Case Number
HCJ 7302/07
Date Decided
7-7-2011
Decision Type
Original
Document Type
Full Opinion
Abstract
[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]
A petition submitted by a number of human rights organizations that seeks to examine Israel’s policy regarding deporting to Egypt groups of foreigners entering Israel unlawfully through the Sinai, and who remain in areas under Israeli jurisdiction or on its international border, and this soon after their entry into Israeli territory (hereinafter: the arranged deportation.) The petition wishes to test the above policy, particularly to the extent that it concerns asylum seekers who claim they must be recognized as refugees. Despite changes and improvements to the procedure after the petition was submitted, the petitioners stand by their petition on both its aspects: both the general ones which touch on the lawfulness of the above arranged deportation policy as a whole, and the specific ones which touch on the different revisions which they believe should have been made to the procedure. Additionally, they raise arguments that go the alleged violations of the procedure. In its last supplementary response – which followed the Petitioners’ argument that in light of the actual changes in the area’s geopolitical realty, which resulted in the fact that there is currently no diplomatic agreement between Israel and Egypt, the primary foundation for the State’s claims as to the legality of the arranged deportation mechanism, joined by the depositions that reveal that the entry of Eritrean citizens was allegedly prevented by IDF soldiers without following the provisions of the procedure, is undermined – the State declared once again that, for the time being and since March 2011, no arranged deportations to Egypt have taken place.
The High Court of Justice (in a decision authored by President D. Beinisch, and joined by Deputy President E. Rivlin and Justice (Ret.) A. Procaccia) rejected the appeal:
Once the State has decided to suspend the implementation of the policy at this time, there is no practical meaning for extending a remedy that seeks to void it, because as long as the arranged deportation policy is not implemented, the remedy is theoretical. It is known, as a general matter, that this Court is not in the habit of pronouncing on matters of a theoretical nature but for extraordinary circumstances where in effect it is possible to make a ruling when a general issue that does not involve a particular matter is concerned. Moreover, since the petition was submitted so many proceedings have been held to change the normative and factual foundation that is relevant to it, that in its current form the petition has been exhausted.
Beyond this, under the circumstances, the HCJ cannot extend the petitioners their desired remedy because the current factual reality does not allow the examination of the State’s policy, which the petition challenges while properly addressing all the considerations. Both the State and the Petitioners asked to examine the legality of the arranged deportation policy, among others, through the lens of the procedure designed by Israel and Egypt for its implementation. While the State pointed to a diplomatic agreement that was previously agreed upon by leaders of the Sates, the Petitioners challenged this agreement and maintained that it is insufficient to meet the duties imposed by international law in this context. As it was additionally said in the hearings, this vague and ambiguous agreement caused difficulties even in the eyes of the HCJ, and the data presented by the Petitioners left unanswered questions as to the condition of the deported. Still, as this arranged deportation policy has been suspended for the time being, there is currently no longer reason to examine the legality of one arrangement or another, which is not followed. To all this it must be added that for a long period of time the situation in the Sinai poses real threats to Israel, because beyond its being an exposed and open border which allows the unmonitored entry of foreigners to Israel, it also serves as a danger zone for smuggling of weapons and drugs, and fertile ground for human trafficking. In light of these risks, the government has decided to build a fence along the southern border, the construction of which is being conducted at this time. Once the fence is complete, an additional change in the relevant factual circumstances will have occurred, and it may implicated the issues subject the petition as well.
Considering all of the above, at this time there is no justification and no proper basis, to subject the State’s suspended policy to the strains of judicial review. Should it be decided in the future to follow the arranged deportation policy once more, the Petitioners arguments are reserved and will be examined considering all of the factual and legal aspects that will be relevant at that time. In light of this conclusion there is not need to pronounce upon the second aspect of the Petitioners’ arguments.
Having said this, in light of the difficulties that the arranged deportation policy creates, and particularly taking into account the chaotic situation that is in effect in the Sinai and the concern for the welfare of the deported foreigners, the HCJ assumes that should it be decided to reinstate the policy of deportation to Egypt and in turn to restore its implementation through the procedure, this will be done according to the acceptable standards of international law and while putting in place suitable guarantees for the high likelihood of protecting the welfare of the deported.
Keywords
Immigration law -- Asylum, Constitutional Law -- Basic Law: Human Dignity and Liberty, Labor -- Rights of Foreign Workers
