By Adv. Daniel Aspiro, Head – Private Clientele Department,Kan-Tor & Acco |
A client recently submitted an entry visa application for his partner from Spain. At the Ministry, he was told to wait at home for a decision. After more than 2 months no decision had been reached, so he contacted our office.
The client asked for our legal opinion as to whether the Ministry of the Interior must make a decision on his application? If so, how long should it take? What happens if the Ministry of the Interior does not respond or does not give reasons for its decision?
Since we often see this question, we provide the following:
Under the Law of the Administration (Decisions and Reasoning) (hereinafter: “the Law”) [1] all governmental authorities must provide reasons for its decision. The reason for this is to allow the legal review of the authority’s decisions by the court [2] on the one hand, and on the other hand to allow the applicant to appeal the decision.
Sections 2(a) and 6(b) of the Law seem to contradict one another, where the former requires a response within 45 days and the latter within 90 days. Ms. Dina Zilber, Deputy Attorney General, resolved the issue in Section 13 of her opinion [3]:
“In my opinion, the period outlined in section 6(b) should be regarded as” following “the period outlined in section 2(a) which is the main period, even if the current wording of section 6 b) is currently problematic.”
And later in the section:
“When in our position it is appropriate to set the maximum period in section 6(b) to 45 days.”
In view of the fact that the Attorney General’s interpretation is binding on the Government, the Ministry of Interior’s duty to respond and provide reasons for its decsion should occur within 45 days of receipt of the application. The decision of the Ministry of Interior and its reasons can be appealed to the court within 30 days from the date of the decision.
What if the Ministry of Interior did not respond to the request within 45 days?
According to the legally binding interpretation of Ms. Zilber, [4], if no decision is provided, the application should be treated as if it has been denied, without providing reasons for the denial.
As a result, any person who has submitted a written application to the Ministry of Interior is entitled to obtain a reasoned decision in writing within the aforesaid period.
The obligation to provide reasons also applies to a decision regarding the revocation of a residence permit in Israel for a person residing in Israel legally.
It is worth noting however, that the legislature chose to exclude the decisions of the Minister of the Interior from the obligation to provide an answer within 45 days, as far as applications related to the issuance of a residence visa in Israel are concerned. [5] In other words, the Population and Immigration Authority in the Ministry of the Interior has exclusive discretion as to whether to respond to a request for residency in Israel within 45 days.
If a decision has not been made within this time period, the individual can apply to the court to instruct the Ministry of Interior to provide reasoning for the de-facto denial.
The failure to provide reasons for a decision by the Ministry of Interior in Israel does not mean that the denial is final. Applying through a law firm that focuses its practice on immigration law, may lead to reconsideration and reversal of the decision.
The law firm of Kan-Tor & Acco has extensive experience in dealing with the Ministry of the Interior and the courts in Israel.
[1] Law for the Amendment of the Rules of Procedure (Decisions and Reasoning), 1958
[2] in Getz 2355/98 Israel Stamka v. Minister of the Interior, Ng (2) 728, Section 19, 754
[3] “Regulation of ambiguity in the Law for Amendment Procedures of the Administration (Decisions and Rationale) 5719-1958 dated October 29, 2017
[4] See H.S., 3, section 8
[5] section 9 (b) of the Law
