Israel's High Court Attacks State for Keeping Asylum Seekers Jailed With No Deportation Deal in Sight

'There's no agreement yet you're keeping people in prison,' Supreme Court president charges; both Uganda and Rwanda repeatedly clarified they won't take asylum seekers against their will

African asylum seekers and Israelis protesting in Tel Aviv against the policy to forcibly deport migrants.
JACK GUEZ/AFP

Israel is keeping asylum seekers in jail pending their deportation to Africa despite the fact that no African country has actually agreed to accept them, Supreme Court President Esther Hayut charged on Tuesday.

The government has said it plans to deport the Eritrean and Sudanese asylum seekers to Uganda. But during a hearing on a petition against this policy on Tuesday afternoon, Hayut asked government attorney Shosh Shmueli, “If you put so and so many people on a plane, would they be accepted there or not?”

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“According to the attorney general, there’s a high probability,” Shmueli responded.

“Then there’s no agreement,” Hayut retorted. “Yet you’re keeping people in prison.”

Justice Hanan Melcer echoed her criticism. “This is an innovation, arresting people whom there’s only a likelihood of deporting. Freedom is the alternative.”

Last month, the court temporarily halted the expulsion of asylum seekers in response to a petition filed by attorneys Avigdor Feldman and Eitay Mack. 

Tuesday’s hearing took place a few hours after the state submitted its response to the petition, in which it insisted that it was close to signing an amended agreement with Uganda that would let it send the asylum seekers there – even against their will.

But senior Ugandan officials have repeatedly and sweepingly denied any such intent. Until now, Uganda has accepted only people who left Israel voluntarily.

The justices also asked Shmueli about her statements at a hearing on March 12, when the state said it had signed agreements to send asylum seekers to two countries, Rwanda and Uganda. But last week, the state abruptly canceled plans to send them to Rwanda after the country made clear it was unwilling to take them.

The government subsequently unveiled an agreement with the UN High Commissioner for Refugees, under which Western countries would take about half of the asylum seekers and Israel would grant legal status to the rest. But Prime Minister Benjamin Netanyahu scrapped that deal the next day.

Hayut wanted to know whether a signed agreement with Rwanda actually existed on March 12. Shmueli said yes, but added, “The agreement collapsed during a working meeting.”

Hayut then said in exasperation, “The agreement with one country collapsed, according to what you wrote. The state has withdrawn from the agreement with the UN and is holding talks that haven’t yet been completed with a third country. Is there an agreement with it or isn’t there? If it’s all nailed down, what still has to be settled and signed?”

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Shmueli responded that former Attorney General Yehuda Weinstein had deemed Uganda a safe place to send asylum seekers and the Interior Ministry had validated this opinion.

“You’ve said that if you put people on a plane, they won’t be accepted,” Hayut pressed her.

“The attorney general is looking into the issue of forced deportations,” Shmueli responded.

“This is incomprehensible,” Hayut said. “You say that a few months ago, an agreement on involuntary deportations was signed with two countries. Such an agreement couldn’t have been signed without the attorney general’s approval. So what’s happening now? Why do you need further approval? What has changed? The focus isn’t on whether it’s a safe country, but on whether it’s willing to absorb people [deported] forcibly.”

Shmueli replied, “There are details in the signed agreement on involuntary deportation that the attorney general wanted to update and which I can comment on ex parte,” meaning without the other side being present.

Melcer then asked about Uganda’s public denials of the agreement. “The country’s foreign minister said there is no agreement,” he noted. “How does that fit in?”

He also asked why the court hadn’t been informed about the negotiations with UNHCR. “You never said a word about those talks,” he said. “Did you in the prosecution know about them?”

Hayut added that the state never sought to submit any additions to the brief it filed a month ago.

At one point, Hayut asked how many asylum seekers Uganda was likely to accept if the deal did go forward. But Shmueli asked to give her answer to the judge without Feldman and Mack present.

At the subsequent ex parte session, Shmueli confirmed that the negotiations with UNHCR began before the March 12 hearing. She also said the state had asked to brief the court on that development ex parte. But Hayut said no such request was ever submitted.

In the brief it submitted to the court earlier on Tuesday, the state, referring to Uganda, wrote, “The second third country is committed to the agreement with it – a commitment that was expressed just recently.” It also said an Israeli envoy “and his counterparts in the second third country are holding talks to formulate and sign an update to the agreement.”

Neither Rwanda nor Uganda is ever mentioned by name in the 72-page brief. Instead, they are referred to, respectively, as “the first third country” and “the second third country.”

The Israeli envoy “is holding ongoing discussions with the authorized agencies in the second third country and ensuring implementation of the agreements in practice, both through frequent direct contact with the authorized agencies and through periodic visits to the third countries, as noted above,” the brief continued. “If necessary, the special envoy looks into issues regarding specific cases with the relevant parties and helps to solve specific problems if they arise. The envoy also makes periodic visits to the second third country, the format of which we can elaborate on ex parte.”

Nevertheless, Ugandan officials have repeatedly said they won’t accept asylum seekers who are deported involuntarily. In response to a question from Haaretz last week, a Ugandan presidential spokeswoman said, “Uganda is not ready to take any asylum seekers from Israel without their consent,” adding that this had already been made clear by the country’s foreign minister.

She also denied that Uganda had any agreement whatsoever with Israel about the asylum seekers and denied that Netanyahu had ever discussed the issue with Ugandan President Yoweri Museveni.

The submission of Tuesday’s brief had been postponed several times at the state’s request, including just a few days before Netanyahu and Interior Minister Arye Dery unveiled the agreement with UNHCR. But the court rejected a request filed on Sunday to delay Tuesday’s hearing for one more day.

The negotiations with UNHCR began in February, but the State Prosecutor’s Office was still defending the planned deportations to Rwanda before the court as late as March. The government did not inform the court when the agreement with Rwanda collapsed or of other developments on this issue.

Last week, Netanyahu and Dery said the agreement with Rwanda had been nixed in “recent weeks.” However, just two weeks earlier, the government was still defending that agreement in court. When Justice Neal Hendel asked at that hearing whether there had been any changes in the agreement, government attorneys said it was the same agreement the court had previously approved.

The State Prosecutor’s Office said it supplied the court with precise and correct information that it had received from the ministries involved in the matter, as it does in every case. In addition, the government sought to present the court with additional information ex parte, but this request was denied.

It said it cannot provide further details because information concerning the third country and the deportation arrangements is classified. “Because of the sensitivity of the matter, all the legal proceedings are being supervised by the attorney general and state prosecutor,” it added.