Cardozo Israeli Supreme Court Project
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In the Supreme Court sitting as High Court of Justice

HCJ 8665/14

Before: President M. Naor

Justice S. Joubran

Justice E. Hayut

Justice H. Melcer

Justice Y. Danziger

Justice N. Hendel

Justice U. Vogelman

Justice I. Amit

Justice Z. Zylbertal

Petitioners: 1. Teshome Nega Desta

2. Anwar Suliman Arbab Ismail

3. Hotline for Refugees and Migrants

4. Association for Civil Rights in Israel

5. ASSAF – Aid Organization for Refugees and Asylum Seekers in Israel

6. Worker’s Hotline

7. Physicians for Human Rights – Israel

8. African Refugee Development Center

v.

Respondents: 1. Knesset

2. Minister of the Interior

3. Minister of Defence

4. Minister of Public Security

5. Attorney General

Request to join as amici: 1. Eitan - Israeli Immigration Policy Center

2. Kohelet Policy Forum

3. Legal Forum for Israel

4. Concord Research Center for Integration of International Law in Israel

Objection to granting an order nisi

Date of Hearing: 14 Shevat 5775 (Feb. 3, 2015)

Attorneys for the Petitioners: Adv. Oded Feller; Adv. Anat Ben-Dor; Adv. Asaf Weitzen; Adv. Osnat Cohen Lifshitz; Adv. Aelad Cahana; Adv. Rachel Friedman; Adv. Yonatan Berman

Attorney for Respondent 1: Adv. Gur Bligh

Attorney for Respondents 2-5: Adv. Yochi Gnessin; Adv. Ran Rozenberg; Adv. Moriah Freeman; Adv. Noam Mola

Attorney for Amicus 1: Adv. Guy Tsabari

Attorney for Amicus 2: Adv. Ariel Erlich

Attorney for Amicus 3: Adv. Idan Abuhav

Attorney for Amicus 4: Adv. Avinoam Cohen

Judgment

President M. Naor:

The petition before the Court challenges the constitutionality of Chapter A of the Prevention of Infiltration and Ensuring Departure of Infiltrators from Israel (Legislative Amendments and Temporary Provisions) Law, 5775-2014 (hereinafter: the Amendment). This chapter amends the Prevention of Infiltration (Offences and Jurisdiction) Law, 5714-1954 (hereinafter: the Law), and establishes provisions for the detention of infiltrators for a period of up to three months, and to order that they be held in a residency center for up to twenty months. The Amendment, which passed second and third readings in the Knesset on Dec. 8, 2014, was enacted after this Court held in two previous judgments that certain provisions that had been added to the Law by previous amendments were unconstitutional (HCJ 7146/12 Adam v. Knesset (Sept. 16, 2013) (hereinafter: the Adam case); HCJ 7385/13 Eitan - Israeli Immigration Policy Center v. Government (Sept. 22, 2014) (hereinafter: the Eitan case)).

General Background

1. Over the last few years, tens of thousands of people, many of them nationals of African countries, entered Israel without passing through the border control stations. The Law defines these people as “infiltrators” because they did not enter Israel legally. This, as opposed to persons who entered Israel legally but who did not leave on the required date, thus continuing to remain in the country unlawfully.

2. The infiltration phenomenon presents Israel with complex challenges. While it must prevent illegal immigration, the state must also uphold its obligations to protect persecuted persons and ensure that they not face a situation that would threaten their lives or freedom if deported (HCJ 7302/07 Foreign Workers Hotline v. Minister of Defence, para. 13 (July 7, 2011) (hereinafter: the Hotline case)). In the Adam case and the Eitan case, we noted that these challenges are not unique to Israel, and that there has been a constant rise in the number of men and women wandering outside their countries for various reasons over the last decades.

3. According to the current data of the Population and Immigration Authority, as of June 30, 2015, a total of 64,309 infiltrators have entered Israel, of whom 45,091 are currently present in the country. Until 2012, infiltration followed an upward trend, which has since reversed. While 17,258 infiltrators entered the country in 2011, only 45 entered in 2013, and 21 in 2014. In the first half of 2015, 39 infiltrators entered the country. In the years 2013-2014, there was an increase in the number of infiltrators leaving Israel. Despite the said changes in the scope of the infiltration phenomenon, the State of Israel must still contend with a large number of infiltrators living in its territory (and see: the Eitan case, para. 40 of the opinion of Justice U. Vogelman, further references in this judgment refer to the opinion of Justice Vogelman, unless otherwise noted). Most of the infiltrators currently present in Israel (some 92 percent) are nationals of Eritrea and the Republic of Sudan (hereinafter: North Sudan) (Population and Immigration Authority, Policy Planning Department, Data on Foreigners Policy in Israel – Publication no. 2/2015 (July 2015)).

4. In the previous proceedings, the Court noted that the parties disagree as to the reasons that brought the infiltrators to Israel. That disagreement has also arisen in these proceedings. The State is of the opinion that the overwhelming majority of infiltrators are economic migrants who left their countries in order to improve their situations. Therefore, in addition to the legislative arrangements that are the subject of these proceedings, the Amendment also comprises Chapter B (which is not challenged in this petition), which amends the Foreign Workers Law, 5751-1991, by reference, and imposes various restrictions upon the employment of infiltrators. As opposed to this, the Petitioners are of the opinion that we are concerned with people who fled their countries of origin due to threats to their lives or liberty. The Petitioners note that Eritrea and Sudan – the countries of origin of most of the infiltrators – are countries that have suffered internal instability, and in which there have been crises and wars over the last years (the Adam case, para. 6 of the opinion of Justice E. Arbel, further references in this judgment refer to the opinion of Justice Arbel unless otherwise noted; the Eitan case, para. 31). Against this background, the Petitioners argue that many of the infiltrators are entitled to refugee status. According to the Petitioners, that status is not limited to a prohibition upon deportation to the country of origin, but grants additional rights in various areas (Convention Relating to the Status of Refugees of 1951, 5 Kitvei Amana 3 (opened for signature in 1951), and the Protocol Relating to the Status of Refugees of 1967, 21 Kitvei Amana 23 (opened for signature in 1967) (hereinafter referred to jointly as the Refugee Conventions); the Eitan case, paras. 32-36).

5. As noted in the previous proceedings, “the true picture as to the identity of the infiltrators is certainly more complex than either side seeks to present. Alongside the economic motive that may be assumed to have driven many of the infiltrators to come to the State of Israel, we cannot casually deny the claims relating to fleeing the dangers that threatened them in their country” (ibid., para. 31). This is also true in the matter before us. In any case, at present Israel does not deport nationals of Eritrea and North Sudan directly to their countries. According to the information presented to us, nationals of North Sudan are not repatriated due to practical problems deriving from the lack of diplomatic relations with that country (for a more detailed discussion of this issue, see ibid., paras. 31-32; the Adam case, para. 8). As opposed to this, due to the situation in Eritrea, the State has adopted a policy of “temporary non-deportation”. This is in accordance with the customary international law principle that a person cannot be removed to a place that presents a danger to his life or liberty (the principle of non-refoulement; see, inter alia, para. 33 of the Refugee Convention). This Court addressed the non-deportation policy as implemented by Israel at some length in earlier judgments (the Adam case, paras. 8-9; AAA 8908/11 Asafu v. Ministry of the Interior (July 7, 2012) (hereinafter: the Asafu case)). At present, only “temporary non-deportation” is involved, without establishing any associated, specific arrangement treating of its practical implications and the nationality rights of those enjoying it (for a criticism of this normative situation, see ibid., the opinion of Justice E. Hayut).

6. To complete the picture, we would note that the said policy does not currently prevent nationals of Eritrea and Sudan from submitting individual requests for recognition as refugees, although the State formerly limited this (see: the Eitan case, para 34; the Asafu case, para. 18 of the opinion of Justice Vogelman). Until a few years ago, requests for asylum were handled by the U.N. High Commission for Refugees, initially in their entirety and later in cooperation with it (see: AAA 8675/11 Tedesa v. Unit for Processing Asylum Seekers, para. 9-11 (May 14, 2012); Sharon Harel, The Israeli Asylum Mechanism: The Process for transferring the handling of Asylum Requests from the U.N. Commission for Refugees to the State of Israel, in Where Levinsky Meets Asmara: Social and Legal Aspects of Israeli Asylum Policy 43 (2015) (hereinafter: Levinsky Meets Asmara) (Hebrew)). Over the last few years, requests for asylum have been referred to the RSD (Refugee Status Determination) (hereinafter: RSD) department of the Population and Immigration Authority, which operates in accordance with the directives of the Ministry of the Interior (see: Ministry of the Interior, “Procedure for Handling Requests for Political Asylum in Israel” (Jan. 2, 2011)).

Previous Proceedings – the Adam and Eitan Cases

7. In view of the difficulty in repatriating most of the infiltrators, the State of Israel had to find alternative solutions. Initially, Israel adopted a policy under which infiltrators who were apprehended were returned to Egypt. However, the implementation of that policy was stopped due to the geopolitical situation in Egypt (the Hotline case, paras. 11-12; for other arrangements implemented in the past, see: Yonatan Berman, Arrest of Refugees and Asylum Seekers in Israel, in Levinsky Meets Asmara 147; HCJ 10463/08 African Refugee Development Center v. Ministry of the Interior (Aug. 17, 2009); HCJ 5616/09 African Refugee Development Center v. Ministry of the Interior (Aug. 26, 2009)). Another policy adopted by Israel was that of detaining infiltrators under the Entry into Israel Law, 5712-19952 (hereinafter: the Entry into Israel Law). However, the infiltrators were released from detention after a relatively brief period, inter alia, because the Entry into Israel Law does not generally permit detaining a person or more than sixty days.

