Proposed new Basic Law aims to limit immigration to Israel

Much of the historical debate about immigration in Israel has revolved around the contrast between Jewish and Democratic components of Israel’s unwritten constitution. The Proposed Basic Law: Entry, Immigration and Status in Israel, popularly known as the Immigration Basic Law, is part of a series of steps intended to shift the balance heavily towards the Jewish side of the equation, overriding the framework which guarantees the rights of Israel’s minority population. This new basic law, if passed will severely limit immigration rights for family members of Jews, asylum seekers and refugees and anyone who isn’t Jewish, but seeks legal immigration to Israel.

The bill originally sponsored by Religious Zionist party member and head of the Constitution, Law and Justice Committee, MK Simcha Rothman, has recently been reintroduced, and now passed the initial reading and is being reviewed by the relevant committees. This initiative hasn’t received much media attention, because of the overload of news surrounding the war, as well as the notion that the chances for this Basic law to actually pass the legislation process is low. However, it’s important to explain in advance the dangers of this law and its impact on Israeli immigration. If passed, the law and government will undoubtedly face an inevitable confrontation with the Israeli Supreme Court, which has over-ruled similar legislation as unconstitutional in the past. 

What exactly does the new bill suggest?

Stating clearly and unequivocally in its rationale that Israel is a state by and for the Jewish people, the law seeks to establish the framework and legal justification for the following laws and procedures:

• Limited immigration quotas for anyone not eligible for Aliyah to Israel based on the Law of Return.

• Categorical deny entry into Israel for citizens and residents of certain countries or geographical areas.

• Outright deny the right to judicial review and appeal of immigration decisions for anyone who is not currently a citizen or resident of Israel and isn’t eligible to make Aliyah. 

• Grant the government of Israel the right to more easily revoke Israeli citizenship or resident status.

• deport any “illegal infiltrators” and /or encourage their self-deportation by denying their right to work, reside in certain areas, have free movement within Israel, access social services or even imprison asylum seekers. 

This new Basic law establishes the superior status of itself which will supposedly allow it to override any procedures, laws, or even other previous basic laws which it comes into conflict with, unless said laws are written or amended to explicitly state that they override this law. Nor will this law be altered by anything other than a supermajority of Knesset members. 

Immediate implications on Israeli immigration 

While discussion of the law focuses on the Israeli legislature finally working up the nerve to get rid of refugees – and we use the term advisedly, as any asylum seekers prima facie not fitting refugee criteria are swiftly deported from Israel – implemented as it currently stands, the law can and probably will affect the lives of numerous non-Jewish residents of Israel.

While some see this proposed Basic Law as an answer to Israel’s “infiltrator problem”, the law also will likely be used to deny legal recourse to foreign spouses of Israelis, great grandchildren of Jews, non-Jewish parents of Israeli citizens, foreign workers or caretakers whose employers wish to extend their contracts, children and grandchildren of Righteous among Nations, appeals against denial of various visa requests and any other gentile seeking to find a home in Israel on a basis other than the Law of Return.

Moreover, the threat of revoking citizenship and residence in Israel can and has been used as a tool for silencing political dissent among the Israeli Arab population. This new proposed Basic Law will make this process easier to implement by the Minister of Interior. 

Relevant legal background: Aliyah according to the law of return and other immigration 

Israel’s immigration policy since the foundation of the state in 1948 has prioritized Jewish immigration to Israel, since Israel is the homeland of the Jewish people. The Law of Return was among the first laws enacted in 1950l only 2 years after the establishment of the state of Israel. However, most every other type of status in Israel for those not eligible for Aliyah was left to the discretion of the Minister of Interior, governed by ministry procedures which can be arbitrarily and suddenly changed – for instance, denying status in Israel to adult grandchildren of Righteous Among Nations or introducing a requirement of residence in Israel for Olim, both of which overturned decades of status quo overnight.

Israel’s Supreme Court has used “judicial activism” over the past four decades and pushed to develop the immigration system in areas such as Aliyah after conversion to Judaism, proper legal measures towards asylum seekers, in line with the fact that Israel is a signatory of the international convention on refugees, immigration rights of non-Jewish family members and more.

The role of the judicial system in shaping immigration policy

In particular, the court decided to treat Israel’s declaration of independence as a legally relevant document enumerating the foundational principles in light of which legislation must be interpreted and, if necessary, amended. Furthermore, in the mid 90’s the Supreme Court also elevated the Basic Laws from a set of vaguely idealistic pabulum to a constitutional position, with the ability to outright nullify laws which infringe upon human dignity and liberty, or the right to family life.

