Regulating Entry and Residence Conditions for Syrians: A Legal Victory in Lebanon
On February 8, 2018, Lebanon’s high administrative court, the State Council, issued a ruling stating that it is not for the General Directorate of General Security to amend the conditions of Syrians’ entry and residence in Lebanon because the law restricts this prerogative to the Council of Ministers. Accordingly, the State Council annulled the General Security decision issued in 2015 that has blocked many Syrian citizens from entering Lebanon and prevented others from obtaining or renewing legal residence permits.
The State Council decision pertains to a case that a Syrian refugee, alongside The Legal Agenda and the organization Frontiers Ruwad, filed in 2015 to challenge the General Security directives amending the entry and residence conditions for Syrians. When filing the case, the plaintiff party justified it as an attempt to rationalize the state’s policies and its handling of the concerns arising from the refugee crisis and to affirm the legal limits that must be adhered to at all times. Top among those limits are the internationally established right of asylum and the international agreement signed with Syria that guarantees freedom of movement of people between the two countries. Implicitly, the case aimed to make the political and judicial institutions shoulder their responsibility in refugee policy, which should not be handled using rules dictated solely by a security body.
The most important points of the decision are:
General Security decisions pertaining to the conditions of foreigners’ entry and residence are subject to judicial oversight.
The General Security decision issued in 2015 is illegal because it was issued by an incompetent body.
The Council of Ministers is the authority competent to amend the conditions of foreigners’ entry and residence.
General Security’s role is limited to applying these conditions. It has no right to amend them or impose new fees.
There is no legal justification for the Council of Ministers to not exercise this prerogative as it has been functioning and the conditions for exceptional circumstances that could justify bypassing its powers have not been met.
Any amendment to the conditions of Syrians’ entry and residence in Lebanon must respect the international agreements signed with Syria, which guarantee freedom of movement of people between the two countries and freedom of residence and work.
What is the Significance of the State Council’s Decision?
The State Council’s decision is a move toward strengthening the rule of law and institutions as it has several important dimensions:
First, it obliges the government to shoulder its responsibility in setting Lebanon’s refugee policy after it has neglected to do so for six years, leaving the matter to the security agencies and municipalities. This has led to radical differences in refugee policies and the approaches taken by local administrative and security authorities. Some municipalities have facilitated Syrians’ residence in view of their forced migration. In turn, these municipalities have taken advantage of the activity and funding of international organizations to improve economic and social circumstances within their jurisdiction. However, other municipalities have imposed restrictive measures on Syrians, usually in contravention of the law and in excess of their legal powers. Hence, in this decision, the judiciary is confirming that Lebanon’s exercise of its sovereignty and protection of its security is subject to the laws that grant the political authority, represented by the Council of Ministers, the primary role in setting the country’s policies as the body that presumably faces not only legal but also political accountability.
Second, the decision subjects General Security to legal controls and curbs its practices that overstep its legal powers and encroach on powers of the government or even, in some cases, of parliament. Such practices have come to constitute one of the main institutional failures whereby security is prioritized over the rights of individuals, especially foreigners. The current legal framework regarding foreigners is based largely on administrative directives issued by General Security, usually without any real oversight from the political and judicial institutions. These directives include, for example, the establishment of the infamous sponsorship system, the unlawful detention of foreigners (which has led to mass grievances), and the conditions for granting them entry and residence permits in Lebanon. They also include harsh restrictions on the most marginalized foreigners, such as refugees, domestic workers, and low-income earners. Of course, these practices would never have gotten so far had the political institutions and the judicial institutions (the Cassation Public Prosecution in particular) not continuously ignored their responsibilities in this area.
Third, the decision acknowledges that the General Security decision directly harms Syrian citizens. This applies in particular to the plaintiff in the case examined by the State Council, who was turned away at the Lebanese border [despite holding a valid legal residence and a UNHCR refugee certificate]. It also theoretically applies to those who were forced to enter Lebanon via unofficial border crossings to flee persecution, including ten people who froze to death in early 2018 while traversing one such crossing. The decision also directly harmed those whom it deprived of legal residence. The United Nations estimates that more than 74% of Syrian refugees have no legal residence because they do not meet the new conditions that were imposed in 2015 by the annulled General Security decision. General Security directives imposed harsh and costly conditions for renewing residence permits without taking into account the circumstances of refugees, seriously impacting Syrian citizens unable to return to Syria or leave Lebanon for another country. The most significant obstacles preventing Syrians from obtaining legal residence include the difficulty of obtaining it based on refugee status, the requirement to secure a Lebanese sponsor, the high fees, and the issuance of deportation orders against many Syrians who have been unable to obtain residence – orders that have not been implemented because of the non-refoulement principle. Note that the 2015 decision received two major amendments: the first exempted a category of refugees from residence and overstay fees in February 2017, while the second allowed sponsors to be changed on an exceptional basis from September 2017 to March 2018. The affectedinjured also include people who succeeded in obtaining legal residence but did so in the framework of the sponsorship system, which has facilitated their exploitation and derogation from their rights.
What Are the Expected Consequences of the State Council’s Decision?
The decision is effective immediately, which means that the authorities concerned (the Ministry of Interior, General Security, and the Council of Ministers) are obliged to implement it within a “reasonable timeframe” per Article 93 of the State Council Statute. Implementation requires acknowledging the annulment of the General Security decision issued in 2015 - on account of its illegality - and all directives issued on the basis of it. One of two things may follow:
General Security may return to applying the directives in force before 2015, whereby Syrians were allowed to enter Lebanon irrespective of the reason for entry and were granted six-month, renewable residence permits. Returning to these directives would help rectify the legal status of many people residing in Lebanon without a residence permit.
