Court upholds policy of ‘voluntary’ departure or jail for illegal migrants

Monday’s ruling appeared to accept the state’s reasoning that a migrant detention period may not need to be limited once the authorities reject a request for refugee status.

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November 10, 2015 03:22
4 minute read.
African migrants walk outside Holot open detention center in Israel's southern Negev desert

African migrants walk outside Holot open detention center in Israel's southern Negev desert. (photo credit: REUTERS)

 
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The Justice Ministry and the Hotline for Refugees and Migrants on Monday announced that the Beersheba District Court has rejected a group of migrants’ petition against the state’s policy to imprison them indefinitely if they refuse self-deportation to an unnamed third country.

The ruling was handed down Sunday, but only announced Monday.

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Currently, the legal battlefield over how to handle the issue of around 45,000 African migrants who crossed into the country illegally, but claim refugee status, is somewhat up in the air.

In August, the High Court of Justice invalidated the state’s 20 month detention period for migrants as unconstitutional for being disproportionately long.

However, the High Court also rejected a major aspect of the petition against the law, ruling that jailing migrants at the Holot detention facility in the Negev in and of itself could be constitutional if the maximum detention period was shorter, with a hint that 12 months might pass muster.

The High Court also essentially validated the state’s goals of trying to deter future African migrants and shrink the current population by using detention and pressure to self-deport as a tactic.

That part of the ruling it appears has helped pave the way for Beersheba District Court Judge Rachel Barkai to uphold the part of the state’s policy which depended on giving certain migrants the choice to self-deport or be indefinitely detained.

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The state’s interpretation of the High Court’s ruling, now affirmed by the District Court (but about which the High Court was vague) was that 20 months was only too long for migrants whose refugee status was open.

However, the District Court accepted the state’s reasoning that if a migrant’s request for refugee status was rejected, that the need to limit detention to shorter than 20 months (an exact number for which the state is still undecided) does not apply.

Since around 33,000 of the 45,000 migrants are Eritrean and recently the state has taken the almost blanket position that most Eritreans in Israel are not refugees, this District Court decision could have massive significance.

To date, it is estimated by the Hotline that only a few hundred Eritrean migrants’ refugee requests have been rejected, with most requests being left indefinitely undecided.

But from the migrants’ side, there are fears that now that it has endorsement by a court, the state may speed up rejecting Eritreans’ refugee requests to accelerate sending them to third countries.

At the heart of the court’s decision lay a few main points.

The first was whether the unnamed third country destinations (the state has obtained High Court approval to keep the countries names secret due to foreign policy considerations – though they are widely known as Rwanda and Uganda from testimonies) are safe for the migrants to self-deport to.

The Hotline brought dozens of testimonies, including from recent visits by researchers to the third countries, showing that the countries were either unsafe, had no apparatus to absorb the migrants or expelled the migrants within a short time to other unsafe locations.

The District Court accepted the state’s assurances, some of which were provided in a classified and closed-door hearing which excluded the migrants, that it was sufficiently following up on the migrants to confirm that they were not unsafe nor automatically expelled.

The Hotline said that the state’s evidence was all on paper and that it did not bring testimonies, but the District Court said that the Hotline did not bring a large enough quantity of testimony to represent the full picture.

Another point of dispute is the state’s wide rejection of Eritrean refugee status. Multiple European countries have decided they can reject Eritrean refugees citing that escaping being forcibly drafted into the Eritrean army is not a basis for being a refugee.

But the UN and most of the world still views Eritreans fleeing army service as refugees because of the dictatorial nature of the Eritrean regime and the horror stories which have emerged from army service, including some stories of torture.

The Hotline and other human rights organizations which filed the petition responded, "the court did not give sufficient weight to the evidence we presented and instead legitimized a confidential arrangement which has no precedence anywhere in the world...the testimonies we submitted show that the refugees cannot stay in these countries and are bound to continue a dangerous journey.”

They added, “the ruling will lead to the imprisonment of innocent people because of their justified fear to leave to a place in which no one can guarantee their safety".

The state praised the District Court ruling, saying it affirmed its newest strategy for “the State of Israel to cope with the phenomenon of infiltrators from African countries into” its borders” and its “ongoing oversight” of the deported migrants.

Center for Israeli Migrant Policy CEO Orli Yogir said they hoped that the decision would lead to “the accelerate the process of deportation of infiltrators who have no legal right to reside in Israel” which could lead to “stopping the renewed stream of infiltrators” into Israel from Egypt.

Meretz Party leader Zehava Gal-On responded that Israel is thumbing its nose as its obligations having ratified international conventions relating to treatment of refugees and has “forgotten the days when we knocked on the doors of the countries of the world with great urgency” when Jews needed a place of refuge.

The District Court did order a 21 day delay on implementing the policy so that the human rights groups can appeal to the High Court, which they are expected to do, though at press time they had not formally decided to do so.

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