Appeals Tribunal ruling: Ministry of Interior cannot deny a family unification request on vague security grounds; due process requires that the existence of classified material be divulged in advance המוקד להגנת הפרט
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16.01.2022
Appeals Tribunal ruling: Ministry of Interior cannot deny a family unification request on vague security grounds; due process requires that the existence of classified material be divulged in advance
Appeals Tribunal ruling: Ministry of Interior cannot deny a family unification request on vague security grounds; due process requires that the existence of classified material be divulged in advance

On January 13, 2022, the Appeals Tribunal accepted HaMoked’s appeal and cancelled the Ministry of Interior’s decision to deny the family unification application of a Jerusalem couple due to a security preclusion concerning the spouse who holds oPt residency status. The appeal and the judgment rely on the 2009 Ja'abis precedent, whereby when the Ministry of Interior considers rejecting a family unification application on security grounds, it must provide the couple a notice as detailed as possible regarding the reasons for the intended refusal, and allow them to plead their case before a decision is made. 

The current case concerns a woman who is a permanent resident from East Jerusalem and her spouse who is a resident of the oPt. The two were married in 1984 and have since been living in Jerusalem with their five children, all of them registered as permanent residents in Israel. Since 1994, the couple have been trying to arrange the husband’s status via a family unification procedure, but time after time their applications have been denied on security grounds. This, despite the fact that the man, who has been living in Jerusalem with his family for decades, has never been arrested or interrogated regarding any security-related activity.

On October 4, 2018, the couple submitted another family unification application. Four months later, the Ministry of Interior announced its intent to refuse the application on the grounds that the man was “a member of an illegal association over the years” and “in contact with members of an illegal association”. HaMoked submitted on the couple’s behalf written arguments against the intended refusal. After much delay, the application was indeed refused on October 13, 2020, on the same grounds given in the earlier notice.

In an appeal filed November 2, 2020, HaMoked argued that this was a harsh and wrongful decision that was not properly explained and violated the couple’s right to due process and in particular, their right to plead their case, as well as their right to family life. HaMoked asserted that the Ministry of Interior had explained its final decision in the exact same wording it had used in both the preceding notice and the 2015 notice, without addressing the written arguments the appellants had submitted in the hearing proceeding before the decision was made, and all without even a pretense of due process. HaMoked asked that the Tribunal direct the Ministry of Interior to approve the family unification application, even if in a restricted manner, or alternatively, to issue a new decision containing substantive reasoning and providing real information that would allow the appellants to adequately prepare for the hearing proceeding.  

In the case in hand, Administrative Judge Ilan Halabga accepted HaMoked’s position that the entire proceeding, and especially the hearing, contained flaws requiring the cancelation of the refusal decision. Among other things, according to the judgment, only during the appeal proceedings – and in response to questions sent by the appellants to the security bodies upon the Tribunal’s instruction  – was the claim made that the appellant “runs a body called – the Union of Health Work Committees”, which was declared a terrorist organization by Israel. This information was not divulged to the appellants before the Ministry of Interior hearing nor in its decision, and moreover, it contradicted the open paraphrase given to them, whereby the appellant is “directly involved” in the Popular Front for the Liberation of Palestine (PFLP). The Tribunal held that “the Respondent’s attempt to explain this by [stating] that the appellant is active ‘either directly or indirectly’ in the PFLP borders on a change of course…” and clarified that “the aforesaid goes against the rules which were established in the case law regarding the duty [to hold] a hearing obligating the State authorities towards family unification applicants in whose case the family unification preclusion is a security preclusion”.   

Additionally, with regards to the fact that the Ministry of Interior had revealed the existence of classified material concerning the appellant only in the framework of its response to the petition, the Tribunal held that in the case of a refusal on security grounds “every piece of data is doubly important and harming the right [to be plead one’s case] undermined the principle of a hearing… I cannot accept the claim whereby, naturally, decisions regarding a security preclusion are in any event based on classified material, making it redundant to mention the existence of classified material…”.

Therefore, the Tribunal ruled that “given the flaws that took place in accumulation in the [administrative] hearing proceeding… I hereby order the appellants’ matter be returned to the Respondent for the provision of a full paraphrase subject to the limitations of the classified intelligence information”, stressing that the ruling “takes no position regarding the decision that will be made” by the Ministry of Interior. The Tribunal also ordered the Ministry of Interior to pay the appellants’ legal costs in the sum of NIS 3,000. 

