Refugee & Asylum Seeker / Immigration Law

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

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.

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.

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.

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.

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.

Castellanos-Jankiewicz, Leon,'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, '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.

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. SS 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.

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.

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?

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 Magana 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.

Megret, Frederic, '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 emigres, 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.

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.

Ni Ghrainne, Brid, '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.

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' (SSRN Scholarly Paper ID 3679221, 20 August 2020)
Abstract: An important topic has been neglected in the discussion of ethical issues related to the current Pandemic: unsafe conditions experienced by those who are incarcerated in state or federal prisons or confined in immigration facilities. I argue that principles of Quarantine Ethics addressing the health and safety of those subject to involuntary quarantine should be applied to mitigate the risk that COVID-19 poses to inmates and detainees. These individuals are presumed to have been lawfully detained, thereby excluding the question of the necessity and validity of an order requiring the compulsory quarantine as would apply to an ordinary citizen. However, human rights law remains applicable notwithstanding their status as inmates or undocumented immigrants. Accordingly, these individuals are entitled to safe conditions of confinement to reduce the high risk of their exposure to infectious disease. Judicial caselaw addressing these facilities' obligations to provide medical care is insufficient. I offer recommendations for improving conditions of confinement based on recognition that neither penal nor immigration policies are furthered by unreasonable risk of exposure to the virus. The disproportionate incarceration of people of color makes the topic yet more urgent.

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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