The High Court dismissed an Afghan refugee’s judicial review challenge to the refusal of family reunification for a woman he described as his third wife and her daughter. The court held that their marriage, celebrated while his second marriage remained valid, was an actually polygamous marriage and could not be recognised under Irish law for the statutory application.
The applicant sought to quash the Minister for Justice and Equality’s decision of 26 October 2018. His application, made in December 2016 under section 18 of the Refugee Act 1996, covered eight people. By the time of the challenged decision, the Minister refused reunification for the third wife, her daughter and two nephews. The refusal concerning the nephews was later revoked and their applications were being reconsidered, so that issue was no longer before the court.
The applicant had married his second wife in 2013. He married the third woman in Pakistan in October 2013, before divorcing the second wife on 6 November 2017. The court noted that the parties accepted that Pakistani law permitted the marriage at the time, but held that this did not determine whether it was recognisable in Ireland. It concluded that because the marriage was polygamous when contracted, it was invalid from the outset for the purposes at issue. The later divorce did not change that status.
The applicant argued that refusal breached constitutional family rights and rights under the European Convention on Human Rights, among other grounds. The judge rejected those arguments, finding that Article 41 did not confer rights through a marriage not recognised in Irish law and that the refusal did not breach Article 8. The court also found that the daughter’s application had been made as an application for a child under section 18(3), rather than as a stepchild or ward under section 18(4), and that the Minister had dealt with the application as submitted. Other Convention and equality grounds were not pleaded and could not succeed.
A separate application under the Humanitarian Admission Programme, made for the woman and her daughter in February 2019, remained outstanding. The court noted that this offered an alternative route and said that, even if the applicant’s complaints had substance, the judicial review would also have failed on alternative-remedy grounds. The court had dismissed the application at the end of the hearing on 19 July 2019; its reserved judgment gave fuller reasons. The final order was that the application was dismissed.