Minister for Justice wrong to refuse permission to African wives – Supreme Court
Thursday, February 21, 2013
THE Minister for Justice was wrong to refuse to permit the wives of two
African men to live with them in this country after questions were
raised over their marriages, the Supreme Court ruled.
It was exclusively for the Minister to reconsider the applications, the court said.
Both men have refugee status here and the Minister had also permitted two children of one of the men to join him here.
The Minister had refused the applications from a Sudanese and a Somalian.
Minister believed the marriage of the Sudanese man, in Sudan, was a
"marriage by proxy" which might not be recognised by Irish law in that
it appeared the man's wife was not physically present but was
represented by another man.
Solicitors for the Sudanese couple
said the practice in Muslim marriage is the bride is not permitted to be
present in the mosque during a marital ceremony and is rather
represented by a male relative.
They also said a second marriage
certificate arose because the couple had remarried after a "taleq
divorce", where the man divorces his wife verbally without any court
Giving the five judge court's judgment on that case,
Mr Justice Nial Fennelly said a view that a marriage was a marriage by
proxy was not a valid ground for refusing recognition of the marriage
and, for that reason alone, the Minister's decision was invalid.
Somali man's application was refused because the Minster took the view
his marriage, an Islamic ceremony conducted under Shari'ah law in
Somalia in December 1998, was "religious" with no evidence it was
Mr Justice Fennelly said, in the Somali case, the
Minister was not entitled to rely on the fact of the marriage being
religious as a ground for refusal.
The Minister also failed to
take sufficient account of the explanation for the inability to produce a
marriage certificate from Somalia in the circumstances of that country
at that time - a war-turn state where law and order had broken down.
cases involved consideration of Section 18 of the Refugee Act 1996
under which a person with refugee status can seek to have a family
member come and live with them in Ireland.
Minister is satisfied, having considered a report of the Office of the
Refugee Applications Commissioner, the person is the spouse of the
refugee, he is obliged to grant that permission unless he considers a
refusal of permission is necessary in the interests of national security
or public policy, the court noted.
While an issue was
raised concerning the potential inclusion in Section 18 of "common law
relationships", the Supreme Court ruled it was not necessary, in the
particular circumstances, to make a definite finding on that issue.