High Court of Justice 8425/13 Eitan Israeli Immigration Policy et al. v. Government of Israel - part 50

It is therefore to be hoped, expected and believed that the state will do everything in its power and at its discretion to solve the plight of the residents of south Tel Aviv.

As stated, I remain in my mind and I join the judgment of my colleague, Justice Vogelman, in both parts.

Judge (Ret.)

Judge S. Jubran:

I agree with the fundamental judgment of my colleague the judge Fogelman.

1. For several years, the State of Israel has been dealing with a growing phenomenon of infiltrators entering its territory, mainly through the Israel-Egypt border. Most of the infiltrators come from Sudan and Eritrea in East Africa.  The reasons for the infiltrators' arrival are controversial – whether they are migrant workers, or asylum seekers.  In any case, due to the great scope of the phenomenon of infiltration, it entails certain negative consequences for the state and its citizens.  As part of its immigration policy, the State of Israel has acted in various ways to reduce the phenomenon of infiltration into its territory.  A fence was erected along the border, agreements were made to transfer infiltrators to other countries, and legislation regarding the conditions of infiltrators' stay in Israel was tightened.  Immigration policy, as a rule, is an expression of a state's sovereignty over its territory, and this is indisputable.  However, the unique circumstances of the phenomenon of infiltration described, therefore, create a complex reality: there is practical difficulty in returning infiltrators to their countries of origin due to fear for their lives, and in the reality that exists in Israel, most of the infiltrators cannot be removed from the country.  Against the background of this complex reality, Amendment 4 to the Prevention of Infiltration (Offenses and Jurisdiction) (Amendment No. 4 and Temporary Order), 5774-2013 (hereinafter: Amendment 4 and the Law) came into being.  Amendment 4 included two main parts.  The first, chapter 3, regulates the conditions of custody of infiltrators who have been issued a detention order under  the Entry into Israel Law, 5712-1952.  At the center of this part is section 30A of the Law.  The second, chapter 4, which regulates the establishment and operating conditions of a stay center for infiltrators who cannot be removed from Israel due to the aforementioned difficulty.
2. I will begin with chapter 3 of the law. I accept the words of my colleague Justice Vogelman according to which the nuclear and profound harm of  section 30A of the Law is valid and exists in the current version of the law, and in the picturesque language of Justice (as he was then called) Cheshin, "all these words will sound as if they came from my throat, with a loud voice and from a lofty mountain" (Civil Appeal 2405/91 State of Israel v. Estate of the late Rabbi Pinchas David Horowitz, IsrSC 51(5) 23,  65 (1997)).
3. There was a dispute between my colleague Justice Vogelman and my colleague the President regarding the constitutionality of section 30A of the Law, to which I have devoted a few words.  My colleague the President believes that the question of how long infiltrators can be held in custody is ultimately a "quantitative matter."  According to him, Judge Vogelman's opinion does not provide an answer to the question of what is the period of custody that can be considered a proportionate period.  My colleague Justice Vogelman, for his part, is of the opinion that it is not possible to hold custody of someone who is not subject to an effective deportation proceeding, regardless of the length of the detention.
4. As for myself, I do not believe that the quantitative characteristic of the question of the constitutionality of custody is also the rule of determination thereof. My path to invalidating section 30A of the Law passes through examination of the limitation clause, and in particular, through the third subtest.  As may be recalled, in the framework of this test, proportionality is examined "in the narrow sense", which requires a proper relationship between the benefit that will arise to the public from the realization of the purposes of the provision of the law and the violation of human rights involved in it.  I accept the words of my colleague the President that a one-year custody is much shorter than a three-year custody.  I do not dispute that this quantitative difference greatly reduces the violation of the basic rights of the infiltrators.  However, the benefit derived from this injury in comparison with the damage caused by the custody, in view of the data before us, leaves no choice but to order the nullity of  section 30A of the Law.

