Often the foreign spouse of an Israeli citizen has minor children from a previous marriage. These children are usually an inseparable part of their parents, especially when it comes to a female spouse. Over 2,000 children are waiting to come to Israel and reunite with their mothers. According to the Interior Ministry’s Instructions, there is no such family union, of children from a previous marriage with their parents. If the natural parent lives in Israel and did not make contact with his child in a period exceeding two years, the Interior Ministry will conclude that they are unrelated and will not allow the child to visit with his parent.
The question is whether the status of minors in Israel is derived directly from the mother’s status in Israel, or as long as minors were not granted with a permit to enter Israel, their status is independent and first you should regulate their entry to Israel? That we will discuss in this article.
The normative framework:
The question of granting a status to a minor born in Israel that one of his parents has a status in Israel, is regulated in section 12 of the Entry into Israel regulations. This regulation – were ruled under the Entry into Israel Law, 1952 (the Entry into Israel Law) – stipulates that:
“The status of a child born in Israel:
A child born in Israel, and to whom section 4 of the Law of Return, 1950, will have in Israel the status of his parents; if his parents do not have the same status, the child will receive the status of his father or guardian, unless the other parent objects in writing; if the second parent object, the child shall receive the status of one of the parents, as determined by the Minister”.
The regulation indicates, among other things, that the status of a child born in Israel shall be determined, regularly, by the status of the parents, however, where the parents of the child does not have the same status, the status will be determined according to the status of his father or guardian. It should be noted that the status of a child whose parents have a different status, will be determined by the status of the parent with whom he lives, even if it is the child’s mother and not father.
This provision in Section 12 is subject to the arrangement established in the Temporary Order Law. In its original version before the amendment, section 3(1) of the Temporary Order law stated that the Interior Minister or the regional commander may provide a minor under the age of 12 who is a resident of the region, an Israeli residence permit or a temporary residence permit in order to prevent his separation from his parent residing in Israel legally:
Notwithstanding section 2 –
(1) The Interior Minister or the regional commander may grant a resident of the region a permit to reside in Israel or a permit to stay in Israel, for purposes of work or medical treatment, for a limited period, or other temporary purposes – for a cumulative period do not exceed six months, and a permit to reside Israel or a permit to stay in Israel to prevent the separation of a child under the age of 12 from his parent who is staying in Israel legally.
This section limited in fact, the application of Regulation 12 of the Entry into Israel regulations regarding children who are residents of the region, and allow only minors up to the age of 12 to receive a status or a permit to stay in Israel. This exception was changed in the revision to the Law so its application was expanded.
In the revised section 3a it has been stated that the Interior Minister may grant Israeli residence permit to a minor resident of the region under the age of 14 and approve the granting of a temporary residence permit to a
minor resident of the region who is over the age of 14:
“Permit regarding minors:
Notwithstanding the provisions of section 2, the Interior Minister, at his discretion may –
(1) grant a minor ,resident of the region who is under 14-year of age, with a permit to reside in Israel in order to prevent his separation from his custodian parent who lawfully resides in Israel;
(2) approve the application for granting a temporary residence permit by the regional commander to a minor, resident of the region who is over 14 years old, in order to prevent his separation from his custodian parent who lawfully resides in Israel, provided that no such permit shall be extended if the minor does not reside permanently in Israel”.
The revision means that minors whose guardian parent resides in Israel legally, will receive a residence permit or a temporary residence permit, distinguishing between minors aged under the age of 14 and minors over the age of 14. That is differently than the previous version which restricted the granting of the permit to minors under the age of 12 only.
In addition to the provisions of section 12 and the Temporary Order Law, the Interior Ministry applies, in this context, the child registration procedure as well. This procedure is intended to regulate the treatment of applications for status in Israel to minors with only one parent registered as a permanent resident in Israel. It lists the criteria for determining the child’s eligibility for status in Israel, the way to examine it and status type that will be granted to him.
Granting a status depends, among other things, in proving that the life center of the child and his parents, in the two years preceding the application, was in Israel. The procedure applies to any minor with a parent who is registered as a permanent resident in Israel. It relates, in part, to minors who are residents of the region. The procedure provides a gradual process of granting a status. According to this procedure, a minor registered or living in the region, but is not registered in the region’s Population Registry, and he is under 14 years of age at the time the application is submitted, will receive a temporary residency status A/5 type for two years, and then he would be granted with permanent status.
That is, if the examination revealed that his life center in the two years preceding the application, was Israel. If the minor turns 14 while still a temporary resident, he will remain in that status and will not be upgraded to a permanent resident status. The procedure further states that a minor registered in the region’s Population Registry or resides in the region without being registered there, and applied for legal status in Israel at the age of over 14 years – will receive a stay permit only (DCO permit). That is, subject to the position of the relevant factors, and as long as proven center of life in Israel.
To summarize the picture that arises from all the arrangements reviewed above. In general, the status of a minor who was born in Israel but is not eligible for legal status under the Law of Return will be determined, due to the provisions of Regulation 12 of the Entry into Israel regulations, depending on the status of his parents. The arrangement will be different for a child who is a resident of the region as defined in the Temporary order law therein which, as stated, was altered.
