Israeli District Court Decision a Set Back for Ending Transfers and Imprisonment of Asylum Seekers

Published: 17 Nov 2015
By: Yotam Gidron

Last week the Be’er-Sheva District Court rejected a petition filed by two Eritrean asylum seekers and six Israeli NGOs against the government’s new policy of imprisoning irregular migrants who are unwilling to leave Israel to Uganda or Rwanda. By doing so, the court gave a green light to the indefinite imprisonment of Eritreans and Sudanese who refuse to “voluntarily” leave the country, and whose asylum applications have been rejected, or who did not apply for asylum at all.

Despite significant first-hand testimony collected to the contrary, in her ruling, Judge Rachel Barkai accepted the state’s position that the safety and freedoms of those deported was guaranteed, and therefore did not violate the principle of non-refoulement. Judge Barkai accepted the state’s position that Eritreans and Sudanese are provided with sufficient information on their destinations before they leave Israel, and are allowed to express their concerns if they think that they may face any particular danger in the “third country”. Moreover, she accepted that Israel is monitoring the implementation of the agreements it has reached with the destination countries, and has, since April 2015, been making an effort to contact those leaving Israel in order to establish that they are safe. The state has argued before the court that since April, a representative of the Population, Immigration and Borders Authority (PIBA) has tried to contact 163 “infiltrators” who have left Israel to “third countries”, and was able to contact 48 of them. None of them apparently raised concerns about their situation.

As the agreements between Israel and the two “third countries” are confidential, much of the information provided by the state to the court remains sealed as it is argued that its publication may threaten Israel’s relations with the two receiving countries who have requested that their identities remain unknown. Therefore, throughout the judgment the court did not refer to the two third countries by their names, but as “Country U” and “Country R”, despite it being widely known that two countries receiving these asylum seekers are Uganda and Rwanda.

The state’s argument directly contradicts information gathered by the petitioners, as well as by IRRI, UNHCR Rwanda, and Israeli NGOs. In September, IRRI published a report based on the testimonies of more than 20 asylum seekers who had left Israel. These testimonies showed that of those interviewed, none had been officially accepted at their destinations, and in some cases they were being prevented from applying for asylum or were threatened not to do so. Their situation made them vulnerable to arrests by the authorities and abuse by smugglers, and therefore many felt they had to leave their destinations shortly after arriving in them.

The petitioners, represented by lawyers of the Refugee Rights Clinic of Tel-Aviv University, submitted affidavits they took in Uganda from asylum seekers that have left Israel, a letter from UNHCR Rwanda, and an assessment by Professor Galia Sabar of Tel Aviv University’s Department of African Studies, who herself conducted interviews in Uganda with asylum seekers who have left Israel to Rwanda and Uganda. All disputed the state’s claim that asylum seekers leaving Israel are accepted at their destinations.

Dismissing the information provided by the petitioners, Judge Barkai held that the affidavits taken from asylum seekers in Uganda were unreliable, and that the information documented by UNHCR in Rwanda with regard to a number of Eritreans who were sent from Israel and remain undocumented, represents only isolated incidents (even though UNHCR also stated that in general there is no functioning asylum system in Rwanda capable of assessing Eritreans’ claims). Although Judge Barkai acknowledged that it was possible that there were some cases in the first period of the implementation of the agreements in which some “specific problems” had occurred, she held that the state’s confidential information presented to her reassured her that “lessons have been learned”.

Moreover, Judge Barkai criticised the petitioners that, despite their position that “Country R” was not allowing asylum seekers to remain in its territory after they are being transferred, they “did not see it fit” to travel to that country and witness the situation of those sent there for themselves. This is despite the fact that Country R’s actual identity has remained confidential and despite affidavits from Eritrean asylum seekers who were sent to Rwanda showing that they were not given the option of staying there legally.

By arguing that the information the petitioners submitted to the court does not represent the situation on the ground, the court has raised the burden of proof on the petitioners to a level that it will be virtually impossible to meet. It is implied by the court that in order to establish the claim that transfers are not conducted in a rights respecting manner, the petitioners were expected to bring hundreds of affidavits that will represent the situation of the thousands who have already left Israel. Not only is this nearly impossible logistically, it could endanger those testifying and identifying themselves while still living undocumented in the receiving countries.

The ruling also highlights flaws in the way Israel assesses and defines eligibility for international protection. Almost all asylum applications in Israel are rejected and the country has never developed any formal policy with regard to subsidiary forms of protection for people at risk of serious harm in their countries of origin who do not meet the conditions for refugee status. However, it does recognise that Eritreans and Sudanese cannot be deported back to their countries of origin, therefore de facto admitting that they are eligible for protection.

Those Eritreans and Sudanese who will be imprisoned under the new policy that the Be’er-Sheva District Court upheld, are exactly those who are not recognised as refugees in terms of the way Israel interprets the 1951 Refugee Convention, but also cannot be deported back to their countries of origin. Their imprisonment will therefore effectively bring to life the indefinite detention policy that was ruled unconstitutional by the Israeli High Court a little more than a year ago, and according to which the only way to get out of detention was to leave Israel “voluntarily”. Shortly after the Israeli High Court’s judgment the Israeli Knesset enacted a new amendment limiting the detention period for 20 months, and after another round in court, detention is now limited to one year. However, according to the policy the court upheld, many of those who can no longer be detained in the “open facility”, can be held indefinitely in the nearby prison if they do not agree to leave Israel for a third country.

The Be’er-Sheva District Court gave the petitioners 21 days to appeal to the High Court before its judgment is implemented. It is hoped that the High Court will be less dismissive of the evidence provided by the petitioners with regard to the implementation of the transfer agreements, and will overturn the decision. Whatever happens, Israel’s asylum policies as a whole require significant revisions in order to become legal under international law, if not humane and welcoming for those in need of protection.

Yotam Gidron is an LLB Candidate at Tel Aviv University.

Programmes: Rights in Exile, Freedom of Movement for Refugees
Regions: Great Lakes Region, Uganda, North and Horn of Africa, Sudan, Rwanda
Type: IRRI Blog