Israel: Detained Asylum Seekers Pressured to Leave
|Publisher||Human Rights Watch|
|Publication Date||13 March 2013|
|Cite as||Human Rights Watch, Israel: Detained Asylum Seekers Pressured to Leave, 13 March 2013, available at: http://www.refworld.org/docid/514326902.html [accessed 8 March 2014]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
Israeli authorities are threatening detained Eritrean and Sudanese nationals, including asylum seekers, with prolonged detention to pressure them to leave Israel, Human Rights Watch and the Hotline for Migrant Workers said today. Since December 11, 2012, Israel's pressure has convinced several hundred detained Sudanese and one Eritrean to leave Israel, and in February 2013, some 50 detained Eritreans agreed under similar pressure to leave for Uganda. All 50 remain in Israeli detention.
Sudanese and Eritreans face a real risk of harm if they return to their home countries. Under Sudanese law, anyone who has visited Israel faces up to 10 years in prison in Sudanand Sudanese officials have said the courts will apply the law. Because of credible persecution fears relating to punishment for evading indefinite military service in Eritrea, 80 percent of Eritrean asylum seekers worldwide are granted some form of protection. For years, Israel has refused to process Eritrean and Sudanese asylum claims, although at the end of February it began to register at least some detainees' claims.
"Israel's prolonged detention of asylum seekers apparently aims to shatter all hope so they feel they have no real choice but to leave the country," said Gerry Simpson, senior refugee researcher at Human Rights Watch. "Instead of browbeating some of the world's most abused and vulnerable people into giving up their rights and putting themselves at grave risk, Israel should release asylum seekers while their claims are examined and protect anyone found to risk serious harm if returned."
Human Rights Watch and Hotline for Migrant Workers (HMW), an Israeli nongovernmental organization,said that if Israel returned anyone to a place where the person's life or freedom would be threatened, such return would violate international law's prohibition on refoulement – forced return to a serious risk of persecution.
The groups said Israel would also be violating the refoulement prohibition if a person "chose" return after Israeli authorities had threatened prolonged or indefinite detention as the only alternative. The 1951 Refugee Convention bars the return "in any manner whatsoever" to places where a person would face a serious risk of persecution.
Refoulement can also occur as a result of a chain deportation, in which refugees or asylum seekers are sent to third countries that predictably will not respect their rights as asylum seekers but instead send them back to places of persecution.
The United Nations High Commissioner for Refugees (UNHCR) has confirmed that Sudanese agreeing to leave Israel in recent months were sent to third countries through which they only transited and traveled on to Sudan. Human Rights Watch and HMW said those countries had no obligation to allow Sudanese nationals to enter, which means they would have been forced to travel onward to Sudan.
In early March, HMW spoke with the only Eritrean to have "agreed" under pressure to go to Uganda who says he was refused entry there and deported to Cairo for onward deportation to Eritrea. The only alternative the Egyptian authorities gave him was to return to Israel to once again face indefinite detention, which he rejected. On March 6, he flew to Eritrea.
Pressuring Sudanese and Eritreans to leave Israel for third countries that have no obligation to allow them to leave airport transit zones risks indirectly forcing them back to their own countries, Human Rights Watch and HMW said.
Israel is holding more than 2,000 African nationals in two detention centers near the Egyptian border. This includes at least 1,100 Eritreans and 600 Sudanese, all of whom have little prospect of being released because of restrictive Israeli asylum laws and policies. Hundreds of the Eritreans only reached Israel after surviving kidnapping in Sudan and Egypt, and tortureby criminal gangs in Egypt's Sinai desert.
About 50,000 other Eritrean and Sudanese nationals live in Israel's cities. Israel has informally suspended their deportation, but senior officials have repeatedly threatened to deport them without officially clarifying whether they would first be allowed to claim asylum. In early March, the Israeli media reported that the Interior Minister said he planned to detain all "infiltrators" – which Israeli lawdefines as anyone who irregularly enters Israeland which includes the 50,000 – and to deport them to a still-to-be-identified third country.
