Lara Alqasem – entry of BDS activists and boycott promoters into Israel
Lara Alqasem and her prohibition of entry into Israel was the focus of public debate in Israel for several weeks during the autumn of 2018. The entry of boycott activists into Israel is controversial both in Israel and among the Diaspora. Furthermore, entrance of BDS activists to Israel is explicitly prohibited under Amendment 28 to the Entry into Israel Law. Miss Alqasem was accepted as a student at the Hebrew University, having been issued a valid student visa. But she was detained already at the Ben Gurion airport, and her entry into Israel was denied due to her past as a boycott activist.
Miss Alqasam’s appeal against her refusal of entry reached, in turn, the Appeals Tribunal, District Court, and Supreme Court. The Israeli Supreme Court, sitting as the High Court of Justice, finally approved Lara Alqasem’s entry into Israel. Many public figures, politicians, and jurists in Israel had expressed their opinions on the subject. However, the vast majority of the opinionated public has no knowledge of Israel’s immigration law.
The law firm of Cohen, Decker, Pex & Brosh specializes in immigration, entry, and visa applications in Israel. Previous articles on this site explained the legal background for the refusal of entry into Israel for boycott activists, and what can be done in case of mistaken identification. In this article, Attorney Joshua Pex will examine the legal aspects of the Lara Alqasem affair. The article will explain the precedent that these decisions create. The HJC decision defines terms of the entry into Israel for former BDS activists, or anyone suspected of boycott activity against Israel.
What laws prevent the entry of BDS activists into Israel?
First of all – it should be emphasized that the Entry into Israel Law (1952) gives the Minister of Interior or anyone acting on his behalf (such as Border Control Officers) the authority to approve or prevent the entry into Israel of anyone who is not a citizen or resident of Israel. The Border Control Authority’s right to prevent the entry of visitors and tourists from abroad is based on the Entry into Israel Law. After the passage of the Law for Prevention of Damage to State of Israel through Boycott (2011), the Entry into Israel Law was amended.
Amendment No. 28 to the Entry into Israel Law states that “no entry visa or any type of residence permit will be granted to any person who is neither an Israeli citizen nor has a permanent residence permit in the State of Israel, if he, or the organization or body for which he is acting, knowingly published a public call for a boycott of the State of Israel, as defined in the Law for Prevention of Damage to State of Israel through Boycott, 2011, or has undertaken to participate in such a boycott”.
The provisions of the Boycott Law were tested in the course of HCJ 5239/11 (Uri Avnery v. Knesset). The High Court of Justice ruled that the law is in accordance with the doctrine of “defensive democracy”. Said doctrine confirms the State of Israel’s right to act against those who promote economic and academic boycotts against it. Furthermore, the question of whether the law is the most effective and productive way to defend the Israeli state is not within the jurisdiction of the court.
The Israeli Population and Immigration Authority’s guidelines for the prevention of entry of BDS activists into Israel:
The language of Amendment 28 is very strict and wide reaching. It allows the denial of entry to every foreign citizen who promotes or undertakes to participate in the boycott. However, the guidelines and criteria for interpreting the law establish several limitations. The Boycott, Divestment, Sanctions (BDS) movement involves thousands or even tens of thousands of active groups. It is difficult, unreasonable, and possibly futile to try to act against every activist. The State of Israel cannot keep track of literally everyone who participates in or promotes a boycott against Israel.
The Minister of the Interior and the Minister for Strategic Affairs determined specific guidelines for prevention of entry into Israel of boycott activists. These guidelines are aimed at organizations that support the boycott “actively, consistently and continuously.” According to these criteria, the entry of BDS activists and other boycott activists to Israel will be prevented if they are active in “senior or significant positions in [these] organizations”, or promote the boycott while holding positions of “institutional elements” (such as holders of public office). It was also decided that the entry into Israel of delegations from “prominent de-legitimization” organizations would be denied.
