Izmailovic &; Ads v Commissioner of an Garda Síochána and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 31 January 2011
• Neutral Citation: [2011] IEHC 32
• Court: High Court
• Docket Number: [2011 No. 51 JR]
• Date: 31 January 2011

[2011] IEHC 32

THE HIGH COURT

[No. 51 JR/2011]

Izmailovic & Ads v Commissioner of An Garda Siochana & Ors

IN THE MATTER OF AN APPLICATION UNDER ARTICLE 40.4.2 OF THE CONSTITUTION OF IRELAND

BETWEEN

JUSTINIA IZMAILOVIC AND MAHMOUD ELMORSY ADS

APPLICANTS

AND

COMMISSIONER OF AN GARDA SIOCHANA, MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

CONSTITUTION ART 40.4.2

IMMIGRATION ACT 1999 S5(1)

CIVIL REGISTRATION ACT 2004 S58

EAST DONEGAL CO-OPERATIVE LIVESTOCK MART LTD & ORS v AG 1970 IR 317

CONSTITUTION ART 41.3.1

STATE (TRIMBOLE) v GOVERNOR OF MOUNTJOY PRISON 1985 IR 550 1985 ILRM 465

IMMIGRATION ACT 1999 S5

CIVIL REGISTRATION ACT 2004 S58(1)

DPP v HOWLEY 1989 ILRM 629 1988/4/995

CIVIL REGISTRATION ACT 2004 S2

VERVAEKE v SMITH & ORS 1983 1 AC 145 1982 2 WLR 855 1982 2 AER 144

S (H) v S (J) UNREP SUPREME 4.3.1992 1992/4/950

ORLANDI v CASTELLI 1961 SC 113 1961 SLT 118

CIRPACI v MIN FOR JUSTICE 2005 4 IR 109 2005 2 ILRM 547 2005/10/2112 2005 IESC 42

CIVIL REGISTRATION ACT 2004 S58(3)

CIVIL REGISTRATION ACT 2004 S58(4)

CIVIL REGISTRATION ACT 2004 S2(2)

CIVIL REGISTRATION ACT 2004 S58(5)

CIVIL REGISTRATION ACT 2004 S46

CIVIL REGISTRATION ACT 2004 S58(4)(A)(iii)

PROVINCIAL BANK OF IRELAND v MCKEEVER 1941 IR 471

K (D) v JUDGE CROWLEY & ORS 2002 2 IR 744 2003 1 ILRM 88 2002/14/3380

K (C) v K (J) & MCG (F) 2004 1 IR 224 2004 2 ILRM 168 2004/23/5365 2004 IESC 21

CONSTITUTION ART 40.3.1

CIVIL REGISTRATION ACT 2004 S2(2)(D)

CIVIL REGISTRATION ACT 2004 S58(11)

MIN FOR INDUSTRY v HALES 1967 IR 50

EEC DIR 2004/38 ART 3

METOCK & ORS v MIN FOR JUSTICE 2009 QB 318 2009 2 WLR 821 [2009] AER (EC) 40 2008 ECR I-6241

EEC DIR 2004/38 ART 35

EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (NO 2) REGS SI 656/2006 ART 2(1)

EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (NO 2) REGS SI 656/2006 ART 24

MIN FOR AGRICULTURE & ORS v ALBATROS FEEDS LTD 2007 1 IR 221 2006/38/8174 2006 IESC 52

EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (NO 2) REGS SI 656/2006 ART 4

EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (NO 2) REGS SI 656/2006 ART 5

EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (NO 2) REGS SI 656/2006 ART 6(1)

EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (NO 2) REGS SI 656/2006 ART 21

EEC DIR 2004/38 ART 31

MBEBE, IN RE UNREP GILLEN 29.9.2008 2008 NIQB 108

CONSTITUTION

Personal rights

Arrest - Legality - Plurality of motives for arrest - Principal reason for arrest - Failed asylum seeker - Deportation order - Suspected marriage of convenience - Proposed marriage to European Union national - Potential derivative right of residence - Whether arrest lawful where principal object to prevent exercise of right which, once exercised, would prima facie negate reason for arrest - People (DPP) v Howley [1989] ILRM 629 and State (Trimbole) v Governor of Mountjoy Prison [1985] IR 550 considered; East Donegal Co-operative Livestock Mart Ltd v Attorney General [1970] IR 317 applied - Immigration Act 1999 (No 22), s 5(1) - Constitution of Ireland 1937, Article 40.4.2 - Release directed (2011/51JR - Hogan J - 31/1/2011) [2011] IEHC 32

Ismailovic v Commissioner of An Garda Siochána

EUROPEAN UNION

Free movement of persons

Right of family members to move and reside freely - Prevention of abuse of rights - Implementation of Council Directive 2004/38/EC - Marriage of convenience - Jurisdiction to review motives for marriage - Jurisdiction to prevent marriage - Safeguards in respect of review of motives for marriage - Whether review to occur pre or post solemnisation of marriage - Official empowered to conduct review - Whether Garda Síochána empowered to conduct review or prevent solemnisation of marriage - Blaise Baheten Metock v Minister for Justice (Case C-127/08) [2008] ECR I-6241 followed; Albatros Feeds Ltd v Minister for Agriculture and Food [2006] IESC 52, [2007] 1 IR 221 considered; In re Mbebe [2008] NIQB 108 approved - European Communities (Free Movement of Persons) (No 2) Regulations 2006 (SI 656/2006), arts 2, 4, 5, 6, 21 and 24 - Civil Registration Act 2004 (No 3), ss 2, 58 - Constitution of Ireland 1937, Articles 40.3.1 and 41.3.1 - Council Directive 2004/38/EC, Articles 3, 30, 31, 35 - Treaty of Rome 1957 - Relief granted (2011/51JR - Hogan J - 31/1/2011) [2011] IEHC 32