On March 3, HMW spoke by phone with an Eritrean man in Cairo who said he agreed to fly on February 28 from Israel to Uganda after Israeli officials refused to register his asylum claim and threatened to detain him for three years. He said the Ugandan authorities refused him entry and deported him to Cairo, where the authorities also refused him entry but said he could fly back to Israel where he faced further prolonged detention. After two days without sleep, the man refused and flew to Eritrea on March 6.
On March 4, Israel's attorney general called on the Interior Ministry not to send any Eritrean citizen "to any destination outside Israel's borders" until a range of legal issues had been clarified. In early March, UNHCR also reported that in mid-February, the authorities had begun handing out larger numbers of asylum application forms to detainees.
Human Rights Watch and HMW said that the attorney general's statement was a positive move, but that the Interior Ministry should not remove any Sudanese nationals either, should allow all detainees wishing to claim asylum to do so, should release them while their claims are examined, and should end all threats of prolonged detention.
The majority of those currently in detention entered Israel in or after June 2012 and were detained on arrival under Israel's recently amended "Prevention of Infiltration" law, also known as the "Anti-Infiltration" law, which allows the authorities to detain anyone irregularly entering Israel. Israeli authorities have also used a September 2012 regulationto arrest and detain about 250 people, most of them Eritrean and Sudanese nationals who have been living in Israel for several years.
The 2012 regulation allows the authorities to detain and deport any "infiltrator" who is suspected of – but not necessarily charged with or convicted of – offenses "endangering national security or the public peace." UNHCR officials in Israel and Israeli groups working with refugees say that many people detained under the regulation were suspected of only modest offenses, such as minor assault charges or possession of stolen goods such as mobile phones.
HMW has interviewed almost 1,000 Eritrean and Sudanese detainees in recent months and has documented the departure of hundreds of detained Sudanese nationals since December 11 after the authorities refused to register their asylum claims and threatened to detain them for three years or indefinitely.
"When I asked for asylum, the Ministry of Interior staff said,'Israel doesn't want black people here,'"a detained Sudanese man told HMW staff on December 19."He told me I should go back to my country and that anyone who did not agree to leave would stay in prison for three years. I know many people who were told the same and who went back to Sudan."
In January and February, HMW interviewed dozens of Eritrean detainees, some of whom have been detained for almost a year, who also said Israeli officials refused to register their asylum claims and told them that they had to choose between years in detention or removal to Uganda or Eritrea. HMW said that in the first two weeks of February, around 50 Eritreans signed documents "agreeing" under this pressure to be removed to Uganda.
"It doesn't matter how you dress this up, Israel is pushing people into a corner and giving them the repugnant choice of years of hardship in detention or removal from Israel," said Sigal Rozen, public policy coordinator with HMW. "Those agreeing to leave say it was no choice at all. All they want is to get out of detention."
On February 25, UNHCR in Tel Aviv criticized Israel's pressure on detained Eritreans, saying that "agreement to return to Eritrea under a jail ultimatum cannot be considered voluntary by any criterion."
On February 18, Interior Minister Eli Yishai told the Knesset that Israel had no formal agreement with Uganda or any other country governing transfer of Eritreans, although he added that Israel would continue "with the utmost decisiveness" to ensure that Eritrean and Sudanese nationals would "voluntarily or involuntarily" leave Israel.
UNHCR says it has received reports that the Israeli authorities have filmed detainees threatened with prolonged or indefinite detention who were asking to sign a statement saying they came to Israel to work and that they wanted to return to Eritrea or go to another country.
A Sudanese detainee told HMW in December that he had seen Interior Ministry staff filming people, "asking them to say they wanted to go back to Sudan" and that when the person being filmed said the wrong thing, the staff members said: "Don't say that! Just say that you are from this and that country and that you want to go back."
UNHCR also said Israel's failure until late February to register any detainees' asylum claims, and the resulting prospect of prolonged or indefinite detention, meant detainees faced significant pressure to agree to leave Israel. In its February 25 statement, the refugee agency said detainees "don't receive full access to the refugee apparatus, and when there's no access ... lead[ing] to release, then there is no voluntary return."
