Center for the Defence of the Individual - Following HaMoked's petition to the HCJ: the Ministry of Interior must reconsider its decision to refuse a family-unification application based on an indirect security preclusion
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חזרה לעמוד הקודם
28.04.2014

Following HaMoked's petition to the HCJ: the Ministry of Interior must reconsider its decision to refuse a family-unification application based on an indirect security preclusion

The Citizenship and Entry into Israel Law (Temporary Order) prevents residents of the Occupied Palestinian Territories (OPT) who are married to Israeli residents and citizens, from receiving permanent status in Israel. The Law also stipulates that the issuing of Israeli temporary stay permit, which Palestinians already in the process of family unification are entitled to receive, is subject to security considerations; inter alia, it is stipulated that even in cases where there is no negative security information directly relating to the foreign spouse (from the OPT), the request for a temporary stay permit may be refused based on indirect security information relating to a relative of the foreign spouse. The High Court of Justice (HCJ) has directed the Ministry of Interior to consider indirect security information carefully, and to ascertain that applications are refused only when it is almost certain that the presence of the foreign spouse in Israel and his relationship with his relatives against whom security information exists, would actually jeopardize state security. In practice, it seems that the interior ministry often uses security information against the relatives of foreign spouses as a pretext to reject family-unification applications automatically.

In 1996, an East Jerusalem resident married a Palestinian woman from the West bank and filed for her a family-unification application. After the application's approval in 2001, the woman began receiving Israeli temporary stay permits. In 2008, the interior ministry refused to renew the wife's stay permit for the first time, based on an indirect security preclusion – negative security information attributed to the wife's sister and brother-in-law.

In 2011, the husband applied again for family unification with his wife. This application was also turned down based on the same indirect security information. In November 5, 2012, HaMoked filed an objection against the interior ministry's decision. HaMoked argued that the decision violated the couple's right to family life in an unreasonable and disproportionate manner; that in thus deciding, the interior ministry had disregarded the HCJ's instructions in the Dakah ruling (HCJ 7444/03), whereby indirect security information should be given limited weight, and that in each case, it must be assessed whether the information does point to a near certain threat to state security. HaMoked also asserted that the woman in this case had never been arrested or interrogated, and had little contact with her sister and brother-in-law. On November 19, 2013, the Appellate Committee for Foreigners rejected HaMoked's objection. The committee chair ruled that the interior ministry's decision was "reasonable and proportionate".

On January 1, 2014, HaMoked petitioned the HCJ to instruct the Ministry of Interior to alter its decision and approve the family-unification application. HaMoked repeated its criticism against the unreasonableness and disproportion of the interior ministry's decision, and emphasized the violation of the right to family life and the harm to the principle of the child's best interest. HaMoked again claimed that the interior ministry had disregarded its obligations pursuant to the Dakah ruling regarding the proper weight it should assign to indirect security information. HaMoked also reiterated its claims about the security information attributed to the woman's sister and brother-in-law, with whom she maintained loose contact. HaMoked stressed that rather than proving there was security information against any of the woman's relatives, the state should prove that the ties between the woman and her relatives would in fact jeopardize state security; this, after the state presented in its response new information concerning the brother-in-law, who was again put in administrative detention for membership in Hamas. The state argued that approving the family-unification application would pose real threat to state security, and that the interior ministry's decision was balanced and reasonable.

The court granted HaMoked's petition and ruled that the interior ministry should reconsider the family-unification application in light of the Dakah ruling. The court also ruled that in deciding to reject the woman's application, the interior ministry had simply relied on the security information against her relatives, and had not examined the probability that the woman would be pressured by her relatives, thus becoming a direct security threat. The court added that it seemed that the interior ministry's decision, and following that, the appellate committee's decision, did not take into account the woman's integration in Israel, the time that had passed since her marriage, or the nature of her ties with her sister and brother-in-law. Stopping short of ordering the application's approval, the court has sent a clear message as to the proper solution, emphasizing that in the Dakah case, where the HCJ had granted the family-unification application, the security threat posed by the approval was much higher than in the present case.