Test case: the Minister of Interior exercises his discretion contrary to the law, and condemns the children of a Jerusalem resident to forever live in the city as tourists, without status or rights
In 2003 an East Jerusalem resident returned to live in his city with his wife, a Jordanian citizen, and their children, aged 10, 12 and 13, all three Jordanian citizens who had been born in Jordan. But the Israeli Minister of Interior refused to grant the children Israeli status, because the Ministry of Interior considered them to be residents of the OPT based on the fact that the family had lived in Al Azaria, which lies close to Jerusalem but is part of the Palestinian Authority. As the children were not registered in the Palestinian population registry, the military commander with control over the OPT could not issue them permits to stay in Israel, and so the Ministry of Interior came up with a solution – issuing them a tourist visa (with a work permit) type B/1, which does not afford social security rights or health insurance. The children were thus condemned to live like foreigners at their own home, in their father’s homeland, forever without status, rights or any foreseeable outlet, in view of the statutory sweeping ban on granting Israeli status to residents of the OPT.
On January 15, 2013, HaMoked applied to the Humanitarian Affairs Committee to grant the children status in Israel. HaMoked asserted that they should not be regarded as residents of the OPT, given that they were the children of an Israeli resident, had no status in the OPT or any actual ties there, and that during their brief period of living in the OPT when very young, they had studied and maintained social ties in nearby Jerusalem. HaMoked also stressed that the Ministry of Interior’s decision condemned them to live at their home as “foreign workers, and even if they get married, they would be fated to remain in the same endless status”.
The humanitarian application was refused, and therefore HaMoked petitioned the High Court of Justice (HCJ) on December 25, 2014, arguing that the Ministry of Interior’s decision was unreasonable and did not accord with the security objective of the Citizenship and Entry into Israel Law of 2003; the fact that small children had lived for an inconsiderable interval period in the OPT, without being registered or having significant ties there, did not justify defining them as OPT residents “jeopardizing” the security of Israel. HaMoked also argued that there is a humanitarian reason for granting the youths status in Israel, given that they had been living at their home for years without status or social security rights, and that the sweeping preclusion established in the Citizenship and Entry into Israel Law should not applied to them.
In the court hearing, held on January 21, 2016, despite Justice Vogelman's comment that the Israeli Law did not allow for issuing a person a B/1 tourist visa indefinitely, the justices found no call to intervene. They advised the petitioners to delete the petition while reserving their claims, and to file in future a new application with the humanitarian committee. Thereupon, the petition was deleted on the parties consent.
On February 8, 2016, HaMoked submitted to the Ministry of Interior a new application to grant status to the youths, pointing out that the Minister of Interior did not have the authority to extend a tourist visa (type B/1) beyond the 27 months’ period prescribed in the law, and asserting that the time had come to regularize the youths’ status in Israel. The application was rejected: “as it is impossible to define your clients as ‘visitors’ and as these permits were given as a substitute for referrals [to the military] for permission entry from the Area [i.e. the OPT] to Israel… this given the fact that they are not listed in the population registry in the Judea and Samaria Area”. An appeal to the Ministry of Interior which was filed thereupon was rejected as well.
HaMoked appealed to the Appeals Tribunal against the Ministry of Interior’s decision not to grant status to the youths, stressing that the youths were not “visitors” and that the violation of their rights was being needlessly perpetuated. This appeal was rejected, too. In the judgment, the judge noted that “as a rule, the Ministry of Interior’s policy is that a permit of stay is to be given to foreign nationals only under the law and not in exceptional cases”.
On September 28, 2016, HaMoked filed an administrative appeal with the Jerusalem District Court against the Appeals Tribunal’s decision. HaMoked asserted that the Tribunal did not address the question of the Ministry of Interior’s authority to extend the validity of a B/1 visa beyond the stipulated period of 27 months. HaMoked argued that this type of visa was also not established in the law as a solution for people defined as “residents of the Area”, but was an outcome of the Minister of Interior’s discretion. The minister was not authorized to act outside the law, and issue this kind of permit for such a long period of time. Therefore HaMoked concluded, given the unique circumstances of the case, the Minister of Interior should grant these youths actual status in Israel, as he had done in the cases of over 2,000 Palestinians considered to be OPT residents who have been living in Israel for many years in the framework of the family unification procedure, and are now in the process of receiving Israeli status.
The appeal is still pending.