The Supreme Court has agreed to hear an appeal concerning the rights of individuals who enter into civil marriages that are later deemed to be marriages of convenience.
In a published determination, a three-judge court said the appeal raised issues of general public importance and the law needs to be clarified because of apparently conflicting High Court judgments on the issues raised.
It will fix a hearing date later for the appeal brought by a Pakistani man, an EU citizen woman and her child.
The man was an asylum applicant when he married the woman in Ireland in February 2010.
In April 2010, he applied for an EU residence card and got that in October 2010.
In March 2011, the couple separated and the woman later had a child by a different man, who later died.
The Pakistani man claimed the couple, who had not divorced, re-united in April 2015 and recommenced their existing marital relations.
After he made a fresh application in October 2015 for a residence card, the Minister for Justice later decided the marriage between the pair was one of convenience and that decision was upheld on review.
After a deportation order issued in March 2017, the couple and the woman’s child sought judicial review in the High Court. When they lost, they asked the Supreme Court to hear a “leapfrog” appeal directly to that court.
It was argued a question of general public importance arose as to whether a marriage under the Civil Registration Act 2004 is a nullity at law as a result of the later decision it is one of convenience or do rights still emanate from the marriage, depending upon the facts and circumstances of an individual case.
In opposing any appeal, the State argued the High Court's Mr Justice Richard Humphreys had held the couple were never validly married at all and referred to their alleged marriage as a purported marriage.
It argued no issue of general public importance arose and the High Court applied well-established case law in dismissing their case.
In its determination, the Supreme Court noted Mr Justice Humphreys had said the State had launched a direct attack on the correctness of another High Court judgment of 2011 which held a marriage of convenience was valid in law.
It said Mr Justice Humphreys held the 2011 decision was incorrect and, insofar as it was material to the case before him, declined to follow it.
Mr Justice Humphreys also said the issues considered in the 2011 case had been discussed in a 1996 High Court judgment, which was not referred to by the trial judge in the 2011 case. He further held that a statutory process, such as civil marriage, should not be used as a “mechanism of fraud”.
The Supreme Court said, while the State’s case opposing any appeal was “forcefully made”, there is a need to clarify the law. It cannot be said that there is “no uncertainty”, it said.
“On the face of it, there are two High Court judgments which are not easily reconcilable,” it said. This was “a matter of general public importance”, the significance of which goes beyond the facts of this particular case, it said.
