Managing migration, reprioritizing national citizenship: Undocumented migrant workers' children and policy reforms in Israel

Theoretical Inquiries in Law

Volumn 8, Issue 2, 2007, Pages

  Kemp, Adriana ^a  

^a TEL AVIV UNIVERSITY   (Israel)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 34547271782     PISSN: None     EISSN: 15653404     Source Type: Journal    
DOI: 10.2202/1565-3404.1164     Document Type: Review

References (106)

1. Yossi Yehoshua, Thai Makes IDF History, YNETNEWS, May 4, 2006.
2. Relly Sa'ar, New Legal Status for Foreign Workers ' Kids Splits Students, HA'ARETZ, June 28, 2005.
3. Adriana Kemp & Rebeca Raijman, "Tel Aviv Is Not Foreign to You"; Urban Incorporation Policy on Labor Migrants in Israel, 38 INT'L MIGRATION REV. 1 (2004).
4. Law of Return, 5710-1950, 4 LSI 114 (1949-50) (Isr.).
5. For a discussion on the labor migration system in Israel, see Zeev Rosenhek, Migration Regimes, Intra-State Conflicts and the Politics of Exclusion and Inclusion: Migrant Workers in the Israeli Welfare State, 47 SOC. PROBS. 49 (2000);
6. Adriana Kemp, Labor Migration and Racialisation: Labor Market Mechanisms and Labor Migration Control Policies in Israel, 10 SOC. IDENTITIES 267 (2004).
7. For a similar argument in the context of the U.S. and the post-9/11 policies in Canada and Britain, see Alexandra Dobrowolsky, (In)security and Citizenship: Security, Im/migration and Shrinking Citizenship Regimes, 8 THEORETICAL INQUIRIES L. 629 (2007).
8. William R. Brubaker, Introduction to IMMIGRATION AND THE POLITICS OF CITIZENSHIP IN EUROPE AND NORTH AMERICA 1 (William R. Brubaker ed., 1989);
9. FROM ALIENS TO CITIZENS: REDEFINING THE STATUS OF IMMIGRANTS IN EUROPE (Rainer Bauböck ed., 1994);
10. SASKIA SASSEN, LOSING CONTROL: SOVEREIGNTY IN AN AGE OF GLOBALIZATION (1996);
11. CHRISTIAN JOPPKE, IMMIGRATION AND THE NATION STATE: THE UNITED STATES, GERMANY AND GREAT BRITAIN (1999).
12. Brubaker, supra note 7, at 5.
13. CHALLENGE TO THE NATION STATE: IMMIGRATION IN WESTERN EUROPE AND THE UNITED STATES (Christian Joppke ed., 1998);
14. Virginie Guiraudon, European Courts and Foreigners' Rights: A Comparative Study of Norms Diffusion, 34 INT'L MIGRATION REV. 1088 (2000).
15. Linda Bosniak, Citizenship Denationalized, 7 IND. J. GLOBAL LEGAL STUD. 447 (2000).
16. TOMAS HAMMAR, DEMOCRACY IN THE NATION-STATE: ALIENS, DENIZENS AND CITIZENS IN A WORLD OF INTERNATIONAL MIGRATION (1990);
17. YASEMIN SOYSAL, LIMITS OF CITIZENSHIP: MIGRANTS AND POSTNATIONAL MEMBERSHIP IN EUROPE (1994);
18. FROM ALIENS TO CITIZENS: REDEFINING THE STATUS OF IMMIGRANTS IN EUROPE, supra note 7;
19. DAVID JACOBSON, RIGHTS ACROSS BORDERS: IMMIGRATION AND THE DECLINE OF CITIZENSHIP (1996);
20. STEPHEN CASTLES, ETHNICITY AND GLOBALIZATION (2000);
21. DAVID HELD, DEMOCRACY AND THE GLOBAL ORDER (1995).
22. SOYSAL, supra note 11, at 3.
23. Id.
24. For a summary of the critique, see CHALLENGE TO THE NATION STATE: IMMIGRATION IN WESTERN EUROPE AND THE UNITED STATES, supra note 9;
25. Bosniak, supra note 10;
26. Miriam Feldblum, Reconfiguring Citizenship in Western Europe, in CHALLENGE TO THE NATION STATE: IMMIGRATION IN WESTERN EUROPE AND THE UNITED STATES, supra note 9, at 231.
27. FROM MIGRANTS TO CITIZENS: MEMBERSHIP IN A CHANGING WORLD (Thomas Alexander Aleinikoff & Douglas Klusmeyer eds., 2000) [hereinafter FROM MIGRANTS TO CITIZENS].
