(Published also in Bulgarian here. We thank Deian Vladov for the courtesy translation)
“The inrush of the COVID-19 pandemic has completely shifted away the focus from human rights and, in the context of survival, the fight for rights is now harder and even “inhumane”.
“The right to health is not contrary to human rights altogether because the right to health itself is a fundamental human right inseparably connected to all other human rights.”
“In the epidemic context it is risky to have a completely marginalized group in our society the condition and social behavior of whom are unknown.”
We sat down with the legal experts
Diana Radoslavova – attorney-at-law, head of CLA-Voice in Bulgaria
Radostina Pavlova – legal expert
Dilyana Giteva – attorney-at-law
Does the situation which the world and Bulgaria are facing right now offer any new perspective of reflecting about respecting human rights, including, but now only, the rights of migrants and refugees?
The idea of human rights and respectively their protection has met a number of obstacles during the last decade of mankind history, worldwide but moreover in Europe. The unwavering refugee flows toward the continent in the years after 2013 and the subsequent media, political and societal reaction of fear, rising nationalism, border control and literal shutting down of the European frontiers from all directions gave a clear indication of the fact that the value of human life and thus the value of human rights, are extremely devalued. In this dehumanized political situation, the invasion of the COVID-19 pandemic has completely shifted the focus away from human rights and, in the context of survival, the fight for rights is harder and even “inhumane”. The same could be said about Bulgaria’s drastic intention to derogate from the European Convention on Human Rights (ECHR) regarding the declared state of emergency. Fortunately, our government has abandoned its intentions and has even joined other 16 states in a Declaration calling for respect for the rule of law, democracy and human rights in the current state of emergency. The worrisome question about how this declaration and its enforcement will be respected still remains, amid closed down courts and lack of effective control over the executive authorities.
In the state of emergency one of the first restrictions that came into force everywhere was in regards to the freedom of movement, including between states members of the European Union – something unseen and even unthinkable up until this moment. In some way this has put all of us in the situation migrants face – the inability to pass through a certain border, regardless of the need to leave your country of origin, be it for an economic or a humanitarian reason; the impossibility to be with your family. Perhaps this will make us appreciate how important freedom of movement is, and also make us feel more compassion especially for the ones looking for asylum, and support more legal ways for migration.
In regards to human rights in general, I do think that somehow we have returned to a basis situation in which we relearn the main points of the rule of law and the democratic order: as if a new realization is taking place first hand for the ordinary person – what does separation of powers stand for, the role of the judiciary.
It’s as if the meanings of terms such as freedom of speech and non-discrimination are becoming as real as flesh and blood. At the forefront are now also a group of rights which had seen little attention until now, including from human rights activists – the social and economic rights: the right to make a living and provide for your family; the right to a minimum standard of living, like having a home, for example.
Under the pretense that it’s done for the preservation of public health, some countries have introduced measures which are not in any way related to public health or are not related to the declared purpose. Oftentimes these measures are not only expensive and unnecessary, but also an unlawful infringement of the rights of citizens. An example of such measures is the suspending of court hearings (with a few exceptions), including of cases that require timely judicial control in order to uphold human rights standards. In the context of migration, these are the cases concerning the lawfulness of detention. Additionally, not reviewing the appeals against the State Agency for Refugees (SAR) for refusal of opening an asylum procedure could also affect the rights of asylum seekers, when the refusal was unfounded. Then, the foreign nationals without any documents are left in a very vulnerable situation.
During the pandemic in Bulgaria various measures concerning freedom of speech have been adopted, but also other legislative changes have taken place, in regards to the rights of citizens, which have been introduced not only for the duration of the state of emergency, but will continue to be effective as permanent legal amendments.
As to the reevaluation of the way human rights are regarded, what I’ve noticed is how fragile the principles of democracy and rights could be and how in a manipulative way public health is portrayed as contrary to fundamental human rights while people are forced to choose between them. Incorrectly posed questions often lead to incorrect answers. The right to health is not contrary to human rights in general, because the right to health itself is a fundamental human right inseparably connected to all other human rights. In addition, the violation of human rights could have serious health consequences whilst respecting them could immensely reduce health risks. Regardless of the human rights’ restrictions undertaken to protect a nation’s health, they must abide by the necessity and proportionality requirement.
