The “Voluntary” Departure and Israel’s plan for deportation to third countries

Written by Anat Guthmann, June 2018

June 2013 – the State reveals an agreement with a third country

During a discussion from June 2, 2013 in a plea against the third amendment to the anti-infiltration law, HCJ 7142/12 Adam v. Knesset, the State’s legal counsel announces that Israel has reached an agreement with a third country for the transference of asylum seekers. This information was also given in a subsidiary notice on June 9, 2013, as part of this procedure.

March 2014 – the State begins implementing the agreement

Then-minister of interior Gideon Sa’ar, announces that Israel has signed agreements with “third countries”, and that the departure of “infiltrators” to these countries has begun in limited numbers. According to the Population and Immigration Authority, 1,093 asylum seekers were deported to third countries during 2014.

January 2015

The state notes in clause 45 to its January 27, 2015 reply to the plea against the fifth amendment to the anti-infiltration law, HCJ 8665/14 Desta v. Knesset, that the existing agreements are “firm and existing” and are being implemented, and that 1,093 “infiltrators” have left Israel as part of them, “compared to 112 who left before 25.03.2014.” The state refused to give details regarding the agreements, such as: what is the status granted in those third countries? Which protections might the deportees expect to be given? And what guarantees were given to the State in order to secure the deportees safety in the “third countries”?

February 2015

The Hotline for Refugees and Migrants and ASSAF (Aid Organization for Refugees and Asylum Seekers) publish a joint report, “Where There Is No Free Will“, in which the testimonies of asylum seekers who left Israel as part of the program of “voluntary departure”, to their home countries or to the “third countries” of Rwanda and Uganda, were made public. The report details the causes and reasons for the asylum seekers’ departure of Israel as well as their condition after leaving the country.

The report determines that the status of asylum seekers sent to Rwanda and Uganda with Israeli Laissez Passer documents isn’t guaranteed. They receive the laissez passer paper, a protection paper, or a three-month tourist’s visa at the Ben Gurion Airport. By all accounts, the Israeli documents are taken away from them upon their arrival to Kigali or Kampala, the capitals of Rwanda and Uganda, respectively, by local officials as coordinated with the Israeli Immigration Authority (PIBA).

That means the asylum seekers are, in fact, made to enter and stay in these countries illegally. They are subject to arrest and deportation to their home countries, violating the principle of non-refoulement. Even if they aren’t arrested or deported, they still remain without legal status or rights, and thus have no ability to live and survive in these countries. Thus, even those who aren’t arrested or deported, end up leaving the “third countries” in search of asylum in some other place, becoming refugees once more.

Per the UNHCR’s guidelines, agreements to transfer asylum seekers to third countries must be up for judicial review, in order to guarantee that the rights of the deportees are safeguarded according to the Refugee Convention. In addition, the state must follow-up the existence of these conditions in the third country following the deportation (see here). The State of Israel does not follow these conditions and no independent body, including the UNHCR, was allowed to review the agreements until, much later, the High Court of Justice (HCJ) was allowed to review them. Throughout the years, state authorities refused entirely to reveal any of the agreements’ content, including even the names of the “third countries”. Nevertheless, Rwanda confirmed that it agreed to take in asylum seekers from Israel, but Uganda kept denying that such agreements were ever reached.

April 2015 – the first plea against the deportation

Two Eritrean nationals and six human rights organizations (the Hotline for Refugees and Migrants, Association for Civil Rights in Israel, Physicians for Human Right – Israel, Workers’ Hotline, ASSAF, and the African Refugees Development Center) file an plea to the Beer Sheba district court, Plea 54836-04-15 Hagos v. Minister of Interior, through the Program for Refugee Rights at the law faculty of Tel Aviv University. The petitioners demanded to abolish the practice which allows the state to demand Eritrean and Sudanese nationals to leave for a “third country”, Rwanda or Uganda, under agreements whose details are secretive, and allows to jail them indefinitely should they refuse. While filing the plea, the State’s position was that the demand to leave for a third country will be directed at detainees in the Holot facility who do not have an open RSD claim, subject to a hearing.

