Global Migration Digest

November 2013 (Vol. 2, No. 1)

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Israel: High Court Strikes Down Amendment by Liam Schwartz S itting as an expanded panel of nine justices last month, the High Court of Israel struck down a recent amendment to the so-called "Anti-Infiltration Law." In so doing, the High Court ordered that the state review or dismiss the administrative detention of approximately two thousand individuals, mostly African migrants, who had entered the country without permission and had not been processed in deportation proceedings or refugee status determinations. The decision involved a 2012 amendment to Israel's 1954 Law for the Prevention of Infiltrators. The amendment authorized the state to hold individuals who had entered the country without permission, for extended periods of three years or more. The nation's legislature, the Knesset, had passed the amendment in response to growing public concern over the nearly 60,000 asylumseekers and migrants, primarily from Eritrea and Sudan, who have entered Israel over the preceding years via the southern border with Egypt. In the course of the arguments before the High Court, the state argued that the migrants must be held without review while the state develops a longterm solution, lest the detainees simply be released freely into the country. The court disagreed, finding that the state hadn't adequately considered less restrictive alternatives, such as open-air prisons, residential facilities, bond guarantees, or broad internal relocation. While Israel does not have "[T]he court found that extended administrative detention without trial disproportionately impinged on the detainees' right to liberty and violated Israel's Basic Law: Human Dignity and Freedom." a constitution, it relies on its Basic Laws as the basis for judicial review of legislation that it finds violative of fundamental rights. In this case, the court found that extended administrative detention without trial disproportionately impinged on the detainees' right to liberty and violated Israel's Basic Law: Human Dignity and Freedom. While the High Court's decision may pave the way towards a more humane approach to the influx of African migrants, the decision as to whether to let these migrants permanently stay or to compel them to leave is still very much in the balance. On the one hand, Israel fears that permitting non-Jewish migrants to remain in the country indefinitely poses a threat to the Jewish character of the State; on the other hand, Israel was created out of the ashes of the Holocaust, and cannot bring itself to close its doors to those escaping genocide (as in Darfur, Sudan) or brutal military regimes (such as Eritrea). Israel's immigration policies are, indeed, a work in progress. Liam is the Principal at Liam Schwartz & Associates in Israel. He is a former chair of the AILA Rome District Chapter. Thanks to David Jacobus, Esq. for his assistance with this article. SAME-SEX MARRIAGE from pg.2 >> foreign same sex-partner in England or Wales and be able to derive the same immigration benefits from marriage as opposite-sex couples can. Section 15 of this act sets out for a review of Civil Partnerships, but it is not yet known what the outcome of this review might be. This great development both extends the boundaries of freedom and equality as well as provides a new option for same-sex couples in terms of immigration. Notwithstanding this wonderful development the UK has for many years already granted full immigration benefits to all same-sex and heterosexual couples who are not married but can provide specified evidence of the fact that they have been in a mutually exclusive relationship akin to marriage and have co-habited for at least two years. Same sex couples who have not lived together for two years can still obtain full immigration benefits if they enter into a "Civil Partnership". This is a formal civil recognition of the relationship by the Crown permitted by virtue of the Civil Partnership Act of 2004. Civil partners are already granted the same property, tax, inheritance, national insurance (social security) and pension benefits as married couples as well as the rights of parental responsibility (if the couple has children). In addition, the partners have regular married couple's rights to claim maintenance, tenancy of the family home, life insurance benefits and hospitalization next-of-kin rights etc. Once in force the new Bill should allow all civil partners in England and Wales to convert that partnership into a marriage, with all of the equal rights and responsibilities of civil marriage. The author wishes to thank George Lake, Support Assistant, for his contribution to the research for this article. www.aila.org 3

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