M (D) v F (C) v & A G

• Jurisdiction: Ireland
• Judge: Ms. Justice Clark
• Judgment Date: 27 May 2011
• Neutral Citation: [2011] IEHC 415
• Court: High Court
• Date: 27 May 2011

[2011] IEHC 415

The High Court

19 CAE/2010

[No. 00600/2009]

M (D) v F (C) v & A G

Appeal from the Circuit Court

FAMILY COURT

DUBLIN CIRCUIT COUNTY OF THE CITY OF DUBLIN

IN THE MATTER OF THE FAMILY LAW ACT 1995

BETWEEN

D M

APPLICANT

AND

C F

RESPONDENT

AND

THE ATTORNEY GENERAL

NOTICE PARTY/APPELLANT

Abstract:

Family law - Immigration - Validity of marriage - Refugee law - lex loci celebrationis - lex domicilii - Reunification of families - Whether parties validly married - Family Law Act, 1995 - Refugee Act, 1996.

Facts The applicant had been granted refugee status in the State and had applied to bring his wife (the respondent) and children to Ireland. The applicant's marriage was stated to be a customary marriage in Zimbabwe. As part of his application the applicant had obtained documents to support his claim of the validity of his marriage. The applicant encountered difficulties in seeking permission for his wife to join him and ultimately sought a declaration pursuant to s. 29 of the Family Law Act 1995 that the marriage in question was a valid one which the Circuit Family Court granted. The appellant (the Attorney General) sought to appeal the judgment of the Circuit Court on the basis that a traditional marriage which allowed for the possibility of polygamy could not be recognised as a valid marriage known to Irish law.

Held by Clark J in dismissing the appeal. Under s. 18 of the Refugee Act 1996 a person declared a refugee was entitled to apply to the Minister to permit his/her family members to reside with him/her in Ireland. The use of the s. 29 procedure as a means of determining the validity of marriages in family reunification cases was inappropriate. In accordance with the uncontroverted evidence that the parties were lawfully married, it followed that they were married for s. 18 family reunification purposes. Reference to the Circuit Court to determine the validity of a refugee's marriage according to Irish law was misconceived and gave rise to unnecessary delay in family reunification. While the invitation bring such an application was inappropriate, the court nonetheless upheld the finding of the Circuit Court judge.

Reporter: R.F.

1 JUDGMENT of Ms. Justice Clark delivered on the 27th day of May, 2011.

2 1. This matter comes before the Court as an appeal from a decision of the Circuit Family Court made on 15 ^th February, 2010, granting (i) a declaration pursuant to s. 29(1)(a) of the Family Law Act 1995 that the applicant's marriage to the respondent in the district area of G, Zimbabwe on 25 ^th April, 1998, was at its inception a valid marriage; and (ii) a declaration pursuant to s. 29(1)(b) of the Family of Law Act 1995 that the said marriage is a subsisting marriage on the date of the decision. The appellant is the Attorney General who, by notice of appeal dated 23 ^rd February, 2010, appealed the entire of the judgment of the learned Judge Nolan and argues that a traditional marriage which allows for the possibility of polygamy cannot be recognised as a valid marriage known to Irish law.

3 2. The background to this case is as follows. The applicant, DM, is a national of Zimbabwe. He arrived in Ireland on 28 ^th September, 2006, as an asylum seeker. As is mandatory in applications for refugee status, he filled in a preliminary form and then a detailed questionnaire and was interviewed by an officer of the Office of the Refugee Applications Commissioner ("the Commissioner"). At all stages he claimed that he was married to the respondent, Ms. CF and had two daughters of this marriage. His marriage was stated to be a customary marriage in Zimbabwe.

4 3. His claim for asylum was initially refused but was successful on appeal before the Refugee Appeals Tribunal. On 18 ^th June, 2007, he received a letter from the Minister for Justice, Equality and Law Reform stating that he had been declared a refugee. A standard form letter issued informing the applicant of such declaration and enclosing a notice of rights for refugees which included the following:-

"You may apply to the Minister for permission to be granted to a member of your family to enter and reside in the State, in accordance with s. 18 of the Refugee Act, 1996 (as amended). If you wish to do this you should contact the Department of Justice, Equality and Law Reform, Immigration Section, 13/14, Burgh Quay, Dublin, 2."

