In the land of hidden legislative aims: HCJ 8665/14 (detention of asylum-seekers in Israel- Round 3)
IDI researcher Dr. Ruvi Ziegler appraises the judgment of the Israeli Supreme Court in the third round of constitutional challenges to legislation authorizing detention of asylum-seekers in Israel. He critiques the judicial assessment of explicit and hidden legislative objectives, the role of international refugee law in the decision, and the normative question of irregular entry of asylum-seekers, and highlights legal challenges concerning the removal of asylum-seekers from Israel to third states.
On 11 August 2015 the Israeli Supreme Court sitting as High Court of Justice delivered its awaited judgment in HCJ 8665/14 Desete v Minister of Interior et al (Hebrew). A panel of nine justices chaired by President Miriam Naor heard the petition, which challenged the constitutionality of the December 2014 ‘Law for the Prevention of Infiltration and for Ensuring the Departure of Infiltrators from Israel (Legislative and temporary provisions)’ (referred to as “Amendment No. 5”)) Hebrew) (see my analysis).
The judgment, with the main opinion authored by President Naor, upheld the constitutionality of a provision (Article 30A) mandating that an “infiltrator” entering Israel without authorisation would be issued a deportation order and ordinarily detained for three months (for discussion of the charged nature of the term “infiltrator,” see my analysis). The HCJ held that the infringement of the detainee’s constitutional right to liberty (Article 5 of Basic Law: Human Dignity and Liberty) satisfies the proportionality assessment pursuant to Article 8 of the Basic Law. Article 30A has so far been applied to 41 “infiltrators” who have entered Israel since Amendment No. 5 came into effect (Ministry of Interior data, Hebrew) and detained at the Saharonim detention center.
The lion’s share of the opinion concerns Chapter IV of the legislation, authorising a border control supervisor to issue orders compelling “infiltrators” to “reside” at Holot. Notably, while the legislation uses the term “residence center,” Holot is a former military base, located in the Negev desert, far from any settlement, adjacent to Saharonim, and managed by the Israeli Prison Service. The orders would mandate “infiltrators” who cannot be forcibly removed to “reside” at Holot for up to 20 months. The Court upheld the general arrangement, but found the 20 months maximum “residence” period to be disproportionate and hence unconstitutional, while a shorter period – up to 12 months – would be constitutional. Two of the Justices, Uzi Vogelman and Yitzhak Amit, would have also struck down a provision authorising the transfer of persons found to have committed a disciplinary offence from Holot to Saharonim. Justice Neal Hendel considered the law as a whole to be constitutional. The HCJ ordered the State to release, within 15 days of the date the opinion was issued, any Holot resident held at the facility for over 12 months. Additionally, it instructed the Knesset, Israel’s parliament, to revise the legislation within six months, during which “residence” orders could be issued under the impugned provision, subject to a 12 months limit, with current “residents” being released after up to 12 months.
All justices (except Justice Yoram Danziger, concurring with the main opinion) wrote separate opinions. I shall highlight five aspects of the judgment: (A) The feasibility of expulsion as sine qua non for detention of new “infiltrators”; (B) The Holot residence facility: navigating between the covert and overt goals, (C) Assessing “prevention of settlement” in light of the “normative fog”; (D) International refugee law analysis: guest appearance?; and (E) The “sin” of unauthorised entry into Israel.
A. Feasibility of Expulsion: Sine Qua Non for Detention of New “Infiltrators”
The main opinion notes that [para. 34] the primary legislative goals as stipulated by the state are to enable state authorities to verify the identity of “infiltrators” and give them time to pursue avenues for voluntary departure or expulsion of “infiltrators” from Israel. The Court considered these goals proper [para. 35] notwithstanding the fact that the state had supplemented them with a general deterrence purpose (according to the Explanatory Notes, the legislation established a “normative entry barrier” to Israel, complementing the fence along the Egyptian border which serves as a physical barrier.) In other words, according to President Naor, while deterrence would not be accepted as the primary legislative goal, it is constitutionally permissible to legislate with deterrence (also) in mind.