28. Feldblum, supra note 14.
29. Marco Martiniello, Citizenship of the European Union. A Critical View, in FROM ALIENS TO CITIZENS: REDEFINING THE STATUS OF IMMIGRANTS IN EUROPE, supra note 7, at 29.
30. Rey Koslowski, European Union Migration Regimes, Established and Emergent, in CHALLENGE TO THE NATION STATE: IMMIGRATION IN WESTERN EUROPE AND THE UNITED STATES, supra note 9, at 153.
31. TOWARD ASSIMILATION AND CITIZENSHIP: IMMIGRANTS IN LIBERAL NATION-STATES 1 (Christian Joppke & Ewa Morawska eds., 2003).
32. Joppke defines "de-ethnicization" as "the process of facilitating the access to citizenship, either through opening it at the margins in terms of liberalized naturalization procedures, or through adding jus soli elements to the modern main road of birth attributed citizenship jus sanguinis." Christian Joppke, Citizenship Between De-and Re-Ethnicization, in MIGRATION, CITIZENSHIP, ETHNOS 63, 69 (Y. Michal Bodeman & Gökće Yurdakul eds., 2006).
33. Id. at 64.
34. Brubaker, supra note 7.
35. Joppke, supra note 20, at 65.
36. "Returning ethnic migration" is distinguished by two complementary features. First, the immigrants feel an a-priori affinity with the destination society; as such, they are not new or strangers but, rather, an intrinsic part of the etnie. Second, the receiving society also perceives the immigration as a "homecoming," and receiving institutions thus accord the newly-arrived immediate and unconditional acceptance. See DIASPORAS AND ETHNIC MIGRANTS: GERMANY, ISRAEL, AND POST-SOVIET SUCCESSOR STATES IN COMPARATIVE PERSPECTIVE 7 (Rainer Munz & Rainer Obliger eds., 2003). As mentioned, the 1950 Law of Return is the cornerstone of the Israeli returning ethnic migration regime. Based on a jus sanguinis principle, the Law grants every Jew the automatic right to immigrate to Israel and become a citizen of the state. Although according to halakha (Jewish Law), the status of Jew is acquired only through the maternal line or by religious conversion, the 1970 amendment to the Law grants the right of return also to "a child and a grandchild of a Jew, the spouse 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 religion." Law of Return (Amendment No. 2), 5730-1970, 24 LSI 28, § 4B (1969-70).
37. According to MAJID AL-HAJ & ELAZAR LESHEM, IMMIGRANTS FROM THE FORMER SOVIET UNION: TEN YEARS LATER. A RESEARCH REPORT (2000) (Hebrew), during the first half of the 1990s, non-Jewish immigrants constituted about 20% of all immigrants from the FSU, while between 1995-1999, the proportion of non-Jews rose to 41.3%.
38. Though they define themselves as "Beta Israel," like other Ethiopian Jews, the Falash Mura are descendents of Jews converted by force to Christianity about one hundred years ago. Without documentation to establish their "Jewishness" and since they are several generations away from Jewish tradition, their immigration to Israel has become the focus of political strife within the religious and political establishments.
39. ADRIANA KEMP & REBECA RAUMAN, LABOR MIGRANTS IN ISRAEL (2003) (Hebrew).
40. Most non-Jewish immigrants from the Foreign Soviet Union enter Israel within the framework of the 1970 amendment to the Law of Return and are thereby accorded citizenship. See supra note 24. Conversely, labor migrants, documented or undocumented, are not perceived as prospective immigrants, and the channels to naturalization are de facto hermetically closed to them.
41. GERSHON SHAFIR & YOAV PELED, BEING ISRAELI: THE DYNAMICS OF MULTIPLE CITIZENSHIP (2002).
42. Yinon Cohen, From Haven to Heaven: Changing Patterns of Immigration in Israel, in CHALLENGING ETHNIC CITIZENSHIP: GERMAN AND ISRAELI PERSPECTIVES ON IMMIGRATION 36 (Daniel Levy & Yifaat Weiss eds., 2001).
43. Judith T. Shuval & Elazar Leshem, The Sociology of Migration in Israel: A Critical View, in IMMIGRATION TO ISRAEL 3 (Elazar Leshem & Judith Shuval eds., 1998).
44. For a succinct summary of the origins of the expansion of alien rights to citizenship, see Christian Joppke, The Legal-Domestic Sources of Immigrants Rights: The United States, Germany and the European Union, 34 COMP. POL. STUD. 339 (2001).
