The Irish Supreme Court has overturned a finding of the High Court that found where the Minister for Justice is satisfied that a marriage is one of convenience for the purposes of the European Communities (Free Movement of Persons) Regulations 2015, that marriage is a “nullity in law”.
In July 2016, the Minister for Justice determined that a marriage between a Pakistani national, M.K.F.S., and a Latvian national, A.F., was a ‘marriage of convenience’ and thus refused M.K.F.S.’s application for a residency card under the 2015 Regulations. A year later, an order for his deportation was made and he sought judicial review proceedings in the High Court to challenge it.
The couple had married in April 2010, after which M.K.F.S. was granted a residency card. They subsequently separated for a number of years and in the meantime A.F. had a child with another man. The couple reunited in April 2015 and in October 2015 M.K.F.S. applied for his second residency card, which was refused.
The High Court was not satisfied M.K.F.S had grounds to judicially review the Minister’s decision to deport him, as the Minister had reached an uncontested finding that his marriage to A.F. was fraudulent. The Court held that the Civil Registration (Amendment) Act 2014 provides that a marriage of convenience is a nullity and where “it is determined that the applicants’ relationship is based on fraud, no ‘rights’ can arise from such a relationship; and an absolutely necessary consequence is that no obligation arises under the Constitution, the ECHR or EU law to consider any such ‘rights’.”
The Supreme Court agreed to hear a “leapfrog” appeal. The Irish Human Rights and Equality Commission intervened as amicus curiae.
Delivering the Supreme Court decision, Mr Justice William McKechnie looked at the contract of marriage in practical terms, relying on the judgement of Mr. Justice Donal Barrington in R.S.J. v J.S.J. The Court submitted that there are many reasons why people enter into marriage, not all of them are out of love for their spouse. Justice McKechnie noted that the right to marry is recognised in Article 40.3.1 of the Constitution, and that right must defended and vindicated.
Justice McKenchie did not believe it was possible to conclude, based on the facts, that the appellants had attempted to abuse the immigration process as the couple had consistently maintained the position that their marriage was not one of convenience.
The Court held that the finding of the High Court that the Minister’s determination rendered the marriage void for all purposes was not correct. This determination was limited to the immigration context and only allowed the Minister to ‘disregard’ the marriage within a very specific context, such as a subsequent deportation process.
The Court found that the High Court also erred in concluding that no family rights arose from a marriage of convenience. Consideration of the underlying relationship between the parties under Article 8 of the European Convention on Human Rights must also be taken into account in the deportation context.
To read the full judgement click here.
To read the legal submissions put forward by IHREC click here.