Martin Plaut posted: " The 103-page ruling accepted the state’s position that desertion from the Eritrean army merits asylum only if it has an ideological dimension – “something more” that would indicate that the asylum seeker was genuinely being persecuted. Source: Haare" Martin Plaut

The 103-page ruling accepted the state’s position that desertion from the Eritrean army merits asylum only if it has an ideological dimension – “something more” that would indicate that the asylum seeker was genuinely being persecuted.

Source: Haaretz

The new ruling accepted the state’s position that desertion from the Eritrean army merits asylum only if it has an ideological dimension – ‘something more’ that would indicate that the asylum seeker was genuinely being persecuted.

People wait in line at the Population and Immigration Authority in Bnei Brak in December.Credit: תומר אפלבאוםBar PelegGet email notification for articles from Bar PelegFollow

Feb 8, 2023 12:51 am IST

An appellate custody tribunal has ruled for the first time that the criteria Israel set in 2019 for approving Eritreans’ asylum requests complies with Israel’s interpretation of the 1951 Refugee Convention.

The ruling, issued last week, therefore rejected the applications of 34 asylum seekers who were jailed and tortured in Eritrea because they intended to desert the army. They fled to Israel in 2010.

The 103-page ruling accepted the state’s position that desertion from the Eritrean army merits asylum only if it has an ideological dimension – “something more” that would indicate that the asylum seeker was genuinely being persecuted.

Until early 2013, Eritreans couldn’t file asylum applications at all because Israel gave them collective protection, and the state therefore saw no point in examining individual requests. But even after it started considering such requests that May, it rejected most of them. In January 2022, Haaretz reported that 98.5 percent of Eritrean asylum requests were rejected after being examined in light of the new criteria.

The state has steadfastly insisted that desertion from the army, even if it carries a substantial penalty, isn’t grounds for asylum. In 2018, the Justice Ministry’s appellate custody tribunal rejected that position, saying that while desertion alone indeed isn’t grounds for asylum, it could be if deserting expressed a political opinion whose punishment could amount to persecution.

The state appealed that ruling, but as part of the subsequent legal proceedings, it drafted new asylum criteria that required it reexamine some 3,000 asylum applications.

The tribunal’s judge, Chanania Guggenheim, said that both the opinion drafted by the Population and Immigration Authority’s legal adviser in 2013 and the criteria drafted by an advisory committee in 2019 were legal, so there was no reason to intervene in them.

“The document includes two principles that, if one of them exists alongside desertion or draft-dodging, could establish grounds for asylum,” he wrote. “Moreover, it lists indicators and circumstances that could influence the examination of an application, both positively and negatively.”

“Even assuming someone who returned to Eritrea would be persecuted because of his desertion, this persecution isn’t happening due to one of the grounds in the convention, such as political views or belonging to a certain social group,” he added.

He also wrote that “there is no barrier to the Population Authority interpreting the Refugee Convention so as to wield its authorities legally; it is even obliged to do so.” This interpretation will be binding unless and until the courts rule otherwise, he added.

Guggenheim stressed that his ruling doesn’t eliminate the need to examine every application individually. But he said the criteria are based on “reliable, up-to-date information about the country of origin” and constitute “a suitable tool that could be of help in examining asylum requests from Eritrea.”

He also rejected one appellant’s request to publish the criteria in full, lest this undermine the credibility of asylum proceedings. But he said the criteria ease the burden of proof on asylum seekers.

Michal Pomerantz, who represented one appellant, said she plans to appeal the ruling.

The ruling also noted that not long ago, similar appeals were heard by three Supreme Court justices, yet now, they are heard by a single custody judge. This has drawbacks, Guggenheim wrote, but it also has an advantage – the tribunal’s decisions can be appealed to the regular courts.

Finally, he said the state should consider suitable solutions for asylum seekers who have been here for a long time due to the non-refoulement policy, which bars the deportation of asylum seekers from certain countries where conditions are particularly bad. Nevertheless, he added, this issue is not within the tribunal’s purview.