The Council of Ministers may issue a new decision regulating the conditions of Syrians’ entry and residence in Lebanon as it deems appropriate. This would legally compel the government to shoulder its responsibility in this area and would require a political consensus between the various parties represented in government. If a new decision is issued, it must respect the freedom of movement and residence between Syria and Lebanon stipulated in their bilateral agreements and should not impose residence fees on Syrians pursuant to the exemption stipulated in Article 25 of Decree 10188 of 1962, according to the State Council’s decision. The Council of Ministers would also have to formulate its policy in a manner that guarantees human dignity in line with the Universal Declaration of Human Rights and the international agreements and conventions that [Lebanon] has signed, which are now an integral part of its Constitution per the preamble. In this regard, The Legal Agenda submitted a number of recommendations to the Ministry of Interior in November 2016. They included exempting Syrian refugees from obtaining a residence permit, as in Jordan, and replacing it with registration with the Ministry of Social Affairs or with the municipalities under the Ministry of Interior’s oversight.
Additionally, this decision is also expected to cause Lebanese courts to refrain from punishing Syrians for violating the 2015 decision due to illegal entry or overstay on the basis that it was issued by an incompetent authority.
The Details of the State Council’s Decision
Besides the above, the State Council’s decision concluded that:
The General Security decision is subject to judicial oversight as it does not fall within the category of “Acte de Gouvernement”. Decisions under the latter category benefit from immunity from judicial review. This was in response to the state’s motion to have the case dismissed on the basis that the decision is not subject to judicial oversight as it relates to acts of sovereignty, exercising protective authority, ensuring public order, and international relations.
The General Security decision is challengeable on the basis that it is an administrative decision that is in force and causes injury because it adds new rules affecting the Syrian refugee plaintiff’s legal position and all other Syrians wanting to enter Lebanon. This was in response to the state’s motion to have the case dismissed on the basis that the decision causes no harm as it merely regulates Syrians’ entry rather than prohibiting it.
That the plaintiff has standing to challenge the General Security decision as he is directly injured by it. On the other hand, the State Council deemed that the two plaintiff organizations – The Legal Agenda and Frontiers Ruwad – did not have standing to challenge the decision because neither “had proven that filing legal challenges regarding the prevention of displaced persons from entering Lebanon or tightening the restrictions on said entry is part of its purposes”. This finding limits the ability of associations to challenge administrative decisions that affect their goals, especially as the Ministry of Interior is in the practice of refusing to allow any association to include “litigation” within its [declared] purposes and activities.
Regarding the body competent to amend the conditions of Syrians’ entry and residence in Lebanon, the decision stated:
Whereas although it is true that the aforementioned texts give General Security broad powers in controlling the Lebanese border, policing infractions that occur there, and informing the bodies concerned about the infractions, this freedom given to General Security must still be exercised within the limits of the laws in force and international agreements …
Whereas it is clear from all these texts that the authority competent to set transit and residence fees and to set the conditions and means of granting visas and residence permits is the Council of Ministers via a decree that it issues, and that should these conditions and fees be amended, the authority responsible for making these amendments is the Council of Ministers itself, not any other authority, pursuant to the principle of the parallelism of forms.
It is also clear that the 1962 law stipulates that its application to foreigners is subject to the international agreements, which naturally take precedence over domestic law per Article 2 of the Code of Civil Procedure. [This is significant because] Article 1 of the cooperation agreement between the Lebanese Republic and the Syrian Arab Republic that the Lebanese government was authorized to sign by Law no. 298 of February 22, 1994, stipulates freedom of movement of persons between Lebanon and Syria and freedom of residence and work in accordance with the domestic laws and regulations in force.
Whereas given the above, it must be deemed that the General Directorate of General Security has no role setting the conditions and fees for Syrian nationals entering Lebanon. Rather, its role is limited to control and to informing the bodies concerned when foreigners commit infractions or pose a danger to Lebanon’s peace and security.
Whereas by extension, it must be determined whether there are exceptional circumstances in Lebanon that justify General Security intervening and putting itself in the Council of Ministers’ place exercising the power stipulated in the 1962 law and its implementing decree …
Whereas although it is clear and established that Lebanon was experiencing very delicate security and economic conditions when the decision being challenged was made, these circumstances did not reach the level of disrupting all the constitutional institutions or paralyzing institutional work such that the appropriate decisions to solve the crises it was experiencing could not be made. The Council of Ministers was still convening periodically and on time, which means that it could make the decision – if it so desired and as part of its formulation of the country’s public policy – to determine and restrict Syrians’ entry into Lebanon in light of the danger threatening the country because of the influx of displaced Syrians.
Whereas the conditions of the exceptional circumstances invoked by the defendant party are not met.
Whereas given all the above, the implicit [minister of interior’s] decision to refuse to repeal the General Directorate of General Security’s decisions regulating the entry and residence of Syrian citizens in Lebanon must be annulled as it comes from an authority not competent to make it.
 State Council Decision no. 421 of 2017-2018 issued on February 8, 2018. Ruling bench: President Henry Khoury and auxiliary judges Mireille Afif Amatoury and Hiba Baridi.