45. Joppke, supra note 20;
46. Feldblum, supra note 14.
47. David Bartram, Foreign Workers in Israel: History and Theory, 32 INT'L MIGRATION REV. 303 (1998).
48. MOSHE SEMYONOV & NOAH LEWIN- EPSTEIN, HEWERS OF WOOD AND DRAWERS OF WATER: NONOTIZEN ARABS IN THE ISRAELI LABOR MARKET (1987).
49. There are four main routes to becoming undocumented: 1. migrants who enter the country legally on a tourist visa, which forbids them to work, and become undocumented when it is no longer valid or by working without a work permit; 2. migrants who enter the country via illegal paths - with false documents or by illegally crossing the state's borders; 3. migrant workers who enter the country with a work permit but stay beyond its period of validity; and 4. migrant workers who leave their original employers to whom they are indentured through the "bondage" system and become "runaways" in the authorities' lexicon.
50. According to the Israeli Central Bureau of Statistics ("ICBS"), 75% of the undocumented labor migrants in Israel in 2004 came from the following countries: 25% from the FSU; 11% from Jordan; 8% from Romania; 5% from the Philippines; 5% from Poland; 5% from Brazil; 4% from Colombia; 4% from Turkey; and 2% from Thailand. Press Release, ICBS, 165/2005 (July 28, 2005). It is worth noting that the distribution of undocumented labor migrants per continent of origin had remained largely identical since 1995. Press Release, ICBS (Oct. 30, 2001).
51. See CASTLES, supra note 11, at 63-78.
52. For a discussion of the labor migration system in Israel, see Rosenhek, supra note 5,
53. and Kemp, supra note 5 .
54. Kemp & Raijman, supra note 3.
55. STEPHEN CASTLES & MARK J. MILLER, THE AGE OF MIGRATION: INTERNATIONAL POPULATION MOVEMENTS IN THE MODERN WORLD 24 (1993).
56. Israel Immigration Administration, http://www.hagira.gov.il/ ImmigrationCMS (last visited May 1, 2006). The most recent figures provided by the Immigration Administration website indicate that since September 2002, 153, 000 migrant workers have either been "removed" or have "left voluntarily."
57. On the violations since the creation of the Immigration Police, see Ruth Sinai, NGOs Accuse Immigration Police of Brutality, Human Rights Violations, HA'ARETZ, May 20, 2003;
58. Sara Leibovich-Dar, I Came with Nothing, I Leave with Nothing, HA'ARETZ, May 9, 2003;
59. Joseph Algazy, Fourteen Days Without Seeing a Judge, Sometimes More, HA'ARETZ, Aug. 7, 2003;
60. Nurit Wurgaft, Life in the Shadow of Deportation, HA'ARETZ, Sept. 29, 2003.
61. Economic Policy for 2003: Budget Composition and Structural Changes (Government Decision July 30, 2002); Ministry of Finance - Spokesperson Department, http://www.mof.gov.il/dover (last visited Jan. 1, 2007).
62. KITTY CALAVITA, INSIDE THE STATE: THE BRACERO PROGRAM, IMMIGRATION AND THE INS 21 (1992).
63. Ruth Sinai, Immigration Police Has Started to Arrest Migrant Workers Who Are Not Leaving Voluntarily, HA'ARETZ, Oct. 15, 2003, at A10.
64. Nurit Wurgaft, Here There Is No Mercy, HA'ARETZ, Aug. 6, 2003, at B3;
65. Michele Chabin, Who'll Clean the House? New Crackdown on Foreign Workers Is Talk -and Worry - of Israel's Privileged Class, JEWISH WEEK, Oct. 10, 2003.
66. From the mid-1990s, the Ministry of the Interior's naturalization policy for non-Jewish immigrants became particularly stringent. As a result, and pursuant to decisions made by the Minister of the Interior, strict limitations were imposed on non-Jewish immigrants who apply for legal status, relegating them to undefined status for unlimited periods of time and subjecting them to the threat of deportation. Members of this group include: the non-Jewish partners of Israeli citizens whose marriages were conducted via consular authorities; immigrants who have been converted to Judaism in Israel by other than the state-sanctioned, orthodox institutions; the great-grandchildren of recognized immigrants, who are not entitled to citizenship under the 1970 reform to the Law of Return; and the non-Jewish parents of recognized immigrants. These constitute a new social category of immigrants, most from the FSU, who have increased in numbers in the last decade, with scant attention paid by either the public or the academia to the implications of the phenomenon. For a thorough description of the phenomenon, see Oded Feller, ACRI, The Ministry: Violations of Human Rights by the Ministry of the Interior's Population Registry (2004), http://www.acri.org.il (Hebrew).
