Rejecting State's Appeal, Israeli Top Court Ruling Removes Hurdles to Asylum Requests

The state will have to prove that at least part of a country is safe for deportees following ruling in case of asylum seeker fleeing female genital mutilation

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An asylum seeker waits at the Population and Immigration Authority office in Bnei Brak, December 25, 2019.
An asylum seeker waits at the Population and Immigration Authority office in Bnei Brak, December 25, 2019.Credit: Moti Milrod
Lee Yaron
Lee Yaron

The Supreme Court refused Tuesday to hear the Interior Ministry’s appeal of its precedent-setting ruling that shifted the burden of proving the future safety of a family of asylum seekers if they are repatriated to their home country.

The decision, issued by Supreme Court President Justice Esther Hayut, upholds a verdict by the court in February. It is expected to affect many applications based on the claim that asylum seekers would suffer persecution if they were forced to return to their country of origin.

These applications were rejected by the ministry’s Population and Immigration Authority because asylum seekers failed to prove that there was no safe part of their home country. Tuesday’s decision is also expected to affect the way asylum applications are handled; the immigration authority will be forced to prove that such havens exist.

The precedent was set in a ruling ordering the state to give refugee status to a couple from the Ivory Coast who claimed that their two Israeli-born daughters could be forced to undergo genital mutilation after Israel had deported them. The immigration authority appealed, demanding that the ruling be heard by an expanded panel of justices because of its far-reaching implications.

The lawyers for the family, Michal Pomeranz and Asaf Weitzen, welcomed Tuesday’s decision, saying the court’s refusal to hear the appeal obligates the Interior Ministry to reevaluate all its asylum refusals and weigh all future applications in light of the ruling.

In its appeal, the immigration authority said it was not questioning the validity of basing an asylum request on the fear of genital mutilation. Rather, it was questioning the court’s ruling that the burden of proof lay with the state in proving that the family could not find a place in their home country safe from this risk.

It argued that officials at the authority had grave doubts about the agency’s ability to meet this burden and that this would impede its ability to evaluate thousands of asylum requests.

But Hayut said these arguments were not sufficiently supported by the evidence.

She said that according to a report by the state comptroller, 88 percent of all asylum requests that have been decided in Israel – no decision has been made on half the applications – are rejected out of hand or in an accelerated process. This means that only a small percentage of claims ever reach the stage of considering alternative residence within a country.

That fact, Hayut wrote, invalidates the claim that the ruling imposes an intolerable burden on the immigration authority.

After making its decision in February, the court noted that this was the first time it had been asked to examine an asylum request based on the claim of a fear of forced genital mutilation. It said the fear of such a cruel and irreversible procedure, which could harm the two girls both physically and mentally, had indeed been established.

The family is from a Muslim tribe living in northern Ivory Coast. The parents entered Israel without authorization around 15 years ago. Their daughters, now 7 and 14, were born in Israel.

Statistics from Ivory Coast from 2013 show that in this particular region, 87 percent of women undergo genital mutilation. The girls’ mother underwent the procedure before she fled, as did her niece.

Justices Daphne Barak-Erez and Ofer Grosskopf granted the petition over the opposition of Justice Yosef Elron. They ruled that genital mutilation can be seen as a form of persecution for which a woman deserves refugee status based on international conventions.

They said the state had not proved that the girls would be safe elsewhere in the country, since their potential persecutors would likely be their own relatives, who could probably reach them anywhere in Ivory Coast.

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