Family separation in East Jerusalem

1 Jan 2011
20 Aug 2013

Until 2002, the process of family unification between Israeli citizens or residents of East Jerusalem and residents of the West Bank or Gaza entailed meticulous examinations that often took several years to complete. Once they were completed, however, the non-Israeli spouses were given permits to stay in Israel and later granted legal status in Israel. In March 2002, a Palestinian with Israeli citizenship perpetrated a suicide attack in Israel. In immediate response, the minister of the interior decided to stop processing AFUs that had been submitted by Israeli citizens for their spouses from the Occupied Territories, and to disallow the submission of any further applications. These measures were adopted despite the fact that the suicide bomber was granted Israeli citizenship based on his mother’s citizenship and not an AFU. In May 2002, the policy change was officially confirmed in a government resolution; and on 31 July 2003, the Knesset passed “The Citizenship and Entry into Israel Law (temporary provision) 5763 – 2003”, denying the submission of new AFUs for spouses from the Occupied Territories.

According to the new law, Palestinians from the Occupied Territories (excluding East Jerusalem) cannot be granted Israeli citizenship or residency, with the exception of children under the age of twelve who have one parent legally residing in Israel. Nor will these Palestinians be eligible for receiving permits to stay in Israel, except for permits issued for temporary needs such as work or medical care. In effect, the law prohibits Palestinians from the Occupied Territories from living with their spouses in East Jerusalem or Israel. Furthermore, in certain situations the law can have a detrimental effect on children of Israeli residents (including of East Jerusalemites). If, for whatever reason, their children were registered in the Palestinian population registry, the law prohibits transferring their registration to the Israeli population registry (for further details, click here). The law also enables the minister of the interior to grant citizenship status, or entry permits, both to Palestinians from the Occupied Territories who collaborate with Israeli authorities and to their families.

According to the law, AFUs submitted prior to the government decision of May 2002 would be processed. However, even if approved, spouses from the Occupied Territories would only be able to stay in Israel or in East Jerusalem under temporary permits that they must request from the Civil Administration. These permits do not provide legal status and social benefits, nor do they serve as permits to work in Israel.

Although the law was passed as a temporary, one-year provision, it empowers the government to extend its validity, with the approval of the Knesset. Since 2003, the government and the Knesset have repeatedly extended the validity of the law for periods ranging from several months to a year. Several human rights organizations, members of Knesset, and Palestinian citizens or residents of Israel whose families were harmed by the provision filed petitions against it before Israel’s High Court of Justice (HCJ). In its deliberations, the Court criticized the provision; consequently, the State announced that it would amend the law. The amendments came into effect in the summer of 2005. The amended provision included the following changes:

  • The minister of the interior may, at his discretion, grant permits to stay in Israel to spouses from the Occupied Territories, if the husband is over the age of 35 or the wife over the age of 25. These permits can be renewed but they do not entail social benefits, a work permit or status in Israel.
  • At the discretion of the minister of the interior, a minor defined as a resident of the Occupied Territories will be able to receive Israeli residency if he is under the age of 14, or temporary permits to stay in Israel if he is between the ages of 14 and 18 – “for the purpose of preventing his separation from his guardian parent who lawfully reside in Israel”.
  • An AFU submitted by a resident of the Occupied Territories can be refused based on security considerations relating not only to the applicant but to members of the applicant’s family (spouses and parents, children, siblings, or the spouses of all the above).
  • Anyone either living in the Occupied Territories (whether or not registered in the population registry of the Occupied Territories) or registered in the Palestinian population registry (whether or not actually residing in the Occupied) is considered a resident of the Occupied Territories.

On 14 May 2006, the HCJ dismissed the petitions filed against the provision, with a majority opinion of six to five. The minority opinion held that the provision should be declared void, as it disproportionately violates the rights to family life and to equality of Palestinians who are citizens or residents of Israel. Five of the six judges who held the majority opinion stated that, even if the provision violates basic rights – the violation is proportionate to the benefit achieved. Consequently, the provision should not be retracted. Justice Levy, who was of the majority opinion, stated that, while the provision causes disproportionate harm, it should be maintained for nine months, in order to give the Knesset time to secure arrangements for individual examinations of each case, instead of the sweeping prohibition in the law.

In March 2007, further to the ruling, the Knesset amended the provision. According to the amendment, a committee would be established whose recommendations would allow the minister of the interior to grant – in special humanitarian cases – either a license for temporary residence in Israel or a permit to stay in Israel to spouses or children from the Occupied Territories who were not eligible for such permits under the earlier provision. At the same time, the provision was expanded to apply to spouses from Iraq, Lebanon, Syria and Iran. It was also decided that AFUs for a spouse or a child over the age of 14 could be denied “if within the domiciled state or residential region of the resident, activity was carried out which is liable to endanger the security of the State of Israel or of its citizens”. In June 2008, this amendment was quoted in a government resolution according to which AFUs would be denied for persons registered as residents of the Gaza Strip, and/or with persons living in Gaza.

