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United Kingdom Asylum and Immigration Tribunal
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Cite as:  UKAIT 17,  UKAIT 00017
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MA (Palestinian Arabs Occupied Territories Risk) Palestinian Territories CG  UKAIT 00017
Date of hearing: 15 November 2006
Date Determination notified: 20 February 2007
|Secretary of State for the Home Department||RESPONDENT|
For the Appellant: Mr. A. Bandegani, of the Refugee Legal Centre (RLC).
For the Respondent: Mr. K. Norton, Senior Home Office Presenting Officer.
Merely being a Palestinian Arab in the Occupied Territories , even if male aged between 16-35 from the northern part of the West Bank, does not mean that a person would face on return a real risk of persecution, serious harm under paragraph 339C of the amended Immigration Rules or ill-treatment contrary to Article 3 of the ECHR. This Determination, made with the benefit of up-to-date and detailed background evidence, updates and replaces AB & others as country guidance.
DETERMINATION AND REASONS
(a) The Adjudicator did not find the Appellant credible and rejected his entire account of these events (paragraph 17 of the Determination).
(b) The Adjudicator did not consider that there was a real risk of any ill-treatment at the hands of the Palestinian authorities or Fatah, because he did not believe that the Appellant had been a credible witness (paragraphs 17 and 26 of the Determination).
(c) The Adjudicator then went on to consider whether the Appellant would be at real risk of persecution or Article 3 ill-treatment at the hands of the Israeli authorities who are in occupation of Tulkarm. In this regard, the argument advanced to the Adjudicator was that the Israeli authorities have imposed restrictions on the movement of Palestinians within the West Bank, that the Appellant would therefore be liable to be stopped at Israeli checkpoints and that this would amount to persecution or, failing that, to treatment in breach of Article 3. The Adjudicator found that such restrictions would not be so severe as to amount to persecution (paragraph 20 of the Determination). He found that the Appellant would not suffer treatment amounting to torture or inhuman treatment at the hands of the Israeli authorities on account of the restriction of his movements as a Palestinian in the West Bank. However, he concluded that Israel's treatment of the Palestinian people amounts to degrading treatment of the Palestinian people in their own territory. He therefore accepted the submission advanced on the Appellant's behalf that there is a real risk of the Appellant as a Palestinian, and especially as a young Palestinian male, being subjected to degrading treatment by the Israeli authorities if returned to the West Bank. Accordingly, he allowed the appeal on human rights grounds, Article 3. He did not find that the Appellant's removal would be disproportionate to his right to family life with his sister who was then in the United Kingdom (she has since returned to the West Bank). Accordingly, the Adjudicator did not find that Article 8 would be breached by the Appellant's removal.
(a) that, although the background evidence before the Adjudicator details incidents of harsh treatment of Palestinians by the Israeli authorities, the evidence was not such that all Palestinians are subjected to such treatment, nor did the evidence show that the Appellant faced a real risk of treatment reaching the level of severity required to engage Article 3;
(b) the fact that the Appellant had not had any problems from any of the authorities in the past is a relevant factor which should have been considered by the Adjudicator when assessing the likelihood of ill-treatment in the future. In this regard, the grounds contend that the Appellant had not given any history of having faced any problems from any of the authorities in the past and that, at his asylum interview and in cross-examination, he was asked if he had ever had problems with anyone other than the Al-Fateh group and, on both occasions, he confirmed that he had not.
(c) the comparison which the Adjudicator made at paragraph 25 between Somali minority clans and returning Palestinians is not relevant and that the Adjudicator's opinion that all returning Palestinians are at real risk of ill-treatment contrary to Article 3 is purely speculative.
1. In paragraph [sic] the Adjudicator found that there was not a real risk that the Appellant would suffer torture or inhuman treatment at the hands of Israeli forces on the West Bank. The Adjudicator went on to find in the next paragraph that the restrictions on Palestinians amounted to degrading treatment and that returning the Appellant to the West Bank would expose him to a real risk of degrading treatment contrary to Article 3 of the ECHR.
2. It is arguable that the treatment relied upon by the Adjudicator does not reach the level of ill treatment required to engage Article 3.
3. The Adjudicator had found in paragraph 20 that the restrictions imposed on the Appellant did not amount to persecution within the meaning of the Refugee Convention.
4. The Appellant had not put in a Reply seeking to challenge that finding. The Appellant submitted that if the restrictions on the Appellant engaged Article 3 the Adjudicator should have found that the Appellant was also at risk of persecution. It was submitted that this was a Robinson obvious issue which should be pursued even though not specifically taken thus far. The Respondent did not oppose that course.
5. We therefore concluded that the Adjudicator had erred in his assessment of Article 3 or that he had erred in his assessment of the risk of persecution.
1. whether there is a real risk that the treatment likely to be experienced by the Appellant on his return to the West Bank engages Article 3 or is sufficient to amount to persecution;
2. whether the Appellant is a member of a particular social group likely to be subjected to persecution on account of imputed political opinions.
(a) a bundle entitled "Respondent's Supplementary Bundle" with a 10-page skeleton argument followed by 146 pages of various documents;
(b) a black-and-while copy of a A-3 size map of Israel and the Occupied Territories.
We also have before us a copy of the Respondent's statutory appeal bundle.
The following documents were served on the Appellant's behalf:
(a) Bundle A entitled "Index of Documents", containing a witness statement from the Appellant dated 29 May 2006 (pages 1 to 8), a report of Dr. A. George dated 15 May 2006 (pages 9 to 25) and background evidence (pages 26 to 476);
(b) Bundle B entitled "Index of Legal Materials" (pages 1 to 271);
(c) Bundle C entitled "Index of Case law" (pages 1 to 140);
(d) a skeleton argument dated 15 November 2006.
We agreed to give Mr. Bandegani some time (until Friday, 17 November 2006) to provide a better copy of the document at pages 327 and 328 of the Appellant's Bundle A. At the end of the hearing, Mr. Bandegani kindly agreed to send us a colour copy of a map of Israel and the Occupied Territories by the following Friday. We confirm that we have received compete copies of pages 327 and 328 of the Appellant's bundle A and two colour copies of the large map (not three, as stated on the protective tube in which the maps arrived).
Also relevant is the current country guidance case a copy of which we found on file i.e. AB & Ors (Risk Return Israeli Checkpoints) Palestine  UKIAT 00046.
