Israel's High Court Won’t Stop State From Detaining Migrants at Holot Facility

Judge rejects request for injunction until court determines constitutionality of new amendment to infiltration law.

Ilan Lior
Ilan Lior
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Ilan Lior
Ilan Lior

The High Court of Justice on Wenesday refused to issue an injunction freezing implementation of a new amendment to the Prevention of Infiltration Law that authorizes illegal migrants to be held for one year in an open detention facility.

In rejecting the request for an injunction sought by several human rights organizations, the court didn’t rule out that it will ultimately find the amendment unconstitutional; it merely means the amendment will remain in force until the court issues a final ruling on the organizations’ petition against it.

“On the face of it, and without needing to decide the case right now, it seems that such a claim [of unconstitutionality] requires thorough discussion that isn’t suitable for the current preliminary proceeding,” Justice Neal Hendel wrote in his decision. “As a rule, we must be doubly cautious when dealing with a request to delay the entry into force of primary legislation.”

Nevertheless, he stressed, “I am not deciding or expressing an opinion here on whether the arrangement set by the legislature in Amendment 4 meets the test of constitutionality ... This question will naturally be the focus of the subsequent hearings.”

In September, the court declared an earlier amendment to the Prevention of Infiltration Law unconstitutional. That amendment had allowed illegal migrants to be jailed for up to three years without trial.

In response, the Knesset passed a new amendment that softens the original’s provisions somewhat: It authorizes illegal migrants to be held for one year rather than three, and only in a facility that is open by day and closed at night rather than one closed round the clock.

Nevertheless, many human rights groups deemed the changes inadequate, and a few days after the new amendment was passed, they petitioned the court against it. The petition asked that the new version also be deemed unconstitutional, arguing that it doesn’t meet the criteria set by the court in its September ruling and is in some ways even worse than the original version.

Alongside this petition, the organizations asked the court to issue an injunction forbidding migrants to be sent to the new open detention facility in Holot until it issues its final ruling on the amendment’s constitutionality. On Wednesday, however, Hendel rejected that request.

Hendel largely accepted the arguments made by the state in the response it filed last Thursday.

“The requested interim injunctions are far-reaching; there is no prior Israeli legal precedent that would serve as a suitable basis for them; and in effect, granting them would mean removing the presumption of constitutionality that primary Knesset legislation enjoys ... and all this even before the substance of the petition had been discussed,” the state’s brief argued.

“In other words,” the brief continued, “the honored court is now being requested to impose an immediate freeze on primary legislation ... just a few days after it was enacted. In effect, the petitioners are asking the honored court to deprive the Knesset of the ability to give the government new tools for dealing with the difficult implications of illegal infiltration for Israel’s economy, society and cities, in the framework of a request for an interim injunction.”

Immediately after the Holot facility opened three weeks ago, the state transferred some 480 migrants who had previously been jailed at a closed facility in Saharonim to it. Since then, the immigration police have sent dozens of other migrants who were caught without valid visas to Holot and ordered hundreds more who are currently living freely to present themselves at Holot within 30 days. The Population, Immigration and Border Authority told Haaretz it has thus far sent such orders to 394 African migrants.

Migrants at Holot aren’t allowed to work, and they must show up for roll call three times a day – morning, noon and night. In exchange, the state promises to provide lodging, food and health and welfare services.

Holot inmates have thus far staged two protest marches against their detention, but both times, they were arrested. Some were sent back to Holot, but about 280 were sent instead to Saharonim, since under the new law, a migrant who violates the terms of his detention at Holot can be sent to jail.

“The way the respondents [i.e. the state] chose to honor the [September] ruling was to delay, on every pretext they could find, freeing those who were supposed to be freed in accordance with that ruling, and to pass hasty legislation that would empty the ruling of content,” the human rights organizations charged in their petition. “The amendment grants authorization to hold those who can’t be deported in a ‘residential center’ for an unlimited period of time, with no grounds for release and with no planned judicial review. The ‘residential center’ is run by the Prison Service, and any differences between it and a jail are hard to find.”

Asylum seekers wait outside Saharonim prison for the bus to take them to the Holot facility. Credit: Eliyahu Hershkovitz

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