ORIL_HCJ_Infiltrators_Case_Adam_and_ors_v_The_Knesset_and_ors_Original_petition_to_the_High_Court_of_Justice_HCJ_714612_ILDC_2078_IL_2013_16th_September_2013_Israel_Supreme_Court

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber:
ILDC Monthly Password; date: 22 December 2015
Date: 16 September 2013
Content type: Domestic Court
Decisions
Jurisdiction: Supreme Court
Citation(s): HCJ 7146/12 (Official Case
No)
ILDC 2078 (IL 2013) (OUP reference)
Product: Oxford Reports on International
Law [ORIL]
Module: International Law in Domestic
Courts [ILDC]
HCJ Infiltrators Case, Adam and ors v The Knesset
and ors, Original petition to the High Court of
Justice, HCJ 7146/12, ILDC 2078 (IL 2013), 16th
September 2013, Israel; Supreme Court
Parties: Naget Serge Adam, Zamzam Boshara Ahmed, Abraham Masagna, Gabmrim Mahri, Amsalt
Nagosa Takalo, ASF- Aid Organization for Refugees and Asylum Seekers in Israel, Hotline for Migrant
Workers, The Association for Civil Rights in Israel, "KavLaoved"- Worker’s Hotline, Anonymous,
Anonymous, Tami (Tabi) Tahanges, Anonymous, Anonymous
The Knesset, Minister of the Interior, Defence Minister, Attorney General, Ministry of the Interior,
Anonymous, Anonymous, Anonymous, Anonymous, Anonymous, Ministry of the Interior
Additional parties: (Amicus Curiae) UNHCR, Concord — Research Center for the Integration of
International Law, ‘Kohelet’ Policy Forum
Judges/Arbitrators: Asher Grunis (President); Miriam Naor (Vice President); Edna Arbel; Salim
Joubran; Esther Hayut; Yoram Danziger; Neal Hendel; Ozi Vogelman; Isaac Amit
Procedural Stage: Original petition to the High Court of Justice
Previous Procedural Stage(s):
Tahangas v Ministry of Interior, Administrative petition, 21001-10-12, 17 January 2012
ZarahiBarha and ors v Ministry of Interior, Administrative petition, 21060-10-12, 17 January 2012
Plonit and Ploni v Ministry of Interior, Administrative petition, 21097-10-12, 17 January 2012
Tahir Taspai v Ministry of Interior, Administrative petition, 42469-10-12, 17 January 2012
Saba v Ministry of Interior, Administrative petition, 42465-10-12, 17 January 2012,
Subsequent Development(s):
Request pursuant to the Contempt in the Face of the Court Law; Adam and ors v The Knesset and ors,
HCJ 7146/12, unreported, 7 November 2013
Request pursuant to the Contempt in the Face of the Court Law, Adam and ors v The Knesset and ors,
HCJ 7146/12, unreported, 26 November 2013
Related Development(s):
Prevention of Infiltration Law (Amendment number 4 and temporary order), 2013 (Israel) (amendment to
the Prevention of Infiltration Law, which enabled administrative detention of illegal immigrants for up to
one year, followed by detention for an unlimited period in an open facility)
Eitan — Israeli Immigration Policy and ors v Israel and ors, Motion for Interim Relief, HCJ 7385/13, 1
January 2014 (a new petition was filed against the amendment, the motion for interim relief was denied,
and the petition is under discussion by an extended panel)
Subject(s):

Migration — Asylum — Deportation — Expulsion — Migrants, rights — Internally displaced persons —
Non-refoulement — Soft law
Core Issue(s):
Whether the detention of undocumented migrants in a detention facility for up to three years complied
with international norms.
Oxford Reports on International Law in Domestic Courts is edited by:
Professor André Nollkaemper and August Reinisch, University of Vienna.

Facts
F1 Article 1 of the Prevention of Infiltration Law, 1954 (Israel) (‘Infiltration Law’) defined an
‘infiltrator’ as a person who was not an Israeli resident and who had not entered Israel through a
frontier post.
F2 The infiltrators were mainly from Eritrea and Sudan, two countries that had experienced crises,
wars, and internal disputes in recent years. They had entered Israel mainly since 2007, by passing
illegally through the Israeli-Egyptian border.
F3 As a consequence of Israel’s recognition of Eritrea as a state in crisis, it applied the non-
refoulement principle to Eritrean citizens. Israel did not return North Sudanese citizens due to
practical difficulties arising from a lack of diplomatic relations. Under the non-refoulement principle,
Israel could not deport a person to a country where his or her life or freedom were endangered
(Article 33 of the Convention Relating to the Status of Refugees (28 July 1951) 189 UNTS 137,
entered into force 22 April 1954) (‘Refugee Convention’). This principle was also derived from
internal Israeli law, which recognized the value and sanctity of life (Basic Law: Human Dignity and
Liberty, 1992 (Israel) (‘Basic Law’).
F4 Israel had signed and ratified the Refugee Convention and joined the Protocol Relating to the
Status of Refugees (31 January 1967) 606 UNTS 267, entered into force 4 October 1967 (‘1967
Protocol’). The Refugee Convention had not been implemented in internal Israeli law. However it
remained an obligation for Israel, under the ‘interpretative presumption’, to comply with
international agreements as much as possible in interpreting domestic legislation.
F5 Israel claimed that the phenomenon of illegal infiltrators affected national security, public
safety, and the economy, and took a number of measures in response. One was the establishment
of the Israeli-Egyptian border fence to create a physical barrier to stop infiltrators from entering
Israeli territory. Another was the enactment of the Infiltration Law (Amendment number 3 and
temporary order), 2012 (Israel) (‘Amendment’). The Amendment was intended to prevent illegal
immigration, to allow the monitoring of the implementation of deportation orders, and to enable the
holding of infiltrators, pending deportation, in custody. Section 30a(c) of the Amendment allowed
the authorities to keep infiltrators in administrative detention for up to three years without trial.
F6 Adam and others challenged the constitutionality of the Amendment. According to the limitation
clause contained in Section 8 of the Basic Law, the infringement of rights was required to have
been explicitly legislated, befitting the values of the State of Israel, intended for a proper purpose,
and proportionate.
F7 Adam and others argued that the vast majority of infiltrators were citizens of Sudan and Eritrea,
two countries to which the policy of non-refoulement applied. They contended that Section 30a(c)
of the Infiltration Law, which allowed the detention of infiltrators for a period of three years even if
there was no effective expulsion procedure, was contrary to the basic principle of international law,
adopted into Israeli law, according to which there would be no administrative detention when no
effective expulsion procedure existed.
F8 Israel argued that its situation was unique as the only western country with a relatively long
border with Africa, which until recently had not been effectively fenced. The Amendment was
intended to reduce the attractiveness of immigrating illegally to Israel for work.
F9 The United Nations High Commission for Refugees (‘UNHCR’) filed an amicus curiae brief that
sought to stress the proper interpretation of the Refugee Convention and the 1967 Protocol, and
the relation between the Amendment and Israel’s obligations under those instruments. Another
amicus brief was filed by Concord — Research Center for the Integration of International Law in
Israel, which argued that the rules of international law imposed only a few limitations on a state’s
immigration policy, but the Amendment’s central provision deviated from these limitations.

