By Associate Professor Heli Askola
The COVID-19 pandemic has prompted many countries to adopt drastic measures, including border closures and national lockdowns, to curb the spread of the virus. Many of these are having devastating effects on migrants worldwide. In the Australian context, the federal government’s response to the COVID-19 crisis ignores the vulnerabilities of migrants on temporary visas and fails to meet the basic requirements of international human rights law, putting at risk both migrants and the rest of the Australian population.
Temporary migrants in Australia – a vulnerable group?
‘Temporary visa holders’ is an umbrella term for a diverse group of migrants. Important categories include international students, working holiday makers, and those on temporary skilled migrant visas. Smaller groups include seasonal workers, individuals recognised to be in need of protection, and those on bridging visas (including asylum-seekers and those waiting for the outcome of a partner visa application). New Zealanders in Australia are also technically on visas which are temporary, though they are allowed to live and work here indefinitely.
Discounting genuine short-term visitors, temporary visa holders amounted to nearly 2 million persons in March 2020. Despite the designation, many migrants on ‘temporary’ permits are in fact not in Australia just temporarily. Instead, many have been living here for several years and significant numbers in some categories, such as skilled migrants, are likely to settle in Australia permanently.
Given the diversity of temporary residents, it is not surprising that some are more vulnerable than others, but what many temporary residents have in common is that their migration status acts as an axis of disadvantage. Successive governments have imposed visa conditions that make it difficult for temporary residents to access employment protections. At the same time, though most temporary migrants work and pay taxes, they are excluded from welfare support and social security.
This precariousness linked to temporary migration status can translate into limited agency and lack of bargaining power, which explains temporary migrants’ long-standing vulnerability to exploitation in employment, including underpayment of wages and substandard working conditions. Migration status also intersects with other forms of disadvantage, including racial, gendered and class-based discrimination or marginalisation.
Temporary migrants and COVID-19: increased risks, limited response
The COVID-19 pandemic, and the lockdowns that were imposed in response, have left many migrants in particularly precarious positions. The decision to close the borders has effectively shut down temporary migration, particularly affecting international students, but also separating many migrants from their families.
As many temporary migrants in Australia are young and highly involved in the labour market, reports quickly started to emerge about temporary migrants being deeply impacted by job losses in sectors where many temporary migrants work, such as hospitality. Unemployment is exacerbated by migrants’ limited access to local networks and support. Without a livelihood, migrants cannot afford food and other essentials and risk homelessness. They are also unable to send remittances to support family overseas. Other sources of stress for temporary migrants include the risks of discrimination or violence on racial grounds and difficulties complying with visa conditions during the pandemic.
Temporary migrants also face accentuated health risks. Apart from New Zealanders, many temporary migrants, especially those with work rights, are ineligible for Medicare but are now unable to afford private cover because of the crisis. Health risks are compounded by the fact that temporary migrants are often essential workers, who must physically go to work, have no sick leave, and may live in crowded accommodation. Some, such as those with past experiences of persecution, may also fear and distrust authorities, accentuating their vulnerability.
The federal government’s response to the precarious situation of temporary residents has been limited. The decision to close borders has prompted multiple changes to the immigration system. Given the shortage of workers in critical sectors dependent on temporary migration, the government eased the restrictions on migrants working in health, aged and disability care and announced that those working in agriculture could have their stays extended during the crisis. The government has also promised flexibility in relation to visa conditions and provided for a specific pandemic-related temporary visa option for critical sectors and those unable to leave Australia.
At the same time, most temporary migrants, many of whom have lost their jobs, have been left to cope on their own with no safety net. The general exclusion of temporary migrants from basic welfare payments and Medicare is compounded by their ineligibility to access the JobKeeper Payment (apart from some New Zealanders on the temporary 444 visa). Instead, temporary migrants have been advised to work, rely on ‘family support’ or access their Australian superannuation. The Prime Minister suggested, more bluntly, that for those unable to support themselves, ‘there is the alternative for them to return to their home countries’.
The overarching message is one of exclusion, echoing the conditional basis on which migrants on temporary visas are allowed to reside in Australia: not considered part of the population, they must be self-sufficient or leave. These options are presented with little attention to migrants’ actual ability to leave, their connections to Australia or their individual vulnerabilities. While some of the states and territories have stepped in to provide some extra income and other support, the federal government’s approach has been justly criticised for denying responsibility for temporary migrants.
