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Border Closures May Not Be Legal and Won’t Stop Spread of COVID-19


By Y.Y. Brandon Chen and Jamie Liew

Canada announced unprecedented measures this week to restrict the movement of people across our borders as a response to the COVID-19 pandemic. Starting on Wednesday, most foreign nationals — people who are not Canadian citizens or permanent residents — will no longer be allowed into the country.

Affected by this ban are many foreign nationals who live in Canada but had temporarily left the country. Initially, this ban included international students and foreign workers but that appears to have since been rolled back.

This ban also covers anyone who wants to make a refugee claim.

Are these measures justified? We think not.

Canada has a legal obligation under the International Health Regulations to adopt public health measures that do not unduly interfere with international traffic.

The World Health Organization has not recommended travel restrictions for the purpose of curbing the spread of COVID-19. Rather, it advises countries to take appropriate screening measures at ports of entry and exit, and it urges the public to follow good hygiene practices and to maintain social distancing. Many of these actions are already in place in Canada.

Even if travel restrictions are deemed necessary, a more individualized assessment of who can enter the country based on people’s actual health status would arguably achieve the same public health objective as banning nearly all foreign nationals.

By going beyond these less restrictive but scientifically proven courses of action, Canada’s border closure contravenes the International Health Regulations.

Canada’s border policies must also be in line with international humanitarian and human rights law. We are extremely concerned by the government’s recent announcement that asylum seekers crossing into Canada irregularly at the Canada-U.S. border would be returned to the U.S.

Many lawyers and advocates have long identified problems with the asylum system in the U.S. that put refugee claimants at risk of being returned to countries where they face persecution or torture. Some of the many problems include the inability to make gender-based refugee claims and the indefinite detention of migrants, including children.

It is now also unclear what Canada would do with respect to asylum seekers arriving by ways other than irregular land-crossing.

If any of these individuals are returned to a country where they face persecution or torture, Canada may be violating its legal obligations under the Refugee Convention and the Convention Against Torture.

The border closure also impacts foreign nationals who are resident in Canada but had temporarily left. Some of them are now separated from their families who remain in Canada.

This not only puts Canada at odds with the right to family life guaranteed under the International Covenant on Civil and Political Rights, but it also raises practical questions of what Canada should do with people who depend on their foreign-national family members for support.

There are emerging international legal norms recognizing that people with temporary immigration status should enjoy no less favorable treatment than nationals of a state. Given that we have already approved their entry into Canada, and given their contributions to our society and economy, the exclusion of these foreign nationals with clear ties to Canada seems arbitrary.

In fact, recognizing the importance of international students and migrant workers to many industries, the government walked back on its initial ban against these foreign nationals. Although details on this reversal remain scarce at this time, this is a step in the right direction. We hope it applies to all international students and foreign workers, and this policy change should be clearly communicated to border officials and airline employees immediately.

Legality aside, Canada’s border closure in response to COVID-19 reinforces the stereotype that foreign nationals are a vector of disease. It feeds into the narrative that COVID-19 is a “foreign illness,” despite the fact that everyone is equally at risk of contracting this virus and anyone can spread it. This division between Canadians and foreign nationals, us and them, risks stoking racism and xenophobia, which has been frequently reported in the wake of the outbreak.

A pursuit of public health that neglects scientific evidence and human rights will do more harm than good. And unfortunately, the brunt of these harms will be borne by people who are already marginalized in our society.

The situation surrounding COVID-19 is changing steadily and the above conditions and regulations may have altered since the date of publication.

. . .

About the author:

Y.Y. Brandon Chen is a law professor and member of the University of Ottawa Centre for Health Law, Policy and Ethics.

Jamie Liew is a law professor and member of the University of Ottawa Centre for Health Law, Policy and Ethics.

This post was previously published on QUOI Media and is republished here under a Creative Commons license.


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