Do migrants pose any threat to public health? What steps should be undertaken so that migrants’ rights and public health are protected?
Unfortunately during the last few years the word “migrant” itself has taken on a criminal-like and predominantly negative connotation. So, naturally, the perception of migrants is one of being dangerous to civil order and security, and now even to our health. But to me what’s even more worrying is the lack of sympathy and compassion toward the situation of migrants as a whole. The information about the situation in Syria and Turkey, the masses of people gathered at the border with Greece, the responsibility of other EU countries in this consecutive crisis and the efficiency of the European migration policies – all of that has gone silent. Occasionally one can hear how refugee and migrant reception centers are potential hot spots for diseases, but at the same time no specific steps are taken to prevent this, such as individual or group quarantine, access to healthcare services, including for people without legal status and outside of the standard refugee-migrant system. I welcome the activity of the non-governmental sector in this respect but without political will cooperation is extremely difficult.
When talking about how the virus spread around the world through people travelling between states then yes, undoubtedly there is a connection between migration and the epidemic. In Bulgaria, as well, a number of the cases, according to experts, are of people who have arrived back from abroad – Bulgarians working in other EU countries or people arriving from business trips or vacations. When we speak up for the rights of migrants, we are in no way saying that third country nationals (outside of the EU) should be treated more favorably. The necessary measures should be applied to everybody equally. For example, if the quarantine is mandatory for every newly arrived or returning to Bulgaria person, then this should apply equally to all. There is no foundation for and actually is a breach of the law to seal off the border and not allow in people seeking international protection, commonly known as refugees. There’s no obstacle for them to be put under quarantine – not in the form of detention, but in the reception centers for people seeking protection where, according to the authorities, all conditions for that are available. In addition, the strict regime of entry and exit applied at the reception centers for asylum seekers is unfounded and a violation of rights. There shouldn’t be any measures that are more restrictive than the ones applying to other citizens.
Migrants are no threat to public health. The panic and insecurity of tomorrow are a favorable ground for all kinds of irrational fears and stereotypes. They themselves lead to adopting of ever so irrational and discriminatory measures. An example of this is the check-points placed in the Roma districts. Such precedents suggest that the authorities won’t think twice before applying the same treatment to other communities in case they manage to locate them. The measures that could be applied to counter such actions include prevention and active investigation into all acts of xenophobia, racism and discrimination aimed at minorities.
Some of the migrants in Bulgaria are kept in detention centres – is that an appropriate and legal measure? If not then what would you suggest?
The detention centers in Bulgaria, i.e., the “Special Homes for Temporary Accommodation of Foreigners (SHTAF) are institutions in which foreign citizens awaiting deportation are placed. Such detention, as stipulated by the law, should be for the shortest period possible and only for the purpose of organizing the deportation. Thus it is legal only if a deportation is underway in the foreseeable future, otherwise the foreign citizens should be released immediately. Bearing in mind that nowadays no flights are taking place and the borders are closed, there is no reasonable prospect of deportation and the detention is hence illegal. And not only that, but, also, keeping a large number of people locked up together and guarding them is an unneeded risk and taking up of police resource which surely would be needed elsewhere. According to statistics of the MoI, as of 12th of April 2020 the two detention centers – one in Busmantsi near Sofia and another in Lyubimets near the Turkish border – held around 80 individuals. There are specific cases of which we are aware concerning elderly people, people with disabilities and other vulnerabilities.
We propose that as many people as possible be released so that they could be placed in the community, supported and with enabled access to the needed services whilst those who have applied for asylum (18 as of 12.04.2020 according to the MoI) be immediately transferred to the open reception centers of the SAR, where, if needed, they be put under quarantine for the period set by the law.
It is important of course that suitable conditions are guaranteed in order to avoid these people being left on the streets upon their release and for those that don’t have a place to stay a suitable placement and access to basic services be provided.
