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On ‘infiltrators’ and ‘Asylum Seekers’ in Israel

The mishandling of Eritrean and Sudanese nationals

Dr. Reuven (Ruvi) Ziegler

Access to Asylum Conference, Prato

29 May 2014

Themes

• Context

• The precarious status of Eritrean and Sudanese nationals

• The political discourse

• The four-part State ‘plan’

• Detention legislation, round 1: HCJ 7146/12

• Detention legislation, round 2: HCJ 8425/13

• What explains Israel’s approach?

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Context: Israel and the Refugee Convention

•Ratification of the Refugee Convention (1954)

• Not incorporated into Israeli law

• No primary asylum legislation

• No comprehensive immigration legislation • Compare: Law of Return, 1950, S. 1 (Right of

Return): ‘Every Jew has the right to come to this country as an oleh’

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Context: asylum-seeking - an abridged history

• Vietnam: one boat

• The Balkans (BiH & Kosovo): one plane

• Darfur: a few hundreds

• 2006-Summer 2012: Eritrea, Sudan (incl. South Sudan)

• Smaller numbers: Ivory Coast , Congo, Liberia, Ethiopia

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The precarious status of Eritrean and Sudanese Asylum Seekers

• 53,000 asylum seekers presently in Israel– Eritreans: 68% – Sudanese: 24%

• Policy– Temporary non (forcible) refoulement– RSD accessibility: de facto only for those in

detention– RSD recognition rate: less than 0.1%

• Global recognition rates – Eritreans: 83%– Sudanese: 69%

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The precarious status of Eritrean and Sudanese Asylum Seekers

• ‘Permit 2(a)(5)’: a presently non-executable deportation order (renewed every three months – queues & limited reception)

• Prohibition on work: currently enforced only on those in detention (HCJ 6312/10)

• Virtually no provision of welfare services

• Provision of emergency medical services (but not of chronic/mental health/recovery etc)

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Political discourse: Criminalisation and demography• MK Miri Regev (Hatikva Demonstration, 23 May 2012): ‘the

infiltrators are a cancer in our bodies.... We, the right, will deal with the infiltrator issue, we will protect our children, our women, our jobs, and will continue to demonstrate every day, until the last Sudanese is returned to Sudan.’

• Former Home Sec. Eli Yishai (Interview, Maariv, 1 June 2012): ‘the infiltrators, along with the Palestinians, will quickly bring us to the end of the Zionist dream…most of the people who come here are Muslims who think that this country doesn't belong to us, the white man’

• Former Home Sec. Eli Yishai (Interview, Ynet, 16 August 2012): ‘the infiltrator threat is just as severe as the Iranian threat… "I have asked the Treasury for a budget increase to build more detention facilities, and until I can deport them I'll lock them up to make their lives miserable’

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PART I: Closing the border

• Construction of a fence along the Israeli-Egyptian border

• Rejection at the border=refoulement? (HCJ 6582/12)

PART II: The (financial) ‘stick’

• Restrictions on transfer of earnings outside the State pending repatriation (supposed disincentives for ‘work infiltrators’)

• Based on ‘permit’ 2(A)(5): (Kafkaesque) refusal of business licences

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PART III: repatriation/agreements

July 2013

•A procedure for determining ‘voluntariness’ of repatriation of persons in detention

August 2013

•Announcement of negotiations to reach agreements with third states

February/March 2014

•The ‘Uganda plan’

•Increased financial incentive for ‘voluntary’ repatriation (a financial ‘carrot’)

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PART IV: Detention

• Planning permission granted for building a 15,000 person detention centre > implementation suspended

• Detention spaces: Saharonim= 5,400; Holot= 3,300

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PART IV: Detention

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PART IV: Detention

‘Prevention of Infiltration’ Act (Amend. no. 3) (2012)•Amending dormant 1954 legislation re Palestinian Fedayeen

• 1,818 Eritrean and Sudanese held in detention

•Length of detention: three years

•Could turn indefinite If a person arrives from territories where ‘hostile activity against Israel’ is taking place (Sudan?)

•Narrowly defined special humanitarian considerations

•Detention during assessment of asylum applications

• Possible release if an asylum application has been submitted and its assessment has not begun within three months

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HCJ 7146/12

• Constitutional challenge – Basic Law: Human Dignity and liberty, Section 5:

'[t]here shall be no deprivation or restriction of the liberty of a person by imprisonment, arrest, extradition or otherwise'.

– Section 8: 'there shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required'.

• Judgment (16 September 2013)– A 9-judge panel quashing the legislation– 90 day transition period leading to the release of 1,818

Eritreans and Sudanese > State’s feet-dragging > contempt of court (?)

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HCJ 7146/12 Arbel J (main opinion)

‘[w]e cannot deprive people of basic rights, using a heavy hand to impact their freedom and dignity, as part of a solution to a problem that demands a suitable, systemic and national solution’

‘[w]e cannot forget our basic values, drawn from the Declaration of Independence, as well as our moral duty towards every human being, as inscribed in the country’s basic principles as a Jewish and democratic state’

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HCJ 7146/12 Grunis CJ (separate opinion)

‘if, God forbid, the phenomenon re-appears and massive infiltration resumes, the problem will have to be re-evaluated… Our ruling relates to the law that allows incarceration for up to three years. Even under the present circumstances, there is nothing to stop the legislation of a new law that would allow for imprisonment for a significantly shorter period’ 

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Maariv, 28 September 2013

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The response to HCJ 7146/12:Amendment no. 4

Enacted on 10 December 2013

•Authorises detention in Saharonim of new ‘infiltrators’ crossing Israel’s southern border for one year

•Authorises indefinite detention of persons who cannot be refouled, in Holot, an ‘open facility’ located in the Negev

(Early) May 2014 data

•1,730 Sudanese & 700 Eritreans held in Holot

•13 new entrants held in Saharonim

•232 persons held in Saharonim for violating the conditions for residing in Holot

HCJ 8425/13: Pending before the same panel of the HCJ

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The response to HCJ 7146/12:Amendment no. 4

De facto prison• Managed by the Israel Prisons Authority• Report for counting three times a day • Closed shut between 2200-0600: confinement to wards• In an IDF fire training area, far from any civilian

settlement, adjacent to Saharonim • As per prisons: legislative authorisation for searches on

persons entering the facility; disciplinary measures; lists of permitted and prohibited materials

• Enforced prohibition on work

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Israel’s population: 8.2M

53K asylum seekers= 6.47 per 1000

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What explains Israel’s approach?

Global migration discourse

Security-demography ‘nexus’• A Jewish-majority state (‘Muslims’) (‘all of Africa’)• A security threat (‘Iran’) (infiltrators’)

Consequences•Detention practices befitting a threat (rather than following immigration detention rationales)•RSD effectively unavailable for the vast majority of asylum seekers > precarious legal status with impending detention

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Addressing the challenges

Proper RSD for Eritreans and Sudanese Asylum Seekers

• Sudanese nationals= refugees ‘sur place’ (?)

Subsidiary protection arrangements

Long(er) term • Adopting comprehensive immigration legislation

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Many Thanks!

r.ziegler@reading.ac.uk