Summery HCJ 3648/97 Stamka (04/05/1999): Supreme Court revoke the Minister of the Interior’s policy regarding the handling of a foreigner’s application staying in the country without a permit and married to an Israeli citizen, as well as the granting citizenship to a non-Jewish foreigner marrying an Israeli citizen

HCJ 3648/97 Stamka v. Minister of the Interior, IsrSC 53(2) 728 (1999)

Supreme Court sitting as the High Court of Justice

HCJ 3648/97

HCJ 8016/96

HCJ 343/97

HCJ 604/97

HCJ 924/97

HCJ 2124/97

HCJ 2180/97

HCJ 3533/97

HCJ 4514/97

HCJ 4696/97

HCJ 7187/97

HCJ 7218/97

HCJ 7346/97

HCJ 7353/97

HCJ 7604/97

HCJ 18//98

HCJ 151/98

HCJ 468/98

HCJ 588/98

HCJ 2125/98

HCJ 2355/98

HCJ 2567/98

HCJ 3533/98

HCJ 4019/98

HCJ 4110/98

HCJ 4623/98

HCJ 5188/98

 

The Supreme Court sitting as High Court of Justice

Before: Justice M. Cheshin, Justice D. Dorner, Justice D. Beinisch.

Petitioners in HCJ 3648/97

1. Yisrael Stamka

2. Bijelbahan Fatel

3. Miriam Gorodetsky

4. Peter Pobi

5. Zohar Yifat

6. Steven Wally Adeniji

Petitioner in HCJ 8016/96 Jorge Arnulf

Petitioner in HCJ 343/97

Anita Rantzer

Petitioners in HCJ 604/97

1. Ido Idan

2. Tatiana Wodenski

Petitioner in HCJ 924/97

1. Yitzhak Friedman

2. Davina Dragomir

Petitioners in HCJ 2147/97

1. Baruch Semo

2. Zion Azav Tespazag

Petitioners in HCJ 2180/97

1. Abdullah Yildiz

2. Natalia Kadoshvitz

Petitioners in HCJ 3533/97

1. Tatiana Ivanovna Valchok

2. Boris Sapozhnikov

Petitioners in HCJ 4514/97

1. Webeto Warko Imer

2. Semelvit Vladias

Petitioners in HCJ 4696/97

1. Alexander Diachenko

2. Alexandra Gorlov

Petitioners in HCJ 7187/97

1. Boris Srebrenic

2. Alicia Vasiliadi

3. Yuri Vasiliadi

Petitioners in HCJ 7218/97

1. Skub Renata

2. Agponikov Igor

Petitioners in HCJ 7346/97

1. Simona Wilf

2. Jugen Hosano

3. Einat Primo

4. Prince Hays Amlalo

Petitioners in HCJ 7353/97 1. Yevgeny Stramovsky

2. Larissa Shevetz

Petitioners in HCJ 7604/97

1. Hannah Yisraeli

2. Frederick Kuamina Wilson

Petitioners in HCJ 19/98

1. Ashmei Ichelhum Tespai

2. Abeba Pishah

Petitioner in HCJ 92/98

Mesfin Matheus Bakela

Petitioner in HCJ 151/98

Mazalach Peretz

Petitioners in HCJ 468/98

1. Garda Gamaliel

2. Godwin Iheanacho Ugwu

Petitioners in HCJ 588/98

1. Moshevitz Igor

2. Kozayev Oksana

Petitioners in HCJ 2125/98

1. Kuznezov Maxim

2. Vasiliev Irina

Petitioners in HCJ 2355/98

1. Miriam Yanai

2. Joseph Uchenna Dike

Petitioners in HCJ 2567/98

1. Yagudaev Inesa

2. Bobriniov Vaceslav

Petitioners in HCJ 3533/98

1. Dimitri Sendekov

2. Nina Lookout

Petitioners in HCJ 4019/98

1. Dov Holzberg

2. Rosalia Chipai

Petitioners in HCJ 4110/98

1. Genadi Lifschitz

2. Valentina Ovchinkova

3. Leah Hazzan

Petitioners in HCJ 4623/98

1. Ella Elizabeth Shunia

2. Ade Juwon Ajifolawe Ojomo

Petitioners in HCJ 5188/98

1. Semion Rabinikov

2. Irina Rabinikov (Rastborchev)

v.