The Appellant's statement dated 29 May 2006:
(a) His eldest sister (aged 32 years) has a doctorate in DNA research. In January 2006, she returned to Tulkaram in the West Bank from the United Kingdom. She had to travel through the Jordanian border, over the bridge and through many checkpoints into Tulkarm. She had to wait many times. She was only able to get through with an identity card.
(b) An older sister (aged thirty years) previously studied at a local university in Tulkaram and is unemployed. Her husband, who is a nurse, is not being paid his salary. They live with their children in one of the camps next to Tulkarm. The camp is run by the Palestinian Authority and has been severely affected by the Israeli forces. This sister has experienced regular periods during which she and her family are not allowed to leave their home; the Israeli forces move through the streets telling people with the aid of loudspeakers that they are not allowed to leave their homes.
(c) One brother is studying in the Czech Republic. The remaining three brothers are in the Occupied Territories.
(d) The oldest of the Appellant's brothers in the Occupied Territories (aged 26 years) is a teacher in a school in Tulkarm.
(e) The Appellant's younger brother (aged nineteen years) is studying in a university in Nablus. He experiences great travelling difficulties nearly every day because he has to stay at checkpoints for hours. Sometimes he is told to return to Nablus and sometimes "they" will not allow him to return to Tulkarm.
(f) The Appellant's youngest brother (aged sixteen years) studies at a school near the family home. He has not suffered any specific targeting because (the Appellant says) he is still quite young.
(a) "Arab male Palestinian between the ages of fourteen and forty who comes from Tulkarm";
(b) by the end of the hearing, Mr Bandegani had refined the group and described it as follows: "Palestinian Arab males from Tulkarm or Jenin aged between fourteen to forty".
Other possible Geneva Convention reasons would be perceived political opinion, race or ethnicity.
Para 65 (page 28): the ICJ rejected the contention that the question of the wall was outside its jurisdiction. In any event, the court stated that there is no compelling reason for it to use its discretion not to give its opinion;
Para 137 (page 55): the court stated that it is not convinced that the specific course Israel has chosen for the wall was necessary to attain its security objectives. It stated that the wall, along the route chosen and its associated regime, greatly infringed a number of rights of Palestinian Arabs residing in the territory occupied by Israel, and the infringements resulting from that route cannot be justified by military insurgences or by the requirements of national requirements of public order;
Para 113 (page 44): the court rejected another argument, i.e. that human rights law does not apply to the Occupied Territories;
Para 101 (page 40): the court rejected the argument that the fourth Geneva Convention is not applicable in any occupied territory in the event of an armed conflict arising between two more high contracting parties. The court held that the Convention is applicable in the Palestinian territories which before the conflict lay to the east of the green line and which, during that conflict, were occupied by Israel;
Para 120 (page 46): the court noted that the fourth Geneva Convention required the occupying power not to deport or transfer parts of its own civilian population into the territory it occupies. The court considered that the information provided to the court shows that, since 1977, Israel has conducted a policy and developed practices involving the establishment of settlements in the occupied Palestinian territory, contrary to the fourth Geneva Convention. The Security Council has thus taken the view that such policy and practices "have no legal validity". It has called upon Israel as the occupying power to abide scrupulously by the fourth Geneva Convention;
Para 134 (page 54): the court concluded that the construction of the wall by Israel and its associated regime inhibited the liberty of movement of the inhabitants of the occupied Palestinian territories with the exception of Israeli citizens and those assimilated thereto;
Para 142 (page 57): the court concluded that Israel could not rely on a right of self defence or on a state of necessity in order to preclude the wrongfulness of the construction of the wall resulting from its previous considerations. The court accordingly found that the construction of the wall and its associated regime are contrary to international law.
(1) Acts of persecution within the meaning of Article 1 A of the Geneva Convention must:
(a) be sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms; or
(b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a).
(2) Acts of persecution as qualified in paragraph 2, can, inter alia, take the form of:
(a) acts of physical or mental violence; including acts of sexual violence,
(b) legal, administrative, police, and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner;
(c) prosecution or punishment, which is disproportionate or discriminatory;
(d) denial of judicial redress resulting in a disproportionate or discriminatory punishment;
(e) prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses as set out in Article 12(2);
(f) acts of a gender-specific or child-specific nature.
Page 236: the report states that the "forbidden roads regime" is a slippery policy, in part because its rules and regulations have never been set in writing;
Page 238: the report states that the "roads regime", which is based on separation through discrimination, bears clear similarities to the racist apartheid regime which existed in South Africa until 1994. An individual's national origin determines their rights to use various roads. This policy is based on a racist premise: that all Palestinian Arabs are security risks, and that it is therefore justifiable to restrict their movement. Thus the policy indiscriminately harms the entire Palestinian population, in violation of their human rights and of international law.
Page 239: the CAABU Report states that the routes set for most of the new roads ran across privately-owned Palestinian land. To enable this, Israel used illegal "requisition for military needs" and "expropriation for public use" measures.
Consideration of the issues
The Qualification Directive as compared with the Protection Regulations and the amended Immigration Rules:
Regulation 2: "persecution" means an act of persecution within the meaning of Article 1 (A) of the Geneva Convention;
Regulation 5 (1) In deciding whether a person is a refugee an act of persecution must be:
(a) sufficiently severe by its nature or repetition as to constitute a severe violation of a basic human right, in particular a right from which derogation cannot be made under Article 15 of the Convention for the protection of Human Rights and Fundamental Freedoms; or
(b) an accumulation of various measures, including a violation of a human right which is sufficiently severe as to affect an individual in a similar manner as specified in (a).
(2) An act of persecution may, for example, take the form of:
(a) an act of physical or mental violence, including an act of sexual violence;
(b) a legal, administrative, police or judicial measure which in itself is discriminatory or which is implemented in a discriminatory manner;
(c) prosecution or punishment, which is disproportionate or discriminatory;
(d) denial of judicial redress in a disproportionate or discriminatory punishment;
(e) prosecution or punishment for refusal to perform military service in a conflict where performing military service would include crimes or acts falling under regulation 7.
Paragraph 339C: Serious harm consists of:
(i) the death penalty or execution;
(ii) unlawful killing;
(iii) torture or inhuman or degrading treatment or punishment of a person in the country of return; or
(iv) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict.
