tag:theconversation.com,2011:/es/topics/legal-limbo-51704/articlesLegal limbo – The Conversation2022-03-10T10:58:41Ztag:theconversation.com,2011:article/1789422022-03-10T10:58:41Z2022-03-10T10:58:41ZThe trauma of life in limbo for refugees and asylum seekers in immigration detention – podcast<figure><img src="https://images.theconversation.com/files/451031/original/file-20220309-21-by18q6.jpg?ixlib=rb-1.1.0&rect=106%2C0%2C5201%2C3596&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A protester outside an immigration detention facility in Melbourne, Austraila. </span> <span class="attribution"><span class="source">FiledIMAGE/Shutterstock</span></span></figcaption></figure><p>The life of limbo for people in immigration detention is often deeply traumatic. In this week’s episode of <a href="https://theconversation.com/uk/topics/the-conversation-weekly-98901">The Conversation Weekly</a>, we talk to two experts on immigration detention in Australia and the UK about why people are waiting months, sometimes years, for a decision about their future – and the impact it’s having on them.</p>
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<p>And as Russia’s invasion of Ukraine pushes more than two million refugees to flee the country, we speak to a human geographer about Russia’s history of using refugees from Ukraine as geopolitical tools.</p>
<p>The Park Hotel in Melbourne made headlines in January this year when tennis star <a href="https://theconversation.com/novak-djokovic-was-detained-for-five-days-refugees-in-the-same-hotel-have-been-there-for-years-175112">Novak Djokovic was temporarily detained there</a>. Djokovic, who was scheduled to play the Australian Open, was unvaccinated and had his visa revoked by the Australian government. The incident drew attention to the plight of more than 30 refugees held at the Park Hotel, which has been used as a makeshift immigration detention facility since 2019. Many of the people held there had been transferred from the <a href="https://theconversation.com/cruel-costly-and-ineffective-australias-offshore-processing-asylum-seeker-policy-turns-9-166014">notorious offshore processing sites</a> on Nauru, an island nation in the Pacific, and on Manus Island in Papua New Guinea.</p>
<p>“In early 2022, there are about 70 people who were flown back from offshore for medical reasons but are still detained,” explains Madeline Gleeson, a senior research fellow at the Andrew and Renata Kaldor Centre for International Refugee Law at UNSW Sydney in Australia.</p>
<p>“They have no right to challenge the fact or length of their detention in a court,” says Gleeson. “They really have very limited access to the courts at all. They certainly have no right to a visa, no right to remain in Australia – and for most of them, no right to go anywhere else either. It’s a really difficult form of limbo, both practically, physically and legally.”</p>
<p>Government data published in late 2021 shows Australia holds people in immigration <a href="https://www.homeaffairs.gov.au/research-and-stats/files/immigration-detention-statistics-30-september-2021.pdf">for an average of 689 days</a>, which <a href="https://www.theguardian.com/australia-news/2022/feb/16/australia-holding-people-in-immigration-detention-for-record-689-days-on-average-report-finds">Human Rights Watch</a> says is the highest on record.</p>
<p>But Australia is not alone in detaining people for indefinite amounts of time on immigration grounds. In the UK, <a href="https://www.gov.uk/government/statistics/immigration-statistics-year-ending-march-2021/how-many-people-are-detained-or-returned">thousands of people are detained each year</a> by the UK Home Office in immigration removal centres. Some may be there for administrative reasons before being deported, others may be awaiting the result of an asylum application or appeal, while others may be in detention if their visa expired. Blerina Kellezi, an associate professor in social and trauma psychology at Nottingham Trent University in the UK, has <a href="https://theconversation.com/how-people-in-immigration-detention-try-to-cope-with-life-in-limbo-106645">interviewed detainees and staff</a> at two detention centres in England. She says the facilities look, smell and feel like prisons.</p>
<p>“Time is very, very difficult to pass,” says Kellezi. “There is that sense of uncertainty and loss of control over one’s life.” One detainee explained to her that “at the beginning, you look like a human being, you’re dressed with normal clothes, and then after a few days you start wearing slippers and your shoulders go down – you lose that energy because they are such distressing places”.</p>
<p><em>This episode of The Conversation Weekly is supported by the UK/Australia Season Patrons Board, the British Council and the Australian Government as part of the <a href="https://ukaustraliaseason.com/">UK/Australia Season</a>, which centres on the theme Who Are We Now? The season’s programme reflects on the two countries’ shared history, explores their current relationship, and imagines their future together.</em></p>
