Izmailovic Anor -v- Commissioner of An Garda Síochána & Anor
Neutral citation (2011) IEHC 32.
High Court
Judgment was delivered on January 31st, 2011, by Mr Justice Gerard Hogan.
Judgment
There was no impediment to the marriage of a Lithuanian woman to an Egyptian failed asylum seeker, which would have been valid in Irish law even if it were a marriage of convenience. The arrest of the man was unlawful and he was ordered to be released.
Background
Juztinia Izmailovic is a Lithuanian who met the second applicant over the internet in early 2009.
She came to Ireland in May 2010, registering with the Revenue Commissioners. Mahmoud Ads is an Egyptian who unsuccessfully applied for asylum in 2008 and was the subject of a deportation order. He was then illegally in the State.
The two parties claimed to have lived together at an address in Dublin from May 2010 and to have undergone a religious marriage ceremony in July. In October they gave notice to the civil registration office in Cavan of an intended marriage on January 12th, 2011, and they travelled with some friends to Cavan on that date for the ceremony.
Two officers from the Garda National Immigration Bureau arrived and gave a letter to the registrar from a chief superintendent objecting to the marriage on the grounds that it was a marriage of convenience and that the matter was being investigated by the bureau. Mr Ads was arrested and brought to Cloverhill Prison.
The applicants sought an injunction which Mr Justice Hogan decided should be treated as an inquiry into the legality of Mr Ads’s arrest and detention under Article 40.4.2 of the Constitution.
Decision
Mr Justice Hogan said gardaí were in principle entitled to arrest Mr Ads as a person who had evaded our immigration rules. However, the statutory power of arrest must be exercised in a reasonable fashion and for the purposes conferred by law.
“The arrest of a person at a registry office just immediately prior to their marriage is one which calls for a high degree of justification,” Mr Justice Hogan said.
While gardaí independently wished to arrest Mr Ads for evading the deportation order, it was clear that the principle motive for his arrest at that time was to ensure that the marriage did not take place.
This was illustrated by the evidence given by Chief Supt O’Driscoll, when he said that the problem of marriages suspected of being entered into for the purpose of obtaining EU treaty rights was one which had exercised the Government.
While a plurality of motives would not invalidate an otherwise lawful arrest, this was not the case where the main object of the arrest was to prevent a person exercising a right which, once exercised, would mean he could no longer be validly arrested, Mr Justice Hogan said. This raised the issue of whether the marriage would be valid under Irish law.
None of the standard impediments to marriage was present in this case.
The detective chief superintendent had reasonable grounds for suspicion, including the facts that the address given by Ms Izmailovic was the same as that given by a number of other people whose marriages were being investigated by the Garda. There was also no doubt that the problem of marriages of convenience for monetary gain was a serious one.
However, the proposed marriage between these two individuals would have been a valid marriage, as clearly emerged from decisions of the British House of Lords and the Supreme Court.
The House of Lords had found that a marriage of convenience was valid, even though there was no intention to live together as man and wife, and the Irish Supreme Court took a similar view in H -v- S (1992).
There was a difference in approach to this matter between the common law and the civil law traditions.
In many civil law jurisdictions, the civil codes provide for a general prohibition on the abuse of rights in private as well as public law. The common law traditionally has never provided for a general abuse of rights doctrine of this nature in the sphere of private law. It was, of course, open to the Oireachtas to legislate for such a doctrine, Mr Justice Hogan said.
Chief Supt O’Driscoll had objected to the marriage under section 58 of the Civil Registration Act 2004, which provides for the lodging of an objection to the marriage in writing with the registrar, who can then not proceed.
However, Mr Justice Hogan said that once this was read in context, it was clear that the power to object was confined to impediments to marriage as traditionally understood, relating to such matters as capacity, age, marital status and gender. There was no such impediment to the marriage of Ms Izmailovic and Mr Ads.
Section 58 did not convey a free-standing power of objection to marriage on the grounds, for example, of mental reservation on the part of those marrying.
“If such a ground of objection were to be admitted, then this would open up a Pandora’s box of mischief and abuse which none could easily close,” Mr Justice Hogan said, giving the examples of jilted lovers, anxious parents and well-intentioned friends and relatives. “Such a construction would play into the hands of the mendacious, the busybody and the crank.”
The right to object was confined to the traditional impediments to marriage, the proposed marriage was valid under Irish law and the registrar had no jurisdiction to refuse to solemnise it.
Had the marriage taken place, Mr Ads would in principle have been entitled to reside in Ireland. However, the 2006 regulations allow for this right to be withdrawn if it was acquired fraudulently (for example, by a marriage of convenience). However the language of the regulations makes it clear that this envisaged an administrative review of whether the marriage was one of convenience after the event, conducted with appropriate procedural safeguards.
Mr Justice Hogan therefore concluded that the principal reason for the arrest of Mr Ads was to prevent the marriage, which would have been valid under Irish law even if it were a marriage of convenience; the question of whether it was a marriage of convenience could only have been established after the event in accordance with the 2006 regulations; there was no impediment to the marriage and the chief superintendent’s objection was not valid; the arrest of Mr Ads was unlawful and he should be released.
Mr Justice Hogan said he appreciated the difficulties this decision may present to the authorities, but it was open to the Oireachtas and the European Union to address these questions.
The full judgment is on courts.ie
Instructed by Farrell solrs, North Great George’s Street, Dublin, for the applicants; instructed by the Chief State Solicitor, for the State.