High Court of Justice 8425/13 Eitan Israeli Immigration Policy et al. v. Government of Israel - part 8

Finally, insisting on the inherent benefit In the section 30A The law is also affected by the sharp change in the dimensions of the phenomenon of infiltration (which I discussed in paragraphs 38-39 above).  As you may recall, over the past two years there has been a real decline in the number of infiltrators who have entered Israel.  Thus, in 2013, 45 infiltrators entered Israel; As of June 2014, only 19 additional infiltrators had entered Israel.  This compares with 17,298 infiltrators who entered Israel in 2011.  In light of these data, it seems that the pressing social need for strict normative regulation of this phenomenon takes on a different character.

Against the background of the lack of a clear connection between Section 30A to the law and the existence of effective removal proceedings; Given the existence of means that have the power to advance the purposes of the law while less violating the rights of the infiltrators; And in light of the significant change in the rate of infiltrators coming to Israel, the conclusion is that Section 30A The law does indeed benefit the public, but this benefit is limited only.

70. In contrast to the benefit, the severity of the law's infringement of constitutional rights must be weighed. There is no doubt that section 30A of the law, in its current version, is preferable to its predecessor.  Amendment No. 4 shortened the maximum period of detention from three years to one year, and the authority to release an infiltrator after the aforementioned period of time was formulated as a mandatory authority (a power that in Amendment No. 3 was defined as an "authority").  See Parashat Adam, paragraph 96); The section was applied only to infiltrators who entered Israel illegally after the new amendment came into effect; The time period for bringing them before the Border Control Commissioner and the Custody Review Tribunal for Infiltrators has been shortened; The time period for processing asylum applications has been shortened, the failure to comply with which constitutes grounds for release from custody; It was determined that the opinion of an authorized security official regarding a risk from an infiltrator's country of origin or area of residence would not constitute an independent reason to leave him in custody; Provisions have been explicitly enshrined according to which the detention facility will provide appropriate conditions that will not harm the health and dignity of those staying there; It was determined that as a rule – and not as an exception – an infiltrator can be released from custody for special humanitarian reasons.  All of these are sufficient to reduce the intensity of the infringement of rights that is a result of the custody.  But is this enough to pass the third test of proportionality? My answer to this is no.  I will detail my reasoning.
71. The main change made by the legislature in section 30A of the law is to set the permissible period of detention of an infiltrator in custody for a period of up to one year (in contrast, as noted, to the three-year period set out in Amendment No. 3). It should be said in clear terms: As part of the defense of its sovereignty, the state has the right – and some would argue that it is even its duty – to impose restrictions on unidentified foreigners who have entered its territory illegally, including to hold them in custody.  However, although the state is entitled to do so, it is not permitted to do so at any cost.  Such custody is permitted only to protect the sovereignty of the state, with the aim of removing from the country those who reside in the country illegally.  It cannot be carried out as a punitive act, outside the framework of a criminal proceeding.  In accordance with the requirements of the limitation paragraph, it must be carried out only when it is necessary; when no other alternative means exists; and for a proportionate period of time.  In our case, the "default" set forth in section 30A of the Law, according to which it is possible to hold custody of illegal aliens who cannot be removed for a maximum period of one year, does not meet these principles.  In my view, when we are dealing with the population of infiltrators to which the section refers – infiltrators, most of whom are not subject to deportation from Israel, for reasons that are not dependent on them – this period of deprivation of liberty is also inconsistent with the constitutional standards.
72. Indeed, turning our gaze to what is happening overseas shows that a maximum period of one year for the detention of illegal aliens who cannot be removed for reasons unrelated to them is not acceptable in most countries. Before we delve into the depth of the comparative examination, I would like to emphasize the obvious: a comparative examination is a limited examination.  It must be carried out carefully, taking into account the specific context and normative, cultural and social limitations that may affect the quality of the comparison.  A particular provision of a law should not be isolated and its nature should not be measured in isolation from the overall arrangement in which it was created and in the shadow of which it grew, since "comparative law is not a mere comparison of legal provisions" (Investment Managers, at p. 403; Dafna Barak-Erez, "Comparative Law as Practice – Institutional, Cultural and Applied Aspects," Din V-Devarim 81, 83-91 (2008); see also Mark Tushnet, The Possibilities of Comparative Constitutional Law,  108 Yale L.J.  1225 (1999); Jacco Bomhoff, Balancing, the Global and the Local: Judicial Balancing as a Problematic Topic in Comparative (Constitutional) Law, 31 Hastings Int'l & Comp.    Rev.  555 (2008)).  However, even after we have warned ourselves about the above, and taking into account that an examination of what is happening in other countries does not replace an internal constitutional examination based on the constitutional standards set forth in Israeli law, it must be remembered that democratic countries share common basic values.  You can learn from one to the other.  By means of comparative law, it is possible to broaden constitutional horizons and receive interpretive inspiration (Proportionality in Law, at pp. 91-94).  On an issue such as this, which concerns many countries around the world that have had to find a variety of solutions, it is wrong for us to give up on the comparative examination.  Let us therefore bring the burnt offering in this respect.
73. In most Western countries, custody of illegal aliens awaiting deportation is prohibited for a period of time exceeding a few months (for an overview seeOxford Pro Bono Publico, Remedies and Procedures on the Right of Anyone Deprived of Him or Her Liberty By Arrest or Detention to Bring Proceedings Before A Court, 27-28 (2014) (available here) (hereinafter: deprivation of liberty research)).  Thus, for example, in France, it was determined that illegal aliens could be held in custody for a period not exceeding 45 days (Code de l'entrée et du séjour des étrangers et du droit d'asile [CESEDA] §§ L551-1, L552-7; Nicolas Fischer, The Detention of Foreigners in France: Between Discretionary Control and the Rule of Law, 10   J.  Criminology 692, 693-96 (2013)).  In Canada, the law does not limit the maximum amount of time that illegal aliens can be held in custody, but in practice they are held for  an average of 25 days.  Anyone who is not suspected of being dangerous is released within much shorter periods of time (Canadian Immigration and Refugee Protection Act, S.C.  2001, c.  54-61; Immigration and Refugee Protection Regulations, SOR/2002-227; Standing Comm.  on Citizenship & Immigration, 41st Parl., Standing on Guard for Thee: Ensuring that Canada's Immigration System is Secure 23 (2013) (available here)).  In Britain, too, the law does not set a limit on the length of stay (Immigration Act, 1971, c.77, Sch.  2, § 16(2), Sch.  3, § 2 (U.K.); Deprivation of liberty study, p. 467), but it is subject to judicial review that limits the authority to continue detention (Dallal Stevens, Asylum Seekers, Detention and the Law: Morality or Abeyance?, in The Ashgate Research Companion to Migration Law, Theory and Policy 395, 408-12 (Satvinder S.  Juss ed., 2013)).  A period of time of three months is considered a significant period, while a period of time exceeding six months is considered justified only given a special need such as protection of public safety (Bail Guidance for Judges Presiding over Immigration and Asylum Hearings 5 (First-Tier Tribunal Immigration & Asylum Chamber, Presidential Guidance Note No. 1 of 2012) (U.K.)(available here)).  In any event, it is forbidden in the UK to hold in custody a person who cannot be removed within a reasonable period of time (R (Lumba) v.  Sec’y of State for the Home Dept., [2011] UKSC 12, 103, [2012] 1 A.C.  245 (appeal taken from Eng.)), and in practice, about 94% of illegal aliens are not held in custody for a period exceeding four months (Home Office, Immigration Statistics, January to March 2014 § 12.3 (May 22, 2014) (U.K.) (Available here)).