Held
H1 It was clear that a person’s right to liberty was infringed when he or she was in administrative
custody that could last up to three years. The right to liberty applied to every person in Israel, even
if that person had entered Israel illegally. [paragraph 72]
[paragraphs refer to the original decision]
H2 In a democratic state that was part of the international community, freedom of movement was a
basic and customary human right that was also derived from the basic human right to liberty.
[paragraph 78]
H3 The link between liberty and freedom of movement was clear. In Guzzardi v Italy, App no
7367/76; 3 EHRR 333, 1980 and Cyprus v Turkey, 15 EHRR, 1992 the European Court of Human
Rights discussed the violation of freedom of movement as a violation of the right to liberty. In this
case, since the infiltrators were placed in custody, the violation of the right to freedom of movement
had caused a violation of their right to liberty. [paragraph 79]
H4 The purpose of preventing the settlement of infiltrators in Israel was proper, since Israel was
allowed to determine its immigration policy, including dealing with illegal immigrants—if they were
not recognized as refugees. The purpose of stopping the infiltration phenomenon by means of the
Amendment was more problematic, since it meant that a person was held in custody in order to
deter others and not because the person was a danger to society. That was unquestionably a
violation of his or her human rights. [paragraphs 84–86]
H5 International law reinforced this conclusion. Israel had signed and ratified the International
Covenant on Civil and Political Rights (16 December 1966) 999 UNTS 171, entered into force 23
March 1976, Section 9(1) of which ensured the right to liberty and forbade arbitrary detention. In A
v Australia, Merits, Comm no 560/1993; UN Doc CCPR/C/59/D/560/1993; (1997) 5 IHRR 78; IHRL
1563 (UNHRC 1997), 3 April 1997 the United Nations Human Rights Committee (‘UNHRC’) held that
custody of an illegal immigrant was considered arbitrary if the custody was unnecessary in the
circumstances of the case. In Baban and Baban v Australia, Merits, Comm no 1014/2001; UN Doc
CCPR/C/78/D/1014/2001; (2003) 11 IHRR 159; IHRL 1684 (UNHRC 2003), 6 August 2003 the UNHRC
stated that the administrative arrest of an illegal immigrant without an ongoing procedure regarding
their legal deportation was an arbitrary arrest. International law required a justified reason for an
arrest of a specific infiltrator and did not allow the custody to be brought about from general
causes. It could not be ignored that many infiltrators were asylum seekers. Guidelines on the
Applicable Criteria and Standards Relating to the Detention of Asylum Seekers and Alternatives to
Detention, UN High Commissioner for Refugees, 2012 (‘Detention Guidelines’) stated that detention
could not be arbitrary and emphasized that detention needed to be based on the particular
circumstances of the case, even if the asylum seeker had entered the state illegally. The three
justifications that were approved for detention were protection of public order, public health, and
national security. It was doubtful that international law allowed the detention of an asylum seeker in
order to deter other asylum seekers from entering Israel. However, assuming the Amendment had a
proper purpose of protecting Israel’s interests, the question was whether the violation was
proportionate. [paragraphs 91–93]
H6 Less harmful means existed that could have achieved the purpose of preventing settlement in