5 In November 2007, five months after receiving notification that he had been granted refugee status, the applicant applied under s. 18 of the Refugee Act 1996 to have his wife and children join him in the State.

Flow is Family Reunification Effected?

6 4. Under s. 18 of the Refugee Act 1996 a person declared a refugee is entitled to apply to the Minister to permit his/her family members to enter and reside with him/her in Ireland. Once such an application is made, the Minister must cause the matter to be referred to the Commissioner whose function is to investigate the application for family reunification and then submit a written report to the Minister, setting out the relationship between the refugee and the person who is the subject of the application and his/her domestic circumstances. If, having considered the report of the Commissioner, the Minister is satisfied that the persons mentioned in the application are indeed members of the refugee's family, the Minister must grant the permission sought. A "member of the family" of the refugee means:

7 (i) in case the refugee is married, his/her spouse (provided that the marriage is subsisting on the date of the refugee's application for family reunification under s. 18(1)),

8 (ii) in case the refugee is, on the date of the application for family reunification, under the age of 18 years and is not married, his/her parents, or

9 (iii) a child of the refugee who, on the date of the refugee's application for family reunification under s. 18(1), is under the age of 18 years and is not married.

10 5. A refugee who seeks family reunification is required to submit documentation establishing the identity of the family members and proving their relationship to him/her by furnishing original birth and marriage certificates and national identity cards or passports, where those documents are relevant and available. The refugee must also provide evidence of his/her own financial and domestic circumstances in Ireland.

11 6. Once the examination is complete, the Commissioner prepares a report for the family reunification section within the Department for Justice, which considers the report in due course. At that stage, it may request the refugee to supply additional documentation or to address outstanding issues. Once the decision is reached, the family reunification section notifies the refugee in writing.

The Applicant's Application for Family Reunification

12 7. The Court was not furnished with the Commissioner's report. The correspondence furnished emanates from the family reunification section of the Department which requested the applicant to furnish further specific information on his marriage. In particular, in a letter dated 1 ^st April, 2008, the authorised officer of the family reunification section who was dealing with his application wrote stating:-

"I note that you were married under the laws of customary marriages in a traditional ceremony that took place on 25 ^th April, 1998 in your native country. As proof that the marriage complied with all the legal requirements for marriages in Zimbabwe please submit a letter from the headman of your native village confirming;"

(1) the event;

(2) where and when the marriage took place;

(3) who performed the ceremony; and

(4) who the witnesses were.

13 Please have the authenticity of this letter confirmed by having it authenticated at High local court in your country."

14 This letter suggests an awareness of the requirements for a valid customary marriage in Zimbabwe as it seeks very specific information that the marriage complied with all the legal requirements for such marriages in Zimbabwe.

15 8. In accordance with this request, the applicant then sought and obtained a handwritten letter from the headman of his local community which confirmed that the customary marriage which took place on 25 ^th April, 1998, at the homestead of TF, was in his area. The letter gave the date of birth of both parties and indicated that the bride price had been paid fully to the family of the bride. The letter also identified the "go-between" for the two families and listed the witnesses to the ceremony. The headman stated that each of the parties had agreed to take each other as spouses until death did them part and he further stated that this was a recognised marriage under the customary marriage laws of Zimbabwe and that the applicant and the respondent are by law recognised as husband and wife.

16 9. The authorised officer in the family reunification section of the Department acknowledged receipt of the letter and the envelope addressed to the applicant as proof of postage. A few days later the same authorised officer wrote stating that:-

"This letter does not appear to have been authenticated by a high local court office in Zimbabwe, there remains doubts as to the validity of your marriage. In this regard it is open to you to seek a declaration from the Irish courts under s. 29 of the Family Law Act, 1995 to the effect that the marriage in question is entitled to recognition in this jurisdiction. You can arrange this through a solicitor."

17 No effort was made to identify what doubts remained as to the validity of the marriage or how such doubts could be clarified or mended by the applicant nor was it established how any deficits in the information provided by the headman (if any) could be resolved by the Irish courts. The extremely...