Two weeks later the court erased the plea, ruling it was too early, after the State announced that an additional hearing will be held before an asylum seeker may be jailed. Following the court’s comments, the state further announced that, after receiving a decision regarding the transference to detention of those refusing to leave for a third country, it will be suspended for three work days in order to allow the asylum seeker time to appeal against it. The court gave its views on the matter, stating that at least two weeks should be necessary.

July 2015 – second plea against the agreements

The Population and Immigration Authority published, for the first time, its “procedure for the removal to a third country from Holot detention facility“. The Hotline releases the follow-up report, “Rwanda or Saharonim“, where the policy according in which asylum seekers are required to leave for a third country under the threat of imprisonment in Saharonim is revealed and described.

The human rights organizations once more file a plea at the Beer Sheba district court, Plea 5126-07-15 Tsegeta v. Minister of Interior, after representatives of the MOI announced to several Eritreans in Holot that within 14 days they’ll be transferred to detention in Saharonim detention facility for their refusal to leave to Rwanda. Since they were only demanded to leave to Rwanda, only the agreement with that country have been reviewed by the court. The petitioning organizations stressed that the agreement between Israel and the destination countries is secretive and has never been published, the protections it supposedly guarantees, as well as the given status and length of stay in them, are unclear, and no monitoring mechanism is known of. While reviewing similar agreements in other countries, nothing was found that could parallel the Israeli system of hiding the destination country, hiding the deportation agreement, and demanding persons whose fates will be determined according to these agreements to blindly sign up for them. Under these circumstances, it was explained in the plea, the refusal of asylum seekers held in Holot to leave Israel is justifiable and legal, and thus can’t be pointed to as a justification for prolonging their detention.

During the proceedings, a request to reveal evidence – 5164/15 Tsegeta v. State of Israel – was filed to the court against the secrecy of the agreements, and demanding to see and review them, but the request was rejected. Together with the main plea, a request was filed for a temporary injunction to prevent the deportation of those then detained in Saharonim. The district court rejected that request, but the HCJ overturned the decision and gave an injunction preventing the deportation of asylum seekers who refuse to leave Israel, and in fact freezing the realization of the deportation as declared by the state.

In a plea against the “third countries” policy, the state’s guarantees were presented as they were given in writing to the asylum seekers in Arabic and in Tigrinya, according to which, upon their arrival in the “third country”, they would have the opportunity to reside anywhere they wish and to receive all they need for a respectable life there. The state claimed, in its reply to the plea, that the agreement is enforced in practice with regards to all those who left Israel for “third countries” as part of the “voluntary departure” policy of PIBA. For the first time, the state presented general information about the monitoring mechanisms in Rwanda, as a result of the plea. However, the evidence and the information collected by the petitioners so far point towards an insurmountable gap between the state’s promises – and the reality of the situation, which points to it being impossible to remain in Rwanda legally.

It appears, from the data given during the procedure by the state, that almost all of the information received by the state regarding those who left to Rwanda as part of the “voluntary departure” policy was given to it by Rwandan officials, and that Israeli authorities don’t actually have any idea about the number of people residing in Rwanda with a permit. The state’s representatives conversed via phone call with only a very small number of people (47, according to the information given in October 2016) who were supposedly in Rwanda during the conversation, without truly trying to figure what their situation is. The state admitted that the authorities were unable to contact the rest of the departees, and that it has no idea regarding their fates.

As part of the plea, the court conducted two secretive discussions, in which entry to the petitioners was forbidden, where the state one-sidedly presented material supposedly supporting its claims.

November 2015 – rejection of the plea and appeal to the High Court

The HRM publishes a report, “Deported to the Unknown“, based on the witnesses and affidavits of asylum seekers who left Israel as part of the “voluntary departure” policy. The witnesses were collected during August 2015 in Uganda.

On November 8, 2015, the Beer Sheba district court rejected the human rights organizations’ plea, ruling that it appeared that those who left for a third country did of their own free will, and that it’s “reasonable to assume” that those who reached a third country were allowed to reside there.

The organizations file a plea to the HCJ, Appeal 8101/15 Tsegeta v. Minister of Interior. As part of the appeal, a request for a temporary injunction was filed, in order to prevent the state from detaining the appealers until a verdict was given.

