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VII. Treatment of Refugees, Asylum Seekers, and Migrants in Israel

Israeli immigration authorities have absorbed large numbers of immigrants in recent decades, such as the 950,000 Jewish immigrants from the countries of the former Soviet Union between 1989 and 2003 or the 15,000 Ethiopian Jews airlifted over two days in 1991.²²⁹ By 2003, Israel had also admitted an estimated 300,000 migrant workers, mainly from Asian and Eastern European countries, as part of a policy to use migrants “to replace Palestinian workers,” whom largely ceased to fill difficult, low-paying jobs in Israel after the “first intifada” ended in 1992 and especially since the “second intifada” began in 2000.²³⁰

By comparison, the 13,000 arrivals to Israel from various African countries over the past three years is a relatively small number. Many of those who cross the border from Sinai appear to fill the same niche in the Israeli labor market as do other migrant workers.²³¹Virtually all of them have registered for asylum with UNHCR Israel. There is, however, little institutional capacity to deal with this number of non-Jewish asylum seekers.²³² Israel lacks national legislation incorporating its obligations under the Refugee Convention, and its asylum procedures are under-resourced.

The result has been an enormous backlog in asylum applications. In his annual report, submitted to the Knesset on May 20, 2008, State Comptroller Micha Lindenstrauss examined the cases of asylum seekers who entered Israel via the Sinai border since 2005. Israeli authorities recognized as refugees only 11 of 909 asylum applicants in 2005; 6 of 1,348 applicants in 2006; and 3 of over 3,000 applicants in the first nine months of 2007. The comptroller’s report found that officials took six months to reject asylum seekers and almost three years to decide cases deemed worthy of adjudication. Refugees had no access to healthcare and welfare services during that period.²³³

Israel’s Refugee Status Determination Process

Detention as default for illegal entrants at the Sinai border

Israeli law considers that all persons who cross the border into Israel without authorization are illegal “infiltrators” subject to mandatory detention, under the Prevention of Infiltration law of 1954,²³⁴ prior to being allowed to apply for asylum. As one official told Human Rights Watch, “Infiltrators of the Egyptian border are arrested and transferred to IPS [Israel Prisons Service] detention facilities because they are breaking the entry laws of Israel and are criminals. Anyone eventually recognized as a refugee is not detained.”²³⁵ Until they are recognized as refugees, however, applicants may be detained.

Due to a successful court challenge in 2007 by refugee rights NGOs against the Prevention of Infiltration law, Israel no longer subjects border crossers to indefinite and unreviewable detention (see below).

The Israeli Defense Forces detains the vast majority of persons who illegally cross the Sinai border for an initial period, usually a few days, at camps near the border. During this initial detention, the IDF determines whether border-crossers are “security threats.” It sends those who are not to detention facilities where the authorities apply the Entry into Israel law of 1952.²³⁶  Those who are security threats are referred to unspecified procedures normally used in such cases.

The Entry into Israel law and individual status determination

The Entry into Israel law permits the detention of irregular arrivals for up to 4 days prior to a detention review hearing where the individual may be represented by a lawyer.²³⁷ Rejected asylum applicants may appeal the ruling to local administrative courts. The Entry law instructs authorities to release immediately detainees who promise to “cooperate,” meaning that they are willing to leave the country if released from detention, but those who say they are seeking asylum status, and thus do not intend to leave Israel, are for purposes of the law considered “uncooperative.”²³⁸ In such cases, detention review officials contact UNHCR, which conducts initial refugee status determination interviews according to internal, Ministry of Interior regulations issued in 2001.²³⁹ Based on these regulations, UNHCR Israel is responsible for conducting first-instance refugee status determination and submitting recommendations to the National Status Granting Body.²⁴⁰

The prime minister’s office told Human Rights Watch, “A person recognized as a refugee [by the NSGB] will receive an A-5 permit to stay in Israel.” The official continued,

Infiltrators from countries which are temporarily dangerous or those for whom it takes too long to determine their refugee eligibility receive temporary B-1 work permits, which need to be renewed periodically. Anyone who is conclusively not a refugee remains in the detention facility and awaits deportation from Israel to his country of origin, Egypt, or a third-party country. It should be emphasized that no one is returned to his country of origin if there is any threat to his life.²⁴¹

