Court rejects narrow interpretation of marriage of convenience law, ruling it applies to Irish nationals too.

[2017] IECC 2

THE CIRCUIT FAMILY COURT

RECORD NO: SL 053/2016

MIDLAND CIRCUIT

COUNTY OF ROSCOMMON

IN THE MATTER OF SECTION 58(9)(A) OF THE CIVIL REGISTRATION ACT, 2004

BETWEEN

A.Z. & S.S.

APPELLANTS

AND

SUPERINTENDENT REGISTRAR OF THE CIVIL REGISTRATION SERVICE, WEST REGION, HEALTH SERVICE EXECUTIVE

RESPONDENT

Ex-tempore judgment delivered on this the 4th day of October, 2017 by Her Honour Judge Petria Mc Donnell

Preliminary Issue

1. This matter comes before the court by way of a preliminary issue as to the scope of the terms of the Civil Registration Act 2004

(the “Principal Act”) as amended by the Civil Registration (Amendment) Act, 2014 (the “2014 Act”). The contention of the appellants

is that provisions in the 2014 Act dealing with a marriage of convenience apply only to a marriage between a foreign (i.e. non EU)

national and an EU (but non Irish) national. The contention of the respondent is that the Principal Act as amended applies to a

marriage between a foreign (i.e. non EU) national and an EU national but equally applies to a marriage between a foreign (non EU)

national and an Irish national. Consequently the contention of the respondent is that the legislation applies to the intended marriage

between the appellants A.Z. who is a Pakistani national and S.S. who is an Irish national.

The relevant legislative provisions.

2. Section 58 of the Principal Act provides that an objection can be lodged in respect of an intended marriage in which case the

person making the objection must state the reasons for making the objection. The registrar receiving that objection is required to

notify the parties of the existence of the objection, make such enquiries as he/she thinks fit and, if satisfied at that there is an

impediment to the intended marriage (or the possibility thereof) which requires further investigation, shall refer the objection to an

authorised officer for consideration. If satisfied that there is no impediment to the intended marriage the authorised officer shall

advise the registrar concerned and the parties can be duly notified and the marriage registration form reissued to the parties. If

however the authorised officer decides that there is an impediment to the intended marriage then the parties will be notified that the

marriage will not proceed and the reasons will be furnished. Provision is made under subsection 9 whereby an appeal can be made to

the Circuit Family Court against the decision of the authorised officer.

3. Section 58 of the Principal Act has been amended by S. 18 of the 2014 Act. For the purposes of this case, the relevant

amendment is the insertion of a new subsection in Section 58 of the Principal Act namely subsection 4(A) which provides that a

registrar who (a) forms an opinion that an intended marriage would constitute a marriage of convenience or (b) receives an objection,

with reasons, stating that the intended marriage would constitute a marriage of convenience and the registrar forms the opinion that

grounds for the objection possibly exist and need to be investigated, then the registrar in those circumstances must refer the matter

to the Superintendent Registrar in the relevant area for a decision.

4. In forming an opinion and deciding to refer the matter to the Superintendent Registrar the registrar is required to consider a number

of factors including the immigration status of one or each of the parties to the intended marriage who is a foreign national and any

other information regarding the intended marriage which gives reasonable grounds for considering the marriage to be a marriage of

convenience (Section 4C (g)(j)). An appeal against a decision to the proposed marriage may be brought by either of the parties to

the relevant Circuit Family Court.

5. I now turn to consider the definitions set out in the 2014 Act around which most of the arguments have centred in this preliminary

application.

6. Section 3 of the 2014 Act (which amends section 2 of the Principal Act) sets out the following definitions:

“’Marriage of convenience’ is a marriage where at least one of the parties to the marriage –

(a) at the time of entry into the marriage is a foreign national, and

(b) enters into the marriage solely for the purpose of securing an immigration advantage for at least one of the

parties to the marriage”,

“’Immigration advantage’ means a determination in a person’s favour by or on behalf of the Minister for Justice and

Equality of any question relating to the grant of a visa to, or the entry into, presence in or removal from the State of a

foreign national or any determination of a right to enter or reside in the State pursuant to the –

