Kelly v Ireland

• Jurisdiction: Ireland
• Judgment Date: 01 January 1996
• Date: 01 January 1996
• Docket Number: [1993 No. 4 J.R.]
• Court: High Court

Kelly v. Ireland

Fatima Haroun Osman Kelly

Applicant

and

Ireland, The Minister for Foreign Affairs and The Attorney General

Respondents

[1993 No. 4 J.R.]

High Court

Family law - Husband and wife - Marriage - Acceptance of Irish citizenship as post-nuptial citizenship - Whether marriage valid - Whether parties capable of entering into a valid marriage - Whether parties had truly consented to the marriage - Whether marriage a sham to achieve purpose other than that of parties becoming man and wife - Whether motivation behind marriage can invalidate consent to marriage - Irish Nationality and Citizenship Act, 1956 (No. 26), s. 8.

Aliens - Acceptance of Irish citizenship as post-nuptial citizenship - Whether marriage must be recognised by Irish law - Whether sufficient if recognised by law of place of marriage - Irish Nationality and Citizenship Act, 1956 (No. 26), s. 8.

Section 8, sub-s. 1 of the Irish Nationality and Citizenship Act, 1956 provides:—

"A woman who is an alien at the date of her marriage to a person who is an Irish citizen (otherwise than by naturalisation) shall not become an Irish citizen merely by virtue of her marriage, but may do so by lodging a declaration in the prescribed manner with the Minister, or with any Irish diplomatic mission or consular office, either before or at any time after the marriage accepting Irish citizenship as her post-nuptial citizenship."

The applicant, a Sudanese citizen by birth, went through a ceremony of marriage to an Irish citizen, one D.A.K., in London on the 23rd June, 1984. Prior to that ceremony the applicant had held herself out as being married to a third party. At the time of the ceremony of her marriage to D.A.K., the applicant was residing in the United Kingdom. She had been refused permission to stay in the United Kingdom and was appealing that decision.

Following the ceremony of marriage between the applicant and D.A.K., the applicant applied for and obtained an Irish passport from the Irish Embassy in London on the 28th September, 1984. In or around the time of issue of the passport to the applicant, other passports had been fraudulently issued by an official in the Irish Embassy in London to persons purporting to be married to Irish citizens. D.A.K. left the applicant at the end of October, 1984.

On the 6th January, 1991, the applicant sought to enter the United Kingdom. She was refused entry and her Irish passport was taken from her. She was subsequently allowed to enter the United Kingdom pending resolution of these proceedings.

On the 12th February, 1992, the applicant was informed by the Irish Embassy in London that the Irish passport had been issued to her unlawfully and that she was not entitled to it. On the 26th August, 1992, the second respondent made a decision to impound the applicant's passport and she was declared not to be an Irish citizen.

The applicant sought judicial review of the decision and a declaration that she was an Irish citizen. The applicant testified that after the marriage, D.A.K. had lived in her flat for four months and that when he left he had said only that he was going fishing. She testified that they had attempted to have sexual intercourse, but had failed due to his impotence. She admitted that she had married in order to obtain an Irish passport but said she would not have married D.A.K. if she had not liked him.

Held by Barron J. in granting the relief sought that, 1, in so far as the matter was in issue, the second respondent had been reasonable and fair in carrying out his functions.

2. That where a bigamous marriage is alleged the first marriage must be strictly proved and that this had not been done by the respondents in this instance.

3. That the marriage to an Irish citizen giving rise to the right of an alien woman to claim Irish citizenship must be a marriage recognised as such by the law of the State.

4. That the central issue was whether the parties had gone through the ceremony of marriage to become man and wife, or whether they did so solely to enable the applicant to remain in the United Kingdom. A marriage was not void simply because the parties married for reasons other than love. To say that the parties had nothing in common save the desire of the applicant to stay in the United Kingdom and the agreement of D.A.K. to help her would be too simplistic.

• R.S.J. v. J.S.J. [1982] I.L.R.M. 263 considered.

5. That the balance of the evidence indicated that there was a relationship between the applicant and D.A.K. prior to the ceremony of marriage and that it continued afterwards.

6. That the onus of proving that the marriage between the applicant and D.A.K. was a sham was on the respondents and the respondents had failed so to prove.

Cases mentioned in this report:—

H. (orse. D.) v. H. [1954] P. 258; [1953] 3 W.L.R. 849; [1953] 2 All E.R. 1229.

R.S.J. v. J.S.J. [1982] I.L.R.M. 263.

Martens v. Martens [1952] 3 S.A.L.R. 771.

Orlandi v. Castelli [1961] S.C. 113.

H.S. v. J.S. (Unreported, Supreme Court, 3rd April, 1992).

Silver (orse. Kraft) v. Silver [1955] 1 W.L.R. 728; [1955] 2 All E.R. 614.

Szechter (orse. Karsov) v. Szechter [1971] 2 W.L.R. 170; [1970] 3 All E.R. 905.

Vervaeke v. Smith [1983] 1 A.C. 145; [1983] 2 W.L.R. 855; [1982] 2 All E.R. 144.

United States v. Rubinstein (1945) 151 Fed. Rep. 2d. 915.

Judicial review.

The facts have been summarised in the headnote and are fully set out in the judgment of Barron J., infra.

On the 11th January, 1993, the applicant was granted leave by the High Court (Geoghegan J.) to apply by way of judicial review for the following reliefs:—

• 1. An order of certiorari quashing a decision of the second respondent dated the 26th August, 1992, which impounded the applicant's Irish passport.

• 2. An order of mandamus compelling the second respondent to return the said passport to the applicant or, alternatively, compelling the second respondent to grant the applicant a new passport.

• 3. A declaration that the applicant was an Irish citizen.

• 4. Damages for breach of constitutional rights.

A statement of opposition was filed on the 8th May, 1993. The application was heard by the High Court (Barron J.) on the 22nd, 23rd and 24th November, 1995.

Cur. adv. vult.

Barron J.

The applicant is Sudanese by birth having been born in the Sudan on the 1st January, 1954. In the year 1977 she came to London where she cohabitated with another Sudanese citizen, Rabbia Mohammed Hussain. At that date she already had a daughter born in the Sudan on the 15th August...