<p>The Russian invasion of Ukraine has renewed attention on the plight of <a href="https://data2.unhcr.org/en/situations/ukraine">millions of refugees</a> who’ve been fleeing the fighting to other parts of the country and to neighbouring countries. Since 2014, millions of Ukrainians have already been displaced from their homes by the war in eastern Ukraine, or by the Russian annexation of Crimea. Irina Kuznetsova, associate professor in human geography at the University of Birmingham in the UK, says people who’ve already been displaced once are now likely to be displaced again.</p>
<p>Kuznetsova, who has interviewed displaced people both in Ukraine and <a href="https://reliefweb.int/sites/reliefweb.int/files/resources/UNHCR%20Operational%20Update%20on%20the%20Ukraine%20Situation%20-%2014MAY-10JUN16.pdf">some of more than a million</a> who’ve gone to Russia, explains how Russia has been using refugees as “geopolitical tools”. She says that underpinning the assistance provided by Russia to Ukrainians was the idea of helping <a href="https://www.tandfonline.com/doi/full/10.1080/09668136.2020.1719044">“brotherly people”</a>. This campaign around Ukrainian refugees, she says, helped to amplify Russian President Vladimir Putin’s insistence that Ukrainians and Russians are part of the same nation.</p>
<p>And Martine Turenne, editor in chief for The Conversation in Montreal, Canada, recommends some <a href="https://theconversation.com/trop-peu-de-femmes-atteignent-les-plus-hauts-echelons-il-est-temps-dagir-177408">recent stories</a> tied to <a href="https://theconversation.com/stay-voici-comment-une-chanson-damour-vehicule-mepris-et-violence-envers-les-femmes-177591">International Women’s Day</a>.</p>
<p>This episode of The Conversation Weekly was produced by Mend Mariwany and Gemma Ware, with sound design by Mau Loseto. Our theme music is by Neeta Sarl. You can find us on Twitter <a href="https://twitter.com/TC_Audio">@TC_Audio</a>, on Instagram at <a href="https://www.instagram.com/theconversationdotcom/?hl=en">theconversationdotcom</a> or <a href="mailto:podcast@theconversation.com">via email</a>. You can also sign up to The Conversation’s <a href="https://theconversation.com/newsletter?utm_campaign=PodcastTCWeekly&utm_content=newsletter&utm_source=podcast">free daily email here</a>.</p>
<p>Newsclips in this episode are from <a href="https://www.youtube.com/watch?v=2lzcjWJD36I">Al Jazeera English</a> and <a href="https://www.youtube.com/watch?v=pPjZHwBw7xs">ITV News</a>.</p>
<p><em>You can listen to The Conversation Weekly via any of the apps listed above, download it directly via our <a href="https://feeds.acast.com/public/shows/60087127b9687759d637bade">RSS feed</a>, or find out how else to <a href="https://theconversation.com/how-to-listen-to-the-conversations-podcasts-154131">listen here</a>.</em></p><img src="https://counter.theconversation.com/content/178942/count.gif" alt="The Conversation" width="1" height="1" />
Plus, Russia’s history of using refugees from Ukraine as geopolitical tools. Listen to The Conversation Weekly.Gemma Ware, Head of AudioJustin Bergman, International Affairs EditorLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1524102021-01-06T14:17:41Z2021-01-06T14:17:41ZHappy the elephant was denied rights designed for humans – but the legal definition of ‘person’ is still evolving<p>Nobody knows how old Happy is. Sometime in the 1970s, she and six other youngsters were taken from their family group (probably in Thailand) and sold to an entertainment complex in California where they were forced to perform for paying guests. Over time, Happy was separated from her kin and, since 2006, has lived alone in conditions that <a href="https://www.nonhumanrights.org/content/uploads/Affidavit-Joyce-Poole-Scan-1-Oct-2018-at-14.13.pdf">experts suggest</a> could significantly increase her risk of arthritis, depression, bone disease and a host of other physical and mental ailments.</p>
<p>A team of lawyers requested a writ of habeas corpus – a claim of unlawful detention – on Happy’s behalf in an effort to have her rehomed. But on December 17 2020, an appeals court in New York <a href="https://www.nonhumanrights.org/content/uploads/2020_02581_The_Nonhuman_Rights_Pr_v_The_Nonhuman_Rights_Pr_DECISION_AND_ORDER_21.pdf">denied the claim</a>. Their reasoning was simple – Happy cannot claim legally enforceable rights under existing law. This is because <a href="https://www.nonhumanrights.org/client-happy/">Happy is an elephant</a>. </p>
<p>If Happy had been human, the courts wouldn’t have hesitated to find in her favour, and people would consider this justified. But do we actually have reason to think any differently now we know she is an elephant? Does justice require different things for different species in the same circumstances? Or, as the <a href="https://www.nonhumanrights.org/">Nonhuman Rights Project</a> – a civil rights association campaigning for animal legal rights in the US – has argued on Happy’s behalf, is a subject’s species irrelevant in considerations of justice and legal rights? </p>
<p>If the Nonhuman Rights Project is correct here, then the courts need to recognise Happy as a legal person to hear her case. This is necessary because, according to a legal principle created by the ancient Romans but which is still with us today, someone – or thing – needs to be recognised as a “legal person” in order to be able to claim legal rights – and it’s a status currently denied to non-human animals in the US. </p>
