Introduction
Today there are many cases of Israelis choosing to share their lives with foreign spouses from all over the world. The State of Israel allows these couples to share their lives together in Israel and regulate the status of the foreign-born spouse through a process known as the “gradual” process. Most of the procedure focuses on the honesty and veracity of the marital relationship. If the marital relationship has been shown to be honest and real, the couple can live together in Israel as long as the marital relationship continues. However, while many couples have a long and good relationship for many years, there are cases where the marital relationship will not survive because of divorce or the death of the Israeli spouse. The latter cases raise many questions and concerns about the status of foreign-born spouses, their options, and how the Israeli Ministry of Interior (“MOI”) handles these cases. In this article, we will review the current legal situation, guiding cases, and consider possible changes in the future.
The Legal Situation According to the MOI
As stated above, the laws of the State of Israel and MOI regulations allow foreign-born spouses of Israeli citizens to regulate their status in Israel through a gradual process. The gradual process takes about five years in the case of a foreign-born spouse married to an Israeli citizen, while process takes about seven years in the case of a couple who is not technically married but nevertheless considered married under common law. In cases where the spouses separate before they finish the gradual process, the foreign-born spouse’s rights are not clear and in fact he/she may be forced to leave Israel.
According to MOI procedure, immediately upon receiving notice of termination of the gradual process, the couple is summoned to a hearing in order to examine the ending of the gradual process. The hearing will examine the status of the marital relationship. After the hearing, the MOI makes a decision about the continuation of the procedure.
If the relationship is considered terminated, the MOI generally cancels the residence permit of the foreign-born spouse, and the foreign-born spouse must leave the country within 14 days. However, the foreign-born spouse can appeal this result. This appeal is transferred to a special committee within the MOI, which will review the entire case, including information submitted over the years, allegations made at the hearing, and special circumstances. Common situations when appeals are made include:
- The marital relationship ends and the couple has children together – In cases where the couple had real and honest marriage for more than half of the gradual process and the couple has children together, the MOI will forward the case to the special committee. Although the procedure refers to married couples only, in practice, cases of couple not legally married will be referred to the special committee as well.
- The marital relationship ends because of the death of the Israeli spouse, and the couple has children together – In these cases, when the couple is in the middle of the gradual process and they have children together, the MOI will forward the case to the special committee.
- The marital relationship ends because of the death of the Israeli spouse, and the couple does not have children together – In these cases, when the couple has made it through at least half of the gradual process, and there are no doubts about the veracity of the marital relationship, the MOI will transfer the case to the special committee. After examining the connection of the foreign-born spouse to Israel, the committee will decide whether the foreign-born spouse can continue living in Israel and continue the gradual process.
- The marital relationship ends and there was violence committed by the Israeli spouse – In these cases, the foreign-born spouse will not be forced to live Israel. Instead, the foreign-born spouse will be summoned to a hearing and the MOI will transfer the case to the special committee.
As can be inferred from the above, the procedures themselves do not specify when the MOI will refer a case to the special committee. The rights of foreign-born spouses and their futures lie in the hands of the special committee. Although one can draw commonsense guidelines from the special committee, there is no clear guidance. In addition, the procedures are applied to spouses who are considered married under common law, even though the procedures themselves do not explicitly include common-law partners.
In fact, the termination of the marital relationship and the transfer of the case to the special committee may bring an end to the foreign-born spouse’s status by virtue of the relationship. This is another area in which special humanitarian reasons are being considered under the Entry into Israel Law (see HCJ 874/07 Admonina v Bureau Population Administration, et al). Humanitarian reasons are also considered when looking at the situation from the foreign-born spouse’s perspective. The foreign-born spouse is involved in a proceeding in front of a committee, in which the foreign-born spouse cannot represent him/herself, and he/she does not know how long the process will take and does not know the procedures.
Court Rulings and Judgments
The following are cases where requests were made for humanitarian reasons:
Children Together
Recent court cases, which involve couples with joint custody of shared children, have tended to focus on an important principle of family law – the best interests of the child. This means the MOI should consider the best interests of the child first, including being near his/her parents and relatives. For example, in Administrative Appeal 3111-08 Salmova Irena v Ministry of Interior, the Court emphasized the presence of a father figure and a mother figure, even if the relationship with one parent is not very close. This is similar to the trend of courts regulating the status of children based on them being raised here, and by virtue of the children’s status, the parents can also have their status regulated. Also, the best interest of the child standard is the guiding principle in divorce and custody cases.
Death of the Israeli Spouse
In HCJ 874/07 Admonina N. et al Population Administration Bureau, the court ruled that an honest relationship is critical to an application for citizenship on humanitarian grounds due to the death of the Israeli spouse. That the Court attached great importance to the honesty of the relationship raises doubts about the genuineness of the gradual process. The Court mentioned other considerations, including the duration of the relationship before marriage, the connection to Israel, the length of stay in Israel, relatives in Israel, the degree of integration, and the center of life. The Court also made a distinction between couples who began the gradual process by virtue of getting married versus couples who made a life together.
Violence by the Israeli Spouse
When violence is committed by the Israeli spouse and the marital relationship is terminated, in order to discourage violence, the special committee will consider regulating the status on humanitarian grounds. In these cases, as in the cases above, courts have held that the special committee should examine the foreign-born spouse’s connection to Israel, the honesty and veracity of the relationship, the attachment to his/her country of origin, and the presence of children together.
Conclusion
The legal situation of the foreign-born spouse in the gradual process is shrouded in mystery, and in spite of court rulings, often his/her rights are not known until their case is adjudicated. There are many question marks. Foreign spouses often remain in Israel for many years, working in long-term jobs, socializing, and even having a family life. Uncertainty regarding the status after the termination of the marital relationship, and especially when the couple has children together, is not fair. Although court rulings have led to changes in procedures over the years, the decisions are still made on a case by case basis. We believe that there is room for the procedures to be improved upon; the procedures can be made clearer and more detailed. Most importantly, we believe that there is room to allow representation of foreign spouses to the special committee, as opposed to submitting a detailed application only.
All said and explained in this article does not constitute a legal opinion and does not replace legal advice. Responsibility for using the wordings and opinions conveyed in this article relies solely and entirely on the reader.
This article was written by Dotan Cohen Law Offices, working in the field of immigration law in the United States, Israel, Canada, and Australia.
