Israel's High Court to Hear Petition Against Law Allowing Prolonged Detention of 'Infiltrators'

Human rights groups seek annulment of amendment allowing illegal migrants to be detained three years, passed by the Knesset in January 2012 and came into force last June; there are currently approximately 2,000 African migrants in detention facilities.

Ilan Lior
Ilan Lior
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Ilan Lior
Ilan Lior

An expanded bench of Israel's High Court of Justice will hear a petition Sunday by human rights groups against an amendment to a law that allows the prolonged incarceration of people who enter the country illegally.

The nine-member panel will be headed by Supreme Court President Asher Grunis. The petition is seeking the annulment of the amendment, that was passed by the Knesset in January 2012 and came into force last June.

There are currently approximately 2,000 African migrants in detention facilities, 1,750 of whom are being held for breaking the law prohibiting illegal entry into the country.

According to the amendment, migrants who enter the country illegally can be held in custody for up to three years, based only on their illegal entry. The amendment allows the Custody Tribunal − the body that hears such cases − to release the migrants only on humanitarian grounds ‏(such as advanced age or poor health‏).

According to the law, the state must begin to process a migrant’s request for asylum in Israel within three months of filing, and complete it within nine months of filing. Otherwise, the migrant can be released.

“There has probably never been a law seared into the books that so fatally damages the right to liberty through administrative detention,” the petition states.

The petition was filed by five Eritrean citizens in Israel, together with Assaf, an aid organization for refugees; the Hotline for Migrant Workers; the Association for Civil Rights in Israel; Kav La’oved; and the African Refugee Development Center. The petitioners are represented by attorneys Yonatan Berman, Anat Ben-Dor, Oded Feller and Asaf Weitzen.

More than 90 percent of the migrants in custody for breaking the law on illegal entry to Israel are Eritrean and Sudanese. Israel grants collective protection to both these groups and does not deport them back to their home countries. The petitioners claim that Israeli and international law does not allow migrants to be incarcerated unless it is for the purpose of deportation, and that the mass detention of asylum seekers while they are waiting for their asylum applications to be processed is illegal.

The purpose of the law, the petition says − to deter more migrants from entering the country − is also illegal.

The new “anti-infiltration” law came into effect around the time the Egypt-Israel border fence was completed. Since then, the number of people crossing illegally into Israel has dropped sharply.

In the second half of 2012, 1,332 African migrants entered the country illegally, compared to 9,071 in the first half of that year. In the first three months of 2013, only 18 people entered the country illegally via the Egyptian border. They were taken to detention centers, most of them to the Saharonim facility. Only a few were released by court order.

The state claims that these figures show the necessity and efficacy of the law. However, human-rights activists claim the main reason the number of illegal migrants has dropped is because the fence was completed. The state’s response to the petition said that the law “is intended to stop the significant wave of infiltrators in recent years, which is mainly a wave of economic migration.” The state also said the law damages the right to liberty for a worthy purpose, one that conforms to the values of the state and the principle of proportionality.

In a rare move, the United Nations High Commissioner for Refugees has asked to join the petition. Meanwhile, a group representing Israeli residents of south Tel Aviv, where many of the African migrants live, asked to join as a respondent to the petition. They added to their application 17 affidavits from residents of south Tel Aviv, describing serious distress as a result of the large number of foreigners in the neighborhood. The court is set to discuss these requests.

As reported in Haaretz on Friday, only days before the High Court hearing Sunday, the state responded for the first time to a request for asylum from anyone from either Eritrea or Sudan − rejecting the application of a 23-year-old Eritrean man. The man has been detained at Saharonim since he entered the country illegally 17 months ago. He applied for refugee status in Israel because he had fled the draft in his home country. However, the state determined that this was not enough of a reason to recognize him as a victim of political persecution.

The state has received more than 1,400 applications for asylum by incarcerated migrants which it has not yet answered.

African migrants being held in Israel's Saharonim detention facility. Credit: Eliyahu Hershkovitz

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