Israel. The UNHCR had stated that one of the criteria to determine whether an arrest was arbitrary
was when no other less harmful measures were considered, especially when the arrest was for a
long period of time. The measure chosen in the Amendment was not the least harmful. Many other
alternatives were suggested in Back to Basics: The Right to Liberty and Security of Person and
‘Alternatives to Detention’ of Refugees, Asylum-Seekers, Stateless Persons and Other Migrants,
PPLA/2011/01 Rev 1, UN High Commissioner for Refugees, April 2011 such as bail, entrustments,
and different securities that could be required from the asylum seekers. [paragraphs 104, 106,
107]
H7 The characteristics of the people at stake should be taken into account when estimating the
intensity of violation of rights. The international principle of non-refoulement applied to some of the
infiltrators, and this should also be considered. The purportedly simple solution of placing the
infiltrators in custody was a disproportionate solution that contradicted the values and morals of
Israeli society and its laws. [paragraph 112]
H8 Article 30a(c)(3) of the Amendment was unconstitutional. The Amendment should be annulled.
[paragraph 115]
H9 Israel must immediately begin the release, to be completed within three months, of asylum
seekers who were being held in prison without trial. [page 97]
H10 Justice Vogelman and Joubran, concurring: There were other alternatives (including those
employed in other states) for dealing with the phenomenon of infiltration, which could partly fulfill
the purposes of the Amendment while limiting the right to personal liberty to a considerably lesser
extent. Immigration laws in the United States and the United Kingdom allowed the detention of
infiltrators up to the time of deportation (Zadvydas v Davis, Supreme Court Decision, 533 US 678,
28 June 2001; Tan Te Lam v Superintendent of Tai A Chau Detention Centre (Hong Kong), Privy
Council Appeal no 55 of 1995, [1996] UKPC 5, [1996] 4 All ER 256, [1997] AC 97, 27 March 1996).
This principle also existed in the countries of the European Union (‘EU’). Article 15(4) of Directive
2008/115/EC on Common Standards and Procedures in Member States for Returning Illegally
Staying Third-country Nationals, 16 December 2008 (‘Directive’) stated that ‘when it appears that
there is reasonable chance of deportation for legal or other reasons […] detention is not justified
and the prisoner shall be immediately released’. Even when an effective deportation procedure
was in place, Article 15(1) of the Directive stipulated that a less offensive alternative should be
preferred over detention when possible. Article 15(4) set a maximum period of six months’
detention that could be extended for up to one more year in cases where deportation was being
delayed due to lack of cooperation by the detainee or due to the delay of necessary documents
from the country of origin (Article 15(6)). [paragraphs 34–36, pages 72–73]
H11 Since the Amendment did not pass the proportionality test, it was not necessary to decide
whether stopping the infiltration phenomenon was a proper cause. There was no barrier that
prevented Israel from imposing normative means against labour immigrants, and it did not exceed
Israel’s prerogative to determine who entered its borders (see General Comment No 15: The
Position of Aliens under the Covenant, UN Doc HRI/GEN/1/Rev1(18), UN Human Rights Committee,
11 April 1986. This was subject to the criteria of the limitation clause in the Basic Law and Israel’s
obligations under international law. [paragraph 10, page 84]

H12 Justice Hendel, partially concurring: Annulment of Section 30a(c) of the Amendment was
sufficient; annulment of the entire Amendment was unnecessary. [paragraph 8, page 94]
Date of Report: 28 February 2014
Reporter(s): Nita Benoliel
Analysis
A1 This decision is one of the growing body of Israeli jurisprudence concerning immigrants and
asylum seekers. It is one of the rare cases in which the Israeli Supreme Court declared the
annulment of a statute due to infringement of rights: the tenth in which a law was annulled, and the
first dealing with infringement of rights of persons who were not Israeli or residents of the occupied
territories (see Adalah Legal Centre for Arab Minority Rights in Israel and ors v Minister of
Defence and ors, High Court of Justice Judgment, HCJ 8276/05, 8338/05, 11426/05; ILDC 593 (IL
2006), 12 December 2006). The decision was reached unanimously by nine Supreme Court
justices.
A2 Against this background, it is important to note that Israel does not have a clear immigration
policy. While the Law of Return, 4 LSI 114 1950 (Israel) declares the right of Jews and some of their
relatives to immigrate to Israel, the law regarding non-Jews is very general, and leaves substantial
discretion to the Minister of Interior. As a result the authorities lack the proper tools to address
immigration, and many decisions are taken arbitrarily by clerks on an ad hoc basis.
A3 Throughout the decision the Court used the term ‘infiltrators’ to describe the addressees of the
Amendment, since this was the term used in the legislation. However, some of the justices
expressed their discomfort with the use of the term. Justice Vogelman described the historical
background of the Infiltration Law, which was enacted in the 1950s in response to armed infiltrators
who were entering mostly from Egypt. During the legislative proceedings prior to enactment of the
Amendment it was suggested that another law be amended to achieve the intended aim, but the
government chose to amend the Infiltration Law in order to transmit a message of severity. Justice
Vogelman stated that the rhetoric choice of the State should not blur the identity of those new
‘infiltrators’, many of whom defined themselves as asylum seekers. [Justice Vogleman, paras
10, 11, 12, 13, pages 64–65] The use of the term ‘infiltrators’ is seen as inappropriate in the
eyes of international law, since many are asylum seekers and can be recognized as refugees, and
the term is usually saved for criminals and terrorists.
A4 The decision focuses mainly on Israeli constitutional law, since the Refugee Convention has
not been integrated into Israeli law, although Israel has signed and ratified it. However, Israel’s
obligations under public international law seem to hover over the decision. Also, in the background
lies the fact that Israel does not check requests for status as refugees for asylum seekers coming
from Eritrea and Sudan, but instead provides them with collective protection under the non-
refoulement principle. This policy was examined by the Supreme Court in Asfu v Ministry of
Interior, Administrative Appeal Admin A 8908/11, 17 July 2012 and was not invalidated. Therefore
the addressees of the Amendment were not recognized as refugees, although the petitioners
argued that they were refugees for the purposes of the Refugee Convention since the recognition

was only declarative.
A5 The Court gave Israel three months to complete the release of those in custody. The petitioners
filed two motions pursuant to the Contempt in the Face of the Court Law (Israel) due to the
unsatisfactory number of asylum seekers who were released (see Adam and ors v The Knesset
and ors, HCJ 7146/12, unreported, 7 November 2013 and Adam and ors v The Knesset and ors,
HCJ 7146/12, unreported, 26 November 2013). The Court expressed some discomfort at the rate of
releases, but it denied the motions because Israel had declared that the process of release would
end by the end of the three month period. Israel also began to publish weekly updates on the
release process on the website of the Ministry of Interior.
A6 Following the instant decision, Israel began legislative processes for the enactment of a new
amendment to the Infiltration Law. On 10 December 2013 the Prevention of Infiltration Law
(Amendment number 4 and temporary order), 2013 (Israel) (‘New Amendment’) was enacted. The
New Amendment allowed Israel to hold an infiltrator in custody for a period of one year in a new
detention facility, the ‘Holot’, where they would remain until their deportation. A group of non-
government organizations filed a petition against the New Amendment on 13 December 2013.
Date of Analysis: 28 February 2014
Analysis by: Keren Yalin-Mor
Further analysis
Reuven (Ruvi) Ziegler, ‘Quashing Legislation Mandating Lengthy Detention of Asylum-Seekers: A
Resolute Yet Cautious Israeli Supreme Court Judgment’
Instruments cited in the full text of this decision:
International
Convention Relating to the Status of Refugees (28 July1951) 189 UNTS 137, entered into force 22
April 1954, Article 33
Protocol Relating to the Status of Refugees (31 January 1967) 606 UNTS 267, entered into force 4
October 1967
International Covenant on Civil and Political Rights (16 December 1966) 999 UNTS 171, entered into
force 23 March 1976, Section 9(1)
General Comment No 08 (Article 9): Right to liberty and security of persons, 30 June 1982
General Comment No 15: The Position of Aliens under the Covenant, UN Doc HRI/GEN/1/Rev1,
Human Rights Committee, 1986
Directive 2008/115/EC on Common Standards and Procedures in Member States for Returning
Illegally Staying Third-country Nationals, 16 December 2008, Article 15(4)
Report of the Working Group on Arbitrary Detention, para 63, UN Doc A/HRC/13/30, 18 January
2010
Back to Basics: The Right to Liberty and Security of Person and ‘Alternatives to Detention’ of