The minimum level of severity
Country guidance cases
" the very unusual set of country conditions prevailing in the destination country, namely, that the Occupied Territories is afflicted by significant levels of violence in the context of an ongoing armed struggle being conducted by various Palestinian organisations against the Israeli authorities and there is also a very significant presence of fundamentalist Muslim organisations .
we have to bear in mind, firstly, that the Tribunal in the WK case did not conduct an in-depth analysis of the general background evidence relating to the situation in the Occupied Territories and, secondly, that the Tribunal's brief all-embracing observation in the quote above does not help us to decide the specific questions which have been raised in the instant case, which include whether denial of re-entry per se amounts to persecution, whether there is a real risk of ill-treatment if the Appellant travels from the point of re-entry to his hometown in Tulkarm, whether the cumulative difficulties which Palestinian Arabs face in the Occupied Territories is such that it can be said that Palestinian Arabs are a persecuted ethnic group, whether the Appellant would be at real risk on account of being a young male Palestinian Arab from Tulkarm or the northern part of the West Bank and whether (if he had to stay in Jericho) he would face a real risk of persecution and/or of suffering general conditions sufficiently severe as to amount to serious harm or treatment in breach of Article 3. Thirdly, this case was not a country guidance case and was not reported for what it said about country conditions.
(a) that there is no evidence before the Tribunal that anyone has ever been successfully removed to any part of the Occupied Territories or that the Respondent would seek the procurement of any Emergency Travel Documents other than such as might be issued via the Palestine General Delegates Office in London (paragraph 24 of the Determination);
(b) if there were any prospect of a successful return, it would inevitably follow that each appellant would be placed in the control of the Israeli authorities at the point of entry to the Occupied Territories. The Tribunal did not consider that the background evidence supported the contention that this would expose any of the appellants to a real risk of persecution or a breach of their protected human rights. The only relevant evidence is that the Israeli security forces will not allow ethnic Palestinian Arabs being forcibly returned from abroad to re-enter the Occupied Territories (paragraph 33 of the Determination);
(c) the Tribunal concluded that the general evidence does not, in its judgment, justify the conclusion that all ethnic Palestinian Arabs from the Occupied Territories are at real risk of arbitrary detention and ill-treatment by the Israeli authorities (paragraph 32 of the Determination);
(d) the mere fact of being stateless, whilst this may pose difficulties for each of the appellants, could not of itself amount to persecution or a breach of the appellants' human rights because there is no country which is excluding them from a nationality to which they would otherwise be entitled. There is no state of Palestine to offer them citizenship and neither is there any international obligation on the State of Israel who retain a large measure of control over the Occupied Territories to offer them citizenship (paragraph 35 of the Determination).
Whether refusal of re-entry into the Occupied Territories amounts to persecution
(a) that the argument of the appellant in that case that denial of re-entry by the Israeli authorities to the place of his former habitual residence would amount to persecution was a line of argument which was beset with difficulties (paragraphs 44 to 47 of the judgment). His lordship said:
I am far from satisfied that there is a true analogy between a state's denial of entry to one of its own citizens and denial of entry to a stateless person (who, unlike a citizen, has no right of entry into the country), or that denial of entry to a stateless person can be said to constitute a denial of his third category rights of sufficient severity to amount to persecution (especially given the possibility of his exercising those rights elsewhere).
(b) that it was unnecessary to deal in any detail with the submission on behalf of the appellant that the denial of re-entry to the Occupied Territories by reason of the appellant's Palestinian identity was capable of constituting degrading treatment contrary to Article 3 of the ECHR.
The re-entry route and the documents needed to seek re-entry:
(a) According to the Respondent's supplementary statement at pages 9 and 10 of the Respondent's supplementary bundle, the Respondent has confirmed the following with the Palestinian General Delegates Authority (PGDA) in London:
(i) removals of Palestinian Arabs to the West Bank via Israel using Ben Gurion Airport is not effective unless the person in question exited via that route with the appropriate permission and documentation;
(ii) removals of Palestinian Arabs to the West Bank via Jordan is currently the only effective route for those holding Palestinian documentation and the PGDA have confirmed that the Jordanian authorities are content to let those with a valid passport pass through their territory.
(b) The bridge which crosses the Jordan River and connects Jericho in the West Bank to the country of Jordan is known by many names. It is known to the Israelis as the Allenby Bridge, the Jordanians as the King Hussein Bridge and the Palestinian Arabs as the Al-Karemeh Bridge (according to the Wikipedia encyclopaedia on page 19 of the Respondent's bundle). Another name for this bridge is the Malik Hussein Bridge (paragraph numbered 3 of the "Travel Information and tips" issued by the International Solidarity Movement (ISM) (undated but downloaded on 13 November 2006);
(c) The Wikipedia article on page 19 of the Respondent's bundle also states that the West Bank side of the bridge is considered a border entry point by Israel and is controlled exclusively by the Israelis but the Jordanian authorities do not recognise this as an international border entry point and therefore (in contrast to other border crossings with Israel) do not grant entry visas to foreign passport holders at this crossing. Although we recognise that the Jordanian authorities do not recognise this as an international border crossing, we have referred to it as a border crossing in this Determination for convenience in order to mark the point when a returnee will be requesting the Israeli security forces for permission to re-enter the West Bank;
(d) Documents: The article by the Forced Migration Organisation (FMO) entitled "Palestinian Refugees in Jordan" (undated but downloaded on 13 November 2006 (at pages 90 to 98 of the Respondent's supplementary bundle) states (at pages 93 and 94 of the Respondent's supplementary bundle) that "Cards of Crossing" issued by the Jordanian authorities are of three types:
(i) a Yellow card (family reunification card) indicates that the holder is a permanent resident in Jordan and is able to go to the West Bank because of the family reunification card s/he holds;
(ii) a Green card indicates that the holder lives in the West Bank and that his/her visit to Jordan is temporary;
(iii) a Blue card is issued to "Gazans" who live in Gaza or Jordan and it indicates that the holders were included in family reunification cards as being able to live in Gaza.
The likelihood of re-entry being permitted
This is where Palestinians cross back and forth into Jordan and it's usually crowded.