Few refugees have actually been processed through Israel’s asylum system, which has failed to accommodate the large numbers of asylum seekers over the past several years. The NSGB deals, at best, with a few dozen cases per month.²⁴² In addition, UNHCR’s office in Tel Aviv is only two years old and was, when Human Rights Watch visited in March 2008, evidently under-staffed to deal with its responsibility, under the 2001 Ministry of Interior regulations, for conducting first-instance interviews with asylum seekers. One morning in February 2008, the office was faced with a line of some 500 applicants stretching around the block.²⁴³

Asylum seekers can appeal unfavorable decisions, whether by UNHCR or by the NGSB, but must appeal to the same body that rejected them. This appeals procedure denies asylum seekers access to the courts; further, as Israeli NGOs have pointed out, the procedure does not direct the NSGB to publish its reasons for rejecting the initial application, making it nearly impossible for the rejected applicant to know on what basis to appeal.²⁴⁴

Prolonged detention pending review

Notwithstanding the Entry into Israel law’s requirement that detention be reviewed within 14 days, authorities detain many potential asylum seekers for weeks or months. In part this is because there are fewer than 10 detention review officials in the whole country as of early March 2008.  Volunteers used to be able to visit and identify potential asylum seekers in detention, but in early January 2008 officials at a new, 1,000-bed, camp-like detention facility for migrants, next to the prison at Ketziot, limited volunteers’ access to those detainees whom they requested to see by name, making it difficult to identify and bring to the attention of the authorities new cases of migrants with international protection needs.²⁴⁵

Detention not a last resort

Detention should be a last resort, used only when a limited set of circumstances make it necessary.²⁴⁶ UNHCR guidelines, which offer numerous alternatives, state that detention should not be used against asylum seekers except as necessary in order to: (1) verify the identity of the asylum seeker if it is undetermined or disputed; (2) to determine the elements on which the claim for refugee status or asylum is based (during a preliminary interview); (3) in cases where asylum seekers have destroyed their travel and/or identity documents or have used fraudulent documents in order to mislead the authorities of the state in which they intend to claim asylum; or (4) to protect national security and public order (in cases where there is evidence that the asylum seeker’s antecedents or affiliations pose such a danger). As the UNHCR guidelines explicitly state, detaining asylum seekers for any other purposes,

for example, as part of a policy to deter future asylum-seekers, or to dissuade those who have commenced their claims from pursuing them, is contrary to the norms of refugee law. It should not be used as a punitive or disciplinary measure for illegal entry or presence in the country.²⁴⁷

Detaining asylum seekers or failing to allow detainees access to asylum procedures for unnecessarily lengthy periods, and using detention as a default for all persons including asylum seekers when alternatives are available (such as self-reporting by asylum seekers to Israeli officials), are practices inconsistent with international legal obligations. Israel, like Egypt, should act consistently with article 31 of the Refugee Convention and not penalize asylum seekers for illegal entry or detain them except as a last resort and only for the time necessary to regularize their status.²⁴⁸ Under ICCPR article 9, Israel is required to ensure that “no one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law” and that “Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.”

Detention of children

Israel’s default position to detain everyone who crosses the Sinai border includes women and children. According to the prime minister’s office,

Women and children who are not refugees are also in detention facilities as they too are breaking the law, but they are kept in separate wings with proper conditions, including playgrounds for the children and educational activities.

Israeli officials stress that detained children are well-treated, including receiving appropriate food according to Israel Prisons Service regulations. State attorney Yochi Ganessin, who has argued several cases before the High Court of Justice regarding the treatment of migrants and refugees, told Human Rights Watch,

As for unaccompanied children, if they’re under 12 they will be sheltered by the Ministry of Health and Social Welfare, who will maybe find a foster home for them. If they are over 12 they are freed from jail and put in Israeli boarding schools. It depends on the circumstances. Some kids from Sudan might still be in jail. But a lot of them fake their ages [pretend they are under 18] and have to wait for an age test, they do it by checking the wrist, and also an endocrinologist tests them for sexual maturity as a sign of age.²⁴⁹

The experiences of detained refugees and migrants did not always reflect these official policies. Human Rights Watch interviewed several children who had been detained after crossing the Israeli border from the Sinai. One, a 15-year-old Darfuri boy, said he left Sudan after Janjaweed forces killed his father in 2007. He spent 25 days traveling through Egypt before crossing the border with Israel. From IDF detention, he said,

