An Israeli citizen or resident, who is married to a foreign national spouse, is entitled to submit a residency request for their spouse according to the regulations governing the naturalization procedure for spouses of Israeli citizens. Upon submission of the request, assuming that there is no suspicion that the marriage is fictitious, and that there are no criminal or security obstacles – the foreign national spouse is granted an Israeli residency and work permit for a period of six months. Within this period of six months a decision should be taken as to whether or not to grant the foreign national spouse a temporary resident visa and thus enable him/her to begin the graduated naturalization procedure. The temporary resident visa is granted for a period of four years. The permit is renewed annually and on condition that the marriage is still valid, and there are no security or criminal obstacles to prevent its renewal. At the end of the probation period, the foreign national spouse is granted Israeli citizenship on condition that he/she has resided in the country for three of the four years of probation, and that the individual has lived in the country for two of them continuously before the citizenship status is granted. The Director of the Population Registrar is authorized, if he/she feels it is appropriate, to reduce these rigid waiting periods if he/she is presented with extenuating circumstances. (HCJ 7139/02 Fariel Abbas -Batsa v The Minister of the Interior).
Similarly, an official policy was instituted to formalize the status of partners of Israeli citizens who are not married to each other – including same-sex partners, who are prohibited from marrying in Israel. This policy has seen a number of changes and revolutions over the last few years. According to the policy that has been in force since November 2004 (Population Registrar regulation 5.2.0009), after the couple have satisfied Ministry of the Interior officials that there relationship is sincere and that they are living together and running a joint home, the foreign national spouse is granted a one-year work permit. After a year, and subject to an examination of the sincerity of the relationship and in the absence of any security or criminal impediments, the status is upgraded and the foreign national spouse receives the status of temporary resident. This status is renewed once a year and is subject to a renewed examination of the sincerity of the relationship and assessment of whether or not any criminal or security exists. At the end of an inclusive period of seven years (during which the couple comply with the aforementioned conditions) from the beginning of the naturalization process, the foreign national spouse can be granted permanent Israeli residency status.
Following the aforementioned, irrespective of the nature of the couple’s relationship, the foreign national spouse who has been granted a permanent residency visa is entitled to apply for Israeli citizenship. According to section 5 of the Citizenship Law, 1952, an individual who has been granted permanent residency visa can request Israeli citizenship, however, the resolution of his/her individual case, is dependent upon the personal judgment of the Minister of the Interior.
Despite the similarity between the procedures for married spouses and non-married spouses the normative basis for both is different. The source for the procedure governing married couples can be found in section 7 of the Citizenship Law, 1952, which stipulates that a spouse of an Israeli citizen is entitled to Israeli citizenship. In the case of Israel Stamka v The Minister of the Interior, the court ruled that the spouse does not need to acquire permanent residency status first (H.C.J. 3648/97). The control of the naturalization procedure, however, was transferred to the Minister of the Interior, and is dependent upon his/her personal judgment, although this judgment is subject to the fulfillment of the following conditions, the sincerity of the relationship, the practical manifestations of family life, the absence of any other marital affiliations, and the lack of any security or criminal impediments.
The basis for the procedure governing couples, who are not married, including same-sex couples, is provided by section 2 of the Law of Entry into Israel, 1952, which stipulates that the Minister of the Interior is authorized to issue permanent Israeli residency visas. The law does not stipulate criteria for the issuance of the visas, and therefore the parameters of the minister`s personal judgment are extremely broad. The courts tend to take less of a hard line with the Ministry of the Interior with regard to the latter`s implementation of its professional judgment as it pertains to the Law of Entry into Israel.
