Marriage of convenience finding does not make marriage a legal nullity, court rules

A ministerial finding of a marriage of convenience can be relied on in later immigration proceedings but it does not make the marriage a "legal nullity", the Supreme Court has ruled in a significant judgment.

The five judge court on Monday overturned a far-reaching High Court finding that, because of the Minister for Justice's decision the marriage of a Pakistani man to an EU citizen was a marriage of convenience, their marriage was a "legal nullity".

The core issues in the appeal by the man, woman and her child, concerned whether a marriage under the Civil Registration Act 2004 is a legal nullity as a result of the Executive’s later decision it is one of convenience or whether rights still emanate from the marriage, depending upon the facts and circumstances of an individual case.

The Supreme Court’s Mr Justice William McKechnie concluded the determination of a marriage of convenience in the context of the man’s residence application under the European Communities (Free Movement of Persons) Regulations 2015 may be relied upon by the Minister in the context of the subsequent deportation process but does not render that marriage a nullity at law.

The “sole consequence” of the marriage of convenience determination is that it entitles the Minister to “disregard” the marriage in that “very specific” context, he stressed.

The Minister is entitled to import the earlier marriage of convenience finding into the deportation process but must have regard, in operating that process, to the private and family rights of the appellants under Article 8 of the European Convention on Human Rights. The Minister did not appear to have done so in this case, he held.

On foot of its findings, the court partly allowed the appeal by the couple and the child concerning a 2017 deportation order made for the man.

The case arose after the man, then an asylum applicant, married the EU citizen woman here in February 2010.

In April 2010, he applied for an EU residence card and got that in October 2010. In March 2011, the couple separated and the woman later had a child by a different man, who later died.

The Pakistani man claimed the couple, who had not divorced, re-united in April 2015 and recommenced their existing marital relations.

After he applied in October 2015 for a second residence card, the Minister decided the marriage was one of convenience. That decision was upheld on review in 2017 and a deportation order issued for the man.

The couple and the woman's child sought judicial review but the High Court's Mr Justice Richard Humphreys ruled in 2018, inter alia, a marriage of convenience is a nullity at law for all purposes and no rights could arise from it.

The Supreme Court later agreed to hear a "leapfrog" appeal directly to it. The Irish Human Rights and Equality Commission, as assistant to the court on legal issues, submitted the High Court erred in concluding the marriage was a legal nullity.

The Supreme Court was told during the appeal the couple were not living together for financial reasons but intended to do so if he got his immigration status resolved, thus enabling him to work.

Mr Justice McKechnie said issues of general public importance arose from the High Court judgment, in particular on the basis of the apparent conflict between that and another High Court judgment.

Insofar as the High Court implicitly held the Minister’s determination the marriage was one of convenience rendered the marriage a legal nullity for all purposes, that was not correct, he ruled. The Minister has no power to so declare and, in fact, never purported to make any such “far-reaching” declaration.

Given these proceedings arise in the immigration context and do not concern the matrimonial jurisdiction of the High Court, the views expressed by Mr Justice Humphreys cannot be held to represent the correct position in law, he said.

The correct legal position would have to be resolved in due course in a case in which the matter properly arises.

The High Court also erred in concluding, because it is a marriage of convenience, no family/private rights arising from the underlying relationship between the parties arise to be considered in the deportation context, he said.

The appellants’ rights under Article 8 of ECHR still required to be balanced “in the mix”.

The couple have consistently maintained theirs is not a marriage of convenience “and this certainly does not appear to be a typical abuse of process situation”, he added.