Unlike in any other democratic nation, asylum-seekers are detained after residing inside the country for years. The detention, which tears people from their lives and jobs, is intended to coerce asylum-seekers to leave Israel to countries where their lives and liberty are at risk. Their detention for 12 months is mandated under the 2016 Anti-Infiltration Law, after three previous versions of the Law (2012, 2013 & 2014) were struck down by the High Court of Justice due to its disproportionality. Before the application of the 2012 Anti-Infiltration Law in June 2012, asylum-seekers would be detained at the border with Egypt and jailed under the Entry of Israel Law. Under this law, asylum-seekers who could not be deported would be released within a few weeks of detention.
The 2015-2016 Anti-Infiltration Law
In August 2015, the High Court issued its ruling (read summary), regarding the NGO’s petition, partially accepting our arguments. The Court reduced the detention period in Holot from 20 to 12 months, as it deemed the 20-months period of detention to be disproportional and hence unconstitutional.
Asylum-seekers who were held in Holot for a year or beyond were released in August 2015 about two weeks after the ruling. On February 8th 2016, the Knesset enacted legislation, adding a new amendment to the Anti-Infiltration Law which complied with the Court’s decision limiting detention to 12 months.
The 2014 Anti-Infiltration Law
On December 8, 2014, a few hours before the Knesset disbanded, the Israeli parliament passed the 2014 amendment to the Anti-Infiltration Law. Under this amendment, asylum-seekers are detained for a period of 20 months in the Holot detention facility located near the border with Egypt. Asylum-seekers who manage to cross the border-fence with Egypt will first spend three months in prison and then would be transferred to 20 months in Holot. The detention under this law is administrative – the asylum-seekers are not accused of any crime and they do not stand for trial.
Since very few asylum-seekers manage to cross the border fence, the overwhelming majority of the detainees in Holot are people who’ve lived in Israel for several years and were ordered to report to detention in Holot when they came to renew their temporary stay permit at the Ministry of Interior. Asylum-seekers are torn from their lives, work places and friends and sent to detention in the middle of the desert for 20 months. The purpose of the law is to coerce asylum-seekers into leaving Israel “willingly”, since it would violate Israel’s law to deport them by force.
The detainees are obligated to stay in the facility at night and take part in a daily roll-call, held in the evening. The detainees are forbidden from working throughout the 20-month period. Holot is managed by the Israeli Prison Services and the prison guards have the right to search the private belongings of the detainees. Violating the disciplinary rules of the facility, not attending a roll-call of staying in Israel without a valid visa results in punishment – in the form of detention in Saharonim prison, across the road from Holot. The punishment is decided by Ministry of Interior clerks who have no legal training. The maximum period of detention in Saharonim under this law is 120 days.
Another chapter in the law is intended to decrease the salaries of asylum-seekers and also coerce them into leaving Israel. According to this part of the law, employers of asylum-seekers will deposit 16% of the asylum-seekers’ salaries into a deposit instead of placing that money in pension and compensation funds. In addition, 20% of asylum-seekers’ salaries will be deducted from their pay and also be placed in the deposit. Asylum-seekers will be able to receive the money in the deposit only upon leaving Israel. The implementation of this part of the law has been postponed to May 2015 due to the complexity of the legislation required to create these state-run deposit funds. This section of the law has not been implemented as of August 2015.
Israeli human rights organizations including the Hotline filed a petition against this version of the Anti-Infiltration Law a day after the law came into effect. As mentioned -the Court reduced the detention period in Holot from 20 to 12 months.
The 2013 Anti-Infiltration Law
Amendment No. 4 to the Anti-Infiltration Law passed in the Knesset on December 10, 2013, International Human Rights Day. The law, designed to circumvent a High Court of Justice ruling from September 2013 that voided Amendment No. 3 to the Anti-Infiltration Law, which was passed by the Knesset in January 2012 and applied starting June 2012. The High Court ruling stated that the previous law is disproportional in its infringement upon the right to liberty of asylum-seekers considering the fact that the purpose of the law can be realized using less drastic measures (for example, the fence on the border with Egypt, which prevents the entry of new asylum-seekers).
The High Court ruling gave the State 90 days to examine the individual cases of all the detainees held under the law and begin releasing them immediately. Instead, the Netanyahu government pushed through a hastily drafted law that would replace the abrogated law. Under the 2013 version of the law, asylum-seekers who enter Israel will be jailed without trial for one year in the prisons for asylum-seekers located near the border with Egypt, deep in the Negev desert. Following the one-year detention period, the asylum-seekers will be transferred to an “open” detention camp located in the middle of an IDF firing zone, across the road from the prisons for refugees. The asylum-seekers will stay in this camp until they can be deported – until the political situation in their countries of origin improves, or until they succumb to the pressure and “agree” to sign documents declaring that they are “voluntarily” returning to their homeland.
The open internment camp, known as “Holot”, is managed by the Israeli Prison Services. The detained asylum-seekers have to participate in three roll-calls per day – at 6 in the morning, at noon, and in the evening. Asylum-seekers have to sleep at the internment camp, which is closed between 10pm and 6am. If a refugee does not show up for a roll-call, he will be jailed at the prisons for refugees across the streets. The first detention period can be up to three months with repeat offenses punished with lengthier periods of imprisonment. As the State of Israel does not consider Holot to be a prison, there is no judicial review of the detention in the facility. Asylum-seekers cannot be released from the camp.
