Case Number

HCJ 7444/03

Date Decided

2-22-2010

Decision Type

Original

Document Type

Full Opinion

Abstract

Facts: The petitioners were married in 1996; petitioner 1 is an Israeli citizen and petitioner 2 was born abroad and at the time of their marriage was a resident of the occupied territories. Following the couple’s marriage, petitioner 2 lived in Israel pursuant to limited duration permits to stay in Israel granted through a family unification process. These permits were regularly renewed until 1999, when she received a permit granting her temporary residence status. In 2003, a government resolution that had been adopted in 2002 and which had reversed previous policy on family unification approvals, was legislatively enacted in the form of the Citizenship and Entry into Israel (Temporary Provision) Law, 5763-2003. That same year, the couple was informed that petitioner 2’s most recent application for the renewal of her residence permit had been denied for security reasons.

Held: (Justice Procaccia). Constitutional rights are not absolute, and the legitimacy of the violation of such a right is determined through a two stage process. The first stage involves a theoretical balancing of the violated right against the values that the government seeks to protect by using the measure that creates the violation. The second stage consists of a second balancing ― based on the results of the theoretical balancing conducted in the first stage ― of the concrete facts involved in each side of the equation in the particular case. In this case, the government’s 2002 resolution and the 2003 Knesset law changed the existing policy regarding family unification, such that the starting point in all such decisions was now that all applications for family unification would be denied unless they fall within certain exclusions including transitional provisions included in the statute. Because the denial of family unification status violates the constitutional right to a family life with a spouse who is or was a resident of the territories, these exclusions must be construed purposively, so that they provide the required balancing. The transitional provision applicable to the petitioners’ particular case is the provision applying to an extension of a residency status that had been granted prior to the new government resolution, and states that such a status “may” be extended ― ruling out an automatic denial of applications for renewal. The provision further stipulates that such extensions are to be allowed “while taking into account, inter alia, the existence of a security impediment” ― indicating that a security impediment will be a factor to be weighed, but not an automatic ground for denial. Thus, in the case of an application from a non-Israeli spouse who has already lived in Israel for several years pursuant to a valid permit, the strength of the violation of the right to a family life is to be balanced against the strength of any security-related impediment that may be present in the particular case. If the applicant has already been living in Israel for several years and has children who have been born in Israel and are being educated there, the non-renewal of a residence permit is a severe violation. A security-related impediment will justify such a violation only when it is also of great weight. The efficacy of measures less drastic than the non-renewal of the permit must also be considered.

In this case, the applicant had been living, working and raising a family in Israel for seven years by the time the application for an extension of her residency status had first been denied. Her family’s strong expectation and interest in continuing their united family life needed to be weighed against the serious security concern raised by the fact that several members of her family were involved in terrorist activity; however, that security interest was an indirect one, because it did not involve the applicant herself and instead involved only her relatives, while there had been no evidence regarding her own involvement in dangerous activity. In such a situation, the state would need to establish that the probability that she herself would present a danger reached the level of near certainty in order to justify the violation of the right to a family life, but no such probability had been proven here. A proper weighing of the intense violation of a right to a family life against an indirect security danger presented by relatives of one applicant would indicate that the applicant should be permitted to stay in Israel, subject to a set of conditions which would include a commitment on her part to cut off all contact with the relatives involved in terrorism and not to visit the territories. In addition, the applicant should receive only permits to stay in Israel that would require renewal every six months, in order to allow proper monitoring of her behavior.

(President Beinisch, concurring). The result achieved through the theoretical and concrete balancing presented in Justice Procaccia’s opinion is correct. However, in weighing the interests involved, evidence presented by the security establishment need not be examined on any level higher than a prima facie review of correctness, due to the presumption of propriety that applies with regard to the findings of an administrative authority. In this case, the strength of the evidence of risk presented by the security establishment was clear. However, a proper weighing of the indirect risk against the harm done to the petitioners’ rights would nevertheless lead to the same practical conclusions described in Justice Procaccia’s opinion.

Petition granted.

Keywords

Constitutional Law -- Basic Law: Human Dignity and Liberty, Constitutional Law -- State of Emergency and National Security

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