Introduction

The COVID-19 pandemic had and continues to have multiple impacts in many areas (political, social, cultural, economic, etc.). Some of these were directly affected in the early stages of the pandemic, with governments responding to the pandemic in a variety of ways. In the case of the European Union (EU), the Member States adopted a wide range of measures, including, particularly in the early stages, punitive and coercive measures, which were closely scrutinised for their impact on the exercise of fundamental rights. Moreover, the measures developed dynamically during the different stages of the pandemic. At the beginning, the official formalities were closer to a context of high insecurity than to a pandemic. During the second and third waves, the role of legal threats and police reports became more meaningful than before, clearly showing that their role was ancillary, not nuclear, and that we were facing a pandemic, not a security problem. Inequalities in general have been exacerbated, and they particularly impacted vulnerable groups.

The purpose of this chapter is to provide some insights into the situation of a specific vulnerable group that has received little attention—migrants and asylum seekers. The intersection of the COVID-19 pandemic and the ongoing challenges of asylum and migration along the EU’s southern border has exacerbated the difficulties of an already complex issue. The pandemic has deepened existing challenges on a number of fronts, from legal and procedural ones to ensuring basic human rights and dignified living conditions. Amidst the urgent focus on public health, the measures taken have often led to a reduction in asylum applications and, in some cases, to an effective suspension of asylum procedures.

The chapter is divided into four parts. The first presents the context and the exceptional measures adopted with the emergence of the COVID-19 pandemic in the EU, highlighting the main issues. The second part analyses the impact of these measures on the right to asylum at EU level, highlighting the main approaches and measures taken by Member States and their impact on fundamental rights. The third part focuses on Europe’s southern border. This particular region contains a high concentration of challenges related to asylum and migration in Europe, due to its geographical proximity to Africa and its status as the first point of entry for many migrants and asylum seekers. The fourth section provides an in-depth analysis of the unique situation of migrants and asylum seekers in Melilla, a specific but representative context within the Spanish southern border. It is here that the interplay between pandemic response, border control and the treatment of vulnerable populations can be most clearly observed.

Fundamental Rights in the Context of the Pandemic

Context and Main Challenges

The EXCEPTIUS dataset provides comprehensive data on the range of measures implemented across Europe in response to the pandemic. While existing strategies varied from one country to the next, they were generally centred on a shared set of themes that embodied the severity of the crisis. These measures encompassed: (1) the limitation of the freedom of movement (a vast majority of European nations enacted severe lockdowns, primarily confining their citizens to their homes); (2) the disruption of conventional education systems (many countries suspended in-person classes); (3) the restriction of non-essential commercial activities (businesses within the hospitality, entertainment, and leisure sectors); (4) contention of worship services and (5) the reinforcement of healthcare systems.

The COVID-19 pandemic’s unprecedented challenges also precipitated numerous tensions and debates throughout the European Union, both at social and political levels, as well as legal. New mechanisms were introduced to facilitate governance during these testing times, shedding light on several key problematics that echoed across Member States:

  • Prioritisation of security and detention measures. Many European countries prioritised security measures during the initial months of the pandemic. In addition to focusing on public health responses, countries implemented tough restrictions to maintain law and order, often accompanied by heightened police and military presence. The emphasis on enforcement and compliance, especially through penalties and fines, evoked a martial atmosphere, causing apprehension and resistance among populations.

  • Debate over limitation or suspension of civil rights. Directly related to the security focus, the debate on the limitation or suspension of rights has been a key issue and a highly politicised one across the EU. Various national courts across the EU, among them the Spanish Constitutional Court (Tribunal Constitucional 2021), evaluated the constitutionality of the restrictive measures implemented. The discourse highlighted a critical dichotomy—the urgency to control the pandemic versus the potential erosion of civil liberties.

