An East Jerusalem resident married a West Bank resident in 1996. The couple settled in Jerusalem, where their three children were born. In 2001, the father was sentenced to a lengthy prison term. Following his incarceration, the mother returned to live in the West Bank, leaving her children behind. Since then, the children, who have no status anywhere in the world, have been raised by their grandmother, and she was appointed their guardian by order of the Jerusalem Shari’a Court in 2005.
On January 12, 2011, HaMoked contacted the Ministry of Interior requesting the three children be registered in the Israeli population registry under Regulation 12 of the Entry into Israel Regulations. HaMoked noted that the children had lived in Jerusalem since birth, had no ties anywhere else, and that under Israeli law, they should have the same status as their guardian, in this case, their grandmother who is a resident of Israel. When a response failed to arrive for nearly a year, on February 1, 2012, HaMoked applied to the Appellate Committee for Foreigners, complaining of the great delay in the ministry’s response. After the application to the committee was made,
the ministry responded to the original child registration application, stating that it had been rejected because the guardianship order and the welfare services review attached to it provided no evidence “that unequivocally demonstrates that the children’s biological mother is unable to care for them.”
On March 1, 2012,
HaMoked filed an application for further review of the ministry’s decision to the appellate committee. HaMoked argued that the refusal to register the children breached Regulation 12 and ignored a judicial order issued by the Shari’a Court and a welfare services report that attested to the fact that the children had been abandoned by their mother. Therefore, HaMoked demanded the committee instruct the ministry to reverse its decision and register the children immediately, as required by law. On May 13, 2013, after the Ministry of Interior did not bother to respond to the application for further review for more than 15 months, HaMoked filed an administrative petition. About six weeks after the petition was filed, the ministry responded, stating that the decision to refuse the children’s registration was appropriate, proportionate and reasonable and that it met the presumption of good governance. Despite HaMoked’s demand, the Court refused to review the petition on its merits, holding that “Presumably, in the current state of affairs, considering the overall circumstances of the matter, the Appellate Committee for Foreigners will reach a decision relatively soon”. However, the Court did rule that the appellate committee procedures had been excessively long and issued a costs order for 5,000 NIS to HaMoked.
On April 30, 2014, after a nine-month delay and only after a second petition was filed with the court, the appellate committee finally issued its decision. The committee explained that the Shari’a Court guardianship order was a judicial decision in every respect, and as such, the Ministry of Interior lacked authority to act against it. However, at the same time, the committee rejected the application for further review, stating that Regulation 12 of the Entry into Israel Regulations does not pertain to the rationale underlying guardianship applications and therefore, it does not compel the Ministry of Interior to grant the children the same status as their grandmother, as required by Regulation 12.
On June 11, 2014,
HaMoked petitioned the District Court against the appellate committee’s decision. HaMoked argued that the decision was extremely injurious to the children’s and their grandmother’s fundamental rights, primarily the right to family life, and that it contradicted the principle of the child’s best interest, while ignoring a peremptory court order and breaching both Regulation 12 and Ministry of Interior protocols. HaMoked further argued that the decision was not preceded by a substantive professional review of the children’s situation which showed that their best interest was other than that determined by the Shari’a Court. As such, it is clear that the question whether the peremptory order in the children’s matter did or did not align with the rationale underlying Regulation 12 was never fully examined.
On November 6, 2011, the District Court accepted the petition and ordered the Ministry of Interior to grant the children permanent residency status in Israel. In its
judgment, the Court stressed that the fact that the children had been living in Jerusalem, and raised there by their grandmother had been established and had never been denied, nor had the fact that the children had been abandoned by their mother many years ago been disputed. In this state of affairs, ruled Justice David Mintz, there is no point in examining the mother’s parental capacity, and “there is no choice but to read Regulation 12 as applying in the case of the Petitioners”. Given its outrageous conduct in the matter, a costs order of 15,000 NIS was issued against the Ministry of Interior.
