Top Court Strikes Down COVID Restrictions on Citizens' Entry and Departure From Israel

Netael Bandel
Netael Bandel
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Israelis at Ben Gurion Airport this week.
Israelis at Ben Gurion Airport this week.Credit: Hadas Parush
Netael Bandel
Netael Bandel

Israel's High Court ruled Wednesday that the 3,000 person quota for arrivals to Israel and limitations on leaving the country for those who have not yet been vaccinated for the coronavirus is unconstitutional.

A panel of judges led by Supreme Court President Esther Hayut ruled that Israel cannot extend the limitations after they expire on Sunday - two days before Israel's election. 

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In a damning verdict, the judges noted that "Israel is the only democratic country in the world where the right of citizens to enter their country has been so sweepingly restricted."

On the figure of 3,000, the judges stated that this was set by the government before they had gathered data on the number of nationals who were stuck abroad, and ordered any future restrictions to be based on updated and comprehensive facts.

The judges also ruled that "a balance must be struck between the damage that may be caused by the infiltration of an unknown coronavirus strain, and the violation of the fundamental rights of the state's citizens and residents."

The ruling also made explicit reference to Election Day, stating that the short notice and the proximity of the decision to the poll exacerbated the infringement of civil rights. 

Israel’s coronavirus czar, Prof. Nachman Ash, said that Wednesday’s High Court ruling is “worrisome,” as it may lead to a rise in infection rates and possibly bring into Israel “dangerous” COVID-19 strains.

“We’ve taken many steps to prevent it, and it’s a shame that now we’re putting at risk” the progress made in curbing infection rates, Ash said in a statement. “The High Court’s decision might bring Israel closer to a renewed outbreak.” 

The Israeli Knesset passed a bill Wednesday allowing digital surveillance of all arrivals to Israel who are mandated to enter coronavirus quarantine. 

Arrivals to Israel who are sent to quarantine in their homes will be equipped with digital tracking bracelets or other digital tracking means, including through cell phones. Anyone who refuses the digital surveillance will be required to enter a state-run quarantine facility.

The ruling, however, only applies to Israeli citizens. Foreign nationals will be required to submit an application for an entry clearance certified by an Israeli consulate or by the Population and Immigration Authority, and this will only be granted in exceptional circumstances.

On Sunday the government removed the limitation on those cities from which Israelis can return from abroad, and on Tuesday the skies were open to flights from any point of departure. However, the government maintained the limit of citizens who can enter on any given day at 3,000 people. 

On Monday the state told the High Court of Justice that 1,880 Israelis had responded to a Foreign Ministry survey over the weekend saying that they are now abroad and want to return to Israel. The head of the legal department of the Movement for Quality Government, attorney Tomer Naor, said in response that, “If the survey indeed reflects the number of Israelis stuck abroad, it proves that there’s no need for any limits at all,” and called on the court to cancel the ceiling imposed on reentry by Israelis.

During a hearing Sunday, High Court justices were critical of the state’s insistence on keeping the 3,000-person limit given the proximity of the Knesset election. Justice Neal Hendel said, “We could say that only during the period before the election we would raise the quota, but instead you are saying that we can’t budge from 3,000 and I don’t understand. At stake is the right of a person to vote, when it means that either he does vote, or he doesn’t – it’s all or nothing. In such a situation I don’t understand why we have to accept the 3,000 instead of flexibility for a certain period.”

The state argued that the limit at Ben-Gurion airport stems from the fear of new variants of the coronavirus entering Israel, given the lack of an effective home quarantine system. The state submitted data showing that most people returning from abroad do not observe home quarantine properly. The state attorneys said that it is promoting better enforcement of home quarantine by attaching an electronic bracelet to those returning from abroad. The state added that this increased enforcement would allow another relaxation of the quota.

Court President Esther Hayut said, “If the fear of a variant is because quarantine can’t be enforced, then the solution has to be found in [better] enforcement, not in limiting entry which is very draconian, added to the very significant harm because we are a week and a half before an election, and the question is whether quotas are a means that need to be used.”

Justice Yitzhak Amit stated that "our interest is in protecting citizens whom the state endangered due to the closure of border crossings. The violation of the contract between the state and its citizens undermined the Israeli ethos and damaged the social fabric.  Not only did the state abandon its citizens to their own devices, but did not even bother to find out how many people were affected. "

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