Introduction
For the past few years, foreign nationals have been entering Israel illegally and seeking asylum. The entry of numerous foreign citizens in Israel, concentrated in the southern neighborhoods of Tel Aviv, poses problems for the government, which the government so far has failed to resolve. Most of the foreign nationals come from Eritrea and Sudan, and have undergone hardships and difficulties in reaching Israel. At the end of a difficult journey from their home to Israel, the foreign nationals must deal with regulating their status and learning how to live in Israel.
These foreign nationals view themselves as refugees, as they are seeking refuge in Israel and would like a better life in Israel. They offer cheap labor; they live and work in Israel. Also, they speak Hebrew and establish families in Israel.
Over the years, the arrival of foreign nationals or asylum seekers has sparked many controversies about how long they will stay and their immigration status. There are additional concerns about crime and neighborhoods becoming too densely populated due to more people living in apartments intended for fewer people. People are also concerned about adding more people to the work force and creating more unemployment.
International Law
Asylum seekers from Africa are ostensibly looking for refuge away from their home countries because of dangers posed to their lives due to the precarious political situations over the last decade. Their home countries have had a series of natural disasters and civil wars. The asylum seekers want Israel to recognize them as refugees and allow them to stay and live in Israel.
According to International Law, asylum seekers cannot be deported and sent back to their home country when they face real danger in their home country. Israel is a signatory to the International Convention Relating to the Status of Refugees, which became effective in 1954, and the Protocol Relating to the Status of Refugees, which became effective in 1967 and which extended the original Convention. Israel ratified the Protocol on June 14, 1968. As a signatory, the State of Israel accepts the provisions of the Convention and Protocol and is subject to its provisions.
The definition of refugee under the Convention
“A refugee, according to the Convention, is someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion.”
Further, the Convention prohibits the expulsion of refugees, and lists the basic human rights granted to refugees in the country of asylum. One of these rights is the freedom of occupation, as seen in the following language from the Convention:
“The Contracting State shall accord to refugees lawfully staying in their territory the most favorable treatment accorded to nationals of a foreign country in the same circumstances, as regards the right to engage in wage earning employment.”
Israeli Law
Right now, the legal situation is that asylum seekers submit their requests to be recognized as refugees, and these requests are pending for a long time. The Israeli government recognizes that these asylum seekers cannot be deported because of the risks they face in their countries of origin. If Israel recognized the asylum seekers as refugees, the government would grant the asylum seekers social and labor rights, as well as other rights. In practice, the government does not recognize the asylum seekers as refugees, which means in practice they are denied rights under the Convention.
Although Israel has ratified the Convention and asylum seekers and refugees are entitled to the rights of the country of asylum, the Israeli government refuses to regulate their status accordingly. For example, hundreds of asylum applications are filed but not monitored and evaluated. The Ministry of the Interior (“MOI”) grants temporary visas to some asylum seekers, but these visas do not include labor rights and social rights.
Actions taken by the Israeli government to manage asylum seekers
The number of foreign nationals arriving in Israel requires a real solution, and to this end the government took several measures:
- The establishment of a security fence to prevent the entry of foreign immigrants from Egypt. The security fence and increased enforcement policy of the MOI has led to a reduced number of people entering Israel.
- Amendment of the 1954 Prevention of Infiltration Law. In 2012, the law was amended to allow the government to detain foreign nationals without trial for three years.
- The government began encouraging voluntary departure by providing financial assistance and grants to asylum seekers willing to leave Israel and return home.
Discrepancy between principles and political interests
The above demonstrates a problematic situation for Israel and for the foreign nationals. On the one hand, Israel is a signatory to a treaty requiring the Israeli government to grant rights to asylum seekers and refugees. On the other hand, Israel is trying to minimize the damage caused by the presence of foreign citizens in Israel. Some argue that the Convention does not block the gates to asylum seekers; instead there is help for them and the government considers each request on its own merits. In practice, the government blocked the gates to asylum seekers by not reviewing the pending applications. As a result, thousands of foreign nationals are left with temporary visas and an inability to survive in a reasonable manner.
The contrast between the interests of the state to deal with the presence of many foreign nationals and obligations under international law often leads to decisions and actions that are inconsistent. This trend is evident to all, and the cries are heard many times by different human rights organizations. For example, some human rights organizations have filed petitions to the Supreme Court in order to effect change. These organizations have been successful in the past by getting a ruling from the Supreme Court that the state cannot penalize employers for employing asylum seekers, even if these workers do not have the proper work visa. Recently, the Court again came to the aid of asylum seekers. On September 16, 2013, the Supreme Court made an unprecedented decision – the Court eliminated the provisions of Article 30 of the Prevention of Infiltration Law. Article 30 had allowed the detention of asylum seekers for up to three years. The Court explained that Article 30 went against Israel’s basic laws on human dignity and liberty, and its provisions do not meet the test of proportionality. In fact, the principle of freedom protected by Israel’s basic laws had excluded hundreds of foreign nationals; this damage is disproportionate. The Court further explained that the purpose of the law is to not encourage the settling of foreign nationals in Israel. The Honorable Judge Arbel explained that although the deterrent aspect of the law raises a few difficulties, the reason provisions of Article 30 must be eliminated is because Article 30 does not meet the test of proportionality due to the intensity of the assault on human dignity.
Epilogue
The harsh reality is that Israel is dealing with thousands of foreign nationals, from Africa, who are seeking help and assistance. It seems that the state at a loss because it is difficult to find an appropriate solution that is consistent with the principles of international law and the needs of the citizens of the State of Israel. This disagreement can be seen in the few cases where the courts intervened in the laws of the Knesset.
In our opinion, until now the government’s approach to solving the problem has been to remove foreign nationals. The government has encountered difficulties in this approach. There is reason to examine the integration of foreign nationals in Israel to make it easier for them to return to their home countries.
All said and explained in this article does not constitute a legal opinion and does not replace legal advice. Responsibility for using the wordings and opinions conveyed in this article relies solely and entirely on the reader.
This article was written by Dotan Cohen Law Offices, working in the field of immigration law in the United States, Canada, Australia and England.
