By Noa Yachot and Adi Lerner

The last year hasn’t been a good one for refugees and asylum seekers in Israel – or for those advocating on their behalf. Since an amendment to the Prevention of Infiltration Law was passed in January 2012, almost all change in the field of refugee rights has been for the worse, with the nascent asylum system in Israel making way for an unyielding detention regime. All asylum seekers arriving in Israel can now be detained for an unknown period, despite the fact that a vast majority of them cannot be deported. The law allows for a vague “humanitarian” exception – but despite the tireless work of refugee rights advocates, the state has adamantly refused to recognize the humanitarian grounds of even the most vulnerable of cases. When it comes to African refugees, the detention regime does not discriminate; as a result, small children are imprisoned, as are scores of survivors of unimaginably brutal torture at the hands of human smugglers in the Sinai Peninsula.

A view of the new section in Saharonim prison destined for imprisonment without trial of asylum seekers and refugees, August 31, 2012. (photo: Activestills)

The Supreme Court will hear a challenge to the law next month. But in the meanwhile, advocates have scored some important victories in lower courts in recent weeks. And while up to 2,000 bona fide refugees remain imprisoned, leaving much work to be done, these victories are worth both reporting and celebrating.

Release of imprisoned children

One particularly exciting win came in the case of a mother and her two daughters, 8 and 11, from Eritrea. The three had been imprisoned in the Saharonim detention center for about 10 months. In their case, brought by Raya Meiler of the Hotline for Migrant Workers, the Be’er Sheva District Court held that the children, by virtue of being minors, have “special humanitarian grounds” justifying their release. Since the passage of the amended Prevention of Infiltration Law, the state had allowed only for the release of unaccompanied minors, while children who arrived with a parent remained in the vast desert prison.

Judge Yosef Alon rejected this position, and stated that the release of all minors on humanitarian grounds should be subject to judicial discretion. In this particular case, he determined that the girls’ young age – in addition to the length of their imprisonment and the fact that they cannot be deported to Eritrea – constitute humanitarian grounds. (It is hard for us to imagine a child remaining in indefinite detention without triggering a humanitarian ground, so we’re thrilled that the judge seemed to agree.)

In light of the new precedent, the Hotline requested the reexamination of other cases of parents detained with their children, and last week, nine more woman and 10 children, all Eritrean, were released.

An Eritrean refugee hugs his wife and children, as they arrive to the central bus station in Tel Aviv on May 6, 2013, after they were released earlier today from the “Saharonim” Israeli prison. (photo: Activestills)

Torture as a humanitarian ground

The Supreme Court ruled in favor of another appeal submitted by Raya Meiler of the Hotline, regarding victims of torture. (We won’t go into detail here about the extensive network of torture camps to which refugees are subjected on route to Israel; for more on the issue check out this report.) Earlier this year, the Be’er Sheva District Court judge ruled that torture and abuse suffered by asylum seekers en route to Israel cannot constitute “special humanitarian grounds.” Thankfully, on April 18, the Supreme Court rejected this disgraceful position.

An asylum seeker shows the scars he acquired as a result of torture en route to Israel. (photo: Sigal Rozen)

The Supreme Court decision also grants discretion to the Detention Review Tribunal, a quasi-judicial body that carries out monthly reviews of the cases of all detained asylum seekers, to release rape and torture survivors, even if they are not considered victims of trafficking and slavery (a legal category that enjoys some protections in Israel).  Until that decision, the tribunal did not believe it had the authority to do so. The Hotline is now working to secure psychological evaluations for all the torture victims known to the organization.

Applying for asylum from jail

Israel is a signatory to the 1951 Convention Relating to the Status of Refugees, but the state makes it notoriously difficult for people to access the asylum procedure – that difficultly is particularly pronounced for imprisoned asylum seekers, even more so since the implementation of the amended anti-infiltration law. The Hotline works to locate asylum seekers and convey their requests to the state – but the organization is not allowed access to all the prisoners, and without intervention, they can easily languish for months without being given the opportunity to state their refugee claim before a government authority. But a recent decision by the Be’er Sheva District Court might make things a bit easier on that front as well.

According to the law, if the Interior Ministry does not process asylum requests within three months of their submission, the asylum seeker may be released from detention. Until now, however, the Interior Ministry did not begin counting when it received requests from the Hotline on behalf of those in prison. The recent ruling, in a case brought by Asaf Weitzen, determined that the Interior Ministry must indeed start counting as soon as it is notified that a given asylum seeker claims refugee status. This is especially significant considering the detainees do not have any access to actual asylum application forms (which is clearly a grave problem in its own right).

Unfortunately, despite this principled success, the Hotline has not managed to help fulfill the monetary conditions set for the release of this particular asylum seeker, and he remains in prison, despite having applied for refugee status six months ago.

Tribunal authority regarding asylum seekers involved in criminal proceedings

As +972 has reported in the past, a government regulation instated last year empowers the state to strip the residence permits of asylum seekers who have been suspected of criminal involvement, and to indefinitely detain them under the Prevention of Infiltration Law – even if they were never actually convicted or even charged. While the Hotline requested the release of those asylum seekers on the grounds of the illegality of the regulation, tribunal judges have thus far rejected those requests, claiming they do not have the authority to rule on its legality. But a Be’er Sheva judge, in a case brought by the Hotline, ruled on May 5 that the tribunal can do just that, and also exercise discretion in considering a range of other circumstances justifying release. This means that all of those asylum seekers, many of whom had hired private attorneys in order to appeal to the district court, can now turn to the tribunal through the Hotline, in a simpler (and free) process.

Next step: Strike down the law

A mobile home unit is transported into the new prison facility under construction near the current Saharonim Prison in the Negev Desert, near Kadesh Barnea, October 10, 2012. Israel is building a new facility that could hold thousands of additional asylum seekers. (photo: Oren Ziv/ Activestills.org)

The State of Israel is actively pursuing a detention regime meant to snare as many asylum seekers as possible. Considering the nearly 2,000 who remain imprisoned, these victories might seem minor. But they provide some critical rays of light in what has been an increasingly dark reality for asylum seekers and refugees in Israel. And they could herald a much bigger victory: the Supreme Court, which is set to rule on a challenge to the amended law, has already indicated that the state has some explaining to do (the state, in response, continued to insist that the law is constitutional). The court should go much further, by striking the law and undoing the detention regime. Protecting refugees is not optional – not for Israel or any other country.

