The Knesset recently failed to pass an extension of the Citizenship and Entry into Israel Law was adopted in 2003 as a temporary order. Israel's government must now reconsider whether there is indeed a security justification for the sweeping provisions that have been in place until now, and whether there are alternatives that can minimize the potential violation of human rights resulting from the original law.
What is the Citizenship and Entry into Israel Law?
In 2003, during the Second Intifada, the Knesset passed temporary legislation designed to prevent residents of the Palestinian territories from gaining legal status in Israel (the Citizenship and Entry into Israel Law [temporary provision] 2003). The main goal of this law was to prevent “family unifications” between Israeli citizens (mainly Arabs) and their Palestinian spouses or children. The law was to expire after one year, though the government was given the power to extend it for additional periods of up to one year each, subject to the Knesset’s approval. Since then, it has been extended every year, no less than 17 times. The current public debate centers around the government’s proposal to once again extend the law for an additional year.
In effect, the law denies Israeli citizens who are married to Palestinian residents of the Palestinian territories (or residents of specific hostile states) the generally accepted right (under article 7 of the Citizenship Law 1952) to gain legal status in Israel for their spouses, and prevents them from being able to maintain a normal family life within Israel.
What is the purpose of the law?
The law was passed in 2003, at the height of the Second Intifada. The explanatory notes to the bill presented to the Knesset stated that it was designed to respond to a security need: to prevent a situation in which individuals who gained legal status in Israel by marrying an Israeli citizen or resident, could take advantage of their freedom of movement to carry out acts of terror. This was also the reasoning provided by the State Attorney’s Office to the Supreme Court when petitions were brought against the law. The Court, which narrowly approved the constitutionality of the law on two occasions (in 2006 and in 2021), also based its rulings on the argument that the law was a temporary necessity due to the security situation.
However, during deliberations on the bill in the Knesset, some of its supporters attributed to it a different purpose: preventing large number of Palestinians from settling in Israel, in a manner which they argued could threaten Israel’s Jewish majority. Against the backdrop of these arguments, and given the very small number of cases in which individuals who benefited from family unification in Israel have actually been involved in terrorism (see below), some Supreme Court justices expressed their doubts regarding the credibility of the security considerations presented as the basis for the law.
What does the law currently state?
Since it was passed, the Citizenship and Entry into Israel Law has been amended twice, in 2005 and in 2007. In its current version, it states that, as a rule, permits to reside in Israel will not be issued to residents of the Palestinian territories, or to citizens or residents of several hostile countries (Iran, Lebanon, Syria, and Iraq).
However, the law cites several exceptions to this rule:
• Male residents of the territories over the age of 35, and female residents of the territories aged over 25, may be given permits to reside in Israel in order to prevent their being separated from their spouses who are legal residents of the country. This exception is based on an assessment by the security agencies that people in these age groups represent a relatively low security risk.
• Minors may be granted permits in different circumstances in order to remain with their parents who are legal residents of Israel.
• Palestinian residents may be granted permits to reside in Israel for the purposes of work, medical care, and other temporary matters.
• A special provision of the law grants legal status to Palestinians who have provided significant services to Israel and identify with the State of Israel, as well as to their families.
• The Minister of the Interior is authorized to grant legal status in Israel in additional cases based on special humanitarian grounds.
The law makes clear that even in these exceptional cases (excluding minors under the age of 14, Palestinians who have provided significant services to Israel, or people seeking a temporary permit in order to receive medical treatment), entry permits or legal status will not be granted if the applicant or member of their family might pose a security threat, according to the assessment of the security agencies. This security assessment can be based on a general assessment indicating that in a specific area activities are being carried out that threaten the security of the State of Israel. Since 2008, a general assessment of this kind has been applied to all residents of the Gaza Strip.
What is the procedure for extending the law?
As noted, the Citizenship and Entry into Israel Law states that the government can extend the law for up to a year, with the approval of the Knesset. As opposed to in most other cases, no legislative procedure is required for this extension. Until 2015, requests from the government to extend the law were debated only in the Knesset plenum, without any prior discussion in one of the Knesset committees. In recent years, following a Knesset decision, requests to extend the law are discussed by a joint committee of the Knesset Foreign Affairs and Security Committee and the Knesset Interior Affairs Committee. The recommendation of this joint committee is subsequently brought to a vote in the plenum. It should be emphasized that under the terms of this procedure, the Knesset may either approve or reject an extension of the law, but it cannot make any amendments to the law itself.
Since the declared purpose of the law is security-oriented, the joint committee is tasked with closely examining whether there is still a strong security basis for extending the law.
What is the problem with the law?
Non-Israelis do not have an automatic right to enter the State of Israel. However, the right of every Israeli citizen to marry and enjoy family life is recognized by Israeli law as a fundamental right, derived from the constitutional right to human dignity, which is anchored in the Basic Law: Human Dignity and Liberty.
It is sometimes argued that recognizing the right to family life does not necessarily mean that this right must be exercised in Israel, and that an Israeli who chooses to marry a non-Israeli has the option of moving abroad. However, though the Supreme Court denied the petitions against the law, a majority of justices agreed that the constitutional right to family life includes the right to raise a family in one’s own country (though some justices ruled that restriction of this right is justified by security considerations.) The recognition of this right means that the state should not, as a rule, force its citizens to choose between living apart from their spouses and leaving their country. For this reason, Israeli law generally provides for a special naturalization process for foreign spouses of Israeli citizens.