Refugees, Asylum-Seekers, Stateless Persons and Other Migrants, PPLA/2011/01 Rev 1, UN High
Commissioner for Refugees, April 2011
Constitutions
Basic Law: Human Dignity and Liberty, 1992 (Israel)
Cases cited in the full text of this decision:
European Court of Human Rights
Guzzardi v Italy, App no 7367/76, 3 EHRR 333, 1980
Cyprus v Turkey, 15 EHRR, 1992
European Court of Justice
Said Shamilovich Kadezov, Preliminary Ruling, Case C-357/09 PPU, 30 November 2009
Hassen El Dridi v Italy, Judgment of the First Chamber, Case C-61/11 PPU, 28 April 2011
United Nations Human Rights Committee
A v Australia, Merits, Comm no 560/1993; UN Doc CCPR/C/59/D/560/1993; (1997) 5 IHRR 78; IHRL
1563 (UNHRC 1997), 3 April 1997
Baban and Baban v Australia, Merits, Comm no 1014/2001; UN Doc CCPR/C/78/D/1014/2001;
(2003) 11 IHRR 159; IHRL 1684 (UNHRC 2003), 6 August 2003
D and E v Australia, Merits, Comm no 1050/2002; UN Doc CCPR/C/87/D/1050/2002; (2006) 14 IHRR
14; IHRL 1587 (UNHRC 2006), 11 July 2006
Shams and ors v Australia, Merits, Comm nos 1255/2004, 1256/2004, 1259/2004, 1260/2004,
1266/2004, 1268/2004, 1270/2004, 1288/2004; UN Doc CCPR/C/90/D/1255, 1256, 1259, 1260,
1266, 1268, 1270, 1288/2004; (2008) 15 IHRR 72; IHRL 2775 (UNHRC 2007), 20 July 2007
Israeli domestic courts
Adalah Legal Centre for Arab Minority Rights in Israel and ors v Minister of Defence and ors, High
Court of Justice Judgment, HCJ 8276/05, 8338/05, 11426/05; ILDC 593 (IL 2006), 12 December 2006
United Kingdom domestic courts
Tan Te Lam v Superintendent of Tai A Chau Detention Centre (Hong Kong), Privy Council Appeal
no 55 of 1995, [1996] UKPC 5, [1996] 4 All ER 256, [1997] AC 97, 27 March 1996
United States domestic courts
Zadvydas v Davis, Supreme Court Decision, 533 US 678, 28 June 2001
Clark v Martinez, Supreme Court Decision, 543 US 371, 12 January 2005
To access full citation information for this document, see the Oxford Law Citator record

Decision - English translation
Original Source PDF
Paragraph numbers have been added to this decision by OUP
Summary of the Judgment
1 In a judgment given on 16 September 2013, an extended panel of nine Justices of the Supreme
Court of Israel decided the question of the constitutionality of the arrangement enacted by the
Knesset in 2012, in amendment no. 3 of the Prevention of Infiltration Law (Offenses and
Adjudication), 5714-1954, which allows holding infiltrators in custody for a period of three years.
All nine Justices of the panel held, unanimously, that the arrangement is
unconstitutional because it disproportionately limits the constitutional right
to liberty determined in Basic Law: Human Dignity and Liberty.
2 Regarding the scope of constitutional relief the court held, by a majority of President A. Grunis,
Deputy President M. Naor and Justices E. Arbel, S. Joubran, E. Hayut, Y. Danziger, U Vogelman and
I. Amit, that all the arrangements determined in the various provisions of section 30a of the
Prevention of Infiltration Law must be annulled. Justice N. Hendel dissented, holding that only the
provisions of section 30a(c) of the Prevention of Infiltration Law should be annulled. The Court
further held that at the time of the annulment of the law, the provisions of the Entry into Israel Law,
5712-1952 will enter effect, such that the custody and deportation orders issued will be seen as if
they were given pursuant to it. It was additionally held that the process of individual examination
and release of all being held in custody must commence immediately. The process of examination
of all those in custody was limited to a period of 90 days from the day of the judgment.
The Essence of the Opinion of Justice E. Arbel
3 Justice E. Arbel, who wrote the central opinion in the case, surveyed the phenomenon of
infiltration into Israel in recent years, noting that there are approximately 55,000 infiltrators present
in Israel. Justice Arbel discussed that most of the infiltrators originate from the countries of Eritrea
and Sudan, and discussed the difficulties that people from those countries experience. She also
clarified that regarding citizens of Eritrea, the State of Israel today applies the international principle
of non-refoulement, meaning that the state will not send a person to a place where his life or liberty
are in danger. Sending people back to the Republic of Sudan is not possible due to the lack of
diplomatic ties with Israel. That means that the state is confronted with a significant phenomenon of
tens of thousands of infiltrators into its territory, who at this stage cannot be deported from its
territory, for practical or normative reasons.
4 Justice Arbel further discussed the implications of the infiltration phenomenon for society in
Israel. Regarding crime committed by infiltrators, she noted that there is disagreement regarding the
factual situation, whereas there are studies that show that the level of crime committed by
infiltrators is lower than that in society in general. She however emphasized that the distressful
feeling of the residents of South Tel Aviv that the level of security in their neighborhoods has
decreased considerably, should not be underestimated. Also mentioned were implications for the
Israeli labor market, as well as budgetary implications. Justice Arbel noted that as of the end of
2010, the infiltrators constituted only 20% of the non-Israelis working in Israel without a permit, such
that the difficulties on that issue stem only partially from the infiltration phenomenon. In conclusion,
Justice Arbel noted that the picture is complex and contain hues of grey, in contrast to the black
and white with which the parties wish to color it.
5 Justice Arbel further discussed the normative situation on the eve of the amendment to the
Prevention of Infiltration Law, the background behind its legislation, and the amendment's

