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Aliyah based on the Law of Return

Joshua Pex
Joshua Pex

Aliyah by the Law of Return forms the basis of Israel’s immigration policy. It can even be said that the State of Israel was established with the aim of gathering the Jewish diaspora through Aliyah, and that the other types of visas and immigration options are simply inevitable. But what does the Law of Return actually mean and who is entitled to make Aliyah based on it? Although the Law of Return is old, short, and clearly worded, many Israelis and many people abroad who are entitled to Aliyah are not sure what the law and its interpretation mean in practical terms.

In this article, attorney Joshua Pex, a founding partner in our firm and the head of its Israel Immigration Department, will discuss the Law of Return, the history of its legislation and the status that it confers on Jews in Israel – while citing key court rulings relating to the law.

Aliyah by the Law of Return

What status are Olim entitled to in Israel based on the Law of Return?

The Law of Return, 1950, is one of the most important laws in the Israeli statute book. The law was approved by the Knesset general assembly on the 20th of Tammuz, the symbolic anniversary of the death of the one who envisioned the state, Benjamin Ze’ev Herzl. The essence of the law is stated in section 1, according to which “every Jew has the right to make Aliyah to Israel.The Citizenship Law, 1952, establishes six ways to obtain citizenship in Israel, the first of which is citizenship by virtue of Return, according to Section 2 of the Citizenship Law which states: “Anyone who makes Aliyah based on the Law of Return, 1950, shall become an Israeli citizen by virtue of Return, unless they were granted Israeli citizenship by birthright according to section 4 or by virtue of adoption according to section 4b.” In addition to the right to citizenship, new Olim are entitled to many benefits.

What was ruled in the Shalit Supreme Court case that dealt with the question – who is a Jew?

With the enactment of the Law of Return in 1950, the Prime Minister at the time, David Ben-Gurion, insisted that the law not include a definition of the term “Jew”; “The whole matter of religion and the state is difficult”, explained Ben-Gurion, “and therefore my conclusion now is not to give a definition on this matter in the law”. This led to a situation in which, in the first years after the enactment of the law, the children of non-Jewish immigrants were registered as Jews, if their parents requested to register them as such, and the Attorney General prohibited Interior Ministry officials from demanding additional proof unless it was obvious that the statement was made in bad faith. After the Ministry of the Interior came under the control of the National Religious Party, the Minister of the Interior from the party ordered to register as Jewish only “those who are the children of a Jewish mother or who have been properly converted, and who do not belong to another religion”, in accordance with the Halachic criterion.

In 1968, the famous Shalit case came before the Supreme Court. Major Binyamin Shalit, a Jew born in Haifa, married a non-Jewish woman, and asked to register their two children in the Population Registry as being of Jewish nationality. Given the Interior Minister’s instructions mentioned above, the Ministry of the Interior officials refused to register Binyamin Shalit’s children as Jews, so he petitioned the Supreme Court to order the registration.

From a factual point of view, the case was extremely simple, but the public and political questions it raised were complicated and loaded. In fact, the case dealt with the question: What is the collective identity of the Jews in the State of Israel?

The Supreme Court, in one of its most well-known rulings, ruled by a majority of five against four judges that the children must be registered as Jews, because a religious interpretation should not be given to a law that is essentially secular. Therefore, according to the court’s ruling, it was determined that anyone who declares in good faith that they are Jewish, and not a member of another religion, shall be registered as a Jew.

What was established in the amendments to the Law of Return in 1970?

The verdict was issued in January 1970, and in response to it the Knesset introduced two significant amendments to the Law of Return that same year:

On the one hand, the halachic definition was added, in section 4B of the law: “For the purposes of this law, a ‘Jew’ is someone who was born to a Jewish mother or who converted, and is not a member of another religion;

On the other hand, section 4a of the law stipulates that non-Jewish family members, up to the third generation, and their spouses, are also eligible to receive an Oleh visa and citizenship starting from the day they make Aliyah to Israel: “The rights of a Jew according to this law and the rights of an Oleh according to the Citizenship Law, 1952 , as well as the rights of an Oleh according to any other legislation, are also granted to the child and grandchild of a Jew, the spouse of a Jew and the spouse of a child or grandchild of a Jew; excluding a person who was Jewish and converted to another religion voluntarily.”

