By Daniel Aspiro, Partner |
The right to immigrate to Israel under the Law of Return is restricted by the Ministry of the Interior to prevent entry to immigrants who pose a risk to public health, state security, or possess past criminal records. The Population Authority has a procedure for handling these cases. In most cases, a criminal past does not amount to a deprivation of a substantive right like the right under the Law of Return, and rejection can be handled professionally against this background.
Since its inception, the State of Israel has experienced waves of immigration from many countries. Today, most immigrants come from the former Soviet Union, Europe, the United States, and Ethiopia. Immigrants have universally contributed and continue to contribute to the country, its continued success, diversity, and prosperity.
The right to immigrate to Israel is one of the most important rights in the law. The right is granted to all “entitled to return” as defined in the Law of Return. Ever Since the Law of Return was established, however, there have been multiple cases in which the Ministry of the Interior and Israeli consulates around the world have refused immigration to those entitled to immigrate under the Law of Return, because applicants have possessed a criminal record.
The body entrusted with handling applications under the law is the Population and Immigration Authority (hereinafter: “the Authority”). The Jewish Agency (hereinafter: “the Agency”), Nefesh b’nefesh, and “Nativ”, are organizations that provide support in the applicant’s home country and aid applicants in the lengthy Aliyah application process. These organizations also provide Israeli authorities with recommendations regarding eligibility and information regarding prospective candidates and serve as a link between the candidate and the governing Israeli authorities.
This article discusses the question of eligibility for an immigrant under the Law of Return (hereinafter: “the Law”) given the existence of a criminal record in the immigrant’s file. Thus, we will discuss the question of whether the Minister of the Interior may refuse immigration to someone (whether the applicant is Jewish or otherwise qualifies under the Law) with a criminal past? If so, is there a criminal threshold for refusal (i.e., would shoplifting from a supermarket, for example, preclude someone otherwise eligible, from the right to make Aliyah)? Is there a statute of limitations for the offense? Is there a definition of certain offenses that would not preclude one’s Aliyah prospects?
We will also discuss how such a decision can be appealed, and how the appeal is made.
Background
The Law grants all those entitled to return who have expressed their desire to settle in Israel the right to immigrate to Israel and receive status in Israel (Israeli citizenship or permanent residency or temporary residency) in accordance with the application (hereinafter: “the applicant”).
The Entry into Israel Law, 1952 (hereinafter: the “Entry into Israel Law”) and the Entry into Israel Regulations, 1974, supplement the Law and stipulate that entry into Israel can be done in two ways – through an immigrant visa or an entry visa to Israel.
The Law grants all those entitled to return, who have expressed their desire to settle in Israel, the right to immigrate to Israel and receive an immigrant certificate, unless “2. b. Or state security; or (3) a person with a criminal record who may endanger the public peace. ”
Hence, the starting point is that everyone entitled to return is allowed to immigrate to Israel, unless the Minister of the Interior finds that the person entitled to return has a criminal record that could endanger public peace, after an in-depth examination.
The purpose of the section is to protect the public peace in Israel from criminals, who are in principle entitled to immigrate to Israel. This is to prevent the State of Israel from becoming a country of refuge for criminals. This section reflects a value-based approach of the legislature, which states that the right of the public in Israel to live in peace may override the right of a Jew to receive immigrant status and settle in the country.
The question, therefore, that arises is, what type of criminal record endangers public peace and constitutes legitimacy to deny eligibility for Aliyah?
The body entrusted with handling applications under the Law is the Population and Immigration Authority (hereinafter: “the Authority”). The Jewish Agency (hereinafter: “the Agency”), which is a kind of link between those entitled to return to their homeland to Israel, and the organization “Nefesh Benefesh” (hereinafter: “Nefesh Benefesh”), an organization that assists applicants in the process.
The Immigration and Border Crossing Authority (hereinafter referred to as the “Population Authority”) has a specific procedure relating to those entitled to return (hereinafter: “the procedure”).
It is worth noting that notwithstanding what is stated in the Law, the Population Authority has expanded its interpretation of the procedure and established several considerations that may influence a decision to approve or refuse an application for immigrant status with a criminal record that may endanger public safety. In addition, the procedure states that the Minister of the Interior may also refuse an applicant who is only suspected of committing offenses. The following is a partial list of considerations:
- The severity of the offense.
- Date of commission of the offense.
- Number of offenses committed.
- The degree of danger to the public.
The Supreme Court defines the scope of the dispute as to the question of eligibility and the manner of examining the potential for danger, both from the dry aspects of the law and from the technical point of view of examining the facts and circumstances of the case.
Pedchenko: Nature of the Offense, Danger, and Passage of Time
In the ruling in Padchenko’s case, the Honorable Justice Arbel ruled that not every criminal record establishes a ground for refusing a person to immigrate to Israel:
“Not every criminal record establishes a ground for refusing a person to immigrate to Israel, as we are interested in a criminal past that indicates dangerousness…. Disgraceful offenses that have been committed at random may not indicate any danger.”
About the lapse of time from the time the offense was committed, the Honorable Judge Arbel set parameters according to which:
“The lapse of time (from the date of the commission of the offense – DA) does not necessarily indicate that the the petitioner no longer poses a danger to the public, in particular taking into account the seriousness of the acts for which he was convicted in the past.”
According to the decision, the Ministry of the Interior does not grant an immigrant visa to “a person with a criminal record who may endanger the public peace”. However, the lapse of time since the commission of the offense may reduce the weight of the criminal past.
Hence, the Ministry of the Interior must balance the passage of time with the nature of the criminal past. The decision must stand the test of reasonableness. In high-severity offenses, which are inherently considered dangerous to public safety (e.g.: rape, murder, violence), the passage of time will constitute a reduced consideration as to whether to grant an immigrant visa, depending on the circumstances of the case.
