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Minister for Justice wrong to refuse permission to African wives – Supreme Court

Irish Independent
Thursday, February 21, 2013

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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.

The 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 application.

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.

The 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 registered.

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.

Both 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.

If the 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.


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