The State of Israel has a clear immigration policy. It is called the Law of Return (1950). This policy stipulates that as the nation state of the Jewish people, Israel will open its doors to Jews and will, on the whole, be closed to others; although the Israeli government is authorized in specific circumstances to make exceptions to this rule. Without this policy Israel would not exist in its current form as a nation state. However, despite the overall downward trend of illegal immigration between 2014 and 2020 there has been an unprecedented increase (approx 300%) in the number of legal proceedings. If the law of return is so explicit, one must examine why our legal system is flooded with immigration requests and why the rate of illegal residency in Israel is twice the European average.
These system failures are in fact due to the misimplementation of Israel’s legal policy which creates incentives that encourage illegal settlement. Judicial policy in Israel is regrettably shaping immigration law that in actuality contradicts the current laws of the land. How so? The court creates a system of norms contrary to the law by intervening with the unlimited discretion of the Minister of the Interior and by transferring this discretion to jurists – out of reach of the democratic decision-making principle. Thus, the courts are enabling, rather than reducing, the growth of illegal immigration.
For instance, the courts automatically grant foreigners who initiate legal proceedings temporary visas that enable them to reside in Israel until a final judgment is reached at the end of lengthy appeals. This provides an incentive for the opening of such proceedings. Moreover, these “temporary stays” are permitted to reside within Israel proper rather than being set apart with other such cases which inevitably tends to complicate the case and may make departure harder, especially with longer standing cases. With occurrences where visas or work licenses have expired and the foreigner stays illegally before launching a claim to remain they are granted relief to remain. However, as a rule, temporary relief should not be granted to delay their removal. Similarly when the individual stays in Israel illegally and gets married during this illegal stay before requesting citizenship or when a foreign worker presents different accounts at varying stages of the process which detracts from his credibility. Claims such as these are not being monitored or managed appropriately.
An additional incongruity is the fact that the President of the Supreme Court is able to determine which judges will hear applicant immigration claims (to date 96% of administrative appeals have been routed to two specific judges). This creates a bias that should not be permitted and is conducted without the involvement of the Knesset. Furthermore, the Supreme Court uses its powers to contravene the law by recognizing new causes contrary to government policy, overlook unproven facts, avoid appeal and grant proactive status without legal cause.
This is compounded by the fact that over the years, Israeli governments have made various decisions that have granted group status in a manner that deviates from the Law of Return. This was the case, for example, with repeated decisions regarding the children of foreign workers. This cannot continue if we are to ensure that the State of Israel will be a nation state for the future. The government must determine that no permanent group status will be given to foreign populations located in Israel except by an individual examination at the discretion of the Minister of the Interior. This unequivocal measure will avoid offering false hopes and incentives and will cease violating the Law of Return. When there is recognition of new circumstances independent representation must be required. Care must also be taken to return administrative cases to the Minister of the Interior, even after exercising judicial review. This is because the sole authorized body to grant or deny status is the Minister of the Interior, and not the Supreme Court.
Additionally, the State of Israel has also been negligent in implementing foreign workers’ regulations. In practice, the state does not deduct from the deposit money of foreign workers the amounts it must deduct, by law. This amasses to around NIS 40 million every year. To date, more than NIS 200 million has been lost to the state coffers. This is a forfeiture not only of a tremendous economic incentive to keep the law but also of a tool to guide law-abiding behavior. As such the law itself is aiding and abetting the illegal workforce. The state must act in accordance with the law and deduct the necessary funds.
Finally, it is notable that the State of Israel has never established its goals in relation to illegal immigration. We propose that a five-year plan be drafted to reduce the numbers of illegal foreign workers by 250 every year (today, their total number stands at 600 per annum and is on an annual upward trend), enforce annual removals and encourage and incentivize voluntary departure that includes raising the departure grant after which the sanctions for illegal stay will be increased.
Representatives of the state agree that the protected constitutional right of the collective is the Law of Return. However, when the legal branch does not do its job faithfully, the ability to eradicate illegal immigration is impaired. The rightful policy of the Law of Return must be enforced and implemented effectively. Israel’s citizens must demand better of our state and legal system.
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