Quashing Legislation Mandating Lengthy Detention of Asylum-Seekers

Dr. Reuven (Ruvi) Ziegler shares observations on the decision of the Israeli Supreme Court that an amendment of the Prevention of Infiltration Law that mandated lengthy detention of asylum seekers is unconstitutional.

On 16 September, 2013, the Israeli Supreme Court, sitting as a High Court of Justice, handed down a unanimous judgment quashing the  2012 Law for the Prevention of Infiltration (Amendment no. 3) (temporary order), which mandated an almost automatic three-year detention of 'infiltrators'. The judgment is presently available only in Hebrew; the petition, also in Hebrew, can be found here.

Shortly after the enactment of the impugned legislation, I argued that it is incompatible with Israeli constitutional law and with international refugee law (see: "The New Amendment to the 'Prevention of Infiltration' Act: Defining Asylum-Seekers as Criminals"); indeed, it has now been found to be unconstitutional by the Israeli Supreme Court.

Approximately 1,750 persons are currently detained pursuant to the Prevention of Infiltration Act, out of over 54,000 persons currently in Israel who have crossed its southern border with Egypt without authorisation and thus qualify as 'infiltrators' according to the impugned legislation.

In the current ruling, an expanded nine-judge panel held the legislation to be in violation of Article 5 of the Basic Law: Human Dignity and Liberty, which forms part of Israel's constitutional arrangement and sets out that '[t]here shall be no deprivation or restriction of the liberty of a person by imprisonment, arrest, extradition or otherwise'. The court refrained from determining whether the legislation also violates the right to freedom of movement.

This is the eleventh time that the Israeli Supreme Court has struck down primary legislation, but only the second time that it has done so regarding legislation concerning rights of non-citizens. The Court's previous judgment concerning non-citizens annulled legislation exempting the State from incurring liability for civilian property damaged in the course of operations carried out by Israeli forces in the West Bank during the Second Intifada.

Prominent Israeli parliamentarians immediately criticized the Court's ruling, and the Knesset's Internal Affairs and Environment Committee held an emergency session, at which its chair, MK Miri Regev, concluded that modified legislation must be drafted quickly.

The right to liberty is subject to a general limitation clause under the Basic Law Human Dignity and Liberty (similar to, inter alia, section 36 of the South African Constitution and section 1 of the Canadian Charter of Rights and Freedoms). Article 8 stipulates that 'there shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required'.

Applying this limitation clause, the Court held that one of the first legislative purposes of the impugned amendment of the Law for the Prevention of Infiltration, the prevention of long-term settlement of 'infiltrators' in Israel, is proper. Conversely, however, it held that another legislative purpose, the prevention of further 'infiltration', is improper, as it is using detainees as a means to an end, which violates their human dignity. (In this context, the Court cited an earlier judgment upholding a petition against detention of Lebanese nationals as 'bargaining chips' for prospective prisoner exchanges.) The court refrained from determining whether an improper purpose irredeemably 'taints' the legislation, and proceeded to conduct the three-prong proportionality test, which is comprised of three assessments: (a) the rational connection test, (b) the least restrictive means test, and (c) the narrow proportionality test (a 'cost-benefit' analysis).

The main opinion, written by Justice Edna Arbel, reluctantly held that the legislation passes the first sub-test (rational connection), but fails the second sub-test ('least restricting means'), since, in her view, it is the completion of the fence which prevents further infiltration and there are various alternatives to detention that would involve less restriction of the rights of asylum seekers. These include introducing a reporting requirement, having an 'open' detention centre, and/or employing asylum seekers in areas such as agriculture, where their residence would be employer-based. Conversely, the court's president, Justice Asher Grunis, asserted that these alternatives to detention should not necessarily be considered legislative alternatives, as they are executive rather than legislative acts, and held that such measures will not advance the prevention of infiltrator settlement in Israel. Hence, in his view, the legislation passes the second proportionality sub-test. Justice Uzi Fogelman adopted a more nuanced position, suggesting that it is clear that the fence is primarily responsible for the massive reduction in infiltration, but that since the legislation may also contribute, albeit insignificantly, it may pass the second sub-test, but will consequently fail the third sub-test.

Indeed, all nine justices agreed that, in the present circumstances, the legislation fails the third sub-test (narrow proportionality). In this context, the justices emphasized that according to longstanding immigration detention jurisprudence, prospective deportees may not be detained unless their deportation can be expected within a 'reasonable period of time'. In this case, however, deportation as such was not one of the legislative aims, as the State recognized that Sudanese and Eritreans cannot be deported at the present time.