The question of the usefulness of the custody procedure as a "normative barrier" has already arisen in the Adam (High Court of Justice 7146/12 Adam v. Knesset [Posted inNevo] (September 16, 2013)), so we found that it should not be decided (see: The Adam Case, paragraph 99 of the judge's judgment Arbel; Paragraph 23 of Justice Vogelman's judgment).  Since Amendment 3 to the Law was repealed (and the relevant sections fromThe Entry into Israel Law) and until the enactment of Amendment 4, only four infiltrators entered Israel.  In January 2014 – immediately after the amendment was enacted – twelve infiltrators entered Israel.  These data are not a sufficient factual basis for determining definitive findings on the question of the usefulness of the normative barrier, but on the face of it, it does not appear that the amendment had any effect on the scope of the phenomenon of infiltration into Israel.  Less than three months have passed since the repeal of Amendment 3 until the enactment of Amendment 4.  It seems that if the legislature had waited for a longer period of time, it would have been possible to estimate with greater certainty the benefit derived from the task of infiltrating the infiltrators in custody.  Against this background, since it is not possible to sufficiently assess the contribution of this "normative barrier", it is difficult to draw a conclusion whereby an infiltrator who is not subject to a deportation procedure from the country will be placed in custody for a year.  While there is difficulty in quantifying the benefit that custody achieves, the damage to basic rights is clear.  In this state of affairs, I agree with the conclusion of my colleague Justice Vogelman, and I do not see how we can avoid declaring a provision null and void Section 30A to the law.

5. Now for chapter 4. I agree with my colleague Justice Vogelman that chapter D does not meet the conditions of the limitation clause and we can only order its nullity as a whole.  Unlike my colleagues, I do not find fault with the declared purpose of chapter 4,  and the reason for its disqualification, in my opinion, lies mainly in the fact that it is disproportionate.
6. The first purpose of chapter 4 , and it seems that the main one, is also to prevent infiltrators from settling in population centers and integrating them into the labor market. The question of whether this purpose is appropriate was not decided in the opinion of my colleague Justice Vogelman.  Justice Arbel discussed this purpose in the Adam case and argued that her interest is to prevent infiltrators who have already infiltrated the borders of the State of Israel from taking root in it; from integrating into the labor market; and other negative consequences that are involved in the phenomenon of infiltration.  Against this background, my colleague was of the opinion that this was a proper purpose and argued that "as is well known, the State of Israel has the right to determine the policy of immigration to it, which stems from the sovereign character of the state" (paragraph 84 of its opinion in the Adam case).  My colleague Justice Amit also called the sovereignty of the state "a very worthy purpose" – even though this was said in the context of examining the purpose of preventing entry into Israel, as opposed to the purpose of preventing their settlement (see the end of paragraph 10 of his opinion).  In a similar vein, my colleague the President noted that "the principle of sovereignty, which grants the State broad discretion to determine the policy of immigration and settlement in it, with all that this entails, must be taken into account" (paragraph 18 of his opinion).
7. Like my colleague Justice Arbel in the Adam case, I am of the opinion that the purpose of preventing settlement and integration, in and of itself, is not illegitimate. As is well known, the proper purpose test provides an answer to the question of whether the purpose of the legislation provides sufficient justification for the violation of a constitutional right (High Court of Justice 6427/02 The Movement for Quality Government in Israel v. The Knesset, [published in Nevo], paragraph 50 of the judgment of President Barak (May 11, 2006).  In the framework of this test, it is customary to examine whether the purpose of the infringement is intended to serve a proper social interest and the degree of importance of this interest (High Court of Justice 52/06 Al-Aqsa Company for the Development of Muslim Endowment Assets in Eretz Yisrael in Tax Appeal v. Simon Wiesenthal Center, [published in Nevo], 222 of the judgment of Justice Procaccia (October 29, 2008); High Court of Justice 7052/03 Adalah Legal Center for Arab Minority Rights v. Minister of the Interior, IsrSC 61(2) 202, 319 (2006); Aharon Barak, Proportionality in Law – The Violation of the Constitutional Right and its Limitations 301 (2010)).

There is no dispute that the use of measures aimed at preventing settlement and integration into cities and the labor market entails a violation of human rights.  But this violation in itself does not necessarily negate the legitimacy of the purpose.  "It cannot be said that a purpose is appropriate only if it does not violate a human right...  A predetermined determination that any infringement is improper contradicts the purpose of the provision regarding a proper purpose, and it should not be adopted." Lightning In the matter The Movement for Quality Government, in paragraph 51).  Immigration policy is underpinned by a proper and weighty social interest.  Immigration policy seeks, among other things, to reduce undesirable demographic changes that are an inevitable product of illegal immigration and infiltration in particular.  These changes have led, in the Israeli reality, to negative consequences, such as an increase in crime; the burden on the state budget and the health and welfare systems in certain areas; Difficulties in enforcing civil debts, such as payment of taxes, etc. (see: paragraphs 6-11 of the state's response dated March 11, 2014).

