Israel’s Supreme Court issued an interim order Tuesday barring the Interior Ministry from continuing to deny Palestinians who marry Israeli citizens residency rights in Israel.
The policy had been enshrined in controversial citizenship legislation that expired in July and which the Knesset failed to renew.
In writing for a three-justice panel, Justice Daphne Barak-Erez returned a petition to the district court that had been filed by human rights groups on behalf of 27 Palestinians seeking Israeli citizenship. The Supreme Court panel, which also included Isaac Amit and Uzi Vogelman, did not take a position, however, on the merits of the human rights groups’ petition.
Since the expiration of the legislation in July, Interior Minister Ayelet Shaked has ordered her ministry to hold up on processing applications for family reunification from Palestinians married to Israelis.
In practice, the ministry has been handling the applications as if the expired legislation, which was passed in 2003, was still in effect.
Barak-Erez ordered the government “to act in accordance with existing law alone” and wrote that “it is no longer authorized to act based on a law, emergency provisions or regulations that were issued pursuant to it as long as this law is not in effect.”
“There is no doubt that the current situation is highly exceptional,” the justice wrote. “The state had for many years acted in accordance with certain arrangements, but the law is no longer in effect, and the administrative law rules no longer make it possible to act in accordance with it.”
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The expired law was passed in 2003, during the second intifada, as emergency legislation and had been renewed by the Knesset on an annual basis. In July, however, the government failed to muster a majority to renew it again.
In addition to her ministry’s delay in processing family unification applications, Interior Ministry Shaked has been leading an effort to have the Knesset reinstate the law. This week the Ministerial Committee on Legislation voted to support such a move, but due to opposition from two coalition parties, Meretz and the United Arab List, passage of a new law on the subject is not assured. Last month, Shaked informed the High Court of Justice that the legislative process would be completed within about a month.
Minister Esawi Freige of Meretz tweeted that the Supreme Court's decision "is not only the right legal decision, but also the right moral one."
The prior law deprived Palestinians married to Israelis from obtaining long-term legal status in Israel, providing them with temporary residency at most. It also contained a blanket ban on applications for family unification from Palestinian men under the age of 35 and Palestinian women under the age of 25.
As long as the citizenship law remained in effect, any application for family reunification was automatically rejected by the Interior Ministry unless the interior minister made an exception. Now that the law has expired, the opposite situation prevails. Applications are to be automatically granted in the absence of intervention by the minister – unless Israel’s Shin Bet security agency claims that there are security grounds not to grant resident status.
Officially the Israeli government is taking the position that the limitations on granting Israeli residency or citizenship are based on security considerations – to prevent Palestinians involved in terrorist activity from becoming Israeli citizens. Senior Israeli officials have publicly acknowledged, however, that there are also demographic considerations involved, over concerns that the move would boost Israel’s non-Jewish population.
In Supreme Court deliberations last month on another case, which remains classified, Justice Vogelman was critical of the Interior Ministry’s stance. “It’s amusing. We’ve seen that the Israeli Knesset decided not to extend the law. It’s clear that there cannot be an effort to maintain the application of a law without it existing. There no longer is a law. What are we deliberating about here?” he quipped.
In the current case, the human rights groups – the Association for Civil Rights in Israel, the Hamoked Center for the Defense of the Individual and Physicians for Human Rights – issued a statement saying that the Supreme Court made it clear in its ruling on Tuesday that it was not possible to act in accordance with a law that has expired. Nor could it “hold the families' hostage to Minister Shaked’s legislative initiatives. The interior minister must act according to the law that applies to all those seeking status in Israel,” the groups said in a statement.
In their ruling, the Supreme Court justices also ordered the government to pay 5,000 shekels ($1,600) in expenses to the petitioners.