Articles

The Human Rights of Migrants and Covid-1911. In October 2021, when this article was being edited, the Special Rapporteur on the human rights of migrants submitted the following report to the UN General Assembly: “One and a half years after: the impact of Covid-19 on the human rights of migrants”, A/76/257, UN, July 30, 2021, accessed November 18, 2021, https://undocs.org/en/A/76/257.

Felipe González Morales and Renato Zerbini Ribeiro Leão

The response of UN special procedures and committees

Estudio de Arquepoética y Visualística Prospectiva

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ABSTRACT

The impacts of the Covid-19 pandemic on human rights have been particularly severe for migrants around the world. This is due to the level of vulnerability migrants usually face, which increases in a context like this one. This unexpected event demanded an urgent and dynamic response from the special procedures of the United Nations Human Rights Council and UN committees, which they delivered through a series of general declarations and guidelines, as well as communications and observations addressed to specific states. This article describes these responses and analyses the main issues that they address.

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Introduction

The sudden appearance and dissemination of Covid-19, which rapidly reached pandemic proportions, demanded an urgent response adapted to the circumstances on the part of the special procedures of the United Nations Human Rights Council and the international bodies created by virtue of the adoption of human rights treaties, the committees. This response covered a wide range of areas in which Covid-19 has caused serious negative impacts. The precarious situation of many migrants has clearly deteriorated due to the pandemic and resulted in grave human rights violations, making migration an issue of utmost importance.

1. The special procedures of the Human Rights Council and the UN committees

The special procedures (SPs) are bodies of the United Nations Human Rights Council responsible for the protection and promotion of the said rights in all UN States, regardless of whether they have ratified specific human rights treaties or not. The SPs include special rapporteurs, independent experts and working groups. At the beginning of the pandemic, they met online to plan joint responses to the human rights challenges emerging in the new health situation.22. A webinar was held on April 22, 2020.

UN committees are monitoring bodies established by international human rights treaties. Each committee is made up of independent experts who examine the reports of Member States on their compliance with and their implementation of these treaties’ provisions. Most committees are mandated by an optional protocol to receive individual complaints. There are currently ten committees and each one has a chair, who all come together annually at the Meeting of Chairpersons.33. The ten bodies are: the Committee on the Elimination of Racial Discrimination (CERD); the Committee on Economic, Social and Cultural Rights (CESCR); the Covenant on Civil and Political Rights (CCPR); the Committee on the Elimination of Discrimination against Women (CEDAW); the Committee Against Torture (CAT); the Subcommittee on Prevention of Torture (SPT); the Committee on the Rights of the Child (CRC); the Committee on the Protection of the Rights of All Migrant Workers and Members of their Families (CMW); the Committee on the Rights of Persons with Disabilities (CRPD), and the Committee on Enforced Disappearances (CED).

To ensure a more coordinated and comprehensive response to the pandemic, the chairs of the committees agreed to create the Working Group on Covid-19 (Covid-19 WG). Composed of 19 experts from the ten committees, the working group has the mandate to advise the chairs and committees on the challenges that the pandemic raises for the functioning of the United Nations human rights treaty bodies system. The chairpersons also entrusted the Covid-19 WG with the task of analyzing the substantive aspects of Covid-19 and human rights.44. The Working Group on Covid-19 (Covid-19 WG) was created during the 32nd Meeting of Chairpersons of UN Human Rights Treaty Bodies, held online from July 27 to 30, 2020. Its mandate was ratified and extended at the 33rd meeting held from June 7 to 11, 2021. As of June 2021, the Covid-19 WG had held ten online meetings.

The ten chairpersons of the United Nations human rights treaty bodies called on countries to adopt measures to protect the right to life and to health, which includes access to medical care for all those who need it, without discrimination. They also urged governments to provide special care to people who are particularly vulnerable to the effects of Covid-19, as is the case of migrants, among other measures. Furthermore, the experts highlighted that women, especially migrant women, are disproportionately at risk, as in many societies, they are the primary caregivers for sick family members.55. Press release: “Chairs of treaty bodies - UN Human Rights Treaty Bodies call for human rights approach in fighting Covid-19”, OHCHR, March 24, 2020, accessed November 18, 2021, https://www.ohchr.org/Documents/HRBodies/TB/Covid19/External_TB_statements_Covid19.docx.