Adi Lerner is the Crisis Intervention Center Coordinator at the Hotline for Migrant Workers, whose activists visit detention centers regularly to provide paralegal aid to asylum seekers and other detainees. Noa Yachot is an editor at +972 Magazine. 

The courts generally accept any, or nearly any, factual claim provided by the Interior Ministry regarding individuals whose requests for status in Israel were rejected. Judge Daphne Barak Erez’s dissenting opinion in the verdict recently handed down by the Supreme Court reveals (a small portion of) the techniques used by the Interior Ministry to review facts. The dissenting opinion, presented in light of the ruling handed down by Judge Uri Shoham, also clarifies why despite the Interior Ministry’s unprofessional conduct, appealing to the courts is rarely beneficial. Furthermore, the dissenting opinion presented by Judge Barak Erez, who is an expert on administrative law, demonstrates how classic administrative law generally prevents an honest examination of the injustices carried out by state authorities.

Tatiana, the heroine of the verdict, is a Ukranian national (a Ukranian “subject,” as per Judge Shoham, as if referring to a heroine from feudal times). Tatiana was involved with an Israeli citizen; she was arrested, deported to the Ukraine, then married her Israeli partner and returned to Israel. Following various delays, she began the “gradual process” – in the framework of which she was granted a temporary residence permit – that was to conclude with her being granted citizenship after four and a half years. But her husband passed away before the process concluded.

In accordance with its procedures, the Interior Ministry conducted a hearing to determine whether the death of Tatiana’s husband should result in her deportation from Israel or whether she may be permitted to continue to reside in the country. According to Interior Ministry regulations, the option of remaining in Israel in such a case is granted to those who prove that their bond with Israel exceeds their connection to their home country. But not one person explained to Tatiana what she had to prove. Had she known that her connection to Israel, as compared to her bond to the Ukraine, was the crux of the matter, she may have brought forth evidence. How can you prove your connection to Israel when you don’t even know that that is being asked of you?

In the framework of the petition to the district court, Tatiana requested to provide evidence and letters, which she believed could prove her claim. But Judge Nava Ben Or did not allow the provision of additional evidence, because it was not presented to the Interior Ministry when it made a decision on Tatiana’s case. The court dismissed Tatiana’s petition, after which she appealed to the Supreme Court, which also rejected the appeal.

When reading the majority opinion handed down by Judge Uri Shoham, one can understand the verdict – the woman was interviewed, did not prove a bond with Israel, end of story. But the dissenting opinion ruins Judge Shoham’s narrative, and perhaps illustrates how important judicial selection is in regards to facts worth referencing in the verdict, as compared to facts that need not be mentioned at all. Judge Barak Erez states that Tatiana was not asked questions that could direct her to shed light on her connection to Israel. Barak Erez insists that, “It is unclear whether it was conveyed to Tatiana that the main issue that would determine whether she could stay in Israel is her bond with Israel and the people here” and that “The questions presented to the appellant do not give her the opportunity to provide a complete picture of her connection to Israel.” Barak Erez notes that, “She wasn’t asked, and it is regrettable, about her friendships in Israel, what she does in her free time, and what stands behind her strong desire to stay in Israel.” Judge Barak Erez suggested that the court accept the appeal and that the Interior Ministry be instructed to properly review the request. But Barak Erez was the dissenting opinion.

The rules used by the courts in their criticism of state authorities create an inherent advantage for the state in everything regarding the establishment of facts. As opposed to civil proceedings, in which the state must prove evidence of factual claims, in criticizing the administrative process the court provides almost unlimited space for the factual determinations of the administrative authority and may reject an appeal without any evidence, even without a deposition from the government worker certifying the facts. Unlike civil proceedings, in which parties may bring expert opinions on which the court may rule, in a judicial review of an administrative decision, total preference is given to an expert simply because he or she was brought by the state, even if there is a completely contradictory expert opinion.

There may be a a certain logic to some of these rules, but it is important to be critical of the the state’s complete control of the factual narrative that we read in such verdicts. Furthermore, the courts in Israel, particularly the Supreme Court, have taken a far-reaching step in this regard. Factual statements made by lawyers in court (which in some cases were later found to be errant) are accepted by judges with no need for additional statements. District or Supreme Court criticism of Interior Ministry decisions, in which mistakes could cost someone his or her life (for example, a decision on a case in which an individual claims that his or her life as a refugee is in danger) occur with virtually no doubts pertaining to the factual allegations.

Proceedings in which factual determination are made by the Interior Ministry are distorted. Clerks make the determinations based on irrelevant questions and hunches. Nevertheless, courts generally do not bother to delve into these factual determinations. In a roundabout way, the courts determine time and again that because the Interior Ministry is the body authorized to make the decision, it is therefore the expert authority, and because it is the expert, it is authorized to make the decision, and therefore the decision should be left up to its discretion. They delude themselves that experts are making the right decisions, and therefore they can rest easy. Judges rarely question whether the Interior Ministry might not really be an expert, and whether it might be making decisions without asking the right question.

When Oscar Wild wrote his in essay, “The Truth of Masks,” about the metaphysical significance of costumes and props in Shakespeare’s plays, he likely didn’t imagine that lesbians seeking asylum in the United Kingdom would need to familiarize themselves with his writing and with props of a different type (which were likely not used in Shakespeare’s plays). But it turns out that a lack of knowledge of his work, or of the use of dildos, could send lesbians to their deaths.

