HaMoked to the HCJ: repeal Government Resolution 3598 which prohibits family unification with Gaza-Strip residents המוקד להגנת הפרט
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06.06.2013
HaMoked to the HCJ: repeal Government Resolution 3598 which prohibits family unification with Gaza-Strip residents
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In June 2008, the Israeli government issued Resolution 3598, instructing the Minister of Interior to refuse Israeli family-unification applications for persons who either live in the Gaza Strip or are registered in the population register as Gaza-Strip residents although they do not live there. The Government Resolution is based on the stipulations of Section 3D in Citizenship and Entry into Israel Law (Temporary Order), 5763–2003, which authorizes the interior minister to reject an Israeli family-unification application on behalf of a resident of the Occupied Palestinian Territories (OPT) due to a possible security risk associated with him directly or with his relatives or because potentially dangerous activity is taking place in his area of residence.

Whereas Section 3D of the Temporary Order details the cases in which the interior minister may determine that a specific person poses a security risk, the Government Resolution takes it much further, and establishes a blanket policy, instructing the interior minister to reject all family unification applications for Gaza-Strip residents solely because in the Area where they live "activity which may endanger the security of the State of Israel and its citizens takes place." Furthermore, the resolution extends the claim about a security-risk relating to a place of residence, and applies it also to those who are registered as Gaza-Strip residents, regardless of where they actually live.

At the time the resolution was passed, court proceedings were underway in four petitions challenging the Temporary Order, including one by HaMoked. In early 2012, the High Court of Justice (HCJ) rejected the petitions, ruling that the Amendment of 2005 which allows family unification of Israelis and OPT residents under certain conditions (mainly, the minimum entry age for family unification procedures), mitigates the harm to the constitutional rights – among them the right to equality and the right to family life – and renders it proportionate.

Following the judgment, HaMoked wrote to the Israeli Prime Minister to demand the immediate repeal of Resolution 3598, asserting that the blanket policy – the deciding policy for Gaza-Strip residents – is unconstitutional and fails the tests of proportionality, on the basis of which the HCJ had legitimized the Temporary Order. On June 6, 2013, in the absence of a substantive response to the claims raised in its letter, HaMoked petitioned the HCJ.

In the petition, HaMoked argues that Government Resolution 3598 is a radical departure from the language of the Law: it broadens the geographic threat into a "threat by registration", and establishes a sweeping rule which binds the discretion of the interior minister, which required that specific examinations be applied. The government thus performs a clear act of legislation, which constitutes a severe breach of the separation-of-powers principle.

HaMoked further argues that the Government Resolution, which closes the door on all family unifications with Gaza-Strip residents, causes unreasonable and disproportionate harm to constitutional basic rights, primarily the right to family life. Moreover, the right to family life, as a right deriving from Basic law: Human Dignity and Liberty, can only be infringed upon due to significant considerations, and pursuant to law or powers explicitly granted by law. Since the government has not been authorized to decide on an infringement of constitutional basic rights, its resolutions must be revoked.
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