Israeli High Court Defers Decision on Challenge to Ukrainian Refugee Quota

Although the lawyer for the government said the petition should be thrown out because the quota has not been reached, the court still pressed to know why the quota was necessary

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A demonstration this month opposing the expulsion of Ukrainians from Israel. The signs state: 'A Jew doesn't expel a refugee.'
A demonstration this month opposing the expulsion of Ukrainians from Israel. The signs state: 'A Jew doesn't expel a refugee.'Credit: Hadas Parush

The High Court of Justice slammed the government’s quota on Ukrainian refugees on Sunday during a hearing on a petition challenging the policy.

Nevertheless, since the Knesset is slated to debate the policy on Wednesday and Interior Minister Ayelet Shaked plans to reconsider it next week, the court deferred making its ruling. Instead, it asked the state to submit its revised policy in another eight days.

Current policy caps the number of refugees who don’t have relatives in Israel at 5,000. Supreme Court President Esther Hayut wanted to know why this cap was necessary, given that Israel isn’t being flooded with refugees in any event.

Russia invaded Ukraine on February 24, she noted, but the quota was only instituted on March 10. “So what happened on March 10 that led the Interior Ministry to decide it had to set quotas?” she asked. “Was there any data backing up the assessment that a quota had to be set?”

Omri Epstein, the lawyer representing the government, did not respond to the question.

As of Sunday, Epstein said, slots were still available for 1,800 Ukrainians without relatives in Israel. As a result, no one has been harmed by the quota, he argued, and the petition should therefore be denied on the grounds that it’s purely theoretical.

But Hayut responded that from her standpoint, the issue was the setting of the quota. “What was the basis for setting a quota to begin with?” she asked. “You could say that for two weeks, there’s no need for a quota but just filling out forms; and if it turns out that there’s a flood [of applicants], then you’ll institute a quota. Why was a decision made to impose a quota in advance?”

Justice Isaac Amit wanted to know how the quota complied with the agreement between Israel and Ukraine on visa-free travel. “What’s the difference between a Ukrainian national who wants to visit the Church of the Holy Sepulcher [in Jerusalem] and one who says ‘I’m coming for a short three-month visit to escape the horrors of war’?” he asked.

Epstein replied that the agreement was for purposes of tourism only, whereas “the current situation is one of large-scale flight and fleeing to Israel for an indefinite length of time. Most of those entering arrive without a return ticket, and that’s not the purpose” of the visa-free entry agreement, he said.

Tomer Warsha, the lawyer who filed the petition at the encouragement of the Ukrainian ambassador to Israel, Yevgen Korniychuk, argued that the real purpose of the government’s policy has been to enable it to deny entry to refugees even before they board their flights to Israel.

“When we look at the data, rather than the slogans and fear-mongering, we see that since the fighting began, over the course of almost a month, some 8,000 Ukrainians in total have entered Israel,” Warsha said. “That sounds like a lot, but it’s all relative.”

Between 2015 and 2019, he explained, 11,000 Ukrainian tourists a month entered Israel. “So when we see that fewer than usual have entered, there’s no reason to change the existing arrangement. The fear was unfounded,” he claimed.

Altogether, he added, 665,000 Ukrainian tourists entered Israel during those five years, and only 7,200 failed to leave – “about one percent.”

But Hayut challenged his comparison. “In normal times, they have someplace to return to,” she pointed out. “These days, they don’t.”

Both Hayut and Justice Uzi Vogelman asked Warsha whether, if his petition is granted, he would find it acceptable to have Ukrainians fill out immigration forms before their flight to Israel if it was not a condition to their boarding. Warsha agreed.

According to Shaked’s plan, Israel will allow 5,000 refugees to be admitted into Israel and “temporarily hosted” for three months. In addition, refugees from Ukraine with relatives in Israel – of any degree of relationship – would be permitted in without restriction.

The plan requires that non-Jewish Ukrainian refugees who are not eligible for Israeli citizenship under Israel’s Law of Return file an application online on the Israeli Foreign Ministry’s website prior to their flight to Israel. (The Law of Return also grants citizenship rights to certain non-Jewish relatives of Jews).

Those required to fill out the application must present the ministry’s approval of their application when they board their flight. The requirement was instituted despite the bilateral agreement between Israel and Ukraine on visa-free travel.

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