High Court: State cannot detain migrants indefinitely

The High Court ruled that Israel can press migrants to leave the country but cannot detain them indefinitely for refusing to go.

African migrants gesture behind a fence during a protest against Israel's detention policy towards them (photo credit: AMIR COHEN - REUTERS)
African migrants gesture behind a fence during a protest against Israel's detention policy towards them
(photo credit: AMIR COHEN - REUTERS)
Bringing the battle between the government and the courts to a boiling point once more, the High Court of Justice has struck down a key aspect of the state’s African migrant policy as unconstitutional.
The key point on Monday was a decision that the government cannot detain thousands of migrants indefinitely who do not have refugee status and refuse deportation to an unnamed country in Africa in exchange for a few thousand shekels.
Prime Minister Benjamin Netanyahu, Justice Minister Ayelet Shaked, Public Security Gilad Erdan and Interior Minister Arye Deri responded swiftly with varying threats to pass rapid-fire legislation to restore the substance of what the High Court removed.
More specifically, Netanyahu said there will be a need to bring changes to existing legislation to enable enforcement – a reference to ensuring that migrants continue to leave the country.
The decision marked the fourth time that the High Court in recent years has fully or partially scrapped a government policy to aggressively pressure African migrants to leave the country who entered illegally.
In the years leading up to 2012, a flood of African migrants crossed into Israel illegally, which at one point reached around 64,000.
Since then, the government has tried a variety of pressure tactics, including extended or indefinite detention, to reduce the number of migrants, while taking harsh criticism from the human rights community and the court.
All of the High Court’s Monday rulings were made by a unanimous 5-0 vote, including High Court President Miriam Naor, her expected successor, Esther Hayut and justices Hanan Melcer, Yoram Danziger and newly retired justice Elyakim Rubinstein.
Broken into three main parts, while the key decision, blocking indefinite detention, went against the government, two other parts of the court decision came out in the government’s favor.
Regarding the issues of whether the state’s deporting migrants to an unnamed third country is a sound policy and whether the state is performing sufficient oversight on what happens to the migrants, the court confirmed the state’s policy.
In light of that part of the decision, the Center for Israeli Migrant Policy, which has pushed for deporting migrants, praised the court’s endorsement of the agreements that Israel made with an unnamed third country for voluntary deportation.
The Center also did call on the political echelon to ensure that migrants, who it said had no legal basis for staying, continued to leave the country for the unnamed third country in Africa.
The Hotline for Refugees and migrants and a coalition of human rights groups which filed the petition to the High Court praised the part of the court decision that blocked indefinite detention of migrants who had not yet requested refugee status or whose requests were rejected.
They said that the court had “decided not to approve a draconian and unprecedentedly severe framework which would allow indefinite detention of innocent people... We will continue to fight until the State of Israel gives a human solution to the refugees who have lived for a decade already within its borders.”
Prime Minister Benjamin Netanyahu addressed the issue of African refugees and migrants who illegally cross into Israel from the Sinai desert during a speech he gave in Samaria on Monday night.
Israel has a three-pronged approach to halting the flow of infiltrators, Netanyahu said. This includes a wall, an agreement with African countries to allow the infiltrators to return and enforcement, Netanyahu said.
“In light of today’s developments, we will have to legislate new laws so we can enforce our policy of removing these illegal infiltrators from our country’s borders,” Netanyahu said.
Erdan responded to the decision saying: “Unfortunately, the High Court emptied of substance” the current government’s policy “to deport infiltrators to a third country and has left the state with no effective tool to remove them.”
He said: “We must move forward with a legislative amendment” which will allow the state to continue “to remove infiltrators... otherwise there will be a new incentive” for more infiltrators to come to Israel.
Likewise, Deri said he spoke “immediately with” Shaked and informed her that “I will consider a legislative amendment which will permit the state to remove infiltrators from the state against their will.”
