Israel May Have Misled High Court on Asylum Seekers

Court statement at odds with comments by Netanyahu and Sa'ar that objective of detention is to break spirits of asylum seekers.

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Migrant workers at Holot, February 2014.
Migrant workers at Holot, February 2014.Credit: AP

The state may have deceived the High Court of Justice last month when it replied to a petition against the law on asylum seekers, since comments subsequently made by Prime Minister Benjamin Netanyahu and outgoing Interior Minister Gideon Sa’ar directly contradicted the official response to the court.

The state strenuously denied in court that the purpose of the law was to break the spirit of asylum seekers and force them to leave the country “voluntarily.” However, subsequent statements by Netanyahu and Sa’ar suggest that the official response was not truthful.

The High Court last month ordered the state to close the Holot detention facility for asylum seekers within 90 days, a dramatic decision that marked the first time the court has ever struck down two versions of the same law.

The High Court also overturned another provision of the same law that allowed asylum seekers who entered Israel illegally to be incarcerated without trial in a closed facility for up to a year.

The human rights groups that submitted the petition argued that the law was intended to persuade the asylum seekers to leave Israel “voluntarily” by breaking their spirit. The petitioners’ argument was based on statements previously made by Sa’ar and senior Interior Ministry officials, who said that the Holot facility was intended for this purpose.

In November 2013, two months after the High Court first revoked the provision to the anti-infiltration law, Yossi Edelstein, director of the Interior Ministry’s Population Administration’s Foreign Workers’ Enforcement Unit, said, “the open facility is intended to encourage those held in it to leave Israel, thus making room for more asylum seekers.”

Sa’ar made similar comments, when he presented the bill to the Knesset plenum.

However, the State Prosecution, in its reply to the High Court, denied that was the law’s purpose, dismissing the petitioners’ claim that the asylum seekers’ incarceration was intended to break their spirit.

The prosecution argued that the law’s real goals were “to prevent the infiltrators from making a home for themselves in city centers and to stop them from working and making a living.”

The prosecution said the law was also intended to “provide adequately for the infiltrators’ needs while limiting their liberty and freedom of movement to some extent, during their stay in the facility and providing for all their needs.”

Justice Uzi Vogelman, who wrote the ruling that revoked the law, said that unreasonable pressure to push a person to leave could turn “voluntary departure” into a forced deportation, which was forbidden.

After the ruling Sa’ar said both in the Knesset’s Interior Committee and at a meeting with Netanyahu that the law was intended to make the asylum seekers leave Israel and that it had achieved its purpose.

In a statement to the press Sa’ar wrote that the second provision to the law contributed considerably to the “voluntary departure” process. He said it was “unreasonable that laws that have proved effective in dealing with the infiltration problem should be disqualified by the court.”

Sa’ar and MK Miri Regev repeated this at the Interior committee meeting last week. Later at a meeting with the prime minister, the latter said “the discussion is meant to balance between two needs. First, the vital need to continue stopping the illegal infiltrators’ entry to Israel The second need is to honor the rulings of the court.”

The interior and justice ministries are now formulating a third bill to address the issue.

If the prosecution continues to deny that the law is intended to encourage asylum seekers to leave the country by breaking their spirit, while insisting that its goal is to provide for their needs and prevent their settling down, it will have difficulty explaining the new bill.

Because if its goal is not to encourage the asylum seekers to leave the country, then imprisoning them for a limited period of time will not prevent their settling in Israel.

On the other hand, if the prosecution admits the law is intended to encourage the asylum seekers to leave the country, it will be admitting that its reply to the court was incorrect.

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