African migrants gesture behind a fence during a protest against Israel's detention policy towards them, at Holot, Israel's southern Negev desert detention centre February 17, 2014. © 2014 Reuters

HRW: Thousands of Eritreans, Sudanese face prison if they refuse to leave Israel 

PNN/ Jerusalem/

Israeli authorities should abandon a new policy that could lead to the indefinite detention of thousands ofEritrean and Sudanese nationals for refusing to leave Israel for Rwanda or Uganda, Human Rights Watch said today. The policy is the latest in a series of coercive measures against these groups aimed at thwarting their legitimate right to seek protection and would almost certainly result in mass unlawful asylum seeker detention.

Eritreans and Sudanese in Israel have been unable to obtain protection because, according to the United Nations refugee agency, Israel’s unfair asylum system has either prevented or discouraged them from lodging asylum claims or has unfairly dismissed their claims. Israeli authorities categorize them, along with all irregular border-crossers, as “infiltrators” and have recognized fewer than 1 percent of asylum applicants as refugees, compared with acceptance rates in the European Union of 90 percent for Eritreans and 60 percent for Sudanese.

“In the latest chapter of its longstanding quest to dodge its refugee protection duties, Israel is threatening to lock up thousands of asylum seekers who refuse to leave,” said Gerry Simpson, associate refugee director at Human Rights Watch. “Instead of jailing them, Israel should fairly identify and protect refugees among them.”

On January 1, 2018, Israel’s Population, Immigration and Borders Authority (PIBA), under the Interior Ministry, announced plans to indefinitely detain thousands of Eritrean and Sudanese men if they refuse to leave for Rwanda or Uganda by March 31. Although the first phase applies only to some men, later phases could extend the policy to others and to women and children.

There were 27,018 Eritreans and 7,731 Sudanese in Israel as of March 2, 2017, according to the PIBA. Since 2013, about 14,000 have left Israel, including as a result of government measures against asylum seekers involving prolonged or indefinite detention, which Israel’s High Court has twice ruled unlawful.

The detention policy is based on the 1952 Law of Entry into Israel, which says prospective deportees can be detained beyond two months if their lack of cooperation has prevented or delayed their deportation.

However, to date, Rwanda and Uganda have only accepted people who voluntarily agreed to leave Israel, and neither country has confirmed any agreement to accept anyone deported from Israel, meaning anyone removed from Israel against their will. As a result, the Israeli High Court said in August that Israel could not deport Eritreans and Sudanese to Rwanda and Uganda and could therefore not justify detaining them for refusing to cooperate with efforts to deport them there.

Detention is arbitrary under the International Covenant on Civil and Political Rights (ICCPR) if a country detains someone for deportation when there is no realistic prospect of deporting them. Arbitrary indefinite detention may also constitute inhuman and degrading treatment in breach of Israel’s obligations under the ICCPR and the UN Convention Against Torture. Detention Guidelines by UNHCR, the UN refugee agency, say asylum seekers should be detained only “as a last resort” as strictly necessary and proportionate to achieve a legitimate legal purpose and that countries should not detain them simply for deportation purposes. Detention is permitted only briefly to establish a person’s identity or for longer periods if it is the only way to achieve broader aims, such as protecting national security or public health.

The government’s plan states that all Eritrean and Sudanese “infiltrators” should leave for “their country or … a third country” by the end of March. It promises US$3,500 to those who agree to leave, less if they leave voluntarily after March.

The same day, the authorities published procedures for some of those who do not leave by March 31. Men who apply after February 1 to renew their permit to stay in Israel will be told to leave Israel within 60 days if their asylum applications are rejected, if they have not applied for asylum, or if they registered as asylum seekers after 2017. Only men with children in Israel or who have been identified as victims of trafficking or slavery are exempt.

The procedures say that an “infiltrator” who “does not voluntarily agree to leave” will face “enforcement and deportation proceedings.” They also say the procedures may be applied later to other Eritrean and Sudanese “infiltrators,” including, but not limited to, asylum seekers who lodged claims before January 2018 that are still pending.

In March 2014 Israeli High Court proceedings, the State Prosecutor’s Office told the court that Israel had “begun to implement … two [transfer] agreements” with African countries, but the authorities have not confirmed the countries’ identities or published the agreements.

Rwanda and Uganda deny any agreements exist. However, nongovernmental organizations and journalists have interviewed dozens among an estimated 1,500 Eritreans and Sudanese who agreed in 2014 and mid-2015 to leave Israel and who were flown to Rwanda or Uganda. UNHCR says that “some 4,000” people were relocated under the program between December 2013 and June 2017.

About 50,000 Eritreans and Sudanese entered Israel through Egypt’s Sinai Peninsula between 2006 and 2012, when Israel sealed off its border with Egypt. Israeli officials have said they cannot deport Eritreans and Sudanese home because of human rights abuses in Eritrea and because Israel has no official diplomatic relations with Sudan, which also criminalizes visiting Israel with up to 10 years in prison.

Until early 2013, Israeli immigration authorities blocked almost all Eritrean and Sudanese asylum applications. Between then and mid-2017,12,295 people managed to lodge asylum claims, of whom 7,437 were awaiting decisions as of June. Almost all the rest were rejected. UNHCR says the low number of asylum claims also reflects widespread distrust in the asylum system and a failure of the Israeli authorities to inform Eritreans and Sudanese of their right to claim asylum or to accord registered asylum seekers more rights than people given “conditional release permits” from detention, the status Israel gives to all Eritrean and Sudanese nationals who entered the country irregularly.

In late December, an Israeli judge heavily criticized the authorities for forcing asylum seekers to overcome significant procedural obstacles to lodge claims, including “lengthy waits in line,” sometimes overnight, characterized by “irregularities, violence and bullying.” The judge said some asylum applicants “wait …in vain because only a few are allowed entry and even for them some … are not allowed to submit their request.”

UNHCR says that Israel has not processed Eritrean and Sudanese asylum applications fairly, which is starkly reflected in the fact that Israel has granted only 10 Eritreans and 1 Sudanese refugee status since 2009. Israeli asylum lawyers have told Human Rights Watch that about 700 Sudanese from Darfur have obtained humanitarian status, a status granted on a purely discretionary basis outside the asylum system.

UNHCR has stressed that a person is a refugee as soon as they fulfill the requirements under the 1951 Refugee Convention, that a country recognizing that fact is “merely declaratory of an existing status,” and that “this is particularly valid in the Israeli context where lack of formal recognition of refugee status of … ‘infiltrators’ is linked to shortcomings in the asylum procedure.”

UNHCR also says that “the protection needs of the majority of Eritreans and Sudanese [in Israel] … are akin to the protection needs of refugees” and that UNHCR “considers them to be in a refugee-like situation.”

The Israeli authorities should urgently carry out a full review, with UNHCR support, of how Eritrean and Sudanese asylum seekers have been blocked from seeking asylum and how current procedures prevent a fair assessment of their claims, Human Rights Watch said. Those who have not previously filed asylum claims or who were previously denied a fair hearing should be allowed to file claims or have their claims reviewed afresh.

“Now that the UN refugee agency has confirmed that Israel’s asylum procedures for Eritreans and Sudanese are deeply flawed, the Israeli authorities should drop their charade and urgently and fairly re-review all their claims,” Simpson said.