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The Supreme Court rejected an appeal by the ministry of the interior against decisions of the Court for Administrative Affairs: The court ruled that a hearing must be held before a final decision is made in applications by residents and citizens of Israel for family unification with foreign spouses

On 11 August 2009, the Supreme Court put an end to a protracted legal saga. Beginning in late 2007, the Court for Administrative Affairs in Jerusalem began issuing clear judgments determining that in cases where the state is considering denying applications filed by residents of East Jerusalem for family unification with their foreign spouses – for security reasons – the ministry of the interior must give the persons concerned a chance to plead their case before the decision in their matter is made rather than after the fact.

The ministry of the interior decided to appeal some of these judgments to the Supreme Court, claiming that the foreign spouses do not have a right for a hearing before a decision in their matter is made, owing to the very fact that they are foreigners. In so doing, the ministry of the interior ignored the fact that the applicants are citizens or residents of Israel and therefore the right that may be infringed is of the Israeli resident or citizen, who will be harmed by the decision not to grant a permit or status to his spouse. The ministry of the interior also emphasized that what was at issue were security preclusions which did not justify the granting of permits for the foreign spouses pending a hearing and decision in their matter, while risking harm to the public interests of the citizens of Israel.

HaMoked: Center for the Defence of the Individual and the Association for Civil Rights in Israel filed an application to join proceedings as amicus curiae, in which they detailed their position regarding the issues on which the proceedings focused.

In its judgment, the Supreme Court rejected the position of the ministry of the interior and ruled that, in general, in cases where the ministry of the interior is considering denying applications for family unification for security reasons, it must hold a hearing for the applicants before a decision is made and formulate a procedure which regulates this rule. The court further added that a hearing must be held both in writing and orally and that if the possibility of refusing an application for security reasons is being considered, the ministry of the interior is to inform the applicants of this fact in as detailed a fashion as possible, so that applicants can adequately prepare for the hearing. The court further ruled that only in extremely exceptional cases, when the ministry of the interior can convincingly explain why the applicants pose immediate and tangible danger, can it reverse the arrangement and hold a hearing for the applicants after the fact, once a decision in their matter has been made, and even demand that the foreign spouse leave the country while waiting for a decision on his application. In conclusion, the president of the Supreme Court criticized the state’s sweeping concept in the appeal that it has no obligation with regards to foreigners simply because they are foreigners, and commented that such a concept is a thing of the past and is no longer accepted. A discussion regarding authorizing the presence and the rights of a foreign national in Israel must be carried out on the merits of each case and in accordance with its concrete circumstances.

To view the judgment dated 11 August 2009 (Hebrew) (02) 627 1698   (02) 627 6317

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