UNHCR Detention Guidelines say asylum seekers should be detained only "as a last resort" as a strictly necessary and proportionate measure to achieve a legitimate legal purpose and that countries should not detain asylum seekers simply for the purpose of deportation. Detention is permitted only briefly to establish a person's identity or for longer periods if it is the only way to achieve broader aims such as protecting national security or public health.
Israel does not have formal transfer or readmission agreements with any African country. UNHCR's Executive Committee says that states should expeditiously return people not needing international protection to "their countries of origin, other countries of nationality or countries with an obligation to receive them back," but does not list as an appropriate option returns or transfers to countries that have no connections or obligations whatsoever toward the person being returned.
Human Rights Watch and HMW said that sending Eritreans to Uganda and Sudanese nationals to other countries where they had never been before clearly did not meet UNHCR's criteria.
"Sudanese and Eritrean nationals returning to their home countries from Israel risk persecution," Simpson said. "Without formal agreements monitored by UNHCR, the Israeli authorities should not be transferring them to other countries either, let alone pressuring them to forego claiming asylum and to leave Israel."
For details about Israel's restrictive asylum policies toward Eritrean and Sudanese nationals and extracts of HMW's interviews with detainees, please see below.
For Human Rights Watch's October 2012 joint news release with Israeli organizations on Israel's pushbacks of asylum seekers at its border with Egypt, please visit:
For Human Rights Watch's June 2012 news release calling on Israel to amend the newly revised Anti-Infiltration law that punishes asylum seekers for irregularly crossing into Israel, please visit:
For Human Rights Watch's September 2012 reporting on torture of Eritreans in Egypt's Sinai peninsula, please visit:
For more Human Rights Watch reporting on Israel, please visit:
Authorities Thwart Detainees' Attempts to Claim Asylum to Coerce Agreement to Leave Israel
Israel purposefully uses several measures to pressure detained Eritrean and Sudanese nationals to agree to leave Israel, Human Rights Watch and HWM said. These are the threat of long-term detention, limited or no access to Israel's nascent asylum system, and approval of refugee claims at such extremely low rates that there are only very slim chances of being released from detention as a recognized refugee.
Israel has detained most of the 2,000 people currently in detention centers for about six months, and in some cases for more than a year, UNHCR said. UNHCR's 2012 Detention Guidelines say that countries should only detain asylum seekers as a measure of last resort, "with liberty being the default position."
HMW and other Israeli refugee groups have reported many times on the Israeli authorities' failure to give detainees the opportunity to lodge asylum claims. Detainees told HMW that if Israel had allowed them to claim asylum when they were first detained and had released them while reviewing their claims, they would not have agreed to leave Israel.
UNHCR and Israeli refugee organizations say that over the past nine months, hundreds of detainees have struggled to lodge asylum claims because of insufficient information on how to submit claims, some officials' refusals to distribute asylum application forms or lengthy delays in receiving forms.
Between September and the end of January, HMW staff working with interpreters conducted 137 prison visits and 963 detailed interviews with detainees.
Hundreds of detainees told HMW that when they asked how to claim asylum, officials – including prison guards, detention tribunal judges, and Tigrinya interpreters – told them they would be detained for at least three years or indefinitely if they lodged asylum claims.
Dozens told HMW that the prospect of prolonged detention and a lack of access to asylum meant they had little choice but to sign forms agreeing to their removal.
Some said officials simply denied they had a right to claim asylum. A detained Sudanese man told HMW on February 12:
"In the first interview I told [the officials] that I want to ask for asylum. When I said that, the interrogator banged his fist on the table and said that in Israel there is no asylum and that we come just to work and should go back [to Sudan]."
Some said officials refused to respond to their asylum requests and simply threatened long-term detention.One of the Sudanese detainees HMW interviewed on February 12 said:
"After HMW helped me to ask for asylum, the Ministry of Interior staff asked me three times whether I was ready to return to Sudan. I said no. They put pressure on me, saying that if something happened to my wife and children in Sudan it would be my fault. They said if I stayed, I would spend many years in prison. Some said three years, others said five, and then they said eight or ten years."
