In dramatic ruling, High Court rejects Israel’s policies on illegal migrants

Interior minister says he ‘can’t accept’ decision which overturns state’s handling of African migrants, since ‘it would mean the end of Israel as a Jewish, democratic state’

Marissa Newman is The Times of Israel political correspondent.

African migrants protest outside Holot detention center in southern Israel. February 17, 2014. (photo credit: FLASH90)
African migrants protest outside Holot detention center in southern Israel. February 17, 2014. (photo credit: FLASH90)

In a landmark ruling, the High Court of Justice knocked down the Knesset’s “infiltrator law” on Monday, declared that the practice of holding African migrants in facilities in southern Israel for up to a year was illegal, and ordered the state to shutter the contested Holot center within 90 days.

Interior Minister Gideon Sa’ar said he could “not accept the verdict of the High Court,” which, if implemented, would mean “we won’t have a Jewish democratic state because our borders will be overrun… with illegal infiltrators.” He said the court had “made a mistake” and that the Knesset would now have to pass legislation preventing the High Court from intervening on the issue.

The dramatic decision was also bitterly opposed by several right-wing Knesset members, who maintained that the infiltrator law had been critical in preventing further vast numbers of migrants entering Israel from countries such as as Ethiopia, Eritrea and Sudan, and said the judiciary was tying the hands of the Knesset.

A special panel of nine High Court justices voted on the two measures, with the appeal to limit the detention of migrants receiving a 6-3 majority, while the decision to close Holot was approved by seven of the nine justices.

The decision to annul the “infiltrator law” reinstated the earlier illegal migrant legislation, under which migrants can be held for up to 60 days.

The court decision adopted the position of human rights groups and shot down an appeal submitted on behalf of the residents of southern Tel Aviv, where many migrants live and where veteran residents claim they fear for their safety. The court maintained that the extended detention of migrants was a violation of their rights.

“Infiltrators do not lose their right to their full dignity in coming to this country by any means necessary,” the decision read. “They do not shed their [right to] dignity when they enter custody or the holding facilities, and their right to dignity fully stands even if their arrival to the country was through illegal immigration.”

Likud minister Sa’ar, in a Channel 2 interview, countered that “Israelis have rights, too,” and claimed that the court decision, if implemented, would dramatically change the basic nature of Israel. “The state cannot accept a situation where it has no tools to deal with illegal infiltrators.”

The state has argued that most of tens of thousands of migrants already in Israel, and hundreds of thousands potentially poised to come, are looking for economic benefits, rights groups contend that the migrants are actually asylum-seekers. The court decision stated that while economic incentives may have played a role in their decision to come to Israel, the significant dangers posed to their well-being in their home countries — including Eritrea and Sudan — could not be ignored.

African migrants gather during a protest in Levinsky Park in Tel Aviv on January 07, 2014. (photo credit: Gideon Markowicz/Flash90)
African migrants gather during a protest in Levinsky Park in Tel Aviv on January 07, 2014. (photo credit: Gideon Markowicz/Flash90)

The decision also noted that as of June 30, 2014, there were 48,212 migrants in Israel, but that the steady flow had dropped significantly in 2013.

In response, Sa’ar, who is set to leave the government and take a break from politics in October, proposed a government amendment to the constitutional Basic Law on human dignity which would anchor the issue in Israeli law and would make it untouchable by the High Court. The Interior Ministry said it would evaluate all the legal possibilities to outflank Monday’s ruling.

Minister of Interior Gideon Sa'ar holds a press conference on September 17, 2014, announcing he will resign from both the cabinet and the Knesset after the Jewish holidays. (photo credit: Flash90)
Minister of Interior Gideon Sa’ar holds a press conference on September 17, 2014, announcing he will resign from both the cabinet and the Knesset after the Jewish holidays. (photo credit: Flash90)

The interior minister noted that since the infiltration law was passed by the Knesset in 2013, allowing the prolonged detention of migrants, the number of migrants leaving the country had tripled — underlining the effectiveness of the law.

Sa’ar phoned Prime Minister Benjamin Netanyahu to inform him of the decision as soon as the court issued it, and called for an emergency discussion on the subject.

Housing Minister Uri Ariel, of the Orthodox-nationalist Jewish Home party, said the High Court “broke a new record today on turning its back on the state of Israel.”

“It’s hard to believe the High Court would harm Israel’s ability to protect itself from the phenomenon of infiltration,” Uriel said. “What use is the border fence when every infiltrator knows that the High Court is tying the hands of the state, and it won’t be able to do anything.”

“This is a dark day for the rule of law in Israel,” he added.

Fellow Jewish Home MK Ayelet Shaked, who heads the Knesset caucus on migrants, declared: “Today the lives of hundreds of thousands of Israelis were destroyed.”

“The High Court [effectively] called on all the citizens of Africa to come to Israel. It harmed the security of the state, and the security of the residents of southern Tel Aviv, and trampled on the legislative branch.”

Like Sa’ar, Shaked pledged to revise the Basic Law on human dignity, thus cutting off the High Court’s jurisdiction on the matter.

The petitioners of the issue — the Association of Civil Rights in Israel, the Hotline for Refugees and Migrants, Assaf – Aid Organization for Refugees and Asylum Seekers in Israel, Kav LaOved, Physicians for Human Rights-Israel and Amnesty International-Israel — hailed the decision and called on the government to reform the existing infrastructure and health services in the areas where the asylum-seekers live, and encourage the hiring of migrants.

“The Court made it clear today, once more, in a categorical and unequivocal manner, that the policy toward asylum-seekers cannot be solely based on mass detention of innocent people or complete disregard of the issue,” the NGOs said in a joint statement.

A protest against the High Court ruling was scheduled for 9 p.m. in Tel Aviv.

A statement from the Israeli Immigration Policy Center maintained the decision “put an end to the hopes of the residents of south Tel Aviv, and to any process of removing the infiltrators.”

It called on the government to “act quickly to forge an alternative to the law, which will reach its legal objectives: the removal of the labor infiltrators while assisting and evaluating the requests of the asylum seekers, a minority within the infiltrators, who are eligible.”

The infiltrator law, approved by the Knesset in December 2013, was the latest in a series of measures aimed at cracking down on Africans entering the country illegally, which Israel says poses a threat to the state’s Jewish character.

Last year, Israel launched a crackdown on what it said were 60,000 illegal African immigrants, rounding up and deporting 3,920 by the end of the year, and building a hi-tech fence along the border with Egypt. Human rights groups as well as the migrants themselves have staged several large protests, opposing the Israeli policy to hold migrants for up to a year in the Holot facility and protesting the conditions of the migrants there. In January, tens of thousands of migrants and activists marched in Tel Aviv for several days to protest the government policy.

Holot, which opened last year as a facility to hold the migrants pending their deportation, houses 2,400 people. Migrants are sent there by order of the Interior Ministry.

AFP contributed to this report.

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