Washington International Law Journal


The COVID-19 pandemic poses grave threats to the life and health of asylum seekers in Europe. Many potential asylees are forced to reside in cramped, unsanitary facilities and do not have adequate access to medical treatment. On top of these dangers, many are likely to be denied asylum due to the stringency of international refugee law and European Union (“EU”) asylum procedures. As a result, a number of these asylum seekers will turn to Article 3 of the European Convention on Human Rights, which provides broader non-refoulement protections. However, even Article 3, as currently interpreted by the European Court of Human Rights (“ECtHR”), is unlikely to protect the majority of these asylum seekers. This article proposes ways in which the ECtHR may refine its health-based non-refoulement jurisprudence to protect more individuals. It concludes that the Court may retain its current high standard for qualifying for health-based non-refoulement and provide relief for individuals who contract COVID-19 while detained by EU member states during the asylum application process. Significantly, the ECtHR should hold that EU member states who detain asylum seekers and thereby expose them to COVID-19 have assumed a duty toward them and may not refoule them for the duration of their illness and its lingering health effects.

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