Refugee & Asylum Seeker / Immigration Law

Note: literature on labour migration and migrant workers is listed in the Labour Law section.

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.

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.

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

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.

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 1-5
Jurisdiction: Canada

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.

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.

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.

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 198-215
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.

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.

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, 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) 407
Jurisdiction: 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.

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.

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.

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.

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 7
Jurisdiction: 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.

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.

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 17-22
Jurisdiction: 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.

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.

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.

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.

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 16-18
Jurisdiction: 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 563-566
Jurisdiction: 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.

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?

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.

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.

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.

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.

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.

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’ (Texas A&M University School of Law Legal Studies Research Paper, forthcoming, 2021)
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.

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.

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.

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) 240-245
Jurisdiction: 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.

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?

Rehaag, Sean, Janet Song and Alexander Toope, ‘Never Letting a Good Crisis Go to Waste: Canadian Interdiction of Asylum Seekers’ (2020) Frontiers in Human Dynamics: Migration in the Time of COVID-19: Comparative Law and Policy Responses (advance article, published 14 October 2020)
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.

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.

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.

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.

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.

‘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.

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