In February 2016, the Knesset passed the government’s fourth policy in the last few years to address African migrants who arrive in Israel illegally.
The policy explicitly permitted the placement of migrants in a combination of closed and open detention centers for up to 12 months – the 12-month number came from a suggestion by the High Court itself in a prior ruling.
Until Monday, the state had taken the position that the 12-month detention limit only applied to migrants who had applied for refugee status and whose request was not already rejected.
In other words, the state had started to indefinitely detain migrants who had not yet applied for refugee status and those whose requests for refugee status had been rejected.
The Hotline for Refugees and Migrants and a group of pro-migrant NGOs asked the High Court to strike down the state’s policy, saying that the indefinite detention was unconstitutional.
The human rights groups also asked the court to strike the deportation to the unnamed third country as unconstitutional, presenting voluminous anecdotal evidence that deported migrants were being badly mistreated.
The state provided counterevidence to argue that deported migrants were not being mistreated.
While the state has tried to avoid discussing the unnamed “third country” so as not to undermine the country’s willingness to receive migrants, one of the state’s public positions before the High Court and numerous reports from human rights groups have named Rwanda and Uganda as “third country” destinations.
Meretz MK Michal Rozin criticized the use of “secret agreements with a third country” as an “unfit solution,” and called on the state to integrate migrants in spread out locations throughout the country.
A need for a third country is part of the issue where there could be legal problems with sending the migrants back to their country of origin due to persecution or a lack of diplomatic ties.
The High Court said, at least as of now, the conditions for deported migrants were sufficient.
Naor also reiterated a suggestion from earlier High Court decisions to designate various spread out areas for migrants if the main issue was to not have all of them living in southern Tel Aviv, where most have been until now.
Ultimately though, the court on Monday limited the amount of time that the state could detain migrants in closed detention to 60 days, at Saharonim in the Negev.
Along with the 12 months that the state can place migrants in open detention at Holot, located close to Saharonim, where migrants have some freedom of movement and more lenient housing regulations, that means that the state’s maximum time to detain migrants as of now is 14 months.
The Hotline NGO noted that migrant numbers since 2012 have already dropped from a high of 64,000 to a current estimate of around 36,000. The 36,000 includes around 28,000 Eritreans and 8,000 Sudanese.
The petition itself was also an appeal from a November 2015 Beersheba District Court decision which had rejected the human rights groups’ request for intervention.
In their appeal to the High Court, the migrant groups claimed that the district court improperly ignored the evidence they brought of mistreatment of migrants who agreed to being deported to the third country and made a range of other errors.
Part of the issue has been an ongoing debate about whether Eritreans who came to Israel illegally should get refugee status or whether they could even be sent back to Eritrea as opposed to needing to send them to a third country.
The Interior Ministry has overwhelmingly rejected applications by Eritreans for refugee status on the grounds that fleeing military service, the reason many of them give for leaving Eritrea, for Israel, is not included in the definition of being “persecuted,” which would obligate Israel to give them refugee status.
The Hotline has accused the ministry of using a slanted process to reject refugee applications.
Under the Refugee Convention, which Israel is a party to, persons who cannot return to their country of origin because of threat of persecution must be granted refugee status.
However, in September 2016, a special Jerusalem court for refugee issues said the state could not use such a sweeping argument to dismiss refugee applications.
Additionally, that court said the state could not reject applications on the basis of concerns that too many Eritreans getting refugee status at the same time would threaten the state’s Jewish character or similar considerations.
Citing UN and other reports, the Hotline and Eritreans it represented have argued that service in the Eritrean army for many is a sentence to torture or death in a country where the rule of law is weak and the army is used to achieve many oppressive goals.
The country, in contrast, has cited British and Danish government reports which state that fleeing the Eritrean army is not a basis to receive refugee status.
Israel has trouble returning Sudanese migrants to Sudan because of a lack of diplomatic ties.
Herb Keinon and Tovah Lazaroff contributed to this report.