IT’S OUR RIGHT TO MARRY! IRISH REGISTRARS CONTINUE TO WRONGLY REFUSE COUPLES THEIR RIGHT TO MARRY

In a short space of weeks, we received a number of complaints from aggrieved clients who, having served their notification of intention to marry, were refused permission to marry by local registrars. The cases concern EU nationals and their non-EEA partners who contacted us in a state of distress and anxiety having been advised that an objection to their marriage was raised and that their marriage would not be going ahead as planned. 

In 2011 we issued proceedings regarding a similar situation involving an EU national and her husband who suffered sheer humiliation and deep distress when an objection was lodged in respect of their marriage on the morning of their wedding!! The bride and her husband-to-be were just about ready to commence celebrating their marriage before family and fiends, many of whom had flown to Ireland from abroad for the occasion. But the actual marriage took place months later following a court settlement resulting in the objection being lifted. Their day was ruined and their financial loss was significant. 

Two years later we see the problem arising again although we managed to tackle this head on without resorting to the High Court. Our clients were advised that under the provisions of section 51(2) of the Civil Registration Act, 2004 that a registered solemniser shall not solemnise a marriage unless he/she is satisfied that the parties to the marriage understand the nature of the marriage ceremony and the declaration that they accept each other as husband and wife. In this case the registered solemniser was not satisfied that our clients understand the nature of their marriage ceremony and the declarations that they accept each other as husband and wife and you felt that an ‘offence’ may have been committed under section 51(2). An Garda Siochana were notified and asked to investigate a possible offence under this section. Which offence was the registrar referring to? This section does not refer to any offence that would have been applicable to our clients. The legislation as it stands does not cover any offence indicated by the Registrar. 

The situation was previously fleshed out in court by Justice Hogan in Izmailovic & Anor -v- Commissioner of an Garda Siochana & Ors [2011] IEHC 32 when the marriage of a couple was intercepted by the State and the groom arrested on the grounds that the Gardai believed his marriage was one of convenience. Justice Hogan concluded as follows: ‘ I quite appreciate that the decision in this case may present the authorities with very considerable difficulties in this problematic area. But, as I indicated at the hearing, if the law in this area is considered to be unsatisfactory, then it is, of course, in principle open to the Oireachtas and, if needs be, the Union legislature to address these questions. As this decision in its own way illustrates, the problems encountered here are difficult ones and present complex questions of public policy in relation to marriage and immigration. These, however, are ultimately policy questions which only the Oireachtas and, again if needs be, the Union legislature can resolve.’ 

Following a detailed complaint sent to the Registrar on behalf of our most recent clients in this matter, the objection was quickly lifted and they are free to marry. Although delighted with the outcome, the stress and anxiety suffered by our clients was considerable and is something they now want to put behind them. 

Sarah Henry

Brophy Solicitors

One to Watch! Right to Reside in a Member State

Advocate General Verica Trstenjak last week issued her opinion in the case of Yoshikazu Lida v Stadt Ulm. Relying on the Charter of Fundament Rights, the Advocate General found that EU law can confer a right of residence on a third-country national parent, where that parent has custody rights and where his child has moved with the other parent to another Member State.

In this case, Mr Lida, a Japanese national, married and had a child with a German national. From 2005, the family resided in Germany where Mr Lida was granted a residence permit on the basis of his marriage to an EU national. In 2008, Mr Lida’s wife and child moved to Austria and the couple separated.

The issue then arose as to whether Mr Lida retained an entitlement to a right to reside in Germany on the basis of his status as a family member of an EU national. The German authorities refused his initial application to reside. The German court subsequently referred the case and asked the Court of Justice whether under EU law, a parent with a right of custody but who is a third-country national, has a right to reside in the EU Member State that is the origin of his child (who is an EU citizen), so as to maintain regular parental contact with that child, who has exercised free movement and resides in another EU Member State.

AG Trstenjak found that neither the Free Movement Directive nor the caselaw of the Court of Justice confers any such right of residence on the third-country national.

However, the Advocate General then considered the protections of the Charter of Fundamental Rights. The Charter protects the right of the child to maintain a personal relationship and direct contact with both parents and to respect for family life. If the third-country national parent was denied the right to reside, this may potentially deter his child from further exercising her right to free movement as an EU citizen and therefore be contrary to EU law. The extent to which such free movement would be deterred falls to the local court to determine.

The reliance here on the Charter of Fundamental Rights is of note and suggests that the now binding Charter may ground expanded free movement protections for third-country nationals within the EU, particularly with respect of family life. We will await with interest the Court’s ultimate determination and will keep you updated.

The full opinion is available here. 

An update on the opinion by PILA is available here. 

Brophy Solicitors 13.06.12