<p>Legal personhood shouldn’t be confused with the ordinary meaning of what it means to be a “person”. Non-living entities such as <a href="https://timesofindia.indiatimes.com/india/god-is-not-a-juristic-person-but-idol-is-says-apex-court-in-ayodhya-case/articleshow/72134544.cms">idols</a>, corporations or even ships have long been recognised as legal persons in legal systems worldwide. This means that, if non-living things have had their legal personhood recognised in the past, there should be no conceptual problem with recognising the legal personhood of a highly intelligent being such as Happy. </p>
<p>But this would be a controversial legal shift with huge implications for animal rights. The New York Court refused to wade into the debate and issued a statement saying that integrating other species into legal constructs designed for humans is a matter “<a href="https://www.nonhumanrights.org/content/uploads/2020_02581_The_Nonhuman_Rights_Pr_v_The_Nonhuman_Rights_Pr_DECISION_AND_ORDER_21.pdf">better suited to the legislative process</a>”.</p>
<p>In other words, extending legal personhood needs to be fully thought through and legislated for by Congress, not declared by the courts. In deciding this, the appeals court concurred with several cases from across the US that reached the same conclusion, from the whales and dolphins <a href="https://www.abc.net.au/news/2004-10-21/court-rules-whales-dolphins-cant-sue-bush/571048">denied compensation</a> for disturbances caused by Navy sonar, to the macaque monkey deemed <a href="https://www.bbc.co.uk/news/uk-wales-south-east-wales-41235131">not to be entitled</a> to copyright protection for a selfie it took. </p>
<p>Letting politicians instead of judges deliberate the recognition of new legal persons might seem a sensible approach. It’s one that was recently taken by the New Zealand parliament when it voted to <a href="https://www.nationalgeographic.com/culture/2019/04/maori-river-in-new-zealand-is-a-legal-person/">recognise a river as such</a>. But the US Congress and other legislatures are usually reluctant to recognise new categories of legal persons unless their hand is forced. </p>
<figure class="align-center ">
<img alt="A winding river surrounded by a wooded landscape with hills." src="https://images.theconversation.com/files/377340/original/file-20210106-23-18btzpe.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/377340/original/file-20210106-23-18btzpe.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/377340/original/file-20210106-23-18btzpe.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/377340/original/file-20210106-23-18btzpe.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/377340/original/file-20210106-23-18btzpe.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=565&fit=crop&dpr=1 754w, https://images.theconversation.com/files/377340/original/file-20210106-23-18btzpe.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=565&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/377340/original/file-20210106-23-18btzpe.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=565&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The Whanganui River was granted legal person status by the New Zealand government in 2017.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/aerial-view-beautiful-landscape-whanganui-river-1216887664">RLS Photo/Shutterstock</a></span>
</figcaption>
</figure>
<p>After all, legislatures once turned a blind eye as many human beings were denied the status of legal persons based on their age, sexuality, religion, gender or race. The institution of slavery relied on legal systems denying the legal personhood of human beings, and it was the courts – most notably <a href="https://www.nationalarchives.gov.uk/pathways/blackhistory/rights/docs/state_trials.htm">the Somerset case</a>, heard in England in 1772 – that challenged this, long before slavery was abolished through legislation. </p>
<h2>Legal precedent</h2>
<p>The problem for Happy, then, is that new legislation to benefit her is unlikely given that the issue is considered a low priority – if it’s even on the political radar at all. So any court presented with a case like Happy’s must face a choice – either do nothing and maintain Happy’s suffering, or force the legislature’s hand by following the lead of other legal systems. </p>
<p>Courts in Argentina have recognised the legal personhood of <a href="https://www.independent.co.uk/news/world/americas/argentina-judge-says-chimpanzee-poor-conditions-has-rights-and-should-be-freed-zoo-a7402606.html">Cecilia the Chimpanzee</a>, who was detained in similar conditions to Happy. Chucho the Bear, also held in similar conditions, is a legal person too <a href="https://changingtimes.media/2017/08/03/habeas-corpus-victory-for-bear-in-colombia-encourages-animal-rights-lawyers/">thanks to the Columbian Courts</a>. Both were granted habeas corpus relief from their inhumane captivity as a result. </p>
<p>The New York courts will be confronted with this choice again. Happy’s legal team <a href="https://www.nonhumanrights.org/blog/first-department-decision-new-york-elephant-rights-case/">intend to appeal</a>, and in doing so may bring the case into the orbit of a judge more sympathetic to this kind of activism. The last time an animal personhood case (about chimpanzees) reached the more powerful appellate level in New York, <a href="http://www.nycourts.gov/ctapps/Decisions/2018/May18/M2018-268opn18-Decision.pdf">Judge Fahey</a> noted that:</p>
