Justice Ayala Procaccia
Justice Ayala Procaccia Photo by David Vakhnin
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The High Court of Justice yesterday struck down an Interior Ministry regulation forcing legal foreign workers to leave the country within three months of giving birth, even if their work permits are still valid.

In her last verdict before retiring, High Court Justice Ayala Procaccia ruled that the regulation is unconstitutional and compromises the petitioner's parental, familial and economic rights. Procaccia also ruled the authorities would have to set new procedures that would meet the government's policy toward foreign workers without causing unreasonable and disproportionate harm to the worker.

Procaccia read out the ruling's summary in a ceremony with her 14 colleagues at her side.

Under the current regulation, a foreign worker who gives birth and leaves the country as required can return - without the baby - within two years.

In 2005, the foreign workers advocacy group Kav La'Oved, the Association for Civil Rights in Israel, the Hotline for Migrant Workers, the women's organization Na'amat and Physicians for Human Rights petitioned the High Court of Justice against the National Insurance Institute and the Ministry of Industry, Trade and Labor.

The petition said that the regulation contravenes Israeli law as well as fundamental human rights.

However, the State Prosecutor's Office called the regulation one way of addressing the wave of illegal immigration.

The ruling stated that the regulation "does not conform to Israeli labor laws protecting workers' rights during pregnancy and after birth ... in the framework of employment equality. It also contravenes the protection of migrant workers' rights as determined by international conventions."

Procaccia also wrote that such a regulation forces a pregnant foreign worker "to choose between two edicts: one - to leave the country with her child because she gave birth and to miss out on the remainder of her work permit; and two - to return to Israel to continue working without her child, leaving it in the care of others overseas." Such a choice seriously compromises the worker's constitutional rights, she wrote.

The Interior Ministry's Population and Immigration Authority said it was studying the ruling, but added that Procaccia had "accepted the fact that the goal of the Population and Immigration Authority's socio-economic policy - to encourage local employment and prevent dependence on foreign labor - is a valid goal."

Workers' rights groups estimate that hundreds of foreign workers lose their work permits every year after giving birth. The groups said they were very pleased with the ruling, but added: "The Interior Ministry repeatedly compromises the most basic rights of female migrant workers who give home nursing care, who are one of the weakest groups in Israel."

A source in one of the advocacy groups said the mothers and children the Interior Ministry is now seeking to deport include many women who lost their jobs due to the regulation struck down yesterday.

A case in point

Malo came to Israel from the Philippines in 2006 to work as a caregiver for a family with a sick son. In 2009 she became pregnant.

"Right after the birth, I became illegal and the family had to let me go," said Malo, 36.

Three weeks ago, Malo was arrested with her son, now 17 months old. Both were held for three days at the Population and Immigration Authority's facility at Ben-Gurion International Airport.

"As much as I asked to call my parter, my baby's father, who is here legally, it didn't help me. They told me 'later.' Fortunately my partner approached the Hotline for Migrant Workers and they appealed to the High Court of Justice, which ordered me released," she said.

Malo said she hoped yesterday's ruling would be implemented retroactively so she could get a new work permit and return to her former employer after leaving her son with relatives in the Philippines.

"That way I will be able to give my sone a better life," she said.