Respondents:

1. Minister of the Interior

2. Head of the Visas and Aliens Department in the Ministry of the Interior

3. Head of the Population Authority

Respondent in HCJ 604/97

4. Head of the Consular Section – Ministry of Foreign Affairs

Attorneys for the Petitioners in HCJ 3648/97:

Anat Scolnicov, Adv.; Anat Ben-Dor, Adv.; Nicole Maor, Adv. (Center)

Attorney for the Petitioner in HCJ 8016/97:

Rami Amir, Adv.; Nir Amoday, Adv.; Eyal Akunis, Adv.

Attorney for the Petitioners in HCJ 343/97 and HCJ 604/97:

Shmuel Mintzer, Adv.

Attorney for the Petitioners in HCJ 924/97, HCJ 2124/97, HCJ 2180/97, HCJ 4514/97, HCJ 19/98, HCJ 3533/98, HCJ 4019/98:

Yosef Ben-Menashe, Adv.

Attorney for the Petitioners in HCJ 3522/97:

Arnon Shotland, Adv.

Attorney for the Petitioners in HCJ 4696/97:

Grigori Geiman, Adv.

Attorney for the Petitioners in HCJ 7187/97:

Ilya Waisberg, Adv.

Attorney for the Petitioners in HCJ 7218/97:

Rami Mashinsky, Adv.

Attorney for the Petitioners in HCJ 7346/97, HCJ 7604/97, HCJ 468/98, HCJ 2355/98, HCJ 4110/98, HCJ 4623/98:

Theodor Schvarcberg, Adv.

Attorney for the Petitioner in HCJ 92/98:

Avinoam Ashkenazi, Adv.

Attorney for the Petitioners in HCJ 2125/98:

Vadim Strovichovsky, Adv.

Attorney for the Petitioners in HCJ 2567/98:

Lora Maxic, Adv.

Attorney for the Petitioners in HCJ 5188/98:

Dayana Har-Even, Adv.

Attorney for the Respondents:

Yochi Gnessin, Adv. (Director of the High Court of Justice Affairs in the State Attorney’s Office); Dana Briskman, Adv.; Aner Helman, Adv.; Udit Corinaldi-Sirkis, Adv.; Orit Koren, Adv.

Abstract:

For many years, the Ministry of the Interior interpreted the Law of Return, 5710-1950, such that a non-Jew who married a Jewish Israeli citizen was entitled – upon marriage – to the status of a Jew under the Law of Return, and to the status of an oleh [Jewish immigrant] under the Nationality Law, 5712-1952. In 1995, the Ministry of the Interior changed its view. According to the new interpretation, that non-Jewish partner would not fall within the scope of the Law of Return, and consequently, would not be entitled to the rights granted a Jew, including the right to automatic Israeli citizenship upon request.

In their petitions, the Petitioners – who are “intermarried”, such that one of the partners is Jewish and the other is not – challenged the Ministry of the Interior’s new interpretation. They also challenged the Ministry of the Interior’s policy requiring the non-Jewish spouse to leave the country until the Ministry of the Interior had completed its examination of whether the marriage was bona fide or fictitious.

The Supreme Court held:

A.

(1) An agency that understood its authority in one way – even over a long period of time – and eventually reached the conclusion that it had erred in its interpretation, and that its authority differed from what it previously thought, is not only permitted to change its erroneous conduct, but is required to do so. Therefore, there are no grounds for a claim that the authority is estopped from retracting its mistaken interpretation.

(2) Past acts and decisions made in light of the incorrect interpretation will stand, if only because individuals acquired interests and rights, and it would be improper to change their situation for the worse.

B.

(1) In accordance with the principle of the separation of powers, the authority and responsibility for interpreting the law are granted to the judiciary. Therefore, the Court will grant only very limited weight to the interpretation of the administrative authority acting thereunder. Moreover, it is the Court that is the expert in the matter of interpreting laws.

(2) In this regard, a distinction should be drawn between laws intended to establish behavioral norms and laws of a purely professional or technical nature. In the case of the latter, the Court should properly be aided by the interpretation of the administrative agency possessing the technical knowledge and expertise in the concrete matter.