The state presents its reply to the request for an injunction, opposing its issuing. On 30/12/2015, the HCJ accepted the request for an injunction, and ruled that, due to the harm caused by detention, the appealers must not be detained until a ruling was given, thus freezing in practice the implementation of the deportation plan.

Both sides presented summaries as part of the appeal, and the appealers filed further evidence supporting their claims regarding the situation in Rwanda. The HCJ held two further public discussion and two secretive discussion (in which only the state and its legal counsel were allowed to participate, while the appealers remained outside), with an expanded panel of five judges. At the end of the discussion, the state was required to answer a number of questions presented to it by the judges (and by the appealers, as well) in the secretive discussions, and for that purpose secret notices were filed and their censored content was presented to the appealers. During the public discussions the state’s legal counsel was asked why the state doesn’t strengthen its monitoring mechanism in the third country by sending an Israeli representative and founding a permanent embassy there, in order to ensure that the agreement is enforced. The state’s answers to these questions remain secret.

The final claims of both sides were filed on February 2017, regarding the applicability of the policy towards Eritrean asylum seekers, in light of verdicts given in relation to their status as refugees in lower-level tribunals.

August 2017 – the High Court’s verdict

On 28/08/2017, the HCJ gives its verdict in the appeal. The court ruled that, in principle, it is possible to deport asylum seekers to a third country (Rwanda). The court ruled that so long as it wasn’t proven that a the third country isn’t safe, that the procedural conditions necessary for deportation aren’t valid, or that the monitoring mechanisms set by the state aren’t functioning, then the existing conditions are sufficient for deportation. Nevertheless, alongside this ruling, the court also ruled that since the agreement with the third country only allows to deport persons consensually – it is thus impossible to either detain a person solely for their refusal to leave Israel or to forcibly deport them to another country. The verdict thus in practice prevented forced deportation of asylum seekers.

In September 2018 the HRM publishes the collected witness accounts of asylum seekers who were deported to Uganda and Rwanda and later reached Europe, which contradicted the state’s claims. The survivors describe the harsh journey they had to endure in search of asylum after not being allowed to stay in Rwanda and Uganda.

November 2017 – the state announces its intent to renew the deportation

On November 20, 2017, the government puts forward a bill to amend the anti-infiltration law, prolonging the operation of the Holot facility for three months only. The forward to the bill mentions that, due to the Tsegeta ruling, “the [state] has worked towards amending the existing agreement with the third country and it now means to bring about the wide-scale departure of infiltrators to a third country. At the current state of things, and so long as it will be possible to bring about the departure of infiltrators from city centers directly to the third country, the necessity to keep operating the Holot facility will be reviewed at the end of a 3-month period.” The law itself doesn’t make any mention of a deportation plan.

In light of the plans to deport asylum seekers, the state strengthens its ties with Rwanda and announces the opening of an embassy in Kigali, the capital of Rwanda.

On December 4th 2017, the UN’s Committee Against Torture adopts its finding regarding Rwanda, mentioned within it (clause 46) are the Committee’s wishes to express its concerns regarding the delays in registration of asylum seekers, and that this delay might expose asylum seekers to the danger of deportation. Specifically, the Committee expressed its concern the fact that Eritrean and Sudanese asylum seekers, transferred to Rwanda from Israel, face problems in accessing the asylum system, and that it was reported that some were deported to neighboring countries.

That same month, further witness reports are published from asylum seekers who were deported to Rwanda or Uganda from Israel and survived the long and arduous journey to Europe.

PIBA publishes data regarding departure to “third countries” Rwanda and Uganda, between the years 2014-2017 (see chart 2). From the data it appears that 1,093 left “voluntarily” during 2014, 1,507 during 2015, 836 during 2017, and 674 during 2017. It further appears from the data that there was a stark increase in departure of asylum seekers to Western countries as part of relocation agreements, family unifications or other procedures: 487 asylum seekers left to Western countries in 2015, 1,347 in 2016, and 1,895 in 2017 – 60.5% of all departees that year.

