Judge in Foreign Workers Relationship Ban Case Recuses Himself Over Conflict of Interest

The judge, who is in a relationship with a foreigner currently becoming an Israeli citizen, agrees to Immigration Authority request

Administrative Law Judge Mart Dorfman.
Eliyahu Hershkovitz

The administrative law judge assigned to decide on an appeal of imposed ban on relationships between foreign workers has recused himself from the case, at the request of the Population, Immigration and Border Authority in the Interior Ministry. Last month, the Population Authority asked judge Marat Dorfman to recuse himself because he is married to a foreign citizen. 

Israel’s policy requires one partner in a long-term relationship between two foreign workers to leave the country after their visa runs out.

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Dorfman had signed a conflict of interest agreement in which he agreed not to hear cases concerning the status of foreigners who are requesting to receive residency status in Israel based on family reunification in which one partner is an Israeli citizen and the other is a foreign citizen – but the agreement does not mention cases in which both partners are foreign citizens.

Dorfman recused himself even though he said that no real connection exists between the conflict of interest agreement and the issue under appeal. Dorfman sits on the Justice Ministry’s Entry to Israel Law Review Tribunal in Jerusalem.

As opposed to the process involving a relationship between an Israeli citizen and a foreigner, the appeal involved does not include an examination of the relationship to ensure it is real and not only for purposes of immigration – because the Population Authority has already determined the two foreign workers are in such a long-term relationship, and the case does not apply to citizenship, only the question of residency and work permits.

The Population and Immigration Authority submitted its request for Dorfman to recuse himself and appoint another judge in his stead only after Dorfman began hearing an appeal in December filed by Kav La’Oved – Worker’s Hotline for the Protection of Worker’s Rights on the status of two foreign workers who were in a long-term relationship and one was being forced to leave the country after their visa expired.

Last month, the Immigration Authority admitted it had rejected the work permits of dozens, if not hundreds, of foreign workers in recent years because they were in such relationships. A representative of the Immigration Authority said that as far as the state is concerned, these foreign workers have come to Israel to provide services and do not need to conduct conjugal relationships. “The policy in general is that the employment of a couple with a first-degree family relationship should not be allowed, whether they are married or not,” she said. A day later, the Immigration Authority requested that Dorfman withdraw from hearing the appeal.

Kav La’Oved, which is representing the couple in the immigration appeal, objected strenuously to the request to remove Dorfman, saying it was tainted by extraneous considerations in light of Dorfman’s reputation as a judge who is critical of government immigration policy.

In his decision to recuse himself, Dorfman wrote that in principle there is no link between his situation and the case he is hearing, but despite his serious doubts, he decided to withdraw from ruling on the appeal “in order to prevent even a suspicion that I would act in contradiction to the agreement to prevent a conflict of interest that I signed.”

It was decided that the case would be transferred to the head of the appeals tribunal, who will also appoint another judge to hear the appeal.

“This is an appeal based on principle, one of the most important that has been filed with this tribunal in the area of foreign workers. It is possible that the decision in [the case] may have implications for hundreds, if not thousands of foreign workers in Israel,” wrote Dorfman.

Dorfman said he decided to recuse himself, even though he thinks the Population and Immigration Authority’s premise that he has a conflict of interest is mistaken. The Population and Immigration Authority “noted that ‘I am not allowed to hear the appeals whose subject is authorizing [residency] status in Israel based on considerations of conjugal relations,’ but after examining the content of the [conflict of interest] arrangement it is can be seen that this is not true,” wrote Dorfman. “In my arrangement it is noted that I am unable to make decisions in ‘family reunification proceedings of couples, including proceedings that have an affinity and/or incidentally to the handling of them the matter of family reunification between partners arises.”

“Anyone who deals with immigration law in Israel knows that the term “family reunification of partners’ refers to the immigration conducted by a foreign partner, in order to unite in Israel with a partner who is a citizen r permanent resident. This appeal involves a couple who are foreign workers in Israel. So, as essentially there is no connection between the family reunification noted above and the case which is being decided in the appeal,” wrote Dorfman.

Kav La’Oved wrote in response to the request to remove Dorfman that the request was “tainted by serious delay, with a lack of good faith and is nothing other than an inappropriate, unprecedented attempt to intimidate the appeals tribunal and deter it from ruling on an appeal whose subject is an improper and dangerous policy.”

As opposed to judges in the regular court system, who are appointed for a term that lasts until they reach the retirement age of 70, administrative law judges on the appeals tribunals serve for a term of five years. They can be reappointed for an additional term with the approval of the Justice Minister.

Dorfman is considered to be a judge who is very critical of the Population Authority and tends not to accept its positions – and does not hesitate to criticize the Authority’s actions. In March, he criticized the Population Authority’s handling of asylum requests from those who are originally form the Darfur region of Sudan, and said it is unreasonable to take over a year to handle such requests, and the long delays cause harm to the asylum seekers.

In October, Dorfman overruled a decision to prevent the entry to Israel of Dr. Isabel Phiri, the deputy secretary general of the World Council of Churches, because of her activism on behalf of the boycott, divestment and sanctions movement. It his ruling, Dorfman ruled that the anti-BDS legislation could not be applied retroactively to bar a BDS activist from visiting Israel and that the reasoning provided to her at that time, involving concern over “illegal immigration,” was without foundation. Phiri was barred entry to Israel in December of 2016, but the change in the law, permitting BDS activists to be barred under some circumstances, took effect the following year. The official explanation provided to Phiri at the time was that she was not being allowed into the country due to “illegal immigration considerations.”

In September 2017, Dorfman criticized a decision to send an asylum seeker suspected of committing crimes to jail without a trial.