Adalah 4 August 2003
During the Apartheid era in South Africa, marriage or any love realationship between members of different racial groups was forbidden. In all public institutions and offices, in public transport and on public toilets, racial segregation was in force.
In the petition, Adalah argued that the new law violates the constitutionally-protected rights of equality, liberty and privacy, as it limits the ability of Israeli citizens’, namely Palestinian citizens of Israel, to exercise these rights based on the ethnicity of their spouses. Adalah requested that the Supreme Court cancel the law, and instate alternative procedures for the granting of citizenship and residency status in Israel for Palestinian spouses of Israeli citizens. Together with the petition, Adalah also filed a motion for injunction asking the Supreme Court to freeze the implementation of the law, pending a final decision on the case.
Header of the new law in Hebrew.
The Knesset passed the law, entitled “Nationality and Entry into Israel Law (Temporary Order) - 2003, on 31 July 2003. The law was first introduced by the government on 4 June 2003. The new law will affect thousands of families, comprised of tens of thousands of individuals. It will primarily impact Palestinian citizens of Israel, as they are the Israeli citizens who marry Palestinians from the Occupied Territories. The new law exclusively and solely targets Palestinians; the general policy for residency and citizenship status in Israel for all other “foreign spouses” remains unchanged. The three main groups affected by the law are: Newly married couples - The law prevents the Palestinian spouse from being granted residency or citizenship status in Israel. No new applications for naturalization will be accepted. Pending applicants - Applications submitted before 12 May 2002 will be considered, however, no temporary or permanent residency or citizenship will be given. Only permits for a temporary stay in Israel may be given. Individuals with temporary residency status - The law prohibits the upgrading of temporary residency status, granted prior to 12 May 2002, to permanent residency or citizenship, even if the requests were authorized and the applicants met the necessary criteria.
In arguing that the new law is unconstitutional, Adalah emphasized that:
This law is the first, since the legislation of the Basic Laws that denies citizens’ their constitutional rights specifically and directly on the basis of their ethnicity. … The law specifically utilizes the ethnicity of Palestinian citizens of Israel to infringe upon their rights, since Palestinian citizens of Israel are the individuals who marry Palestinians from the West Bank and Gaza. The law does not grant rights to a specific group, due to their ethnicity, but on the contrary, it specifically utilizes ethnicity to limit and infringe on existing constitutional rights. Thus, the law does not merely discriminate on the basis of nationality or ethnicity; it is clearly racist.
Regarding the government’s claim that the law is needed due to security concerns, Adalah argued that the law was legislated without the Knesset being presented with all of the relevant facts and information. As stated in the petition:
Furthermore, the initiators of the legislation were unable to present any data strengthening their argument regarding the necessity of this legislation. On the one hand, they argued [that the legislation was justified] on the basis of security, in light of the increasing involvement of residents of the West Bank and Gaza Strip in terror activity, who were granted status in Israel through family unification. On the other hand, when they were requested to provide specific data, it became clear that they were referring to 20 people suspected of direct or indirect involvement, including weapons offenses, out of a population of many thousands of residents of West Bank and Gaza who were granted status in Israel through family unification. Yet, in the state’s response dated 13 April 2003, to another petition submitted by Adalah [challenging the government’s similar May 2002 decision regarding these issues], the state detailed only six examples - status-receivers, who were directly or indirectly involved in terror activity or assisting in terror activity.
Adalah argued that, even if this data is reliable, the numbers presented by the government constitute a minute part of the total number of status-receivers. It cannot be inferred from this information, Adalah contended, that the entire population of status-receivers or the entire Palestinian population of the Occupied Territories is dangerous. Security concerns cannot justify such sweeping measures.
The El-Sana family, petitioners in this case, are representative of the group of newly married couples whose lives are dramatically affected by the new law. Mr. Morad El-Sana is a citizen of Israel and an Adalah Staff Attorney. Mr. El-Sana married Abeer El-Sana, a resident of Bethlehem in the West Bank, in March 2003. Mrs. El-Sana is a social worker and a lecturer at Al Quds University. After their marriage, Mr. El-Sana submitted a request on behalf of his new wife to receive status in Israel. The Ministry of Interior denied this request. In an affidavit submitted to the Supreme Court, as part of the petition, Mr. El-Sana stated that:
I want to make it clear that my wife and I were aware of the legislative process and the government’s decision and that it will interfere in our daily life … My wife will not be able to live with me in Lagiyya, in the Naqab (Negev), and I won’t be able to live with her in Bethlehem. The legislator has decided to prohibit us from living together. To know that our most fundamental rights were revoked by the legislator, although we did nothing wrong, is so bitter that I cannot swallow it. Both my wife and I have no criminal or security past …But because of my wife’s ethnic belonging, we are being categorized as suspects and our rights are being denied.
The Tbilah family are also petitioners in this case. Mrs. Ranit Tbilah is a citizen of Israel, and her husband, Mr. Hatim Tbilah, is from Nablus, West Bank. They were married in 1999 and have two young children. The Ministry of Interior approved their request for family unification in July 2000, and Mr. Tbilah received temporary residency status in October 2001 that he must attempt to renew every six months. Under the new law, Mr. Tbilah’s status in Israel may not be upgraded, although he was supposed to have been eligible for citizenship in 2004. In her affidavit submitted to the Supreme Court as part of the petition, Mrs. Tbilah expressed the overwhelming fear that she and her family face:
Since the Cabinet’s decision on 12 May 2002, we live in constant fear of what lies ahead for us. This fear is now even stronger with the new law. Being a young couple, and parents of a young girl and a four-month old baby, not knowing the most basic thing for every family - could we continue living together as a family - makes our lives bitter. After the Cabinet’s decision, although we desperately wanted to have another child, we had a difficult time deciding whether to bring another child to this world because of the worry of what destiny lies ahead for our family in this cruel reality that we live in. But our life and our love were stronger than any other consideration and this is how our young daughter Dima came to this world. My pregnancy with Dima and since she was born, was filled with mixed feelings. On the one hand, we were filled with joy for our gorgeous baby and on the other hand, we were filled with concerns for what future she is going to have. We are very glad that our daughters are too young to understand the kind of threat that is hanging like a cloud above our family. But the suffering that my husband and I are experiencing is too heavy to carry.
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