The Applicant was a Somali refugee who had made an application pursuant to s. 18 of the Refugee Act, 1996, for family reunification – that is, for permission to have his family come to join him in safety in Ireland. Section 18 establishes for declared refugees a right to family reunification. The section provides that such applications are first to be referred by the Minister to the Refugee Applications Commissioner, whose function it is to submit a report in writing to the Minister on the relationship between the refugee and the person or persons the subject of the application as well as the domestic circumstances of the person or persons in question.
The Applicant’s applications for family reunification with his wife was refused by the Minister, who questioned the validity of the marriage under Irish law. The Minister told Mr Hamza that it was open to him to have the validity of his marriage confirmed by obtaining a declaration as to marital status by application to the Circuit Court under s. 29 of the Family Law Act 1995.
Cooke J. held that the Minister could not delegate to any third party – including a Circuit Judge – the decision he is required to make under s. 18(3)(a) of the Refugee Act, namely, whether the person comes within the definition of a family member or, in a case such as the present, that the person concerned and the refugee are parties to a subsisting marriage. Having regard to the provisions in s. 29(2) of the Family Law Act 1995, it was clear to the Court that the declaratory remedy was directed at questions of the recognition of the subsisting validity of marriage in Irish law for the purposes of divorce, remarriage, legitimacy, succession and related questions in cases of parties with an established connection with the country.
The Court held that the entitlement of a refugee to seek family reunification with a spouse under s.18 wss not circumscribed by conditions of domicile or minimum ordinary residence. Almost by definition, the issues that arise in relation to the recognition of family relationships in the case of refugees will be materially different, both as regards formalities of proof and conflict of laws. Cooke J. noted that the Circuit Court has no inquisitorial competence or investigative function in adjudicating upon the application but is effectively dependent on the evidence adduced by the parties before it. By contrast, section 18(2) of the Refugee Act equips the Minister, with the assistance of the report from the Commissioner, presumably with the intention that the Commissioner should report on the relationship using the expertise and resources of the Office, to obtain and furnish such information as to local laws, customs and social conditions as may be required to assess the validity of the claim made and the authenticity of documents produced to substantiate it; or to confirm that conditions are such in the country in question that the explanation given for the absence of formal proofs is credible or not.
On the facts of the case before him Cooke J. found that the primary reason given by the Minister for the refusal of the application was mistaken in law: First, the marriage in question may not have been a proxy marriage; secondly, a proxy marriage, as such, is not necessarily excluded from recognition as valid in Irish law; thirdly, recognition as valid in Irish law was not, in the view of the Court, the exclusive test for the recognition of a spouse as entitled to the benefit of s. 18(3) of the Act of 1996, as a member of the family of a refugee.
The Court noted that the Minister’s approach brought into play an area law of considerable complexity and uncertainty, due not only to the absence of a detailed judicial consideration of the rules with respect to conflict of laws in this jurisdiction in modern times, but also to the historical, cultural, religious and legislative differences which influenced Irish law on these issues as compared with other common law jurisdictions during the 19th Century. In the judgment of the Court, it was at least questionable whether the Oireachtas, in providing for family reunification of refugees in s. 18, intended that the recognition of their marital relationships should be dependent upon such arcane and uncertain rules. Cooke J. said that it was inevitable that the circumstances which gave rise to applications under section 18 of the Refugee Act would frequently involve situations in which formal proof of a marriage ceremony is either non¬existent or impossible to obtain. Almost by definition, the refugee will be somebody who has been forced to flee from a country or region which is in the throes of war or civil strife and in which public or municipal administration may have broken down and records been destroyed.
The Court concluded that s.18(3)(b)(i) of the 1996 Act does not require that the Minister be satisfied that the refugee and spouse be parties to a marriage which is recognisable as valid in Irish law, or that any particular documentary proof of the foreign ceremony be produced. It requires, merely, that the refugee and spouse are married and that the marriage is subsisting at the date of the application. It does not define the term ‘marriage.’ A refugee who is able to demonstrate the existence of a subsisting and real marital relationship with the person the subject of the application is entitled to have the martial relationship recognised for the purposes of reunification under section 18 unless some reason of public policy intervenes to prevent its recognition. This will be particularly so in cases such as the present one where it can be demonstrated that the relationship has subsisted over many years; that the marriage has been consummated and it is not disputed that there are children of the relationship of whom the refugee is a parent.