The sole legal aim of the immigration centers is an imminent deportation of illegally residing foreign citizens. In the state of world pandemic and an impossibility to travel, deportations are practically suspended for an undetermined period of time. Therefore, the legal basis for the detention automatically ceases to exist. Apart from the legal reasons, from a medical perspective and with a preventive aim keeping large groups of people in one place is inadvisable and extremely dangerous, especially for the more vulnerable ones.
The undocumented individuals who are detained in the immigration centers are in a situation where, on one hand, their deportation orders won’t be executed, which makes their detention unfounded; on the other hand, they are at risk of being infected due to the fact they are forced to share areas with a large number of people and there are no conditions for self-isolation. Even before the pandemic we have received multiple complaints from the people placed in these centers for the poor hygiene, lack of warm water, sanitary materials etc.
What do international organizations recommend? Share some good practices; according to your opinion from other European countries, could they and how might they be applied in Bulgaria?
The Commissioner for human rights at the Council of Europe Dunja Mijatović urges the member states to review the cases of foreigners placed in detention and, if possible, to revoke those detention orders. The Commissioner has called on the member states to abstain from issuing new detention orders to people who can’t be deported back to their country of origin in the near future. Portugal’s example is very positive & poignant – all undocumented migrants were granted temporary status in order to have access to medical and other services of vital necessity.
In the current pandemic situation, in the course of the past few days, multiple European countries have ceased the detention of foreigners and have released them from the immigration centers – this was done in Spain, Great Britain, France, Belgium and The Netherlands. Aside from the call of the Commissioner for Human Rights at the Council of Europe, Dunja Mijatović for the halt on all immigration detention and the release of all foreign nationals, we must mention as well the position of the Committee for the Prevention of Torture which has published a Statement on principles on treatment of persons deprived of their liberty in the context of the coronavirus disease (COVID-19). These principles recommend to “refrain as much as possible from the detention of migrants” and a wider application of alternatives.
Are migrants and refugees more vulnerable now, when it comes to respect of their rights? Which are the most critical issues that migrants are facing now, bearing in mind the situation?
Much like each one of us, nowadays the challenges have increased for migrants, refugees, asylum-seekers, third country nationals without documents. Their administrative procedures have been halted, even the detained individuals don’t have access to court, and, at the same time the need for a job, providing for themselves and their families remains. The country’s emergency policies to support its citizens do not apply in general to migrants. There is an ongoing initiative for humanitarian support organized by several non-governmental organizations, which is vital for most of the migrants. But most serious situation is that of the undocumented migrants, excluded entirely from the system and its oversight over them; same goes for the status holders due to the lack of integrational policies in Bulgaria which has left them excluded as well from the system and who are, for now, stuck in Bulgaria.
Apart from the difficulties accessing the asylum procedure, as mentioned above, and the fact that more restrictive measure are being applied to asylum-seekers compared to the ones for Bulgarian citizens, many of the foreign nationals in Bulgaria are especially affected by the situation, including the already unfolding economic crisis. A portion of the working asylum-seekers and refugees have already lost their jobs while others are living under constant stress on whether this might happen. A considerable percentage of them work in the services sector – restaurants, for example – and are significantly affected. Their access to the support measures announced by the state is highly problematic and completely impossible for those who work in the informal sector, the latter being quite a few. It is visible around the world that the people most affected by the epidemic are the ones that are in an unequal social standing in general. This affects their access to adequate medical services in case of an infection – something that worries some of the migrants here, especially ones with elderly relatives or people with medical conditions. Some have shared to have decided by themselves to enter self-isolation in their homes, to avoid contracting the virus at all costs.
Some of the people seeking protection live in refugee centers where hygiene and possibilities of protection against diseases are to be doubted. Recent reports about increase in domestic violence have come to light in a situation where people are forced to remain at home and spend long time in enclosed spaces with each other.
Refugees and migrants are at risk of being the first ones to lose their jobs and to find themselves remaining with no funds for food or paying rent. The closure of fast-food diners, cafes, hotels, restaurants, will affect disproportionately the migrants since many of them work in such facilities or own such type of small business.
What are your impressions from the actions of Bulgaria and other countries for combating the specific obstacles faced by foreign nationals without documents in a situation of a state of emergency and epidemic?
