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Administrative Detainee

HaMoked to the Supreme Court: The Citizenship and Entry into Israel Law should not be applied to people who are not registered as residents of the oPt and for years have no ties there

The case concerns a young man who has been living in East Jerusalem for the past 15 years with nothing but tourist visas. He lives with his mother, a permanent resident of Israel who belongs to the indigenous population of Jerusalem Palestinians. However, the Ministry of Interior refuses to grant him temporary residency status, claiming that the Citizenship and Entry into Israel Law (Temporary Order), 5763-2003, precludes this.

The Citizenship and Entry into Israel Law prohibits grant of status in Israel by virtue of family unification and applies to anyone defined as a “resident of the Area”, i.e. the West Bank and the Gaza Strip. Under the Law, “resident of the Area” is “someone who has been registered in the [Palestinian Authority] population registry […], as well as someone who resides in the Area notwithstanding the fact that they have not been registered in the population registry of the Area, but excluding a resident of an Israeli settlement”. The Supreme Court ruled in the Hatib case that the first half of the definition applies to any person registered in the PA registry, even if they never lived in the West Bank; regarding the second half, it ruled that “a substantive examination – according to the test of most ties – with respect to the actual residency of the person seeking status” is required.

The principled dispute on whether a person should still be considered a “resident of the Area” even though they severed ties to the oPt long ago and are not registered in the Palestinian population registry is at the center of HaMoked’s request for leave to appeal, submitted to the Supreme Court on October 16, 2020 in a bid to overturn a judgment of the Court for Administrative Affairs. In the judgment in question, the Court rejected an appeal of an Appeals Tribunal ruling, which left unchanged the Ministry of Interior’s refusal to grant temporary residency status to the young man, born in Brazil, who has been living in East Jerusalem for the past 15 years. The Ministry justified its refusal by claiming the young man is a “resident of the Area”, given that he had lived as a minor with his parents in the West Bank for seven years (the first four before the enactment of the Citizenship and Entry into Israel Law) – and as such he was not entitled to receive any status in Israel.

HaMoked argued that the Court for Administrative Affairs erred in its interpreting that the definition of “resident of the Area” is irreversible and permanent, regardless of the fact that the circumstances on which it relied had long ceased to exist. HaMoked clarified that the challenged judgement disregards the rationale established in the Hatib precedent and in the final and conclusive judgments in the Salahat and Seder cases, wherein it was determined that “residency of the Area” is nothing but a reflection of a current reality and may expire insofar as the person had left the “Area” and no longer had ties there. HaMoked stressed further, that there was no basis for the claim that by refraining from applying the Law in such a case, the Law’s security purpose was undermined. The opposite was true: once it has been established that most of the young man’s ties are not to the oPt, the state cannot consider him a security threat, and hence has no grounds to apply the Law to him. (02) 627 1698   (02) 627 6317

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