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High Court: “There are many controversial questions related to the proportionality of the law”

The High Court of Justice held a hearing yesterday (Tuesday) on the petition of human rights NGOs against the new amendment of the Anti-Infiltration Law. A ruling is expected in the next few months.

The petition was submitted by the Hotline for Migrants and Refugees, The Association for Civil Rights in Israel (ACRI) the Aid Organization for Refugees and Asylum Seekers in Israel, Kav Laoved, Physicians for Human Rights – Israel, the African Refugee Development Cente (ARDC) and two asylum seekers from Eritrea transferred from Saharonim prison to the Holot facility across the road.

Of the thousands of refugees being detained indefinitely in the Holot detention center, only two were allowed to attend the hearing. The Ministry of Interior authorized just one Eritrean and one Sudanese to leave the detention center to attend the hearing.

During the hearing, Adv. Oded Feller of ACRI stated that the State’s response includes almost no mention of the Court’s ruling that voided the previous amendment to the Anti-Infiltration Law for disproportionately infringing on human rights. The petitioners claim that the new amendment does not abide by the principles set forth by the Court’s decision, and is in many ways more severe than the nullified amendment. “Jailing people for unlimited time to remove them from city centers is not a proper purpose for a law”, stated Adv. Feller. “This law is mainly intended to pressure asylum-seekers into “agreeing” to be deported from Israel to a place where they face danger. This is illegal under international law. Sending people to “Holot” means tearing them from their lives, turning them from independent people to dependents of the State”. Feller also noted that law gives clerks [not judges] the right to punish asylum-seekers with imprisonment which is not restricted in time – without trial.

Justice Fogelman noted that “there are many controversial questions related to the proportionality of the law”. However, the justices challenged Adv. Feller, asking him to offer alternatives for preventing more asylum seekers from coming to Israel – the result of canceling the amendment according to the state. Feller replied that “there is no mechanism in the world that will reduce it to zero”, adding that the only way is to stop following the Refugee Convention and international law. Chief Justice Grunis declined Adv. Feller’s request to allow the UNHCR, which joined the proceedings as amicus curiae, to present its arguments in Court.

The justices asked the Attorney representing the state, Yochi Gnesin, why only two Eritreans were recognized as refugees out of 1,500 asylum requests filed by Eritreans. Adv. Gnesin responded that the Israeli Ministry of Interior decided that defection from national service does not constitute a reason for receiving refugee status in Israel. All other Western countries except Switzerland do grant Eritrean defectors refugee status. Gnesin also hinted that the Africans in Israel are not refugees because they did not file asylum claims. In response, Adv. Feller pointed out that until recently asylum-seekers from Eritrea and Sudan were barred from applying for individual asylum. The Knesset legal adviser, Gur Blay, who presented the defense of the Knesset in the discussion, mentioned during the discussion that “only citizens and residents have the right to work, the right for liberty and freedom of movement under international human rights law”.

While there were no significant disturbances during the hearing, a scuffle broke out outside of the courtroom after the hearing when a group of residents from south Tel Aviv yelled slogans and swears against the human rights activists and asylum seekers. In some cases, residents even spat at human rights activists. Guards ordered the asylum seekers to leave quickly, in order to avoid confrontations. The advocates representing the petitioners were asked by security to stay inside the courtroom until the crowd clears, out of the fear they might try to harm them.