It is safe to say that undocumented foreign nationals in Bulgaria, who for one reason or another cannot go back to their countries of origin, and also some of who have been living “under the radar” for years now (according to data by the MoI as of July 2019, there wee around 900 such individuals known to the authorities, and very likely a lot more are unknown) are probably the most vulnerable group. Aside from the fact that for them the whole situation is extremely hazardous, not having legal access to the labour market and to providing a home and food for themselves, without any right to healthcare and social benefits, in the context of an epidemic it is risky to have a completely marginalized group in our society the condition and social behavior of who are unknown. Most countries, including neighbouring Romania and Greece, as well as Poland, Spain and many more, have introduced into their legislation mechanisms for regularizing, be it temporarily or permanently, the status of such people – either through giving them an opportunity for obtaining status on the basis of integration or by introducing the so-called “tolerance status” which allows the foreign national to work and provides them with access to basic services until their deportation takes place. Most importantly: such a measure gives the individual a document that will identify him or her to the authorities and will give them the opportunity for administrative control – something extremely necessary currently in times of an epidemic situation. An example that illustrates why exactly now it’s important to apply such measures and that their implementation is logical and possible, is Portugal which simply gave full rights, equal to the ones of its citizens to all migrants in the country, regardless of their status, until the end of the state of emergency and at least until the 1st of July 2020. The aim is for the migrants to have access to medical and other services, including the labour market. There are no obstacles and it would be truly rational for this to be applied here as well!
Specific obstacles for the undocumented foreign nationals are related mainly with the fact that the crisis affects predominantly groups that were already in a vulnerable situation. In our reports we have shown that these foreigners, amongst other things, lack access to medical care, minimal material support and official access to the labour marker. The measures enforced during the state of emergency don’t provide in any way special support or access to health or other services to the undocumented individuals. To them apply solely the bans & limitations that have had been imposed prior to the state of emergency. The fear one has of being detained and returned to his country of origin could be a reason for an undocumented person to not seek medical assistance whilst having health issues, thus putting at risk their own life and health but also those of others around them. In general, the important health information related to protection from the virus, steps for prevention of its outspread and the required behaviour of infected persons remains inaccessible to people who are not fluent in Bulgarian or who don’t receive information from the main channels through which it is distributed.
The action that could be undertaken in the current case is to apply specific measures aimed at undocumented foreign nationals, including: 1) explicit ban on detention and repatriation of such an individual and on arrest upon seeking medical information and care; 2) provision of health information available in a language comprehended by the foreigner and via channels accessible to foreign nationals; 3) providing social protection and aid such as food, protective & sanitary materials and shelter to individuals left with no place to live; 4) immediate release of all individuals placed in detention centers on grounds laid down by the legal provisions, applicable in the current situation such as the lack of legal possibility for forceful removal of a foreigner in a state of pandemic; 5) utilization of alternatives to detention provided by the Law on Foreigners in the Republic of Bulgaria (LFRB) and also the possibilities featured in the case management approach applied by CLA –Voice in Bulgaria.
How does the non-governmental sector and, more specifically, the organizations working with refugees and migrants react to the current situation?
Through advocacy campaigns, provision of material support, legal and psychological consultations, health services, providing information related to COVID-19, including ways of protection, ways to stop the spread of the disease, measures needed to be taken if a person has doubts about being infected.
In the current situation we are finding new ways to provide the needed support to refugees and migrants in a way that respects as much as possible their rights whilst granting them fair treatment. We are ready to share our expertise and experience with the state institutions and structures but it’s important to note that the main role is precisely of these institutions and structures and their will for timely and adequate actions.
All of us continue to work and provide the currently much needed services and support to refugees and migrants. Many of the non-governmental organizations have adapted their way to work by including more online activities and abiding by the procedures when conducting personal consultations. Unfortunately, a number of the migrants and the refugees don’t have access to Internet which is needed for participating in online activities. Additional services are available by different organizations – distribution of food packages, a special hotline providing information for COVID-19 in various languages. I would like to believe that the ongoing situation will help us appreciate what we have fought for and gained in the area of human rights in general and particularly with regard to refugees and migrants, and to move forward toward being societies in which respecting human rights is not a vague theory but a conscious way of life.