In previous opinions regarding detention of “infiltrators”, HCJ 7146/12 Adam (full text in Hebrew) (unofficial summary) (my analysis) and HCJ 8425/13 Gebrselassie (full text in Hebrew) (unofficial summary) (my analysis), the Court struck down Amendment No. 3 and Amendment No. 4 of the Law for the Prevention of Infiltration, respectively. The quashed amendments authorised detaining “infiltrators” for three years and for one year, respectively. The maximum period of authorised detention has thus been effectively reduced to three months; this is no small feat.
Notably, the legislation does not explicitly tie the three months (effectively mandatory) detention period to feasibility of individual expulsion. Nevertheless, the President notes that, in oral hearing [para. 46] the state acknowledged that it recognises reasonable likelihood for removal to be sine qua non for detention. Hence, the state has finally accepted the position that petitioners in all three cases consistently presented, and the judgment gave it binding force. This is a significant outcome, consistent with HCJ jurisprudence regarding expulsion (of other migrants) under Section 13 of the 1952 Entry to Israel Act (see my co-authored article.)
B. The Holot “Residence” Facility: Navigating Between Covert and Overt Goals
According to the state, the overt legislative goal of the issuance of Holot “residence” orders is to prevent “infiltrators” from settling in city centers. The petitioners argued that the real (covert) aim is to “break the spirit” of asylum-seekers and to encourage them to leave Israel “voluntarily.” The petitioners presented evidence suggesting that “infiltrators” seeking to renew their permits and/or receive other services were pressured to leave. Moreover, statements by former Interior Ministers Gilad Erdan and Miri Regev explicitly noted that the legislation is designed to bring speedy departure of “infiltrators.” As Justice Vogelman noted in his separate opinion, other than to flatly deny [para. 26] [t]he state did not address the petitioners’ specific claims – supported by affidavits – that they have been pressured to leave. Justice Amit maintained that [para. 5] “the current law created a ‘centrifugal circulation’ whereby ‘infiltrators’ are removed from city centers, sent to the edge of the desert for twenty months, then returned to city centers, while others are removed from city centers to take their place. The convoluted method of ongoing turnover of ‘infiltrators’... raises concerns that, behind the declared purpose of preventing their settlement in urban centers lies a hidden purpose of breaking their spirit as the petitioners claimed.”
Despite raising serious questions, Justices Vogelman and Amit refrained from formally accepting the petitioners’ claims regarding the real legislative purpose. Likewise, the President stated in her opinion that [para. 81] she “did not find that the current law is meant to break the spirit of the infiltrators.” She added that “had this been the law’s intended purpose, it would have been prima facie inappropriate.” The President emphasised that [para. 83] “the State is not entitled to apply sanctions or any other measure which could deprive the free will of a group of persons to whom the principle of non-refoulement (i.e. non-expulsion, or non-return) applies in order to break their spirit.”
Nevertheless, the means that the state chose for implementing the legislation support the hypothesis that the legislative goal was indeed to “break the spirit” of Holot “residents.” If the intended purpose was indeed to prevent “settlement in city centers,” that purpose could be achieved through the use of facilities across the country; these facilities would then be situated near population centers; would be run by civilian authorities; and their residents would be permitted to pursue gainful employment. However, as Justice Amit poignantly noted [para. 4] “The Israeli model is unique and, in fact, is not designed to disperse the population throughout the country, but rather concentrate it in one facility far removed from residential areas.” The use of a remote facility and the explicit prohibition on gainful employment outside the facilities are at the heart of the legislative scheme. This explains why, as Justice Vogelman asserted, [para. 52] the longer one resides in Israel the more likely one is to be summoned to Holot, despite the hardship and infringement of their dignity caused by tearing them apart from their social, economic, and personal environment. At that time, the Ministry of the Interior (hereinafter “MoI”) eligibility criteria (Hebrew) for summoning persons to Holot included Sudanese nationals who arrived in Israel before 31 December 2011 and Eritrean nationals who arrived in Israel before 31 July 2011 (on 23 August 2015, following the judgment, the criteria were updated so that now any Eritrean or Sudanese can be summoned to Holot regardless of their length of stay in Israel, thereby increasing the level of anxiety and uncertainty). Holot can hold up to 3,360 of approximately 45,000 asylum-seekers in Israel.
