The “Second Beresford Case” Judgment (HCJ 265/87)

As part of our efforts to summarize key verdicts that established judicial interpretation of Israeli law, we review the “Second Beresford Case”, which further reviewed the Aliyah rights of Messianic Jews, as well as what qualifies an applicant as a Messianic Jew \ someone who converted to a different religion.

Overview

The petitioners, three married couples; Gary and Shirley Beresford, Sidney and Linda Speakman, and Ari and Vanyanna (Richard and Ricky) Kendall, petitioned against the refusal of the Respondent, the Minister of the Interior, to grant them immigrant visas as Jews, pursuant to the Law of Return, 1950, and, alternatively, to grant them permits for permanent residence as non-Jews, pursuant to the Entry into Israel Law, 1952. Two out of three of the couples, the Kendalls and the Speakmans, had at least one minor child at the time of this decision. The majority opinion was written by Judge Netanyahu, which consists of two parts. Judge Cheshin and Judge Maltz agreed with Judge Netanyahu.

Part I – Immigrant Visas Pursuant to the Law of Return

The Beresford Petition

Gary and Shirley Beresford, a married couple who are both Jewish by birth, are renewing their previous petition on the grounds of changed circumstances, which consist of their ceasing to participate in missionary activity, preaching, church attendance, and Messianic congregation attendance. The Beresfords argue that in their prior petition, Judge Barak used their activities as an essential part of the test according to which he determined whether they were members of another religion. Therefore, the Beresfords assert that because they have ceased participating in their prior activities, they are no longer members of another religion. The Beresfords maintain that the two elements of the test employed by Judge Barak are their Jewish-Messianic faith and their activity according to that faith. 

Issue One

Whether a person’s activities can determine their status as a Jew or non-Jew for purposes of the Law of Return?

Answer to Issue One

No. A person’s activities, standing alone, cannot determine their status as a Jew or non-Jew for purposes of the Law of Return.

Discussion

Regarding this issue, the court stated that Judge Barak did not see the petitioners’ activities as a fundamental element of the test he used to determine their religion; rather, he saw them as an indication of their faith. The court also noted that the status of a person as a Jew for purposes of the Law of Return should not be determined according to a changeable test of activity; if it were, a person could determine each day whether they were a Jew or non-Jew by participating or not participating in certain activities.

Issue Two

Whether a person’s lack of participation in missionary activity, preaching, church attendance, and Messianic congregation attendance will prevent them from being “members of another religion” for purposes of the Law of Return?

Answer to Issue Two

No. A person’s lack of participation in missionary activity, preaching, church attendance, and Messianic congregation attendance will not prevent them from being “members of another religion” for purposes of the Law of Return.

Discussion

Regarding this issue, the court states that “allegiance to Yeshua as prophet, redeemer, savior or Messiah…means a breaking away from the historical identity of the people of Israel.” Therefore, the court states that a person may reconvert to Judaism only by showing that he is sincere, that he has discontinued his previous activities, and that he has turned from his prior faith.

Holding

The court dismissed the Beresford petition; holding that (1) the Beresfords’ actions were an indication of their faith under the Judge Barak’s test, rather than an element of the test that could change day-to-day; and (2) the Beresfords did not establish that the change which occurred in their actions was a sincere change that resulted from an inner conviction.

The Speakman Petition

Facts

Linda Speakman was born as a Jew to Jewish parents, and later became a Messianic Jew. The ancestry of Sidney Speakman, Linda’s husband, was not completely clear; however, the court stated that Sidney may have been the grandson of a Jewish grandfather and grandmother on his father’s side, although Sidney did not submit documentation to support this claim. Sidney’s father became Baptist before his son’s birth. On his application for an immigrant visa under the Law of Return, Sidney declared that he was a Jew without indicating that he was a Messianic Jew. The court also states that Sidney “converted to Christianity” when he married Linda.

Dawn Speakman is Linda’s daughter from a previous marriage. She was born at a time when her mother did not yet view herself as a Messianic Jew, and was raised as a Messianic Jew from the time she was four years old, when her mother became a Messianic Jew.

Issue Three

Is a member of the Baptist faith, who is born to Jewish parents, considered a Jew for purposes of the Law of Return?

Answer to Issue Three

No. A member of the Baptist faith who is born to Jewish parents is not considered a Jew for purposes of the Law of Return.

