I.H. (Afghanistan) v Minister for Justice & Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 21 October 2019
• Neutral Citation: [2019] IEHC 698
• Court: High Court
• Docket Number: [2019 No. 52 J.R.]
• Date: 21 October 2019

[2019] IEHC 698

THE HIGH COURT

JUDICIAL REVIEW

Richard Humphreys

[2019 No. 52 J.R.]

BETWEEN

I.H. (AFGHANISTAN)

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

Judicial review – Family reunification – Public policy – Applicant seeking an order of certiorari quashing the decision of the respondent – Whether the respondent erred in law and acted unreasonably and irrationally in finding that the granting of the applicant's application for family reunification in respect of his wife was precluded by public policy

Facts: The applicant filed a statement of grounds on 25th January, 2019, the primary relief sought being an order of certiorari quashing the decision of the respondent, the Minister for Justice and Equality, of 26th October, 2018, refusing the applicant’s family reunification application in respect of his third wife and her daughter. Ground A contended that “The Respondent erred in law and acted unreasonably and irrationally in finding that granting of the Applicant's application for family reunification in respect of his wife ... was precluded by public policy, in circumstances where there was no rational basis on public policy grounds, and a fortiori no substantially incontestable basis, for withholding recognition of the marriage between the Applicant and his one wife ..., which is de facto monogamous”. Ground B contended that “the respondent acted in contravention of Article 41 of the Constitution in refusing the applicant’s application for family reunification in respect of his wife...on grounds of public policy”. Ground C contended that “the respondent erred in fact and in law in finding that the marriage between the applicant and his wife...remains polygamous in nature”. Ground D contended that “The Respondent erred in law in making his decision on the basis that, in order for a refugee's spouse to qualify as a “spouse” for the purposes of section 18(3)(b)(i) of the Refugee Act 1996, their marriage must be recognisable under Irish law, even where the marriage is valid under the law of the state in which it took place”. Ground E contended that “The Respondent has acted in breach of the Applicant's right to respect and protection for his family under Article 41 of the Constitution and Article 8 of the European Convention on Human Rights”. Ground F contended that “the respondent erred in fact and in finding that [the third wife’s daughter] is not the applicant’s step daughter and/or independent and/or ward by reason of the perceived invalidity of the applicant’s marriage to [the daughter’s] mother...the respondent’s refusal of the family reunification application in respect of [the daughter] is therefore invalid”.

Held by the High Court (Humphreys J) that the Minister was correct to refuse family reunification on the basis that the third “wife” is not a wife because the applicant was married to another person at the time of celebration of that “marriage”; to recognise such a “marriage” would be contrary to public policy. Humphreys J held that if the marriage is not to be recognised in Irish law, then Article 41 of the Constitution does not confer any rights in that regard. Humphreys J held that a divorce from the first spouse does not render a second marriage non-polygamous if it was actually polygamous on the date it was contracted; an actually polygamous marriage is invalid ab initio. Humphreys J held that the word “spouse” in s. 18 of the 1996 Act means a spouse in a subsisting valid marriage; if the marriage is contrary to public policy, then the “wife” is not a spouse for the purposes of the section. Humphreys J held that Article 8 of the ECHR was not breached because the non-recognition of a second marriage in a polygamous situation is within the margin of appreciation open to contracting states and was recognised as not contrary to the Convention by the European Commission of Human Rights in R.B. v United Kingdom (Application No. 19628/92, 29th June, 1992). Humphreys J held that even if the applicant had applied under s. 18(4) of the 1996 Act, which he did not, it would not have been an error to consider the child of the third wife as not being a stepchild or a ward if the marriage is not being recognised.

Humphreys J held that the application would be dismissed.

Application dismissed.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 21st day of October, 2019

1 The applicant was born in Afghanistan in 1980. In 2001 he married his first wife, Ms. H. He claimed to have suffered persecution in Afghanistan from 2006 to 2007. He says he left Afghanistan on 20th September, 2007 and travelled through Pakistan, Turkey, Greece, Italy and France, arriving in the State on 28th February, 2008. He applied for asylum here on 3rd March, 2008. That application was rejected by the Refugee Applications Commissioner.

