A HIGH Court judge has ruled gardaí have no power to prevent non-EU citizens entering into a marriage of convenience here for immigration purposes.
Mr Justice Gerard Hogan said, as the law stands, this State has not asserted any right to prevent the solemnisation of otherwise valid marriages which later turn out to be marriages of convenience.
While it was open to the Oireachtas to introduce such a law, the position now is that any review of a marriage to decide if it is a marriage of convenience may only take place afterthe fact and not before, he ruled.
While he appreciated his decision may present the authorities with “very considerable difficulties in this problematic areas” in relation to marriage and immigration, if the law in this area was considered unsatisfactory it was “up to the Oireachtas to address these issues”, he said.
He made the remarks in a judgment on proceedings by an Egyptian man and a Lithuanian woman arising from the arrest and detention of the man, Mahmoud Elmorsy Ads, by gardaí shortly before his civil marriage ceremony to Junstina Izmailovic was due to take place at the Civil Registration Office in Cavan on January 12th last.
The judge ruled gardaí were not entitled to arrest Mr Ads in an effort to prevent the couple’s marriage proceeding in circumstances where gardaí suspected, “even with very good reason”, the marriage was one of convenience.
Giving judgment on the proceedings against the Garda Commissioner, the Minister for Justice, Ireland and the Attorney General, he ruled Mr Ads’s detention was unlawful and ordered his release.
The judge said the action raised difficult and novel issues of “considerable public importance” involving European, constitutional, family law, immigration law and the law of arrest.
He noted Mr Ads’s application for asylum was turned down in October 2008, and he was the subject of a deportation order made last November. Mr Ads was ordered to turn up to the Garda National Immigration Bureau last December but failed to do so and was now in the State illegally, the judge added.
Mr Ads met Ms Izmailovic on the internet in 2009 and she came to Ireland in May 2010. The two were living together in Dublin since then and went through a religious marriage ceremony at a mosque last July. In October, they gave notice of their intended marriage to the Civil Registration Office in Cavan.
The couple travelled to the office on January 12th but shortly before they were to get married two gardaí from the bureau arrived and they were informed an objection was being lodged to their marriage on grounds it was a marriage of convenience under section 58 of the Civil Registration Act 2004. The marriage did not go ahead and Mr Ads was detained in Cloverhill Prison.
The judge ruled the main purpose of Mr Ads’s arrest was to prevent a marriage which could give him the benefit of rights under the EU treaty. The State was not entitled to effect an arrest for that purpose, he ruled. He agreed with Proinsias Ó Maolchalain, for Mr Ads, that the detention was unlawful and Mr Ads should be released immediately.
Had the marriage gone ahead it would have been valid under Irish law even if it was one of convenience, the judge also said. The Garda objection to the marriage was not valid and the registrar had no jurisdiction in the circumstances to refuse to solemnise the marriage even if the Garda objection were held to be well founded.
Under the 2004 Act, the only impediments to marriage are where one or both of the parties are already married, are under age, lack mental capacity, are of the same sex or because of a technical error.
There was no free-standing power of objection to a marriage taking place and, if one existed, it could “open a Pandora’s box of mischief and abuse” that could not be easily closed, he said. It could lead, for example, to “a jilted former lover maddened by jealously” objecting on grounds of “pure spite” to a proposed marriage.
