The widespread use of entry restrictions and border closures during the COVID-19 pandemic highlights an increasing trend in which States rely upon securitised borders as a default response to public health and humanitarian emergencies. This post examines the practical significance of the use of border closure exemptions for asylum seekers arriving by air in countries such as Canada, Germany, and the United States, in contrast to the lack of such exemptions in countries such as Australia, Costa Rica, and Uganda. Noting that Australia’s failure to provide humanitarian exemptions to pandemic border closures raises questions regarding its commitment to the international refugee law and human rights regimes, whether there is any appreciable difference between the Australian approach and the approach adopted by States like Germany, Canada, and the United States bears further examination.
Throughout the course of the COVID-19 pandemic, scholars have pointed to the ways in which State restrictions on movement across international borders have made it more difficult for asylum seekers to access refugee status determination (RSD) procedures. States such as Australia have cited health grounds to adopt measures ranging from entry restriction to outright border closure, regardless of whether the affected individuals hold a valid visa. The impact on international travel has been extensive and well-documented, ensnaring many from the Global North in restrictive and increasingly securitised travel regimes typically reserved for those in the Global South.
When Australia closed its international border to all but Australian citizens and Permanent Residents (with limited exceptions) on 20 March 2020, it became one of the few liberal democratic countries to instate the closure without providing an exemption for people seeking asylum. In a recent Policy Brief, the Kaldor Centre for International Refugee Law examined how Australia’s full border closure resembled the closures of countries such as Costa Rica and Uganda, while diverging from others. Though countries including Canada, Germany, and the United States adopted border restrictions and closures, they also explicitly exempted asylum seekers from those closures in recognition that despite the pandemic, people facing persecution, conflict, disasters and violence were forced to seek safety in other countries.
However, does the existence in Canada, Germany and the United States of exemptions to pandemic-related border closures for asylum seekers who arrive in a country by air have any practical effect for those subject to border closures who also lack a visa allowing for travel? Although pre-existing restrictive visa regimes in those States may render border closure exemptions for asylum seekers without visas meaningless, the Australian approach provides an extreme example of restrictions that have also prevented scores of humanitarian visa holders from travelling to the country. The Australian example appears to reflect an approach to refugees and asylum seekers that expands upon an already troubling trend among States in the Global North to prevent people from travelling by air who might seek asylum, despite their protection obligations under international law.
In international law, every person ‘has the right to seek and to enjoy in other countries asylum from persecution’ (Universal Declaration of Human Rights Article 14). Various regional instruments affirm this fundamental right, including the African Charter on Human and Peoples’ Rights, the American Convention on Human Rights, and the Charter of Fundamental Rights of the European Union. Under international refugee and human rights law, States cannot return a person to any country where they are likely to face persecution or other serious harm. Although States have at times insisted that they have the ability to restrict access to asylum for individuals travelling by air, those claims have no legal basis in international law, which requires States to protect individuals from refoulement who are within their ‘territory and subject to [their] jurisdiction.’
Even prior to the pandemic, scholars documented Australia’s increasing use of law enforcement and security-focused practices and rhetoric to immobilise and confine asylum seekers to the Global South. Australia’s universal visa system presented the first barrier to entry for asylum seekers, as the country does not issue visas for the purpose of seeking asylum. Therefore, a person would have to qualify for a different type of visa in order to travel to Australia by air. Once the person landed at an Australian airport and requested asylum, they would typically be subject to an entry screening process to determine whether they would be allowed to formally lodge an asylum application. Yet, Australia’s pandemic border closure upended that system and broadly prevented non-citizens, from travelling to the country without exempting those who might seek asylum, including humanitarian entrants with valid Australian visas.
Although countries like Germany, Canada, and the United States provided exceptions to broad aerial border closures for the purpose of seeking asylum, it is unlikely that those exemptions have enabled potential asylum seekers to travel by air without the existence of some other purpose for travel. Like Australia, neither Germany, Canada, nor the United States issue visas for the purpose of seeking asylum. In fact, each of those States has in place airport arrival procedures that use ‘entry fictions’ to prevent the ‘legal’ entry of a person physically present in the country and similar legal measures to provide a basis for cancelling the visa of a person who raises an asylum claim. This is often accomplished by examining a person’s purpose for travel and evaluating whether that purpose matches the visa held. Therefore, any potential asylum seeker would need to qualify for a visa on grounds other than the asylum claim, such as for study or work, in order to board a flight. Furthermore, it appears that any potential asylum seeker would also then need to qualify for an exemption to COVID-19 border closures on the same grounds as the underlying visa, such as an exempted worker or student, in order to travel to those countries. There does not appear to be any occasion for an asylum seeker who does not already possess (or cannot obtain) a valid visa to travel to Germany, Canada, or the United States and enjoy the formal pandemic border closure exemptions for asylum seekers.
Though the existence of exemptions to these border closures may prevent airport border officials from removing an asylum seeker on health grounds once they have arrived in those countries – something that Australian policy does not do – the practical effect of the securitisation of air travel and development of visa regimes and other obstacles raises questions about whether humanitarian exemptions to COVID-19 related border closures go far enough. If anything, pandemic-related border restrictions have shone further light on the existence of increasingly restrictive border regimes which practically provide almost no relief to humanitarian entrants in the face of persecution, conflict, disasters, and violence that has continued to compel movement across international borders. While Australia’s failure to provide humanitarian exemptions to pandemic border closures provides further evidence of its outlier status in the international refugee law and human rights regimes, the question of whether there is any appreciable difference with States like Germany, Canada, and the United States bears further examination.
Regina Jefferies is an Assistant Professor at Western Washington University, a Scientia PhD Scholar at the University of New South Wales and an affiliate of the Andrew & Renata Kaldor Centre for International Refugee Law.