The Law of Return, a fundamental piece of legislation in Israel, has played an important role in shaping Israel’s immigration policies, rooted in the ideals upon which Israel was founded; proclaiming that every Jew in the world has the inherent right to immigrate to Israel. Since its enactment, July 5th of 1950, this law has been subject to interpretations and modifications, reflecting the evolving dynamics of Israeli society, and its engagement with Jewish identity.
For expert legal counsel on complex Israeli immigration matters like these, you can contact the experienced team at Decker and Pex law offices.
The Grandchild Clause – which extends the right of return not only to the direct descendants of Jews but also to their grandchildren – has been the subject of many debates and discussions. And on August 14th, 2023, these discussions heated up, with a new decision from Judge Michal Agmon-Gonen at the Tel Aviv District Court, regarding the right for Aliyah great-grandchildren of Jews.
Challenging Israeli Immigration Regulations
In 2019, at age 18, Anna Shwimmer sought to establish permanent residence in Israel as the great-granddaughter of a Jew. Anna’s journey commenced in Russia, her country of birth, where she lived with both her parents until their divorce in 2011, when she was ten years old. Two years after the divorce, Anna’s father, himself a grandchild of a Jew, immigrated to Israel as a beneficiary of the Law of Return, while Anna continued to reside in Russia with her mother, visiting her father for annual summer vacations.
But when she turned 17, with her mothers consent, Anna requested to permanently reside with her father in Israel. This request was denied by the Immigration and Absorption Authority (“the Authority”). The grounds for refusal were based on the requirements outlined in Regulation 5.2.0027. (status for the grand-grandchild of Jew), that were not met by Anna. For starters, her father omitted Anna’s name from his immigration form, claiming that he understood the word “Родственники’ (relatives) on the form to mean distant relatives, rather than his own children. The Authority also rejected Anna on the grounds that she did not arrive in Israel with her father, at the time of his immigration, and she had not resided with her father at any time after her parents divorce – neither before his immigration to Israel or after.
Navigating Israel’s Legal Boundaries
On June 19, 2019, Anna filed an appeal with the Appeal Tribunal in Tel Aviv , and her deportation from Israel was temporarily halted. The judicial conflict culminated on August 23, 2020, when the Administrative Affairs Court rejected the appeal.
Judge Dotan Bergman underscored the strict boundaries within which the Authority’s discretion operates – intervention is only sanctioned when evidence of serious errors or unreasonableness in decision-making emerges. Furthermore, he determined that the Authority should only be directed to deviate from its procedures in the presence of exceptional circumstances that warrant such action.
Central to this legal battle is the interpretation of the Law of Return, particularly the Grandchild Clause, pertaining to the immigration of minors. According to these provisions, when a child of a Jew makes aliyah to Israel, with a parent or guardian that is eligible under the Law of Return, the child’s status must be arranged to preserve the existing family unit, before their arrival in Israel. However, Mr. Shwimmer immigrated to Israel unaccompanied by his daughter, Anna. Mr. Shwimmer did not seek to maintain the family unit before his immigration, and Anna resided in Russia with her mother. Consequently she didn’t meet the regulatory requirements, ultimately leading to the court’s decision.
Legal Interpretations and Family Dynamics In Divorce Cases
However, these arguments only offer a partial perspective. Anna asserted that the justification for rejecting her request – based on her continued residence with her mother following her parents’ separation – contradicts the intent of said provisions in cases of divorce. Under Russian legal jurisdiction, Anna’s immigration to Israel was contingent upon her mother’s consent, which was absent at the time of her father’s Aliyah. Anna’s contention revolves around the gap in these provisions when it comes to minors in situations of parental divorce. She posits that no plausible foundation exists for an interpretation that would exclude her from uniting with her father, once the legal obstacle imposed by foreign law was effectively removed in her case.
Anna’s mother contends that her objection to Anna’s immigration stemmed from concerns regarding her high school education; according to Russian law, Anna’s father couldn’t have brought her to Israel, due to her studies. Moreover, once her mother’s objection was lifted, they promptly pursued her decision to accompany her father, and move to Israel.
Immigration and Family Law, Judge Michal Agmon-Gonen Strikes a Balance
Judge Michal Agmon-Gonen, presiding over this case, highlights the significance of Anna’s unique circumstances, with her mothers initial objection to her immigration, given that she remained the sole custodial parent under Russian law, and only later granted consent and removed this obstacle. Judge Michal Agmon-Gonen states that “Even if the father had filled out the form as required, it would not have changed the outcome of the case, and his daughter wouldn’t have been allowed to immigrate with him, given her mother’s objection. I believe the reliance on the technicality of filling out the form, in light of the decision made by the petitioner as a mature adult to connect her life with the State of Israel from the moment the obstacle that prevented it was removed, does not justify the rejection of the application”.
And so, the appeal was accepted, and on September 1st, 2023, Anna Shwimmer received the status of an Israeli resident.
Judicial Activism Creating Conflict
Judge Michal Agmon-Gonen’s decision has gained backlash from some of the more conservative voices in media, claiming that this decision has no legal basis, and that this act of judicial activism has given humanitarian sympathies too much power over the law. These perspectives harp on the idea that this decision has now created a precedent for expanding the Grandchild Clause.
The court responded to these criticisms, stating that according to the Minister of Interior’s Procedure, it’s possible to grant Israeli citizenship to a minor that is the child of a Law of Return beneficiary, and that the decision was made to address an exceptional case of a minor with divorced parents, where one of the parents (the mother) prevented the child’s immigration to Israel with the beneficiary (the father) and the request for residence was submitted when Anna was still a minor.
In light of the different opinions it’s important to recognize the court’s ruling is detailed and thorough. While criticisms have emerged, the court emphasizes the careful consideration given to the specific circumstances, ensuring a nuanced and comprehensive ruling