8. In light of the increase in infiltrations, the state authorities implemented other means, among them the erection of a physical barrier along the land border with Egypt, and legislation intended to impose special legal arrangements upon infiltrators. These arrangements are more severe than those applying to persons unlawfully present in Israel under the Entry into Israel Law. This policy was first expressed in the Prevention of Infiltration (Offences and Jurisdiction) (Amendment no. 3 and Temporary Order) Law, 5772-2012 (hereinafter: Amendment 3), which added sec. 30A to the Law. The main provision of sec. 30A – enacted as a temporary order – permitted detaining an infiltrator in legal custody for a period of up to three years, subject to grounds for supervised release that were established in the Law. In the Adam case, this Court – in an expanded panel of nine justices – held that Amendment 3 was unconstitutional due to its disproportionate violation of the constitutional right to liberty. By majority opinion, we annulled all the arrangements established in sec. 30A of the Law. We further ruled that in light of the annulment of sec. 30A, all the detention and deportation orders under which the infiltrators were detained would be viewed as if they had been issued by virtue of the Entry into Israel Law, and that an immediate, individual review of the cases of all those detained must be undertaken, along with their release, as necessary.

9. Pursuant to the judgment in the Adam case, the Knesset enacted the Prevention of Infiltration (Offences and Jurisdiction) (Amendment no. 4 and Temporary Order) Law, 5774-2013 (hereinafter: Amendment 4). That law – also enacted as a temporary order – reenacted sec. 30A, while shortening the maximum period of detention to one year. It also added Chapter D, which arranged for the establishment of a residency center for infiltrators (hereinafter: residency center), and authorized the Director of Border Control (hereinafter: the Director) to transfer any infiltrator to the center if there was any problem whatsoever in removing him from Israel. Chapter D also established various provisions in regard to the operation of the residency center. Inter alia, infiltrators residing in the residency center were required to report three times a day for registration of their presence in the center, and to remain in the center during the night. On Dec. 12, 2013, shortly after the enactment of Amendment 4, the Prevention of Infiltration (Offences and Jurisdiction) (Declaration of a Residency Center for Infiltrators) (Temporary Order), 5774-2013, was published in the Official Gazette. In that order, promulgated by virtue of sec. 32B of the Law, the Minister of Public Security declared the “Holot” installation in the Negev as a residency center for infiltrators under Chapter D of the law. On the following day, the Population and Immigration Authority began transferring infiltrators held in custody to the “Holot” installation.

10. In the Eitan case, a majority of this Court held that the aforementioned two pillars of Amendment 4 were unconstitutional and ordered their annulment. The Court held that a person could not be ordered to be held in custody if there was no expectation of his removal from Israel, and a fortiori not for a period of one year. Although the State argued that one of the purposes of sec. 30A of the Law was the identification of the infiltrator and exhausting the possibilities for his deportation, it was held that there was a gap between the declared purpose of the Law and its language. It was therefore held that placing infiltrators in detention for an entire year in the absence of any foreseeable expectation of their deportation – and this not a punishment for their conduct, and in view of their inability to do anything to bring about their release – creates a disproportionate violation of their rights. It was further held that the residency center was also unconstitutional. This was first and foremost because no limits were set for the maximum period of custody in the center, nor were any criteria for release established. But it was also due to the specific arrangements that were established, such the obligation to report for registration and the obligation to remain in the center at night. The Court held that Chapter D, as a whole, presented a gloomy picture of an installation that shared many of the characteristics of a detention center, as opposed to an open or partly open residency facility. The Court therefore overturned both elements of the Law.

11. In place of the arrangement established under sec. 30A, which was annulled, the Court held that the arrangement established under the Entry into Israel Law would be followed. In addition, the declaration as to the annulment of Chapter D of the Law was held in abeyance for ninety days, with the exception of a limited number of provisions regarding which the declaration would enter into force earlier, in accordance with the conditions set forth in the judgment.

The Law challenged by the Petition

12. On Dec. 8, 2014 – about three months after the judgment in the Eitan case – the Knesset enacted the amendment that is the subject of these proceedings. It, too, was enacted as a temporary order. The main points of the amendment are as follows: First, sec. 30A of the Law was reenacted, while establishing a three-month maximum for detention. Second, Chapter D of the Law was reenacted to reestablish the residency center and regulate its operation. Like the earlier version of Chapter D, the new arrangement authorizes the Director to require that an infiltrator be present in the residency center. However, the maximum period for remaining in the residency center is limited to twenty months, and special populations – like minors and victims of certain crimes – will not be summoned to the center. As in the past, the infiltrators were required to report in the evening for registration, and were prohibited from leaving the center at night. However, the requirement that they report during the day was rescinded, and grounds for release from the residency center were established. Below, I will address all of the details of the arrangement established under Chapter D. I will already note that according to the explanatory notes, these arrangements were intended to change the scheme of incentives for infiltrators considering entering Israel other than through the border control stations; to permit the authorities to exhaust the identification procedures for infiltrators, as well as deportation procedures; to provide a response to the State of Israel’s right to protect its borders and sovereignty; and to prevent infiltrators from continuing to establish themselves in Israeli urban centers (Explanatory Notes to the Prevention of Infiltration and Ensuring Departure of Infiltrators from Israel (Legislative Amendments and Temporary Provisions) Bill, 5775-2014, Government Bills 904 (hereinafter: the Explanatory Notes)).

The petition before the Court was filed shortly after the enactment of the Amendment.

Developments following the filing of the Petition

13. On Dec. 30, 2014, President A. Grunis issued an order nisi instructing the Respondents to show cause why sec. 30A of Chapter D of the Law, as amended in the Amendment that is the subject of this petition, not be annulled. President Grunis further ordered that the case be heard before an expanded panel of nine justices.

14. Oral arguments were heard on Feb. 3, 2015. In light of questions and arguments raised in the course of the hearing, we ordered that the Respondents submit a supplementary affidavit. The Respondents were asked to present various data in their affidavit, inter alia, in regard to the breakdown of the population currently in the Holot residency center; in regard to asylum requests submitted to the RSD; and in regard to asylum seekers who voluntary left Israel in the course of their stay in the residency center or while in detention. I will refer to the supplementary data submitted on Feb. 16, 2015 in due course.

The Petitioners’ Presentation and the Main Arguments of the Parties

15. Petitioner 1 is a 34 year old Eritrean citizen. He claims that he served for a number of years in the Eritrean army, and was thereafter imprisoned without trial for over a year. In 2008, Petitioner 1 left Eritrea and infiltrated into Israel. Between the years 2008 and 2013, Petitioner 1 lived in Beer Sheva, Eilat and Tel Aviv, and worked in hotels. In January 2014, the Director ordered him to the Holot residency center, where he remained until the filing of the petition. Petitioner 1 filed a request for asylum that has not yet been decided. Petitioner 2 is a 35 year old citizen of North Sudan, born in the Darfur region. He claims that in the course of his university studies he was politically active in the Sons of Darfur movement, and as a result, was twice imprisoned without trial, beaten and held under inhuman conditions. In 2004, following his release from prison, Petitioner 2 fled from North Sudan to Libya. In 2008, when the Libyan authorities began to extradite members of the movement to North Africa, Petitioner 2 fled Libya, and on Nov. 17, 2008, infiltrated into Israel. Upon arrival, he was held in custody for five months. Following his release from custody, he lived in Jerusalem and in Tel Aviv, and worked in hotels. In February 2014, Petitioner 2 was ordered to the Holot installation, where he has been since March of that year. According to him, he was ordered to stay in Holot after he refused to leave Israel to a third country. Petitioner 2 also filed a request for asylum that has not yet been decided.

The other petitioners are human rights organizations: The Hotline for Refugees and Migrants; The Association for Civil Rights in Israel; ASSAF – Aid Organization for Refugees and Asylum Seekers in Israel; The Worker’s Hotline; Physicians for Human Rights – Israel; and The African Refugee Development Center.

16. The petition challenges both elements of Chapter A of the Amendment. The first arrangement challenged is that of custody by virtue of sec. 30A of the Law. Although the period of custody has been shortened from one year to three months, the Petitioners are of the opinion that the section nevertheless remains unconstitutional. The Petitioners argue that, like Amendment 4, section 30A in its current form permits holding a person in custody even when there is no practical expectation of his removal form the country. Under these circumstances, they argue that this constitutes unlawful arrest.

The second arrangement challenged by the Petitioners is the residency center that, as noted, was established under Chapter D of the Law. According to the Petitioners, Chapter D suffers from a number of constitutional defects that justify the annulling of the entire chapter. Their main argument is that the period of custody in the residency center – although limited to twenty months – is still extremely long in relation to what is accepted in the world, and significantly violates the rights of the infiltrators. The Petitioners are of the opinion that the purposes of Chapter D are also improper. Their primary argument in this regard is that the true purpose of the provisions of Chapter D is to encourage the infiltrators to leave the state “by means of breaking their spirit, deterrence, and separation of populations”. This, they argue, is not a proper purpose when deportation of the concerned group is prohibited. In any case, the Petitioners argue, the residency center does not achieve its purpose in view of the fact that after their release from the center, they will return to the urban centers and establish themselves there. The Petitioners also make numerous arguments in regard to the individual arrangements in Chapter D, and particularly in regard to the arrangement that authorizes the Director to order that an infiltrator staying in the residency center be transferred to detention if he be found to have violated various rules of the residency center.

In light of the above, the Petitioners ask that this Court annul for a third time the provisions of the Law as amended in the Amendment that is the subject of the petition.

17. The Knesset and the State are of the opinion that the petition should be denied. According to them, the purposes of the Law are proper, and the arrangements therein are proportionate. According to the Knesset, there are substantive differences between the arrangement that was overturned in the Eitan case and the arrangement enacted to replace it, which is challenged in this petition. The changes introduced by the Knesset in the legislative arrangement – among them a reduction of the maximum period of detention to three months; shortening the maximum period for being held in a residency center to twenty months; limiting the duty of reporting in the residency center; shortening the periods for transfer of an infiltrator from a residency center to detention, and instituting automatic judicial review of such a decision by the detention tribunal – resolved, it is argued, the constitutional defects found in the previous arrangement. Given the margin of legislative appreciation granted to the legislature, the Knesset is of the opinion that, in this petition, an interpretive solution should be preferred to Supreme Court intervention in legislation. This is particularly so in view of the fact that we are concerned with a third constitutional review of the same law, and in view of the fact that the Law touches upon the designing of immigration policy, which is a subject at the core of the State’s sovereign authority.

