"Immigration, Asylum, and the Treatment and Status of Refugees" -- a synopsis of presentations from panel four of the ISCP's inaugural conference

“Immigration, Asylum and the Treatment and Status of Refugees”—A Synopsis of Presentations from Panel Four of the ISCP’s inaugural conference

*Prepared by Orly Rachmilovitz

Tali Kritzman-Amir (The College of Law and Business [Israel]) (read by Reuven Ziegler):

There are 46,000 asylum seekers in Israel. This high number is a result of massive migration between 2007-2011 when a fence was constructed along the border with Egypt. Several thousands of asylum seekers left Israel in recent years, when presented with the choice to leave to Uganda or be detained. There are also migrant workers. The issues of their status and rights in Israel are at the forefront of Israeli law, but there is little distinction between the two groups as both are seen as a demographic threat. The main measures taken against them are detention, limits on employment, or exclusion from any benefits. These measures are designed to encourage asylum seekers and migrant workers to leave Israel and to prevent them from settling in Israel and starting families.

Israeli courts have become an arena to fight for rights. Courts are required to play a counter-majoritarian role and protect the rights of those who cannot assert them on their own. I therefore argue that despite the progressive language, courts fail to protect. They go back on decisions in future cases, they allow long periods of times to go by without issuing opinions, they opt to exercise judicial restraint rather than apply proportionality tests. Two main strategies the courts uses to justify these strategies is are, first, using comparative law – a seemingly natural step in light of migration being world-wide – and, second, citing Kant for the proposition that all persons have intrinsic value.

In Adam v. Knesset the Supreme Court considered detention in Saharonim and a law amended to allow long detention of migrants, but it was struck down by courts and amended again. The High Court of Justice was willing to assume that the interest was legitimate but still violated rights in a disproportional manner. The Court used the rhetoric of human dignity, the need to show compassion to migrants, in an attempt to avoid backlash.

Another case, from 2013, considered the denial of medical coverage to migrant workers who come to Israel to become caregivers to others. The opinion aimed to end use of private insurance that does not provide coverage for serious medical conditions and also restricts employment opportunities. The Court compared the Israeli context to other countries’ health care provision for migrant workers and ruled that when the state invites caregivers, it must repay them for their good deeds and give them the care they need.

A third case concerned allowing a migrant worker the choice to leave for her country of origin or send her child back and continue to work. The Court found this to violate her right to family. The Court reminded us that the presumption is that migrant workers are entitled to basic rights.

Another problem that highlights the issue is that of the binding arrangement. Under this type of visa, which is tied to a specific employer, a migrant worker is prohibited from leaving a place of employment lest they lose their documented status. Despite the purpose of limiting migrant employment and supervising such migration, this is not proportional. There is a less restrictive means. It is possible to see migration to Israel as part of an international phenomenon, and rely on comparative or international law that found that migrants do not shed human rights at the border. The Israel public unfortunately, does not see migrant workers as rights-holding individuals.

Reuven Ziegler (University of Reading):

The Court invokes treaties that remain unincorporated into Israeli domestic law without analysis. This leads to three outcomes: the state avoids determining inconsistency with Israeli law; the court does not provide necessary guidance about the state’s ability to exercise its rights in light of the treaties; and the prevention of settlement of article 31 of the Refugee Convention.

The 1951 Refugee Convention is the main document regulating refugee law worldwide. It was ratified by Israel in 1954 but has not been incorporated. There is therefore no regulation of asylum seekers in Israel that is more comprehensive or broad. There are regulations by the Ministry of the Interior. The Convention is not directly applicable in Israel, but there is a presumption of consistency between international law and domestic law, unless there is clear intent to legislate against Israeli law. As suggested, the dualist approach to international law is quite common in other common law jurisdictions. In Israel this document was invoked in decisions, but there is no analysis of the implications for presumptive refugees – asylum seekers whose cases have yet to be decided.

The outcome is that the state decides it cannot follow the Treaty and legislates against it, but the state says it sees itself bound by the Treaty. Israel tries to distinguish itself from other countries in the interpretation of the Treaty, despite it being one document. The compatibility of legislation with the Treaty should have been assessed to the extent possible, but if it is highly doubtful that the legislation was or could be interpreted to be compatible, the Court needed to say that, and the legislature should be responsible for legislating against international law. Of course the cases were decided on constitutional grounds, but there is an analytical problem.

