A Matter of Definition: On ‘Infiltrators’ and ‘Asylum Seekers’ in Israel

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Israel ratified the U.N. Convention on the Status of Refugees in 1954, and accepted its protocols in 1968. Israel has not, however, incorporated the convention into its domestic law. Moreover, in July of 2010, the Israeli government decided that it would be “ill-advised to adopt legislation regarding refugees and asylum seekers.” In this article, IDI Researcher Adv. Reuven (Ruvi) Ziegler surveys the current regulations and points to three areas—eligibility for asylum, the rights of asylum seekers, and detention—in which they are incompatible with the UN refugee convention.

The Refugee Convention: 60 Years of (Non)-Incorporation

The Convention relating to the Status of Refugees189 UNTS 150 (opened for signature 28 January 1951, entered into force 22 April 1954) (ratified by Israel 1 October 1954) (hereinafter: the refugee convention); see also Protocol relating to the Status of Refugees, New York (31 January 1967, entered into force 14 October 1967) (ratified by Israel 14 June 1968) (hereinafter: the protocol).  will celebrate its sixtieth anniversary this July. The refugee convention concretised Article 14 of the Universal Declaration of Human RightsGA/Res/217A (III), UN Doc A/810 (10 December 1948)., which proclaimed that 'every person has the right to seek and to enjoy in other countries asylum from persecution.' Israel ratified the refugee convention and its subsequent protocol in 1954 and 1968, respectively. It is hence obliged to implement all of its provisions and to adopt necessary legislation to that effect.

Nonetheless, to-date, Israel has not incorporated the convention into its domestic law; the convention is thus not directly enforceable in Israeli courts, although treaty-compatible interpretations are customarily preferred.See eg the Supreme Court judgment in IsrSC 7048/97 Plonim v Minister of Defense, PD 54(1) 721, 742-43. Moreover, the Israeli government decided last July that, at present, it would be 'ill-advised to adopt legislation regarding refugees and asylum seekers'.See appendix to decision no. 2014 of the 32nd government's titled 'decisions regarding entry and immigration to Israel' (19 July 2010): summary of the immigration forum activities, part 6 (recommendations), section D(8) (infiltrators, asylum seekers and refugees). Absent primary legislation, asylum policies are governed by internal governmental regulations which were enacted by the Ministry of the Interior in 2002. The regulations are enforced by the Population, Immigration, and Borders Authority (PIBA) which was formed in 2008.See decision 3434 of the 31st government, which formed PIBA (13 April 2008). Regulation 5.2.0012: 'handling political asylum seekers in Israel and those who were recognised by the minister of the interior as eligible for asylum' is available on PIBA's website: www.piba.org.il/Regulations/75.pdf. An updated version of the regulations was given effect on 2 January 2011.The 2011 regulations which replaced the 2002 regulations appear on the PIBA site: http://www.piba.org.il/Regulations/Procedure for Handling Political Asylum Seekers in Israel-en.pdf (hereinafter: the 2011 regulations).

The general part of the 2011 regulations proclaims that asylum applications will be considered 'according to Israeli law', and 'with regard' to the obligations that Israel has undertaken under the refugee convention and the protocol. Nonetheless, one may identify three interrelated matters in which the 2011 regulations, as well as concurrent and prospective government policies, are incompatible with the refugee convention and its protocol: eligibility for asylum; asylum seekers' rights; and detention. These incongruities will be appraised through the prism of the widely debated topic in Israeli discourse: distinguishing between 'infiltrators' and 'asylum seekers'.

'Infiltrators' and Eligible 'Asylum Seekers'

Section 1 of the Prevention of Infiltration (Offences and Jurisdiction) Law5714-1954, published in Sefer Ha-Chukkim No 16, 27 Av 5714 (26 August 1954) at 160. defines an 'infiltrator', inter alia, as a person who entered Israel from Lebanon, Egypt, Syria, Saudi Arabia, Jordan, Iraq or Yemen, and is a resident or a visitor thereof. Under section 10, an individual who has entered Israel from one of these countries without a visa or who illegally resides in Israel must disprove that s/he is an infiltrator. The vast majority of 'infiltrators' cross the border to Israel from Egypt. The act established special courts to adjudicate 'infiltration' cases; nonetheless, 'infiltrators' are normally brought before tribunals which operate according to part IV of the Entry to Israel law.5712-1952, published in Sefer Ha-Chukkim No 111, 15 Elul 5712 (5 September 1952) at 354.

