Israeli immigration policy compared: a focus on the Law
of Return
by Floor Oudendijk (10262377); teacher: Darshan Vigneswaran 30th of June 2014, International Political Geography: A future without borders
In this paper there is investigated what is distinctive about the Israeli immigration policy. Scholars argue that the center of the immigration policy is the Law of Return and Israel is an extreme case in global immigration policies. This is the reason why the immigration of Israel is compared with other states with a similar right of return, as there might be expected that these states would have a same openness. This has been done through a comparative legislative framework. Three indicators have been used to compare the Laws of Return of Israel, Ghana and Rwanda. There can be concluded that the three countries have similarities, but that the Israeli immigration policy is still extremely open compared with other states that have the Law of Return in place.
Introduction
On the 5th of July 1950 the Knesset in Israel passed the Law of Return. It stated that “every Jew has his right to come to this country as an oleh”, an immigrant who should be able to go to his safe haven, the state of Israel (Israeli Law 5710, 1950). The Knesset, mostly Zionists at that moment, argued that this was of great importance, as the Jews suffered from the Holocaust and it should never be able to reoccur. By accepting the Law of Return, the aliyah, the immigration to the Holy land by Jews, was from then on possible and institutionalized. This Right of Return will be of great importance, since Peled (2007) argues in his article that the Law of Return from 1950 is now the basis of the immigration law. Furthermore, he states that this policy is becoming more stringent due to the fact that the minorities, for example the Palestinians, are getting larger and thus might be an internal threat to the Jewish state of Israel. Barak Erez (2008) slightly contradicts with this argument by stating that it is mostly the search for security that makes the immigration policy more severe. Both will be discussed in the theoretical framework, as it might give insights to the question on which characteristics of the Israeli immigration policy differs from other countries, as scholars often claim this. By doing this, we can investigate what is distinctive about the Israeli immigration policy in respect to the Right of Return compared to other countries with the same Right of Return.
This leads to the main question of this article: what makes the Israeli immigration law different from other states with a law of Return?
Many scholars claim that the Israeli immigration policy is anomalous. They have tried to explain this by culture and religion (Peled, 2007; Barak Erez, 2008; Smooha, 2002). However, as a way to compare, they always use western states that are in the same culture region as Israel, such as Europe. In this research there is tried to compare the state of Israel with other states that have a law of return, as this seems to be a more valid reasoning: in the western world there are few states with a law of return, as they do not consider themselves to be immigration states (Dustmann et al, 1996). There is expected that with comparing Israel with other states, Israel is a less extreme case.
First, there will be looked at the Israeli immigration policy and its Law of Return. This will be followed by a short overview of the literature of the Law of Return.
Theoretical framework
The establishment of the State of Israel and the Law of Return had demographic consequences within the territories. After 1948 the number of Jews in Israel has increased from 650,000 to approximately 6,100,000 (Della Pergola, 2001; Central Bureau of Statistics Israel, 2009). As a reaction to the establishment of the State of Israel, the Palestinians that were living in the same territories migrated to other adjacent Arab states (Radley, 1978). It is of importance to point this out; as of today the Palestinians are not allowed to return to where they were living originally. Hence, the right of Return does not apply to these cases, as far as the Israeli concern. The exclusion of the Palestinians in Israel is deemed to be representing the Israeli immigration policy well: very open to Jewish people, but other population groups are excluded from the society (Peled, 2007).
There are several statements about the Israeli immigration policy. On one hand, there is the Right of Return that clearly states that only Jewish people can immigrate in the State of Israel. Consequently, these people claim that the immigration to Israel is subject of anomalous rules. On the other hand, there are the theorists stating that this distinction between Jews and non-‐Jewish can not
be made that easily, as the Jewish themselves are from different states and thus there is a cleavage in this group, too. Furthermore, these scholars argue that Israel seems to behave more like a western country, as it adopts non-‐Jews and other immigrants. Hence, they consider Israel not as an anomaly in global immigration policies. All these positions will be addressed in this section.
