Hamza & Elkhalifa v Min for Justice

JurisdictionIreland
JudgeMr. Justice Cooke
Judgment Date25 November 2010
Neutral Citation[2010] IEHC 427
CourtHigh Court
Date25 November 2010
Hamza & Elkhalifa v Min for Justice
MR JUSTICE COOKE
APPROVED TEXT
JUDICIAL REVIEW

BETWEEN

MOHAMMED HUSSEIN AHMED HAMZA AND ASMA MAHGOUB ELKHALIFA
APPLICANTS

AND

MINISTER FOR JUSTICE EQUALITY AND LAW REFORM
RESPONDENT

[2010] IEHC 427

[No. 794 J.R./2009]

THE HIGH COURT

IMMIGRATION

Family reunification

Member of family - Spouse - Marriage - Valid and subsisting marriage - Marriage validly contracted in home country of applicants - Recognition of marriage- Marriage by proxy -Validity of marriage - Lex loci celebrationis - Pre-marital domicile - Declaration as to marital status - Role and responsibility of respondent in family reunification applications- Delegation of statutory responsibilities of respondent - Potentially polygamous marriage -Statutory requirement of valid and subsisting marriage - Whether statutory requirement satisfied - Whether applicants married for purposes of Act - Whether respondent entitled to require that subsisting validity of applicants' marriage be confirmed by another body - Conlon v Mohamed [1987] ILRM 172 distinguished; Berthiaume v Dastous [1930] AC 79 and Sottomayor v De Barros 3 PD 1 followed - Refugee Act 1996 (No 17), s 18 - Family Law Act 1995 (No 26) - Council Directive 2003/86/EC - Relief granted (2009/794JR - Cooke J - 25/11/2010) [2010] IEHC 427

Hamza v Minister for Justice

STATUTORY INTERPRETATION

International instrument

Purposive construction - Whether provision should be construed in accordance with intention of member states - Council Directive 2003/86/EC - United Nations High Commissioner for Refugees Guidelines on Reunification of Refugee Families 1983 - United Nations High Commissioner for Refugees Resettlement Handbook (Geneva, November, 2004) - United Nations High Commissioner for Refugees Executive Committee on Family Reunification Conclusions 21st October, 1981 - Relief granted (2009/794JR - Cooke J - 25/11/2010) [2010] IEHC 427

Hamza v Minister for Justice

WORDS AND PHRASES

"Member of family" - Refugee Act 1996 (No 17), s 18 (2009/794JR - Cooke J - 25/11/2010) [2010] IEHC 427

Hamza v Minister for Justice, Equality and Law Reform

Facts: The applicant a medical practitioner and native of Sudan was declared a refugee and claimed to have married the second named respondent in Sudan in 1990. He fled to Ireland without her in 1998. In 2007, he applied for permission for his wide, two children and his wife's mother to join him there. The application was refused on the basis that it was held that the marriage was "by proxy" and that the second named applicant was not a "member of the family" pursuant to s. 18(3)(b) Refugee Act 1996, as amended. The question arose as to whether the marriage was by proxy and whether there had been an error of law and whether the test applied was valid. The primary issue in the proceedings turned on the definition of a "member of the family" as applied to a spouse in family reunification proceedings pursuant to s. 18 Refugee Act, as amended. The question arose as to the requirement of the subsisting validity of the marriage of the refugee being confirmed by obtaining a declaration.

Held by Cooke J. that many of the issues raised did not have to be decided by the Court, including the potentially polygamous character of an Islamic marriage. If on reconsideration of evidence, the Minister was satisfied that the second named applicant was the mother of the children, the Minister would be entitled to grant an applicant in respect of her, provided he was satisfied that the marriage was a de facto monogamous marriage. The Court would grant an order of certiorari quashing the refusal of the applicant for error of law as to the reason given that the marriage was by proxy and not valid under Irish law and in applying a wrong test for the recognition of a subsisting marital relationship between the refugee and the spouse for the purposes of s. 18(3)(b)(i) of the Act of 1996.

Reporter: E.F.

REFUGEE ACT 1996 S18

ABDI JAMA HASSAN & ANOR v MIN FOR JUSTICE & ORS UNREP COOKE 25.11.2010 2010 IEHC 426

REFUGEE ACT 1996 S18(2)

REFUGEE ACT 1996 S18(3)

REFUGEE ACT 1996 S18(4)

REFUGEE ACT 1996 S18(3)A

REFUGEE ACT 1996 S18(4)4B

REFUGEE ACT 1996 S18(4)(A)

FAMILY ACT 1995 S29

CONLON v MOHAMED 1989 ILRM 523

SOTTO MAYOR v DE BARROS (NO1) 3PD1

BERTHIAUME v DASTOUS 1930 AC 79

APT v APT 1948 P 83

DICEY & MORRIS CONFLICT OF LAWS 13ED CHAP 17

REFUGEE ACT 1996 S18(3)(B)(I)

