With ban on Palestinian family unification expiring, what happens next?

In a dramatic dawn vote on Tuesday morning, the Knesset failed to renew a 2003 law that effectively bars Palestinians from receiving Israeli citizenship or residency by marriage.

While Interior Minister Ayelet Shaked has announced plans to reintroduce the measure and try again, it’s unclear if she’ll have majority support the second time around either, after a party colleague broke ranks and voted with the opposition against the bill. The vote was 59-59 with two abstentions, meaning the legislation did not pass.

Prime Minister Naftali Bennett has accused the opposition of harming Israeli security, but some have questioned whether the intifada-era measure is still needed. It appears unlikely Palestinians will be able to use the law’s sunset to flood Israel’s gates, as even those in the midst of the family unification process face a long, bureaucratic slog toward citizenship.

Passed in 2003, the Citizenship and Entry Law was a temporary measure enacted during the Second Intifada, which has been renewed on a yearly basis ever since. It effectively bars Palestinians, along with citizens from other enemy states, from receiving citizenship or permanent residency in Israel by marriage, although it carves out a few exceptions.

“The Citizenship and Entry Law establishes a principle according to which the Interior Minister will not grant citizenship or a residency permit to residents [of the West Bank and Gaza],” the Knesset’s Foreign Affairs and Defense Committee’s legal team wrote in a recent affidavit.

At the time, Israeli officials said it was a matter of security, as some naturalized Palestinian Israelis and their children had been involved in terror attacks.

“This was a law passed at a time when buses were blowing up across the country,” former interior minister Avraham Poraz (Meretz), who oversaw the 2003 legislation, told The Times of Israel recently.

Between 1993 and 2003, around 130,000 Palestinians were given Israeli citizenship or residency through family unification, including children, according to court filings. The Shin Bet security service told the Knesset on Monday that between 2001 and 2021, about 48 were involved in terror activities.

Palestinians and their advocates have long attacked the legislation as being an attempt to counter the perceived demographic threat of Jews becoming a minority in Israel.

“The goal was never security, it was always to control the number of Palestinians,” said Sawsan Zaher, a senior attorney at the human rights group Adalah, to The Times of Israel last week.

Israeli politicians have increasingly repeated that argument in defense of the law, with Foreign Minister Yair Lapid calling it “one of the tools meant to preserve the Jewish majority in Israel” in a speech on Monday.

Successive Israeli parliaments have renewed it on an annual basis for the last 17 years — until Tuesday morning.

With the law set to be stricken from the books at midnight, thousands of Palestinians could now be eligible for Israeli citizenship or residency.

Doors opening?

Are thousands of Palestinians going to get Israeli citizenship now that the law has expired? Maybe. But not immediately, and depending on what happens next in the Knesset, perhaps not at all.

Jews and their relatives who immigrate to Israel do so under the 1950 Law of Return, which entitles them to citizenship almost immediately. But for most foreign nationals, the process is more complicated, involving Israel’s 1952 Entry Into Israel Law.

With the Citizenship and Entry Law no longer in force, Palestinians married to Israelis will be processed under the 1952 law. The law provides a gradual path to citizenship: first a B-1 work visa, then temporary residency, then permanent residency and citizenship.

There are currently around 13,500 open cases of Palestinians applying for family unification that were frozen from the moment the 2003 law first came into effect. Each case will be examined by the Shin Bet security service and then by the Interior Ministry itself on an individual basis.

According to the Kan public broadcaster, Shaked, a proponent of stricter controls against Palestinians receiving residency, has privately said that she will refuse each individual case of Palestinian family unification until new restrictions are passed.

Human rights groups would likely petition against such a blanket policy to the High Court.

Many marriages between Arabs who live under Israeli civilian rule and those who live in the West Bank and Gaza occur between East Jerusalemites and West Bank Palestinians. This means that those applying for unification are only eligible for permanent residency cards held by East Jerusalem Palestinians, rather than citizenship.

The Interior Ministry’s East Jerusalem branch has a reputation for being understaffed, with requests often taking years to process. Even if the Knesset doesn’t pass new legislation, it will likely take some time.

What about Palestinians who are already in Israel?

Around 12,700 Palestinians married to Israeli citizens are already living inside Israel on temporary permits. They are also likely to apply for citizenship or permanent residency, depending on whether their spouse is an Arab Israeli or a Palestinian resident of Jerusalem.

Around 9,700 of these permits are military-issued “stay permits,” while another 3,500 are temporary A-5 visas, according to the human rights organization HaMoked. The latter have been issued by the Interior Ministry either to families who were in the process of family reunification before the 2003 law or in exceptional humanitarian cases, said Reut Shaer, an attorney at the Association for Civil Rights in Israel.

According to Israeli law, the IDF is also empowered to issue temporary stay permits to avoid separating families in certain cases, such as men over 35 and women over 25 seeking to live with their partners. Children under the age of 14 seeking to live with their parents can receive residency.

But Palestinians in Israel on stay permits live precarious lives. They must constantly renew their documentation, which can be revoked at a moment’s notice. They cannot drive, open a bank account or own credit cards, and often have little documentation that ties them to their children. If their Israeli spouse passes away or they divorce, they could become separated from their children.

A proposed compromise crafted by Labor MK Ibtisam Mara’ana-Menuhin would have worked to provide these Palestinians equal social benefits while keeping the law in place.

But the compromise is apparently irrelevant for now, given that the law has collapsed. Should the law be formally annulled, they will likely have to apply alongside everyone else.

Will the Knesset pass new legislation?

The coalition could still try again to extend the 2003 legislation, including the compromise benefits for Palestinian spouses already in Israel, by rallying some of its rebellious members.

Right-wing opposition parties, including Likud, have proposed a new Basic Law that would plug these exemptions. They have said they hope to advance their legislation soon in the Knesset.

That new law would effectively end the ability of Palestinians to receive temporary permits through family unification. Even the temporary permits, these hardliners argue, have led to the effective cancellation of the law.

“As soon as you allow such exceptions, they quickly become the rule,” Religious Zionism MK Simcha Rothman told The Times of Israel last week.

Some conservatives in the coalition, including Shaked, would likely be amenable to such legislation. But it is unclear whether such legislation can pass, given the fragile constellation that comprises Israel’s current government, which spans from the hard-right Yamina, to left-wing social democrats such as Meretz, to the Islamist Ra’am party.

Another thorny question is whether the Citizenship Law could head to the Supreme Court should it be passed again. Shaked is reportedly concerned about potential challenges to the law.

In two previous appeals, one in 2006 and the other in 2012, Israel’s Supreme Court determined that the family unification ban was legal — both times by a single vote, 6-5.

“If this law falls once, it will have devastating consequences. We’ve twice succeeded in maintaining this law by one vote,” Shaked said at a cabinet meeting last week, according to the Haaretz daily. “If the Knesset strikes it down now, I do not know what its fate will be in the High Court.”

The ground has, indeed, shifted since the last legal battle. At the time, Israeli government attorneys argued that the law was vital for security in light of the bloody Second Intifada.

Israel’s security situation has since improved. While lone-wolf stabbing attacks persist, Israelis no longer live in constant fear of suicide bombers in their midst. Israel’s High Court historically gives some deference to the security services, but the justices could decide that the security rationale no longer applies.

On the other hand, the Knesset passed a Basic Law in 2018 that enshrines Israel as the nation-state of the Jewish people. According to New Hope MK Zvi Hauser, the so-called “Nation-State Law” could provide the basis for the argument that maintaining a Jewish majority — rather than security alone — is an acceptable legal justification for the 2003 legislation. If, that is, the coalition can squeeze it through the Knesset.