There will be started with the scholars that consider Israel an extreme case. Yoav Peled (2007) states that people that were not covered in the Law of Return, were not allowed to immigrate into Israel. At least, there was no law covering this special group. By now, laws cover some populations. However, these are becoming more stringent (ibid). An example and turning point in Israeli immigration policy are the Intifadas, the uprisings of the Palestinians in Jerusalem and the territories against the Israelis. The immigration of Palestinians became even more stringent, making it impossible for them to reunite with family that lives in the Israeli territories. Peled argues that by having such a migration policy, Israel undermines the principle of citizenship in a liberal democracy. This principle is that every citizen of the state should have equal rights (ibid). Analyzing the several laws on immigration of the Palestinians, Peled concludes that Israel can be defined as an etnocracy, a democracy where the ethnicity of a person defines whether you are a citizen with all political and social rights. Smooha (2002) was the first one posing this concept with the same argument as Peled: Jewish people have more rights than other populations, only based on the fact that they are Jewish. The main idea that can be derived from this article is that Peled considers the stringent immigration policy as a more ideological one compared to other states. As the current immigration policy is a result of the Law of Return, Israel only wants to remain a Jewish state. The growing minorities could be a potential threat to the safe haven that Israel desires to be.
Barak Erez (2008) has a more practical perspective. Next to being a democratic state, a great majority in Israel wishes this state be a Jewish one with a Jewish nation. In essence every citizen has the same rights, but as Israel has special rights for Jews, these people are slightly more privileged. Furthermore, she agrees with Peled that the law against the Palestinians has made the immigration law stricter. Only, she adds to this that it caused the Arab
population to stop growing and even decreasing. Thus, the immigration policies of Israel have direct consequences on the demography. Barak Erez argues that the actions of the Israeli government are not coming from ideological roots, but from the practical incentive that the minorities are becoming too large. In this way the state can not guarantee the security of its population. Especially when taking into account that Israel feels that it only borders third world countries and minorities are coming from these countries. Israel fears that when these people immigrate to its state, they will still be more attached to their own nations. Consequently, they still will be in contact with family. This could be a possible external threat to the state of Israel, next to the other security threats that Israel perceives.
The difference with other countries seems that Israel has a different ideology, Zionism (Smooha, 2002) instead of Liberalism or Communism. The presence of this ideology makes it more understandable that immigration is strongly focused on attracting Jews and to exclude other ethnicities or religions. Smoosha summarizes this as follows in his article: “[Israel] is a country that proclaims it is the homeland of ethnic nations and gives precedence to nation-‐building over democratic state-‐building, namely they allow nationalism to contain and to reduce democracy, civic equality and full membership in society…” (Smooha, 2002: 497).
These scholars deem the Israeli case an extreme one. They differ from opinion on how these differences from other states are established.
However, there are also scholars that consider Israel a western state. The starting point of this reasoning is that Israel is a state that deals with the same unwanted immigrants that other Western countries also deal with. For example, there is a great amount of asylum seekers from Darfur that tries to stay (illegally) in Israel (Jerusalem Post, 2007; NPR, 2013). This is next to the problem that could be identified as more ideological. Shuval (2002) and Bartram (2011) state that Israel is not unique in its immigration policy in the last decades, as the foreign people are integrated and can actually be part of the community (Bertram, 2011). Shuval (2002) argues that the Law of Return might formally have been an open door policy in the establishment of the State of Israel, but the
lower economic groups were not particularly solidary with the immigrants, as they thought of the immigrants as people that would come to improve their economic situation in Israel over others. A very important point in her argument is the fact that greatest portion immigrating to Israel are Jewish, but that these are coming from other cultures. Consequently, this could cause hostility within the group of Jews as well. She argues that elements of the Right of Return and aaliyah were socially constructed. Bartram (2011) argues that more non-‐Jews are immigrating to Israel and they can integrate. Furthermore, he states that the Israelis themselves are divided because of the ethnicity. Hence, there is no unified Israeli Jewish nation.