I was put in Ketziot for three-and-a-half months, with 200 Darfuris. Then I was sent to Ramleh for around two-and-a-half months, with black people from Nigeria and Ghana. Finally they put me in Gadera for another month-and-a-half, with three Darfuris, ten Ethiopians, and two Ivorians. In Gadera they gave me some books, and I was in a room with boys only, but in Ketziot I was in a room with five people who were mostly in their 30’s. No one told me why I was in prison.²⁵⁰

In a petition against poor conditions of detention for women and children detained for crossing the Sinai border, argued before the Israeli High Court in January 2008, the Hotline for Migrant Workers pointed out that the authorities were detaining 80 children at the Ketziot facility, some since July 2007.²⁵¹ (According to the Hotline, the number as of May 2008 was 100 children.)²⁵² In October 2007 these children and their mothers were transferred to tents which are inadequately heated and in summer extremely hot. The Hotline petition noted that the tents have no storage space for personal belongings and inadequate educational and play activities for children: as of early March 2008, there were three teachers, whose classes group together ages 0 to 6, 6 to 12, and 12 to 18, meaning that 12-year-old children and young adults of 18 are in one classroom, inside a tent, with no curriculum. Social support consists of one social worker whom detainees were unaware of when Hotline volunteers were last allowed to visit Ketziot in January.

The court ruled on February 6, 2008, that “the most urgent problems are those of the extreme cold and the problem of education. We hope that the respondents will act urgently to solve those problems. … We do not think there is currently a need for legal intervention….”²⁵³ Attorneys and volunteers who have visited the facility subsequently say that conditions remain inadequate.²⁵⁴

Despite repeated requests, including a fax received on February 14, 2008, and approximately a dozen phone calls, the Israel Prisons Service denied Human Rights Watch permission to visit the Ketziot facility or to interview its chief warden.²⁵⁵

Israel’s detention of children, like Egypt’s, should be guided by the “best interests of the child” standard according to its obligations under refugee law and international human rights law.²⁵⁶ Detaining children for months in poorly heated tents without adequate access to educational materials cannot be considered as in the child’s best interests.

Family separation

Israeli authorities have split apart families that have crossed the Sinai border. Human Rights Watch spoke with two women who had recently been released from IDF custody at the border but whose husbands had been sent to jail; one woman knew where her husband was being detained, the other did not.²⁵⁷Another Darfuri woman described how IDF soldiers took two of her children from her at the border. On February 15, 2008, seven days after she arrived in Israel with her three children, the IDF bussed her 19-year-old daughter and seven-year-old son to the jail at Ketziot, but “the bus was too full” for the woman and her other daughter to board. The next day the woman and her other daughter found themselves in the Be’er Sheva bus station. “No one told me where the bus was going or where the children went, and we didn’t know where our bus was going, either.” She only discovered her children were in Ketziot two weeks later, when an Israeli NGO found them in detention. At the time she spoke with Human Rights Watch, she had not been able to visit or speak to her children, who remained in detention three weeks later, and said she was worried about her little boy.²⁵⁸

International human rights law and refugee law protect the right to family unity, and refugees, asylum seekers and other migrants are among the holders of that right.²⁵⁹ Israel’s practices in this regard violate its obligations as a state party to the Convention on the Rights of the Child.

Prima facie asylum determination and temporary protection for some groups

The procedures outlined above apply only to a minority of asylum seekers. The majority of asylum seekers in Israel are Eritrean and Sudanese, and receive temporary permission to remain in Israel based on their countries of origin rather than based on individual assessments of their particular asylum claims. Ivorians and Congolese have also benefited from group-based protection in the past, although it is unclear whether this has ceased at this writing. Thus, the majority of asylum seekers do not undergo complete refugee status determination procedures, but are instead granted temporary protection after their initial detention. It was on this basis that in 2007 and 2008, 2,000 Eritreans received renewable 6-month work permits (“B-1 visas”), and  600 Darfuris received renewable multi-year temporary residency permits (“A-5 visas”), as mentioned in Chapter III.

Indefinite Detention Struck Down in 2007, Back in Prospect in 2008

2007 Challenge to the Prevention of Infiltration Law

In April 2006, refugee and migrant rights groups brought a legal case before the High Court of Israel against the government’s application of the Prevention of Infiltration law so as to indefinitely detain Sudanese nationals, in contravention of rights enshrined in Israeli law.²⁶⁰ The Court required the State to provide Sudanese detainees the ability to have their detention judicially reviewed.