<blockquote>
<p>The issue [of] whether a nonhuman animal has a fundamental right to liberty protected by the writ of habeas corpus is profound and far-reaching… Ultimately, we will not be able to ignore it. While it may be arguable that a chimpanzee is not a person, there is no doubt that it is not merely a thing. </p>
</blockquote>
<p>If one judge thinks this, then they may not be alone. The New York Court of Appeal may yet acknowledge the elephant in the room and provide a happy ending, with stronger legal rights for non-human animals across the US.</p><img src="https://counter.theconversation.com/content/152410/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Joshua Jowitt does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Happy has lived alone in captivity for 14 years, but a New York appeals court recently denied a legal effort to rehome her.Joshua Jowitt, Lecturer in Law, Newcastle UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1381652020-05-27T12:22:25Z2020-05-27T12:22:25ZWhy COVID-19 immunity passports may violate US law<figure><img src="https://images.theconversation.com/files/336216/original/file-20200519-152349-oex84t.jpg?ixlib=rb-1.1.0&rect=75%2C37%2C4080%2C2766&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">View of blood collection tubes in a rack on the first day of a free COVID-19 antibody testing event at the Volusia County Fairgrounds, in DeLand, Florida.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/view-of-blood-collection-tubes-in-a-rack-on-the-first-day-news-photo/1211855104?adppopup=true">Paul Hennessy / Echoes WIre/Barcroft Media via Getty Images</a></span></figcaption></figure><p>As the <a href="https://theconversation.com/us/topics/coronavirus-5830">COVID-19 crisis</a> wreaks havoc across the globe, a <a href="https://www.nbcnews.com/news/world/some-countries-against-advice-mull-certifying-ex-virus-patients-immune-n1200076">handful of countries</a>, including Germany, Chile and the United States, are mulling the use of <a href="https://www.telegraph.co.uk/travel/comment/immunity-passports-coronavirus/">immunity passports</a> to make clear who is <a href="https://www.businessinsider.com/coronavirus-immunity-passports-race-id-startups-yoti-onfido-2020-5">immune from coronavirus infection</a>. </p>
<p>Several U.S. <a href="https://www.wsj.com/articles/to-get-back-to-work-companies-seek-coronavirus-tests-for-workers-11587375003">companies are also examining</a> ways of <a href="https://www.forbes.com/sites/brucejapsen/2020/05/11/less-than-5-of-us-employers-sold-on-antibody-tests-for-workers/#6a56d9997541">testing employees</a>, including for COVID-19 antibodies, before allowing them to return to the office. </p>
<p>People cleared from infection would enjoy certain privileges like traveling internationally or working outside their homes. <a href="https://www.doi.org/10.1001/jama.2020.8102">Other scenarios</a> envision a more limited use, such as screening which hospital employees should be exposed to vulnerable patients.</p>
<p>As a <a href="https://mckinneylaw.iu.edu/faculty-staff/profile.html?id=702">law professor</a> who has <a href="https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=540780">written</a> about legal issues raised by <a href="https://digitalcommons.pepperdine.edu/plr/vol43/iss4/3/">new biotechnologies</a>, I’m concerned about the potential legal and ethical ramifications of immunity passports that aren’t based on vaccinations. Not only could their use violate U.S. disability protections, they could also enable discrimination and foster a <a href="https://www.scientificamerican.com/article/why-history-urges-caution-on-coronavirus-immunity-testing/?fbclid=IwAR2ynK1ssW3qkcKZQpBFp5sSoDU4u_9kX2yRxj4fti5A--c3bOpzgR_Nj20">two-tiered</a> society in which many are left behind.</p>
<h2>Passport precedence</h2>
<p>The concept of immunity passports is not novel. Vaccination cards, for example, demonstrate immunity to specific diseases and aren’t necessarily problematic.</p>
<p>For example, yellow fever vaccination cards are required to travel to <a href="https://wwwnc.cdc.gov/travel/yellowbook/2020/preparing-international-travelers/yellow-fever-vaccine-and-malaria-prophylaxis-information-by-country">certain countries</a>. And university students in Florida and Colorado must have <a href="https://www.immunize.org/laws/menin.asp">meningococcal</a> vaccinations. </p>
<p>But in those cases, there is a readily available vaccine that allows anyone who gets one access to a country or college campus. If a vaccination eventually establishes immunity from COVID-19, I believe such certification would be <a href="https://doi.org/10.1016/S0140-6736(20)31034-5">legally and ethically</a> permissible. <a href="https://www.natlawreview.com/article/no-vaccine-no-job-court-affirms-employer-s-ability-to-condition-employment-upon">Courts</a> have said that employers can require employees to be vaccinated as a prerequisite to work in certain circumstances.</p>
<p>Absent a <a href="https://www.sciencemag.org/news/2020/05/unveiling-warp-speed-white-house-s-america-first-push-coronavirus-vaccine">vaccine</a> for COVID-19, however, some countries and companies are already looking for ways to establish <a href="https://www.doi.org/10.1001/jama.2020.7712">immunity</a> through antibody testing. </p>
