Q.U.A v K.D.A
| Jurisdiction | Ireland |
| Judge | Ms. Justice Siobhán Phelan |
| Judgment Date | 09 May 2023 |
| Neutral Citation | [2023] IEHC 239 |
| Docket Number | [Record No.: 2022/ 345 JR] |
| Court | High Court |
and
[2023] IEHC 239
[Record No.: 2022/ 345 JR]
THE HIGH COURT
JUDICIAL REVIEW
JUDGMENT of Ms. Justice Siobhán Phelan, delivered on the 9 th day of May, 2023.
. These proceedings concern a challenge to a refusal of a join spouse visa to a Pakistani national on foot of a proxy marriage as confirmed on administrative appeal against a first instance refusal. The first instance refusal was justified in succinct terms on the basis that the Second Applicant, sponsor, was resident in Ireland on Stamp 1 conditions. These include a condition that it is accepted that the granting of temporary permission to remain does not confer any entitlement or legitimate expectation on any other person to enter or remain in the State.
. In contrast, the refusal on appeal, which is the decision impugned in the within proceedings, was more fully reasoned on different grounds. While the refusal as confirmed on appeal was based on several factors, at the heart of the impugned decision was a finding that the Applicants had not produced documentation which could support a finding of a marriage which was legally recognisable in the State. As explained in the decision considerations, a concern about the marriage certificate arose from the fact that it did not record that the marriage was by proxy or identify the proxy representative.
. The central finding as to the recognisability of the marriage, having regard to the documentation submitted to confirm the marriage, was made without notice to the Applicants. The Applicants claim that the concern which underpins the decision to refuse is based on a mistaken understanding of what is normally recorded in a marriage certificate in Pakistan, where proxy marriages are lawful. The Applicants rely on uncontested expert evidence to this effect.
. The first Applicant was born in 1991 in Pakistan. The second Applicant was born in 1992, also in Pakistan. Both Applicants are citizens of Pakistan. The second Applicant entered the State in 2016 without permission. A deportation order was made in May, 2017 but was not enforced at that time. It is claimed that in January, 2018 the Applicants married in Pakistan in a proxy marriage which was not attended by the second Applicant who was at that time unlawfully in the State.
. Notwithstanding the existence of a prior deportation order, as an exceptional measure the Second Applicant was granted temporary permission to remain in the State under stamp 1 conditions for 1 year valid from June, 2020 until June, 2021 with permission to work. One of the conditions of the Second Applicant's permission was that no rights to be joined in the State would flow from the status being granted. The condition is couched as follows:
“the following conditions will apply to your temporary permission to remain in the State:
…..
— that you accept that the granting of your temporary permission to remain does not confer an entitlement or legitimate expectation on any other person, whether related to you or not, to enter or remain in the state”
. Subsequently, in March, 2021 the Second Applicant travelled to Pakistan and shortly thereafter, the First Applicant applied for a visa enabling her to join her husband in the State (where he resides and works). The Second Applicants' permission was renewed from June, 2021 until June, 2023 with the same conditions attached.
. An application for a join spouse visa for the First Applicant was presented in July 2021 with supporting documentation and solicitor's correspondence. By email dated the 1 st of October, 2021 this application was refused. An appeal was sought in November, 2021 and a further refusal decision issued on the 25 th of March, 2022. This is the decision impugned in these proceedings.
. In 2013 (revised in 2016) the Respondent published a detailed Policy document entitled “ Policy Document on non-EEA Family Reunification” [hereinafter “the Policy Document”] to set out a comprehensive statement of Irish national immigration policy in the area of family reunification. I have had occasion to consider this document on a number of occasions including in the case of S.M. v Minister for Justice [2022] IEHC 611 [under appeal], a decision relied upon on behalf of the Respondent, which bears some similarities with this case at least insofar as it concerned a proxy marriage in which financial considerations were a factor in the decision. Of note, however, while some issues were raised with regard to the genuineness of the marriage in that case, the respondent nonetheless proceeded to conduct a consideration of how a refusal would impact on the applicants' rights as safeguarded under Article 41 of the Constitution. There was also no question of an identifiable and uncontested error of law and fact. Insofar as the Respondent relies on it in this case because of its reference to the Policy Document, it is noted that the decision merely identifies the relevant provisions of the Policy Document, without any views being expressed thereon.