Background: Prolonged and Arbitrary Detention of Sudanese

The first wave of arrivals into Israel via the Sinai, in 2005 and 2006, consisted primarily of Sudanese nationals. Israel has no diplomatic relations with Sudan, which it considers an enemy state. Israeli authorities applied the 1954 Prevention of Infiltration law to the Sudanese arrivals.²⁶¹ The law authorizes detention of “enemy nationals” without review in order to facilitate their deportation. Israel thus detained refugees fleeing from persecution by the Sudanese government on the grounds that they were, in some way, agents of that government—an irony that has led some to speculate that Israel’s central concern was to discourage any further Sudanese migrants from attempting to make the journey.²⁶²

Currently, IDF soldiers briefly detain virtually all migrants who enter Israel from Egypt; the IDF then transfers them to the custody of the Israel Prisons Service (IPS), although the IDF has simply released large numbers of detainees who were initially detained at times when no prison spaces were available.²⁶³ From 2005 until the July 2007 court ruling, the IPS detained the Sudanese migrants for extended periods under the Prevention of Infiltration law.²⁶⁴ Human Rights Watch spoke with several Sudanese men who had formerly been detained for over a year without access to lawyers. One of them, jailed for 16 months, “most of the time in the same clothes from when I crossed the border,” said he knew another Sudanese man who was detained for 23 months before his release.²⁶⁵ According to Ran Cohen, of Physicians for Human Rights – Israel, “no one even knew the Sudanese were in detention until the Hotline [for Migrant Workers, an Israeli legal aid NGO] found them during prison visits.”²⁶⁶

Detention made it impossible for these detainees to make asylum claims on their own accord, even though, in some cases, judicial authorities recognized their right to do so. Two months after he was detained, O.B. was taken to another prison, where after another two months he was interviewed by a UNHCR delegation from Geneva.

Then a while later I was interviewed by a judge. He told me to contact Anat Ben Dor [a lawyer who works with Tel Aviv University’s refugee law clinic]. I said, there are no phones in the jail! He said, just ask Anat. I never could. And I never talked to UNHCR Israel.²⁶⁷

Another man, A.J., said that after prison authorities initially told him that he would be deported to Egypt, three months passed before International Committee of the Red Cross (ICRC) representatives visited him. A month later, he had his first UNHCR visit; he was finally released 11 months later, in March 2007, after almost a year-and-a-half in jail.²⁶⁸

These long periods of detention without judicial review appear to violate Israel’s ICCPR obligation to allow “[a]nyone who is deprived of his liberty by arrest or detention … to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful” (article 9). 

Proposed Legislation Reinstating Indefinite Detention

A proposed law, which passed its first reading in the Knesset in May 2008 (and is presently being revised before being submitted to the second of three readings), would reinstate the harshest provisions of the Prevention of Infiltration law. According to the draft law’s “Explanatory Notes,” the government is proposing the law because “[i]n the past few years the State of Israel has witnessed an increase in the phenomenon of infiltrators into Israeli borders, not at border crossing points, and especially through the border with Egypt.”²⁶⁹ The Notes state that “after examining the circumstances of infiltration, it was found that most of the infiltrators to Israel during the last years were not security related.” Yet the Notes then assert, inconsistently, that “due to the security nature of the infiltration phenomenon, the proposed arrangements are severe” because the “assumption is that a person who infiltrates through the legal border of the State does so with the intention to do harm.”²⁷⁰

The bill seeks to write into law the “coordinated returns” procedure (see Chapter V) by authorizing the detention of all “infiltrators”—defined as anyone who knowingly entered Israel via a non-authorized border crossing—pending their deportation within 72 hours of their entry into Israel.²⁷¹ The bill would sentence anyone arrested who was found to have infiltrated more than three days’ previously to a minimum of five years’ imprisonment, or seven years’ for persons from a list of 10 “enemy” countries or territories, including Sudan. The bill asserts that persons deemed not to be security risks could be transferred to detention under the Entry into Israel law, which provides for judicial review of detention (as discussed above), but it includes no procedures guiding this transfer.²⁷²

The bill provides for the review of detention within 14 days by an appointed adjudicator, and also sets forth criteria for the release of “infiltrators” on bail in enumerated “exceptional cases,” including if detention would cause damage to the health of the person in question due to age or illness, “other humanitarian reasons,” or if release would assist in deportation proceedings.²⁷³ However, these exceptional provisions would not apply if the person did not “fully cooperate” in his own deportation; if his release might endanger state security, public safety or public health; or “the relevant security authorities have filed an opinion according to which in the infiltrator’s country of origin or in his area of residence, there is activity which might endanger the security of the State of Israel or its citizens.”²⁷⁴ The proposed bill does not include any procedure by which the “infiltrator” could appeal this security determination.

