Yesterday, 16 September 2013, the Israeli Supreme Court, sitting as the High Court of Justice (BAGATS), rejected a Parliamentary law as unconstitutional when it accepted petitions (in three unified cases) against the 2012 amendment of the 1954 Israeli Infiltration Law.

Under the amended Law, individuals entering Israel illegally (henceforth ‘Infiltrators’) could be held in custody for three years, without trial, providing they received an expulsion order by the Ministry of Defense, for reasons of their illegal entry into Israel. The amendment also foresees the possibility for early release and sets out detention conditions including judicial review.

Three petitions were brought before the Court and were united. One petition dealt directly with the illegality of the amended Infiltration Law.Tthe other two petitions were appeals against decisions of lower courts  that centered to the question of the legality of the amended Infiltration Law.

The 120 page Decision sets out the context of the acute  immigration challenges Israel has been facing over the last decade and the shaping of its immigration policy. The Decision also describes the conflicting interests and rights at hand, namely of Infiltrators who are asylum seekers and possibly refugees; and within the specific circumstances of the State of Israel (many Infiltrators, including asylum seekers come for States of Origin that are in a state of belligerence with Israel).

In a unanimous decision [with several separate opinions] the nine Supreme Court Judges accepted the petitions and rejected the 2012 amendment to the Infiltration Law as unconstitutional. More specifically, they decided that the amendment to the Law and the three-year detention period is contrary to the Israeli Basic Law: Human Dignity and Liberty of 1992.

The decision is groundbreaking and marks a victory for Israeli human rights lawyers and NGOs who petitioned to the Court. Among the entities who joined the case as amicus to the Court stands the Concord Clinic for Human Rights and International Law, that I have recently joined. At the head of the Concord Institute stands, Prof. Frances Raday. This specific case was led by Prof. Raday and Adv. Avinoam Cohen.

The Decision is also interesting for the understanding of the immigration situation in Israel in a more general context. In this vein, I would like to bring forth a few facts and considerations the  Court underscored in its decision :

The dilemma: The Court underlined that Israel has not been spared by the global phenomena of an increasing, world immigration flow. Immigration issues within the Israeli context, have raised difficult dilemmas and issues such as family unification, foreign workers, asylum seekers or refugees, and Infiltrators.  Most of these elements raise conflicts between national and public interests and immigrants’ rights, including their basic human rights, their right to dignity and freedom. On the other hand questions of growing violence and local employment, have also arisen. The balance is hard to strike and any decision will necessarily mean compromising one of these interests. Parties agree that the vast Infiltration phenomena causes damage to Israeli society and national interests, the dispute is on possible and legitimate ways to deal with reality. [In the social sphere the struggle for immigrants’ and refugee rights is marked by, for instance,  rhetoric of Israel being a nation of refugees]

The Numbers: The decision deals with the Infiltration, hence illegal entry into Israel’s borders, as opposed to foreign workers or tourists who have entered Israel legally and have over-stayed their visa permits. Most Infiltrators enter Israel through the Egyptian border, which is 220km long. Recently, the State built a fence at the border in order to fight different forms of trafficking (in women, weapons, drugs and Infiltration). The Immigration phenomena has reached such broad dimensions, as to mark changes in the different layers of life in Israel. Infiltration has influenced interior security and public safety. There has been a marked change in the urban setting and impact on the economic setting. The most recent figures used by the Court (MOI figures) point at 64,649 Infiltrators who have entered Israel illegally by 1, May 2013, of which 54, 580 individuals are living in Israel [for a population of approximately 7,700,000]. A reading into the numbers shows however, that lately the number of new Infiltrators has decreased considerably , from 14,709 Infiltrators in 2010 and 17,258 Infiltrators in 2011 (an average of 1,400 individuals monthly); to 10,412 in 2012 (an  average of 870 individuals monthly) and in 2013 there were 10 individuals in January, 5 individuals in February and 3 in March.

Additionally, 66% of Infiltrators living in Israel come from Eritrea and 25% come from Sudan.

The Situation in Eritrea and Sudan based on UN reports and Israel’s policy toward each group of asylum seekers/Infiltrators: The Decision relies on UN reports when describing the difficult political situation in both Eritrea and Sudan , setting a picture of dictatorship, forced disappearances, arbitrary executions (for Eritrea) and full-blown conflict, mass rapes, violation of human rights and genocide, in Sudan.