Israel has revoked the residency rights of thousands of Palestinians living in the West Bank on the pretext of their having lived abroad for prolonged periods. These individuals now find themselves separated from their families and livelihoods . Today, a number of them are trapped in Jordan after repeated attempts to return to their homes in the West Bank.
The Appellant's sister was able to re-enter the West Bank in January 2005 or January 2006. However, the evidence is that she returned voluntarily. Furthermore, the evidence from Al Haq is more recent. On the whole of the evidence, we conclude that the Tribunal's view on this point in AB and others holds good.
The report of Dr. A. George our general observations
That Dr Alan George was qualified to provide the report on Iraq he did is not in doubt and the report was a helpful contribution to the in-county information available to the immigration judge
KK IH HE (Palestinians Lebanon camps) Palestine CG  UKIAT 00293;
AR (Kurd: not risk per se) Syria CG  UKAIT 00048; and
LM (Educated women Chaldo- Assyrians - risk) Iraq CG  UKAIT 00060.
(a) In the LM case, Dr. George is referred to at paragraphs 9, 53 and 54 of the Determination. We cannot see any in-depth analysis in that case of the general expertise of Dr. George.
(b) In the KK IH HE case, the Tribunal heard oral evidence from Dr. George, whose written and oral evidence is summarised at paragraphs 18 to 43 of the Determination in that case. The Tribunal assessed the evidence of Dr. Joffe (from whom it also heard evidence and Dr. George at paragraph 85 onwards. At paragraph 86, the Tribunal expressed concern about the fact that Dr. George had only visited Lebanon once in 1996. The Tribunal found surprising Dr. George's statement that he can better monitor the Middle East from London than on the ground as people speak more freely in London. The Tribunal considered that a person would be far more likely to be able to get a realistic feel for the conditions in the camps if (in the case of Dr. George) he had visited the camps more recently than in 1996. The Tribunal found itself in agreement with the Respondent's representative concerning the occasional sweeping generalisation to be found in the evidence of Dr. George. The Tribunal did not consider that it can properly be said, as contended by Dr. George, that conditions in the camps are life threatening generally. Otherwise and, in general, the Tribunal found the evidence of Dr. George was essentially consonant with the various country reports of specialist bodies.
(c) We note that the AR case concerned Syrian Kurds. In the AR case, the Tribunal also heard oral evidence from Dr. George, whose written and oral evidence is summarised at paragraphs 27 to 59 of the Determination in that case. At paragraph 77 onwards, the Tribunal commented on Dr. George's evidence referring to him as "clearly a knowledgeable witness .. [with] a lengthy history of commentating on Middle Eastern matters" (paragraph 77). However, at paragraph 78, the Tribunal expressed concern with the efforts Dr. George made as to the truth or lack of it concerning the suggestions that significant numbers of Syrian Kurds were to be granted citizenship. The Tribunal considered that Dr. George seemed to have gone to a source from which the answer given could be expected and that the Tribunal would have expected Dr. George to have carried out more extensive research than he did. At paragraph 79, the Tribunal stated that, with that caveat in mind, the Tribunal considered that Dr. George's evidence is in general consistent with the background evidence and deserving of weight being attached to it as a consequence.
"As well as persisting with its colonisation of the West Bank, Israel is persisting with its human rights violations in the territory."
The separation wall and the advisory opinion of the ICJ
Israeli military incursions and operations in the Occupied Territories
the northern part, which includes: Nablus, Jenin, Tulkarm and Qalqilya
the southern, which includes: Ramallah, Jerusalem (east), Jericho, Bethlehem and Hebron.
We have also considered the background evidence relating to the Gaza Strip.
|No:||Date:||Report by:||Area / location|
|157||28.05.06||Ma'an News Agency||Quaffin, north of Tulkarm|
|158||26.05.06||Ma'an News Agency||Tulkarm|
|159||19.05.06||Ma'an News Agency||Tulkarm|
|161||15.05.06||Ma'an News Agency||Tulkarm|
|162||10.05.06||Ma'an News Agency||Tulkarm|
|163||07.05.06||Ma'an News Agency||Attil, north of Tulkarm|
|164||07.05.06||Ma'an News Agency||Hebron and Tulkarm|
|315, 318 320||19.07.06||Reuters Foundation||Nablus + central Gaza Strip|
Report (a) is the report pages 195 to 218 of the Appellant's bundle A entitled: "Israeli Violations documented during the reporting period 11 to 17 May 2006" issued by the General Union of Palestine Students (GUPS) (the details of the incursions are at pages 199 to 211);
Press Release (b) is the press release from the PCHR (Palestinian Centre for Human Rights) dated 7 July 2006 at pages 321 to 323 of the Appellant's bundle A;
Report (c) is the weekly report from the PCHR for the period from 3 August to 9 August 2006 435 to 456 of the Appellant's bundle A (the details of the incursions are at pages 440 to 450); and
Report (d) is the weekly report of the PCHR for the period from 10 to 16 August 2006 of the Appellant's bundle A (the details of the incursions are at pages 461 to 470; these include incursions into the Gaza strip, despite the title of this section on page 461).
(i) the weekly report from the PCHR from 27.04.06 to 03.05.06 (page 135 of the Appellant's bundle A) refers to an extra-judicial execution of a Palestinian activist in the Gaza Strip and 37 incursions into Palestinian communities in the West Bank particularly Nablus;
(ii) the weekly report from the PCHR from period for 04 to 01.05.06 (page 140 of the Appellant's bundle A) refers to an extra-judicial execution in the Gaza Strip and 38 incursions into Palestinian communities in the West Bank particularly Nablus; and
(iii) the figures from the 2005 Annual Report by the PCHR which are mentioned at paragraph 34 of Dr. George's report and which show that, in 2005, a total of 123 civilians were killed by the Israeli security forces in the Occupied Territories as a whole, 27 of whom died in the Gaza Strip and 96 in the West Bank. Of those who died in the West Bank, 83 deaths occurred in the northern part of the West Bank, with 28 in Nablus, 24 in Jenin and 17 in Tulkarm.
Since 1967, in various forms, Israel has monitored and limited the movement of Palestinians within and between the West Bank, East Jerusalem and the Gaza Strip. Since 1991, Israel has imposed a system by which Palestinians need individual exit permits to travel to and from three areas: the West Bank, East Jerusalem, and the Gaza Strip. Since the roads between the north and south of the West Bank pass through Jerusalem movement within the West Bank itself became severely limited.
