When is it permissible to detain a foreigner?
The issue of an immigration inspector or police officer’s authority to detain a person whom they consider suspicious has come up several times in the past, in the Palmore report on the fight against racism, as well as in various court rulings in the context of racism against black people in Israel and racism in Israel in general. Human rights activists and protest activists of Israelis of Ethiopian origin claimed that this authority to detain a suspect is used too frequently and inappropriately. They claim that people are often detained just because of their skin color, on the basis of racism. While there is no specific anti-racism law in Israel, there are other basic laws that uphold it as well as court rulings.
The Entrance to Israel Law, 1952 defines those entitled to reside in Israel and regulates the provisions applying to those residing in Israel illegally, including their removal and detention for the purpose of deportation.
For example, Section 13(a) of the law states that a person who is not an Israeli citizen or a legal immigrant, and who is found without a valid permit, will be expelled from Israel as soon as possible, unless they left earlier voluntarily: “If a police officer or an immigration official has reasonable basis to suspect that a person is residing in Israel illegally, or that there is a detention order or a return to detention order regarding them, the officer may, after identifying themselves to the person and explaining to them the reason for the demand, require them to accompany him or her.” Section 13a (b) even goes so far as to state that an illegal resident will be held in custody until they leave Israel, or until they are expelled from it, unless they are released on the basis of a financial guarantee.
However, a 2018 proposed amendment to Section 13e(a)(1), which would have deleted the requirement for a reasonable basis, allowing an inspector or police officer to approach any person, was not adopted, due to fear of arbitrary enforcement and discrimination.
When is it permissible to search without a search warrant and when is it permissible to detain someone without reasonable suspicion?
The question arises, what is this reasonable basis? When is it permissible according to the Criminal Procedure Code to conduct a search without a court order? This was not specified in the law, but several court rulings have referred to it. For example, in March 2012 the Supreme Court ruled that the test for the existence of a reasonable basis is an objective test, in which the court is required to evaluate the reasonableness of the police officer’s judgment in order to decide on the legality of the search (Criminal Appeals Authority 10141/09). This is not a fixed rule but rather an assessment of each case individually; however, there are some criteria that establish reasonable suspicion:
- Suspicious behavior
- Prior information about the commission of an offense in the place and at the time when the person is there
- Prior information on the description of a person suspected of a crime or the area where they may be found
The law sets a minimum standard of “reason to assume”, that is, the person being suspicious, so that the immigration police or the other responsible authorities can require a person to identify themselves in order to determine whether they are residing in the country legally.
In January 2021, the Supreme Court addressed the question of a police officer’s authority to demand an identification card and carry out additional policing operations, even without reasonable suspicion of a crime being committed, in accordance with the Law on Possession of an Identity Card and its Presentation, 1982 (Supreme Court Case Tabaka 4455/19). Chief Justice of the Supreme Court Esther Hayut established a number of principles for exercising the police officer’s discretion when there is no reasonable suspicion and stated that the law does not authorize additional policing operations other than the identification itself.
A precedent-setting ruling that changes the picture
In August 2021, in a precedent-setting ruling, the Center-Lod District Court forbade the immigration police to detain a person on the street merely based on the color of his skin, because this fact is not “a reasonable basis for assuming that he is an illegal resident” and therefore the defendant was released from custody with certain stipulations (Administrative appeal 64729-06 -21).
This ruling is expected to fundamentally change immigration inspectors’ work method. The case began with a foreigner who came to Israel on a tourist visa and after cohabiting with an Israeli citizen received a temporary residence permit and began a gradual procedure for obtaining legal status. Because their relationship did not work out, the gradual procedure was stopped and he was asked to leave the country within 14 days.
Months later, inspectors from the Enforcement and Foreigners Administration at the Population and Immigration Authority, during their routine activity, noticed him standing at a bus stop. After they looked into his details and realized that he did not have a valid visa, he was detained until his deportation.
The Detention Court decided that it found no grounds for interfering with the detention order and that it was not proven “that this was done solely because of the color of the detainee’s skin and that he was signaled out for this by the Authority’s inspectors, as claimed.”
But the subject did not give up, and through attorney Assaf Weitzen from the Tomer Warsaw law firm, appealed to the district court, sitting as the Administrative Affairs Court.
Attorney Weitzen claimed on the appellant’s behalf that he had been subjected to illegal profiling based on ethnicity, basing his claim on a series of Supreme Court rulings on the subject. It was written that there was no basis to assume that the appellant’s stay in Israel required a residence permit. Hence, the inspectors approached him solely because of his appearance. “These factual claims are based on the subjective feeling of an inspector, which is not based on the report or on objective data. Under these circumstances, the only possible conclusion is that the arrest was made solely because of the color of the appellant’s skin.”
Judge Efrat Fink wrote in the ruling that “while reasonable suspicion deals with crimes, and hence there is a need for a basis that establishes a suspicion of a crime being committed, the basis for assuming that the subject of the Entrance to Israel Law is concerned is an administrative action required for the purpose of ascertaining the legality of the stay in Israel, and hence there is a need for a basis that establishes this action and not suspicion… the Entrance to Israel Law requires that the inspector have a reason to assume that a person’s stay in Israel requires a residence permit. Only if this basis exists can a person be asked to identify themselves according to the Entrance to Israel Law… Approaching a person only because of their appearance may lead to a disproportionate violation of human dignity, selective enforcement and discrimination against certain minorities”.
Judge Fink further ruled that the report did not provide any explanation as to why the location and time that the subject was approached should establish a basis for their action. “The assumption that the appellant was approached mostly due to his appearance is based on the lack of justification in the report… The state also confirmed in its summation that one of the reasons for approaching the appellant was his appearance. I find no reason to accept the claim that the justification for the inspectors’ action lies in the fact that in the end it turned out that this was indeed a person without a permit to reside in Israel. The justification for the authority’s action is not measured by its results, but rather it requires reasoning from the outset.”
Our office specializes in immigration and legal status in Israel, and we represent individual and commercial clients in appeal procedures and appeals against decisions of the Interior Ministry and the bureaus of the Population and Immigration Authority in all matters related to immigration to Israel. The firm also represents clients before the Interior Ministry in legal courts, such as: the Custody Review Court, the Appellate Court, the Administrative Court and the Supreme Court in appeal proceedings and administrative petitions against the legality of Interior Ministry decisions.