2 His lawyers state in submissions that judicial review was sought against that negative decision, although (contrary to the Practice Direction HC81) they have not produced any record number; and nor does that alleged proceeding appear on the High Court computer system, so it is not clear exactly what happened. Nonetheless, I am told that a second negative recommendation was ultimately produced which the applicant then appealed to the Refugee Appeals Tribunal. The tribunal rejected that appeal on 25th July, 2011. That was then the subject of further judicial review proceedings [2011 No. 916 J.R.].

3 In August, 2012, the applicant's first wife, Ms. H., died. In 2013 the applicant married a second “wife”, Ms. S. Without obviously making any finding in this regard, one has to note that many of the features prevalent in the marriages-of-convenience industry are present here. The instant falling in love immediately upon meeting the “wife”, the instant marriage which took place in August, 2013, after a relationship that began earlier in the same year, and the instant application for EU Treaty rights after the marriage. In this case, he applied for a temporary permission to remain in the State, which was given on 29th October, 2013, two months after the marriage, and then almost equally instantly he broke up with the “wife”, who had left Ireland by early 2014. It is also to be noted that at the time of the marriage, the only basis for the applicant's presence in the State was that of being a failed asylum claimant who was judicially reviewing the refusal of asylum, so he was obviously a good catch at that point in time.

4 In any event, the applicant's fortunes were to improve considerably when Stewart J. granted an order of certiorari in the second judicial review on 12th January, 2016 ( see I.H. (Afghanistan) v. Refugee Appeals Tribunal [2016] IEHC 14 [2016] 1 JIC 1203 (Unreported, High Court, 12th January, 2016)). His situation then came to something of a crunch in mid-2016. On 16th March, 2016, the first husband of the woman who was to become the applicant's third wife died. On 21st July, 2016, following remittal of the asylum claim to the tribunal, the applicant was declared to be a refugee. Very shortly thereafter in October, 2013 the applicant then “married” the third wife, Ms. N., in Pakistan. That illustrates another feature of the typical marriage of convenience situation, again without having to make any specific finding in this regard. Characteristic of such cases is that as soon as an applicant's legal status is established, the “real wife” emerges from the shadows. Of course given the timing I have referred to, the applicant had not divorced the second “wife” by that stage. The State in the present case have not positively asserted that the second marriage was invalid because it was one of convenience, and nor has the applicant, who in any event could not rely on his own wrong, so I must proceed on the basis that it was a valid marriage.

5 The third wife is an Afghan citizen and apparently had been an acquaintance of the applicant since childhood. They both travelled to Pakistan to get married, the applicant coming from Ireland and she from Afghanistan. As noted above, she was previously married and had a daughter, born in 2014, with her first husband. I am informed that under Pakistani law, being that of the place of celebration, it was permissible for the applicant to marry a third wife without at that stage having been divorced from the second wife.

6 On 15th December, 2016, the applicant submitted an application for family reunification in respect of eight people - his third “wife”, her daughter, his two sons from the first marriage, his two brothers and two nephews. It appears to be common case between the parties that the application fell to be considered under s. 18 of the Refugee Act 1996. On 31st December, 2016, the International Protection Act 2015 came into force and so if the application were to be granted the permission would be granted under s. 56 of that Act having regard to s. 70(15) of the Act.

7 The applicant and the second “wife” were divorced on 6th November, 2017. On 19th June, 2018, the International Protection Office issued a negative proposal under the s. 18(2) of the Refugee Act 1996. That gave rise to further correspondence between the parties and ultimately to a further decision on 26th October, 2018 whereby the respondent refused the family reunification application in respect of the third wife, her daughter and the nephews. The situation regarding the nephews is that that refusal has since been revoked and their situation is now being reconsidered by the Minister, so therefore does not form part of anything I have to decide.

Procedural history

8 The statement of grounds was filed on 25th January, 2019, the primary relief sought being an order of certiorari quashing the decision of 26th October, 2018. An ancillary order was sought directing that the s. 18 application be reconsidered, as was declaratory relief, but all of that is dependent on the applicant succeeding on...