Challenging the Citizenship Law Banning Family Unification

HCJ 7052/03, Adalah, et al. v. Minister of Interior and the Attorney General.

Petition and a motion for injunction submitted in 8/03, challenging the constitutionality of a new law entitled, “Nationality and Entry into Israel Law (Temporary Order) - 2003,” passed on 31/7/03. Similar to the cabinet’s 5/02 decision (see Adalah’s petition H.C. 4608/02 above), the amendment to the Nationality Law - 1952 prohibits granting residency or citizenship status to Palestinians from the 1967 Occupied Palestinian Territories (OPTs) married to Israeli citizens. The law affects thousands of families comprised of tens of thousands of individuals. The petition was filed in Adalah’s own name and on behalf of the El-Sana and Tbilah families; the Chairperson of the High Follow-up Committee for the Arab Citizens in Israel; and all Arab MKs from the Democratic Front for Peace and Equality-Arab Movement for Renewal, the National Democratic Assembly, and the United Arab List political parties.

Adalah argued that the law violates the rights of equality, liberty and privacy, by limiting the ability of Arab citizens of Israel to exercise these rights based on the ethnicity of their spouses. The law violates the principle of due process (owing to its retroactive application), and is discriminatory and racist, as it exclusively targets Palestinians from the OPTs, the general policy for residency and citizenship status in Israel for all other “foreign spouses” remaining unchanged. Moreover, Adalah argued that the security concerns used by the state to justify the law cannot justify such sweeping measures: while the state claims that increasing involvement in terror activity by residents of the OPTs granted status in Israel through family unification justifies the law, of a group of thousands of status-receivers it could name only 23 people suspected of indirect involvement, none of whom was involved in any actual terror activity. Further, as these numbers constitute a minute number of people, the law is completely disproportionate. Adalah requested that the Court cancel the law and instate alternative procedures for granting status in Israel for Palestinian spouses of Israeli citizens. Adalah also asked the law's implementation to be frozen pending a final decision. The Court declined to do so.

In 11/03, the Court issued an order nisi compelling the state to explain why the ban on family unification should not be declared null and void. The Court also issued injunctions preventing the deportation of three Palestinians married to Arab citizens of Israel, pending its final judgment on the seven petitions currently pending before the Court against the law filed by individual petitioners, the Association for Civil Rights in Israel and the Meretz political party (see e.g., H.C. 7102/03, MK Zahava Gal-On, et. al. v. Attorney General, et. al. and H.C. 8099/03, The Association for Civil Rights in Israel v. Minister of Interior, et. al.). The Supreme Court joined all of these cases, for hearing before an enlarged panel of 13 justices.

At a 1/04 hearing, the Attorney General's (AG) Office argued that the law was necessary as Israel had failed to predict potential involvement in terror activity by those requesting family unification, and indicated that only 8% of requests for family unification were rejected on the grounds of security. The state further claimed that the ban on family unification was justified and directed against all Palestinians, as they support the resistance against Israel, and are potential terrorists. Adalah countered that the law and the AG's position that 3 million Palestinians in the OPTs are all potential terrorists is racist and indefensible, and vilifies the entire Palestinian nation. Adalah emphasized the racist character of the law, differentiating it from a discriminatory law and comparing it to apartheid-era laws in South Africa. Adalah also argued that love is beyond the law and ethnicity. Adalah contended that, while the law was legislated as a temporary order for one year, the Court's failure to rule on the issue would constitute a dangerous precedent, sending a message that the Knesset can legislate racist laws as long as they are temporary in nature. Thus, not ruling on the case is a de facto ruling.

In 7/04, the Knesset voted to approve an Israeli cabinet decision to extend the law for an additional 6 months. On the same day, Adalah requested an injunction from the Court to prevent the implementation of the law, pending final ruling on the 8/03 petition. Adalah argued that the extension of the law would further exacerbate the existing infringement on basic constitutional rights, owing to the fact that the longer the infringement goes on, the harsher the damage inflicted, since the forced separation of families becomes harder to bear the longer it continues. Adalah also contended that families have already de facto been damaged by forced separation prior to the law's passage, as a result of the previous cabinet decision of 5/02: some families have even been affected since 3/02, by an earlier Interior Minister decision. Further, extending the law contradicts what the AG has previously stated in response to the petition. Adalah also contended that the government and parliament did not present any information to justify the law's extension. Finally, Adalah argued that extending the law will cause severe and irreversible damage and suffering to families. In contrast, no damage will be sustained by the respondents if the Court temporarily suspends the law, as the "graduated" process of granting status in Israel is still in effect for non-Israeli spouses. This process allows the Interior Minister to reject applications for family unification on an individual basis for various reasons, including security concerns. In 7/04, Adalah submitted a further motion asking for a judgment on the petition, and for the delivery of a final order from the Court declaring the law void.

In 8/04, the Attorney General stated that the government may seek to amend the law once again in 2/05, through widening the exceptions to the ban on family unification as stipulated under the law. Based on the Attorney General's representations, the Supreme Court ruled that it would wait to see the new amendments before deciding on Adalah's petition, as well as six additional petitions filed against the law to the Court. In response to the Court's decision Adalah stated that it violates the constitutional right to access to the courts, and may constitute a very dangerous precedent, according to which the Knesset will be able to legislate any racist law by merely stating that it is temporary in nature, in order to avoid the Court making decisions on the law's validity.

