Blog post by Ryan Corbett who is a Legal Advisor for Asylum Access Malaysia, and can be reached at Ryan.L.Corbett@gmail.com. Ryan has work experience in the field of refugee and migration issues in the US, Egypt, Israel and Malaysia. She holds a Bachelors from Dickinson College, a Masters in Conflict Resolution from Tel Aviv University, and a J.D. from Boston University School of Law.
In February 2018, Israel began imprisoning African asylum seekers who refused to be “voluntarily” deported. The fear of these deportations was momentarily quelled on 2 April 2018 when Benjamin Netanyahu announced a deal reached with the UN High Commissioner for Refugees to resettle roughly half of the refugees in Israel to other countries. However, within one day Netanyahu, yielding to pressure from right-wing parties within Israel, abruptly cancelled the deal. Despite the High Court of Justice ruling against deportations, two parties in the current coalition government have reached a deal that would allow the Knesset (Israel’s Parliament) to override these rulings and consequently deport African refugees. In June, it was announced that Israel continues to negotiate with African nations to seek deportation of these refugees.
While the solution the current government may propose or agree to in the future is not known, this incident is indicative of Israel’s flawed system of adjudication of refugee status applications from African refugees. The scheme used to evaluate applications of African applicants violates international law in its current form regardless of whether the threatened deportations are in fact carried out, or what deal Israel may strike in the future. Indeed, it is all the more concerning that not only is the government seeking to deport these individuals, but also refuses to evaluate their refugee claims in earnest.
After years of having their applications refused, waiting for individualised processing, and being detained en masse in an isolated facility in the middle of the desert, African refugees and asylum seekers residing in Israel may be forced to choose between indefinite detention or deportation or be forced to bend to the will of a host state that is hostile to their presence. Meanwhile, Eastern European refugees in Israel have their refugee applications reviewed individually and remain free to move around the country while their claims are processed. They will have a clear process, and only after it has been determined that they are not in fact refugees through a lengthy legal process will they face deportation from Israel.
To understand this disparity in treatment, it helps to take a closer look at the dual legal regimes governing the rights of these populations. In 2011 and 2013, respectively, Israel created a system by which over 22,000 nationals of Ukraine and Georgia have entered the country with a visa on arrival and subsequently applied for refugee status. Because they arrived in Israel by air at a regularised border crossing, these individuals are classified as being in Israel “legally”. Their applications for refugee status are reviewed individually, even before those of African applicants who have been waiting to have their claims adjudicated for years.
By contrast, there are about 40,000 asylum seekers from Eritrea and Sudan in Israel, the vast majority of whom arrived before 2012. Because they fled persecution on foot and crossed the border between Egypt and Israel without a visa, their status is regulated under Israel’s Prevention of Infiltration Law. Upon its inception in 1954, this law was concerned with the treatment of “infiltrators”, a term used to describe Arab fighters who unlawfully entered Israel’s borders during the early years of the State. The original law delineated specific nationalities of border crossers who were to be classified as “infiltrators”. However, in 2012, the Knesset amended the law to include any irregular entry to Israel, regardless of the individual’s nationality, as infiltration. Although at first glance this shift may appear egalitarian, it paved the way to treat African refugees as “infiltrators” while Eastern European refugees were warmly welcomed. In tying African refugees to Arab border crossers intending to harm the State and its citizens, the Knesset employed rhetoric that invoked fear among the Israeli public.
Eritrean and Sudanese asylum seekers have been refused the right to apply for refugee status for years. The government argued that there was no need to adjudicate individual claims since Israel would not deport these populations as a result of lack of diplomatic ties with their home nations and the harm these individuals may face upon return. Virtually everyone who managed to apply for refugee status has been waiting to have their claims processed for years, resulting in only 1 Sudanese and 11 Eritrean applicants being recognized as refugees since 2009—a dismal rate of less than 1%. By contrast, the recognition rates for Sudanese and Eritrean applicants in the EU are 52% and 92.5%, respectively.
The disparate treatment in these parallel systems has led to confusion among refugee populations as they come to terms with the de facto, if not de jure, discrimination between black and white applicants for refugee status.
The High Court of Justice, Israel’s supreme court, has accepted these dual systems for the two refugee populations as legal. However, the system used in the processing of African refugee applications violates several important tenets of international law, while the system for processing European refugees does not.
