Glass Half Full for Jailed Asylum Seekers, Half Empty for Those Walking Free

High Court ruled that the law which allows asylum seekers to be jailed in Holot has an ' appropriate purpose,' but is disproportionate – effectively endorsing a 'revolving door' policy.

Aeyal Gross
Aeyal Gross
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African asylum seekers at the Holot detention facility in the Negev.
African asylum seekers at the Holot detention facility in the Negev.Credit: Eliyahu Hershkovitz
Aeyal Gross
Aeyal Gross

Let’s begin with the half-full glass: By forcing the government to draft three separate incarnations of its amendment to the anti-infiltration law, the High Court of Justice greatly curtailed its grandiose plan to imprison asylum seekers for long periods. What began with enabling them to be held in Saharonim Prison for three years was initially reduced to one year in Saharonim followed by indefinite detention at Holot, and now, thanks to the court’s ruling on Tuesday, has ended in no more than three months at Saharonim and a limited period, most likely a year, at Holot.

Moreover, most asylum seekers currently imprisoned at Holot will be freed immediately.

All of the above represents an achievement for the organizations that opposed the law.

The half-empty glass is that, in contrast to the law’s two previous incarnations, the court didn’t completely overturn this one. Instead, it merely curtailed the period of detention at Holot while openly endorsing a “revolving door” policy there.

Thus, the ruling is good news for asylum seekers currently held at Holot, but much less so for those still outside, who are now liable to be sent to Holot in their stead. The result might end up be more people imprisoned, albeit for shorter periods.

The basis of the ruling authored by Supreme Court President Miriam Naor is that the law authorizing asylum seekers to be sent to Holot has an “appropriate purpose,” but its current provisions disproportionately violate their rights. This conclusion stems from Naor’s view that distancing asylum seekers from the major cities, and thereby easing the stress these cities are under, is an appropriate purpose.

Nevertheless, Naor said, the 20-month maximum detention period at Holot set by the law is too long; it disproportionately infringes on the asylum seekers’ rights. Therefore, she gave the Knesset six months to shorten this period, and meanwhile, any asylum seeker who has been there for a year or more must be released – a broad hint as to what maximum the court would consider proportionate.

Naor also criticized the fact that, currently, all asylum seekers are sent to Holot for the maximum period. Instead, she said, each case should be weighed individually, according to each asylum seeker’s circumstances.

Nevertheless, this raises the questions of what will happen to asylum seekers released after shorter stays at Holot and how this will achieve the goal of “preventing them from settling down.” Naor’s answer is that to realize the law’s purpose, it’s enough that at any given moment, some asylum seekers are being held at Holot.

But, as reading between the lines of some of her colleagues’ concurrences reveals, Naor’s bottom line is far from convincing. This isn’t just because it allows people whom she herself says are innocent of any crime to be imprisoned at Holot, but also because she too easily dismisses the petitioners’ argument that Holot’s primary purpose is actually an unacceptable one: breaking the asylum seekers’ spirit so that they will leave Israel.

Justice Uzi Vogelman’s concurrence cites many statements by public figures attesting to this goal, as well as testimony from asylum seekers at Holot regarding the pressure they were put under while there to leave Israel. Justice Isaac Amit also argued that the real purpose of the “revolving door” system is to break asylum seekers’ spirit, noting that no other Western country put asylum seekers into residential facilities involuntarily.

Even Naor said Holot wasn’t her preferred solution: “As a citizen, I’d be happy to see my country have more compassion,” she wrote. But the court’s job, she stressed, is limited to examining a law’s constitutionality, not its wisdom – a clear hint as to her real opinion of this law.

The court, she stressed, must exercise restraint when reviewing a law that the Knesset has now passed for the third time after it was overturned twice before. This comment makes it impossible to overlook the drama now occurring in the relationship between the legislative and judicial branches – specifically, the Knesset’s threat to add an override clause to the Basic Law on Human Dignity and Freedom that would allow it to reenact legislation struck down by the court. This threat has hovered like a constant cloud, especially since Ayelet Shaked, one of the proposal’s sponsors, is now justice minister.

In her decision to uphold the law this time around, Naor also took note of the changes it made in conditions at Holot, thought she stressed that the improvement remained insufficient. Thus the ruling reads as if the justices were trying, with difficulty, to justify something that at least some of them don’t actually believe in, but which may constitute the most they could do under the current circumstances.

Consequently, tough questions about the government’s policy and the normative uncertainty it has created will remain even after this ruling.

Full disclosure: The author sits on the board of the Association for Civil Rights in Israel, which was one of the petitioners in this case.

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