A Jerusalem court ruled last week that desertion from the Eritrean army is not in itself a valid reason for receiving refugee status in Israel.
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All Eritreans over 18 and under 40 must do 12 to 18 months of national service, according to a proclamation that followed Eritrea's independence from Ethiopia in 1991. But in practice, military service can be extended indefinitely, analysts and human rights groups say.
Jerusalem District Court Judge Nava Ben-Or in effect backed the Population, Immigration and Border Authority’s original legal opinion, which had been struck down by an appellate court last September in what was seen as a landmark ruling.
Last Thursday, Ben-Or accepted the state’s own appeal and returned the matter back to the appellate court.
In her ruling, the judge said the court should examine its interpretation of the 1951 UN Refugee Convention and decide on the extent of evidence an asylum seeker must provide in order to justify his claims of political persecution when desertion from the Eritrean army is an issue. Accordingly, the appeals court must decide each case individually.
Based on its original legal opinion, the state has so far rejected thousands of asylum requests by Eritrean citizens. Indeed, between 2009 and July 2016, the state only approved eight such requests.
Each month as many as 5,000 people flee Eritrea according to UN figures, estimates the Eritrean government disputes.
However, Ben-Or noted there are several ways of interpreting the Refugee Convention, and that Israel had specifically chosen a very narrow interpretation. She rejected the lower court’s claim, made five months ago, that the state had wrongly limited the protection afforded to refugees only because their numbers were large.
“I don’t believe that taking into account considerations such as the wider implications of one interpretation or another is an extraneous consideration that may lead to the rejection of one interpretation, so long as that interpretation concords with the Convention,” she wrote.
“Before the court could rule on whether the appellant’s considerations, as expressed in the legal brief, were extraneous and unjustified, it had to decide on a basic question regarding the correct interpretation of the Refugee Convention in the present context,” she added.
The judge also discussed the temporary protection granted to Eritrean asylum seekers in Israel. “This temporary nature goes on and on, sometimes for a decade, and many Eritreans are living here under this status, which does not grant them any rights except the right not to be deported.
“On the one hand, there is a declared policy embracing a narrow interpretation of the Convention; and on the other, there is no other resolution that includes granting rights, even basic ones, to tens of thousands of infiltrators ... living among us, who cannot be repatriated,” she stated.
“These are human beings with human needs: they require bread, clothing, medicine, education for their children. Turning away from this complex social problem will not resolve it,” she wrote.
Interior Minister Arye Dery welcomed the judge’s decision. “This is an important and significant ruling that confirms the sovereign right of the state to determine its migration policies. It’s good to know the voice of sanity can still be heard in our midst,” he said.
Lawyer Asaf Weitzen, the manager of the legal team at the Hotline for Migrant Workers, said that “too many people have been waiting for too long for a clear decision regarding their legal status in Israel. We hope that returning the matter to another court, with uncertainty pervading the lives of these asylum seekers, will not be an excuse for further procrastination.
“In any case, the continuation of this matter obliges the state to provide asylum seekers with clearly defined rights as long as they are with us,” he added.
Reuters contributed background to this report