A Back-door Ploy vs. Asylum Seekers

A new, regressive ruling by a Be'er Sheva court allows indefinite imprisonment and deportation of foreign citizens in Israel.

Aeyal Gross
Aeyal Gross
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African asylum seekers outside the Saharonim detention facility.
African asylum seekers outside the Saharonim detention facility.Credit: Alex Levac
Aeyal Gross
Aeyal Gross

The decision of the Be’er Sheva Administrative Court – to approve deportation of asylum seekers to Uganda and Rwanda, and in effect to imprison indefinitely at the Saharonim prison in the Negev anyone who refuses to leave for those countries – represents a new means of bypassing High Court of Justice decisions on this issue.

The High Court has previously rejected amendments to the Prevention of Infiltration Law, which would have enabled prolonged imprisonment of asylum seekers, mainly based on the principle that imprisonment without trial of foreign citizens present in Israel is legal only when its aim is deportation.

Since Israel recognized the fact that there is no possibility of returning asylum seekers from Eritrea and Sudan to their homelands, and there is no intention of deporting them, it was decided that detention without trial is unacceptable.

But now the government has found another way to imprison asylum seekers without any time limit: Since deporting them to their homelands is impossible, Israel wants to deport them to third countries – and this time with no pretense of willingness on their part. In light of the ruling of the Be’er Sheva court, the state will once again be able to incarcerate in Saharonim those who refuse to leave Israel, claiming that this time it is really a case of imprisonment for the purpose of deportation, and that therefore the previous ruling does not apply.

If the previous round of deliberations in the High Court forced the government to shorten the period of imprisonment in Saharonim from three years to three months and rejected the possibility of holding people in the Holot detention facility indefinitely, now the state wants – and has received approval, in the meantime – to restore this option through the back door.

The state is, therefore, interested in killing two birds with one stone: both to imprison some asylum seekers indefinitely and to deport others. As opposed to the previous scheme involving “voluntarily departure,” which also did not take place under conditions of genuine free will – now there is an expulsion “framework” that even the court recognized as constituting “coercion,” in light of the sanction of detention to be used in the absence of cooperation.

The court in Be'er Sheva did not attribute sufficient importance to the many testimonies relating to the sensitive condition of those asylum seekers who were deported according to the previous arrangement to the two African countries (with whom the agreements are secret), and which in the court’s ruling are referred to as “U” and “R.”

The decision by Judge Rachel Barkai to the effect that the study conducted by Prof. Galia Sabar, head of the African studies department at Tel Aviv University is insufficient – since the research focused only on 17 people and did not include a comprehensive examination of the approximately 3,000 asylum seekers who were transferred to those countries – is far from convincing.

This true not only because it is impossible to expect the petitioners themselves to be able to conduct such a comprehensive examination. Even if only some of the asylum seekers don’t receive proper protection in the third countries – that is sufficient to attest to the problematic nature of this arrangement. Indeed, several asylum seekers who were deported have testified that their identification papers were taken from them already in the airport in Uganda. Perhaps the “reverse” Entebbe Operation being conducted by Israel now is an irony of history.

In order to understand to what extent yesterday’s ruling deviates from the accepted legal standards, we should recall that with respect to Israel the agreements are secret – with countries that presumably remain unnamed, and about which there have been many reports concerning the lack of sufficient protection for asylum seekers previously sent there from Israel.

On the other hand, last year the British Supreme Court rejected the transfer of asylum seekers from the U.K. to Italy, ruling that in every case the people involved would have to be assured of suitable protection there, and that to prevent transfer it would be enough to demonstrate that the conditions under which the asylum seeker will have to live are debasing or inhumane.

The gap between that viewpoint and the viewpoint of the Be’er Sheva court cries out to the heavens. We must hope that Judge Barkai’s decision will be overturned in the High Court.

The writer is a member of the Association for Civil Rights in Israel, which was one of the petitioners in the case.

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