One very important, cross-cutting initiative that will be examined in this article is the Joint Guidance Note on the Impacts of the Covid-19 Pandemic on the Human Rights of Migrants” (Joint Guidance Note). It was produced as a joint effort of the Committee on the Protection of the Rights of All Migrant Workers and Members of their Families (CMW) and the Special Rapporteur on the human rights of migrants.66.Joint Guidance Note on the Impacts of the Covid-19 Pandemic on the Human Rights of Migrants”, UN Committee on the Protection of the Rights of All Migrant Workers and Members of their Families and UN Special Rapporteur on the human rights of migrants, May 26, 2020, accessed November 18, 2021, https://www.ohchr.org/Documents/Issues/Migration/CMWSPMJointGuidanceNoteCovid-19Migrants.pdf.

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2. International cooperation and development aid

In its statement on the coronavirus disease (Covid-19) pandemic and ESCR, the Committee on Economic, Social and Cultural Rights (CESCR) affirmed that the States parties of the International Covenant on Economic, Social and Cultural Rights (ICESCR) should cooperate with other countries to complement and guarantee national programmes aimed at promoting the ESCR to mitigate the pandemic’s impact on people at greatest risk, including migrants. In this case, international cooperation could be in the form of financial or technical assistance.77.Statement on the coronavirus disease (Covid-19) pandemic and economic, social and cultural rights”, E/C.12/2020/1, UN, April 17, 2020, accessed November 18, 2021, https://undocs.org/en/E/C.12/2020/1.

It also highlighted specific measures that are necessary to protect the ESCR during the pandemic, such as the provision of water, soap and sanitizer to communities who lack access to them; specific protections for workers’ jobs, wages and benefits and to shield them from the risk of contagion; mitigation of the economic impacts of Covid-19 through subsidized wages and tax relief; a moratorium on evictions and mortgage foreclosures; bans on profiteering on essential goods, and the promotion of income-support and other aid programmes to guarantee food security, among others.88. Ibid., section III, paras. 10-25.

3. Discrimination and xenophobia

The endemic discrimination of migrants, which is particularly strong towards those in an irregular situation, has increased during the pandemic. This has had a major impact on access to public services. In some countries, it has led to the exclusion of migrants from state food distribution schemes.

The CERD recommended that all levels of government develop and implement specific strategies to mitigate the socioeconomic impacts of the Covid-19 pandemic on the Roma and nomads and to guarantee the participation of these groups in the development, execution and monitoring of these strategies.99. “Observaciones finales sobre los informes periódicos 20º a 22º de Bélgica”, CERD/C/BEL/CO/20-22, Committee on the Elimination of Racial Discrimination, April 30, 2021, para. 23, accessed November 18, 2021, https://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=6QkG1d%2fPPRiCAqhKb7yhsr69Gyhm7QM1Oqny37itcWj%2f24FroBjCaMewiKH8VB33Y8s%2fkXw5yPV3hlqdpQB%2bOj1UTuH%2fkQ8nDro0MQgpgrlez4cn8du3weL9ymbdg5eZfDad5weRlawSN3mcbKof%2bQ%3d%3d. The inclusion of migrants in public policies and in the processes of developing, implementing and monitoring strategic actions is fundamental to fight discrimination effectively.

In its Guidance Note on the Convention and Covid-19, the CEDAW called on countries to redress the long-standing inequalities between women and men by putting women and girls in the centre of recovery strategies that are aligned with the 2030 Agenda for Sustainable Development and by giving special attention to migrant and refugee women and women seeking asylum.1010. “Concluding observations on the ninth periodic report of Denmark”, CEDAW/C/DNK/CO/9, Committee on the Elimination of Discrimination Against Women, March 9, 2021, para. 11, accessed November 18, 2021, https://undocs.org/en/CEDAW/C/DNK/CO/9.