The State argues that although the provisions of Chapter D in regard to a residency center infringe the right to liberty, they do not deny it. It is argued that the changes introduced by the Knesset in this arrangement significantly limit the scope of the infringement, and they pass the criteria of the Limitation Clause. It is similarly argued that the provisions regarding placing a person in detention were enacted for a proper purpose and meet the criteria of proportionality.

Requests to join the Petition

18. Four associations and organizations asked to join the petition as amici curiae. The first, the Kohelet Policy Forum (hereinafter: the Forum), is a public association that acts “for the strengthening of Israeli democracy, the advancement of individual freedom and encouraging the implementation of free-market principles in Israel, and for the establishing of the permanent status of Israel as the nation state of the Jewish nation”. According to the Forum, the purposes of the Law – which are the stemming of the infiltration phenomenon and the prevention of future infiltration, along with preventing the permanency of the presence of infiltrators unlawfully present in Israel and ensuring their exit – are proper. It is further argued that in accordance with the accepted Israeli normative structure, domestic law takes precedence over the provisions of international law. The Forum therefore argues that recourse should not be made to the provisions of international law in the framework of constitutional review of the Law.

19. The second association that requested to join the petition as an amicus is the Legal Forum for Israel, which acts “for good governance in general, and in the judiciary in particular, including in the area of the separation of powers and the balances among the three branches of government”. In brief, the association argues that the petition should be denied first and foremost in light of the broad margin of discretion granted to the legislature as a substantive element of the principle of separation of powers. It is argued that in the instant case the margin of discretion is particularly broad, given that the primary issue – the period of time that an infiltrator may be held in custody and in a residency center – is “quantitative” in nature.

20. The third association, requesting to join the petition as a respondent or alternatively as an amicus is the Eitan - Israeli Immigration Policy Center, which acts “for the establishing of an orderly immigration policy for Israel”. Eitan’s main argument is that an examination of the constitutionality of the Law must also address the necessary balance between the rights of the infiltrators and the rights of the residents of the cities in general and those of south Tel Aviv in particular. In Eitan’s view, we are concerned with a “vertical balance” in which the interests of Israel’s citizens and residents must be shown preference. It is therefore argued that the Law’s arrangements are not only proportionate but necessary, inasmuch as there will otherwise be disproportionate harm to the rights of the city residents.

21. The fourth organization requesting to join the petition is the Concord Research Center for Integration of International Law in Israel (hereinafter: the Concord Center). The Concord Center emphasizes that international law grants states the right and authority to enforce their immigration laws by means of removing aliens unlawfully present in their territory. It further notes that there is nothing wrong in principle with adopting detention as a means for ensuring the enforcement of decisions in regard to deportation and removal. However, it explains that the use of this means is subject to such fundamental principles as necessity, proportionality and reasonableness. According to the Concord Center, the Law’s provisions are not consistent with those principles. In its view, the Law lacks a clear connection between the authority to hold a person in custody or in a residency center and the practical possibility to deport a person defined as an infiltrator form Israel. It is argued that, in practice, the absence of such a connection allows for the arbitrary violation of the right to liberty, which is prohibited under international law.

Discussion and Decision

22. As noted, the question before the Court concerns the constitutionality of two arrangements in the Law. The starting point for the constitutional examination is that the Court must act with restraint in reviewing laws enacted by the Knesset, which express the will of the people (see, for example: HCJ 1213/10 Nir v. Speaker of the Knesset, para. 27 of the opinion of President D. Beinisch (Feb. 23, 2012) (hereinafter: the Nir case); HCJ 1548/07 Israel Bar Association v. Minister of Public Security, para. 17 (July 14, 2008)). This is particularly true in this case in which we are concerned with the constitutional review of a law that was overturned by the Court, and reenacted by the Knesset for a third time. In the Eitan case, Justice Vogelman noted that examining the constitutionality of a law under such circumstances requires particular care (ibid., para. 23). However, that does not mean that the Law is immune to judicial review. I made a similar point in the Eitan case:

…there is a constitutional dialogue between the judiciary and the legislature: the Knesset enacts a law, which it believes meets the constitutional criteria; the Court examines the law under the lens of constitutional review. Occasionally, upon review, the Court arrives at the conclusion that the law, or some part thereof, is unconstitutional. That does not end the dialogue: if necessary, the Knesset legislates anew (see: Aharon Barak, The Judge in a Democracy, 383-384 (2004) (Hebrew), [236-238 (2006) (English)]). However, after the Court has determined that a piece of legislation is unconstitutional, the legislature must not reenact it unchanged, or with changes that do not resolve the contradiction of the Basic Laws that the Court pointed out, as such legislation “constitutes a violation of the Basic Laws themselves” (ibid., 388) [ibid., para. 3 of my opinion].

We are, therefore, required to examine the constitutionality of the said Law yet again. As is well known, constitutional review is not performed in a vacuum. It is performed against the background of the reality with which it was intended to contend (see: the Adam case, para. 1 of the opinion of Justice U. Vogelman). As described above, the provisions of the Law that are being challenged in these proceedings comprise means that the State employed as part of an attempt to contend with the infiltration phenomenon. According to the data before us, the magnitude of this phenomenon is in a downward trend. However, inasmuch as the number of infiltrators living in Israel is still large, the need to contend with the challenges that derive therefrom still remains. It is against this background that I will begin my constitutional examination.

23. In principle, constitutional review is performed in stages. First, we must examine whether the law infringes a protected human right. If the answer is negative, then the constitutional examination comes to an end. If the answer is positive, then we must examine whether it is lawful in accordance with the criteria of the Limitation Clause (see, for example: HCJ 2605/05 Academic Center of Law and Business v. Minister of Finance, IsrSC 63(2) 545, 594 (2009) [http://versa.cardozo.yu.edu/opinions/academic-center-law-and-business-v-... (hereinafter: the Prison Privatization case)). These rules are based upon the constitutional view that constitutionally protected human rights are relative, and may be limited where justified.

24. The Limitation Clause establishes four cumulative conditions that a violating law must meet in order for the infringement to be lawful. First, constitutional rights cannot be infringed except by a law that befits the values of the State of Israel as a Jewish and democratic state. Additionally, the law must serve a proper purpose. In brief, a purpose is proper if it is intended to realize important public interests (see, for example: HCJ 6893/05 Levi v. Government of Israel, IsrSC 59(2) 876, 889 (2205); HCJ 6784/06 Major Schlitner v. IDF Director of Pension Payment, para. 78 of the opinion of Justice A. Procaccia (January 12, 2011); Aharon Barak, Interpretation in Law – Constitutional Interpretation, 525 (1994)). Finally, the infringement of the right must be proportionate. The proportionality of a statute is tested by means of three subtests. The first subtest is the rational connection test, whereby we must examine whether the statute realizes the purpose for which it was enacted. The means selected must lead to achieving the purpose of the statute in a likelihood that is not remote or merely theoretical (see the Nir case, para. 23 of President D. Beinisch’s opinion; HCJ 7052/03 Adalah – The Legal Center for Arab Minority Rights in Israel v. Minister of Interior, IsrSC 61(2) 202, 323 (2006) [http://versa.cardozo.yu.edu/opinions/adalah-legal-center-arab-minority-r...(hereinafter: the Adalah case); HCJ 6133/14 Gurevitz v. Knesset, para. 54 of the opinion of Deputy President E. Rubinstein (March 26, 2015) (hereinafter: the Gurevitz case); Aharon Barak Proportionality in Law –Constitutional Rights and their Limitations, 377, 382 (2010) (Hebrew) (hereinafter: Barak – Proportionality). The second subtest – the less restrictive means test – considers whether among the means that may achieve the purpose of the statute, the legislature has chosen the means that least infringe human rights. The legislature is not required to select alternative means that do not achieve the purpose to the same extent or to a similar extent as the means selected (the Adam case, para 24; HCJ 3752/10 Rubinstein v. Knesset, para. 74 of the opinion of Justice E. Arbel (September 17, 2014)). The third subtest is the proportionality stricto sensu test. In the framework of this test, we must examine whether there is a proper relationship between the benefit derived from realizing the purposes of the statute and the attendant infringement of constitutional rights. This is a value-based test that is based upon a balance between rights and interests. It calculates the social importance of the infringed right, the type of the infringement and its extent, against the benefit of the statute (see HCJ 6304/09 Lahav - Israel Organization of the Self-Employed v. Attorney General, para. 116 of the opinion of Justice A. Procaccia (September 2, 2010); HCJ 6055/95 Tzemach v. Minister of Defence, IsrSC 53(1) 241, 273 (1999) (hereinafter: the Tzemach case) [http://versa.cardozo.yu.edu/opinions/tzemach-v-minister-defense]).

If the Court concludes that the statute does not meet the conditions of the Limitation Clause, then it is unconstitutional. In such a case, the Court must determine how to remedy the unconstitutionality (see, for example: HCJ 2334/02 Shtanger v. Speaker of the Knesset, IsrSC 58(1) 786, 792, para. 5 of the opinion of President A. Barak (2003)); HCJ 2254/12 Samuel v. Minister of Finance, para. 8 of Justice N. Hendel’s opinion (May 15, 2014)).

25. I will now turn from general principles to the constitutional review of the Law that is the subject of these proceedings. First I will examine sec. 30A of the Law, by virtue of which infiltrators may be held in detention for three months. I will then examine Chapter D of the Law, which rearranges the operation of the residency center for infiltrators.

