The heart of Monday’s High Court of Justice ruling, which overturned a law allowing asylum seekers to be jailed for three years without trial, was the spotlight it trained on Israel’s unacceptable policy: On one hand, the state recognizes that most of the people held under this law can’t be deported, yet on the other it refuses to examine their asylum requests. Instead, it treats them like criminals.
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As Justice Edna Arbel, who wrote the principal ruling, noted, most of those affected by the law come from Eritrea and Sudan – countries to which they can’t be returned even if they aren’t recognized as refugees, since their lives would be endangered. And as Justice Miriam Naor noted in her concurring opinion, since the 1950s the rule has been that someone can be arrested for being in Israel illegally only if it’s possible to deport him, since otherwise the detention could be indefinite.
As for the state’s claim that most of these asylum seekers are labor migrants rather than refugees, Justice Yoram Danziger correctly pointed out that this claim is dubious as long as the state both refuses to examine their asylum requests and refrains from deporting them.
In this way, the court toppled the house of cards the state built in its effort to defend the law. It also challenged many of the state’s ancillary claims. For instance, Arbel said, the state brought no comparative data to prove that asylum seekers are disproportionately involved in crime, and in fact, a study by the Knesset’s research center found the opposite. Nor did it provide data proving that asylum seekers are an economic burden. And as for its announced plan to deport them to a third country, no such deal has actually been signed.
The court accepted the position that the law is unconstitutional because it treats the refugee as a criminal, depriving him of his freedom. This, Arbel wrote, deals a mortal and disproportionate blow to the asylum seeker’s rights.
It wasn’t only the asylum seekers whom the court saw as human beings: It was also attentive to the distress of residents of south Tel Aviv, where many of these asylum seekers live. But while recognizing that these residents feel their personal security has deteriorated as a result of the large numbers of African migrants living in their neighborhoods, Arbel rightly stressed that this problem can’t be solved by jailing innocents.
It would have been better had the court overturned the law not only because it infringed disproportionately on human rights, but also because it served an inappropriate purpose – jailing some people in order to deter others from coming to Israel. The court considered this issue, but ultimately failed to reach a decision.
Nevertheless, the ruling’s net result is to return the situation to what it was before this law was passed – namely, that someone can be jailed for the purpose of deportation for at most 60 days. It must be hoped that the cabinet and the Knesset will seize this opportunity to develop a policy that takes Israel’s obligations toward asylum seekers seriously and upholds both their rights and the rights of residents of south Tel Aviv, rather than pitting these two disadvantaged populations against each other.