Article 14 UDHR: Right to seek Asylum
Article 14 of the Universal Declaration of Human Rights, guarantees the right of all individuals to seek asylum. Although the UDHR is non-binding, Israel has consistently articulated its commitment to the standards enshrined in the instrument. This right has been systematically denied to Eritrean and Sudanese refugees, while being granted to Eastern European refugees and asylum seekers.
Historically Eritreans and Sudanese individuals were not allowed to lodge applications for status. In 2013 the government began allowing them to apply, though many have still been denied the right or experienced delay in filing an application due to long queues or bureaucratic issues. This has been seen by some to be similar to the actions of other countries that stopped individual processing when receiving large influxes of refugees from particular countries, such as Turkey did with Syrian refugees. However, African refugees in Israel are denied basic rights, such as the right to work, that are largely granted in these contexts. In addition, the government can no longer make the case that they are acting in accordance with the actions of other States in denying the right of entire populations to apply through a regularised procedure since they are now beginning deportation proceedings for these same individuals.
Eastern Europeans were not denied such a right and were encouraged to apply and have their claims adjudicated individually. When Israel began to turn away some Ukrainian and Georgian nationals at the airport, concerned over their potential to overstay their visas and apply for refugee status, Members of Knesset argued that all nationals from these countries ought to be allowed to enter the country, and later have their applications adjudicated. Despite many being rejected, Georgian and Ukrainian citizens have nevertheless been granted the right to apply for refugee status and have their claims individually assessed. Even as members of the government note that Georgians have no reason not to return to their country of origin, their claims are still individually adjudicated before they are expelled from Israel.
Article 3: Non-Discrimination
Article 3 of the 1951 Refugee Convention and its 1967 Protocol, to which Israel is party, prohibits contracting States from discriminating against refugee applicants on the basis of race, religion, or country of origin. Israel’s plan is in direct violation of this provision of the Convention in that it applies only to Sudanese and Eritrean refugees and asylum seekers.
Only refugees from Africa (Eritrea and Sudan) have been denied the right to apply for asylum and jailed arbitrarily. In addition, only Eritrean and Sudanese individuals would be jailed subjected to deportation without a thorough assessment of their claims according to Israel’s plan in the early months of 2018.
Eastern Europeans are not subjected to detention under this new plan, or at any point in the process of adjudicating their claims. In addition, though there have been some hurdles in their applying, European applicants have largely been able to file their applications for refugee status, and those who have applied have had their cases individually reviewed.
Though the government can argue that they are merely discriminating on the basis of mode of entry, this argument is flawed. There is reason to believe that discrimination in international law covers de facto as well as de jure discrimination. This means that even if the law or policy appears neutral in that it does not obviously discriminate on the basis of race, it may still be considered discriminatory if it has a deleterious effect on a particular racial or ethnic group. In other words, despite the laws and policies being neutral to country of origin on their face, the fact that they have an injurious effect to only African refugees indicates they may be considered discriminatory nonetheless.
Article 31: No penalties on account of illegal entry or stay
Article 31 of the 1951 Refugee Convention and its 1967 Protocol states that countries cannot impose penalties on individuals who enter illegally if they fear a threat to life or freedom and provide a good reason for their illegal entry.
This new deportation plan only applies to those refugees and asylum seekers who passed through the land border between Israel and Egypt. For years, Israel has been detaining Sudanese and Eritrean refugees arbitrarily in places such as Holot “open air” prison.
Because Eastern Europeans enter Israel through airports, they do not fall within the Prevention of Infiltration Law, and are therefore not subjected to detention upon arrival. In addition, despite many overstaying their tourist visas, which would mean they are staying in the country without a legal status, these individuals are not subjected to any sort of detention or penalty for their overstay.
While international law allows for refugees to be detained while their applications are adjudicated and their identities are ascertained, the detention must be necessary and proportionate to address legitimate national security concerns. Since more than half of the country’s refugees are not being detained while their claims are being processed, it becomes clear that the detention of African refugees is not necessary or proportionate—it is plainly arbitrary.
Article 33: Non-refoulement
Article 33 of the 1951 Refugee Convention and its 1967 Protocol prohibits States from returning a refugee to place where his life or freedom is threatened, known as the principle of non-refoulement. Other human rights instruments, such as the Convention Against Torture, enshrine a similar prohibition.