provisions. She noted that the amendment began to be implemented in June 2012, and that at the
time of the case approximately 2,000 infiltrators were in custody pursuant to it.
6 In the framework of the constitutional examination of the amendment, Justice Arbel determined
that it limits the right to liberty enshrined in Basic Law: Human Dignity and Liberty. She discussed
the importance of this right, which is one of the basic rights of the individual and is based upon the
values of the state as a Jewish and democratic state.
7 At the next stage, Justice Arbel examined whether the limitation of the right to liberty withstands
the conditions of the limitations clause in the basic law. It was held that the limitation is made by a
statute, and that the point of departure should be that the amendment befits the values of the State
of Israel.
8 As for the condition regarding a proper purpose, Justice Arbel discussed the two purposes of the
amendment. One purpose is preventing infiltrators from settling in Israel, and the state's need to
deal with the implications of the phenomenon. It was held that this purpose does not raise difficulty.
The second purpose, as presented by the state, is to curb the infiltration phenomenon. Justice
Arbel clarified that the meaning of this purpose is actually deterrence. In other words, the very
placing of infiltrators in custody deters potential infiltrators from coming to Israel. Justice Arbel
emphasized that this purpose creates difficulties that are not negligible. A person is taken into
custody not because he personally presents any danger; but rather in order to deter others. He is
treated not as an end, but rather as a means. That treatment is undoubtedly an additional limitation
of his dignity as a person. Justice Arbel discussed the caselaw of the Supreme Court, and the
standpoint of international law, which reinforce the doubt whether this purpose is a proper one.
However, Justice Arbel was willing to assume that the purpose is proper, noting that in an extreme
situation in which this purpose becomes most necessary for the state and the preservation of its
most basic interests, it may be possible to justify such a purpose.
9 Justice Arbel then progressed to the proportionality test. Regarding the first subtest, it was held
that theoretically, there is a rational nexus between taking infiltrators into custody and preventing
their settling in Israel and the negative implications stemming from their presence in the cities of
Israel. However, the way the amendment is actually implied should be considered. According to the
data, there are 55,000 infiltrators in Israel. Of them, only 1,750 are in custody, whereas, at the time
of the case, that was the maximum volume that could be held. That means that there is great doubt
whether that purpose is actually fulfilled.
10 The picture regarding the rational nexus between the deterrence purpose and the taking of
infiltrators into custody is not clear. The difficulty stems, inter alia, from the disagreement whether
the infiltrators are mere labor immigrants, or refugees fleeing from atrocities in their countries. Nor
does the numerical data, which indicate a drastic reduction in the number of infiltrators reaching
Israel since the middle of 2012, lead to a clear conclusion. The main difficulty stems from the fact
that taking infiltrators into custody was carried out simultaneously with the completion of the border
fence between Israel and Egypt. The simultaneity of these processes creates a lack of clarity
regarding the contribution of each factor to the decrease in the number of infiltrators. Justice Arbel
thus assumed that this proportionality subtest is satisfied.
11 Justice Arbel held that the second subtest, regarding choosing the least harmful means, is not
satisfied. To the extent that the purpose of the amendment is deterrence, there are considerable
chances that the border fence between Israel and Egypt will be sufficient. As for the purpose
regarding settling in Israel and the negative implications of the infiltration phenomenon, a variety of
alternate means that will fulfill that purpose in a less harmful way can be formulated. Thus, for
example, duties to report can be created; area of residence can be limited; infiltrators can be
required to stay at a facility at night; some of the foreign workers can be replaced by infiltrators;
enforcement against human smugglers can be intensifies; the local authorities can be reimbursed
for their expenses in handling the infiltrators; police monitoring can be intensified in areas with high

