Law of Return

This article is about the right of return in Israel. For the equivalent laws in other countries, see Right of return.

The Law of Return (Template:Lang-he-n, ḥok ha-shvūt) is Israeli legislation, passed on 5 July 1950, that gives Jews the right of return and the right to live in Israel and to gain Israeli citizenship. In 1970, the right of entry and settlement was extended to people with one Jewish grandparent or people married to a Jew, although they were not considered Jewish under Jewish law.

Law

The Law of Return 5710-1950 was enacted by the Knesset, Israel's Parliament, on July 5, 1950. The Law declares the right of Jews to come to Israel: "Every Jew has the right to come to this country as an oleh." Follow-up legislation on immigration matters was contained in the Nationality Law of 1952. The Law of Return was modified in 1970 to extend the right of return to non-Jews with a Jewish grandparent, and their spouses.

The law since 1970 applies to those born Jews (having a Jewish mother or maternal grandmother), those with Jewish ancestry (having a Jewish father or grandfather) and converts to Judaism (Orthodox, Reform, or Conservative denominations—not secular—though Reform and Conservative conversions must take place outside the state, similar to civil marriages).

In the Law of Return, the State of Israel put into practice the Zionist movement's "credo" which called for the establishment of Israel as a Jewish state.

Those who immigrate to Israel under the Law of Return are immediately entitled to gain citizenship in Israel. However, differences of opinion have arisen as to whether a person who claims citizenship under the Law of Return should be automatically registered as "Jewish" for census purposes. According to the halakhic definition, a person is Jewish if his or her mother is Jewish, or if he or she converts to Judaism. Orthodox Jews do not recognize conversions performed by Reform or Conservative Judaism. However, the Law provides that any Jew regardless of affiliation may migrate to Israel and claim citizenship.

Originally, the Law of Return was restricted to Jews only. A 1970 amendment, however, stated that, "The rights of a Jew under this Law and the rights of an oleh under the Nationality Law... are also vested in a child and a grandchild of a Jew, the spouse of a Jew, the spouse of a child of a Jew and the spouse of a grandchild of a Jew."

A Jew can be excluded from Israeli citizenship under the Law of Return if he or she is considered to be dangerous to the welfare of the State of Israel. Jews who have a past that involves a serious crime, such as murder, or who are fugitives in another country for any felony (unless they are persecution victims) can be denied citizenship. This clause has been used to exclude applicants a handful of times since Israel's establishment. Notable cases include Robert Soblen, an American Communist who spied for the Soviet Union and fled to Israel in an attempt to escape a life sentence, Meyer Lansky, an American mobster who was initially granted entry to Israel but was expelled two years later, and Victor Vancier, an American Kahanist activist convicted of involvement in a series of bombings.

The Jewish Ancestry Amendment

The 1970 amendment was induced by the debate on "Who is a Jew" (until then the law did not refer to the question). There are several explanations for the decision to be so inclusive. One is that as the Nuremberg Laws did not use a halakhic definition in its definition of "Who is a Jew", the Law of Return definition for citizenship eligibility is not halakhic, either.

Furthermore, the clause in Amendment number 2, 4a, states,

"The rights of a Jew under this Law and the rights of an oleh under the Nationality Law, 5712-1952***, as well as the rights of an oleh under any other enactment, are also vested in a child and a grandchild of a Jew, the spouse of a Jew, the spouse of a child of a Jew and the spouse of a grandchild of a Jew, except for a person who has been a Jew and has voluntarily changed his/her religion."

Therefore a Jew who has voluntarily changed his/her religion is not considered a Jew, and is not eligible to immigrate under the law of return, but would have been persecuted as a Jew under the Nuremberg laws, and is still a Jew according to Halakha.

Another explanation is the 1968 wave of immigration from Poland, following an antisemitic campaign by the government. These immigrants were very assimilated and had many non-Jewish family members.

The Israeli Rabbinate is a purely Orthodox body that is far more strict in defining 'who is a Jew'. This creates a situation in which thousands of immigrants who are eligible for citizenship under the Law of Return's criteria, are ineligible for Jewish marriage by the Israeli Rabbinate.

A second explanation is that in order to increase immigration levels so as to offset the "demographic threat" posed by the growth of the Arab population, the law expanded the base group of those eligible to immigrate to Israel.

A third explanation promoted by religious Jews is that the overwhelmingly secular leadership in Israel sought to undermine the influence of religious elements in Israeli politics and society by allowing more secular Jews and their non-Jewish spouses to immigrate.

