The HCJ rejected HaMoked's petition against Government Resolution 3598: the judgment closes the door on family unification between Israelis and Gaza Strip residents המוקד להגנת הפרט
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15.06.2015
The HCJ rejected HaMoked's petition against Government Resolution 3598: the judgment closes the door on family unification between Israelis and Gaza Strip residents
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In June 2008, the Government of Israel adopted Resolution 3598, directing the Minister of Interior not to approve applications filed by Israelis for family unification with residents of the Gaza Strip. As phrased, the Resolution applies not only on people who actually live in Gaza, but also on anyone who is listed as a Gaza resident in the Palestinian population registry, even if s/he has long been living away from Gaza. Accordingly, since then, the Ministry of Interior has been refusing to consider any family unification applications filed for Palestinians who live in Gaza or are registered with a Gaza address, even if no concrete security allegation has been raised against them.

In June 2013, HaMoked petitioned the High Court of Justice (HCJ) to repeal Resolution 3598, holding that the blanket policy it applied to the residents of Gaza contradicted basic constitutional principles and was a radical departure from the provisions of Clause 3d of the Citizenship and Entry into Israel Law (Temporary Order) 5763-2003, on which it rested. HaMoked explained that while Clause 3d detailed instances where the Minister of Interior was authorized to determine that a certain individual posed a security threat (among other things, because s/he lives in an area "where activity takes place which may endanger the security of the State of Israel and its citizens), the Resolution went much further and determined that a general threat emanated from all Gaza residents, solely because they resided there. Illegally and without authority, the Resolution broadened the geographic threat into a registrational threat.

In September 15, 2014, following the justices' comments in the first hearing on the petition, the state announced that the Resolution would not be applied in two instances: first, in cases of Gaza residents who legally live in the West Bank, having both relocated there "by approval of the competent authorities" and changed – by approval of the military commander – their address listing in the population registry; second, in cases of Gaza residents on whose behalf family unification application had been filed beginning with the entry into effect of the first amendment to the Citizenship and Entry into Israel Law (which allowed applications for family unification with OPT residents who meet the stipulated threshold age requirement) and until the entry into effect of the second amendment to the Law (which expanded Clause 3d to allow the rejection of family unification applications due to a threat emanating from the simple fact that a person resides in an area in which dangerous activity is carried out).

The second court hearing centred on the scope of the exemptions listed in the state's response. HaMoked asserted that given Israel's policy of banning address changes from Gaza to the West Bank, the first exemption was in fact meaningless; therefore, HaMoked asked to include in the exemption also family unification applicants still listed with Gaza addresses who had relocated to the West Bank prior to Israel's disengagement from Gaza in September 2005, in accordance with the agreements reached in HCJ 4019/10 HaMoked v. the Military Commander of the West bank. As to the state proposed period of exemptions, HaMoked asked that it be expanded to include also applications filed up until the adoption of the Resolution, allowing for their individual consideration; this, given that the Resolution established a new policy, beyond the scope of Clause 3d as expanded in 2007.

In June 14, 2015, the court ruled that in view of the security situation in Gaza and the state's exemptions to the sweeping resolution, the petition should be dismissed. The justices accepted the state's argument that so long as a state of hostility exists between the Gaza Strip and the State of Israel, there is a substantive difficulty in conducting individual security checks to family unification applicants who reside in Gaza, and ruled that in these circumstances, family unification applications may be dismissed out of hand strictly based on the applicant's place of residence.

It was further ruled that due to the "volatile situation", there was no call at present to compel the state to "upgrade" the position of Palestinians still listed as Gaza residents – although they have been living in the West Bank for many years already – so they would be able to receive stay permits in Israel. However, Justice Naor added that "possibly, after an additional substantial period of stay in the area of Judea and Samaria, there would be room to reconsider this position" (emphasis in original). HaMoked's demand to expand the exemption period established by the state was also rejected, given that "it cannot be determined that until the entry into effect of the Government Resolution Gaza Strip residents had reasonable anticipation that subject to a regular individual security check, the request for a permit would be granted".
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