The Israeli immigration case has been discussed, there is no consensus on the anomalous status of the immigration policy and the Law of Return. Now, it is important to point out that the Right of Return is not a purely Israeli matter. This right has been institutionalized in the Universal Declaration of Human Rights, article 13:
“(1) Everyone has the right to freedom of movement and residence within the borders of each state.
(2) Everyone has the right to leave any country, including his own, and to return to his country” (UN General Assembly, article 13:1948).
Also, in the International Covenant of the Civil and Political Rights there is an article dedicated to the Right of Return; Article 12 (4) states that :
“―…no one shall be arbitrarily deprived of the right to enter his own country” (UN General Assembly, 1966).
As can be seen, the Law of Return has played a role in international politics as it is institutionalized in UN articles. In regards to the literature on the Right of Return there are two cases that are used the most: the Israeli and the Palestinian case. Both are argued to be extreme cases in relation to the immigration policy. The Right of Return was institutionalized in 1948 in order to give the Palestians the chance to return to their homeland (Radley, 1978). However, it can be claimed that the Israelis only partly accept the right to return, as they do not allow Palestinians to Israel or the Palestinian territories (ibid). This is next to the Israeli immigration policy that is deemed to be extremely open towards Jewish
people. Political scientists thus mainly focus on these two cases when they are investigating the Rights of Return, as it clearly shows that Israel is an extreme case, simultaneously open and close towards groups of people. This is why this research will emphasize on the Israeli Law of Return compared to others: there has to be investigated whether Israel is an extreme case or not.
Methods
As the question is what is distinctive about the Israeli immigration and especially the Law of Return, it seems logical to compare the Laws of Return with other states and see on which points they differ from each other. The aim is to be able to make a spectrum in which the cases are ranked, which states have a limited Law of Return and which have a very extensive one? In order to do this, it is of great importance to focus only on the laws of the specific country with a Law of Return. The Law of Return grants the right of a specific group of people to come back to a state (Yakubson & Rubinstein, 2003). Normally, the Law of Return is not institutionalized in a specific law itself. Therefore, the laws that have to be researched are the immigration law on entering the specific state. Returners are living in another country and will have to immigrate to that specific country. It is likely that this group of people will have different rights than other immigrants and thus it is likely that in the law a clause on this group is included. Next to this law, there should be looked at the laws on the acquisition of nationality, as this will tell whether the population that does not live in the state, are still considered to be a part of the nation. This is inherent to the Law of Return. Lastly, if the state makes a difference between the nationality and citizenship, there should also be looked at the acquisition of citizenship. Normally, being part of a nation would mean that a person would also be a citizen of the state. However, as the returners are living in another country, they might be deemed to be citizen of that state. Thus, the group of returners might be part of the nation, but not a citizen. Hence, it is of great importance that this will be taking into account as well. The sources will be researched by using several indicators. These will be addressed in a later section.
Other methods have been revised, too. However, these are not considered suitable for the aim of this research. By looking at the actual legislation, the aim of describing and comparing the Rights of Returns in an objective way is most likely to be accomplished. The reason for this is, is that the legislation is institutionalized and thus has to be executed that way. When one would take an approach in which interviews were integrated, the objectivity could not be secured. Furthermore, as has been mentioned before, the laws are most visible in the legislation and by using interviews, only the executers will be addressed.
Secondly, another way in which the Law of Return could have been researched is by investigating case law or policy documents. These will not be used due to practical reasons. With not having as much as time as wished, researching these documents would cost too much time. Case law is specific; hence, by investigating these it would be hard to draw conclusions. Moreover, these documents are often in the official language of the state. Lastly, there can be argued that case law should be an execution of the constitution. Hence, by researching the actual constitution, that mostly also comprise the acquisition of citizenship and next to this the law on immigration, there can be argued that this would be the primary source of the institutionalization of the Law of Return.