Section 30A of the Law – General

26. The point of departure for the examination is sec. 30(a) of the Law, which authorizes the Minister of Defence to issue a deportation order to an infiltrator. The deportation order serves as legal grounds for holding the infiltrator in custody until his deportation, subject to various provisos (also see: the Eitan case, para. 42). Section 30A of the Law, which was reviewed in the Adam case, allowed for the custody of an infiltrator against whom a deportation order was issued for a maximum period of three years. Section 30A, as worded in Amendment 4, and which was reviewed in the Eitan case, established a shorter, one-year maximum period for detention. The section currently under review again shortened the maximum period of custody, setting it at three months. Section 30A states:

Bringing before the Director of Border Control and his Authorities (Temporary order) 5774-2013)

30(A)(a) An infiltrator located in detention will be brought before the Director of Border Control no later than five days from the beginning of his being taken in custody.

(b) The Director of Border Control may release an infiltrator with a monetary guarantee, with a bank guarantee, or another suitable guarantee, or on conditions that he shall deem appropriate (in this law – guarantee), if he is convinced of one of the following:

(1) Due to the infiltrator’s age or to his physical condition, including his mental health, his being held in custody is likely to harm his health as aforesaid, and there is no other way to prevent the aforesaid harm;

(2) There are other, special humanitarian grounds from those stated in paragraph (1) justifying the release of the infiltrator with a guarantee, including if as a result of his being held in custody, a minor will be left unsupervised;

(3) The infiltrator is a minor who is unaccompanied by his family members or a guardian;

(4) His release will assist in the infiltrator’s deportation proceedings;

(5) If 60 days have passed from the date when the infiltrator filed a request for a visa and permit for residence in Israel under the Entry into Israel Law and processing of the request has not yet begun.

(c) The Director of Border Control is authorized to release an infiltrator with guarantee if three months have passed from the beginning of the infiltrator’s being held in custody.

(d) Notwithstanding the provisions of subparagraph (b)(2) or (4) or (5), an infiltrator will not be released with guarantee if the Director of Border Control is convinced of the existence of one of the following:

(1) His deportation from Israel is prevented or delayed due to a lack of full cooperation on his part, including in regard to the matter of verifying his identity or arranging the proceedings for his deportation from Israel;

(2) His release would endanger national security, public order or public health. In this regard, the Director of Border Control may rely upon an opinion of the authorized security agencies that activity that may threaten the security of the State of Israel or its citizens is being carried out in the infiltrator’s country of origin or the area of his residence, unless the Director of Border Control is convinced that due to his age or his state of health, holding him in custody is likely to harm his health and there is no other way to prevent this aforesaid harm.

(e) His release with guarantee from detention will be contingent on conditions which the Director of Border Control shall determine in order to ensure the appearance of the infiltrator for deportation from Israel on the determined date, or for other proceedings according to law. The Director of Border Control may, at any time, review the guarantee conditions if new facts be discovered or if the circumstances have changed since the decision to release upon guarantee was rendered.

(f) In regard to an infiltrator released from detention with a guarantee according to this section, the decision regarding his release with a guarantee will be deemed a legal credential for his stay in Israel for the period of his release under guarantee. The validity of this decision regarding release upon guarantee is contingent upon meeting the conditions for release as aforesaid.

(g) Where a guarantor requests to cancel the guarantee that he provided, the Director of Border Control may grant the request or reject it, provided that his decision will ensure the reporting of the infiltrator by supplying a different guarantee. If it is not possible to ensure the appearance of the infiltrator by supplying a different guarantee, the infiltrator will be returned to custody.

(h) If an infiltrator is deported from Israel at the time determined, he and his guarantors will be released from their guarantee and the monetary guarantee will be returned, as may be the case.

(i) If the Director of Border Control discovers that the infiltrator released upon guarantee violated or was about to violate one of the conditions of his release upon guarantee, he is may instruct by order that the infiltrator be returned to custody, and he may order the confiscation or realization of the guarantee.

(j) No order will be given to confiscate or realize a guarantee as aforesaid in subsection (i) until after the infiltrator or guarantor, as the case may be, has been given an opportunity to present his arguments, if it is reasonably possible to locate him.

(k) If the Director of Border Control ordered an infiltrator’s release upon guarantee in accordance with this section, and the conditions for granting an order for the infiltrator to stay under section 32D are met, the Director shall issue a residence order staying as stated in that section.

Like the arrangement under Amendment 4 that we reviewed, sec. 30A in its current form regulates the authorities of the Director in all that relates to holding in custody and release from custody. As in the past, the arrangement was enacted in the framework of a temporary order in force for three years, and its incidence is prospective (sec. 8(b) of the Amendment to the Law).

27. As noted, sec. 30A authorizes the Director to hold an infiltrator in custody for a maximum period of three months (sec. 30A(c) of the Law), subject to the grounds for release upon guarantee, among them the age of the infiltrator, his state of health or other humanitarian considerations (sec. 30A(b) of the Law). In addition, if the infiltrator filed an application for an Israeli residency permit and the processing of the request has not yet begun sixty days following its submission, this will constitute additional grounds for release on guarantee. Along with this, sec. 30A permits holding an infiltrator in custody for a longer period if he does not cooperate in his deportation or if his release poses a threat. All of the above applies unless the Director is convinced that due to the individual circumstances of the infiltrator, holding him in custody is likely to harm his health (sec. 30A(d) of the Law). An infiltrator held in custody must be brought before the Detention Review Tribunal (hereinafter: the Tribunal) no later than ten days from the beginning of his being held (sec. 30E(1) of the Law). If the Tribunal approves holding the infiltrator in custody, he will be brought for periodic review of his matter within a period that will not exceed thirty days (sec. 30D of the Law). The Tribunal’s decision is subject to appeal before an administrative affairs court (sec. 30F of the Law).

28. These, in brief, are the provisions concerning holding an infiltrator in detention and release therefrom. The main difference between these provisions and those that we examined in the Eitan case is the maximum period of time that an infiltrator may be held in detention. While, as noted, Amendment 4 permitted holding an infiltrator for a year, the current arrangement restricts the period of detention to three months. Similarly, the period until the supervised release of an infiltrator whose request for a residency permit has not begun to be processed was reduced from three months to sixty days. In addition, grounds for supervised release based upon the infiltrator’s state of mental health were added (sec. 30A(b)(1), and other grounds for supervised release, which concerned the period of time until the rendering of a decision on the residency request, were cancelled.

29. The Petitioners argue that even in its present form, sec. 30A does not meet the criteria of the Limitation Clause. They argue that this arrangement – like that examined in the Eitan case – permits holding an infiltrator in detention without regard for whether there is any effective possibility of his removal. According to the Petitioners, this can be understood from the Knesset’s decision not to include an express provision in the Law that an infiltrator be released from detention if, at the conclusion of the identification process, there is no practical possibility of removing him from Israel within a reasonable period of time. They argue that this shows that the purpose of sec. 30A is not to determine the identity of the infiltrators and exhaust the existing avenues for their removal, but rather to deter potential infiltrators. The Petitioners are of the opinion that deterrence is not a proper purpose. They therefore argue that sec. 30A in its present form must also be annulled.

30. In its response, the State argues that sec. 30A was enacted for a proper purpose, and that it does not infringe rights beyond what is necessary. According to the State, the main purpose of the section is the exhausting of procedures for the identification of the infiltrator, and providing the necessary time for establishing avenues for his removal from Israel. In view of this purpose, the State is of the opinion that the three-month period established in the Law is proportionate.

31. In its response, the Knesset joined the position of the State that sec. 30 is constitutional. The Knesset notes that while the section is also premised upon the additional purpose of reducing incentives for potential infiltrators to reach Israel – regarding which the Court expressed doubt as to its constituting a proper purpose – inasmuch as the period of custody is consistent with achieving the purposes of identification and exhausting avenues for removal, it is of the opinion that the present arrangement’s infringement of rights does not exceed what is necessary. Finally, the Knesset argues that even though the present arrangement does not expressly include grounds for release in circumstances in which the process of identifying a particular infiltrator and the examination of avenues for his deportation have been exhausted, it would be better to interpret the arrangement in a manner that is consistent with the Basic Laws than to annul it.

After considering the arguments of the parties, I have reached the conclusion that, subject to the interpretation that will be presented below as to the arrangement for custody, the petition should be denied in this regard.

Infringement of Constitutional Rights

32. That sec. 30A infringes the infiltrators’ constitutional right to liberty is undisputed. Bearing in mind that in the previous proceedings the Court addressed the importance of the right to liberty at length (the Adam case, paras. 71-76; the Eitan case, para. 46), I will suffice with a summary. The right to personal liberty is established in sec. 5 of Basic Law: Human Dignity and Liberty, according to which: “There shall be no deprivation or restriction of the liberty of a person by imprisonment, arrest, extradition or otherwise”. The right to liberty is granted to every person present in Israel, even if he entered its territory illegally. This right “[…] is one of the foundations of the democratic regime” (the Eitan case, para. 46; and see, for example: the Prison Privatization case, at pp. 597-598). Holding an infiltrator in detention violates his right to physical liberty, which also has consequences for other rights. Along with the violation of the right to liberty, holding an infiltrator in detention also violates his right to dignity (the Eitan case, para. 47). Of course, shortening the period of detention does not, itself, eliminate the said violation of the constitutional rights of the infiltrators.

33. When constitutional rights are violated, we must ascertain whether the infringement is lawful. The first condition – that the infringement is effected by a law – is met. In the present proceedings – as in the previous proceedings – the parties did not expand upon the second condition, which concerns the Law’s consistency with the values of the State of Israel. Therefore, I will proceed upon the assumption that this condition is met, and I will turn to the additional criteria of the Limitation Clause – whether the provisions of the infringing law were intended for a proper purpose, and whether the infringement is not greater than necessary.

