Underlying the Israeli High Court's decisions to annul detention of asylum seekers without trial in Saharonim and Holot was the principle that foreign citizens should not be jailed under such circumstances except for the purpose of deporting them.
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Because the state did not intend to deport asylum seekers from Eritrea and Sudan to their home countries, and agreed – at least regarding Eritreans – that the principle of non-refoulement of persecuted asylum seekers applied, the High Court ruled twice that Israel had no right to detain asylum seekers whom it did not intend to return to their country of origin.
Now, parallel to the new law that aims to "beautify" detention in Holot and is being challenged in court, the Interior Ministry is seeking to justify jailing asylum seekers in Saharonim based on a directive allowing it to deport them to a third country because they refuse to go.
The Be’er Sheva District Court’s refusal on Sunday to order an injunction against imprisonment of asylum seekers demonstrates a failure to appreciate the testimony the plaintiffs – human rights organizations and individuals as well – presented regarding deportees who left Israel for Rwanda, one of Israel’s designated third-country destinations.
The court was presented with a collection of 17 testimonies from asylum seekers who ended up in Uganda. The testimonies, gathered by Prof. Galia Sabar, the head of the African studies department at Tel Aviv University, showed that Rwanda does not let the deportees remain in the country, and that those who reached Uganda have a difficult time making their lives, do not have the right to work and are insecure about their future.
Additional information – including details from the United Nations High Commissioner on Refugees, indicating that the status of Eritreans leaving Israel for Rwanda was not properly arranged – also failed to make an impression on the Be'er Sheva judge, Rachel Barkai. She ruled that even if the data were correct, they reflected anecdotal incidents that do not attest to the general situation. She added that she needed a comprehensive statistical study of all 2,000 deportees to date, to get a more complete and accurate picture.
However, the lack of a comprehensive statistical study should not have been an obstacle for the petitioners in this case. Even if it was true that only some of the asylum seekers deported by Israel to third countries (the government refuses to divulge which countries are involved, but they are known to be Rwanda and Uganda) don’t receive proper protection – Sabar's information, and other sources cited by the petitioners, are sufficient to attest to a problem.
While the state remarked in the hearing that deportation should meet conditions that ensure the asylum seeker’s protection, and added that it keeps in constant contact with the third countries, in contrast to the secretiveness in which Israel is operating, there is information available to the public about the lack of protection these deportees suffer in these countries. Thus, it is highly doubtful that deportation there meets the proper standards.
“There is no dispute that expelling infiltrators from Eritrea and Sudan to their countries of origin is tainted with a real difficulty because of the events occurring in those countries,” wrote Barkai. “Therefore, an expulsion policy to other safe nations was formulated.”
However, beyond the serious doubt that has yet to be assuaged about those “safe” countries, the question arises as to why the alternative of not returning asylum seekers to Eritrea and Sudan is a policy of deporting them to other countries. Apparently state authorities believe that the only solution regarding African asylum seekers is jailing them or deporting them to other African countries – anything so that we fulfill our duties to them and don’t suffer their presence here.
The latest decision only concerns a temporary injunction, but its significance is renewal of the option to detain asylum seekers in Saharonim, now based on the claim that there is intent to deport them. In this way, the decision constitutes a sad authorization of Israel’s policy that shirks its obligations toward asylum seekers.
The writer is a member of the Association for Civil Rights in Israel, one of the petitioners in the case.