During the pandemic, there has been an increase in xenophobic speech and practices, without prejudice to practices and discourses of solidarity that also exist. The rise of xenophobic discourse is a disturbing trend that has spread in recent years and become more pronounced during the health crisis, as migrants are blamed for spreading the virus. The Joint Guidance Note calls for measures to prevent “the use of migrant persons or groups as scapegoats.” 1111. Ibid., number 15.

It is also worth mentioning the CERD’s recent recommendation on the adoption of the necessary measures to actively prevent and combat racially motivated hate crimes and hate speech and to protect groups that are the most vulnerable to racial discrimination, including in the context of the Covid-19 pandemic. This affects people of Asian origin in particular1212. CERD/C/BEL/CO/20-22, paras. 18-19.. The Special Rapporteur on the human rights of migrants sent various communications on these issues to states such as, for example, the United States1313. Communication, OHCHR, August 12, 2020, accessed November 18, 2021, https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=25476. and Malaysia.1414. Communication, OHCHR, February 19, 2021, accessed November 18, 2021, https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=26052.

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4. Emergency regulations

In the context of the Covid-19 pandemic, states have adopted numerous emergency regulations that restrict human rights, including migrant rights. Many have declared states of emergency (under different names, depending on the country, such as ‘state of alarm’ or ‘state of catastrophe’, among others) or imposed regulations that have the force of law, namely health provisions.

Although the use of emergency regulations may be justified in general and depending on the situation in every state, region or city, it does not mean that authorities can use them in an arbitrary or discriminatory manner. This aspect is particularly important when it comes to migrants, as they are more exposed to practices that violate human rights because of the vulnerability they usually face. The Joint Guidance Note refers to this issue as the first element to be addressed, affirming that “it is of paramount importance that State emergency responses to the Covid-19 pandemic be necessary to achieve legitimate public health goals; proportionately apply the least intrusive means; and be non-discriminatory so as not to be used to target particularly vulnerable groups including minorities or individuals.”1515. “Joint Guidance Note on the Impacts of the Covid-19 Pandemic on the Human Rights of Migrants”, UN Committee on the Protection of the Rights of All Migrant Workers and Members of their Families and UN Special Rapporteur on the human rights of migrants, May 26, 2020, accessed November 18, 2021, https://www.ohchr.org/Documents/Issues/Migration/CMWSPMJointGuidanceNoteCovid-19Migrants.pdf.

5. Health and medical care

The CESCR recommended that countries ensure that healthcare resources in both the public and private sectors are mobilized and channeled to provide a comprehensive and coordinated health response to the Covid-19 pandemic for the benefit of the entire population. Furthermore, it recommended the adoption of measures to guarantee that constraints on healthcare resources generated by the Covid-19 pandemic do not significantly inhibit the provision of other health services and treatment, including ones related to pre-existing conditions, mental healthcare and sexual and reproductive health services1616. “Concluding observations on the second periodic report of Latvia”, E/C.12/LVA/CO/2, UN, March 30, para. 41, accessed November 18, 2021, https://undocs.org/en/E/C.12/LVA/CO/2.. This recommendation should be read in conjunction with General Comment no 14. In this document, the Committee reminded the States parties of the ICESCR that they are under the obligation to respect the right to health by refraining from denying or limiting equal access to all persons, including migrants, to preventive, curative and palliative health services.1717. “General Comment No. 14 (2000) on the right to the highest attainable standard of health (article 12 of the International Covenant on Economic, Social and Cultural Rights)”, E/C.12/2000/4, UN, August 11, 2000, para. 34, p.13, accessed November 18, 2021, https://undocs.org/en/E/C.12/2000/4.

The Special Rapporteur on the human rights of migrants and the Special Rapporteur on the right to health issued a statement at the beginning of the vaccination process in several countries, emphasizing that states should guarantee both migrants (regardless of their migration status) and nationals equal access to vaccines in the said processes and to all public health responses to Covid-19.1818. “Covid-19: Equitable vaccine access for all, including migrants, is crucial, say UN Special Rapporteurs”, UN, January 22, 2021, accessed November 18, 2021, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=26684&LangID=E.