  • Public confusion and legal insecurity. The sudden imposition of strict measures led to significant confusion among citizens due to insufficient communication from authorities about permissible activities during lockdowns. Regulations often appeared ambiguous, generating legal uncertainty and providing law enforcement authorities with extensive powers, which in turn led to accusations of discriminatory practices (Civic Space Watch, 2020). States generally did not consider the condition of the population with a non-regularised administrative situation that were affected by the immigration laws. Many of them were working on some of the so-called essential services (domestic work, agriculture) and were not able to prove the need to circulate.

While it may seem self-evident that the COVID-19 pandemic has irreversibly changed our global reality, the specific impact of this change is highly nuanced and varies significantly according to individual socio-economic circumstances and living conditions. In recent years, there has been an outpouring of academic work examining the disproportionate impact of the pandemic, with a clear focus on the exacerbation of pre-existing inequalities (Bambra et al., 2020; World Bank, 2021). Certain measures—restrictions on movement, border closures, quarantine and isolation measures, closure of schools and universities—have had particularly harsh consequences for certain vulnerable populations and have generated controversy and criticism from a range of national and international organisations. In particular, a vulnerable group—migrants and asylum seekers—has been disproportionately affected by both the pandemic itself and the measures taken in response.

For many migrants and asylum seekers, border closures and restrictions resulted in limited access to international protection. In addition, those already in the EU faced increased health risks due to poor conditions in overcrowded reception centres. Since the beginning of the COVID-19 crisis, several international and human rights institutions have called for fundamental rights to be taken into account in the fight against the pandemic. Most of these institutions carried out initiatives to monitor the human rights situation in general and the situation of specific (vulnerable) groups.

One of these bodies, the EU Fundamental Rights Agency, has produced reports over the past 3 years monitoring the general human rights situation and the plight of specific vulnerable groups. A comprehensive report in 2021 draws attention to three main areas of concern: (1) states of emergency and other emergency situations; (2) the impact on key areas of daily life, such as social life, healthcare, education, work, business, justice, travel and privacy; and (3) the impact on specific groups in society, including the elderly, disabled, victims of domestic violence, ethnic minorities, Roma, LGBTQ+ people, homeless people, prisoners, migrants and asylum seekers (Fundamental Rights Agency, 2021). The report underlines that the challenge to fundamental rights posed by the pandemic has been particularly severe for the most vulnerable populations. The following section examines the impact of COVID-19 measures on the right to seek asylum in the European Union.

COVID-19 and the Right to Asylum in the European Union

Since the beginning of the so-called migration crisis that started in 2015, the European asylum system has been challenged by various crises and discrepancies between Member States. Reception centres were often overcrowded and under-resourced, and asylum procedures were long, confusing and full of administrative obstacles. The sudden onset of the pandemic exacerbated these already difficult conditions, affecting both the physical and procedural aspects of the asylum system. The impact of the COVID-19 pandemic on this already complex system was multifaceted and significant, resulting in changes that deserve to be studied.

The application of the Dublin Regulation, which determines which Member State is responsible for processing an asylum application, was significantly disrupted. Asylum procedures were effectively frozen in some states due to the border closures, leading to an administrative backlog and causing considerable delays in processing asylum claims (European Asylum Support Office, 2021). Nevertheless, there were notable differences in the specifics of the legislation adopted by each country, based on their legal frameworks, the evolution of the pandemic and the guidance of the health authorities.

Table 11.1 provides a clear picture of the trends in the number of asylum applications in the EU at the start of the pandemic. At EU level, there was a sharp decline in applications, dropping from 55,735 in February to a mere 7990 in April. This drastic reduction is reflective of the widespread limitations put in place by the Member States due to the health crisis. France, Germany, Spain, and Greece, four of the countries with the highest number of asylum applications in February, saw significant reductions in their numbers.

Table 11.1 First-time asylum applicants—monthly data
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Germany, despite experiencing a sharp decrease, still led with the most significant number of applications in April. Germany’s approach to asylum seekers during the COVID-19 pandemic was marked by a reduction in asylum-related activities but without complete suspension. The processing of asylum applications was delayed due to pandemic measures and asylum seekers were provided with temporary residence permits and were urged to stay within their initial reception centres to maintain control over social distancing and movement (Reches, 2022). Despite these measures, the right to seek asylum was still upheld, which could partly explain why Germany had a comparatively higher number of asylum applications even in April.