Section 1 of the 2011 regulations promulgates that a foreign national who wishes to submit an asylum application must do so within a year from the date of his/her entry to Israel; the application should be submitted in a PIBA office; if the applicant is detained, the application should be submitted to a PIBA representative in the detention centre. However, Section 10 permits the government to refuse to allow entry to Israel or to grant leave to remain to individuals who are nationals of an 'enemy state' or a 'hostile state'; a determination to that effect may be made at the authorities' discretion.See Section 10 of the 2011 regulations.

It is submitted that section 10 contravenes the refugee convention, which stipulates that refugee status should be granted on an individual basis, following 'refugee status determination'See Article 1(A)(2) of the convention, proclaiming that 'the term "refugee" shall apply to any person who...owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country'. Discrimination against individuals based on their country of origin is prohibited.Ibid Art 3. Moreover, pursuing a discriminatory policy of this sort undercuts the convention's rationale, since the asylum seekers' well-founded fear of persecution may ultimately stem from the same action which has caused Israel to view their state as an enemy or hostile state.

Concurrently, the 2011 regulations stipulate their implementation will be notwithstanding the principle of non-refoulement, one of the linchpins of the refugee convention. Article 33(1) of the refugee convention enunciates that '[n]o Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.'

Notably, the Israeli Supreme Court has established that the above principle is generally applicable rather than confined to convention refugees; the deportation of an individual to a country from which s/he may be deported to a third country where they may face danger (her/his country of origin or elsewhere) is equally prohibited.See eg the Supreme Court judgment in IsrSC 4702/94 El Tai and others v Minister of the Interior and others, PD 49 (3) 843, 850. See also Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (opened for signature 10 December 1984, entered into force 26 June 1987) (ratified by Israel 2 November 1991).

Current Policies regarding Sudanese and Eritrean Nationals

Sudanese and Eritrean Nationals that have entered Israel are ineligible to submit asylum applications, following a regulatory determination made in light of section 10 of the 2011 regulations.

The Israeli government decided in 2007 to grant temporary residence permits to 500 Sudanese nationals, whilst refraining from assessing their asylum applications (and, a fortiori, without granting them refugee status). Reports suggest that the Sudanese nationals residing in Israel originate either from Darfur, where they suffer from continuous persecution and mass murder of civilians by armed groups sponsored by the Khartoum government, or from South Sudan, where religious persecution was prevalent. Amongst the younger asylum seekers, some have lost family members and/or were kidnapped and coerced to convert.See eg www.amnesty.org.il/?CategoryID=319&ArticleID=347. Recently, Israel repatriated 150 South Sudanese nationals, amidst fears that they may face danger upon their return.See eg www.haaretz.com/print-edition/2011s/150-sudanese-refugees-voluntarily-repatriated-in-unprecedented-flight-1.330463.

The Israeli government further decided in 2007 to issue temporary work permits (which entail their holders to a more limited protection than that mandated by the refugee convention) to Eritrean nationals that have entered Israel prior to that time, without assessing their asylum applications.See eg www.haaretz.com/print-edition/2011s/all-eritrean-refugees-to-receive-work-permits-1.236773. Reports suggest that the Eritrean government persecutes dissidents, political activists, journalists, union workers' leaders, religious minorities, victims of domestic violence, women who got pregnant out of wedlock, military AWOLs, and gays. Considering the above, UNHCR determined in 2008 that there is a presumption that most Eritrean asylum seekers are likely to be satisfy the refugee convention definitions, and asked receiving states to grant them 'temporary group protection', and refrain from deporting them to Eritrea, or to third countries which may deport them to Eritrea.

It is noteworthy that 'temporary group protection' is granted to a group of asylum seekers who are forced to leave their state of origin under circumstances which indicate that they are likely to be individually eligible for refugee protection. It is expected that they will be entitled to all the rights guaranteed to refugees under the convention. It should be further noted that 97% of individual asylum applications filed by Eritreans in Canada in 2008 were approved, as were 80% of equivalent applications filed in the UK, and 95% in Norway.UNHCR, Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Eritrea (Geneva 2009).