In 1/05, Adalah sent a letter to the newly-appointed Interior Minister requesting his immediate intervention to terminate a process initiated in 12/04 by the Interior Ministry to amend and re-extend the law through the drafting of a proposed bill. Adalah argued that the proposed amendments stand to impose even more stringent conditions on Palestinians from the OPTs wishing to obtain status in Israel through family unification, and add to the grave constitutional defects within the law. On the following day, the Interior Minister announced the suspension of the all legal procedures connected with the proposed amendments in order to examine them thoroughly.

On 31/1/05, despite the Attorney General's representations that the government would seek to amend the law before attempting to renew it when it expired in 2/05 - which were the basis for the Supreme Court's decision to delay deciding on the petitions challenging the law pending before it - the law was extended by the Knesset for a further four months without amendment.

In 5/05, the government approved a draft bill to extend the validity of the bill further, with some amendments related to age and gender restrictions. The Knesset did not vote on the draft bill, but, in the same month, decided to extend the law without amendment until 31/08/05.

In 7/05, the Knesset extended the validity of the law until 31/03/06, although it is defined as a "temporary order," and introduced new amendments to it. In 7/05, Adalah filed a motion to the Court demanding an order to suspend the implementation of the law and that the Court rule on the petition. As Adalah argued, the new amendments allow family unification between residents of the OPTs and citizens of Israel in very limited circumstances, and include new age and gender-related stipulations which impose a sweeping ban on applications from all Palestinian men under 35 years of age, and all Palestinian women under 25 years of age. Further, while individuals who do meet these criteria can now apply for a permit to stay in Israel, they are only eligible for a temporary permit at most, and cannot qualify for work permits, social benefits, etc. A further amendment provides that no status will be granted to Palestinians who are related to individuals whom security officials suggest might constitute a threat to the state of Israel.

In 12/05, the Association for Civil Rights in Israel (ACRI) and Adalah submitted joint concluding arguments to the Supreme Court of Israel on petitions demanding the cancellation of the racist amendment to the law. The organizations argued that, contrary to the state's representations, the law and its subsequent amendments lack any substantive factual basis. The organizations emphasized in the concluding arguments that the new amendments do not change the racist nature of this legislation, which applies only to Palestinian spouses and is based on their national origin. Therefore, Adalah and ACRI argued that the main challenge to this legislation - that the law is unconstitutional as it discriminates on the basis of national origin - remains pending for deliberation by the Supreme Court.

Result: In 5/06, a 6-5 majority of the Supreme Court rejected the petition and the six other petitions joined to it in a 263-page decision. As a result of the Court’s decision, thousands of Arab Palestinian families will be prevented from living together on the basis of their national belonging. Six out of the eleven Justices ruled against the petitions. Six of the Justices, however, accepted the petitioners’ argument that the law disproportionately violates the constitutional rights to a family life and equality, with one of these refusing to order the remedy of the cancellation of the law. Justice Heshin, who voted to dismiss the petitions, stated that, “The right to human dignity does not include any constitutional obligation on the state to allow “foreigners” married to Israeli citizens to enter the state.” Chief Justice Aharon Barak, who voted in favor of the petitions, stated that, “The issue concerns the right of Israeli citizens of the state to family life and equality, which derive from the constitutional right to human dignity, as espoused in the Basic Law [Human Dignity and Liberty]… this violation of rights is directed against Arab citizens of Israel. As a result, therefore, the law is a violation of the right of Arab citizens in Israel to equality.”

In its response to the decision, Adalah argued that, with its decision, the Supreme Court approved the most racist legislation in the State of Israel. Adalah emphasized that in 1980, during Apartheid, a Court in South Africa refused to approve orders similar to the Nationality and Entry into Israel Law, on the ground that they contradicted the right to a family.

Update: In 1/07, Adalah also submitted a position paper to the AG, Justice Minister and the Chair of the Knesset’s Interior Committee, setting forth its legal arguments against a proposed two-year extension of the law, as well as its expansion to ban unification of spouses from so-called “enemy states”. Adalah argued that the essence of the new proposed legislation is to deny the right to family life on a national/ethnic basis. The Knesset did not pass the proposed law in 1/07, but rather extended the existing law for an additional three months, and Adalah petitioned the Supreme Court (See H.C. 830/07) demanding the cancellation of the extension. In 3/07, the Knesset passed the new law which maintains the ban on family unification where one spouse is a Palestinian from the OPT and adds the more stringent denial of family unification where one spouse is a resident or citizen of Lebanon, Syria, Iran or Iraq – states all defined by Israeli law as “enemy states” – and/or is an individual defined by the Israeli security forces as residing in an area where activity is occurring that is liable to endanger Israeli security. At a hearing held before the Supreme Court in 3/07, the Supreme Court decided that Adalah can file an amended version of the petition against the new law.

H.C. 7052/03, Adalah, et. al., v. Minister of Interior, et. al. (petition dismissed).

 For more information, please see our Special Webreport on the Ban of Family Unification Law