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29.4.2021

Following HaMoked’s appeal: The Appeals Tribunal reverses the Ministry of Interior’s refusal to extend the residency status of a foreign mother to Jerusalemite children who divorced her abusive spouse

A foreign national who is married to an Israeli resident or citizen cannot legalize their status in Israel independently. It is the Israeli spouse who must submit a family unification request to the Ministry of Interior and file the requisite permit renewal requests. When the foreign spouse (most often a woman) suffers from violence at the hands of the Israeli spouse, the fact that she is dependent on him to arrange her status becomes a significant factor in his control over her and her ability to leave him or file a domestic violence complaint. This, due to the valid concern that she might be deported from the country upon termination of the family unification procedure (following a separation) or her spouse’s abandonment of the procedure (following a complaint). To eliminate this concern becoming a negative incentive to separation, the Ministry of Interior formulated a procedure intended to enable foreign spouses already taking part in the family unification procedure to continue receiving status in Israel independent of the abusive spouse under certain circumstances (hereinafter: the violence procedure). However, the procedure contains rigid criteria and is often narrowly implemented by the Ministry of Interior clerks and the Interministerial Advisory Committee. In such cases, legal action is needed.

Thus in the case of a woman, originally from Jordan, who married a Palestinian with Israeli residency and moved to live with him in East Jerusalem in 2006. The woman applied to renew her temporary status in Israel under the violence procedure in 2017, explaining she initiated divorce proceedings following her husband’s severe violence against her. In January 28, 2020, the Ministry of Interior rejected her request based on the recommendation of the Interministerial Committee. Among the reasons for the refusal, the Ministry claimed the woman’s “ties to her state of origin are stronger and more real than her ties to Israel” and also that that the abuse she suffered at the hands of her former husband did not warrant granting her status. The decision meant not only that the woman would have to leave her home of many years, but also that her minor children would have to choose between separation from their mother or leaving behind their father and the only home they had ever known.

On March 9, 2020, HaMoked filed an appeal to the Appeals Tribunal to demand the decision be canceled. HaMoked argued the rejection was unreasonable and substantively flawed because the woman’s ties to Israel were clearly stronger than her ties to her country of origin; her children’s lives were rooted in Jerusalem and their wellbeing required that they remain in their natural environment. The appeal also argued that the Ministry had failed to give sufficient weight to the fact that the woman was a survivor of domestic abuse.

The Tribunal accepted the appeal on April 4, 2021, ruling that the case must be returned for reconsideration by the Interministerial Committee. The Tribunal clarified that it rarely intervened in the Ministry of Interior’s broad discretion over such matters, but that this was one of those “exceptional cases where a severe or substantive flaw occurred in the [Committee’s] discretion”.

The Tribunal was critical of the committee’s conduct, noting the hearing minutes showed no discussion had been held regarding the marital violence aspect of the case, and “it certainly cannot be said that a thorough discussion was held on this issue, and that the proper balance between the aspect of violence and the overall ties was considered while giving due weight to the purpose of the violence procedure [emphasis in the original]…”. Criticism was also directed at the committee’s failure to take into account considerations relating to the principle of the child’s best interests, as “in cases where the welfare of the joint child supports their staying in the State of Israel, the tie they create between their foreign parent to the State merges with the humanitarian purpose supporting arranging the status of victims of abuse and substantively changes the balance”. Furthermore, the Tribunal ruled that the committee had erred in its recommendation as the children and their father maintained some contact, given that only in the absence of any contact was it possible to deport a foreign national and their child. The Tribunal added “beyond any necessity”, that even had the case been examined according to the procedure on termination of the graduated procedure rather than the violence procedure (as the state tried to claim was the case in hand), the existence of some contact between the father and his children required taking into account their best interest and examining “the nature of the contact and its effect on them in the long run… as it is well known that it is best for minors to grow up alongside both their parents, insofar as it is possible”.
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