Case selection
As has been mentioned earlier, Israel will be chosen as the reference for this research. Scholars concern the Israeli immigration policy fairly open. It will be questioned whether Israel is an anomaly concerning its immigration policy. Israel is normally compared with western countries, as it is considered to be one culturally wise (World Bank, 2014a). However, there are certain differences in comparison to the western world that could make the comparison between Israel and the western states invalid, (Dustmann et al, 1996) . Consequently, the claim that Israel is an anomaly in immigration policy could be invalid, too. As a start, the Right of Return will be used. This is usually seen as the reason why Israel has the particular immigration policy (Peled, 2007). To draw conclusions, it would be more relevant to compare Israel to other states with a Law of Return or a similar law. The definition of the Law of Return has been given earlier in the research. Several of the countries that have a Law of Return can be found in
Africa. During the colonization and after the decolonization there were violent conflicts that resulted in refugees in the continent (Anthony, 1991). Consequently, this could result in a law of Return.
One of the examples of this mechanism might be Rwanda. It is the first state that will be compared to Israel. This country has had several struggles the last century. There is an ongoing struggle between two groups in the country, Hutu and Tutsi. This resulted in a civil war and a genocide in 1994 (Jefremovas, 1995). Before there were already struggles between the two ethnic groups, causing the Tutsi to flee to adjacent countries. Besides the fact that both states have a Law of Return, there is another similarity. Both populations were subject of a genocide and a diaspora. Also, it concerned a conflict that was based on the differences in ethnicity (ibid). Naturally, there are some differences. For example, the fact that Rwandan population already had a state on its own and the Jewish population had not is already a difference (Hanchard, 1999). However, as the argument of the emergence of the diaspora and the genocide is paid more attention to, Rwanda is considered a good case. When there are differences in stringency found between the Rwandan and the Israeli case, it might be explained by the fact that there already was a Rwandan state.
The second case that will be compared to Israel is Ghana. This country had a relatively calm history after the decolonization. Economically wise, Ghana has high growing rates. However, Ghana is still lacking means (World Bank, 2014b). This is one of the reasons why in the last century the government decided to proceed the trend that was initiated in the sixties (Lwanga, 2007). The presidents were fairly nationalistic after gaining independence and they wanted to create a Black State, where every black person could immigrate to after the African diaspora. This has several similarities to Israeli case. The government of Israel tried to create a safe haven for the Jewish people. The same incentive for the nationalistic Ghanaian government was present.
There are also several differences with the Israeli case. One example of that is, just as in Rwanda, the Ghanaian population already had a state. More importantly, Ghana has not known a genocide. In this way there can be investigated whether a genocide would contribute to a more or less stringent immigration policy.
Parameters
As in this research we will try to compare the Israeli immigration policy, with an emphasis on the Right of Return to Ghana and Rwanda, there need to be identified several parameters. These parameters will be addressed during every analysis of the Law of Return of the several countries. In this way there a comparison can be made more easily.
First of all, as an introduction, a short description of the history of the country will be provided. This is in order to explain why there was a Law of Return in the first place. Literature that has been written on the state will be used to explain what the reasons are for the Law of Return. This will not be used as a parameter, but it is of great importance to at least address as it creates a full comprehension of the state.
Secondly, the laws on immigration and the acquisition of citizenship will be analyzed. This will be the main focus point of the research. There will be looked at who is able to immigrate to the state. In several laws of return, not only the people that have fled the country are able to return, but also their descendants. Logically, this makes the Law less stringent than states that only allow the refugees to return. There will looked at the last generation that is allowed to immigrate. The more generations are allowed to immigrate to the state, the less stringent the immigration policy is. When descendants are mentioned in the law, but there is no specification of this concept in the law present, there will be assumed that every descendant can immigrate. There has been chosen for this parameter because of the fact that in every law on immigration this has been specifically mentioned. Furthermore, when there is a law of Return, the group of people that is allowed to come back, needs to be defined in the law. Also, in different researches this parameter has been used in order to investigate the laws that are in place in Europe (Dumbrava, 2013).
The third parameter that will be analyzed is the presence of limitations in regards to the immigration of the people that have been identified earlier. The limitations that will be considered involve the ones on monetary, religious and practical issues. The more limitations are posed by the state, the more stringent the immigration policy towards expatriates is. This indicator has been chosen for
the reason that in every law on immigration there is a clear statement which group are able to immigrate but also under which conditions in order to exclude unwanted people. As these limitations are institutionalized in every law, it can be investigated in subjective way. Also, this parameter has been used in similar research (Dumbrava, 2013).