Let’s take a few of steps back. The UK asylum system is considered quite strict, relatively to many others in the “West.” (It goes without saying, of course, that compared with the State of Israel’s asylum system, it is an asylum seeker’s dream – last year, the refugee recognition rate in the UK was 25.1 percent, or 5,461 in absolute numbers, as opposed to less than 0.1 percent in Israel.) In contrast with Israel, where not one person, to date, as been recognized as a refugee on the grounds of his or her sexual orientation or gender identity, quite a few asylum seekers were recognized on those grounds in the UK. However, until 2010, asylum seekers who claimed persecution on sexual orientation or gender identity grounds were forced to pass tests with utterly arbitrary results. Asylum seekers who claimed persecution on the grounds of their sexual orientation had to prove that concealing their orientation in their country of origin, if it meant evading persecution, was “unreasonable” in their case. Only in cases where this concealment was unreasonable would the state authorities grant asylum. The test was dubbed by many the “Anne Frank principle” – i.e. in which circumstances would it have been reasonable or unreasonable to require that Anne Frank hide in an attic to avoid persecution?

All that changed in 2010, when the UK’s supreme court struck down that test. In a ruling in the case of an Iranian and a Cameroonian asylum seeker, it was determined that asylum seekers should not be obligated to hide their sexual orientation in order to evade persecution. The court also ruled that an asylum application should not be rejected even if the applicant, upon being deported, could be expected to avoid persecution through living “discretely.”

The new standard established by the supreme court for determining asylum requests on sexual orientation grounds has its own problems, but we can’t go into that here and will have to deal with it in a separate post. Let’s just say that even the new standard swings between the dichotomy of “closet” and “out,” and between “discretion” rooted in persecution and “discretion” rooted in “other social or family grounds.” It makes additional distinctions that probably don’t represent the experiences of persecuted sexual minorities or those doing the persecuting. But we’ll deal with all that another time (maybe).

Despite the difficulties that the new standard presents, the ruling significantly improved the lots of those seeking asylum on sexual orientation or gender identity grounds, and neutralized the idea that a person who can avoid persecution through concealment should do so, and isn’t eligible for asylum. One of the amusing parts of Lord Hope’s ruling was the paragraph where he wrote:

…just as male heterosexuals are free to enjoy themselves playing rugby, drinking beer and talking about girls with their mates, so male homosexuals are to be free to enjoy themselves going to Kylie concerts, drinking exotically coloured cocktails and talking about boys with their straight female mates.

Other more humorless writers criticized the “Kylie Minogue principle” as stereotypical and irreconcilable with rational refugee law (for example, the unbearably serious article by James Hathaway, “Queer Cases Make Bad Law”). But it’s clear that this is about the illustration of the right the ruling addresses – the right to live openly and freely and to act in a way that may not correspond with what is considered heteronormative behavior. Beyond that, it’s clear that at least some of the cases of persecution are not a result of a person’s sexual acts, but rather social behavior that does not fit in with the gender role assigned to him or her.

But now it seems that after the supreme court expanded the rights of LGBTQ individuals to asylum, the British authorities are seeing new ways to reduce the numbers of those eligible. The “discretion principle,” which was replaced by the “Kylie Minogue principle,” has now been replaced by the “dildo principle.”

A study based on interviews with lesbian asylum seekers, published recently by Claire Bennett of the University of Southampton in Britain, suggest that the “dildo standard” is achieving new heights of popularity. In order to prove that they are lesbians, women asylum seekers are asked by an immigration officer and an immigration judge to describe which sex toys they use. An asylum seeker from Pakistan was asked by an immigration judge to tell him which nightclubs she frequents, and he even expressed doubt she was a lesbian after she said that she does not participate in the gay pride parade. An asylum seeker from Uganda was asked questions about Oscar Wilde, an asylum seeker from Jamaica was told that she doesn’t “look like a lesbian” – and it doesn’t end there.

Speaking of creative ways to test sexual orientation, until recently, the Czech Republic tended to assess the credibility of asylum seekers who claimed they were homosexual through phallometric testing – by attaching their sex organs to instruments that measure changes in blood flow in reaction to pornographic pictures of men and women.

Here’s a cat.

Jewish refugees aboard the SS St. Louis look out through the portholes of the ship while docked in the port of Havana. June 02, 1939 (Photo: Dwight D. Eisenhower Library)

“The gates of [the land of Israel] were locked to Jewish refugees, as were the gates of most countries, if not all of them, including the most enlightened ones.” (Prime Minister Benjamin Netanyahu’s speech on Holocaust Remembrance Day ceremony, April 7, 2013)

Bibi, why are you lying? They’re not refugees.

First of all, everyone knows what the economic situation in Germany was after the First World War. People ran away in order to have something to live on.

Second, when they were asked why they came to the countries they arrived in, they said that they wanted to live better lives than they had in Germany. Real refugees never talk about their quality of life.

Third, there is no such thing as “the gates of most countries.” Real refugees always stay in the nearest country of refuge, the first one they arrive in, and don’t travel to “the gates of most countries.”

Fourth, none of them, not one, filled out forms, nor did they submit asylum requests in any country. Real refugees don’t fill out forms.

Fifth, when some of them were interviewed, contradictions were found in their stories. One time their windows were smashed in at 11:58 at night on November 9, and another time at 12:04 a.m. on November 10. One time seven people shattered their windows, and another time eight. Real refugees remember, and don’t make mistakes about such things.

Sixth, none of them, ever, was recognized as a refugee. Real refugees are always recognized.

Seventh, if they were real refugees it would have been forbidden to return them to the countries they fled. Despite that, they were returned to Europe – or in a coordinated return immediately after arriving in different countries, or voluntarily after they complained about not being allowed to work and live and that life was really difficult – and no court, ever, said it was forbidden.

Eighth, what was done to them? They conscripted them and sent them to camps in order to work a little for their countries? You didn’t go to the army to serve your country? Everyone who had a grueling army experience is considered a refugee?

Ninth, and to conclude, even if some of them were real refugees – and they weren’t – then how many of them do you have to accept? No, really, if you have such a beautiful soul, and are ready to receive refugees, then say how many. Throw out a number. How many is okay? Two hundred? Two thousand? Twenty thousand? The entire 6 million? What country would take 6 million?

