Israel’s Law of Return grants the right of immigration to Israel to all Jews, their spouses, children, grandchildren and their spouses. But, as we all know, “all theory is gray, but forever green is the tree of life.” The Israeli judicial system occasionally faces the need to apply common sense and guiding principles of the law to complex cases where the law might be subject to different interpretation depending on the particular circumstances.
Adoption by a Non-Jew
Does a Jew, or a son/grandson of a Jew, forfeit the right of immigration if his or her mother remarries a non-Jew and he or she is adopted by her new husband? The Israeli judicial system struggled to answer this seemingly trivial question for years. Only in 2009, the Attorney General Menachem Mazuz (currently the Supreme Court justice) had to acknowledge that adoption should not be considered a religious conversion. Therefore, a Jew, or a son/grandson of a Jew, will not forfeit the right of immigration due to adoption by a non-Jew parent.
Adoption by a Jew
As we have previously mentioned, the law grants the right of immigration to Israel to all Jews, their spouses, children, grandchildren and their spouses. For example, if a Jew marries a non-Jew and adopts her children, will the newly adopted children become eligible to immigrate to Israel? Based on the aforementioned decision by the Attorney General and the case of Samoilovvs State of Israel (2009), the answer is yes, but not always.
If the adoption is suspected as fraudulent, the State will rightfully deny the petition for immigration. A fraudulent adoption is determined based on various factors, such as age of the adopted child, time passedbetween date of adoption and date of petition, relationship between the adoptive parent and adopted child etc.
In some families, children, for various reasons, are not adopted legally by their Jewish adoptive parents. Does this mean that such adopted children are not eligible to immigrate to Israel?
Not at all. Although there is no judicial precedent of such case, we believe that based on the existing legal practice, the Law of Return shall apply, in certain cases, to children adopted de-facto and raised by their adoptive parents.
Real-Life Compromise Settlements
In real life, in circumstances such as mentioned above, the State usually takes a rather firm stand. Most petitions are denied outright as “groundless.” This should surprise no one: the Ministry of Interior and Nativ (the Israeli liaison organization) have historically demonstrated an extremely narrow and even literal interpretation of the Law of Return desperately trying to reject any “liberal” interpretation of its provisions.
However, in such cases, the High Court of Justice has the last word. Unlike the government that takes a principle and an “ideological” stand, the Supreme Court follows a different rationale. Its decisions must, first and foremost, comply with logic and the law and not conflict with the general guiding principles of civil rights and freedoms and non-discrimination by ethnicity, ideological beliefs, gender, religion and other factors.
In real life, a petitioner who has been denied the right of immigration may appeal the decision in court. Filing an appeal can be done properly only with a help of a competent attorney specializing in the Israeli Administrative Law. If the appeal is duly substantiated, The Supreme Court may order the State to either accept it or offer an acceptable compromise settlement.
Authors: Adv. Arthur Blaer and Itzhak Eitan(Fernaldes)