The ruling also stated that the Ministry of the Interior is allowed to base its refusal to grant a person an immigrant visa on an offense that was dismissed or removed from the record in the country where it was committed and that it is sufficient for a person to confess to committing an offense to be considered a criminal, i.e. even if not convicted. To assess the criminal risk, the court ruled that a professional assessment could be obtained regarding the applicant’s risk. The power of such a positive assessment has a positive effect on the decision of the Ministry of the Interior.
Connie Taylor Judgment – Looking Forward
In the Connie Tyler decision, the Honorable Justice Miriam Naor ruled that not every criminal record justifies the expropriation of the right to strike, but only a criminal record from which one can learn about risk to public safety, with a forward-looking view.
Lansky Ruling – Fear of Future Crime in Israel
This judgment is one of the best known regarding the connection between a criminal past and the right of Aliyah. The Aliyah applicant, Meir Lansky, was a Jewish American mobster and businessman, one of the heads of the Mafia in New York. Among other things, Lansky headed a council that included the heads of criminal organizations in the United States. Before the establishment of the State and before the War of Independence, Lansky assisted the Jewish community in Israel in purchasing and smuggling weapons.
In 1970, Lansky sought to settle in Israel and exercise the right of Aliyah. Until then, Lansky had been convicted of only minor offenses, but the Minister of the Interior feared that he intended to relocate his center of activity and illegal business to Israel while trying to evade the investigation by the Federal Bureau of Investigation and the tax authorities in the United States.
In 1971, the Ministry of Interior rejected Lansky’s request for Aliyah since he had a criminal record that could endanger the public peace. Lansky appealed the decision which was adjudicated in the High Court by a special panel of five judges, who unanimously rejected the petition, i.e., denied his request for Aliyah.
The late President Agranat ruled that due to the criminal past of the applicant, there was reasonable fear that he may still engage in a similar crime in Israel, and in any case, pose a danger to public safety.
The Criminal Risk Assessment provided that the Minister of the Interior may take into account other facts and evidence which raise “grave suspicion that the applicant, having a criminal record, is guilty of other criminal acts, or other misconduct or has had, for many years, friendly and business connections with underworld criminals”.
About the nature of the offenses committed, the President stated that:
“Do not think that any minor offense that a Jew has committed will deprive him of the right to immigrate to Israel. If a person parked his car abroad in a prohibited place and committed an offense, it should not be said that this is not an offense at all in the matter of the Law of Return”
Filing an Appeal Against the Decision to Refuse Citizenship
If an immigration application submitted in Israel was indeed denied, the applicant is required to leave Israel on the date set by the Authority.
An internally written appeal may be filed against the decision within 21 days at the bureau where the applicant’s file was conducted, as stated in the appeals filing procedure. It is important to note that the filing of an internal appeal does not invalidate the decision to leave Israel, but a separate request must be submitted to delay the Population Authority’s decision.
The decision on the internal appeal may be filed in writing, within 30 days from the date the decision was published, or from the date the applicant received notice of it, whichever is earlier. In some cases, it is possible to request an extension of time to file an appeal beyond the date set by law. The appeal must be in writing, together with an affidavit verified by a lawyer, detailing the reasons for the request for extension.
An applicant who has submitted an application for immigration to Israel and whose application has been denied and does not reside in Israel will be submitted through an Israeli citizen by the address of residence of the Israeli citizen. If the Aliyah applicant has previously resided in Israel but does not have an Israeli address, the application will be submitted through his attorney at the Bureau of the Population Authority where the applicant’s file was conducted.
Due to the importance of the appeal to the applicant, and due to the difficulty in attacking decisions and the discretion of the Ministry of the Interior in the field, we suggest filing the appeal through lawyers who are familiar with this unique field.
Summary of the Laws
- The right to immigrate to Israel and to obtain residency or citizenship is one of the most important rights in Israeli law.
- The Minister of the Interior has the right to deny an application due to the applicant’s criminal record, if the offenses for which he was convicted or suspected, may endanger the public peace in Israel.
- The lapse of time from the date of the offense is a reasonable consideration in the decision making process of the Minister of the Interior about the seriousness of the offenses committed (i.e., shoplifting and murder should be evaluated the same way)
- Ongoing suspicions or a confession by the applicant may be sufficient grounds for the Minister of the Interior to deny the application—even if the offense was later dismissed or expunged in the country where it occurred.
- The Minister of the Interior must look into the future behavior of the applicant in light of the offenses he has committed in the past.
From the general to the specific
In one case, an applicant’s request for Aliyah was denied after he was convicted of participating in a riot in Ukraine as part of a demonstration against a new law that was introduced in parliament in the 1990s. This offense is characterized in Israel as an offense for which the punishment is imprisonment for up to three months.
It is important to note that during the demonstration there was no risk to public safety, and there was no concern for public safety in Israel if he immigrated to Israel, more than 30 years after participating in the riot.
The Population Authority accepted the premises of the appeal and conducted another interview with the applicant through the Israeli Embassy. In the interview, our client gave a plausible explanation for the offense attributed to him. After the interview, the Ministry of the Interior reconsidered the client’s request and confirmed his eligibility under the Law of Return.
In cases where the applicant has a criminal record, the applicant may be “labled” as having a criminal record that may endanger public peace. The decisions of the authority can be determinative about the fate of the applicant. We recommend that you consider all circumstances when submitting such applications, and seek the help of a suitable professional.
Kan-Tor & Acco is a boutique law firm that specializes in entry law in Israel in general and immigration applications.
