Possible Changes to the Law of Return

The Law of Return states that anybody with one Jewish grandparent can make aliyah and get Israeli citizenship, but things may be changing with Benjamin Netanyahu’s new government. There are fears that the new coalition government will make radical changes to Israel’s Law of Return and restrict immigration of persons who are not recognized as Jewish under the halacha (Jewish law). Many of these fears center around the far-right politician Itamar Ben Gvir who serves as the Minister of National Security in Netanyahu’s coalition.

The Jewish Journal interviewed David Gardner, a Los Angeles-based immigration lawyer, who recently became a member of the Israeli Bar. In addition to his U.S. legal practice, he has joined the Israeli immigration law firm Kan-Tor & Acco in Ramat Gan to work with their private clients moving to Israel and to assist with complex U.S. immigration cases. Gardner, originally from England, now splits his time between Jerusalem, Ramat Gan and Beverly Hills.

“Issues regarding Israel’s Law of Return are not new,” he explained. “The law as originally proposed was intended to allow every Jew to come to Israel as an oleh (an immigrant). Israel’s first ‘nationality law’ in 1950 gave the right for every Jew to make aliyah (to immigrate and live in Israel) as long as they have at least one Jewish grandparent. The definition of a Jew was based on the Nuremberg Laws. Later amendments extended aliyah rights to spouses and children, regardless of whether they are Jewish.“

Proposed Changes to the Law of Return

The religious parties have made a series of demands as a precondition to joining a government coalition. Some of these proposals, if passed, could even restrict the rights of non-Jewish spouses under the Law of Return.

Gardner says that current policies have allowed immigration under the Law of Return based on ties to a great-grandparent. Recent proposals from expected members of the new coalition government could eliminate this policy. More significantly, “One of the current proposed changes in Israeli law is to amend the Law of Return to eliminate the provision which permits aliyah through a grandparent.” Gardner compared this to the U.S., which has changed its derivative citizenship rules multiple times and does not provide for automatic citizenship to grandchildren of U.S. citizens. Currently Israeli citizens may claim U.S. citizenship through a grandparent but only if they can prove that the grandparent resided in the U.S. for specified periods.

Proposed Knesset Override to Supreme Court Decisions.

Gardner voiced concerns about the hurtful comments that have been made by Ben-Gvir and other Israeli politicians such as Betzalel Smotridge in the past. However, he cautioned against pre-judging the new government based on pre- and post-election rhetoric. He explained that Israeli laws are debated thoroughly through the legislative process—much like the U.S. Senate and the House of Representatives—and even then remain subject to review by the judiciary. His greater concern was that the Knesset might enact an override clause that would restrict the current authority of the Israel Supreme Court to strike down laws it considers to be unlawful or in violation of the constitutional principles of Israel’s Basic Laws.

Conversion Controversies

One of the hottest topics is potential legal changes around recognizing conversion to Judaism. Since 2005, Israel has recognized conversions that are recognized by a known Jewish community outside of Israel, regardless of whether they are Orthodox, conservative or progressive. Gardner explains that “the worst case scenario would be if there were legislative changes to the recognition of conversions performed outside of Israel. This is a very sensitive issue where Diaspora Jews have a lot at stake.”

It is important to have a consistent legal standard for the question of “who is a Jew” since the definition of being Jewish affects the definition of nationality and eligibility for residence and citizenship. Currently there is a process for recognizing conversions that involves interaction between religious authorities in the Diaspora and the Chief Rabbinate in Israel. There is a concern that a restrictive conversion policy will adversely affect non-orthodox Jews and in turn limit rights to Israeli citizenship.

Past Immigration Controversies Regarding Ethiopian Jews

In the past, the Orthodox rabbinate demonstrated flexibility and were sensitive, humane and understanding regarding the Jewish identity of the Ethiopian Jews who needed to leave their country at a time of emergency. Many had assimilated and intermarried, or lacked any documentation. Lenient halachic (Jewish legal) rulings were issued by Rav Ovadia Yosef, Israel’s former Sephardic Chief Rabbi, and Rabbi Moshe Feinstein. Both of them ruled in favor of converting the exiled Ethiopian Jewish community based on the principle of pikuach nefesh (mortal danger). It was considered a life-or-death emergency situation when “Operation Solomon” used 35 Israeli aircraft to evacuate 14,325 Jews from Ethiopia on May 24-25, 1991. Rav Ovadia ruled that the community should come to Israel first and then undergo “light conversion” to avoid any doubt regarding Jewish Identity.

Proving Jewish Identity In U.S. Immigration Cases

Gardner favorably compared the ability of Israeli government authorities to authenticate Jewish identity for purposes of immigration and asylum law to U.S. Immigration authorities. He stated that in the U.S. there is no government support to authenticate identity. “In one case, the Immigration judge was struggling with the fact that a Jew from the Ukraine had grown up without any Jewish background and lacked necessary identity documents because they were inaccessible. The judge ultimately approved the case when we showed that having a bar mitzvah had been prohibited in the former Soviet Union. In another case, involving an assimilated Jew from an Arab country, he was unsuccessful in establishing Jewish identity for purposes of asylum because of the inability to do research from the community records for fear of harm to other family members. In addition, all the markings on Jewish headstones had been erased following anti-Jewish attacks.” He believes that had the case been in Israel, the authorities would have been able to trace family records through checking with community members. He stresses that the Israeli government has always been and remains committed to assisting persons with Jewish ties in times of distress and danger. 

Ingathering of Exiles

In 2018 the Knesset adopted the “Basic Law, Israel the Nation State of the Jewish People,” which states: “The State shall be open to Jewish immigration, and the ingathering of the exiles.” “This Basic law does not define who is a Jew,” said Gardner, “and in my view, it has a constitutional effect, which would take precedence over the Law of Return and any amendments to it. I foresee that legal challenges could be made to any attempt to change the definition of a Jew under the Law of Return by asserting rights under this and other Basic laws such as the right to human dignity.” He fears that a Knesset override law restricting legal challenges to immigration laws would undermine Israel’s entire legal framework.

Ukraine

Gardner wants to clarify that Israel has accepted more than 15000 Ukrainians who are fleeing the conflict and that most of them are not Jewish. He states, however, that “any proposed changes related to the regulation of asylum, and action taken to deport persons who are undocumented or without legal status, come within the scope of Israel’s right to regulate its Borders. Israel has the right to define who is and is not given permission to work and live in the country and should not be held to a different standard than other countries which have far more restrictive immigration laws.”

Israel is a Jewish and Democratic State

Gardner, who was in Israel and voted in the recent elections, concludes that “Israel is a Democratic and a Jewish State. The best way to have an impact on Israeli law and day-to-day life, is to become a citizen and to participate in the democratic process by casting your vote in Israel.”

Marcus J Freed can be found online at www.marcusjfreed.com and on social media at @marcusjfreed