By: Ariella Zulman
Throughout the course of the last few years the question of how to deal with illegal immigration and the large numbers of refugees flooding across international borders has been a popular topic for discussion. In response to the massive influx of migrants, many countries have begun to build walls and make agreements in an effort to reduce the flow of people coming into their countries illegally. Israel made news on December 11, 2017, when the Knesset approved “the Infiltrator’s Bill,” which will allow the country to forcibly deport migrants to countries other than the ones they came from. It is important to note that “[e]xpulsion to a third country is largely unprecedented in the Western world.” In the past, countries such as Italy and Austria have attempted to implement similar agreements; however, in both cases local courts ruled that the bills were “inconsistent with international law and the 1951 UN convention on refugees — to which Israel is also a party.” The United Nation’s High Commission on Refugees (UNHCR) expressed “serious concern” with Israel’s plans to deport migrants to countries such as Rwanda and Uganda. In order to combat the deportations, the UNHCR has encouraged asylum seekers to file for refugee status in Israel based on the premise that they will then be protected under the United Nations 1951 Convention Relating to the Status of Refugees (the Convention).
The Convention relating to the Status of Refugees was adopted by the United Nations (UN) in 1951 and serves as “the centerpiece of international refugee protection today.” It defines a refugee as any person who, “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership to a particular social group or political opinion, is outside the country of his nationality, is unable or . . . owing to such fear, is unwilling to return to it.” The convention recognizes that those seeking asylum may have to breach immigration rules and seeks to protect the refugees who “present themselves without delay to the authorities and show good cause for their illegal entry or presence.”
Furthermore, the Convention is based on a number of fundamental principles, “most notably non-discrimination, non-penalization and non-refoulement.” Non-refoulement is an extremely important aspect of the Convention because it prohibits countries from expelling a refugee to his home country “where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”
However, this prohibition of expulsion is limited, and a refugee may be excluded in cases where a country has reasonable grounds to view the refugees as a danger to the security of the country or if the refugee has been convicted of a particularly serious crimes and “constitutes a danger to the community of that country.” It is important to note that the Convention does not contain any provisions relating to the allocation of responsibility for asylum claims, nor does it stipulate criteria for countries sending asylum seekers to safe, third party countries.
The “Safe Third Country Notion”
In the 1970s and 1980s many European countries closed their borders to permanent settlers, and since then, humanitarian admission has become virtually the only option for legal immigration. However, many believe that the asylum channel has been misused and that the line between asylum seekers and economic migrants has “started to blur.” This has prompted many developed countries to establish measures that restrict access to both their “territories and asylum systems.” “As a result, numerous refugees are put ‘in orbit.’ Without being directly returned to persecution, but left without asylum, ‘they are shuttled from one country to another in a constant quest for protection.’” One proposed solution to ending the “orbiting phenomenon” is the “safe third country” notion. This approach provides that as long as a country meets its obligations under the Convention and observes the stipulations of the non-refoulement clause, they may transfer refugees to “safe third countries.” Furthermore, the UNHCR Conclusions on the Executive Committee of the High Commissioner’s Program (ExCom) provide for the idea that States can send refugees to other countries in order for them to obtain “protection elsewhere.” The legality of the notion cannot be entirely excluded because “the 1951 Convention neither expressly authorizes nor prohibits reliance on protection elsewhere policies.” However, the concept is controversial due to its potential impact on access to asylum and non-refoulement.
The UNHCR provides guidance on how to distinguish an economic migrant from a refugee. An economic migrant is one who normally leaves their home country voluntarily in order to seek a better life and does not face threats from his or her government if they returned home. On the other hand, refugees “flee because of the threat of persecution and cannot return safely to their homes in the prevailing circumstances.” A government may deport persons who are determined, under an equitable procedure, not to be refugees. However, UNHRC urges that countries protect refugees and refrain from deporting them if they come from countries “devastated by armed conflicts or generalized violence.”