Discussion

Regarding this issue, the court infers that Sidney’s father, by becoming Baptist before his son’s birth, became a member of another religion, and therefore a non-Jew, before Sidney’s birth.

Issue Four

May a Messianic Jew who was born to a Baptist father and Jewish grandparents immigrate to Israel under Section 4b of the Law of Return?

Answer to Issue Four

No. A Messianic Jew who was born to a Baptist father and Jewish grandparents may not immigrate to Israel under Section 4b of the Law of Return.

 Discussion

A person who is born to a Baptist father and Jewish grandparents, and who later becomes a Messianic Jew, is a member of another religion under Section 4b of the Law of Return. Here, Sidney Speakman does not deny that he is a Messianic Jew. Thus, he may not immigrate to Israel as a Jew under Section 4b.

Issue Five

May a Messianic Jew, who is also a descendant of a Jewish father or grandparent, immigrate to Israel under Section 4a(a) of the Law of Return, as a non-Jewish descendant of the father or grandparent?

Answer to Issue Five

No. A Messianic Jew who is also a descendant of a Jewish father or grandparent may not immigrate to Israel under Section 4a(a) of the Law of Return as a non-Jewish descendant of the father or grandparent.

Discussion

Section 4a(a) of the Law of Return provides that the “rights of a Jew under [the Law of Return]…are also vested in a child and a grandchild of a Jew; except for a person who has been a Jew and has voluntarily changed his religion.” Regarding this issue, the court asserts that Sidney Speakman is not entitled to the rights of a non-Jew under Section 4a(a) because he voluntarily changed his religion by becoming a Messianic Jew.  However, the court states that Sidney may renew his application in the future and present his full claim.

Issue Six

When a child is born to a Jewish mother, and that child’s mother becomes a Messianic Jew while the child is a minor, is the child considered to have changed their religion voluntarily under Section 4a(a) of the Law of Return?

Answer to Issue Six

No. A child born to a Jewish mother who becomes a Messianic Jew while the child is a minor has not changed their religion voluntarily under Section 4a(a) of the Law of Return.

Discussion

Regarding this issue, the court states that the rights of a Jew are granted to Dawn, the Speakman’s minor daughter, under Section 4a(a), even though she is “not Jewish but a member of ‘another religion’ within the meaning of Section 4b of the Law of Return.” The court goes on to state that Dawn did not voluntarily change her religion under section 4a(a) because she was a minor when her parents became Messianic Jews.

Issue Seven

May a minor child of Messianic Jews receive an immigrant’s visa pursuant to the Law of Return?

Answer to Issue Seven

Yes, under certain conditions. A minor child may receive an immigrant’s visa pursuant to the Law of Return if the child’s parents or a guardian of the child expresses a desire for the child to settle in Israel. The parents or guardian must express this desire even if they themselves are unable to settle in Israel.

Discussion

Regarding this issue, the court stated that Dawn’s rights under Section 4a(a) as a non-Jew are the same as the rights of a Jew according to the Law of Return. A Jew who wishes to receive an immigrant’s visa must express his desire to settle in Israel; therefore, Dawn’s right to receive an immigrant visa is dependent on her expressing such a desire. However, because she is a minor under the guardianship of her parents, expression of the desire to settle must come from her parents or a guardian.

Issue Eight

Does a parent’s constitutional right to guardianship of their child[ren] allow them to settle in Israel when their child has the right to settle in Israel?

Answer to Issue Eight

No. A parent of a child who is eligible to immigrate under the Law of Return is not included in the group of persons eligible for immigration rights under Section 4a(a) of the Law of Return.

Discussion

Regarding this issue, the court asserts that the right of parents to guardianship of their children is an important constitutional right that should not be infringed upon. However, a parent with a child who is eligible to immigrate under the Law of Return is not included in the group of persons eligible for immigration rights under Section 4a(a). The purpose of Section 4a(a) is to “encourage the immigration of those who are not Jewish (and are not Jews who willingly converted to another religion)” on the chance that they will “settle in Israel and convert to Judaism.” The court’s position was that allowing immigration, or the permanent residence of, parents who are members of another religion, or of persons who were Jews and willingly changed their religion, and who desire to settle in Israel as members of the other religion, does not support the goal of the Law of Return.

