Dan Izenberg
The Jerusalem Post
August 25, 2010 - 12:00am

Two courts in separate cases rejected the state's refusal to allow Palestinians to continue living in Israel with their spouses and participate in the gradual procedure for obtaining permanent residential status.

In the first case, on Tuesday, Deputy Supreme Court President Eliezer Rivlin rejected an appeal by the state to hold another hearing before an expanded court, after a panel of three Supreme Court justices had decided to allow Balal Daka to continue living in the country.

Daka married her husband, Manar, in 1996. Two years later, she applied for residential status according to family reunification and entered the process whereby she was given temporary residential status and her case was to be re-examined each year for five years. If she completed the procedure, she was due to receive permanent residential status.

During her first year in the graduated procedure, the Knesset approved an amendment to the Citizenship Law, preventing new applicants for family reunification to apply for the procedure and freezing the progress of those already in it.

The minister of interior ordered Daka to leave Israel on the grounds that she had relatives involved in terrorism – a criterion that was introduced in the new amendment.

Daka appealed the decision and her case reached the Supreme Court for the first time. In a unanimous decision, the court upheld her request to stay with her husband.

Justice Ayala Procaccia wrote that in balancing the Palestinian woman's right to family life as opposed to the public’s right to security, the security consideration should overrule the right to family life only in cases where there was “a probability close to certainty” that the person posed a danger.

Procaccia also wrote that the rights of a person who had already begun the graduated process involved in family reunification were stronger than those of someone who had applied but whose application had not yet been processed.

Daka had already been living in Israel for 14 years.

The state’s request for a second hearing was based on the claim that Procaccia and the other justices had introduced new principles. One of the first principle was that a person posed a security threat only if there was probability close to certainty that he did.

But Rivlin ruled that Procaccia had also stressed that each case had to be judged on its merits.

In the case of Daka, the state had brought no proof that she or her family threatened Israeli security and therefore there was no question of a “probability close to certainty” that she posed a threat.

In another case, Haifa District Court Judge Ron Shapira accepted a petition by Jihad Nasser and rescinded the state’s refusal to allow him to remain in Israel according to the family reunification procedure. Nasser is married to an Israeli woman from the Arab village of Jatt and is the father of four children. He is a merchant who has a home in the the West Bank village of Atil and travels back and forth between his home and Israel with an entry permit granted him by the army.

Nasser had already been accepted into the family reunification procedure, but the Ministry of Interior canceled it and refused to grant him an entry permit, even though the army continued to do so.

The petitioners, represented by attorney Zvi Rish, said that the Interior Ministry had not given Nasser a fair hearing before discontinuing the family reunification process and had failed to take relevant facts into consideration. Shapira said the ministry had not questioned or investigated the claims of the Shin Bet (Israel Security Agency) that the Palestinian husband posed a security threat.


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