74. In Germany, illegal detainees can only be held in custody as a last resort, for a period not exceeding six months, provided that the deportation order is expected to be executed within the next three months (Aufenthaltsgesetz [AufenthG] [Residence Act], Feb. 25, 2008, Bundesgesetzblatt I [  I] at 162, as amended, §§ 61-62; A Study of Deprivation of Liberty, at p. 241.  However, thwarting the deportation by the illegal resident may lead to an extension of an additional 12 months.  ibid., in section 62(4) of the Law).  In Austria, illegal aliens may be held for the purpose of executing a deportation order for  a period not exceeding four months, and in special cases – six months (Fremdenpolizeigesetz 2005 [FPG] [Aliens' Police Act] Bundesgesetzblatt I No. 100/2005, as amended, §§ 76-81; Deprivation of Liberty Study, at p. 27).  In Spain, a person against whom a deportation order has been issued can be held in custody for a period of up to two months (Ley sobre derechos y libertades de los extranjeros en España y su integración social [Law Regarding Rights and Freedoms of Foreigners in Spain and Social Integration], art.  62(2) (B.O.E.  2000, 544) (as amended); E.U.  Agency for Fundamental Rights, Fundamental Rights of Migrants in an Irregular Situation in the European Union 34-38 (2011) (hereinafter:  the FRA Report) (available here)).  In South Africa, illegal aliens cannot be held in custody for a period exceeding four months (Immigration Act 13 of 2002 § 34(1)(d); Arse v.  Minister of Home Affairs and Others 2012 (4) SA 544 (SCA) ¶ 9).  In New Zealand, it is normally possible to order the detention of an illegal resident in a closed facility for a period of time limited to 28 days.  This period can be extended by an additional 28 days at a time, depending on the existence of conditions that justify the continuation of custody, but generally does not exceed six months of custody  in total, unless the detainee does not cooperate with the detention (Immigration Act 2009, §§ 316, 323).  An amendment recently enacted there, which deals with the entry of large groups of infiltrators into the country, allows for the order, with the approval of a judge, to detain an illegal alien for a period of up to six months, without requiring a temporary extension by a judge (Immigration Amendment Act (Mass Arrivals) 2013; Deprivation of Liberty Study, at pp. 24, 27).  In the United States, too, it was held that in the absence of reasons to the contrary, illegal aliens should be released from custody after six months if it is unlikely that the deportation order issued in their case can be implemented in the near future (Zadvydas v.  Davis, 533 U.S.  678, 701 (2001); however, see the comments of my colleague Justice N. Hendel in the Adam case, paragraph 7 of his opinion).
75. In contrast, some countries have stricter policies when it comes to custody.  In Italy, the decision by the immigration authorities to transfer an unlawful detainee to custody requires a judge's approval within 48 hours of the day of arrest.  If the judge approves the custody, it will not last, as a rule, for more than 30 days, but it can be extended by 30 or 60 days with the approval of a judge for a period that would normally not exceed six months.  In cases where deportation is not possible due to the detainee's lack of cooperation or due to a delay in obtaining the required documents, the custody may be extended for an additional period of 60 days at a time, and up to an additional 12 months of custody, i.e., a total of 18 months (Testo Unico dell'Immigrazione, 14; Deprivation of Liberty Study, pp. 299-301).  In Greece, it has been determined that the custody of an illegal alien will be permitted only as a last resort and when the objectives of deportation cannot be achieved by less harmful means – for a period not exceeding six months – but this period can be extended by an additional 12 months (18 months in total), as has been done extensively in practice (ΚΩΔΙΚΟΠΟΙΗΣΗ ΝΟΜΟΘΕΣΙΑΣ: Για την είση T�δο, διαμονή και κοινωνική ένταξη υπηκόων τρίτων χωρών στην Ελληνική Επικράτεια (On The Entry,  Residence and Social Integration of Third Country Nationals on Greek Territory) 3386/2005, §§ 76(2), 76(3); Ιδρυση Υπηρεσίας Ασύλου και Υπηρεσίας Πρώτης Υποδοχής, προσαρμογή της ελληνικής νομοθεσίας προς τις διατάξεις της Οδηγίας 2008/115/ΕΚ (Establishment of Asylum Authority and First Reception Service) 3907/2011, §§ 22(3), 30(1), 30(5), 30(6); Presidential Decree 116/2012; Deprivation of Liberty Study, pp. 250-255; U.N.  High Comm'r for Refugees Greece, Current Issues of Refugee Protection in Greece, 4 (July 2013)).
76. Added to this is Australia, which does not set a time limit for custody in legislation (see Immigration Act 1958 (Cth) 196; Al-Kateb v Godwin [2004] HCA 37, (2004) 219 CLR 562, ¶ 33-34; Deprivation of liberty study, at p. 130; For another trend, see the recent Supreme Court of Australia judgment: S4-2014 v Minister for Immigration & Border Protection [2014] HCA 34) and Malta, where an illegal alien can be held in custody for a period of up to 18 months, or up to 12 months if he has applied for asylum (U.N.  High Comm’r for Refugees, Submission by the United Nations High Commissioner for Refugees For the Office of the High Commissioner for Human Rights’ Compilation Report - Universal Periodic Review: Malta.  1 (Mar.  2013) (hereinafter: the Maltese Report) (available here); Ministry for Justice & Home Affairs & Ministry for the Family & Soc.  Solidarity, Irregular Immigrants, Refugees and Integration: Policy Document, 11-12 (2005)) (available here)).  The policy of these last two countries has been strongly criticized (for Australia, see the UN Human Rights Committee's determination that this is an improper policy:  D&E, in paragraph 7.2; for a critique of the policy in Malta, see Daniela DeBono, 'Not Our Problem': Why the Detention of Irregular Migrants is Not Considered a Human Rights Issue in Malta, in Are Human Rights for Migrants? Critical Reflections on the Status of Irregular Migrants in Europe and the United States 146 (Marie-Benedicte Dembour & Tobias Kelly eds., 2011)).
77. In this context, it is also worth mentioning the rule established by the European Repatriation Directive, which some of the countries mentioned have shaped their domestic legislation based on their outline, according to which if no less harmful means are available, an unlawful detainee can be held in custody (especially when there is a danger that he will escape or thwart his deportation from the country) for a period of up to six months. This period can be extended for an additional period of up to 12 months (18 months in total) if the detainee does not cooperate with his deportation; or when there is a delay in obtaining the documents required for the execution of the deportation (Directive 2008/115/EC of the European Parliament of the Council of 16 December 2008 on Common Standards and Procedures in Member States for Returning Illegally Staying Third-Country Nationals, § 15 (available here)).  It should be noted that the European Court of Justice has ruled that the period of custody can be extended after six months only if there is an effective removal proceeding: Case C-357/09, Kadzoev, 2009 O.J.  (C 24) 17, ¶ 63-67 (Eur.    Justice (Grand Chamber)).
78. The comparative examination contributes to the enrichment of knowledge, but it is "above necessity." Our constitutional law leads us to the same conclusion: placing infiltrators in the custody of infiltrators for whom there is no visible prospect of deportation for a period of one year – not as a punishment for their actions, and without them being able to do anything to promote their release – constitutes a severe violation of their rights (all the more so with regard to those among them who are asylum seekers; see the Adam case, at paragraph 37 of my opinion).
79. Custody takes a heavy toll on the detainee. You have almost no right that is not violated as a result of it.  It denies the right to liberty, and violates the right to dignity; It detracts from the right to privacy, nullifies the ability to conduct family life, and limits the autonomy of the individual in the most basic sense.  The denial of the right to physical liberty, therefore, leads in turn to the violation of other constitutional rights, and affects all areas of the individual's life.  Holding a person in custody for a whole year derails his life.  It "freezes" – for a considerable period of time – his ability to manage his life and exercise his autonomy.  It is not for nothing that many Western countries around the world have set a limit on the maximum period of time for custody of those estimated at weeks to a few months.