Other detainees said they had no access to asylum application forms. An Eritrean man who has been detained for 10 months at the Saharonim detention center told HMW on February 14:
I did not fill out an asylum request form because I didn't have access to a form, so HMW tried to claim asylum for me. The judge said I would stay here [in detention] for three years. The bullet wound [from being shot in Sinai] means I use crutches. I have been here for a long time. The conditions here are hard for me, physically and emotionally. Because of the pain and my emotional state I agreed to leave for Uganda. If you tell me you will release me from prison [in Israel], I won't go to Uganda and I will wait.
In another case, detainees told HMW that after repeated requests, guards put 12 asylum application forms in a room and that so many detainees tried to grab them, the forms were torn apart in the rush.
Many said the prospect of prolonged detention meant that they felt forced to agree to leave Israel.
An Eritrean man detained for eight months in the Saharonim detention center, who has also unsuccessfully tried to claim asylum in detention, also told HMW on February 14:
"It is very hard to live here. Many people are in bad emotional states, and this is very stressful for all of us. That is the reason that people are choosing to go to Uganda. It's hard to bear the thought that we'll be in here for three more years."
Other detainees simply referred to the overall confusion about asylum procedures and how long they might be detained.
An Eritrean man detained for eight months in the Saharonim detention center told HMW on February 14:
"Everything we are told in prison is very confusing. One person says we can file an asylum request and that we will get a response in three months, another says we will be here for three years, another says we can only go to Uganda."
Human Rights Watch and HMW said that on February 17 at least 34 Eritrean detainees in Saharonim detention center demonstrated against what they said was the authorities' refusal to allow them to claim asylum. They were transferred to the Ktisot detention center, where they were made to live in tents as punishment.
Based on interviews with hundreds of detainees, UNHCR and HMW said that as a result of Israeli authorities' obfuscation of procedures and prolonged detention threats, hundreds of would-be asylum seekers detained since June 2012 have been unable to claim asylum.
UNHCR says Israel only started distributing a significant number of asylum application forms to some detainees in mid-February and that before February, very few forms were distributed.
On February 26, the Israeli authorities informed UNHCR in writing that there were no plans to deport Eritreans to Uganda or Eritrea. Human Rights Watch and HMW said Israel had not been accused of deporting Eritreans to Uganda or Eritrea and that the authorities' statement did not address the fact that Eritrean detainees had been told to sign "voluntary" removal papers or remain in detention for years.
HMW and UN Refugee Agency Attempts to Help Detainees Claim Asylum
Between September 2012 and mid-February 2013, HMW attempted to file 320 asylum claims with the Interior Ministry on behalf of detainees who said they had repeatedly asked detention center staff to give them asylum application forms, but that staff told them they had no forms.
Israel's 2011 asylum regulations do not specify the format in which an asylum claim should be lodged. HMW said it has repeatedly written to the Interior Ministry and immigration authorities to ask for copies of official asylum registration forms. When replying, the ministry ignored the request and simply said detainees were told how to claim asylum.
Since early January, the ministry has informed HMW that all its submissions were invalid because asylum claims had to be completed on official forms.
HMW staff visiting detention centers said detention officials started distributing a new standard six-page asylum registration form in English on February 12, the day on which HMW issued a news releasecondemning Israel's pressure on Eritrean detainees to agree to removal to Uganda or Eritrea.
Human Rights Watch and HMW said Israel has ignored its own asylum regulations, which say that "information sheets regarding the manner of submitting an [asylum] application … the procedure for handling … applications, the duties of the applicant, the right of the asylum seeker to contact a legal representative of his choosing and the scope of representation to which he is entitled during the process, will be available in places of custody..."
In October, immigration authorities told HMW they had posted notices in all parts of the detention centers explaining how to claim asylum. HMW said it had not seen any such notices during its 137 visits between September and January, and UNHCR said that the authorities had not provided that information in the detention centers.
In December, UNHCR submitted a draft document to the Interior Ministry that explained in simple terms how detainees can lodge asylum claims. UNHCR said that in late February, the authorities posted unclear notices in detention centers on how to lodge claims.