Basically, Bibi, enough with the lies. Take away all of the survivors of this Holocaust of yours, with their complaints, and their wars, and the violence they bring with them everywhere they go, and deal with them in your own back yard.

Filipino children at protest against arrest of child of migrant worker (Activestills)

Those who do not appear before the High Court of Justice may mistakenly believe that legal proceedings are conducted there. The sides make claims, at length, and prove their statements. The judges press them, requesting additional evidence. While we inherited the High Court of Justice from the British, this is no House of Lords. Legal proceedings are conducted in the House of Lords. High-Level Babble is conducted at the High Court of Justice.

High-Level Babble deals with issues that are on the agenda, and repeats banal slogans. You can say whatever you want in High-Level Babble, share your duty free experiences, and draw conclusions based on what you heard on the radio, read in the paper distributed for free on the bus, or heard in a other High-Level Babble. There’s no need to delve deep, and proof is not required. Lively High-Level Babble will conclude with a decision on whoever is the loudest, or an understanding that there are different views, and in the harshest cases it will conclude with the recognition that this is an issue that the Knesset must handle. Oh, yeah – participants in High-Level Babble are predominantly male.

The problem is that sometimes High-Level Babble in the High Court of Justice results in verdicts. In a verdict handed down more than three years ago, the judges – two males and a female – assumed what was best for migrant workers (sorry, the verdict determines that she is not a “migrant worker,” as there are no migrant workers in Israel, there are only “foreign workers”), and what is best for them is to work as caregivers without getting paid overtime. Why? Because it is common knowledge that they are poor in their home countries, and they come here, and all of our goodness is bestowed on them, so even if we take a little from them, their lives here are still golden compared to what could have been had they stayed in the decrepit places from which they came. Plus we can’t forget the flip side, which is no walk in the park – those taken care of by the nurses, their employers, who we feel bad for, because they are in a sorry state. And yeah, let the Knesset deal with it.

The Knesset, of course, didn’t handle it, and a decision was handed down this week to a request for an additional deliberation on the verdict. Six men participated in the deliberation, and three women joined them. And lo and behold: Four judges wrote a new babble that justifies the former, and added that they feel bad about the poor female caregivers and the poor male patients, and “oh me oh my,” and the Knesset should handle this. The fifth judge wrote that the state is to blame for what is happening, but it is what it is, and so he joined the others, and the Knesset really should deal with this. As such, with a majority decision, the appeal was rejected. The sixth judge said that his friends were right, but, come on, this isn’t cool, give the workers twenty percent more and be done with it. And the three female judges? They wrote a verdict. A real one. In it they explained that employees are employees are employees, and because they are employees they are subject to labor law, even when they work for poor people. If Israel chose to base the nursing sector on migrant workers and turn the patients into employers, that does not mean that migrant workers must pay the price, and they must be paid for their work.

Israel’s asylum system is designed to allow everyone, aside from asylum seekers, to sleep soundly. The chairman of the Advisory Committee on Refugees said in an interview last year that he sleeps soundly when he rejects asylum requests, because he knows that if he has erred, the court will rectify the mistake. District court judges who reject petitions filed by individuals who were not recognized as refugees sleep soundly because they mistakenly think that the asylum system is comprised of professionals with expertise, and because they likely think that the Supreme Court will rectify mistakes that they make. And Supreme Court justices sleep soundly because they too are convinced that professionals manage the asylum system, and that district court judges have thoroughly reviewed whether an appellant faces any danger. And since no one feels responsible for the fate of an asylum seeker if a mistake is made, everyone can sleep soundly, dreaming of an Israel free of foreigners.

Tel Aviv District Court Judge Kobi Vardy plays a central role in the national project of refugee denial and deporting “foreigners” in Israel, and the Supreme Court backs him. When a petition is filed against a decision made by the unit handling asylum seekers, the first to review it is Judge Vardy, who decides whether to grant an injunction preventing the appellant’s deportation until a decision on the appeal is made. In the past year Judge Vardy adopted the practice of rejecting dozens of appeals outright, without reviewing them, as he saw no grounds to do so.

Rejecting a legal proceeding outright is a practice that, in accordance with a Supreme Court ruling, is supposed to take place only rarely. But not when it comes to those claiming that their lives are in danger in their home countries; a significant number of asylum seekers are deported prior to any deliberations on Judge Vardy’s decisions.

A few months ago Judge Vardy rejected outright an appeal by a lesbian asylum seeker from Colombia who claimed that her life was in danger in her home country due to her sexual orientation. In the framework of an appeal to the Supreme Court, Justice Uri Shoham handed down a decision in November – which we only just heard about – stating that the likelihood of a successful appeal was low, and that the appellant had not proven that she faced any danger. Supreme Court Justice Shoham thus determined that there was no need for her to remain in Israel until the end of legal proceedings. Just like that, an asylum seeker was kicked out, before a court reviewed the judicial merits of the case.

We’ve already written about the manner in which the district courts and Supreme Court rule on matters pertaining to asylums seekers, with no knowledge of refugee law. They lack both the knowledge and the will to learn. Judge Vardy, of the District Court, insists that there was no evidence indicating that the asylums seeker’s life was in danger. It is unclear what evidence Judge Vardy sought. A letter from whoever she claimed might kill her, stating that he would slaughter her if she returned? A letter from the Colombian police admitting that it cannot protect lesbians who are persecuted? A note from her parents? Judge Vardy rules in the District Court; Justice Shoham approves his decision in the Supreme Court.

In many cases refugees cannot provide evidence of the danger that they face. Article 196 from the United Nations High Commissioner for Refugees Handbook explicitly notes that “cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule,” and that “if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.” This is the rule adopted by courts around the world; only Israel has determined that objective evidence of persecution must be presented, and if there’s any doubt – get out.

In his verdict Judge Vardy states that the asylum seeker presented a report on the human rights of homosexuals and lesbians in Colombia. He explains that the report is irrelevant as it addresses the rights of the gay community in 2009, while the asylum seeker left the country in 2007. What? The objective of assessing the situation in an asylum seeker’s home country is to determine what will happen if he or she returns, not what happened in the past. If there is evidence of lesbians being persecuted in Colombia after the asylum seeker left the country, they are certainly relevant. Judge Vardy rules and Justice Shoham approves.