January 2018 – the deportation – and the struggle against it – begins in earnest

After years of struggle for the rights of asylum seekers and against the endless abuses by the state, on January 1st, 2018, PIBA published a “public appeal to infiltrators” according to which they must leave Israel within 3 months. That same day, the “procedure for removal to third countries” is published. The procedure applies to Eritrean and Sudanese asylum seekers who haven’t yet filed an RSD application form, whose asylum claim was rejected, or who filed it after January 1st 2018. The procedure also excludes temporarily women, minors, persons with a family in Israel, and victims of human trafficking or slavery. The procedure determines that, as of February 1st 2018, PIBA will begin handing out deportation notices notifying the receiver that he must leave Israel within 60 or else – be jailed indefinitely.

During February, March, and April – the Hotline for Refugees and Migrant worked alongside ASSAF (Aid Organization for Refugees and Asylum Seekers), other organizations, and thousands of Israeli citizens in order to stop the deportation.

February 2018

The State’s actions and the legal response

February 4 – PIBA begins handing out the first deportation notices to asylum seekers outside of Holot. Asylum seekers begin being called to hearings and receive notices informing them that they must leave Israel within 60 days, after which their visa will no longer be renewed and they could be jailed indefinitely.

February 5 – a classified hearing is held at the committee for state control, on the international agreements regarding refugees. Following the meeting, deputy foreign minister Tzipi Hotovely announced that the agreements are not up to the HCJ’s requirements and that Israel has no way to monitor the condition of the deportees and guarantee their safety.

February 18 – the first asylum seekers are jailed in Saharonim after refusing to leave Israel following the 30 days they’d been given. As a result, the asylum seekers detained in Holot begin a hunger strike as a protest, and demonstrate in front of Saharonim.

February 28 – Head of Foreigners and Enforcement Administration, Yossi Adelstein, clarifies during an interview that the deportation will be implemented in stages. The groups excluded from the first stage of the deportation, might be deported at later stages. Furthermore, he said that they wouldn’t allow people to remain in Saharonim indefinitely and that forcible deportation against those who refuse to leave is an option.

The public joins the struggle

February 2 – distribution of signs throughout Tel Aviv. About 100 activists of the HRM and ASSAF go out throughout Tel Aviv’s street to hang signs against the deportation from balconies and public spaces.

February 7 – thousands protest in front of the Rwandan embassy in Israel and around the world. In response, the deputy foreign minister of Rwanda announces that the country won’t accept asylum seekers deported against their will.

February 17 – nation-wide public information event – close to 200 activists set up information stands throughout the country: Eilat, Beer Sheba, Herzliya, Haifa, Jerusalem, Kfar Saba, Karmiel, Mevaseret Tzion, Misgav, Misgav, Nahariya, Ein Shemer, Afula, Pardes Hana, Beth Kama Junction, Katzrin, Rosh HaAyin, Rishon LeTzion, Ramat Yishay, and Tel Aviv. In the big cities, several such posts are set up. As a result of the joint activism of the Hotline, ASSAF, “Stop the deportation” and “standing Together”, about 1000 people join the struggle.

February 22 – “Night Against the Deportation” – clubs and bars in Tel Aviv and Jerusalem hold fundraising events for the struggle against the deportation.

February 24 – South Tel Aviv protests against the deportation – led by “South Tel Aviv Against the Deportation”, and in cooperation with “Standing Together”, over 20,000 come to protest in Levinsky Street and call out: support South Tel Aviv, oppose the deportation.

March 2018  

The state’s action and the legal response

March 1 – UN experts publish a joint call to stop the deportation. In their declaration, they determine that the deportation procedure is a violation of human rights law and of international refugee law.

March 12 – The first proceedings in two pleas filed in January are held, where the state claims that the previous agreements with the ‘third countries’, which were authorizied in the Tsegeta case and where the approval of the receiving country is necessary for deportation, have been updated, and that it is now possible to deport asylum seekers by force. The court ordered during the discussion and in its decree from that day, that the state must submit its position on the issue of issuing a temporary injunction to halt the deportation, as well as the eligibility of the secrecy order, previously approved for the preceding agreements, with regards to the new and updated agreements.

