Supreme Court: Finding of ‘marriage of convenience’ does not nullify marriage
The Supreme Court has held that a ministerial finding that a marriage amounted to a marriage of convenience does not make it a legal nullity.
Council Directive 2004/38/EC permits Member States to adopt measures to regulate marriages of convenience. The 2015 Regulations contain such measures.
In July 2016 the Minister for Justice refused an application by M.K.F.S., an applicant from Pakistan, for a residency card under the European Communities (Free Movement of Persons) Regulations 2015 on the basis that his marriage to A.F., a national of Latvia, was a “marriage of convenience”.
That finding was upheld on review in March 2017. A deportation order in respect of M.K.F.S. followed in June 2017. M.K.F.S. issued judicial review proceedings challenging the deportation order.
Mr Justice Richard Humphreys dismissing each of the asserted claims in February 2018. In so doing, the court held that a marriage of convenience is a legal nullity. He stated that “[w]here it is determined that the applicants’ relationship is based on fraud, no ‘rights’ can arise from such a relationship; and an absolutely necessary consequence is that no obligation arises under the Constitution, the ECHR or EU law to consider any such ‘rights’.”
He said that the Civil Registration (Amendment) Act 2014 provides that a marriage of convenience is a nullity. This legislation, he said, “was necessitated by the troubling consequences” of the decision of Mr Justice Gerard Hogan in Izmailovic v Commissioner of An Garda Síochána  2 I.R. 522 “to the effect that a marriage of convenience was valid in law.”
Mr Justice Humphreys disagreed with the conclusion reached by Mr Justice Hogan in Izmailovic, stating that he felt that he had been overly influenced by English law, particularly the decision of the House of Lords in Vervaeke v Smith  1 AC 145; that he had misread the decision of the Supreme Court in H.S. v J.S. (Unreported 3 April 1992); and had failed to have regard to the relevant case of Kelly v Ireland  3 IR 537.
He said that Mr Justice Hogan’s contention that the common law traditionally has never provided for a general abuse of rights doctrine of this nature in the sphere of private law, finding this to be “a considerable overstatement and oversimplification”, and said that his judgment paid little attention to “the damaging consequences that were going to be unleashed by the decision.”
He also refused leave to appeal.
The Supreme Court granted leave to appeal, and the five-judge court overturned his judgment with regard to nullity.
M.K.F.S. and A.F. submitted that the High Court erred in law. While the High Court held that the Civil Registration (Amendment) Act 2014 provides that a marriage of convenience is a nullity”, they submitted that there is no such provision in the Act. The Act does not purport to allow for the ex-post facto nullity of marriages on the basis that the Minister might deem them to be marriages of convenience. They argued that the onus is on the Minister to establish that the marriage was a sham per Kelly v Ireland  2 IR 537.
They argued that there is no basis in law for Mr Justice Humphrey’s finding that a marriage of convenience would be “void ab initio, even prior to the 2014 Act.”
The Minister submitted that there was no obligation on him to revisit, in the deportation process, the decision already made under the 2015 Regulations. The Minister argued that there must be certainty in the area of administrative decision-making and that the deportation process is not a vehicle for re-opening the validity of earlier decisions, relying on Luximon v Minister for Justice and Equality  2 IR 542. The Minister said that the Appellants’ marriage does not come within the defining characteristics of marriage as referred to by the Supreme Court in H.A.H. v S.A.A.  1 IR 372, nor is it consistent with the comments of Mr Justice Humphreys in KP v Minister for Justice  IEHC 95.
The Minister said that it is clear from the case law of the European Court of Human Rights (EB v France (Application No. 43546/02, 22 January 2008); Schembri v Malta (Application No. 66297/13, 19 September,2017)) that the ECHR protects only genuine marriages, while the same is true of EU law (C-109/01 Akrich).
In respect of the question of nullity, the Minister submitted that the High Court’s finding that no rights could flow from a marriage of convenience was sufficient to dispose of the case, and that Izmailovic was discussed only in a narrow alternative, and obiter, context. The Minister says argued that it is implied from the judgment of Mr Justice Henry Barron in Kelly v Ireland that where the sole purpose of the parties to a marriage is to circumvent immigration laws, the courts may conclude that the marriage is a “sham” and that this has implications for the protections afforded to that marriage. The Minister said that Mr Justice Humphreys’ interpretation of this case law is to be preferred to that of Mr Justice Hogan. In his oral submissions he resiled somewhat from that position, being content to point out that the treatment of the issue in both the court below and in Izmailovic was obiter.
While the Appellants submitted that the Minister has arrogated to himself the jurisdiction vested in the Circuit Court under the Family Law Act 1995 s.29, the Minister argued that he cannot absolve himself from an obligation resting on him under a statutory provision by seeking to delegate responsibility for it to the Circuit Court. He relied on Hamza v Minister for Justice  IESC 9 and Hassan v Minister for Justice  IESC 8 in this regard.
Submissions of the Amicus Curiae
The Irish Human Rights and Equality Commission appeared in the matter because it was of the view that this appeal concerned an important issue of principle relating to the status of a marriage validly contracted under Irish law. It submitted that the status of such a marriage must be understood in light of the right to marry as protected under the Constitution, Article 12 ECHR and Article 9 of Charter of Fundamental Rights of the EU. It made reference to the judgment of Ms Justice Iseult O’Malley in H.A.H. v S.A.A.  1 I.R. 372, which the Commission contended reflects a nuanced approach to marriage which is in contrast with the judgment under appeal.
The Commission referred to the decision of the ECtHR in O’Donoghue v UK (Application No. 34848/07, 14 December 2010) where the court recognised, to an extent, that States may be entitled to limit the right to marry for the purpose of preventing marriages of convenience. However, it said that under the ECHR, as under the Constitution, any limitations on the fundamental right to marry must be proportionate.
Mr Justice William McKechnie referred to the judgment of Mr Justice Donal Barrington in R.S.J. v J.S.J.  ILRM 263 that “People have entered into a contract of marriage for all sorts of reasons, and their motives have not always been of the highest.” The judge said that “As is obvious and to be hoped for, a great number of people marry for love”, but noted that others marry for money, or security, or status, or fame. “Others marry to secure some tax or inheritance advantage… sadly some people are still married off to secure some advantage for others: to gain power, to form alliances, or simply because that is the will of the family.”
He noted that the right to marry is recognised in Article 40.3.1° of the Constitution, and that Ireland must defend and vindicate that right, referring to Ryan v Attorney General  IR 294 and O’Shea v Ireland and Attorney General  2 IR 313.
Mr Justice McKechnie held the Minister may rely, in a subsequent deportation process, on a Ministerial determination that a marriage amounted to a marriage of convenience in the context of a residence application under the 2015 Regulations. This does not render that marriage a legal nullity.
The judge said that he finds it “difficult to believe that the term “abuse of process” as properly understood, could encompass the situation at hand”, and that that the couple have consistently maintained that theirs is not a marriage of convenience. He said that “this certainly does not appear to be a typical abuse of process situation.”
Mr Justice McKechnie held that as these proceedings arose in the immigration context and do not concern the matrimonial jurisdiction of the High Court, the views expressed by Mr Justice Humphreys in this case “cannot be held to represent the correct position in law, which will fall to be resolved in due course in a case in which the matter properly arises.”
The appeal, in relation to the issue of nullity, was allowed.
© Irish Legal News Ltd 2020