(a) European Communities (Aliens) Regulations 1977 (S.I. No. 393 of 1977),

(b) European Communities (Right of Residence for Non-Economically Active Persons) Regulations 1997 (S.I. No. 57

of 1997), or

(c) European Communities (Free Movement of Persons) (No. 2) Regulations 2006 (S.I. No. 656 of 2006)”;

“’Immigration status’ means entitlement of a person to reside in the State and the basis for that entitlement”;

Submissions made on behalf of the parties and decision

7. The principal arguments advanced on behalf of the appellants are that the marriage to an Irish national does not confer any

automatic immigration advantage. They further maintain that, in the definition of “immigration advantage”, reference is made

exclusively to EU legislation. Consequently they contend that the scope of the Principal Act as amended is limited in its scope to an

intended marriage as between an EU national exercising free movement rights and a foreign (non EU) national. Much reliance is placed

by the appellants on the absence of a comma in the definition of “immigration advantage” immediately preceding the words “any

determination of a right to enter or reside in the State pursuant to the” identified EU legislative enactments. They contend that the

definition, properly construed and as constructed, must be given a composite meaning to refer to one class of persons namely those

entitled to avail of the listed EU Regulations providing for free movement of EU members. As such they maintain the concept of

immigration advantage relates only to the advantage to be derived (or aspired to) by a foreign national by marrying an EU national.

8. For the respondents it is argued that the definition of “immigration advantage” is disjunctive and contains two separate sub-

clauses dealing with two classes of persons. The latter part of the definition, following the word “or” (which has been highlighted in

this judgment for the sake of clarity) and which refers to EU legislative provisions must be read as separate and distinct from the

earlier part of the definition.

9. Having listened to the arguments and reviewed the written submissions (for which I thank Counsel) on this issue I am satisfied that

the submissions of the respondent in this respect as to the interpretation of the definition “immigration advantage” is correct. In

particular I accept that the legislature, in twice using the word “determination” in the definition section, has done so to identify two

separate and distinct situations. The earlier part of the definition refers to a determination “in a person’s favour” and refers to the

question of a grant of a visa to or the entry into and or person’s removal from the State of a foreign national. The definition section

goes on to deal with a different form of determination in respect of persons having a right to enter or reside in the State and these

are citizens who have rights under EU legislation i.e. those entitled to avail of EU rules relating to free movement. Consequently I am

satisfied that “immigration advantage” as defined in the Act identifies two separate sets of persons whose rights are being

determined under legal regimes applicable to foreign nationals on the one part and those entitled to avail of EU rights on the other

hand.

10. It should be noted, and indeed is significant, that a “foreign national” in the definitions section “means a person who is neither an

Irish citizen nor a citizen of a member State” which reinforces the conclusion reached above regarding the fact that two classes of

person are envisaged in the definition of “immigration advantage”. Indeed EU nationals are usually referred to in legislation as citizens

of a member state as contrasted with “foreign national”.

11. I also note and accept the submissions of the Appellants regarding the proper interpretation of legislation and in particular the

remarks of Egan J in Cork County Council v Whillock [1993] 1 I.R.231 at page 239;

“There is abundant authority for the presumption that words are not used in the statute without a meaning and are not

tautologous or superfluous, and so effect must be given, if possible to all the words used, for the legislature must be

deemed not to waste its words or to say anything in vain”.

12. The same cannot be said for statements made by politicians and in this context the court was urged, but has declined, to adopt

an interpretation based on statements made at the time of the enactment of the 2014 Act by the relevant Minister.

13. As to whether marriage is an immigration advantage (which is rejected by the appellants) I am satisfied that, where a person is

married to an Irish national, this in itself can be regarded as an immigration advantage in the sense that the status of the person

applying for immigration is a factor which falls for consideration under Article 41 of the Irish Constitution and also under Article 8 of

the European Convention of Human Rights. Furthermore the Immigration Act, 1999 S. 6 specifically requires that, in considering

whether or not a deportation order is to be made, factors which must be taken into account include “family and domestic

circumstances” with due respect for family life. Whether the marriage is an actual immigration advantage is not relevant; the issue is

whether the marriage was entered into solely for the purposes of securing such an advantage.

14. For these reasons I reject the appeal of the appellants on the preliminary issue as to the scope of the provisions of the 2014 Act

and will deal with the substantive issue on a later date to be fixed.