Proposal for Legislation: Law for the Prevention of Infiltration - 2008
On May 19, 2008 the Knesset passed in first reading (in a majority of 21 MKs against 1) a Governmental law proposal which would replace the 1954 Law for the Prevention of Infiltration (Felonies and Jurisdiction). The proposal will now be prepared by the Foreign Affairs and Defense Committee for second and third reading.
The main features of the new proposed legislation:
Severe criminal sanctions for any person illegally entering Israel (5 years imprisonment);
Higher penalties for a person entering Israel illegally if he is a citizen or a resident of one of 9 countries enumerated in the annex to the proposal (Iran, Afghanistan, Lebanon, Libya, Sudan, Iraq, Pakistan or Yemen). The same will apply to a resident of Gaza (7 years imprisonment);
An IDF officer is empowered to order the immediate return of a person to the country or the territory from which he arrived provided that such return would be performed within 72 hours from the time the suspicion of infiltration has risen;
A person suspected of infiltration would be detained. An administrative Detention Review Tribunal will review the detention and would be empowered to order the release from detention, however, a person would not be released if the Israeli security authorities believe that in his country of residence or in the area where he lives, there is activity which might endanger the security of the State of Israel or its citizens.
Background:
The 1954 Law for the Prevention of Infiltration (Felonies and Jurisdiction) was enacted during the first years of the State of Israel, mainly to combat the "infiltration" of Palestinians. The law was part of Israel's emergency legislation, and was supposed to expire once the declaration on a state of emergency is rescinded (article 34 of the law). Since to this day, the state of emergency is maintained; the law is still in force. The InfiltrationLaw, which existed side by side to the general immigration enforcement law (The 1952 Entry to Israel Law), enabled the law enforcement authorities a choice between using the severe sanctions allowed by the Infiltration Law and the more lenient penalties of the Entry to Israel Law, for example: According to the Entry to Israel Law, the penalty of illegal entry or stay in Israel is one year imprisonment (Article 12), the penalty for the same felony under the Infiltration Law is five years (Article 2). In 2001 the Entry to Israel Law was amended to include a few basic safeguards such as: a right to be heard prior to being detained; a list of situations in which an undocumented person might be released from detention (for example if he has been detained for 60 consecutive days and the deportation is delayed for reasons beyond his control); a periodic review over the detention be an administrative tribunal; guarantees as to basic conditions of detention (for example the segregation of undocumented migrants from people who are held under criminal proceedings). The Infiltration to Israel law was not amended, and to this day is lacking those basic safeguards to the right of liberty and dignity.
Throughout the years, the use of the Infiltration law for illegal entry to Israel which was not security-related, was limited but couldoccur (for example against criminally related 'infiltration' or when the person was a repeat offender). A sharp change in this policy took place at the beginning of 2006, with the rise in the number of Sudanese asylum seekers arriving to Israel. The Government decided that every Sudanese is a potential security risk, simply because of his nationality and in addition, was trying to deter future asylum seekers from arriving to Israel. During 2006 hundreds of Sudanese asylum seekers were detained for indefinite period of time, without any external review over their detention. Furthermore, in many cases, asylum seekers were detained in army facilities without legally valid detention orders, often in conditions which are not suited for detention. Others were incarcerated in detention facilities together with criminally convicted prisoners. A petition to the Israeli Supreme Court served by the Hotline for Migrant Workers and the Refugee Rights Clinic at Tel Aviv University (HCT 3208/06, still pending), has brought about a few changes:
An ad-hoc internal review mechanism was established to review the individual cases of the detainees;
Every Sudanese asylum seeker whose case was heard by the internal reviewer received a recommendation for his release and was eventually released (over 300 persons);
The State announced to the Court that after a preliminary security screening, every person detained under the Infiltration to Israel law, will be transferred to the Entry to Israel Law.
The current situation of detained asylum seekers:
Over 1,000 asylum seekers are currently detained. Although the incidents of people who are detained in army facilities (against army regulations) have become less frequent, this might still occur. Most of the asylum seekers are initially detained under the Infiltration Law, but are transferred to the Entry to Israel Law (typically within a month). A case of two HIV asylum seekers who were detained under the Infiltration law in July 2007 has recently come into light, their detention was not reviewed by the internal review mechanism for over 6 months and even after this was relayed to the authorities in February 2008, they are still held under the Infiltration Law). In the Ketziot detention center asylum seekers including women and young children are detained in a tent facility despite harsh weather conditions. Young children do not receive sufficient education, psychological and social services, however, a petition to the High Court which challenged this practice failed(HCT 212/08 Hotline For Migrant Workers and others vs. the Prisons Authority and others, decision dated February 6, 2008).
