Precedential judgment against the Minister of Interior: a Palestinian woman living in East Jerusalem for years in the framework of family unification procedures cannot be denied an upgrade in residency status, due solely to actions of her son
On July 8, 2020, the Jerusalem Court of Administrative Affairs accepted HaMoked’s petition
to upgrade the status of a Palestinian woman living in Jerusalem for some 20 years with her spouse, a permanent resident of the city. This, pursuant to the Minister of Interior’s announcement of April 2016
– issued following HaMoked’s petition (HCJ 813/14
) – on the grant of temporary residency status to over 1,500 Palestinians living in Israel for many years, with nothing but stay permits and with no social security rights, in the framework of family unification procedures.
Although the woman met all the Minister’s conditions for receiving the status of temporary resident, including a “center of life” in Israel and the absence of any security or criminal concerns, her status was not upgraded due to allegations regarding the couple’s eldest son (the teenager was suspected of stabbing of an Israeli Border Police officer – who sustained light injuries – and was killed by security forces in the incident). In a decision of March 1, 2020 – issued only following HaMoked’s non-response appeal to the Appeals Tribunal – the Ministry of Interior refused to give the woman temporary status, on the grounds that it was impossible to disconnect between her request for temporary residency status and her son’s deed and the “family environment in which he was raised and educated, an environment which contributed to the formation of the minor’s personality”. It was also announced that as the gatekeeper of the State of Israel, the Minister of Interior had broad discretion, that was not limited to his general announcement of April 2016, and that he was therefore entitled to reject the request.
Therefore, on March 5, 2020, HaMoked petitioned to the Court for Administrative Affairs on the woman’s behalf, claiming the decision was unfair and prompted by unacceptable motives and irrelevant considerations. Among other things, HaMoked based its claim on two previous rulings issued regarding the woman’s status. These proceedings – which lasted from late 2015 until early 2019 – contested the Minister’s decision to deport the woman on the grounds of “parental responsibility” for the actions of her deceased son. In that matter, the Appeals Tribunal’s ruled
the Citizenship and Entry into Israel Law does not give the Minister of Interior the authority to deport a person living lawfully in Jerusalem as a “deterrent”, or “punishment” or due to “parental responsibility”. The State appealed this ruling and the Court for Administrative Affairs upheld
the Tribunal’s precedential judgement. Consequently, the Ministry of Interior resumed giving the woman stay permits, but, unsurprisingly, did not upgrade her status
In the current case, the Court for Administrative Affairs accepted HaMoked’s position that the woman must be given an upgrade to temporary status, and similarly based its judgment on the two earlier rulings. The judgment stated that even if, as the State claimed, the Minister’s general announcement of April 2016 was tantamount to an administrative instruction – and not a governmental guarantee, as HaMoked claimed – even so, it could only be deviated from on the basis of a substantive and reasonable justification. This given that “after the above-mentioned Minister’s announcement was submitted to the High Court of Justice, and even publicly published, it could give rise to a substantial expectation that the Minister would act upon it, in the absence of weighty considerations to deviate from it”. The court also clarified that the Minister’s announcement was preceded by the HCJ’s repeated comments that action was needed to “legalize the status of those people whose status upgrade was frozen due to the stipulations of the Temporary Order [the Citizenship and Entry into Israel Law]”.
Judge Oded Shaham noted that the Minister’s decision in the woman’s case harms the principle of equality, given that her status “was not upgraded despite the fact she met all the conditions listed in the Minister’s announcement”, and particularly, “given the resultant inequality between the petitioner’s status and the status of the other members of her family, all of whom permanent residents”. Additionally, it was ruled that the Minister’s decision in this case constituted, among other things, a violation of the basic right to dignity, as it contained a “punitive element for actions [the woman] did not commit and was not responsible for”, and also contradicted the basic legal principle that no person should be punished for the actions of another.