Arrests of Asylum Seekers

In several sweeps during late February and early March 2008, immigration police in Tel Aviv and Arad arrested and detained over 300 asylum seekers and migrants, even entering three privately operated shelters without warrants. Immigration police also arrested Sudanese migrant workers in Eilat, and requested hotels that employ them as cleaners to provide their pictures, names, and addresses.²⁷⁵ The round-ups were based on instructions from national police operations head Berti Ohayon, issued on February 27, 2008, to “arrest 2,100 migrants” during “seven days of operations.”²⁷⁶Many of those arrested held papers indicating they had appointments to be interviewed by UNHCR Israel, or more formal UNHCR protection documents recognizing them as asylum seekers. Others were arrested despite carrying papers indicating that they had previously been imprisoned when entering Israel and released after detention review tribunals found that they did not constitute a threat.

None of those arrested on this occasion were deported, although this was very nearly not the case: On March 6, three Ivorian registered asylum seekers contacted the Hotline for Migrant Workers six hours before they were to be deported by plane to Abidjan by the Israeli Immigration Authority.²⁷⁷ The three had been forced to board the plane before UNHCR successfully intervened and the three were returned to prison.²⁷⁸

Human Rights Watch spoke to several persons who had been arrested during the sweeps, the majority of whom Israeli authorities had released after four days. The arrests, detentions, and subsequent releases were conducted on an apparently ad hoc basis. The persons we interviewed included a man who had just returned from detention to his lodging in a converted bomb shelter in Tel Aviv’s Levinsky Park, now used by asylum seekers. “Ayoum and I were arrested on Monday,” he said, referring to a friend from the shelter.

We both have the same UN documents, which are good for three months [recognizing them as asylum seekers]. I was released on Thursday at 4 p.m., but he is still in jail. We were moved to two jails [during our four days in detention]; the last one was in Ashkelon, that’s where they released me.”²⁷⁹

The arrests and detentions separated migrant families and predictably caused anxiety among them. Most speak no Hebrew and had no access to information about changes of official policies towards them. “There are rumors now that they will send people back to Egypt even [if] they are carrying [UNHCR protection] papers,” one asylum seeker in Tel Aviv told Human Rights Watch, “so people are all staying locked up inside.”²⁸⁰ While some said that they did not believe Israel would actually deport them to countries where they faced persecution, others appeared afraid that it was a real possibility.

In addition, government policy may be affecting the attitudes of the police towards asylum seekers and other migrants. A Southern Sudanese asylum seeker in Tel Aviv described the following incident:

I work at night. When I was leaving work the chain of my bicycle was pulled down. I was fixing it when people surrounded me, they said I could raise my hands up, or I could be killed. I raised my hands, and they took the 400 shekels I had on me. I went to my friend … who knows Hebrew, and we went to the police together. We went at 12 midnight. We stayed there until morning. The police told us to leave, and we’ll call you back. So we came back at noon and the police there threatened that they were going to deport me.²⁸¹

After a February 2008 order from the Ministry of Interior banning new asylum seekers and those whose work visas had expired from living in the Tel Aviv metropolitan area, since July Israeli police have conducted further rounds of arrests and shut down privately-run refugee shelters in the downtown area. At least 200 African migrants and asylum-seekers were detained.  The Hotline for Migrant Workers told Human Rights Watch on October 19 that many of them remain in detention.

Israel’s repeated detentions of registered asylum seekers does not meet criteria set out by UNHCR guidelines (see discussion of Egypt’s detention of people at its southern border, in Chapter VI). The detention of recognized asylum seekers and refugees whose protection documents, work permits, and related documents had not expired also violates Israel’s obligations under the ICCPR. According to the Human Rights Committee, the body of experts tasked with overseeing states’ implementation of the ICCPR, “An alien who has entered the state illegally, but whose status has been regularized, must be considered to be lawfully within the territory,” and as such cannot have his freedom of movement, or the other rights attached to legal residency, restricted.²⁸²