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Israel: Convicted Felon Denied Immigration Status Under Law of Return

(Sept. 11, 2013) On August 22, 2013, Israel’s High Court of Justice (H.C.J.) rejected a petition against the Ministry of Interior’s decision to deny a Jewish citizen of Ukraine (the petitioner) oleh immigration status based on his criminal record. The petitioner had served a ten-year sentence of imprisonment in Ukraine for perpetrating serious sexual offenses. (H.C.J. 8292/11 Padchanko v. Minister of Interior, STATE OF ISRAEL: THE JUDICIAL AUTHORITY.) While rejecting his request for status as an oleh, the Ministry informed the petitioner that he could renew his immigration application after the expiration of a ten-year period from the rejection of his request. The petitioner had been deported from Israel in January 2010.

Oleh status is granted to Jews and to members of their families who wish to immigrate to Israel in accordance with the Law of Return. (5710-1950 [in Hebrew], 4 LAWS OF THE STATE OF ISRAEL 114 (5710-1949/50), as amended.) Section 2(b) of the Law provides:

An oleh‘s visa shall be granted to every Jew who has expressed his desire to settle in Israel, unless the Minister of Immigration [currently Minister of the Interior] is satisfied that the applicant-

(1) is engaged in an activity directed against the Jewish people; or

(2) is likely to endanger public health or the security of the State, or

(3) has a criminal record that may endanger public welfare. (Id.)

According to Justice Edna Arbel, the objective of the Minister’s authority to deny an oleh visa under section 2(b)(3) was to protect the Israeli public from felons who could otherwise be entitled to immigrate to Israel and to prevent the transformation of Israel into a shelter for such offenders. (H.C.J. 8292/11, ¶ 10.) According to Arbel, the Minister’s refusal to grant oleh status can be based on a criminal record that includes especially serious offenses that pose inherent endangerment to the public. In circumstances that involve serious offenses, she determined, the passage of time would have limited effect on evaluating the level of endangerment posed by the admission of the applicant to Israel based on an oleh visa. (Id. ¶ 12.)

According to the documents introduced in the trial, the petitioner had served a ten-year imprisonment sentence in his country of origin for committing numerous offenses of rape and group rape of minor girls, the youngest having been seven years old, over a period of several years and for distributing pornographic material. These circumstances, according to Arbel, raised a presumption of dangerousness against the petitioner that, unless otherwise contradicted, prevented him from obtaining oleh status. (Id. ¶ 13.)

Considering the seriousness of the offenses of which the petitioner had been convicted, Arbel concluded, it was doubtful if the passage of time could in the future indicate a decrease in the endangerment posed by the petitioner to the public. While such a decrease was unlikely, according to Arbel, the possibility that a change in the circumstances could take place in the course of the ten years prior to reevaluation of the petitioner’s request should not be ruled out. She suggested that a presentation of a professional opinion indicating that the petitioner no longer posed a danger to the public could serve as proof of such a change. (Id. ¶ 15.)

Therefore, the H.C.J. rejected the petition subject to the possibility of reevaluation at the termination of a ten-year period.