Published October 1st 2023
The Israeli Law Professors’ Forum for Democracy responds in this position paper to recent public criticism of the Supreme Court's alleged policy regarding asylum seekers living in Israel.
We show that:
· In practice, the Supreme Court has not intervened in the state’s immigration policy, and its ruling regarding asylum seekers was restricted to extreme cases of severe and disproportionate infringements upon basic human rights, rights which accrue not only to citizens but to all persons.
· The Supreme Court has limited its judicial review mainly to cases in which prolonged and sweeping deprivations of liberty were imposed on persons whom the state itself recognized as people who cannot be deported from Israel. The Court refrained from promoting an alternative policy to that of the legislature and government regarding the proper treatment of asylum seekers, leaving government authorities significant leeway to implement their policies.
Highlights of the position paper:
Following the violent altercations that took place among Eritrean asylum seekers on September 2, 2023, many members of the government and its supporters chose to blame the judgments and decisions of the Supreme Court for these events. Prime Minister Binyamin Netanyahu and other ministers claimed that the presence of "infiltrators" in Israel specifically in southern Tel Aviv results from the Court's intervention in laws that allowed for the detention of asylum seekers for long periods and in arrangements designed to allow their removal to a third country.
These claims are inaccurate. They reflect a disregard for the rules of international law that bind the state and appear to constitute an attempt by the government to attribute to the Court the failure of its own policy in dealing with Eritrean asylum seekers, most of whom have been present in Israel for some fifteen years.
This position paper presents five interrelated arguments, to provide an accurate account of the Supreme Court's policy concerning asylum seekers living in Israel:
A. We examine and reject the argument that the continued presence of asylum seekers in Israel is a direct result of the Supreme Court's intervention in the policy regarding their incarceration.
B. We examine and reject the claim that the Supreme Court has prevented the government from deporting asylum seekers, demonstrating that in practice, the Court has principally approved the policy of deporting asylum seekers to a third country.
C. We examine and reject the claim that the Supreme Court has prevented the state from ascertaining which of the Eritrean asylum seekers are indeed refugees entitled to international protection and which are not, demonstrating that contrary to this claim, the Court has actually criticized the state for dragging its feet in reviewing asylum applications, on numerous occasions.
D. We examine and reject the claim that the Supreme Court has prevented the state from enforcing the law against asylum seekers who have committed criminal offenses. We show that the Court has in fact upheld the state’s use of exceptional measures that allow for the indefinite detention of asylum seekers "involved in crimes", whom have not been convicted or whom have completed their sentence while deviating from the regular procedural and evidentiary rules that apply to suspects and defendants.
E. We examine and reject the claim that the Supreme Court has intervened in the government's general policy regarding the reception of asylum seekers. On the contrary, the Court has upheld the policies concerning the denial of work permits and of basic social rights.