The result is that the deep nuclear damage of the Section 30A The law in constitutional rights is valid and exists in the current version of the law.  In my view, this harm does not stand – even roughly – in direct proportion to the benefit derived from it.  As such, it is disproportionate and unconstitutional.

(IV)         The Remedy

80. It was found that section 30A of the law is unconstitutional because of its severe and disproportionate infringement of the right to liberty and dignity. But our work was not finished.  In the final stage of the constitutional examination, we are required to examine what remedy can cure the unconstitutionality.
81. My opinion is that there is no choice but to declare the repeal of section 30A of the law in its entirety. Once we have reached the conclusion that the central provision of  section  30A of the Law is tainted by unconstitutionality, it is no longer possible to separate its various arrangements in an attempt to distinguish between its constitutional organs and those that are unconstitutional (see also the Adam case, at paragraph 116).  Indeed, after this Court has reached the conclusion that a certain piece of legislation is unconstitutional, "it is not its role to determine the details of the legislative arrangement that will come under the unconstitutional legislation, and this matter is the responsibility of the Knesset" (The Privatization of Prisons, at pp. 614-615).  Therefore, we have no choice but to order the cancellation of the entire section, and leave it to the Knesset, if it so wishes, to establish a new arrangement in its place.
82. Similar to the outline that we followed in the Adam case, I would suggest that in place of section  30A of the Law, we will immediately restore the legislative arrangement that was in effect until Amendment No. 3 to the Prevention of Infiltration Law – the Entry into Israel Law.  Accordingly, the custody orders issued by virtue  of section 30A of Amendment No. 4 to the Prevention of Infiltration Law will be deemed to have been issued  by virtue of sections  13(b) and 13a(c) of  the Entry into Israel Law.  The authorities will therefore be required to examine the individual case of those currently being held in custody by virtue  of section 30A of the Law, according to the timetables and grounds for release (with their exceptions) set forth in  the Entry into Israel Law  (compare: The Adam Case, paragraphs 117-118).  At the same time, of course, the other arrangements of  the Entry into Israel Law will also apply, including  section  13f(b) of the law, according to which anyone whose release endangers national security, public safety or public health, or whose removal from Israel is delayed or prevented due to a lack of full cooperation on his part, will not be released on bail.
83. In the Adam case, we found it appropriate to determine that the grounds for release set forth in section 13f(a)(4) of the Entry into Israel Law – according to which the Border Control Commissioner may order the release of an unlawful person on bail if he has been in custody for more than 60 consecutive days – will not apply for a period of 90 days from the date of the judgment.  We determined this in order to enable the state to prepare for an examination of the individual cases of those held in custody, whose number at the time was large (about 1,750 infiltrators; see the Adam case, at paragraph 35), and required special preparations.  However, this time it seems that a prolonged period of organization of this kind is no longer required in view of the limited number of those currently in custody by virtue of section 30A of the Law.  Therefore, and taking into account the Israeli holidays that are in place in the coming days and the need for a sufficient period of organization, I would like to suggest to my colleagues that the grounds set forth in section 13f(a)(4) of the Entry into Israel Law  will not apply until October 2, 2014.

4.               Chapter 4 of the Law

84. Chapter 3 and its essence is section 30A of the law, which deals with the detention of an infiltrator in forward-looking custody, and deals with those who came and will enter the gates of the state in the period after the amendment came into effect. The provisions of Chapter D of the Law deal with the establishment of a residence center that is mainly relevant to infiltrators who are already within our borders, and they regulate its purposes, characteristics and methods of operation of the residence center.  We will discuss this now.
85. An infiltrator finds his way to the detention center when it is difficult to carry out his deportation. In this situation, the border control officer may grant the infiltrator a "stay order", by virtue of which he is required to report to the detention center.  This is whether or not the infiltrator is in custody at the time (sections  32D(a) and 32D(b) of the Law).  An infiltrator who has been issued a stay order will not be able to obtain a visa and a permit to reside in Israel under  the Entry into Israel Law (Section 32D(d) of the Law).  Section 3222 of the law states that families of families, women and children will not stay in the detention center until the Minister of Public Security establishes, with the approval of the Knesset's Internal Affairs and Environmental Protection Committee, special instructions in this regard.  In its response, the state updated that provisions in this regard have not yet been determined.
86. The day-to-day conduct of the Residency Center is outlined in the provisions of Chapter D of the Law. According to the law, from 10:00 p.m. until 6:00 a.m. the next day, the infiltrator is not allowed to stay outside the center (section  32H of the law).  In addition, he must report to the center for the purpose of registering attendance three times a day, once in the morning; Once again in the afternoon; and recently in the evening, during the hours prescribed in the Regulations (see the Regulations for the Prevention of Infiltration (Offenses and Jurisdiction) (Presence of a Person Staying at the Center and Leaving the Center) (Temporary Order), 5774-2013, K.T. 308 (hereinafter: the Attendance Regulations)).  Exceptions to the obligation to be present at the residence center are set out in section 32H(c) of the Law.  According to this section, upon the request of an infiltrator, the Border Control Commissioner may grant an exemption from the obligation to report for a period not exceeding 48 hours.  In addition, in cases of medical hospitalization of the resident or a first-time family member, the Commissioner is authorized to exempt from reporting for a longer period of time.  These decisions are subject to judicial review by the court.
87. The detention center is managed by Israel Prison Service employees from the Southern District, some of whom previously served in the detention facility (these were appointed by the Minister of Public Security by virtue of his authority under section 32C of the law).  IPS employees (and other entities) are given powers to conduct searches, demand identification, and seize objects (sections  32-13-14 of the law).  They are authorized to detain in cases of suspicion of unlawful use of a weapon or to carry a prohibited object (sections  321-18 of the Law), and even to use force against an infiltrator who fails to fulfill his duties under the provisions  of Chapter D of the Law (section  3219(a) of the Law).  Another disciplinary measure is in the hands of the Border Control Commissioner.  The Director-General is authorized to order the transfer of an infiltrator from the detention center to custody, after a hearing, in cases where there are repeated violations or violations of the conditions of stay at the center, such as a delay in reporting dates; causing injury to the body; causing real damage to property; and the violation of the prohibition on working outside the residence center (section  32k(a) of the law).  Section 32k(b) limits the period during which an infiltrator can be held in custody by virtue of these powers.  The upper threshold for the period of custody was set at one year, while creating a distinction between the types of violations as well as a hierarchy regarding the repetition of the violations by the same resident.
88. An infiltrator who has received a stay order is not permitted to work in Israel (section 32F of the law), and the state has even published on the website of the Population and Immigration Authority as well as in various media outlets its intention to enforce the prohibition on the work and employment of infiltrators who have received a stay order, subject to its obligations regarding the third worker's line. At the same time, Amendment No. 4 regulates the conditions according to which it will be possible to voluntarily employ an infiltrator staying at the detention center for maintenance work and ongoing services in the area of the center, in favor of "reasonable remuneration" (section 32g).  The resident may be employed, for example, in cleaning work (which is not in his place of residence and surroundings); in kitchen work; in maintenance; in construction and gardening; in loading and unloading equipment; laundry services; At the barbershop and more.  For most of the work, a salary of NIS 12 per hour is offered (see  section 32g(b) of the Law; Regulations for the Prevention of Infiltration (Offenses and Jurisdiction) (Employment of Residents in Maintenance Work and Routine Services) (Temporary Order),  5774-2014, K.T. 697 (hereinafter: the Employment of Resident Persons Regulations)).  The validity of the regulations is set for one year.  In addition, those staying at the center are entitled to "pocket money" or other benefits that can be used at the center for each day of stay at the center.  It was determined that the pocket money will not exceed NIS 16 per day, but in the case of a resident who is employed at the center, part of the amount will be reduced, in accordance with the key set out in the regulations (section 32K of the Law; Regulations for the Prevention of Infiltration (Offenses and Jurisdiction) (Provision of  Pocket Money and Other Benefits and the Conditions for Denial thereof) (Temporary Order), 5774-2014, K.T. 696).  The manner in which the pocket money will be transferred to the detainee was also determined, as well as the possibility of giving an advance (in certain cases) to an infiltrator who is transferred from the detention facility to the detention center.  At the same time, provisions were made regarding a reduction in pocket fees due to a violation of various provisions of the conditions of stay at the center.  The validity of these regulations is also set for one year.

