With the state’s migrant policy in shambles following the High Court of
Justice’s bombshell ruling on Monday, tossing out the idea of holding migrants
in detention for three years to try to pressure them to leave the country
“voluntarily,” the question on everyone’s mind is: What comes next? Below are
four potential moves that the state may try:
Option 1: the “Migron” or “Haredi
enlistment” strategy – meaning stall.
In August 2011, the state was
ordered to evacuate the illegal Migron outpost by April 2012.
various on-the-ground problems and ongoing “sudden” and “dramatic” developments
leading to several short delays, the state postponed the evacuation until
There are 2,000 migrant persons in detention and, thus
far, nowhere to put them. Asking for two-to-three month delays, one at a time,
while waiting for new-found solutions to an extraordinary problem – such as
sending the migrants to Uganda or making progress on a new but unfinished bill –
could buy significant time.
At the end of the day, the court does not
have its own army to physically force the migrants’ release, and as long as the
state says it plans to follow the court’s order but just needs more time, there
is not much the court can do, at least for awhile.
This solution also
plays into Supreme Court President Asher Grunis’s love for avoiding thorny
issues by dragging out cases.
Technically, the now-invalidated law was
set to expire in 15 months anyway.
If the state manages to drag the issue
out for close to another 15 months, it might gain added time for new legislative
At least one justice, Neal Hendel, said he might have given the
state 15 months to solve the issue because the dilemma is so
Option 2: Pass the same law with six months or one year as the
maximum detention period (as already proposed by the Legal Forum for Israel)
instead of three years.
The gamble would be that Grunis and others will
swing the court majority for the state. (Grunis and others said openly or
hinted that they might support the same policy with a shorter maximum-detention
Of course, options 1 and 2 could also be played out at the same
Option 3: Trying harder to get a third country to take the
The state has been trying to do this until now, via Egypt,
Uganda and possibly others, but with limited success.
Maybe if it offers
a poor/weak country greater economic and/or military assistance, this could be
Option 4: New policies to integrate the migrants, but address
some of the public’s concerns on an issue-by-issue basis.
MK Miri Regev, a strong voice on the issue, has already publicly toyed with the
idea of “taking the hit” and moving on, by spreading the migrants all over the
country so that they become a national responsibility that is more defused and
not just a huge issue for south Tel Aviv.
Within this option there are
many more pieces to play with and a spectrum of weaker restrictions that could
be imposed on migrants.
The High Court mentioned the necessity for the
state to keep track of them, limiting them to certain towns and geographic areas
(but without being detained); requiring them to sleep in designated buildings,
while letting them move freely during the day; helping some of them get jobs at
the expense of foreign workers; heavier financing of local authorities to help
them settle and adjust and increasing police presence in areas with large groups
of migrants and stronger enforcement of labor laws.
The first solution is
the most likely short-term answer, or hybrid answer along with one of the other
options, because it has been Netanyahu’s style to delay in the hope that new
circumstances would present new possibilities.
Also, no matter what the
court said, the overall outlook of most political parties has not changed to
embracing the migrants, and no one wants to be saddled with the unpopular
position and the responsibility of being the one who decided they could stay.
So, if no one is ready to decide to offer the migrants permanent residence,
stalling could be the only alternative.
But this does not fundamentally
address the issue, and at some point down the line, as with Migron, the court
will lose patience and mandate a more final “drop-dead” date with penalties for
The second option has a strong chance because Grunis has
essentially embraced it, and other justices have hinted at it, although several
justices have completely rejected any detention regime. Therefore, another fight
with the court could be risky business.
The third option could be less
upsetting for all sides, but it just might not be realistic, no matter what the
Few countries would be more excited than Israel about
absorbing a large group of African migrants.
Option four ends the legal
problems, but again, it is not clear, even after the court ruling, if the public
and enough politicians would be willing to accept it.
One thing is clear:
while the court told the state emphatically what it cannot do, what the state
will do is still a puzzle of epic proportions.
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