Lower court attacks High Court for not deporting Eritreans
A lower court judge specializing in migrant issues has ruled that Eritrean migrants should be deported, and slammed the High Court of Justice for thwarting past efforts.
If the decision stands it would be a game-changer, the first Israeli court decision saying unambiguously that the country can deport Eritreans – the largest migrant bloc in Israel – back to their country of origin after years of legal fights over the issue.
Both sides of the migrants debate immediately started maneuvering over its significance, with pro-deportation groups claiming victory, and pro-migrant groups vowing to appeal to the higher courts that the judge criticized.
Though handed down on Tuesday, Jerusalem Special Appeals Court Judge Menachem Feshititsky’s nearly 50-page opinion – his final decision upon retirement – was released only on Wednesday.
However, even Feshititsky said that his decision does not apply to the second-largest bloc – Sudanese migrants – or others.
With Feshititsky pitting himself against the High Court, it was far from clear
that his decision will be adopted over the long-term.
In a shocking departure from judicial protocol, the court even hinted support for the Knesset to pass a bill to override the High Court in order to make progress on the issue.
Still, in the near-term there was little doubt that the Population, Immigration and Borders Authority (PIBA) would seize on the decision to try to move forward more aggressively with deportations, at least until a counter court order is issued.
Feshititsky did give migrants a small consolation prize, saying that if deportation still is not feasible for whatever reason, then the state should grant Eritreans permanent status in Israel and not keep them in an indefinite limbo state.
But Feshititsky mostly took a hardline approach and attacked the migrants as economic migrants, contending that they caused a rise in crime rates. He also cited the recent Eritrea-Ethiopia peace deal as a reason not to allow Eritreans to stay in the country.
The judge wrote that PIBA’s decision was reasonable when it did not accept a specific Eritrean – and many similar cases – as a refugee, based on a legal opinion that “refugee requests based solely on desertion or avoiding serving in the Eritrean army do not constitute political persecution,” and they would need to prove political persecution to be considered refugees.
Since the mid-2000s, there has been a battle in Israel between pro and anti-migrant groups about whether tens of thousands of Africans, mostly from Eritrea and Sudan, should be allowed to stay as refugees, or should be sent back to their countries of origin or third countries as migrant workers.
A primary fault-line of the debate has been that pro-migrant groups, including the UN, have said Eritreans cannot be sent back to Eritrea, arguing that the country’s obligatory draft leads to lifelong persecution and sometimes torture or death at the hands of their own Eritrean commanders.
Under international law, this could allow the Eritreans to stay in Israel even though they almost all crossed into the country illegally from Egypt before Israel built a border wall ending the flow of new migrants.
Others argue that peace and eliminating or reducing the draft – reports last month said Eritrea may substantially reduce its obligatory length of service from 32 years (age 18-50) to only 18 months – means that there is no longer any reason that Eritreans cannot be sent back.
A spokeswoman for the Hotline for Refugees and Migrants told The Jerusalem Post that the peace deal, a reduction in the draft, and a readiness of Eritrea to accept back without persecution citizens who fled to escape the draft are still very uncertain.
Government representatives of multiple ministries addressing the issue in July at the Knesset Interior Committee said they would need to verify that returning any Eritreans would not endanger their personal security, leaving the issue still up in the air. •