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Before the Supreme Court, HCJ 4608/02 Sitting As the High Court of Justice

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Before the Supreme Court, HCJ 4608/02 Sitting As the High Court of Justice Before the Supreme Court, HCJ 4608/02 Sitting as the High Court of Justice In the matter of: 1-57. Imad Abu As’ad, et. al 58. Adalah: The Legal Center for Arab Minority Rights in Israel Represented by Adv. Orna Kohn and/or Hassan Jabareen and/or Jamil Dakwar and/or Marwan Dalal and/or Suhad Bishara and/or Morad el-Sana, from Adalah: The Legal Center for Arab Minority Rights in Israel, PO Box 510, Shefa’amr 20200, Israel, tel. 04 950 1610, fax 04 950 3140 Petitioners v. 1. Prime Minister 2. Minister of the Interior 3. Director of the Population Bureau Represented by the State Attorney’s Office, 29 Salah a-Din Street, Jerusalem, tel. 02 646 6590, fax 02 646 6655 Respondents Petition for an Order Nisi and Temporary Injunction A petition is hereby filed to obtain an order nisi against the Respondents and to direct them to explain: 1. Why they do not continue to apply, as to Petitioners 2, 4, 9, 12, 14, 19, 23, 26, 30, 35, 39, 43, 52, and 55 the gradual naturalization procedure customarily employed in Israel regarding the spouses of Israeli citizens, pursuant to section 7 of the Citizenship Law (1952). 2. Why they do not revoke Cabinet Decision 1813, of 12 May 2002, which states that: a. The general procedure regarding the granting of citizenship to the spouses of Israeli citizens in a gradual process will not apply to spouses who are residents of the Palestinian Authority and/or are of Palestinian descent; b. Until a new procedure is formulated that establishes stricter conditions for the naturalization of spouses who are residents of the Palestinian Authority and/or are of Palestinian descent, submission of applications to obtain status by spouses of Israeli citizens who are residents of the Palestinian Authority and/or are of Palestinian descent will not be allowed; c. Until the new procedure is formulated, pending applications for status in Israel that were filed by spouses of Israeli citizens who are residents of the Palestinian Authority and/or are of Palestinian descent will not be approved, and the spouses will be required to stay outside Israel until a decision is made on their applications. d. Until the new procedure is formulated, where the spouses of Israeli citizens who are residents of the Palestinian Authority and/or are of Palestinian descent have received a permit, “the status will not be upgraded.” 3. Why they do not register Petitioners 24 and 41 in the population registry and recognize them as Israeli citizens from birth. Application for Temporary Injunction The Honorable Court is requested to issue a temporary injunction directing the Respondents as follows: 1. To extend the temporary residency of Petitioners 2, 4, 9, 12, and 14. 2. To issue Petitioners 19, 23, 26, 30, 35, 39, 43, 52, and 55 temporary permits to stay in Israel until a final decision is delivered on the petition. 3. In the alternative, to refrain from expelling Petitioners 2, 4, 9, 12, 14, 19, 23, 26, 30, 35, 39, 43, 52, and 55 from Israel. The grounds for this request are as set forth in the petition. The relief is sought in particular to prevent irrevocable harm resulting from the separation of Petitioners 2, 4, 9, 12, 14, 19, 23, 26, 30, 35, 39, 43, 52, and 55 from their families, including from their spouses and/or minor children, and from the arbitrary revocation of their status in Israel, thus making their presence in Israel illegal. Issuing the temporary injunction will not cause any damage to the Respondents; however, the failure to issue it will cause extremely grave and irrevocable harm to the Petitioners. Application for Urgent Hearing The Honorable Court is requested to order an urgent hearing on the petition. The basis for this request is the extremely grave violation of fundamental constitutional rights of the Petitioners, and of others in a similar position, for the reasons set forth in this petition. The grounds for the petition are as follows: Factual Background Introduction 1. The subject matter of this petition relates to a decision by the Respondents that flagrantly discriminates against the Petitioners and Arab citizens of Israel regarding their constitutional rights to family life, dignity, equality, and privacy. The decision that is the subject of the petition relates to the granting of status in Israel to Palestinian spouses of Israeli citizens; in practice, the decision harms only Arab citizens of Israel, because they are the ones who are married to Palestinians. The said decision does not relate to granting status in Israel to spouses who are not Palestinians who are married to Israeli civilians. Therefore, based on the disparate impact test, the decision is tantamount to discrimination based on nationality. As such, it violates human dignity. 