching the positive obligations they owe to vulnerable groups like migrants, such as failing to evacuate overcrowded camps, release people from immigration detention, or provide access to necessary welfare and support services. States must not exclude or target migrants as they so often do, as the global mobility regime starkly reveals. Failure to protect the lives and health of vulnerable groups during this pandemic will have disastrous consequences, increasing the great loss of life already seen.
As the UN Assistant Secretary-General and UNHCR’s Assistant High Commissioner for Protection Gillian Triggs recently demonstrated, states can secure both public health and the rights of refugees to protection.
The Way Forward
COVID-19 has forced people to change their habits and movements. For many, containment has long been the norm. Moving forward, it should be seriously questioned whether the global (im)mobility infrastructure is compatible with international law and the world we want to live in.
Will inequality and exclusion continue to be normalised? Will some measures introduced to tackle the virus end up being counterproductive due to the political desire to leverage fear against migrants and reinforce the need to halt unwanted migration? Or will externalisation strategies face an overhaul given their primary role in constructing migrant vulnerability and preventing safe and lawful travel?
One can only hope that amongst all the suffering, COVID-19 will cause us to re-think and re-structure this system.
The views expressed in this article belong to the author/s and do not necessarily reflect those of the Refugee Law Initiative. We welcome comments and contributions to this blog – please comment below and see here for contribution guidelines.