concentrations of infiltrators; labor laws can be more strictly enforced; and more. Such means can
be employed alongside means of monitoring and punishment, as well as actions taken in order to
allow the deportation of infiltrators from Israel. Justice Arbel also surveyed the way other countries
in the world confront similar phenomena via various means, without denying liberty for a long
period of time.
12 In obiter dictum, Justice Arbel also examined the third subtest of proportionality, regarding the
existence of a reasonable ratio between the limitation of the constitutional right and the benefit
stemming from the limitation. It was held that this subtest is also not satisfied. Imprisoning the
infiltrators and denying their liberty for a long period of three years is a critical and disproportionate
blow to their rights, their bodies and their souls. The limitation is a most severe one, of high and
great intensity. It is uncontroversial that most of the infiltrators arrive from countries in which their
living conditions are most difficult, and where the human rights situation is very bad. This fact
should also be taken into account when measuring the intensity of the limitation.
13 On the benefit side of the scales, it was held that in light of the severe limitation of the right to
liberty, the state must be prepared to take on the economic burden involved in confronting the
infiltrators. Regarding the implications for the local population: they continue to deal with the
difficulties now, as most of the infiltrators in Israel are not in custody. Considering that there are
many alternative means that the state can employ, and considering the border fence with Egypt
and the possibility of improving its efficiency, it cannot be said that the benefit attained by taking
infiltrators into custody is greater than the severe limitation of their rights.
14 Justice Arbel emphasized that an unbearable situation might occur, in which infiltrators
continue to swarm into the State of Israel despite all the other means employed, putting the state in
danger of severe harm to its vital interests. In such a situation it will be possible to say that the
benefit is not less than the damage, and Israeli society cannot endanger itself for the people of
other countries. However, in her opinion we are very far from that dark forecast.
15 Justice Arbel noted, in conclusion, that the result of this judgment will not be easy for the Israeli
public, and will be particularly difficult for the residents of South Tel Aviv, whereas the distress
reflected in their cry sounds heartfelt, and evokes empathy and understanding regarding the need
to assist them in the situation in which they find themselves. She further added: "I want to believe
that the state will be able to find the way to deal with the situation that has arisen through means it
has at its disposal and to ease their distress. Woven like a thread in this opinion is the attempt to
clarify and persuade that it is not correct to choose a solution that, prima facie, seems simple — a
long period of custody — as it is a most harmful means toward any person, certainly most harmful
to infiltrators held in custody for a long period. I reiterate that one of the most important basic rights
of a person, which is at the tip of the pyramid of rights, is the right to liberty. Since ancient times,
people always have fought for freedom. Limitation of the right to liberty is one of the most severe
limitations that one can think of. Denying the freedom of the infiltrators by imprisoning them for a
long period is a critical and disproportionate limitation of their rights, their bodies and their souls.
We should not solve one injustice by creating another injustice. We cannot deny fundamental
basic rights and at the same time coarsely limit human dignity and liberty in the framework of a
solution to a problem that requires a fitting comprehensive political solution. I have noted in the past
in another context that 'the needs of one group, important as they may be, cannot be satisfied by
limiting the needs and rights of another group in the population" (FH 10007/09 Gluten v. The
National Labor Court, par. 29 of my judgment (18 March 2013)). We must not forget our basic
principles that flow from the declaration of independence, and our moral duty toward every person,
as a person, as they are etched on the basic pattern of the state as a Jewish and democratic
state."
16 The relief granted in the petition is annulment of section 30a(c)(3) of the Prevention of
Infiltration Law, that determines the taking into custody of infiltrators for a period up to three years.

No separation can be made between the parts of the amendment when its central provision is void.
The conclusion is therefore that in actuality, all of section 30a will be annulled, and the existing
arrangement in the Entry into Israel law will take its place.
The Essence of the Opinion of Justice U. Vogelman
17 In his judgment, Justice U. Vogelman concurred in the conclusion of Justice Arbel that the
custody arrangement determined in amendment no. 3 of the Prevention of Infiltration Law is
unconstitutional, and that it must be annulled. Justice Vogelman held that the amendment was in
fact intended to deal with immigrants that the State of Israel does not deport to their countries of
origin at the present time: citizens of Eritrea and citizens of North Sudan. The factual picture
regarding this group is complex. Although the economic motivations of these immigrants should not
be ignored, their claims of international protection, against the backdrop of information regarding
their states of origin as well as policy employed regarding them de facto by the State of Israel and
the countries of the world, cannot be aloofly brushed aside. In the framework of the constitutional
examination, Justice Vogelman concurred in Justice Arbel's determination that the amendment
severely limits the infiltrators' right to personal liberty. Similar to Justice Arbel, Justice Vogelman did
not wish to rule on the question whether the purpose behind the amendment is a "proper purpose",
although that question raises difficulty, because in any case the provisions do not withstand the
proportionality tests, as they were outlined in caselaw.
18 It was held that the critical limitation of the right of those held in custody to personal liberty
does not have a proportional relationship to the alleged benefit of the amendment. In addition, the
arrangement set out deviates from the accepted principles in immigration law in Israel and the world
regarding denying the liberty of persons who are in the country illegally. It was further noted that
there are other alternatives (including those employed in the rest of the world) for dealing with a
phenomenon of infiltration, which can fulfill the purposes of the amendment — albeit not fully —
while limiting the right to personal liberty to a considerably lesser extent. Justice Vogelman
wondered whether the state can rely upon the negative implications of the infiltration phenomenon
of recent years as a justification for employing harmful means, without making any attempt to
confront those implications through alternative means that are less harmful. On the plane of relief,
Justice Vogelman opined that there is no choice but to annul the possibility of employing the
custody arrangements determined in section 30a of the law entirely, as according to his line of
reasoning, annulment of only section 30a(c)(3) of the law would not lead to the desired result. Due
to the critical limitation of the infiltrators' right to personal freedom, the declaration of voidness of
the amendment provision should not be delayed. As a result of the declaration of voidness, the
cases of all of the infiltrators upon which the amendment was employed shall be examined
according to the arrangement set out in the Entry into Israel Law. The authorities must examine the
cases of those who are in custody immediately, and those who can be released — should be
released immediately. The period of ninety days determined for examining the causes for release
set out in the Entry into Israel Law and their caveats is the maximum period for examining the cases
of all of those in custody, due to their large number. As noted, a person whose examination has
been completed and regarding whom there is no cause to prevent release — shall be released
without delay.
19 The end of the judgment states: "the challenge which the State of Israel must confront and has
had to confront in light of the unarranged immigration of tens of thousands of people from Africa
into its borders is a difficult one. In my judgment, I have laid an extensive framework regarding the
societal, economic and other difficulties it entails. No one disputes that the state cannot stand by
and do nothing, and that it must confront this complex phenomenon. That is not only a
discretionary power granted to the state; it is a duty imposed upon it, toward its citizens and
residents. There are no magical solutions. At the center of our discussion is the issue of the
constitutionality of the means chosen to do so. In a democratic society, not all means are
legitimate. That is also the case regarding the arrangement which has been put forth for our

