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Restrictions on Entry Into Israel: Under what
circumstances may entry into Israel be denied?
Statutory Law
The law governing visitors’
entry into Israel is the Law of Entry into Israel, 1952 (the "Law") and the
regulations promulgated thereunder (the Entry into Israel Regulations, 1974
(the “Regulations”)).
Entry into Israel
Under the Law, an individual
who is not an Israeli citizen may enter Israel according to a visa issued
pursuant to the Law (Section 1 of the Law). Visitors may enter Israel only
at designated places of border control (Section 7 of the Law).
Visitor Visa Regime for U.S.
Citizens
Section 2(b) of the Law
authorizes the Minister of the Interior (“MOI”) to issue a tourist visitor
visa and permit for three months. Under Section 3(2) of the Regulations,
U.S. citizens (as well as citizens of a number of countries) may submit
their visa and visitor residence permit applications at Israel’s border
control stations, while the usual rule is that visa applications are
submitted abroad. The visitor visa type for short-term visit purposes is B/2
– a tourist visa without the right to work (Section 5(b) of the
Regulations). Under Section 4 of the Regulations, the MOI may at his
discretion request an applicant to provide additional details and evidence
confirming the details set out in the application.
Visa Denials and Expulsions
The MOI may prescribe
conditions for granting the entry visa or its validity (Section 6 of the
Law). Under Section 11(a)(1), the MOI may, at his discretion, cancel the
entry visa, before or after the person’s entry. The provision of Section
11(a)(1) - unlike that of Section 11(b) which deals with cancellation of the
new immigrant status – does not require the MOI to provide a “reasoned
decision”. Furthermore, under Section 10(a)(4) of the Regulations, a visa
loses its validity if the MOI prescribed conditions for its validity, and
the conditions were not fulfilled.
The MOI may expel any person
who enters Israel without being authorized to enter (Section 10(a) of the
Law) and any person not an Israeli citizen or new immigrant under the Law of
Return who is found in Israel without a residence permit (Section 13(a) of
the Law).
Under Section 12, the following
are considered offenses punishable with a year’s imprisonment: entering
Israel or residing there illegally (Section 12(1) of the Law); giving false
information in order to obtain, for oneself or for another, an entry visa to
Israel or a residence permit ((Section 12(2) of the Law); violating a
condition from among the conditions prescribed in one’s visa or residence
permit granted pursuant to the Law (Section 12(3) of the Law); contravening
another provision of the Law or of the Regulations ((Section 12(4) of the
Law).
Case Law
In
Administrative Appeal 001518/02 (Tel Aviv) Christiane Gilman v. the Border
Control Commissioner (Ben Gurion Airport), an administrative appeal
with the District Court was lodged against the Border Control/MOI’s decision
to deny entry to a French lawyer who came to be an observer in the Barghouti
trial, for security-related reasons based on intelligence information. The
appellant was a member of an international federation for human rights and
had previously visited Israel. The court cited with approval the principle
enunciated in HJC 482/71 Clark v. MOI (the appeal of Black Hebrews
against non-renewal of visit permit and against threatened expulsion) and
recently HJC 4156/01 Dimitrov v. MOI (the case of foreign spouse
divorced from Israeli spouse after birth of a child and before completing
naturalization). The court in Clark ruled that the principle accepted
in modern democratic countries that the state has broad discretion with
regard to allowing entry of foreigners into its territory and has the right
to deny entry to, or exclude, undesirable foreigners, for any reason, or
without any reason; and a foreigner does not have a right to come to the
country either as a tourist or as a resident. In Clark the court held
that the MOI decisions for which no reasons are given are not subject to
judicial review other than on the grounds of corruption, fraud or bad faith.
The court in Gilman
concluded that it follows from this principle that MOI’s discretion in such
matters is broad. However, such discretion is subject to judicial review as
the discretion of any other administrative authority on the basis of the
‘usual’ grounds of judicial review of the exercise of administrative
discretion (HJC 431/89, 758/88 Kandel v. MOI (appeal against denial
of immigrant visa to converted applicants); HJC 3403/97 Ankin v. MOI
(denial of permanent residence to an adult applicant whose mother was
married to an Israeli), Administrative Appeal 1235/02 (Tel Aviv) Marsio
v. MOI (appeal against MOI refusal to extend the visitor visa of an
applicant whose son resides in Israel and who had previously illegally
stayed in Israel for 4 years)). The court in Gilman confirmed that it
is established law that the MOI may rely in his decision on information from
intelligence sources (HJC 1227/98 Malevsky v. MOI (new immigrant’s
status questioned in connection with criminal background)). The court found
that the MOI decision in Gilman to deny entry withstands the test of
administrative reasonableness. The court added that while allowing the
applicant entry into Israel subject to travel restrictions, duty to check in
with the authorities, and provision of guarantees, is also a reasonable
alternative, the decision in the matter is to be made by the MOI and the
existence of a prima facie reasonable alternative does not invalidate the
MOI decision to deny entry.
The Gilman case has so
far not been discussed in subsequent cases. There is a wealth of cases
citing with approval the Clark principle, regarding the absence of a
foreigner’s right to enter Israel (HJC 4370/01 Lapko v. MOI
(applicant for immigrant visa) each state has full authority to decide which
foreigner it admits and which it excludes; Administrative Appeal 529/02
Leora Elana et al v. MOI and HJC 4156/01 Dimitrov v. MOI
(applications for citizenship for divorced foreign parent of Israeli child).
In Administrative Appeal 469/02
(J-m) Cristin v MOI (appeal against expulsion of Romanians outstaying
transit or tourist visas) the court held that the state’s right to determine
which foreigners will be allowed entry exempts the state from the need to
give a reason or special justification for the denial and therefore the MOI
or the authority to which his powers regarding entry to Israel are delegated
is exempt from the duty to provide argumentation; citing with approval the
principle in Clark regarding the broad discretion of the MOI in
denying entry to foreigners. The right to deny entry is a basic right common
to a society operating as a state, and in Israel security considerations are
added to other reasons for denial of entry. The court in Cristin
cited with approval HJC 1810/96 Maskani v. MOI where the court held
that it is established law that the MOI has very broad discretion as to
admitting or denying entry to foreigners and that the court will not
intervene in the MOI decisions unless there are special circumstances. The
court in Cristin further agreed with HJC 1031/93 Pasero v. MOI
which held that every state reserves the absolute power to control the entry
of foreigners.
The MOI exemption from the duty
to provide reasons for denial of entry was reiterated in HJC 3648/97
Stamka v MOI (status of non-Israeli spouses of Israelis).
Note that in
a very recent case,
Interior Minister Avraham Poraz
(Shinui) allowed the entry of 9 European peace activists into the country,
after having previously stopped them from
returning to Israel. The nine members of the Euro-Med Youth Programme came
to Israel in February 2003 for a six month
exchange program that placed them in social and cultural projects in Haifa,
Hebron and East Jerusalem. They left at the start of the month to spend a
week in Jordan, but were stopped from reentering in May.
In September, the Minister rescinded the ban after
carrying out a security check on each volunteer.
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