High Court of Justice Case 7803/06: Khaled Abu Arafa and others vs. Minister of the Interior

The petitioners have asked  for an interim injunction to prevent the removal of their Jerusalem residency. This follows a petition submitted in June 2006 in which the petitioners asked that their residency permit not be canceled. The case is pending and a verdict has not been delivered on the matter.

Summary of the State’s responses

Background

In January 2006 elections were held in the Palestinian Authority. Three of the petitioners ran for elections as members of Hamas. Three were chosen as members of the Palestinian Legislative Council and one was appointed Minister for Jerusalem Affairs in the Hamas government.

After their election, in consideration of the fact that Hamas is a terrorist organization that aims to destroy the State of Israel, the Minister of the Interior decided to allow the petitioners to keep their residency permit in Israel on condition that they resign from the Legislative Council as Hamas representatives and from the Hamas government. The petitioners chose to remain as representatives of the Hamas organization.

On 29 May 2006, the then Minister of the Interior, Mr. Ronnie Bar-On, announced that he was considering canceling their residency permit by the power of his authority established by law in Article 11(a) of the Law of Entry into Israel in light of their being senior activists in Hamas institutions.

About a month after that, on 30 June 2006, and after the petitioners were given an opportunity to present their arguments and after the petitioners refused to resign from membership and holding office in the Hamas organization, the Minister of the Interior announced his decision to cancel the petitioners’ residency permits.

On 24 November 2008, the petitioners turned to the Minister of the Interior, through their representatives, with a "request for restoration of residency". In their letter, the petitioners once again did not commit themselves in any real way to refraining from Hamas activities.

On 25 January 2009, the Minister of the Interior, Mr. Meir Sheetrit, told the petitioners’ representatives that, after reviewing their petition, he did not see fit to allow their request for restoration of Israeli residency since they had chosen to continue their Hamas activities.

Accordingly, the State, in its response to the High Court, claims that the request of the petitioners for an interim injunction in the matter of preventing the removal of their Jerusalem residency should be rejected – until delivery of a final decision in the petition in which the petitioners request not to cancel their Israeli residency permits is given.

The legal bases for canceling the petitioners’ residency permits:

• The Minister of the Interior decided to exercise the authority given to him in law and to cancel the petitioners’ residency permits after reaching the conclusion that it is not possible to reconcile the petitioners’ positions and activities as senior Hamas officials with their continued residence in Israel.
 
• The petitioners severely violated their minimal obligation of loyalty to the State of Israel and, no less importantly, to the citizens and residents of the State of Israel.

• The Palestinian Elections Law itself, on the basis of which the petitioners were elected as representatives of Hamas, establishes that it is unacceptable that a Palestinian elected official should have "double loyalty" towards the PA as well as towards the State of Israel.

• A residency permit bestows full freedom of movement in Israel as well as full social welfare rights as a resident of Israel.  Therefore, the residency permit granted to the petitioners has the potential to harm the security of the State and to deal a serious blow to the public trust in government institutions.

• If an interim injunction on the removal of residency permits is granted, the security interests of the State, the well-being of its residents and citizens and the trust of the public in the state authorities will all be harmed. The damage caused to the petitioners does not compare to the aforementioned harm as the petitioners can locate themselves in Palestinian Authority territories, where they have and will function in their senior roles on behalf of the Hamas organization.

• It should be noted that the petitioners are still entitled to appeal to the authorized authorities in order to receive entry permits to Israel or temporary stays in Israel, so that they may visit family members in Israel. It should be clarified that the State of Israel has announced that it will not oppose requests by the petitioners to be added to the Palestinian population registry.