Tahir v Registrar for County Cork
| Jurisdiction | Ireland |
| Judge | Mr. Justice Hedigan |
| Judgment Date | 16 May 2012 |
| Neutral Citation | [2012] IEHC 191 |
| Date | 16 May 2012 |
| Court | High Court |
[2012] IEHC 191
THE HIGH COURT
CONSTITUTION ART 40.3
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 12
CIVIL REGISTRATION ACT 2004 S46(7)
MARRIAGES (IRL) ACT 1844 S16
LAMBERT v AN TARD CHLARAITHEOIR 1995 2 IR 372, 1995 2 ILRM 241 1995/9/2660
CIVIL REGISTRATION ACT 2004 S46(1)
CIVIL REGISTRATION ACT 2004 S2(2)
AKRAM v MIN FOR JUSTICE & ORS 2004 1 IR 452 2004 1 211 2004 IEHC 109
RYAN v AG 1965 IR 294
CONSTITUTIONAL LAW
Right to marry
Fair procedures - Foreign national - Identity - Nationality - Whether respondent entitled refuse to issue marriage registration form - Whether applicant unable to obtain birth certificate or passport - Whether applicant provided satisfactory evidence of identity - Whether respondent breached fair procedures - Lambert v An tÁrd Chláraitheoir [1995] 2 IR 372; Akram v Minister for Justice [2004] IEHC 33, [2004] 1 IR 452 and Ryan v AG [1965] IR 294 considered - Civil Registration Act 2004 (No 3), ss 2 & 46, Marriages (Ireland) Act 1844, s 16 - European Convention on Human Rights and Fundamental Freedoms 1950, article 12 - Constitution of Ireland 1937, Article 40.3 - Application refused (2011/111JR - Hedigan J - 16/5/2012) [2012] IEHC 191
Tahir v Registrar for County Cork and an tÁrd Chláraitheoir
Facts section 46(7) of the Civil Registration Act 2004 provides that "The registrar concerned may require each party to an intended marriage to provide him or her with such evidence relating to that party's forename, surname, address, marital status, age and nationality as may be specified by an tArd-Chláraitheoir." The applicants sought, by way of judicial review, inter alia, an order of mandamus directing the respondent to issue to them a marriage registration form on the grounds, inter alia, that the refusal of the respondent to do so on the grounds that they had not adduced sufficient evidence of identity for the purposes of the Civil Registration Act 2004 was in breach of the principle of audi alteram partem in that the respondents had relied upon evidence presented to them by the Garda National Immigration Bureau and failed to take into account documents produced such as an identity card issued by the Gardaí. The first respondent was not satisfied that the first applicant had provided the requisite evidence of her true identity, in particular by reason of information conveyed to her by the Garda National Immigration Bureau to the effect that they were aware, based on fingerprint match evidence, that she had contended to various state authorities, inter alia, in the United Kingdom that she was Tanzanian, whereas she had contended to the respondent that she was Somalian. The applicants complained that the respondent's failure to inform them of the information received from Garda National Immigration Bureau and to afford them an opportunity of responding was a breach of their right to fair procedures as it deprived them of any opportunity of addressing same.
Held by Mr. Justice Hedigan in refusing to grant the orders sought, 1, that, by virtue of the fact that at all relevant times , the applicants were aware of the fingerprint match as this issue had arisen in the context of the first applicant”s asylum application, the claim that they were denied fair procedures was without substance.
2. That the respondents were not under an obligation to accept the documents produced by the first applicant as they were Irish documents that did not demonstrate her claimed Somali nationality.
3. That, in concealing from the respondents relevant and important information concerning the existence of a second identity and nationality, the first applicant attempted to deceive the respondents. She thereby through her own actions raised the strongest possible doubt that she was who she claimed to be. The onus was on the applicant to provide satisfactory evidence as to her identity. Manifestly she had failed to do so.
Judgment of Mr. Justice Hedigan delivered the 16th of May 2012
1. The first named applicant resides at Drishane Castle Accommodation Centre, Millstreet, Co. Cork. The second named applicant resides at 2 Shandon Way, Shandon Street, Cork. The first and second named respondents are responsible pursuant to the Civil Registration Act 2004, for the management and control of the system of registration of births, deaths and marriages occurring in the State.
2. The applicants seek the following relief:-
(a) An Order of Mandamus directing the First Named Respondent to issue to the Applicants within a reasonable period of time a marriage registration form.
