Israel: Border Control or Social Control? The Case of Migrant Workers' Right to Family

My name is Hanny Ben-Israel, and I am an attorney working on labor migration issues in Israel. I would like to thank the organizers of this conference for inviting me to participate and share with you some of my experiences and thoughts relating to the issue of migrant workers in Israel. I have been working in this field for the past few years at the Israeli non-governmental organization Kav LaOved (Worker’s Hotline), which is the oldest and largest civil society organization in Israel dedicated to protecting and promoting the rights of disadvantaged workers – primarily migrant workers, Palestinian workers and low-wage Israelis.

In the relatively short amount of time I have, I’d like to speak to you about a particular aspect of Israel's immigration policy towards migrant workers, which is little known to the majority of Israelis – Israel's treatment of migrant workers' right to family. I chose to focus my remarks on this issue, firstly, because I feel that it is not spoken of enough when we discuss policy issues relating to labor migration to Israel; but also and primarily because it showcases the complete moral failure that is the regulation of labor migration into Israel, and the unthinkable outcomes of any policy which is premised on the reduction of human beings into nothing more than their labor.

To start, I would like to share with you the content of a decision given a little over a month ago by the "Tribunal for Detention Review of Unlawful Residents", a quasi-judicial tribunal that has the authority to review the Interior Ministry's decisions to detain undocumented residents after they are ordered deported from Israel. The decision was given in the matter of a woman migrant worker from the Philippines in the eighth month of her pregnancy, who is now represented by myself and by two colleagues from the Hotline for Migrant Workers and the Association for Civil Rights in Israel. Our client was, until detained, lawfully present in Israel with a care-giver visa. The decision reads as follows:

             "The detainee is staying and working in Israel for three and half years. The detainee is in the 30th week + 5 days of her pregnancy. Her partner, the baby's father, is a Philippine citizen lawfully working in Israel.

             The detainee requests that she will be released so that she can give birth in Israel and then continue to work in Israel.

             The detainee is staying and working in Israel together with a partner, the father of her baby who is supposed to be born, 'besha'a tova' (Hebrew for future congratulations), in two months. According to the Interior Ministry's procedures, partners cannot work together in Israel. The detainee has a family unit to which a baby is about to join.

             Under these circumstances, in which the Interior Ministry will not give a work permit to the detainee, I don’t see that there is cause to release her, even if the detainee states that she intends to send the baby to her country of origin. 

             I am authorizing the detention order without changes."

The Interior Ministry tried to deport our client the very next day after this decision was given. She was able to contact us from the airport and asked for urgent legal assistance. We filed an urgent petition to the court and were able to secure a temporary order forbidding the Interior Ministry from deporting our client back to the Philippines.

The very next day we went to visit our client in the "Givon" prison compound where she was detained. We tried to explain to her in detail what her legal situation was and how we evaluate her case's chances. Out of the many things she said to us that day, one particular thing stayed with me and kept echoing as we made our way back from Ramle to Tel Aviv. She said – "I just don’t understand why I am in prison."

Why was our client – a documented migrant worker who entered the country legally with a migrant care-giver visa – in prison? This is the question I will try to answer for you today.
As I'm sure you've heard many times already during this conference, Israel's labor market has been relying for decades on the cheap labor of non-citizens. At first, they were Palestinians living in the occupied territories. In the early 1990s, these Palestinian workers were replaced by migrant workers from several countries, who entered Israel initially to replace Palestinian construction workers and agricultural workers. In addition, men and women were admitted as domestic care-givers for the elderly and the disabled at the same time that Israeli health care services were becoming increasingly privatized.

The admission of migrant workers into Israel – whose numbers peaked to 250,000 in 2002 – is one of the most significant, and certainly the largest, exception to an immigration admission system which is based almost entirely on religious affiliation, and which gives preferred and almost exclusive status to Jews with regard to entry into Israel. How can such a system be reconciled with the choice of continuous admission into the country of tens of thousands of "foreign" workers?

It is this tension between the economic desirability of migrant workers to the Israeli economy on the one hand, and the complete hostility to the idea of their equal membership, or integration, in Israeli society on the other hand, which can perhaps explain why a central goal of Israel's immigration policy in respect to migrant workers has always been, and continues to be, to make sure that their stay in the country is temporary and that they are prevented from "taking root".