Who is Lara Alqasem and why was she prevented from entering Israel?
Lara Alqasem is an American student of Palestinian origin. In 2018, she was accepted into Hebrew University of Jerusalem, for an M.A in Human Rights. During her undergraduate studies in the United States, miss Alqasem was a member of “Students for Justice in Palestine”. This pro-Palestinian organization calls for a boycott of the State of Israel.
Although she received a valid student visa at the Israeli consulate in Miami, Lara Alqasem’s entry into Israel was refused upon arrival. After landing at Ben-Gurion airport, she was accused of being a BDS activist and sent to the detention facility to await deportation. Her visa was canceled. The Border Control Authority cited considerations of “prevention of illegal immigration” and “public safety”.
Lara Alqasem appealed the deportation order to the Appeals Court. The Population and Immigration authority, as the government agency responsible for denials of entry and deportation, was the Respondent. The Hebrew University took the extraordinary step of joining the appeal. The university argued that the denial of entry would harm Israel’s academic image and deter students from studying in Israel. On the other hand, Im Tirtzu, a right wing student movement, petitioned to join the appeal as a respondent.
Lara Alqasem’s appeal in the Appeals Court:
As noted, the appeals court is the first address to appeal the decisions of the Population and Immigration Authority. Attorney Yotam Ben Hillel filed the appeal, which was marked as (Tel Aviv) 5604-18. The case was heard on October 10, 2018, two days after Lara Alqasem landed at Ben-Gurion Airport. From the moment the appeal was filed, an order was issued to delay the deportation of the Appellant. Until the High Court ruling was handed down, miss Alqasem was held at the detention facility at Ben-Gurion Airport.
The parties’ arguments during the appeal:
The appeal stated that Lara Alqasem had legally and properly applied for and received a student visa to Israel. Despite the Border Control claims, she did not intend to illegally immigrate to Israel or to harm state security. In addition, she claimed that she ended her tenure with the NSJP in 2017. Miss Alqasem also claimed to no longer support the BDS movement. She promised that she did not come to Israel to promote boycott activities. In her view, the very fact that she came to study in Israel was tantamount to violating the boycott, and certainly proved that she is not in Israel in order to advance its goals.
The Population Authority claimed in response that Lara Alqasem was a key boycott activist, being the president of a pro-boycott organization of eight members at the University of Florida. In addition, the fact that she denied being a boycott activist during the interview at Ben-Gurion Airport and deleted her social media accounts prior to her arrival in Israel cast doubt on her claims that she is not a boycott activist in the present and will not promote BDS goals while in Israel.
The verdict of the Appeals Tribunal under the Entry into Israel Law
The honorable Judge Yotam Bergman made the following germane points. The Minister of the Interior and his representatives have a very broad discretion to refuse entry into Israel. The evidence provided by the Population and Immigration Authority was sufficient for the usage of said discretion. Both sides agreed that Lara Alqasem was the president of a student cell which promoted a boycott against Israel. This justified a refusal of entry into Israel on the basis of Amendment No. 28 to the Entry into Israel Law. This evidence was further supported by the Population Authority’s findings.
In conclusion, the appellant was deemed a person who knowingly published a call for a boycott against Israel. Furthermore, she was a “significant” activist. She held a major role in an organization that actively, consistently and continuously promoted the boycott. The Appeal’s tribunal ruled that the refusal of miss Alqassem’s entry into Israel was reasonable under the circumstances.
The Population Authority discretion and lack of consideration:
However, the tribunal reminded the Population Authority that it had leeway to allow BDS activists and other boycott activists to enter Israel if the damage resulting from the refusal was greater than the damage resulting from their entry into Israel (as claimed by the Hebrew University administration). His honor noted that Lara Alqassem had already been in the country as a tourist that year, without engaging in boycott activities. Despite this, representatives of the Population Authority claimed that the balance of damage in this case does not justify the Appellant’s entry into Israel.