Holding

The court dismisses Sidney and Linda Speakmans’ petition, holding that (1) the Speakmans cannot immigrate to Israel as Jews because they are members of another religion; and (2) the Speakmans cannot immigrate to Israel as non-Jews because Sidney Speakman voluntarily changed his religion.

The court also dismisses Dawn Speakman’s petition, holding that (3) only upon the request of Dawn’s parents or guardians that she remain in Israel without them would it be possible to grant her an immigrant’s visa.

The Kendall Petition

Facts

Petitioner Richard Kendall was born of Jewish parents and defines himself as a Messianic Jew. Petitioner Ricky Kendall, Richard’s wife, was born to Protestant parents and was baptized into Christianity but is a Messianic Jew in her faith. One of the Kendall’s children, Nicolle, reached maturity while her petition was still pending. Nicolle originally requested an immigrant visa under the Law of Return. The Minister of the Interior granted her a visa for a potential immigrant for half a year and stated that upon the rendering of the judgment in her parents’ petition, Nicolle would be able to consider whether she desired to settle in Israel and to submit a new application.

 Issue Nine

Is a person born to Jewish parents who also defines themselves as a Messianic Jew a “member of another religion” for purposes of the Law of Return?

 Answer to Issue Nine

Yes. A person born to Jewish parents and who also defines themselves as a Messianic Jew is a member of another religion for purposes of the Law of Return.

 Discussion

Regarding this issue, the court stated that even though Richard Kendall was born to Jewish parents, he became a member of another religion for purposes of the Law of Return by becoming a Messianic Jew.

 Issue Ten

Is a person born to a father who is Jewish by birth able to receive an immigrant visa under the Law of Return without expressing a personal desire to settle in Israel?

Answer to Issue Ten

No. If the person is a minor, the parents or guardians of the minor must express their own desire that the minor settle in Israel, even if they are not able to settle in Israel themselves. If the person is an adult, they must submit an independent application expressing a personal desire to settle in Israel.

Discussion

Regarding Richard and Ricky Kendall, the court stated that even though Richard Kendall was born to Jewish parents, he and his wife were both Messianic Jews and were therefore members of another religion under Section 4b of the Law of Return.

Regarding the Kendall’s daughter, Nicolle, the court stated that there were no current grounds for granting her an immigrant certificate because she had not expressed a personal desire to settle in Israel. She could, however, submit an independent application expressing that desire.

Holding

The court dismissed Richard and Ricky Kendalls’ petition for the same reasons it dismissed the Speakmans’ petition.

 The court also dismissed Nicolle Kendall’s petition, but stated that if she were to submit an independent application expressing a personal desire to settle in Israel, the Minister of the Interior would then review and decide on that application.

Part II – Permanent Residence Permits Pursuant to the Entry into Israel Law

 Facts

The claims of all the petitioners are that the Minister of the Interior erred in that he ignored the deep Zionistic feelings of the petitioners and their powerful desire to be integrated in Israel. They further emphasize that there is no restriction in the Law of Entry, such as exists in the Law of Return, which applies to one who has changed his religion, and that many non-Jews have received a visa pursuant thereto. Therefore, the petitioners argue, it would be improper for the Minister of the Interior to consider their being Messianic Jews as part of his decision regarding whether they can immigrate to Israel under the Law of Entry.

The Beresfords and the Speakmans also raise additional reasons as to why they should be allowed to immigrate to Israel under the Law of Entry. These include (1) a security situation in the Beresfords’ home country; (2) the potential emotional distress of Shirley Beresford in being separated from two of her sons; and (3) Sidney Speakman’s professional expertise in an area of innovation.

The Beresfords assert that they are unable to return to Zimbabwe because of a security situation which prevails there. They also assert that two of Shirley Beresford’s sons are citizens of Israel who have served in the Israel Defense Forces, and the distance that she would be from them if they were separated would cause her deep emotional distress. The Speakmans assert that they have established a building company and that Sidney Speakman has a special, exclusive expertise in the area of building with concrete blocks, which is an innovation in Israel.

Issue Eleven

Is the Minister of the Interior required to provide equal treatment to potential immigrants under the Law of Entry?

Answer to Issue Eleven

No. The Minister of the Interior is not required to provide equal treatment to potential immigrants under the Law of Entry.

