BackgroundIn 2007, a Jerusalemite woman married an OPT resident. He is registered address remained in Gaza, although he has not lived there since 2000. The couple and their three children live permanently in Jerusalem. In January 2008, the woman filed a family unification application for her husband. That same year, she was verbally informed by the official at the Ministry of Interior that the application would be postponed until the husband had had the criminal case against him dropped. In June 2011, while the couple was waiting for the case to close and for a decision on their application, the husband was sentenced to a "brief and symbolic" prison term of 33 days for driving in Israel without a local driver's license.
On July 28, 2011, after he had served his full sentence, the husband was brought to the Erez Crossing by Israel Prison Service (IPS) officials, whence he was forcibly transferred to the Gaza Strip. Throughout that day, the husband expressed his objection to his being forcibly transferred and stated that he lived in Jerusalem with his family, and that he was waiting for the interior ministry's decision on his family unification application. The IPS officials, however, ignored his assertions. Since then, the husband has been effectively stranded in the Gaza Strip, far away from his wife and small children.
Application for his return to Jerusalem On August 14, 2011, HaMoked sent an urgent letter to the interior ministry, demanding the husband be allowed to rejoin his family in Jerusalem and the continuation of the process, given that he had been deported while his application had been pending. Two days later, on August 16, 2011, the ministry notified that his family application was denied.
In October 4, 2011, after an administrative appeal in the matter was dismissed, HaMoked filed an
administrative petition to the court to instruct the interior ministry to allow the petitioner to return to Jerusalem. In the petition, HaMoked argued that the forced removal went against the ministerial procedure, which stipulates that "pending a decision on an application, objection or appeal, no enforcement action shall be taken against the applicants". HaMoked further contended that recently,
in the Abu Dheim case, the court had ruled on the same matter, and held that it is of vital importance to carry out a deportation in strict conformity with the provisions of the law: "these legal provisions were intended to ensure that the discretion [….] is exercised by an official of suitably senior rank who has been specifically authorized for the purpose. Additionally, the obligations to hold a hearing and to provide a written reasoned decision serve to ensure the proper exercise of discretion". In the matter of Abu Dheim, the court ruled that the petitioner's removal had been in breach of the law and ordered to allow the man's entry to Jerusalem pending a decision on his administrative appeal.
As stated, the remedy sought in the petition only related to the repeal of the deportation through the petitioner's return to his home, the refusal of the application was being challenged in another legal proceeding. In its response, interior ministry the disregard the petition pleadings, and
demanded to strike the petition in limine, claiming it dealt with the denial of the family unification application. Following HaMoked's response, which focused on the required remedy, the court instructed the ministry to submit a substantive response. The response was submitted to the court on time, but was not delivered to HaMoked as required by law, thus, HaMoked's attorney was not afforded the opportunity to respond to the ministry's claims.
On November, 27, 2011,
the court ruled the petition should be deleted. The court held that it had no substantive power in the matter, because the petition did not challenge a ministerial decision under the Entry into Israel Law. The court advised the petitioners to submit an administrative appeal against the denial of the family unification application, and noted that according to the ministry's response to the petition, the appellate committee for foreigners was authorized to grant an interim remedy, such as the petitioner's return to Israel.
Motion to set aside judgmentFollowing these events, on November 29, 2011, HaMoked filed a motion to set aside the judgment, claiming that it had been delivered without the petitioner having had the opportunity to respond to the ministry's claims. Judge Marzel allowed HaMoked to file supplement pleadings following a review of the interior ministry's response.
In its supplementary submission, HaMoked pointed out that the interior ministry's response had stated in error that the petitioner's application had already been dismissed in May 2008, but the decision had been only postponed at the time. The application was denied in August 2011, namely, after the petitioner's expulsion to Gaza. HaMoked clarified that the interior ministry's procedure regarding deferral of enforcement action while a request is pending, related not only to enforcement by the interior ministry itself but also any other enforcement agency, such as the Israel Police as in the Abu Dheim case, or the IPS as in the present case.
In conclusion, the petitioner addressed the interior ministry's assertion that that the appellate committee was authorized to issue an interim writ of execution. HaMoked welcomed the unanticipated shift in position, as only recently had the appellate committee chair ruled that the committee was not authorized to order the issuance of a writ of execution, which alters the factual situation prior to the lodging of the appeal.
On December 12, 2012,
Judge Marzel determined there was no reason to set the decision aside, and left it standing. Thus, the court sealed the family's fate to live apart. The father remains in Gaza, far from his wife and three small children.