. It is necessary to return to the Policy Document again in this case because reference was made to specific elements of the Policy Document in the record of the decision-making process herein. Provisions of the Policy Document identified as relevant to the refusal included as follows:
“6.2 It might also be recalled that in some cases leave to remain in Ireland was granted by the Minister subject to the express limitation that no rights to be joined by spouse or other family member would flow from the status being granted. Therefore, the family must be deemed to have made an informed choice in favour of Irish immigration status for certain members over the alternative of all residing together in their country of origin.”
. The Policy Document makes clear (at para. 13.4) that the onus is on the applicants for family reunification to satisfy the immigration authorities that the familial relationship is as claimed. The Policy Document further sets out (at para. 15.2) that as a general principle applicable to all decision making, marital relationships or those involving civil partnership must be monogamous, freely entered into by both parties, lawfully conducted and recognised under Irish law as follows:
“15.2 — As a general principle applicable to all decision making, marital relationships or those involving civil partnership (CP) must be monogamous, freely entered into by both parties, lawfully conducted and recognised under Irish law. Cases involving de facto relationships must be exclusive for the full duration of the qualifying period set out under section 15.3 below.
15.3 The following relationship durations will apply in order to establish eligibility
• For marriage or civil partnership no minimum duration of the marriage will be required;
• De facto Partnerships (whether heterosexual or same sex) must have existed in a relationship akin to marriage including cohabitation for 2 years prior to application for family reunification.”
. The Policy Document refers specifically to “ proxy marriages” and confirms that they may be recognised under Irish law (at para. 15.6) as follows:
“15.6 Proxy marriages may be recognised under Irish law. Where this is the case the marriage will meet the requirements of this policy. However, a proxy marriage gives rise to additional concerns not only in immigration terms but also for the protection of the parties. The immigration authorities will enquire into the circumstances of the marriage and must be satisfied that the marriage is genuine and freely entered into by both parties and that is not a device aimed predominantly at securing an immigration advantage. The parties must also be able to show that they have met each other in person.”
. A proxy marriage is identified for the purpose of the policy as one where an appointed substitute (proxy) stands in for a party to the marriage at the ceremony. Such marriage is considered to have been contracted in the country in which the ceremony took place. Where the country in which the ceremony takes place permits proxy marriages, such a marriage will meet the requirements of the Respondent's policy. It is noted, however, that a proxy marriage gives rise to additional concerns not only in immigration terms but also for the protection of the parties. The Policy Document continues (at para. 20.4) as follows:
“20.4 All marriages must be legally contracted, freely entered into and with both parties free to marry at the date of the marriage. The marriage must also be capable of recognition under Irish law for other purposes outside of the immigration system.”
. Accordingly, the Policy Document confirms that the immigration authorities will enquire into the circumstances of the marriage and must be satisfied that the marriage is genuine and freely entered into by both parties and that it is “ not a device aimed predominantly at securing an immigration advantage”. The parties must also be able to show that they have met each other in person.
. Financial considerations are addressed at paragraph 17 including in relevant part as follows:
“17. Financial resources for family reunification (nuclear family and de facto partners)
…
17.4 Category B sponsors must have a gross income in each of the previous 2 years in excess of that applied by the Department of Social Protection in assessing eligibility for Family Income Supplement (FIS) and the expectation must be that this level of income will be maintained.
17.5 Declared and verified savings by the applicant or sponsor may be taken into account in assessing cases which fall short of the income thresholds set out above. (A suggested approach would be to annualise the savings as income spread over a 5–10 year period). Alternatively, a nominal...
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