2.2 Responding to the new reality of the COVID-19 pandemic


The COVID-19 pandemic affected nearly every aspect of life across the globe. Naturally, the health emergency had an impact on both migration flows and the functioning of asylum systems. National authorities had to balance restrictive measures to stop the spread of the virus and respecting the right to asylum for people in need of protection. 

Following the World Health Organization (WHO) announcement of the COVID-19 pandemic on 12 March 2020,153 all
EU+ countries declared either a state of emergency or some form of extraordinary situation under national law and authorities implemented specific measures to safeguard public health and safety.154 At the initial stage of the pandemic, the reintroduction of internal border controls was deemed necessary by a number of countries to prevent the spread of COVID-19 across the Schengen area. External borders were also closed for non-essential travel. In March 2020, the European Commission issued a communication to this end, calling for a temporary restriction on non-essential travel to the EU, exempting persons in need of international protection and those who must be admitted to the territory of Member States for other humanitarian reasons.154 The communication also underlined that any restrictions in the field of asylum, return and resettlement must be proportional, implemented in a non-discriminatory way and take into account the principle of non-refoulement and obligations under international law.

In line with requirements of social distancing and preventative measures, restrictions were placed on accessing facilities for the registration and lodging of an application for international protection, as well as conducting personal interviews. Services were initially suspended in some countries for a brief period of time but resumed once the necessary arrangements were in place to adjust to the new circumstances and safety requirements (for example by rearranging waiting rooms, minimising the number of people waiting, installing plexiglass in interview rooms, extending applicable deadlines and time limits, and creating special registration centres).156  Measures were also introduced in collective reception facilities to ensure social distancing and hygienic conditions, with the use of protective equipment (e.g. masks), improved sanitation and disinfections. Information campaigns were key in increasing awareness about the spread of COVID-19, and a number of services, such as educational activities and counselling, were moved online to minimise physical contact.157 

In second instance processes, measures were put in place in line with the general adaptations in public administrations, consisting of brief access restrictions at the initial stage of the pandemic until the reorganisation of services and adaptation of working arrangements. The reduced availability of flights and restrictive entry measures introduced by third countries disrupted both voluntary and forced return procedures.158 
 
Emergency clauses, associated measures and possible derogations in asylum, reception and return procedures, which were justified on the basis of public health, may have had an impact, albeit temporary, on the observance of fundamental rights and freedoms. Stakeholders stressed that the measures must be temporary, proportionate and applied only when necessary.159  Fully acknowledging the difficulties faced by Member States when implementing relevant EU rules during the pandemic, the European Commission issued a communication to provide guidance on ensuring the continuity of asylum and return procedures and resettlement.160 UNHCR also issued a set of key legal considerations on access to territory for persons in need of international protection in the context of the COVID-19 response,161  as well as a set of practical recommendations and good practices to address protection concerns.162  Despite efforts made by EU+ countries to prevent the spread of COVID-19 among applicants, it was nevertheless reported that at times the conditions in reception facilities were not adequate due to overcrowding, long lines for basic services, intermittent access to tap water, a lack of personal protective equipment and hygiene products, and insufficient medical services.163164165 In addition, restrictions in accessing reception facilities may have deprived some applicants of services provided by civil society organisations, such as legal counselling.166, 167

In an effort to continue to provide services while adhering to the new measures, EU+ countries digitalised many steps of the asylum procedure by developing and implementing new electronic systems. Technology was used, for example, for online registration of applications, remote interviewing and the provision of information and interpretation services, notification of decisions and information on the status of a case.168 Many of these solutions may remain on a more permanent basis to increase the efficiency of asylum systems, while others may be used as methodological blueprints in case EU+ countries are called to address similar challenges in the future. At the EU level, the pandemic provided the opportunity for EU agencies to make optimal use of digital capacities and expertise to continue their operational activities.169  

The European Commission presented a White Paper on Artificial Intelligence (AI) at the beginning of 2020 and ran a consultation process between February and June 2020 on the document.170 This process led to the proposal of a first-ever legal framework on AI171 and a new Coordinated Plan with Member States aiming to guarantee the safety and fundamental rights of people and businesses, while strengthening AI uptake, investment and innovation across the EU.172 These are complemented with new rules on machinery products to adapt safety rules and increase users’ trust. 173 The new rules follow a risk-based approach, within which AI systems used in migration, asylum and border control management were identified as high-risk systems. This means that they will be subject to strict obligations before they can be put on the market.174

 

 