Followers of Messianic Judaism

The Supreme Court of Israel ruled in 1989 that Messianic Judaism constituted another religion, and that people who had become Messianic Jews were not therefore eligible for Aliyah under the law.

On April 16, 2008, the Supreme Court ruled in a case brought by a number of people with Jewish fathers and grandfathers whose applications for citizenship had been rejected on the grounds that they were Messianic Jews. The argument was made by the applicants that they had never been Jews according to halakha, and were not therefore excluded by the conversion clause. They also immigrate as a non-Jewish relative of a Jew and not as a Jew. This argument was upheld in the ruling, and the government agreed to reprocess their applications. Despite this, Messianic Jews are considered to be eligible for the law if they can claim Jewish ancestry (having a Jewish father or grandfather).

Effect

As of 2008, 2,734,245 Jews have immigrated to Israel since 1950. Hundreds of thousands of non-Jews have received Israeli citizenship, as the law confers citizenship to all offspring of a Jew (including grandchildren).

Controversy

Claims of discrimination in relation to Palestinian refugees

Critics claim that the Law of Return runs counter to the claims of a democratic state.

Palestinians and advocates for Palestinian refugee rights criticize the Law of Return, which they compare with the Palestinian claim to a Palestinian right of return. These critics consider the Law, as contrasted against the denial of the right of return, as offensive and as institutionalized ethnic discrimination. Israeli counter-arguments are two-fold. First, they argue, Israel is the nation-state of the Jewish people, just like the French state is the state of the French people. Because Jews have long lived in the diaspora, they are allowed to return to Israel. Palestinians, according to this argument, should return to the nation-state of the Palestinian people, which is Palestine. The second argument deals with the displacement of Palestinians during Israel's War of Independence and the Six Day War. Israel argues that since Arab and other Muslim countries expelled 800,000 Jews, a population exchange took place, just like many population exchanges taking place in that decade such as in the post WWII European states and between India and Pakistan. Any responsibility for the Palestinian refugees, according to this argument, is to be borne by the Arab states which attacked Israel and subsequently received the Palestinian refugees.

Law of Return as it relates to same-sex relationships

On June 10, 2011, the Law of Return was tested when a gay male couple, one Jewish and one Catholic made Aliyah to Israel. This couple was the first same-sex, different religion married couple to request joint Aliyah Status, although opposite sex married couples of different religions receive joint Aliyah as a matter of course. The Jewish man quickly received citizenship but the decision of citizenship for his husband was delayed by the Ministry of the Interior despite the clause in the law saying the spouse of the Jewish returnee must also be granted citizenship. On August 10, 2011, the Ministry of the Interior granted citizenship to the non-Jewish husband as required by The Law of Return.

In 2014, Interior Minister Gidon Sa'ar officially decided that, according to the Law of Return, Jews in same-sex relationships married abroad wishing to immigrate to Israel can do so - even if their partners are not Jewish - and both they and their partners will receive Israeli citizenship.

Arguments in support of the Law of Return

Supporters argue that:

1. The Law of Return is not the only way of acquiring citizenship. For example, non-Jews can become citizens by naturalization, residence, or marrying an Israeli citizen. Naturalization, for instance, is available under certain circumstances for the non-Jewish parents of a citizen who has completed his or her army service.
2. The right granted to Jews along with their relatives under the Law does not necessarily or automatically discriminate against non-Jews, but is a form of "positive" discrimination. Israel has residency and citizenship laws for non-Jews that are equivalent to those in other liberal democracies. Committee for Accuracy in Middle East Reporting in America (CAMERA) argues that the Law of Return is consistent with Convention on the Elimination of All Forms of Racial Discrimination Article I(3), which CAMERA says allows for preferential immigration treatment of some groups without discrimination against a particular group. Thus, CAMERA and others argue that other countries, including Germany, provide immigration privileges to individuals with ethnic ties to these countries (See Right of return and Repatriation laws).
3. While the purpose of the Law of Return is perhaps to keep Israel predominantly Jewish, an argument states that a world where Jews have been persecuted, the concept of maintaining a Jewish state is necessary for the survival of the Jewish people generally and to provide a safe haven for Jewish refugees in specific cases. CAMERA argues the Law of Return is justified under the Convention on the Elimination of All Forms of Racial Discrimination Article I(4), which CAMERA argues allows for affirmative action, because of the discrimination Jews faced during the Holocaust.

