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For Supreme Court, Israeli interests dictate rights of ‘foreigners’

In many countries, if asylum seekers are engaged in legal proceedings, their deportation is automatically delayed, in light of the implications of deporting an individual to a country where he or she faces danger. In Israel, this principle does not exist. 

Activists protest in central Tel Aviv against the Prevention of Lnfiltration Law, January 10, 2012 (Activestills)

We have discussed elsewhere how the rights of “foreigners” in Israel are considered through the prism of the rights and interests of Israelis.  The likelihood of the court granting a “foreigner” relief in the country improves considerably if an Israeli citizen’s rights and interest are positively affected. However, when seeking legal status in Israel in order to improve their own individual rights, “foreigners’” chances of gaining the court’s support are minimized.

The Supreme Court last week handed down four decisions clearly demonstrating this point. It should be noted that the decisions were handed down by three different judges, and it is unclear how they would have fared had all of the rulings been issued by the same judge.

The four decisions were handed down in response to requests by “foreigners” to delay their deportations from Israel until the conclusion of legal proceedings dealing with their individual status in Israel. Two criteria are reviewed in these instances: the likelihood that the court will accept the petition or appeal, and the “balance of convenience,” which is the ratio between the harm and benefit of their delayed deportation. In many countries, if asylum seekers are engaged in legal proceedings, their deportation is automatically delayed, in light of the harsh implications of deporting an individual to a country where, in hindsight, he or she will face danger.

This principle does not exist in Israel.

We ask readers to ask themselves in which of the following four cases would more harm be inflicted on the deportee if the court eventually accepted his or her petition or appeal, even if he or she is allowed to return to Israel:  A Colombian national, who is lesbian, who will be deported to a country where she claims her life is in danger if, following the deportation, legal proceedings conclude that lesbians are indeed persecuted in Colombia; a Philippine national conducting legal proceedings to prove his paternity of a Filipino boy who was granted legal status in Israel if, after his deportation and several months away from his son, he is indeed found to be the father and is granted the right to stay with his son in Israel; a Chinese citizen, whose claim of being a Falung Gong practitioner is denied by the Interior Ministry, and the court determines after her deportation that she is indeed an activist and that her life is in danger in China; or a Philippine national who has resided in Israel for many years without a permit and is a caregiver for an autistic Israeli boy.

The first three cases pertain to the rights of the “foreigner.” In the fourth scenario, deporting the caregiver prior to a final verdict on the petition would affect the Israeli boy. The fourth was the only case among those described in which the Supreme Court determined that the deportation should be delayed until a verdict on the appeal is reached – because an Israeli boy’s life would be affected.

In the first three cases, the Supreme Court determined that the chances of siding with the appellants were low (this decision was made prior to the full proceedings, during which all of the claims and the entirety of the material on which the appeals were based would be presented), and that the deportations should go ahead without the need to wait for a verdict. In the fourth case, the court determined that it would not address the legal proceedings, as the “balance of convenience” is sufficient to delay the caregiver’s deportation, due to the harm that her deportation would inflict on the Israeli boy.

If the court was to act in a similar manner in the first three cases, it is hard to see how it would not have reached similar conclusions. If the court was to refrain from examining whether the appeals would eventually be accepted (since it did not have, at that stage, all of the relevant material at its disposal) and address the harm that would be incurred as a result of each individual deportation – persecution, arrest, possible death and an extended separation of a father and son – it is hard to see how it would still reach the same conclusions.

As any rational person should know by now, the asylum system in Israel is unfair and defective; it grants a false sense of administrative proceedings, the results of which are pre-determined. The “foreigners” appealing are all liars, they’re all economic migrants, no one is a refugee. As the United Nations High Commissioner for Refugees has noted, the rate of refugee recognition in Israel is the lowest in the western world; in fact, in the three years since the Interior Ministry began independently reviewing asylum requests, only one person has been recognized as a refugee. Whoever deals with refugee issues in the world, in practice or in academia, already knows that Israel’s asylum system is an international joke,  despite the fact that it takes itself very seriously.

Sadly, the court system does not recognize this.

Orna Dickman translated this post.

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    1. Philos

      Indeed if Israel were a “Western” country this might be appalling, however, given that all it is just a technologically advanced Middle Eastern state with a crumbling facade of Western architecture this should surprise no one.

      Reply to Comment
    2. What is the point of a verdict if jurisdiction is lost through removal of the subject from Israel? The issue is remaining in the country, not coming back to it. I wonder if these cases are declared moot once the subject is deported, so that the courts actually decide nothing, not even in principle.

      But immigration law lags in the West, too. I vaguely recall a US Supreme Court decision saying that indefinate detention without plausible outcome denies due process to immigrants. But “indefinte” is well over a year.

      Your “unwritten constitution” is a war constitution, protecting Israelis and the State. It is not surprising that the fourth case turned on being a caregiver to an Israeli child. The logic of war protection, which has dogged Israel since its foundation, is generalized to other matters. Actually, this is a positive advance in jurisprudence of the moment. It is not fair, but you have no written constitution to measure fairness.

      Reply to Comment

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