Law preventing recognition of some refugee marriages unconstitutional, judge rules

A High Court judge has declared unconstitutional a law preventing the recognition, for family reunification purposes, of marriages of refugees which took place after they sought protection here.

Mr Justice Max Barrett made the declaration in relation to Section 56.9.a of the International Protection Act 2015, which states a refugee can apply for permission for a spouse to enter and reside with them in Ireland provided they had married before the applicant sought international protection here.

Had he not found the provision unconstitutional, with the result it is invalid and does not have force of law, the judge said he would have granted a declaration under the European Convention on Human Rights Act 22003 that section 56.9.a is incompatible with the State’s anti-discrimination obligations under Article 14 of the ECHR, read in conjunction with Article 8 of the ECHR, concerning respect for private and family life.

As a result of his findings in favour of an Afghan man who brought the legal challenge, the judge said the man is entitled to an order quashing the Minister for Justice’s refusal to recognise his marriage for family reunification purposes.

Earlier, in response to the Minister’s argument the man could apply under a separate non-statutory discretionary family reunificaiton scheme, the judge said that was “the reddest of red herrings” and distracted from the key issues in the case.

The man got refugee status here in July 2015 after fleeing Afghanistan.

On April 3rd, 2017, he went to Pakistan to marry a woman who was born in Pakistan but whom he had grown up with in Afghanistan.

He returned to Ireland and on April 19th, 2017, submitted a family reunification application.

In October 2017, his application was refused by the Minister under section 56.9.a on grounds that the marriage was not subsisting when he applied for protection in 2015.

The man challenged the refusal in High Court judicial review proceedings against the Minister and State. The Irish Human Rights and Equality Commission was a notice party.

In his reserved judgment on Wednesday, Mr Justice Barrett noted Article 40 of the Constitution provides “all citizens shall, as human persons, be held equal before the law” and requires the State to vindicate the personal rights of the citizen. Article 41 provides the State guarantees to protect the family and to “guard with special care the institution of marriage”.

The judge accepted the man’s arguments, as a result of section 56.9.a, his marriage is treated less favourably than refugees who married before they applied for international protection and he ruled that the distinction was unconstitutional.

He said none of the reasons advanced by the Minister to justify the constitutionality of the provision “stand up to scrutiny”, including arguments the measure enables a refugee to reunite with their spouse from whom they had been forcibly and involuntarily separated.

He said the Minister had failed to explain why section 56.9.a differentiates between this man, a refugee who married after he came here, and a refugee who married before they made an international protection application.

The court was thus confronted by differences of treatment “without any rationality or proportionality”, which is “another way of stating the said differences are arbiitrary”.

He also rejected arguments by the Minister that section 56.9.a provides as it does in order to comply with the State’s international obligations. In light of the court’s view section 56.9.a is not compatible with the ECHR, the provision in fact “yields non-compliance with the State’s international obligations”, he said.

Dealing with the ECHR incompatibility argument, the judge said he considered he should follow a 2013 decision of the European Court of Human Rights in the case of Hode and Abdi v the United Kingdom.

In that decision, the European court stated, inter alia, if domestic law confers a right to be joined by spouses of certain categories of immigrant, it must do so in a manner compatible with Article 14 of the ECHR.