The purpose of such interior checkpoints is solely "to prevent free passage of Palestinian residents between their villages and towns," says group spokeswoman [of Machsom Watch] Adi Dagan .
The Israeli Defence Force disputes this. "If the Army's sole purpose would be to prevent freedom of moment for normal Palestinians, "says IDF spokesman, Captain. Jacob Demal, "it would be a waste of our time. But checkpoints are there to impair the transportation efforts of potential suicide bombers, who use the routes time and time again".
(i) Page 142 (PCHR weekly report dated "04 01.05.06") evidence that the Israeli security forces separate the north and south of the West Bank. The Za'tara checkpoint was closed. The presence of Israeli security forces at the 'Attara checkpoint, north of Ramallah, was re-established. Two new checkpoints near Ramallah were erected.
(ii) Page 148 (PCHR press release dated 23 April 2006) evidence that the Za'tara checkpoint is being developed into an "international" crossing similar to Qalandiya checkpoint. The PCHR contend that the Za'tara checkpoint is part of the Israeli plan of dividing the West Bank into 3 "Bantustans".
(iii) Pages 198, 214 to 216
(GUPS report entitled: "Israeli Violations documented during the reporting period 11 to 17 May 2006") refers to "abuse" by Israeli security forces at various checkpoints against a number of Palestinian civilians. It also states that two Palestinians were arrested at checkpoints in the West Bank during this period. On 12 May 2006, a checkpoint was erected to the west of Nablus through which all Palestinians civilians aged under 30 were prevented from crossing. The following day, dozens of young men were detained for several hours at Hawara checkpoint, south of Nablus. On 14 May 2006, a number of civilians were beaten and humiliated at a checkpoint to the west of Nablus. On 11 May 2006, severe restrictions imposed on the movement of residents of Tulkarm. Prolonged and "humiliating" checks. Civilians who tried to use alternative dirt roads were chased, and dozens held for several hours. On 13 May 2006 restrictions prohibited the movement of Palestinians to and from Tulkarm. Dozens of young men who resorted to using alternative dirt roads were held.
(iv) Page 254 (report of CAABU dated 18 May 2006) states:
Palestinians of all ages, no matter the gender or social status or affiliation with a certain group, are likely to be subject to limits and/or mistreatment. However, it is far more likely for young men, usually between the age of 16-35 (at least) to be stopped or denied entry to a certain area more than any other. In this case, it has nothing to do with the proven track record or history of the young man in question. Simply by being of a certain age singles him out for harsher restrictions. Overall, the very young (up until the age of 10-12), and the elderly (70 and older) are most likely to have less problems of movement than any other age group.
... All Palestinian males from Nablus, Jenin and Tulkarm between the ages of 16-35 are prevented from heading south through all permanent, semi-permanent and flying checkpoints in the northern West Bank, unless they have special permits [attributed to the weekly briefly notes 9-15 August [year unspecified] of the United Nations Office for the Co-ordination of Humanitarian Affairs in the Occupied Territories].
... .. The gender of applicants [for a travel permit] has a statistically significant effect on probability of refusal being male increases the probability of refusal by 20 %.
(v) Pages 305, 306, 308 & 309
Reuters Foundation press report of 20 August 2006: that Palestinians under the age of 35 are generally prevented from passing through Israeli military checkpoints in the West Bank as part of security restrictions against potential bombers. At a checkpoint in the West Bank, Israeli soldiers shot dead one Palestinian and wounded two others at Hawara checkpoint near Nablus.
(vi) Pages 451 to 453
(PCHR weekly report from 03.08.06 to 09.08.06) reports the imposition of severe restrictions on the movement of Palestinian civilians in the Gaza Strip and the West Bank. In the West Bank, severe restrictions are reported in Ramallah, Hebron, Tulkarm, Nablus and Jenin. In Tulkarm, Palestinians aged below 35 were prevented from passing two checkpoints. Palestinians who resorted to alternative dirt roads were chased and held for several hours under the sun.
(vii) Pages 471 to 473
(PCHR weekly report from 10.08.06 to 16.08.06) reports the imposition of additional restrictions on movement of Palestinians in east Jerusalem, Ramallah and Hebron and severe restrictions on the movement of Palestinian civilians in Nablus, Tulkarm and Jenin. In Nablus, Palestinians below the age of 30 were prevented from crossing various checkpoints. In Tulkarm, Palestinians below the age of 35 were prevented from crossing all checkpoints around Tulkarm.
(viii) Para 32 of Dr. George's report
Quoting from the PCHR 2005 Annual Report, Dr. George refers to the Israeli security forces having "imposed restrictions at border crossings between the [Occupied Territories] and Israel; limiting the movement of Palestinian civilians between the West Bank and the Gaza Strip; preventing students from the Gaza Strip from attending their universities in the West Bank; preventing family visitations; depriving hundreds of patients from the Gaza Strip of access to medical treatment in hospitals in the West Bank, including occupied East Jerusalem; and depriving Palestinian civilians of access to Islamic and Christian sites in Jerusalem, Bethlehem and Hebron .The [Israeli security forces] have also imposed more complicated restrictions on internal movement in the West Bank and the Gaza Strip. Hundreds of checkpoints have been placed at the entrances of Palestinian communities in the West Bank in order to restrict the movement of Palestinians civilians from one community to another.
At various hours, there is also an age restriction on leaving through various checkpoints. The restrictions affect people between the ages of 16 and 30.
. It was implemented several times last year, for varying durations. Sometimes, the separation is in both directions.
Treatment at checkpoints
The main points which are made in the general narrative are as follows:
(i) Palestinians have to wait for long periods of time, often for hours, in the scorching heat, in order to pass through checkpoints;
(ii) Page 57 of the book describes several checkpoints as well as flying or mobile checkpoints.
(iii) "At checkpoints there is only the rule of the moment, always shifting, always changing, sometimes responsive to pleading, sometimes not. There is scant shelter, no seating, no toilets, no facilities fit for human beings." (page 57)
(iv) The procedure at the checkpoints is described at page 58. One would arrive at a checkpoint to face a line of waiting pedestrians. If the crowd gets impatient and begins to surge or struggle forwards, it is herded back with shouts and curses to some arbitrary point. If soldiers feel provoked or threatened, they may respond with live fire, not infrequently with fatal results. Documents are checked at the examination point. Checks may be cursory or thorough. The transitee may stand ten to twenty metres from the soldiers, or suffer close examination. Men may or may not be asked to bare their chests and bellies and execute a piroti to prove the absence of weapons or explosives. Women may or may not be required to undergo a more discreet body check. Children and women may be passed ahead of the crowd, or forced to wait in line. The variations are unpredictable and endless. Petty extortion and blackmail have their place here.