The appeals court had supported one of the Appellant’s claims. If Lara Alqasem was to be denied entry into Israel, the time to do so would be before granting her a student visa. It was possible to deny the visa request on the basis of the same publicly available information that served as a basis for refusal of entry at the Ben-Gurion Airport. The honorable judge also recommended the Population Authority take due consideration to avoid this error in the future.
Lara Alqasem’s arguments during the appeal to the District Court:
Lara Alqasem decided to appeal this decision according to her right by law. On October 12, 2018, the Tel Aviv-Jaffa District Court conducted a hearing on miss Alqasem’s appeal. The appeal was titled 11002-10-18, “Lara Alqassem v. Ministry of the Interior”.
The Appellant made the following arguments before the district court. First and foremost, the purpose of Amendment No. 28 to the Entry into Israel Law (per the bill’s explanation) is to prevent harm to state security. The amendment is not aimed at former activists who do not intend to promote the boycott in the future. Miss Alqassem posited that the very fact she enrolled in an Israeli academic institution is evidence of her no longer supporting the boycott. Recommendations from the academic staff of the Hebrew University stated the same.
In addition, Lara Alqasem argued she could not be defined as a significant activist. She headed a small student group whose scope of activity was very modest. Finally, the Appellant argued that since Amendment No. 28 came into effect only in March 2017, the application of the law to previous activity was retroactive. Such Ex Post Facto punishment is contrary to the principles of international and Israeli law.
The Immigration Authority’s response to the District Court:
The Population Authority argued that even if the text of the law refers to activity in the present, this does not mean that it does not apply to activity undertaken in the recent past. The Israeli Immigration Authority believed that Lara Alqasem continued to promote the boycott at the time she received her visa, and intended to continue BDS activity during her stay in Israel. Finally, the boycotts of Israel within the BDS framework are promoted by a large number of students and social activists. A student cell with a few members is a significant focus of boycott activity according to the immigration authorities’ assessment.
The verdict of the Tel Aviv District Court:
Considering that Lara Alqasem did not contest the fact that she was a former boycott activist and in view of the circumstances, Judge Erez Yakuel decided that the Israeli Immigration Authority’s suspicion that the Appellant might engage in boycott activity during her stay in Israel is justified. The Population Authority decision to deny miss Alqassem’s entry into Israel was deemed not unreasonable.
Appeal to the Israeli Supreme Court
Miss Alqasem did not give up, and continued with an appeal to the Supreme Court, sitting as the High Court of Justice. HJC case file 7216/18, which was heard on October 18, 2018. Most of the claims made by the parties in the previous appeals were raised here as well.
Lara Alqasem’s lawyer stressed that the law refers to present activities, regarding active BDS members trying to enter Israel. The Israeli Immigration Authority presented no factual evidence that Lara Alqassem had been involved in boycotts in the past year or during her previous stay in Israel. The Respondent denied entry mostly due to suspicion of miss Alqasem’s past behavior. In light of the importance of academic freedom and freedom of expression, the law should be construed in a limited manner. The Hebrew University also emphasized the later argument.
Per the Population and Immigration Authority: Even if the facts of the case were not sufficient to meet the conditions of Amendment No. 28 and the Population Authority’s guidelines (which was not proven by the Appellant), the Minister of the Interior has broad authority to deny entry into Israel. Per section 2A of the Entry into Israel Law, non-citizens and non-residents, may be denied entry. This is the case even if they have a visa upon arrival in Israel. The Minister of the Interior himself supported the refusal of entry for Lara Alqasem. The Minister of Interior has decided to refuse entry into Israel after duly considering the facts of the matter and the balance of damages.
The Supreme Court’s Discussion of the Goals of the Boycott Law and Amendment No. 28:
Honorable Justice Hendel made his ruling on the basis of the purpose of the Prevention of Damage to State of Israel through Boycott Law, per the explanation of the initial law proposal, and the principles of Israeli legislation. The Honorable Justice noted that the authority of the Minister of the Interior to deny the entry of boycott activists is “preventive and non-punitive”.
