M -v- F
Neutral citation (2011) IEHC 415
High Court
Judgment was delivered on May 27th, 2011, by Ms Justice Maureen Clark.
Judgment
It was not appropriate for the Minister to refer family reunification cases to the Circuit Court to rule on the validity of refugees’ marriages. Notwithstanding this, the High Court upheld a Circuit Court ruling that the customary marriage in question was valid for the purpose of family reunification.
Background
The applicant in the case was a Zimbabwean man who came to Ireland as an asylum seeker in 2006. In June 2007, he was declared a refugee. In November he sought to have his wife, whom he had married in 1998, and their two daughters, join him in Ireland, as he was entitled to under the Refugee Act.
He was asked to provide information about his marriage, including where and when it took place, who performed the ceremony, who the witnesses were and to have this authenticated. He obtained a letter from his local headman who confirmed that a customary marriage had taken place on April 25th, 1998, with the dates of birth of the parties, the names of the witnesses and of the “go-between”, confirmation that the bride price had been paid and that this was recognised as a valid marriage under Zimbabwean law.
The officer in the family reunification section of the Department of Justice wrote to the applicant stating that the letter was not authenticated by a high local court office and there remained doubts about the validity of the marriage. It said it was open to the applicant under section 29 of the Family Law Act 1995 to seek a declaration in the Circuit Court that his marriage was valid.
The applicant obtained a second letter from the local head man certified by the local magistrates’ office. Despite this, he received a letter from the department section refusing his request for family reunification, stating “as the marriage was a customary one it does not appear to be valid under Irish law”.
While it said this decision could not be appealed, it added it was open to him to seek a declaration in the Circuit Court, following which the decision might be reviewed.
Meanwhile the two children, then aged 11 and seven, were permitted to join their father, and had been with him without their mother for three years. Their status had been accepted and there was never any suggestion from the authorities that the man’s wife was not their mother.
“As there is no statutory right of appeal from a refusal of family reunification, it is vital that the investigative role of the commissioner is conducted with care, compassion and vigour to ensure that a refugee who has fled his/her country, leaving his/her family behind, is reunited as soon as it practicable with the members of his/her family,” Ms Justice Clark said.
“The court is profoundly disturbed by the apparent insensitivity in this particular instance to the pain of separation of two young girls from their mother and that of the applicant from his wife of 13 years.”
She said that the relevant law determining the validity of the refugee’s marriage is that of the country where the refugee was domiciled, which are within the competence of the commissioner to investigate and determine. Nowhere is it stated in the 1996 Refugee Act that the status of a spouse is recognised only if the marriage is recognised as such in Irish law.
It was not at all clear how the practice had arisen of referring the validity of refugees’ marriages to the Circuit Court for determination, she said.
When the case came before the Circuit Court, the Attorney General opposed the granting of a declaration of validity on the grounds that, as a customary marriage which was potentially polygamous, it was not valid under Irish law.
The applicant explained that both he and his wife were Christians, but had engaged in a customary marriage ceremony to please their families. Neither was previously married and as Christians neither wished to take another spouse.
The appellant said he was never informed why the certificate from the headman and the authentication of the certificate would serve no purpose to establish the validity of his marriage. “It begs the question why he was asked to furnish these documents,” Ms Justice Clark said.
The Circuit Court issued the declaration of validity, and this decision was appealed by the Attorney General to the High Court.
Decision
Ms Justice Clark said the judgment did not engage with the question of the validity of potentially polygamous marriages contracted abroad, as that was not the issue to be determined. The parties were not seeking matrimonial relief. The only issue was the recognition of the applicant’s marriage, which was, according to the uncontroverted evidence, a valid marriage in his country of domicile.
If the recognition of marriages of refugees were to be confined to the definition of marriage as that “recognised . . . throughout Christendom as the voluntary union for life of one man and one woman to the exclusion of all others”, this would lead to the exclusion from recognition of all marriages carried out in accordance with Islamic and traditional African rites, because of their potentially polygamous nature.
“This cannot be the correct approach,” Ms Justice Clark said. The approach which the commissioner and the Minister should consider is to determine at the outset whether the marriage accords with the law of the refugee’s country of origin.
Reference to the Circuit Court to determine the validity of a refugee’s marriage according to Irish law and Irish constitutional principles is misconceived and gives rise to unnecessary delay in family reunificaiton. The Family Law Act was appropriate to determination of matrimonial status and access to matrimonial reliefs, not to determining the validity of a marriage celebrated according to the legal requirements in a refugee’s country of origin, she said.
Family reunification should mean just that: the refugee was entitled to be reunited with his closest family, being his children and the parent of those children.
While the use of the S 29 procedure as a means of determining the validity of marriages in family reunification cases is inappropriate, Ms Justice Clark found that the applicant’s marriage was valid and refused the Attorney General’s appeal.
The full judgment is on courts.ie