67. Other proposed reforms include: according legal residence status to the parents of IDF soldiers who are not entitled to citizenship under the Law of Return; according work and residence permits for two years to foreign citizens who were wounded in terror attacks and to their families; and according permanent residence to non-citizen partners of Israeli citizens, including same-sex partners. Only the reforms regarding the status of IDF soldiers and of their parents have been implemented; the other reforms have been blocked chiefly by the bureaucracy in the Ministry of the Interior, especially the Division of Population Registry. According to figures from the IDF, more than 51% of the immigrants recently recruited into the Army are "non-Jews" according to Jewish law (halakha), with the total number of non-Jewish soldiers in 2003 amounting to eight thousand. YEDIOT AHARONOT, May 27, 2003, at 21.
68. Meeting of the Knesset Committee on Foreign Workers, Knesset Protocols (May 16, 2000) (Minister of Labor and Welfare Eli Yishai).
69. Michal Graibski & Meli Kempner-Kritz, Herzl Gedezj, "One Million Non-Jews Entered the Country in Last Decade," YEDIOT AHARONOT, Aug. 9, 2002, Weekend Supp., at 14-15, 29.
70. Government Decision No. 1289. See also Relly Sa'ar, Panel to Discuss Naturalization of Foreign Workers' Children, HA'ARETZ, Feb. 29, 2004.
71. Relly Sa'ar, Poraz Will Ask the Government to "Legalize" Hundreds of Migrant Workers' Children, HA'ARETZ, Feb. 2, 2004.
72. Adriana Kemp & Rebeca Raijman, Non-State Actors and the New Politics of Labor Migration in Israel, 3 SOZIOLOGIA ISRAELIT 79 (2001) (Hebrew).
73. ANNABEL FRIEDLANDER-LIPSIK ET AL., KNESSET SPECIAL REPORT ON THE SITUATION OF MIGRANT WORKERS' CHILDREN (2003) (Hebrew).
74. There are reports of many cases in which one parent has been deported in the hope that the other parent and children will follow voluntarily. The situation is further complicated for children born to parents of different nationalities, wherein deportation results in the break-up of the family. See Nurit Wurgaft, Once Again the Deportation Police Causes the Abandonment of a Baby, HA'ARETZ, Feb. 24, 2003;
75. Wurgaft, supra note 47;
76. Ina Friedman, Israel: Mean Streets, JERUSALEM REP., May 21, 2003.
77. The politics over the numbers was far from over and done with. At a meeting held on December 7, 2004, by the Knesset Committee on Foreign Workers, the Head of the Population Registry at the Ministry of the Interior, Sassi Katzir, pointed to new numbers. Drawing on Education Ministry and Social Security records, he concluded that there were at least some three thousand children of foreign citizens aged six to eighteen. These figures would not include children below the age of six, most of whom are not in the state schooling system, and have been strongly rejected by representatives of the Tel Aviv Municipality. Knesset Protocols 13-15 (Dec. 7, 2004). See also Ruth Sinai, Children of the Shadows, HA'ARETZ, Mar. 27, 2005.
78. Relly Sa'ar, 650 Foreign Workers ' Children Expected to Get Civic Status This Week, HA'ARETZ, Nov. 28, 2004, at A1.
79. Relly Sa'ar, Poraz's Proposal: 800 Foreign Workers' Children To Be Deported, 600 Will Stay, HA'ARETZ, Oct. 17, 2004, at A1.
80. Relly Sa'ar, Panel to Discuss Naturalization of Foreign Workers' Children, HA'ARETZ, Feb. 29, 2004.
81. See the debate within the Knesset Committee on Foreign Workers on what qualifies as "humanitarian." Knesset Protocols 4-5 (Dec. 7, 2004).
82. Sa'ar, supra note 58.
83. Sa'ar, supra note 59, at A1, A7.
84. Citizenship and Entry into Israel (Temporary Order) Law, 2003, S.H. 544. For a detailed critical analysis of the political significance of the Citizenship and Entry into Israel (Temporary Order) Law, see Yoav Peled, Citizenship Betrayed: Israel's Emerging Immigration and Citizenship Regime, 8 THEORETICAL INQUIRIES L. 603 (2007);
85. for the views of proponents of the Law, see Amnon Rubinstein & Liav Orgad, Security of the State, Jewish Majority and Human Rights: The Case of Marriage Migration, 48 HA-PRAKLIT 315 (2006) (Hebrew).
86. For views opposing the Law, see Guy Davidov et al., State or Family? The Nationality and Entry into Israel Law (Temporary Order) 2003, 8 MISHPAT U-MIMSHAL 643 (2005) (Hebrew).
