On 15^th June 2017, the Supreme Court case of H.A.H v S.A.A and Others ruled that the first marriage of a Lebanese man with two wives would be held as valid under Irish law, while his second marriage and all potentially subsequent marriages would not be legally recognised. The appeal followed from the case’s previous ruling in the High Court in 2010 which held that polygamous marriages were incompatible with the understanding of marriage in Ireland and in the Irish Constitution, and were thus entirely invalid.

 

This case bears importance for family reunification cases for those in polygamous relationships, applying for spouses to join them in Ireland.

 

The appellant husband is a refugee and naturalized Irish citizen, and came to Ireland as an asylum seeker in 1998. After he had been recognised as a refugee, his second wife and some of his children joined him in Ireland, under the Refugee Act 1996, which gives refugees the right to apply for their family to join them. She is now a naturalized Irish citizen.

 

In 2002, after he was granted Irish citizenship, the husband applied for his first wife to join him, but this request was denied by the Minister for Justice. The husband then began judicial review proceedings to quash that decision. The current case deals with both the Refugee Act 1996, which entitles a refugee to be joined by family members, and the Family Law Act 1995 which entitles a spouse to make an application to declare that a marriage was valid at its inception.

 

The Attorney General argued that neither the first nor second marriage should be legally recognised, as public policy in Ireland objects to the potential effects of polygamous marriages.

 

Ms. Justice O’Malley, who gave the leading judgment which was supported unanimously by the six other judges, held that a marriage that is capable of being potentially polygamous has legal recognition in the State, and that this legal validity will not be lost retrospectively if the husband contracts another marriage. As for any marriages subsequent to the first in a polygamous relationship, these would not be held valid, as to do so would contravene the principle that “marriage is a partnership based on equality of rights”. This means the second wife’s submission- that she was legally married to the appellant and that Irish law should recognise actually polygamous marriages- fails.

 

The judge, however, stressed that this did not mean that polygamous marriages would be denied legal effect in all circumstances. She also made special note of family reunification issues in immigration law, saying that in this area “It may well be desirable to have some regard to the reality of familial bonds. I note that it is the policy of the Department of Justice, when considering an application for family reunification in respect of the children of a refugee, to disregard the marital status of a child’s parents. That is in my view entirely correct. I would simply add that there is probably scope, having regard to the powers of the Minister, for a discretionary approach to the question whether the mother of a child should be admitted even where she is not recognised as a wife of the applicant. However, I stress again that these are policy matters which are, primarily, for the Oireachtas to consider.”  This discretionary approach may help curb some of the difficulties experienced by families when applying for family reunification that do not fit the typical family portrait.

 

It is interesting to compare the emerging legal position on polygamous marriages in Ireland to the well established position in the UK.

 

The Immigration Rules Part 8 (para 278-296) relate to family reunification issues for polygamous relationships.

 

(https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/263220/polygamous.pdf)

 

If a marriage is one that is recognised in the country in which it took place, was properly executed according to the laws of that same country, and there was nothing in either party’s country of domicile that restricted them from entering into the marriage, then the marriage is valid whether or not it is polygamous.

 

The application of a spouse within a polygamous marriage for leave to enter/remain in the UK should be refused if the applicant’s husband is also married to another woman who has entered the UK since marriage. Therefore, it is not the order in which polygamous spouses marry that is crucial, but the order in which they go to the UK. This is according to Annex G of the Immigration Rules (Part 8).

 

Children of polygamous spouses

If a polygamous spouse is disqualified by the Immigration Act/Rules from entering the UK, any children he or she had by that spouse may not qualify for entry to the UK, depending on the circumstances and in particular the operation of the Legitimacy Act 1976.

 

Polygamous spouses entering in their own right

A polygamous spouse may have an entitlement to enter the UK in his or her own right – for example as a returning resident, as a visitor, or as a student. They will not, however, qualify for entry clearance in a temporary capacity leading to settlement (for example, as a spouse of a work permit holder) if it would result in the formation of a polygamous household in the UK.

 

Termination of previous marriage

Even where it is suspected that a “divorce of convenience” has taken place, entry clearance cannot be withheld from a second wife, even if a polygamous household will be created as a result. A polygamous spouse may apply for entry clearance and support the application by claiming that a previous marriage (which would otherwise disqualify him or her) has been dissolved or terminated by the death of the spouse concerned.

 

Potentially polygamous marriages

Potentially polygamous marriages where the husband/wife is domiciled in the UK have been considered valid in UK law since in 1982. In cases where it is clear that the marriage is actually monogamous, potentially polygamous spouses can now be issued with husband/wife entry clearances, subject to the usual criteria of the Immigration Rules being met. Such marriages will, however, be made void by any subsequent marriage by one of the parties or by an annulment.

 

BERKELEY SOLICITORS

On Tuesday the 30th May 2017, The Supreme Court ruled in favour of a Burmese man’s appeal over the legal ban preventing him from working or seeking employment while under asylum seeker status. This is major depart from the current legislative position that prevents asylum seekers from working while they are in the asylum process.