During the 90 days given to the State by the High Court to release all detainees, the State released about 700 of the detained asylum-seekers, but kept in detention about 500 asylum seekers who were transferred to the Holot camp two days before the 90 days elapsed, on the day the new Anti-Infiltration Law came into force. Along with the asylum-seekers transferred from the “Saharonim” and “Ktziot” prisons – people who’ve been detained without trial for about two years each – the State plans on jailing in Holot asylum-seekers who currently reside in Israel. When some asylum-seekers come to renew their stay visas, they will be told that they must move to the Holot internment camp and their visa will not be renewed. Ministry of Interior officials expressed the hope that thanks to the pressure on the detainees who will know that they can never be released from the camp back to Israel, the State will successfully force the asylum-seekers to sign “voluntary return” forms and deport them to their homelands. Along with the “stick” of indefinite detention without trial, the refugees are also presented with a “carrot” – each detainee will receive $3,500 if he agrees to be deported.
Human rights organizations, including the Hotline for Refugees and Migrants, filed a petition against the law to the High Court of Justice on December 15, 2013. On September 22, 2014, the High Court of Justice ruled the law to be unconstitutional as it disproportionately violates the rights of asylum-seekers to liberty, freedom of movement and autonomy. The Court gave the State 90 days to shut down Holot. Instead, the government passed a new amendment to the Anti-Infiltration Law so it can keep jailing asylum-seekers.
The 2012 Anti-Infiltration Law
Amendment No. 3 to the Anti-Infiltration Law passed in the second and third readings in the Knesset on January 10, 2012. Due to lack of prison places, the law was only implemented starting June 3, 2012, after additional wards were constructed in Saharonim and Ktziot prisons.
Under the law, which was abrogated by the High Court in September 2013, asylum-seekers were detained for a minimal period of three years except for extraordinary humanitarian cases. In addition, the law stated that asylum-seekers can file asylum claims from the prisons – asylum-seekers outside of prison who enjoy “group protection”, meaning, all Sudanese and Eritrean citizens in Israel cannot file refugee claims. If the Ministry of Interior does not begin to examine the asylum claim within three months, the Detention Review Tribunal at the prison can order the release of the detainee. If the Ministry of Interior does not complete the examination of the asylum claim within nine months of its filing, the Tribunal can also release the detainee. In practice, many asylum-seekers whose asylum claim was left unanswered for over nine months were not released due to the Tribunal judges’ unwillingness to release them.
In addition, the law stipulated that citizens of countries in which terrorist activity against Israel takes place will be jailed indefinitely, until their deportation is possible. This means Sudanese nationals would be indefinitely imprisoned.
The law included an article that allowed for the release of detainees in extraordinary humanitarian cases, and under this article the Hotline successfully released a small number of survivors of the Sinai torture camps. As of September 2013, about 200 survivors of the torture camps in Sinai remained in detention.
The Criminal Procedure
In September 2012, the Ministry of Justice and Israeli Police set in a regulation that asylum seekers “suspected of criminal involvement” will be jailed indefinitely in the prisons for asylum-seekers, without the need to indict or put the asylum-seekers on trial. In July 2013, this regulation was toughened even further, allowing the State to indefinitely detain without trial asylum-seekers who are suspected of merely “violating public order.”
Under the 2013 Anti-Infiltration Law, any asylum-seeker can be “invited” by the Ministry of Interior to the Holot internment camp. If the asylum-seeker does not report to the camp, once caught, he will be jailed at Saharonim prison for up to three months, with the length of the sentence without trial being decided by a clerk at the Ministry of Interior. After the months in prison, the asylum-seeker will be transferred to the Holot camp. Thus, the 2013 law rendered the Criminal Procedure superfluous.
The Entry of Israel Law
Until 2001, the Entry of Israel Law mandated that a foreign national who was found without a valid visa will be held under the order of the Minister of Interior until his deportation from the country is possible. In 2001, thanks to a petition of the Association for Civil Rights in Israel, the law was amended and a section was added to the law mandating routine judicial review of the detention. The Law established the Detention Review Tribunals for Illegal Residents and set conditions for the release of foreigners from detention until their deportation from Israel is possible. The 2001 law also set humanitarian grounds for release: age, medical condition, a situation in which detention will lead to a minor being left without care, and special humanitarian circumstances. In addition, the law stipulated that if 60 days have passed since the detention and the detainee’s departure from Israel does not appear to be close, the right of the detainee to liberty trumps the State’s right to continue to hold him in jail.
In practice, the length of detention of asylum-seekers was not specified in this law or any other, and it was based on the availability of bunks in the prisons for refugees. Thus, in 2010, about half of the detainees spent over 60 days in prison, about 25% of the detainees spent over a year in prison. A year later, when the flow of asylum-seekers to Israel intensified, most Eritrea and Sudanese asylum seekers were released within a few weeks and even days.