Per Justice Hendel: The law seeks to equip the State of Israel with an effective tool to combat the boycott movement, but is not intended to punish former activists for their actions. Ergo, the purpose of the law is not to prevent the entry into Israel of anyone who has expressed an opinion supporting the BDS movement in the past. The law refers to present actions, and deals with those who promote the boycott in the present, using their entry into Israel for the purpose of promoting the boycott.
The Supreme Court’s conclusion regarding the entry of former BDS activists into Israel:
Those who worked to promote the boycott in the past may be able to enter Israel. They will have to prove that they no longer support boycott activities and will not promote them while in Israel. The longer one acted in support of the boycott, and the higher one’s position, the greater the burden of proof.
In addition, the Minister of Interior’s broader authority to deny the entry to Israel of foreign nationals is not of a punitive or vengeful nature. It is certainly not within the authority of the Israeli government to punish foreign citizens for political opinions that they have promoted in the past and do not hold today. The Interior Minister has the authority to deny entry into Israel on the basis of suspicion of harm to state security or illegal immigration – considerations that are irrelevant in this case.
The Supreme Court’s decision on the entry of Lara Alqasem into Israel:
Honorable Justice Handel ruled that Lara Aqasem’s behavior, coming to study at the Hebrew University, “is inconsistent, to put it mildly, with the thesis that the petitioner is a covert boycott activist who might exploit her presence within the State of Israel to provide aid to the BDS movement.
The term “boycott” is defined in Article 1 of the Boycott Law as “the deliberate avoidance of an economic, cultural or academic link with another person or entity solely because of its connection to the State of Israel” – that is, the exact opposite of the Appellant’s actions, seeking a close connection to Israeli higher learning institutions. The testimonies of lecturers at the Hebrew University and in the United States were mentioned in this context. The appellant’s interest in the history of Judaism and in Israeli law was considered further proof of the above.
Since a long time (more than a year and a half according to the Appellant’s version) since she conducted BDS activity, and since the activity was “relatively minor,” the High Court of Justice ruled that the decision to deny Lara Alqasem’s entry into Israel was unreasonable and did not advance the objectives of the law. The Interior Minister’s decision to refuse the entry of Lara Alqasem into Israel was overruled. However, the Ministry of the Interior may cancel the visa and deport the appellant if she engages in BDS activities.
Conclusions from the Lara Alqasem case for those suspected of boycotting Israel:
All parties consistently emphasized that the Israeli immigration Authority has the right to prevent the entry into Israel of BDS activists. This authority applies to every activist who actively promotes the boycott at the time of entering Israel. This authority extends to those who stopped promoting the boycott only in order to obtain entry into Israel.
Other considerations are relevant in determining whether someone who claims they no longer promote the boycott are sincere. In such cases, Israeli authorities may examine how long and how consistently said individual supported the boycott beforehand. The longer a BDS activist engaged in advancing the boycott and the more senior their role, the greater the burden of proof that they no longer support the boycott and do not intend to engage in boycott activity against Israel during their visit.
Finally, and perhaps most obviously. Miss Alqasem’s entry into Israel was denied by the Border Control, Population and Immigration Authority, and Minister of Interior. Her appeals to the court of appeals and district court affirmed said denial of entry. Only by taking her appeal to the Supreme Court did she manage to find a favorable outcome. This is a lesson in perseverance for those who are certain that justice is on their side.
Contact us – Israeli immigration lawyers – Cohen, Decker, Pex, Brosh
The law firm in Jerusalem and Petach Tikva, Cohen, Decker, Pex, Brosh specializes in immigration and entry into Israel. If you / a friend / a relative were denied entry into Israel, we will be happy to provide legal assistance. Contact our law office in Jerusalem or Petach Tikva (Tel Aviv area) to appeal against refusals of entry and to obtain a visa.
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