There is of course nothing "temporary" in the presence of migrant workers in Israel, certainly in their group presence, given the choice to rely completely in recent decades on migrant workers for employment in sectors such as agriculture, construction and care-giving; a choice which indicates that migrant workers' presence in the country is not at all momentary, and that their entry into Israel is not intended to fill a "temporary" labor shortage. This being the case, the policy which aims at preventing migrant workers from "taking root" is accomplished by making sure that there is a constant and rapid movement of migrants in and out of the country – a policy we named the "revolving door" policy, the primary beneficiaries of which are employment agencies and intermediaries who charge migrant workers thousands of dollars for the facilitation of their arrival to Israel, and for whom the deportation apparatus means very good business

In order to achieve this goal of keeping migrant workers from "taking root" in the country, Israeli law provides that migrant workers can lawfully stay in the country for a maximum period of 63 months, after which time they are forever banned from returning to Israel. If they don’t leave, they will be arrested and deported. The one exception to the 63 months policy is migrant workers employed as domestic care-givers. Due to the special nature of care work and the emotional attachment many care patients develop towards their care-givers, an amendment to the Entry into Israel Law of 2004 essentially lifted any time limit formerly placed on the duration of a migrant care worker's stay in Israel, on condition that she stays with the same employer.

Yet even for migrant care-givers, who can lawfully stay and work in Israel for years and years, the view and policy is that their integration in society is entirely undesirable and must be obstructed. To accomplish this goal, Israel has quite simply chosen to prohibit migrant workers from engaging in a broad spectrum of human activities seen as indicative of long-term settlement aspirations, and to penalize "offenders" with detention and deportation.

The first prohibition is forming an intimate relationship with another migrant worker while in Israel. This policy is the extension of a more general policy, which forbids migrant workers who are first-degree family members from immigrating jointly into Israel. The interior Ministry decided to read the procedure prohibiting family members from immigrating together into Israel very broadly and flexibly, and extended it to any intimate relationships between migrant workers formed in Israel. This means that when two migrant workers enter a relationship, they become, in the eyes of the Interior Ministry, "first degree family members" in violation of their visa conditions, and hence legitimate targets for detention and deportation.

Another activity which is seen as indicative of long term settlement aspirations, and is therefore severely sanctioned, is pregnancy and parenthood. According to the Interior Ministry's "procedure for the handling of a pregnant migrant worker", when a female migrant worker lawfully present in Israel gives birth, her residency permit is immediately revoked and she must leave the country within three months following childbirth. Alternatively, she can send the baby abroad as means to retain her documented status. Of course, the birth of a baby puts the father's status in jeopardy (if he too is a migrant worker holding a migrant worker visa), since the baby is considered a "first degree family member" now present in Israel.

It is hard to exaggerate the draconian nature of these policies, especially considering the fact that Israel has openly decided to base the home care giving sector – the largest employment sector in Israel for migrant workers – almost entirely on the workforce of young migrant women of childbearing age (who, as I mentioned, can stay in Israel with no time limit). Still, Israel believes it can have a reasonable expectation that these women will relinquish any hope for motherhood, and even a romantic relationship.

Let us go back to my client's question, with which I opened my remarks, who asked us "why am I in Jail"? The answer is that our client was in Jail because policy makers in Israel seem to believe that it is permissible to forbid migrant workers from leading full lives; that penalizing human beings for pregnancy, intimacy and family is a legitimate form of State regulation; and that, to paraphrase Max Frisch's unforgettable words, importing a "workforce", does not necessarily imply the "importation" of flesh and blood workers; human beings who have more dimensions to their existence than strictly their labor.

Governmental policy on labor migration is often seen as an attempt to control and regulate the country's borders and its labor market. Yet the Israeli project of regulating labor migration has always been about much more than that. The laws, procedures, and institutions designed to prevent the long-term settlement of migrant workers in Israel resulted in a reactionary project of social control over a predominantly female, poor, and marginalized social group.

Of course, any form of border control is in itself a form of social control, in the sense that its aim is to direct behavior and penalize deviants. The purpose of my remarks today is rather to highlight the peculiarities of the Israeli project of regulating labor migration, and to point to its real targets – not so much the local labor market or the integrity of the border, but rather, migrant workers' reproductive lives, their intimate associations, and their sexualities. All of these dimensions of migrant workers' existence became fair targets for State intervention, supervision and control.

The theme of this panel is new challenges that we face in the field of labor migration. To conclude, I would like to share with you what I recognize as a fundamental challenge for those of us who advocate for change and who would like to see these policies reformed. The fundamental challenge as I see it has to do with how we meaningfully advocate for change in a reality where so many migrant workers "agree" to the spectacularly unfair "immigration deals" countries like Israel offer them. Massive global inequalities coupled with the seemingly endless supply of unskilled or semi-skilled workers from poor countries means a very meager bargaining position for these workers – not just in the context of the labor market, but also with respect to the "immigration market". In other words, Israel can continue with these policies and get away with it. Migrant workers will continue to come even under these conditions.

Our challenge then is to make policy makers understand that this fact alone – the fact we can get away with it – is not enough. We must continue to remind policy makers that human rights are inalienable and that people cannot give a meaningful consent to their denial. Policy makers must also recognize that there is no way for a country to invite tens of thousands of migrant workers and not to have it reflected in the fabric of society. The desire to invite migrant workers into the country and at the same time to forcefully remove any sign or indication that they exist other than as workers is not only racist and morally reprehensible, but it is also bound to fail.