(v) A common sight is a group of detainees, held while their documents are checked by radio with a computer. "Officially, it is illegal to detain people as punishment for longer than three hours, but actual waiting periods may last a whole day, or even overnight, in blazing heat or freezing cold, with little or no shelter. Detainees may be forced to stand facing a wall, hands above head, or be allowed to stand or sit at ease, at the whim of their captors or on the intervention of the Watchers. The majority are released sooner or later, but young men are particularly vulnerable to a detention." (pages 58 and 59)
(vi) An individual lucky enough to pass a checkpoint may be stopped on the other side by the civil police (page 59).
(vii) At page 60 of the book, a reference is made to the problems of language and culture at checkpoints.
(viii) The majority of Israelis do not speak Arabic and many Palestinians, especially women and older children, do not know Hebrew.
(ix) Page 61 of the book refers to the disruption which occurs at checkpoints when there is an alert. An alert is a signal for the checkpoint to close, whether for minutes or for hours. The author of the report likens rumours to a "hot alert", which can bring about the so-called "stop all life" procedure i.e. the sudden closing of the checkpoint to all movement for an indefinite period.
(x) "Orders from the senior echelons are vague and inconsistent. Conscripts must rely on their own interpretation of the rules, every man and woman a king." (page 64)
(xi) There is a reference to illegal labourers being vulnerable targets for kicks, blows and curses, even death (page 74 of the book).
(xii) "Violence is endemic at checkpoints, never far from the surface of the routine and inevitable in the encounter between military and civilian" (page 84 of the book).
With regard to the descriptions of events at specific watches, we noted that:
(xiii) There are references to "checkpoint watchers" having witnessed a soldier being "particular rude and foul" to the Palestinians and another soldier reportedly saying that the Palestinians "are animals and do not deserve any human rights" (page 68 of the book).
(xiv) There is a description of an account by Dr Ilana Hammerman of a journey on the edge of route 60 (page 75 of the book). This account demonstrates the existence of internal checkpoints. Dr Hammerman states (page 77 of the book) that he witnessed "no abuse, and no atrocities but the routine of military and police activity so that anyone coming here, just forty minutes' ride from Jerusalem, will find themselves more concerned for their security than they were before."
(xv) There is an account of an incident involving children who were throwing stones at a few soldiers who retaliated by shooting live ammunition at the fleeing children whilst chasing them (page 80 of the book).
(xvi) There is an account of a "watch" during which the "watchers" heard shouts and screams and sounds of beating at a checkpoint which went on for about half an hour (page 81 of the book).
(xvii) In one incident (see page 82), a sick man who had requested permission to be allowed to pass on account of his health was ordered by the soldiers to the end of the line. A row then erupted in the course of which the man was dragged to a small sentry post and "probably beaten" - he suddenly lost his consciousness, fell and remained unconscious."
(xviii) On page 83, the author states that the incidents described in that section were often regarded by the military as operational and that soldiers are therefore not called to account. Page 83 records one case where the perpetrators were actually punished due to the testimony of "watchers". On page 84 of the book, the author states that the soldier who perpetrated an attack on a Palestinian doctor and his commander were charged and sentenced, respectively, to 35 and 21 days imprisonment.
The CAABU report states:
(xix) (Page 230 of the Appellant's bundle A) Closely linked with movement restrictions is ill-treatment at checkpoints and gates in the [separation wall]. Delays, harassment and humiliation continued to be endured by Palestinians attempting to pass through the checkpoints.
(xx) (Page 247) Both verbal and physical assaults take place at checkpoints/within villages . At times the abuse is aggravated by racism, humiliation, anger or amusement .. Palestinians are routinely subjected to harassment and abuse at checkpoints.
Risk to returnees
46. Whether [MA] were to attempt to travel to the West Bank via Jordan and the King Hussain Bridge crossing point or via Israel's Ben Gurion international airport in Tel Aviv, or if he was to attempt to travel to the Gaza Strip via Egypt, he would come to the notice of the Israeli security authorities. In each case, he might attract adverse Israeli attention at the border. In my opinion, the Israelis could view with suspicion the extended period that he has been outside the West Bank.
The economic condition in the West Bank, and the general situation
. Severe and frequently arbitrary restrictions on freedom of movement in the West Bank, Gaza Strip, and East Jerusalem, contributing to a serious humanitarian crisis marked by extreme poverty, unemployment, and food insecurity. The movement restrictions also have severely compromised Palestinian residents' access to health care, education, and other services.
CAABU is of the firm view that to understand the facts on the ground in the [Occupied Territories], and in particular in the West Bank, the full reality has to be considered as a whole. This means considering the cumulative effect of 'closure', the separation barrier, the treatment of Palestinians, especially young male Palestinians, at checkpoints and generally, the denial of self-determination, the annexation of land, the restricted use of roads, and the myth of security reasons as a means to further inhibit movement and to break up the daily rhythm of life, access to permits necessary to move within de facto 'cantons' in the west bank [sic] and the discriminatory policy that pervades the Israeli Defence Force thinking and action throughout all these practices and polices and which manifests itself in the collective punishment of Palestinians to one degree or another because they are Arab. There are other considerations as well and other harsh realities to be considered, but we have tried to touch on as many as possible. That clearly does not mean there is more evidence to add to this picture. From what we know and honestly believe, it is our view that [the Appellant], because he is a young Arab male Palestinian national from Tulkarm, will be subject to inhumane and degrading treatment if returned to the West Bank.