The contribution of international human rights law
Appealing to international human rights is certainly no panacea in Australia. However, human rights law does provide language to explain why supporting temporary migrants is more than a moral obligation, and offers guiding principles to assess the federal response in light of Australia’s international legal commitments.
Even though Australia has not ratified the United Nations’ main instrument on migrant workers’ rights, it is party to both the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Both start from an assumption of equal and non-discriminatory treatment, elaborated on by the Treaty bodies monitoring them. The Human Rights Committee (HRC) makes it clear that ICCPR rights ‘apply to everyone, irrespective of… nationality or statelessness’ and the Committee on Economic, Social and Cultural Rights (CESCR) emphasises that the ICESCR rights ‘apply to everyone including non-nationals, such as refugees, asylum-seekers, stateless persons, migrant workers and victims of international trafficking, regardless of legal status and documentation’.
Though countries that have ratified the covenants have a duty to respect, protect and fulfil the human rights of everyone, including migrants, it is of course the case that most human rights are not absolute. States may restrict the exercise of most civil and political rights where there is a good reason, such as public health emergency, and social and economic rights are subject to progressive implementation that is dependent on available resources. However, this flexibility is not a mandate for wholesale discrimination against migrants. The fundamental guarantee of non-discrimination means states must be able to justify any differential treatment. Both the HRC and CESCR emphasise that that differential treatment can only be justified with reference to a legitimate aim and that the criteria used must be reasonable and proportional to the achievement of this aim.
Determining whether differential treatment of non-citizens is unlawful requires careful analysis of complex economic and social realities as well as the content and scope of relevant rights. These calculations are never easy and can be even more complex during a global pandemic. However, it is not enough simply to say, as Federal Treasurer Josh Frydenberg did, in defence of excluding temporary residents from JobKeeper, that the government ‘had to draw the line somewhere’. Indeed, the CESCR has specifically noted that ‘a failure to remove differential treatment on the basis of a lack of available resources is not an objective and reasonable justification unless every effort has been made to use all resources that are at the State party’s disposition in an effort to address and eliminate the discrimination, as a matter of priority’.
Decisions on how to support migrants must also be made with attention to the minimum core content of economic and social rights and with awareness of the interdependence of human rights. The right to health is obviously crucial in the context of the pandemic and imperative reasons would be needed to justify barriers that impede migrants from accessing health care, given this exclusion may put at risk their lives as well as the general welfare and lives of the rest of the population. Moreover, given that health risks accumulate for people with limited or no incomes, living in poor housing conditions and doing jobs in crowded or unsafe workplaces, the right to health can only be guaranteed with attention to other economic and social rights. Likewise, the recent Melbourne high-rise outbreak has highlighted the importance of appropriate health communication and access to information as a crucial part of the response.
Finally, it is important to bear in mind that successive federal governments have entrenched the vulnerability of temporary migrants by limiting their rights and agency. Both the HRC and CESCR have made it clear that countries should not only refrain from undue discrimination, but are under an obligation take specific action to correct existing conditions that perpetuate or exacerbate vulnerability. The pandemic has highlighted the importance of addressing the long-standing conditions of vulnerable populations, such as poor working conditions, overcrowded housing and inadequate access to healthcare. In relation to migrants on temporary visas, these issues need to be addressed with recognition of the role that ‘temporariness’ and visa conditions play in entrenching the precariousness of migrants.
So far, the federal response to the COVID-19 crisis has not met the requirements of international human rights law. It is not enough to say that migrants freely choose to move and are always free to leave. It is true that migrants on temporary visas are not full members of the Australian community. Nor are they, however, purely visitors who can simply be expected to return ‘home’, especially during an unprecedented crisis that has resulted in countries shutting their borders, in some cases even to their citizens. Australia is bound by its international obligations to treat temporary residents as human beings to whom the government owes certain duties. It must give good reasons for or revoke the unjustified exclusion of migrants on temporary visas from the scope of basic assistance and ensure specific measures are taken to protect vulnerable migrants against foreseeable risks to health.