constitutional examination. As difficult as the mission that the State of Israel is required to confront
against its will may be, we must remember that those who have already passed through our gates
are now among us. They are entitled to the right to liberty and the right to dignity granted in the
basic law to any person, as a person. Limitation of these rights is possible only for a proper
purpose and to an extent that is not excessive. The means chosen by the state does not withstand
that standard, and does not successfully pass constitutional review. The arrangement determined
in the amendment, the annulment of which we declare here, limits the right to personal liberty,
which is a basic right of every person as a person, in a critical and disproportionate way, deviating
from the principles accepted in Israel and in the rest of the civilized world. Thus, the custody
arrangement set out in the amendment must be annulled".
The Essence of the Opinion of Deputy President M. Naor
20 Deputy President M. Naor concurred in the opinions of Justices Arbel and Vogelman, noting
that at the time of legislation of the amendment to the law under discussion in the petition, a well
rooted principle already existed in the caselaw of the Supreme Court according to which a person
cannot be held in detention if he cannot be deported within a certain time. The means of detention
for a long period is not a proportionate one.
21 The Deputy President further noted that there is no doubt that the state has the right to hold the
"keys to the house" and determine who enters its gates. Due to its geopolitical situation, the State of
Israel found itself dealing with a very large number of infiltrators, well beyond its size in relation to
other democratic states. The infiltrators are guests for a time, although that time is becoming
longer. The infiltrators are not entitled to make aliya [the right of Jews to return to Israel and receive
citizenship]. The state is allowed to find legal ways to deport them; ways that befit the caselaw of
the Supreme Court of Israel and accepted international law.
22 The Deputy President further wrote: "the State faces a reality — forced upon it against its will —
which it must confront. That confrontation poses difficulties that entail challenges. Those
challenges require creative solutions. This could be the state's finest hour, if, in a reality forced
upon it, it is wise enough to find humane solutions, solutions that comport not only with international
law, but also with the Jewish worldview. At the same time, this could also be the finest hour of
human rights organizations and supporters of human rights. My colleague Justice Arbel referred (in
par. 66 of her opinion) to possible cooperation between the agencies of the state and human rights
organizations. I wish to concur in that. Human rights organizations can show that beyond the
(justified) activity to annul the statutory provision, they also have great ability for constructive
activity: to enlist volunteers, to guide and train infiltrators, and to assist them while they are here".
The Essence of the Opinion of Justice I. Amit
23 Justice I. Amit concurred in the opinions of Justices Arbel and Vogelman, according to which
the statutory arrangement under discussion contradicts Basic Law: Human Dignity and Liberty, and
must therefore be annulled.
24 Justice Amit determined that regarding those requesting asylum who have already entered the
gates of the country, the state must treat them with open hearts and compassion regarding work,
welfare, health and education, particularly in light of the march of tribulations they suffered on their
way to Israel.
25 Justice Amit emphasized that the content of his opinion relates to the situation today, in which
the number of infiltrators stands at approximately one percent of the population of Israel, as a fait
accompli. At the same time, Justice Amit commented that one wonders about the numerical "red
line" of what the state can bear without concern for a real limitation of its sovereignty, its character,
its national identity, its cultural-societal character, the makeup of its population and the entirety of
its unique characteristics, and without concern for its stability and of "breaking its neck" in terms of

crowding, welfare and economy, internal security and public order. Against that backdrop, Justice
Amit noted that when balancing between various basic rights or between basic rights and the vital
interests of the state, we must be aware of the data, the assessments and the forecasts, as there
are situations in which "quantity makes quality".
26 In any case, Justice Amit clarified that this is not the situation today, but assuming other
situations and data, the result might change on the legal plane as well.
The Essence of the Opinion of Justice S. Joubran
27 Justice S. Joubran is of the opinion that at the stage of examination of the constitutionality of the
purpose of the amendment to the law (in our case, curbing the phenomenon of infiltration), the
Court must refrain, to the extent possible, from constitutional examination of the means to achieve it
(in our case, detention of the infiltrators). In his opinion, the role of the proper purpose test is to
provide an answer to the question whether the purpose of the statute provides sufficient
justification for the limitation of the constitutional right.
28 The state's position was that the infiltrators' very awareness of the legal tools for confronting
labor immigration influences their decision whether to immigrate into its borders. Justice Joubran
was of the opinion that it is conceivable that the normative situation in a given country is a
consideration that influences the decision of labor immigrants whether to "infiltrate" into it. In his
opinion, there is no principled reason preventing means that constitute a "normative block" against
labor immigrants. He is of the opinion that the desire of a country to formulate legislation that does
not encourage labor immigration is not illegitimate; it does not deviate from its prerogative to
determine who passes through its gates; it comports with its sovereignty, subject, of course, to the
limitations clause, and its commitments pursuant to international law. This question becomes more
complex regarding persons who are entitled to refugee status. In the current circumstances he is of
the opinion that there is no need to decide that question.
29 The amendment to the statute allows holding infiltrators in custody for three years until their
deportation; however, de facto their deportation is not possible, and they are destined to remain in
custody. In the opinion of Justice Joubran, that situation limits the infiltrators' right to liberty, which
cannot at this time be tolerated. Therefore, he concurs that the amendment must be annulled.
The Essence of the Opinion of Justice Y. Danziger
30 Justice Y. Danziger was also of the opinion that the arrangement determined in the Prevention
of Infiltration Law (Offenses and Adjudication)(Amendment no. 3 and Temporary Provision), 5772-
2012 is unconstitutional and must be annulled.
31 Justice Danziger wished to add that even if it can be assumed that there is an economic
element to the choice of thousands of citizens of Sudan and Eritrea to come to the State of Israel,
they cannot be categorized as mere illegal labor immigrants. It must be assumed that in some of the
cases, they are refugees entitled to political asylum. However, the State of Israel chose not to
examine individual asylum applications submitted by some of the Sudanese and Eritrean citizens,
but at the same time refrained from deporting them back to their countries, either due to the
"temporary non-deportation" policy, or due to other constraints.
32 The challenge the state is required to confront when dealing with unorganized immigration of a
large scope intensifies due to the distress of the residents of the neighborhoods of South Tel Aviv,
in which many of the immigrants live. The cry of the residents of the neighborhoods echo in our
hearts, and their pain is our pain. However, the solution to that distress is not to be found in holding
thousands of people — men, women and children — in custody in prison facilities for an indefinite
period of time, without them being accused — needless to say put on trial — for anything, when
there is no foreseeable possibility of deporting them. That is an extreme limitation of their basic right

