The High Court of Justice on Tuesday partially rejected a petition against the “anti-infiltration law.”
It ruled that while jailing migrants at the Holot detention facility in the Negev is constitutional, holding them for up to 20 months is disproportionate.
The court also ruled that the Knesset must come up with amendments to the legislation within six months, and has temporarily limited the length of detention at Holot to 12 months. In keeping with the ruling, within 15 days, all detainees at Holot who have been there for a year or more must be released.
Prime Minister Benjamin Netanyahu expressed satisfaction that the court accepted in principle the government’s stance that “the phenomenon of illegal infiltration by work migrants is unacceptable... and infiltrators can be jailed in order to create the necessary deterrent,” and said the government will work to implement the ruling.
The ruling follows a petition to the court against the “anti-infiltration law,” which is an amendment to Prevention of Infiltration Law (1954). The petition was filed on December 18 of last year by Israeli NGOs after the Knesset passed the amendment into law. That same month, the High Court rejected a request by NGOs to freeze all detention of illegal migrants pending their review of the constitutionality of the amended version of the law.
After the High Court struck down two recent amendments to the Prevention of Infiltration Law in the past few years, the latest version was passed in December 2014, which ruled that the maximum time African migrants can be held at the Saharonim detention facility is three months, and the maximum time in the Holot open detention center is 20 months.
A previous version of the law had allowed the state to keep migrants who illegally crossed into Israel jailed at Saharonim for up to a year before releasing them to Holot, where they can go out during the daytime.
Also, while in the previous versions of the law detainees were ordered to sign in three times a day at Holot, the present law calls on them to sign in just once a day. They are still not allowed to work, however.
The state and supporters of the “anti-infiltration law” view it as part of a package implemented in recent years to encourage African migrants to leave the country. Israel cannot deport migrants back home to countries such as Eritrea or Sudan, where they are likely to face persecution or imprisonment.
In addition to imprisonment in Holot and Saharonim, the incentives to leave include stepping up enforcement against the illegal employment and work of migrants, and severely limiting their ability to send countries.
In July, the NGO the Hotline for Refugees and Migrants issued a report saying that the state had begun forcing many African migrants to basically choose between being deported to Rwanda or staying indefinitely in the closed Saharonim detention center.
According to figures from the Population, Immigration, and Borders Authority, as of March there were around 42,000 illegal African migrants in Israel, most of them from Eritrea and Sudan.
The actual number is widely believed to be much higher.
At full capacity, the Holot detention center can house about 3,000 detainees.
Hours before the ruling, Justice Minister Ayelet Shaked wrote on Facebook that “the version of the law that was authorized by the Knesset last time is too soft, and the proof is that in recent months the phenomenon of infiltration, which we had almost gotten over, has returned and dozens of Africans infiltrated Israel.
“If the law is canceled a third time, it will mean that south Tel Aviv has been declared an official detention center for infiltrators,” she wrote.
Shaked, who had an extra-parliamentary office in the Shapira neighborhood, near the Tel Aviv Central Bus Station, uploaded videos of “the intolerable lives of south Tel Aviv residents,” including one of an African woman hitting an elderly woman with a wooden board several times.
“Ayelet Shaked, are you justice minister or online commenter?” opposition leader Isaac Herzog (Zionist Union) wondered on Twitter. “We do not threaten the High Court... with video clips.”
Meretz chairwoman Zehava Gal-On said that Shaked’s Facebook post proved that she cannot be justice minister, because rather than defend judges and the courts from political pressure, she took advantage of her position “to terrorize them through blatant political intervention that completely disrespects separation of powers.”
Gal-On also said she thought the court should have canceled the law because nothing can make it moral to jail people without a trial in order to make their lives difficult or to send them back to where they are persecuted.
Culture and Sport Minister Miri Regev, who was instrumental in passing the previous versions of the law, said that “Citizens of Israel, and mainly residents of Tel Aviv, finally got a fair ruling that will allow there to be an appropriate solution for the infiltration problem and will defend citizens of the state from another tsunami of new infiltrators.
“There is no doubt that I breathed more easily after the High Court authorized the ‘anti-infiltration law’ that I worked on for the second time as Knesset Interior Committee chairwoman,” she added. “I want to praise the High Court for understanding that the government that was elected has the right and responsibility to set a clear immigration policy.
It would be better if the High Court would avoid intervening at all, but I hope that its moderate intervention will not get in the way of sending the infiltrators back to their countries of origin.”
Knesset Law, Constitution and Justice Committee chairman Nissan Slomiansky (Bayit Yehudi) praised the High Court for “making the right decision, which reflects the lawmakers’ intention, which is finally being expressed by High Court justices.
I want to believe and hope that we are at the beginning of a new way for the legislature and the judiciary.”
Slomiansky called on the authorities “to make sure that after staying in the detention facility, the infiltrators get on planes and leave Israel.”
In a joint statement released after the ruling, the NGOs who issued the petition said that the court “has ruled for the third time... also this time, those legislators did not devote enough time and thought to the gravity of removing the freedom of thousands of people.”
They added that Israel’s policies toward migrant workers should not be defined by “mass imprisonment of innocents” and called on the government to find policies to deal with migrants that would benefit both them and the residents of south Tel Aviv, where the majority of the African migrant population have made their home in the past several years.
The Center for Migrant Policy, an NGO that supports Israeli policies against African migrants, called the court ruling on Tuesday “a death blow to the hopes of residents of the neighborhoods of south Tel Aviv and other cities who are trying to get back the communal life and personal security they lost.”
They added that the fence on the Egypt border is not enough to deal with the migrant issue, and that negative incentives, such as the amendments to the Prevention of Infiltration Law, are essential.
PIBA said on Friday that since the start of 2015, 1,646 migrants had agreed to leave Israel, either to their home country or a third country, and had been provided with airfare and a one-time cash stipend from the state.
They added that in recent months 57 migrants have been caught after entering Israel through the Sinai border and that all of them have been jailed. They said this included some who had previously taken the $3,500 stipend from the state and left Israel, only to return looking for work.