CORONAVIRUS (COVID-19) – A LEGAL REVIEW OF IMMIGRATION POLICIES AND BORDER CONTROLS

1. Introduction

The global emergence of the Coronavirus (COVID-19) has taken a downward trajectory for most countries in terms of sustaining existing policies on health, insurance, business, immigration, security, public international laws; forcing nations to articulate provisional directives and establish municipal laws to uphold its citizenry, preserve peace and order, while mapping out strategies to curtail the virus-related pandemic.

Although, these impromptu directives are expedient in the given circumstances, the extensive scope of such intervening policies hold an overstretching effect on the rights open to the general population of a state which may comprise indigenes, foreign nationals, immigrants (legal and illegal), tourists, visitors, students, business professionals, to mention a few.

These recently established COVID-19 directives without doubt would have significant legal implications on all and sundry. Hence, border closures, travel restrictions, stay-at-home order, visa offices lockdown wields consequential effects which may innocuously result to mass infringements of the rights and privileges of the transient populace – travelers, tourists, visitors, students, business personnel and immigrants.

2. Permitted Rights of Entry

It is common knowledge that lawful entry into a sovereign state is validated by a Visa, granted for specified purposes of entry, be it for transit, working, medical, student, visitor, business, tourist or relocation basis. Visa approvals are administered by the Immigration offices, Embassies or Consulates.

A Visa is an endorsement on a passport indicating that the holder is allowed to enter, leave, or stay for a specified period of time in a country. t can be described as a “legal paper which has been seen and approved” of every individual travelling out of the country. With such authorization, permits and travel arrangements lies the ensuing rights of travelers/immigrant.

3. Immigration Policies & Border Controls

Most countries in reaction to the COVID-19 pandemic have reorganized their visa applications arrangement, restrict travels, closed borders till further notice, resulting to airlines being grounded and leaving travelers stranded.

On the home front, Nigeria has closed its borders and the Nigerian Immigration Services (NIS) which had earlier rolled out a Visa on Arrival (VoA) application process for business travelers and African nationals to be effective 1^st January 2020 have been constrained to revise same owing to the pandemic. The Federal Government of Nigeria, as part of efforts to prevent and curtail the spread of the virus, has directed the temporary suspension of issuance of Visa on Arrival (VoA) effective from midnight, Saturday 21^st March, 2020.

South Africa issued quite stringent measures in reaction to COVID-19. Previous visa exemptions for national of high risk countries have been cancelled, existing visa waiver agreements for medium to high risk countries are suspended, entry bans of high risk countries are banned, while visa issued to nationals of China or Iran on or before March 15, 2020 have been revoked and declared null and void. Immigration offices are closed and non-citizens arriving on flights from high-risks countries will be turned back.

Although, the United Kingdom (UK) Visa Application Centres (VACs) have been closed, the UK has been quite considerate in relaxing some of its applicable laws in view of the COVID-19 pandemic. Stranded travellers/immigrants that cannot leave the UK owing to travel restrictions or self-isolation related to coronavirus (COVID-19) have been availed an extension of visa for a given period. Holders of Tier 1 Entrepreneur visa whose business operations has been disrupted are offered a modified package on employment of workers for 12 consecutive months each.

Doctors, nurses or paramedic working for the National Health Services (NHS) have their visa automatically extended by One year if it is due to expire before 1^st October 2020 and family members with a visa due to expire before 1^st October 2020 will also have their visa extended. The extension is free, and no payment is required. It is automatic, no need to apply!

In Europe, most immigration laws have been totally relaxed. For instance, New Zealand released an Epidemic Management Notice on immigration matters, allowing extensions of all temporary entry class visas, where the holder is still in New Zealand, and their visa expires between 2^nd April and 9^th July inclusive. Thus, if one holds a work, student, visitor, limited or interim visa with an expiry date of 2^ndApril to 9^th July inclusive, and are still in New Zealand, the visa will be automatically extended to 25^thSeptember 2020. An email to this effect would be sent to confirm visa extensions.

On the flip side, if one holds a work, student, visitor, limited or interim visa with an expiry date of 1^st April or earlier, and have not applied for another visa, such holder is now unlawfully in New Zealand. One can either leave the country immediately if possible or make a request for a special temporary or resident visa under Section 61 of the Immigration Act.