The Purpose of Detention

34. In its response and in the course of the hearing, the State declared, as noted, that the primary purpose of sec. 30A is “to exhaust the procedures for identifying the infiltrator, and the allowing the necessary time for the State to arrange avenues for voluntary emigration or deportation from Israel” (para. 119). As held in the Eitan case, the purpose of removal, itself, is proper. “Who will be permitted to enter the territory of the state is a question of a purely sovereign character. The state enjoys a broad prerogative to decide who will enter its gates, for how long, and under what conditions, in a manner that will permit its proper conduct and the protection of the rights of its citizens and residents” (the Eitan case, para. 51). Holding an infiltrator in detention in order to determine his identity and for the purpose of exhausting avenues for his removal from Israel is consistent with the case law, according to which a person cannot be held in detention if it is not possible to deport him within a certain period of time. Indeed, “[…] the validity of an arrest by virtue of a deportation order does not persist in the absence of an effective removal proceeding” (the Adam case, para. 2 of my opinion; and see: HCJ 4702/94 Al Tai v. Minister of the Interior, IsrSC 49(3) 843, 851 (1995) (hereinafter: the Al Tai case)). This Court reiterated this rule in the Eitan case:

This is the rule that has been established in our case law and there is no other: holding a person in detention requires that there be an effective removal process. In order to deny a person’s liberty for the purpose of his removal, a general declaration that the state intends to do so is not sufficient. What is required is consistent activity whose purpose is to achieve an avenue for deportation in due course (para. 199).

It is therefore possible to hold infiltrators in detention if that is necessary in order to identify them and exhaust the avenues for their removal (and see: Guy Goodwin-Gill and Jane McAdam, The Refugee in International Law 462 (3rd ed.) (Oxford University Press, 2009) (hereinafter: Goodwin-Gill and McAdam, Refugee)).

35. Another underlying purpose of the detention arrangement concerns creating a “normative barrier…that will reduce the motivation of potential infiltrators to reach Israel” (Explanatory Notes, p. 424). The meaning of this purpose is general deterrence (the Eitan case, para. 52). I referred to the purpose of deterrence in the Eitan case, noting that “general deterrence, in and of itself, is not a legitimate purpose” (ibid., para. 2 of my opinion, emphasis original). Nevertheless, there is nothing wrong with a purpose of deterrence when it is attendant to another legitimate purpose. As held in HCJ 7015/02 Ajuri v. IDF Commander in the West Bank, IsrSC 56(6) 352, 374 (20020 [http://versa.cardozo.yu.edu/opinions/ajuri-v-idf-commander-west-bank]:

The military commander may not, therefore, adopt a measure of assigned residence merely as a deterrent to others. Notwithstanding, when assigning a place of residence is justified because a person is dangerous, and the question is merely whether to exercise this authority, there is no defect in the military commander’s taking into account considerations of deterring others [para. 27].

While this was stated in a different context, it is nevertheless appropriate to the matter before us. It was similarly held in the Eitan case that “there is nothing wrong with the fact that detention of an infiltrator, intended to advance the process of his deportation, has an accompanying deterrent effect…however, that should not be understood as meaning that an infiltrator can be held in detention for the purpose of deterring others even after his identity has been established, and even after it is found that there is no effective possibility of removing him from the country” (para. 52; and compare the opinion of Justice I. Amit, ibid.).

36. Bearing in mind that sec. 30A is grounded upon two purposes, we must consider the relationship between them and focus upon the dominant of the two (the Adalah case, p. 319). Indeed, “[…] Knesset legislation may have more than one purpose. Our case law has previously held that that in a situation in which a law has several intertwined purposes, great weight will be given to its dominant purpose, and it will be the focus of the judicial review. Nevertheless, the other, secondary purposes of the law should not be ignored, and their consequences for human rights will also be examined” (HCJ 4769/95 Menachem v. Minister of Transportation, IsrSC 57(1) 235, 264 and the citations there (2002)).

37. What, then, is the dominant purpose of sec. 30A? An examination of the legislative history of this section shows that the primary purpose is the identification of the infiltrator and the exhausting of avenues for his removal from Israel, while deterrence is at most a secondary, attendant purpose. Thus, the purpose of identification and exhausting avenues of removal is granted a central place in the Explanatory Notes to sec. 30A:

Establishing a three-month period of detention […] is necessary, inter alia, in order to exhaust the procedures for identifying and deporting the infiltrator, among them identifying his place of origin, arranging travel documents for him, and exhausting avenues for his emigration or removal from Israel (Explanatory Notes, p. 425; emphasis added – M.N.).

The importance of this purpose can also be seen in the statement by the Minister of the Interior in the course of the deliberations of the Internal Affairs and Environment Committee on the bill:

I think that the framework that we are presenting today, of 3 months of detention, we will argue here about what that means. With all due respect, the Knesset can define what it sees as the efficacy of the procedure for examining the removal. I don’t know that the Even-Shoshan Dictionary, Mr. Knesset Legal Advisor, precisely defines what is the efficacy of the examination of the removal […] we are very interested that the procedure be effective. We need time. It is very difficult when legal advisors define for us unscientific formulas for what constitutes the time for the effectiveness of a removal procedure. I thought that three months would not necessarily be enough for us (Protocol of Session No. 428 of the Internal Affairs and Environment Committee of the 19th Knesset, p. 7 (Dec. 2, 2014)).

The Knesset also argued in its response that in examining the constitutionality of sec. 30A of the Law, it is sufficient to focus upon the purpose of identification and removal (para. 88). According to its approach, the need for a process of identification of infiltrators and the exhausting of avenues for their removal from Israel is therefore at the base of sec. 30A of the Law in its current language. In the hearing before us, the State also emphasized that according to its approach, this is the primary purpose of this arrangement.

38. Locating the dominant purpose does not suffice with an examination of the legislative history of the law. The question whether a particular purpose is the dominant purpose of the law is also examined in light of the specific arrangements that it establishes (compare: the Adalah case, pp. 336-339). Can the primary purpose of sec. 30A be discerned from its arrangements? According to the Petitioners, the current Law – like the arrangement that we reviewed in the Eitan and Adam cases – does not make holding an infiltrator in custody contingent upon identification or removal proceedings. They argue that in the absence of a clear connection in the Law between detention and the reasonable possibility of removal, “the real purpose of this section [sec. 30A – M.N.]” is the improper purpose of deterrence. As opposed to this, the Respondents first argued in the context of this petition that the present arrangement can be interpreted in a manner that establishes a clear relationship between holding in custody and the identification of the infiltrator and the existence of an effective removal process. After considering the parties’ arguments, I am of the opinion that in view of the present legislative framework, we should accept the position of the Respondents.

39. There is no dispute that there is a facial connection between holding the infiltrator in detention and the purpose of his identification and the exhaustion of avenues for his removal from Israel. We addressed this in the Eitan case:

No one disputes that holding an infiltrator in detention facilitates the possibility of his identification in an orderly, controlled procedure, which is a matter of great importance against the background of the special characteristics of the infiltrator population which did not enter by means of regular border crossings and official identity documents. It is also clear that detention aids in carrying out the procedures for deportation from Israel, in that it ensures that the person will not “disappear”, and it saves the possible pursuant problems of locating him (and compare: sec. 13F(a)(2) of the Entry into Israel Law) [ibid., para. 54].

Moreover, I believe that there are grounds for stating that under the present Law, holding a person in detention is subject to this purpose. The starting point is in the provision of sec. 30(a) of the Law, which empowers the Minister of Defence to order in writing that an infiltrator be deported, and establishes that a deportation order will serve as legal grounds for holding him in detention until his deportation. Authority to hold an infiltrator in detention is therefore contingent upon the existence of a deportation order. Similar authority – permitting the holding of a person who is not lawfully present in the country in detention, subject to the issuance of a deportation order – can also be found in the Entry into Israel Law. The time periods for detention are similar in the two laws (three months in the present Law and sixty days in the Entry into Israel Law). I accept the view of the Respondents that the difference in the time periods stems from the complexity of the process of ascertaining the identity of infiltrators who, as opposed to others unlawfully present in the country, did not enter through a border control station. Often, infiltrators carry no identification papers, and significant factual disputes arise as to their country of origin (see, for example: AAA 6694/13 Gidai v. Ministry of the Interior – State of Israel (Feb. 15, 2015); AP 37598-06-10 (Central District) Gebremaiam v. Ministry of the Interior (July 6, 2010)). In view of the arrest’s contingency upon the issuance of a deportation order, the case law has construed the arrest authority in the Entry into Israel Law as auxiliary to the deportation authority, the purpose of which is to ensure that the detainee will leave Israel (see: HCJ 1468/90 Ben Yisrael v. Minister of the Interior, IsrSC 44(4) 149, 151-152 (1990) (hereinafter: the Ben Yisrael case); LAA 696/06 Elkanov v. Detention Review Tribunal, para. 16 (Dec. 18, 2006)). This is so even though this Law does not comprise an express provision connecting the person’s arrest to the possibility of his deportation. In view of the similarity of the arrangement under review and that established under the Entry into Israel Law, I believe that we can apply that rule to this case by analogy. My conclusion is further supported by the provisions of secs. 30D and 30E of the present Law, which make holding an infiltrator in detention subject to periodic review within no more than thirty days. The requirement of periodic review of the detained person helps ensure that there are still grounds for holding him in detention, and supports the conclusion that the detention is intended to aid in the process of the infiltrator’s deportation. Deterrence is but ancillary thereto (see and compare: the Eitan case, para. 199).