For instance, Israel does not have civil marriage. All acts of matrimony recognized by the state must be conducted by a licensed representative of an official religious denomination – all of which have agreed to conduct marriage ceremonies only between members of the same religion, of different genders, and subject to religious law (such as marriage between a Cohen and a divorcee). 

Couples of different religions can get married abroad and have their marriage be recognized in Israel only as a result of judicial activism, numerous rulings stating that unless the state outright writes into law that it refuses to recognize certain categories of foreign documents, valid marriage certificates must be accepted, even if the ceremony could not have taken place in Israel.

Israel’s infamous “infiltrator problem” is a major source of tension between the executive and judicial branches in the past 20 years. On the one hand is the Ministry of Interior’s stubborn refusal to officially recognize hardly any applicants as refugees. On the other is the courts’ insistence that due to the basic laws and various international conventions Israel has signed back in the days when no one thought so many non-Jews would seek refuge there, non-refoulement is still in effect until explicitly stated otherwise by law. The court ruled that the government cannot unilaterally expel persecuted people back to countries where they may be imprisoned, tortured, and executed.

However, the authority that the Supreme court took for itself, even using the term Judicial revolution by Chief Supreme Justice Ahron Barak, has brought upon the Judiciary much criticism. Nowadays and for the past several years, with a right-wing coalition in control, we are witnessing a counter revolution and inevitable clash between the branches of the State of Israel. 

The law in political and historical context  

The bill’s sponsor connects its reintroduction to the 7th of October, 2023 massacre, and the “importance of maintaining Israel’s sovereignty and security”. How exactly does reneging on common obligations towards the persecuted peoples of the world and setting quotas immigration aid Israel? Also, in reality the number of asylum seekers in Israel is actually the lowest it’s been for more than a decade. This proposed basic law is actually part of the religious takeover of Israeli institutions and denial of authority of the judicial system, infringing on the rights of minorities and anyone who isn’t Jewish seeking immigration. These include for example the Basic Law: Israel as the Nation-State of the Jewish People, limitations on the courts’ ability to utilized the reasonableness standard, and other elements of the so called “judicial reform” initiative which started in 2023, was put on pause when the war broke out, but now apparently is back on the Knesset agenda. 

For nearly two decades, the executive would complain about the courts assuming undue authority to resolve immigration and personal status matters without deigning to actually resolve the issue by passing legislation in the Knesset. Possibly, because any legislation would change the status que and also because finding mutual ground for agreement in the coalition governments was not achievable. 

That changed with the arrival of Israel’s most uniform right-wing government to date, which is led by Prime Minister Netanyahu, but often reflects more extreme views, including in this proposed Baisc Law that aims to fundamentally change immigration policy to Israel. 

The purpose of the proposed Basic Law

The proposed Immigration Basic Law might have a two-fold intent - both to enshrine extremist positions as the law of the land if accepted unchallenged, but also to provide further justification for the attack on the system of checks and balances, if the laws are in fact declared unconstitutional by the Supreme Court. 

This new Basic Law should concern even Jewish Israelis and Zionists abroad. The definition of “eligible for Aliyah” can and has been gradually narrowed, with the eligibility of Jews from conservative and reform denominations, as well as messianic Jews or the grandchildren of Jews being questioned by supporters of a purely orthodox Jewish state. Obviously, once citizenship can be easily revoked for political protest, the revocations won’t be limited to just Israel’s Arab minority. 

Last but not least is the worrisome idea of the law being supreme over all other Basic laws and unamendable except by a supermajority of Knesset members. This especially doesn’t have any legal justification, since if passed it will be with a regular majority vote.

Throughout its history, Israel has struggled to balance its identity as both Jewish and democratic. Unfortunately, this law is a declaration of an extremist vision of an Israel which belongs exclusively to Jews, undermining the state’s democratic foundations and universal human rights principles. This proposed law also conflicts with Biblical principles concerning fair and just treatment of foreigners. The law risks isolating Israel internationally, eroding minority rights, and setting a troubling precedent for the future of justice and equality. 

The international community and all those who care for Israel’s democracy must speak out. One of the important lessons from Jewish history is that no people should live as strangers without rights. This proposed Basic law on Immigration breaches the rights the strangers in this land, as well as Israel’s own citizens who seek family reunification with non-Jewish family members.

This article was drafted with the help of Sasha Kishko.