I.H. (Afghanistan) v Minister for Justice and Equality
| Jurisdiction | Ireland |
| Judge | Ms. Justice Donnelly |
| Judgment Date | 10 August 2020 |
| Neutral Citation | [2020] IECA 241 |
| Docket Number | Record No.: 391/2019 |
| Court | Court of Appeal (Ireland) |
| Date | 10 August 2020 |
[2020] IECA 241
Donnelly J.
Ní Raifeartaigh J.
Binchy J.
Record No.: 391/2019
THE COURT OF APPEAL
The appellant was declared a refugee on the 21st July, 2016 by the respondent Minister. Afghanistan is his country of origin. His wife from his marriage (“his first marriage”) in Afghanistan died there while he was in the process of seeking refugee status. After the death of his first wife, and while waiting for his application for refugee status to be determined, he entered into a marriage in Ireland (“the second marriage”). While that marriage was still subsisting, he entered into a polygamous marriage in Pakistan (“the third marriage”). He made an application for family reunification under the provisions of s. 18 of the Refugee Act, 1996 (hereinafter, “the Act of 1996”) in respect of a number of family members. For ease of reference, I will call the woman with whom he entered into his third marriage his third wife, but this does not affect the legal issue that I must determine in this judgment.
At issue in this case is his application for reunification with his wife from the third marriage. The appellant claims that she is his spouse within the meaning of the said Act. It is not in dispute that his third marriage was lawfully conducted and recognised by the law of Pakistan, even though he was still married to his second wife. At the time of the application for reunification the appellant was married to his second wife. He divorced his second wife subsequently. The respondent (hereinafter, “the Minister”) to these proceedings, refused the appellant's application for family reunification on the basis that his third wife was not his spouse within the meaning of s. 18 of the Act of 1996. The appellant sought review of that decision by way of judicial review. The High Court (Humphreys J.) refused to grant an order of certiorari quashing the decision of the Minister to refuse the appellant's application for family reunification under s. 18 of the Act of 1996 and it is against that decision that this appeal was brought.
Section 18 of the Act of 1996 makes provision for family reunification of the refugee's family. Family reunification is an important aspect of refugee settlement within the country of safety. Since its establishment, the Office of the UN High Commissioner for Refugees has sought to ensure the reunification of separated families. This is for humanitarian and practical purposes and in recognition of the principle of the family unit as the natural and fundamental unit of society and is entitled to protection by society and the State.
In brief, s. 18 sets out that where a person is a (defined) member of the refugee's family, the Minister must grant (subject to the requirements of national security and public policy) permission for the person to enter and reside in the State. A spouse is a member of the family and therefore, subject to the requirements of national security and public policy, must be granted permission to enter and reside in the State.
Section 18, in so far as it is relevant to the present case provides:
“(1) Subject to section 17(2), a refugee in relation to whom a declaration is in force may apply to the Minister for permission to be granted to a member of his or her family to enter and to reside in the State and the Minister shall cause such an application to be referred to the Commissioner and a notification thereof to be given to the High Commissioner. […]
(3)(a) Subject to subsection (5), if, after consideration of a report of the Commissioner submitted to the Minister under subsection (2), the Minister is satisfied that the person the subject of the application is a member of the family […] of the refugee, the Minister shall grant permission in writing to the person to enter and reside in the State and the person shall be entitled to the rights and privileges specified in section 3 for such period as the refugee is entitled to remain in the State.
(b) In paragraph (a), “member of the family”, in relation to a refugee, means—
(i) in case the refugee is married, his or her spouse (provided that the marriage is subsisting on the date of the refugee's application pursuant to subsection (1)), […]
(5) The Minister may refuse to grant permission to enter and reside in the State to a person referred to in subsection ( 3) or (4) or revoke any permission granted to such a person in the interest of national security or public policy (” ordre public”).”
