COVID-19 IMPACTS ON IMMIGRATION DETENTION: GLOBAL RESPONSES conditions of bail and deportation18. Further, the detention regime in Hong Kong lacks a robust external monitoring mechanism19. Refugees, asylum seekers and forced migrants are particularly vulnerable to immigration detention under the Immigration Ordinance’s wide powers. For example, they may have entered Hong Kong illegally or travelled with forged identification documents. Notably, asylum seekers can only commence their USM claims when they are subject or liable to removal from Hong Kong20. This means people wanting to seek asylum must first overstay their visas, thereby committing an immigration offence, which increases their likelihood of being detained. As of 31 May 2020, at least 79 out of the 399 detainees at the Castle Peak Bay Immigration Centre (CIC), which is the major detention facility, were asylum seekers21. As we discuss below, the COVID-19 pandemic has reinforced even further the need for greater disclosure and monitoring in relation to immigration detention. Regrettably, the Immigration Department has provided little information on measures taken to monitor and mitigate the impact of COVID-19 in detention facilities. The lack of effective complaints and monitoring mechanisms means that independent scrutiny is not possible. In contrast to some other immigration regimes, Hong Kong does not have detailed operational guidelines on identifying individuals unsuitable for detention. This means the needs of people suffering from injury, trauma or other health conditions might not be appropriately recognised. The risks attendant upon this are heightened during the current pandemic. It is, of course, vital to identify and protect individuals who might be immunocompromised in any way. In addition, it is also important to recognise and address that the well-documented mental health toll of the pandemic is likely to be intensified by custodialisation. Thus far, it is unclear if the immigration authorities in Hong Kong have implemented safeguards in this regard. Since the first confirmed case of COVID-19 was reported on 23 January 2020, the Hong Kong government’s response to the pandemic has been generally agile and successful. The number of confirmed cases and deaths remained relatively low: as of 9 September 2020, there are 4,896 confirmed cases and 99 deaths22. Despite this, the Government has taken no concerted efforts to ensure the safety of refugees, asylum seekers and other vulnerable migrants amid the pandemic. While at the time of writing no major outbreaks have been reported in these communities, two detainees at the CIC tested positive for COVID-19 in mid-August and early September23. Moreover, it is also unclear whether the Government has reviewed its immigration detention policies in relation to detention thresholds and duration during the COVID-19 pandemic. Ongoing border closures and interruption to international flights create the risk of extended periods of detention. International law as well as common law principles prohibit disproportionate periods of immigration detention26. For example, Hardial Singh establishes that immigration detention beyond short periods is only justifiable where there is a prospect of removal within a reasonable time 27. The Immigration Department has confirmed that, as at June 2020, 70 detainees at the CIC are asylum seekers with rejected claims who are pending removal28. While there are reports that some detainees have since been released on recognizance29, the lack of a transparent review mechanism makes it difficult to ensure individuals are not subject to potentially arbitrary detention. Civil society groups have long expressed concerns about the substandard conditions at immigration detention centres, including poor hygiene, crowded environments and lack of access to healthcare24. The contribution by the CIC Concern Group in this volume highlights the urgent need for transparency about conditions in detention25. People who are released on recognizance in lieu of detention are required to regularly report to the authorities in person30. The need to travel – often considerable distances and on public transport – for the purposes of reporting puts people at risk and is against the public health advice to stay at home and practice social distancing. Upon enquiry, THE RESPONSE TO COVID-19 18 See, for example, the official reply to access to information requests in this regard: https://accessinfo.hk/en/request/immigration_detention_ informatio#incoming-1324 and https://accessinfo.hk/en/request/immigration_detention_2#incoming-1323. 19 Justices of the Peace are permitted to visit immigration detention centres, but there is little public information about the nature or findings of these visits. 20 Immigration Ordinance, Section 37W(1). 21 Immigration Department, Statistics on immigration detention: 2014-2019, 5 June 2020. Available at: https://accessinfo.hk/en/request/statistics_on_immigration_ detent#incoming-1384. At the time of writing we are unable to confirm whether the figure provided by the Immigration Department includes asylum seekers who have filed judicial review challenges against rejections of their asylum claims. 22 Government of the Hong Kong S.A.R. “Covid-19 Situation Dashboard”. Available at: https://chp-dashboard.geodata.gov.hk/covid-19/en.html. 23 Immigration Department, “A person transferred from Pik Uk Prison to Castle Peak Bay Immigration Centre for detention tests positive for Covid-19”. 6 September 2020. Available at: https://www.immd.gov.hk/eng/press/press-releases/20200906.html; Immigration Department, “A detainee detained at Castle Peak Bay Immigration Centre tested positive for Covid-19”. 19 August 2020. Available at: https://www.immd.gov.hk/eng/press/press-releases/20200819b.html. 24 Westbrook, Laura, “Coronavirus: Hong Kong lawyers, lawmakers flag hygiene issues at detention centre, but Immigration says health measures in place” South China Morning Post, 16 April 2020. Available at: https://www.scmp.com/news/hong-kong/health-environment/article/3081544/coronavirus-hong-konglawyers-lawmakers-flag and Cheng, Olivia 鄭祉愉, “Hong Kong’s Refugees: The Invisible Wall 看不見的難民” Ming Pao Weekly 明報周刊Volume 2517, 4 February 2017 (In Chinese). 25 ‘Immigration detainees on weeks-long hunger strike’, RTHK, 20 July 2020, Available at https://news.rthk.hk/rthk/en/component/k2/1538868-20200720.htm. 26 See Grange, Mariette & Mazcher, Izabella, ‘Immigration Detention under International Human Rights Law: The Legal Framework and the Litmus Test of Human Rights Treaty Body Monitoring’ in Flynn, Michael J. & Flynn, Matthew. Challenging Immigration Detention: Academics, Activists and Policy-makers. Edward Elgar 2017, 269271. 27 R v Governor of Durham Prison, ex p Hardial Singh [1984] 1 WLR 704, affirmed by the Hong Kong Court of Final Appeal in Ghulam Rbani v Director of Immigration (2014) 17 HKCFAR 138. 28 Secretary for Security, “LCQ12: Castle Peak Bay Immigration Centre”, 17 June 2020. Available at: https://www.info.gov.hk/gia/general/202006/17/P2020061700461. htm. 29 Recognizance is similar to bail or bond except that it is granted by an immigration or police officer, and there is no judicial oversight of this process. See Immigration Ordinance, Section 36. “Fernando Cheung et al. meet with Immigration to discuss CIC Hunger Strike, criticises the Immigration for exercising wide powers without transparency 青山灣羈留者絕食抗議一個月 張超雄等晤入境處 斥權力過大欠透明” Stand News立場新聞 , 28 July 2020 (In Chinese). Available at: https://bit. ly/3klxTZw. 30 Immigration Ordinance, Section 36. 22 International Detention Coalition and Western Sydney University