On March 20, 2020, the United States of America (US) embassies and consulates suspended all routine immigrant and non-immigrant visa services and emergency visa services are available only on a case-by-case basis. While the US maintained most of their visa policies and immigration laws, in terms of testing, treatment and care of immigrants, alternative provisions were considered. Community health centers would provide healthcare services to all patients regardless of immigration status.

The Immigration and Customs Enforcement (ICE) in its “Guidance on COVID-19” stated that Immigration enforcement would not take place at or near health care facilities as ICE will not carry out enforcement operations “at or near health care facilities such as hospitals, doctors’ offices, accredited health clinics, and emergent or urgent care facilities, except in the most extraordinary of circumstances”. The unanswered question is what happens within the period before the immigrant gets to the health centre and/or after he leaves the health centre to his place of abode?

From review, the immigration policies and border controls however aimed towards similar combative measures remains a country-by-country arrangement and the consequential rights that may accrue to stranded travelers/immigrants would vary, that is if any right exists and if positive how such rights can be claimed in this COVID-19 era.

4. Rights of Travelers/Immigrants

The rights of travelers/immigrants are embedded in the airlines of choice, country location and regulatory association/commission guiding the passengers’ right. Amid the COVID-19 outbreak, travel plans of passengers have been denied, downgraded, delayed, and cancelled leaving many stranded. Regulatory Authorities are enforcing guidelines to ensure that travelers’ rights are preserved – the Africa Union and European Union as a Case Study.

The approach of the African Union (AU) in the spate of the COVID-19 pandemic has been generic in line with the World Health Organizations (WHO) directives imploring stranded travellers/immigrants to comply with the directives for preventing the spread of the virus and limiting travels for meetings. Thus, its advice for travellers/nationals caught up in the COVID-19 is to stay at their abodes, hotels and isolate.

On the other hand, the European Union (EU) is more robust on its guidelines for travellers/immigrants. It is apt to mention that the emergence of COVID-19 being novel was not contemplated in EU guidelines for compensation and protection of travellers’ rights remain intact except for “extraordinary circumstances”. What are ‘extraordinary circumstances’?

It is entrenched in the EU guidelines that an airline has the right not to compensate an individual, if any delays was caused by ‘extraordinary circumstances”. Extraordinary circumstance for flight delays include bad weather (i.e. snowstorms, windstorms, low visibility), strikes of the airport personnel and union strikes, bird strikes, Air traffic control restrictions (including runway closures) and political and civil unrest.

In view of this, can cancellation as a result of border closures be considered as an “extraordinary circumstance”? Can airlines hide under the exemption to avoid providing compensation to stranded travelers? To clarify the above requisitions, the International Air Transport Association (IATA) has lent a voice on the need for total compliance with the European Union’s Passenger Rights’ Guide.

IATA officials hold the considered view that the type of compensation detailed on the guide is “inadequate” and makes the airlines responsible for “unlimited care to passengers who have been stranded as a result of government decisions to close borders” in this case of COVID-19. The following rights are upheld and preserved in the EU’s guidelines:

a) Air Passenger Rights:

If one is scheduled to travel through Europe with an aeroplane, but due to the recent events one’s flight has been cancelled, the EU guarantees some fundamental rights as an air passenger which may depend on the airline.

• Right to reimbursement or re-routing. If the airline cancels flights, no matter what the reason is, they should offer the affected passenger the following choice to pick among: reimbursement (refund), re-routing at the earliest opportunity, or re-routing at a later date at the passenger’s convenience.
• Right to care. All passengers who are affected by a flight cancellation have the right to care, free of charge which must be offered must by the operating air carrier including meals and refreshments based on the waiting time; hotel accommodation if necessary, and transport to the place of accommodation.
• Right to compensation. Travellers whose trips are cancelled due to ‘extraordinary circumstances’ that could not have been avoided even if all reasonable measures had been taken are also entitled to for fixed sum compensations.

b) Rail Passenger Rights:

• Right to be informed. Before rail passengers buy a ticket railway, ticket sellers must provide passengers, upon request, with pre-journey information. Information here means any activities that have a high chance to disrupt or delay services. Similar information should be provided to passengers during the journey as well.
• Right to Compensation. In cases when passengers have not asked for reimbursement but rather for the continuation of the journey or re-routing, passengers also have the right to compensation.

