On June 2, 2016,
HaMoked petitioned the High Court of Justice (HCJ) to cancel the prohibition on travel to and from Israel via Ben Gurion International Airport by Palestinians living in Israel or East Jerusalem in the framework of family unification procedures, who do not have permanent residency status, but rather temporary residency status (visa type A/5) or just military stay permits. HaMoked argued that inexplicably and unacceptably, the military had issued this long-standing and injurious prohibition, although it has no authority in the matter, rather than the Minister of Interior, who has sole authority concerning entry to and exit from Israel. On July 11, 2017,
the HCJ issued an order nisi in the petition, after the state failed to provide satisfactory answers to its questions.
Two years later, on July 1, 2019, after lengthy discussions,
the parties notified the court they had reached agreement about an arrangement for travel via Ben Gurion Airport of Palestinians with temporary residency status – over 4,000 people. This, subject to an advance security check, to be conducted upon the temporary resident’s request.
On November 21, 2019, the High Court of Justice (HCJ) rejected in a majority vote the outstanding issue of the petition concerning travel via Ben Gurion of stay-permit holders. All three justices of the panel dismissed HaMoked’s argument on the issue of authority, and ruled that “the setting of the condition whereby the family-unification population holding stay-permits is not allowed to go abroad via Ben Gurion (except in exceptional humanitarian cases) was within the bounds of authority of the Minister of Interior” (pursuant to the Citizenship and Entry into Israel Law, the purpose of which is security). Justice Vogelman clarified that this determination was based on the “Minister of Interior’s express decision” of June 4, 2018 – two year after the petition was filed – which ratified the policy regarding stay-permit holders, as a “belated condition” of the stay permit.
However, Justice Vogelman, in a minority opinion, concluded that the petition should be partially accepted, given “the substantial harm caused to an Israeli family consequent to the ban on travel via Ben Gurion of a DCO-permit [i.e. stay-permit] holder”. Vogelman proposed the court instruct the state to formulate within 8 months “an alternative policy of examining requests by the family-unification population holding DCO permits to go abroad via Ben Gurion without limiting it to humanitarian cases only”. Justice Vogelman sided with HaMoked that the sweeping ban on travel via Ben Gurion was disproportionate given the authorities’ obligation to employ the measure which causes the least possible harm to the individual – and in this instance, the measure of individual security check. This according to the judicial principle “whereby a security check based on the individual’s concrete details is less harmful and more proportionate than a sweeping ban”. Vogelman noted that such a mechanism of individual security checks is applied to the general Palestinian population, and that in recent years many thousands of Palestinians living in the oPt went abroad via Ben Gurion (some 14,000 in 2018 alone). “Why is this possible for the general Palestinian population, which has no unique tie to Israel, but is impossible – and sweepingly so – to an essentially Israeli family, composed of an Israeli spouse, a spouse holding a long-term stay permit, and children who are Israeli citizens…” wondered Vogelman.
The majority justices, as opposed to Justice Vogelman, accepted the state’s position that an individual security check was insufficient in the case of stay-permit holders due to the unique security risk arising from the very fact that they belong to this group. However, the majority justices noted that the argument of infringement of the right to equality – which was raised only during the proceedings, with revelation of the high number of the general Palestinian population that traveled via Ben Gurion – “might justify another, substantially different review” of the petitioners’ case.
