On September 5, 2022, the Israeli Coordinator for Government Affairs in the Territories (COGAT) issued revisions to the rules regarding the entry of foreign nationals to the occupied West Bank which require certain travelers to apply for a permit before approaching an Israeli-controlled border crossing to obtain a visitor’s visa. The previous version of the rules dated February 2022 was set to become operable on September 5th, 2022. Due to litigation challenging that version of the rules, implementation had been postponed. The current revised version will become effective on October 20, 2022.
Like the rules released in February 2022, the new revision of the rules falls far short of addressing concerns regarding the discriminatory treatment of foreign nationals wishing to enter the occupied West Bank for short stays. The following are some of the ways in which the COGAT rules remain problematic and, therefore, disqualify Israel for entry into the US Visa Waiver Program.
- Foreign nationals visiting the West Bank are treated differently based on the ethno-religious identity of their family or of their business associations. A number of provisions operate together to effectively discriminate against foreign nationals based on their identity or that of their family or associates. The rules exclude Israeli settlers from the definition of who is deemed a “resident of Judea and Samaria,” (see, Part I, Section 1 defining a resident as “a Palestinian… registered in the Palestinian population registry), and require visitors who are spouses, children and first degree family members of Palestinian residentsto apply for a permit to approach an Israeli border crossing in order to obtain a visa. See Part II, Section 1(d). The permit application appended to the rules also requires journalists, businesspeople/investors and others to disclose their family relationships in the West Bank if they are only staying in the West Bank. If they intend to also visit Israel or Israeli settlers in the West Bank, then they are not subject to the COGAT permit requirements. Part II, Section 1(c). Thus, the rules aim to control entry of only those with familial ties or associations with West Bank Palestinians.
- The permissible reasons for short visits to the West Bank are extremely restrictive; general tourism is not allowed. Only very narrow categories of foreign nationals are eligible to apply for a permit to approach an Israeli-controlled border crossing to enter the West Bank for a short stay. The categories are limited to spouses, children, first-degree family, businesspeople/investors, and journalists. See Part II, Section 1(d) and (e). No other person may enter the West Bank unless they obtain a permit for “exceptional circumstances” and for “special humanitarian reasons.” Thus, for example, a foreign national wishing to visit her grandmother or someone wanting to visit the Church of the Nativity in Bethlehem overnight is not eligible to apply for a permit. Such an individual would have to request extraordinary permission which Israeli authorities have absolute discretion to deny.
- Visitors deemed to be staying in the West Bank as per the rules are restricted to using the Allenby Bridge Crossing. The Ben Gurion International airport is off limits to them. Part II, Section 1(b).
- Visitors deemed to be staying in the West Bank as per the rules must apply 45 days in advance of travel for permission to approach the Allenby Border Crossing. Those visiting Israeli settlers are not required to apply in advance. Even nationals of countries that have a visa waiver agreement with Israel may be required to apply 45-days in advance. Part II, Section 2(a) & (c).
- Visitors deemed to be staying in the West Bank as per the rules will be prevented from tourism in Israel. Their passports will be stamped “Limited to Judea and Samaria Only.” Part II, Section 3(c). Travelers will thus be compelled to stay in Israel to avoid being limited to tourism in the West Bank.
- Visitors deemed to be staying in the West Bank must disclose any pre-existing intimate relationship with a Palestinian resident in the permit application. He must also report any romantic relationship started during the visit if he plans to extend the stay. Part III, 2(c).
- The restrictions on short stays for higher education purposes are discriminatory and unreasonable. Only those “lecturers” and “researchers” seeking to teach in “Palestinian academe” (defined to include Palestinian institutions located in Israeli-annexed East Jerusalem, see Appendix C), must apply for a permit under the COGAT rules. Part III, Section 3(d)(1). They are also restricted to using the Allenby Bridge Crossing to enter the West Bank and must disclose any familial connections they have in the West Bank. In addition, they will only be considered for a permit if they hold at least a doctorate though an exception may be allowed by Israeli military officials if it is determined that the permit applicant has “unique expertise.” Part III, Section 3(e). Students seeking to study in Palestinian academe may be required to go to an Israeli embassy or consulate for an interview if there is a “suspicion” that they will “misuse” the visa.” Part III, Section 4(b)(2). They must explain why they are pursuing their chosen degree and disclose any family connections they have in the West Bank. Part II, Section 4(c). The rules provide that Israeli military officials will compile a “list of approved students” for the academic year. In contrast to scholars and students wishing to teach or study at a Palestinian institution, those seeking a permit to teach or study at an Israeli university inside a West Bank settlement do not face the same restrictions.
- Israeli military officials are given absolute discretion to determine what types of medical professionals, teachers, businesspeople, investors and experts are needed in the Palestinian health, education and business sectors in the West Bank. Part III, Section 6. A foreign employee seeking a permit to approach an Israeli-controlled border crossing to work in the West Bank must send her application at least two months in advance of travel and she must disclose her family connections in the area. Visas for foreign employees in the West Bank are limited for one year though they may be renewed for up to a 27-month period. No such restrictions apply to the same type of foreign employees seeking to enter for work in West Bank settlements.
It is important to note that an Israeli denial of a permit to approach an Israeli-controlled border crossing is not the same thing as a visa denial. A person may obtain a permit under the COGAT rules and still be denied a visitor’s visa at an Israeli-controlled border crossing. The COGAT rules state that Israeli authorities maintain a list of foreign nationals who have been denied entry. Part I, Section 9(a). But it is unclear whether COGAT will maintain data on denials of COGAT permits and whether that information will be shared with countries that have signed a visa waiver agreement with Israel. After the new COGAT rules take effect in October 2022, the number of foreign nationals denied a visitor’s visa may appear to have gone down when in fact certain groups of foreign nationals may have never been permitted to apply for a visa at a border crossing in the first place.
To ensure that Americans are not being denied entry for discriminatory reasons now and in the future, a mechanism for obtaining data on both Israeli visa denials and COGAT permit denials is necessary. Absent such a mechanism, there is no way to ensure that Israel would be in compliance with the US Visa Waiver Program.