40. The said provisions were also included in the arrangement that was presented for our review in the Eitan case. Nonetheless, the Eitan case held that there was a gap between the arrangement under sec. 30A of the Law and the declared purpose of detention – identifying the infiltrator and arranging avenues for his exit from Israel. That finding was based upon the absence of relevant arrangements such as an express provision conditioning the continued detention of an infiltrator upon the existence of “a prospect of removal that is expected to be realized within a reasonable time” (the Eitan case, paras. 55, 199; and see the Adam case, para. 34 of the opinion of Justice U. Vogelman). The legislative arrangement now before us also lacks an express provision that makes detention of an infiltrator contingent upon the existence of a possibility of his removal. However, I believe that the shortening of the period of detention now – as opposed to in the Eitan case – makes it possible to construe the Law in the manner proposed by the Knesset. In the Eitan case, Justice U. Vogelman was willing to assume that an interpretive path could be adopted, but he did not see “how, in this matter, confronted by a legislative provision establishing a one-year period for detention…it is possible to refrain from invalidating it” (para. 202). He further held that “a section of the law that authorizes a person to hold someone in detention for an extended period for the purpose of his deportation (as opposed to the limited timeframe of the Entry into Israel Law) must express the connection between the removal process and the detention” (para. 199, emphasis added – M.N.). As opposed to the arrangement under review in the Eitan case, the new timeframe for detention is similar to the timeframe under the Entry into Israel Law. The period is also not exceptional in comparison to those found in other countries for the purpose of identifying the infiltrator and exhausting avenues for deportation. Most western countries limit the period for detaining illegal aliens awaiting deportation to a period of a few months. In the absence of special circumstances, the accepted time periods average between one and six months (for details: see the Eitan case, paras. 73-77; for an up-to-date survey of the average period of detention for illegal aliens in Europe, see: The Use of Detention and Alternatives to Detention in the Context of Immigration Policies, Synthesis Report for the EMN Focused Study (2014)). A maximum period of three months does not, therefore, deviate from what is acceptable in most countries in which the purpose of detention is similar to the declared purpose in the matter before us (compare: the Eitan case, para. 72).

41. In view of all the above, my conclusion is that the provisions of the current Law – like the provisions of the Entry into Israel Law – can be understood as intended for the identification of the infiltrator and for exhausting avenues for his removal from Israel. Therefore, if it is found that the continued detention of an infiltrator cannot serve the purpose of identification and removal, then there will be no justification for his continued detention. That will be the case even if three months have not passed since the beginning of his detention, for otherwise it would be possible to hold a person under arrest arbitrarily. Such a result would not be consistent with the fundamental principles of our legal regime. We ruled similarly in regard to the Entry into Israel Law:

From an examination of this section [sec. 13 of the Entry into Israel Law as then worded – M.N.] it is manifest that the purpose of the detention mentioned in subpara. (3) of the section [establishing that a person in regard to whom a deportation order has been issued may be detained until he leaves Israel or is deported – M.N.] is to ensure the exit of a person against whom a deportation order from Israel has been issued, or until his deportation therefrom…the sole source of authority for the detention of the Petitioner, according to the Respondents before us, is the provision of sec. 13(c) of the law. Having found that the continued detention of the Petitioner cannot serve the purpose for which it was permitted under sec. 13(c), there is no further justification for holding him under detention. (The Ben Yisrael case, at pp. 151-152, emphasis added – M.N.).

In that case, the Court held that it is possible to continue to detain an illegal alien as long as the detention is intended to serve the purpose for which it was originally instituted. That holding – based upon the purpose grounding the detention authority – was made despite the fact that the Entry into Israel Law does not comprise a relevant cause for release from detention (CA 9656/08 State of Israel v. Saidi, para. 26 (Dec. 15, 2011); and see: the Al Tai case, at p. 851; HCJ 199/53 A. v. Minister of the Interior, IsrSC 8 243, 247 (1954)). This is appropriate here, as well.

42. In addition, the choice of this interpretive possibility is consistent with one of the principles of our constitutional law according to which – to the extent possible – an interpretation that realizes the law is preferable to its voidance (see, for example: HCJ 5462/92 Zandberg v. Broadcasting Authority, IsrSC 50(2) 793, 808, 812 (1996) (hereinafter: the Zandberg case); HCJ 9098/01 Ganis v. Ministry of Building and Housing, IsrSC 49(4) 241, 257-258, 276 (2004) [http://versa.cardozo.yu.edu/opinions/ganis-v-ministry-building-and-housi... CA 6659/06 A. v. State of Israel, para. 8 (June 11, 2008)). It is also consistent with the principle cessante ratione legis cessat ipse lex – the rationale of a legal rule no longer being applicable, that rule itself no longer applies (Zadvydas v. Davis, 533 U.S. 678, 699 (2001) (hereinafter: the Zadvydas case)).

43. This approach is not unique to our system. The courts of other countries have also adopted a narrow construction of the authority to detain asylum seekers and illegal aliens. The most salient example – noted in both the Adam and Eitan cases – is the United States Supreme Court’s decision in the Zadvydas case. That case addressed the constitutionality of and American legal arrangement that permitted the detention of an illegal alien beyond the “regular” ninety-day period established by law in cases in which, for some reason, he was not deported. Inasmuch as the period of detention was not delimited, it appeared that detention could be indefinite. The Supreme Court (per Justice Breyer) interpreted the authority in accordance with its purpose – ensuring deportation – and held that a person could be detained only for the period of time necessary for his deportation, and only if there is an effective means for his removal (ibid., p. 699-700). Therefore, as a rule, supervised release of the alien should be ordered at the end of that period (ibid., p. 701). A similar ruling was made by the Australian Supreme Court (Plaintiff S4-2014 v. Minister for Immigration and Border Protection, paras. 21-35 [2014] HCA 34).

44. The interpretive conclusion that I presented above is also consistent with the provisions of international law. Under secs. 9, 26 and 31 of the Refugee Convention, a state may – subject to demands of necessity and proportionality – impose restrictions upon the freedom of movement of asylum seekers (and see: The 1951 Convention relating to the Status of Refugees and its 1967 Protocol (Andreas Zimmerman, ed., 2011) 1243, 1268 (hereinafter: Commentary to the Refugees Convention); R. v. Uxbridge Magistrates Court & Another Ex Parte Adimi [1999] EWHC 765, para. 26; Goodwin-Gill and McAdam, Refugees, at 522; The UN Refugee Agency [UNHCR], Alternatives to Detention of Asylum Seekers and Refugees, April 2006, POLAS/2006/03, at 6, para. 18 (hereinafter: UNCHR, Alternatives to Detention)). Although these sections treat of restrictions upon freedom of movement, according to the accepted interpretation they also apply to the detention of persons who unlawfully entered the state in order to file an asylum application (see, for example: James Hathaway, The Rights of Refugees under International Law 414-418 (Cambridge University Press, 2005) (hereinafter: Hathaway)).

45. The restriction of the movement of asylum seekers is permitted for achieving lawful purposes under international law (Commentary to the Refugees Convention, p. 1270). Among such lawful purposes, the directives of the UN Commission for Refugees mention, inter alia, preserving public order, including the sense of identifying an unlawfully present person; protecting public health; and protecting national security (The UN Refugee Agency [UNHCR], Detention Guidelines: Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum-Seekers and Alternatives to Detention 15-19 (2012) available at http://www.unhcr.org/505b10ee9.html (hereinafter: the Directives); and see: the Adam case, para. 92). The Directives also note that a person may be held in detention in order to ensure his deportation when there is such a possibility, and that detention solely for general deterrence or as punishment is improper (ibid., p 19). In addition, the state is required to evaluate the need for detention on the basis of the individual circumstances of the particular infiltrator, and must not use this means in a sweeping manner (ibid., p. 15; and see: International Law Commission, Draft Articles on the Expulsion of Aliens, art. 19 (2004), http://legal.un.org/ilc/texts/instruments/english/draft%20articles/9_12_2014.pdf).

46. Lastly, the interpretive conclusion in this matter is reinforced in view of the position of the State. In the oral hearing before the Court, the State declared, expressly for the first time, that despite the absence of a provision conditioning the continued detention of an infiltrator upon identification and removal proceedings, it recognizes that the detention authority is subject to a reasonable expectation of removal (Protocol of the Hearing of Feb. 3, 2015, pp. 4-5). This being the case as long as the infiltrator whose matter is being addressed cooperates in the proceedings for his removal from Israel (in this regard, see: sec. 30A(d) above, which permits the continued detention of an infiltrator if he does not cooperate in the proceedings for his deportation from Israel). This declaration by the State is of no insignificant weight in the matter before us.

47. The Petitioners referred us to the position expressed by the Knesset legal adviser in response to the bill, that it would be appropriate to create a written connection between the detention period and its purpose (Opinion of the Legal Adviser to the Knesset; and see: Position of the legal adviser to the Internal Affairs and Environment Committee, as expressed in the committee’s deliberations on the bill (Protocol of Session No. 429 of the Internal Affairs and Environment Committee of the 19th Knesset, at pp. 9-10 (Dec. 2, 2014)). The Petitioners complained that no express provision was ultimately included to establish that an infiltrator must be released if there was no reasonable expectation of his removal. I have considered this argument, but I see no reason to change my conclusion in the matter. Although including an express connection between detention and removal procedures would be desirable, my conclusion is, as aforesaid, that the present arrangement allows us to arrive at the same result through interpretation of the statute.

48. To summarize, I am of the opinion that viewing the matter in its entirety – the purpose of the Law, the shortening of the maximum period of detention, and the declarations of the Respondents – it is possible to interpret the Law in a manner that establishes the missing connection. I am aware that this interpretive result differs from our decisions in previous proceedings. However, adopting this interpretive approach – which is reasonable and possible in the present case – was not possible in regard to the arrangement reviewed in the Eitan case (see, ibid., para. 200-201; and see: the Zandberg case, p. 813). This is so because the previous maximum detention period was not consistent with the declared purpose of the Law. Had this interpretation been applied in the Eitan case, it would have allowed a person to be held in detention for an unreasonably long period. As a result, Justice U. Vogelman noted in the Eitan case: “I agree with the view of my colleague [President A. Grunis – M.N.] according to which an interpretive effort must be made in order to refrain from voiding Knesset legislation. However, in this case in which we are confronted with a legislative provision that establishes a one-year period for detention (a period that is, in my view, disproportionate), I do not see how we can refrain from voiding it (ibid., para. 202; and see: para. 2 of my opinion in the Eitan case). As noted, the matter is different in the case before us. As explained in detail above, the maximum period established by the law now under review is a relatively shorter period that is consistent with and supports the purpose of the Law.

49. Against this background, and in reliance upon the interpretation outlined for the Law, I will now turn to an examination based upon the proportionality tests.

