- Thus, a normative arrangement that deprives a person of liberty for a period of three years (at least), even without definitively determining in advance the duration of this period, is an arrangement that violates an infringement of great intensity on the right to liberty and the right to dignity. Therefore, we must address the question of whether these violations are consistent with the requirements of the limitation clause. We had previously discussed the purpose of the law, and we assumed that it was appropriate. It remains to be seen whether the law is proportionate.
2) Proportionality
- The Rational Connection Test
- I am prepared to assume that chapter D of the law, which does not include a provision limiting the length of stay or grounds for release, passes the first test of proportionality. Indeed, there is a rational connection between the restriction of liberty for an extended period of time and the purpose of the law. Staying in a stay center can detach the infiltrator from his environment in which he has already "settled," and make it difficult for him to continue his work. The longer he stays there, the more he will be prevented from "settling down" in the city centers, and the less likely he is to work without a permit. Any restriction of the period of stay means that after a certain period of time he will be able to rejoin the workforce (after all, the state has undertaken that it does not enforce the prohibition on work with respect to those who are not held in the detention center). In this sense, the absence of a delimitation of the duration of the stay ensures the realization of the purpose of the legislation, and maintains a rational connection to the purpose of the law.
- The test of the means that is less harmful
- An examination of the law in the light of the second proportionality test leads to a similar result, since I do not believe that there is a less harmful means that would achieve the purpose of the law with a similar degree of effectiveness. Indeed, limiting the length of stay to a short period will lead to the fact that after an infiltrator completes the period of stay for which he is required, he will be able to "settle" in the city centers and take part in the labor market. Although, as I noted above, certain measures may incentivize infiltrators to refrain from taking part in the labor market (see above, paragraph 130), they do not allow the purpose of the legislation to be achieved with the effectiveness known to the center of residence. Therefore, the lack of a limitation of the length of stay and the absence of grounds for release meet the second test of proportionality.
- In contrast, in my view, chapter 4 in its current version does not meet the third test, because it does not properly balance the benefit that arises from the achievement of the purpose and the damage caused as a result of the violation of constitutional rights. Indeed, shortening the length of stay to a period of less than three years or adding grounds for release to the law means that an infiltrator will be released and will return to the city centers and seek to integrate into the labor market. There is room for the opinion that Israeli society benefits from the fact that its residents are not required, as a matter of day-to-day, to bear the burden of absorbing tens of thousands of infiltrators, and that when they are placed in a detention center, negative phenomena associated with massive and unregulated immigration – which cannot and should not be ignored – are greatly reduced.
- However, the intensity of the harm caused to the infiltrators as a result of their detention in the detention center for a period of three years – a period that is also subject to extension, as aforesaid – is not directly proportional to the public benefit derived from it. A democratic society cannot deprive for such a period of time the liberty of persons who are not endangered and who are not punished for wrongdoings they have committed, even if there is a benefit to the denial of this liberty. Even so, a stay in a detention center of the kind for which an infiltrator is required by virtue of Chapter D of the law violates nuclear damage to the core of the right to liberty and the core of the right to dignity. The infringement of liberty is exacerbated by the prolongation of the deprivation of liberty; And the uncertainty regarding the date of release, which is the result of the possibility of extending the temporary order, adds to this a dimension of infringement of dignity.
- Limitation of the period of stay – how? In my opinion, a proportionate normative arrangement must maintain a proper relationship between the degree of restriction of rights in the facility and the maximum length of stay in it, so that the more difficult the restriction of basic rights is, the shorter the duration of the forced stay in the facility. In this regard, it is worth taking into account the damages caused by a long stay in custody or in detention centers. Studies of foreigners held in custody and detention facilities found that even a "short" one-month stay in custody may increase the rate of psychiatric problems among asylum seekers, and that the longer the detention in the facility, the greater the appearance of various problems, including depression; Anxiety; and post-trauma. Prolonged detention was also correlated with an increase in violations of the rules of stay and manifestations of violence (Janet Cleveland, Psychiatric Symptoms Associated with Brief Detention of Adult Asylum Seekers in Canada, 58 Can. J. Psychiatry 409 (2013); Zachary Steel et al., Impact of Immigration Detention and Temporary Protection on the Mental Health of Refugees, 188 Brit. J. Psychiatry 58 (2006); Janet Cleveland & Cécile Rousseau, Mental Health Impact of Detention and Temporary Status for Refugee Claimants Under Bill C-31, 184 CMAJ 1663 (2012); Charls Watters, Emerging Paradigms in The Mental Health Care of Refugees, 52 Soc. Sci. & Med. 1709 (2001); Mary Bosworth, Human Rights and Immigration Detention in the United Kingdom, in Are Human Rights for Migrants? Critical Reflections on the Status of Irregular Migrants in Europe and the United States 165, 179-180 (Marie-Benedicte Dembour & Tobias Kelly eds., 2011)).
