Stamka v. Minister of the Interior
As part of our office’s project of summarizing and explicating key Israeli Supreme Court decisions, this article summarizes Stamka v. the Minister of Interior, an HCJ case which determined that
Facts
Petitioners, who are intermarried, challenged the Ministry of the Interior’s 1995 interpretation of the Law of Return. They also challenged the Ministry of the Interior’s policy requiring a non-Jewish spouse to leave the country until the Ministry of the Interior had completed its examination of the marriage’s authenticity.
Issue One
Is a non-Jewish partner entitled to the rights granted by the Law of Return and the Nationality Law to a Jew who immigrates to Israel? Is that partner entitled to Israeli citizenship as if she were a Jew who immigrated to Israel?
Rules
- When one of the two heads of the household is Jewish, both heads of household, and their children and grandchildren, whether they immigrate together or separately, are entitled to come to Israel by virtue of the Law of Return, and obtain automatic citizenship.
- The right of return is granted only to the family members of Jews prior to their immigration to Israel.
- A non-citizen who marries an Israeli citizen does not acquire a right to naturalization solely because of the marriage.
Analysis
Under section 4A of the Law of Return, “the rights of a Jew…and the rights of an oleh under the Nationality Law…are also vested in…the spouse of a Jew.” While sec. 4A expands to include the spouse of a Jew, a non-Jew who becomes a spouse of a Jew who is already an Israeli citizen at the time of marriage is not entitled to the rights granted by the Law of Return and the Nationality Law.
Conclusion
When one spouse is Jewish, that couple, as well as their children and grandchildren, may immigrate to Israel under the Law of Return.
Issue Two
In most of the petitions in this case, a non-Jewish, foreign partner has been asked to leave the country until the Ministry of the Interior can investigate the marriage to ascertain whether it is bona fide or fictitious. Is that policy justified, and should the Ministry of the Interior be permitted to continue to act in accordance with that policy?
Rules
- For the Minister’s policy to prevail, it must satisfy the proportionality requirement, consisting of three components: (1) the rational connection component; (2) the least harmful means component; and (3) the harm/benefit component.
Analysis
The following three elements of the proportionality requirement must be met in order for the Minister’s policy to be enforceable.
The Rational Connection Component
This component requires a rational connection between the means chosen by the authority and the objective it seeks to achieve. The connection between the means and the objective is insufficient for several reasons:
- A non-citizen who seeks to extend his presence in Israel by means of fictitious marriage will not likely be deterred by a waiting period of several months abroad.
- The Ministry of the Interior did not present any data showing that the policy reduces fictitious marriages.
- Removing one or both spouses from the country may make it more difficult to conduct the examinations required to determine the authenticity of the couple’s relationship.
The Least Harmful Means Component
This component requires that the least harmful means be employed. Here, the policy is overly harmful because of the emotional difficulty that occurs during separation. Separation can also increase a couple’s financial burdens.
The Harm/Benefit Component
This component requires that the benefits to the policy outweigh any harm caused by the policy. The benefit derived from the policy is not greater than the harm it inflicts because the benefit the policy achieves is speculative and not backed up by evidence, whereas the harm to bona fide marriages is proven.
Exceptions to the proportionality requirement include clear evidence of a fictitious marriage or obvious forgery of a marriage certificate.
Conclusion
The Ministry of the Interior’s policy regarding non-citizens married to Israelis while residing in Israel without a permit does not meet the proportionality test and is unlawful and void. Instead, a non-citizen in this circumstance will be required to meet a higher standard of proof in order to prove the legitimacy of the marriage.
Issue Three
Assuming a non-Jew is not entitled to the rights granted a Jew under the Law of Return, what is her status under the Nationality Law? Does she enjoy preferred rights under this law, or is she the same as any immigrant?
Rules
- The right of a spouse to citizenship takes precedence over the right of others; however, a non-citizen partner is not entitled to an immediate right of permanent residency and citizenship.
- The Minister of the Interior holds the authority to grant or deny an application for naturalization. Under Section 7 of the Nationality Law, the Minister of the Interior is directed to show leniency to spouses of citizens in the naturalization process.
Analysis
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. The Minister holds broad discretion in this regard, but he may not ignore the provision of sec. 7 permitting leniency for the spouses of Israeli citizens requesting Israeli citizenship. The burden is on the Minister to explain why he does not exempt such a spouse from the criteria under sec. 5(a).
Conclusion
The Minister’s policy is inconsistent with the legislature’s directive under sec. 7 of the Nationality Law to show leniency to spouses of citizens in the naturalization process. 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 and upon meeting the prerequisite criteria.
Issue Four
Is the Ministry of the Interior justified in refusing the petitioners’ request to have their marital status registered in the Population Registry?
Conclusion
The Court remanded this matter to the Minister of the Interior to carry out his examination, stating that the doors of the court would remain open.
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:מאמרים מומלצים