(3) In the instant case, the Law of Return is a normative law that constitutes one of the foundational laws of the State. Therefore, the interpretation given to the law by the Ministry of the Interior has minimal, if any, influence on the Court in the interpretation of this law.

C.

(1) The primary characteristic of the right of return is that is almost an absolute right. Every Jew, wherever he may be, can and is entitled – at his volition alone – to realize the right of return, except in those limited, exceptional cases listed in sec. 2(b) of the Law of Return. In light of sec. 2(a) of the Nationality Law, a Jew who falls within the purview of the Law of Return becomes a citizen of the State upon arriving in Israel, without any waiting period.

(2) As opposed to this, the entry of a non-Jew to the State of Israel, and his presence in the country, are subject to the Entry into Israel Law, 5712-1952, which establishes a regime of permits, and grants the Minister of the Interior and his appointees broad discretion as to whether or not to grant a permit to enter and stay in Israel.

D.

(1) The provisions of sec. 4A of the Law of Return – which grant the rights of return to the non-Jewish family members of Jews – was intended for intermarried families in the Jewish Diaspora, in order to preserve family unity and encourage their immigration to Israel. The legislature sought to realize this purpose by granting the rights of return to a family member of a Jew, even without recognizing that person as a Jew.

(2) Therefore, although by its language, sec. 4A would appear to apply to the non-Jewish spouse of a Jewish Israeli citizen who wishes to benefit from the Law of Return and the Nationality Law, the main purpose of the law was not intended for such cases.

(3) The necessary conclusion is that the right of return is granted exclusively to the family members of Jews prior to their immigration to Israel. The right is not afforded to the Petitioners, inasmuch as their spouses are Jewish Israeli citizens – whether by birth or by realizing their right of return prior to their marriage – and they do not enjoy the power to grant the right of return to their spouses.

E. An alien who marries an Israeli citizen does not acquire a right to naturalization by the very fact of the marriage, and the Minister of the Interior holds the authority to grant or deny an application for naturalization submitted by that alien spouse. Therefore, by virtue of sec. 13 of the Naturalization Law, the Minister of the Interior holds the authority to issue a deportation order to such a spouse who is neither an Israeli citizen nor an oleh under the Law of Return if he is in Israel without a residence permit.

F.

(1) An administrative agency that establishes internal directives that affect individual rights has a duty to bring those directives to the knowledge of the concerned parties by means of publication to the general public or by some other means. This duty is a precondition to the establishing and implementation of the directives.

(2) The Ministry of the Interior’s policy requiring a non-Jewish spouse who married an Israeli to leave the country until the completion of an examination of the legitimacy of the marriage was not published in an orderly manner by the Ministry of the Interior, except for a one-time, general notice in the daily newspapers. Such a situation borders upon illegality.

(3) The fact that some of those affected by the lack of publication of the policy reside in Israel unlawfully would not appear to prevent raising the argument that the administrative agency failed to fulfill its duty to publish under the legality principle.

G. The Minister of Justice’s authority to deport an alien under the Entry into Israel Law is very broad, but it is not absolute. The exemption from stating reasons – granted to the Minister by virtue of sec. 9(b) of the Administrative Procedure Amendment (Statement of Reasons) Law, 5719-1958 – denies the possibility of effective judicial review of the deportation authority.

H.

(1) The proportionality requirement – which applies to the exercise of discretion of every authority – requires that there be a rational connection between the means chosen by the authority and the objective it seeks to achieve, and that the harm that the administrative policy causes to the individual not be inordinately greater than the benefit of the policy.

(2) The Ministry of the Interior’s desire to combat the phenomenon of “fictitious marriages” is a “proper purpose”, however, the question is whether the means that it chose – requiring that the non-Jewish spouse of an Israeli citizen leave the country until the end of the examination of the legitimacy of the marriage – exceeds its contribution to advancing its objective.

(3) First and foremost, real doubts arise in regard to the existence of a rational connection between the said policy and promoting the objective of reducing the number of fictitious marriages, for a number of reasons. First, it would appear, on its face, that the demand that the non-Jewish spouse leave the country until the conclusion of the examination may, on the one hand, not deter a person who has decided to acquire Israeli citizenship by means of a fictitious marriage, while on the other hand, it may severely harm legitimate marriage relationships as a result of the separation imposed by the policy.