Space does not permit full appraisal of the court's 120-page judgment, not least because all nine justices wrote separate opinions. For this reason, I would like to offer a number of general observations:

1. Numbers and trajectories clearly matter: The massive reduction in new entrants since the construction of a fence along the Israeli-Egyptian border has affected the legal calculus. Had border-crossings continued at their previous pace, it is reasonable to assume that the legislation would have been upheld at least by some of the justices. The main judgment does not rule out reconsideration in light of changing factual circumstances. It is noteworthy that shortly after the construction had been completed, the Court refused to consider the extent to which Israel is required not to refoule prospective asylum seekers who reach its physical borders (see my discussion here).
2. Individualized determinations are not (and perhaps cannot be) divorced from general perceptions: The separate opinions rendered differ as to whether the State's claim that most of the 'infiltrators' are not genuine refugees but, rather, migrant workers should be accorded (equal) weight; consequently, they also differ as to the prospects that modified legislation will withstand constitutional scrutiny. Justice Grunis posited that 'if, God forbid, the phenomenon re-appears and massive infiltration resumes, the problem will have to be re-evaluated... Our ruling relates to the law that allows incarceration for up to three years. Even under the present circumstances, there is nothing to stop the legislation of a new law that would allow for imprisonment for a significantly shorter period' [my translation – RZ]. Justice Neal Hendel explicitly proposed the adoption of new legislation mandating a shorter detention period. In contradistinction, Justice Arbel's opinion painted a bleak picture of the situation in Eritrea and Sudan, noting that Eritrea is a dictatorship where forced disappearances and arbitrary executions are frequent, whereas Sudan is plagued with conflict and violations of human rights. Her description certainly casts significant doubts on the State's depiction, and can be taken to indicate discomfort with the State's narrative.
3. The potential harms of an effectiveness test: The court's determination that the legislation is disproportionate was based, in part, on the fact that only some 1,750 of the approximately 54,000 asylum seekers in Israel are currently detained; logically, the court's analysis can be read to suggest that had initial plans for building a massive detention facility capable of housing tens of thousands of asylum seekers materialised, the legislation would have been more likely to pass at least the second proportionality sub-test.
4. The power of legislative language: The judgment is replete with references to 'infiltrators' and the 'infiltrators phenomenon'. However, while Justice Neal Hendel bound together refugees and irregular migrants, and bleakly portrayed the 'infiltration phenomenon', Justices Yoram Danziger and Uzi Fogelman noted that they use the term 'infiltrator' hesitantly, notwithstanding the difficulties arising therefrom.
5. The limited role of refugee law: While the judgment pays occasional tribute to international refugee law, its ratio is at best supported by interpretation of international refugee law rather than reliant on such interpretation. Article 31 of the Refugee Convention, entitled 'Refugees Unlawfully in the Country of Refuge', which deals with their non-penalization, was not even mentioned once. This is hardly surprising, since while Israel has ratified the 1951 Convention and its 1967 Protocol, Israel has not incorporated them into its domestic law, nor has it adopted legislation regulating asylum and refugee status. References in the judgment to detention practices elsewhere fail to distinguish between irregular migrants and asylum seekers. Nevertheless, some judges are acutely aware of the relevance of refugee law, and (unlike in other jurisdictions) references to international law are uncontroversial.
6. The unequal resort to extrajudicial empathy: The justices repeatedly caution against the (negative) social and national implications of the 'infiltration phenomenon', expressing great empathy with the plight of residents of South Tel Aviv neighbourhoods, and emphasising state sovereignty concerns. Conversely, only Justice Esther Hayut's separate opinion urges that the State clarify the legal 'fog' surrounding the precarious status of Eritrean and Sudanese nationals, who make up over 90 per cent of African asylum seekers in Israel, and warns of the dire human rights implications of this status (see my discussion here).

This landmark judgment presents an opportunity for Israel to adopt a sensible and humane policy towards its 54,000 asylum seekers that would, in turn, positively impact living conditions of Israeli citizens in the neighbourhoods where African asylum seekers currently reside. One can only hope that, rather than attempting to modify the quashed legislation, the Knesset will seize this opportunity. 

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Dr. Reuven (Ruvi) Ziegler is an IDI researcher who is exploring questions of immigration, asylum, and citizenship as part of IDI's Democratic Principles project. He is a Lecturer in Law at the University of Reading.