In August 2005, a Jerusalem resident married a Hebron resident and they have been living in Jerusalem ever since, together with their three joint daughters and his three children from a previous marriage. Their birth mother has moved to Jordan and re-married, and maintains only minimal contact with them. The Sharia Court awarded the step mother legal custody of them and they are in her care, jointly with their father. In February 2007, the woman applied for family unification with her husband and his three children.
The Ministry of Interior has provided for families in similar situations. Under the accompanying minor procedure, children from a previous marriage, under age 15, who accompany one of their parents – a parent who has been given status in Israel in the framework of family unification – are to receive throughout the graduated procedure, the same status as the one given to the invited parent. The purpose of the procedure is to prevent children being left without status. In the case of these children, the provisions of the Citizenship and Entry into Israel Law (Temporary Order) also apply, stipulating that in the framework of the family unification procedure, a resident of the Occupied Palestinian Territories (OPT) who is over the age of 35 can only receive a permit of stay in Israel, whereas a minor under the age of 14 may be given an Israeli residency permit.
The Interior Ministry was satisfied that this is a single family unit, and approved the family unification application. The father received temporary stay permits in Israel under the Temporary Order, and as did the children under the accompanying minor procedure. HaMoked contested the interior ministry's decision as to the children, arguing, inter alia, that the procedure seeks to prevent children being left without status and social security rights, among them the rights to health coverage and education. The interior ministry rejected HaMoked's appeal, claiming that under the accompanying minor procedure, children are entitled to the same status as their father, and as the father had only received stay permits, there was no reason for the children to receive a different status.
Since January 2009, the children's case has been moved from the court to the interior ministry's appellate committee for foreigners and back to the court. HaMoked demanded that the interior ministry upgrade the children's status and give them an Israeli residency permit.
HaMoked asserted that the fact that the Temporary Order provisionally prevents the father from receiving Israeli status, should not influence the granting of status to his children, given the Order is intended to prevent security threats to the state, and no such threats emanate from minors under 14. HaMoked further argued that under the Temporary Order, the interior ministry is not authorized to give children under 14 stay permits only. HaMoked claimed that the accompanying minor procedure is intended to allow a custodial parent who remarries to continue caring for his children in Israel also, with the full support and social assistance the State of Israel has seen fit to provide to families with children.
During the petition hearings, once it became clear that an error had indeed been made, and that the instruction to obtain stay permits for the children had been made without authority or legal basis, the interior ministry notified that it was retracting its decision and referring the case to the humanitarian committee. It should be noted that the humanitarian committee handles cases which do not meet the legal criteria, unlike the present case. The interior ministry was making a ploy at the children's expense, sending the case to the humanitarian committee, liable to recommend the children be given only stay permits, while under the Temporary Order the children were entitled to residency permits in Israel.
On January 3, 2013,
the court granted HaMoked's petition, and ruled that the interior ministry was to give the children a temporary residency permit type a/5. The court completely rejected the interior ministry's "stratagem" and accepted HaMoked's claims. The court determined that the children meet the criteria of article 3a(1) of the Temporary Order, hence, "the way to regularize their presence [...] is by granting temporary residency license [...] this solution fulfills the principle of the child's best interest and accords with the aims of the Temporary Order Law".