Section 29 of the Family Law Act, 1995 (“the Act of 1995”) permits the Circuit Court to make a declaration that a marriage was at its inception a valid marriage and to make a declaration that the marriage subsisted on a date specified in the application to the Court. The relevant provisions are as follows:
“(1) The court may, on application to it in that behalf by either of the spouses concerned or by any other person who, in the opinion of the court, has a sufficient interest in the matter, by order make one or more of the following declarations in relation to a marriage, that is to say:
(a) a declaration that the marriage was at its inception a valid marriage,
(b) a declaration that the marriage subsisted on a date specified in the application,
(c) a declaration that the marriage did not subsist on a date so specified, not being the date of the inception of the marriage,
(d) a declaration that the validity of a divorce, annulment or legal separation obtained under the civil law of any other country or jurisdiction in respect of the marriage is entitled to recognition in the State,
(e) a declaration that the validity of a divorce, annulment or legal separation so obtained in respect of the marriage is not entitled to recognition in the State.
[…]
(4) The court may, at any stage of proceedings under this section of its own motion or on application to it in that behalf by a party thereto, order that notice of the proceedings be given to the Attorney General or any other person and that such documents relating to the proceedings as may be necessary for the purposes of his or her functions shall be given to the Attorney General.
(5) The court shall, on application to it in that behalf by the Attorney General, order that he or she be added as a party to any proceedings under this section and, in any such proceedings, he or she shall, if so requested by the court, whether or not he or she is so added to the proceedings, argue any question arising in the proceedings specified by the court. […]
(8) A declaration under this section shall be binding on the parties to the proceedings concerned and on any person claiming through such a party and, if the Attorney General is a party to the proceedings, the declaration shall also be binding on the State.
(9) A declaration under this section shall not prejudice any person if it is subsequently proved to have been obtained by fraud or collusion.
(10) Where proceedings under this section, and proceedings in another jurisdiction, in relation to the same marriage have been instituted but have not been finally determined, the court may stay the first-mentioned proceedings until the other proceedings have been finally determined.
(11) In this section a reference to a spouse includes a reference to a person who is a party to a marriage that has been dissolved under the Family Law (Divorce) Act, 1996.”
The trial judge (Humphreys J.) delivered an ex tempore ruling on the matter dismissing the appellant's claim for an order of certiorari quashing the decision of the respondent refusing to grant the family reunification application. Humphreys J. later provided his reasoning in a written judgment available at [2019] IEHC 698.
In holding that the Minister was precluded from recognising the appellant's third marriage, Humphreys J. relied on H.A.H. v. S.A.A. [2017] 1 I.R. 372. He accepted that a “potentially polygamous marriage” should be recognised in Irish law, but held that if a marriage was de facto polygamous, then the subsequent wife was not recognised as such in this jurisdiction. Humphreys J. held that the Minister's decision was not a decision made by him on the ground of public policy, rather it was an application of Irish law. Irish law did not recognise the marriage of the appellant to his third wife because it would be contrary to public policy.
In reaching his decision, Humphreys J. held that the Minister was correct in basing his decision on s. 18(3)(b)(i) of the Act of 1996, which requires the marriage of the applicant to be recognisable in Irish Law. Section 18(3)(b)(i) requires the marriage to be recognisable in Irish law, even where the marriage was valid in the country of celebration. Secondly, for a reunification application, the requirement is “that marriage is subsisting on the date of the refugee's application pursuant to subsection (1)”. Humphreys J. held that the word “spouse” means a spouse of a valid subsisting marriage. If the marriage is contrary to public policy then the wife is not a spouse under this section, per Fennelly J. in Hassan v. Minister for Justice, Equality and Law Reform [2013] IESC 8.
Humphreys J. held that an alleged breach of Article 41 of the Constitution and Article 8 of the European Convention on Human Rights (hereinafter, “the ECHR”) by the Minister does not arise due to the non-recognition of a second marriage. Polygamous marriages are not contrary to the ECHR, as found in R.B. v. United Kingdom (Application No. 19628/92, 29th June, 1992).
The High Court held that the Minister was correct in holding that the marriage between the applicant and his third wife remains polygamous even where...
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O v Minister for Justice
...to a polygamous marriage. Such a status is not recognised in Irish law ( H.A.H. v S.A.A. [2017] 1 IR 372; I.H. v Minister for Justice [2020] IECA 241) and cannot, therefore, ground a comparison for the purpose of asserting a constitutional right of a non-married person to be treated equally......