to liberty. The state has the duty to confront this complex problem in ways that comport with
constitutional norms accepted in Israel and in the countries of the civilized world.
The Essence of the Opinion of Justice E. Hayut
33 Justice E. Hayut concurred in the judgment of Justice Arbel, and in the judgment of Justice
Vogelman. She further commented that the State of Israel remains the only western democracy in
the world with no organized immigration policy, and that ad hoc solutions are no substitute for such
needed policy. According to Justice Hayut, the legislature responded to the need for a fitting and
comprehensive normative arrangement with a very specific act that is problematic and extreme, by
adding amendment no. 3 to the Prevention of Infiltration Law. That amendment has two faults. First,
it contains no solution for the complex problems created as a result of the arrival of tens of
thousands of infiltrators into Israel who have concentrated themselves in large groups in big cities
and various communities. Imprisoning the infiltrators who have just arrived, and whose number is
relatively small, is in this context a completely ineffective means. Second, she determined that the
provisions of the amendment to the statute and the detention arrangement set out in it substantially
enlarge and intensify limitation of the constitutional right to liberty of those illegally in the country,
and a limitation of such an intensity exceeds the extent necessary in order to complete the
process of their deportation. Justice Hayut further emphasized that the conclusion regarding the
voidness of the statute does not mean that the legal situation prior to its legislation was satisfactory.
The opposite is the case. The immigration policy issue cries out for a comprehensive legislative
arrangement and long term thinking that might provide a proper solution for the many challenges it
poses for Israeli society.
The Essence of the Opinion of Justice N. Hendel
34 The position of Justice N. Hendel is that the reality that led to amendment of the statute cannot
be ignored: a flood of tens of thousands of illegal infiltrators, which mainly harmed the weaker
socio-economic strata of society. That is the ground upon which the amendment to the statute
grew, and that should not be forgotten. Of course, one cannot ignore the duty — which also stems
from Jewish law — to act compassionately toward any person, as a person, "for the sake of paths of
peace". However, alongside that duty there is also an additional duty in Jewish law: "the poor of
your city come before the poor of another city". Balancing between both sides of the coin — on the
public plane — is delicate, dependent upon the circumstances of reality, and is for the most part
the domain of the legislature and the elected government.
35 When an infiltrator enters the country while clearly violating the law, the authorities may hold
him in custody. However, a distinction must be made between the very act of holding him in
custody, which is, in and of itself, necessary, and the length of the period of custody. That is the
heart of the matter of this petition: does the maximum period of three years' custody withstand
constitutional examination. The Court has the duty to examine the issue with strict constitutional
review (strict scrutiny), which is familiar to us from American law. The significance of that is mainly
that the issue must be examined not only at the time of the legislation of the statute, but also at the
present time.
36 From data relayed by the state it appears that there has been a drastic reduction in the number
of infiltrators: from thousands of infiltrators per month, to tens or even a single digit number of
infiltrators per month. That decrease "shouts" for itself. There can be no comparison between a
situation in which 10 infiltrators enter the country each month and a situation in which 10,000
infiltrators enter the country each month. In addition one must consider the fact that the section
under discussion is defined as a temporary provision, which ex definitio responds to a certain
reality — a reality which no longer exists. In the new circumstances which have been created, and
until a change occurs in them, a more proportional means is sufficient: a maximum period of
custody that does not reach, or even approach, 3 years. Comparative law that shows various

solutions for the period of custody was presented. That does not obligate or limit Israel, but it may
be of assistance to the Israeli legislature.
37 Thus, section 30a(c)(3) must be annulled. Along with it, the entirety of section 30a(c) must be
annulled, as its provisions are derived from the maximum period of 3 years. That annulment is
sufficient, and there is no need to annul the entire temporary provision as proposed by the majority
in this case. There are two reasons for this. First, the other parts of the statute contain positive
components, such as the causes for release, which are not subject to conditions regarding time.
Second, that requires the legislature to concentrate upon the main issue — determining a different
maximum period for custody, and will allow it to complete the job without deviating from the 90 day
deadline which has been determined. Unnecessary pressure, which might not result in any benefit,
should not be put on the legislature. The time remaining until the expiration of the temporary
provision — 15 months — will grant the legislature time to think and to study the implementation of
the temporary provision on the ground, and thus determine a proper alternative.
The Essence of the Opinion of President A. Grunis
38 President A. Grunis concurred in the opinions of Justice Arbel and Justice Vogelman, according
to which the Prevention of Infiltration Law (Offenses and Adjudication)(Amendment no. 3 and
Temporary Provision), 5772-2012 (hereinafter — the "Law") contradicts Basic Law: Human Dignity
and Liberty, and thus must be annulled. President Grunis based his opinion upon reasons that are
different, to a certain extent, from those raised by Justice Arbel. According to his line of reasoning,
the law is faulty not because it does not withstand the second subtest of proportionality, but rather
because it does not withstand the third subtest, known as "proportionality stricto sensu". In other
words, it must be annulled because it does not maintain a reasonable relationship between the
period of custody and the advantages stemming from the law. According to his opinion, in the
current reality, the arrangement in the law, which allows holding the infiltrators in custody for a
period of three years, is constitutionally repugnant, particularly in light of the fact that it is not at this
time possible to deport most of those in custody, who are citizens of Eritrea and Sudan.
39 Nonetheless, the President emphasized that the voidness of the statute is proper at this time,
that is, in the existing circumstances. In his opinion, a substantial negative change in the
circumstances, e.g. a significant rise in the number of infiltrators crossing into Israel's borders,
would justify renewed judicial examination of the issue, should the Knesset again enact a similar
statute. Moreover, according to his approach, even in the existing circumstances there is nothing
preventing legislation of a new statute that allows holding the infiltrators in custody for a period of
time significantly shorter than three years.

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