Israeli Judge Questions 'Proportionality' of Law to Jail Asylum Seekers

Tuesday's hearing held before a panel of nine judges that is identical to the one that struck down the previous amendment to the law last year.

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African asylum seekers at Holot detention center in the Negev.
African asylum seekers at Holot detention center in the Negev. Credit: Eli Hershkovitz

The High Court of Justice on Tuesday heard the first petition by human rights groups against the newest amendment to the Prevention of Infiltration Law, which allows the jailing for up to one year of any migrant who entered Israeli illegally after the law passed in December.

The statute also regulates the operation of the detention center at Holot, to which the state can send migrants and asylum-seekers who illegally entered the country even before the legislation was passed.

"There are many controversial questions related to the proportionality of the law for preventing infiltration," Judge Uzi Vogelman said at the hearing. He related to the fact that the guidelines on detention in Holot are not restricted in time and that there are no pretenses for release determined by law. "This is where the main difficulty lies," Vogelman said.

Vogelman also requested that State Attorney Yochi Gansin explain the gap between the low rate of asylum seeker status granted by the state and the high rate of that status is granted in other countries. Only two Eritrean nationals have been granted refugee status in Israel to date. "How is this statistic reconciled with international standards?" he asked.

Judge Esther Hayut asked how many asylum applications have not been processed and how long they have been waiting, and Judge Isaac Amit asked how the Holot facility is helpful in solving the problem. "We have 50,000 people here, what will 3,000 help?"

Gansin said the new law requires requests be considered within three months, which the state is complying with. Asked about the timetable for those not held in detention, Gansin said the state gives priority to requests from those held in Holot.

Supreme Court President Asher Grunis rejected a request to have the UN representative on refugees in Israel present its position. Association for Civil Rights in Israel Advocate Oded Feller, who made the request, was then asked to offer alternatives for preventing immigration.

Feller replied that "there is no place in the world that has a mechanism for reducing it to zero," but offered the state, for example, to determine that illegal entry into Israel be considered a crime and take it to court, as opposed to applying administrative detention. Judge Grunis dismissed the suggestion.

Tuesday's hearing was held before a panel of nine judges that is identical to the one that struck down the previous amendment to the law last year. The panel will be led by Supreme Court President Asher Grunis and Deputy President Mirian Naor, and include justices Edna Arbel, Salim Joubran, Esther Hayut, Yoram Danziger, Uzi Vogelman, Isaac Amit and Neal Hendel.

The petition, filed only days after the new amendment was passed, was submitted by two Eritrean asylum-seekers, the Hotline for Migrants and Refugees, the Association for Civil Rights in Israel, the Aid Organization for Refugees and Asylum Seekers in Israel, the Worker’s Hotline, Physicians for Human Rights and the African Refugee Development Center.

The petitioning organizations argue that the new amendment does not uphold the principles the High Court outlined when it struck down the previous legislation, which had allowed illegal migrants to be held without trial for three years.

“The method the respondents chose to honor the [previous] court ruling was to delay by any means possible the release of those who were meant to be released in accordance with the ruling, and to speedily pass new legislation that would empty the ruling of content,” the petition reads.

“The amendment confers authority to hold those who cannot be expelled in a ‘lodging center’ for an unlimited amount of time, with no provisions for release and with no judicial review. The ‘lodging center’ is run by the Israel Prison Service and the differences between it and a prison are hard to discern.” According to the petitioners, “It’s a jail that’s aimed at breaking their spirit, so as to force them to ‘agree’ to go wherever they are told, even if their lives are at risk there.”

In its response to the petition, the state said that the amendment was constitutional, “and strikes the optimal balance between the vital interests of the State of Israel and the rights of its citizens and residents, and the interests and rights of the tens of thousands of African residents who infiltrated into the State of Israel in recent years.”

The state also rejected the comparison between the Holot facility and a jail. “Although there is a restriction on their right to freedom, that is not to say that this restriction is equivalent to full denial of the right to freedom, nor does it come close,” the state said.

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