Thus far, we have discussed the normative framework that regulates the establishment and operation of open residence centers.  For the purpose of constitutional analysis, these provisions – both and only them – will be subject to our examination.  However, the parties before us have also expanded on the manner in which the Holot Detention Center operates (which, at the present point in time, is the only facility that has been populated by virtue of Chapter D of the Law).  Although the claims regarding the manner in which the Holot facility operates are mainly administrative, I am of the opinion that the factual database that has accumulated since the facility began operating (in December 2013) is sufficient to assist in the examination in principle of these and other constitutional claims.  Therefore, I will also discuss, in short, the way the "Holot" facility operates.

(I)             About the "Holot" accommodation center

89. The Holot Detention Center began operating on December 12, 2013. Since then, the Population and Immigration Authority has been issuing "stay orders" to infiltrators in cities when they come to renew the temporary visitor and residence permits granted to them by virtue of section 2(a)(5) of the Entry into Israel Law.  As of March 30, 2014, 5,678 stay orders had been issued to the infiltrators, with the deadline for reporting later on April 30, 2014.  Of these, in 838 cases, the Border Control Commissioner decided to cancel the stay order for individual reasons, so that 4,840 infiltrators were required to report to the center by April 30, 2014.  In addition, stay orders were issued to 483 infiltrators from Sudan and Eritrea who were in custody at the Saharonim facility when the center opened.  The total number of infiltrators who have been summoned to the detention center is about 46%, so that according to estimates, about 2,000 infiltrators are currently staying in the facility.  It should be noted that from the opening of the center until March 9, 2014, 105 infiltrators who received orders from the center and were absorbed in the center left the center never returned.
90. The criteria underlying the issuance of residence orders to infiltrators who come to renew their licenses include mainly the date of infiltration (stay orders issued to Sudanese nationals who arrived in Israel before December 31, 2010, and to Eritrean nationals who arrived in Israel before December 31, 2008); the infiltrator's marital status; as well as his criminal record. The state emphasized that the criteria may change from time to time, noting that as of now, about 7,820 infiltrators meet the criteria set for staying at the facility.  I will already note that according to the petitioners, issuing detention orders to a small part of the infiltrators' population, taking into account that the only detention center currently operating by virtue of the law – the Holot Center – cannot house all the infiltrators currently in Israel, constitutes improper "selective enforcement".  The petitioners insist that those residing in Israel who are not subject to deportation constitute a homogeneous group, and are therefore entitled to "equal treatment and special rights deriving from their special status".  According to them, it is not possible to distinguish between the members of the class for the purpose of depriving them of their liberty and violating the entirety of their rights in the absence of relevant criteria.  The state, for its part, claimed that infiltrators were referred to the center based on well-known and egalitarian criteria.
91. What is the basis of the criteria presented by the state? This question was not clarified in the framework of the hearing of the petitions before us. The state did not specify whether there is a good reason to distinguish between Eritrean and Sudanese nationals, or what are the issues known at the time of the infiltration regarding the issuance of the stay order.  Indeed, enforcement against one and not against others, without any good reason to distinguish between them, can be considered selective enforcement (Criminal Appeal 6328/12 State of Israel v. Peretz, [published in Nevo], 23 (September 10, 2013); for the argument that the setting of criteria by the administrative authority does not always promote equal decision-making, see Dafna Barak-Erez, Administrative Law, vol. 2, pp. 695-696. (2010)). However, the place of this argument – which I do not put in the rivets – is not in the proceeding before us.  The argument of selective enforcement relates to the exercise of administrative discretion, which, as stated, is not available to us in these proceedings.  As a result, I do not express within the framework of the proceeding before us a position on this dispute as well as on the question of whether the issue of the identity of those who can be placed in the detention center does not constitute a "preliminary arrangement" that has its place in primary legislation, in view of the infringement of rights inherent in chapter D of the Law (see and compare: High Court of Justice 3267/97 Rubinstein v. Minister of Defense, IsrSC 52(5) 481, 515-513 (1998)).  The petitioners are therefore entitled to refer their arguments on this level to the competent court, and all their arguments are reserved for them.
92. According to the state, when an infiltrator who meets the criteria for extending his temporary license arrives, the purpose of which is to examine whether he meets the criteria for issuing a stay order, including asking questions regarding his personal circumstances. In a parenthetical article, it should be noted that the petitioners disagree with this description.  According to them, many of the infiltrators were not questioned at all, and even when they do do interrogate, it does not include substantive questions regarding their welfare or rights.  In any event, at the end of the proceeding, the Border Control Commissioner decides whether to issue a stay order or not.  If it is decided to issue a stay order, as a rule, the temporary residence permit is extended by  virtue of the Entry into Israel Law for an additional 30 days for the purpose of granting a period of organization, and a stay order is issued for a date that corresponds to the expiry date of the temporary residence permit period.  A decision regarding the issuance of a stay order can be directly attacked by filing an appeal to the Appeals Tribunal (as stated in paragraph 42 above), and the decision of the Appeals Tribunal is subject to an administrative appeal to the Court for Administrative Affairs.  Indeed, various aspects relating to the manner in which a stay order is issued by the Border Control Commissioner have already been subjected to judicial review on various grounds, including the argument that a hearing must be held before a stay order is issued (see: ATAM (Central Lod Administrative) 4436-04-14 Hagus v. Ministry of the Interior [published in Nevo] (June 1, 2014); ATM (Administrative Live) 42975-04-14 Adam v. Ministry of the Interior [published in Nevo] (June 1, 2014)).  It should be noted that in the framework of a proceeding in this court (AAA 2863/14 Ali v. Ministry of Interior – Population and Immigration Authority [published in Nevo]), the state announced on May 26, 2014 that it intends to conduct a "pilot" for a new procedure that requires such a hearing (see partial judgment in this proceeding of August 10, 2014, paragraph 6).  In any case, once a stay order has been issued, the infiltrators are required to arrive at the Holot facility on the scheduled time.  The Population and Immigration Authority provides a transportation system from the city centers (for the time being from Tel Aviv only) to the accommodation center.  In addition to this system, residents are allowed to come to the center independently.  Upon his arrival at the detention center, the infiltrator underwent a procedure to verify his identity.  At the end of the interview, he is transferred to the reception and fingerprints are taken, and he is also entrusted with the equipment he was carrying.  Finally, he is offered the option to be examined by a doctor and is given clothes, towels, blankets, shaving tools, and more.