The application had come to Ireland in 2008, and was initially denied his application for refugee status. After appealing this decision, he lived in direct provision for 8 years, suffering from depression, and “almost complete loss of autonomy.” As he was not allowed to work while under asylum seeker status, he believed that this, combined with the €19 weekly allowance, negatively impacted on his self-worth, personal dignity and individual development. After a lengthy delay in the processing of his appeal, he was eventually granted refugee status last September 2016 after re-hearings before the Refugee Appeals Tribunal when the High Court had found errors in the way in which his applications were decided.

The case against the legal ban preventing this man, as an asylum seeker, from seeking or obtaining employment, was brought by Michael Lynn SC, against the Minister for Justice, with the Attorney General and the Irish Human Rights and Equality Commission as notice parties.

While the Supreme Court unanimously found in favour of the man, the matter has been adjourned for six months so that legislature can be formed in direct consideration of the case. The court found the ban on asylum seekers searching for employment, as stated in the Refugee Act, IS fundamentally contradictory of the constitutional right to seek employment.

Mr Justice Donal O’Donnell stated that he believes that when there is no time limit for processing an asylum application, that does not only severely limit a person’s right to seek employment but “removes it completely.” He follows that the differences between citizens and asylum seekers does not justify the inequality of this matter, in that the latter is ultimately excluded from all possibilities of employment.

This decision will have major knock-on effects for all asylum seekers in many ways. It will force the Oireachtas to pass legislation permitting asylum seekers to work after a specific prescribed time period in the asylum process, bringing Ireland in line with other EU countries.

We celebrate this judgement which we believe will help towards ending the current unnecessary and unfair segregation of asylum seekers in Ireland.

We happily congratulate the individual applicants who took this case, and their talented legal team!

BERKELEY SOLICITORS

We have written on our blog previously about the case of Mahmood and Atif v Minister for Justice and Equality, the judgment of the High Court issued on 14th October 2016.

It is our understanding that this ruling of the High Court has been appealed to the Court of Appeal by the Respondent.

We note that this case is to be mentioned before the Court of Appeal in late March 2017, to be given a date for hearing of the appeal.

We understand that the Respondent has sought a stay on the High Court order that the visa applications in this case are processed within a six-week period. It is understanding that the Court of Appeal has refused to grant such an order.

We hope that a decision in the Mahmood and Atif case is issued to the applicants within the time frame ordered by the High Court in these circumstances.

We note that the Court of Appeal may go on to consider the appeal application in Mahmood and Atif on the principles raised by the case.

Our clients still continue to experience unreasonable and unlawful delays in the processing of visas for their family members under Directive 2004/38/EC and The European Communities (Free Movement of Persons) Regulations 2015 and we submit that such delays are inexcusable and unjustifiable.

If you or your family are impacted by these issues or similar issues, please do not hesitate to contact us to discuss this in more detail.

The United States operates border preclearance facilities at a number of ports and airports around the world, including Dublin Airport and Shannon Airport. The preclearance facilities at Dublin Airport and Shannon Airport are now under intense scrutiny following President Trump’s recent Executive Order suspending all refugees’ entry to the US for  a 120 day period,  and issuing an indefinite ban on refugees from Syria and a 90-day ban on citizens from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen.

President Trump’s blanket immigration ban based on nationality is unlawfully discriminatory, and in breach of our State’s obligations under the Irish Constitution, the European Convention of Human  Rights, and the Charter of Fundamental Rights.  It is now a matter of urgency that the Irish Government takes immediate steps to cease this practice on Irish soil. Otherwise, Ireland will be facilitating the US’s unlawful immigration practices, and will be open to liability to each individual affected.

Ireland initially entered an agreement with the US in 1986 to operate pre clearance facilities at Shannon Airport, and subsequently at Dublin Airport also. The Aviation (Preclearance) Act 2009 now governs the area.

The Act directs that the Minister for Transport may designate places within an airport in the State as an area within which preclearance to  the US may be carried out by Preclearance Officers and  Preclearance Officers are United States Customs and Border Protection officials.

The Act directs that Preclearance Officers may take and process applications from travellers seeking permission to land in the US, ask for the production of travel documents and other documents supporting the traveller’s application for permission to enter and examine such documents when produced, ask questions relating to the traveller’s eligibility to enter the United States, search such traveller and his or her goods,  arrest persons without warrant, where he or she reasonably suspects that the person poses an immediate threat (including the possession of a weapon) to the safety of officers or other persons in the preclearance area, and  review or revoke permission to enter the US.

The Act provides wide powers of detention to the Preclearance Officers, who may detain any person without warrant where  the Preclearance Officer reasonably suspects that the person has committed an indictable offence under the laws of the State or obstructed/attempted to obstruct a Preclearance  Officer in the performance of his or her functions under the Act.

Furthermore the the Preclearance Officer may request the assistance of an Irish law enforcement officer with respect to arresting a person who is deemed a threat, and the  Act directs that the Irish law enforcement officer shall assist a preclearance officer.

The Act therefore permits wide ranging powers of arrest and detention without warrant in the Preclearance area, and in some instances requires members of An Garda Siochana to assist.

The wide ranging powers given to  the US Preclearance Officers while operating on Irish soil is deeply troubling in light of the draconian US ban on refugees and persons from certain designated States (Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen).

We call on Mr Kenny’s urgent intervention to suspend the operation of the The Aviation (Preclearance) Act 2009  for the duration  of President Trump’s immigration bans.

Berkeley Solicitors Immigration Team