In other words, a child of a Jewish mother is considered Jewish. A child of a Jewish father and a non-Jewish mother is not considered Jewish, but is considered eligible for Aliyah. A child of a child of a Jew – a grandchild of a Jew –  is also considered eligible for Aliyah. Spouses married to a person entitled to Aliyah can make Aliyah together with them. Not written in the law, but introduced over the years – a minor child of a grandchild of a Jew (a great-grandchild of a Jew) and minor children of spouses of Jews from a previous relationship who are in their custody, are also entitled to make Aliyah with the family on the condition that they have not reached the age of majority at the time of Aliyah. Those who have undergone conversion recognized by the Ministry of the Interior are considered Jewish in terms of the Law of Return, but Aliyah eligibility for the children of converts is a little more complicated and depends on whether they were born before or after the conversion.

It is worth noting that the current coalition (this article was written in February 2023) is considering canceling the “grandchild clause” in the Law of Return, which will prevent the grandchildren of Jews – many of whom are not considered Jews according to Halacha – to make Aliyah by virtue of this clause.

Restrictions on the right to make Aliyah – who is not entitled to Aliyah by virtue of the Law of Return?

Section 2(b) of the Law of Return gives the Minister of the Interior the authority to refuse the applications of those entitled to the Law of Return due to the reasons stipulated in the law. The section states: “An Oleh visa will be granted to any Jew who has expressed their desire to settle in Israel, unless the Minister of the Interior is aware that the applicant – (1) is working against the Jewish people; or (2) may endanger public health or the security of the state; or (3) has a criminal background that may endanger public safety.”

What was determined in the Meir Lansky Supreme Court case regarding Section 2(b)(3) of the Law of Return?

Meir Lansky, who was one of the heads of the mafia in New York and in the United States in general, applied in 1971 to make Aliyah based on the Law of Return. The Minister of the Interior refused his request because “it is apparent that the applicant has a criminal record that may endanger public safety”, in accordance with the provision of Section 2(b)(3) of the Law of Return.

Lansky petitioned the Supreme Court on the grounds that his criminal record consisted of minor offenses only, and that even those occurred many years before his application to make Aliyah. However, the Supreme Court ruled that the restriction mentioned in Section 2(b)(3) of the Law of Return carries two cumulative conditions: (1) that the Oleh visa applicant has a criminal record (2) that the visa applicant may endanger public safety. The court emphasized that, since the Minister of the Interior discovered that the visa applicant has a criminal record, there is no obstacle for him to consider, for the purpose of fulfilling the second condition, other facts and evidence that show, in addition to his criminal record, that he may endanger public safety – even if these facts and evidence are not directly related to the applicant’s criminal record.

The court ruled that on this matter, the Minister of the Interior may rely on material that raises serious suspicion, that the applicant is guilty of other criminal acts, or of depraved behavior, or that he had, for many years, friendly connections and business relations with criminals of the underworld in his country of residence, and this is a matter of assessment which is at the discretion of the Minister of the Interior. It is worth noting that even though the ruling was issued on the subject of the right to make Aliyah, the Ministry of the Interior also adopted its instructions regarding the immigration of spouses of Israelis who may endanger public safety.

From the general to the specific: regarding Meir Lansky, the Supreme Court ruled that due to the petitioner’s criminal past, and mainly due to the combination of other facts and evidence – indicating that he belongs to the world of organized crime in the United States – there is reasonable concern that the petitioner may engage in similar crime in Israel and from Israel and thus pose a danger to public safety.

The verdict was received with mixed reactions among the public, since apart from being a figure in the underworld, Lansky assisted greatly in purchasing weapons and smuggling them and in raising large sums of money for the Independence War, as well as in the early days of the State of Israel – and some of the public saw the Supreme Court’s decision as expressing ingratitude towards him.

Legal advice regarding the Law of Return and Israeli immigration – contact us

Thus, in this article, attorney Joshua Pex elaborated on one of the most central and controversial laws in the Israeli statute book: the Law of Return. If you have questions about this subject or need assistance in any matter related to immigration to Israel, an Israeli immigration attorney from our office will gladly be at your disposal.

Our office, which has branches in Jerusalem and Tel Aviv, has extensive experience in representation regarding the Law of Return in particular, and Israeli immigration in general – both before the Ministry of the Interior and before the law courts. For any questions regarding immigration and obtaining status in Israel, you can contact an attorney from our office at the phone numbers and email address below.

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