2. It should be noted that the subject matter of this petition is not a request by persons wanting to immigrate to a foreign country, but requests by citizens of the state to live jointly with their spouses and/or parents of their minor children, and to enable them to live as a normal family. 2 3. Cabinet Decision 1813, of 12 May 2002, in the matter of “the treatment of persons staying illegally and policy of family unification relating to residents of the Palestinian Authority and to foreigners of Palestinian descent” (hereinafter: the Cabinet Decision), states that the general procedure regarding the gradual process of the naturalization of spouses of Israeli citizens - as established following the decision in HCJ 3648/97, Stamka, et. al. v. Minister of the Interior, et. al., P.D. 53 (2) 728, about which Respondent 2 informed the Honorable Court in HCJ 338/98, Sabri ‘Issa, et. al. v. Minister of the Interior (pending before the Honorable Court) - will not apply to spouses who are residents of the Palestinian Authority and/or are of Palestinian descent. Attached hereto is a copy of the Cabinet Decision, marked Appendix P1, and the state’s response in ‘Issa, marked Appendix P2. 4. The Cabinet Decision establishes regulations for an unlimited interim period until formulation of a new procedure. The new procedure will contain stricter conditions for the naturalization of Israeli citizens’ spouses who are residents of the Palestinian Authority and/or are of Palestinian descent. It is emphasized that the gradual process of the general naturalization procedure of spouses of Israeli citizens will continue to apply to all non-Palestinian spouses of Israeli citizens. 5. The Cabinet Decision provides that, during the interim period, Israeli citizens’ spouses who are residents of the Palestinian Authority and/or are of Palestinian descent will not be allowed to submit applications to obtain status; pending applications for status in Israel that were submitted by Israeli citizens’ spouses who are residents of the Palestinian Authority and/or are of Palestinian descent will not be approved; the spouses will be required to stay outside Israel until a decision is made on their applications; where Israeli citizens’ spouses are residents of the Palestinian Authority and/or are of Palestinian origin have received permits, “the status will not be upgraded.” 6. This decision is discriminatory, arbitrary, sweeping, without criteria, and excessive. It violates the Petitioners’ fundamental constitutional rights, including the right to family life, dignity, privacy, and equality. Furthermore, it contravenes the Basic Law: Human Dignity and Liberty, the Citizenship Law (1952), and international law. It also contravenes the rule set by the Honorable Court in Stamka and the commitment made by the state to the Honorable Court in ‘Issa. The Cabinet Decision also violates the right to be heard and is applied retroactively. The Petitioners 7. The Petitioners are Arab citizens of Israel whose spouses are Palestinians, [non-citizen Palestinian] spouses of the former, and their joint children. The Petitioners’ applications to obtain a status in Israel for one spouse [of each couple] were filed in the offices of the Population Bureau, which is subordinate to Respondents 2 and 3. These applications were in various stages of the gradual process toward obtaining Israeli citizenship, when handling was frozen at the end of March 2002 pursuant to the directive of Respondent 2. They presently are the subject of the Cabinet Decision. 8. Petitioners 2, 4, 9, 12, and 14 had obtained temporary residency status. As a result of the Cabinet Decision, they are unable to become citizens. Petitioners 19, 23, 26, and 30 had not received temporary residency status, although their applications had been accepted in principle; as a result of the Cabinet Decision, they will not obtain any status. 9. Petitioners 35, 39, 43, and 52, have not received any decision regarding their applications. As a result of the Cabinet Decision, their applications will be refused. 3 10. Petitioner 55 was not allowed to file an application for a status in Israel by employees of Respondents 2 and 3, and she requested Respondent 3 to allow her to submit an application. As a result of the Cabinet Decision, she will not be allowed to submit an application. 11. Also, even after the Cabinet Decision was reached and prior to filing of the petition, officials at the offices of the Population Bureau, which are administered by Respondent 3, did not extend the status of Petitioners 2 and 4 as temporary residents. As a result, these two petitioners will become persons staying in Israel illegally. Abu As’ad Family - Petitioners 1 and 2 12. Petitioner 1 is an Arab citizen of Israel, who resides in Nazareth. He was married on 21 April 1999 to Petitioner 2, who is a Palestinian who was born in Syria. On 27 May 1999, Petitioner 1 filed an application on behalf of Petitioner 2 to obtain a status in Israel.
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