(Sources: Refugee Convention, art. 33; Convention against Torture Other Cruel, Inhuman or
Degrading Treatment (CAT) art. 3; ICCPR arts. 7, 13; OAU Convention governing specific
aspects of refugee problems in Africa art. 2(3); American Convention on Human Rights art. 22(8);
ECtHR, Paposhvili v Belgium (2016); UNHCR, Key Legal Considerations on access to territory
for persons in need of international protection in the context of the COVID-19 response, 16 March
2020.)
7. Enforcement of immigration law, including detention
States may not enforce immigration laws in a manner that increases the risk of transmission of
COVID-19, and such enforcement must comport with fundamental norms of due process.
Detention of migrants, refugees, and other displaced persons is impermissible where such
detention would expose them to serious risks to their health and life due to the COVID-19
pandemic.
State enforcement of immigration laws must not put in jeopardy the right to health of migrants,
refugees, and other displaced persons, government officials, or the public. In particular,
enforcement activities, and the threat of such activities, should not prevent or hinder migrants,
refugees, and other displaced persons from seeking health care services.
Where State policies adopted in response to COVID-19 restrict access to information regarding
legal rights or to counsel and interpreters, immigration proceedings may deny persons due process
and protection against arbitrary expulsion. Under such circumstances, State pursuit of vital public
health goals may require suspension of enforcement of immigration laws.
Once COVID-19 is introduced into a place of immigration detention, those housed there will face
great difficulties in engaging in appropriate health practices, such as social distancing and effective
hygiene. States have long been encouraged to develop robust and effective alternatives to
detention. Where detention would expose migrants, refugees, and other displaced persons to
serious COVID-19-related risks, and in particular where such alternatives exist or could reasonably
be adopted, continued detention cannot be reasonable, necessary, or proportionate. In some
circumstances, migration detention could constitute a threat to the right not to be subjected to
inhuman and degrading treatment and the right to life. Persons released from detention should be
supported to ensure they can engage in appropriate health practices and will have access to health
services. Even in the midst of a pandemic, detained migrants and refugees have the right to
challenge the legality, length, and conditions of their detention and to be compensated for any
unlawful detention.
(Sources: UDHR arts. 3, 5, 6, 7, 14; ICCPR arts. 6, 7, 9(1), 10, 13, 14(1), 16, 26; ICESCR arts.
12(1); Refugee Convention arts. 16, 31-32; UN Human Rights Committee, CCPR General
Comment No. 35.)
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