Ineligible non-Deportable Foreign Nationals: Can this 'Gordian Knot' be untied?

The Israeli authorities issue border-crossers permits in accordance with section 2(a)(5) of the Entry to Israel law (hereinafter: 'permit 2(a)(5)'). This 'permit' is defined as a 'temporary visitor permit issued to an individual who resides in Israel illegally and whose deportation has been ordered - until his departure from Israel or his deportation'.

The 2011 regulations mandate that foreign nationals who have submitted an asylum application shall not be deported until such time as their application is assessed, even if they have entered Israel illegally. Section 5(a) of the 2011 regulations promulgates that asylum seekers will be issued 'permit 2(a)(5)' whilst their applications are pending. Should their applications proves successful they will be granted temporary residence.

Similar 'permits' are issued to nationals of 'enemy' or 'hostile' states who are ineligible to submit asylum applications (see above), but whom Israel cannot deport, since their lives or liberty may be in danger in their country of origin. Individuals belonging to the latter group may end up holding such 'permits' for an indefinite period.

'Permit 2(a)(5)' does not entitle their holders to social security benefits and (nonemergency) medical treatment. According to section 3(b) of the Patient's Rights law,5756-1996, published in Sefer Ha-Chukkim No 111, 23 Iyar 5756 (12 May 1996) at 354.  'Any person' is entitled to emergency treatment. Meanwhile, 'permit 2(a)(5)' is not a work permit, and employing such a 'permit' holder is a criminal offence, according to section 2(a) of the Foreign Workers Law.5751-1991, published in Sefer Ha-Chukkim No 1349, 6 Nissan 5751 (21 March 1991) at 112.

Until recently, PIBA has turned a blind eye to employment of 'permit 2(a)(5)' holders. On 13 July 2010, the District Court (Centre district) ruled that holders of 'permit 2(a)(5)' have a right to work35858-06-10 Seiko and others v. Ministry of the Interior (2010) (published online at www.nevo.co.il). since they have no other means to sustain themselves, and prohibiting them from working may leave them destitute, in contravention of their right to dignity which section 4 of the Basic Law: Human Dignity and Liberty5752-1992; See eg the opinion of the (then) president of the Supreme Court's in IsrSC 4905/98 Gamzu v Yishaiyahu, PD 55(3) 360, 375-376. guarantees to 'every person'.

However, the government announced last July its intention to penalise employers,See decision 2014 of the 32nd government's titled 'decisions regarding entry and immigration to Israel' (19 July 2010): section 2(d).  and decided last November that enforcement will commence in 2011.See decision 2507 of the 32nd government, titled 'building a holding centre for individuals infiltrating through the Egyptian border and enforcing the prohibition on their employment' (28 November 2010).  A petition challenging the prohibition on employing asylum seekers and those eligible to temporary group protection was submitted to the Supreme Court last August, and a preliminary hearing was held on January 13.IsrSC 6312/10 Kav La-Oved and others v Minister of the Interior (petition pending).

'Permit 2(a)(5)' in light of the Refugee Convention

The refugee convention views the determination of refugee status as declaratory: the circumstances leading to a person leaving their country of origin are determinative. Hence, it is expected that asylum seekers be treated as convention refugees insofar as the grant of convention rights is concerned; their non refoulement does not suffice.

Refugees should enjoy, inter alia, access to social security and medical services to the same extent as citizens, and should be permitted to work in a similar manner as other foreigners who reside legally in the state.See Arts 23-24 and 17-19 of the refugee convention, respectively. The issuance of 'permit 2(a)(5)' which neither entails access to social rights nor allows asylum seekers access to gainful employment thus seems treaty-incompatible.

Moreover, the refugee convention prohibits penalising potential asylum seekers who have crossed the border without authorisation, as long as they present themselves to the authorities without delay, and show good cause for their actions. Detention may be used only when strictly necessary.Ibid Art 31; see also UNHCR, Revised Guidelines on Applicable Criteria and Standards Relating to the Detention on Asylum Seekers (Geneva 1999) ;G Goodwin-Gill, 'Article 31: Non-penalization, Detention, and Protection' in E Feller, V Turk and F Nicholson (eds), Refugee Protection in International Law: UNHCR's Global Consultation on International Protection (CUP, Cambridge 2003) 185.  Contrarily, the 2011 regulations implicitly condone detention of asylum seekers whilst their applications are assessedSee eg section 1 of the 2011 regulations. and are silent regarding detention of individuals prior to assessment of their application, and of nationals of 'enemy' or 'hostile' states who are ineligible to submit asylum application but cannot be deported from Israel (see above). Such detention policies seem to be treaty-incompatible.