The Proportionality Tests

50. As I will explain, I am of the opinion that in view of the interpretation of the Law, sec. 30A passes the proportionality tests. In the Eitan case, we expressed doubt as to whether the legislative approach under review actually presented a rational connection between detention and realizing the legislative purpose. That was so in view of the absence of an express provision conditioning the continued detention of an infiltrator upon the reasonable expectation of his removal from Israel. This problem was resolved in this case. Given the relationship between detaining an infiltrator and the existence of an identification process and the exhausting of avenues for deportation, it is difficult to argue that the Law currently under review does not meet the rational connection test. The current Law also meets the second proportionality test – the less harmful means test. Although there are various possible alternatives to detention, foremost among them open or semi-open residency centers, those alternatives do not realize the purpose of the Law to a similar degree of effectiveness (the Eitan case, paras. 60-66). It therefore remains to examine the Law under the proportionality stricto sensu test, which is the primary test in the matter before us.

51. As noted, the third proportionality test examines whether there is an appropriate relationship between the benefit that will accrue to the public from the legislation and the infringement of the constitutional right that will be caused by its implementation. In the Eitan case, we explained that even though the arrangement established under sec. 30A benefits the public, its benefit is limited. On that basis, we held that the Law as then worded infringed constitutional rights to a greater extent than was necessary. That conclusion was founded upon two primary pillars: First, the Law’s “default position” was that persons unlawfully present could be detained for a maximum period of one year when there was no possibility of their removal. Second, the holding that even on the assumption that the detention of an infiltrator was subject to the conducting of effective removal proceedings, a detention period of up to one year was disproportionately long. We therefore found (para. 71):

Such detention is permissible only in order to protect the state’s sovereignty, for the purpose of the removal of those who are unlawfully present from the country. It cannot be implemented as a punitive act that is not part of a criminal process. In accordance with the demands of the Limitation Clause, it must be implemented only when necessary, when there is no alternative means, and for a proportionate period of time.

Against the background of our holding in the Eitan case, I am of the opinion that the current Law also meets the third proportionality test. Shortening the maximum detention period, subject to the purpose I addressed above, significantly reduces the infringement of the rights of the infiltrators. As aforesaid, a three-month period is not exceptional, both in comparison to other arrangements in Israeli law of similar purpose, as well as in comparison to similar arrangements in various other western states. It would appear that no one would argue that detention, even for a short period, does not seriously infringe the rights of the detainee. However, when we are concerned with a maximum period of a few months – and bearing in mind that detaining the infiltrator serves a purpose recognized as proper by our legal system, by international law, and in comparative law – there are now, subject to this interpretation, no grounds for our intervention.

52. We have twice held that the Law’s provision in regard to the detention of infiltrators does not pass the tests for constitutionality. The language now before us – interpreted in a manner agreeable, in practice, to the Petitioners – meets the requirements of the Limitations Clause and should not be voided.

Chapter D of the Law – General

53. Chapter D was added to the Law in the framework of Amendment 4, and the “Holot” residency center was erected by virtue of this chapter. The voiding of Chapter 4 in the Eitan case marked this Court’s first intervention in the provisions of the Law regarding a residency center. The particular arrangements and practical operation of the “Holot” residency center prior to its voidance were described in detail in the Eitan case. The prior language of Chapter D authorized the Director to order that an infiltrator concerning whom there was difficulty in regard to deportation present himself at the residency center. As opposed to the provisions of sec. 30A of the Law, which are of prospective force, the above authority could also be exercised in regard to infiltrators who were already in Israel. In addition, the Director was not required to set a time limit for remaining in the residency center. Thus, an infiltrator ordered to a residency could have remained there until Amendment 4 – which was enacted as a temporary order for three years – lapsed. In theory, if the temporary order were to be extended, an infiltrator could remain in the center indefinitely (see: the Eitan case, paras. 149, 151). The prior law also did not establish grounds for release from the residency center, or any provision requiring that the Director exempt any special populations from residing in the residency center. Those residing in the center were required to report for registration three times a day – in the morning, afternoon, and evening. The center was closed at night. The center was operated by specially trained personnel from the Prisons Service who were granted broad enforcement powers, such as the power to detain, search and seize. Along with those powers, the Director was granted authority to transfer residents who violated various of the center’s rules to detention.

54. After we ordered the voiding of Chapter 4 in the Eitan case, it was reenacted in the framework of the Law now under review. Like the prior law, the current language of Chapter D authorizes the Minister of Public Security to designate by order that a particular place serve as a residency center for infiltrators (sec. 32B of the Law), and arranges the manner of operation of the residency center and its rules. Most of the particular arrangements have remained unchanged. Thus, the Director may order residency in the residency center for any infiltrator regarding whom there is a problem “of any sort” in regard to deportation to his country of origin, including infiltrators already present in the state’s territory and infiltrators in detention by virtue of sec. 30A of the Law (secs. 32D and 30D(d) of the Law). In accordance with these provisions, the Director of the Population and Immigration Authority issued a directive under which Sudanese nationals who had infiltrated into Israel prior to May 31, 2011, and Eritrean nationals who had infiltrated into Israel prior to May 31, 2009 were to be relocated to the residency center (Appendix R/6 of the State’s response). In their request for an order nisi, filed on July 20, 2015, the Petitioners noted that updated criteria were published on July 14, 2015. According to those criteria, as of July 19, 2015, Sudanese nationals who had infiltrated Israel prior to Dec. 31, 2011, and Eritrean nationals who had infiltrated Israel prior to July 31, 2011 would be relocated to the residency center (http://www.piba.gov.il/ SpokesmanshipMessagess/ Documents/ holot_criteria_14072015.pdf). The residency center continues to be run by the Prisons Authority; the detention, search and seizure authority granted to the corrections officers remains the same; and the authority of the Director to order transfer to detention has not been entirely cancelled. As opposed to this, Chapter D in its current form differs from the prior format in several aspects: the period of residency in the center has been limited (up to twenty months); the requirement of presence in the center over the course of the day has been reduced; the Director’s authority to order the transfer of a person from the residency center to detention has been restricted; the Director has been authorized to release a person from the residency center in various situations; and certain populations, such as children, women, and victims of certain offenses, were excepted from its application.

55. The maximum capacity of the Holot residency center is 3,360 people, as in the past. According to the supplementary affidavit, as of Feb. 9, 2015, there were 1,950 infiltrators in the center, of whom 76% were Sudanese nationals while the remaining 24% were Eritrean nationals. Also, as of that date, the maximum period during which infiltrators resided in Holot was twenty-four months. According to the affidavit, more than 60% of the residents of Holot infiltrated into Israel before 2008, and 1,521 filed applications for asylum with the RSD, of which about half were filed after the beginning of residency in the center. According to the Population and Immigration Authority, the asylum applications of the residents are given priority.

56. The nature of the living conditions in the residency center is disputed by the parties. According to the Petitioners, the conditions in the center are very basic, the structure of the living quarters does not allow privacy and the employment possibilities are few and poor. Additionally, the Petitioners complain of the medical and welfare services in the residency center, of the quality of the food supplied, and of the amount of pocket money allotted to the residents. As opposed to this, the State argues that there are recreational activities and educational frameworks, and that medical and welfare services are provided. The State further notes that each wing of the residency center – which houses 140 residents – has a recreation center that operates all day, and the residency center has two libraries, an athletics field, a laundry and a grocery in which the price of goods is controlled. In addition, the State noted that sec. 32G of the Law, and the Prevention of Infiltration (Offences and Jurisdiction) (Employment of Residents in Maintenance and Services) (Temporary Order) Regulations, 5775-2015, promulgated thereunder, arrange for the possibility of working in the area of the residency center for payment set in the regulations. There is an employment office in the residency center, and the residents are offered work, inter alia, in maintenance and cleaning of the center, in supply and in the laundry. However, the State claims that the rate of participation in the various activities offered to the residents and the rate of employment in the framework of the residency center are extremely low (see and compare: the Eitan case, paras. 91-96).

Against this background, I will proceed to examine the claims of the parties in regard to the constitutionality of Chapter D in its present form. But first a few words of introduction.

57. In my opinion in the Eitan case, I wrote: “The State faces a reality that it is compelled to confront. That confrontation poses problems and attendant challenges. These challenges require creative solutions. This can be the state’s finest hour, in which, facing a compelled reality, it will succeed in finding humane solutions, solutions that are not only consistent with international law, but also with Jewish values”. Inter alia, I suggested changing the residency facility into a voluntary, open residency center.

I will not deny that the residency center erected in Holot is not what I had in mind when I wrote that. As a citizen, I would be happy to see my state show more compassion, even to those suspected of infiltrating into Israel to find sustenance. However, just as we do not examine the wisdom of the law, we do not place ourselves in the place of the legislature. Our role is to examine the constitutionality of the law. I will begin by stating that after examining the provisions of Chapter D, I have concluded that, with the exception of the maximum period of residence in the center, Chapter D meets – sometimes just barely – the criteria of the Limitation Clause.

The Infringement of Constitutional Rights

58. There is no disputing that the arrangements established in Chapter D of the Law infringe constitutional rights. However, the parties disagree as to the type of infringement, its intensity, and its scope. According to the Petitioners, the various arrangements on Chapter D – that set out the obligation to remain in a residency center and its scope – constitute a harsh, independent infringement of the constitutional right to liberty. Despite the changes made in the Law, they argue that staying in a residency center means staying there. In other words, it is a facility whose characteristics are more like those of a detention facility than an “open” or “semi-open” residency center. For its part, the State does not dispute that Chapter D, by its current language, continues to restrict the constitutional right to liberty. However, it argues that the changes made in the Law reduce “the restriction imposed upon the resident’s ability to realize his liberty substantially, such that the obligation to stay there in a manner that infringes the right to liberty is only at night…”. The State further argues that “Chapter D does indeed restrict the right to liberty and thus infringes it. However…the Petitioners’ claim that staying in the residency constitutes a denial of the right to liberty should not be accepted” (para. 103 of the State’s response).