Lastly, there will be looked at the rights of the person when he or she has immigrated. Laws that will be addressed in this section are mostly the laws of the acquisition of citizenship. These laws normally include the rights of the person when he is recognized as a citizen and what the process is of filing for citizenship. The faster a person is identified as a full citizen of the state, the less stringent the immigration is. Furthermore, the more rights the returner has, the more generous the state is towards the immigrant. This parameter has been chosen as returners are sometimes seen as part of the nation. Consequently, by being part of the nation, that person would become a citizen and thus will be granted the same rights as the people that have been born in the particular state. With this parameter this statement is investigated.
Based upon these parameters, there will be tried to draw a spectrum. The states will be analyzed on their immigration policy. Eventually, the more stringent the immigration law is, the more the state will appear on the right side of the spectrum. There will me made rankings on the different parameters and based upon that there can be made a spectrum concerning the three different states that will be analyzed. By doing this, we can conclude whether in regard to other states that have a Law of Return, Israel is an anomaly.
Expectations and limitations of the project
Derived from the theory and the methods, there already some expectations that could be drawn in this section. The first thing that is expected from this project is to be able to make a spectrum and try to place Israel on this spectrum. By doing this hopefully a conclusion can be drawn on the question whether Israel is an anomaly when comparing it to other states that have a Right of Return.
Furthermore, it is expected to find similarities between the states that have a Law of Return. In other research, Israel has mainly been compared to
western countries (Shuval, 2002). It is expected that because of the fact that in this research Israel is compared to other states, Israel is not an extreme case.
There are several limitations to this project. First of all, there is the most practical limitation of time: this project could be made broader by looking at every state that has a Law of Return. The cases that have been used are also partly because of practical reasons, such as a language barrier. When using the English translation, it could be subject to translation interpretations, which could affect the subjectivity in the research.
The second limitation is that, considering the expectations, a broader understanding of the Right of Return and the states that have it in place and more particularly Israel. However, the general findings will not be compared to other immigration discourses. As has been argued earlier, this is a founded choice. However, it is important to point this out, as this research does not intend to draw conclusion on Israel in respect to global immigration policies.
Lastly, there will be only looked at the legislation of the states and not at the actual policies. This has been done due to practical reasons. However, this might result in a rather static and abstract description of the context. As been argued earlier in the methodology, this research is not focused on the executive branch of the state, but on the legislative.
Israeli Law of Return
This Law of Return has been discussed in the introduction, as it will be used to compare it with the other states that have a Law of Return. For full comprehension and to be able to fully compare the laws, it is of great importance to address this Law of Return by using the parameters that have been identified earlier in the research. It is not necessary to give a historical description of the state of Israel, because this has been done in the introduction as well.
In section one of the Law of Return (Israeli Law 5710, 1950) it is stated that every Jew has the right to immigrate to the state of Israel. The definition of Jew was not clearly specified in the initial Law of Return. In section four there is made a reference to the Jewish population that had been living in Israel at the time that they would come under this regulation. Because of the fact that there was no exact definition of Jew, in 1970 an amendment on the Law of Citizenship
was passed. In amendment two of the Law of Return (Israeli Law 5710, 1970) the concept of Jew was defined as follows: “For the purposes of this Law, "Jew" means a person who was born of a Jewish mother or has become converted to Judaism and who is not a member of another religion." (Israeli law 5710, 1970: section 4B).
Shachar (1998) describes this amendment as a balance between religious and secular influences in the Israeli politics, as it involves the religious Halakha definition of a Jew and a more secular one: if a person wants to participate in society, it should be able to live in Israel. This discussion only involved an individual that might be able to come to Israel. However, the Israeli government also decided that the family of these individuals should be able to come to Israel, as a part of family unification. In the same amendment of 1970 the rights that are described are also valid for the children and grandchildren of a Jew, as well as the spouses of the children and the grandchildren of a Jew. They can acquire the nationality automatically as well. This is addressed in section 4A of the Law of Return (Israeli Law 5710, 1970).
