UN Refugee Agency Petitions High Court to Overturn ‘infiltration’ Law

United Nations High Commissioner for Refugees concerned law will 'wrongly stigmatize and penalize' those seeking protection as refugees; parts of law violate 'international human rights'

Talila Nesher
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Talila Nesher

In a precedent-setting move, the United Nations High Commissioner for Refugees submitted a request to file a friend of the court brief with the High Court of Justice last Thursday. The case is a petition by all the human rights organizations fighting for refugee rights in Israel and a number of illegal immigrants seeking asylum − and it asks the High Court to make an exceptional decision and rule a law unconstitutional: The Law for the Prevention of Infiltration.

The UNHCR has a mandate from the UN General Assembly to provide international protection to refugees and to supervise the implementation of international treaties regarding the handling and treatment of refugees. The UNHCR asked the High Court to allow it to submit an amicus curiae brief in the case, which will be heard this morning. The special three-judge panel includes Supreme Court President Asher Grunis, his Deputy President Miriam Naor and Justice Edna Arbel.

“UNHCR is seriously concerned that the Law will wrongly stigmatize and penalize, including by way of lengthy detention, persons who are in need of international protection as refugees and who are claiming such protection from Israel,” wrote the commissioner to the court. “UNHCR has a direct interest in the outcome of this petition, as it raises a number of legal issues relating to the entry, detention and removal of refugees and asylum-seekers.”

The refugee organization’s brief is also a clear warning signal to the court: “UNHCR considers that the above-outlined provisions of the Law are not in conformity with international human rights and refugee law standards, including the 1951 Convention and the 1967 Protocol. Some of the provisions of the Law should not be applied to refugees and asylum-seekers, while others need to carve out exceptions to guarantee the rights of refugees and asylum-seekers.”

The changes to the law involved were passed by the Knesset in January 2012 as an emergency measure valid for three years with the goal of “protecting the public interest.” The amendments to the law radically changed Israel’s postion toward illegal immigrants. The law now allows detaining all those who Israel cannot deport back to their country of origin if they face a risk to their lives there. The law defines a maximum three-year period of detention after which it will be possible to consider releasing the illegal migrant.

The law does not relate to refugees and asylum seekers and in practice does not differentiate between these people and illegal immigrants. The law also allows the state to detain children indefinitely and creates a situation where children grow up in a prison-like environment. “According to international law, children who are seeking asylum should in principle not be detained. Overall, an ethic of care − and not enforcement − needs to govern interactions with asylum-seeking children, including children in families, with the best interests of the child a primary consideration. The extreme vulnerability of a child takes precedence over the status as an “illegal alien,” wrote UNHCR.

The law also applies retroactively to those who arrived in Israel even before the law was changed. Many migrants who are free and have temporary status in Israel are now being detained under a special procedure for those suspected of committing crimes − even though they were never convicted in any legal proceeding.

The Supreme Court has previously ruled that arresting a person to deter others is illegal and even a serious national problem is not an excuse for such an arrest; the explanatory notes to the law state specifically that its goal is to deter others from “infiltrating” into Israel. “According to the Explanatory Note to the Law, its purpose is primarily one of deterrence, stating that the legal situation that was in place before the Law came into being gave incentives to people to come to Israel. According to UNHCR, detention laws and policies aimed at deterrence are generally unlawful under international human rights and refugee law as 1‏) deterrence is not a legitimate purpose and 2‏) the policy objective is not based on an individual assessment as to the necessity to detain. Moreover, there is a growing body of empirical evidence which shows that even the most stringent detention policies are not effective in deterring irregular migration, further suggesting that such laws and policies with a deterrent purpos
e are arbitrary. Such a purpose also conflicts with the spirit of the 1951 Convention, the object of which is to establish an international protection regime for refugees.”

The law also does not differentiate between migrant workers and refugees or asylum seekers. All are included in a single category: infiltrator, the UNHCR contends: “The Law creates a presumption that refugees and asylum-seekers who enter Israel illegally are ‘infiltrators.’ In this way, the Law is stigmatizing, and does not take into account the special position of refugees and asylum-seekers under international law, nor their particular vulnerability.”

The UNHCR continues: “Beyond an initial security screening, the automatic and continued detention of refugees and asylum-seekers classified as ‘infiltrators’ based on the sole reason of having entered Israel irregularly would not meet international standards. That is, any extension of detention beyond an initial security screening for a particular refugee or asylum-seeker would only be lawful if it is assessed in a proper procedure to be necessary, reasonable and proportionate measure to a legitimate purpose in their individual case.”

The state has asked the court to summarily dismiss the case, partly because the new law has yet to be fully implemented. But the state has been repatriating many “voluntarily,” including to enemy states such as Sudan where their lives may be at risk. Thousands of Sudanese and Eritrean citizens have already been arrested since the law took effect.

“The views UNHCR would like to present to this Court in these proceedings are informed by more than 60 years of experience supervising international refugee law instruments,” the agency continues. “UNHCR provides international protection and direct assistance to refugees throughout the world and has staff in some 120 countries. UNHCR is mandated to supervise the application of international refugee law conventions, including the 1951 Convention and its 1967 Protocol, and as such has a responsibility and unique expertise to present its views to this Court. UNHCR is of the opinion that the outcome of this petition will have far-reaching implications for the protection of refugees and asylum-seekers, in Israel and internationally. UNHCR’s interest as amicus curiae is based on the organization’s duty to fulfill its mandate of ensuring the consistent and coherent interpretation of international refugee law.”

As to its standing and the importance of being heard: “UNHCR has an independent interest in the determination of this petition, which is distinct and separate from those of the Petitioners and Respondents.”

African migrants behind barbed wire at the Saharonim detention facility in the Negev, 2012.Credit: Eliyahu Hershkovitz

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