59. Indeed, changes were introduced into the current language of Chapter D in comparison to its former language. However, while these changes reduce the infringement of the right to liberty, the infringement still exists. The obligation to remain in the residency center is still not given of the resident’s free choice. As such, it infringes the residents’ freedom of movement, as well as amounting to an infringement of their right to liberty. This infringement is reinforced in view of the requirement that the residents of the center report for registration in the evening, and remain there during the night, and in view of the prohibition upon their working outside of its confines. As was held in the Eitan case, every arrangement that forces a person to stay in a particular place, and that requires him to stay there even for part of the day, naturally comprises an infringement of his right to liberty:

Infringement of the right to liberty…is inherent to every facility in which one’s presence is not voluntary. Open residency centers that are not entered voluntarily as a matter of the resident’s free choice, and that require the resident’s presence even if only for part of the day – infringe the right to liberty by their very nature. In the matter before us, the State does not dispute that the residency center restricts the right to liberty, but rather, as noted, it distinguishes between denying the right to liberty and limiting it. I find no virtue in this distinction in regard to the infringement of the right. As A. Barak noted, “Limiting a constitutional right means violating it. Basic Law: Human Dignity and Liberty employs the term ‘violates’ (‘There shall be no violation of rights under this Basic Law…’). As opposed to this, the Canadian Charter and most other modern constitutions employ the term ‘limits’. In my opinion, there is no distinction between the two (Proportionality in Law, p. 135). And as Barak explains:

“The limitation or violation occurs in every situation in which a governmental authority prohibits or prevents the holder of a right from realizing it to its fullest. In this regard, the question of whether the violation is great or small is of no importance, whether it is at the core of the right or its dim edges, whether it is intentional or not, whether it is by action or by omission (where there is a positive duty to protect the right), every violation, regardless of its scope, is unconstitutional unless it is proportionate (ibid., at pp. 135-136)” (ibid., para. 117, emphasis added – M.N.).

So it is in the matter before us, as well. As a rule, the difference between a violation of freedom of movement and a violation of the right to liberty is in the extent of the violation and its force (Ophelia Field, U.N. High Commissioner for Refugees, Div. of Int’l Protection Servs., Alternatives to Detention of Asylum Seekers and Refugees 2, 11-2 U.N. DOC POLAS/2006/03 (April 2006); Guzzardi v. Italy, 39 Eur. Ct. H.R. (ser. A) at 23–25 (¶¶92–95) (1981) (hereinafter: the Guzzardi case); and see: Department of Economics and Social Affairs, Study of the right of everyone to be free from arbitrary arrest, detention and exile (United Nations publication, Sales No. 65.XIV. 2), ¶21)). The changes made in the Law – like the reduction of the requirement of presence, and the restriction upon the length of residency in the residency center – reduced the extent of the violation of constitutional rights. However, it cannot be said that the violation has been so reduced as to leave only the imposition of limits upon freedom of movement.

60. To summarize this aspect, the current language of Chapter D still significantly infringes the rights of the residents of the residency center – particularly their liberty. That being the case, we must examine whether that infringement can meet the criteria of constitutional review, to which I will now proceed.

The Purposes of Chapter D

61. From the explanatory notes of the Law and the responses of the Respondents we learn that the main purpose of Chapter D of the Law is to stop the permanent settling of the infiltrator population in the urban centers, and to prevent them from working in Israel. Alongside this, the Law is intended to provide an appropriate response to the needs of the infiltrators. Another declared purpose is the creation of a normative block to potential infiltrators.

62. The Petitioners’ main argument is that the true primary purpose of the Chapter D of the Law is to “break the spirit” of the infiltrators and encourage them to leave Israel (and see: the Petitioners’ pleadings, paras. 4-6). This purpose, they argue, found expression in the deliberations on the bill. They argue that, in any case, reality demonstrates that, in practice, sending infiltrators to the Holot residency center breaks their spirit and leads to their leaving Israel. The Petitioners are of the opinion that the desire to encourage departure from Israel is not a proper purpose, particularly when the efforts are directed at a group of people who cannot be deported. The desire to prevent the infiltrators from settling in the urban centers is also not a proper purpose in their view. The purpose is improper whether it is intended to prevent long-term residence in Israel, or whether it is intended to distance these people from society. Lastly, the Petitioners argue that deterrence is also not a proper purpose.

63. The Respondents – both the State and the Knesset – are of the opinion that these purposes are proper in that they are “intended…for the benefit of realizing clear societal interests concerning the sovereignty of the State of Israel and its ability to confront the consequences attendant to tens of thousands of infiltrators settling in its cities…” (para. 178 of the State’s response).

Preventing Settling

64. The purpose of preventing infiltrators from settling was addressed in the Adam case, as well as in the Eitan case. In the Adam case, Justice E. Arbel was of the opinion (in the course of addressing the arrangement for detention) that this is a proper purpose. In her view, the state has the “right to decide its immigration policy, which derives from the sovereign character of the state”, from which “even its right to establish measures to confront illegal immigrants, assuming they have not been recognized as refugees” also derives. She was ready to “deem as an important societal objective, the state’s desire to prevent negative consequences…to thwart the possibility of infiltrators to freely establish themselves in any place in the State of Israel, integrate into the labor market, and force the local public to contend with the entry of infiltrators to its midst, with all that it implies” (ibid., para. 84). As opposed to this, in the same case, Justice U. Vogelman was of the opinion that “the question of whether the law’s purposes meet the proper-purpose test, as set out in the case law, raises difficulties”, but he left the matter to be addressed in due course (ibid., para. 19; and see: the Eitan case, para 103). The remaining justices concurred in the opinions of both Justice E. Arbel and Justice U. Vogelman. Therefore, the Adam case did not decide this issue, with the majority preferring to leave the question of whether the purpose was proper for future deliberation in due course.

65. The question of whether preventing settling is a proper purpose was also left undecided in the Eitan case. Justice U. Vogelman again refrained from deciding the question of proper purpose “against the problem raised”, in his words, “by a purpose concerning the separation of one population from another” (para. 103). Most of the justices – both those who concurred in Justice Vogelman’s majority opinion, and those dissenting – did not address this purpose. Justice S. Joubran was of the opinion that this purpose “in and of itself, is not illegitimate”, noting “that the state’s desire to prevent the settling of infiltrators in the cities is one of the expressions of the immigration policy. This policy inherently involves restrictions of certain basic rights…but this restriction itself does not deny its being a proper purpose. Vital interest underlie this policy. The purpose of these interests expresses protection of society from the negative consequences that may result from the infiltration phenomenon. I view this purpose to be proper […]” (ibid., paras. 7-8). I also noted there (para. 5 of my opinion) that creative solutions are needed to solve the problem of the distress of the residents of south Tel Aviv, such as the orderly delineation of the areas of residence of infiltrators.

66. Neither the Adam case nor the Eitan case unequivocally found that preventing settling in the urban centers is a proper purpose. It was expressly recognized as such by Justice (Emerita) E. Arbel and Justices N. Hendel and S. Joubran. I also expressed support for adopting means for realizing that purpose. I would propose to my colleagues that we now expressly hold that preventing settling in the urban centers is a proper purpose, for the reasons that I will now present.

67. The Eitan case noted that many of the infiltrators live in the city of Tel Aviv-Jaffa (particularly in its southern neighborhoods), and that the rest live primarily in Eilat, Ashdod, Ashkelon, Beer Sheba, Petach Tikva, Rishon Lezion, and Ramle (para. 29). The situation created in those aforementioned cities raised – and continues to raise – not inconsequential problems. In my opinion, there if no defect in a law that seeks to reduce those problems by dispersing the infiltrator population. In the Eitan case, I noted, as aforesaid, that it is not wrong for the state to adopt means that would lead to the dispersal of the infiltrators and to easing the burden on Israel’s urban centers.

68. International law recognizes the challenges posed by the arrival of aliens in a state, and as noted, permits it to adopt various measures – among them measures that restrict their freedom of movement and liberty – in the framework of confronting those challenges (secs. 26 and 31 of the Refugee Convention; also see sec. 9 of the Convention, which establishes a derogation clause that permits states to adopt various measures against asylum seekers in exceptional situations, among them measures that may limit their freedom of movement (Commentary to the Refugee Convention, p. 789)). As described above, the restriction of liberty must serve a lawful purpose, and it must be employed only when necessary.

69. The purpose of preventing settling in the urban centers – which concerns easing the burden upon the urban center in which there is a significant concentration of aliens – is consistent with these criteria, and accords with the rules of international law. The interest in preventing the concentration of asylum seekers in certain cities stood at the base of various measures that restrict the freedom of movement of asylum seekers in Norway (see: UNHCR, Alternatives to Detention, p. 165), Switzerland (European Council on Refugees and Exiles [ECRE], Forum Réfugiés-Cosi, Irish Refugee Council and the Hungarian Helsinki Committee, Asylum Information Database: National Country Report, Switzerland, at 52, AIDA Doc. (17.2.2015) (hereinafter: Switzerland)), Germany (European Council on Refugees and Exiles [ECRE], Forum Réfugiés-Cosi, Irish Refugee Council and the Hungarian Helsinki Committee, Asylum Information Database: National Country Report, Germany, at 62, AIDA Doc. (January 2015)), and Kenya (see: Kitu Cha Sheria v. The Attorney General [2013] eKLR (H.C.K.) (Kenya) (hereinafter: Kitu Cha Sheria); Samow Mumin Mohamed v. Cabinet Secretary, Ministry of Interior Security and Co-ordination [2014] eKLR (H.C.K.) (Kenya) (hereinafter: Mohamed); Coalition for Reform and Democracy (CORD) v. Republic of Kenya [2015] eKLR, paras. 401-403 (H.C.K.) (Kenya)). Even the U.N. Commission for Refugees – in its comments upon the bill for the Law that is the subject of these proceedings – recognized that dispersal of the asylum-seeking population among various cities is necessary in order to ease the burden upon th