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The HCJ issues an order nisi in HaMoked’s petition: the state must explain why and by what authority it bans travel via the Ben Gurion airport of Palestinians undergoing a family unification process in Israel

On June 2, 2016, HaMoked petitioned the High Court of Justice (HCJ) to determine that Palestinians living in Israel lawfully in the framework of the family unification procedure – whether as temporary residents or with stay permits only – were entitled to leave the country and return to it via the Ben Gurion international airport, unrestricted and without any additional permit or procedure. HaMoked asserted that the sweeping ban imposed by the Coordinator of Government Activities in the Territories (COGAT) on travel via Ben Gurion by residents of the OPT constituted a breach of authority, given that the issue of border crossings was under the jurisdiction and management of the Minister of Interior; that the exclusion from Ben Gurion of OPT residents lawfully living in Israel constituted a disproportionate violation of their basic rights; and that it was unclear what security risk could arise from their travel via Ben Gurion, given that they periodically underwent meticulous security examinations as a condition for getting their Israeli status/permit extended.

The state countered that underlying the ban was the concern that “terror entities will exploit the status and accessibility of this population, even without its knowledge, in order to promote severe terrorist activity”, and especially given “the escalation of the threat to air travel in general”. The state also argued that Palestinians living in Israel in the framework of the family unification procedure were still considered residents of the OPT, and therefore came under the laws and regulations applying to OPT residents, including the ban on foreign travel via Ben Gurion. The state conceded that at one time there had been an unpublished Ministry of Interior instruction allowing Palestinians with temporary Israeli status to travel via Ben Gurion, but that it was not in line with the position of security officials and therefore this instruction remained valid for two years only.

In the hearing of May 21, 2017, HaMoked stressed that the information presented by the state was inconsistent with its own information, whereby Palestinians with temporary Israeli status had traveled via Ben Gurion for nearly 20 years, and that only recently was the state’s policy on this changed. On June 29, 2017, HaMoked submitted – on the court’s instruction – seven affidavits substantiating this claim.

Following another court hearing, during which the state failed to give satisfactory answers to the questions arising from the petition – the court accepted HaMoked’s position and issued an order nisi directing the state to detail the reasons for not allowing travel via Ben Gurion by Palestinians taking part in a family unification process in Israel, and to point to the legal basis and source of authority for imposing this ban. The court gave the state 60 days to submit its response. (02) 627 1698   (02) 627 6317

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