There are several limitations to immigrating to Israel as a Jew. These are stated in section two. This section tackles the method on how the immigrant should immigrate, namely by applying for an oleh certificate (i.e. an immigrate certificate). In section 2B it is stated that every Jew is granted such a certificate, unless that person is involved in engagements against the Jewish population (Israeli Law, 5710, 1950, section 2.B.1) or the person is likely to threaten the security or the public health the State of Israel (ibid, section 2.B.2). Later, in an amendment there was added one more limitation to the earlier ones, namely that a person should not have a criminal past that would be likely to be a treat to the public welfare of the State of Israel (Israeli Law, 5710, 1950, section 2.B.3). So, there are three limitations for Jews before they are allowed to immigrate to Israel; when that person could be a danger to public security, health or welfare.
The last parameter that will be analyzed are the rights that the immigrants are granted when entering the state. In the Israeli Nationality Law (5712, 1952) it states in section 2 that every Jew that has come under the Law of Return, is able to acquire the Israeli nationality. In the Israeli legislation only the acquisition of nationality is addressed. By becoming part of the Israeli nation,
you will immediately be citizen of the State of Israel. Nationality and citizenship are thus used interchangeable. The rights for the citizens of Israel, thus also the people that would immigrate to Israel, are stated in the Basic Law. Every Israeli citizen older than 18 for example has the right to vote (Israeli Basic Law: Knesset, section 5, 1958). Furthermore, fundamental human rights are stated in the Basic Law on Freedom of Occupation (1994).
Rwanda
The second state that will be described is the Rwanda. This African state has a turbulent history from the establishment onwards. It is hard to give a concise overview of the history. There are two different groups living in Rwanda, the Hutu and Tutsi. Tutsi were always the minority compared to the Hutu. However, they were considered to be the more educated and besides this, they were the ones that would lead the country. In the 50s and 60s, just after the decolonization process had started, there was a wave of (black) Pan-‐Africanism emerging over the continent (Hanchard, 1999). Reyntjes (1996) claims that the conflict that emerged in the 1990’s are caused because of the bipolar character of the state: the two groups both too big in number and thus the “others” are easily recognized. During the conflict a large amount of Tutsi fled to adjacent states in order to protect themselves. In 1994 Tutsi tried to take over the government again. This caused several latent conflicts to rise up again, resulting in a civil war between the Hutu and Tutsi, in this civil war there was a genocide on the Tutsi. This caused Tutsi and Hutu again to flee the country. However, despite the fact that Hutu fled to adjacent states, the refugee streams in both the sixties and the one during the Civil War are referred to as the Tutsi diaspora (Reyntjes, 1996). In 2004 the Rwandan government passed a new organic Law on the acquisition of nationality. This law includes a law of return that will be analyzed by using the several parameters mentioned above. However, in this research the newest Organic Law will be used, as this it is most relevant at the moment. This dates form 2008 (MACIMIDE database, 2013).
The first parameter that will be described is who can acquire the Rwandan citizenship under the Law of Return. In Title VI of the Rwandan Organic Law the recovery of the Rwandan nationality is described. Article 22
states that every person whose nationality was deprived in the timeframe of 1 November 1959 until 30 December 1994 should be able to regain his nationality (Rwandan Organic Law on Nationality, 2008). Also, the descendants of these appointed are able to regain the Rwandan nationality.
Besides this timeframe, a person with Rwandan origins and his or her descendants are able to acquire the nationality. However, this has to be done in accordance with a Presidential Order. This is stated in article 22. Consequently, at this moment only people whose nationality was denuded in the particular timeframe and their descendants are able to regain their Rwandan nationality.
