(Washington, DC) – Israel’s High Court of Justice ruled on September 22, 2014 that the law establishing a facility where Israel is holding thousands of asylum seekers and migrants is void, Human Rights Watch said today.

The ruling gives the government 90 days to close the facility, called the Holot Residency Center, or change the legal framework of a policy that the court said had a cumulative effect amounting to detention. The court also declared void the provision that allows the government to detain newly arrived “infiltrators” for a period of one year. 

“Israel’s High Court of Justice correctly found Holot to be a detention center, despite government protestations to the contrary,” said Bill Frelick, Refugee Program director at Human Rights Watch. “Instead of using detention and the threat of detention to coerce Eritreans and Sudanese to return to countries where they would risk being persecuted, Israel should develop a fair and workable asylum system that offers them protection and a chance to live in dignity.”

The positive ruling is consistent with Human Rights Watch findings in a recent report that characterized the “residency center” at the center of the court’s decision as “a detention center in all but name.”

“Let us not allow the name – ‘open facility’ – to lead us astray,” the court said. “The requirement to show up for three daily head counts, combined with the center’s great distance from the area’s towns, eliminate almost any possibility of regularly leaving the detention center.” 

The court said that the government’s migrant detention policy breached Israel’s Basic Laws, which Israeli courts treat as constitutional, saying: “Every person, by virtue of being a person, has a right to human dignity…and infiltrators are people. And if that needs explanation, let’s say it explicitly: infiltrators do not lose one ounce of their right to human dignity just because they reached the country in this way or another.”

The Israeli government had claimed the detention center was an “open” facility, but its regulations and location in a remote part of the Negev Desert effectively prevented people from being able to leave except for a few hours. The court ruled 7-to-2 to nullify the law that established the Holot Center.

On September 9, Human Rights Watch issued a report, “‘Make Their Lives Miserable:’ Israel’s Coercion of Eritrean and Sudanese Asylum Seekers to Leave Israel,” which documented how the Israeli authorities used indefinite detention and the threat of indefinite detention to coerce almost 7,000 Eritreans and Sudanese into leaving the country. Although the court did not rule on the use of detention to coerce migrants to leave, the decision, written by Justice Uzi Vogelman, cited “unreasonable pressures and means which push a person to leave the country, may render his exit an impermissible forced deportation.”

Human Rights Watch also documented how some returning Sudanese have faced torture, arbitrary detention, and treason charges for setting foot in Israel, while returning Eritreans also face a serious risk of abuse.

In September 2013, the High Court struck down a January 2012 amendment to the 1954 Prevention of Infiltration Act that had allowed the authorities to detain “infiltrators” indefinitely. In response to that ruling, the Knesset, the Israeli parliament, passed a new amendment to the anti-infiltration law in December 2013 that established so-called “centers for residents” where certain “infiltrators” – namely people who could not be deported—could be held indefinitely. Effectively that meant Sudanese and Eritreans.

The December 2013 amendments also provided for the incarceration of newly arriving “infiltrators” for up to one year in completely closed prison-like facilities, such as the Saharonim Detention Center in the Negev Desert. 

The authorities contended that Holot, a desert facility surrounded by a 4-meter-high fence about 65 kilometers from Beer Sheva, was an “open residency center” and not a detention center because the residents held there were permitted to leave the building for brief periods of time. In fact, the “residents” have had to report three times a day and be inside the center by 10 p.m.

The court ruled that head counts at Holot should be immediately reduced from three times to twice a day, until the center is closed in 90 days or an alternative legal framework for it is established.

In a 6-to-3 ruling, the court further held that the provision authorizing one year of detention in other, more restrictive detention centers for arriving “infiltrators” breached Israel’s Basic Law. This means that the Entry into Israel law will become the default, which permits release after 60 days in detention.

Media reports on the court’s ruling quoted  Interior Minister Gideon Sa’ar saying he could “not accept the verdict of the High Court,” which, if implemented, would mean “we won’t have a Jewish democratic state because our borders will be overrun… with illegal infiltrators.” Sa’ar was reported to have said that the government should amend Israel’s Basic Law on human dignity, which was the foundation for the High Court’s ruling, to exclude the court’s jurisdiction to review legislation regarding infiltration into Israel.

From 2006 to 2013, 64,000 asylum seekers and migrants, including 50,000 Sudanese and Eritreans, entered Israel via the land border with Egypt’s Sinai Peninsula. Israel has since completed a fence along the border, and the number of people entering the country irregularly has fallen to near zero.

Israel refused to allow Sudanese and Eritreans to apply for asylum until late 2012, claiming that they were “work infiltrators” and that it afforded them adequate protection by not deporting them to their countries. Since then, Israel has denied 100 percent of asylum claims from Sudanese nationals and more than 99 percent of Eritrean asylum claims. Sudanese in Israel have a sur place refugee claim – that is, a claim created by events that occurred or activities the asylum seekers engaged in after leaving their country – because under Sudanese law they could be subject to up to 10 years in prison for having set foot in Israel. Most Eritreans base their asylum claims on fear of excessive punishment amounting to persecution for evading life-long military conscription in Eritrea because the government regards draft evasion or desertion as treasonous acts of disloyalty. Israel does not grant Eritreans or Sudanese the formal right to work, and many have problems accessing adequate health care, Human Rights Watch found.

The court ruling focused on detention and did not address other abusive Israeli asylum procedures.

In its report, Human Rights Watch recommended that Israel recognize Sudanese as refugees on a prima facie basis, and consider Eritrean refugee claims consistently with UNHCR’s Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Eritrea. Israel should also grant nationals of both countries a renewable 12-month temporary status with work authorization until it is safe to return to their countries, Human Rights Watch said.

“The authorities should stop trying to evade the High Court’s constitutional rulings on the rights of migrants and asylum seekers,” Frelick said. “The Israeli government should direct its energies to complying with the court’s order and treating the people it is locking up with basic dignity.”