93. In its response, the state noted the facilities and services available to the infiltrators in the detention center. Thus, it was noted that the center operates a laundry; hairdresser; and a grocery store operated by a private franchisee, whose products are sold at supervised prices.  The state added that in each sub-complex in the center (which accommodates up to 140 people) there is a club that is open 24 hours a day, and sports fields have been established in the center.  In addition, the state notes that classes are currently being offered at the center, including painting and drawing classes (in which about 20 residents participate at a time) and sports classes (in which about 30 residents take part); and that the center will open classrooms for adults, in the subjects of mathematics and English.  As for social services, it was noted that in each "segment" (which accommodates up to 1,120 residents), the center employs three social workers to whom residents can turn, and that there are two therapeutic groups operating there, each with about 15 residents.  Health services are provided by Magen David Adom under the supervision of the Ministry of Health.  At the center is a clinic that is open until 5:00 p.m., with a doctor and two paramedics.  After opening hours, a paramedic on duty is on duty.  It was also noted that a dental clinic van arrives at the center once a week.  Residents who require further medical clarification or laboratory tests, imaging, expert consultation, etc., are referred to Soroka Hospital and other designated hospitals.
94. The petitioners, on the other hand, wish to emphasize that the living conditions at the Holot facility are difficult. According to them, each room in the accommodation center holds 10 infiltrators and includes five bunk beds, 10 small storage compartments with no lock, and a small compartment for the shower and toilet. There are no heating or cooling facilities in the rooms and it is forbidden to hang objects on the walls; The wings are locked during the nights; The "club" contains only television sets and a few chairs, and the "library" that serves the facility includes two bookcases with a small number of books; The infiltrators staying in the facility are not allowed to prepare their own food or bring food purchased outside the facility that is not packaged, nor are they allowed to host in the facility.  According to the petitioners, there is in fact no difference between the services provided at the Holot facility and those provided at the Saharonim facility, which is used for custody.
95. Entry and exit from the center is possible, as mentioned, from 6:00 a.m. to 10:00 p.m., and it is required to report to the facility three times a day, as stipulated in the attendance regulations. The state notes that so far 610 applications have been submitted for an exemption from attendance for up to 48 hours (in accordance with section  32H(c) of the law, of which 26 applications have been denied.  It should be noted that the petitioners claim that many residents give up on submitting such an application in advance, since meetings held for the purpose of submitting the application are used to exert pressure to leave the country "voluntarily", and many are required to wait long hours outside the offices until they receive an answer to their request.  For mobility to and from the center, public transportation lines operate close to arrival hours.  According to the state, data on entry and exit from the detention center attest to daily use of this option.  Thus, it is noted that in February of this year, 13,625 arrivals and exits were recorded; And there is a constant increase in the number of movements.  Regarding the employment of residents at the center (section 32g of the Employment of Residents Law and Regulations), the state updates that as of the beginning of March 2014, 179 residents were registered in the database of those employed at the center.
96. Regarding the possibility of transferring detainees to custody, the state stated that as of March 30, 2014, 53 residents had been transferred to custody after they were late to report for attendance (by virtue of section  32K(a)(1) of the law) – of which 43 were late for registration after participating in an organized protest on December 19, 2013.  It was also noted that 265 residents were transferred to custody because they left the detention center without returning to it for more than 48 hours (by virtue of section 32K(a)(7) of the law) – 153 of whom did so as part of the organized protest of December 17, 2013.  It was reported that the Border Control Commissioner decided to shorten the detention period in the case of these detainees by a few days to weeks.  16 infiltrators were transferred to custody after they were summoned to the detention center and did not report there (by virtue of section 32k(a)(6) of the law); and 191 infiltrators were transferred to custody after failing to report for the renewal of their temporary residence permit (by virtue of section 32k(c) of the law).  Finally, it was reported that no detainees were transferred to custody by virtue  of  sections 32K(a)(2)-(5) of the Law, which deal with violation of rules of conduct, causing real damage to property or causing bodily injury, as well as work in violation of the prohibition of work.

This is therefore the normative arrangement that allows the operation of accommodation centers, and this is how the center operates in practice.  Is the permanent arrangement In Chapter 4' Is the law constitutional?

(II)           Milin Academy

97. There can be no dispute that in the interest of the state, which seeks to find solutions to the phenomenon of irregular immigration, there is ample constitutional room for maneuver. In my view, this space also has the possibility of establishing open residence centers, which will provide a solution to the difficulties associated with this phenomenon.  Indeed, this possibility is already discussed in Parashat Adam.  In our judgment there, some of my friends and I discussed alternative means to the custody facility.  My colleague Justice (ret.) Arbel noted that "it is possible to consider obliging infiltrators to stay overnight in a detention facility that has been prepared for them and which will provide for their needs, while at the same time preventing them from other difficulties" (in paragraph 104 of her opinion; emphasis added - p. P.); My colleague Vice-President M. Naor insisted that "the state can consider turning the existing building intoan open camp, whose stay in it is voluntary" (in paragraph 4 of her opinion; emphasis added – p. 8); In paragraph 40 of my opinion, I also referred to the original version of a document (which has since been published in Hebrew) by UNHCR entitled  Guidelines for Custody: Guidelines on Criteria and Applied Standards for the Custody of Asylum Seekers and Alternatives to Custody (2012) (available here).  In this document, among other alternatives to custody discussed, the option of living in open or semi-open centers was presented.  It was emphasized that the freedom of those staying in these centers as well as the freedom of movement inside and outside the centers must be protected, and that they do not become detained in any other way ("[...] General freedom of movement must be maintained inside and outside the center in order to ensure that the center does not become a kind of detention facility."
98. In our case, the establishment of a residence center is no longer a theoretical proposal. Chapter 4 of the law created a comprehensive legislative framework, by virtue of which the Holot facility in the Negev currently houses about 2,000 infiltrators.  It is this normative framework that is now under constitutional scrutiny.  However, the framework before us is not similar to those "open" or "semi-open" facilities of the type discussed in the Adam case.  As will be detailed below, the detention center under our examination, the one that was designed in accordance with the provisions of Chapter D of the Law, is closer in its characteristics to a "closed" facility than to an "open" civilian center – as opposed to what is required in relation to the population of infiltrators (as I will further detail below).  Thus, although as a rule, the establishment of residence centers may be in line with the accepted constitutional standards in our legal system, the concrete legislative outline created by the legislature in chapter D of the Prevention of Infiltration Law disproportionately violates the right to liberty and the right to dignity, and as such – is null and void.

