Appeals against the Anti-Infiltration Law (“Fifth” amendment)

The appeal against the Law to Prevent Infiltration and to ensure the exit of migrants from the country (High Court file 8665/14, Tashuma naga Desta against the Israeli Knesset)
December 2014

Following the cancelation of the Anti-Infiltration Law for the second time (Amendment 4), the Knesset started another expedited legislative process in order to find an alternative legal framework before time was up on a period of three months determined by the High Court of Justice, after which the migrants would be released from the holding facility with no alternative law in place. After the law was canceled, the Israeli Immigration Policy Center promoted the initiative to pass the Deposit Bill, obligating employers of migrants to deposit a certain percentage of their wage in a government-held fund until they leave the State of Israel. In addition, the IIPC was involved in all discussions on the new law dealing with custody and the maximum amount of time that can be spent in the Holot facility, and also submitted its comments on the government’s memorandum of the law.

The new law that was passed on 8 December 2014 (The Law to Prevent Infiltration and to Ensure the Exit of Migrants from the Country), just before the Knesset went into recess, determined that migrants who enter Israel would be placed in a closed facility for a period of only three months, and then be moved to the Holot Facility for 20 months at most. Migrants who were already in the country would also be summoned to the Holot facility, for a period not exceeding three months. The duration of stay in a migrant facility would be offset against past stays spent in similar facilities. In addition, the people staying in the Holot facility were obligated to report for registration only once during the night, and not three time per day as was the situation before the law was canceled.

Even though this draft of the law was significantly softened, it took only ten days from its legislation in a third reading at the Knesset until the NGOs supporting migrants filed an urgent appeal with the High Court of Justice to cancel the latest amendment to the law and to receive an injunction to delay its enforcement. The appeal was filed in the name of six NGOs (The Hotline for Refugees and Migrants, Association of Civil Rights in Israel, Refugee Assistance Organization, Kav Laoved, Doctors for Human Rights and the Center to Promote African Refugees) and two asylum seekers, a citizen of Eritrea and a citizen of Sudan, who had been held for 10 months at the Holot facility. The Israeli Immigration Policy Center requested to join the appeal as a respondent, through Attorney Guy Tzabari.

The verdict in this appeal was given on August 11 2015. In a majority of eight to one justices, the court canceled the clauses of the law which determined the maximum number of days migrants can be held at the Holot facility. The court determined that a period of 20 months was not proportionate and gave the Knesset six months in order to come up with a proportionate period for holding in the facility. It determined further that every person staying in the facility for 12 months or more – an overwhelming majority of the facility’s population at the time – were to be released immediately.

Still, the justices rejected the appeal against holding migrants in Saharonim upon their arrival in Israel for three months, in order to identify them and examine the possibility of deporting them, and also rejected the appeal regarding the state’s authority to obligate migrants to stay at the Holot facility.

In the beginning of December 2015 the appellants filed a request to hold the state in contempt of the court. In the request it was claimed that the state failed to comply by the ruling, in that it did not fulfill the High Court’s instruction to consider each case of holding a migrant in the Holot facility according to their personal circumstances. The appellants said that in all cases since the ruling was made, migrants were place in the facility for a period of a year. In its response the state admitted that in every one of the cases it decided to keep migrants in the facility for a year. The state said it would hold additional hearings for every person held in the Holot facility in order to determine how much longer they should stay there, and that from that moment on, people summoned to the facility would undergo two stages of processing: in the first stage a holding notice would be issued; and in the second stage, 30 days after reporting in the facility, a second hearing would be held where it would be decided how long a person is to be held. Following a discussion of the request, it was decided that before a person is sent a notice to report to Holot, representatives of the Interior Ministry must interview thm, consider their individual circumstances, and if they decide to send them to Holot – to limit the duration of staying there in advance.

Following the verdict, on 8 February 2016, the Knesset approved another amendment to the Anti-Infiltration Law, shortening the maximum time of holding in Holot from 20 months to 12 months only.