Hassan v Minister for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 25 November 2010
• Neutral Citation: [2010] IEHC 426
• Docket Number: [No. 1054 J.R/2009]
• Court: High Court
• Date: 25 November 2010

[2010] IEHC 426

THE HIGH COURT

[No. 1054 J.R/2009]

Hassan & Saeed v Min for Justice

MR JUSTICE COOKE

APPROVED TEXT

JUDICIAL REVIEW

BETWEEN

ABDI JAMA HASSAN AND SAFIYA SAEED

APPLICANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

HAMZA & ELKHALIFA v MIN FOR JUSTICE UNREP COOKE 25.11.2010 2010 IEHC 427

REFUGEE ACT 1996 S18(3)

REFUGEE ACT 1996 S18

REFUGEE ACT 1996 S18(2)

FAMILY LAW ACT 1995 S29

CONLON v MOHAMMAD 1987 ILRM 172

REFUGEE ACT 1996 S18(3)(B)

IMMIGRATION LAW

Family reunification

Spouse - Inability to furnish documentary evidence of marriage - Marriage in religious ceremony in Somalia - Conflict at time of marriage - Absence of civil registration system - Inability to register marriage - Application refused on ground of insufficient documentary evidence - Refugee status in another country - Whether foreign marriage contracted in religious ceremony capable of recognition in Irish law - Whether declaration of validity of marriage in Irish law necessary - Whether decision based on incorrect interpretation of applicable statutory test of marital relationship - Refugee Act 1996 (No 17), s 18 - Family Law Act 1995 (No 26), s 29 - Certiorari granted (2009/1054JR - Cooke J - 25/11/2010) [2010] IEHC 426

Hassan v Minister for Justice

Facts: The proceedings raised similar questions to the related case of Hamza v. Minister for Justice Equality and Law Reform [2009 No. 794 JR]. The applicants were nationals of Somalia who had fled the country and the second named applicant was the subject of a family reunification procedure as the spouse of the first named applicant. The first named applicant had been unable to provide documentation of the marriage and the ceremony was alleged to have been religious. The application for family reunification had been refused on the basis of inadequate documentation. The question arose as to the required formalities for a valid marriage and how the marriage was valid under Irish law.

Held by Cooke J. that the Court would grant the application for an order of certiorari to quash the refusal of the respondent of the applicant on the basis that it was predicated on a mistaken view that a foreign marriage contracted in a religious ceremony was incapable of recognition as valid under Irish law and that it was based upon an incorrect interpretation of the test of a marital relationship applicable under s. 18(3)(b) Refugee Act, 1996. It still was possible that the marriage was valid under Irish law as a common law marriage.

Reporter: E.F.

Mr. Justice Cooke

1 This is the second of the two "family reunification" cases which were heard together and in which judgments are delivered today. The other case is that ofHamza and Another v. MJELR [2009 No. 794 J.R.].

2 The circumstances in which the present case arises differ from those of theHamza case, but several of the legal issues that are raised have been answered in the Hamza case and it is unnecessary, therefore, to repeat the reasons given in that judgment in relation to those issues. The circumstances of the present case, it might be said, however, illustrate one consideration mentioned by the Court at paragraph 29 of the earlier judgment as regards the approach to be adopted in construing and applying the concept of "spouse in a subsisting marriage" in s. 18(3) of the Refugee Act 1996 (as amended). This is a case in which the applicants are nationals of Somalia, both of whom have fled that country, the first named applicant having arrived in the State in 2003, and been declared to be a refugee the following year. The second named applicant who is the subject of the application for family reunification as the "spouse" of Mr. Hassan, has apparently been living in Ethiopia as a refugee for a number of years. The country of origin information submitted on behalf of the applicants to the Minister demonstrates in detail a fact which is apparent to the general public from frequent news broadcasts, namely, that for more than a decade Somalia has been a failed State in which central and local government and administration have collapsed and where there is no functioning judicial system.

3 Thus, when the first named applicant applied, in November 2005, to the Minister, under s. 18, for permission for the second named applicant, together with a niece and nephew of his, to enter and reside in the State, he was unable to furnish any certificate or other documentary evidence of the marriage which he claimed had been solemnised between himself and the second named applicant in Mogadishu on 5^th December, 1998. The ceremony was a religious one performed by a sheik who had issued them with a certificate which they no longer possessed because it was left behind when they left Somalia. The marriage could not be registered because of the absence of any civil registration system due to the conflict in the country. That this explanation was credible and well founded in the circumstances prevailing in Somalia since 1991, was subsequently confirmed by the country of origin information submitted by the applicants' solicitors by letter of 6^th October, 2009, towards the end of an extensive exchange of correspondence with the Family Reunification section ("FRS",) of the INIS in relation to the original refusal of the application and its subsequent reconfirmation. This documentation confirms that, prior to the collapse of the Somalia state in 1991, there had existed a centrally administered system for the appointment and registration of persons authorised to perform marriages under the aegis of the Ministry of Justice and Religious Affairs. This system was discontinued in 1991, but local Sharia courts "have, to a certain extent, retained some form of oversight and control over those authorised to perform marriages. Marriage certificates have also been issued by Sharia courts in Mogadishu and other towns after 1991". It also points out, however, "no national or local registers containing information on marriages certified by these courts exist, and the Sharia courts have only invariably kept possession of copies of the issued certificates, hence, it is very difficult or impossible to verify such certificates. Civil marriages have never been performed in Somalia".

4 When originally made, the application was referred by the F.R.S. to the Office of the Refugee Applications Commissioner for a report on the relationship between the applicants and the nephew and niece under s. 18(2) of the Act. (As the present proceeding concerns only the position of the second named applicant, further reference to the exchanges in relation to the nephew and niece will be omitted).

5 The report furnished by the ORAC dated 22^nd August, 2006, confined its comments in relation to the second named applicant to these:

"Mr. Hassan states that he married his wife on 5/12/98 and were married in a religious ceremony in Somalia. The refugee has not provided documentation to attest to his relationship with his wife, nor to her identity or nationality. He has submitted passport-type pictures of the person he states is his wife. In a written submission, he states he does not possess original documents due to ongoing difficulties in Somalia. The information in...