(III)         Violation of Rights and the Structure of the Exam

99. There is no real dispute between the parties as to whether chapter 4 of the law violates constitutional rights. The State does not deny that Chapter D of the Law violates the right to liberty, and ostensibly – the aforesaid is sufficient to move us to the next stage of constitutional analysis, which requires an examination of the provisions of Chapter D of the Law in the light of the Limitation Clause.  However, in my opinion, it is not possible to suffice with a view of chapter D as a whole, and an individual examination of some of the arrangements set forth therein is required.  This examination is required whenever individual arrangements require different constitutional remedies.  Such is the situation in our case.  The infringement of several provisions set  forth in Chapter D of the Law is so severe that there is no single remedy that can cure the unconstitutionality that adheres to the various arrangements.
100. However, the constitutional examination is not limited to the question of whether each individual provision – when it is alone – meets the constitutional standards. It should be further asked, "Whether the overall mix of the legislative arrangement is proportionate.  Any individual arrangement can be proportional.  But their overall accumulation may not be proportionate" (Investment Managers, at p. 402; emphasis added).  Accumulation of this kind is likely to affect several provisions of Chapter D of the Law, if they had stood alone, they would have passed constitutional review because they do not independently infringe on protected constitutional rights.  This is because the relationship between the various provisions also reflects on provisions that pass constitutional review.  A constitutional provision (in and of itself) is liable to be "tainted" by another, offensive provision, to the extent that the entire legislative arrangement becomes a disproportionate arrangement – and therefore an unconstitutional arrangement.  It also follows from this that it is not possible to examine the constitutionality  of chapter 4 of the law as if those provisions that are unconstitutional in themselves were "removed" from it.  We are dealing with a broad and multi-member chapter.  It is built as an equation.  One arrangement (such as a strict requirement to appear for the purpose of registering attendance at the center) may be balanced by another arrangement (such as limiting the length of stay at the center for a short period).  The court does not have to choose for the legislature the relationship between the various arrangements.  Any constitutional attitude that meets the limitations required by the Basic Law: Human Dignity and Liberty is taken into account.  Any attitude that is unconstitutional is considered disqualified.
101. The order of the examination will therefore be as follows: First, we will discuss the purpose of chapter 4 of the Law. We will then examine those arrangements that give rise to constitutional difficulties in and of themselves.  With regard to any arrangement in respect of which it is found to violate human rights, we will further examine whether it meets the requirement of proportionality.  Later on, we will examine the legislative arrangement as a whole, and we will see whether the arrangement set forth in Chapter D of the Law – the entire arrangement – is proportionate.  At this stage, there will be room to discuss the impact of the reciprocal relationship between the various arrangements set forth in Chapter D of the Law on the constitutionality of the chapter as a whole.  Finally, we will examine the appropriate remedy for each of the arrangements that will be found unconstitutional, as well as the remedy required for Chapter D of the entire law.

(IV)         "For a Proper Purpose"

102. The declared purpose of Chapter D of the Law is to stop the settlement of the infiltrators' population in the city centers and to prevent their integration into the labor market in Israel, as well as to provide an appropriate response to their needs. As stated above, the petitioners believe that another central purpose is an attempt to "break the spirit" of the infiltrators in order for them to "voluntarily" leave Israel.  Let us begin our discussion of the declared purposes of chapter 4 of the law.

(iv)          Preventing Settlement and Integration into the Labor Market

103. We will begin with the goal of preventing infiltrators from settling in population centers and integrating them into the labor market. This purpose has already been discussed in our case law in the Adam case, in which the state noted that one of the purposes of the amendment discussed there – Amendment No. 3, which allowed for custody for a period of three years – is to prevent the infiltrators from settling in Israel's large cities.  My colleague,  Justice (ret.) Arbel, found there that this was a proper purpose, taking into account the state's right to determine how to deal with illegal immigrants (who were not recognized as refugees); and the desire to prevent "the free possibility of the infiltrators to settle anywhere in the State of Israel, to integrate into its labor market, and to force the local society to deal with the entry of infiltrators into their territory with all that this entails" (paragraph 84 of her opinion).  In my opinion in the Adam case  , I refrained from making any conclusions on this matter – against the background of the difficulty raised by the purpose of separating one population from another – on the grounds that Amendment No. 3 to the Law did not pass the tests of proportionality in any case (paragraph 19 of my opinion).  Since, in my view, the main points of Amendment No. 4 do not pass these tests, a decision on this question is not required even in the proceeding before us, and I will assume for the purpose of the discussion that it is a proper purpose.דובר

