I disagree with this conclusion, as to my opinion, that "additional benefit" is substantial in view of the strong public interest of preserving the sovereignty of the State and consequently preserving its national-socio-economic strength, as the main purpose that underlies the purposes of section 30A.
- In my colleague's opinion, the main change In section 30A, as opposed to Amendment No. 3 that we invalidated in the Adam, is the reduction of the period of custody from three years to a maximum period of one year. Indeed, this is a real change, a substantial-qualitative shortening and not just quantitative. But in my opinion, the main change in Amendment No. 4 is the prospective application of Section 30A From now on, it will be directed at an unspecified public of infiltrators by force, and its non-application to the specific public of infiltrators who are already in Israel.
I will note that the distinction between a certain public and a non-specific public is relevant in various areas of law. Thus, in administrative law, we tend to distinguish between a promise to an unspecified general public, in which case it is a policy that can be changed, and an administrative promise to a concrete insured or to a concrete public, which may then order its enforcement within the framework of the institution בית המשפטof administrative assurance (see Yoav Dotan, "Administrative Promise to the Public," Law and Government 465 (2000)). In tort law, negligence towards a particular public may lead to the imposition of liability on public authorities, as opposed to negligence towards a non-specific public that may exempt the authority (see Israel Gilad, "Liability in Torts of Public Authorities and Public Servants" (Part I) Mishpat Ve-Mishmal II 339, 366 (1995)).
- As part of the legislative maneuver space given to it, the legislature chose to order the custody of infiltrators who entered the country after Amendment No. 4 to the law for a period of Up to 1 year, when the Border Control Commissioner may immediately release an infiltrator who comes before him if he is convinced that holding him in custody would endanger his health due to his age or state of health, or if there are other special humanitarian reasons, such as victims of trafficking, slavery, and abuse on the way to Israel (Articles 163-164 and 168 of the State's Response). During the one-year period, the custody is subject to periodic review Once a month by the Custody Review Tribunal. During this year, the legislature set two intermediate stations regarding infiltrators who submit an application for asylum, in the form of a time limit of up to Three months To process the application and the Six months to provide an answer to the request, otherwise it will arise A must Release them from custody (Sections 30A(b)(5)+(6) to the law). Hence, the legislature distinguishes between one who raises an immediate and tangible claim for political asylum and one who does not, when the filing of an application for asylum is likely to expedite the release of the applicant, and at the very least, the examination of his case weakens the claim of arbitrary detention. If the application is rejected, then we are dealing with a prima facie indication that we are not dealing with an asylum seeker or a refugee by the sword, and moreover it is possible to appeal to the Appeals Tribunal for the rejection of an asylum application, and thus win judicial review of the decision of the Border Commissioner.
In my opinion, the fabric of the provisions of section 30A of the Law, as detailed above, also dulls the "marginal addition" of the infringement of the infiltrator's liberty and dignity.
- In short, I do not believe that it is the legislature's choice to set a period of up to one year of custody that transfers the Section 30A to the law into the realm of illegality, having passed, according to my colleague as well, the barriers of proper purpose and the first two subtests of the principle of proportionality. On the contrary, the additional damage that will be caused to that unspecified public of infiltrators by force who choose to enter Israel illegally, and today this is a small number, undermines the great benefit of the law for the sovereignty of the state. Therefore, I believe that Section 30A The law stands firmly at the center of the third subtest of the principle of proportionality.
- My colleague Justice Vogelman's instructive overview of what is happening in the world has not gone unnoticed, and it shows that the customary upper threshold is up to six months of custody, as is done in the United States. Exceptions to this are Australia – a large Western country with resources – whose laws allow an illegal alien to be held in custody indefinitely, as well as Greece, Malta and Italy, according to which custody can be held for a period of up to 18 months (see Matter Adam, paragraph 7 of Justice Hendel's judgment).
It is interesting to note that Australia, Greece, Malta and Italy are countries that are on the "first line" against the flow of infiltrators by sea, which could explain the strict regulation in these countries towards illegal residents. Israel's situation in this respect is even more special than that of these countries, as it is the only Western country accessible by land to Africa (in contrast to Israel's long border, Spain has two small colonies in Morocco and is dealing with the phenomenon of "storming" the fences in order to enter those colonies). Nor is it superfluous to mention Israel's special geopolitical situation as a densely populated country, small in its territory and population, surrounded by a ring of hostility, and to mention that almost a quarter of the infiltrators originate from North Sudan, which is a country hostile to Israel. There is no country in Europe whose territory is reached by nationals of clearly hostile countries. Nor is it superfluous to note that the State of Israel – in contrast to the European Union countries that can coordinate various agreements and arrangements concerning infiltrators – cannot do so with its neighbors.
- And finally, and not last in its order of importance, we would like to recall that this is the second time that the issue has reached the Supreme Court's table in a short time. We are dealing with a law that is a temporary provision for a period of three years; A law that formulates a policy of the legislature on a sensitive issue of immigration and settlement in the State of Israel, which is at the core of the prerogative of the legislative and executive branches. As such, the legislature should be allowed constitutional room for maneuver and the invalidation of the law should be required as a last resort and as a derivative of the extent of the violation of human rights. I was not at all convinced that the addition of a few months of detention – compared to some European countries – justifies the invalidation of the law.
In my opinion, the importance of Section 30A The law is greater than that of Chapter 4 The law, since this section is the normative watchtower that rises above the fence, looks out over the desert and looks to the future. I wish I could do it, but the repeal of the clause could have implications for the motivation of the smuggling networks and the infiltrators to try to cross the fence or throw themselves on the fence under the scorching sun, and who will not miss out on such a situation, which is better avoided in the first place.
- In conclusion: Considering that a period of time is needed for the purpose of identifying and characterizing the infiltrators and handling their requests; Considering that a period of time is needed to formulate and exhaust exit routes that can ensure the safety of the infiltrators in a third country; Given that the applicability of Section 30A Looking to the future; Considering that the section looks outward toward an unspecified public of infiltrators by force and not toward the infiltrators who were already in Israel prior to the enactment of the law; Considering that the legislature shortened the period to one year; Considering that during that year a monthly periodic audit is conducted by the Custody Tribunal; Given that the state must process within three months and make a decision within six months on asylum seekers' applications; Considering the possibilities for release on humanitarian and other grounds such as trade, slavery, and abuse; Considering the apparent effectiveness of the law in light of the dramatic decline of more than 99% in the number of infiltrators after the amendment to the law; Given the special geopolitical situation of the State of Israel and similar arrangements in other Western countries that are on the front line of the infiltrators; Considering that we are dealing with the invalidation of a law; Considering that we are dealing with a temporary provision; Considering that the amendment to the law follows the invalidation of Amendment No. 3 to the Law; And given that this is an issue of immigration policy that is at the core of the prerogative of the executive and legislative branches, I believe that there is no reason to disqualify the detailed arrangement In section 30A to the law.
- In conclusion, the bottom line is that I agree with my colleague Justice Fogelman's opinion regarding the disqualification of Chapter 4 for the law only, but not for Section 30A The law that I believe should remain in effect.
Judge