Moreover, the Special Rapporteur on the human rights of migrants has sent communications on health measures adopted in the context of the pandemic to specific states, such as the United Arab Emirates1919. Communication, OHCHR, August 25, 2020, accessed November 18, 2021, https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=25490. and the United States.2020. Communication, OHCHR, January 15, 2021, accessed November 18, 2021, https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=25835.

5.1 Vaccines

States must guarantee access to vaccines for all people to the maximum of their available resources in accordance with the measures necessary for universal vaccination without discrimination, which means that migrants are fully covered. The duty to immunize people against major infectious diseases and prevent and control epidemics is a primary obligation stemming from the right to health (art. 12 of the ICESCR). It is mandatory for states to give top priority to ensuring the availability of vaccines that effectively contribute to the fight against Covid-19. Countries have the obligation to provide reliable and transparent information based on the best scientific knowledge available so that citizens can decide whether or not to get vaccinated. Thus, all administrative and bureaucratic obstacles must be overcome to ensure the timely and effective implementation of public policies that guarantee universal and equitable access to vaccines.2121. “Statement on universal and equitable access to vaccines for the coronavirus disease (Covid-19)”, E/C.12/2020/2, UN, December 15, 2020, paras. 1-12, accessed November 18, 2021, https://undocs.org/en/E/C.12/2020/2.

The right to health requires healthcare facilities, services and goods, including vaccines, that are accessible, acceptable and of good quality. Vaccines should not only be produced and available, but also accessible to all in accordance with the principle of equality and non-discrimination, free from barriers such as nationality or migration status. Therefore, physical access to vaccines should be guaranteed, especially for marginalized or disadvantaged groups, including migrants, through public or private channels by strengthening their capacity for delivery and distribution. Furthermore, vaccines should be offered for free, especially to people who live in poverty and have low incomes. Moreover, in this digital age of fake news, access to relevant, scientifically proven evidence on the safety and effectiveness of the different vaccines should be firmly secured and reinforced by public campaigns to protect the population from false information or pseudoscience. No one who chooses to get vaccinated should be left behind.2222. “The pledge to leave no one behind: the International Covenant on Economic, Social and Cultural Rights and the 2030 Agenda for Sustainable Development”, E/C.12/2019/1, UN, April 5, 2019, para. 20, p.7, accessed November 18, 2021, https://undocs.org/en/E/C.12/2019/1. The States parties to the ICESCR have an obligation to provide access to the vaccine and include migrants in their beneficiaries2323. E/C.12/2020/2, para. 4..

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6. Immigration detention

According to the extensive case law of several UN bodies2424. These UN bodies include, for example, the Special Rapporteur on the human rights of migrants, the Working Group on Arbitrary Detention, the Committee on Migrant Workers and the Committee on the Rights of the Child, among others., the detention of adult migrants is only to be used as a measure of last resort and the detention of migrant children should be prohibited.2525. “Ending immigration detention of children and providing adequate care and reception for them”, A/75/183, UN, June 20, 2020, accessed November 18, 2021, https://undocs.org/en/A/75/183. Adopted by over three quarters of the United Nations Member States in 2018, the Global Compact for Orderly, Safe and Regular Migration explicitly establishes the former and includes a commitment to work to end the detention of migrant children. The asymmetry between states’ practices and international standards on immigration detention has grown.

The pandemic has made the situation of migrants who have been deprived of their liberty particularly critical because of the serious risks to their health and lives and the impact on public health in general (since Covid-19 is highly contagious). The Joint Guidance Note addresses this issue by reaffirming the standards on the detention of adults and children and drawing attention to the problem of overcrowding in many detention centres and the failure to provide adequate health services.2626. “Joint Guidance Note …”, number 11.

Furthermore, the Special Rapporteur has made appeals on this matter to specific countries such as the United States – one of the countries that engages in immigration detention on a large scale. The Special Rapporteur called for the release of migrants from Covid-19 high-risk detention facilities2727. “US: Migrants ‘held for processing’ should be released from Covid-19 high-risk detention centres”, OHCHR, April 27, 2020, accessed November 18, 2021, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25827&LangID=E . and the adoption of measures to prevent major outbreaks in detention centres, including ones where migrants are held.2828. “US Government urged to do more to prevent major outbreaks of Covid-19 in detention centres – UN experts”, OHCHR, May 29, 2020, accessed November 18, 2021, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25912&LangID=E . He also sent a communication to the state in relation to one detention centre where the health conditions were particularly problematic.2929. Communication, OHCHR, April 22, 2020, accessed November 18, 2021, https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=25190.

Other countries to which communications on immigration detention in the context of a pandemic were sent include Saudi Arabia,3030. Communication, OHCHR, January 28, 2021, accessed November 18, 2021https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=25729. Malaysia3131. Communication, OHCHR, May 14, 2020, accessed November 18, 2021, https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=26052; Communication, OHCHR, February 19, 2021, accessed November 18, 2021, https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=26052. and Mexico.3232. Communication, OHCHR, December 23, 2020, accessed November 18, 2021, https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=25793.

There have also been exceptional cases where states that had almost completely eliminated immigration detention years ago reinstated it during the pandemic. This is the case of Panama, which opened the “La Peñita” detention centre for migrants, including migrant children. The Special Rapporteur on the human rights of migrants sent a communication to the state on this matter.3333. Communication, OHCHR, September 25, 2020, accessed November 18, 2021, https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=25564. In the Americas, the Inter-American Court of Human Rights issued provisional measures on this situation: “Resolución de la Presidenta de la Corte Interamericana de Derechos Humanos”, Corte IDH, May 26, 2020, accessed November 18, 2021, https://www.corteidh.or.cr/docs/medidas/velez_se_01.pdf.

Paradoxically, the pandemic has had the beneficial effect of leading to a significant reduction in the use of immigration detention in many states and to the release of all detained migrants in others.3434. “Follow-up advice of the Subcommittee to State parties and national preventive mechanisms relating to the coronavirus disease (Covid-19) pandemic”, CAT/OP/12, ONU, June 18, 2021, para. 9, letter e, accessed November 18, 2021, https://undocs.org/CAT/OP/12.

The Human Rights Committee recommended that countries continue and intensify their efforts during the pandemic to improve conditions and reduce overcrowding in places of deprivation of liberty, namely by increasing the use of alternatives to detention and ensuring that the conditions in places of detention are fully in line with the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules).3535. “Concluding observations on the fourth periodic report of Kenya”, CCPR/C/KEN/CO/4, UN, May 11, 2021, paras. 30-31, accessed November 18, 2021, https://undocs.org/CCPR/C/KEN/CO/4.

The CED recommended the adoption of all necessary measures to guarantee that when visits are limited by circumstances such as the Covid-19 pandemic, individuals deprived of liberty are provided the means to communicate with the people of their choice without delay. It also encouraged States parties to observe the guidelines on Covid-19 and enforced disappearances adopted by the Committee and the Working Group on Enforced or Involuntary Disappearances. Furthermore, it urged them to adopt measures in response to the Covid-19 pandemic to reduce prison populations and facilitate detainees’ contact with the outside world.3636. “Observaciones sobre la información adicional presentada por Irak en virtud del artículo 29 (4) de la Convención”, CED/C/IRQ/OAI/1, UN, December 1, 2020, para. 19, https://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=6QkG1d%2fPPRiCAqhKb7yhsummCOBeTca5EXIHB4IwLH3D%2biq2ucswJBorWdYqfY%2fthlnnknBZXoEVXtqcPR9vs4cPxTwSotRsPvK7RHP5SFvy6peAco2N3PlMPIdalhZk; see also “Observaciones finales sobre el informe presentado por Suiza en virtud del artículo 29, párrafo 1, de la Convención”, CED/C/CHE/CO/1, UN, May 21, 2021, para. 7, accessed November 18, 2021, https://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=6QkG1d%2fPPRiCAqhKb7yhsvWEcYi4SkTd9aSYyGiII5IThG1Udmyt3UvV0aFXug4N3cBFdbRGl4UUGTjJ%2fTMg8GJnuu5mZypSxVerTVSF%2bOewg3i8WeBPmQVsydOct2C7 ; and “Observaciones finales sobre el informe inicial de Estonia”, CRPD/C/EST/CO/1, UN, May 5, 2021, para. 21, accessed November 18, 2021, https://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=6QkG1d%2fPPRiCAqhKb7yhslxq2MulDp%2fqMKQ6SGOn0%2fMA1LSpvgYM3DCkpjGjvUUy2myJFM%2bOsTgWsCuGm4B2qkFeGZfEkMOHaNUznBwRun2ASLaH854xEbX18CdlhGds.

6.1 Deportations and other returns

The Joint Guidance Note called on countries to consider suspending the deportation of migrants during the pandemic.3737. “Joint Guidance Note …”, number 14. They also referred to the obligation to guarantee the rights of migrants to return voluntarily to their countries of origin.3838. Ibid., number 13. The former is justified by the need to protect migrants’ lives and health, which can be seriously endangered if they are deported during a pandemic. It is also a matter of public health policy due to the need to safeguard public health in general. One example of this was the massive deportation of Guatemalan migrants by the United States at the beginning of the pandemic, where more than 100 of them were infected with Covid-19.3939. “Guatemala: ¿traen los deportados el coronavirus?”, Deutsche Welle, May 22, 2020, accessed November 18, 2021, https://www.dw.com/es/guatemala-traen-los-deportados-el-coronavirus/a-53538482.

A particularly grave form of deportation is the so-called “pushbacks”. This issue was addressed in a recent thematic report by the Special Rapporteur on the human rights of migrants. The report presents a description and analysis of this practice which is especially problematic in the context of the pandemic due to the additional risks to the lives and health of the victims.4040. “Report on means to address the human rights impact of pushbacks of migrants on land and at sea, Report of the Special Rapporteur on the human rights of migrants, Felipe González Morales”, A/HRC/47/30, UN, May 12, 2021, accessed November 18, 2021, https://undocs.org/en/A/HRC/47/30. The report defines pushbacks as “various measures taken by States, sometimes involving third countries or non-State actors, which result in migrants, including asylum seekers, being summarily forced back, without an individual assessment of their human rights protection needs, to the country or territory, or to sea, whether it be territorial waters or international waters, from where they attempted to cross or crossed an international border” (para. 34). It was presented to the UN Human Rights Council on June 23 and 24, 2021. The report indicates that “while global public health crises may require travel restrictions, screening, testing, medical quarantine or isolation measures, these measures may not result in denying effective access to asylum and protection under international law.”4141. Ibid., para. 106. The report adds that “[s]earch and rescue and disembarkation were delayed or compromised by quarantine requirements, in addition to routine health screenings.”4242. Ibid., para. 83.

The Special Rapporteur on the human rights of migrants has also raised the issue of “pushbacks” in the context of the pandemic bilaterally with several countries, such as, for example, Greece,4343. “Rights violations against asylum-seekers at Turkey-Greece border must stop: UN Special Rapporteur”, OHCHR, March 23, 2020, accessed November 18, 2021, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25736&La. Croatia,4444. “Croatia: police brutality in migrant pushback operations must be investigated and sanctioned: UN Special Rapporteurs”, OHCHR, June 19, 2020, accessed November 18, 2021, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25976&LangID=E. India,4545. Communication, OHCHR, April 8, 2021, accessed November 18, 2021, https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=26339. Peru,4646. Communication, OHCHR, March 23, 2021, accessed November 18, 2021, https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=26303. Malaysia,4747. Communication, OHCHR, February 19, 2021, accessed November 18, 2021, https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=26052. Spain,4848. Communication, OHCHR, April 14, 2021, accessed November 18, 2021, https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=26327. Malta,4949. Communication, OHCHR, December 9, 2020, accessed November 18, 2021, https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=25753. Italy5050. Communication, OHCHR, November 9, 2020, accessed November 18, 2021, https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=25699; Communication, OHCHR, October 1, 2020, accessed November 18, 2021, https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=25526. and Trinidad and Tobago.5151. Communication, OHCHR, September 14, 2020, accessed November 18, 2021, https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=25536.

