Hamza v Minister for Justice, Equality and Law Reform

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Respondent/Defendant:Minister for Justice, Equality and Law Reform
Court/s:Supreme Court
Citation/s:[2013] IESC 9
Nature of Proceedings:Appeal
Judgment Date/s:20 Feb 2013
Judge:Fennelly J. (Denham CJ, Murray, Hardiman and Clarke JJ. concurring)
Category:Refugee Law, Residence
Keywords:Charter of Fundamental Rights of the European Union, Family Reunification, Refugee, Residence
Country of Origin:Sudan
URL:https://www.courts.ie/acc/alfresco/76696c85-52c2-425f-9edc-62942e421d41/2013_IESC_9_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts

The first applicant was a national of Sudan who had been granted refugee status. He applied to the Minister for Justice pursuant to s. 18 of the Refugee Act 1996 for family reunification with his spouse, the second named applicant. In the course of his application he submitted a certificate which indicated that the marriage had taken place by proxy. The application was refused by the Minister on that account, it being held that the spouse did not qualify as a member of his family by reason of that.

The High Court quashed the decision on two bases, namely that the marriage was a proxy marriage and as such was not valid in Irish law; and that an incorrect test for recognition of a subsisting marital relationship between the refugee and the “spouse” had been applied for the purpose of Section 18(3)(a) of the Refugee Act 1996. It held that, under Irish law, a proxy marriage, lawfully concluded according to the law of the locality in which it took place, would be recognised as valid provided the parties had the capacity to contract it at the time, and unless some factor of public policy applied to prevent or to relieve the State from recognising it. It held that that was particularly so where both of the parties concerned were domiciled in the jurisdiction in which the marriage was solemnised so that no issue arose as to the absent party represented by the proxy having been domiciled in Ireland at the time.

The Minister unsuccessfully appealed the decision of the High Court to the Supreme Court.

Reasoning

The Supreme Court held that proxy marriages which were valid according to the law of the locality in which they took place, the lex loci celebrationis, would be recognised as valid in Irish law, provided the parties had the capacity to contract them at the time and unless some factor of public policy applied to prevent or to relieve the State from recognising them.

Decision

The Supreme Court accordingly set aside the refusal of the Minister of the application for family reunification, he having erred in concluding that a proxy marriage was not valid as a matter of Irish law.

Principles:

The question of whether a person the subject of an application for family reunification is the spouse of the applicant, as alleged, is a matter for the Minister for Justice to decide. A marriage contracted in a foreign country which complies with the requirements of the laws of that country, the lex loci celebrationis, is valid under Irish law, unless it conflicts with fundamental requirements relating to validity, such as incapacity to marry. Proxy marriages validly contracted under foreign law are therefore valid under Irish law, unless the existence of a fundamental requirement relating to validity is shown to exist.

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