The situation in Spain was particularly notable for the severity of the fall in applications. The reduction from 7960 in March to just 60 in April is indicative of the extreme measures taken. Spain enforced strict border controls and declared a state of alert, resulting in a de facto suspension of asylum procedures. Furthermore, the general measures of detention and social distancing, which affected face-to-face services in asylum procedures, led to the suspension of appointments for the formalisation of asylum applications and preliminary interviews (Pinyol-Jiménez et al., 2020). Asylum seekers were unable to submit applications, which led to an almost complete halt in registered applications.

Sweden presents a contrasting picture. There was a slight increase in asylum applications from February to March, followed by a decrease in April. However, the decrease was not as dramatic as in other countries. One possible explanation is that Sweden took a more lenient approach to COVID-19 restrictions in the early months of the pandemic than other European countries. Although the country introduced some measures to limit the spread of the virus, these were less stringent and may have allowed more asylum procedures to continue.

Interestingly, some countries, like Bulgaria and Romania, saw an initial increase in applications from February to March, only to follow the general descending trend in April. In contrast, other states, such as Estonia, Lithuania and Malta, reduced the number of applications to zero by April, indicating a complete halt in their asylum procedures during this period.

If we look at the evolution of first-time asylum applications in the EU in annual terms (see Table 11.2), the figures further point to a considerable shift, underlining the substantial effect of the COVID-19 pandemic on the right to seek asylum. Across the EU, there was a significant contraction in asylum applications, down from 631,285 in 2019 to 417,070 in 2020. Again, countries such as Germany, France, Spain, and Greece that traditionally received most asylum seekers saw drastic reductions in applications in 2020. The stringent measures they adopted during the pandemic—such as border securitisation practices and suspension of asylum procedures—have had a pronounced effect on individuals’ ability to seek protection.

Table 11.2 Asylum and first-time asylum applicants—yearly data
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Nonetheless, the data also display interesting anomalies. Both Bulgaria and Romania experienced increases in asylum applications from 2019 to 2020, despite the pandemic. This could reflect a reorientation of migration routes caused by strengthened restrictions elsewhere, further displaying how these measures can lead to unintended shifts in asylum-seeking patterns. Austria, too, experienced rise in application numbers during this period, a trend running counter to most EU countries. Its adaptation of asylum procedures in response to the pandemic was comparatively less restrictive, enabling more individuals to exercise their right to seek asylum. During the first months of the COVID-19 pandemic, Austria reduced asylum activities but did not suspend them. Nevertheless, the restrictions imposed in order to be allowed access to Austrian territory included the obligation to present a valid health certificate, thus undermining the right to asylum (AIDA, 2020a).

The case of Hungary is also noteworthy. Following the closure of borders, there was no access to the asylum procedure. Since the so-called migration crisis in 2015, a state of emergency due to mass migration was still in effect at the time of the pandemic. The police was authorised to pushback across the border fence irregularly staying migrants (including those who sought asylum) from any part of the country, without any legal procedure or opportunity to challenge this measure (AIDA, 2020b). This resulted in a low number of asylum applications (90 in 2020).

What the data reveals is how the fundamental right to seek asylum has been affected by COVID-19 in different ways across Europe. Whether through outright denial of access or the unintended consequences of restrictive measures, the right to seek asylum has been dramatically affected, with potential long-term consequences for both asylum seekers and EU countries. The situation across the European Union was largely influenced by each country’s approach to the pandemic, its geographical location and its pre-existing asylum policies. The different outcomes underline the wide range of impacts of the pandemic on asylum seekers and the different responses of EU Member States. In the following section, we will take a closer look at the specific case of asylum seekers at Europe’s southern border and provide a more detailed analysis of the challenges and implications in this particular context.