Judge Vardy also reviewed the circumstances of the asylum seeker’s persecution before she left Colombia. He determined that the persecution was “not necessarily” because of her sexual orientation and “could be” due to her financial and business successes. Not necessarily? Could be? What did we say happens if there’s any doubt? Oh, yeah, around the world that would work to the asylum seeker’s advantage. In Israel it results in their deportation. One could expect that this doubt would at least lead Judge Vardy to the conclusion that the District Court must review the appeal rather than reject it outright. One could expect that the doubt would lead Justice Shoham to conclude that the Supreme Court must review the appeal and not deport the asylum seeker before her appeal is heard. No. Judge Vardy deports, Justice Shoham approves.

Judge Vardy’s verdict is rife with additional assumptions. He focuses on the fact that the asylum seeker arrived in Israel in 2007 and only submitted her asylum request in 2009. Too bad no one told Judge Vardy that during those years the procedure for handling asylum seekers was not publicized, and anyone who did not contact a lawyer or a human rights organization had no idea whether or how to request asylum in Israel. Too bad no one told Judge Vardy that research on asylum seekers indicates that members of the LGBT community delay submitting asylum requests due to the difficulties entailed in appearing before the authorities and declaring, “I am a homosexual,” “I am a lesbian,” “I am a transexual,” etc., particularly when they are from countries in which members of the LGBT community are not protected by the authorities. Judge Vardy assumes, Justice Shoham approves.

Judge Vardy is also troubled by the fact that, according to the asylum seeker’s claim, she began to face persecution in 2000 and only left Colombia in 2007. So he concluded that her life is not in danger. First of all, the Refugee Convention does not stipulate that the refugee’s life must be in danger. It requires a well-founded fear of persecution (which the U.S. Supreme Court determined in 1987 to be a 10-percent chance that an individual’s life, freedom or other basic human rights be harmed). Second, the fact that a person resides in a country in which he or she is persecuted for seven years, and only leaves then, does not affect his or her credibility or determine whether he or she will be persecuted upon returning. The decision to leave your country, even when your life is in danger, is not easy. It requires a myriad of economic and emotional resources. When Jews in Germany suffered from brutal persecution and harsh legislation that targeted them from 1933-1939, they acted in different manners. Some chose to leave immediately, some left after a few years, and some chose to stay. The conclusion – those who chose to stay faced no danger, right? Judge Vardy concludes, Justice Shoham approves.

We can go on and on. It would be fun and entertaining if this wasn’t about legal decisions that have immediate implications for a person’s life, and which reflect the judiciary’s powerlessness in criticizing Israel’s damaged asylum system.

Judge Vardy certainly sleeps soundly. He knows that Justice Shoham reviewed and approved his verdict. Justice Shoham also sleeps soundly. He knows that Judge Vardy reviewed the case and handed down responsible verdicts.

Good night.

Here’s a cat.

Here’s a cat (Martin Cathrae / CC 2.0)

By Asaf Weitzen

Judge Eliyahu Beitan of the Be’er Sheva District Court recently handed down a decision on an appeal filed by Raya Meiler of the Hotline for Migrant Workers, ordering the continued detainment of an Eritrean asylum seeker, despite him being recognized as a victim of severe torture.

Among the explanations given in the decision is a phrase, according to which recognition of a victim of torture on humanitarian grounds, which justifies release from prison, is likely to cause severe consequences. Not in relation to Israeli citizens, rather — and pay attention — regarding asylum seekers themselves: “It appears to me that recognizing [victims of] torture like those described by the appellant as a justifiable circumstance for release from custody, is likely to lead an increase in the phenomenon of torture and to a deterioration, and even to the creation of a phenomenon among infiltrators of self-inflicted harm. And that, in this case, is not desirable.”

Two things can be understood from this self-righteous statement:

Firstly, it appears the court has internalized, to some degree, that Israeli prison is a terrible, hopeless place, to the point that asylum seekers would do everything — including attempts to harm themselves — in order to be freed. Particularly since Israel began imprisoning people under the anti-Infiltrator Law.

Secondly, the attempt at justifying the decision not to release a man as if it is for his own good (and for the good of the group of asylum seekers to which he belongs) testifies to an embarrassing self-righteousness and cowardliness.  The court is able to decide whether to release asylum seekers from custody (the appeal contained a wealth of legal and factual justifications for doing so). Alternatively, it could have clarified that the appeal was rejected due to the interests of the State of Israel, which has decided not to recognize asylum seekers as refugees and not release even a single one. Instead, the court adopted a pathetic and righteous rhetorical gesture. The judge may pat himself on the back and say that his decision not to release a single person aids asylum seekers by preventing a situation in which they are incentivized to harm themselves. He ruled that the man remain in prison, despite not being suspected of crime nor constituting a threat to others. And everything is to his benefit and to prevent harm, torture and suffering from other asylum seekers. It turns out that justice, righteousness and real-life saints can be found in the Israeli courts.

Of course, one can also make use of such logic in other contexts. Perhaps the recognition of the rights of disabled persons creates an incentive for people to become disabled? Or perhaps compensation for victims of sexual offenses leads to an increase in those offenses? Or perhaps such logic simply isn’t used when discussing citizens of Israel.

Hannah Arendt once wrote that:

Compassion, by its very nature cannot be touched off by the sufferings of a whole class or a people, or, least of all, mankind as a whole. It cannot reach out farther than what is suffered by one person and still remain what it is supposed to be, co-suffering. Its strength hinges on the strength of passion itself, which, in contrast to reason, can comprehend only the particular, but has no notion of the general and no capacity for generalizations.

It is clear that through its decision to leave the asylum seeker in custody, and despite the righteous tone, the court refused to recognized his particular situation. Thus, it rejected the possibility that will forever remain open before us: the possibility – which is both an obligation and a right — to discover compassion.