   

   A stamp in a passport issuing holder Israeli citizenship based on Law of Return

4. Benjamin Pogrund, director of Yakar's Center for Social Concern in Jerusalem and member of the Israeli delegation to the United Nations World Conference against Racism, calls the law "unfair" from the Palestinian refugees' point of view, but sees the unfairness as having happened in other places too. Pogrund compares the flight/expulsion of Palestinians (both in 1948 and 1967) to Germany, Poland, the Czech Republic, India and Pakistan.

Debate in Israel

In Israel, a debate continues over the Law of Return. Some people wish to retain it as it stands, others want to modify it, and some to abolish the Law completely. Those who would abolish the Law object to it because it grants Jews rights that members of other groups governed by the State of Israel do not have. Others argue that the law permits the entry of too many non-Jews, thereby undermining its purpose.

In September 2007, the discovery of a violent Neo-Nazi cell (Patrol 35) in Petah Tikva, made up of teenage immigrants from the former Soviet Union, led to renewed calls amongst politicians to amend the Law of Return. Effi Eitam of the National Religious Party and the National Union, which represent the religious Zionist movement and have previously attempted to advance bills to amend the Law of Return, stated that Israel has become "a haven for people who hate Israel, hate Jews, and exploit the Law of Return to act on this hatred." On the other end of the political spectrum, MK Ahmed Tibi of United Arab List and Ta'al criticized the system's double-standard, stating that, "people immigrated to Israel and received automatic citizenship under the Law of Return, while citizens of Nazareth and Tayibe are not allowed to visit their own relatives merely due to the fact that they are Arabs."

37 percent of Israelis polled said that deeper background checks on new immigrants would amount to racism against Jews from Russian speaking countries.

Applicability

Amongst those who are in favor of retaining the Law, controversy exists over its wording. The Law's definition of a "Jew" and "Jewish people" are subject to debate. Israeli and Diaspora Jews differ with each other as groups and among themselves as to what this definition should be for the purposes of the Law of Return. Additionally, there is a lively debate over the meaning of the terms "Jewish State" and "State of the Jews".

Discussion around the Law and its wording constantly reappears on private and public agendas in Israel and in the Diaspora. The Knesset has repeatedly debated proposals to amend the Law of Return, and it has indeed been amended a number of times over the years. These modifications reflect the changes that have taken place in Israeli society, the shifts that have taken place in political dialogue both inside Israel itself, and the political discourse between Israel and the Diaspora. The present law constitutes an expression of permanent trends as well as of the Israeli legislative system's ability to adapt itself to changing circumstances.

It is not only the Knesset, however, which has been repeatedly obliged to directly or indirectly address these issues. Over the years, many of Israel's interior ministers have examined the issue of the Law of Return and wavered as to how to apply it. The judiciary has also been called upon to express an opinion on matters relating to the Law. This burning and recurrent question in the country's political dialogue not only reveals but also exacerbates differences of opinion between Israelis.

One central issue is who has the authority over determining the validity of conversions to Judaism for purposes of immigration and citizenship. For historical reasons, the Chief Rabbinate of Israel, under the Israeli Ministry of Religious Affairs, made this determination, but this arrangement is in question. This practice has met opposition among non-Orthodox religious leaders both within Israel and in the diaspora. Several attempts have been made to resolve the issue, the most recent being the Ne'eman Commission, but an impasse persists.

On March 31, 2005, the Israeli Supreme Court ruled 7-4 that all conversions performed outside of Israel would be recognized by the authorities under the Law of Return, notwithstanding the Ne'eman Commission's view that a single body should determine eligibility for immigration. The court had already ruled in 1989 that conversions performed outside of Israel were valid for the Law of Return (regardless of whether they were Orthodox, Conservative, or Reform). The 2005 ruling extended this, finding that overseas conversions were still valid even if the individuals did the preparatory work for the conversions while residing in Israel.

Orthodox religious leaders objected vehemently to this ruling, arguing that it would lead to fraudulent immigration applications.

See also

• Basic Laws of Israel
• Prevention of Infiltration Law
• Citizenship and Entry into Israel Law
• Israeli identity card
• Israeli passport
• Politics of Israel
• Oswald Rufeisen (Brother Daniel)

External links

• The Law of Return - The text of the law and its various amendments
• Democratic Norms, Diasporas, and Israel’s Law of Return by Alexander Yakobson and Amnon Rubinstein
• Archived 2005-11-27 at the Wayback Machine by Amnon Rubenstein, Ha'aretz