Asylum Seekers and Border Management Practices in the Southern European Border: The Case of Melilla

Asylum Seekers and the European Southern Border

The EU’s southern border is a particular area where the challenges of migration and border control are most pronounced, compounded by the geographical realities of the Mediterranean. Regional strategies to manage this situation have evolved into a mixed approach of externalisation and securitisation, further complicated by the COVID-19 pandemic. Greece, Italy, Malta and Spain, with their proximity to Africa and the Middle East, have become the main entry points for those seeking refuge.

In the years leading up to the pandemic, the securitisation and externalisation of the EU’s southern border became increasingly evident. This involved the extension of border controls and responsibilities beyond the geographical borders of the EU and the involvement of third countries in border control efforts. The pandemic reinforced these tendencies, with increased military presence and practices such as pushbacks and indirect refoulement raising serious human rights concerns.

In the case of Greece, the pandemic situation added to the challenges of an already undermined asylum system with the temporary closure of asylum offices and the suspension of administrative deadlines for asylum applications. In addition, the escalation in arrivals, coupled with the need to maintain public health measures, led to strained resources and critical conditions in migrant camps. Vulnerable groups, including women and minors, were detained without proper identification of their vulnerability or individual assessment prior to detention. Despite legal provisions on access to social assistance for beneficiaries of international protection, bureaucratic barriers meant that many were unable to access these rights and benefits. The Greek government used the virus as a pretext to extend the suspension of asylum, making asylum-seekers more vulnerable due to their stay in overcrowded reception centres and continued uncertainty about their refugee status (Reches, 2022).

In Italy, the government managed to maintain legal procedures for asylum applications throughout the pandemic. However, access to the system was complicated by delays and logistical challenges. Asylum seekers were often subjected to de facto detention in hotspots. Italian ports were declared unsafe between April and July 2020, and several cases of indirect refoulement to Libya were reported during this period, suggesting a precarious situation for refugees (AIDA, 2020c). Individuals arriving in Italy were quarantined for 10 days, after which they had access to reception facilities, but in hotspots there was de facto detention of asylum seekers.

Malta, one of the smallest but most important countries in this context, took a tough approach to the crisis. It closed its borders completely in March 2020 and refused to allow any migrants to disembark, including those rescued at sea by the Maltese authorities (Government of Malta, 2020), who were instead detained on private vessels outside territorial waters without any individual assessment, including vulnerable persons such as minors. The legal regime under which they were detained varied according to their nationality, with some detained under the Reception Conditions Directive without the possibility to challenge their detention, while others were detained under public health legislation or without any legal basis. These practices were found to be unlawful by the Maltese courts (AIDA, 2020d). Access to detention centres for NGOs and others was restricted during the COVID-19 pandemic, leaving detained migrants without information or legal representation.

Finally, Spain, as one of the principal gateways into Europe, experienced considerable pressures on its asylum system. At the start of the pandemic, a de facto suspension of the right to asylum was enacted as a result of the national state of alarm. This led to an abrupt 99% drop in asylum applications between March and April 2020 (see Table 11.1). This was especially notable in the autonomous cities of Ceuta and Melilla, where strengthened border controls significantly reduced the number of asylum applications. During the second half of the year 2020, the exceptional nature of the almost non-existent arrival of new applicants by air was maintained, but the number of people arriving by sea, especially to the Canary Islands doubled—from 20,103 in 2019 to 40,106 in 2020 (Lo Coco et al., 2021). The paralysation of the transfer of people from the Canary Islands, Ceuta and Melilla to the peninsula, overwhelmed an already undermined reception system and intensified the policy of blocking migrants in territories outside the Iberian Peninsula. This situation, characterised by bureaucratic hurdles, detentions and deportations, severely interrupted access to asylum procedures.

The geographical realities of the Mediterranean, coupled with the socio-political complexities of the region and the pandemic, highlight systemic challenges in the EU’s approach to asylum, exacerbating existing problems (long waiting times, detention of vulnerable applicants without individual assessment, inadequate legal assistance, backlogs, etc.) and introducing new ones (temporary closure of asylum offices, suspension of administrative deadlines, etc.). The comparative analysis of the four countries reveals a common thread of increased securitisation and strained resources, further undermining the right to asylum. In the next section, we analyse the unique situation of Melilla and its role in the European migration and asylum system. A closer look at Melilla serves to illustrate the different layers of externalisation in action and to highlight the main aspects of the EU’s approach to border management.