Asaf Weitzen is the Legal Advisor on Asylum Seekers at the Hotline for Migrant Workers.

A Sudanese woman shows her UNHCR Refugee card from Egypt during a refugee protest in front of the government’s offices in center Tel Aviv October 14, 2012. (photo: Oren Ziv/Activestills)

Breaking news: the Interior Ministry’s Refugee Status Determination (RSD) Unit, which deals with asylum seekers, will recommend – for the third time in three and a half years – that an individual be recognized as a refugee. The refugee slated to be recognized is an albino Nigerian national who may be persecuted if he is deported due to his albinism.

To date, from the thousands of requests that have been reviewed, the RSD unit has only provided the certifying bodies with two positive recommendations to recognize individuals as refugees; out of those two, only one was recognized as a refugee. In that case the individual was an albino girl from the Ivory Coast (a recommendation to recognize a Libyan national as a refugee was rejected by the Advisory Committee for Refugees).

A few days ago, the Population, Immigration and Borders Authority published its annual report with misleading data regarding the rate of refugee recognition by the RSD unit. The report details the number of asylum seekers recognized as refugees every year since the unit was established, in 2009 (a total of 22 refugees). The innocent reader will surmise that since its establishment the RSD unit reviewed 22 cases and recognized those individuals as refugees. However, of the 22 asylum requests that were approved, 21 were not reviewed by the RSD unit. Prior to 2009, the United Nations High Commissioner for Refugees (UNHCR) reviewed asylum requests in Israel, and in July of that year this responsibility was transferred to the Interior Ministry’s RSD unit. UNHCR continued to handle open cases, and many of them were stuck for extended periods of time, and their approvals were unrelated to the establishment of the RSD unit. Only one approved asylum request – the albino girl from the Ivory Coast – was the result of a positive recommendation by the RSD unit, and now the unit is recommending that another albino asylum seeker be recognized as a refugee.

Spread the word – albinos of Africa unite and come to Israel, you’ll be recognized as refugees here. On the other hand, if you’re black Africans, you’ll find nothing here. Thousands of Africans’ asylum requests were reviewed by the RSD unit, and not a single one had a positive recommendations. Albinos – In. Blacks – Raus.

Aside from the symbolic significances, it can be explained thusly: the RSD unit is a production line for simulated contradictions in interviewees’ remarks. The unit has never found a trustworthy person. Those interested in reading abundant examples of this can peruse the Hotline for Migrant Workers report on the RSD unit. If you can’t remember the color of the bus you took from Darfur to Khartoum – you’re a liar and not a refugee. If you couldn’t tell how many Ethiopian police officers raided your house and kidnapped your father at 3:00 a.m. when in was pitch dark – you are unreliable and are not refugee. If you forgot the birth date of one of your seven brothers – you’re a liar and not a refugee. If you didn’t know that your good friend was active in an illegal group in Colombia – you’re a liar and are not a refugee. Albinos have a hard time lying about the color of their skin, and therefore if albinos are persecuted in their country of origin, there’s no choice but to recognize them as refugees. But if you’re black, you’re just a liar, work infiltrator or economic migrant.

The RSD unit is programmed and calibrated to detect a lie in every word. The Interior Ministry successfully instilled a sense in RSD unit members that they are the Population, Immigration and Borders Authority elite, as the unit has requirements unheard of in other units: you must have an undergraduate degree, English letters are used in the unit name, there is a course taught by some Americans, and there is a distinct dress code (you haven’t seen unit pride until you’ve seen some RSD members in uniforms that are too small). At the end of the day, the unit uses the same techniques to produce lies as the other Interior Ministry units, with some improvements. Asylum interviews in the unit feel like police interrogations, in which every other sentence is met with a hostile look, an impatient outburst, or anything else meant to convey to the asylum seeker that he or she is being held as a liar until proving otherwise. Any person who sits in on such an interview can, at any point, stop believing themselves.

Inside the RSD unit, no one speaks the truth. There are only liars. When everything an individual says is a lie, unrelated to the question of whether he or she is describing something that really happened, a distinction can no longer be made between the truth and a lie. Asylum systems are meant to distinguish between refugees and those who are not refugees, but when the the system is so sick that it can’t identify a refugee if they hit them in the face (unless he or she is albino), the distinction that the unit makes is insignificant. If a person faces no danger in his or her country of origin, it is dangerous for everyone in their country of origin. If no one is a refugee, then everyone is a refugee. If everyone is a liar, everyone is telling the truth.

The asylum world created by the Interior Ministry is nearly post-modern, in this respect, but it isn’t really. When every asylum seeker is a liar, the terms “truth” and “lie” lose any rational meaning. And therefor the Interior Ministry can follow that same line of thinking – it can tell the public that on the one hand, all of the Sudanese and Eritreans will be in danger if they are returned to their countries of origin, yet they are not refugees but rather economic migrants. It can tell the Supreme Court, through the State Prosecution, that all of the Eritreans will soon be deported, and it is therefore fine if some of them are held in prison for an undetermined amount of time, even though they will not be repatriated any time soon.

Here’s a cat.

White cat and a tabby (Photo: Flickr / Tiger Girl / CC)

Victor Hugo’s Les Misérables was published in 1862. Over the years the book became the most famous indictment against the treatment of the weak by society, authorities, and the law. Hugo tells the tale of Jean Valjean who was unable to find work to support his family, so he smashed a bakery window and stole a loaf of broad. For this he was jailed for many years. “What a mournful moment is that in which society withdraws itself and abandons irreparably a thinking being forever,” Hugo writes. “So long as there shall exist, by reason of law and custom, a social condemnation, which, in the face of civilization, artificially creates hells on earth…books like this cannot be useless,” Hugo predicted 150 years ago in the book’s preface, and didn’t know how right he was.

The year is 2012. Sanait Tesfauneh, an Eritrean woman who arrived in Israel, is suspected of purchasing a forged work permit that will allow her to work and support herself. She did not stand trial and was not convicted. Israeli authorities stripped her of any human rights or defense and jailed her for an unspecified amount of time. The Supreme Court approved this last week.

