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High Court tells interior minister to stop enforcing expired ‘Citizenship Law’

Palestinians married to Israelis were mostly barred for years; law expired in July after coalition failed to renew it, but Interior Minister Shaked has continued to enforce ban

Interior Minister Ayelet Shaked speaks a press conference, at the Finance Ministry in Jerusalem, on October 31, 2021. (Yonatan Sindel/Flash90)
Interior Minister Ayelet Shaked speaks a press conference, at the Finance Ministry in Jerusalem, on October 31, 2021. (Yonatan Sindel/Flash90)

The High Court ordered Interior Minister Ayelet Shaked on Tuesday to cease her implicit ban on Palestinian spouses receiving residency in Israel, telling her that she cannot enforce a law that expired in July.

“The basic rules of administrative law do not allow the enforcement of a law that is no longer on the books,” Justice Dafna Barak-Erez wrote in a ruling issuing a temporary injunction to Shaked to lift the ban.

In 2003, Israel passed a law that mostly banned Palestinians who married Israelis from receiving residency in Israel to live with their families.

At the time, officials justified the policy on security grounds, but senior politicians have increasingly argued that the law is a tool to maintain Israel’s Jewish majority.

The so-called Citizenship Law was renewed every year until this past July, when it expired following a dramatic predawn vote.

The right-wing opposition, led by Likud, voted against renewing the law in an attempt to embarrass the coalition. Two Ra’am coalition parliamentarians also abstained.

Supreme Court justices arrive for a court hearing at the Supreme Court in Jerusalem, on February 24, 2021. (Yonatan Sindel/Flash90)

On paper, with the lapsing of the law, Palestinians married to Israelis are currently legally no different from any other foreign spouse. Israeli law grants foreign spouses residency in the country through a process known as family unification.

But after the law expired, Shaked instructed ministry staff to continue as though the ban were still valid until further notice. Shaked has pushed for even stricter controls on Palestinian immigration to Israel in the past, and has vowed to pass the law again in the coming weeks.

The rights groups Physicians for Human Rights – Israel, the Association for Civil Rights in Israel, and HaMoked appealed what they decried as a violation of the rule of law. Their case is currently pending in the Jerusalem District Court; Barak-Erez’s ruling serves a temporary injunction until the end of those proceedings.

“The Supreme Court has made it clear that it is impossible to continue to act according to an expired law and hold families hostage to Minister Shaked’s legislative initiatives,” the organizations said in a statement following the decision.

An official close to Shaked argued the court ruling would have little practical consequence.

“The minister intends to re-enact the law in the coming weeks. Hopefully the opposition that toppled the law before will not act against the state,” the official said, speaking on condition of anonymity.

Barak-Erez pushed back at that claim in her ruling, quoting a previous Supreme Court filing: “No government office can base [its actions] on predicted legislation. They must act under the law as it is.”

At the same time, the High Court declined to tell the Interior Ministry what procedures it ought to follow when handling Palestinians seeking family unification in Israel.

“At this time, it is not appropriate to instruct the [Interior Ministry] to treat them the same as any other applicant for status in Israel, as their background is different, ” wrote Barak-Erez, saying how Palestinian requests should be handed would be clarified in the main case in Jerusalem District Court.

The Citizenship Law has been wildly controversial since its inception in 2003. Rights groups charge it discriminates against Palestinians and Arab Israelis. The Supreme Court upheld the law in a 6-5 decision in 2012 after a protracted legal battle.

Palestinians and Arab Israelis protest against the 2003 Citizenship and Entry Law into Israel outside the Knesset, on Tuesday, June 29, 2021. (Yonatan Sindel/Flash90)

Introduced at the height of the Second Intifada in an attempt to prevent terror attacks, the law largely barred Palestinians who married Israelis from obtaining permanent residency. Exceptions were later carved out for some spouses to receive two kinds of permits that allowed them to live in Israel, but little else besides that.

Around 12,700 Palestinians married to Israelis — admitted through the exceptions — live in Israel with temporary documentation. They are required to constantly renew their fragile status in the country, which many deem a formidable bureaucratic challenge.

For years, most were not permitted to drive or open bank accounts. If their Israeli spouse dies or they divorce, they could be deported — forcing their Arab Israeli children to either leave with them for the West Bank or stay behind without them.

Around 130,000 Palestinians were granted family unification rights during the 1990s, before the ban went into effect. According to the Shin Bet security service, some 155 of those people or their descendants have been involved in terror attacks since 2001.

Israeli politicians — including Foreign Minister Yair Lapid — have also increasingly defended the law as a demographic measure intended to maintain Israel’s Jewish majority.

“There’s no need to shirk from the essence of this law. It is one of the tools to ensure a Jewish majority in Israel, which is the nation-state of the Jewish people. Our goal is for there to be a Jewish majority,” Lapid tweeted shortly before the law lapsed in early July.

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