Landmark Ruling Gives New Hope to Eritrean Asylum-seekers in Israel

The Interior Ministry has rejected the asylum requests of thousands of Eritreans based solely on their status as army deserters in their home country, a precedent that can no longer continue after new ruling.

Eritrean asylum seekers protest against their government at the EU's office in Ramat Gan on June 21, 2016.
Moti Milrod

A custody appeals tribunal Sunday overruled the Interior Ministry’s legal opinion that Eritreans who deserted from their country’s army are never entitled to refugee status. The ministry has used this opinion to reject asylum applications from thousands of Eritreans.

The ruling could affect tens of thousands of Eritreans in Israel. Those whose asylum requests have been rejected are now likely to ask that they be considered. For those whose applications are still pending, the state will no longer be able to systematically reject them because they were based on desertion or draft-dodging.

In addition, over the past year, the state has used a procedural issue – the fact that the applications were submitted more than a year after the asylum seeker entered Israel – to reject many asylum applications without even discussing them. Now, Eritrean asylum seekers will be able to argue that they didn’t bother submitting applications before because they knew they would be rejected, but in light of Sunday’s ruling, the circumstances have changed.

According to information provided by the ministry’s Population, Immigration and Border Authority in response to a freedom of information request by Haaretz, from 2009 until the start of July 2016, Eritrean nationals submitted 7,218 asylum requests in Israel. Of these, only eight were approved, while 3,105 are still awaiting a response. All the others were either rejected or withdrawn.

Commenting on this data, Elad Azar, the custody judge hearing the case in Jerusalem, wrote, “Even in the completely theoretical case in which it was found that refugee status had to be granted to all those asylum seekers, I believe this isn’t a quantity Israel is incapable of digesting or that would lead to unreasonable results, given that in any case, all of them are expected to remain in Israel for a long time even if their applications are rejected.”

Azar said the state can’t refuse to apply the 1951 Refugee Convention to an entire group of asylum seekers making similar claims just because that group is large. If a person deserted for political reasons and would face an exceptionally harsh sentence if he returned, this could justify refugee status, it said.

“In general, desertion in and of itself doesn’t constitute grounds for granting political asylum,” wrote Azar. “But desertion that is seen as expressing a political view, and for which the punishment exceeds reasonable bounds, could amount to persecution in the sense in which Israel interprets the Refugee Convention.”

This would not apply to someone who deserted due to economic reasons, conscientious objection “or ordinary ‘cowardice,’” Azar stressed. But if a deserter’s government views the desertion as a political act, it could justify granting asylum.

One of the ministry’s arguments in the case was that if its legal opinion were rejected, Israel could be forced to grant asylum to thousands of Eritreans, with serious consequences. But Azar rejected that argument.

“Limiting the protection given under the Refugee Convention by not applying it to people entitled to refugee status, just because there are many of them, doesn’t comply with the Refugee Convention or the rules of Israeli administrative law,” he wrote. “We are talking about the personal, individual rationales of many people, not about a general group rationale.”

The appeal was filed two years ago on behalf of an Eritrean asylum seeker by Tel Aviv University’s Refugee Rights Clinic and the Hotline for Refugees and Migrants. The asylum request was based on his having deserted from the Eritrean army and then leaving the country, in violation of the law.

On the basis of the ministry’s legal opinion, the interior minister’s advisory committee on refugee affairs had rejected his application without even considering it. The appeals tribunal did not order the committee to accept the application, but did say it had to reconsider the issue without reference to this opinion.

“We can’t accept the clear trend in the cases that have been brought to this tribunal to date, in which asylum requests by Eritrean nationals that are based on claims of having evaded or deserted from military/national service are rejected at hasty meetings, without any reason, and without even being discussed by the full advisory committee on refugee affairs and brought to the interior minister for a decision,” Azar wrote.

Attorney Anat Ben-Dor of the Refugee Rights Clinic, who submitted the appeal, welcomed the tribunal’s decision. The ruling “requires the Interior Ministry to discuss individual applications for asylum in accordance with the rules of the Refugee Convention, without relying on an opinion that was meant to be a tool for systematically rejecting thousands of asylum requests,” she said.

Now, she added, the ministry should reconsider all the applications that were rejected on the basis of this opinion.

Reut Michaeli, executive director of the Hotline for Refugees and Migrants, said, “It’s regrettable that judicial intervention was needed so that the Interior Ministry would apply the rules of the Refugee Convention, to which Israel is committed, instead of trying to find tortuous ways of circumventing them. In every Western country, large proportions of Eritrean asylum seekers are accepted as refugees, and just recently, another UN report revealed the torture, slave conditions and systematic human rights violations that happen in the Eritrean army, and in the country in general.

“I hope that now, the asylum system will finally begin to operate in compliance with international standards,” she added.