The procedure, which has been in place since November 2004, and relates to couples who are not married, includes a condition, which is not applicable for the spouses of married couples that requires the exiting of the foreign national spouse from the country before the completion of the processing of his/her residency application, if he/she is residing in Israel illegally. A similar demand was applied to spouses of married couples in the past, even though in 1999 a ruling issued by the Supreme Court outlawed the requirement on the basis that it is harmful to the couple (HCJ 3648/97 Israel Stamka v The Minister of the Interior). The Association for Civil Rights in Israel (ACRI) submitted a petition against this similar demand that was aimed at partners in couples who are not married, including the members of same-sex couples, to the Tel-Aviv District Court (the authority to deliberate on decisions based on the Law of Entry into Israel was transferred to the District Court system from the Supreme Court in 2002. However, one may appeal to the Supreme Court against the rulings issued by the District Courts). ACRI`s petition, which was submitted on behalf of a male same-sex couple, one member of which is Israeli and the other a Columbian citizen, was accepted in December and the court ruled that it is illegal to demand that the non-Israeli partner leave the country even in the case of couple who are not married (administrative case (Tel-Aviv) 2790/04 Fred Diter Rosenberg v The Minister of the Interior). The Ministry of the Interior did not appeal the ruling in the Supreme Court, and because the ruling was issued by the District Court system, refused to see it as a binding precedent. ACRI submitted a petition to the Supreme Court to demand that in the event that the Ministry of the Interior does not appeal the District Court`s ruling through the Supreme Court, which is currently authorized to deliberate on decisions relating to the Law of Entry into Israel, the ruling should be considered binding and that the ministry change its policy accordingly. The Supreme Court refused to deliberate on the petition that was submitted on behalf of couple consisting of an Israeli citizen and his male partner who is a Turkish national, and ruled in May 2005, that the issue should only be brought before the court if one member of the couple, after their petition is rejected by the District Court, appeals to the Supreme Court, or in the event that the Ministry of the Interior appeals the District Court’s decision, assuming that the other petition is accepted (HCJ 2327/05 Yelena Lisenko v The Minister of the Interior ).
Thus, after a few months, the Ministry of the Interior`s policy was the subject of a Supreme Court hearing following another ruling that was issued by the Tel-Aviv District Court, which also ruled that it is illegal to demand that the non-Israeli partner leave the country. The ruling was issued in reference to an Israeli citizen and his Philippine partner. ACRI represented the couple and the appeal is still pending in the Supreme Court, which is due to issue a ruling within the next few months (Appeal for Administrative Petition 4614/05 The State of Israel – The Ministry of the Interior v Avner Oren).
An additional issue that will be considered by the Tel-Aviv District Court is the laborious task of proving the sincerity of a couple’s relationship who are not married, including same-sex couples. An issue exemplified by the Rosenberg case. After their first petition was accepted and the court had ordered the Ministry of the Interior to process their application without the Columbian national leaving the country, the couple returned to the Ministry of the Interior for the processing of their application. The Ministry of the Interior held a hearing for the couple and rejected their request with no explanation. The couple submitted another petition to the Tel-Aviv District Court to demand that the ministry also apply the graduated naturalization procedure to them as a couple who are not married to each other. In August 2005, the court rejected the petition and ruled that the scope of the ministry’s judgment is very wide, and that the couple had not proved the sincerity of their relationship (Administrative Petition (Tel-Aviv) 1255/05 Louis Gonzalez Garcia v The Minister of the Interior). The couple then submitted a petition the Supreme Court with ACRI’s assistance, and claimed that the Ministry of the Interior has never defined criteria by which an unmarried couple can be considered to be a couple with a genuine relationship, and that in practice, the issue is left to the arbitrary judgment of the specific clerk dealing with the request. The appeal also states that the Ministry of the Interior must moderate its weighty requirements and strike a balance between the needs of the individuals requesting official residency status, and the ministry’s desire to prove the sincerity of the relationship. The appeal further states that the Ministry of the Interior must stipulate through its procedural policy what constitutes the burden of proof for a couple trying to prove the genuine nature of their relationship, in other words, what evidence must the couple present to the Ministry of the Interior (for example: declarative statements from individuals who know the couple, joint pictures {photos}, interviews etc.). After the couple have honored their obligations to establish the facts (burden of proof), the petitioners claim, the onus is then placed on the Ministry to refute the sincerity of the relationship through a reasoned decision. The hearing of the appeal is scheduled for June 2006. The ministry is yet to submit its response (Appeal for Administrative Petition 9273/05 Louis Gonzalez Garcia v The Minister of the Interior).
last updated : 15/01/06
