The High Court of Justice on Monday night struck down the state’s migrant policy for the second time in a year.
By a 7-2 vote, the court told the state it must close the Holot open detention center within 90 days and froze aspects of the limits on the illegal migrants’ movements starting on Wednesday.
By a 6-3 vote, the court struck down the constitutionality of holding newly arriving illegal migrants in the closed Saharonim detention center for one year, and the clock for the requirement to check detainees’ refugee status or release them will start to tick as of October 2.
The voting patterns were almost identical on the two issues, with Deputy Supreme Court President Miriam Naor and Justices Edna Arbel, Salim Jabroun, Esther Hayut, Yoram Danziger and Uzi Vogelman voting to strike down both government policies, and Supreme Court President Asher D. Grunis and Justice Neal Hendel voting to uphold both policies.
Only Justice Yitzhak Amit’s vote changed, with Amit voting to strike down the Holot center but to uphold the Saharonim center.
By a 9-0 vote, the court rejected the counter-petition by residents of south Tel Aviv that the state was not sufficiently defending their rights in terms of security and health from the vast number of “infiltrators” in their neighborhoods.
The defeat for the government was considerable, considering it had initiated the policy only recently, in December 2013, after the court struck down the old migrant policy in September 2013.
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Prime Minister Binyamin Netanyahu reacted to the decision with deafening silence, despite the fact that he was intimately identified with the new policy and had issued a strong response to the court’s rejection of the old policy.
Interior Minister Gideon Sa’ar and many other politicians said that the court’s ruling undermined a policy that had been effective in dealing with the illegal migrant population, which had dropped to 48,212 as of June 30 – around 10,000 fewer than it was as its height a few years ago.
The Hotline for Refugees and Migrants said, “The court declared once again, unambiguously and vehemently, that the policy for refugees cannot center around imprisonment.”
The group added, “It is time for a true solution for the good of south Tel Aviv residents and the refugees,” calling on the state to invest funds in integrating migrants throughout the country.
Orli Yogir of the Center for Migrant Policy in Israel said, “The decision is completely cut off from the reality on the ground, from Israeli democracy and from the weaker sectors of society.”
She said that the detention centers had proven their utility by convincing thousands of migrants to leave the country.
Vogelman, who had also come out strongly against the initial policy, said that “the heart understands the difficulties” for the state of coping with as many as 60,000 migrants at one point, but that “the conscience will not suffer the chosen solution.”
He said that in the crucial debate over whether the migrants are here for economic reasons or to escape persecution, the court could not ignore that the state was not forcing migrants to go back.
He said there is at least a serious concern of persecution for Eritreans and that Sudanese are not being sent back also because of the lack of diplomatic relations with Sudan.
With nowhere to send most of the migrants, the state needs to figure out a more humane way of dealing with their presence in Israel besides throwing them in detention, whether it be open or closed, Vogelman said.
Vogelman also focused on Israel’s international law obligations under conventions relating to refugees and found that Israel’s rate of granting refugee status is far lower than in most of the world.
He suggested that the migrant issue is much more manageable now than in the past, with thousands of migrants entering the country illegally in 2009 to 2011 and only 19 illegal entries over most of the past year.
Flipping an argument the state has made for preserving its current policy, Vogelman said that the fact that the state has found some third countries for migrants to go to makes the issue less desperate, reducing the justification for drastic measures.
It is clear that the third-country solution will not provide a comprehensive solution for the remaining 48,000 migrants anytime soon, and therefore detaining persons who will not be deported soon violates their rights and is unconstitutional, Vogelman said.
Grunis opposed striking down the policy but did not spend much time justifying it, even agreeing that its constitutionality was problematic.
Rather, his opposition stemmed from wishing to defer to the Knesset as legislator and being careful about striking down its policies twice within a short period.
He worried that this could make it appear as though the court were legislating instead of the Knesset, and suggested striking down only the policy’s requirement for migrants to sign in three times per day at the open detention center.
Hendel, too, did not strongly defend the policy’s wisdom but said that, in deference to the Knesset, narrow aspects of the policy should be struck, without throwing out the broader strategy.
Protecting the migrants’ rights could not be at the expense of the residents of south Tel Aviv, he said.
Last week, pro- and anti-migrant groups were vying for the high ground on the issue in anticipation of the ruling.
The Hotline had released a report slamming the state for allegedly improperly increasing pressure on detained illegal migrants to leave the country, while simultaneously making life in the Holot open-detention center less tolerable.
Also last week, anti-migrant figures, including Tel Aviv Deputy Mayor Arnon Giladi, rallied under the banner of “Breaking the Silence Vis-a-Vis the Infiltrators,” with speeches and testimonies from south Tel Aviv residents about crime and pressures they say they have experienced due to the great number of migrants in their area.
In September 2013, the High Court, in a 9-0 decision, struck down the state’s old migrant policy as unconstitutional, giving it 90 days to release thousands of detained migrants or to construct a new policy.
In December 2013, the state completed a lightning-fast legislative process with the Knesset’s approval of a new migrant policy, which, among other things, shifted from a focus on placing thousands of migrants in closed detention for up to three years to placing many of them in indefinite open detention.
Shortly after it was initiated, several groups petitioned the High Court to strike down the policy, with the groups and many international critics, as well as State Comptroller Joseph Shapira, saying that the new policy equally violated migrants’ fundamental rights.
The decision had been expected by Monday, the last day that the recently retired Supreme Court Justice Arbel, who authored the court’s 2013 decision on migrant policy and participated in arguments on the current petition, would be able to sign the opinion.
In last week’s report, the Hotline said that Interior Ministry and Population and Immigration Borders Authority officials have recently been engaging detained migrants in Holot more aggressively, to convince them to leave the country “voluntarily,” including with a $3,500 monetary incentive.
The report complained that these representatives were concealing from the migrants that no one in the countries they would be transferred to if they agreed to a “voluntary” transfer would look after their physical or economic well-being.
This comes amid reports that many migrants who have left Israel may have been harmed, tortured or are otherwise without any means of stability or support in their new countries.
At the anti-migrant event hosted by Giladi, the deputy mayor said, “I invite the Supreme Court justices to spend one night walking around our streets, which were once south Tel Aviv, and have unfortunately transformed into a state of all of its infiltrators.”
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