Israel forcibly transferred to the Gaza Strip a Palestinian man while his application for family unification with his East Jerusalem wife was ongoing: the Supreme Court ruled that the man’s forcible transfer was illegal, but refrained from instructing Israel to return the man to his home
A Palestinian couple married in 2007 and made their home in East Jerusalem. In January 2008, the woman – permanent resident of Israel – submitted an application for family unification with her husband from the OPT. While waiting for the Ministry of Interior to decide on their application, the couple’s three children were born in Jerusalem.
On July 28, 2011, the Israel Prison Service (IPS) forcibly transferred the husband from Israel to the Gaza Strip, upon his release from a short prison term for driving in Israel without an Israeli driver’s license. Only one reason was given for the forcible transfer: in the Israeli copy of the Palestinian population registry the man was listed as living in Gaza. Throughout that day the man kept objecting to his forcible transfer, explaining to the warders that he had left Gaza back in 2000, was living in East Jerusalem and awaiting the Ministry of Interior’s decision on the application for family unification with his wife. The IPS personnel disregarded his claims. The husband has been stranded in the West Bank ever since, far from his wife and children.
On August 14, 2011, HaMoked contacted the Ministry of Interior – as the body handling family unification applications and authorized to allow the entry of “foreigners” to Israel – to demand the man be allowed to return to his home. Instead of correcting the wrong caused by the deportation, the Ministry of Interior announced that the family unification application was rejected based on Government Resolution 3598
– which was approved on June 15, 2008, six months after
the family unification application was filed – which prohibited family unification with persons registered as residents of Gaza. Thus the Ministry of Interior attempted to retroactively
legalize the illegal deportation, based on retroactive
application of a government resolution which did not exist during the application filing date.
In conjunction, HaMoked petitioned
the Court for Administrative Affairs to allow the man’s return to his home. HaMoked argued that according to the case law of the High Court of Justice
(HCJ) and the Ministry of Interior procedures
, a person should not be transferred from Israel so long as his application was being reviewed by the Ministry of Interior. Furthermore, the Ministry should allow the husband to exhaust his family unification proceedings while present in Israel. At this point, the Ministry of Interior argued – for the first time and contrary to its previous claims – that the family unification application had been denied back in May 2008, and therefore there was flaw in the man’s deportation in 2011. The court deleted the petition
due to non-exhaustion of administrative remedies and “lack of jurisdiction […] to review actions performed by the IPS”. The man had to continue his efforts to gain status vis-à-vis the Ministry of Interior while in the Gaza Strip, away from his home and family.
On January 5, 2012, HaMoked appealed
to the Supreme Court against the petition’s deletion and requested the Ministry of Interior be instructed to allow the man’s return to East Jerusalem. HaMoked asserted that the man’s forcible transfer to Gaza was done without a deportation order and contrary to Entry into Israel Law, 5712-1952. HaMoked stressed that under the Ministry of Interior procedures, “until a decision is reached on the application/appeal/objection that has been filed, no enforcement action is to be taken against the applicants
”. HaMoked asserted that the procedure’s aim was to protect applicants against deportation so long as the Ministry of Interior was considering their case. Therefore, even if the man was deported by the IPS, it was the responsibility of the Ministry of Interior to prevent the deportation so long as proceedings were ongoing in his status-application case. Moreover, once the deportation was accomplished, the Ministry of Interior was responsible to right the wrong, because it held the authority to allow the man’s entry back to Israel, and not the IPS. HaMoked added that the lower court’s finding that “the [administrative] proceedings were not exhausted” was incorrect, given that it was already in August 2011 that HaMoked had contacted the Ministry of Interior to demand the man be allowed to return to his home.
On May 28, 2012, in its response to the appeal
, the state retracted the claim it had made in the lower court
, and admitted that the family unification application had been refused only after the man was deported from his home. While it thus effectively admitted that the expulsion was illegal – and although the man’s family unification case was still pending – the state claimed that his deportation was “an accomplished fact”, and that “even if there was a flaw in the appellant’s expulsion, there is no room at present to order the appellant be returned to Israel”.
On June 6, 2012, the Supreme Court rejected the appeal
. Although the justices determined that the man’s forcible transfer was done contrary to the procedures and although they instructed the authorities to adhere to the procedure – the justices did not reach the obvious conclusion of ordering the man be allowed to return to his home and family.