In May 2002 the State of Israel decided to freeze the processing of all applications of Israeli residents for family unification with Palestinian residents of the Occupied Territories. At the same time, the Interior Ministry began to implement a new policy according to which the status of minor children born abroad, or registered in a different population registry, will be processed within the framework of an application for family unification. It should be noted that this policy was applied even to those children actually residing in Israel with a resident parent.
In July 2003, this decision was based on the Citizenship and Entry into Israel Law (Temporary Order) of 2003. After being extended several times, the Law is now valid through January 2007. Despite the amendments introduced in August 2005, the Law – and the manner in which it is interpreted by the Interior Ministry– deprives many children one of whose parents resides in Israel and the other in the Occupied Territories of the possibility of receiving permanent status in Israel.
According to the amendment to the Law, children between the ages of 14 and 18, to whom the Law applies, cannot receive status in Israel, even if they reside with the parent who is a resident of Israel. At best, they may receive a temporary permit to stay in Israel. This permit is granted for short periods of three to six months, and does not entitle its holder to any social security rights. The future status of these children is vague, and it is unclear what will happen when they reach the age of 18 – whether their permit to stay will be extended or if these children will also lose their right to stay. In the latter case, they will have to leave their homes in Israel or East Jerusalem, or, alternatively, live under the constant threat of deportation to the Territories. As for children up to the age of 14: the Law allows granting them status in Israel, but the policy of the Interior Ministry is to grant them only “temporary residency”. This status does entitle the child to all the social benefits available to permanent residents (including medical and social insurance). However, according to the policy, this status is granted for two years only. The Interior Ministry refuses to commit itself regarding the status of these children at the end of these two years: will their status be upgraded to permanent or will they remain with the status of “temporary resident?”
Either way, both in order to receive temporary residency for children under 14 years old and a permit to stay for children between 14 and 18, the parent resident in Israel will have to prove that the center of that child's life is based within the borders of the State of Israel.
In May 2006 the High Court of Justice (HCJ) rejected several petitions submitted against the Law by, among others, Adalah, the Association for Civil Rights in Israel, and HaMoked. This occurred despite the fact that six of the 11 judges in the panel accepted the claims of the petitioners that the Law infringes the legal rights to family life and equality in a disproportionate manner. In rejecting the petitions, the HCJ accepted the official explanation given by the State for the Law that its purpose is purely security. It should be noted that during the legislative proceedings for the Law and in public statements, the representatives of the State and government did not hesitate to name the true purpose of the Law. This purpose was – and is – primarily demographic, in other words – to aid in the preservation of a Jewish majority in Israel.
The petition filed by HaMoked concerning the Law dealt with the unique damage to the children of residents of East Jerusalem. In the judgment of the HCJ, the justices almost completely ignored the threat posed by the Law to the fate of those children. Justice Cheshin stated in his opinion that the arrangement in their case was “satisfactory”. One justice who voted with the majority, Justice M. Naor, in her position rejecting the petition, noted that consideration should be given to raising considerably the age of minors to whom the prohibition contained in the law would apply.
The ramifications of the Law are harsh, particularly on children residing with their parents by means of a temporary permit to stay, as well as on those older than 18, who live with their parents without a permit. The Law has a particularly severe impact on the ability of these children to move freely, since many of them are detained and harassed at the various roadblocks between the West Bank and Israel, and particularly at the entry and exit points into and out of East Jerusalem, in spite of the permits they possess. The Law also prevents children who are over 18 and living with their parents without a permit from leading a normal life – working, marrying etc..– with their families, and without the constant fear of deportation. In addition, the discrimination between children of different ages which is produced by the Law and the Interior Ministry's policy has created a situation in which in many families, siblings have a different legal status: some are permanent residents, some have temporary residence, and some have temporary permits. This reality adversely affects family stability and the relationship between members of the household.
The principle of the child's best interest, which is a guiding principle of both Israeli and international law, obligates the state to regard the child's best interest as a primary consideration in any decision and policy ruling relating to the children living in their jurisdiction. This principle requires allowing children to grow up in a stable and supportive family environment. In Israel, as a matter of social and legal policy and as part of the protection which society must accord to the relationship between a custodial parent and his child, the principle that the status of a child must be the same as that of his custodial parent, who is a resident of the state, provided that the child lives with his parent within the borders of the state was also adopted. Nevertheless, it seems that in anything regarding the children of Palestinian permanent residents living in East Jerusalem, these principles exist only on paper.
The denial of the possibility of receiving permanent residence due to the Law constitutes a continued breach of the rights of those children and of their families. The Law critically injures the right to family life, which is recognized to be one of the components of the right to dignity, anchored in Basic Law: Human Dignity and Liberty, since it prevents children and their parents from leading a normal and stable family life. In addition, the Law impedes the ability of the resident parent to fulfill his obligations toward his children. Israel's duty to respect the right to family life and avoid arbitrary interference in it, is also anchored in international human rights law.
The Law creates de facto discrimination between the children of Palestinians who are residents and citizens of Israel, from whom it deprives of rights stemming from the principle of the child's best interest, and the children of citizens and residents who are not Palestinians, who enjoy the products of this principle. Moreover, the application of the Law to children who pose no danger to public safety, clearly takes the mask off the declared purpose of law, which was and still is, officially, for reasons of security.
HaMoked and B'Tselem call on the Knesset to cancel the law and not to extend its validity. At the least, the Law's blanket application to minors must be canceled. The Interior Ministry must immediately renew the registration process for children, in an efficient and practical manner, based on the recognition of the rights of all residents and citizens of Israel to reside with their children in the place of their choice.