العربية
HE
العربية
HE
The appellants in the petition submitted on 21 May 2007 are a couple who have been living together in the Territories for over ten years. The man is a resident of the Territories and holds an identity card while his wife is a Jordanian citizen who works as a housewife. The couple married in 1997 and have three children, all of whom were born in the West Bank and registered in the Population Registry of the Territories, The appellant’s application for family unification with his wife was “frozen” and Israel refuses to address the matter. As a result, the woman must choose between leaving the West Bank to visit Jordan in order to see her parents and siblings, or remaining in the area with her husband and children. The reason: she knows that if she leaves for Jordan she will not be permitted to return.
Since the beginning of the second intifada the military has prevented persons who are not residents of the Territories, but are the partners of residents, from entering the area. The result is that families are unable to live together under the same roof. The partial arrangements introduced in the past were frozen in October 2000 and have not been reinstated, despite repeated requests from HaMoked to the various military and governmental authorities. Over the years the military has intermittently imposed and lifted restrictions, permitting or prohibiting visits to the Territories – for the most part without any apparent rationale or logic behind the decisions. Restrictions have sometimes been justified by reference to the severing of working relations with the Palestinian Authority and sometimes by claims of the need to combat the phenomenon of “persons present unlawfully” in the area; on other occasions no grounds at all have been quoted. On one occasion the minister of defense referred HaMoked to the Ministry of the Interior, despite the fact that family unification applications in the Occupied Territories are processed (if at all) solely by the military.
In the past, following the occupation of the Territories, Israel generally approved applications for family unification. Over the years this policy has been restricted. Israel claims that although the residents of the Territories do not have a legal right to family unification, and this is purely a gesture of goodwill, the authorities must nevertheless examine each application on an individual basis and exercise proper discretion in accordance with the principles of administrative law. Following rulings by the High Court of Justice (HCJ) in the early 1990s, humanitarian grounds need no longer be shown. The presence of the family relationship and the absence of security prevention are sufficient to enable family unification. However, a quota was established for applications to be authorized in each year. Recognition of marriage itself as a criterion for family unification was also formalized in the Oslo Accords, and extended beyond the nuclear family.
At present, as noted above, the military refuses to accept such applications, except in unusual cases (usually as the result of HCJ petitions). The military justifies this position by blaming the Palestinian Authority, but this is a specious claim. It is the military that screens the applications it receives, and it is the military that determines which applications may be forwarded by the Palestinian Authority and which are not even to be submitted for its consideration.
In the petition HaMoked argues that the military’s refusal to consider applications impairs the constitutional right of the Palestinian residents of the Territories to a family life. This right was recognized as a basic right by eight of eleven judges in the judicial panel that heard the HCJ petition filed by Adalah against the legal provisions prohibiting family unification within the Sate of Israel. This ruling established the rule that a person is entitled to a family life and, if a person’s partner is a foreign national, is entitled to establish the family cell in the country in which the person holds nationality. It was further established that injury to these rights on a sweeping basis, without the individual examination of each case, may be considered prima facie to be disproportionate. In the Adalah cases a majority of the judges on the panel decided to reject the petitions due to the security grounds presented by the state. In our cases, however, no security claims were raised: the persons whom Israel is preventing from living together with their partners in the Territories could well be entitled to receive Israeli citizenship (even under the existing restrictive arrangements) if their partners were Israeli citizens rather than residents of the Territories.
HaMoked argues in the petition that the military’s policy is motivated by racist and demographic concerns and by immaterial considerations relating to the application of pressure to the residents of the Territories. A policy whose purpose is to injure a civilian population is per se improper. A policy that makes a civilian population hostage to the needs of political processes is equally improper. In the petition, HaMoked argues that as an administrative authority in the Territories, and as the body that bears responsibility for maintaining regular life therein, the respondent cannot simply refuse to process the cases of families with divided status; it must ensure that their status is regulated in the spirit of their right to a family life.
On 11 June 2007, HaMoked received the state’s response to the petition. The response noted that the military will not act to remove the appellant as long as there is no change in the circumstances. An example of a “change in circumstances,” according to the State Prosecutor’s Office, is “if the appellant is seized and is a candidate for removal.” In other words, the military pretends to claim that it will not act to deport the appellant, while effectively “recommending” that she close herself in her home and avoid appearing in public, since she might then be seized and deported to Jordan.