(a) The organisation has taken into account irrelevant matters in reaching its opinion on the Appellant's case. We agree that the cumulative difficulties which each individual faces must be considered as a whole but we do not agree that that means that the existence of the separation wall is relevant in all cases. CAABU assumes that it is relevant in the Appellant's case notwithstanding the fact that he has not given any evidence to suggest that it has any bearing on the reality of his situation. He has not suggested that he has suffered from any loss of any land due to the building of the separation wall or that (if returned) he would regularly need to pass through checkpoints along the separation wall in order to access land between the wall and the Green Line. For the same reasons, the fact that the Israeli authorities have not built the separation wall along the Green Line (referred to by CAABU as "annexation") will not be relevant unless the individual can show that it is relevant to the reality of the situation he/she will face on return. The Appellant has not given any evidence to indicate that this is relevant to the reality of his situation in the West Bank.
(b) The general tone of the language in which CAABU's opinion is expressed shows that the subjective and partisan view of the organisation on the political situation has been allowed to influence their decision concerning their opinion on the Appellant's case. Of course, they are fully entitled to hold opinions on the political situation. It is another matter, however, when those opinions are allowed to influence their decision on their opinion as to whether the Appellant is reasonably to be subjected to inhuman or degrading treatment. CAABU's opinion is partly based on their opinion that there are no valid security reasons for the action of the Israeli security forces which CAABU contends are directed towards all Palestinians simply because they are Arabs.
(c) The opinion of CAABU that the Appellant will be subject to inhuman and degrading treatment is based on general factors which apply to all young Palestinian Arab males from the West Bank. We have considered the background evidence carefully to decide whether it can be said that Palestinians are at real risk of persecution or serious harm simply on account of their ethnicity and whether it can be said that young Palestinian Arab males are reasonably likely to face persecution or serious harm. We have answered those questions in the negative. We have concluded that the opinion of CAABU is not consistent with the background evidence.
Summary of our conclusions
Our assessment of the Appellant's individual case
The original Tribunal made a material error of law. The following decision is substituted.
The appeal is dismissed on asylum grounds.
The Appellant is not entitled to humanitarian protection under paragraph 339C of the Immigration Rules.
The appeal is dismissed on human rights grounds.
Ms. D. K. Gill Date: 8 February 2007
Senior Immigration Judge
Approved for electronic distribution
Background materials considered by the Tribunal
(In chronological order)
|BBC News: "The Palestinians under closure."||20/01/02|
|Palestinian Centre for Human Rights: Press release: "Palestinian prisoner deprived attorney visit by Israel authorities".||28/01/02|
|The Israeli Centre for Human Rights in the occupied Territories; "Israel's Policy of House Demolitions and Destruction of Agricultural Land in the Gaza Strip."||02/02|
|Palestinian Centre for Human Rights: Fact Sheet: "Siege and Closure."||18/03/02|
|Palestinian Centre for Human Rights: Press release: "Israeli occupying forces place Gazan in administrative detention."||24/03/02|
|Palestinian Centre for Human Rights: Press release: "Fear of Torture and Ill-Treatment of Thousands of Palestinians detained by Israeli Occupying Forces."||09/04/02|
|Palestinian Prisoners Day Announcement: "International community must ensure Israel's respect for rights of detainees"||17/04/02|
|Journal of Palestine Studies Vol XXXI No3: "Israel's Closure policy: An Ineffective Strategy of Containment and Repression."||Spring 2002|
|Palestinian Centre for Human Rights; "Fact Sheet: Crimes against Housing and Agriculture."||02/06/02|
|Ha'Aretz: "Long-term sieges."||13/06/02|
|Palestinian Centre for Human Rights: Statistics: "Settlements"||28/06/02|
|Palestinian Centre for Human Rights: Statistics: "Closures, Unemployment and Poverty."||28/06/02|
|Palestinian Centre for Human Rights: Statistics: "General Statistics on the Occupied Palestinian Territory."||28/06/02|
|Palestinian Centre for Human Rights: Statistics: "Settlements"||28/06/02|
|Ha'Aretz: "A million people under curfew."||01/07/02|
|Ha'Aretz; "The IDF shuts away the sea at Rafah."||15/07/02|
|Palestinian Centre for Human Rights: Statistics: "Arrests, imprisonment and torture."||04/10/02|
|Ha'Aretz: "Every soldier's a chief of staff."||03/11/02|
|Ha' Aretz: "A land of roadblocks and barriers."||03/11/02|
|Palestinian Centre for Human Rights: Statistics: "Attacks and restrictions on medical personnel and the right to health care."||12/03/03|
|Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, International Court of Justice, General List No 131||09/07/04|
|Palestinian Centre for Human Rights: Statistics: "Destruction of Land and Property."||31/01/05|
|Palestinian Centre for Human Rights: Statistics: "Killings and Injuries."||31/01/05|
|Palestinian Centre for Human Rights: Statistics: "Destruction of Land property"||31/01/05|
|Palestinian Red Crescent Society: Photograph gallery, separation wall. 79 Images dated 14/08/03-10/05/05, date of download 29/05/06.||14/08/03-10/05/05|
|Human Rights Watch: "Promoting Impunity. The Israeli Military's failure to Investigate Wrongdoing."||06/05|
|International Crisis Group: "The Jerusalem Powder Keg"||02/08/05|
|Al Mubadara Palestinian National Institute: "IDF Cantonises West Bank, sealing in Palestinians."||16/01/06|
|US Department of State: Israel and the Occupied Territories Country Report on Human Rights Practices 2005||08/03/06|
|Palestinian Centre for Human Rights: "Israeli Occupation Forces (IOF) Completely isolate the Northern West Bank from the South."||23/04/06|