In this law there is a prohibition to acquire citizenship. This has been kept in article 24 of the law. It states that the in case of trying to acquire the citizenship in a unlawful manner, for example via corruption or other fraudulent practices, the nationality can be appealed. However, this is not valid if it causes the person to become stateless. The second limitation is when the person would file for nationality, but only with the intentions to betray or cause harm to Rwanda. Both these are valid for all the people that want to acquire the Rwandan nationality and are stated in article 19 (Organic Law on Nationality, 2008). The limitation that is especially for the population that tries to acquire the Rwandan nationality is included in article 24.2. Someone will not be allowed to file for the Rwandan nationality when a person is deemed to be a threat to the security of the state or the person self.
By becoming a Rwandan national again, that person becomes automatically a citizen of the Republic of Rwanda and thus is granted the same rights as the other citizens. (Rwandan constitution, 2003). This means that the person should be able to vote and is able to work freely. These are included in the constitution under article 8 and 37 (ibid).
Ghana
The last state that will be compared to Israel is Ghana. In the case selection there has already been described that Ghana did not have a genocide in the last century. However, there has been a diaspora referred as the African diaspora. This is the diaspora that describes the mass displacement of Afro African people to the United States during colonial times. Furthermore, it also
includes the economic migration to Europe from the African continent during the fifties and sixties (Ankomah et al, 2011). As already been mentioned before, during the fifties and sixties there was the feeling in the African (Sub-‐Saharan) countries that there should be a Black State (ibid). This was largely after the decolonization process, meaning that this could indicate that there were more nationalistic feelings. The leader of Ghana that was responsible for making the people feel more nationalistic about their state being a Black one, was Nkrumah (Hanchard, 1999). The feelings that were evoked came back in the nineties of last century. This resulted in a new law that could be identified as a Law of Return, as it explicitly refers to the people that can immigrate back to the African continent as being part of the African diaspora (Lwanka, 2007). Ghana is the first state that has a law like this in place in Africa. Ankomah et al (2011) claim that aim of this law is to attract Afro Africans from the First World in order to gain capital in exchange for the Right of Abode in Ghana. Before analyzing the law, it has to be put forward that unlike the other cases, the Right of Abode is included in the Immigration Act instead of the Citizenship Act. Naturally, this has its consequences, as by immigration to Ghana a person does not become automatically citizen (Act 573, 2002).
The first parameter that will be analyzed is who can make a claim on this Right of Abode. In the Right of Abode it states that every person that was born in Ghana or that was registered or naturalized should be able to reside within the territories of Ghana (Act 573, 2002, Section 17.1.A). Next to this paragraph it states in second one (section 17.1.B) that every descendent with African origins in the Diaspora should be able to abode in Ghana, too. Obviously, this is a very broad definition, as there is a great amount of people that have origins in the African Diaspora. In the following part of the Law it is not specified, either. Consequently, it will be assumed that what is in the Law is actually meant.
However, when the second parameter is taken in consideration, the actual amount of people that could claim the Right of Abode is made smaller by several limitations. Firstly, the person that tries to settle in Ghana has to be declared to be of a good character. This has to be done by two Ghanaian people that are approved by the Ministers (Section 17.3.A). Secondly, the person should not have been convicted of a criminal offence and have had a sentence to imprisonment
for a year or more (Section 17.3.B). Thirdly, the person has to have independent means (Section 17.3.C). Furthermore, the Minister of Interior, or the officials that work under the Minster of Interior, should decide whether the person could contribute to the Ghanaian development (Section 17.3.D). Lastly, the person that files for the Right of Abode has to be 18 years or older (section 17.3.E). Especially Section 17.3.C and 17.3.D make scholars believe that Ghana is trying to attract foreign investors.
With the last parameter there will be tried to identify the rights of the person once he has entered the state. The person, as already has been mentioned before, is not automatically a citizen of Ghana. The rights of the person have been included in Section 18. In the first case, he or she is entitled to stay indefinitely in Ghana (Section 18.1.A). Secondly, he is able to enter Ghana without a Visa. Furthermore, the person is able to work for himself or for an employer. Lastly, the person falls under the Ghanaian Law. Consequently, the person will have to file for citizenship via the regulations that can be found in the Citizenship Act of 2002 (Act 591, 2002). After five years of residing in Ghana, the person can file for citizenship. This has been stated in article 10C of the Citizenship Act.
