العربية
HE
العربية
HE
Thus far HaMoked - Center for the Defence of the Individual has filed 47 petitions which has been joined by 8 additional organizations with one concern: a demand from the authorities and from the army to stop their refusal to deal with applications that have been transferred to them, to receive form factors from the Palestinian Authority applications for visitor permits and for family unification, and to recognize the spousal relationship in and of itself as a criterion for approving applications. The state’s claims in its reply, that the petitioners are in fact asking the state to breach agreements that have been signed with the Authority, are readily refutable. All that the petitioners are demanding from the state is to receive applications that have been transferred to it by the Palestinian Authority, as was the common procedure in the past, or else to find another solution that will enable the petitioners, residents of the territories to live in the territories with their spouses and to lead an orderly family life.
Conspicuous in the state’s reply to the petitions is the disregard of the right to a family life, as the constitutional right of Palestinian residents in the territories. This right is recognized as a basic right by eight out of the eleven judges that made up the HCJ in the HCJ Adalah case, which attacked the Law’s provision that forbade family unification within the boundaries of Israel. In the judgment the rule was determined that every person has a right to a family life and in the case of a married couple to his foreign spouse, to build a family unit in the country of his citizenship. It was also determined that a sweeping violation of these rights which is not based on any detailed examination of every case is prima facie suspect of disproportionality. While indeed the majority of the bench in the Adalah case decided to reject the petitions, this was because of the security considerations that were argued by the state. However, in our case, no security argument whatsoever has been made; the people who Israel has refused to allow to share their life with their spouse in the territories are those who would be eligible to receive citizenship in Israel (even under the current restrictive provisions), were their spouses citizens of the state and not residents of the territories.
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.
To view the state’s reply dated 18 September, 2007
To view the film of families Kasaba, Hamdan and Devikat dated 19 September, 2007
