23.11.2009

Temporary residency visa upgraded as part of the graduated procedure of family unification: the Appellate Commissioner for Foreigners of the Interior Ministry, granted three appeals by HaMoked on behalf of three Palestinians, and instructed the population administration to upgrade the status of the appellants to temporary residency visa type A5

The appellate committee for foreigners
In December 2008, the Interior Ministry altered the procedure for appealing decisions on the status of the spouses of Israeli permanent residents and the registration of children born in Israel to permanent residents. Until recently the practice in such cases was to appeal against the decision to the Interior Ministry, and if rejected – to petition the Court for Administrative Affairs. The new procedure stipulates that an appeal to the Appellate Commissioner for Foreigners, as an administrative appellate level, must precede a court petition. According to procedure, the commissioner is a temporary nomination, pending the establishment of a Court for Foreigners. The commissioner, appoined by the Interior Minister, must be a former judge or eligible for judgeship.

HaMoked has been tracking the appellate committee's work from its inception in December 2008, through the numerous objections it had filed therewith, and has uncovered numerous flaws in the committee's performance. Thus, for example, the appeal decisions are delivered long passed the period set in the procedure; likewise, the Interior Ministry's replies are extensively overdue. Furthermore, the committee's guidelines are unclear (e.g. in rejections on security grounds). Needless to say, all these cause severe harm to the rights of permanent residents and their families.

The three appeal cases
Three recent decisions stand out in exception to the abundant flaws of the committee; in which the commissioner granted the three similar appeals of Palestinians who were represented by HaMoked. In the appeals, HaMoked argued that the fact that the appellants' status was not upgraded resulted solely from delays due to malfunctions of either the Interior Ministry or the Israel Security Service; therefore, the appellants merit the status upgrade. The commissioner established that indeed the appellants' status had not been upgraded prior to the May 2002 government resolution which froze all processing of family unification between Israelis and Palestinians – but that this resulted from undue processing delays by the Interior Ministry, and the three should be granted a temporary residency visa (type A5).

In several of HaMoked’s cases, the Supreme Court ruled that despite the
government resolution, the status of an applicant may be upgraded, even if his status had not been upgraded before the May 2002 government resolution , provided this resulted from errors or unjustified delays in the Interior Ministry's procedure  (AAA 8849/03 Dufash v. Head of the East Jerusalem  Population Administration office;  AAA 5534/07 Rajoub et al. v. Interior Minister et al.)

Accordingly, the commissioner ruled that the appellants' status was not upgraded prior to the government resolution as an outcome of extreme delays in the processing of their requests by the Interior Ministry. Therefore the appellants were now entitled to a status upgrade, and should be accorded the temporary residency visas. Subject to the graduated procedure for acquiring Israeli status, they will receive A5 visas for the next three years; and, as per procedure, they will ultimately gain the status of permanent residency.