Knesset Advancing Bill to Detain Migrants Without Trial, Despite Legal Warnings

Knesset legal adviser says new amendment to anti-infiltration law may not withstand High Court challenge.

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Despite warnings from its legal adviser that the proposal might not stand up in the High Court of Justice, the Knesset on Wednesday gave preliminary approval to a amendment allowing detention without trial for up to a year for African asylum-seekers who entered Israel illegally.

In a legal opinion he gave the chairwoman of the Knesset Interior and Environment Committee, MK Miri Regev (Likud), Eyal Yinon warned that detention without trial is in itself legally objectionable. He also said there was minimal difference between a prison - meant for convicts, which the Africans aren't - and the planned “open” facility in the Negev desert that would be established under the amendment to the Anti-Infiltration Law. The center would be locked at night, and during the day inmates, while free to go out, would have to report back three times for roll call.

The Knesset approved the new amendment yesterday in a preliminary vote, and the Interior Committee is expected to discuss the bill today and tomorrow in expectation of passing it on to the full Knesset for final approval already next week. If the amendment passes, the planned detention center is scheduled to open in mid-December.

In September the High Court of Justice unanimously invalidated the previous amendment to the Anti-Infiltration Law, which allowed the incarceration of asylum-seekers from Africa for up to three years. An expanded panel of nine judges ruled that the law was unconstitutional and disproportionately impinged on a person’s right to liberty, as well as being in conflict with Israel’s Basic Law regarding freedom and dignity. The High Court instructed the state to examine the cases of all those incarcerated under the provisions of this law within 90 days.

The proposed changes in the law would reduce the period of detention without trial of illegal migrants from Africa from three years to one, and would no longer hold them in a locked facility but in one that was at least partially open.

Yinon pointed out that the conditions in the new amendment are more balanced and proportional than those in the amendment that was overturned by the court in September. But he notes a few difficulties in the new proposal. First, he said, the law should make clear in its wording that the detention for one year is a maximum period and not a minimum with further detention left up to immigration authorities - and that it is not obligatory. Reducing the period of detention to only a year, from three, assuming it is truly a maximum period, is consistent with the opinions of two of the nine Supreme Court justices in the case, court President Asher Grunis and Justice Neal Hendel.

Grunis wrote: “Even under the present circumstances, there is nothing to stop the legislation of a new law that would allow for imprisonment for a significantly shorter period [than three years].” Meanwhile, Hendel wrote: “Under the new circumstances that have been created, I believe that it is possible to manage with a more proportionate instrument: the establishment of a ceiling for detention that would not reach or even come near three years.”

Justices skeptical

But Yinon wrote that seven of the justices in the case avoided mentioning the possibility of a shortened time period for such detention as a more proportionate possibility - and instead mentioned other alternatives. Some justices discussed previous Supreme Court rulings on holding illegal migrants in detention, saying such cases were meant only to carry out expulsion proceedings and were not meant to extend for more than a number of months. In addition, some of the justices raised doubts about the legitimacy of using detention as a deterrent in such cases, Yinon wrote. Therefore it is questionable whether the September ruling was based only on the length of the detention, or whether there was a further principle behind the decision - and given the inability to expel the illegal migrants from Israel, such detention without trial is in itself unconstitutional, wrote Yinon.

Regarding who would be incarcerated in the new detention facility - according to the proposed amendment, the state can incarcerate only those migrants who have entered Israel after the amendment has been approved by the government and the Knesset and has gone into effect. Even though this is significantly milder, and the new arrangement would not apply to the tens of thousands of illegal migrants already in Israel, and would apply only to those who have now been “warned in advance,” Yinon said that based on the figures from the immigration authorities that only a few new “infiltrators” are arriving in Israel, and because the court viewed these numbers as relevant in evaluating the proportionality of the new arrangements, the question arises as to the use of such a powerful tool of detention as a response to the very small number of new illegal migrants entering Israel.