Ismailovic v Commissioner of An Garda Siochána

FAMILY LAW

Marriage

Right to marry - Power to object to marriage - Interpretation of âÇÿimpediment' to marriage - Suspected marriage of convenience - Jurisdiction of Registrar to refuse to solemnise marriage - Validity of marriage contracted for purpose of circumventing immigration laws - Relevance of mental reservations of parties to marriage - Constitution - Protection of institution of marriage - Whether proposed marriage of applicants valid - Whether any impediment to proposed marriage of applicants - Whether Registrar had jurisdiction to refuse to solemnise marriage where objection lodged but no impediment indicated - Vervaeke v Smith [1983] AC 145 followed; HS v JS (Unrep, SC, 3/4/1992) applied; Orlandi v Castelli (1961) SC 113 considered; Cirpaci v Minister for Justice [2005] IESC 42, [2005] 4 IR 109 distinguished; Provincial Bank v McKeever [1941] IR 471 approved; DK v Crowley [2002] 2 IR 744, CK v JK (Foreign divorce: estoppel) [2004] IESC 21, [2004] 1 IR 224, and Minister for Industry and Commerce v Hales [1967] IR 50 considered - Civil Registration Act 2004 (No 3), ss 2 and 58 - Constitution of Ireland 1937, Articles 40.3.1 and 41.3.1 - Relief granted (2011/51JR - Hogan J - 31/1/2011) [2011] IEHC 32

Ismailovic v Commissioner of An Garda Siochána

Facts The application was taken by the applicants as an application under Article 40.4.2 for the release of the second-named applicant (the applicant). Both applicants had been due to marry each other in a ceremony to be held in Cavan. The first applicant was a Lithuanian national who was self employed while the second-named applicant was an Egyptian national. The applicant had been refused asylum and a deportation order had been issued in respect of him by the Minister for Justice. When the applicants travelled to Cavan for the marriage ceremony members of the Garda National Immigration Bureau were there and arrested the applicant (Mr. Ads) pursuant to s. 5(1) of the Immigration Act 1999 before the ceremony took place. The Gardaí also handed over a letter of objection to the proposed marriage. The applicants sought to challenge the legality of the applicant's detention. At issue was whether the arrest itself was a lawful one, whether the Gardaí were entitled to intervene in the manner that they had done and whether the detention of the applicant Mr. Ads was lawful.

Held by Hogan J in ordering the release of the applicant. The principal reason for the arrest was to prevent the marriage so that Mr. Ads could not acquire the benefit of EU Treaty rights under the European Communities (Free Movement of Persons)(No.2) Regulations 2006. The marriage would have been valid as a matter of Irish law even if it was a marriage of convenience. The question of whether the marriage was a marriage of convenience could only have been established by a senior official of the Minister after the fact in accordance with Article 21 of the 2006 Regulations. There was no impediment to the marriage in the sense envisaged by s. 2 of the Civil Registration Act 2004 so that the letter of objection lodged by the Gardaí was not a valid objection within the meaning of s. 58(1) of the Civil Registration Act 2004. The arrest of Mr. Ads was unlawful and he should be released. If the law in this area was considered to be unsatisfactory, then it was, of course, in principle open to the Oireachtas and, if so required, the European Union legislature to address these questions.

Reporter: R.F.

1 1.This application under Article 40.4.2 of the Constitution raises issues of very considerable public importance. As we shall presently see, these are difficult issues of some novelty involving an overlap of aspects of European law, constitutional law, family law, immigration law and the law of arrest.

2 2. The first applicant is a Lithuanian national who is a self employed painting and decorating contractor. She apparently met the second applicant over the internet in early 2009. She came to Ireland in May 2010. Some time after her arrival Ms. Izmailovic registered a business name with the Companies Registration Office and she also registered with the Revenue Commissioners for tax purposes.

3 3. The second applicant is an Egyptian national who unsuccessfully applied for asylum in 2008. He was subsequently made the subject of a deportation order which was issued on 5 ^th November, 2010, by the Minister for Justice, Equality and Law Reform. He then failed to present himself as required at the Garda National Immigration Bureau, 13/14 Burgh Quay, Dublin 2 on 2 ^nd December, 2010, whereupon he was then classified as an evader. It is plain that at present he has no entitlement to remain in the State and that he is here illegally.

4 4. The applicants maintain that they have been living together at an address in Dublin since shortly after Ms. Izmailovic's arrival in the State in May, 2010. They apparently rented the premises for a twelve month period for €550 per month. In her affidavit Ms. Izmailovic has exhibited utility bills which appear to show that the parties were both living at this address in the autumn 2010. She also maintains that the parties went through a religious ceremony of marriage in a mosque in Clanbrassil Street, Dublin 8 on the 12 ^th July, 2010, although it is not contended that this religious marriage has in itself any legal significance.

5 5. What is not in dispute is that the parties gave notice on 12 ^th October, 2010...