Analysis: Still no final migrant policy

There are gaping holes in the new decision.

African asylum seekers line up to apply for a visa in Bnei Brak, Israel (photo credit: MARC ISRAEL SELLEM/THE JERUSALEM POST)
African asylum seekers line up to apply for a visa in Bnei Brak, Israel
We are used to kicking the can down the road on a variety of major issues in Israel.
Yet after 12 years, while Israel has finally decided one major issue regarding how to deal with its African migrants, there are still questions with gaping holes.
First, here is what the state has resolved.
Israel says to send 16,000 African migrants to Western countries, April 2, 2018 (Reuters)
Monday’s announcement said that of Israel’s 35,000 plus migrants, around 16,000 will be sent to Western countries in an orderly manner over five years, while all or most of the other around 20,000 will get to stay.
We’ll come back to the 16,000 number, which is much less resolved than it sounds. However, the announcement does mean that the 20,000 will finally be distributed into different parts of the country and integrated into society.
This ends the obvious 12-year fight between the government, the migrants, the courts, the UN and human rights groups.
In 2006, more than 1,000 African migrants crossed into Israel illegally via the porous Egyptian border.
The numbers increased each year until by 2010 the total number of migrants in the country reached 26,000. By sometime around 2012-2013, the number had increased to 60,000.
Meanwhile, Israel built a wall which ended the influx of African migrants, capping off the total of those who were here.
In 2012, the country also instituted the first of several policies that combined detention or deportation of some migrants in order to reduce that 60,000 number.
At the same time, the state virtually across-the-board refused to make decisions about which migrants were refugees under international law and could stay permanently; who among them were pure economic migrants and had to go; and what was the real number Israel was willing to permanently settle here.
The High Court of Justice pointed this out in September 2013 – the first of several times it struck down as unconstitutional Israeli state policy on the migrants.
Then Justice Edna Arbel said that while it was theoretically possible for the policy of detaining migrants to reduce the migrant population in Israel, in reality only a few thousand could physically be detained and there was no room to detain most of the tens of thousands of migrants, making the entire policy a failure in real terms.
PUT SIMPLY, the detention math did not add up.
Further, Arbel surveyed other nations’ policies for dealing with large migrant dilemmas and concluded that the state had ignored other tactics, which could have achieved the state’s objectives, but with less harm to the migrants’ fundamental freedoms.
Arbel said the unique dilemma posed by the large number of non-Jewish migrants in a small Jewish state was considerable and “fell into more of a gray area than either of the parties in the case” were ready to admit.
Not only did the court declare the 2012 policy illegal, it also, almost as an aside, mentioned that clearly most of the migrants could not be deported to their countries of origin and suggested a number of other ideas for the issue. Many of the alternatives involved coping with giving them permanent residence.
Technically, the court had not been asked to rule on that issue and it never had the power to make a final global decision for the whole group.
But the court’s general comment was a warning shot across the government’s bow: Do not try any new policy that continues to ignore the reality that most migrants cannot be returned and will remain here.
The government repeatedly ignored the court and years of litigation, new policies and new vetoes by the court ensued, with the bigger issue – how many migrants at minimum would get to stay – going unanswered.
Now there is an answer: about 20,000 or about one-third of the original 60,000.
Was this the state’s strategy all along: Do not give a number, do not decide refugee status rights and reduce the total number as low as possible before cutting a global deal to send some more out, while letting some stay?
It is hard to say, but it is quite possible.
The state announced it was closing the Holot detention center in the southern Negev months ago without really having its new deportation policy ready to run.
Leaders of Rwanda and Uganda, where many thousands of migrants were deported, had indicated they were never ready to take the vast majority of the migrants.
From the prime minister’s statement on the issue, apparently these states were already pushing back against taking more or against sufficiently overseeing the welfare of the migrants to a standard that the High Court would endorse.
Along with recent new High Court pressure, this is likely what led to the timing of Israel wanting a deal.
But whatever the reason, after years of some wanting the vast majority of the 60,000 migrants to get to stay and of some wanting them all to go, a compromise has been struck.
And yet, there are gaping holes in the new decision. There is no apparent enforcement mechanism to get the 16,000 to leave. What if more want to stay? The period for their leaving is five years – a long time when a lot can happen or get lost in the shuffle. Right now the number of migrants is capped and the wall guards the Egyptian border, but what happens if there is a new wave from another direction at some point? Will the state increase the 20,000 who get to stay to 25,000 or even more? Will it go back to detaining and deporting? This issue has been kicked down the road again.
Finally, the state will still need to figure out what it will mean for these at least 20,000 non-Jewish African migrants and their descendants to become a permanent part of the country.