Notably, had the Justices accepted the petitioners’ claim regarding the covert legislative goal, it would have rendered the rest of the constitutional analysis superfluous – a law enacted for an improper purpose is unconstitutional. This outcome is rather reminiscent of the 2007 HCJ judgment regarding the prohibition on family unification of Israeli citizens with their spouses from the West Bank, Gaza, and other neighbouring states. In that case, the HCJ accepted the State’s overt legislative goal (security threats) notwithstanding ample evidence indicating that the main legislative goal was demographic: maintaining a Jewish-majority state.
C. Assessing “Prevention of Settlement” In Light Of the “Normative Fog”
The Court’s analysis of the State’s explicit legislative goal, “prevention of settlement,” should have been done against the background of the “normative fog” cast over the legal status and rights of “infiltrators” in Israel (see my article). The authorisation of “residence” orders does not distinguish between “infiltrators” who have not applied for asylum, “infiltrators” whose applications are pending, “infiltrators” whose applications have been rejected but nonetheless cannot be refouled and who would qualify, for example, for “subsidiary protection” according to Article 2(f) of the EU Qualification Directive (recast), and “infiltrators” whose applications have been rejected but and cannot be deported for “practical” reasons. The fate of all non-deportable “infiltrators” residing in Israel is one: a renewable Section 2(a)(5) permit which does not entitle its holder to welfare assistance, housing, medical insurance, legal gainful employment, or viable prospects for proper status.
MoI data reveals that, on 30 June 2015, 45,091 “infiltrators” resided in Israel, including 33,057 Eritreans (73 percent) (see the damning report of the Commission on Inquiry on Human Rights in Eritrea, submitted to the UN Human Rights Council in June 2015) and 8,506 Sudanese (19 percent) (see the report of the UN High Commissioner for Human Rights concerning impunity and lack of accountability for crimes committed in Darfur, published in August 2015). As Justice Esther Hayut notes, [para. 4] “Sudanese and Eritrean nationals are trapped in an impossible ongoing state of ‘normative fog’ regarding their status, with all the ensuing harsh consequences regarding their rights... This is because, on the one hand, they are not deported to their countries of origin and, on the other hand, the State fails to determine their asylum applications within a reasonable timeframe; when the state concludes its asylum assessment, recognition rate is meagre, raising questions when compared to global recognition rates of applications submitted by Eritrean and Sudanese nationals.” Justice Hanan Meltzer found that [para. 12] “the data... reveals incredible incompetence, if not deliberate negligence, relating to handling [asylum] applications,” which [para. 13] “also has constitutional implications.”
I have argued elsewhere that when the state avoids regulating the status and rights of persons who it deems to be non-deportable, prohibiting their (legal) gainful employment, denying them welfare assistance, and – as a group – segregating them from the rest of the population absent individual risk assessment in order to “prevent settlement” cannot be considered a legitimate legislative goal, even were this indeed its genuine purpose (rather than “breaking their spirit.”) Hence, the President’s position that [para. 74] “preventing settlement in population centers is compatible with the State’s prerogative to shape immigration policy and to choose whether to grant status,” Justice Salim Joubran’s contention that this legislative aim is premised on the [para. 3] “right of a state to formulate an immigration policy that seeks, among other things, to reduce unwanted demographic changes are an inevitable product of illegal migration and infiltration in particular,” and Justice Neal Hendel’s suggestion that [para. 7] “preventing settlement and integration in the labor market is inherent to the State’s right to determine immigration policy,” all fail to give proper weight to the State’s international and domestic law obligations towards all persons residing in its territory and subject to its jurisdiction.
Interestingly, Justices Vogelman [para. 19] and Amit [para. 5] appear to have recognised the conceptual difficulty posed by the above position. Consequently, they defined the legislative goal more narrowly, as “reducing the burden to cities where most of the infiltrators are concentrated.” Indeed, as the President intimated in her judgment, [para. 105] “residence centers elsewhere are generally intended for purposes such as preliminary identification of those entering the territory, an examination of asylum applications, or for exploration of removal channels... one cannot find in Western countries involuntary ‘residence’ centres for asylum-seekers or other migrants intended for the purpose of population dispersal.”
