A More Hospitable Policy Towards Ukrainian Asylum Seekers
Israel should adopt a more hospitable policy towards Ukrainian asylum seekers and afford them with short-term stay permits
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Further to discussions surrounding the policy announced last week by the Ministry of the Interior regarding the entry to Israel of Ukrainian asylum seekers, the Israel Democracy Institute has issued an expert opinion according to which Israel is prohibited from deporting Ukrainian citizens back to Ukrainian territory, as long as conditions there continue to endanger their lives and other most basic rights. Furthermore, the contrast between the more generous policy toward those eligible for immigration under the Law of Return and the more restrictive policy toward other Ukrainian citizens is problematic, especially given Israel’s bilateral obligations towards Ukraine.
Prof. Yuval Shany, a Senior Fellow at the Institute and an expert in international law, notes in his expert opinion that Israel cannot repatriate Ukrainian citizens present inside the country to Ukraine given the gravity of the situation there. At the same time, the non-refoulement requirement of the 1951 Refugee Convention does not prevent, in principle. the return of refugees to the other countries in which they were received before arriving in Israel, as long as the country in question is considered a safe country. In addition, Israel may conclude in the future an arrangement with another safe country regarding the resettlement of asylum seekers there. However, returning refugees to the previous receiving country requires consideration of the difficulties expected for asylum seekers there, and particularly the most vulnerable among them (e.g., children, persons with disabilities, etc.).
According to Prof. Shany, there are concerns, which will only increase as the wave of migration grows larger, that the welfare systems of European countries will be unable to cope effectively with the influx of refugees, and that refugees in those states will have difficulties in accessing basic social services. This is in addition to the concern that parts the refugee population will be vulnerable to trafficking in persons. Wherever such concerns exist, Israel must rule out these possibilities before returning asylum seekers to previous receiving countries.
Prof. Shany makes clear that it is doubtful that the Supreme Court will accept the policy announced by the Interior Ministry, according to which only Ukrainian citizens with relatives in Israel will not be counted toward the cap on refugees as they would be deemed to be covered by the visa waiver bilateral agreement between Israel and Ukraine from 2010. It is difficult to accept that Ukrainian citizens who would be allowed to enter Israel in normal circumstances, under the terms of the visa waiver agreement, will be deported from it during a time of crisis. Beyond the ethical implications, it seems unlikely that this could be viewed as an application of the bilateral agreement in good faith, especially given the tenuous nature of the distinction offered between visiting relatives and visiting other acquaintances.
Regarding the preferential treatment given to those eligible under the Law of Return compared to other Ukrainian citizens, Prof. Shany adds that as long as the state’s capacity to take in refugees has not been exhausted, it would be immoral to refuse entry to asylum seekers fleeing for their lives from war zones, who are banging on Israel’s doors and asking for temporary asylum, merely in order to save room for others who may arrive in the future seeking permanent resettlement. Clearly, the argument about the potential impact on the Jewish character of the state is weak. The premise that many short-term asylum seekers, not eligible for Israeli citizenship, will come and ask to remain in Israel and that it will be impossible to make them leave once conditions in Ukraine were to improve is unfounded, and is not supported by past experience with foreign workers in Israel from Eastern Europe.
The expert opinion details the legal and ethical aspects of Israeli policy regarding entry for Ukrainian refugees:
• Under the terms of the 1951 Refugee Convention to which Israel is a signatory, Israel is legally prevented from returning refugees to the state from which they have fled due to persecution based on particular group, and is required to extend basic economic and social rights to refugees. Similarly, other norms of international refugee law and international human rights law, which is embedded in policies which Israel applied in previous situations, prohibits returning asylum seekers to states where their lives are in danger or where they are likely to face torture or cruel, inhuman, or degrading punishment or treatment.
• Under the terms of the 2010 bilateral visa waiver agreement between Israel and Ukraine, Ukrainian citizens have the right to enter Israel and receive a visa for three months. Israel is entitled to refuse entry only to nationals considered “undesirable” and can declare a suspension of the agreement for reasons of public order, national security, or public health (it has not done so to date).
• In terms of Israeli law, the Citizenship and Entry into Israel Law does not require the Minister of the Interior to allow entry of foreign citizens to Israel except in the case of those eligible under the Law of Return. At the same time, the Minister’s authority to prevent entry for foreign citizens is subject to the rules of administrative law, including the principles of reasonableness and proportionality.