The High Court of Justice's decision Monday to overturn a year-old law allowing African migrants to be held without trial for up to three years caught Israeli officials by surprise. Government ministries that will be affected by the ruling began studying the decision immediately, and will continue to examine its implications for a number of days.
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The next step will be to find an alternative that will allow the government to maintain its policies regarding migrants and asylum seekers without resorting to the amendment to the Anti-Infiltration Law, which has been declared unconstitutional.
The High Court gave the state 90 days to examine the cases of some 1,750 African migrants who are being held in Israel. These reviewed are to be carried out on a case-by-case basis, in accordance with the Entry into Israel Law of Entry rather than the Anti-Infiltration Law.
The Entry into Israel Law allows individuals who entered Israel illegally to be detained for up to 60 days, unless a deportation proceeding is under way. If there is no other justification extending the detention, the individuals must be released.
Interior Minister Gideon Sa'ar said that Monday’s ruling, on the face of it, would detract from Israel's ability to deal with illegal infiltration into its territory. He said that alternatives to the discredited legislation would be examined.
The state cannot appeal the ruling, practically speaking. If the government wants to continue to avoid giving unauthorized migrants legal standing, it will need to come up with creative solutions. For now the main options seems to be new, less extreme legislation.
In the ruling Supreme Court President Asher Grunis wrote that he did not see an obstacle to enacting a new law that would these migrants to be held for “a significantly shorter period than three years."
In 2013, since the completion of the fence along the Egyptian border and the enactment of the just-overturned amendment to the Anti-Infiltration Law, very few African migrants have crossed into Israel illegally. That means most of the migrants in detention have been in custody for at least one year. Even if the Knesset were to pass a law limiting the period of detention without trial to a year, for example, the state would have to release most of the Africans being held.
The High Court ruling is expected to lead to the cancellation of the "procedure for the handling of infiltrators involved in a criminal proceeding," which allows the indefinite detention of unauthorized African migrants who have been suspected of a crime, even if there is not enough evidence to prosecute them or the case has been closed for lack of public interest.
The procedure has also been used as a threat tactic to pressure migrants to return to their country of origin.
This procedure, or a similar one, could be used under the auspices of the Entry into Israel Law, but the period of detention would be limited to 60 days at most.
In addition to passing a new law, the government could step up its efforts to persuade migrants to accept “voluntary repatriation.”
Another option, already being sought, is to reach an agreement with a third African country to accept these migrants. Uganda recently denied reports it had signed such an agreement with Israel. In any case, such a deal would not provide a broad solution as only a few hundred migrants would be involved.