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HaMoked – Center for the Defence of the Individual petitioned the High Court of Justice against the policy preventing Palestinian residents of the Occupied Territories from leading a family life and living with their spouses and children: HaMoked demands the military cease its refusal to process applications transferred to it, receive applications for visitor permits and family unification from the Palestinian Authority and recognize a spousal relationship as such as grounds for approving the applications

Since the beginning of the second intifada, the Israeli military has been forbidding non-residents who are married to residents of the Territories from entering the Territories. Thus, the military has been preventing families from living together under the same roof. The partial arrangements that had been implemented in the past were frozen in October 2000. They were never restored despite repeated appeals made by HaMoked to the military and to various other official authorities. Over the years, the military has changed its policy erratically – placing and removing restrictions, issuing permits and denying the right to visit in the Territories with no apparent logic or order. Various reasons were given for the restrictions: claims were made that they were placed due to the cessation of working relations with the Palestinian Authority or the battle against 'illegal aliens". At other times, no explanation was given. In one instance, the Minister of Defense referred HaMoked to the Ministry of the Interior. This, while family unification applications in the Occupied Territories are handled, when they are handled, by the military alone. 

In the past, following the occupation, Israel did approve family unification applications. Over the years this policy was gradually restricted and it was established that while residents of the Territories do not have a legal right to family unification and that the process was bestowed upon them as a courtesy, the authorities must still consider each application on an individual basis and apply the proper discretion in accordance with the principles of administrative law. Following the rulings of the HCJ in the early 1990's, humanitarian grounds ceased to be a condition for the approval of family unification applications and it was established that the existence of a family and security clearance were sufficient. However, a yearly quota for approved applications was established. The recognition of marriage itself as a criterion for family unification was entrenched in the Oslo Accords and expanded beyond the nuclear family. 

Today, with the exception of unique cases, mostly ones where a Petition was brought before the HCJ, the military refuses to receive such applications. The military claims the Palestinian Authority is to blame for this refusal, but this is a false accusation, since it is the military which screens the applications transferred to it and determines what sort of applications the Palestinian Authority may or may not transfer.  

In the Petition, HaMoked claims that the military's refusal to consider the applications interferes with the constitutional right of Palestinian residents of the Territories to family life. This right was recognized as a fundamental right by eight of the eleven HCJ Justices who presided over the Adalah case, which challenged the legal provision forbidding family unification inside Israel. The judgment established a rule by which a person has a right to family life, and in cases where his spouse is a foreign national, a right to establish the family unit in his own country. It was further established that a sweeping violation of rights which is not based on individual examination, is ostensibly suspected as disproportional. In the matter of Adalah, the majority of Justices did eventually decide to reject the petitions in view of security claims presented by the State. However, in this matter, no security grounds are being presented: the same people to whom Israel denies a shared life with their spouses in the Territories would have been eligible for citizenship in Israel (even under the current restrictive provisions) had their spouses been Israeli citizens rather than residents of the Territories. 

In the Petition, HaMoked claims that the military's policy is driven by racist-demographic and other extraneous considerations designed to put pressure on the residents of the Territories. A policy which is aimed at harming the civilian population is unacceptable as such. A policy which uses the civilian population as hostages in political maneuvers – is also unacceptable. HaMoked further claims that the Respondent, as the administrative authority in the Territories and as the body responsible for the proper conduct of life therein, may not refrain from handling the cases of families whose members have different legal statuses and he must settle their status in manner which is in keeping with their right to family life.  

Perpetual Limbo – A new report by HaMoked and B’Tselem: This is the second report in a series examining Israeli policy imposing separation on nuclear families in the Occupied Territories. The report focuses on Israel’s policy since the outbreak of the second intifada, including the total freeze on the processing of family unification in the Territories. This makes the lives of thousands of Pale... (02) 627 1698   (02) 627 6317

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