Following the state's notice: HaMoked requests the court to order that the exceptions to the sweeping denial policy of family unification applications in Israel of Gaza Strip residents or persons who are registered as Gaza Strip residents be expanded המוקד להגנת הפרט
02.10.2014
Following the state's notice: HaMoked requests the court to order that the exceptions to the sweeping denial policy of family unification applications in Israel of Gaza Strip residents or persons who are registered as Gaza Strip residents be expanded
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On June 6, 2013, HaMoked filed a petition with the High Court of Justice in which it requested the court to revoke government resolution 3598 dated June 15, 2008, which directed the Minister of the Interior to deny family unification applications in Israel of Gaza Strip residents and of any person who was registered in the Population Register as a Gaza Strip resident, even if he did not reside therein.

Among other things, HaMoked argued in the petition, that the government resolution extremely exceeded the provisions of section 3D of the Citizenship and Entry into Israel Law (Temporary Order), 5763-2003, on which it was based: not only that the resolution expanded the argument concerning a security risk which stemmed merely from the place of residence, and applied it to persons who were registered as Gaza Strip residents, regardless of their actual place of residence; it also established a sweeping rule, which limited the discretion of the Minister of the Interior, where it was stipulated that specific examinations should be made. In so doing, the government took a clear legislative action, which unreasonably and disproportionately violated fundamental rights, without any authorization.

During the hearing in the petition - which took place together with HaMoked's appeal against the retroactive application of the government resolution - the court indicated that it did not intend to sweepingly revoke the resolution. However, the court instructed the state to examine the possibility to establish a special policy for two groups of exceptions – individuals who were only registered in the Gaza Strip but did not actually live there for a long period of time, and individuals from Gaza who submitted family unification applications before the government resolution was adopted.

In view of the above, the state notified on September 15, 2014, that the government resolution would not be applied in two cases: the first one concerned Gaza Strip residents who lawfully resided in the West Bank, after having relocated to that area with "the approval of the competent authorities" and changed their address in the Population Register with the approval of the military commander; the other case concerned Gaza Strip residents whose family unification applications were submitted between August 1, 2005 (the date on which the first amendment to the Citizenship and Entry into Israel Law entered into effect, which established the possibility to submit family unification applications for women residents of the OPT over the age of 25 and for men residents of the OPT over the age of 35) and March 28, 2007 (the date on which the second amendment to the Law entered into effect, which expanded the provisions of section 3D in a manner which enabled to deny family unification applications due to a risk which derived from the mere fact that a person resided in an area in which dangerous activity was carried out).

On September 29, 2014, HaMoked submitted its response to the state's notice, in which it argued that the exceptions established by the state to the sweeping and absolute application of the government resolution complied only partially with the court's directives and did not reflect the spirit of the things which were said in the hearing. Firstly, the state's notice disregarded the fact that since 2000 Israel prevented West Bank residents, who were registered in the Population Register as Gaza Strip residents, from changing their address, and anyway, prevented Gaza Strip residents from relocating to the West Bank. Namely, the first exception proposed by the state was de-facto meaningless. Secondly, the limits of the period stipulated by the state for the purpose of the second exception did not fully prevent the retroactive injury caused by the government resolution, in view of the fact that when the second amendment of the law entered into effect, a specific examination of family unification applications which were submitted for Gaza Strip residents was still allowed; the government resolution – which was adopted after more than a year – expanded the applicability of section 3D of the law and prohibited the exercise of discretion in connection with these applications.

In view of the above, HaMoked requested the court to determine that the government resolution would not apply to family unification applicants whose registered address was in Gaza, despite the fact that they relocated to the West Bank before September 12, 2005 (the residency in the West Bank of this group of people was "validated" in the judgment in HCJ 4019/10 – HaMoked et al., v. IDF Commander for the West Bank Area et al.); to Gaza Strip residents whose family unification applications were submitted between August 1, 2005 and June 15, 2008 (the date on which the government resolution was adopted); and to Gaza Strip residents whose family unification applications were approved – after a specific examination – before the adoption of the government resolution, but whose family unification procedure was severed for these or other reasons, and due to the government resolution were prevented from resuming the procedure.
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