Law of Return

Israel

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The Law of Return (Hebrew: חוק השבות, ḥok ha-shvūt) is Israeli legislation, enacted in 1950, that gives Jews, those of Jewish ancestry, and their spouses the right to migrate to and settle in Israel and gain citizenship.

Law

On July 5, 1950, the Knesset, Israel's Parliament, enacted the Law of Return 5710-1950.^[1] Follow-up legislation on immigration matters was contained in the Nationality Law of 1952. These two pieces of legislation combine religion, history, nationalism, and democracy, in a way unique to Israel. Together, the legislation declares the right of Jews to come to Israel, their ancestral homeland, and to facilitate their immigration.

The law gives the right of return 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).

Purpose

The Law of Return gave a legal basis for one of the objectives of the Zionist movement—to provide a solution to the Jewish people's problem by the re-establishment of a home for the Jewish people in Eretz Yisrael, the Land of Israel. In the Law of Return, the State of Israel put into practice the Zionist movement's "credo" as pledged in Israel's Declaration of Independence and recognized by the League of Nations in 1922, when charging Britain with the duty of establishing a Jewish National Home, and by the United Nations within the Partition Plan of 1947 which provided for establishment of Israel as an independent Jewish state.

Eligibility requirements

Those who immigrate to Israel under the Law of Return are immediately entitled to citizenship. 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".

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 the Law of Return attempts to provide sanctuary as a citizen in Israel to anyone who would be persecuted under the Nuremberg Laws. 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. The Law of Return provides sanctuary to anyone covered by the definition under the Nuremberg Laws, but does not automatically presume that the person is halakhicly Jewish for the purposes of laws governing personal status.

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 religion." ^[2]

Therefore a Jew who has voluntarily changed his religion is not considered a Jew according to the law of return, but would have been persecuted as a Jew under the Nuremberg laws regardless of his change of religion, and is still a Jew according to halacha (see "Who is a Jew" - section 1.3 - Jews who have practiced another faith).

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^[3].

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 .^[4]

The demographic explanation

A second explanation is that in order to increase immigration levels so as to offset the "demographic threat" posed by the continuing presence and growth of the Palestinian population, the law expanded the base group of those eligible to immigrate to Israel.^[5]

The secular explanation

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.^[6]

Exceptions

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 the right of return, (e.g. Meyer Lansky, Victor Vancier).^[7] The Law of Return also excludes any "person who has been a Jew and has voluntarily changed his religion."

Messianic Jews

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.^[8]

On April 16, 2008, the Supreme Court of Israel 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. This argument was upheld in the ruling,^[9][10] and the government agreed to reprocess their applications.

Controversy

Critics claim that the Law of Return runs counter to the claims of a democratic state.^[11][12][13]

Palestinians and advocates for Palestinian refugee rights criticize the Law of Return, which they compare to the Palestinian claim to a right of return.^[14] These critics consider the Law, as contrasted against the denial of the right of return, as offensive and as institutionalized ethnic discrimination.^[15]

Arguments in support of the Law of Return

Defenders of the Law argue that:

1. The Law of Return is not the only one 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^[16]. The Law of Return was intended to deal with historic homelessness and persecution of Jews around the world.^[17][18]
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. It is argued that these kinds of laws are common and consistent with international law, including the Convention on the Elimination of All Forms of Racial Discrimination Article I(3) which allows for preferential immigration treatment of some groups, provided there is no discrimination against a specific group.^[19]
3. While the purpose of the Law of Return is to keep Israel predominantly Jewish, the policy that it represents is legitimate and justified. In 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. Here again, defenders cite the Convention on the Elimination of All Forms of Racial Discrimination Article I(4), which allows for preferential treatment for some groups in order to remedy past discrimination.^[19]

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

Similar laws in other countries

In addition to Israel, several other countries provide immigration privileges to individuals with ethnic ties to these countries. Examples include Germany^[20], Serbia, Greece, Japan, Turkey, Italy, Spain, Chile, Poland and Finland. (See Right of return and Repatriation laws.)

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.^[21] Others argue that the law permits the entry of too many non-Jews, thereby undermining its purpose.^[22]

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.^[23] 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."^[24] 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."^[24]

Thirty-six percent of Israelis polled said that deeper background checks on new immigrants would amount to racism against Jews from Russian speaking countries.^[25]

Applicability

See also Who is a Jew?

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

See also

• Aliyah
• Politics of Israel
• Basic Laws of Israel
• Citizenship and Entry into Israel Law
• Population exchange in the Middle East
• Palestinian right of return
• Racism in Israel
• Who is a Jew?

References

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
• The problem is how to become an Israeli by Amnon Rubenstein, Ha'aretz
• Judt Labels Israel "Anachronistic," Calls for Binational State