In addition, while the law may not have originally been intended to specifically target Arab citizens of Israel, it leads to a discriminatory result, since due to their familial, cultural, and national ties with Palestinians in the territories it is they (and not Jewish citizens) who marry Palestinians. As a result of the law, some Arab citizens who wish to enjoy normal family life with their Palestinian spouses or children are forced to leave the country. Similarly, even in those cases in which spouses are allowed to remain in Israel according to the exceptions listed in the law, they are granted temporary permits which leave their families in a perpetual state of uncertainty. And in most cases, spouses are not awarded legal status that would afford them the right to social benefits, such as unemployment benefits.
It should be emphasized that marrying an Israeli citizen does not automatically bestow the right to legal status in Israel. Even before the law was passed, Palestinian residents seeking family unification were required to undergo an extended process in which they had to present proof of the authenticity of their relationship with their Israeli spouse and were subject to security checks. The law's problematic message is that family members of Israeli citizens are by definition a security threat, simply because they are Palestinian, regardless of their individual attributes.
What has the Supreme Court ruled with regard to the law?
The Supreme Court has ruled on the constitutionality of the law on two occasions, both-with an extended quorum of 11 justices. The first ruling, issued in 2006 (HCJ 7052/03 Adalah vs. Minister of the Interior), rejected the petition against the law by a majority of six justices to five. However, a majority of justices agreed that the law disproportionately infringes the constitutional rights of Arab citizens to family life and to equality. The petitions were rejected because one of the justices, Justice Edmond Levy, ruled that despite the constitutional difficulty inherent in the law, the fact that it was a temporary provision should be taken into account. Thus, it should not be struck down, and instead the Knesset should be allowed to consider amending it.
The second ruling, in 2012 (HCJ 466/07 Galon vs. Attorney General), also rejected the petitions against the law, by a single vote. Some of the justices in the majority ruled that Israeli citizens’ constitutional right to a family does not necessarily apply to life in Israel. Others ruled that while the law infringes on constitutional rights, the harm caused is proportional, in the context of the fight against terror. For many of the justices in both hearings, the conclusion that the law was proportional was based on its its temporary nature.
How many Palestinians request family unification each year?
According to data published by the Ministry of the Interior in 2020, some 800–1,000 applications for family unification per year have been received in recent years. In 2020, there were approximately 13,000 Palestinians residing in Israel who had received entry permits or temporary legal status for family unification purposes, in accordance with the exceptions listed in the law. According to an estimate provided by the State Attorney’s Office to the Supreme Court in 2006, the 2005 amendment to the law that allowed exceptions for minors, Palestinian men over 35, and Palestinian women over 25, was expected to result in approximately 28.5% of the requests that had previously been submitted becoming eligible for consideration.
How many of them are involved in terrorism?
During hearings on of the first petition to the Supreme Court in 2006, the State Attorney’s Office presented data according to which, of the thousands of Palestinians who gained legal status in Israel following family unification, 26 had been investigated on suspicion of involvement in carrying out terror attacks following the outbreak of the Second Intifada;, and in another 42 cases, the residency permits of Palestinian residents were not renewed in light of intelligence information pointing to their involvement in terrorism or to some other connection to terrorist activity.
According to data from security agencies presented to the Knesset in 2020, between 2001 and 2020, a total of 45 Palestinians who were granted legal status in Israel as a result of family unification were linked to terror offenses, and this figure dropped to zero in the years 2018–2020. According to the same data, between 2001 and 2020, there were 109 Israelis defined as “second generation” members of families created by family unification who were involved in terror offenses—16 of them in the years 2018–2020.
Is the law necessary from a security standpoint?
The data presented above raise serious questions as to the need and justification for the sweeping arrangement mandated by the law, especially in recent years. While individual security assessments cannot completely neutralize all danger, we do not usually accept a desire for “zero risk” as the basis for regulating other facets of society. To do so would mean completely shutting down modern life: we would not drive on the roads, we would not use cellular phones, and perhaps we would not even allow our children to play by themselves in the park. The relevant question is: In the delicate balance between the desire to eliminate risk, and the need to make it possible to lead a normal life, is it possible to justify the kid of sweeping ban that appears in the law, which places such a heavy burden on Israel’s Arab minority, and on it alone?
A relevant question in this regard is whether we now possess technological means that could improve the efficacy of individual assessments, which were not available to the security agencies when the law was initially passed. In light of these questions, we should reassess the law’s justification and necessity, and consider expanding the exemptions it allows.
What is the significance of the failure to extend the law?
Israeli citizens' requests for legal status for their Palestinian spouses will now need to be assessed using the accepted criteria in this domain, which give considerable weight to the right of Israeli citizens to family life in Israel, alongside other criteria, which certainly include security considerations.
Will the Ministry of the Interior be required to automatically grant legal status to every Palestinian spouse of an Israeli citizen?
No. It is important to note that marriage to an Israeli citizen does not grant an automatic right to legal status in Israel. According to the routine guidelines of the Ministry of the Interior, foreign spouses who are not eligible to immigrate to Israel under the terms of the Law of Return are required to undergo a lengthy process in which the authenticity of their marriage is assessed, as well as possible security or criminal barriers to residency in Israel. Only when this process is completed, after several years, is Israeli citizenship granted.
While the Ministry is authorized to use discretion, this discretion cannot be arbitrary or discriminatory, and must give the appropriate weight to Israeli citizens' right to live in Israel with their families. There is no question that the Ministry of the Interior is permitted, and even required, to apply individual security considerations in assessing specific requests.