The "Hot Return":
In August 2007Israel summarily deported a group of 48 asylum seekers, among them 18 children, back to Egypt, shortly after they have crossed the border into Israel. The deportees were not allowed to ask for asylum in Israel. To this day, their whereabouts remains unknown; they are believed to be detained incommunicado in Egypt. UNHCR was not granted access to the detainees, despite repeated requests. There have been several media reports according to which, some of them were deported back to Sudan (International Herald Tribune, February 26, 2008). A petition challenging the legality of the "Hot Return" practice is currently pending at the High-Court (HCT 7302/07). On September 24, 2007 the Court ordered the State to presenta detailed procedure for the return to Egypt and in particular for differentiating between asylum seekers and others. In December 2007, the State produced a procedure entitled "Immediate Coordinated Return" according to which soldiers in the field would question the person shortly after apprehending her at the border and an officer would decide, whether to return her to Egypt. Since August 2007 no additional 'hot returns" were undertaken, however, the State insisted in Court that it has the legal authority to do so whenever it would judge the conditions to permit such return.
The proposed bill:
According to the Explanatory Notes (which will only serve as an interpretive tool once the bill is legislated), the purpose of the law is to provide an answer to the growing numbers of people who illegally cross the border with Egypt. According to the proposal, the new law would nolonger be dependent on a declaration of an emergency situation and would provide "the necessary balance between human rights, state security and public order, while considering the size of the phenomenon and the ruling of the various courts".
Despite the acknowledgement in the explanatory notes that "after examining the circumstances of the infiltration, it was found that most of the infiltrators to Israel during the last years, were not security related", the Explanatory Notes state that "due to the security nature of the infiltration phenomenon, the proposed arrangements are severe in comparison to the attitude prescribed under the Entry to Israel Law". The Notes explain that the "assumption is that a person who infiltrates beyond the legal border of the State does so with the intention to do harm".
The relation of the Infiltration Law to the Entry to Israel Law
The Explanatory Notes explain that the underlining rational of the proposed bill is to differentiate between those 'infiltrators' who arrive for security-related activities and others, and that the later, after the circumstances of their 'infiltration' would be reviewed, could be transferred into the venue of the Entry to Israel Law. However, the Law does not include any explicit clause which provides for such arrangement. Article 12(A) to the proposed bill states only:
"There is nothing in the articles of this law to prevent the application of the clauses of the Entry to Israel Law on an infiltrator, providing it have been ascertained that the circumstances of his infiltration do not relate to the activities of hostile elements which might endanger state security and that he himself does not pose a security risk".
The Bill goes on to state that the time a person was held under the Infiltration Law would not be calculated once he is transferred to the Entry to Israel Law venue (article 12(c), this article aims to overturn a District Court decision according to which, all relevant time limits should be calculated from the day of a person's detention, thus not allowing the State to avoid administrative review over the detention for a long periods of time, Administrative Appeal, Tel Aviv, 162/06).
The definition of an "infiltrator":
Article 1: "A person who had entered Israel, but had not entered via one of the entry stations prescribed by the Minister of the Interior according to article 7 to the Entry Law, without proper authorization. This definition would include most of the asylum seekers who arrive to Israel (according to UNHCR data over 98% of asylum seekers arrive clandestinely via the Egypt-Israel border).
Variation in the penalties for illegal entry:
Article 2 prescribes 5 years imprisonment for the act of 'infiltration'
Article 3 prescribes 7 years of imprisonment for a person who when he 'infiltrated' was a citizen or resident of Iran, Afghanistan, Lebanon, Libya, Sudan, Iraq, Pakistan, Yemen or Gaza strip.
Article 4 prescribes 10 years if a person who has 'infiltrated' was a member of a terror organization or a terror activist under the Law Prohibiting Terror financing – 2005; or was among security forces of one of the 10 countries/territories enumerated above or was a member of an armed force operating in their territory; or has 'infiltrated' to perform offences under the criminal law (a list of clauses is provided, most of them are security related, however article 157 to the Criminal Law which is also included deals with "rioting which causes damage to buildings, ships, electricity lines etc).
Article 5 prescribes the same penalty for a person who assists the 'infiltrator'in entering or makes his illegal stayeasier, as the penalty for the main offence. The Explanatory Notes clarifies that this section will apply to Israeli residents. We are concerned that it might be interpreted to apply to various NGOs which currently assist undocumented migrants (in providing shelter, food, medical assistance and legal counseling).