Because the details of Israel’s current intentions regarding African refugees have not been made clear, it is not certain that their actions would violate the principle of non-refoulement. However, in the past, Israel has been known to deport individuals to third countries it deems safe, only to have those individuals later sent back to their countries of origin or elsewhere where they fear serious harm or death. Israel cannot avoid an accusation of refoulement, simply by not engaging in direct refoulement, meaning sending these people back to their countries of origin itself. Israel can also violate this principle by engaging in indirect refoulement, meaning transferring refugees to places that may later return them to their countries of origin. In order to avoid potentially violating non-refoulement, Israel must ensure that these individuals will not be returned to their countries of origin, and will not be sent to a country in which their life or freedom would be at risk by this supposedly safe third country to which they will be deported. As of now, there is no indication that the Israeli government has made such a promise.
In contrast, the system of adjudication for European refugees complies with the principle of non-refoulement. The claims of these applicants are evaluated before the government decides it is safe to deport individuals to their countries of origin. In the adjudication process, the government carefully considers whether an applicant would be at risk of serious harm or death upon his or her return to Ukraine or Georgia.
Israel currently has two asylum systems that operate for two different populations of asylum seekers—one from Africa and one from Europe. Neither of Israel’s asylum procedures is ideal, but one clearly violates international law in several ways, while the other does not. As such, it becomes clear that Israel’s treatment of African asylum seekers is not a response to a national security or demographic threat, as it often claims, since it manages to treat European asylum seekers with the dignity they deserve. If any plan to deport Eritrean and Sudanese refugees and asylum seekers is carried out, it will have disastrous consequences. Therefore, international policymakers interested in this issue need not demand Israel build a new system for African refugees, but simply must ask Israel to stop discriminating on the basis of race or country of origin and apply the law in place for Europeans to all people equally. This demand is of pressing concern given the current developments in Israel regarding the potential deportation of these individuals.
 For more on this, see See Human Rights Committee, General Comment 18, Non-Discrimination (1989); D.H. and Others v. The Czech Republic, European Court of Human Rights (application no. 57325/00), 13 November 2007, para. 175.
 See, e.g., Deportation or prison: Israel’s African asylum seekers, Al Jazeera, 3 March 2018, available at: https://www.aljazeera.com/programmes/talktojazeera/inthefield/2018/03/deportation-prison-israel-african-asylum-seekers-180302143018483.html [accessed 5 March 2018].
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Dear Ryan, thanks for your post.
You rightly highlight the legal significance of Israel’s divergent approaches to asylum-seekers depending on their country of origin and transit, pursuant to the ‘resurrected’ 1954 Act.
As my 2nd February post (linked in the ‘related’ segment above) noted, recognition rates for ‘infiltrators’ are abysmal, but so are recognition rates for asylum seekers from e.g. Ukraine (far lower than e.g. Western Europeans countries that are faced with asylum applications from Ukraine); therefore, despite the individualised assessment the likelihood of *anyone* being recognised as a refugee in Israel is very low, given its very restrictive approach to the refugee definition. This, in turn, is coupled with the absence of a subsidiary/complementary protection scheme (viz. e.g. EUQD). Ironically, rejected asylum seekers from Eritrea and Sudan are protected from forced refoulement, whereas rejected asylum seekers from elsewhere can – and are – being removed.
It is however worth noting that, while the state intended to start detaining Eritrean and Sudanese were they to refuse to ‘relocate’ to a ‘third’ country (aka Rwanda or Uganda), the collapse of that scheme has meant that such detention has been averted – though the state continues to incentivise ‘voluntary’ departure through e.g. the imposition of a mandatory 20% deposit on employment earnings (the legality of which is considered by the Israeli Supreme Court in a petition filed by, inter alia, ACRI and the Hotline for Migrants and Refugees).
Readers may also be interested in my discussion of Netnayahu’s volte face (https://theconversation.com/benjamin-netanyahus-u-turn-no-redemption-for-asylum-seekers-in-israel-94441).
An excellent piece – well done. As a legal practioner in Israel, I would only add that with a finite number of African asylum seekers because of a now sealed border fence with Egypt, Israel could if it desired find a suitable, legal and moral solution for it’s African asylum seekers.Such a solution could combine resettlement and integration. Unfortunately cynical political considerations have so far trumped fairness and pragmitism.