Worryingly still, the President notes that, “prevention of settlement” [para. 100] “does not focus on an individual infiltrator or the danger that he or she poses to society; rather, it is concerned with the need to ease the overall burden on city centers and, in particular, on their residents.” Hence, in order to realise the legislative purpose “there is no need to hold a particular ‘infiltrator’ in the ‘residence’ center... rather, it suffices that a group of ‘infiltrators’ is held therein.” While “it can be assumed that, upon releasing an ‘infiltrator’ from the ‘residence’ center, his or her place will be taken by another ‘infiltrator,’ this ‘revolving door’ is less restrictive of the constitutional rights of individual ‘infiltrators,’ while satisfying the legislative purpose.” Notably, in HCJ 7146/12 (concerning Amendment No. 3,) former Justice Edna Arbel held, in the spirit of the Kantian imperative, that [para. 86] “a person should not be treated as a mere means to achieve external related objective.” The removal of random individuals from population centres as a burden-easing measure absent individual risk and/or other individual assessment appears to similarly err on the side of using a person as a means.
Regrettably, in the final analysis, the HCJ accepts “prevention of settlement” as a legitimate interest for requiring non-deportable persons to reside in a remote and barren facility. It finds Chapter IV to be unconstitutional because the length of “residence” (20 months) disproportionately violates the rights to liberty and human dignity of those “residing” at Holot, while shorter “residence” (up to 12 months) would be constitutional.
D. International Refugee Law Analysis: Guest Appearance?
At a conference held in May 2015 at Cardozo Law School, I pointed out that, while Israel has ratified the 1951 Refugee Convention, the judgments in HCJ 7146/12 and HCJ 8425/13 lacked international refugee law analysis, notwithstanding formal reference to the “presumption of compatibility” between international law and Israeli law. In contrast, in the present case, only the main judgment references several 1951 Convention provisions. Crucially, however, it refrains from examining whether the involuntary “residence” at Holot is consistent with Article 31(2) of the 1951 Convention.
Moreover, some of the references to the 1951 Convention are questionable. For instance, when analysing the constitutionality of Article 30A, the opinion refers  to Article 9’s “provisional measures” alongside Articles 31 and 26. Article 9 permits the State to take “means necessary for national security.” Such measures can be taken “regarding a particular person,” but only “in time of war or other grave and exceptional circumstances.” The opinion fails to clarify the relevance of Article 9 to a provision authorising mandatory detention for three months of any newly arrived “infiltrator,” regardless of individual risk assessment or general circumstances.
The opinion also refers  to Article 1C(4) in the context of a “voluntariness” requirement for removing an “infiltrator” from Israel to a third-party country. However, Article 1C(4) applies to refugees “falling under the term of section A.” which refers to an exhaustive list of circumstances where “the Convention shall cease to apply” to that person, namely when a refugee “has voluntarily re-established himself in the country which he left.” The provision does not regulate the transfer of persons who have not yet been recognised as refugees to a country other than their country of origin.
Surprisingly still, the opinion attempts to draw comparisons [para. 71] between the situation in Israel in 2015 and circumstances potentially giving rise to the activation of EU Directive 2011/55/EC of 20 July 2001 which was adopted by the EU Council to address situations of “mass influx” of persons to an EU country (in the aftermath of the mass displacement from the Balkans in the 1990s.) The opinion fails to mention, among others, that (a) this Directive, which requires a special majority in the EU Council pursuant to a proposal submitted by the European Commission, was never activated; (B) the Directive provides for temporary protection without prejudice to the rights of asylum seekers under the 1951 Convention; (C) if and when activated, the Directive can be applied for up to one year; and (D) the Directive is intended for situations when the present or imminent arrival of large numbers of persons precludes the feasibility of conducting Refugee Status Determination.
