HCJ 10650/03 Abu Gwella et. al v

a resident will be granted residency status pursuant to the Regulations if the Minister
of the Interior exercises his discretion and so decides. Over the years, center of life has
been the only criterion that was taken into account in deciding whether to exercise that
discretion.
The same criteria were also traditionally used regarding children born outside of
Israel, almost without differentiation.
99. As we have seen, the Law restricts the discretion of the Respondent regarding the
granting of permits to reside in Israel. The Law does not apply, therefore, to a status
granted pursuant to Section 12 of the Regulations (even if determining the status
entails exercise of discretion). However, Section 12, whose principles apply to every
child, expressly mentions only “a child born in Israel.”
100. Based on a literal understanding, the granting of a status to children born outside of
Israel falls, for this reason, within the general authority that the Entry into Israel Law
gives to the Minister of the Interior to grant permits to reside in Israel. This authority –
the exercise of discretion – is revoked by the Law.
101. The Petitioners will argue below that the Law grossly infringes their fundamental
rights, which are protected constitutional rights, and does not comply with the
limitations clause of the Basic Law: Human Dignity and Liberty.
The Petitioners will argue, in this context, that the Law is intended to advance
forbidden objectives and is racist.
In addition, the Petitioners will argue that tying the hands of the Respondent by not
letting him exercise discretion in particular cases is prohibited and excessive,
regardless of any proper purpose that it seeks to achieve. This revocation of discretion
contravenes fundamental concepts of law, which require that persons be treated on an
individual basis and reject arbitrary acts and collective harm.
Restricting discretion also reflects a decision to employ a more harmful means, for
every proper purpose can also be achieved by employing a less drastic means – the
exercise of discretion.
The harm that the Law causes children and families, and the violation of the principle
of equality and of human dignity are extremely grave, while the purpose is, at best,
vague and hypothetical. Thus, the Law also fails to meet the test of proportionality in
the narrow meaning of the term.
102. In addition, the Law is improper to the degree that it relates to children, because the
legislative process deviated greatly from the rules set forth in the Notation of
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