The State would have singularly failed in its constitutional duties in this regard if it permitted an open-ended ground of objection to a proposed marriage to be made at the last minute, without the necessary procedural safeguards, especially in circumstances where the lodging of such an objection would inevitably have a suspensive effect so far as the proposed marriage is concerned [53].

The recent judgment of Hogan J. in Izmailovic v. Commr of An Garda Siochana considers the legality of a tactic deployed by the gardai in the so-called ‘war against sham marriages’. I have blogged several times on this issue (see here, here and here). Last year, it was reported in the national press that the Garda National Immigration Bureau had developed ‘Operation Charity’, under which the gardai sought to detect and prevent civil marriages where they believed that one partner was entering the marriage for the purposes of acquiring EU residency rights under Directive 2004/38/EC.

One particular strategy has been central to Operation Charity: the gardai investigate the spouses’ background, and  if one of them is suspected of an immigration offence (for instance, failure to comply with a deportation order) the gardai wait until the occasion of the marriage ceremony to carry out an arrest, so as to use that arrest to lodge a s.58 objection to the marriage at the last possible moment, disturb the ceremony and prevent the marriage from taking place.

Hogan J. noted that the only measures which the State has taken to close off the ‘marriage of convenience’ route to Treaty residency rights are contained in the European Communities (Free Movement of Persons)(No.2) Regulations 2006. The regulations allow for the examination of an existing marriage to test whether it is a ‘marriage of convenience’ so that relevant Treaty rights may be stripped from an offending spouse [62]. However, these Regulations do not assert a state right to prevent marriages of convenience from taking place.  It is open to the Oireachtas to create such a right, for instance by creating a new impediment to marriage under the 2004 Act [64]. However, Operation Charity is not, as yet, on a sound legal footing.

There were two key questions having bearing on the legality of the methods underpinning Operation Charity. The first was the legality of the arrests typically carried out under its auspices. The husband in this case (the couple had already been married at an Irish mosque) was arrested on foot of a deportation order, at his civil wedding ceremony before the marriage had been solemnised. Hogan J. accepted that “at all material times the Gardaí wished to arrest Mr. Ads because there was a valid deportation order in place.” However, ” it is equally clear that the principal motive for the arrest of Mr. Ads at that particular time and place was to ensure that the marriage to Ms. Izmailovic did not take place” (see [17] of the judgment). The circumstances of the arrest raised the central legal issue in the case: “the arrest of a person at a registry office just immediately prior to their marriage is one which calls for a high degree of justification.” Hogan J. continued:

In a free society where the institution of marriage is constitutionally protected (Article 41.3.1), the courts must be especially astute to ensure that agents of the State do not seek to prevent what would otherwise be a lawful marriage, at least without compelling justification [my emphasis].

Hogan J. was satisfied that that Mr. Ads’ marriage, had it been allowed to be solemnised would have been a lawful marriage. The validity of a marriage is largely a matter of form and there is no ‘abuse of rights doctrine’ in respect of marriage. In other words, the motive for the marriage is irrelevant ([34]-[35]). A marriage of convenience can be a valid marriage, as long as both parties consent to it and as long as none of the impediments to marriage (affinity, capacity, age, marital status, gender) enumerated in the Civil Registration Act, 2004 are present [22]-[24].

The second question was whether the Registrar had the jurisdiction to refuse to solemnise marriages on foot of the sort of last-minute objection typically made by the gardai under Operation Charity. Hogan J.  held in the negative. In the first place, the objection lodged by the gardai did not relate to one of the impediments to marriage. “s. 58 does not confer a free standing power of objection by reference, for example, to some supposed mental reservation on the part of the couple, such as that they were only marrying for immigration reasons.” [49] In addition, Hogan J. was satisfied that eleventh hour objections to marriage were not permissible under the 2004 Act:

“Nor could it be correct that the marriage of a couple could be thwarted in these circumstances by the lodging of an objection “by any person” at “any time”, especially if the effect of this would be more or less automatically to compel the Registrar to postpone the solemnisation of the marriage. … Given the lack of essential procedural safeguards, the constitutionality of such a procedure must be open to question in light of the Supreme Court’s decision in DK v. Crowley [2002] 2 I.R. 744.”

It was no answer to this point to say that a thwarted couple could bring a constitutional claim after the offending objection had been lodged.

Karen Knop has suggested recently that the formality of private law allows courts to create cosmopolitan spaces within which otherwise excluded migrants can insist that the state protects them.  Hogan J. was not, as such, unmoved by the policy claims behind Operation Charity (See [23]), which have been used to justify calls for increasingly punitive regulation of migrants’ family lives. But his insistence on a ‘bare bones’ conception of marriage compels him to decentre those concerns, until the state makes its case for inserting them at the heart of marriage law.