 Discussion

Regarding this issue, the court states that the petitioners’ claim of discrimination is based primarily on a comparison with the treatment received by other Messianic Jews, the Marlowes. In that case, the Marlowes declared in their applications for immigrant visas that they were Jews according to their religion. The Minister of the Interior cancelled their visas when he discovered they were Messianic Jews. However, the Minister of the Interior granted the Marlowes permanent residence permits pursuant to the Entry into Israel Law, stating that he preferred to grant permits under the Entry into Israel Law rather than litigating the Marlowes’ petition to determine their eligibility under the Law of Return.

Here, the petitioners’ representative argues that the Minister of the Interior’s manner of dealing with the Marlowe couple shows that even though he knew they were Messianic Jews, he saw them as Jews. Therefore, the petitioners are also entitled to equal treatment that he should also see them as Jews, with the result that they be entitled to immigrant visas pursuant to the Law of Return.

The court disagrees with this argument, stating that the Minister of the Interior did not necessarily accept that a Messianic Jew is a Jew, but that at the time no definitive adjudication of the status of Messianic Jews for purposes of the Law of Return had been established.

 The court also asserted that the Minister of the Interior has broad discretion and may allow an individual or a group of people permanent residence while he refuses it to others. The court goes on to state that whoever is not an Israeli citizen, or an immigrant pursuant to the Law of Return, has no right of entrance or right to remain in Israel, except by permission, and even where a visa or residence permit was given to him, the Minister of the Interior is entitled to cancel them at any time.

In addition, the policy which the Minister of the Interior has applied for many years is not to grant permanent residence visas to foreigners, except in exceptional cases wherein exist special considerations. This policy is the same for every foreigner, whether he be a Messianic Jew or a member of any other religion, who is not entitled to an immigrant visa pursuant to the Law of Return. The court concludes that no special reasons exist for any one of the petitioners which justify treating them as exceptions to the general policy of the Minister of the Interior.

Issue Twelve

Whether a person facing a security situation in their home country, that has not changed for the worse as the result of their stay in Israel, has a right to permanent residence in Israel under the Law of Entry?

Answer to Issue Twelve

No. A person facing a security situation in their home country that has not worsened as a result of their stay in Israel does not have a right to permanent residence in Israel under the Law of Entry.

Discussion

Regarding this issue, the court states that if the Beresfords would have remained in their home country and not stayed in Israel, they would have been in the same situation, and that nothing has changed for the worse as a result of their stay in Israel.

Issue Thirteen

May a parent of an Israeli citizen who has served in the Israel Defense Forces receive permanent residence in Israel under the Law of Entry?

Answer to Issue Thirteen

Yes, but only under certain conditions. The policy of the Minister of the Interior is to permit permanent residence to a foreign parent whose children are in the country only when the parent is an adult and alone and has no children outside of Israel.

Discussion

Regarding this issue, the court stated that Shirley’s situation did not meet the requirements necessary for the Minister of the Interior to make an exception to his policy. The court also stated that Shirley’s relationship with her sons who were Israeli citizens was problematic and disrupted, and that she had not shown that the situation had improved.

Issue Fourteen

Whether a person’s expertise in an area of innovation can justify an exception from the Minister of the Interior’s general policy not to grant permanent residence visas to foreigners under the Law of Entry?

Answer to Issue Fourteen

Possibly, but not in this case.

Discussion

Regarding this issue, the court states that Sidney Speakman’s expertise is not of the class of skills that constitute a special contribution to the country that would justify an exception from the Minister of the Interior’s general policy not to grant permanent residence visas to foreigners under the Law of Entry.

Holding

The court finds no legal ground to interfere in the decision of the Minister of the Interior.

Judge Cheshin’s Opinion:

Judge Cheshin agreed with Judge Netanyahu, and adds that while the Minister of the Interior has broad discretion, he must also act honestly, in good faith, without discrimination and arbitrariness and within reason, while also complying with the intent of the Legislation.

Judge Maltz’s Opinion:

Judge Maltz agreed with Judge Netanyahu.

Judgment

The petitions of Gary and Shirley Beresford, Sidney and Linda Speakman, and Richard and Ricky Kendall were dismissed. The court stated that Sidney Speakman could renew his application by presenting his full claim before the Minister of the Interior.

The petition of Dawn Speakman was dismissed. The court stated she could renew her application if her parents or guardian(s) expressed a desire for her to settle in Israel.

The petition of Nicolle Kendall was dismissed. The court stated she could renew her application if she declared her personal desire to settle in Israel.