Ban on family unification for Palestinians married to Israeli citizens remains in effect

The High Court of Justice narrowly upheld a ban on family unification yesterday, such that Palestinians married to Israeli Arabs will remain ineligible for Israeli citizenship or permanent residence. The court decided in a 6-5 ruling that the law in this regard does not infringe on citizens' constitutional rights and that the benefits of the law outweigh any damage to such rights.

"This is a very black day for the State of Israel, and also a black day for my family and for the other families who are suffering like us," said Murad al-Sana, an Israeli Arab attorney married to a Palestinian woman from the West Bank city of Bethlehem. "The government is preventing people from conducting a normal family life just because of their nationality," al-Sana told Israel Radio minutes after the ruling was announced.

The court had granted al-Sana's wife, Abir, a temporary injunction preventing her deportation, but al-Sana said the High Court's ruling made it almost impossible for the couple and their two children, aged 2 years and 5 months, to continue to live together.

The state prosecution, voicing satisfaction with the verdict yesterday, said the ruling had come to safeguard Israel's security during a time of war.

In upholding the ban, the High Court rejected several petitions requesting that the amendment to the Citizenship Law, which has been in effect since 2002, be overturned.

"The welfare and benefit that the Citizenship Law provides for the security and lives of the residents of Israel overrides the damage the law causes to a few Israeli citizens who married or are due to marry Palestinians, and to those who want to live with their partners in Israel," wrote retired Justice Mishael Cheshin in the majority opinion.

Cheshin was joined by Justices Miriam Naor, Asher Grunis, Jonathan Adiel, Eliezer Rivlin and Edmond Levy in upholding the ban.

In the minority: Supreme Court President Justice Aharon Barak, Justices Dorit Beinisch, Ayala Procaccia, Salim Joubran and Esther Hayut.

The law states that only Palestinian women over the age of 25 and men over 35 are eligible to join their families in Israel and eventually receive citizenship. Critics have slammed it as racist and discriminatory, and Amnesty International has called for its repeal.

The petitions were filed in August 2003 by Adalah, an advocacy group for Israeli Arabs; the Association for Civil Rights in Israel; MKs Zahava Gal-On, Roman Bronfman, Talab al-Sana, Mohammed Barakeh, Azmi Bishara, Ahmed Tibi and Abdulmalik Dehamshe; and several Israeli-Palestinian couples. The petitioners argued that the law was racist and violated the right to family life, the principle of equality and the Basic Law on Human Dignity and Freedom.

The amendment to the Citizenship Law formalized a cabinet decision of May 2002 that froze the graduated process for naturalizing Palestinians who marry Israelis. The amendment was enacted as an emergency order in effect for one year, but it has been extended repeatedly. In July 2005, however, then-interior minister Ophir Pines-Paz introduced some changes in the law that slightly eased the restrictions on family unification.

In the ruling yesterday, meanwhile, Levy was the justice who tipped the scales: He agreed with the minority opinion that the law does impinge disproportionately on the basic rights of equality and family life, but joined the majority opinion to reject the petitions.

The Supreme Court president held that the law should be overturned but wanted to allow up to eight months for the decision to take effect; Levy wanted an agreement that would replace the comprehensive ban with a detailed examination of every Palestinian who wants to become a citizen or resident as a result of marriage. He wanted to give the government some nine months to draft a new legislative arrangement, and so concluded that there was no reason to rule at the moment that the law be overturned.

Cheshin wrote for the majority that Israel has every right to keep out members of an enemy state.

"Israel is not a utopia," he wrote. "It is in the midst of a major conflict with the Palestinians, and this armed conflict is like a war. And a state in the midst of a combat situation with another state is allowed to ban the entry of residents of the enemy state into its territory."

Barak, however, rejected the argument that security trumps all: "The ends do not justify the means, because security does not reign supreme; because the proper means of increasing security do not justify serious damage to the lives of many thousands of Israeli citizens."