(v)           Responding to the Infiltrators' Needs

104. Alongside the purpose of preventing settling is the purpose of providing a response to the needs of the infiltrators. This purpose is worthy in itself.  Many of the infiltrators who came through our gates went through hardships.  Many reports indicate that while in their countries of origin, many of them suffered blatant violations of their human rights, and were persecuted by those who sought their lives.  Some have been subjected to severe torture and have been victims of human trafficking.  Even when they come here, the infiltrators encounter many difficulties.  Many of the needs of this population are not adequately met.  Most of them find it difficult to work and earn a decent living, inter alia, in view of the ambiguity of the state's non-enforcement policy, which I discussed earlier (in paragraph 32 above) (State Comptroller's report, at p. 99); They are in a "normative fog" with respect to the pool of rights that the state recognizes in relation to them, since there are still no clear rules and procedures relating to their rights (AAA 8908/11 Aspo v. Ministry of the Interior, [published in Nevo], the opinion of my colleague Justice Hayut (July 17, 2012)); their entitlement to social services is limited, and social services are not granted to them except in cases where their safety is in immediate danger; the medical care given to them in non-emergency situations is incomplete and incomplete; The response to women victims of violence is insufficient, as is the treatment of victims of trafficking and torture (State Comptroller's Report, pp. 112-118).  My conclusion is therefore that a law whose purpose is to establish an open residence center whose purpose is to provide a response to the needs of the infiltrators is a law for a proper purpose.
105. Does the manner in which the Holot facility operates today really properly fulfill the aforesaid purpose? The petitioners elaborated with regard to the nature of the concrete conduct of the Holot Center: the food served there, the supply of activities provided therein, the health and education services provided there, and so on. According to the petitioners, the detention center is far from meeting the needs of the infiltrators in a way that will fulfill the purpose of the legislation. However, the Prevention of Infiltration Law does not address all of these directly.  All that is stipulated in Chapter D of the Law regarding the conditions of stay of infiltrators is that "the stay center shall be provided with adequate living conditions, including health and welfare services" (section  32E of the Law).  It does not establish an obligation to provide educational, religious, sports, cultural, leisure or legal advice services.  In comparison, other arrangements relating to deprivation of liberty include many and varied provisions concerning the safety of detainees and detainees – far beyond those  set out in Chapter D of the Prevention of Infiltration Law.  Thus, the Prisons Ordinance [New Version], 5732-1971 (hereinafter: the Prisons Ordinance or the Ordinance) stipulates that "a prisoner shall be held in appropriate conditions that will not prejudice his health and dignity" (section  11b(b) of the Ordinance); and  the Detentions Law  states that "the arrest and detention of a person shall be in a manner that will ensure maximum protection of human dignity and rights" (section  1(b) to this law).  The Ordinance further establishes – and similar  to the Detentions Law (section  9(b) of the Detentions Law) – specific conditions to which a prisoner will be entitled, including adequate sanitary conditions, conditions that will enable him to maintain his personal hygiene, medical treatment required in order to maintain his health, and appropriate conditions of supervision as required by a doctor of the Prison Service; bed, mattress and blankets for his personal use, and possession of personal belongings as determined in the regulations; drinking water as well as food in the appropriate quantity and composition to maintain his health; clothing,  products for maintaining personal hygiene and bedding; reasonable lighting and ventilation conditions in the cabin; and daily walking in the open air (section 11b of the Ordinance).  The Ordinance further states that a prisoner will be entitled to participate in leisure or educational activities (section 11c of the Ordinance).
106. The absence of detailed emphases in the primary legislation regarding the manner in which the Residency Center is operated leaves the executive branch, which in practice manages the Center, extensive discretion as to the manner in which it is managed. I do not wish to rule on the significance of this fact. What is important for our purposes is that the manner in which the administrative discretion is exercised – that is, the manner in which the administrative authority has implemented and is administering the Holot Center – deviates from the constitutional question that we are deciding in this petition (although it is understood that all of the petitioners' arguments in this matter are reserved for them in the appropriate administrative proceedings).  However, I have seen to emphasize that our case law has long argued that every person – including a person who is imprisoned and detained, and certainly also an infiltrator – "is entitled to minimal and fundamental human needs.  These needs include not only his very right to eat, drink and sleep in order to sustain his body physically, but also   the minimal cultural human arrangements of how  to satisfy these needs, in order to maintain his dignity as a human being mentally" (Miscellaneous Criminal Applications 3734/92 State of Israel v. Azazmi, IsrSC 46(5), 72, 84-85 (1992); See also  High Court of Justice 144/74 Livneh v. Prison Service Commission, IsrSC 28(2) 686, 690 (1974) (hereinafter: the Livneh case)).  In the words of  Justice H. Cohen, this is the right of every person to "civilized human life," since "a civilized person has additional needs of the soul in addition to the need to live: he can, for example, exist and live by putting food in his mouth with his very hands.  But a civilized person needs a plate, a spoon and a fork to eat with them" (High Court of Justice 221/80 Darwish v. Prison Service, IsrSC 35(1) 536, 538-539 (1981)).  Therefore, even in the absence of clear guidelines in the primary legislation, it is clear that the right to dignity implies that it is not enough to satisfy the most immediate needs of a prisoner, detainee or infiltrator, and that the Authority does not fulfill its duty by providing those whose freedom has been deprived of living conditions that enable their continued survival only.

