Developments in the Family Member Clause of the Law of Return
Monday, July 11, 2016 | Adv. Michael Decker ISRAEL TODAY
As of late, there have been various developments as they relate to the rights of family members of Jews to immigrate to Israel, in accordance with the Family Member Clause within the Law of Return, Jewish year 5710 – 1950 (hereinafter: the "Law of Return").
According to section 4a(a) of the Law of Return, a family member can be either a child of a Jew, a grandchild of a Jew, or the spouse of an individual who is a child of a Jew, or the spouse of an individual who is a grandchild of a Jew (hereinafter: "Family Member of a Jew").
These changes have limited the rights of a Family Member of a Jew to immigrate to Israel, and as of today, although section 4a(a) of the Law of Return still exists, it is currently unclear which type of Family Member of a Jew can immigrate, and which type cannot.
These developments will naturally also have an effect on Hebrew Christians, and Messianic Jews, who are technically defined as Family Members of a Jew.
In this article, I will briefly explain the Law of Return, and following so, I shall then elaborate on the aforementioned recent developments.
Section 1 of the Law of Return determines that every Jew shall be entitled to immigrate to Israel, and obtain immediate citizenship.
Section 4(b) of the Law of Return defines a Jew as an individual who has a Jewish mother, or as a convert to Judaism, and who is not a member of another religion.
In HCJ 265/87 Beresford v. the Interior Ministry, it was determined that a Messianic Jew/Christian is a member of another religion, and is therefore considered not Jewish, in accordance with the Jewish definition given in Section 4(b) of the Law of Return.
Section 4a(a) of the Law of Return permits non-Jews to immigrate to Israel, if they are Family Members of Jews (as defined above), but restricts this right from an individual who was once Jewish, but then willfully changed his or her religion.
Therefore, if a non-Jewish member of another religion only has a Jewish father, or Jewish grandparents, and does not have a Jewish mother, he or she should, as matters seem, be entitled to immigrate, in accordance with the Law of Return.
In fact, in HCJ 2708/06 Steckback v. the Interior Ministry (hereinafter: the "Steckback Case"), our firm won a case in this matter, in which it was clearly determined that a Messianic Jew would be entitled to immigrate to Israel, according to Section 4a(a) of the Law of Return, providing that he or she does not have a Jewish mother.
The same logic would apply to a Messianic Jew/Christian, with a mother who became Messianic Jew/Christian before the birth of this individual, and as such, this individual would not have a Jewish mother, and would therefore not be defined as a Jew, according to Section 4(b) of the Law of Return.
In any case, regardless of whether you have a Jewish mother, or whether you are a convert to Judaism, and despite the Steckback Case, the Interior Ministry has denied most applications submitted by a Messianic Jew/Christian, in the event that the Interior Ministry discovered that the individual in question is a Christian/Messianic Jew.
Furthermore, and in more recent years, the State Attorney's Office (which represents the Interior Ministry before the Supreme Court of Justice), tried to convince the Supreme Court to adopt an essential interpretation of Section 4a(a) of the Law of Return, whereby the objective of the Law of Return is to allow Jews to return to the land of their fathers, along with Family Members of a Jew, with the hope that the Family Member of a Jew shall return to the Jewish faith, as well (as can be learned from the explanatory notes on Section 4a(a) of the Law of Return).
According to this position, which was accepted by the Supreme Court of Justice, a Family Member of a Jew who is actively distributing Christian literature in Israel should not be entitled to immigrate to Israel, as such activity would contradict the objective of the Law of Return (HCJ 8320/10 Zev Isaacs v. the Interior Ministry (hereinafter: the "Isaacs Case")).
Just recently, however, this precedent was stretched even further, in the case of HCJ 10535/09 Jane Doe v. the Interior Ministry (hereinafter: the "Jane Doe Case").
In the Jane Doe Case, Justice Hanan Meltzer rejected a petition that was submitted by the Movement for Progressive Judaism in Israel.
In their petition, the Movement for Progressive Judaism, requested that the Supreme Court order the Interior Ministry to grant citizenship to a certain grandchild of Jewish grandparents, even though the mother of the petitioner may have converted to Islam, as she married a Muslim man in a Sharia court and raised her children (including the petitioner) in accordance with Muslim values, in the Arab city of Shechem (Nablus), and even though the petitioner may be defined as a Muslim, as well.
In this regard, it should be noted that the Movement for Progressive Judaism in Israel argued Aliyah eligibility for the petitioner, in accordance with the grandchild clause of the Law of Return (Section 4a(a) of the Law of Return), as an alternative argument.
However, the administrative factual findings of Justice Hanan Meltzer led him to the conclusion that the mother of the petitioner did convert to Islam, and that the petitioner leads a Muslim lifestyle.
The legal conclusion of Justice Meltzer, therefore, whereby the petitioner is not even eligible to immigrate to Israel as a non-Jewish grandchild of a Jew, in accordance with Section 4a (a) of the Law of Return, became a very significant determination in the Jane Doe Case.
The reason that the precedent set in the Isaacs Case was extended, is rooted in the fact that the petitioner in the Jane Doe Case, according to the verdict itself, is not a Muslim "missionary".
The Movement for Progressive Judaism in Israel actually submitted a petition for an additional hearing with a broad panel of judges, due to the new precedent which was determined in both the Isaacs Case and the Jane Doe Case, and which is in contradiction to the modus operandi of the State of Israel during past decades, as it relates to its immigration policies, their interpretation, and application, of Section 4a(a) of the Law of Return (Dangatz 1197/97 Jane Doe vs. the Interior Ministry (hereinafter: the "Request for an Additional Hearing")).
It is still not clear how the precedents set in the Isaacs Case and the Jane Doe Case may be applied in future cases, as well as the Request for an Additional Hearing. However, in my opinion, it does seem as though every case, according to its specific circumstances, will be decided upon on an ad hock basis, as Section 4a(a) of the Law of Return still exists, which can only mean that certain type of non-Jewish descendants of Jews are still eligible to immigrate to the State of Israel.
The above-mentioned information naturally does not replace particular legal consultation with a licensed Israeli attorney, and therefore, for any further questions in this regard please feel free to contact advocate Michael Decker directly at: decker@isra-law.co.il.
Advocate Michael Decker is an Israeli, lives in Jerusalem with his wife and 4 children, is a partner at the Yehuda Raveh & Co. Law Offices, and serves as Chief Legal Advisor to the internal justice project, and the International Combatting Anti-Semitism Project, of the Jerusalem Institute of Justice.
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