Detention of African Asylum Seekers in Israel: Welcome to Round Three

by | Dec 15, 2014

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About Ruvi Ziegler

Dr. Reuven (Ruvi) Ziegler is Associate Professor in International Refugee Law at the University of Reading, School of Law, where he is the Director of Postgraduate Taught Programmes and co-Chair of the LGBT+ staff network. Ruvi is an Associate Academic Fellow of the Honourable Society of the Inner Temple; Research Associate of the Refuge Studies Centre, University of Oxford; Editor of the Reporter and Co-convenor of the Migration and Asylum Section of the Society of Legal Scholars; Senior Research Associate of the Refugee Law Initiative (Institute for Advance Legal Study, University of London) and Editor-in-Chief of its Working Paper Series. Ruvi's public engagements include serving as Chair of the Board of Trustees of New Europeans Association UK; Chair of the Oxford European Association; A Britain in Europe academic expert; and an advisory council member of Rene Cassin. Previously, Ruvi was a visiting researcher at Harvard Law School’s Immigration and Refugee Clinic and with the Human Rights Program; and a Tutor in Public International Law at Oxford. Ruvi is the author of Voting Rights of Refugees (Cambridge University Press, 2017). Ruvi's areas of research interest include International Refugee Law, Electoral Rights and citizenship, Comparative Constitutional Law, and International Humanitarian Law. Ruvi holds DPhil, MPhil, and BCL degrees from Oxford University. For more information see: Follow Ruvi on twitter @ruviz


Ruvi Ziegler, “Detention of African Asylum Seekers in Israel: Welcome to Round Three” (OxHRH Blog, 15 December 2014)|Ruvi Ziegler, “Detention of African Asylum Seekers in Israel: Welcome to Round Three” (OxHRH Blog, 15 December 2014)|Ruvi Ziegler, “Detention of African Asylum Seekers in Israel: Welcome to Round Three” (OxHRH Blog, 15 December 2014)

In a previous post, I analysed the Israeli High Court of Justice’s (HCJ) judgment in Gebrselassie v. Knesset et al (partial summary of the judgment in English), in which the Court held the ‘Law for the Prevention of Infiltration (Amendment No. 4)’ (full text in Hebrew) to be unconstitutional and quashed it. The judgment extended a 90 day transition period, which was due to lapse on 22 December 2014.

On 8 December 2014, hours before dissolving itself in preparation for early elections arranged for 17 March 2015, the Israeli Parliament, the Knesset enacted (by a 47 to 23 majority, with 3 abstentions) the ‘Law for Prevention of Infiltration and Ensuring the Departure of Infiltrators from Israel’ (full text in Hebrew). Under the new legislation, ‘infiltrators’ who enter Israel and cannot be deported will be automatically detained for three months at the Saharonim prison in the Negev desert (reduced from one year under the quashed legislation). ‘Infiltrators’ already in Israel, as well as new arrivals (following their three months’ detention) can be detained at the Holot detention centre for 20 months (as opposed to indefinite detention under the quashed legislation).Over 2,200 persons are currently held in Holot pursuant to the quashed legislation; they are expected to remain for what is now fixed-term detention.

The detainees will be required to report for a headcount between 8 and 10pm every night, and the detention centre will be locked shut at night. While the length of detention was shortened, its prison-like characteristics (managed by the Israel Prison Service, which conducts searches on persons entering and leaving the facility), the fact that detainees are barred from working, and the facility’s remote location in the Negev desert are likely to render the possibility to leave the facility at daytime rather futile. Moreover, violation of the sign-in conditions can lead to up to four months’ detention in the closed facility, at the discretion of the Population, Immigration and Borders Authority.

In the two previous ‘rounds’ of litigation, the HCJ unveiled the unsoundness of the overall state policy. On one hand, Israel recognises the fact that Eritrean and Sudanese nationals cannot be deported. On the other hand, it detains them in an effort, now explicitly manifested in the legislation’s title, to entice them to leave. It is worth reiterating Justice Uzi Vogelman’s main opinion in the above HCJ judgment, stressing [193] that ‘the question is not only quantitative – what is the maximum constitutional length of time for detention in custody – but also (and perhaps primarily) qualitative – whether it is permissible to detain a person not subject to effective deportation proceedings. To this question I respond…absolutely not.’

Since the legislation applies to ‘infiltrators’ who according to the state’s determination cannot be deported, persons detained will be released after 20 months without any plan for regularisation of their precarious legal status (see my post). Indeed, the legislation also amends the ‘migrant workers law 1991’, imposing financial sanctions on the (majority of) non-detained ‘infiltrators’ who are in un-regularised employment: they will not receive severance pay or pensions to which other Israeli workers are entitled. Instead, their employers will have to deposit 16% of the salary in a separate account, and to deposit further 20% of their salary on behalf of their employees. This money will be ‘released’ only upon the employees’ departure. Hefty fines are imposed for breaches. The legislative aim is two-fold: encourage asylum seekers to leave, and discourage employers from employing them. The immediate outcome will be further destitution, especially as ‘infiltrators’ do not receive benefits or state assistance.

A petition to the HCJ challenging the constitutionality of the legislation is imminent. The HCJ, faced with detention legislation premised on the same tenets found to be unconstitutional less than three months ago, will be forced into an making an unsavoury choice: quash the legislation for the third time, an unprecedented move in the state’s history, and face real risk of legislative attempts in the next parliament to limit its judicial review power; or uphold it based on a proportionality analysis, permitting arbitrary detention of persons in need of international protection. Stay tuned-it will be a hot winter.

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1 Comment

  1. Joe

    why not blame Africa for creating the refugees, and let the UN/WHO sort out their countries ?

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