According to Interior Ministry policy, Eritreans are not deported from Israel due to the danger they face in their home country. The Interior Ministry refers to this as a “non-deportation policy.” Yet the Interior Ministry does not grant Eritreans work permits when they are released from prison. They are given residency permits for several months, which are extended, and explicitly state that they are not work permits. There is also a “non” part of this policy – non-enforcement. In other words, Eritreans may not work, they may not be employed, but the Interior Ministry declared that it would not enforce this ban and would not fine employers. The Supreme Court approved this policy.

Tesfauneh had a permit that stated on it that she could not work. She faced challenges, like many others, finding a job and supporting herself. When she finally found a housekeeping position at a Tel Aviv hotel she was told that she would not be hired without a work permit. Like others barred from supporting themselves due to the “non” policy, she purchased a forged work permit and paid NIS 400 every few months to renew it. By doing so she was able to work.

Last August she was arrested. It was decided that she not be prosecuted due to lack of public interest. She was transferred to the Interior Ministry, which immediately placed her in administrative detention for an unrestricted period time time, pursuant to the Prevention of Infiltration Law.

In September the “infiltrator” detention policy was anchored in Interior Ministry policy. The policy determines that “infiltrators” will only be arrested in cases in which they are suspected of posing a threat to state security or to public safety. When reviewing who was arrested pursuant to this policy, one discovers how broad the definition of “threat to public safety” is. According to Interior Ministry policy, there are asylum seekers in prison for “life sentences” who were not tried and are suspected of misdemeanors such as purchasing a forged work permit allowing them to work and support themselves.

The prison’s Administrative Tribunal refused to release Tesfauneh, and determined that she no longer needs to worry about survival, as the basics are provided in jail. The District Court also rejected the petition. An appeal was submitted to the Supreme Court, and a deliberation was held in mid-December before Justices Danziger, Hendel and Sohlberg.

Ahead of the hearing we requested – on behalf of Hotline for Migrant Workers, the Association for Civil Rights in Israel, and the Legal Clinic for Immigrants’ Rights at the College of Law and Business – to join the proceedings as amicus curiae. The request was drafted in collaboration with Hotline attorney Asaf Weitzen.

In the request and in the hearing we insisted that the Interior Ministry had created a separate, oppressive and unprecedented system of punishment for asylum seekers. Administrative detention is an extreme and unusual tool; it is not a standard tool to be used by law enforcement authorities. Criminal law – through the courts, the right to legal representation, the presumption of innocence, and the need for the prosecution to prove guilt beyond reasonable doubt – is supposed to provide guarantees against the arbitrary deprivation of liberties. “Infiltrators” are stripped of all of these things and are exposed to random deprivation of their rights for indefinite periods of time. We stressed that these were not arrests ahead of deportations, as the State of Israel recognizes that Eritrean and Sudanese nationals cannot be deported due to the danger they would face in their home countries. These are the indefinite administrative detentions of individuals; either there is not enough evidence to prosecute them, or there is no public interest in their prosecution. Administrative detention as a means of punishment, deterrence or prevention is a severe tool and is not permitted. According to Israeli law, administrative detention – even in cases in which authorities claim the detainees pose a severe security threat – should be the last option, and should only be used when its purpose cannot be achieved by any other means. Criminal proceedings are not a luxury. They are the rule.

We also related to the court that since the Interior Ministry policy on “infiltrators” was introduced, NGOs have learned of dozens of cases in which individuals were arrested pursuant to the policy. In one case, for example, an asylum seeker filed a complaint against an acquaintance, claiming that he had raped her; he was arrested, pursuant to the policy. Afterwards, the complainant informed the police that she had fabricated the complaint, as she feared that her husband would find out that she had engaged in consensual relations with her acquaintance. Rather than releasing the acquaintance, the Interior Ministry decided to arrest the woman as well, pursuant to the policy, for filing a false complaint. In another instance an asylum seeker was arrested pursuant to the policy for having military property in his home. His Israeli landlord declared that the property was his, but to no avail. In another case the police arrested an asylum seeker from Darfur, in Sudan, on suspicion that he stole a cellular phone from a migrant worker from the Philippines. The phone was not found in his possession, and he denied any link to the act attributed to him. During the Magistrate Court hearing on the extension of his remand, the court determined that he be released on very low bail “in light of the nature of the offense and the circumstances.” Rather than release him, as per the court directive, the Interior Ministry detained the asylum seeker before he was able to meet the conditions of release set by the court.

In addition, since the existence of the policy has been made public, various people have misused it. For example, we have heard of cases in which Israeli employers who owe asylum seekers money for their work have warned them that if they insist on their rights and the money they deserve, they will file a police complaint that will lead to the asylum seekers’ arrest. In one case an asylum seeker couple who hired a photographer to document their wedding were sued by the photographer, who wanted them to pay for a camera that broke when he fell while taking pictures. When they refused he threatened to go to the police. Fearing that they would be arrested pursuant to the Interior Ministry policy on “infiltrators,” they paid him.

A verdict was handed down this week. Justice Hendel, with the consent of Justices Danziger and Sohlberg, determined that the court should not interfere with the Interior Ministry decision, and allowed for Tesfauneh’s continued detention for an undetermined amount of time. Her detention was deemed justified because, among other reasons, she is a threat to public safety: purchasing forged documents and using them to work adversely affects the reliability of state-issued identification papers.

The court also determined that because Tesfauneh’s case is different than others that we presented because she purchased a number of forged permits over an extended period of time. The court further noted that she has been incarcerated for a short time (five months at the time of the hearing, currently six months). The state also declared at the hearing that Tesfauneh could be allowed to file an asylum request (the state had heretofore prevented Eritreans from doing so), and that an attempt would be made in the coming months to deport her to a third country (the state has declared for years that it is trying to deport Eritreans to a third country).

The court left the legal questions pertaining to the Prevention of Infiltration Law and the Interior Ministry policy to the hearing on the legal petition filed by NGOs.