- To illustrate, in Western countries it is customary to limit the length of stay to short periods measured in months. Thus, for example, in the Netherlands, a person in whose case a deportation order cannot be executed is obligated to live in an open facility that restricts his freedom of movement to the municipal area in which the facility is located for a maximum period of three months (Vreemdelingenwet, §§ 56-57; State Appendix 2013, pp. 272-275). In Austria, the authority is mandated to consider lenient alternatives to custody in relation to illegal aliens who are not asylum seekers and for whom a deportation order has been issued. Among the alternatives, the law lists residence in a specific place that the authority will instruct or reporting requirements. Such restrictions will, as a rule, apply for a limited period. When we are dealing with asylum seekers whose application has just begun to be examined, it is necessary to stay in an open facility for a period of time, usually measured ina few weeks (FPG, § 77; Katerina Kratzmann & Adel-Naim Reyhani, Int'l Org. for Migration & Eur. Migration Network, Practical Measures for Reducing Irrgular Migration in Austria 34-35 (2012) (available here); Rosenberger & Konig, pp. 546-551). In Germany, an asylum seeker is obliged to stay in a detention center for a period not exceeding three months, after which he will be released. During this period, it must be available to the state authorities. After release, the asylum seeker may be subject to geographical restrictions that require him to remain in the state of the province in which the facility is located, depending on the arrangement applicable in the specific provincial country (AsyIVfG, §§ 47-49; The German report, at p. 12). Similarly, in Belgium, which operates open accommodation centers where asylum seekers staying can leave and enter as they wish (subject to a requirement to show up), a four-month stay is required, after which an asylum seeker whose application has not yet been processed may request to move to private housing or to a smaller facility (Belgian Report, pp. 15-17; Fed. Agency for the Reception of Asylum Seekers, Annual Report: Reception of Asylum Seekers and Voluntary Return 2012, at 11, 18 (2013) (available here)).
- In contrast to the aforementioned arrangements, the arrangement for which we are required here requires a forced stay for a period of at least three years in a residential center. This period does not in any way address the harms inherent in it. In my view, this period of time is clearly disproportionate. It is longer – much longer – than the comparative arrangements that we have discussed. It can already be said that the detention center outlined by the legislature in chapter 4 of the law severely violates basic rights: it is a center managed by the Israel Prison Service; it requires three times a day; and there is no ground for release from it. The deprivation of liberty under these conditions and for the period of time we have discussed – its harm is particularly severe, and it does not justify the benefit it entails. Against the background of all that we have mentioned, I am of the opinion that there is no escaping the determination that chapter D of the law is disproportionate. However, we must continue to examine the specific arrangements of this chapter, in view of the question of the remedy in relation to the various concrete arrangements of chapter D of the Law – a question that will be examined later.
(iv) Transfer of an Infiltrator to Custody
- The final arrangement that will be examined by us is the one that authorizes the Border Control Commissioner to order the transfer of a resident or infiltrator to custody for various disciplinary violations. According to the petitioners, the section authorizes the Border Control Commissioner to deprive the infiltrators of their liberty for prolonged and disproportionate periods of time, and grants him powers similar in nature to criminal punishment that should not be granted to a public official. On the other hand, the state argued that the section explicitly and in detail delineates the discretion of the Border Control Commissioner, and establishes a proportionate and balanced level of punishment with many restrictions on the manner in which the authority is exercised.
The Authority to Transfer an Infiltrator to Anchored Custody In the section 32K According to the law, which is as follows: