The Case for Suspending Removals During the COVID-19 Pandemic

Why the Resumption of Deportations of Vulnerable Individuals is Detrimental

Nearly seven months have passed since Canada announced in November 2020 that it would resume removals and deportations after an eight month suspension due to the COVID-19 pandemic. This suspension had limited removals to cases of “serious” inadmissibility.

The decision to resume removals provoked an outcry from immigration advocates, who argued that the decision jeopardized public safety and asked that the previous policy be reinstated (CARL, CBA).

Since that time, Canada has experienced two more “waves” of infection that have been significantly higher than its first, followed by serious lockdown restrictions across the country. The Canadian government continues to advise against nonessential travel.

Likewise, deportations have resumed in many countries – if they ever stopped in the first place. In Australia, deportations to select countries resumed in July. In the US and the UK, deportations never truly stopped.

The United Nations Network on Migration, which includes the UN human rights agency and the UN High Commissioner for Refugees, has called on governments to “suspend forced returns during the pandemic, in order to protect the health of migrants and communities, and uphold the human rights of all migrants, regardless of status.” Most countries have been unwilling to heed this call.

International Pandemic Norms?

Though international law has few direct precedents for immigration policies during pandemics, a landmark decision in 2016, rendered by the International Human Rights Committee (the “Committee”) may provide some justification for curbing removals.

Teitiota v New Zealand concerned a man named Ioane Teitiota from Kiribati, an island in the Pacific ocean that is at risk of submersion due to rising sea levels. Scientists and local Kiribati believe that the island will be unable to sustain human life in the next thirty or so years. Teitiota had sought asylum in New Zealand on the basis that climate change made return to Kiribati impossible. However, his claim had been refused.

The question before the Committee was whether Teitiota had substantiated the claim that New Zealand’s decision to deport him to Kiribati carried a real risk of irreparable harm to his right to life, under Article 6 of the International Covenant on Civil and Political Rights. This article states:

Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

In the end, the Committee found that the risk to Teitiota’s life was not sufficiently imminent (see para 9.12).

However, for the first time, the Committee accepted, in principle, that it is unlawful for states to send people to places where the impacts of climate change exposes them to life-threatening risks or a risk of cruel and inhuman or degrading treatment.

While this judgment is not formally binding on countries and is more directly applicable to refugee claims based on climate change, it points to the legal obligations that countries have under international law to protect all people under their jurisdiction from life-threatening risks. This obligation may be applicable to deportations during a pandemic.

In support of this claim, in Teitiota, the Committee sets out a reminder that States who are party to the Convention have the obligation not to “extradite, deport, expel or otherwise remove a person from their territory when there are substantial grounds for believing that there is a real risk of irreparable harm such as that contemplated in articles 6 and 7 of the Covenant.” The Committee acknowledges that this obligation may not only apply under international refugee law, but also to protect aliens not entitled to refugee status (see para 9.3).

To apply the reasoning in Teitiota to pandemic deportees, we should ask, first, if deportees face imminent, life-threatening risks and, second, if the decision to expose deportees to that risk is arbitrary.

Do Pandemic Deportees Face Life-Threatening Risk?

Each day, the COVID-19 virus and its variants claim thousands of lives around the world and infect millions more. In Canada, there are still nearly 6,000 new cases and 50 new deaths per day. The US’s Centre for Disease Control and Prevention (CDC) website lists 142 countries at “very high” risk of COVID-19 and recommends that travelers avoid all travel to these destinations. Many of the countries on the list are countries to which Canada and the US are likely to seek to deport people, including Mexico, India, the Philippines, Brazil, etc. With only around 5% of the world’s population vaccinated, worldwide conditions are unlikely to change soon (source).

Removals require a great deal of proximate contact between people. Deportees are put in situations where they have to quickly wrap up their lives in Canada. This involves gathering what they need for their travels, clearing out their lodgings, and saying farewell to friends and family (if they have the chance). They may be held in crowded detention centres and come into contact with others while being processed at the airport, sitting on the plane, and transiting. Additionally, upon arrival in their country of destination, they may have to interact with numerous people while resettling, from finding accommodations, food, work, etc. Reports also indicate that most deportations now include CBSA escorts, meaning that CBSA officers exposed in similar ways while making round-trip flights. This puts both deportees and officials at risk of COVID-19 infection.

As for determining whether the risk to life is sufficiently imminent, it must be noted that the outcomes of COVID-19 infection (or infection by one of its variants) are highly unpredictable. Though vaccination is believed to provide considerable protection, at the moment only 3.3% of Canada’s population is fully vaccinated, and only 38.87 partially vaccinated. Plus, deportees are unlikely to be among the fully vaccinated, since early vaccination in Canada prioritized the elderly and frontline medical and care workers.

In Teitiota, Mr. Teitiota’s risk to life was not considered imminent because evidence showed that Kiribati officials were taking steps to address climate change’s toll on the country’s islands (see para 9.12). However, the Committee recognized that in another case, with different facts or in the future, a Kiribati resident might be entitled to protection (see para 9.14). Conversely, pandemic deportees do have ample evidence that their risk to life is imminent. It may not be so a year from now if global transmission decreases or vaccination reaches a critical threshold, but at the moment, statistics and government policies continue to prove that there is a broad recognition of the dangers of transmission and of travel.

Is The Decision To Resume Deportations Arbitrary?

Teitiota indicates that Courts must assess whether there was arbitrariness in a State’s decision to push forward with a measure that poses a risk to life. As restated by the Committee, “Arbitrary deprivation of life is said to involve interference that is: (a) not prescribed by law; (b) not proportional to the ends sought; and (c) not necessary in the particular circumstances of the case.”

Are deportations proportionate and necessary? As indicated by Canada’s prior suspension from March until November 2020, the federal Liberal government did not consider the vast majority of deportations essential. As noted above, conditions have not changed or improved in the meantime. Infections and deaths have only increased across Canada and much of the world.

Determining if the means used are proportionate is rendered more complicated, because so far, Canada has shared little information about how pandemic removals are being executed. What considerations are being taken into account when government officials assess the safety of a return? Does it matter if the country has adequate access to testing, reporting, and vaccination? Does it matter if the country has significant levels of spread? Does it matter if a deportee has a very minimal support network awaiting them upon their return? Answers to these questions are essential to determine if a risk to life (for both deportees and the officers that escort them) is proportionate to the objective of removal.

In the meantime, until such assessments can be conducted properly and transparently, Canada must reinstate its former suspension and conduct only essential removals.