Detention of African Asylum Seekers: Welcome to Round Three

Publication by a member of the Interest Group: Ruvi Ziegler

In a previous post, I analysed the Israeli High Court of Justice’s (HCJ) judgment in Gebrselassie v. Knesset et al (partial summary of the judgment in English), in which the Court held the ‘Law for the Prevention of Infiltration (Amendment No. 4)’ (full text in Hebrew) to be unconstitutional and quashed it. The judgment extended a 90 day transition period, which was due to lapse on 22 December 2014.

On 8 December 2014, hours before dissolving itself in preparation for early elections arranged for 17 March 2015, the Israeli Parliament, the Knesset enacted (by a 47 to 23 majority, with 3 abstentions) the ‘Law for Prevention of Infiltration and Ensuring the Departure of Infiltrators from Israel’ (full text in Hebrew). Under the new legislation, ‘infiltrators’ who enter Israel and cannot be deported will be automatically detained for three months at the Saharonim prison in the Negev desert (reduced from one year under the quashed legislation). ‘Infiltrators’ already in Israel, as well as new arrivals (following their three months’ detention) can be detained at the Holot detention centre for 20 months (as opposed to indefinite detention under the quashed legislation).Over 2,200 persons are currently held in Holot pursuant to the quashed legislation; they are expected to remain for what is now fixed-term detention.

The detainees will be required to report for a headcount between 8 and 10pm every night, and the detention centre will be locked shut at night. While the length of detention was shortened, its prison-like characteristics (managed by the Israel Prison Service, which conducts searches on persons entering and leaving the facility), the fact that detainees are barred from working, and the facility’s remote location in the Negev desert are likely to render the possibility to leave the facility at daytime rather futile. Moreover, violation of the sign-in conditions can lead to up to four months’ detention in the closed facility, at the discretion of the Population, Immigration and Borders Authority.

In the two previous ‘rounds’ of litigation, the HCJ unveiled the unsoundness of the overall state policy. On one hand, Israel recognises the fact that Eritrean and Sudanese nationals cannot be deported. On the other hand, it detains them in an effort, now explicitly manifested in the legislation’s title, to entice them to leave. It is worth reiterating Justice Uzi Vogelman’s main opinion in the above HCJ judgment, stressing [193] that ‘the question is not only quantitative – what is the maximum constitutional length of time for detention in custody – but also (and perhaps primarily) qualitative – whether it is permissible to detain a person not subject to effective deportation proceedings. To this question I respond…absolutely not.’

Since the legislation applies to ‘infiltrators’ who according to the state’s determination cannot be deported, persons detained will be released after 20 months without any plan for regularisation of their precarious legal status (see my post). Indeed, the legislation also amends the ‘migrant workers law 1991’, imposing financial sanctions on the (majority of) non-detained ‘infiltrators’ who are in un-regularised employment: they will not receive severance pay or pensions to which other Israeli workers are entitled. Instead, their employers will have to deposit 16% of the salary in a separate account, and to deposit further 20% of their salary on behalf of their employees. This money will be ‘released’ only upon the employees’ departure. Hefty fines are imposed for breaches. The legislative aim is two-fold: encourage asylum seekers to leave, and discourage employers from employing them. The immediate outcome will be further destitution, especially as ‘infiltrators’ do not receive benefits or state assistance.

A petition to the HCJ challenging the constitutionality of the legislation is imminent. The HCJ, faced with detention legislation premised on the same tenets found to be unconstitutional less than three months ago, will be forced into an making an unsavoury choice: quash the legislation for the third time, an unprecedented move in the state’s history, and face real risk of legislative attempts in the next parliament to limit its judicial review power; or uphold it based on a proportionality analysis, permitting arbitrary detention of persons in need of international protection. Stay tuned-it will be a hot winter.

Dr. Reuven (Ruvi) Ziegler s a Lecturer in Law at the University of Reading.

This article was cross-posted on the Oxford Human Rights Hub

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UNHCR seeks comments on two new guidelines

UNHCR is seeking comments on two new proposed guidelines, one on Article 1D and its application to Palestinian refugees, and the other on the definition of ‘habitual residence’. The deadline for submission is 9 January 2015.

