Background: Status of children of Palestinian residents of East Jerusalem
As part of its legal and social policy, Israel has adopted the principle that the status of a child must be the same as that of the custodial parent who is a resident of the state, provided that the child lives with that parent in Israel. This principle is derived from the rights and obligations of a custodial parent toward his or her minor child, and society’s duty to protect the relations between parent and child.
The current legislation on child registration of permanent residents in the population registry is incomplete. For children born in Israel, the registration is carried out in accordance with Section 12 of the Entry into Israel regulations. If a child is born outside Israel, including the Occupied Palestinian Territories (OPT), Section 12 does not directly apply, and no legislation covers the subject. Thus, registration is done in accordance with the changing decisions of the Interior Ministry. For many years, the Interior Ministry treated children born in Israel and children born abroad in the same manner. The Ministry employed the Request for Child Registration Procedure and applied the center-of-life criterion in reaching its decisions. In doing so, it maintained the principle that the status of children living with their parents in Israel must be the same status as that parent who is resident of Israel.
In recent years, the policy has changed, and children born outside of Israel to an Israeli resident have been treated differently. For example, the Interior Ministry requires that the request for obtaining residency for the children born outside of Israel entails the payment of a fee.
Recently, following an administrative petition that HaMoked filed, a consent judgment was reached with the Interior Ministry. The judgment provides that children born outside of Israel will be given temporary-resident status, which will entitle them to full social benefits, for a period of two years, after which they will receive permanent resident status. The Interior Ministry made a commitment to formally adopt this arrangement and announce it to the general public.
The case of the petitioner in AP 1238/04
The petitioner in AP 1238/04 is a resident of the State of Israel who married, in 1988, a resident of the OPT. The couple subsequently had eight children: the eldest child, a fifteen-year-old daughter who was born in Jerusalem; six children who were born in the West Bank; and an infant daughter born in Jerusalem, who was given permanent-resident status in Israel. In 1995, the petitioner submitted a request for family unification for her spouse. A long time passed, and the couple still did not receive a response. So as not to leave their children without a status, they registered them in the population registry in the West Bank. From the day they were married, the couple has lived in many respects in Jerusalem, in which the petitioner’s husband works pursuant to permits to stay in Israel issued by the army. In recent years, the couple has been living in Jerusalem, and their children have been going to schools in the city. Therefore, the petitioner requested that her children receive a status in Israel.
It should be noted that, without any announcement to the general public, the Interior Ministry recently changed its policy regarding the registration of children born outside of Israel (including the OPT) in the population registry: child registration in these cases had to be done through a request for family unification. In accordance with this policy, and in that the Citizenship and Entry into Israel Law (Temporary Order) does not enable the submission of new requests for family unification, the Interior Ministry informed the petitioner that they could not grant a status in Israel for her eldest children (who were fourteen and fifteen years old), nor could they permit their stay in Israel. Thus, they continued to stay in Israel illegally, even though the eldest daughter had been born in Israel and was entitled to receive permanent-resident status, in accordance with Section 12 of the regulations, just as her baby sister had received. Regarding her fourteen-year old sister, she was entitled to begin the procedure that leads to obtaining the same status in that the Interior Ministry should have applied the general exception in the Nationality Law, because of the special circumstances and the state’s obligation to safeguard the family unit and the best interest of the child.
The Interior Ministry also denied the petitioner’s request to obtain a status for her five younger children. According to the Ministry, as long as the Law is in effect, it is impossible to grant a status in Israel for the children. If refusing, the Interior Ministry ignores the explicit provisions of the Law, which empowers the Minister of the Interior to grant a status in Israel to children under age twelve. The Ministry allowed the children to stay in Israel pursuant to permits, which they will be given yearly, subject to proof their center of life is in Israel and to criminal and security checks. The children have begun, therefore, the family unification process in a format that is unclear to the petitioner and her family, about which they were never informed. The process will not include, as stated, arrangement of their status. This decision disregards the judgment in Judeh, whereby the children are entitled to begin a process that will end in their receiving permanent-resident status in Israel.
HaMoked wrote to the Interior Ministry objecting to the new policy and requesting a copy of the procedure on which the policy was based. On 10 November 2004, after repeated requests failed to elicit a positive response, HaMoked petitioned the Court for Administrative Affairs for relief. The petition notes the harsh consequences suffered by petitioner’s children, and many other children of permanent residents of Israel, as a result of their lack of a status in Israel: the National Insurance Institute does not recognize them, and the children are thus not entitled to social benefits, such as the children’s allotment or disability payments; they are not entitled to state health insurance, and if they require medical treatment, the State of Israel will not provide any support. These are rights that are provided to the children of other residents of the state. Many infant children of Israeli residents, such as the petitioner’s four-year-old daughter, will have to go through the “hassle” time and again of going to the Civil Administration in the OPT, and to pass a security check, to obtain the permit to stay in Israel.
The petition also notes the grave violation of the right to family life and the right of children to be protected by society, violations that contravene Israeli and international law. By refusing to provide a status to a child of a resident of Israel who is living with that parent in Israel will force a separation of the child from his or her parent, harm the child’s development, and interfere in the family unit in a way that conflicts with the best interest of the child. Alternatively, the child will have to stay with his parent in Israel without having a stable and clear status, until such time as the family is no longer able to withstand the difficulties of having the child live in Israel without a status. According to the Interior Ministry, the policy is taken in the framework of the Citizenship and Entry into Israel Law. The declared purpose of this law is to cope with security threats. Obviously, this objective is inappropriate where the minor children of residents are involved, in cases in which neither the children nor their parents are thought to be security risks.
It appears that the only reason for the Interior Ministry’s policy is the desire to preserve a Jewish majority in the state. This desire is apparent from the many press reports and remarks of public officials that preceded the government’s decision of May 2002 and the enactment of the Citizenship and Entry into Israel Law (Temporary Order). This policy also constitutes forbidden discrimination between Arab residents of Israel whose children are born in the OPT and other residents of the state, who live in Israel or even abroad. The policy is also collective punishment of a large segment of the population, which is carried out without notice to the public and without having any foundation in regulations or procedures.