Analysis<\/u><\/h4>\n

The following three elements of the proportionality requirement must be met in order for the Minister\u2019s policy to be enforceable.<\/p>\n

The Rational Connection Component<\/em><\/h4>\n

This component requires a rational connection between the means chosen by the authority and the objective it seeks to achieve. The connection between the means and the objective is insufficient for several reasons:<\/p>\n

\n
1. A non-citizen who seeks to extend his presence in Israel by means of fictitious marriage will not likely be deterred by a waiting period of several months abroad.<\/li>\n
2. The Ministry of the Interior did not present any data showing that the policy reduces fictitious marriages.<\/li>\n
3. Removing one or both spouses from the country may make it more difficult to conduct the examinations required to determine the authenticity of the couple\u2019s relationship.<\/li>\n<\/ol>\n

   The Least Harmful Means Component<\/em><\/h4>\n

   This component requires that the least harmful means be employed. Here, the policy is overly harmful because of the emotional difficulty that occurs during separation. Separation can also increase a couple\u2019s financial burdens.<\/p>\n

   <\/p>\n

   The Harm\/Benefit Component<\/em><\/h4>\n

   This component requires that the benefits to the policy outweigh any harm caused by the policy. The benefit derived from the policy is not greater than the harm it inflicts because the benefit the policy achieves is speculative and not backed up by evidence, whereas the harm to bona fide marriages is proven.<\/p>\n

   Exceptions to the proportionality requirement include clear evidence of a fictitious marriage or obvious forgery of a marriage certificate.<\/p>\n

   Conclusion<\/u><\/h4>\n

   The Ministry of the Interior\u2019s policy regarding non-citizens married to Israelis while residing in Israel without a permit does not meet the proportionality test and is unlawful and void. Instead, a non-citizen in this circumstance will be required to meet a higher standard of proof in order to prove the legitimacy of the marriage.<\/p>\n

   Issue Three<\/u><\/h4>\n

   Assuming a non-Jew is not entitled to the rights granted a Jew under the Law of Return, what is her status under the Nationality Law? Does she enjoy preferred rights under this law, or is she the same as any immigrant?<\/p>\n

   Rules<\/u><\/h4>\n

   \n
   • The right of a spouse to citizenship takes precedence over the right of others; however, a non-citizen partner is not entitled to an immediate right of permanent residency and citizenship.<\/li>\n
   • The Minister of the Interior holds the authority to grant or deny an application for naturalization. Under Section 7 of the Nationality Law, the Minister of the Interior is directed to show leniency to spouses of citizens in the naturalization process.<\/li>\n<\/ul>\n

     Analysis<\/u><\/h4>\n

     Section 7 of the Nationality Law authorizes the Minister of the Interior to grant citizenship to the spouse of an Israeli citizen even if that spouse does not meet the general criteria for citizenship detailed in sec. 5(a) of that law. The Minister holds broad discretion in this regard, but he may not ignore the provision of sec. 7 permitting leniency for the spouses of Israeli citizens requesting Israeli citizenship. The burden is on the Minister to explain why he does not exempt such a spouse from the criteria under sec. 5(a).<\/p>\n

     Conclusion<\/u><\/h4>\n

     The Minister\u2019s policy is inconsistent with the legislature\u2019s directive under sec. 7 of the Nationality Law to show leniency to spouses of citizens in the naturalization process. The Minister must establish and publish a policy by which the spouse of a citizen will be granted citizenship at the conclusion of a reasonable period of time and upon meeting the prerequisite criteria.<\/p>\n

     Issue Four<\/u><\/h4>\n

     Is the Ministry of the Interior justified in refusing the petitioners\u2019 request to have their marital status registered in the Population Registry?<\/p>\n

     Conclusion<\/u><\/h4>\n

     The Court remanded this matter to the Minister of the Interior to carry out his examination, stating that the doors of the court would remain open.<\/p>\n

     [author_and_contact_info]<\/p>\n","protected":false},"excerpt":{"rendered":"

     As part of our office’s project of summarizing and explicating key Israeli Supreme Court decisions, this article summarizes Stamka v. the Minister of Interior, an HCJ case which determined that Facts Petitioners, who are intermarried, challenged the Ministry of the Interior\u2019s 1995 interpretation of the Law of Return. They also challenged the Ministry of the…<\/p>\n","protected":false},"author":22,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[627,666],"tags":[],"class_list":["post-81144","post","type-post","status-publish","format-standard","hentry","category-judgment-summaries","category-status-in-israel-for-foreign-spouses"],"acf":[],"yoast_head":"\n