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Return, Resettlement, Repatriation:
The Future of Palestinian Refugees in the Peace Negotiations

Source: FOFOGNET Digest, 22 April 1996

by Salim Tamari, Institute of Jerusalem Studies

Final Status Strategic Studies
Institute for Palestine Studies
Beirut, Washington, and Jerusalem

February 1996

IV. Problems of Definition: What is a Refugee Family?
Problems of 'definition' occupied a whole intersessional of the RWG, which met in Tunis in February 1994. At the heart of the problem was the issue of maximalist definition of the family (Palestinian) and a minimalist definition (Israeli, limiting it to the spouse and minor children). A number of Palestinian and Israeli human rights groups in Jerusalem put forth a memorandum to the refugee intersessional which posed the implications of this issue. Their findings were summarized in a position paper drafted by Adv. Eliahu Abram from the Israeli Association for Civil The Rights. The most salient features of this memorandum:

  1. The issue of family reunification is broader than the issue of refugees and subsumes it. It rests, among other things, on the right of married people to reunite with their non-resident spouses.

  2. The most disruptive feature of Israeli policies on dispersed families is that they do not recognize, in principle, the right of spouses and their children to reunite with their parents. Family members who leave temporarily to work or study, are regularly denied residency for overstaying their exit permits.

  3. The Israelis authorities have used family reunification as a bargaining instrument in the negotiations over refugees, in the transitional period. I should add here that this is the only issue on which there was progress in the bilateral negotiations with the Israelis in the RWG.

  4. Family reunification is a principled right recognized by a number of international conventions (article 74 of the Geneva Convention, and the Helsinki Final Act of 1974). It is also incorporated in all emigration laws of most states. It should not be subject to political bargaining.

  5. The right of immediate family members to family reunification should not be subject to quota restrictions.

Questions of Definition
The document called for the recognition of two categories of family members for purposes of family reunification: (a) the immediate family members of a legal resident; and (b) other members of the extended family who either lack a nuclear family of their own or are otherwise dependent on the resident and his immediate family.

Abram's memorandum makes a distinction between the two categories as far as policies are concerned. While both categories are entitled to apply for family reunification, he stated 'immediate family members are entitled by their objective status alone to family reunification. The decision in their case need not be subject to discretionary procedures; it should be quick and clear-cut, giving effect to a prima facie right to live together and subject only to such requirements for documentary proof of genuine family relationships as are common to the immigration regulations of democratic countries.'

One should take into account also the specific Arab and Islamic environment in which the dispersal of Palestinian refugees took place which is typified by the prevalence of shared residence by joint families and a unified extended household economy.

The report concludes with the irony that Palestinian expatriates returning to their homeland have less rights than foreign emigrants making applications for citizenship in a new country of choice:

    "While the Palestinian residents of the occupied territories have not acquired an independent citizenship, neither are they alien residents with the option to return to a previous homeland or domicile in order to be reunited there with dependent parents or other relatives. The anomalous position of Palestinians under prolonged occupation, disrupting at times the natural development of the family, should not be ignored. Their right to be unified with family members should approximate state practice with respect to citizens."

Procedural Reform of Family Reunification Schemes
The Abrams report made specific procedural proposals for reforming the FR system in the transitional period. Those included:

(a) All those immediate or dependent family members currently present in the territories should be allowed to apply for family reunification while present, and be entitled to positive and rapid processing of their applications without being required to depart.

The French Emissary reported that Israel has undertaken to assure "regularization for Palestinians already present in the territories". This commitment has not yet been put into effect.

In fact, current policy flatly contradicts this commitment. Immediate family members who entered the territories after August 1992 are denied the opportunity to apply for family reunification while remaining in the territories, and Israeli officials continue to threaten them with expulsion.

(b) Immediate family members should be allowed to visit the territories and to apply for family reunification during the duration of their visits. They should not be required to leave pending an answer to their application. Except during the summer months, Israel currently denies most applications of immediate family members for visitor permits. Under present policy, family reunification cannot be requested during the visit. The French Emissary has reported Israel's commitment to process family reunification applications within three months. Three months is the normal duration of the visitor's permit. It should be possible, therefore, for the visiting family member to apply for reunification upon arrival and to receive an answer to the application prior to the expiration of the visitor's permit. In any case, there is no rational reason to refuse an extension of the visitor's permit until a final answer is given concerning family reunification.

(c) Steps should be taken to enable a legal resident of the territories temporarily residing abroad with his family to apply, while abroad, for family reunification. Furthermore, it should be made clear that the resident's temporary abode abroad will not be interpreted as evidence of intent to transfer his domicile away from the territories and will not prejudice the family reunification request in any way. Although the French Emissary's report indicates, apparently, that Israeli authorities already announced their intention to adopt this measure, the report's language is somewhat opaque ("files may be transmitted by a person not residing in the Territories provided his guarantor has resident status"). No known steps have been taken to inform Palestinians in the territories or abroad how they can apply from abroad.

(d) Full and specific reasons must be provided by the authorities for rejecting a family reunification application. Giving notice of the grounds of rejection to the applicant (as distinguished from explanations to the Palestinian Authorities) fulfils a well-established principle of natural justice. Only in this way can the applicant hope to challenge the deprivation of his or her right to family unity or to rebut the factual assumptions on which the denial is based.

(e) A final procedural point concerns bureaucratic and political sensitivities. It is not essential that every person entitled to family reunification be granted immediate permanent resident status. The underlying humanitarian problem - that family members need to live together - can be solved by granting any form of renewable temporary resident status during the interim period. Such an approach may allay the reluctance to accept change and the fear of prejudicing final settlements.

Policy Implications for Refugee Families
Although the above analysis of procedures impacting family reunification schemes in the RWG are meant to deal with the exiting situation concerning dismembered families, its policy implications for refugee families in the context of the current negotiations on displaced persons are immense.

These implications were underscored by the February 1994 intersessional meeting of the RWG on family rights and family reunification, were--despite Israeli opposition-- a consensus among the expert group of jurists and social scientist emerged on the relationship between the conception of the changing roles of the Palestinian family and its rights under Israeli rule. The group of social scientists agreed on the following issues:

  1. That the decline of the extended family as a residential unit does not entail the Palestinian family has lost its extended ('joint') features.

  2. That the rate of dependency of children on their parents in Palestinian and Arab families extends beyond the legal definition of maturation, and should be taken into account when applications for family reunification is made.

  3. That the policy of wilfully separation of families by creating bureaucratic obstacles to unification of spouses and their children seriously undermines the social fabric of Palestinian society.

Any agreement in principle over the wider role of kinship networks in the functioning and survival of Palestinian society is bound to involve larger number of individuals to join their dismembered family members. A nucleated definition of the family, on the other hand, would focus the area of reunification over the spouse and younger children of dispersed families. It was this 'European' notion of the family that Israel has been advocating--though purely for purposes of setting a low ceiling on the admission of displaced persons and refugees. Once the realities of Arab society began to impose themselves over the terms of the debate, the Israeli reverted by restricting the implementation of the agreed upon quota, while admitting in effect that the Palestinian family is indeed not exactly equivalent to European nuclear prototypes.

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