Melilla: A Case Study of Enforcement and Detention Practices at the EU’s Southern Border

Melilla, the only European land border with Africa, a condition shared only by Ceuta, is located at a European migratory crossroads. Before the adoption of the exceptional measures of the COVID-19 pandemic, these two territories were already exceptional. The management of the southern border plays an important role in the externalisation of European border control, which has been accompanied by a steady erosion of the rights of migrants, refugees and asylum seekers to enter and settle in the European Union (Castles, 2003; Rijpma & Cremona, 2007; Lemberg-Pedersen, 2012; Moreno-Lax & Lemberg-Pedersen, 2019; Churruca-Muguruza 2019). For this reason, over the last three decades, Melilla has become increasingly important as a gateway for migratory flows from Morocco, the sub-Saharan region and, more recently, the Middle East. This, in turn, has transformed Melilla into an exceptionally securitised city (Gabrielli, 2015; González-Páramo et al., 2019; Johnson & Jones, 2016).

The practice of various forms of pushback through the gates that mark the fences and in Melilla’s territorial waters is constant, as are returns at the border with only formal guarantees, usually to implement the 1992 bilateral readmission agreement (Ministerio de Asuntos Exteriores, 1992). Administrative malpractice persists in the failure to process the documentation of foreign minors under administrative guardianship, leaving them in an irregular situation when they reach the age of majority. The slow pace of DNA testing and excessive administrative zeal condemn family members to separation when it comes to minors under the guardianship of the Autonomous City of Melilla. In addition, asylum seekers are not transferred until their case has been resolved, which can take months (Buades Fuster et al., 2020).

The city’s geopolitical location explains why the management of this southern border has long been of particular interest to contain unwanted migration flows. A robust non-entry regime, ‘Fortress Europe’, was gradually built to protect European borders (Jüneman et al., 2019; Orchard, 2014; Zetter, 2014). With the entry into force of the Schengen Agreement in 1995, Spain developed a more elaborate border control policy, erecting increasingly high fences around the two enclaves of Melilla and Ceuta.

Spain was the first EU country to erect fences on its external borders to prevent migrants and refugees from entering European territory. In Melilla, those who manage to jump over the three fences without being immediately returned, the so-called rejection at the border, have the right under Spanish law to be temporarily housed in the Centre for the Temporary Stay of Immigrants (CETI). They can also move freely in Melilla while their expulsion procedure for administrative irregularity or their asylum application is being processed.

When the Spanish government declared the state of alarm on 14 March 2020, the CETI was overcrowded. Throughout 2020, the CETI, which has an initial capacity of 780 people, was inhabited by more than 1600 people. Two hundred of them were minors who had come with their families. On 21 March, in a state of alert and with the aim of limiting the spread of COVID-19, the authorities decided to temporarily close the land crossings authorised for entry into and exit from Spain via the cities of Ceuta and Melilla (Ministerio del Interior 2020). The number of irregular entries fell drastically when the border with Morocco was closed, but few entries still took place. In order to prevent the spread of the pandemic, Order No. 3221 of 25 August 2020 on coercive preventive health measures to be applied in the municipality of Melilla suspended the free entry and exit of persons in the CETI (Ciudad Autónoma de Melilla 2020).

The lack of suitable places for initial reception and detention meant that temporary facilities had to be improvised for this purpose. People were housed in tents in an improvised space in an area close to the border fence called V Pino, in extremely unhygienic conditions. Spaces such as the Melilla bullring and the mosque were also used, which also did not meet the conditions for housing people. The V Pino, which closed on 31 May 2020, housed over 200 people, including Moroccans trapped in Melilla, homeless Melillans and young migrants who have just come of age (Soto, 2020), on the outskirts of the autonomous city, in poorly waterproof tents that filtered rainwater, with overcrowded bunks and few blankets. Health care was a particular concern, as medical teams did not visit regularly. Conditions in the bullring were no better. The Geum Dodou Association reported that people in this area were living in very degrading and unsanitary conditions, with no place for new arrivals to be quarantined separately from the rest of the group.