March 14 – The “Holot” detention facility is shut down, and the asylum seekers incarcerated within it who did not yet receive deportation notices to a third country – are released. The state declared that it is willing to preserve the current situation and avoid deporting anyone until a further response is filed to the court, in accordance with the HCJ’s decision.

March 15 – The High Court issues a temporary injunction forbidding the deportation of asylum seekers to third countries until further notice. Nevertheless, the Population and Immigration Authority did not see itself obliged to release the detainees who were so far imprisoned for the purpose of deportation, despite the non-existence of any deportation procedures. The High Court clarified that the injunction to freeze the deportation will remain in place until further notice.

March 22 – After several appeals to the authorities, a list of human rights organizations file a petition to the High Court, HCJ 2445/18 Hotline for Refugees and Migrant & co. v. Prime Minister, where the court was asked to order the state not to deport any asylum seekers to Rwanda and Uganda, or alternatively – avoid imprisoning those who refuse to leave for Uganda and Rwanda; as well as allow all those who are set to be deported, to view the agreements signed with their destination countries, which deny the existence of those agreements.

The public keeps on fighting

March 5 – A poll held by the Social TV revealed what we all already knew – the majority of South Tel Aviv’s residents are opposed to the deportation of asylum seekers prior to a review of their asylum claim, and believe that those who could face danger if returned to their home countries – should be allowed to receive protection in Israel.

March 9 – Led by “South Tel Aviv Against the Deportation”, Hundreds march together to celebrate International Women’s Day against the deportation and for project renewal. Youth and children, as well, march out in protest against the deportation of asylum seekers.

March 12 – Activestills photographers set up an exhibit, of 200 portraits of asylum seekers detained in Holot who are being moved to Saharonim, through Rotschild Boulevard and Yehudah haLevi Street in Tel Aviv, in response to the shut-down of Holot.

March 16 – nation-wide public information event. In a cooperation between the Hotline, ASSAF, “Standing Together”, and “Stop the Deportation”, we set up posts inviting people to struggle throughout the country, in: Beer Sheba, Herzliya, Haifa, Jerusalem, Karmiel, Kfar Saba, Mevaseret Tzion, Nahariya, Emek Hefer, Afula, Pardes Hana, Safed, Kiryat Motzkin, Kiryan Tivon, Rishon leTzion, Ramat Yishay, Ramat Gan, and Tel Aviv.

March 24 – Demonstration in Rabin Square. Led by “Stop the Deportation” and by “South Tel Aviv Against the Deportation”, 25,000 people declare: “Israel opposes the deportation”.

April 2018 – the deportation plan is cancelled

The State’s actions and the legal response

April 2 – During the afternoon hours, the Prime Minister held a press conference together with the Interior Minister, officially announcing that Rwanda has withdrawn from the forced-deportation agreement, and that an agreement was reached with the UNHCR. According to the agreement with the UN, 16,000 asylum seekers would receive temporary residence in Israel for a period of 5 years, while 16,000 other asylum seekers will be taken in by other western countries. It was also announced at the press conference that the authorities will work towards a plan for dispersing throughout Israel the asylum seekers currently residing in South Tel Aviv, and that the money saved by the cancellation of the deportation plan will be invested into South Tel Aviv. It was furthermore declared that an administration for rebuilding South Tel Aviv will be founded. The UNHCR published a press notice regarding the agreement following the press conference.

That same day, in the hours following the press conference, several of the cabinet ministers expressed their criticism of the agreement with the UNHCR. During the evening hours the prime minister had to publish a video on his facebook page, explaining why he had to promote the agreement.

Less than three hours later, the prime minister published an additional post on facebook, announcing that since he’s attentive to the public he must therefore suspend the agreement with the UNHCR until such a time when he’ll meet with representatives from South Tel Aviv so they could review the agreement.

