Israel’s migrant limbo

The recent storm over the possible deportation of thousands of African migrants who have crossed into Israel in recent years has intensified the fierce debate in Israel over what responsibility, if at all, the Jewish state bears toward these people.

Within this debate, it is not uncommon to hear a broad spectrum of words used to refer to African migrants in Israel, including infiltrator, asylum seeker, refugee, migrant worker, illegal immigrant — and let’s not forget Likud MK Miri Regev’s unsympathetic designation “a cancer in our body.” These labels have often been distorted or exploited by politicians, the media, and the public to advance an agenda that supports, or opposes, the migrants. (There are some 50,000 African migrants in Israel, and more are trying to cross the border from Egypt into Israel each month. About 80% of them are Sudanese or Eritrean.)

But to better understand this debate and to move past the politics, which could also help resolve this crisis, Israelis would be wise to familiarize themselves with the meaning behind these labels and categories; legally, they refer to different groups.

However, even the legal definitions don’t encompass the full range of situations and reasons that compel people to leave their home countries and seek a better life elsewhere. These gaps create a gray zone of sorts when it comes to defining a refugee and awarding an individual refugee status — not just in Israel but also under the international refugee regime.

The 1951 U.N. Convention Relating to the Status of Refugees — which has 147 signatories including Israel — defines a refugee as “someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion.”

According to international migration experts, this official definition is too narrow and ignores other migrants who leave their homes due to various conflicts and reasons not delineated in the Refugee Convention. These include, for example, internally displaced persons, victims of environmental or natural disasters who are forced to leave their countries, and asylum seekers who, usually due to fear of persecution in their countries of origin, migrate to other countries seeking recognition as refugees.
These forced migrants should be categorized differently from voluntary migrants — such as labor or economic migrants who have a choice in the matter. Yet these labels can themselves be problematic. Stephen Castles, a well-known expert in global migration has written: “In many conflict situations it is difficult to distinguish between flight because of persecution and departure caused by the destruction of the economic and social infrastructure needed for survival.”

In Israel, people who oppose the presence of such migrants often refer to Africans who have crossed the border as “infiltrators.” I spoke with two attorneys — one an adviser for the Interior Ministry and the other a director of a human rights group — who had very different takes on this word, suggesting just how politicized the issue has become.

Attorney Daniel Solomon, a legal adviser for the Interior Ministry’s Population and Immigration Authority, said, “[African migrants] are infiltrators because they have infiltrated the border. That doesn’t mean that an infiltrator can’t become an asylum seeker at a later point and he may even be granted refugee status. But for the time being, they certainly are infiltrators.”

In contrast, attorney Yonatan Berman, director of the Migrants’ Rights Clinic at the Academic Center of Law and Business in Ramat Gan, said, “The term infiltrator is a pejorative word that is used to apply to these people. It’s a term that is supposed to reflect negatively on them. Legally speaking, infiltration is a criminal offense, and a person who enters Israel illegally can be tried for infiltrating. These people have never been tried. The State of Israel does not bring criminal charges against them. They have not been convicted of infiltration. The word infiltrator is simply a term that the authorities and people in the media use to portray them as criminals.”

Despite all the terms and catchphrases being used and misused in the debate over African migrants in Israel, the bottom line is that only those people officially recognized as refugees by the 1951 U.N. convention have clear legal status under the U.N. High Commissioner for Refugees (UNHCR), and therefore have rights and protection that other forced migrants are not afforded in host countries.
In Israel, one of the most heated and central aspects of the debate is whether African migrants who come here are indeed refugees fleeing persecution or economic migrants seeking improved financial conditions. Human rights groups consider the African migrants in Israel refugees or asylum seekers hoping to be awarded refugee status, while the government believes the majority are economic migrants claiming to be asylum seekers.

The reality is that Israeli authorities don’t actually know the status of most African migrants in the country. The government does not review individual asylum requests by Sudanese and Eritrean migrants, thus blocking them from even entering the Refugee Status Determination process. The government hasn’t formally recognized these migrants as refugees, but it hasn’t denied them recognition as refugees either — effectively leaving them in legal limbo.

“People whose asylum applications have not been examined are considered asylum seekers,” Berman, of the Migrants’ Rights Clinic, told me. “It’s not that they are not refugees yet, it’s simply that we don’t know if they are refugees or not because the government hasn’t examined their requests.”
Despite the fact that some officials claim a majority of the Sudanese and Eritrean migrants are here for economic reasons, the government allows them to stay in Israel based on the knowledge that their lives may be at risk if they are repatriated. Deputy Foreign Minister Danny Ayalon said this last year and Harel Locker, director-general of the PMO, reiterated this when he told Israel Radio this week that the government was working on finding ways to send migrants from Eritrea and Sudan to third-party countries.

For the time being, Eritrean and Sudanese migrants in Israel remain in what is known as “group protection” — an in-between status that Israel has granted them, allowing them to stay in the country but with little-to-no access to basic services such as health care, housing or employment.

Berman said that the government must realize that there are no magic solutions. “We hear politicians in the media looking for solutions, which means kicking everyone out in a short time,” he said. “A real solution would be examining individual cases — determining who is a refugee and who isn’t. If they are not refugees, they can be sent back to their countries of origin. If they are, they should be allowed to stay here and be afforded rights under the convention.”

When I asked Solomon, of the Interior Ministry, why the government does not examine individual asylum requests by the Eritrean and Sudanese migrants, he said, “We are trying to deal with the influx of migrants first by building the barrier in the south and by completing the detention center, which will be able to handle hundreds of new immigrants, to curb the influx. Once that’s dealt with, we can find proper solutions for the ones already in Israel.”

But how can the government expect to find a comprehensive, long-term solution to the immigration problem when it doesn’t even know what to call those who have poured into the country?