In early March, Israel's Interior Ministry told UNHCR it had registered 800 asylum claims at the Saharonim detention center, up from 50 in December and 400 in January.
UNHCR said it has no evidence that the Interior Ministry is conducting adequate asylum reviews in detention and has asked to observe asylum interviews with detainees. Since 2011, the Interior Ministry has refused these requests for all but two interviews.
Other Pressure on Eritreans
Detained Eritreans told HMW in February that 23 of them who agreed to be removed to Uganda were taken on February 11 to the Eritrean Embassy in Tel Aviv to help arrange travel documentation.
HMW and UNHCR, who between them interviewed all 23 of the group, say that only six met with an embassy official, possibly the ambassador, but that the rest refused to meet with anyone, either because they had not known they would be taken to the embassy or because the first six were told the embassy could only help them travel to Eritrea. All 23 remain in detention.
An Eritrean man detained in the Saharonim detention center for a year told HMW on February 14 that he had decided to go to Uganda rather than remain in detention any longer:
"The extended stay in prison has made me hopeless. So last Monday [February 11] they took us to meet the Eritrean ambassador in Tel Aviv, but he said he could only help us go to Eritrea, not Uganda. We told him we did not want to go to Eritrea and then he asked us why we were claiming asylum in Israel."
Two men taken to the Eritrean embassy on February 11 told HMW that an Eritrean official had "asked for and written down names and phone numbers of their relatives and family in Eritrea." Human Rights Watch and HMW said that putting Eritrean nationals who had been denied access to Israel's asylum system in contact with Eritrean officials put their lives and the lives of their relatives in Eritrea at risk. The Eritrean government treats asylum claims by Eritreans as treasonous acts.
Ruled by an extremely repressive government, Eritrea requires all but a few of its citizens under 50 to serve in the military indefinitely. Anyone of draft age leaving the country without permission is branded a draft evader or deserter, risking years in prison, often in inhumane conditions, as well as forced labor and torture. UNHCR's 2011 guidelines on Eritrean asylum seekers consider that, in practice, the punishment for desertion or evasion is so severe and disproportionate that it constitutes persecution.
UNHCR says that over 80 percent of Eritrean asylum seekers worldwide are granted some form of protection.
Israel has granted about 37,000 Eritreans living in Israel's cities a minimal form of what UNHCR calls "temporary protection," which amounts to a right not to be deported to their home countries but nothing else. They are given "conditional release permits," referring to a release from what would otherwise be deportation.
Israel told UNHCR in November 2012 that all permit holders could apply for asylum, but UNHCR says the authorities have not published any statements or information on this policy and that very few permit holders are aware they can apply. UNHCR says that it has not seen any documentation proving Israeli authorities are reviewing any claims Eritrean and Sudanese permit holders may have lodged.
Israel's Lack of Transfer Agreements With Third Countries
Israel does not have formal transfer or readmission agreements with any African countries.
UNHCR's Executive Committee Conclusion 96 of 2003 calls for efficient and expeditious return of people found not to need international protection to "their countries of origin, other countries of nationality or countries with an obligation to receive them back."
It does not list as an appropriate option transferring a rejected asylum seeker – or a person blocked from claiming asylum – to countries that have no ties with, or obligations toward, the person and where there is not even a bilateral agreement governing such a transfer. Human Rights Watch and HMW said sending Eritreans to Uganda clearly did not meet UNHCR's criteria.
Formal agreements on readmission of third country nationals – which involve returning them to countries they have passed through en route to the country that is sending them back –normally include provisions committing the sending country not to return people at risk of persecution to their home countries.
Human Rights Watch and HMW said that transfer agreements – to countries where the person has never been before – should have identical provisions. Absent such an agreement, Israel's transfer of Eritrean and Sudanese nationals to countries like Uganda provides no guarantee of admission to the third country and no assurance that those countries would not immediately return them to home countries where they would risk persecution.
UNHCR said it has not been actively involved in any discussions about facilitating voluntary repatriation, or travel to third countries, of Sudanese or Eritrean detainees from Israel. That is because UNHCR does not consider return from detention to be voluntary unless detainees have had full access to a fair, efficient, and transparent asylum system.