5. Obligations of Airlines

In order to protect travelers and respect their rights, the European Union established the EU Regulation 261/2004. The Regulation sets out minimum rights for passengers when they are denied boarding against their will, their flight is cancelled, or their flight is delayed and other similar cases.

It should be noted that all airlines have their corresponding regulations and passengers’ rights shall be on a case by case basis. The EU Regulation applies only to flights that are in one way or another connected to the EU, and only the passengers of such flights can make a compensation claim where the flight is within the EU and is connected to the EU.

6. Enforceability of Rights

Having highlighted a few of the likely rights stranded travelers/immigrants may benefit, it is imperative to discuss how viable and enforceable these rights are taken into considerations the restrictions placed in view of the COVID -19 pandemic.

ADR- Recourse may be sought through any operative Alternative Dispute Resolution entity (ADR) in the country. Neutral out-of-court bodies such as conciliators, mediators, arbitrators, and the ombudsman or complaints boards may be consulted to enforce claims against the airline. In the alternative, there exist Online Dispute Resolution (ODR) platforms, if you bought your ticket online. Complaints can be submitted through the online platform. The EU has an Online Dispute Resolution site where disputes are resolved at no cost.

COURT – Approaching a Court with competent jurisdiction is another mode of enforcement of rights should the earlier recommended legal redress options fail. A compensation claim may be presented at the place of arrival or departure for flights as operated by the airline, or before the courts in the country where the airline is registered. In Nigeria, depending on the claims, the Lagos State Court for Small Claims procedure requires the complaint to pay a court fee as assessed. The fee will be reimbursed and factored in the judgment if the case is successful. The court is not viable means of enforcement as most courts have been closed till further notice due to the pandemic.

Basically, it is advisable to promptly present valid claims as the laws on limitations would apply state by state. For instance, the EU countries have different rules on how far one can claim compensation, and the limitation periods. The time limit, in which a person can claim compensation depending on the origin of the airline, is as follows: 1 year – Belgium and Poland, 2 years – Croatia, Iceland Slovakia, Slovenia, Switzerland, 2 years 4 months – Italy, 3 years – Austria, Czech Republic, Denmark, Estonia, Finland, Germany, Lithuania, Norway, Portugal, Romania, Sweden, 5 years – Bulgaria France, Greece, Hungary, the Netherlands, Spain, Scotland, 6 years – Cyprus, Ireland, UK (except Scotland), 10 years – Luxembourg, No limit – Malta.

7. Conclusion

It is settled that the affairs governing immigration laws, border controls, travel restrictions, enforced to curb the spread of the COVID-19 pandemic have been established in good faith. However, the rights of persons caught in the other end of the laws may not be fully recognizable. The Public (State) laws are overriding private rights of individuals, the law of reciprocity is abandoned and those at sea, are subjected to the laws of the Flag (Country) of the ship.

Legal pundits of Public International Laws have encountered some difficulties in reaching a consensus on appropriate remedies and framework on how the legal rights of immigrants and travelers can be sustained. From our standpoint, it is more than a jurisprudential assessment rather it is required that all nations soft-pedal their laws to accommodate innocent by-standers.  

The laws on immigration, and border controls should be flexible. Governments should take a cue from the Portugal Government who granted migrants and asylum seekers full citizenship rights in this COVID-19 Outbreak, of which such rights may be revoked after this pandemic is resolved.  In considering legal rights of individuals, it is should be more of a call that humanity is preserved rather than an exercise of sovereign states’ rights and boundary powers.

WIGWE & PARTNERS

APRIL, 2020.

Disclaimer:

The information provided in the write-up does not, and is not intended to, constitute legal advice; instead, the information contained herein are for general informational purpose only. Readers of this write-up should contact their solicitors to obtain advice with respect to any particular legal matter. No reader should act or refrain from acting on the basis of the information herein without first seeking legal advice from their solicitor. All liability with respect to actions taken or not taken based on this write-up are hereby expressly disclaimed.