The Situation in Israel
Although Israel has a relatively open immigration policy when it comes to admitting Jews from around the world (a concept known as Aliyah), since the mass migration of African refugees began in 2006, it has shifted radically. A majority of these migrants come from Eritrea and Sudan, partly due to low standards of living and ongoing violence and repression. Israel is attractive to many African migrants because it is “the most profitable and stable country in the Middle East and the region’s only true democracy.” In fact, International Monetary Fund (IMF) statistics show that while Israel’s unemployment rate in 2017 was only around 4.3%, its neighbors Egypt, Jordan, and Sudan have unemployment rates of 12.2%, 15.3% (no data for Jordan’s unemployment in 2017) and 19.6%, respectively.
As of the end of 2017, there were approximately 38,000 Africans in Israel who considered themselves asylum seekers and most of them were from Eritrea and Sudan. However, Israel has only granted refugee status to two Sudanese and eight Eritreans in the past decade.
Most of these migrants came into the county illegally and they are normally detained in the Holot Detention Center. Since 2013, Israel has deported approximately 4,000 migrants, mostly to Uganda and Rwanda, after the refugees have signed an agreement conceding that they are leaving Israel by their own free will. However, Israel’s Prime Minister Benjamin Netanyahu recently announced that the Holot Detention center will be closing on March 16, 2018 and the country will begin forcibly deporting all illegal immigrants to third party countries. This announcement comes on the heels of the Infiltrator’s Bill and the agreement between Netanyahu and Rwandan President Paul Kagame, whereby Rwanda has agreed to accept up to 10,000 forced deportees at the cost of $5,000 per refugee. It has also been said that Uganda has agreed to a similar deal, despite their public denials.
Despite international outcry against these deportations, the Israeli government argues that they are justified in their actions because many of these refugees were motivated to come into the county by economic factors, as opposed to political persecution; therefore, they can legally be deported, regardless of refugee status under the 1951 Convention, because criminals are exempt from the protections of the statute. This view of the migrant’s as “infiltrators” differs drastically from the majority of Africans who have crossed into Israel and describe themselves as refugees seeking political asylum.
“Under international law, Israel is not obligated to take these people in just because it is hard to differentiate between the migrant workers and the actual asylum seekers.”
Israel also “has the undeniable right to interview, analyze, and ultimately decide if an illegal immigrant falls within the definition of ‘refugee’ as the statute defines it.” Furthermore, the fact that only a handful have been recognized as refugees is indicative of the fact that Israel is unlikely to admit more of the population into the country, regardless of whether they apply for asylum in order to avoid forced deportation.
UNHRC is concerned that “these persons have not found adequate safety or a durable solution to their plight and that many have subsequently attempted dangerous onward movements within Africa or to Europe,” are valid. The reality is that Rwanda and Uganda are not even party to the Convention; therefore, they are not bound to treat refugees in a way regulated by the United Nations, nor is there any guarantee that they will not violate non-refoulement, even if Israel technically is not in violation.
Ultimately, all countries must draw a line between duty to their citizens and international responsibility for migrants. Therefore, despite the calls for Israel to refrain from these forced deportations, it is highly unlikely that they will be deterred from following through with the Infiltrators Bill. This is due to the lack of concrete international law prohibiting them from doing so, the fact that they aren’t actually violating non-refoulement because they are sending the migrants to a third country, and because they give the migrants a choice to leave willingly and to go wherever they want.
 See Melanie Lidman, As Israel prepares to deport African migrants, deportees divulge dangers, The Times of Israel (Dec. 13, 2017 2:00 PM), https://www.timesofisrael.com/as-israel-prepares-to-deport-african-migrants-deportees-divulge-dangers/ [https://perma.cc/D7WP-5XJR].
 See id.
 See id.
 United Nations Convention Relating to the Status of Refugees, July 18, 1951, Introductory Note, 189 U.N.T.S. 137, available at http://www.unhcr.org/en-us/3b66c2aa10 [https://perma.cc/PFJ2-S4GV].
 Id. at Ch. 1, art. 1(2).
 Id. at Introductory Note.
 Id. at Ch. 5, art. 31(1).