The relevance of article 31 is that the article uses the title “refugees unlawfully in the country”. This already tells us it addresses those who are undocumented or without authorization. Asylum seekers are presumptive refugees according to the UNHCR handbook. One does not become a refugee, but is recognized because he is a refugee. Asylum seekers should not be subject to penalties, including administrative measures.  And other rights qualify incrementally. Amendments 3 and 4 have not distinguished between asylum seekers and other undocumented migrants. At the time that the first case was decided there was no assessment of applications. By comparison, in the UK, refugee status is also applicable to those applying for status in good faith. The court read into the law a defense in order to implement interpretation of the criminal code that is consistent the Convention. This is a good approach for situations where the legislation does not contravene and international law can be applied.

Michael Kagan (UNLV School of Law):

In many countries refugee law has to constantly deal with a basic contradiction – that there must be a safe haven (that someone should not have to escape twice), at the same time countries don’t often actually want refugees. The issue of deterrence looms quite large – can we persuade people not to come even though if they are here there is good reason not to send them back.

In the two Israeli High Court of Justice cases (here and here) and in the United States, we have courts wrestling with the question of deterrence.

In the United States there are 60,000 children from Guatemala and El Salvador, and in Israel 50,000 refugees. The courts cited national security and deterrence to justify deterrence. But there are no real allegations that the people are actually dangerous at all, yet they are a national security threat. In Israel it’s a demographic concern.  They are a national security threat because they are not Jewish. The American argument of national security is more about diversion of resources – we could send more money to fight ISIS if we didn’t have to use money to attend to the children coming through the border. But this argument can be applied to social security and other expenditures.

Deterrence is usually used for detaining someone in a civil context or a pre-trial detention in criminal cases. We have no accusation of pending crime, so the argument is risk of flight or endangerment, but there is no evidence at all. The rationale then becomes different, a moral deterrence one. The Israeli Supreme Court assumed that was a legitimate rationale under proportionality tests. But the Court avoided holdings on whether deterrence itself is a legitimate rationale. In Adam, Justice Arbel separated means and ends – we can apply means to one but the ends would concern another. The justices don’t seem favorably inclined toward deterrence, but they don’t pronounce upon it. In the United States, deterrence was argued to be a perfectly good rationale against asylum seekers but the Court was not impressed. The court mirrors the reasoning of the Israeli Supreme Court.

So is deterrence a good enough rationale in treating asylum seekers, and how badly can countries treat them? The primary concern is the increased criminalization of asylum and immigration. If governments really want to use deterrence, one thing they might want to do is use criminal law. In Israel, though, there is discussion that deterrence in the administrative context should not be used, but what if this were a criminal case?

Audrey Macklin (University of Toronto Law School):

Compare specific and general deterrence, using Canada and Israel. All states that are signatories to the Convention share a commitment to avoid their commitments under the Convention. Each country thinks it is entitled to treat asylum seekers worse than other countries. Israel is typical in thinking it is unique. Countries do so knowing that they deflect people who will meet the definitions of refugees, and their strategies to deter apply to them and to other migrants. This is also because each person who gets in signals a failure in maintaining borders. So inside and outside there are acts of maintaining sovereignty. How can states use deterrence inside the border?

In Canada, the present government is dedicated to preventing the emergence of a functioning asylum system. The case there is concerned with the public health system. In 2012 the government restricted or stripped away health care from asylum seekers who have yet to receive refugee status based on what the government thought were prospects of success or the deservedness (public health risk, etc.) of the asylum claim. The rights violation failed on rights of equality and cruel and unusual punishment. The Court looked into justifications – deterrence, and discouragement of those already inside of Canada. The Court found, among other considerations, that the harms to people’s health outweighs the benefits in a narrow proportionality test. The unfounded asylum seeker is the target of the deterrence rationale. But there is a chilling effect. In the Canadian decision deterrence is possible even before knowing whether people are refugees or infiltrators.

In Israel, the term “infiltrator” troubles judges, but they still use the language. The language “kills” the infiltrators and contaminates the majority judgment decisions. Justice Vogelman assumes that economic incentives motivated infiltrators, but why is it so? Why not the assumption that Israel may be safer and that they need to work in order to survive? There is no empirical evidence that the motivation is economical for this assumption, which is the very thing that the asylum process is in place to determine. Justice Amit says that by using that language you’ve already found that you can deter a person by detention and deter others. This ultimately undermines the argument by Arbel, and the conversation becomes how long can you deter for.

The Canadian case finds there is no evidence of deterrence and that the suffering outweighs, but it doesn’t delegitimize deterrence itself. In Israel the court uses the fence to show that because it’s effective there’s no need to discuss validity of deterrence. So both cases avoid discussing deterrence itself. Because there is an assumption at the outset that one is an infiltrator rather than a refugee, there is a prediction that the refugee determining system is undermined. The challenge then becomes how to set up the system to be constitutional.