With no clear legal authority: the State continues to harm the freedom of movement of Palestinians living in Israel lawfully, by limiting their overseas travel via the Ben Gurion airport
On June 2, 2016, HaMoked petitioned the High Court of Justice
(HCJ) to determine that Palestinians living in Israel (or East Jerusalem) lawfully as part of family unification procedures, are entitled to leave the country and return to it via the Ben Gurion international airport, without any limitations or requirements for further permits.
Following the State's failure to respond to the Judges' questions in the hearings on the petition, on July 11, 2017, the Court issued an order nisi
instructing the State to explain why it does not permit members of this group to travel overseas via Ben Gurion, and to indicate the legal basis for this restriction. Following an additional hearing on January 22, 2018, the Court ruled
that "the State's position on the issue requires examination and elaboration", stating the State must address, among other things, the potential need for regulations or legislation on the matter.
Subsequently, in an updating notice
submitted on June 7, 2018, the State announced its decision to permit passage through Ben Gurion airport of Palestinians who hold A/5 visas (temporary residency) issued as part of family unification procedures, subject to the submission of an individual request at the District Coordination Office (DCO), and to a lack of security prohibition. At the same time, the State announced it would continue to ban travel through the Ben Gurion airport of Palestinians who hold only temporary stay permits, excluding in exceptional humanitarian cases. The State repeated its claim that the basis for this prohibition is security related.
In its update, the State claimed the source of its legal authority on the matter is inherent in the Minister of Interior's authority to issue stay permits in Israel, which "naturally includes" the authority to set conditions and limitations in the permits. In regards to people holding A/5 permits, the State claimed the Ministry of Interior's authority to prohibit travel through Ben Gurion is explicitly derived from clause 6 of the Entry into Israel Law
, and therefore requires no further legislation.
On July 9, 2018, HaMoked submitted a response to the State's notice
, repeating its demand that the State permit unrestricted overseas travel through Ben Gurion airport of Palestinians living in Israel lawfully as part of family unification procedures. HaMoked claimed that members of this group have a right to travel through Ben Gurion, similarly to any other resident of the country, and that any curtailment to the right to freedom of movement can only be effected through primary legislation. HaMoked further claimed that the State did not point to the legal source according to which members of this group are a priori banned from travelling freely through Ben Gurion. Additionally, HaMoked repeated its claim that the security justification of the prohibition is unfounded, because Palestinians living lawfully in Israel as part of family unification procedures regularly undergo intensive security checks when renewing their permits.
In regards to the procedure proposed by the State for approving requests to travel through Ben Gurion airport of Palestinians who hold A/5 visas, HaMoked claimed that the proposed solution is restrictive and discriminatory, due to the fact that people wishing to travel through Ben Gurion will be forced to submit a request for a single use permit – valid only for a month – prior to every trip. Their routine travel through Ben Gurion is therefore prevented.
More than a year after the order nisi in the petition was issued, the legal source for the State's curtailment of the freedom of movement of Palestinians living in Israel lawfully has still not been clarified. The new procedure proposed by the State is restrictive and discriminatory, and provides only an extremely partial solution to the problem.