The Israeli Asylum System: Contemporary Challenges in Comparative Context
In recent years Israel is faced with the challenge of having to deal with increasing numbers of asylum
seekers entering it clandestinely through its long continental border with Egypt. However, Israel has yet
to form a coherent, consistent policy on the treatment of those asylum seekers, although different
policy measures have been implemented. Additionally, although Israel is a signatory to the 1951
Convention Relating to the Status of Refugees, Israel did not incorporate the convention into its
domestic legislation, and the (few) rights of asylum seekers and refugees are grounded only in internal
procedures of the ministry of interior.
Israel’s newly established Refugee Status Determination process is not accessible to the vast majority of
the asylum seekers, who receive, in lieu, group-based temporary protection, which includes a protection
from deportation with extremely limited rights. From those who undergo Refugee Status Determination
only a handful – less than 1% - are ultimately granted asylum. Judicial review of the asylum procedure
has just started to develop, and so far the few court decisions issued on this matter deviate significantly
from the standards set by other courts in western democracies and from United Nations High
Commissioner for Refugees guidelines.
The issue of treatment of asylum seekers exemplifies the tension between state sovereignty, on the on
hand – which includes the desire and ability to control the entry of persons to its territories; and the
commitment to basic human rights – including those specified in Israel’s Basic Laws as well as in
International Human Rights Law instruments.
The public discourse in Israel tends to view immigration as a particular, internal issue, but this is, in fact,
an international matter that many states are grappling with. Therefore it is likely to be helpful to look
into the experience of other countries and learn about their methods of dealing with immigration and
the policies they are implementing while taking into account geopolitical differences with specific
application to the Israeli case.
The workshop will deal with the most pressing, practical and concrete concerns the Israeli asylum
regime raises, in a comparative context. Special emphasis will be devoted to the European comparative
context, due to the connection between migration flows to Israel and Europe.
Day 1 – November 12, 2012
10:00-12:00 - Introduction to the Israeli Asylum System: What are the characteristics of the Israeli
asylum system? What are its main challenges? How does it relate with the rest of Israel’s immigration
regime? How does it materialize Israel’s security, economic, demographic, etc. interests? Does it
conform to international human rights obligations that Israel has? How does it compare to the asylum
systems developed by other western democracies, especially European democracies?
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Dr. Tally Kritzman-Amir, The Academic Center of Law and Business and the Van Leer
Jerusalem Institute
Mr. Yohannes Bayu, Director of the African Refugee Development Center
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Mr. William Tall, Representative of the UNHCR in Israel
Adv. Avi Chimi, Chair of the Advising Committee on Refugees to the Minister of Interior
Ms. Luise Amtsberg, The German Green Party
13:00-15:00 - Employment of Asylum Seekers: Despite the fact that the Internal Procedures of the
Ministry of Interior on the Treatment of Asylum Seekers instruct that asylum seekers should be granted
work permits, in practice, asylum seekers are only granted “conditional release” documents, which
specifically forbid their employment. In HCJ 6312/10 Kav Laoved v. The Government of Israel the State
of Israel made a commitment to refrain from enforcing the prohibition on the employment of asylum
seekers, thus on the one hand refraining from granting them a right to work, but on the other hand
turning a blind eye at those who employ them. This, in turn, resulted in asylum seekers having
difficulties in finding employment, and relegating to undocumented employment, which commonly
carries low salaries and no benefits. Should asylum seekers be allowed to work as they await a decision
on their case? Does granting asylum seekers work permits raise the risk of a “pull factor” – that many
others will come to Israel, and if so: can that risk be contained? What are the practical, economic and
legal consequences of not granting them work permits? What are the alternatives? Did European states
choose to grant asylum seekers work permits, or offer them in-kind assistance (in housing, food supplies
etc.)? What, in their experience, are the benefits and dangers in each option?
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Dr. Yuval Livnat, Tel Aviv University School of Law
Ms. Noa Kaufman, Coordinator of the Asylum Seekers and Refugees Subject, Kav
Laoved
Ms. Orit Rubin, Psyco-Social Coordinator, Assaf – Aid Organization for Refugees and
Asylum Seekers in Israel
Ms. Yael Dayan, Chair of Tel-Aviv City Council
Prof. Audrey Macklin, University of Toronto School of Law
Mr. Mulugeta Tumuzghi, Eritrean Asylum Seeker
15:30-17:30 - Detention of Asylum Seekers: In January 2012 the Israeli Parliament passed an
amendment to the Prevention of Infiltration Law, allowing the prolonged detention of three years of
those defined as infiltrators (and indefinite detention of enemy national infiltrators). Currently Israel is
in the process of constructing what would be the biggest detention facility in the world for the purpose
of the implementation of this law. Who would be held under this law? What goals does this law seek to
promote? What are the moral and legal implications of the detention of asylum seekers? Is it legal to
detain asylum seekers, and if so, under what conditions? How does this law conform to Israel’s
constitutional law and international law obligations? How do these measures compare with those taken
by other states in the world, including in Europe, such as off-shore detention etc.? According to the
international experience, is detention an effective means of deterrence, and does a policy aiming to
detain asylum seekers decrease the number of asylum seekers entering the state?
