Palestinian Residency Rights: A Movement Toward the End of Statelessness in East Jerusalem?

By: Inessa Wurscher

In 1967, during the Six Day War, Israel annexed East Jerusalem from Jordan and consequently sought to impose their control on the approximately 66,000 Palestinian Arab residents.[1] After the annexation, the Palestinians living in East Jerusalem did not receive Israeli citizenship.[2] Instead, “Israeli authorities conducted a census throughout the newly acquired areas and granted Israeli identity cards and permanent residency rights to . . . East Jerusalemites who were physically present at the time.”[3] Consequently, “[t]hose who were not present lost their right to permanent residency in Jerusalem.”[4] These decisions have led many East Jerusalem Palestinians to hold a very tenuous legal status. Now around 330,000 Palestinians living in Jerusalem are affected by these policies, accounting for around 37% of the city’s population.[5]

This policy, known as the ‘Entry Into Israel’ law, essentially treats Palestinians born in Jerusalem as if they were immigrants born in a different country.[6] They can work and live in the city, however they are not citizens and the Israeli government may revoke their legal status for a variety of reasons.[7] Instead,

they are trapped in a fine limbo between permanent residency, whereby they exercise only a limited set of rights but are able to live in Jerusalem, and statelessness, whereby their permanent residency is confiscated, their limited rights are revoked, and they are forced to leave the city in which they were born.[8]

These policies have arguably created a unique atmosphere in Israel where statelessness is essentially institutionalized and has actually become part of the immigration law structure.[9] There are also many strong arguments that the situation in East Jerusalem is both illegal under international law and a violation of human rights.[10]

A previous 1996 landmark court case, Awad, regarding Palestinian residency held that the “right to reside in the city is . . . terminated automatically as soon as an individual is unable to prove to the Ministry's satisfaction that his or her ‘centre of life’ is and has in the past been in Jerusalem.”[11] Many other cases have followed this theme and have made it very difficult for Palestinians to both maintain and acquire legal residency.[12] Therefore, it should come as no surprise that around 14,500 Palestinians have lost their right to legally reside in Jerusalem since the 1967 annexation.[13] The reasons provided for this ‘expiration’ of legal status can include being absent from Jerusalem for more than seven years or even something as simple as moving to the outskirts of the city or a brief absence in order to study abroad.[14]

This situation has created a lot of concern among East Jerusalem Palestinians who fear having their residency rights revoked.[15] Although Palestinians are not prohibited from seeking Israeli citizenship as immigrants, it often takes around three years for the Israeli government to make a decision on these applications and the approval rate is low.[16] Furthermore, “[m]ost East Jerusalemites did not pursue Israeli citizenship, . . . due to the instability of the region and the indeterminacy of the permanency of the Occupation.”[17] “[A]ccepting Israeli citizenship . . . [is also] generally regarded as a legitimization of the illegal acquisition of territory and detrimental to the reacquisition of Palestinians’ internationally recognized rights.”[18]

Although there have been many legal challenges to these revocations of legal permanent residency, these attempts were largely successful until the recent landmark Israel High Court of Justice (also known as the Israeli Supreme Court) decision in March 2017.[19] The case involved a Palestinian man named Akhram Abdalhak who was born in Jerusalem in the late 1950s but moved to the United States when he was a child.[20] By the time he tried to return to Israel in 1989, the Israeli government considered his status as a legal resident to be expired and refused to allow him to renew it.[21] Since then he has lived in Jerusalem illegally.[22] Now, at age 58, he has successfully challenged the revocation of his Israeli residency status.[23]

Not only did the Israeli Supreme Court unanimously rule in his favor by ordering Israel to restore his residency rights.[24] The Court went on to recognize “Palestinians from Jerusalem as ‘native-born residents.’”[25] This recognition is significant because it marks the “first time the court has recognized the special ties of Jerusalemite Palestinians to their native city.”[26] The Court also laid out new standards for Palestinians holding legal residency by requiring the Interior Ministry to take account of certain factors.[27]