April 3 – The prime minister publishes another facebook post, announcing that he’s decided to cancel the agreement with the UNHCR and that he’ll continue to act until all of the “infiltrators” leave Israel. Several hours later, the prime minister further announces that the main element applying pressure on Rwanda to withdraw from the agreement was the New Israel Fund, and requested the Chairman of the Knesset to set up an investigative committee on the subject. In response, the Rwandan foreign minister announced that they’re aware of no “New Israel Fund” and that they’re surprised by the implication that a foreign NGO can thus pressure the sovereign Rwandan government. The prime minister further announced that he’s working towards re-opening the Holot detention facility and will promote the legislation of an “overriding clause” that would allow for the re-legislation of laws disqualified by the High Court.

April 4 – A special envoy sets out to Uganda in order to receive updates, subject to which the Attorney General will decide whether deportation to Uganda is possible. It was noted that the envoy is supposed to give updates that same day, and the court allowed the state to file another notice the following day.

April 5 – The state files an additional notice claiming that the majority of the necessary inquiries have been completed and that the attorney general believes that there’s a high likelihood that the necessary conditions in order to deport asylum seekers to Uganda are present, but further time is needed, and therefore there is no place just yet to order the release of the asylum seekers still detained. At the same time, Uganda denied the existence of such an agreement or of any negotiations with Israel.

April 10 – Following the court’s decision on the subject, a discussion was held regarding the pleas. Before the discussion, 50 refugee law experts send a letter to the attorney general, Avihay Mendelblitt. In their letter, they state that the plan to deport asylum seekers from Sudan and Eritrea is a gross violation of refugee law and of human rights, and called upon Israel to avoid implementing the deportation, and to immediately release those currently detained for their refusal to leave.

That same day, the court ruled that if by 12:00 AM on April 15, the attorney general will not authorize that the agreement with the “second third country” (Uganda) is acceptable – all those detained due to their refusal to be deported will be released. Furthermore, it was determined in the ruling that a temporary injunction forbidding deportation for an additional 14 days will be issued.

In its ruling, the court has clarified that it does not view generously the state’s refusal to acknowledge what it had known back during the first discussions, on March 12, that there are difficulties in implementing the agreement with the “first third country”.

April 16 – The state files a notice to the High Court, which says that an update to the agreement with Uganda is yet to be signed, contrary to the state’s claims from April 5 that an agreement with Uganda has already been signed and that all that is necessary is to determine a few more factual details before the agreement can be implemented. It was noted that, considering the non-existence of an agreement, of the 214 detainees held at Saharonim, all except 8 (who were arrested for other reasons) were released.

Despite the state’s notice, and the inability to forcibly deport asylum seekers, the Population and Immigration Authority continued to hold hearings for asylum seekers, where they were demanded to leave Israel within 60 days. The visas of those whose 60 day waiting period was up, were not renewed by the Authority, and thus in many cases they were left without a visa.

April 24 – The state files a notice regarding the plea filed on March 2018 by human rights organizations, HCJ 2445/18. In its notice, the state admitted for the first time that no operative procedure to forcibly deport asylum seekers from Israel exists; thus, beginning on April 17, the ministry of interior ceased holding pre-deportation hearings, and now declared that all deportation notices previously given are obsolete. It was further declared that “infiltrators” whose visa expired – will have it renewed for a period of 60 days, as was the norm before the deportation. Additionally, it was clarified that the “voluntary departure” route to a third country is still available, and will be offered to every asylum seekers during his or her visa renewal, though the renewal of the visa will not be conditioned upon it.

Despite the annulment of the forced deportation, the authorities continue to “voluntarily” deport asylum seekers: that is the quiet deportation that goes on to this day. The purpose of the authorities is to bring asylum seekers to the verge of desperation, until they are left with no choice but to “voluntarily” agree to their own deportation. That policy includes taxes and fines that make the employment of asylum seekers more difficult and expensive, pushing many into poverty; refusal to grant decisions in asylum cases for many long years or rejecting asylum claims under any possible excuse, in a way that is incompatible with Israel’s international obligations; refusal to grant legal status and rights, leaving asylum seekers in a vulnerable and weakened state with no opportunity to advance and grow, without welfare or healthcare, or other social services; legislation which allows for prolonged imprisonment of asylum seekers in designated facilities; as well as the constant threat of future deportation and life in the shadow of the unknown.