During the periods in which the confinement was mitigated by allowing the population to go out during certain time slots according to age, people were not allowed to leave the CETI or the temporary facilities under any circumstances, not even to buy food. And although each shelter is allowed to adopt its own rules to guarantee the health of the people living there, these rules have never been published and are not covered by any specific legal framework within the state of emergency or approved by any court.

Of particular concern was the situation of school-age children and adolescents, who had no access to education. The blockade policy meant that there was no policy for the distribution of minors from the autonomous cities of Ceuta and Melilla to the rest of the autonomous communities, leading to the search for unsafe means of arrival on the peninsula. In addition, the blockade and the conditions in the Child Protection Centres in Melilla have led many minors to take to the streets, with all the health and emotional problems that this entails. Likewise, the lack of clear criteria for deciding on access to the CETI has left some on the streets waiting to travel to the peninsula.

During the months of the pandemic, the “La Purisima” Residential Educational Centre for Minors housed 900 minors, creating a situation of overcrowding in the context of the health emergency. From November 2020 to July 2021, successive measures restricting freedom of movement, “preventive health measures of a coercive nature,” were applied to minors residing in “La Purísima” in view of the appearance of outbreaks of COVID 19. For the same reason, restrictive measures were also adopted in December 2020, suspending the free entry and exit of people staying in the Plaza de Toros at the Municipal Shelter for Transients and Disadvantaged People of the City of Melilla.

The situation in Melilla is a stark reminder of the human rights concerns and logistical challenges posed by the externalisation of European border control. These problems have been exacerbated by the pandemic, underlining the need for adequate facilities and fair asylum procedures at these key points of entry into Europe.

Conclusion

The COVID-19 pandemic has been an unprecedented situation that has brought many extraordinary measures not imposed before. These measures and their impacts have generated many tensions between authorities at different levels and between authorities and citizens. The confinements, limitations on the freedom of movement and border closures have exponentially aggravated the situation of an especially vulnerable group such as asylum seekers and have posed serious challenges in terms of access to the right to asylum. The closure of internal and external EU borders and the suspension of resettlement programmes not only reduced asylum seekers’ chances of reaching safety but also increased the risks associated with irregular journeys to the EU, exacerbating the challenges faced by those fleeing persecution or conflict.

During the states of alarm and even after, migrants and asylum seekers have seen their rights limited beyond what is established in the regulations governing the state of alarm and have lived with deficient minimum services such as lack of food, water and healthcare, among others. In particular, in Melilla the already daunting reception conditions and coercive measures were intensified with the excuse of the pandemic. The Ministry of Interior minimised the transfer of migrants and applicants for international protections from Melilla to the mainland. This is a dissuasive strategy used by the authorities to prevent people from seeking asylum. It carries with it forms of restriction and deprivation of liberty without legal basis. And, it has placed people in a legal limbo if they did not have an identity card relating to their stay. Moreover, this policy has consequences for the public health of the entire population as it subjects the migrant population housed in temporary facilities to undignified living conditions.

In conclusion, while the pandemic has posed significant challenges to the European asylum system, it has also exposed structural weaknesses and highlighted the need for robust and flexible mechanisms that can adapt to unexpected situations and ensure that the rights of asylum seekers are protected in all circumstances. It is crucial that the strategies adopted do not further marginalise these vulnerable groups or undermine their fundamental rights. The experience of the COVID-19 pandemic, especially in border countries such as those in the Mediterranean, highlights the urgent need for a comprehensive, humane and cooperative approach to managing the migration and asylum situation in the EU. Finally, the institutions should adopt policies to prevent the use of crises—whether health crises such as the pandemic or other forms of emergency—as a justification for further violations of the rights of migrants and asylum seekers.