Specifically, the Court held that a person’s “’strong affinity’ to the city . . . must be taken into account with respect to residency rights.”[28] Justice Uzi Fogelmen, one of the three deciding justices, stated that “’when the interior minister must examine a request to restore a permanent residency to a resident of East Jerusalem, they must consider the special circumstances of these residents – that as opposed to immigrants seeking status – they were born there – and where they have enjoyed family and communal life for years.’”[29] Justice Meni Mazuz expanded on this idea, stating that “’[u]nder these circumstances, the appellant ought to be viewed as someone who has renewed their affinity to Israel and considering the special status of East Jerusalem residents as native born . . . as enough to justify his request to renew recognition in his status as a permanent resident.’”[30] Justice Miriam Naor, the court president, also stated that “each case must be judged on its own merit.”[31]

Although this case does not appear to overrule the ‘centre of life’ approach followed by earlier cases, it does add to the factors that the Interior Ministry needs to consider. It also may have an effect on how that term is interpreted. For example, since the inherent close ties created by being born and living in East Jerusalem are now recognized factors to be considered it may make it easier for Palestinians to prove that they meet the ‘centre of life’ factor. Furthermore, since special circumstances, such as being born in Jerusalem must now also be considered many of the Palestinians who have had their legal residency revoked, and consequently become stateless, may now have access to a legal remedy for their situation. This development could not only help Palestinians acquire legal residency, but also prevent it from being taken away and contribute to the end of institutionalized statelessness in Israel.

Although it is still new, this court decision marks an interesting development in Israeli law. Several “[e]xperts say the ruling may bear significance for similar cases involving Palestinians seeking to return to the city.”[32] Already, the case has essentially served to create “a new legal protection for the residency rights of East Jerusalemites.”[33] If this trend continues it is possible that it may open the door to further litigation or reform that could become the start of a legal solution to address statelessness and many other issues faced by Palestinians in East Jerusalem today.

[1] David Herling, The Court, the Ministry and the Law: Awad and the Withdrawal of East Jerusalem Residence Rights, 33 Isr. L. Rev. 67, 71-75 (1999).

[2] Nir Hasson, In Precedent-setting Ruling, Israel’s Top Court Recognizes East Jerusalem Arabs as ‘Native-born Residents,’ Haaretz, Mar. 16, 2017.

[3] Danielle C. Jefferis, Institutionalizing Statelessness: The Revocation of Residency Rights of Palestinians in East Jerusalem, 24 Int. J. Refugee L. 202 (2012).

[4] Id.

[5] Karin Laub & Mohammed Daraghmeh, More East Jerusalem Palestinians Seek Israeli Citizenship, The Times of Israel, Mar. 22, 2017, http://www.timesofisrael.com/more-east-jerusalem-palestinians-seek-israeli-citizenship/.

[6] Dov Lieber, Dramatic Ruling Paves Way for Thousands of East Jerusalemites to Regain Residency Rights, The Times of Israel, Mar. 22, 2017, http://www.timesofisrael.com/dramatic-ruling-paves-way-for-thousands-of-east-jerusalemites-to-regain-residency-rights/.

[7] Id.

[8] Jefferis supra note 3.

[9] Id.

[10] Id.

[11] Herling supra note 1, at 72-73.

[12] Jefferis supra note 3.

[13] Associated Press (AP), High Court Recognizes Arab Residents’ Ties to Jerusalem, The Times of Israel, Mar. 17, 2017, http://www.timesofisrael.com/high-court-recognizes-arab-residents-ties-to-jerusalem/. The majority of these revocations occurred after 1995 when the Israeli Interior Ministry began to crack down on proof of residency. See Lieber supra note 6. The year with the highest number of revocations so far was 2008, when around 4,577 residency permits were invalidated. Id.

[14] Hasson supra note 2.

[15] Id.

[16] Laub & Daraghmeh supra note 5.

[17] Jefferis supra note 3.

[18] Id.

[19] Associated Press (AP) supra note 13.

[20] Hasson supra note 2.

[21] Id.

[22] Id.

[23] Id.

[24] Associated Press (AP) supra note 13.

[25] Id.

[26] Id.

[27] Hasson supra note 2.

[28] Id.

[29] Id.

[30] Id.

[31] Id.

[32] Id.

[33] Lieber supra note 6.