The Pandemic, Borders and Refugees*
The global response to the spread of COVID-19 teaches us that, although border closures may be critical to fighting the spread of disease, they cause harm, often irrevocable damage, to many of the world’s most vulnerable, namely refugees and asylum seekers.
At the height of the pandemic, 168 countries fully or partially closed their borders, and among those countries, nearly 90 refused to grant exceptions to asylum-seekers. Even among those who did not close their borders to asylum-seekers, procedures for admitting asylum-seekers, and processing their claims, slowed to a snail’s pace, leaving them in positions of profound insecurity. In many cases, the choice to refuse entry to asylum seekers amounted, in effect, to a violation of international law’s commitment to non-refoulement.
At the level of moral philosophy, these facts force a reckoning. In the “Before the COVID era” (BCE), moral philosophers typically agreed that states may legitimately close borders where matters of health and security are concerned. This view is readily endorsed by scholars who generally agree that states can control who enters their territory. But, importantly, this view is also endorsed by philosophers who typically defend the view that borders should be fully or at least maximally open.
And while it seems that security remains a valid reason to insist on excluding some migrants, COVID highlights that “threats to health” cannot be, simply, a reason to close borders. Further assessment of what it means to “close borders” and who will thereby be left in profound insecurity is required in order to conclude that public health threats warrant the closing of borders. Indeed, the global convergence on the merits of controlling borders as a form of pandemic control has had a destructive effect, especially for the most vulnerable would-be asylum seekers. The result is that, in a post-COVID era, it will be incumbent on moral philosophers to produce tools to guide future (pandemic-induced) border closures so that policy-makers will be better able to weigh the harm of border crossing, to public health, against the damages caused to those who are denied access to physical safety as a result.
As the pandemic’s magnitude and implications were becoming clear one year ago, the overarching human rights concern was with the multitude of ways in which it would exacerbate existing deep inequalities experienced by vulnerable communities. That most certainly included refugees, asylum-seekers and migrants.
There were concerns about border closures restricting the ability of refugees to access safety, refugee determination systems shutting or slowing down for extended periods, increased xenophobia and racism against immigrant communities, grave public health concerns in close-quarters settings such as refugee camps and immigration detention centres, and heightened risks of contracting COVID within exploitative workplace settings with a predominance of essential employees from refugee and migrant communities, such as long-term care institutions, the agricultural sector, and meat-packing facilities. Globally, questions emerged regarding whether access to vaccines would be tied to immigration and nationality status, limiting access in some countries for refugees and undocumented migrants.
Indeed, we have faced many of those challenges in Canada. However, there have also been some encouraging developments, including reduced numbers of people held in immigration detention and a special immigration program to provide permanent resident status for refugee claimants working in essential health care.
But the federal government has maintained a disappointing position that, as a general rule, the Canada/US land border has remained closed to refugee claimants. Individuals in the United States who very understandably have not been confident, or have been fearful, to seek asylum there, have been barred from turning to Canada for protection instead.
Knee-jerk reactions from governments worldwide have produced measures that have restricted movement across them, severely, even as doing so has imperilled the safety and rights of asylum seekers and refugees.
It is, in many ways, an extension of the 2004 Canada/US Safe Third Country Agreement, which closes down official land border posts along the 49th Parallel to refugee claimants. The Federal Court struck down that Agreement in July 2020 as violating the Charter of Rights, although the federal government has appealed that ruling to the Federal Court of Appeal.
However, in COVID-times, the border is now also shut to refugee claimants who cross over irregularly to make their claims as well, through an Order-in-Council that has been renewed monthly by Cabinet. There have been only a few exceptions, including for unaccompanied minors making refugee claims and individuals who already have close family members living in Canada.
But the overarching message remains that the land border is closed to refugees. Seeking refugee protection is not considered an “essential” reason to travel. Medical groups such as Médecins sans Frontières have highlighted that it is not only contrary to refugee and human rights legal obligations but is unjustified from a public health perspective as well.
COVID has indeed forced us to reconsider what borders mean and do, in so many ways. Knee-jerk reactions from governments worldwide have produced measures that have restricted movement across them, severely, even as doing so has imperilled the safety and rights of asylum seekers and refugees. As we emerge from the pandemic and assess the many lessons we have learned – including whether border controls are a valuable tool to combat global pandemics in the first place – a key focus must be on how best to protect the most vulnerable of global citizens.
To inform yourself further and to take action on these concerns, see the Canadian Council for Refugees’ call for the Canada/US border to be reopened to refugees: ccrweb.ca/en/one-year-pandemic-travel-and-border-bans
*Written jointly with Professor Patti Lenard, University of Ottawa, and originally published as a blog for the university’ Centre for International Policy Studies.