(vi)          Another Alleged Purpose: Encouraging "Voluntary" Departure

107. The petitioners argued, as stated, that the dominant purpose of Amendment No. 4 to the Law – and especially of Chapter D of this Law – is to "break the spirit" of the infiltrators, so that they will agree to leave the country "of their own volition" to countries where their lives and liberty are endangered. This purpose, it is argued, is invalid. I would like to address this argument briefly.
108. Halakha is with us, and we noted this at the beginning of our discussion as well, that one who enters Israel and stays there illegally is not entitled to remain there. The state has the prerogative to decide whether it wants to deport him, and as usual – there is no impediment to doing so. However, anyone who enters Israel is entitled to have his life not in danger – neither in Israel nor in the country of destination to which he will be deported.  Therefore, our case law held that a person should not be deported from Israel to a place where his life or liberty is in danger (El Tay, at p. 848), or to a third country in respect of which there is a fear that it will deport him to his country of origin, where, as stated, he is in danger (the Adam case, at para. 8).  As I noted earlier, this principle, according to which a person is not deported to a place where he faces such danger, is recognized in customary international law as the principle of "non-refoulement".
109. Alongside the rule prohibiting the deportation of a person to a country where his life or liberty is in danger, Israeli law and international law do not prevent a person from choosing, of his own free will, to leave for a country where he is in such danger. The reason for this is that every person is entitled, at any given moment, to choose to leave the country in which he resides. This principle is also enshrined in section 6(a) of the Basic Law: Human Dignity and Liberty, according to which "every person is free to leave Israel."  Even under the rules of international law, it is doubtful that a state would be held responsible for violating the human rights of an illegal alien who voluntarily chose to return to his country, despite the dangers to his life or liberty (see Nils Coleman, European Readmission Policy: Third Country Interests and Refugee Rights 248 (2009)).  The premise in this regard is that human beings are autonomous to shape their lives and their destiny according to their desires and desires.  Therefore, even though a person cannot be forced to leave for a country where his life and liberty are in danger, there is nothing to prevent him from choosing to return there, of his own free will.
110. The question is when a decision to leave the country for a country where a person's life or liberty is endangered will be considered a decision made of "free will". The extreme cases provide a simple answer to this question. In the absence of exceptional circumstances in the host country that exert pressure on a person to leave, his decision to return to his country will be considered a "voluntary" departure; In contrast, an official decision to deport a person to a country that poses a danger to his life or liberty will be considered a forced and prohibited deportation.  Among the aforementioned extremes is a wide range of cases in which the question of whether an individual's decision to leave for a country where his life or liberty is in danger is the result of free choice or whether he is the product of prohibited coercion becomes complex and complex (for more information, see Christian Mumers, "Between Voluntary Return and Constructive Deportation, or: Israel's Actions to Promote the Return of South Sudanese Asylum Seekers to Their Homeland" Refugees and Asylum Seeker in Israel 384 (hereinafter:  "Voluntary return")).  In my view, the touchstone for deciding this question is related to the existence – or absence of – of means that compel a person to return to a country in which he is in danger.  Leaving the country can therefore be considered prohibited deportation (and not as leaving the country of "free will") not only in situations where the state officially orders the deportation of a person, but also when the state takes particularly harsh and offensive measures designed to exert pressure that will lead to "voluntary" departure from the country.  And I will explain.
111. Free choice is possible only where a sovereign person makes a conscious and informed decision from a number of choiceable options, which do not confront him to an impossible reality of life. This idea is a fundamental principle in our legal thinking. It runs through our case law like a thread (Civil Appeal 1212/91 Keren LBI v. Binstock, IsrSC 48(3) 705, 729 (1994); See also  Civil Appeal 2781/93 Da'aka v  . "Carmel"  Hospital, Haifa, IsrSC 55(4) 526, 570 (1999) (hereinafter: the Da'aka case)).  It applies in many different areas of law (see, for example, Labor Law: High Court of Justice  8111/96  New Histadrut HaOvdirut v.  Israel Aerospace Industries Ltd., IsrSC 58(6) 481, 542 (2004) ("It seems to me that the alternative of resignation, which deprives the employee's source of income, cannot be considered as allowing him to make a real choice.  Indeed, the economic reality is often such that it negates the practical possibility of choosing this alternative"); and Contract Law:  Civil Appeal 1569/93 Maya v. Penford (Israel) Ltd., IsrSC 48(5) 705, 721 (1994) ("And what will be the intensity of coercion in order for us to recognize it as a legal actor? The accepted test for determining the intensity of the pressure will be found in the answer to the question of whether there was a practical and reasonable alternative for the innocent party not to give in to that pressure"); In criminal cases:  Civil Appeal 4790/04 State of Israel v. Ben Haim, IsrSC 60(1) 257, 268 (2005) ("Whatever the way in which the principle of 'abuse of authority' is expressed – the meaning is always the same: obtaining the consent of the subordinate to commit the acts not according to his true will but due to the abuse of the relationship of authority"), as well as the Criminal Appeals Authority 10141/09 Ben Haim v. the State of Israel,  [Published in Nevo] paragraph 27 (March 6, 2012) ("As a rule, in circumstances in which a person meets with a police officer who wishes to conduct a search of his body, his belongings or his home [...] That person may believe that refusing to consent to the search may lead to his detention or arrest, or at the very least, raise suspicion against him.  Consent given in these circumstances, which means a waiver of the constitutional right to privacy [...] is not informed consent; for it does not express the true and autonomous choice of the citizen to waive his rights"); In the Law of Evidence: Criminal Appeal 377/67 Dahan v. State of Israel, IsrSC 23(1) 197, 212 (1969) ("The confession in question is invalid as testimony, on the grounds that it was extorted by means that amounted to the application of psychological pressure to the extent of negating the possibility that it was made of free will"); And in Administrative Law: High Court of Justice  3799/02 Adalah v. The Legal Center for Arab Minority Rights in Israel v. GOC Central Command in the IDF, IsrSC 60(3) 67, 81 (2006) ("Due to the inequality between the occupying power and the local resident, it cannot be expected that the local resident will object to a request to issue a warning to those who seek to arrest him.  A procedure should not be based on consent, when in many cases it will not be genuine.").
112. As in other areas of law, the power of the principle of free will – and by saying so, we mean a choice free from unreasonable pressures – is also true in relation to a person's decision to leave the country in a country where his life or liberty is in danger, and this is even more so against the background of the sensitivity of the material at hand. Indeed, in many countries around the world, it is widely believed that not every independent decision of a person to leave the country to which he made his way is considered a "voluntary" departure. According to the United Nations Commission on International Jurisprudence, a state can also deport an illegal alien by way of "constructive expulsion" – through acts of coercion or threats that can be attributed to the state that are not an official decision or order (U.N.  Secretariat, Expulsion of Aliens, Memorandum by the Secreteriat, Int’l Law Comm’n, U.N.  Doc.  A/CN.4/565, ¶ 68 (July 10, 2006) (available here).  It should be noted that the prohibition on constructive distancing has been interpreted narrowly to this day, and this has been criticized.  See Mumres, "Voluntary Return," at pp. 402-413).  One of the most important aspects of tracing the existence of "free" choice is the legal status of individuals entitled to protection in the host country.  If the rights of the infiltrators are not recognized, and if they are subjected to pressure and restrictions and are held in closed camps, then according to UNHCR, their decision to return to their country cannot be seen as a choice made out of "free will" (U.N.  High Comm’r for Refugees, Handbook: Voluntary Repatriation: International Protection § 2.3 (1996).  (available here)).  This idea has also been recognized in our case law.  Thus, for example, in a petition in the case of an illegal alien who "chose" to leave the country and leave behind his wife and children, this court ruled that "it is difficult to attribute a 'conscious choice' – free and voluntary –  to any of those people who, after a long (illegal) stay in Israel, during which they even established a family in Israel, preferred to leave the country, without harsh custody and deportation proceedings being taken against them, while leaving other family members behind.  The normative reality that prevailed in Israel [...] ostensibly negates the conclusion regarding voluntary departure from the country" (AAA 9890/09 Nawa v. Ministry of the Interior, [published in Nevo] para. 16 (July 11, 2013) – emphases in original).  Thus, a certain normative reality may be considered, in exceptional circumstances, to be a "pressure cooker" that thwarts the existence of free will in the matter of leaving the country.

To summarize this point: the question of whether a person's choice to leave the country is a choice made of free will or whether it is the product of prohibited coercion is related to the background conditions of the host country.  Unreasonable pressures and measures that force a person to leave the country may turn his departure into a forced and forbidden expulsion.

113. In our case, the petitioners argue that the purpose of chapter 4 of Amendment No. 4 – by virtue of which infiltrators can be held in the detention center – is to deny free choice, as stated, by intensifying the distress of the infiltrators. The petitioners support this argument, inter alia, by statements made by the Minister of the Interior and senior officials of the Population and Immigration Authority in various Knesset discussions. The state, on the other hand, argues that this argument is not anchored in the provisions of the law, in the explanatory notes to the law, or in the reality of life in the center of residence.  The decision between these two polar positions is not easy, and the question of whether one of the purposes of the law, the constitutionality of which we are examining here, is indeed to "break the spirit" of the infiltrators so that they choose to leave the country is not without doubts (and this, inter alia, given the statements of the representatives of the authorities quoted in the petition).  It seems that there is no dispute that the detention center established by virtue of Chapter D of the Law makes life very difficult for the infiltrators, and that this kind of difficulty may well incentivize a person to choose to leave the country.  However, certain difficulties are the lot of every person who chooses to immigrate to another country in an irregular manner.  It is not possible – and in some ways even undesirable – to make them disappear altogether.  Between a legitimate incentive (such as a financial incentive) to leave the country and the application of significant and unfair pressure that denies, in practice, the ability of illegal aliens to choose not to leave the country – thus crosses a thin line.  Does chapter 4 of the Law really cross this line – against the background of the denial of liberty inherent in it, which is not limited in time, and against the background of other matters that will be discussed later – this limit? Although I did not see that it is possible to reject the petitioners' arguments in this area out of hand, I did not find it necessary to rule on the matter because, in any case, in my opinion, chapter D of the law should be invalidated because it does not meet the requirement of proportionality.  I will clarify that by doing so, I am not setting the stage on the question of the departure of infiltrators to a "safe" third country, since this question in itself is not subject to our examination in this proceeding.

So far regarding the purpose of Chapter 4' to the law.  From here we will move on to an examination of some of the legal arrangements that give rise to special constitutional difficulties, and later we will discuss the full picture Chapter 4' to the law.

(V)            Arrangements for Chapter D of the Law - Concrete Examination

(i)           Obligation to report to the center - is it really "open"?

114. The first arrangement before us deals with the obligation to be present at the accommodation center. This obligation is a by-product of the requirements that appear in the law (and the attendance regulations enacted by virtue of it) to report for daily counts ("attendance registration") at the center.  Section 32H of the Law establishes conditions regarding attendance at the residence center and exit from it, and it expresses as follows: