Fifteen Eighty Four

One of the many―arguably lesser attended―effects of the COVID-19 crisis has been the continued exacerbation of the vulnerability of migrants. With borders closed and the threat of the “end of asylum” looming large, people on the move have seen their already difficult situations deteriorate further. The outbreak of the novel corona virus has served governments opposed to immigration as an excuse to take measures that used to be inconceivable from a legal point of view. The Trump administration, for instance, has engaged in collective deportations of thousands of refugees in the US. In Greece, the government suspended all pending asylum procedures for eleven weeks while overseeing the worsening of already disastrous conditions in some of its refugee camps. With approx. 16,000 people living in the Moria camp on the island of Lesbos―its actual capacity is only a fraction of this number―their now de-facto confinement to a small place has placed them at a heightened risk of contracting the virus. Political and social tensions are also rising, with the burning down of a community centre at the beginning of March proving the risk of escalation on an island that is at a breaking point.

The imminent crisis created by the outbreak of COVID-19 has longer and much deeper roots. For many years, Greece has not provided adequate asylum procedures and reception conditions for vulnerable migrants such as refugees and asylum seekers. As a “country of first entry” under the EU’s Dublin Regulation, it has been left to bear the brunt of the burden that comes with a legal commitment to refugee protection, which EU Member States are, in principle, supposed to share. The “relief” provided by the 2016 EU-Turkey Agreement, a deal whose compatibility with international and European human rights law has been challenged by UN institutions, has not extended to forced migrants on either the Turkish or the Greek side of the border.

Wilful or not, the inadequacy of the approach taken by the Greek administration was highlighted by the European Court of Human Rights in its landmark ruling in M.S.S. v Belgium and Greece, which it delivered already in 2011. In my book Demanding Rights, I offer a systematic evaluation the impact of this and seven other judgments. The applicant, an Afghani asylum seeker, was returned from Belgium to Greece, where he was subsequently denied both a chance to apply for asylum and humane living conditions. The acts of both states were found to amount to violations of fundamental rights. While I conclude that in leading to a complete moratorium on returns to Greece, the decision arguably comes closer than any other ruling to having a positive “systemic” impact on migrant rights, I also point to some of its negative effects. Most notably, the Court did not clarify how and when migrants should be considered vulnerable even though it is evident that their legal and political marginalisation induces various kinds of “migratory” vulnerabilities.

The adverse consequences of the Strasbourg Court’s indecision have become more palpable during the COVID-19 crisis. In the past weeks, the Court has been forced to order interim measures in several instances to prevent applicants from suffering irreparable harm in various Greek refugee camps. It thus requested the transfer of an elderly migrant from Chios island to protect him from the risk of infection. In May, it ordered the government to ensure adequate health care and living conditions to a pregnant woman living in a camp on Kos island (though not mentioning the need for a transfer in this case). Refugee Support Aegean, a Greek NGO, has been able to obtain interim measures requiring transfers for persons with serious medical conditions as well as unaccompanied minors, though it admits to have failed to secure them in other instances.

While benefitting some migrants, the piecemeal approach of the European Court of Human Rights points above all to its present inability to protect their human rights reliably. First, singling out particularly vulnerable individuals such as the elderly, minors or pregnant women is laborious and arguably ineffective from an institutional perspective since clear legal criteria for such determinations are lacking. More importantly, however, it would be more principled to affirm that it is unlikely in line with human rights standards that anyone would deserve to live in refugee camps such as Moria, where conditions had been described as “hell” even prior to the arrival of the global pandemic. The Court has been reluctant to do so pre-corona, when the camps were still considered “open structures”. Based on my analysis in Demanding Rights one may also wonder whether an assertive ruling would change realities on the ground; lurking behind the immediate horror of the camps are more complex political questions relating to European solidarity and burden sharing. Yet, at a time of rapid societal transformation where migrant rights are under growing pressure ―and with public outrage about the conditions on the now enclosed camps growing―a clear signal by the Court would be more welcome than ever.