Comparison
In this section the analysis of the three Laws of Return will be taken into account. This will be used to be able to make a spectrum that will range from an extremely strict Law of Return to a very open Law of Return. Naturally, as already has been pointed out earlier in this paper, it might be hard to make an actual conclusion for all the Laws of Return that are in place in the world. However, there can definitely be made a conclusion on the differences between the three states that have been analyzed earlier on. The aim is to be able to conclude on the Israeli immigration policy in comparison to the other states that have a Law of Return. Now, there will be a small recap of the analysis of the parameters per state. After that there will the comparison can be made.
Population that can claim rights under the Law of Return
Israel’s Law of Return is fairly specific on the people that are allowed to immigrate to Israel under this law. Every Jew can, as well as the children and grandchildren and their spouses. The definition of Jew has been amended later. It has been defined as a person that was born from a Jewish mother or that a person that has been converted to Judaism (Israeli Law 5710, 1950).
In Rwanda, the population that can claim their citizenship by the Law of Return is limited. People must have lost their citizenship in a certain period of time, namely from 1 November 1959 until 30 December 1994. Besides these people, also their descendants can immigrate to Rwanda. There is no limitation on the amount of generations that fall under this law (Rwandan Organic Law, 2008).
Lastly, in Ghana, there is every person that has his origins in the African Diaspora is able to immigrate to the country. The African Diaspora here is defined as the people that were displaced by slavery in colonial times and furthermore the people that immigrated after the decolonization due to the economic situation in Africa (Act 591, 2002).
When taking in to comparison, it can be stated that Rwanda is the state where the least people are able to immigrate to with its Law of Return. When comparing the amounts of people that are able to claim the right of return by the law, it can be stated that Ghana is the most open state. Estimations of the World Bank on the number of people that are part of the African Diaspora are around the 36,19 million people in North America alone (World Bank, 2013). When comparing this with the total Diaspora Jewish population on earth, namely 8 million (Della Pergola, 2013) and Rwanda with about two million refugees (Walker, 2013), the state of Ghana is the most open one. It must be noted that the decedents of Jewish people are not taken into consideration.
Limitations of the immigration
Israel has several limitations concerning the immigration. First of all, the person should have a criminal record, as this might mean that he is a threat to the public security. Furthermore, the person can not be a danger to the public
welfare nor the public health. In the law there is no elaboration on the points that are posed (Israeli Law 5710, 1950).
In Rwanda, the person is only able to claim the Law of Return when his or his ancestors’ nationality was deprived from them. Compared to the other two countries, this is a limitation. Furthermore, the limitations are that posed are that the person should not file for the nationality when it could cause harm to Rwanda. Lastly, the reacquisition of the nationality is rejected when the person could be a possible threat to the public security or welfare (Rwandan Organic Law, 2008).
In Ghana, there are several more limitations. Next to the limitation that the person should not be a threat to the public security and welfare, the person should have independent means and furthermore he should be able to contribute to the Ghanaian development in an economic way (Act 591, 2002).
Thus, it can be concluded that with this parameter, Ghana is the least open state, as it has posed the most limitations, namely mostly economic ones. It might be harder for people to meet the requirements. Then, Rwanda has more limitations than Israel, making Israel the most open state in regards to this indicator, as it only poses the basic limitations, that Rwanda and Ghana also have in place.
Rights of the Returner
In Israel the person that has filed for to immigrate will receive an oleh certificate. By getting this certificate, the person is automatically national of the State of Israel. As in Israel nationality and citizenship are used interchangeable. By acquiring the nationality, the person automatically becomes citizen of Israel. This means that he will gain all the rights, such as voting, too (Israeli Law 5710, 1950).
In Rwanda it is somewhat different as the people that are trying to return had the nationality and the citizenship. This means that whenever the person has regained his nationality, this automatically means that he will also have the Rwandan citizenship. Consequently, all the rights that are in place for the Rwandan people, will also be into force for the people that fall under the Law of Return (Rwandan Organic Law, 2008).
