Recent decisions by the European Commission mean that the rights of migrants and refugees to apply for asylum in the EU cannot be suspended, even during the coronavirus pandemic. Pictured: Migrants wait to be transferred from the island of Lesbos to the Greek mainland on May 3, 2020, in Moria. (Photo by Manolis Lagoutaris/AFP via Getty Images)
On March 16, the European Commission recommended a temporary restriction of non-essential travel from third countries into the "EU+ area" for 30 days. On April 8, the European Commission recommended that the temporary restriction be prolonged until May 15. According to the European Commission's press release:
"The Commission's assessment of the current situation points to a continued rise in the number of new cases and deaths across the EU, as well as to the progression of the pandemic outside of the EU, including in countries from where millions of people usually travel to the EU every year. In this context, prolonging the travel restriction is necessary to reduce the risk of the disease spreading further."
According to Margaritis Schinas, the Commission's Vice-President for Promoting our European Way of Life:
"While we can see encouraging first results, prolonging the travel restriction is necessary to continue reducing the risks of the disease spreading further. We should not yet let the door open whilst we are securing our house."
However, persons "in need of international protection or for other humanitarian reasons" are exempted from these restrictions on non-essential travel from third countries, according to a European Commission document dates March 30, 2020, entitled: "Guidance on the implementation of the temporary restriction on non-essential travel to the EU, on the facilitation of transit arrangements for the repatriation of EU citizens, and on the effects on visa policy". This means that people who apply for international protection cannot be turned away and that the rights of migrants and refugees to apply for asylum cannot be suspended, even in the time of coronavirus.
This policy was on display during the recent crisis on the border between Turkey and Greece, when Turkish President Recep Tayyip Erdogan used migrants -- whom Turkey transported to the border with Greece -- as political blackmail, threatening to unleash a new migration crisis on Europe. At least 14,000 migrants were brought to the border, according to media reports. Greece, at the time, said that it was suspending all asylum applications, based on article 78 (3) of the Treaty on the Functioning of the European Union, which states:
"In the event of one or more Member States being confronted by an emergency situation characterised by a sudden inflow of nationals of third countries, the Council, on a proposal from the Commission, may adopt provisional measures for the benefit of the Member State(s) concerned".
The European Commission, however, did not approve. The Commissioner for Home Affairs, Ylva Johansson, ordered Greece to allow the migrants that Erdogan transported to the border to apply for asylum.
"Individuals in the European Union have the right to apply for asylum. This is in the treaty, this is in international law. This we can't suspend," said Johansson. Greece has since ended its suspension, which was welcomed by Johansson: "At this time it is important to defend our values and fundamental rights," she said.
Many other things, however, have been suspended because of Covid-19: Europeans have been told to stay at home, schools and kindergartens have shut, people have not been able to go to work and many have lost their jobs. Everything has been done to minimize the spread of Covid-19. Immigration, however, seems one thing that, no matter how dire the situation, the EU is unwilling to suspend.
In addition, on April 16 the European Commission, issued a recommendation that warned EU member states that the registration and processing of asylum applications must continue and member states comply with asylum law.
"Even in a health emergency," Johansson said, "we need to guarantee individual fundamental rights. Any measure taken in the area of asylum, resettlement and return should also take full account of the health protection measures introduced by the member states to prevent the spread of coronavirus."
The guidance says, among other things, that personal interviews with asylum seekers can be carried out by video-conference during the crisis or omitted if necessary, and stresses that quarantine and isolation measures should be adequate and non-discriminatory, and that asylum seekers should have access to good healthcare.
Schinas joined in, saying:
"Today we are acting to support Member States in providing guidance on how to use the flexibility in EU rules to ensure the continuity of procedures as much as possible while fully ensuring the protection of people's health and rights. While our way of life may have changed drastically in the past weeks – our values and principles must not."
The guidance was published in mid-April, at the same time, that the EU began the first relocations of unaccompanied minors from migrant camps on the Greek islands. The relocation included 1,600 unaccompanied minors from Greece to ten EU member states -- Belgium, Bulgaria, France, Croatia, Finland, Germany, Ireland, Portugal, Luxembourg and Lithuania, as well as non-EU member Switzerland.
Schinas said about the recent relocations:
"This scheme is Europe at its best. In times where coronavirus is taking its toll on everyday life, it is commendable to see Member States honouring their commitments and working together to help vulnerable migrants on the Greek islands. I am grateful to Member States participating in the scheme and hopeful that more will continue to join us."
As much as the EU remains committed to international law, it would seem that under the circumstances of a worldwide pandemic, which has forced countries to go to extremes in terms of limiting the liberties of their own citizens to fight Covid-19, it should be possible to find ways temporarily to suspend the right of third-country nationals to migrate to the EU.
Judith Bergman, a columnist, lawyer and political analyst, is a Distinguished Senior Fellow at Gatestone Institute.