 Id. at Introductory Note (stating that “[t]he fundamental importance and enduring relevance of the Convention . . . is widely recognized,” and in 2001 the States party to the Convention “issued a Declaration reaffirming their commitment” and recognizing that “the core principle of non-refoulement is embedded in customary international law.”)
 Id. at Ch. 5, art. 33(1).
 Id. at Ch. 5, art. 33(2).
 See V. Moreno-Laz, The Legality of the “Safe Third Country” Notion Contested: Insights from the Law of Treaties’, in G.S. Goodwin-Gill and P. Weckel (eds), Migration & Refugee Protection in the 21st Century: Legal Aspects – The Hague Academy of International Law Centre for Research (Martinus Nijhoff, 2015) 663-721, available at http://www.unhcr.org/59632a847.pdf [https://perma.cc/TES2-WESH].
 Id. at 664.
 See id. at 665-666.
 See EXCOM Conclusions No. 15 (XXX) of 1979 on refugees without an asylum country and No. 58 (XL) of 1989 on the irregular movement of asylum-seekers, in Compilation of Conclusions Adopted by the Executive Committee on the International Protection of Refugees: 1975-2004; UNHCR, The Concept of ‘Protection Elsewhere’ (1995), 7 IJRL 123; UNHCR, Lisbon Expert Roundtable, Lisbon 9-10 December 2002, Summary Conclusions on the Concept of ‘Effective Protection’ in the Context of Secondary Movements of Refugees and Asylum Seekers, February 2003, available at http ://www.unhcr.org/protect/PROTECTION/3e5f323d7.pdf [https://perma.cc/Y3W4-LTQR].
 Moreno-Laz, supra note 13, at 667.
 See id. at 665.
 UNHCR, Protecting Refugees: questions and answers, UNHCR (Feb. 1, 2002), http://www.unhcr.org/afr/publications/brochures/3b779dfe2/protecting-refugees-questions-answers.html [https://perma.cc/XGE4-XL3W].
 See id.
 See id.
 See Eliott Rimon, Infiltration or Immigration: The Legality of Israeli Immigration Policy Regarding African Asylum Seekers, 23 Cardozo J. Int’l & Comp. L. 447, 448 n. 8 (2015) (discussing Israel’s immigration laws and how they relate to Africans who seek asylum in the country).
 See id. at 449.
 See id.
 Id. at 451.
 IMF Data Mapper: Unemployment rate, International Monetary Fund (2017), http://www.imf.org/external/datamapper/LUR@WEO/OEMDC/ADVEC/WEOWORLD/ISR [https://perma.cc/K5MN-FUJQ].
 Since 2014, Egypt’s unemployment rate has only decreased from 13.4% to 12.2% in 2017. See id.
 Since 2014, Jordan’s unemployment rate has increased from 11.9% to 15.3% in 2016. See id.
 Since 2014, Sudan’s unemployment rate has only decreased from 19.8% to 19.6% in 2017. See id.
 See id.
 The IMF does not have unemployment data for Eritrea.
 See Lidman, supra note 1.
 See id.
 See id.
 See id.
 See id.
 See id.
 JTA, Uganda Denies It Agreed to Take Israel’s Deported African Migrants, The Forward (Jan. 4, 2018) https://forward.com/fast-forward/391412/uganda-denies-it-agreed-to-take-israels-deported-african-migrants/?attribution=articles-article-listing-1-headline [https://perma.cc/R3PK-9W4E] (citing evidence that thousands of African migrants that had previously been deported had arrived in Uganda).
 See Rimon, supra note 26, at 451, 472.
 Lisa Schlein, UNHCR Urges Israel Not to Forcibly Deport African Refugees, Asylum Seekers, VOA News (Jan. 09, 2018 10:49 AM), https://www.voanews.com/a/unhcr-urges-israel-not-to-forcibly-deport-african-refugees-or-asylum-seekers/4199694.html [https://perma.cc/LB6P-L2FE].
 See Rimon, supra note 26, at 462.
 See id. at 461.
 See Lidman, supra note 1.
 See United Nations Convention Relating to the Status of Refugees, supra note 6, at Final Act.