Ireland – High Court, 29 December 2011, R.A. v Minister for Justice and Equality, Garda National Immigration Bureau, Ireland and Attorney General [2011] IEHC 512

Facts:

The applicant was a Pakistani national. She and her partner are Ahmadi Muslims. She was 8 months pregnant at the time of the proceedings. Her partner, the father of her unborn child, was recognised as a refugee in Ireland in 2008.  The couple underwent a marriage by proxy in Pakistan in 2011, under an Islamic marriage ceremony, whereby proxy marriage is permitted.

The applicant arrived in Ireland in February 2011 and claimed asylum in July 2011. In her application, she did not disclose that she had previously lived in the UK for 4 months (in 2008) and again for another 4 months in 2010-11.  She also stated that she was “single”. Upon discovering that she had previously been in the UK the Irish authorities asked the UK to 'take charge' of her asylum claim under the Dublin II Regulations, which the UK authorities agreed to do. The applicant did not appeal this decision, did not inform the Irish government that she was pregnant, and evaded the authorities. She was arrested in November 2011 and her legal team obtained an injunction on her removal.  Her application for leave to apply for judicial review was expedited; this case is the hearing of that application.

Decision & reasoning:

The applicant sought to rely on Article 7 of the Dublin II Regulations, which states that the Member State in which an applicant's family member resides is the correct State to decide her asylum application. She relied on her proxy marriage by proxy in February 2011 as a “marriage” sufficient to qualify under Art. 7.

The Court gave detailed consideration to the question of what kind of marriage sufficed and ultimately concluded that a proxy marriage under the Islamic custom did qualify, as a liberal interpretation of the term 'marriage' was required. In so finding, the Court relied on various sources including the Irish Constitution (founded on the principles of co-operation between nations). The Court also had express regard to the persuasive force of UNHCR guidance on family reunification, and Council Directive 2003/86/EC on family reunification (despite the fact that Ireland had not opted into this Directive).

Accordingly the Court found that the applicant was married, within the meaning of Art. 7 of the Dublin II Regulations.

The Court however concluded that the applicant was too late to rely on her rights under Article 7. That right is not an absolute one, it is conditional on an applicant choosing to exercise it at the appropriate time. The applicant did not notify the Irish authorities that she was married (or indeed that she was pregnant) at the time of her application for asylum, or subsequently at any time prior to her arrest. Accordingly, she is now too late to rely on Article 7 – the right is forfeited.

The Court however noted her advanced stage of pregnancy and made it clear that she was not suitable for removal by air, or by sea (the Irish authorities had informed the Court that they intended to remove her by boat to the UK).

Outcome:

The applicant was refused leave for judicial review, however she was granted an injunction preventing her removal from Ireland by air or sea to the United Kingdom, because of the late stage of her pregnancy (the Court did not prevent her removal by road to Northern Ireland).

Other sources:

Irish Constitution Article 29.1, 40.3.2, 40.3.3

UNHCR  Resettlement Handbook (2004)

UNHCR Guidelines on Reunification of Refugee Families 1983

Conclusions of the UNHCR Executive Committee on Family Reunification 21 October 1981 (paras 5, 6)