JURIST Guest Columnists Hassan Jabareen and Sawsan Zaher of Adalah argue that the political polarization of the Citizenship and Entry Into Israel Law deflects the real constitutional and legal issues at the heart of the controversy…

Raneen, a 36 year-old Palestinian citizen of Israel, is married to 39 year-old Hatem, a Palestinian from the West Bank. They have been living together in the north of Israel since getting married in 1999, and they have three children. They have a normal family life, except for one thing: Hatem only has a temporary permit to stay in Israel for one year. The Interior Ministry has total discretion in deciding whether or not to issue this permit. Hatem’s current permit will expire and he might not be able to get another one, he may be forced to separate from his family. This is the harsh reality created by Israel’s Citizenship and Entry into Israel Law.

On January 11, 2012, the Israeli Supreme Court, in a 6-5 decision spanning over 230 pages, upheld the constitutionality of the Citizenship and Entry into Israel Law enacted in 2003. This law severely restricts Israeli citizens, overwhelmingly Arab citizens of Israel, from applying for entry of their Palestinian spouses or children from the Occupied Palestinian Territory (OPT) for the purpose of family unification. This law was amended in 2007 to also prohibit spouses from “enemy states,” defined by the law as “Syria, Lebanon, Iran and Iraq,” to enter Israel for the purpose of family unification.

Adalah, as well as several other human rights organizations and Knesset Member Zahava Galon, petitioned the Israeli Supreme Court to strike down the law. In response, the state alleged that the purpose behind this blanket prohibition against family unification was to prevent security threats against Israel, as it does not have the means to undertake individual checks. The state based its claims on its right as a sovereign to permit or prohibit the entry of any foreigner into its territory. However, data provided by the state revealed that from 1994 to 2008, among the more than 130,000 persons who have entered Israel for the purpose of family unification, only 54 were involved in some way in terror actions against Israel. Of these 54, only seven of them were indicted, convicted and sentenced to imprisonment and at least two of them were released from prison after only a short time. Notably undercutting the state’s security argument, the law permits the entry of Palestinians from the West Bank to work in Israel and thousands of people possess such permits and enter Israel every day.

The majority of the justices on the Supreme Court ruled that the potential security threat to the lives of Israelis must prevail over the right to family life. Justice Asher Grunis, soon to become the chief justice of the court in March 2012, ruled that “human rights are not a prescription for national suicide.” He further held that the social aspects of the Citizenship and Entry into Israel Law should be weighed against the potential harm to the lives of Israeli Citizens. The main themes of the majority opinions are that the purpose of the law is legitimate, and that the law is proportionate and constitutional. Justices Naor and Rubenstein added that the right to family life does not mean having the right to exercise that family life in Israel. The majority of justices based their decisions on European comparative case law claiming that other courts have also denied family unification of non-citizens. This interpretation of the case law contradicts three legal expert opinions examining UK, South African and European Court of Human Rights case law, provided to the Supreme Court by Adalah. The experts found that such case law applies only when both spouses are non-citizens. The experts argued that the Israeli Citizenship Law — in comparison with laws in other countries — violated the right to family life and is discriminatory and unconstitutional.

Five justices of the Supreme Court wrote minority opinions finding the law to be unconstitutional. The main theme of the minority opinions was that the law violates the right to family life, which is a constitutional right, and that it is not proportional, as it is sweeping in its prohibition by banning all cases of family unification without examining the circumstances of each individual and to what extent he or she may constitute a “security threat.” Justice Edmond Levy, who wrote the opening opinion, differed from the other justices in the minority, holding that there was no need to examine this law based on the proportionality test, since the law itself is not for a good purpose. In his view, such a discriminatory law against the Arab minority contradicts the constitutional values of Israel as a “Jewish and democratic” state.

In May 2006, the Israeli Supreme Court also upheld this in a Leah Kathryn Sell, an assistant editor for JURIST’s professional commentary service. Please direct any questions or comments to her at professionalcommentary@jurist.org