On 31 July 2003, the Knesset enacted the Nationality and Entry into Israel (Temporary Order) Law, 5763-2003. The law forbids Israelis
married to, or who will marry in the future, residents of the
Occupied Territories to live in Israel with their spouses. Israelis
married to foreign nationals who are not residents of the Occupied
Territories are still allowed to submit requests for family
unification on their behalf.

The new law also harms children born in the Occupied Territories to
parents who are residents of East Jerusalem. The Ministry of the
Interior changed its procedures regarding the registration of these
children in the Population Registry. Rather than filing a "Request to
Register a Child," it became necessary to submit a request for family
unification for them. Under the new law, such requests are not
allowed. As a result, it is impossible to legalize the children's
status in Israel.

The law does not establish a new immigration policy for residents of
the Occupied Territories. International law recognizes the right of
every state to determine who is entitled to enter its territory, so
foreign nationals have no intrinsic right to enter the country. Some
countries set immigration quotas, based on varying criteria. However,
when foreigners are married to nationals or residents of the state,
different rules apply, and there are limitations to the discretion
that the government may exercise. As in every case where a state
authority exercises discretion, the rules must be reasonable, based
on substantive grounds, and applied without discrimination. The issue
involved here is not whether the foreign national has a right to
enter the state, but the right of citizens and residents of the state
to live with their spouses in the country in which they were born.

The law severely infringes the right to family life of Palestinian
residents of East Jerusalem. Some residents of East Jerusalem married
to residents of the Occupied Territories will now have to live
separately from their spouses. Couples that want to live together in
Israel, will be breaking the law, and as such will live in constant
fear and be unable to lead a normal life. If couples choose to live
together in the Occupied Territories, the Israeli spouse will be
breaking the law because of the military order that prohibits the
entry of Israelis into the Occupied Territories.

Couples who got married before the law was enacted and the spouse
from the Occupied Territories did not yet receive a permanent status
in Israel, are allowed to live together only if the spouse receives a
temporary permit from the Civil Administration. Submitting an
application for a temporary permit is difficult and Israel often
cancels such permits. Even prior to enactment of the law, couples had
difficulty living together in Jerusalem because of the problems
entailed in obtaining the permits. Enshrining this situation in law
will make the couple's life uncertain, with no chance for favorable
change.

The new policy regarding the registration of children creates an
unreasonable situation. The Interior Ministry registers some children
in the family and allows them to live with their parents in
Jerusalem, but forces other children in the family to leave their
family or to remain in Jerusalem illegally. The change in policy has
turned many children into lawbreakers. Children born in the future
will also be breaking the law. Many parents will not obey a law that
forbids them to live with their children, so the children will
continue to live with their family in Jerusalem, without permits. The
children will not be entitled to state health insurance, and the
parents will not receive the children's allowance for them from the
National Insurance Institute.


Israel contends that the law is necessary for security reasons,
because the entry of residents of the Occupied Territories – whoever
they are – and their free movement within Israel after receiving a
legal status in Israel, endanger the safety of Israeli citizens. The
state offers only one statistic to back up this claim – twenty-three
Palestinians who received legal status in Israel pursuant to the
family unification process were involved in the carrying out attacks
against Israelis.


The contention that cancellation of the procedure for family
unification of Israelis and Palestinians was based on security
considerations was not raised in a comprehensive and detailed manner
until the state had to justify the cancellation to the High Court of
Justice. Prior to that, the state offered other reasons to justify
the policy, among them the "danger to the Jewish character of the
state" resulting from family unification, and the claim that
residents of the Occupied Territories exploit the family unification
procedure to carry out a "creeping right of return." The official
reliance on security considerations is an attempt to create an
ostensibly legitimate legal basis for the law, on the assumption that
the state will have difficulty defending the real reasons before the
High Court and the international community.
A serious discussion was never held on the demographic claims, in
part because of the state's attempt to conceal the demographic
argument. The claims were never proven, and no state official
presented any relevant statistics. According to the Interior
Ministry, between 100,000 and 140,000 Palestinian residents of the
Occupied Territories received legal status in Israel through the
family unification process. However, these figures, which were
intended to be used to support the demographic justification for the
law, are not relevant in a discussion on family unification of
Israelis and residents of the Occupied Territories. The Ministry
itself admitted that its number included spouses who were not
residents of the Occupied Territories (for whom family unification
was not cancelled) and the couple's children.
The state was so sure of the strength of its argument that it did not
bother to provide a foundation for it. It contended that forty-five
Israelis were killed and 145 wounded in attacks in which Palestinians
who had received legal status in Israel pursuant to the family
unification process had been involved. However, it did not indicate
how may attacks were carried out, their location, the nature of the
involvement of the Palestinians who had legal status in Israel, and
the how having an Israeli identity card benefited them in carrying
out the attack. The state also did not mention whether the
individuals were tried, the offenses for which they were convicted,
or the sentences they received – if, in fact, some of them were tried
and convicted.


Even if the state's contention that these twenty-three Palestinians
were involved in carrying out attacks is entirely accurate, this
statistic is certainly not a sufficient basis for the state's
contention that the general population of residents of the Occupied
Territories who are married to Israelis constitutes a danger. Some
0.02 percent of them, according to the state, took advantage of their
legal status in Israel to assist in attacks.


The state's contention about the threat posed by residents of the
Occupied Territories is unconvincing for another reason as well. The
law allows the entry of Palestinians into Israel to work, obtain
medical treatment, or "any other temporary purpose," and allows the
granting of permanent residency to collaborators and their families.
The law also allows residents of the Occupied Territories whose
requests for family unification have already been approved to remain
in Israel, and states that the Interior Ministry will consider
requests submitted prior to the government's decision.


The state's logic, whereby isolated cases are sufficient grounds to
punish hundreds of thousands of people could be similarly used to
justify the imposition of all sorts of other prohibitions. For
example, is it not justifiable to forbid Arab citizens of Israel to
enter Jewish towns and villages after an Arab citizen carried out an
attack and several other Arabs were accomplices? Is it not
justifiable to forbid settlers from crossing the Green Line and
entering Israel after one of them transported the suicide bomber who
committed the attack at the Geha intersection, and after a number of
settlers were convicted of selling weapons to Palestinians?


For many years, demographic considerations have indeed affected
Israeli government policy. However, the new law adds a particularly
grave innovation. This policy was enshrined in law in July 2003, and
is the first law that explicitly denies rights on the basis of
national origin. The determination that Israelis are allowed to live
with the person of their choice and inside the country unless they
are married to residents of the Occupied Territories, is racist and
discriminatory.


B'Tselem and HaMoked: Center for the Defence of the Individual urge
the Israeli government to change its policy and treat its citizens
and residents equally, and call on the Knesset to repeal the new law.
The Interior Ministry must reinstate the procedures for family
unification and the registration of children, and process these
requests efficiently and fairly. They must recognize the right of
residents of East Jerusalem to marry whomever they choose and to live
with their spouse and children wherever they wish.

www.btselem.org/