Supreme Court decision on Marriage of Convenience – Marriage of convenience does not nullify a marriage.
The Supreme Court has just delivered a very important decision pertaining to EU Treaty Rights Immigration cases when it comes to Marriage The Supreme Court has found that a Marriage of Convenience finding does not make the marriage a legal nullity as previously held by the High Court. This a very welcome clarification of the law in the area.
The Facts and background of the case Supreme Court Decision – M.K.F.S and A.F and N.J.F v MJE 2020_IESC_48
The applicant married an EU citizen here in February 2010. In April 2010, he applied for an EU residence card and received it 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- the Applicant, 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. However Mr. Justice Humphrey’s of the High Court’s ruled in 2018, inter alia, a marriage of convenience is a nullity at law for all purposes and no rights of the applicant could arise from it.
The Supreme Court later agreed to hear a “leapfrog” appeal directly to it. The Irish Human Rights and Equality Commission submitted the High Court made an error in law 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.
Issues arising in the case
The core issues in the appeal concerned whether a marriage under the Civil Registration Act 2004 is void as a result of the Ministers later decision that the marriage is one of convenience or whether rights still emanate from the marriage, depending upon the facts and circumstances of the case.
The Supreme Court said issues of general public importance arose from the High Court judgment, in particular on the basis of an apparent conflict between that and another High Court judgment.
Findings of the Supreme Court
The High Court held the Minister’s determination that the marriage was one of convenience rendered the marriage a legal nullity for all purposes. The Supreme Court held that was not correct finding that The Minister has no power to so declare and, in fact, never purported to make any such “far-reaching” declaration.
Here is the conclusion of Mr Justice McKenchie:
“To conclude in respect of the three questions set out at para. 57, supra, I would hold (i) that the Minister’s determination (made in the context of the residence application under the 2015 Regulations) that a marriage is one of convenience, may be relied upon by the Minister in the context of the subsequent deportation process; (ii) that the said determination 66 made by the Minister under the 2015 Regulations does not have the effect of rendering that marriage a nullity at law; rather, such determination is limited to the immigration/deportation context the sole consequence thereof is that it entitles the Minister to “disregard” the marriage in the very specific context as set out above; and (iii) although the Minister is entitled to import the earlier decision into the deportation process, he must nonetheless have regard, in operating that process, to the Article 8 rights of the Appellants as founded on the underlying relationship between the parties; it does not appear that he did so here.”
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 overturned the 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 Supreme Court concluded that 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 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. Mr. Justice McKechnie held that The Minister did not appear to have done so in this case.
The Supreme Court partly allowed the appeal by the couple and the child concerning a 2017 deportation order made for the man.
The Supreme Court found that in view of the face that these proceedings arose in the immigration context and did not concern the matrimonial jurisdiction of the High Court, the views expressed by Mr Justice Humphreys could not be held to represent the correct position in law according to Mr. Justice McKechnie.
He went on to state that the correct legal position would have to be resolved in due course in a case in which the matter properly arises.
The Supreme Court found that the High Court also erred in concluding that because of a marriage of convenience finding, no family or private rights arose from the underlying relationship between the parties to be considered in the deportation context.
The Supreme Court notes that the appellants’ rights under Article 8 of ECHR still required to be balanced “in the mix”.
The couple had consistently maintained that their marriage was not not a marriage of convenience “and this certainly does not appear to be a typical abuse of process situation”, Mr. Justice McKechnie said.
Over the past number of years, Sinnott Immigration Solicitors have received hundreds of decisions where the Minister has declared the marriage legally void in circumstances where the Minister is of the opinion that the marriage is one based upon convenience and designed to gain “immigration advantage”. We welcome this decision on behalf of those clients. Many of our clients who are in a genuine relationship with their EU spouse are often unfairly issued with a marriage of convenience finding. We have been working with them to prepare submissions and applications to the Minister to challenge those findings including judicial review applications before the High Court. If you have any queries in relation to marriage of convenience refusals please do not hesitate to contact us on info@sinnott.ie or 014062862.
