The Court of Appeal has dismissed an Afghan refugee’s appeal over a refusal to grant family reunification to a woman he married in Pakistan while he was still married to his second wife.
The judgment, delivered by Ms Justice Donnelly on 10 August 2020, upheld the High Court’s decision that the Pakistani marriage was not recognised under Irish law. The court said the woman was therefore not a “spouse” for the purposes of section 18 of the Refugee Act 1996.
The appellant had been declared a refugee in 2016. His first wife had died in Afghanistan while he was seeking refugee status. He later married in Ireland. While that marriage was still in force, he entered into a third marriage in Pakistan. The judgment says the Pakistani marriage was lawful under Pakistani law. The appellant later divorced his second wife, but that was after the family reunification application.
The appellant argued that the Minister for Justice had to assess his case individually under section 18, and that the marriage’s validity in Pakistan meant his third wife could qualify as his spouse. He also argued that the Minister’s power to refuse permission on public policy grounds applied to entry and residence, not to whether a marriage was recognised.
The court rejected those arguments. It said “spouse” in section 18 means a spouse recognised under Irish law. Relying on the Supreme Court’s decision in H.A.H., it held that a marriage entered into while one party was already in a valid, subsisting marriage is an “actually polygamous” marriage and is not recognised as valid in Ireland. The later end of the second marriage did not make the third marriage valid retrospectively.
The judgment distinguished that recognition question from the Minister’s separate power under section 18(5) to refuse entry or residence to someone who is otherwise a recognised spouse, on national security or public policy grounds. It said that provision does not expand who qualifies as a spouse under section 18(3).
The court noted that the appellant had also applied under the Irish Humanitarian Admission Programme. That application was still awaiting a determination, and the appeal court expressed no view on whether it should succeed. The appeal was dismissed. The Minister appeared entitled to appeal costs under the usual rule, but the appellant had four weeks to make written submissions seeking a different costs order; the Minister could reply within four weeks.