The number of voluntary returns has grown in several regions during the pandemic. Both the country of origin and the country of destination have obligations in relation to these returns. According to international standards, the country of origin has an obligation to allow the returns and to accept and reintegrate returning migrants. The country of destination, for its part, must allow these people to leave their territory, but they also have several more general obligations. Failure to fulfill these obligations – the obligation to guarantee adequate access to public services, including access to healthcare and the economic and social rights we referred to in another section – is what has contributed to the increase in returns.

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7. Access to information and monitoring

The context of the pandemic has raised questions on the extent to which authorities in many countries are guaranteeing free access to public health information. It is true that due to their very nature, authorities may experience difficulties in collecting information or with certain forms of access for citizens (such as, for example, when they require physical presence). Nonetheless, there have been numerous reports of authorities taking advantage of the situation to deliberately obstruct citizens’ access to public information. This is particularly problematic for the migrant population whose access to information tends to be limited, even in times of normalcy.

Independent monitoring of the conditions of the human rights of migrants, especially by civil society organizations – including human rights organizations and migrant associations5252. “Joint Guidance Note …”, number 16. – is a fundamental tool for the protection of migrants’ rights and has been subject to serious restrictions during the pandemic in many countries. The context of the health crisis inherently imposes certain limits on this. Even so, as in the case of access to information, additional unjustified limits have been placed on monitoring activities. This has occurred especially – but by no means exclusively – in relation to monitoring visits to migration detention centres. It is worth adding that civil society has elaborated and published reports entirely online.5353. See, for example, “Informe de Hallazgos de la Misión de Observación de Derechos Humanos en la Frontera Sur de México”, MODH, August-September 2020, accessed November 18, 2021, https://gtpm.mx/wp-content/uploads/2020/12/Informe-Final-MODH-2020.pdf.

8. Asylum and other forms of international protection

Serious limitations on the right to seek asylum existed even before the pandemic began and the health crisis has made them worse. There have also been important setbacks in the exercise of this right in recent years either because of rules and procedural requirements that are incompatible with due process and the right to access to justice, or due to substantive decisions based on narrow interpretations of the right to seek asylum. If international standards of protection were observed, the refugee status of many people would have been recognized or they would have received another form of international protection by now. However, the current context leaves many of them without any real possibility of obtaining protection and thus, to remain in an irregular situation.

In the context of the pandemic, it has become even more difficult to exercise the right to seek asylum. The restrictions that the health crisis imposes by its very nature are compounded by the obstacles that several states have deliberately created. The emergency situation reaffirms the importance of this right and the obligation of states to make it effective, especially for unaccompanied children, victims of human trafficking and people in movement from other vulnerable groups.5454. “Joint Guidance Note …”, number 9. The Special Rapporteur on human rights has addressed the right to seek asylum in communications to several states, such as Mexico, for example.5555. Communication, OHCHR, December 23, 2020, accessed November 18, 2021, https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=25793.

8.1 Regularization

During the pandemic, many countries have extended temporary resident visas until the health crisis is over5656. Such as, for example, Argentina, Spain, Italy and Tunisia, among others. and a few have granted temporary resident permits to migrants in an irregular situation.5757. This is the case in Portugal, for example. International human rights organizations have welcomed these initiatives both for their impact on the enjoyment of the right to health of migrants and for providing them with a certain degree of security and stability during the pandemic.

The call launched by the Special Rapporteur on the human rights of migrants and the Committee on Migrant Workers went further on this matter to urge states to proceed with the regularization of the status of migrants (since the initiatives described above are not regularization processes per se).5858. “Joint Guidance Note …”, number 12. Although there is no rule of international law that explicitly establishes the obligation of states to undertake mass regularization, the human rights bodies of the UN and the Inter-American System have repeatedly affirmed that in their interpretation of existing international standards, in circumstances where the human rights of migrants cannot be properly guaranteed without the regularization of their migration status, states should undertake regularization processes. This has been mentioned, for example, in situations where the lack of regularization acts as a major barrier to access to public services. In the context of a pandemic, this is particularly critical in relation to access to health services.

