Wednesday, January 4, 2012

Judgment in Rizwana Aslam Case

Case Summary 

On the 20th December 2011 Mr Justice Gerard Hogan issued judgment in the case of Rizwana Aslam v Minister for Justice and Equality, Garda National Immigration Bureau, Ireland and the Attorney General.

The case concerned a challenge against a Transfer Order made by the Minister pursuant to Article 7 of the Dublin II Regulations in respect of a Pakistani national and member of the Ahmadi faith.  Ms Aslam was also eight months pregnant at the time of the High Court hearing. The basis for the Transfer Order was that Ms Aslam had originally obtained a visa for entry to the United Kingdom and resided in the UK prior to claiming asylum in Ireland. In such circumstances, it is permitted by the Dublin II Regulations (or Article 9(4) of Council Regulation (EC) No. 343/2003) that an asylum seeker be transferred to the Member State in which they first arrived to have their asylum application determined. Minister had issued the Transfer Order in accordance with this law, and with agreement from the UK.

The primary relief sought before Mr Justice Hogan was an injunction restraining Ms Aslam’s removal to the United Kingdom. The injunction application was grounded on two main points; that Ms Aslam’s late stage of pregnancy prohibited removal at this time, and also that fact that her partner was a recognized refugee and residence in Ireland required that her application for asylum should be processed in this State.

In his written judgment dated 29th December, Mr Justice Hogan firstly assessed whether Aslam and her partner’s relationship and previous marriage by proxy were sufficient to amount to a legally recognizable marriage or “unmarried partner in a stable relationship”, as per the wording of the Dublin II Regulations. Following a detailed review of the law in this area, Mr Justice Hogan recognized that Irish law does differentiate between married and unmarried couples in the area of asylum law. He cited Mr Justice Cooke’s previous dicta in the judgement of Hamza v Minister for Justice [2010] IEHC 427 as follows;

“ the recognition of the marital relationship of spouse and refugee ought not to be confined to cases in which proof is forthcoming of a marriage validly solemnized in foreign law and recognized in Irish law.”

Following Mr Justice Cooke’s guidance, Mr Justice Hogan concluded that Ms Aslam should be regard as being married to her husband for the purposes of Article 7. In the normal circumstance, it would follow from Article 7 that Ms Aslam should be permitted to remain in Ireland for the purposed of her asylum application, as her husband is a recognized refugee in this State. However, as indicated by Mr Justice Hogan, this is not an absolute entitlement, and he highlighted the important fact that the Minister was not put on notice of Ms Aslam’s family circumstances in the State. In fact, she indicated to the Minister that she was single. Mr Justice Hogan found therefore that the Minister cannot be faulted in issuing a transfer order against her and it was too late at that stage for her to exercise her Article 7 rights.

Being mindful of the fact that Ms Aslam was heavily pregnant, Mr Justice Hogan proposed to grant an interlocutory injunction restraining her transfer by either by sea or air to the United Kingdom but allowing a transfer by road to Northern Ireland on the understanding that she would not be removed from the island of Ireland until after the delivery of her unborn child.

We believe the significance of Mr Justice Hogan's judgement is twofold. Firstly, Mr Justice Hogan fairly and correctly recognised Ms Aslam's marital status despite the fact that her marriage was by proxy, and not legally solemnized in this State. We are happy to see the implementation of the Hamza judgement working to recognize the reality of an asylum seekers relationship status in this way. Secondly, Mr Justice Hogan's finding that the Minister cannot be faulted for excluding from his decision important and relevant information that was not provided to him is reasonable. This is the only reasonable finding that Mr Justice Hogan could make. It again highlights the importance for all applicants and their legal representatives to provide the Minister with full, detailed and accurate information relevant to the case. 

Brophy Solicitors

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