<p>This is problematic because it’s <a href="https://www.cdc.gov/coronavirus/2019-ncov/lab/serology-testing.html">unclear</a> if there is immunity from <a href="https://time.com/5827450/who-coronavirus-antibodies-reinfection/">subsequent infection</a>. And if there is immunity, it’s <a href="https://www.who.int/news-room/commentaries/detail/immunity-passports-in-the-context-of-covid-19">uncertain</a> how long it lasts. </p>
<h2>Legal issues</h2>
<p>The <a href="https://www.ada.gov/pubs/adastatute08.htm">Americans with Disabilities Act</a> protects those who have a disability, which is defined as a physical or mental impairment that substantially limits one or more major life activities, and those perceived by others as having such an impairment, from discrimination in the workplace. </p>
<p>Although courts have never considered lack of immunity to a disease as such an impairment, the legislative history of the ADA is broad enough to allow such an interpretation. This means that employers can’t discriminate against workers based on whether they have or don’t have immunity.</p>
<p>The Equal Employment Opportunity Commission, the agency that enforces workplace protections, however, has classified COVID-19 as a “direct threat” to the workplace. So, despite ADA protections, employers <a href="https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities-act">can</a> test employees for infection before letting them return to work. And someone who tests positive for COVID-19 could be excluded from the workplace until they recover. </p>
<p>But employers cannot go one step further and require employees to show that they are immune to COVID-19 in order to work. Since the lack of immunity is not a direct threat to the workplace, employers have to follow ADA guidance. </p>
<p>The ADA also protects people who do not have a disability but are “<a href="https://www.law.georgetown.edu/poverty-journal/wp-content/uploads/sites/25/2019/12/26-3-Porter-Explaining-Not-Disabled-Cases-3.pdf">regarded as</a>” having <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3590561">a disability</a>. For example, if a cab company fires a driver because of a mistaken belief that she has epilepsy, the action would <a href="https://www.forbes.com/sites/tomspiggle/2020/02/26/the-coronavirus-keeping-your-job-if-you-get-quarantined/#1944eff44f41">violate the ADA</a>. That’s because it treated the non-disabled driver as disabled. </p>
<p>A growing list of U.S. companies – <a href="https://www.forbes.com/sites/andriacheng/2020/04/16/amazons-plan-to-test-all-employees-on-coronavirus-may-up-the-ante-for-other-companies/#659a3b5136cb">Amazon</a> and General Motors, among them – are <a href="https://www.washingtonpost.com/nation/2020/04/13/businesses-workforce-coronavirus/">exploring ways to test employees</a> for infection or immunity. Current <a href="https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws">Equal Employment Opportunity Commission guidance</a> only allows screening and testing for COVID-19 infection, not antibody testing. </p>
<p>But allowing only people with immunity – or evidence of past infection – to work would disadvantage those who haven’t gotten sick or those without the antibodies to prove it. It’s as if, in the eyes of their employer, their lack of infection <a href="https://www.latimes.com/opinion/story/2020-04-24/coronavirus-antibody-tests-immunity-discrimination">constitutes a disability</a>. The <a href="https://www.nature.com/articles/d41586-020-01451-0">inequality</a> that immunity passports could foster in these situations may be illegal under the ADA.</p>
<p>As long as an employee is able to perform the essential functions of his or her job, <a href="https://law.stanford.edu/2020/04/10/covid-19-immunity-certificates-practical-and-ethical-conundrums/">those without immunity are most likely protected</a> under the ADA.</p>
<p>State and local laws may also produce stumbling blocks for immunity passports, especially in states like <a href="https://dhr.ny.gov/law">New York</a> and <a href="https://www.dor.ca.gov/Home/UnruhCivilRightsAct">California</a>, which have broad civil rights protections against discrimination. Similarly, local laws like New York City’s <a href="https://www1.nyc.gov/site/cchr/law/text-of-the-law.page">human rights law</a> may pose problems for immunity passports due to extensive protections against discrimination granted to employees and the public.</p>
<h2>Ethical concerns</h2>
<p>Beyond the legal problems, immunity passports also raise many <a href="https://doi.org/10.1016/S0140-6736(20)31034-5">ethical</a> concerns. </p>
<p>Some observers worry that immunity passports may encourage harmful behavior like intentional infection, similar to what happened during a <a href="https://www.nytimes.com/2020/04/12/opinion/coronavirus-immunity-passports.html">yellow fever</a> outbreak in the <a href="https://www.scientificamerican.com/article/why-history-urges-caution-on-coronavirus-immunity-testing/?fbclid=IwAR2ynK1ssW3qkcKZQpBFp5sSoDU4u_9kX2yRxj4fti5A--c3bOpzgR_Nj20">southern U.S.</a> in the late 19th century. Poor immigrants sought out infection in order prove immunity and find work, despite high fatality rates. </p>