(4) Second, although the Ministry of the Interior has followed this policy for a number of years, it did not show that it actually contributes to a reduction in the number of fictitious marriages. The Ministry of the Interior did not present any relevant data as to the effect of the policy upon fictitious marriages.

(5) Third, it would appear that removing one spouse (or both together) from the country until the conclusion of the examination may actually make it more difficult to conduct some of the examinations required in assessing the legitimacy of a couple’s relationship, and primarily, to enquire into whether the couple live together and maintain a common household.

(6) The further requirement of proportionality – that there be a proper relationship between the public benefit achieved by the policy and the harm inflicted thereby upon the individual – is not met in the instant case. The policy adopted by the Ministry of the Interior severely and painfully harms many couples by ripping them from one another for a period of months, in addition to the economic and other burdens it imposes upon the couple, in order to achieve what would appear to be a purely speculative, unproven objective.

(7) Therefore, the necessary conclusion is that the Ministry of the Interior’s policy in regard to aliens married to Israelis while residing in Israel without a permit does not meet the proportionality test and is unlawful and void. The policy is also inconsistent with fundamental principles of a democratic regime that is concerned for civil rights.

(8) This does not mean that there are no possible cases in which the Ministry of the Interior is authorized to demand that a non-Jewish spouse leave the country until the conclusion of the examination of the legitimacy of the marriage. This would be the case where the fictitious nature of the marriage is facially obvious on the basis of clear evidence obtained in the course of the preliminary examination, or where the marriage certificate is a manifest forgery. In such cases, the said means may be employed after granting the couple an opportunity for a hearing of their arguments.

(9) However, in the usual case, the very fact that the non-Jewish spouse resided in Israel unlawfully at the time of the celebration of the marriage does not permit the Ministry of the Interior to condition addressing an application for naturalization upon the spouse’s leaving the country. The proper solution in such situations would appear to be that the unlawful residence at the time of the marriage would place a heavier-than-normal evidentiary burden upon the couple for proving the legitimacy of the marriage.

I.

(1) There are no grounds for intervening in the Ministry of the Interior’s policy to apply the same arrangement for granting permanent residency to the spouses of Israeli citizens that it applies to the spouses of Israeli residents in regard to the waiting period required of the alien spouse prior to receiving permanent residency.

(2) It would be proper that the waiting-period requirement for an alien spouse be established in regulations, or at least in internal administrative directives published to the public at large.

J.

(1) Section 7 of the Nationality Law authorizes the Minister of the Interior to grant citizenship to the spouse of an Israeli citizen even if that spouse does not meet the general criteria for citizenship detailed in sec. 5(a) of that law. However, the Minister holds broad discretion in this regard. Just as the Minister can waive the criteria set forth in sec. 5(a), he may decide not to waive them, and insist that some of them they be met. However, in the framework of his discretion, the Minister cannot ignore the provision of sec. 7 permitting leniency for the spouses of Israeli citizens requesting Israeli citizenship.

(2) In this regard, the burden is upon the Minister to explain why he does not exempt such a spouse from the criteria under sec. 5(a) in whole or in part. Only in very exceptional cases would it possible to accept the Minister’s decision to require a spouse to meet all the criteria under sec. 5(a).

(3) In practice, the Minister of the Interior’s policy, as presented to the Court, shows that there are not real differences between the naturalization requirements for spouses of citizens and persons seeking naturalization who are not spouses of Israeli citizens. This is particularly true in regard to the lengthy waiting period of nearly six years before the Minister is willing to begin to process an application for the naturalization of a spouse of an Israeli citizen. In this regard, the Minister’s policy is not consistent with the legislature’s directive under sec. 7 of the Nationality Law to show leniency to spouses of citizens in the naturalization process. The requirement also does not meet the reasonableness and proportionality tests.

(4) Therefore, the Minister must establish and publish a policy by which the spouse of a citizen will be granted citizenship at the conclusion of a reasonable period of time, as shall be established, and upon meeting the prerequisite criteria. This policy must also relate to exceptional cases. Refraining from addressing all naturalization applications on their merits is prohibited.

This 18th day of Iyar 5759 (May 4, 1999).

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