87. Shahar Ilan, Government: Extend Citizenship Law by Two Years and Expand It to Cover "Risk States," HA'ARETZ, Nov. 30, 2006.
88. See Yuval Yoad, Supreme Court to Government: The Reform that Prevents Citizenship from Palestinians Through Family Reunification Is Problematic and Needs Thorough Revision, HA'ARETZ, Dec. 17, 2004, at A7. Since 2003, the temporary order has been extended three times and brought to the High Court of Justice, which, on May 14th, 2006, upheld it by a vote of six to five. The current temporary order is valid until January 16, 2007, and must either be extended or replaced by that date. A permanent bill is currently being drafted.
89. ADRIANA KEMP & REBECA RAIJMAN, FOREIGNERS AND WORKERS: THE POLITICAL ECONOMY OF LABOR MIGRATION IN ISRAEL (forthcoming 2007) (Hebrew).
90. Poraz also ordered the formalization of the legal status of four children of foreign workers who had reached adulthood and whose petition had been filed eighteen months earlier by the Association for Civil Rights in Israel and was still being deliberated by the Tel Aviv District Court.
91. Relly Sa'ar, Mazooz Vetoed Poraz Decision to Grant Civic Status to Labor Migrants' Children, HA'ARETZ, Dec. 6, 2004, at A10.
92. Relly Sa'ar, Poraz's Grand Exit: Residency for Foreigners' Kids, HA'ARETZ, Dec. 5, 2004.
93. The main objections within the ministerial panel to Poraz's proposal were raised by ministers from the Likkud Party, the largest party in the government coalition, from which Poraz had just resigned. However, in raising their objections, these ministers already were bearing in mind their future coalition partners from ultra-orthodox religious parties.
94. Government Decision No. 3807.
95. Relly Sa'ar, Prime Minister Vowed to Help Foreign Workers' Kids, but the State Wants to Deport Them, HA'ARETZ, May 7, 2006, at A1.
96. Since one of the preconditions for migrant workers and their children to receive permanent residence and citizenship is that the parents originally entered Israel legally, it is not clear yet how many foreign workers and their children will be eligible for legal status and what will be the fate of those children born in Israel who do not meet the criteria. Following a December 2005 petition brought by various NGOs, the High Court issued an interim injunction banning the deportation of children of foreign workers and permitting foreign workers who entered the country illegally to be covered by the interim injunction if they file applications for citizenship by the end of March 2006. In the meantime, the new Minister of the Interior, Ronnie Bar-On, has lowered the minimum age for naturalization eligibility to six years of age for children who are currently studying in the Israeli education system.
97. The Head of the Population Registry, Sassi Katzir, has already presented a deportation plan for foreign workers and their children who do not meet the Decision 3807 criteria. Under this plan, immigration police will be responsible for arresting those who refuse to leave the country willingly; the State Treasury will pay for the airline tickets of those who refuse to leave voluntarily, and the Ministry of the Interior will be responsible for issuing deportation orders. See Sa'ar, supra note 73, at A1, A6.
98. Advisory Committee for the Examination of an Immigration Policy for the State of Israel, Interim Report (Feb. 2, 2006) (unpublished report, on file with author) (Hebrew).
99. On February 7th, 2006, the Committee submitted provisory policy recommendations regarding mainly labor migrants, refugees, and asylum seekers and citizenship acquisition via family reunification and marriage, in general, and regarding citizens from "enemy countries" relating to Palestinians in particular. See supra note 75.
100. The two primary examples are the proposals to extend the Citizenship Temporary Order and turn it into a permanent bill. See supra note 66;
101. see also Illegal Residents (Entry into Israel Law - Amendment No. 19) Bill (July 12, 2006), available at http://www.knesset.gov.il/Laws/ Data/BillGoverment/254/254.pdf.
102. See Report of the Inter-ministerial Committee on Foreign Workers and the Establishment of the Immigration Authority, submitted to the Minister of Labor and Welfare, the Deputy Prime Minister and the Minister of Finance (July 2002) (known as the "Rachlewsky Report").
103. Aristide A. Zolberg, Ethnic Republics? Citizenship in Israel and Japan: Introduction, in FROM MIGRANTS TO CITIZENS, supra note 15, at 383.
104. Brubaker, supra note 7.
105. I borrow this concept from Ayelet Shachar, Citizenship and Membership in the Israeli Polity, in FROM MIGRANTS TO CITIZENS, supra note 15, at 386.
106. FROM MIGRANTS TO CITIZENS, supra note 15.