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Determination by the Minister for Justice of a ‘marriage of convenience’ did not render the marriage a nullity
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Supreme Court allows, in part, an appeal from the High Court concerning the refusal of residency to a Pakistani national who had married a Latvian national, and determines: (a) that a determination by the Minister for Justice that a marriage had been a 'marriage of convenience' could be relied upon by the Minister in the subsequent deportation process; (b) that the determination by the Minister did not have the effect of rendering the marriage a nullity at law, on the grounds that the constitutional protection of marriage would require such a determination to be made by a judicial body; (c) although the Minister was entitled to disregard the marriage in the subsequent deportation process, he was nonetheless obliged to consider any other issues, including rights arise from the underlying relationship between the parties; and (d) in the instant case, the lack of candour on the part of the applicants had not been so egregious as to disentitle them to discretionary relief, as such a finding required a high standard.
McKechnie J (nem diss): Asylum and immigration - status of marriage - refusal of residency card - European Communities (Free Movement of Persons) Regulations 2015 (S.I. No. 548/2015) - alleged 'marriage of convenience - deportation order - whether marriage of convenience was a 'nullity at law' - Council Directive 2004/38/EC - 'abuse of rights' - right of minister to refuse entitlements to parties to a marriage of convenience - Civil Registration Act 2004, s 2(1), as amended by the Civil Registration (Amendment) Act 2014 - definition of marriage of convenience - marriage between a Pakistani national and a Latvian national - alleged death of Pakistani national's wife in Pakistan - unchallenged determination that marriage was one of convenience - whether a marriage was rendered a nullity at law by reason of a decision of the executive - whether rights might still emanate from the marriage - burden of establishing that a marriage was a 'sham' - right to marry as protected under the Constitution, Article 12 ECHR and Article 9 of Charter of Fundamental Rights of the EU - whether a determination of marriage of convenience could be relied upon by the Minister in respect of a deportation order - whether the determination rendered the marriage a nullity and void ab initial - whether Minister obliged to have regard to rights arising from the underlying relationship between the parties - definition of marriage - reasons for marriage - law of nullity - entitlement of Minister to revoke orders based on 'fraud or abuse of rights' - abuse of process - discretionary remedy - refusal of relief based on lack of candour.
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