<p>And <a href="https://www.nature.com/articles/d41586-020-01451-0">there’s concern</a> that the policing of immunity passports would harm people of color, just as <a href="https://www.nytimes.com/2020/05/07/nyregion/nypd-social-distancing-race-coronavirus.html">uneven enforcement</a> of social distancing rules in cities like New York City have targeted a higher percentage of African Americans and Latinos.</p>
<p>Finally, it might encourage <a href="https://www.statnews.com/2020/04/10/immunity-certificates-covid-19-practical-ethical-conundrums/">fraud</a>, resulting in a black market for <a href="https://www.nature.com/articles/s41591-020-0896-2">fake immunity passports</a>. </p>
<p>As states reopen, immunity passports may be tempting. But their use will create an underclass and a <a href="https://onezero.medium.com/immunity-passports-could-create-a-new-category-of-privilege-2f70ce1b905">societal rift</a> between those who are immune to COVID-19 and those who are not. </p>
<p>[<em>Insight, in your inbox each day.</em> <a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=insight">You can get it with The Conversation’s email newsletter</a>.]</p><img src="https://counter.theconversation.com/content/138165/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Seema Mohapatra does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Amazon and General Motors are among companies exploring ways to test employees for COVID-19 infection, but these measures may be against the law.Seema Mohapatra, Associate Professor of Law and Dean's Fellow, IUPUILicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1066452020-02-14T10:54:40Z2020-02-14T10:54:40ZHow people in immigration detention try to cope with life in limbo<p>The British Home Office has received heavy criticism in recent weeks after it emerged people held in immigration detention centres were <a href="https://www.independent.co.uk/news/uk/home-news/home-office-immigration-detention-phone-outage-deportation-flight-legal-advice-a9323806.html">struggling to access mobile phone reception</a> and could not reach lawyers to challenge their imminent deportation.</p>
<p>In the year to June 2019, just over <a href="https://www.gov.uk/government/publications/immigration-statistics-year-ending-june-2019/how-many-people-are-detained-or-returned">24,000 people were detained</a> in the UK under immigration law while they awaited the outcome of their appeals. Most of these detainees have experienced forced migration due to war or economic destitution, leaving behind their families. This forced migration is often life threatening, as shown by the tragic deaths of <a href="https://theconversation.com/how-to-prevent-the-deaths-of-more-vietnamese-migrants-trying-to-reach-britain-125989">39 Vietnamese migrants</a> in a lorry in late 2019. </p>
<p>For those who reach their new location and are then detained, immigration detention becomes a significant threat to their social, financial, and psychological well-being. My colleagues and I saw these issues first hand in a <a href="https://doi.org/10.1002/ejsp.2543">series of recent interviews</a> we conducted with 40 people detained in UK immigration removal centres. </p>
<h2>Powerlessness</h2>
<p>As well as depriving people of their family life, employment and future hopes, detention removes social resources – such as support from close friends and family – that are essential when dealing with stressful situations. This exacerbates feelings of loss and loneliness, making it particularly difficult for detainees to cope with their situation. A man we interviewed, detained for two months, told us: </p>
<blockquote>
<p>24 hours I am upset. When I go sleeping I see bad dreams. I wake up and I check, 1 o'clock, 2 o'clock. 24 hours, I feel to kill myself. This country treats animals better. Animals have human rights, but we don’t?</p>
</blockquote>
<p>We also saw detainees held in a perpetual state of powerlessness, unable to plan their futures as they waited for faceless officials to decide their fate. Detention becomes an additional layer of frustration and pain on top of feelings of exclusion from British society and the denial of basic human rights. </p>
<p>Detainees tend to perceive their detainment as a clear indication that they are not wanted in the host country, and not trusted to live in the community while awaiting a decision about their case. One interviewee, detained for five months, described how he understood why some people attempt suicide in immigration detenton: “Because it is inhuman the way they treat you in here.” One <a href="https://www.theguardian.com/uk-news/2018/oct/11/revealed-two-suicide-attempts-every-day-uk-deportation-detention-centres">freedom of information request</a> showed that there were two suicide attempts recorded every day between April and June 2018 in immigration deportation centres.</p>
<p>Our study explored the ways detainees try to make sense and cope with these challenging and traumatic experiences within detention. The existing social networks of many of the people we interviewed were often painfully distant and unable to provide much-needed support. Families and friends were forced to make long and expensive journeys to remote immigration detention centres to support their loved ones in their darkest moments. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/how-immigration-detention-compares-around-the-world-76067">How immigration detention compares around the world</a>