8. The state's aspiration to prevent infiltrators from settling in cities is one of the manifestations of immigration policy. This policy inherently involves the restriction of certain basic rights, which were discussed at length in the opinion of my colleague Justice Fogelman.  But this limitation in itself does not negate the purpose being proper.  Underlying this policy are vital interests.  The purpose of these interests is to protect society from the negative consequences that may result from the phenomenon of infiltration.  This defense is appropriate in my opinion, and therefore, I am of the opinion that this purpose meets the test of purpose, and this is regardless of the measures taken to realize it, for which the tests of the limitation clause have designated a separate examination.
9. Hence the proportionality of the requirement to be present at the facility three times a day. I agree with my colleague Justice Fogelman that this requirement does not meet the third subtest – the test of proportionality "in the narrow sense".  I accept his position that the benefit achieved by the requirement to appear does not justify the severe constitutional harm it causes to the infiltrators.  And precisely since this is my conclusion, I cannot accept my colleague's position with regard to the second sub-test, according to which there are no means that are less harmful.  After all, in the framework of this test, we examine whether there may be other means in place of the proposed offensive means, which have the power to achieve the purpose with a similar degree of effectiveness.  My colleague is prepared to assume that there are no means that will ensure that the infiltrators are prevented from settling in the city centers.  It does offer additional alternative measures, such as strict enforcement of labor laws; raising the wages of the infiltrators who work at the detention center; and a demand for the deposit of collateral that will be forfeited if the prohibition on work is violated.  But he believes that they do not achieve the goal of preventing settlement in city centers with the same degree of effectiveness.  According to him, if the infiltrator is allowed to be absent from the detention center during the day, the probability that he will seek to join the Israeli labor market increases (paragraph 129 of his opinion).
10. My position is different from that of my friends. I am of the opinion that there are sufficient means to achieve the said purpose.  It would seem that if we do not say so – because there are means that are less harmful – the meaning of this is acceptance of the harm to those vital interests that are at the basis of the purpose.  As noted, the assumption is that the attendance requirement does not meet the third subtest; In other words, in the balance between the benefit and the public interest and the damage to the basic rights of the infiltrators, the benefit is less and insufficient.  In this situation, in order to achieve the purpose of preventing settlement, it seems that there is no choice but to use other means that will ensure that sufficient weight is given to the vital interests underlying it.  In other words, if we have determined that the purpose is more appropriate than the other, but that the existing means excessively infringe on basic rights on the other, we can only recognize the power of other means to realize the desired purpose.  As to the concrete measures proposed by my colleague, and the means proposed by my colleague Vice-President Naor, I am of the opinion that the possibility that cumulative use of them will be an appropriate response to the realization of the purpose should not be ruled out.
11. My conclusion, therefore, is that if the law had taken other measures that infringe on the basic rights of the infiltrators to a significantly lesser extent, but had the power to sufficiently realize the purpose of preventing settling, there would be no reason to order their nullity. Annulment is an unavoidable necessity because of the excessive infringement of basic rights, and not because of the infringement itself; That addition to the damage to basic rights that does not bring real benefit to the realization of the purpose.
12. Now briefly on the matter of the IPS's authorization to operate the detention facility and its powers. I am aware that my colleague Justice Vogelman makes it clear that he does not wish to cast aspersions on the faithful work of the IPS, and it seems that his concerns lie in the fact that the very presence of prison guards in the detention facility constitutes an addition to the violation of the basic rights of the infiltrators (in paragraph 145 of his opinion).  I would like to clarify that I, too, believe that the IPS is presumed to exercise its powers in a reasonable and proportionate manner.  In particular, I am of the opinion, similar to the words of my colleague, that there is no impediment to another normative outline that will regulate the methods of operation of the detention facility in a proportionate manner – the IPS will be the one to be in charge of its management, subject to the prior training that already exists in Amendment 4.
13. Subject to these comments, I agree, as stated, to the judgment of my colleague Justice Vogelman. Yes, I agree with the remedies he proposes in paragraphs 80-83 and 188-191.

Judge