Just a few hours after the judgment was issued, Adv. Benjamin Agsteribbe, who represented the couple on behalf of HaMoked, passed away in an untimely death. The achievement in this appeal, as in many other individual and principled cases, is the fruit of his dedicated efforts to obtain justice and human rights for residents of East Jerusalem.

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On January 13, 2022, the Appeals Tribunal accepted HaMoked’s appeal and cancelled the Ministry of Interior’s decision to deny the family unification application of a Jerusalem couple due to a security preclusion concerning the spouse who holds oPt residency status. The appeal and the judgment rely on the 2009 Ja'abis precedent, whereby when the Ministry of Interior considers rejecting a family unification application on security grounds, it must provide the couple a notice as detailed as possible regarding the reasons for the intended refusal, and allow them to plead their case before a decision is made. 

The current case concerns a woman who is a permanent resident from East Jerusalem and her spouse who is a resident of the oPt. The two were married in 1984 and have since been living in Jerusalem with their five children, all of them registered as permanent residents in Israel. Since 1994, the couple have been trying to arrange the husband’s status via a family unification procedure, but time after time their applications have been denied on security grounds. This, despite the fact that the man, who has been living in Jerusalem with his family for decades, has never been arrested or interrogated regarding any security-related activity.

On October 4, 2018, the couple submitted another family unification application. Four months later, the Ministry of Interior announced its intent to refuse the application on the grounds that the man was “a member of an illegal association over the years” and “in contact with members of an illegal association”. HaMoked submitted on the couple’s behalf written arguments against the intended refusal. After much delay, the application was indeed refused on October 13, 2020, on the same grounds given in the earlier notice.

In an appeal filed November 2, 2020, HaMoked argued that this was a harsh and wrongful decision that was not properly explained and violated the couple’s right to due process and in particular, their right to plead their case, as well as their right to family life. HaMoked asserted that the Ministry of Interior had explained its final decision in the exact same wording it had used in both the preceding notice and the 2015 notice, without addressing the written arguments the appellants had submitted in the hearing proceeding before the decision was made, and all without even a pretense of due process. HaMoked asked that the Tribunal direct the Ministry of Interior to approve the family unification application, even if in a restricted manner, or alternatively, to issue a new decision containing substantive reasoning and providing real information that would allow the appellants to adequately prepare for the hearing proceeding.  

In the case in hand, Administrative Judge Ilan Halabga accepted HaMoked’s position that the entire proceeding, and especially the hearing, contained flaws requiring the cancelation of the refusal decision. Among other things, according to the judgment, only during the appeal proceedings – and in response to questions sent by the appellants to the security bodies upon the Tribunal’s instruction  – was the claim made that the appellant “runs a body called – the Union of Health Work Committees”, which was declared a terrorist organization by Israel. This information was not divulged to the appellants before the Ministry of Interior hearing nor in its decision, and moreover, it contradicted the open paraphrase given to them, whereby the appellant is “directly involved” in the Popular Front for the Liberation of Palestine (PFLP). The Tribunal held that “the Respondent’s attempt to explain this by [stating] that the appellant is active ‘either directly or indirectly’ in the PFLP borders on a change of course…” and clarified that “the aforesaid goes against the rules which were established in the case law regarding the duty [to hold] a hearing obligating the State authorities towards family unification applicants in whose case the family unification preclusion is a security preclusion”.   

Additionally, with regards to the fact that the Ministry of Interior had revealed the existence of classified material concerning the appellant only in the framework of its response to the petition, the Tribunal held that in the case of a refusal on security grounds “every piece of data is doubly important and harming the right [to be plead one’s case] undermined the principle of a hearing… I cannot accept the claim whereby, naturally, decisions regarding a security preclusion are in any event based on classified material, making it redundant to mention the existence of classified material…”.

Therefore, the Tribunal ruled that “given the flaws that took place in accumulation in the [administrative] hearing proceeding… I hereby order the appellants’ matter be returned to the Respondent for the provision of a full paraphrase subject to the limitations of the classified intelligence information”, stressing that the ruling “takes no position regarding the decision that will be made” by the Ministry of Interior. The Tribunal also ordered the Ministry of Interior to pay the appellants’ legal costs in the sum of NIS 3,000. 

Just a few hours after the judgment was issued, Adv. Benjamin Agsteribbe, who represented the couple on behalf of HaMoked, passed away in an untimely death. The achievement in this appeal, as in many other individual and principled cases, is the fruit of his dedicated efforts to obtain justice and human rights for residents of East Jerusalem.

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