</strong>
</em>
</p>
<hr>
<h2>Solidarity among detainees</h2>
<p>Many detainees, however, did not have anybody who they felt they could turn to, while others didn’t wish to burden family members with their distress. In such cases, they turned to fellow detainees for support. Despite coming from different backgrounds and cultures, the detainees have shared experiences of exclusion and confinement, creating a sense of common fate.</p>
<p>This brought them together despite their differences, allowing them to share an understanding of the suffering and thereby create a source of meaningful and valuable mutual support. As one woman, who had been detained for a month, told us: </p>
<blockquote>
<p>People try to help in the best way they can. You are surrounded by a lot of good people because we are here for the same reason at the end of the day. If someone is very emotional like that, they try to be there for that person so you are never alone around here, never alone.</p>
</blockquote>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/315002/original/file-20200212-61974-1fhjxwl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/315002/original/file-20200212-61974-1fhjxwl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/315002/original/file-20200212-61974-1fhjxwl.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/315002/original/file-20200212-61974-1fhjxwl.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/315002/original/file-20200212-61974-1fhjxwl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/315002/original/file-20200212-61974-1fhjxwl.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/315002/original/file-20200212-61974-1fhjxwl.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Detainees try to support each other, but it’s not easy.</span>
<span class="attribution"><span class="source">By tuaindeed/Shutterstock</span></span>
</figcaption>
</figure>
<p>Yet these connections are not always long lasting. There is a high turnover of people coming through each immigration detention centre, as release and deportation are both relatively common.</p>
<p>It’s also not always easy to provide support to other detainees. When a person is suffering themselves, bearing witness to others’ suffering is very hard and occasionally it adds to their own burden. This sometimes led detainees to retreat into their rooms to avoid observing the suffering of others. One detainee told us: </p>
<blockquote>
<p>Cause I don’t want to hang around the wing, it’s too negative the vibes, very negative. People, they just talking about their problems. I got plenty
myself.</p>
</blockquote>
<p>For every coping strategy that works within detention, there are many that do not work, and the daily struggle persists, with <a href="http://dx.doi.org/10.2139/ssrn.2867358">some detainees turning to self-harm</a> or attempting suicide. </p>
<p>Detention centres provide heartening examples of human resilience, but our research also shows that detention can exacerbate the suffering of already vulnerable people. The serious psychological impact of detention is yet another reason why detention for immigration reasons should stop.</p><img src="https://counter.theconversation.com/content/106645/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Blerina Kellezi does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Detainees, held in a perpetual state of powerlessness, try to support each other.Blerina Kellezi, Lecturer in Social Psychology, Nottingham Trent UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/940542018-03-29T09:47:04Z2018-03-29T09:47:04ZCriminal code bill will leave Indonesian migrants’ children in Malaysia in legal limbo<figure><img src="https://images.theconversation.com/files/212280/original/file-20180327-109204-wvepgd.jpg?ixlib=rb-1.1.0&rect=4%2C1%2C992%2C664&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Without birth certificates, the children in Sabah, Malaysia, who are entitled to Indonesian nationality, will not be able to get a passport that gives them safe passage back to Indonesia.</span> <span class="attribution"><span class="source">www.shutterstock.com</span></span></figcaption></figure><p>There are thousands of stateless children in Sabah, Malaysia. The estimates vary between <a href="https://www.unicef.org/about/annualreport/files/Malaysia_Annual_Report_2014.pdf">30,000</a> and <a href="https://asiafoundation.org/2010/12/08/sabahs-stateless-children/">52,000</a> as there has been no census or statistics collected on them. </p>
<p>Most of them are children of Indonesian migrants. These children face the risk of being stuck in legal limbo if an Indonesian bill to amend the criminal code is passed in its current state. </p>
<h2>Criminalising private activities</h2>
<p>Indonesia is deliberating <a href="http://www.thejakartapost.com/news/2018/01/25/criminal-code-bill-goes-too-far-into-private-matters-experts.html">the bill</a> to change the country’s 100-year-old criminal code. Some people are ardently opposing the bill because it contains clauses that, once implemented, will compromise freedom of speech and public health efforts. </p>
