13th April 2020
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 1st 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 21st 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 1st October 2020 and family members with a visa due to expire before 1st 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 2nd April and 9th July inclusive. Thus, if one holds a work, student, visitor, limited or interim visa with an expiry date of 2ndApril to 9th July inclusive, and are still in New Zealand, the visa will be automatically extended to 25thSeptember 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 1st 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.
 – A LEGAL REVIEW OF IMMIGRATION POLICIES AND BORDER CONTROLS){kind=link}
2nd April 2020
THE EFFECT OF COVID – 19 PANDEMIC ON CONTRACTUAL OBLIGATIONS
INTRODUCTION:
In all human endeavours, the principle of Sanctity of Contract guarantees the performance of contractual obligations ensuring that parties are bound by the terms of their agreement and cannot renege from the contract on the basis that the terms of the contract are onerous to perform or unfavorable to either party.
Like other principles of law, Sanctity of Contract is not without exceptions. For instance, parties can agree on the suspension or termination of contractual obligations upon occurrence of certain events. Such events can be in form of the actualization of the purpose of the contract or by the occurrence of a “force majeure” event.
Force Majeure has been defined as the superior force that prevents parties from meeting their contractual obligation. It is inserted as a protection clause in most contracts to remove liability for unavoidable catastrophes that interrupts the expected course of events and restricts the performance of a contract. However, in the absence of force majeure clause in the agreement of parties, the concept of Frustration of Contract can be pleaded and successfully relied upon by a party.
The concept of Frustration of Contract has been recognized as an exception to the Sanctity of Contract. In Nospecto Oil & Gas Ltd. v. Kenney & Ors. (2014) LPELR – 23628 (CA), the Courtheld that frustration in a contract arises when an event occurs without the culpability of any of the parties and which hinders or prevents the performance of an obligation or duty under the contract and fundamentally changes the circumstance and striking at the root of the Agreement.
Flowing from the above judicial authorities and the proactive measures adopted to curtail the spread of Coronavirus Disease 2019 [COVID–19], we consider it necessary to answer the following questions:–
– whether the global outbreak COVID–19 and the resulting measures employed by the Federal Government of Nigeria [i.e. the prohibition of mass gatherings and inter-territorial restrictions] can be regarded as a force majeure to constitute an unforeseen circumstance[s] capable of frustrating the Agreement of parties?
– if the answer is in the affirmative – what happens when the force majeure is longer than the period provided by parties for suspension of their contract? and
– what are the remedies available to parties?
COVID – 19 AND FORCE MAJEURE OR FRUSTRATION OF CONTRACT:
There will be no difficulty classifying COVID – 19 as force majeure even though parties do not include “pandemics” as part of circumstances constituting force majeure in their contracthowever there are other words that may be construed as addressing the issue of pandemics within the definition/description of what amounts to force majeure in most contracts. In the absence of such express provision, it will be necessary to have recourse to the principle of frustration of contract.
The Supreme Court in Nwaolisah v. Nwabufoh (2011) LPELR – 2115 (SC) held that “a contract is not frustrated merely because its execution becomes more difficult or more expensive that either party originally anticipated and has to be carried out in a manner not envisaged at the time of its negotiation”.
The Supreme Court’s decision in Nwaolisah v. Nwabufoh(Supra) made it pertinent to note that it is the nature of the contractual obligation to be performed by a party that determines whether COVID – 19 pandemic or the prohibition of mass gatherings and interterritorial restrictions can frustrate the contract.
In other words, where the contractual obligation to be performed by a party is such that cannot be performed due to restriction of movements, prohibition of mass gatherings orinterterritorial restrictions, then COVID – 19, can, in that circumstance, constitute circumstances capable of frustrating Agreement of parties.
Exceptions to the above;
– where other options are available to a party in the performance of his contractual obligations; and
– where COVID–19 caused the death of a party to a contract for personal service. In the latter situation it is the death of the party that frustrates the contract and not COVID–19.
In summary the nature of the contractual obligations to be performed by a party to a contract would determine if the COVID-19 pandemic and the Federal Government of Nigeria’s restrictions can be regarded as a force majeure to constitute an unforeseen circumstance[s] capable of frustrating the agreement of parties.
COVID – 19 AND THE SUSPENSION OF A CONTRACTUAL OBLIGATION:
For contractual obligations that cannot be performed, due to the COVID–19 pandemic and the resulting measures imposed by the Federal Government of Nigeria, these can be suspended temporarily until the frustrating intervening event has abated and parties resume business.
It is however not in all circumstances that a contract will be suspended due to frustration. Frustration a times may warrant the immediate discharge of a contract. For instance, the Court in Okereke & Anor v. Abia North L.G.A (2014) LPELR – 23770 (CA) recognized the frustration of contract as one of the ways in which a contract can be discharged.
A discharge of contract by frustration in the present circumstance is where, for instance the COVID-19 situation subsists beyond the period agreed by parties for suspension of their contract and time is of the essence in the performance of the contract; the contract will be discharged.
COVID – 19 – REMEDIES AVAILABLE TO PARTIES:
Except parties expressly provide otherwise in their agreement, the remedy available to them is dependent on whether the contract is suspended or discharged by frustration. Generally, suspension of contract merely puts the rights and obligations of parties in abeyance and does not affect the validity or subsistence of the contract.
Judicial Remedies:
– By an Injunctive Order, a party can be restrained from rescinding the contract during the period of suspension, and at the end of the suspension a party can seek an order of specific performance if the other party fails to discharge his contractual obligation.
– Contrarily, parties are legally relieved of all pending contractual obligations when a contract is discharged by frustration. However, where there is a payment of monetary sum without the performance of any contractual obligation, the party who paid the monetary sum is entitled to recover same in an action for money had and received and under the failure of consideration.
Non Judicial Remedies:
– Parties can proactively extend the agreed period for suspension of their contract. This can be done by an ADDENDUM to the already signed contract.
– Parties can extinguish the rights and obligations that the original contract has created and substitute the same with a new agreement.
The second option above has long been recognized and sanctioned by the Supreme Court in Grover v. Int’l Textile Ind. (Nig.) Ltd (1976) LPELR – 1342 (SC) when the Honourable Court held that:
“the law is well settled that a later Agreement by the parties to an original contract, to extinguish the rights and obligations that the original contract has created is itself a binding contract, provided that the later Agreement is either made under seal or is supported by consideration.”
CONCLUSION:
From all intent and purposes, COVID–19 pandemic and its preventive measures may constitute a force majeure event or unforeseen circumstances capable of frustrating performance of the contract. However, it requires a fact-to-fact analysis of the terms of the Agreement of parties and the contractual obligation[s] to be performed to determine whether such a contract can be suspended or discharged and the applicable remedy.
WIGWE & PARTNERS
MARCH, 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.