Risk of Indefinite Detention of Sudanese and Need to Recognize Them Automatically as Refugees
Human Rights Watch and HMW also said that Israel's inability to deport 600 detained Sudanese to Sudan because of the extremely high risk of persecution there means they face indefinite detention in Israel, unlawful under international law.
As it does with Eritreans, Israel has granted about 14,000 Sudanese nationals living in various parts of Israel informal temporary protection and has not registered any of them as asylum seekers.
The two organizations said Israel's coercion of detained Sudanese to return to Sudan meant the temporary protection status for the 14,000 currently not in detention – but who risk detention at any moment – was not enough to protect them against the risk of refoulement.
The 600 detainees, and 14,000 other Sudanese nationals in Israel, should be automatically granted refugee status. Section 52 of Sudan's Penal Code says that Sudanese nationals who visit an enemy state will be sentenced to 10 years in prison. Sudanese officials have repeatedly referred to Israel as an enemy state and have threatened to apply the law.
In 2007, the Sudanese Foreign Ministry said that visiting Israel was a crime and the Sudanese Refugees Commissioner claimed that Sudanese refugees in Israel wanted to "implement Zionism agendas against Sudan," and called on Egyptian authorities to "firmly penalize any Sudanese refugees if they were found trying to infiltrate through Egypt into Israel."
Sudanese nationals in Israel therefore have a sur place refugee claim, in which the well-founded fear of being persecuted arises as a consequence of events that happened after the person left his or her country of origin.
50,000 Eritreans, Sudanese Risk Detention, Pressure to Leave Israel
Since 2006, around 37,000 Eritrean and 14,000 Sudanese nationals entered Israel through Egypt's Sinai region. The numbers of new arrivals prompted Israel to build a recently completed fence that runs the full 240 kilometers of Israel's border with Egypt, which now makes it extremely difficult for anyone to enter Israel irregularly from Egypt.
According to the Israeli authorities, in December only 40 people entered the country from Egypt, down from 1,500 a month for most of 2012. UNHCR says fewer than 20 entered from Egypt across the land border in January. In October 2012, Human Rights Watch reportedon Israel's pushbacks at the border fence and called on Israel not to reject and push asylum seekers back or deport them without first reviewing their refugee claims.
UNHCR says most of the approximately 50,000 Eritrean and Sudanese nationals in Israel live in Tel Aviv. They are free to move within Israel and can work informally, thanks to a January 2011 Supreme Court ruling which says that the police and other authorities may not take legal action against employers who hire people holding the permits. If the authorities want to take such legal action, they must inform the court 30 days in advance.
UNHCR, HMW, and other Israeli refugee groups say that Israeli officials have repeatedly criticized "work infiltrators" and threatened to fine employers, and have not publicized information about the Eritrean and Sudanese national's work rights.
Israeli refugee groups say they are concerned Israel will soon use the Prevention of Infiltration Law and the September 2012 regulation to detain tens of thousands Eritrean and Sudanese nationals currently living in Israel in four newly expanded detention centers with a capacity of 16,000 people, and then to deport them.
Israeli government officials, including Prime Minister Benjamin Netanyahu and Interior Minister Yishai, have repeatedly threatened to deport all Sudanese and Eritrean nationals in Israel either to their home countries or to third countries. In early March, Israeli media reported the Interior Minister's most recent threats.
HMW said that in late February, Israel's Population and Immigration Authority posted a noticein the Saharonim and Ktsiot detention centers saying, among other things, that the government could use the Anti-Infiltration law to detain anyone who "infiltrated" – irregularly entered – Israel at any time. This would apply to the vast majority, if not all, Eritrean and Sudanese nationals who entered Israel over the past seven years or so. The notice said that "a warrant will be issued against these infiltrators and they will be transferred to a detention facility."