[153] World Health Organization. (2020, March 12). WHO announces COVID-19 outbreak a pandemic. https://www.euro.who.int/en/health-topics/health-emergencies/coronavirus-covid-19/news/news/2020/3/who-announces-covid-19-outbreak-a-pandemic
[154] European Asylum Support Office. (2020, June 2). COVID-19 emergency measures in asylum and reception systems. https://www.easo.europa.eu/sites/default/files/covid19-emergency-measures-asylum-reception-systems.pdf 
[155] European Commission. (2020, March 30). Communication from the Commission. COVID-19 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. https://ec.europa.eu/home-affairs/sites/default/files/what-we-do/policies/european-agenda-migration/20200327_c-2020-2050-report.pdf
[156] European Asylum Support Office. (2020, June 2). COVID-19 emergency measures in asylum and reception systems. https://www.easo.europa.eu/sites/default/files/covid19-emergency-measures-asylum-reception-systems.pdf 
[157] European Asylum Support Office. (2020, June 2). COVID-19 emergency measures in asylum and reception systems. https://www.easo.europa.eu/sites/default/files/covid19-emergency-measures-asylum-reception-systems.pdf 
[158] European Asylum Support Office. (2020, June 2). COVID-19 emergency measures in asylum and reception systems. https://www.easo.europa.eu/sites/default/files/covid19-emergency-measures-asylum-reception-systems.pdf 
[159] European Union Agency for Fundamental Rights. (April 2020). Bulletin #1. Coronavirus pandemic in the EU -Fundamental Rights implications: 1 February-20 March 2020.
https://fra.europa.eu/sites/default/files/fra_uploads/fra-2020-coronavirus-pandemic-eu-bulletin_en.pdf 
[160] European Commission. (2020, April 16). Communication from the Commission, COVID-19: Guidance on the implementation of relevant EU provisions in the area of asylum and return procedures and on resettlement: C(2020) 2516. https://ec.europa.eu/info/sites/info/files/guidance-implementation-eu-provisions-asylum-retur-procedures-resettlement.pdf
[161] United Nations High Commissioner for Refugees. (2020, March 16). Key Legal Considerations on access to territory for persons in need of international protection in the context of the COVID-19 response. https://www.unhcr.org/cz/wp-content/uploads/sites/20/2020/04/UNHCR-Legal-Considerations-on-Access-to-Territory-in-the-Covid-19-Pandemic-March-2020.pdf
[162] United Nations High Commissioner for Refugees. (April 2020). Practical Recommendations and Good Practice to Address Protection Concerns in the Context of the COVID-19 Pandemic. https://www.unhcr.org/cy/wp-content/uploads/sites/41/2020/04/Practical-Recommendations-and-Good-Practice-to-Address-Protection-Concerns-in-the-COVID-19-Context-April-2020.pdf  
[163] Equal Rights Beyond Borders. Abandoned and neglected: the failure to prepare for a COVID-19 outbreak in the Vial refugee camp: November 2020 update. https://750025df-472c-4390-a6e1-210ba5963d02.filesusr.com/ugd/c7db89_dc012ee9e5714a27b4ceeeba37b4cd5a.pdf  
[164] Spanish Commission for Refugee Aid | Comisión Española de Ayuda al Refugiado. (June 2020). Informe: Situación de las personas en necesidad de protección internacional ante la COVID-19 [Report: Situation of persons in need of international protection in light of COVID-19]. https://www.cear.es/wp-content/uploads/2020/06/Informe-COVID_web.pdf  
[165] Forum réfugiés - Cosi. (May 2020). L’impact de la crise sanitaire sur le droit d’asile en France [Impact of the health crisis on asylum law in France]. https://www.forumrefugies.org/images/s-informer/positions/france/Note_de_plaidoyer_Limpact_de_la_crise_sanitaire_sur_le_droit_dasile_en_France__Mai_2020.pdf 
[166] AsyLex Legal Advisory. (2020, October 30). OHCHR: Draft General comment No 5 (2020) on migrants’ rights to liberty and freedom from arbitrary detention: Commentary by AsyLex – the online legal aid on Swiss asylum law (Switzerland). https://www.ohchr.org/Documents/HRBodies/CMW/CFI-GC5-2020/NGOs/gc5-asylex.docx
[167] Friedrich Ebert Stiftung, Brussels Office. Input to the EASO Asylum Report 2021 
[168] European Asylum Support Office. (2020, December 7). COVID-19 emergency measures in asylum and reception systems: Issue No 3. https://easo.europa.eu/sites/default/files/publications/COVID-19%20emergency%20measures%20in%20asylum%20and%20reception%20systems-December-2020_new.pdf 
[169] European Union Agency for Criminal Justice Cooperation. (2020, November 20). EU Justice and Home Affairs agencies put focus on digitalisation. https://www.eurojust.europa.eu/eu-justice-and-home-affairs-agencies-put-focus-digitalisation
[170] European Commission. (2020, July 17). White Paper on Artificial Intelligence: Public consultation towards a European approach for excellence and trust. https://ec.europa.eu/digital-single-market/en/news/white-paper-artificial-intelligence-public-consultation-towards-european-approach-excellence

[171]  Proposal for a Regulation of the European Parliament and of the Council laying down harmonised rules on artificial intelligence (Artifical Intelligence Act) and amending certain union legislative acts, COM(2021) 206 final. https://digital-strategy.ec.europa.eu/en/library/proposal-regulation-laying-down-harmonised-rules-artificial-intelligence
[172] European Commission. (2021, April 21). Annexes to to the Communication from the Commission to the European Parliament, the European Council, the Council, the European Economic and Social Committee and the Committee of the Regions - Fostering a European approach to Artificial Intelligence: Coordinated Plan on Artificial Intelligence 2021 Review. COM(2021) 205 final. https://digital-strategy.ec.europa.eu/en/library/coordinated-plan-artificial-intelligence-2021-review
[173] Proposal for a Regulation of the European Parliament and of the Council on machinery products (Text with EEA relevance), COM(2021) 202 final. https://ec.europa.eu/docsroom/documents/45508
[174] European Commission. (2021, April 21). Europe fit for the Digital Age: Commission proposes new rules and actions for excellence and trust in Artificial Intelligence. https://ec.europa.eu/commission/presscorner/detail/en/ip_21_1682

 

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