Court upholds ‘anti-infiltration’ law, but limits migrants’ detention time

The High Court of Justice on Tuesday partially stuck down a petition filed by human rights groups challenging the legality of Israel’s controversial law regarding illegal African migrants and asylum seekers in Israel.

An expanded panel of nine justices rejected claims that the current version of the Prevention of Infiltration Law was constitutional, apart for the clause that allows for the detention of the migrants for up to 20 months without trial.

Chief Justice Miriam Naor ruled to temporarily limit the detention of illegal migrants in Israeli prison facilities to 12 months, saying the current 20-month incarceration period was disproportionate. All migrants incarcerated for more than a year are to be released within 15 days.

The court gave the Knesset six months to revise the legislation in accordance with the ruling.

There are currently some 47,000 African migrants living in Israel, the vast majority of whom claim asylum seeker status. More than 90 percent of them come from Eritrea, Sudan and the Congo, but Israel has recognized fewer than 1% as asylum claims, and since 2009, less than 0.15% — the lowest rate in the Western world.

The Prevention of Infiltration Law seeks to prevent additional illegal immigration to Israel and encourages those already in the Jewish state to leave. Referred to as “infiltrators” by the government, over 2,500 African migrants and asylum seekers are detained the “open” Holot facility in the Negev.

Because the majority of Holot’s detainees have been incarcerated for more than a year, a large influx of newly released migrants are expected to arrive in urban areas like Tel Aviv, while the Interior Ministry will likely issue new summons for detention for other migrants to take their place.

African migrants seen at the Holot detention facility in the Negev, August, 2012. (Shai/Flash90)

Israeli human rights groups (Hotline for Refugees and Migrants, the Association of Civil Rights in Israel, ASSAF – Aid Organization for Refugees, Kav LaOved, Physicians for Human Rights-Israel and Amnesty International-Israel) hailed the ruling as a correction of the “denial of liberty for thousands of people.”

“The court made it clear that a policy whose purpose is to break asylum-seekers’ spirit to coerce them to leave Israel is unconstitutional. The judges also criticized the slow pace of examining asylum claims and the abysmally low recognition rate of refugees in Israel,” the organizations said in a joint statement.

Hours before Tuesday’s ruling, Justice Minister Ayelet Shaked took to social media, warning against overturning the current law and blaming “insufferable” living condition in south Tel Aviv on the influx of illegal immigrants.

Critics of the Prevention of Infiltration Law argue that, unlike other countries, Israel fails to offer refugees rights, protections or tools to integrate into society. Earlier this year, attorney Oded Feller of the Association for Civil Rights in Israel noted that, until recently, the state did not provide a mechanism for Eritreans and Sudanese refugees to apply for asylum from inside Israel.

African asylum seekers leave the Holot detention center in southern Israel on December 21, 2013 (Tomer Neuberg/Flash90)

The High Court of Justice overturned similar clauses of the Prevention of Infiltration Law in 2013 and 2014, citing human rights violations. In its ruling of September 2014, the court said that the detention of the asylum seekers for an unspecified amount of time — a provision the law originally allowed for — was unconstitutional, and ordered the Holot facility closed by December 22. The court granted the government three months to find an alternative policy before it repealed the law completely.

In light of that ruling, Prime Minister Benjamin Netanyahu, together with the Interior Ministry, made new amendments to the law in November that allowed illegal immigrants to be detained for up to 20 months without trial — a change that, in effect, allowed Holot to stay open.

Israeli human rights groups were quick to point out that the new amendment was practically identical to the previous one that had been struck down by the High Court, prompting the appeal heard by the court on Tuesday.

Last month, a report released by one Israeli NGO, Hotline for Migrant Workers, alleged that Israel was forcing dozens of detained African migrants to choose between deportation to Rwanda and indefinite imprisonment. According to the report, 43 detainees in Holot were given the option of taking $3,500 in cash and voluntarily returning to an unnamed African country (according to press reports, Rwanda), or face open-ended imprisonment in Israel.

The issue caught the media spotlight in April, when three African Christians executed by Islamists in Libya after seeking passage to Europe were identified as having sought asylum in Israel.

Since 2006, Israel has struggled to establish and implement a clear legal framework to deal with the large influx of migrants, resulting in confusing and often conflicting ad hoc immigration policies. The influx has slowed dramatically of late, as Israel has sealed off its border with Egypt more effectively.

African migrants hold posters and one holds an Eritrean flag during a protest outside the Knesset in Jerusalem, Wednesday, Jan. 8, 2014. (AP Photo/Ariel Schalit)