(b) If necessary, an Order of Mandamus directing the Second Named Respondent to issue to the Applicants a marriage registration form or to direct the First Named Respondent to issue such form to the Applicants within a reasonable period of time.
(c) If necessary, a Declaration that the First Named Applicant has provided sufficient evidence of identity for the purposes of the Civil Registration Act 2004.
(d) A Declaration that the Respondents have failed to vindicate the Applicants' right to marry pursuant to Article 40.3 of the Constitution of Ireland and/or Article 12 of the European Convention on Human Rights.
(e) An order of Certiorari quashing the decision of the first named respondent refusing to issue a marriage registration form to the applicants.
2 3.1 Ms. Tahir claims to be a Somali national. She arrived in the State in June 2008. She made an application for asylum at that time. Her application was refused by the Office of the Refugee Applications Commissioner ("ORAC"). Ms. Tahir appealed against that refusal and her appeal was in turn refused by the Refugee Appeals Tribunal ("RAT") on 28 th January, 2010. Some weeks later, Ms. Tahir and the second named applicant decided to marry. They engaged the firm of Stanley & Co. as their solicitors. In May 2010, the applicants were given an appointment for the end of June 2010 to fulfil the necessary requirements to provide the requisite three-month notification of their intention to marry. On the 31 st of May 2010 and again on the 11 th of June 2010 Stanley & Co. wrote to the Cork Registrar stating that Ms Tahir was a Somali national who was not able to obtain any identity documents. On the 14 th of June the Cork Registrar replied to the applicant's solicitor stating that pursuant to s. 46(7) of the Civil Registration Act 2004, evidence of identity was required and that an affidavit of identity would not be sufficient. On the 17 th June, 2010 the applicant's solicitors wrote to the Cork Registrar indicating the difficulty in obtaining identity documents and referring to the absence of any functioning government in Somalia since 1991.
3 3.2 On 28 th June, 2010 the applicants attended at the office of the first named respondent. The first named applicant produced by way of identity her Refugee Applications Commissioner registration certificate, medical card and sworn affidavit of identity. The first named applicant was informed that she must submit an identity document such as a passport. On 21 st July 2010 the applicants again attended at the offices of the first named respondent where they completed a declaration of freedom to marry. The applicants were requested to attend for a further appointment on 12 th August, 2010 with a professional interpreter.
4 3.3 On 12 th August, 2010 the applicants attended at the offices of the first named respondent where they completed a declaration of no impediment in respect of their intended marriage. The applicants were advised that their marriage could not proceed until such time as a marriage registration form issued. However, when the applicants left the Registration Office, a Detective Garda from the Garda National Immigration Bureau ("GNIB") called to the Registrar's Office and informed the Registrar that he believed that Ms. Tahir was not in fact from Somalia. In the circumstances, the Registrar decided to refer the file to the second named respondent, An tArd Chláraitheoir. An tArd Chláraitheoir made contact with the GNIB and was advised that there were serious questions as to the true identity of the first named applicant.
5 3.4 On 14 th September 2010 the applicants' solicitor wrote to the first and second named respondents noting that the applicants were anxious to be married and requesting communication as to the status of their application. On 16 th September 2010 the second named respondent replied and outlined the requirements pursuant to s.46 (7). The letter further stated
"For secondary documentation, and in the absence of a birth certificate, it may be possible to confirm Ms Ismail's identity by using other documentation, eg payslips, bank statements, insurance certificate, social welfare documents/card, health services card etc",
However it was stated that this was at the discretion of the said respondent who must be satisfied as to the identity of the person. A further exchange of correspondence occurred in October 2010 between the applicants' solicitor and the second named respondent. By letter of 15 th October 2010 the respondents emphasized that it was a matter of discretion for the first respondent to be satisfied as to the first applicant's identity.
6 3.5 By letter dated 22 nd December 2010 the applicants' solicitor wrote to the respondents complaining of the delay in progressing matters and stating that the applicants were anxious to marry. The applicants' solicitor noted that the first named respondent had informed the first named applicant that an age card issued by An Garda Síochána...
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Chaudhry -v- an tÁrd-Chláraitheoir
...application. 33 The respondent relied on the judgment of this Court in Leila Ismail Tahir & Anor. v. Registrar for County Cork & Anor. [2012] IEHC 191, para. 6.5, where it is stated that ‘[t]he onus is on the applicant to provide satisfactory evidence as to her identity.’ Here, given that t......