High Court: Don’t Incarcerate Asylum-seekers Who Refuse to Leave

Temporary injunction effectively freezes new government policy on illegal migrants.

Ilan Lior
Ilan Lior
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Afriacn migrants in the Saharonim detention facility.
Afriacn migrants in the Saharonim detention facility.Credit: Eliahu Hershkovitz
Ilan Lior
Ilan Lior

The High Court of Justice on Wednesday issued a temporary injunction preventing the state from incarcerating asylum-seekers at Saharonim Prison who refuse to leave Israel for Rwanda and Uganda.

Justice Uzi Fogelman accepted the petition submitted by human rights groups against a Be’er Sheva District Court ruling three weeks ago, thus in effect freezing the new policy of unlimited incarceration at Saharonim Prison of asylum-seekers currently held at the Holot detention center who refuse to leave the country. Fogelman ruled that until the Be’er Sheva District Court makes a final decision on the appeal against the new policy, the status quo must be maintained.

District Court Judge Rachel Barkai is to render her ruling in about a month.

The petition to the High Court was submitted in the name of two Eritrean citizens now being held at Holot who refused to leave for Rwanda and subsequently were notified that they would be incarcerated at Saharonim for an unlimited period. The notice was given in keeping with a new policy by the Population and Immigration Authority, as revealed in Haaretz in March. Shortly after the report was published, the state issued some 40 deportation notices to asylum-seekers held at Holot, in which they were told that if they did not leave the country within a month they would be locked up at Saharonim. However, so far none has been sent to Saharonim.

Fourteen more asylum-seekers subsequently received such notices.

The state claimed that it cannot force asylum-seekers to leave the country and therefore it wants to incarcerate those who refuse to leave. However, Justice Fogelman ruled: “It goes without saying that the transfer to custody constitutes a serious breach on the asylum-seekers’ basic rights. Is there an opposing public interest that requires the status quo be changed before a decision on the appeal?”

Fogelman noted that the Be’er Sheva District Court, which rejected the request for a temporary injunction, had cited “the public interest in dealing with the phenomenon of infiltration by removing the infiltrators to safe third countries. This is indeed an important public interest, but the transfer to custody at this point and before the verdict on the appeal is issued, will not move it ahead, because deportation cannot be carried out in any case. Thus, the infringement of rights is what decides the balance in favor of maintaining the status quo.”

Fogelman said the district court should “act in its wisdom” in dealing with what he said were “important issues that have not yet been specifically decided.”

Fogelman’s ruling applies to the two asylum-seekers who petitioned the High Court, but he added that, “It is my assumption that normative considerations at the foundation of my ruling will be weighed by the authorities before transferring to custody other individuals in similar contexts.”

The petition to the High Court was filed by attorneys Anat Ben-Dor and Elad Kahana of Tel Aviv University’s Refugee Rights Clinic. Also party to the petition are the NGO Hotline For Migrant Workers (Moked), Kav Laoved, Assaf, the Aid Organization for Refugees and Asylum Seekers in Israel and the African Refugee Development Center.

The petitioners base their arguments on testimony from Rwanda and Uganda that the asylum-seekers’ refusal to leave Israel is justified and they cannot be incarcerated for non-compliance. “Deportation of the asylum-seekers endangers their lives, their freedom and other basic rights,” the petitioners stated.

High Court President Miriam Naor briefly addressed the issue of deportation to third countries in the court’s ruling Tuesday. “There is nothing in these things to stop the state from deporting infiltrators to a safe country. The transfer of infiltrators to such a country depends on various conditions, whose purpose is to ensure that the country is indeed safe and that this country will not transfer the infiltrators to another country that is not safe.”

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