No Asylum for 'Infiltrators': The Legal Predicament of Eritrean and Sudanese Nationals in Israel
(2015) 29(2) Journal of Immigration, Asylum and Nationality Law 172-191
20 Pages Posted: 19 Jul 2015 Last revised: 30 Sep 2015
Date Written: June 1, 2015
This article explores the precarious status of Eritrean and Sudanese nationals in Israel. Having crossed the Israeli-Egyptian border without authorisation and not through an official border crossing, Israeli law defines such individuals as ‘infiltrators’, a charged term which dates back to border-crossings into Israel by Palestinian Fedayeen in the 1950s. Eritreans and Sudanese nationals constitute over 90 percent of ‘infiltrators’ in Israel. Their livelihood is curtailed through hostility, sanctions, and detention, while (at the time of writing) Israel refrains from deporting them to their respective countries of origin, recognising that such forced removal could expose them to risks to their lives and/or freedom.
Notably, Israel was the 10th state to ratify the 1951 Refugee Convention, and has acceded to its 1967 Protocol which removed the 1951 Convention’s temporal and geographic restrictions, yet it has not incorporated these treaties into its domestic law not has it enacted primary legislation that sets eligibility criteria for ‘refugee’ status and regulates the treatment of asylum-seekers. Israeli law also fails to accord subsidiary protection status to persons that the state considers to be non-removable, whether or not they satisfy the definition of a ‘refugee’ under the 1951 Convention. Absent legal recognition of ‘refugee’, ‘asylum-seeker’, and ‘beneficiary of subsidiary protection’ statuses, Eritreans and Sudanese nationals are left in legal limbo for an indefinite period qua irregular non-removable persons. This article takes stock of their legal predicament.
The analysis proceeds in five parts. Part A situates the non-regularisation of asylum in Israel in a historical-political context, and sheds light on the role of international law obligations in Israeli jurisprudence, particularly in relation to the application of non-refoulement. Part B explores the precarious legal status of Eritreans and Sudanese ‘infiltrators’ in Israel. The state’s Refugee Status Determination (RSD) process (which, until 2013, they could not access) sports a dismal 0.25% recognition rate. Meanwhile, as non-removable ‘infiltrators’, Eritreans and Sudanese nationals are subject to a rights-restrictive Conditional Release Visa (CRV) regime, and to (seemingly inconsistent) policies regarding their access to employment. Prospects for regularisation of their status are dim. Part C describes how the Knesset, Israel’s parliament, on three occasions (in 2012, 2013 and 2014) enacted legislation mandating various forms of detention of ‘infiltrators’. The Israeli Supreme Court, sitting as a High Court of Justice (HCJ), quashed the first two enactments for disproportionately violating the constitutional rights to liberty and human dignity to which ‘every person’ is entitled under Israeli law. A petition against the third enactment is pending. The state’s overt aims in pursuing the policies explored in Parts B and C are to encourage ‘infiltrators’ to depart (which includes offering them financial incentives) and to discourage new ‘infiltrators’ from arriving. Part D demonstrates how the legal treatment of ‘infiltrators’ dovetails a prevailing political discourse which considers the ‘infiltration’ phenomenon to pose demographic, national, and personal security threats. Part E concludes by submitting that regularisation of asylum in Israel is long due.
Keywords: refugees, asylum-seekers, Israel, RSD, Eritea, Sudan, subsidiary protection, 1951 Covention
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