<p>One contentious clause will criminalise sexual activities by a man and a woman who are not legally married. This carries a maximum penalty of five years in prison.</p>
<p>This clause is problematic because many Indonesians, including those working abroad such as Indonesian migrants in Sabah, do not register their marriages. Layers of registration with religious institutions and the state create barriers for many couples to legalise their marriage. None of this would have significant impacts on children if not for the coupling of birth registration with marriage registration. </p>
<p>The current draft of the criminal code bill will deter unregistered migrant parents in Sabah from going to the Indonesian consular offices in Kinabalu and Tawau or to the occasional mobile registration services to register their children. Bringing their children to obtain a birth certificate without having proof of marriage would be evidence of having sexual activities outside legal marriage. </p>
<h2>Stateless children</h2>
<p>As a foreigner, children of migrant workers are not eligible for Malaysian nationality, although legally speaking they are entitled to birth registration. But, even when one of the parents is Malaysian, the absence of a marriage certificate serves as a structural obstacle to proving their legal relationship to Malaysia. </p>
<p>Most of these children have parents who are working and living in Malaysia without a legal permit or who have overstayed their initial licence. For their parents, applying to the Malaysian government for marriage and birth certificates means exposing themselves to the authorities and risking jail, deportation, and sometimes separation from their families. The hostile public sentiment in Sabah against migrant communities adds to the fears, with cases of crackdowns on undocumented migrants recorded in recent years. </p>
<p>Obtaining a marriage certificate at the Indonesian consulates or mobile registration services are, for now, the only safe way for Indonesian migrants to obtain legal documents for the purpose of obtaining a birth certificate for their children. But even in this case, distance and cost come into play. These children and their families mostly live in remote palm oil estates. </p>
<h2>Worse off for the poor</h2>
<p>In Indonesia, there is a strong correlation between poverty and not having a marriage certificate and birth registration. <a href="http://www.cpcnetwork.org/wp-content/uploads/2015/02/AIPJ-PUSKAPA-BASELINE-STUDY-ON-LEGAL-IDENTITY-Indonesia-2013.pdf">A survey</a> in 17 provinces in 2013 shows that 55% of couples in the bottom 30% for household income do not have marriage certificates.</p>
<p>Of these couples, 75% of their children do not have their births registered. In general, children whose parents do not have a marriage certificate are twice as likely not to have birth certificates as those whose parents have their marriages recorded. The challenges include lack of awareness, the cost of going to civil registrars (at district and sub-district level), and the complexity of the bureaucracy.</p>
<p>A birth certificate contains information on a child’s place of birth and parents; both are crucial to establishing a child’s nationality by the <em><a href="https://en.wikipedia.org/wiki/Jus_soli">jus soli</a></em> or <em><a href="https://en.wikipedia.org/wiki/Jus_sanguinis">jus sanguinis</a></em> principles. </p>
<p>Without birth certificates, the children in Sabah who are entitled to Indonesian nationality will not be able to get a passport that ensures safe passage back to Indonesia. They will also not have access to government services such as education and health, save for the informal education provided by NGOs in Sabah. </p>
<p>Children have expressed their desire to visit their parents’ home country but are afraid of being caught if crossing the border. Crossing the border illegally is very dangerous. <a href="https://www.uvic.ca/research/centres/capi/assets/docs/working-paper/Butt_etal_Working_Paper_2.pdf">Some accounts</a> point to high levels of <a href="https://www.solidaritycenter.org/wp-content/uploads/2015/02/IndoTraffickingCOMPILED-1.pdf">human trafficking</a>. </p>
<p>The impacts of criminalising sexual activities between consenting adults will disproportionately affect poor people, including many Indonesian migrant families and their children. </p>
<p>This runs counter to the Indonesian government’s pledge — or rhetoric — to protect migrant workers and their families, as enshrined in the <a href="http://www.ohchr.org/EN/ProfessionalInterest/Pages/CMW.aspx">Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families</a>. Indonesia ratified the convention in 2012. </p>
<p>This criminal code bill, as it stands today, will underpin the failure of the Indonesian government to protect its young citizens.</p><img src="https://counter.theconversation.com/content/94054/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Clara Siagian is affiliated with the Center on Child Protection and Wellbeing, Universitas Indonesia (PUSKAPA) and the Statelessness Network of Asia Pacific (SNAP).</span></em></p>How the new criminal code bill will be harmful for Indonesian children in Sabah, Malaysia.Clara Siagian, Senior Researcher at the Center of Child Protection and Wellbeing (Puskapa), Universitas IndonesiaLicensed as Creative Commons – attribution, no derivatives.