Far from the stormy discussion about the treatment of refugees arriving in Israel, authorities across Europe are confronting the challenges presented by the unprecedented wave of immigration from south to north, which is steadily increasing as people flee the unbridled violence in the Middle East. Last Tuesday alone violent clashes erupted among 1,500 refugees and migrants who crossed the Mediterranean from Turkey to the island of Kos in Greece, when authorities had them stand at the entrance to a stadium in an attempt to conduct an orderly registration process.
And on the other side of Europe, Swedish authorities announced yesterday that two Eritrean asylum seekers were arrested on suspicion of having stabbed a man and a woman to death in an Ikea store near Stockholm. The European Union received a record 180,000 requests for asylum in the first quarter of 2015 alone, and Europeans have only a limited ability to influence this wave of immigration.
On Tuesday Israels High Court of Justice decided to partially accept the third amendment to the Prevention of Infiltration Law, which allows for the imprisonment of asylum seekers who are not suspected of any crimes. The court limited the law and ruled that the time period for legal detention – a year and eight months - is disproportionate and should be shortened. The court instructed the MKs to decide on a shorter period of imprisonment; until then asylum seekers will be imprisoned for a maximum of one year. For the first time the court approved the existing procedure in the open detention facility in Holot in the Negev, where detainees must be present for a head count once a day.
In the European Union the rules for treating asylum seekers were laid down already in a 2003 directive, as follows: The authorities in the various countries are allowed to determine the place of residence of asylum seekers and to limit the areas where they can travel within the country – on condition that this restriction enables a normal life and meets the guidelines of the directive. The authorities can also, when it is proven that the step is essential for legal reasons or for reasons of public order, to order the detention of an asylum seeker, in accordance with the law of the land. Treatment in the European Union varies according to country, but Brussels officials have laid down some basic rules constituting a required minimum. In most cases the asylum seeker must remain in the first country where he was registered, at least until his request for asylum is recognized.
In accordance with the instructions various centers have been established all over the European Union – some in city centers and some in relatively remote regions. The restrictions vary depending on the local authorities and the differing conditions. In Germany those staying in camps in the forests are limited to an area of about 30 kilometers surrounding their place of residence. They can submit a request for a work permit, which is almost always rejected.
Due to the increasing migration crisis the European Union has adopted a new policy. Where before there was one paragraph regarding detention, there are now over three pages on the subject. This reflects an attempt by the EU leadership to deal with the vagueness of the old rules, and indicates the problems identified by the officials.
The general rule regarding the detention of the asylum seekers, according to the new directive, is that a person cannot be held in detention only because he seeks asylum. Each detention must be on an individual basis, after all other options have been exhausted. The asylum seeker will receive free legal assistance if necessary. The detainees must be kept in designated facilities or separated from other prisoners if there is no choice. They must be allowed access to open air, family visits, access to education and suitable activities for minors, and families can live together in proper conditions of privacy. Vulnerable asylum seekers or those with special needs must be treated properly.
The changes reflect a genuine effort by the EU leadership to determine minimum criteria for treatment of asylum seekers who have managed to escape the violence in their homeland. Most of the clauses explaining conditions allowing detention discuss detention until the refugees identity is verified, whether he had a right to enter the country or is already designated for expulsion in accordance with EU regulations.
But EU policy must be accepted by consensus, and the fact that many EU leaders feel threatened by the strengthening of populist politicians opposed to migration is reflected in the new directive, which in effect allows for far broader freedom of action. According to one sub-clause, an asylum seeker can be detained if detention is necessary for protecting national security or upholding public order.