Deportation and Detention
Article 6(a)prescribes that an infiltrator would be deported from Israel "as soon as possible". Deportation would take place according to a deportation order signed by the Minister of Defense (Article6(b)), such an order may be issued even if a person was charged under the law, has been convicted or has started to serve a sentence.
Article 8(a)lays down the rule that an 'infiltrator' would be held in detention until his deportation from Israel. Policemen might detain any person if they believe this person had infiltrated into Israel. Temporary detention would not exceed 96 hours (Article 9 (e)). After 96 hours a decision should be made on the detention of the 'infiltrator' until his deportation (Article 10).
Hot Return:
Article 11(a): "if the authorized officer has been persuaded that the infiltrator has recently entered Israel, he may order his immediate return to the country or to the territory from which he had infiltrated, providing the return would be performed before 72 hours have elapsed from the time the policemen or the soldier had reasonable grounds to suspect that the person had infiltrated to Israel".
The Explanatory Note of this article clarifies that the intention is to use this article only against people who are apprehended in proximity of time and place to the border, and not people who had 'infiltrated' into Israel and are in the country, at a distance from the border, for a period of time. It is also clarified (however - only in the Explanatory Notes) that "return shortly after the infiltration would be performed in accordance to Israel's obligations under international conventions including the principal of Non-Refoulement".
Article 11(b) clarifies that Article 11(a) does not derogate from the authority of a police officer, under the Entry to Israel Law to deport Palestinian residents of the OccupiedTerritories (this authority is not dependent on when and where a person was apprehended by the police).
Detention Conditions:
Article 14(a): "An infiltrator held in detention would be held in appropriate conditions which will not, under the circumstances including the length of his detention, violate his health or his dignity".
Article 14(b): "Subject to subsection (a) an infiltrator who is held in detention would be detained according to the regular conditions in the specific place of detention".
It seems that the purpose of subsection (b) is to validate the continuance of the detention in a "tent facility" in Ketziot. In addition, the bill lacks a guarantee that people who are detained for 'infiltration' would not be detained with criminally convicted prisoners. The Explanatory Note argues that this is justified since most of the people who are detained under the Entry to Israel Law are people who entered legally to Israel and later became undocumented. This assumption is contested by the NGOs who specialize in the detention of undocumented migrants.
Release from detention:
According to Article 15(a) an officer may release, in exceptional cases, an infiltrator under bail (monetary or other) if he is persuaded:
"(1) Due to his age or health situation his detention may cause damage to his health and there is no other way to prevent this damage;
(2)There are other humanitarian reasons, which are different from subsection 1, which justify the release under bail;
(3) The release may assist in the deportation proceedings."
This section is far more restricting then the parallel section in the Entry to Israel Law which does not prescribe that release would be performed only in "exceptional cases" and includes another important basis for release which is the length of time a person has spent in detention (article 13F(4) dictates that if a person has been in detention for more then 60 days consecutively, this would serve as basis for release).
Article 15(b) qualifies article 15(a) and orders that an infiltrator would not be released, even if article 15(a)(2) or 15(b)(3) applies, if:
"(1) His deportation is prevented or is delayed due to lack of full cooperation by the infiltrator, including the clarification of his identity or the proceedings for his deportation;
(2) The release might endanger State security, public safety or public's health;
(3) The relevant security authorities have filed an opinion according to which in the infiltrator's country of origin or in his area of residence, there is activity which might endanger the security of the State of Israel or its citizens."
Article 15(d) prescribes that if an 'infiltrator' is released from detention the release order would serve as the legal basis for his stay in Israel for the duration of his conditioned release. The Explanatory Note clarifies that this article intends to make sure that the 'infiltrator' does not receive any legal status to stay in Israel, since initially his entry was illegal.
Administrative review:
According to Article 17(a) the Minister of Justice, based on the proposal of the Minister of Defense, would appoint an adjudicator to review the detention of 'infiltrators'. The adjudicator should be a person who is qualified to an appointment as a magistrate and who is knowledgeable in the entry and exit laws (Article 17(b)). The appointment is for a term of three years and is renewable (Article 17(c)). According to Article 18 the Review Tribunal would conduct "judicial review" over the decisions to detain or release an infiltrator or release him under bale. Article 19 prescribes that the adjudicator is independent and subject only to the law.
A person should be brought before the Tribunal within 14 days from the time he was initially detained (Article 20(a); if a person was not brought before the Tribunal within this period, the officer would order his release, accept in cases in which article 15(b) applies.