|Palestinian Centre for Human Rights: "Security Chaos and Proliferation of Small Arms. Use of Weapons in Clan and Personal Disputes."||24/04/06|
|Palestinian Centre for Human Rights: Statistics: "Statistics related to Al Aqsa Intifada 29 September 2000-updated 01 May 2006."||01/05/06|
|Palestinian Centre for Human Rights: "Weekly Report: On Israeli Human Rights Violations in the Occupied Palestinian Territory" for period from 04 01/05/06 (No. 18/2006)||01/05/06|
|Palestinian Centre for Human Rights: "As a Form of Collective Punishment, IOF Continued to Harass and Arrest Mothers of Allegedly Wanted Palestinians."||02/05/06|
|Palestinian Centre for Human Rights: "Weekly Report: On Israeli Human Rights Violations in the Occupied Palestinian Territory" for period from 27/04/06 to 03/05/06 (No. 17/2006)||03/05/06|
|Ma'an News Agency: "Barriers in Tulakrem area blocking the citizens from going to their work and universities."||06/05/06|
|Ma'an News Agency: "Israeli soldiers close Beit Iba Barrier, stop residents."||06/05/06|
|Ma'an News Agency: "Three Palestinian citizens arrested in At'til."||07/05/06|
|Ma'an News Agency: "Yet more arrests in Tulkarem."||07/05/06|
|Ma'an News Agency: "Three Palestinians arrested in Tulkarem area."||10/05/06|
|Expert report of Dr A George.||15/05/06|
|Ma'an News Agency: "3 arrested in Tulkarem (19, 20 and 24 years old)"||15/05/06|
|Ma'an News Agency: "Families of prisoners demand their release."||16/05/06|
|General Union of Palestinian Students: "Israeli Occupation Forces Escalate Attacks on Palestinian Civilians and Property in the Occupied Palestinian Territory" for period 11/05/06 to 17/05/06||17/05/06|
|CAABU (Council for the Advancement of British-Arab Understanding): Report.||18/05/06|
|Ma'an News Agency: "One prisoner from Tulkarem released; another three receive arrest warrants."||19/05/06|
|IMEMC news article: "Settlers attack schoolchildren".||21/05/06|
|IMEMC news article: "Israeli forces fire tear gas at Nablus market."||21/05/06|
|Internet posting by J Matthew: "Palestinians, Israelis, horrified at Hebron "jungle."||21/05/06|
|Palestinian Centre for Human Rights: "British Human Rights Lawyer Denied Entry to Israel."||26/05/06|
|Ma'an News Agency: "Sport and Social Club in Tulkarem raided by Israeli forces, its contents destroyed and computers confiscated."||26/05/06|
|Ma'an News Agency: "Countdown to Apartheid" by Jeff Harper.||28/05/06|
|Ma'an News Agency: "Israeli Forces shoot 21 year-old walking in town"||28/05/06|
|Bitterlemons.org edition 21: "Palestinian-Israeli Crossfire."||29/05/06|
|Introduction on Ma'an Images||30/05/06|
|New York Times: "At Checkpoint in Gaza, Travellers wait and Wait."||05/06/06|
|MIFTAH: Palestinian public opinion poll Living Conditions / National Dialogue and the Referendum / Evaluation of Institutions.||07/06/06|
|MIFTAH: "Checkpoint witnesses."||08/06/06|
|MIFTAH: Interview with PLC member Dr Hanan Ashrawi.||10/06/06|
|Reuters Foundation: Palestinian shot dead in West Bank car."||11/06/06|
|Reuters Foundation Alert Net: "Palestinians on verge of total chaos-report."||13/06/06|
|Reuters Foundation Alert Net: "Fatah gunmen torch Hamas offices in the West Bank."||13/06/06|
|Palestinian Centre for Human Rights: press release: "Israeli Occupation Forces (IOF) Carry Out Reprisals against Palestinian Civilians in the West Bank."||29/06/06|
|Wikipedia; "Allenby Bridge."||07/07/06|
|Palestinian Centre for Human Rights: press release: "Bloody Day of Violence: 24 Palestinians killed by Israeli Occupation Forces in the Gaza Strip and 2 killed in the West Bank, 115 others injured."||07/07/06|
|Palestinian Centre for Human Rights: press release: "IOF Attack El-Maghazi Refugee Camp in Gaza and Nablus in the West Bank."||19/07/06|
|Reuters Foundation Alert Net: "Israel kills 3 gunmen in West Bank raid-medics."||19/07/06|
|Il pane e le Rose: " Denied the approval of return to Gaza to the Palestinian musical group."||30/07/06|
|Reuters Foundation Alert Net: "Record Hizbollah rocket barrage kills 1; West Bank hit."||02/08/06|
|Reuters Foundation Alert Net: "Palestinian killed in West Bank shooting."||06/08/06|
|Palestinian Centre for Human Rights: weekly report for period from 03/08/06 to 09/08/06.||09/08/06|
|Palestinian Centre for Human Rights: weekly report for period from 10/08/06 to 16/08/06||16/08/06|
|Palestinian Centre for Human Rights: press release: "3 Palestinian Civilians Killed by IOF in the West Bank."||20/08/06|
|Reuters Foundation Alert Net: "Israeli troops kill Palestinian in West Bank-radio."||20/08/06|
|Reuters Foundation Alert Net: "Israeli troops detain Hamas lawmaker in West Bank."||20/08/06|
|Reuters Foundation Alert Net: "Israeli troops kill West Bank militant-security."||31/08/06|
|Reuters Foundation Alert Net: "Israelis arrest suspected West Bank rocket squad."||03/09/06|
|United Nations: OCHA Humanitarian Update: "Access and Protection"||09/06|
|International Solidarity Movement: Archive for the "Tulkarem Region" Category.||03/11/06|
|International Solidarity Movement: "Travel Information and Tips."||13/11/06|
|www.kinghussein.gov.jo: "Getting to Jordan"||13/11/06|
|www.kinghussein.gov.jo: "Entry and visa requirements."||13/11/06|
|www.forcedmigration.org: "Palestinian refugees in Jordan"||13/11/06|
|Checkpoint Watch: "Testimonies from Occupied Palestine" by Yehudit Kirstein Keshet||2006|
|Palestinian Centre for Human Rights: "Destruction of Land and Property." (downloaded 13/06/06)||Undated|
|Palestinian Centre for Human Rights: "Violations of Children's Rights." (downloaded 13/06/06)||Undated|
|Palestinian centre for Human Rights: "Closures." (downloaded 13/06/06)||Undated|
|Palestinian Centre for Human Rights: "Arbitrary detention, Ill-treatment and Torture." (downloaded 13/06/06)||Undated|
|Palestinian Centre for Human Rights: "Fact Sheet: Prisoners and Torture." (downloaded 13/06/06)||Undated|
|Palestinian Centre for Human Rights: Closure Convention||Undated|
|Palestinian Centre for Human Rights: "International Covenant on Civil and political Rights" (downloaded 13/06/06)||Undated|
|12 Various photographs.||Undated|
|Large coloured map of Israel and Occupied Territories.||Undated|
|Christian Aid maps: "Facts on the Ground. The end of the two-state solution?"||Undated|
|Palestinian Economic Council for Development and Reconstruction; Map.||Undated|