The Supreme Court recently ruled that a ‘marriage of convenience’ does not make a marriage legally null and void, an important clarification in the realm of immigration law which has been welcomed.
In a judgement written by Mr Justice William McKechnie, the Supreme ruled in favour of a couple and a child, determining that just because the Minister for Justice determined that theirs was a ‘marriage of convenience’, it does not mean that no rights arise from the marriage under the Civil Registration Act 2004.
In doing so, the Supreme Court overturned a previous High Court decision that such a marriage was automatically a “nullity at law” for all purposes.
Background to case
The case arose over an appeal against a High Court decision related to deportation proceedings against a man after the Minister for Justice had labelled his marriage to an EU citizen was a ‘marriage of convenience’.
The applicant in this case, a Pakistani man, had married an EU citizen resident in Ireland in February of 2010, applying for an EU residence card two months later, which he received in October 2010.
The couple separated in March of the following year, though the applicant said that they had never divorced. During this time the woman had a child with another man, who later died, and the couple claimed that they resumed their relationship in April 2015.
In October of 2015 the man applied for a second residence card after the couple began living together again, but the Minister for Justice refused, determining that theirs was a ‘marriage of convenience’, a decision which was upheld on review.
A deportation order was issued for the man in 2017 after a review upheld the Minister’s original decision. The High Court then agreed to hear a judicial review
The High Court ruled against the appeal in 2018, not only upholding the Minister’s decision that theirs was a marriage of convenience, but going much further.
Mr Justice Richard Humphreys of the High Court ruled that a marriage of convenience is a nullity in law, and that no family rights can arise from it.
The Supreme Court agreed to hear a “leapfrog” appeal in this case, after the couple and child were refused permission to go to the Court of Appeal, because is related to important matters of law as to whether Justice Humphreys ruling conflicted with another High Court judgement.
After the Court first agreed to hear the appeal in February 2019, it allowed the Irish Human Rights and Equality Commission to join the proceedings alongside the couple and child.
The main issue of the appeal was whether there were still rights from a marriage under the Civil Registration Act 2004 where the Minister has determined that this
Supreme Court Ruling
Mr Justice McKechnie of the Supreme Court said that the Minister was entitled, under the European Communities (Free Movement of Persons) Regulations 2015, to determine that this was a marriage of convenience in the context of deportation proceedings.
However, in his written judgement Justice McKechnie also said that family and private rights under Article 8 of the European Convention on Human Rights still apply and will have to be considered in any deportation proceedings.
The “sole consequence” of such a determination is related to using it in deportation proceedings, Justice McKechnie said, adding that Justice Humphreys overreached in ruling that this determination rendered a marriage a legal nullity for all purposes.
“The Minister has no power to so declare, he does not now assert that he has any such power, and in fact he never purported to make any such far-reaching declaration,” the judgement stated.
Justice McKechnie said that this case was fundamentally an “immigration judicial review” and that the “family status” jurisdiction of the courts is not involved in these proceedings.
The full conclusion of Mr. Justice McKechnie’s judgement states:
“To conclude in respect of the three questions set out at para. 57, supra, I would hold (i) that the Minister’s determination (made in the context of the residence application under the 2015 Regulations) that a marriage is one of convenience, may be relied upon by the Minister in the context of the subsequent deportation process; (ii) that the said determination 66 made by the Minister under the 2015 Regulations does not have the effect of rendering that marriage a nullity at law; rather, such determination is limited to the immigration/deportation context the sole consequence thereof is that it entitles the Minister to “disregard” the marriage in the very specific context as set out above; and (iii) although the Minister is entitled to import the earlier decision into the deportation process, he must nonetheless have regard, in operating that process, to the Article 8 rights of the Appellants as founded on the underlying relationship between the parties; it does not appear that he did so here.”
Over the past number of years, Sinnott Immigration Solicitors have received hundreds of decisions where the Minister has declared the marriage legally void in circumstances where the Minister is of the opinion that the marriage is one based upon convenience and designed to gain “immigration advantage”.
The solicitors firm has welcomed this decision on a matter of immigration law often extremely relevant to their clients, stating that many of their clients in genuine relationships with EU spouses are “unfairly issued” with a marriage of convenience finding.
They have been working with them to prepare submissions and applications to the Minister to challenge those findings including judicial review applications before the High Court.
If you have any queries in relation to marriage of convenience refusals you can get in touch at firstname.lastname@example.org or 01 406 2862.
correction: Justice William McKechnie’s surname was incorrectly spelled Kichnie in the second paragraph of this article