The proposed amendment does not make clear who among the tens of thousands of illegal migrants would be required to be placed in the new detention center, said Yinon. A lack of any such criteria could lead to a claim of discrimination and selective enforcement among the various migrants, he wrote. In addition, the location of the detention center and the conditions for those in it are not appropriate for an open center, as the state defines it. Based on the amendment, a detainee would have to appear three times a day for registering attendance, and would not be able to leave at night. Since the facility is in the Negev, far from any city, this limitation could prevent almost any possibility of the detainee effectively leaving the facility, in which case it would in practice become a closed detention center, said Yinon.

Yinon also criticizes the broad powers to search the detainees physically, and that the Israel Prisons Service would be in charge of the center - even though the prisons service has no experience is such facilities, and that the disciplinary measures allowed in the law against the detainees in the facility exceed regulations, including the ban on leaving the facility for long periods of time and the rules for transfer to a closed facility.

Physical search

Residents in the center and their bags, etc., could be subjected to a physical search, without any need for a court order, by officials of the detention center authorized to conduct such searches, as well as by police officers and military personnel, on entry to and departure from the center, on public transportation vehicles or if there are grounds for suspecting that the resident may be carrying a weapon or an illegal object.

The director of the detention center would be authorized to take appropriate measures against residents who fail to meet their obligations as specified by law. Such measures would include rebuke, the issuing of a warning, the imposition of a fine and restrictions regarding departure from the center.

“In principle, the formula of an open detention center has the possibility of limiting the harm to [human] rights the Supreme Court ruled on in its decision,” wrote Yinon in conclusion. “But it is understood that it is not possible to make do with calling the facility ‘open’ in order to withstand the constitutional test, and we must ensure there is really a significant difference between it and a regular prison facility,” he said.

The new detention center would be a much more proportionate alternative to imprisonment, said Yinon. but since the new facility is something new and unknown in Israel, the detailed arrangements for its implementation must be examined very carefully to guarantee it will not be too similar to a closed facility. Presently there are tens of thousands of such illegal migrants in Israel who cannot be deported - but only 3,500 places in the new detention center.

MK Dov Khenin (Hadash) said: “The legal opinion raises difficult questions as to the nature of the proposed arrangements in the proposed law. Our warnings yesterday evening in the [Knesset] plenum against the rushed and heavy handed nature of the law that the government is advancing received additional support this morning. I called on the chairwoman of the Interior Committee this morning to postpone the discussions so as to allow the government and also the committee to reexamine the law and to formulate other and proper arrangements.”

Maintenance workers

The new law states the director of the open detention center would be authorized to employ the residents of the center in maintenance work and in ongoing services within the center itself. In accordance with the directives of the minister of public security and with the approval of the minister of finance, the residents would receive “reasonable compensation” for this work. The amendment makes it clear that there would be no employer-employee relationship between the state and any illegal migrant employed in a detention center. The interior minister would issue suitable instructions that would arrange in an orderly fashion how the migrants would leave, and then return to, the open detention center and the times of their daily roll calls. The migrants would be expected to be present for three daily roll calls at the detention center; this measure, the memorandum states, would prevent migrants from working outside the center.”

Furthermore, the proposed amendment would enable migrants residing in the center to receive a monthly spending allowance; the amount of the allowance would be determined by the public security minister with the approval of the finance minister.

Any official in charge of border control would be authorized to transfer an illegal migrant to a closed incarceration facility if the migrant repeatedly fails to appear for roll call, works outside the center or endangers national security or public safety. For an initial violation of the conditions specified in the amendment, illegal migrants would be transferred to an incarceration facility for a period of three months. For a second violation, the period of incarceration would be six months, and, for each additional violation, the period of incarceration would be one year. The public security minister would appoint an individual qualified to serve in the capacity of a magistrate’s court judge as the official in charge of handling requests from the residents of the open detention center regarding the conditions of their residence in the center.

African migrants held in Saharonim detention facility.Credit: Eliyahu Hershkovitz

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