The Interior Ministry declared Sanait Tesfauneh, an asylum-seeker from Eritrea, a ‘threat to public security’ and placed her in administrative detention after she was suspected of purchasing a forged work permit. Now, several organizations are attempting to challenge the detention system that deprives asylum seekers of their civil liberties.
Victor Hugo’s Les Misérables was published in 1862. Over the years the book became the most famous indictment against the treatment of the weak by society, authorities, and the law. Hugo tells the tale of Jean Valjean who was unable to find work to support his family, so he smashed a bakery window and stole a loaf of broad. For this he was jailed for many years. “What a mournful moment is that in which society withdraws itself and abandons irreparably a thinking being forever,” Hugo writes. “So long as there shall exist, by reason of law and custom, a social condemnation, which, in the face of civilization, artificially creates hells on earth…books like this cannot be useless,” Hugo predicted 150 years ago in the book’s preface, and didn’t know how right he was.
The year is 2012. Sanait Tesfauneh, an Eritrean woman who arrived in Israel, is suspected of purchasing a forged work permit that will allow her to work and support herself. She did not stand trial and was not convicted. Israeli authorities stripped her of any human rights or defense and jailed her for an unspecified amount of time. The Supreme Court approved this last week.
According to Interior Ministry policy, Eritreans are not deported from Israel due to the danger they face in their home country. The Interior Ministry refers to this as a “non-deportation policy.” Yet the Interior Ministry does not grant Eritreans work permits when they are released from prison. They are given residency permits for several months, which are extended, and explicitly state that they are not work permits. There is also a “non” part of this policy – non-enforcement. In other words, Eritreans may not work, they may not be employed, but the Interior Ministry declared that it would not enforce this ban and would not fine employers. The Supreme Court approved this policy.
Tesfauneh had a permit that stated on it that she could not work. She faced challenges, like many others, finding a job and supporting herself. When she finally found a housekeeping position at a Tel Aviv hotel she was told that she would not be hired without a work permit. Like others barred from supporting themselves due to the “non” policy, she purchased a forged work permit and paid NIS 400 every few months to renew it. By doing so she was able to work.
Last August she was arrested. It was decided that she not be prosecuted due to lack of public interest. She was transferred to the Interior Ministry, which immediately placed her in administrative detention for an unrestricted period time time, pursuant to the Prevention of Infiltration Law.
In September the “infiltrator” detention policy was anchored in Interior Ministry policy. The policy determines that “infiltrators” will only be arrested in cases in which they are suspected of posing a threat to state security or to public safety. When reviewing who was arrested pursuant to this policy, one discovers how broad the definition of “threat to public safety” is. According to Interior Ministry policy, there are asylum seekers in prison for “life sentences” who were not tried and are suspected of misdemeanors such as purchasing a forged work permit allowing them to work and support themselves.
The prison’s Administrative Tribunal refused to release Tesfauneh, and determined that she no longer needs to worry about survival, as the basics are provided in jail. The District Court also rejected the petition. An appeal was submitted to the Supreme Court, and a deliberation was held in mid-December before Justices Danziger, Hendel and Sohlberg.
Ahead of the hearing we requested – on behalf of Hotline for Migrant Workers, the Association for Civil Rights in Israel, and the Legal Clinic for Immigrants’ Rights at the College of Law and Business – to join the proceedings as amicus curiae. The request was drafted in collaboration with Hotline attorney Asaf Weitzen.
In the request and in the hearing we insisted that the Interior Ministry had created a separate, oppressive and unprecedented system of punishment for asylum seekers. Administrative detention is an extreme and unusual tool; it is not a standard tool to be used by law enforcement authorities. Criminal law – through the courts, the right to legal representation, the presumption of innocence, and the need for the prosecution to prove guilt beyond reasonable doubt – is supposed to provide guarantees against the arbitrary deprivation of liberties. “Infiltrators” are stripped of all of these things and are exposed to random deprivation of their rights for indefinite periods of time. We stressed that these were not arrests ahead of deportations, as the State of Israel recognizes that Eritrean and Sudanese nationals cannot be deported due to the danger they would face in their home countries. These are the indefinite administrative detentions of individuals; either there is not enough evidence to prosecute them, or there is no public interest in their prosecution. Administrative detention as a means of punishment, deterrence or prevention is a severe tool and is not permitted. According to Israeli law, administrative detention – even in cases in which authorities claim the detainees pose a severe security threat – should be the last option, and should only be used when its purpose cannot be achieved by any other means. Criminal proceedings are not a luxury. They are the rule.
We also related to the court that since the Interior Ministry policy on “infiltrators” was introduced, NGOs have learned of dozens of cases in which individuals were arrested pursuant to the policy. In one case, for example, an asylum seeker filed a complaint against an acquaintance, claiming that he had raped her; he was arrested, pursuant to the policy. Afterwards, the complainant informed the police that she had fabricated the complaint, as she feared that her husband would find out that she had engaged in consensual relations with her acquaintance. Rather than releasing the acquaintance, the Interior Ministry decided to arrest the woman as well, pursuant to the policy, for filing a false complaint. In another instance an asylum seeker was arrested pursuant to the policy for having military property in his home. His Israeli landlord declared that the property was his, but to no avail. In another case the police arrested an asylum seeker from Darfur, in Sudan, on suspicion that he stole a cellular phone from a migrant worker from the Philippines. The phone was not found in his possession, and he denied any link to the act attributed to him. During the Magistrate Court hearing on the extension of his remand, the court determined that he be released on very low bail “in light of the nature of the offense and the circumstances.” Rather than release him, as per the court directive, the Interior Ministry detained the asylum seeker before he was able to meet the conditions of release set by the court.
In addition, since the existence of the policy has been made public, various people have misused it. For example, we have heard of cases in which Israeli employers who owe asylum seekers money for their work have warned them that if they insist on their rights and the money they deserve, they will file a police complaint that will lead to the asylum seekers’ arrest. In one case an asylum seeker couple who hired a photographer to document their wedding were sued by the photographer, who wanted them to pay for a camera that broke when he fell while taking pictures. When they refused he threatened to go to the police. Fearing that they would be arrested pursuant to the Interior Ministry policy on “infiltrators,” they paid him.
A verdict was handed down this week. Justice Hendel, with the consent of Justices Danziger and Sohlberg, determined that the court should not interfere with the Interior Ministry decision, and allowed for Tesfauneh’s continued detention for an undetermined amount of time. Her detention was deemed justified because, among other reasons, she is a threat to public safety: purchasing forged documents and using them to work adversely affects the reliability of state-issued identification papers.
The court also determined that because Tesfauneh’s case is different than others that we presented because she purchased a number of forged permits over an extended period of time. The court further noted that she has been incarcerated for a short time (five months at the time of the hearing, currently six months). The state also declared at the hearing that Tesfauneh could be allowed to file an asylum request (the state had heretofore prevented Eritreans from doing so), and that an attempt would be made in the coming months to deport her to a third country (the state has declared for years that it is trying to deport Eritreans to a third country).
The court left the legal questions pertaining to the Prevention of Infiltration Law and the Interior Ministry policy to the hearing on the legal petition filed by NGOs.