We have discussed in the past the ways that the Supreme Court rules on refugee-related matters without any reference to refugee law. Since then, many similar decisions have been taken, and if it seems that we neglected to report on these rulings, it’s because they have become, in our eyes, trivial – courts are disinterested in refugee law. Judges purport to rule in accordance with international law without bothering to any document except for the Convention Relating to the Status of Refugees. Their manner of analyzing the cases before them indicates a lack of will to bother learning the relevant material, the many international documents on the subject and decisions handed down all over the world interpreting the Refugee Convention. Israeli courts, of course, aren’t bound to other countries’ interpretation of the Refugee Convention, but they don’t even try to research how the Convention is generally interpreted.

The decisions that reach the review of district courts and of the Supreme Court are those taken by the Ministry of Interior’s unit that processes asylum seekers in the Ministry of Interior, which decides on the recognition of asylum seekers as refugees. This unit, a “kingdom of lies,” is an administrative body that is not credible or professional in anyone’s eyes except for its own and those of the Justice Ministry. Oh right, and in the eyes of a few judges, who have ruled that this body is professional, based on statements of state prosecution officials who say it’s professional. So according to some judges, if they claim they’re professional, they probably know what they’re doing. But the Unit for the Treatment of Asylum Seekers, which has examined thousands of asylum requests in the three years and has only approved one (making it the lowest refugee recognition rate in the “western” world), is already famous in Israel and in the world for its lack of credibility and professionalism, and even groups that have participated in training its employees admit their failure.

As for the legal system, it is also losing credibility on everything related to asylum applications. To this day, of hundreds of petitions and appeals heard by the Supreme Court and district courts, the yield is as follows: zero rulings by the Supreme Court recognizing someone as a refugee; one ruling in which the Supreme Court overturned a Ministry of Interior decision not to recognize someone as a refugee (due to deficiencies in the translation, the Supreme Court ruled another interview should take place, and following the interview – surprise, surprise – the Interior Ministry again rejected the asylum request); one ruling in which the district court ordered the Ministry of Interior to recognize a woman as a refugee; and an additional ruling in which the District Court ordered the Ministry of Interior recognize someone as a refugee, only to be overturned by the Supreme Court. There is no other “western” country whose legal system is so passive toward asylum seekers. There is no doubt that the Ministry of Interior and the courts suffer the terrible phenomenon coined by attorney Omer Shatz from We Are Refugees as “denial of refugeeness.”

As we have written in the past, there is no connection between Israeli court decisions and refugee law. In fact, in most cases, the Supreme Court doesn’t even allow an applicant to stay in Israel pending a ruling on whether or not his deportation may put him at risk. See for example, the decision [Hebrew] handed down last Thursday by Supreme Court Justice Yitzhak Amit.

Justice Amit rejected the Nigerian asylum seeker’s application against his deportation, pending a decision on an appeal to the Supreme Court against the rejection of his asylum request. The asylum seeker claimed that a Nigerian militant group attacked him and is likely to kill him, and that the authorities of his state are unable to offer him protection. Among the explanations for rejecting the request for an interim injunction was that the asylum seeker “did not bring any evidence supporting his claim that he experienced violence at the hands of the members of any group or that he is being persecuted by them.”

We’ll never know what evidence Justice Amit expects someone being persecuted by a militant group to bring forward. Should he have been expected to supply a letter with the group’s letterhead, stating, “To Whom it May Concern, I hereby acknowledge that we intend to murder the person referred herein.” Did he expect the asylum seeker to fly witnesses in from Nigeria to Israel, if there even are any? Or did he expect to receive a memo from the Nigerian police, stating, “We are unable to provide the applicant with protection.” Exactly because there is often no way to supply objective evidence for persecution, the United Nations High Commissioner for Refugees states there is no requirement for such evidence in order for a person to be recognized as a refugee. The UNHCR handbook explains that a refugee who has escaped from his country will often be unable to present evidence of his persecution. This places the burden on the body examining the applications to find evidence, but also extends the benefit of the doubt to the asylum seeker in cases where it was not possible to supply such evidence. That is also the practice of the rest of the “western” countries that are party to the Refugee Convention.

Justice Amit also explained his decision with the fact that “the applicant could not explain why he did not pursue alternative living arrangements in Nigeria, which is a country that extends over enormous territory, and what is stopping him from living in other regions in Nigeria.” Indeed, a person who can find protection from persecution by relocating within his country is expected to return, since the international protection provided by the Refugee Convention is meant to substitute that of the country of citizenship. However, Amit’s decision (and countless other Ministry of Interior decisions) instructs us that in the State of Israel, an asylum seeker must positively prove that he no way to live anywhere in his country. This demand – that an asylum seeker who comes from a specific area must meet the burden of proving he will not enjoy state protection in every single city, town and village in his country – cannot stand.

For exactly this reason, the UNHCR position is as follows: when it is claimed that someone should not be recognized as a refugee on the grounds that he can receive protection in a different area in his country of citizenship, the burden of proving the existence of such a place falls on the state, which must identify the place in which the person can enjoy protection, and provide evidence that this alternative place constitutes a reasonable alternative.

The Interior Ministry declares from time to time in courts and in the media that it employs the same standards that UNHCR does in examining asylum applications. But this Supreme Court decision indicates two – of many areas – in which the Interior Ministry entirely ignores basic UNHCR standards in interpreting and implementing the Convention. The Supreme Court is not obligated to accept UNHR’s interpretation of the Convention, which it can say it is interpreting incorrectly. But such a determination cannot be a serious one. Nor is it serious to entirely ignore these standards, or for the Supreme Court to display a total lack of interest in how UNHCR and other countries interpret the Convention. As we wrote here, the State of Israel is a signatory to the Convention, which states in Article 35 that states are to cooperate with UNHCR, and enable it to carry out its supervision of the implementation of the Convention’s provisions.

For now, the Supreme Court continues to mostly help the Interior Ministry bring the State of Israel’s asylum system down to new lows.

Related:
An open letter to the incoming interior minister
Who cares about the UN?
Israel’s newest national project: Ridding the country of ‘foreigners’
Myths, facts and suggestions: Asylum seekers in Israel