Facts
The first applicant was a national of Somalia and was granted refugee status. He then applied to the Minister for Justice pursuant to Section 18 of the Refugee Act 1996 for family reunification with his alleged spouse, the second applicant. He indicated in his application that his marriage was religious in nature but he was unable to provide any documentary evidence of it on account, he said, of the ongoing conflict in Somalia. His application was refused by the Minister on the basis of insufficient documentary evidence. The applicant’s solicitors sought a review of the decision and submitted what was claimed to be an original marriage certificate, which had been obtained from the Somali embassy in Ethiopia. The application was then refused because the marriage was religious in nature.
The applicant took proceedings to challenge that decision and the High Court quashed it. He held that the explanation for the failure to register the marriage in Somalia, namely the lack of any civil registration system owing to the conflict there, was confirmed by country of origin information. In quashing the decision, it held, first, that the statement that the marriage was not recognised in Irish law because it was religious was not correct. Even if the formal requirements of the lex loci celebrationis had not been complied with, the marriage was still potentially capable of being recognised in the State as a valid common law marriage. Secondly, it held that the decision was based upon an incorrect interpretation of the test of a marital relationship applicable under s. 18(3)(b) of the Refugee Act 1996. Where a refugee was in a position to prove by alternative means that, since the date of the claimed marriage ceremony, a real marital relationship based on cohabitation and exclusivity in the relationship had subsisted between the two parties in question over a substantial period, the Minister might be entitled to consider that the requirement of Section 18(3) was satisfied.
The Minister appealed unsuccessfully to the Supreme Court.
Reasoning
The Supreme Court held, first, that the Minister was not entitled to rely on the fact of the marriage as being religious as a ground for refusal and, secondly, that he had not taken sufficient account of the explanation given for the inability to produce a marriage certificate from Somalia in the circumstances of that country at the relevant time.
It observed that Irish law would recognise a marriage contracted in a foreign country which complied with the requirements of the laws of that country, the lex loci celebrationis, unless it conflicted with fundamental requirements relating to validity based on the domicile of the parties or public policy in Irish law, in particular capacity to marry. It noted that the courts had previously refused recognition to a common-law marriage because it was potentially polygamous.
It acknowledged that the question of whether an applicant was married, as alleged in a family reunification application, was a matter for the Minister to decide, but that he had to apply the law properly in doing so. It held that it was not open to the Minister to decline to decide that question by suggesting that the applicant seek a declaration pursuant to Section 29 of the Family Law Act 1995.
It held that, in the case before it, the Minister had been confronted with an application based on a clear assertion of a marriage ceremony with legal effect in Somalia, combined with the total loss of any possibility of producing documentary proof. It stated that the Minister was required to make an assessment based on all the evidence and with the assistance of the report prepared on foot of the investigation of the application. He was required to consider the assertion made by the applicant that a marriage had taken place and to assess its credibility, based on all the circumstances. He was not bound to accept a bald assertion but should consider it in combination with all other circumstances. One of those circumstances would be the reason offered for inability to produce a certificate. It held that he should take into account such evidence as might be provided that the parties have cohabited as a married couple. None of those considerations was decisive. It observed that he was not bound to accept the certificate which purported to emanate from the embassy in Ethiopia, but that there was nothing to prevent the applicant submitting an explanation as to how the embassy came to issue it.
Decision
The Supreme Court accordingly set aside the refusal by the Minister of the application for family reunification, the Minister having erred in relying on the religious nature of the marriage in his refusal and in failing to take sufficient account of the explanation given for inability to produce documentary evidence of the marriage.