All stakeholders, including States, other UN and regional human rights mechanisms, UN organisations or specialised agencies, National Human Rights Institutions, Non-Governmental Organisations (NGOs), research institutions, and academics are invited to provide their comments in writing to HQPPLAGL [at] unhcr [dot] org indicating in the subject the title of the relevant Guidelines on International Protection.

For more information, click here, and for some comments on Article 1D, click here.

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Call for Papers: Regulating ‘Irregular’ Migration

The Faculty of Law, National and Kapodistrian University of Athens organises a conference titled ‘Regulating ‘irregular’ migration: International Obligations and International Responsibilities’. The conference will be held on 20 March 2015 in Athens.

The conference aims to address the contemporary phenomenon of ‘irregular migration’ against the background of international law, including the law of international responsibilities. Special emphasis will be placed on the measures that states and international organisations undertake in order to control ‘irregular migration’, the respective obligations of states and the responsibility issues that may arise.

The keynote speech will be delivered by Professor Guy Goodwin-Gill (University of Oxford). Early-career researchers in the field of legal regulation of migration, including PhD students, are invited to present their work in progress. Abstracts of papers (not exceeding 300 words) should be addressed by 15 January 2015 to the conference convenors.

More details con be found here

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EU Court of Justice: no more detailed sexual questions in gay asylum cases

The European Court of Justice has ruled today on 2 December 2014 that detailed sexual questions, intimate videos and ‘medical tests’ are no longer permissible to assess the credibility of people seeking asylum on the basis of their sexual preference. However, ‘stereotyped notions’ may still be used as an element for the credibility assessment.

The judgment of the Court was based on three homosexual African refugees who had seen asylum claim in the Netherlands rejected, based on the argument that these refugees did not credibly prove their homosexuality. The Court ruled that although self-declaration of homosexuality was not enough to verify a claim, a late declaration is not sufficient either for a claim to be ruled not credible.

For the entire judgment, click here.  

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New master track in International Migration and Refugee Law

The Vrije Universiteit (VU) Amsterdam is introducing a master in International Migration and Refugee Law as of September 2015. The master track will address international migration from the perspective of international and European law, and focus on the way these legal orders function in domestic legal orders. The interplay between international, European and domestic law is a specific focus of the track.

The International Migration and Refugee Law track is one of the full time, one year specializations within the VU Master of Laws Master’s programme, consisting of 60 EC in total. Students will follow:

  • an in-depth course on Migration and Refugee Law, as well as a course on Legal Remedies for Migrants.
  • a range of elective courses, covering topics as diverse as irregular migration, human rights, European law, labour and social security law, transnational law and Dutch Migration Law (Migratierecht) so that you can tailor your Master’s programme to your particular interests
  • a special elective course is the Migration law Clinic
  • students will write a graduation thesis on a topic related to Migration and Refugee Law.

For more information, click here

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Call for papers: Nordic Asylum Law Seminar 7-8 May 2015

Originally posted on Interest Group on Migration and Refugee Law:

The Lund / Uppsala Migration Law Network (L/UMIN) in co-operation with the Faculty of Law, Uppsala University, are organising the 2015 Nordic Asylum Law Seminar, 7-8 May, in Uppsala (Sweden). The Seminar offers a forum for exchange and dialogue on issues related to domestic, European and international refugee and asylum law between scholars, governments, judicial institutions, practising lawyers and civil society in the Nordic and Baltic context.

The overarching theme for this Seminar is Unequal Treatment: The Root of All Claims for Protection? The chosen theme is to be interpreted broadly and to include material as well as procedural aspects of determination of refugee or complementary protection status. The Seminar consists of plenary sessions with renowned keynote speakers and workshops were papers submitted by scholars and other participants will be commented and discussed. Junior scholars are particularly encouraged to submit and present papers.

Abstracts (no more than 400 words) should be…

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Reflaw.org, a new online forum in refugee law

The University of Michigan has published a new online forum offering critical analysis on important new cases, legislation, and emerging issues in refugee law. Reflaw.org publishes both longer articles analyzing the implications of law or policy, as well as shorter notes on global current events that may impact refugee law. Its aim is to aid practitioners, scholars, and students of refugee and asylum law in staying abreast of ongoing issues in the field.

