Congestion, delays, lack of transparency and failure to make decisions: A new report reveals the inadequacies of the tribunal for migration matters
In May 2014 the Appeals Tribunal was founded as a new judicial tribunal for immigration proceedings. The objective, as describied in the founding bill, was to reduce the heavy workload on the administrative courts and create an expert tribunal in the field of immigration. Since its foundation, the Appeals Tribunal has been the first gate to the judicial system for thousands of migrant workers, asylum seekers, spouses of Israeli citizens, residents and anyone who is looking for a remedy related to immigration or citizenship. This tribunal, which isn’t a part of the court system, regularly rules on matters that are crucial to the lives of these people; the right to family life, the right to life (asylum seekers facing the risk of deportation), to freedom and other matters related to legal status in Israel.
Since the proposed tribunal was a significant change to the court system, it was executed step by step. In 2011 the tribunal was established under an amendment to the Entry to Israel Law. As a first step the new tribunal was only to rule on appeals related to requests to obtain status based on marriage (or common law marriage) to an Israeli citizen. Then in 2014 when the tribunal came into function, it was surprisingly announced that it would also rule on all immigration and status related matters. Thousands of ongoing cases were transferred from different courts, in addition to many new proceeding that started directly in the tribunal.
Tribunal adjudicators were appointed from the immigration system itself. Many of them were previously chairpersons of appeal committees- (Veadut Hahasga) in the Ministry of Interior (hereafter MoI) or adjudicators in the Detention Review Tribunals located immigration detention facilities. In addition, the adjudicators are temporarily appointed by the Minister of Justice, putting the independence of the tribunal’s decisions into question.
The Appeals Tribunal is currently operating in Be’er-Sheva, Tel-Aviv and Jerusalem. Their substantial workload affects their ability to handle appeals. Whilst the goal of easing the pressure on the courts might have been achieved, the burden has simply been shifted to the tribunals. The heavy workload doesn’t allow the tribunals to properly discuss fundamental matters that will develop their expertise or even have regular hearings. Remarkably, almost 85% of all cases come to an end without a hearing).
Since the tribunal is not a court, the MoI doesn’t consider it mandatory to apply rulings in similar or even identical cases. Additionally, the tribunal has ruled that it is not within its authority give decisions based on Contempt of Court order.
Initially, the tribunal had a small number of adjudicators, without an up-to-date rulings database or computerized system for case management. The MoI also had a small number of attorneys representing them instead of the different districts’ state attorneys. To this day, two and a half years from the day the tribunal opened its doors, the much needed corrections haven’t been completed and these issues still make the deliberations in the tribunals harder than they would be in a courtroom. Most of the decisions don’t get published on the tribunal’s website and the hearings schedule is not open to the public.
The report descibes the founding of the Appeals Tribunal, the way it functions and both its advantages and severe disadvantages that require the attention of responsible bodies. The report also presents numerical data regarding the tribunals’ workload and statistics drawn from decisions that were published in the first six months of activity. For example, the data shows that only 5% of appeals were accepted and many of the appeals were neither rejected nor accepted).
The Appeals Tribunal was founded under a temporary order for two years. Despite the deficiencies raised during a meeting of the interior committee it was decided to extend the temporary order until the end of December 2016. Following the discussion in the committee, a meeting between representatives of NGOs and the Ministry of Justice took place. Unfortunately none of the issues that the NGOs raised were resolved, except for the hiring of two new tribunal adjudicators, one of theme, it seems, in a part-time position. Below are the main recommendations presented in the report that will be handed to the committee.
Immediately Applicable recommendations:
Appoint additional adjudicators in order to reduce the backlog. The Ministry of Justice must cease to appoint adjudicators who acquired their professional experience exclusively as government lawyers and hire lawyers from the private sector as well, particularly lawyers with immigration experience; and do so in a transparent process open to the public.
Automatically publish every decision in an online database that enables text based search and avoid hand written decisions.
Develop a computerized system to file cases to the tribunal and allow representing attorney to view responses and decisions (similarly to the “Net Hamishpat” system used in the Israeli court system). Such a system would reduce the workload of the tribunal’s secretariat.
Publish the hearings schedule and plan longer hearings days.
Hold professional trainings for adjudicators on matters such as; human trafficking, work conditions which constitute slavery, torture and cultural background of different asylum seekers communities, facilitated by professionals who are not jurists.
Recommendations to the Legislator:
Delay the opening of the Appeals Tribunal in the north of Israel until the necessary changes are made.
Determine that fundamental matters such as the legality of procedures and MoI internal instructions should not be under the authority of the tribunals.
Require regular and frequent reports regarding the functioning of the tribunal.
Amend the section on confidential materiel so the tribunal’s regulations will be the same as for the administrative courts.
Amend relevant civil procedures to allow greater flexibility in managing proceedings, including set dates for filling counterpleas and dates for hearings.
Align the maximum number of days available to file an appeal with the relevant regulation in the Administrative Courts Ordinance: 45 days.
Align the regulations regarding court fee exemptions and refunds with the administrative courts and determinate: (1) full exemption in proceedings related to detention orders (Holot), (2) full exemption in proceedings related to arrests and other, (3) fees should be returned in certain situations, for example when the appeal is not heard.