Justice Ministry official: High Court responsible for lack of updated immigration law
By DAN IZENBERG
The government dropped its efforts to legislate an updated, comprehensive citizenship law because of former Supreme Court president Aharon Barak's position that the right of Israeli Arabs to marry Palestinians and live in Israel was a constitutional right, overriding all other considerations except security, a Justice Ministry official said this week.
Attorney Yochi Gnessin, assistant to the head of the High Court Petitions section of the Justice Ministry, appeared Monday evening in a panel discussion on judicial review regarding immigration at the biannual Minerva Conference on Human Rights in Jerusalem.
At the height of the controversy over the constitutionality of a provisional bill banning all Palestinian men aged 18 to 35 and all Palestinian women aged 18 to 25, then-interior minister Ophir Paz-Pines appointed a special committee headed by Prof. Amnon Rubinstein to propose an immigration policy for Israel in view of the growing demand of non-Jews to settle here.
On February 7, 2006, the committee presented an interim report dealing with an entire range of issues linked to immigration including migrant workers, refugees and marriages between Palestinians and Israeli Arabs.
The report, the government's first and only attempt to update the Citizenship Law in view of the drastic changes of the past two decades, was shelved and never heard of again.
Gnessin explained that in the High Court ruling rejecting petitions by the human rights groups Adalah and The Association for Civil Rights in Israel against the temporary law, Barak and his supporters declared the right to family life was a constitutional right that could not be violated except for security considerations.
The state was not entitled to take other matters into account, such as economic considerations or the cultural identity of the majority of the population.
Thus, said Gnessin, even if the government had drafted a comprehensive immigration law which put non-security constraints on the right of Israelis to marry and live with whomever they wanted, the Supreme Court would ignore the law and continue to uphold this right as a supreme constitutional right.
In fact, seven of the 13 justices who presided over the Adalah and ACRI petitions rejected them. Barak and five others were in the minority. But one member of the majority opinion, Justice Edmond Levi, agreed with Barak even though he did not vote with him.
On a related topic, asked whether Justice Minister Daniel Friedmann was justified in drafting legislation that would prohibit the High Court from dealing with citizenship matters, Gnessin gave two examples in which the court, in her opinion, had gone far beyond the law, which was itself based on humanitarian considerations.
In the first case, she said, a ministerial regulation had been drafted stating that the elderly, non-Jewish parent of an Israeli immigrant, who was living alone in her homeland, could come to live in Israel.
At first, the word "elderly" was defined as being 70-75 years old. Later, the High Court had accepted the petitions of parents aged 65. Since then, the age has dropped to 60. Recently, a petition was filed on behalf of a 58-year-old parent, after the family's request to allow her to settler here was rejected.
The court ruled that the woman should be allowed to enter the country now without permanent status, because she would be 60 years old in two years.
"There has to be some limit," said Gnessin.
In another case, she said there is a law that allows a foreign caregiver to work in Israel for five years and three months.
However, if the patient still needs care in the last year of the caregiver's permit, the caregiver may stay as long as is needed by that particular patient.
Over the years, however, there has been a development in which after the patient dies, manpower companies find new work for the caregiver. From this point on, the caregiver is an illegal worker.
In one case, after about a year of looking after a new patient, the patient's family asked the Interior Ministry to extend the caregiver's work permit on the grounds that the patient had become attached to her.
The case reached the High Court. The petition was rejected by a vote of two-to-one, but Justice Ayala Procaccia voted in favor of allowing the caregiver to remain in Israel.
"The question," said Gnessin, "is that given the court's general tendency to follow its own opinion rather than the government's in various matters, even, will it make a difference if a new immigration law is passed?"
"I think that if today's trend continues, it will not," she said.
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