Please click here to go to the new website. 

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Vacancy: Post-doctoral Researcher in Integration / Repatriation Policy of Refugees

The BICC (Bonn International Center for Conversion) is seeking a Post-Doctoral Researcher in Integration / Repatriation Policy of Refugees. It’s a full-time position – the initial contract period is three years (subject to funding), and the starting date is 1 January 2015.

The researcher will be actively involved in a team carrying out a three years research project on durable solutions to protracted refugee crises funded by the BMZ. The tasks of the researcher will include several phases of field research and the writing of academic and policy papers. The regional focus will be on the Middle East, Afghanistan/Pakistan, Western Africa as well as the Great Lakes Region. BICC aims to establish a long-term research focus on refugees.

For more information, click here.

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The (ab)normality of migration and the legal position of migrants under international law

Call for blog submissions

The ESIL Interest Group on Migration and Refugee Law seeks to organize a blog symposium in the Fall/Winter of 2014 on the topic of the (ab)normality of migration.

Migration is a normal part of life, and always has been. Cells migrate, birds migrate and, of course, humans migrate. Human migration is a constant in the history of the world. Migrants make up a steady 3% of the world’s population. As the world’s population grew, the number of migrants grew with it. But this has not changed the percentage: it continues to be roughly 3%. People have always sought new and better homes, for varying reasons. Of course, some of the underlying reasons for migration should not be accepted as normal, such as persecution, war and natural disasters. However, such forced migration only accounts for a small percentage of overall migration. Moreover, the causes of a phenomenon should not be conflated with the phenomenon itself: the observation that some of the causes for migration are not normal does not detract from the fact that migration is a normal phenomenon.

Despite the normalcy of migration, it appears that we have come to treat migration more and more as an abnormality in recent times. Many policies bear testimony to this development; one need only think of increasing restrictions on family reunification, measures of migration-related detention, and the introduction of civic integration tests. At the same time, countries crucially depend on migration; either upon the (un)skilled workforce it delivers, or upon the revenue it creates. Policies introduced therefore aim to limit and shape migration, so that only the wanted embark on the journey. Migration is thus increasingly seen as an abnormal phenomenon that must be controlled, and the person of the migrant has become the object of such limiting, discouraging, and/or selective policies. The question therefore arises what this means in terms of the legal position of migrants under international law.

The blog symposium will feature three or four longer contributions by different members of the interest group. The objective of the blog symposium is two-fold. First, members select a policy and describe how, according to them, it fits within the broader trend identified above. Second, members critically engage with the selected policy and analyse how it affects the legal position of migrants under international law. The blog symposium will preferably be published on EJIL:Talk! which, in light of its large following and professional approach, is the most appropriate outlet. Contributions are not subject to a word limit, but should in principal not exceed 1000 words. Contributions are reviewed by the Coordinating Committee of the interest group and/or editors of EJIL:Talk!.

Members of the Interest Group are invited to participate in this symposium. If you would like to do so, please send an e-mail to lisa-marie.komp [at] law-school.de by Wednesday, November 5.

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Call for papers: Nordic Asylum Law Seminar 7-8 May 2015

The Lund / Uppsala Migration Law Network (L/UMIN) in co-operation with the Faculty of Law, Uppsala University, are organising the 2015 Nordic Asylum Law Seminar, 7-8 May, in Uppsala (Sweden). The Seminar offers a forum for exchange and dialogue on issues related to domestic, European and international refugee and asylum law between scholars, governments, judicial institutions, practising lawyers and civil society in the Nordic and Baltic context.

The overarching theme for this Seminar is Unequal Treatment: The Root of All Claims for Protection? The chosen theme is to be interpreted broadly and to include material as well as procedural aspects of determination of refugee or complementary protection status. The Seminar consists of plenary sessions with renowned keynote speakers and workshops were papers submitted by scholars and other participants will be commented and discussed. Junior scholars are particularly encouraged to submit and present papers.

Abstracts (no more than 400 words) should be sent to seminar [at] migrationlawnetwork [dot] org by Monday 26 January 2015.

Click here for more information.  

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