Publication by a member of the Interest Group: Ruvi Ziegler
In a previous post, I analysed the Israeli High Court of Justice’s (HCJ) judgment in Gebrselassie v. Knesset et al (partial summary of the judgment in English), in which the Court held the ‘Law for the Prevention of Infiltration (Amendment No. 4)’ (full text in Hebrew) to be unconstitutional and quashed it. The judgment extended a 90 day transition period, which was due to lapse on 22 December 2014.
On 8 December 2014, hours before dissolving itself in preparation for early elections arranged for 17 March 2015, the Israeli Parliament, the Knesset enacted (by a 47 to 23 majority, with 3 abstentions) the ‘Law for Prevention of Infiltration and Ensuring the Departure of Infiltrators from Israel’ (full text in Hebrew). Under the new legislation, ‘infiltrators’ who enter Israel and cannot be deported will be automatically detained for three months at the Saharonim prison in the Negev desert (reduced from one year under the quashed legislation). ‘Infiltrators’ already in Israel, as well as new arrivals (following their three months’ detention) can be detained at the Holot detention centre for 20 months (as opposed to indefinite detention under the quashed legislation).Over 2,200 persons are currently held in Holot pursuant to the quashed legislation; they are expected to remain for what is now fixed-term detention.
The detainees will be required to report for a headcount between 8 and 10pm every night, and the detention centre will be locked shut at night. While the length of detention was shortened, its prison-like characteristics (managed by the Israel Prison Service, which conducts searches on persons entering and leaving the facility), the fact that detainees are barred from working, and the facility’s remote location in the Negev desert are likely to render the possibility to leave the facility at daytime rather futile. Moreover, violation of the sign-in conditions can lead to up to four months’ detention in the closed facility, at the discretion of the Population, Immigration and Borders Authority.
In the two previous ‘rounds’ of litigation, the HCJ unveiled the unsoundness of the overall state policy. On one hand, Israel recognises the fact that Eritrean and Sudanese nationals cannot be deported. On the other hand, it detains them in an effort, now explicitly manifested in the legislation’s title, to entice them to leave. It is worth reiterating Justice Uzi Vogelman’s main opinion in the above HCJ judgment, stressing  that ‘the question is not only quantitative – what is the maximum constitutional length of time for detention in custody – but also (and perhaps primarily) qualitative – whether it is permissible to detain a person not subject to effective deportation proceedings. To this question I respond…absolutely not.’
Since the legislation applies to ‘infiltrators’ who according to the state’s determination cannot be deported, persons detained will be released after 20 months without any plan for regularisation of their precarious legal status (see my post). Indeed, the legislation also amends the ‘migrant workers law 1991’, imposing financial sanctions on the (majority of) non-detained ‘infiltrators’ who are in un-regularised employment: they will not receive severance pay or pensions to which other Israeli workers are entitled. Instead, their employers will have to deposit 16% of the salary in a separate account, and to deposit further 20% of their salary on behalf of their employees. This money will be ‘released’ only upon the employees’ departure. Hefty fines are imposed for breaches. The legislative aim is two-fold: encourage asylum seekers to leave, and discourage employers from employing them. The immediate outcome will be further destitution, especially as ‘infiltrators’ do not receive benefits or state assistance.
A petition to the HCJ challenging the constitutionality of the legislation is imminent. The HCJ, faced with detention legislation premised on the same tenets found to be unconstitutional less than three months ago, will be forced into an making an unsavoury choice: quash the legislation for the third time, an unprecedented move in the state’s history, and face real risk of legislative attempts in the next parliament to limit its judicial review power; or uphold it based on a proportionality analysis, permitting arbitrary detention of persons in need of international protection. Stay tuned-it will be a hot winter.
Dr. Reuven (Ruvi) Ziegler s a Lecturer in Law at the University of Reading.
This article was cross-posted on the Oxford Human Rights Hub