High Court upholds anti-infiltration law, with a caveat

The High Court of Justice on Tuesday rejected a petition filed by several human rights organizations to revoke the 2014 amendment to the Prevention of Infiltration Law that allows the state to hold illegal migrants without trial for up to 20 months and asylum seekers for up to three months.

But the court ordered the state to revise the detention period for illegal migrants held in the Holot facility in southern Israel from 20 months to one year.

Chief Justice Miriam Naor ordered that those who have already been held in Holot for a year or longer be released immediately, meaning that some 1,000 illegal migrants from various African countries will be released within the next two weeks.

The nine-judge panel rendered a majority ruling saying the articles of the law regulating the formation of illegal migrant detention centers stand, essentially upholding the constitutionality of the bulk of the law, originally enacted in 1954.

The court ruled that the state was within its right to keep illegal migrants in custody, subject to proceedings of identification verification, while it explores potential deportation proceedings.

The judges further rendered a unanimous ruling rejecting the human rights groups' motion to close the Saharonim detention facility in the Negev, where African asylum seekers are held while their cases are under review.

The Knesset was given six months to amend the law once again, for the fourth time, to "establish a proportionate detention period" for illegal migrants.

"Weighing the severe infringement on the rights of infiltrators versus the benefits offered by the law led the court to conclude that a [detention] period of 20 months exceeds what should be the timeframe under which infiltrators should be held under such restricting conditions," Naor wrote in the ruling.

Prime Minister Benjamin Netanyahu welcomed the court's acceptance in principle of "the state's position, according to which the illegal influx of labor migrants is unacceptable, and that they may be held in order to achieve the necessary deterrence."

Netanyahu said the government would "study the ruling and the state will act to implement it."

Justice Minister Ayelet Shaked said, "The court has finally ruled on this fateful issue. There should never have been a third hearing on the Infiltration Law, and the hands of the legislative authority should never have been tied as they were. This is why we need a Basic Law on legislation, to regulate the [balance of] power between the legislative authority and the judiciary."

The High Court's ruling on the Knesset's proposed anti-infiltration legislation, which it had previously struck down twice, is based on the stipulations outlined in Basic Law: Human Dignity and Liberty.

Public Security Minister Gilad Erdan, who as interior minister during the previous government's term sponsored the amendment, criticized the ruling, saying, "I deeply regret that the High Court of Justice has chosen to undermine the state's effort to stop illegal migrants from settling in Israeli cities."

He faulted the court for "placing itself above the legislative authority, and setting specific arrangements that circumvent the Knesset. It leaves the Knesset no choice but to pass exception clauses that would allow it to maintain its position as the legislative authority."

A Basic Law can include an exception clause allowing the Knesset to pass regular laws that essentially contradict the benchmark legislation for a limited period, usually no longer than four years. The move require a majority vote of at least 61 MKs.

Interior Minister Silvan Shalom said Tuesday that he plans to "urgently promote an amendment to the Prevention of Infiltration Law, which will set a new course of action and become an effective tool in fighting this phenomenon."

Meretz leader Zehava Galon also criticized the court, for ruling that the Prevention of Infiltration Law stands.

"The court should have rendered this law null and void," she said. "There is nothing that can morally legitimize detaining people without trial, with the sole purpose of making them so sick of life here that they ask to return to places where they are persecuted, and all that without even reviewing their requests for asylum."

The human right groups that petitioned the court, including the Association for Civil Rights in Israel, the Refugees and Migrants Hotline, the Assaf Aid Organization for Refugees and Asylum Seekers in Israel, and Physicians for Human Rights in Israel, criticized the ruling as well. In a joint statement the groups called on the government "to direct the creativity and resources devoted to finding detention solutions for asylum seekers, to crafting policy that would improve their situation."

טעינו? נתקן! אם מצאתם טעות בכתבה, נשמח שתשתפו אותנו