The High Court ordered the immediate release of an Egyptian man who was arrested shortly before he was due to marry a Lithuanian woman at a civil ceremony in Cavan.
Mahmoud Elmorsy Ads had unsuccessfully sought asylum and was subject to a deportation order issued in November 2010. He failed to report to immigration authorities the following month and was classified as an evader.
Ads and Justinia Izmailovic had notified the Civil Registration Office in Cavan in October 2010 that they intended to marry on January 12, 2011. Garda National Immigration Bureau officers arrived shortly before the ceremony. A senior Garda officer had lodged an objection stating that the proposed marriage was suspected to be one of convenience intended to secure EU residence rights.
Ads was then arrested under immigration legislation and taken to Cloverhill Prison. The marriage did not take place.
Mr Justice Hogan accepted that Gardaí generally had legal grounds to arrest Ads because the deportation order remained in force. However, he found from the evidence that the principal reason for arresting him at that particular time and place was to stop the marriage.
The court held that this purpose was legally significant because the proposed marriage would have been valid under Irish law even if entered into solely for immigration reasons. No recognised legal impediment to the marriage existed.
The judge also ruled that the Garda objection under section 58 of the Civil Registration Act 2004 was invalid. That procedure was confined to traditional impediments such as age, an existing marriage, prohibited relationships or lack of capacity, rather than suspicions about motive.
Whether a marriage was one of convenience for EU free-movement purposes could instead be examined after the marriage, under procedures implementing EU law.
The court therefore held Ads' arrest unlawful and directed his immediate release under Article 40.4.2 of the Constitution.