Huge efforts required to prevent bogus marriages, says judge

A High Court judge has asked the State to make “huge efforts” to prevent, root out and revoke bogus marriages after the making of a deportation order against one or other of the parties.

Mr Justice Richard Humphreys made the comments in a major reserved judgment about a 45-year-old Algerian man who had challenged a deportation order.

“I appreciate that love is, of course, blind but it is nonetheless disturbing to note how frequently applicants become regarded as ‘a good catch’ shortly after being served with deportation orders,” the judge said.

The judge said the man, who cannot be identified for legal reasons, had initially sought asylum here after claims he had encountered difficulties with Islamists in his home country.

He had left Algeria 15 years ago and had come to Ireland where he had been refused asylum by the Refugee Applications Commissioner, a decision he had not appealed.

The judge said that five months after a deportation order had been made against him in March 2004 by the minister for justice and equality, “we have the wearyingly predictable feature of his marriage to a young Hungarian woman” who had left Ireland four years later and with whom he had no contact since. There had been no children from the marriage.

The applicant had made a claim for residence in Ireland based on his marriage to the Hungarian EU national and this had been refused. His marriage had been “ephemeral at best”, ruling out any basis for a claim of “family life” under the Irish Constitution.

“In the interests of the human rights of those involved there is a clear duty on the State to make huge efforts to prevent such bogus marriages in future,” the judge said.

The Algerian man had claimed that during military service in Algeria he had been involved in anti-terrorist work against one of two main Islamist insurgent groups that fought the Algerian government and army during the Algerian Civil War in the 1990s.

The judge said the applicant claimed that when he left the army he had encountered difficulty with Islamists against which there was no State protection in his country. He had been refused a revocation of his deportation order and had asked the court to judicially review that decision.

The judge dismissed the man’s application and lifted a prior injunction restraining his deportation. He said that the mere passage of time had not meant that the minister’s office had expressed a lack of continuing intention to deport.

Asylum appeal

In a separate case the judge dismissed an asylum appeal in which a Nigerian woman who had been given a right of residence in Ireland had married a Nigerian man, against whom there was a deportation order.

While continuing to evade the Garda National Immigration Bureau for seven years from 2008 until 2015 the man had last year undergone a civil marriage ceremony with the woman who had residential rights in Ireland and who had afterwards become pregnant. The man had however been deported in September 2015, three months before the birth of their child.

The judge said the parties should have known the risks involved in a marriage built on such shaky foundations.

“It would be destructive of any ordered immigration control system if a person could convert his or her illegal status into a legal one merely by the expedient of either getting married or entering into . . . a relationship with a person who has an entitlement to be in the State,” the judge said.

He said unlawful presence in the State could not be converted into lawful status merely by a ceremony of marriage. A sham, last-ditch marriage to an Irish national conducted for immigration purposes conferred no rights on an applicant to resist deportation.

The judge said the State had an entitlement to give effect to the immigration control system and the courts should only intervene if the decision of the Minister for Justice and Equality was clearly unlawful.

“Who is running Ireland’s immigration system? Is it the Minister or the courts? To quash an immigration decision on the grounds that insufficient compelling reasons have been furnished to override rights of a person married to an Irish citizen is not very far short of telling the Minister to grant the applicant concerned permission to be in the State,” the judge said.

He did not accept the proposition that the Minister required “compelling justification” to separate a party to a marriage of convenience from the other party. No rational system could tolerate such a requirement.

“A rational immigration control system could not function if the mere act of entering into such a marriage gave rise to a requirement on the part of the Minister to come forward with ‘compelling justification’ before removing such a person from the State,” the judge said.

He told barrister Silvia Martinez Garcia, counsel for the Minister, that a person with no right or entitlement to be in the State did not generate such a right merely by going through a ceremony of marriage.

Personal responsibility

The judge said applicants who found one partner liable to deportation were generally persons who had voluntarily put themselves in that situation. It was their conduct that had given rise to the situation where there may have to be a parting of the ways and seeking to blame the State for a situation one had created oneself was a fundamental denial of personal responsibility.

The judge said it was up to the woman, who had lived in Ireland for the past 16 years, to decide if she wished to join her deported husband in Nigeria.

She was an Irish citizen and had a job and it was up to her to decide whether she valued the congeniality of living in Ireland more than that of living with her husband. That was really a matter for her.