Although the Israeli government is actively pursuing a detention regime meant to snare as many asylum seekers as possible, some recent legal victories provide a ray of light during an increasingly dark time for asylum seekers and refugees in Israel. 

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...

Israel’s judges rarely question whether the Interior Ministry may not actually be an expert on immigration matters, or whether it might be making decisions without asking the right questions – even when someone’s life is on the line.

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...

In the United Kingdom, the ‘Anne Frank’ principle makes way for even more creative methods to reject homosexual asylum seekers. 

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...

On Holocaust Remembrance Day, Netanyahu talked about how Jewish refugees from Nazi Germany were turned away by countries around the world. Considering the Netanyahu government’s standards for processing asylum claims, would Jewish refugees have been accepted by today’s Israel?

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...

The fact that Israel chooses to base its nursing sector on migrant workers and turn the patients into employers does not mean that migrant workers must pay the price. That is, unless one listens to the rulings of the High Court of Justice.

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...

Instead of giving asylum seekers the benefit of the doubt, as international law prescribes, in Israel, the district courts find doubts, the Supreme Court approves their decisions, and persecuted peoples are deported before the merits of their cases can be examined. Everyone can sleep soundly.

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...

It is clear that through its decision to leave the asylum seeker in custody, 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.

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...

Since it began processing requests itself, Israel has approved only one asylum request, an albino girl from the Ivory Coast. Now the RSD 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.

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...

The Interior Ministry declared Sanait Tesfauneh, an asylum-seeker from Eritrea, a ‘threat to public security’ and placed her in administrative detention after she was suspected of purchasing a forged work permit. Now, several organizations are attempting to challenge the detention system that deprives asylum seekers of their civil liberties.

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...

The Interior Ministry, which processes applications for asylum, is by now well-known in Israel and the world for its lack of credibility. But it has a friend in the courts.

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...

Dear Honorable Minister,

Following coalition negotiations, free of Natan Eshel and other evils, you will be sworn in as Israel’s interior minister. Having seen the hardships faced by a number of Israel’s interior ministers, let us give you three recommendations to ensure that your tenure is pleasant:

1. Don’t let lawyers shape policy for you. As we are afflicted with the severe defect of legal thought and reasoning, let us assure you that the lawyers around you will always try to take the reigns to determine policy and dictate your conduct, under the guise of legal advice (sometimes in the form of binding legal advice). Former attorney-general Elyakim Rubinstein provided an extreme example of such conduct with former interior minister Avraham Poraz. When Poraz sought use the authority legally vested in him to decide on the status of migrant workers’ children, who had resided in Israel for many years, Rubinstein interfered and determined, with no legal basis, that it was inappropriate for the interior minister to make a decision on this matter.

Rubinstein’s blatant interference on this matter is in many ways reminiscent of his practice during his tenure as attorney-general to publish public and non-legal opinions on public figures who would not be criminally prosecuted, or his recent conduct as the chairman of the Central Elections Committee, when he disqualified – in an inconsistent manner – certain billboards, as well campaign ads produced by Balad and Otzma l’Israel, simply because they were not to his liking. Granted, the current attorney-general is not likely to interfere on this matter, but previous interior ministers had to deal with senior Justice Ministry and State Prosecution officials.

Relying on lawyers while you are shaping policy is debilitating. What begins as consultations on policy quickly devolves into them dictating legally obligated policy. Therefore, if you want to have any influence in your ministry, make it clear to the attorney-general and his deputies, to the State Prosecution and the legal bureau in the Population, Immigration and Borders Authority, that you do not intend to include them in consultations during the policy formulation stage. Make sure to inform the lawyers only after the policy design phase and request that they limit their opinion to one question – legal or illegal. They need not explain why one method rather than the other is preferred or why something is or is not appropriate. They need to state whether...

Eli Yishai visit detention camps for Asylum Seekers in the south (photo: Yotam Ronen / Activestills.org)

Prepare yourselves. Last May, when it was last announced that an Eritrean citizen raped an Israeli woman, Interior Minister Eli Yishai responded by placing thousands of asylum seekers, among them children, rape and torture victims and the elderly in administrative detention, all in accordance with Israel’s Prevention of Infiltration Law. In the wake of the horrifying rape that took place near Tel Aviv’s Central Bus Station, one can only guess what will happen next.

Yishai began publishing libelous remarks on his personal Facebook page, while Shas’ shelved hate-filled campaign against foreigners [Hebrew] coincidentally appeared in Yedioth Ahronoth and on Ynet’s homepage, alongside the report on the sickening act.

In 2011, Israel Police reported 3,795 cases of sexual offenses. We will be the first to say that each of these appalling cases deserves to be featured as the main headline in every newspaper, and certainly deserves a response from Israel’s ministers. Had Ynet bothered to feature other cases of rape in its main headline, we might have suspected that the paper actually cares about women’s rights. Had Eli Yishai bothered to denounce acts of rape committed by Israelis from time to time, we might actually begin to think that he cares about a woman who is brutally raped.

A Shas campaign poster that reads: “Shas – my home, Sudan – their home.” (image: Shas campaign photo)

However, Yishai has never expressed concern regarding acts of sexual offenses committed by Israelis. When sexual offenses committed only by asylum seekers make waves in the media and among politicians, someone might believe that women’s rights do not exactly concern those who are doing all the shouting.

The distortions in Israel’s asylum system ensure a refugee recognition rate of zero. Not only does this place asylum seekers at risk, but it exposes what appears to be a concerted effort to overhaul the system so as to deport as many people as possible.

In an article written a decade and a half ago, Dr. Sandy Kedar described the manner in the 1950s in which the courts participated in the national project to take over land held by Palestinians. This transpired through a series of rulings that altered the laws pertaining to the statute of limitations on acquisitions, as well as other related general procedures. That national project was a resounding success, and it seems that the authorities today are advancing another national project – removing “foreigners” from Israel by completely amending basic legal principles (or “adapting” them for foreigners) to the point of silently overhauling the system.

A consistent analysis of administrative and judicial measures intended to carry out the national project (as well as the identification of such a project) is complicated. To gain a clear understanding one must review the past, as Kedar does, and there are many complexities that impede doing so in real time. However, administrative measures and verdicts in recent years justify, at the very least, considering whether we may be at the height of such a project.

One of the challenges in recognizing such projects is finding the intersection between processes of totalization and individualization techniques. It is easy to identify the totalization proceedings within the emerging project. They include the establishment of an enormous detention camp – the largest in the world – for asylum seekers and other migrants, as well as the amendment to the Prevention of Infiltration Law that allows administrative detention for an unlimited amount of time. Another process of totalization was the establishment, in 2009, of the Israeli mechanism for reviewing asylum requests, the purpose of which is the extensive rejection of asylum requests. Since the mechanism’s inception, the Interior Ministry has only recognized the members of one family as refugees, out of 10,000 requests that it reviewed and subsequently rejected. A report by the Knesset Center for Research and Information recently determined, correctly, that Israel has the lowest rate of refugee recognition in the western world. As is evident in the United Nations High Commissioner for Refugees Report, the refugee recognition rate in...