Since a fence along the Egyptian border was completed in fall 2012, border-crossing has effectively been halted – 41 entrants in the first half of 2015 certainly do not amount to a “mass Influx.” The vast majority of asylum-seekers in Israel have arrived before the fence was completed. Hence, the main opinion’s contention that [para. 73] “it could even be said that the situation [in Israel]... amounts to an ‘influx’ which requires use of appropriate measures,” and Justice Meltzer’s argument that [para. 9] “the total number of infiltrators can be seen, taking into account Israel’s dimensions, as a mass influx” do not hold water. It is instructive to compare the situation in Israel with the number of asylum and subsidiary protection decisions in similar-size OECD countries including Belgium, Sweden, and Austria, as well as recall the reception of refugees from the conflict in Syria in other countries in the region.
E. The “Sin” of Unauthorised Entry to Israel
The President noted that [para. 99] “It must be remembered that [the legislation concerns] infiltrators who cannot be deported from Israel, who do not pose a concrete threat to state security or the lives of its citizens, and whose sin is illegal entry for which the State may not generally penalise them.” While the President cites Article 31 of the 1951 Convention (without quoting its language), she makes no attempt to analyse whether the “residence” orders are indeed consistent with Article 31(2).
By contrast, Justice Joubran opined that [para. 7] “the group of infiltrators is a group of people prima facie characterised as law-breakers due to their illegal entry and/or presence... hence, when an infiltrator commits a disciplinary offence, this offence supplements the offence already occurred (leaving aside the question why he has entered the country illegally).” Justice Meltzer agreed with Justice Joubran’s position. Justice Hendel asserted that citizens must be distinguished from [para. 9] “infiltrators who arrived here illegally not via Israel’s border crossings, whatever the circumstances.” These statements, particularly the use of the phrase “whatever the circumstances,” conflict with Article 31. It is also noteworthy that, in ‘trapped between the fences’, I argued that, after the border had been fenced off, the State ought to establish a procedure for submitting asylum applications at its border crossings. To-date, to the best of my knowledge, there are no facilities for submitting asylum applications at Israel’s border crossings.
The Next Legal Battle
On 25 and 26 August, 1178 asylum-seekers were released from Holot. They are banned from working and residing in Tel Aviv and Eilat, cities which have been many of these asylum-seekers’ former places of residence. Arad’s Mayor, Nissan Ben Hemo, announced on social media that he will ‘order’ the police to prevent their entry. No alternative housing arrangement was made for them – upon their release, they were given NIS 64 (about $16), and can expect no welfare support or medical insurance. Other asylum-seekers have already been summoned to Holot, implementing the “revolving door” strategy (to borrow President Naor and Justice Vogelman’s terminology.) They will be torn from their homes and jobs, relegated for a year to the middle of the desert unless they are “persuaded” to leave “voluntarily.”
A petition challenging Israel’s new initiative to require certain asylum-seekers to choose between “voluntary” departure to one of two undisclosed third-party states (most likely Uganda and Rwanda) or be deemed refusing to cooperate with removal and consequently be detained indefinitely, is currently pending before the Jerusalem District Court. A confidentiality document signed by PM Netanyahu dated 30 March 2014 (Hebrew) notes that “in [Netanyahu’s] opinion, revealing the identity of the States, their willingness to assist, and the details of the agreement may harm Israel’s foreign relations.” On 12 August 2015, Justice Vogelman issued an injunction against detaining two petitioners who refuse to leave Israel without sufficient assurances (reversing District Court judge Barkai’s decision of 17 July 2015). The petition will be heard by Judge Barkai on 9 September 2015 and an appeal to the Supreme Court can be expected – whoever prevails.
Shortly after Amendment No. 5 was enacted, I wrote: “The HCJ, faced with detention legislation premised on the same tenets found to be unconstitutional less than three months ago, will be forced into 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.” The HCJ apparently opted for a “compromise” position, which has nonetheless exposed it to the wrath of leading politicians. Meanwhile, the normative fog surrounding the legal status and rights of asylum-seekers in Israel (snap-shot) is unlikely to lift anytime soon.
This article was also published on the Cardozo Versa Opinions of the Israeli Supreme Court site.
Dr. Reuven (Ruvi) Ziegler explores 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.