Clock Ticking on High Court Ruling Over Israel's Asylum Law

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Asylum seekers protest at Holot detention center in Negev, February 17, 2104.Credit: Eliyahu Hershkovitz

Critics of a law regulating the operation of a Negev detention facility for asylum seekers are hoping the High Court of Justice will revisit the issue within the week, since it could get postponed indefinitely if it is not heard by Monday.

That day marks three months since Edna Arbel’s retirement as a Supreme Court justice, after which she will no longer be able to rule on cases that have come before her. If the ruling isn’t issued by then, another justice will have to replace Arbel and the ruling is likely to be delayed further.

If the High Court strikes down the amendment to the Prevention of Infiltration Law, it will be the first time the court will have struck down the same law twice — something even the human rights groups that filed the petition consider unlikely.

All the same, human rights activists would like the court to at least invalidate parts of the amendment, particularly those governing the operation of the Holot detention facility, and to criticize government policies pertaining to asylum seekers.

Officials at the justice and interior ministries, however, say they don’t expect the court to interfere so blatantly in government policy.

The current legislation was raced through the Knesset in less than three months, after the High Court unanimously struck down the previous amendment to the same law on September 16, 2013, saying asylum seekers could not be jailed for as long as three years because the policy violates the Basic Law on Human Dignity and Freedom.

The court also ordered the release of all asylum seekers in custody within three months.

“We cannot resolve one injustice by creating another injustice,” Arbel wrote at the time, in a ruling that was seen as a major victory for human rights groups and a blow to the government.

The voided legislation was replaced by another amendment that reduced the length of time asylum seekers could be jailed — they can now be held for up to a year — and regulated the operation of the Holot detention facility, to which thousands of Eritrean and Sudanese nationals have been sent in the ensuing nine months.

The law does not limit the length of time migrants can be kept in Holot. Though it is designated an open facility because they are allowed to come and go during the day, detainees must check in three times daily, making it impossible for them to work or to go very far without getting caught.

Human rights groups challenged the revised amendment, and is now waiting for the court’s response. It heard the petition in the spring but has yet to rule.

The petitioners argued that the purposes of the amendment — deterring infiltration, preventing migrants from settling in Israel and encouraging their return to Eritrea or Sudan, the countries of origin of most of the detainees — contravened the High Court’s ruling.

“Encouraging people to return ‘of their free will’ to these countries, certainly when this is done by denying them freedom and personal autonomy, is nothing more than an effort to force them to ‘expel themselves,’” the petitioners wrote.

The government has never denied that one of the primary aims of the Holot center is to encourage migrants to leave.

Interior Minister Gideon Sa’ar has repeatedly noted the sharp rise in the number of Eritreans and Sudanese who have left Israel since the amendment was passed. Data from the Population and Immigration Authority show that 53 percent of the 5,717 African nationals who left Israel between December 2013 and last month had received orders to report to Holot or met the criteria for receiving such an order.

Of the 47,000 African nationals living in Israel who entered the country illegally, about 35,000 are from Eritrea, 9,000 are from Sudan and 3,000 are from other African countries.

By the end of August, the authorities had issued 6,942 orders to migrants to report to Holot, far more than the 3,360 spots it actually has.

Of those, 1,450 were canceled for various reasons, such as proof that the asylum seeker had a wife or children in Israel; 1,029 failed to report to Holot; and 409 reported to the detention center but left without returning.

The detention center has yet to be filled to capacity.

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