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9. Inclusion of migrants in economic and social recovery plans

Migrants should be included in economic and social recovery plans during and after the pandemic. Given the magnitude of the pandemic’s impact on the economy and society, it is evident that its effects will extend over a considerable period of time.

The Joint Guidance Note raises the issue of the inclusion of “migrants and their families, regardless of their migration status, in economic recovery policies, taking into account the need for the recovery of remittance flows.”5959. Ibid., number 7.

On International Migrants Day in 2020, UN bodies in conjunction with regional human rights organizations from Africa, America and Europe issued a press release in which the inclusion of migrants in economic recovery plans was a central issue.6060. “Migrants must be included in all Covid-19 Recovery Plans – UN and regional experts”, OHCHR, December 18, 2020, accessed November 18, 2021, https://www.ohchr.org/SP/NewsEvents/Pages/DisplayNews.aspx?NewsID=26618&LangID=E.

As for the CESCR, though it recognized that asylum seekers, refugees and migrants are traditionally affected by unemployment, the Committee expressed concern with the persistent high unemployment rates among members of these groups in Bolivia. Therefore, it recommended that in view of the decrease in job opportunities due to the crisis brought on by the Covid-19 pandemic, this State party of the ICESCR should adopt urgent economic recovery measures and increase efforts to provide support to people seeking employment. The CESCR also recommended that the state monitor the introduction of temporary changes to labour laws adopted in response to the Covid-19 pandemic to prevent abuses.6161. “Observaciones Finales sobre el tercer informe periódico del Estado Plurinacional de Bolivia”, E/C.12/BOL/CO/3, UN, November 5, 2021, paras. 26-27, accessed November 18, 2021, https://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=4slQ6QSmlBEDzFEovLCuW4OHatHG2mTj7kMWWS6NlIn6pjdT3jfzhwzQhLt2RK35q8NHLUdhy9IK98TyalEURNYELKxLRMRnAJiSyo%2fWn%2bsPa61t8CTsoUAh8s%2fyvEd%2f.

The CESCR is also concerned about barriers to access to social security benefits for asylum seekers, refugees and migrants with precarious jobs in the informal sector, whose numbers have increased during the pandemic. To address this situation, the CESCR recommended that states scale up actions to guarantee access to social security benefits without discrimination, improve coverage and the services provided to people engaged exclusively in unpaid domestic work and promote a positive image of migrant workers’ contribution to the social security system. It also recommended that governments ensure that pension benefits are high enough to guarantee an adequate standard of living to beneficiaries while bearing the impacts of the Covid-19 pandemic in mind.6262. Ibid., para. 36-37.

Conclusion

The special procedures of the Human Rights Council and the international monitoring bodies created by virtue of the signing of UN human rights treaties have generated a genuine regime for the protection of the human rights of migrants in relation to the Covid-19 pandemic. A variety of obstacles to the rights of migrants that existed prior to the pandemic have become worse in the new context, such as, for instance, ones related to their access to healthcare; discrimination and xenophobia; immigration detention; deportation, and the other issues analysed in this article. This has generated a need for new responses.

The near future is full of challenges for the UN bodies mentioned above. These include issues such as monitoring vaccination processes from a human rights perspective and the economic and social conditions of migrants during and after the pandemic, ensuring that emergency measures are only used when necessary and within legitimate limits, and other matters related to the migration policies of the states and the international community.

Felipe González Morales - Chile

Felipe González Morales is the United Nations Special Rapporteur on the human rights of migrants. Professor at Diego Portales University. Ph.D. in Advanced Human Rights from University Carlos III in Madrid.

Received in July 2021

Original in Spanish. Translated by Karen Lang.

Renato Zerbini Ribeiro Leão - Brazil

Renato Zerbini Ribeiro Leão is the Chair of the United Nations Committee on Economic, Social and Cultural Rights. Professor at the University Centre of Brasília (CEUB). Member of the Board of Directors of the Inter-American Institute of Human Rights in San José, Costa Rica. Ph.D. in International Law and International Relations.

Received in July 2021

Original in Spanish. Translated by Karen Lang.