GENEVA CONVENTION 1951

GENEVA PROTOCOL 1967

EEC DIR 2003/86 RECITAL 17

UNHCR RESETTLEMENT HANDBOOK GENEVA NOVEMBER 2004

UNHCR EXECUTIVE COMMITTEE ON FAMILY REUNIFICATION NO. 24 (XXXII) - 1981 21/10/1981

EEC DIR 2003/86/EC REC 4

EEC DIR 2003/86/EC ART 4.1

EEC DIR 2003/86/EC ART 4.3

EEC DIR 2003/86/EC ART 5.2

EEC DIR 2003/86/EC ART 16.1

EEC DIR 2003/86/EC ART 4.4

MCMAHON & BINCHY IRISH LAW OF TORT 3ED CHAP 10 213

HYDE v HYDE & WOODMANSEE 1866 LR 1 P & D 130

DICEY & MORRIS CONFLICTS OF LAW 697

1

1. This is the first of two cases which were heard together because some of the issues of law which they raise were similar, although the factual circumstances out of which each proceeding arose were different. The cases were also, to some degree, representative of a number of other cases awaiting hearing arising out of analogous circumstances. All of the cases concern applications made to the respondent under s. 18 of the Refugee Act 1996 (as amended). The second case is that of Abdi Jama Hassan & Anor v. M.J.E.L.R. [2009 No. 1054 J.R.] in which judgment is also delivered today.

2

2. These cases are so-called "family reunification cases" in which an application under s. 18 has been made to the respondent by a person previously declared to be a refugee in this country, seeking permission for a member of his or her family to enter and reside in the State and has been refused.

3

3. Section 18 provides that such applications are to be first referred by the Minister to the Refugee Applications Commissioner (the "RAC") whose function it is "to submit a report in writing to the Minister and such report shall set out the relationship between the refugee concerned, and the person the subject of the application and the domestic circumstances of the person". (Sub-section 2).

4

4. The term "member of the family" is defined in subs. (3) of s. 18 as including, inter alia, "in the case that the refugee is married, his or her spouse (provided that the marriage is subsisting on the date of the refugee's application, pursuant to sub-section (1))". It is to be noted that in ss (3) and (4), a distinction is made between a "member of the family" as defined in ss (3) to cover the immediate members of the refugee's family and "dependent member of the family" as defined in ss.(4)(b). Where the Minister is satisfied that the subject of an application comes within the former definition, ss.(3)(a) requires that the "Minister shall grant permission … to enter and reside…" In the case of a dependent member of the family, ss.(4)(a) provides that the "Minister may at his or her discretion grant permission…".

5

5. The primary issue raised in the present case, as in most of the other cases awaiting hearing in this category, turns upon this definition of "member of the family" as applied to a spouse and arises, in effect, out of the refusal or inability of the Minister to decide to recognise, as the spouse of the refugee, the person in respect of whom permission to enter and reside has been sought. In particular, the issue is said to arise out of the terms of the Minister's refusal decision and as to whether the Minister is entitled to require that the subsisting validity of the refugee's marriage be confirmed by obtaining a declaration as to marital status by application to the Circuit Court under s. 29 of the Family Law Act 1995.

6

6. In the present case, the first named applicant ("Dr. Hamza") is a medical practitioner and native of Sudan who was declared to be a refugee in the State in May 2006. He claims to have married the second named applicant in Sudan in 1990 and says that she had remained there with their two children when he was forced to flee to Ireland in 1998. On 24 th May, 2007, Dr. Hamza applied, under s. 18, for permission to be granted for his wife, his two children and his wife's mother to join him here and to enter and reside in the State for that purpose.

7

7. On 12 th July, 2007, the office of the R.A.C. reported on its statutory investigation of that application. Apart from confirming that the information given by Dr. Hamza in the Birth, Marriage and Divorce Certificates and other documentation submitted was consistent with that in the original asylum application, the report confines itself to the comment that the Passports of the wife and mother-in-law conform to the design and form of known Sudanese Passports and that, on examination, they disclosed no obvious signs of alteration or additions.

8

8. By letter of 6 th April, 2009, the application was refused in respect of the second named applicant, Dr. Hamza's wife. The essential reason for the refusal was given in these terms:

"Following consideration of your application under s. 18 (3) of the Refugee Act 1996, the above application is being refused. Ms. Asma Mahgoub Elkhalifa does not qualify as a 'member of the family' under s. 18 (3) (b) of the Refugee Act 1996 as the marriage was by proxy, it does not appear to be valid under Irish law."

The letter then added:

"It is open to you to seek a declaration from the Irish, courts under s. 29 of the Family Law Act 1995, that the marriage in question is a valid marriage. You can arrange this through your solicitors. This is, of course, a matter entirely for you and your legal advisers to consider and the Department of Justice, Equality and Law Reform has no role in the matter."

9

9. By separate decision of the same date...

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