As noted above, 'permit 2(a)(5) holders' whose applications are not assessed, yet are non-deportable may hold such permits for an indefinite period, whilst they cannot provide for themselves. The only 'solution' insofar as provision of basic services is their detention, where the state is obliged to provide these services. Indeed, the government has announced its intention to a build a holding camp near the Egyptian border where individuals who have 'infiltrated' the Egyptian border will be held until such time as they can be deported, even if they wish to apply for asylumSee November decision (n18) section 2..

It is noteworthy that the government ordered PIBA to facilitate an assessment of asylum applications whilst applicants are detained in order to reduce the number of cases where asylum seekers who may be deportable receive temporary residence permits, unless they are found to be eligible for refugee statusIbid section 4(a). . The underlying assumption that an 'infiltrator' is deportable unless proven otherwise reverses the presumption to this effect under the refugee convention.

Legislative Proposal: Israel Immigration Bill

Last October, the Kadima party (joined by a few other MKs) tabled a private member's bill titled 'Israel Immigration Bill'.5571-2010, P/18/2647 (submitted on 11 October 2010, awaiting preliminary reading). The proposal applies to foreign nationals who wish to enter Israel and/or reside temporarily or permanently but do not satisfy the Law of Return 5710-1950, published in Sefer Ha-Chukkim No 51, 21 Tammuz 5710 (5 July 1950) at 159. criteria.

The proposal aims to regulate the grant of refugee status, for the first time in Israel's history (it also offers new arrangements regarding family and work migrants). The particulars of the proposal will be discussed at length separately. For our purposes, regarding eligibility for asylum, section 32(4) of the proposal stipulates wider restrictions on eligibility than those currently sanctioned by section 10 of the 2011 regulations: if adopted, the minister of the interior will not be authorised to issue entry permits or leave to remain to residents of an 'enemy state', 'an area controlled by an enemy', or a 'dangerous state or region'.

Section 2 of the proposal defines a 'dangerous state or region' as a state or region which the government, in a decision which was officially published regards as potentially endangering Israeli national and security interest. The proposal does not include a suggested list of such states. 'Enemy' is defined based on its definition in section 91 of the Penal Code 5737-1977, published in Sefer Ha-Chukkim No 51, 20 Av 5737 (4 August 1977) at 226. , and includes terror organisations. The proposal does not define an 'enemy state'; hence, the legal basis thereof is unclear. Under the proposal, the above eligibility restrictions apply without exceptions.

Final Observations

Sixty years after the drafting of the refugee convention, Israel, one of its initiators and a state party since 1954 has not incorporated it into its domestic legislation. More fundamentally, it acts in contravention of some of its basic principles, which require conducting individual refugee status determinations without regard to the nationality of the asylum seekers; refraining from punishing border crossers if their intention was to submit an asylum application; restricting detention to the minimal necessary period and persons, based on an individual risk assessment; and guaranteeing access to social services, a fortiori, whilst the asylum application is assessed.

Sudanese and Eritrean nationals are currently ineligible to submit asylum applications. Concurrently, Israel recognises that it cannot deport most of them back to Egypt (from which they have crossed into Israel), since Egypt may return them to their respective countries of origin, where their lives or liberty may be in danger. As noted above, they are issued 'permit 2(a)(5)' which denies them access to social security and nonemergency medical services, and does not entitle them to work. Many 'permit 2(a)(5)' holders are held in detention for lengthy periods. The construction of the planned detention centre will facilitate the expansion of these detention policies. Similar permit and detention policies apply to individuals whose asylum applications are pending. Such policies are untenable both from a legal and from a humanitarian perspective.  It is imperative that Israel follow its obligations under the refugee convention.


Reuven (Ruvi) Ziegler is a researcher conducting research as part of IDI's Constitutional Principles and their Implementation Project. He is a D.Phil. (Doctoral) Candidate in Law at Lincoln College, University of Oxford.