On a minor who meets the relevant definition of a resident of the region, applies the provisions of the Temporary Order Law. Up to the revision of the Law, such a minor aged under 12 years could have get a permit to reside in Israel or a permit to stay in Israel. In this revision the age limit was raised, so that a minor under 14 can get a residence permit and a minor over the age of 14 can obtain only a stay permit. Having reviewed the all the relevant arrangements, we will examine the parties’ arguments on their merits.
The ruling states that – “Regarding spouse (foreigner wishing to obtain Israeli citizenship by virtue of marriage) a special arrangement was obtained in the citizenship law that allows the interior minister to grant foreign spouse with an Israeli citizenship, even if he is not entitled to reside in Israel permanently. The situation is different for the other family members, who are not minor children of the foreigner spouse, seeking – within the framework of family unification with an Israeli citizen – to become citizens. These family members must, as a prerequisite for filing for naturalization, meet the condition that they are entitled to reside in Israel permanent residency.
About these family members an arrangement based on two separate stages will apply: the first is entirely controlled by the Entry Law, which aims to provide – at the end of the graduated arrangement – the right of permanent residence. The other, entirely controlled by the Citizenship Law, aims at obtaining Israeli citizenship. These two steps are separate from each other and each stands on its-own. Hence – requests for family reunification between family members (who are not minors) who are not spouses are based on a two-stage arrangement. The first stage is based on the Entry into Israel Law, while the second stage is controlled by the Citizenship law.
The interior minister’s policy granting status to foreign adult children who has a parent became a citizen of Israel, is not granting permanent residence permits to foreigners, except in exceptional cases, where there are special considerations. This longstanding policy survived, more than once, the test of the Supreme Court, that didn’t see a reason to interfere it.
This policy of the Interior Minister to foreigners is not unique to Israel, and “Usually, each country reserves the right to prevent foreigners from entering its territory or to remove them from its territory when no longer welcome, for one reason or another, even without any reason”.
Therefore, foreign adult children has no vested right to receive a permanent residence permit in the country. The fundamental policy of the Interior minister is, as mentioned, not to grant a permanent residence permit to foreigners, except in exceptional cases, where there are special considerations. The problem is that the criteria set by the Interior Ministry to be exceptions, for the most part remained within the oral tradition, and they are not clearly visible.
As for a minor, accompanied by a parent requesting status in Israel under the Law of Citizenship (minor companion), Section 8(a) of the Citizenship Law, entitled “citizenship of minors”, states:
“Naturalization of a person grants citizenship to his minor child which on the day of naturalization was a resident of Israel or a resident of the territory held by the Israel Defense Forces and the persons being naturalized was allowed to keep it”.
So when it comes to minors accompanying remained abroad who are not “residents of Israel”, so they can come within the scope of section 8 of the Citizenship Law, they should undergo first a preliminary stage of “entry into Israel”, and that this early stage is regulated under the Entry into Israel law and is the source of authority for the treatment in the entry into Israel application.
For this reason numerous petitions filed were rejected, in a similar context, against the Interior Ministry decision regarding entry into Israel of minors who remained abroad, who were not accompanied by their mother, who was entitled to citizenship under the Law of Return. In Judge M. Naor’s opinion that is the way to act with regard to entry Israel, even in circumstances where the parent is entitled to citizenship under the Citizenship law as part of the gradual process.
To summarize: regarding minor remained abroad, wishes to accompany a parent who is in Israel in the graduated procedure under the Citizenship law, in the preliminary stage the entry into Israel must be arranged first. The source of authority in this regard is the Entry into Israel Law. This determination regarding the procedure significance, is that after the entry of the accompanying minor into Israel, and as part of the next phase, it will be possible to attach the minor child who is in Israel, to the request of the parent to receive status in Israel by virtue of the citizenship law, in accordance with the terms set out in the relevant section in the procedure.
The situation today:
In the cases where the foreign parent, who wishes to obtain legal status in Israel after marrying an Israeli citizen, requesting that their minor child will be attached to him, to keep the family together and prevent disconnecting from the child, involve weighty humanitarian considerations. The Interior Ministry has set a procedure designed to organize these cases. This procedure requires, when it is about a minor over the age of 15, that the minor was a in his foreign parent’s custody in the two years preceding the application, and in exceptional cases allow the granting of a status to a minor, even if this condition is not met.
The purpose of the said procedure is to maintain the continuity of the relationship between the parent and the minor child, which does not exist where the minor is not in the foreign parent’s custody during the two years preceding the application, then the separation between the two does not necessarily stem from granting a status in Israel to the parent.
Here is the procedure:
Applications of minors under 15 years-old: There is no evidence required to the minors’ presence in the custody of the invited spouse for at least two years before filing the application, and a similar status as the invited parent’s status should be granted.
Minors over the age of 15: proof should be required to minors’ presence in the invited spouse’s custody for at least two years before submitting the application. If the minor child is not in constant contact with the invited parent two years preceding the application, the application has to pass for the decision of the head of the authority through foreign and visas department, with the recommendation of the department.
As mentioned above, most of the “accompanying children” cases are complex and therefore many are the problems that may occur when the “ministry” is not willing to help the matter to say the least. David Angel Law Firm has extensive experience dealings with “Interior Ministry”, and dealing with all courts including legal petitions in the Supreme Court.
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