The High Court has quashed the Minister for Justice’s refusal of a Somali refugee’s application to reunite with the woman he said was his wife, finding that the refusal applied incorrect legal tests. The court ordered the Minister to reconsider the application; it did not decide whether the marriage or a subsisting marital relationship had been established.
The first applicant, Abdi Jama Hassan, arrived in Ireland in 2003 and was recognised as a refugee the following year. He applied in November 2005 under section 18 of the Refugee Act 1996 for permission for the second applicant, Safiya Saeed, and two relatives to enter and reside in Ireland. The judicial review addressed only Saeed’s application.
Hassan said the couple married in a religious ceremony in Mogadishu on 5 December 1998. He could not provide the certificate he said the officiating sheik had issued, explaining that it was left behind when they fled Somalia. The judgment described the country’s civil administration and judicial system as having collapsed, leaving no functioning marriage registration system.
The Refugee Applications Commissioner’s 2006 report noted the lack of documents but said the information about Saeed was consistent with Hassan’s asylum process. The Family Reunification Section refused the application in July 2008 for insufficient documentary evidence. After further correspondence and documents, it refused again in June 2009, saying the religious marriage was not recognised under Irish law and suggesting an application to the courts for a declaration of validity. The Minister later said recognition could depend on compliance with the formal requirements of the law where the marriage took place.
Justice Cooke said a religious ceremony was not, by itself, incapable of recognition under Irish law. Even where local formalities were not met, or could no longer be established, a marriage might still be recognised as a common law marriage. The court also said section 18(3) did not make a declaration under section 29 of the Family Law Act 1995 the applicable test.
The court said a refugee might establish a subsisting marriage through alternative evidence of a real relationship based on cohabitation and exclusivity over a substantial period. It did not determine whether such corroboration existed in this case. It also considered the rejection of documents purporting to come from the Somali Embassy in Ethiopia well founded, citing the lack of explanation for how the Embassy verified them and the absence of official sources in Somalia at the relevant times.
The court granted an order of certiorari quashing the refusal on two grounds: the mistaken view that a foreign religious marriage could not be recognised, and an incorrect interpretation of the marital relationship test under section 18(3)(b). The application must now be reconsidered; the judgment does not direct that permission be granted.