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Adv. Asaf Weitzen, The Hotline for Migrant Workers
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Adv. Ilan Halevgi, Immigration Detention Tribunal
Prof. Kenneth Mann, Tel Aviv University School of Law
Prof. Stacy Caplow, Brooklyn University School of Law
Prof. Thomas Spijkerboer, VU Amsterdam University
Mr. Bush Safallah, Drafurian Asylum Seeker
Day 2 – November 13, 2012
9:00-11:00 - Temporary Protection and Other Forms of Complementary Protection: Protection as
refugees is not the only solution available for asylum seekers in Israel. The vast majority of asylum
seekers are from Eritrea and Sudan (nearly 65% and 25% respectively). Those asylum seekers are not
granted access to the Refugee Status Determination process, but rather are granted group-based
temporary protection, until the conditions in their country of origin sufficiently improve as to enable
their return. In addition, asylum seekers may base their need for protection from being returned to their
country on legal instruments other than the Convention relating to the Status of Refugees, such as the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), or
the International Covenant on Civil and Political Rights. This question became particularly relevant in the
spring of 2012, when the temporary protection of Southern Sudanese was terminated, and the state
conducted a massive operation, leading to their detention and deportation/voluntary repatriation.
When should states offer temporary group-based protection? What is the difference between this form
of protection and the protection granted to refugees? Should people who receive temporary protection
be allowed to submit individual asylum applications? When should temporary group-based protection
end; and how should those protected be treated when their protection comes to an end? What is the
relationship between the different legal instruments offering protection to forced migrants? What can
Israel learn from the use of the European Convention of Human Rights for the protection of refugees
and people in refugee-like situations in European courts? What are the European norms on the
application and termination of temporary protection regimes?
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Adv. Yonatan Berman, The Academic Center of Law and Business
Prof. Michael Kagan, University of Nevada, Las Vegas
Adv. Ohad Zemet, International Law Department, Ministry of Foreign Affairs
Prof. Maryellen Fullerton, Brooklyn University School of Law
Mr. Michael Kleinhaus, Head Asylum Affaires, Federal German Office for Migration and
Refugees
11:30 – 13:30 - Erecting a fence on the Egyptian Border: The Israeli Government is currently in the
process of planning and erecting a fence on the long continental border between Israel and Egypt,
through which the overwhelming majority of asylum seekers enter Israel. This measure should be
understood in light of the attempts of Israel to “return” to Egypt asylum seekers who were caught
shortly after they crossed the border into Israel. These attempts that were challenged in the High Court
of Justice (which refrained from ruling on the merits of the case, and dismissed the petition on
procedural reasons), failed due to the changes in the Egyptian regime. What legal consequences does
this fence entail? Will Israel be allowed to “fence out” its legal obligation to asylum seekers? Will it owe
legal or moral obligations to people who present themselves on the other side of that fence, and if so,
what is the scope of these obligations? What is the international experience with fences as means of
restricting movements of asylum seekers? What can we learn from the Frontex experience of European
Border control?
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Adv. Anat Ben Dor, Tel Aviv University School of Law
Dr. Tally Kritzman-Amir, The Academic Center of Law and Business and the Van Leer
Jerusalem Institute
Dr. Eran Lerman, The Israeli National Security Council
Mr. Peter Deck, UNHCR
Mr. Christopher Hein, Italian Council for Refugees
Mr. Mekonnen Mesghena, Head of Department for Migration, Intercultural
Management & Diversity, Heinrich Böll Foundation
14:30-16:00 - Sur-place Refugees – Israel unique geopolitical situation reflects on the nature of claims
the asylum seekers who enter it make. In some cases, asylum seekers claim that while they were not
under risk of persecution in their country of origin before having fled from it, they are likely to be
persecuted should they be returned from Israel to their country (and are therefore “sur-place
refugees”). This argument is mostly (though not exclusively) made by Sudanese, whose country’s law
penalize persons who enter Israel. Legally and morally speaking, sur-place refugees pose an interesting
challenge to Israel’s asylum policy. Should we protect sur-place refugees? Under which conditions?
Should the particular circumstances of Israel matter to the question of the protection of sur-place
refugees? How are Sur-place refugees handled in Europe?
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Adv. Yonatan Berman, The Academic Center of Law and Business.
State Official, TBA
Prof. Thomas Spijkerboer, VU Amsterdam University
Prof. Deborah Anker, Harvard Law School
16:30 – 17:30 – Summary Session