Israeli policy in terms of asylum seekers (including Infiltrators) is based on The Convention on the Status of Refugees of 1951 and on its internal laws. Additionally to the protection an individual is entitled to if he/she is a recognized Refugee, Israel also abides by the principle of ‘non-refoulement’ preventing someone from being sent back to a place where his life would be in danger. The protection resulting from ‘non-refoulement’ is referred to as temporary protection, regardless of a person’s individual claims to be recognized as a refugee.

A ‘Normative Fog’ for Eritreans: Israel practices a non expulsion policy toward Eritreans, since Eritrea has been recognized as a conflict State. Nevertheless, Eritreans do not enjoy full rights that would enable them to build their lives in Israel as long term residents. For this to happen, Israel would have to make a positive finding as to their entitlement for ‘temporary protection’. This has not happened. The status of Eritreans is unclear to all because of this vague policy applied by the Government. Their rights (to social security, medical care, employment, education and so forth) have not been explicitly set out.  It has left what Judge Hayut referred to in another decision as a ‘normative fog’.

Policy toward Sudanese: Sudanese benefit from a somewhat better situation, however, the Court states, their situation is somewhat similar to Eritreans notwithstanding. Their situation is better since they have been positively recognized with the entitlement to ‘temporary protection’. This gives them the right to legally work and stay in Israel for instance. Their situation is somewhat unclear since Israel now considers that Sudan is a country where safe return is possible. North Sudan does not have diplomatic relations with Israel. The identities of individuals from North Sudan is not permitted for publication since this would put their lives in peril (hence the principle of ‘non-refoulement’ would apply). If their identity is known they become refugees ‘sur place’. This is because past experience has shown that Sudanese who have returned to Sudan (from Jordan) and who were thought to have been in Israel, were executed (hanged). Sudanese passports bear the statement that the passport is valid for all countries except for Israel.

The situation in South Sudan is different. Israel has diplomatic relations with South Sudan. On 31 January 2012, the Minister of Interior issued a decision, confirmed by the Courts, that Sudanese in Israel from South Sudan can now return to their Country of Origin.

The mass number of Sudanese residents in Israel makes this decision difficult to implement and will take time. Before returning to their countries, individual RSDs are prepared (interviews, assessments and decisions as to an individual entitlement for refugee status as opposed to the collective, temporary protection).  So currently, their legal status in Israel is unclear.

The Legal Situation before the Amendment to the Infiltration Law: under the previous Law, an individual who was in Israel illegally, could be ordered to leave the country based on the Law on Entrance into Israel. Once an expulsion order was issued and if the individual did not leave the country as ordered, he/she could be arrested. The Law on Entrance into Israel) did not mention a time limit to the duration of detention. The Supreme Court enstated limits on the MOI’s discretion and operated a judicial review. Further case law limited the detention periods and ordered the release of detainees if their expulsion from Israel was not going to be implemented in a short period of time. A further step was marked by amendments to the Law , namely in 2001, that were aimed at dealing with the increasing numbers of illegal immigrants and/or infiltration into Israel.

In practice, illegal immigrants and Infiltrators were released from detention after short periods of time and were given permits. In 2006, the Government tried to implement to previous Infiltration Law and petitions were filed to the Supreme Court against the law and its application because it did not explicitly limit the time period for detention. In a Supreme Court decision of 7 October 2008 the new procedure in place was that a person caught at the border for Infiltration  would be detained at the border and transfered to a detention center, no later than 72 hours from the time he/she were caught. Within 14 days the person would be brought before a judge who would consider whether the individual should be released.

Final Words: In her written Decision, confirmed by all Judges unanimously, Judge Arbel states that out of 55,000 individuals who have infiltrated Israel illegally, 1,750 are in detention. Therefore, for Israeli society, the challenges it faces, stemming from illegal infiltration, are as acute.  However, for the 1,750 individuals in detention, applying the Amended Infiltration Law marks the difference from arbitrary, unresolvable arrest, to freedom and hope.

In reaching the Decision, Judges looked at comparative law, international law and national laws.