After the Knesset approved the amendment to the law, human rights organizations filed another series of petitions with the HCJ, demanding that the law be voided. In January 2012, the HCJ dismissed the petitions, again with a majority of six to five. The six majority justices held that the right to family life does not necessarily have to be realized within Israeli territory and that, even if the provision does violate rights – it does so in a proportionate manner, and therefore should not be declared void. The judges holding the minority opinion – including Justice Levy – noted that the previous petitions had been dismissed on the condition that the temporary provision be rendered more proportionate. They held that, as the provision’s 2007 amendment had not met that condition, and had even intensified its harmful impact, the provision should be declared void. Ten days after the HCJ’s ruling, the provision was extended for another year. Since then, it has been extended twice, most recently to remain in effect until April 2014. While the provision was originally defined as “temporary”, it has been extended 15 times and has been in force for over a decade, and its cancellation does not appear to be imminent. Despite this state of affairs, Israel has chosen not to integrate the provision into permanent primary legislation .

The implications of the provision

Residents of East Jerusalem, an inseparable part of the West Bank, often marry spouses from other areas in the West Bank ans sometimes to residents of the Gaza Strip. In most cases, the newly-weds are in their twenties and are eager to set up a shared household and start a family. Couples who wish to live in East Jerusalem, close to the extended family of one of the spouses, are usually barred from doing so by the provision, since they do not meet the age criteria stipulated (a minimum age of 35 for men and 25 for women). Such couples are forced to wait for many years until they can fulfill their dream, if at all.

According to 2010 data from Israel’s Ministry of the Interior , every year since the provision was amended in August 2005, the ministry granted permits to stay in East Jerusalem and in Israel to approximately 1,000 Palestinians spouses who met the age criteria. Thousands of others are denied the possibility of even submitting a request and cannot live with their spouses in Israel.

The provision seriously violates the right of tens of thousands of persons to family life. Citizens and residents of Israel, their spouses from the Occupied Territories and their families. East Jerusalem residents who do not meet the age criteria can adopt one of several options, each resulting in highly disagreeable consequences. If the couple choose to live together in East Jerusalem, the non-Israeli spouse will have to remain in hiding at home with no permit, no rights, no legal possibility of work and in constant fear of deportation. They can decide to live apart, but will have to endure a forced separation for many years and, if the couple has children, one spouse will be separated from them. Finally, if one spouse is a resident of East Jerusalem and the couple lives together in the Occupied Territories, that spouse will risk losing Israeli residency status, which will then temporarily disqualify him or her from submitting an AFU, as such applications can only be submitted after two years of consecutive residence in Israel.

The rationale of the provision

The state argued before the HCJ that the provision was necessary for security reasons only. In response to the petitions filed against the provision, the State claimed that “many” residents of the Occupied Territories whose requests to live with their spouses in Israel had been granted had carried out, or had assisted in carrying out, lethal terror attacks . The State presented no facts to support the claim.

In contrast, discussions held in the Knesset and by the government, as well as statements made by senior officials, indicate that the main purpose of the provision is demographic – to prevent Arab population growth in Israel and to uphold the Jewish character of the state – and that the security justification was given only after the abovementioned petitions were filed. For example, in a session held prior to the government’s resolution to stop processing AFUs in May 2002, then-Minister of the Interior Eli Yishai showed the other ministers a slideshow presentation explaining the necessity of the resolution (see Hebrew original here). The presentation mentioned demographic risk as the main danger inherent in the previous unification policy, and demanded “legislation that will express a policy that will help to halt the phenomenon and maintain Israel’s nature as a Jewish and democratic state in the long run”.

It appears that the reason for the State’s attempt to deny that demographic considerations played a part in the government’s resolution and in the consequent legislation was the understanding that such considerations are racist and illegal, and cannot withstand judicial scrutiny. Most of the judges who were in favor of dismissing the petitions accepted the State’s claim that the provision was justified solely on security grounds, and expounded on the dangers of terrorism that it thwarted. They rejected the petitioners’ arguments that demographics were the primary rationale underlying the law. Only two judges in each ruling (Procaccia and Jubran in 2006 and Levy and Jubran in 2012) cast doubt on the issue of security being the sole and main motive for passing the provision, and asserted that demographic concerns played a role in the legislation.

B’Tselem calls upon the government of Israel to treat all its citizens and residents equally and to declare as void the Citizenship and Entry into Israel Law, which denies Palestinians from living with their spouses in Israel on the basis of their provenance. The government must also immediately renew the processing of AFUs and improve the procedure, based on the acknowledgment that it is the right of all citizens and residents of Israel to marry a partner of their choice and live with their spouse and children wherever they so choose.