Israel's "Prevention of Infiltration Law" and the September 2012 "Regulation for the Treatment of InfiltratorsInvolved in Criminal Proceedings"
2012 Amendments to Israel's 1954 "Prevention of Infiltration" law
Human Rights Watch and HMW said all Eritrean and Sudanese detainees face prolonged or even indefinite detention because of changes to detention powers in Israel's 1954 "Prevention of Infiltration" law that came into effect in June 2012.
The amendments give border guards and judges the power to detain indefinitely anyone who has irregularly entered Israel – that is, without passing through an official border post – and who is not a "resident," as defined by Israel's Population Authority Law. The law refers to all such people as "infiltrators."
These legal provisions violate international refugee law by not distinguishing asylum seekers from others who enter irregularly, in effect punishing asylum seekers for their irregular entry.
In addition, UNHCR's 2012 Detention Guidelines say that "detention of asylum seekers should be a measure of last resort, with liberty being the default position."
They also say that countries should not detain asylum seekers simply for the purpose of deportation: "It is unlawful to detain asylum-seekers in on-going asylum proceedings on grounds of expulsion as they are not available for removal until a final decision on their claim has been made …[D]etention for the purposes of expulsion can only occur after the asylum claim has been finally determined and rejected."
Yet the Explanatory Note accompanying the 2012 amendments to the Israeli law say the amendments aim "primarily to allow for the detention of infiltrators for a much longer period of time … and to add … the necessary mechanisms … for holding infiltrators in detention until their deportation."
UNHCR's guidelines also say that deterring others from seeking asylum, or dissuading those who have already lodged their claims from pursuing them, is not a legitimate purpose to justify detention.
But the Explanatory Note to the 2012 amendments says that "the expectation is that the length of … detention will curb the infiltration phenomenon… a phenomenon which has to be prevented … in order to protect … the state's sovereignty."
Israel's Anti-Infiltration law says that the head of the Border Control Authority and Detention Review Tribunals may – but are not obliged to – release an "infiltrator" with a guarantee if a person has requested a residency permit, which includes asylum claims, and the "handling" of the request has not begun three months after the request was made, or if there has been "no decision" on the request nine months after the request was submitted, or if the "infiltrator" has been detained for three years.
The new provisions replace parts of Israel's 1952 Law of Entry into Israel, under which people irregularly entering Israel should be deported within 60 days or released, although in practice detainees have been held for much longer because authorities say the law gives them discretion, not an obligation, to release after 60 days.
The law says that the head of the Border Control Authority and Detention Review Tribunals may refuse to release "infiltrators" after three or nine months, or after three years, if, among other things, they have delayed their deportation because of a lack of cooperation and if their release "would endanger national security, public order or public health."
The Anti-Infiltration law also says that the head of the Border Control Authority and Detention Review Tribunals may – but are not obliged – to release "in exceptional circumstances" an "infiltrator" if due to "age or physical condition" detention is "likely to harm his or her health and there is no other way to prevent the harm," or if there are "other special humanitarian grounds."
September 2012 Regulation "for the Treatment of Infiltrators Involved in Criminal Proceedings"
A September 24, 2012 regulation "for the Treatment of Infiltrators Involved in Criminal Proceedings" allows Israeli authorities to detain and deport any "infiltrator" who is suspected of – but not necessarily charged with – criminal offenses defined in the 1954 law as offenses "endangering national security or the public peace," or who has been convicted of such offenses and who has served a prison sentence. The 1954 law does not give more details on what constitutes such offenses.
UNHCR and Israeli nongovernmental organizations say that some of the people detained under the September regulation were suspected or convicted of only minor offenses, such as minor assault charges, possession of stolen goods such as bicycles or mobile phones or falsification of documents such as work visas, making their detention illegal under Israeli law.
HMW says that in a few cases its lawyers have successfully challenged decisions to detain Eritrean and Sudanese nationals under the September regulation.
Human Rights Watch and HMW said that they were aware of only three cases in which the head of the Border Control Authority or Detention Review Tribunal judges have used their discretion to release a detainee under the amended 1954 law. Although all detainees have the right to appeal a Detention Tribunal's decision not to release them to the Administrative Affairs Court, very few detainees can afford to pay a lawyer to represent them, which means in effect they have no right toappealtribunal decisions.