Abdin (domicile – actually polygamous marriages)
| Jurisdiction | UK Non-devolved |
| Judge | Storey |
| Judgment Date | 13 April 2012 |
| Neutral Citation | [2012] UKUT 309 (IAC) |
| Date | 13 April 2012 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2012] UKUT 309 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
UPPER TRIBUNAL JUDGE Storey
For the Appellant: Mr S Ahmed, Syed Shaheen Solicitors
For the Respondent: Ms C Gough, Home Office Presenting Officer
Abdin (domicile — actually polygamous marriages)
Whilst the Private International Law (Miscellaneous Provisions) Act 1995 amended section 11(d) of the Matrimonial Causes Act 1973 so that a potentially polygamous marriage would not be void if either party was at the time of the marriage domiciled in England and Wales, it did not alter the position regarding actually polygamous marriages. Under section 11(d) of the 1973 Act a polygamous marriage entered into outside England and Wales shall still be void if either party at the time of the marriage was domiciled in England and Wales.
The appellant is a citizen of Bangladesh. On 19 April 2004 she married Syed Alal Abdin, a British citizen, in Bangladesh. He had previously married a woman called Nasima Begum but they had decided to separate in July 2003 when (the sponsor now says) he gave her an Islamic divorce. Their English divorce was finalised on 16 November 2009. The present couple now have four children, although at the date of the decision there were only three.
In September 2010 the appellant applied for entry clearance for her and three children. On 20 December 2010 the respondent refused this application. Two interrelated reasons were given. First the respondent considered that the appellant's marriage to the sponsor was not a valid marriage because his divorce from his previous wife post-dated his second marriage by over four years. Second, because the sponsor was domiciled in the UK he could not lawfully contract his second marriage to the appellant so as to satisfy paragraph 281(i) of HC 395.
The appellant appealed. The grounds of appeal were that the sponsor had validly divorced his first wife before contracting his marriage with the appellant and so the appellant did meet the requirements of the Immigration Rules. Further, it was stated that the refusal decision infringed the appellant's human rights.
On 30 November 2011 First-tier Tribunal (FTT) Judge Neyman dismissed her appeal. Prior to determining the appeal the judge sent direction to the parties so as to afford the appellant the opportunity to submit DNA evidence and to produce an original of the sponsor's tenancy agreement. Having made adverse credibility findings on the sponsor's credibility, the judge concluded as follows:
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“44. The sponsor is now 45 years old and he left Bangladesh when he was 20 i.e. he has lived here for the last 25 years i.e. more than half of his life. He is a national of this country. When his last Bangladeshi passport expired in May 2004, he did not bother to renew it. He works in the United Kingdom and has done so for many years. In paragraph 1 of his statutory declaration the sponsor said that he is “permanently settled in the United Kingdom”. All these factors when taken together indicate that the sponsor has made a decision to abandon his domicile of origin and to acquire a new domicile of choice in the United Kingdom. In addition, the sponsor is not a credible witness, so I attach little weight to his claims that he has retained his domicile of origin i.e. Bangladesh and that he has not acquired a domicile of choice i.e. the UK.
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45. For all these reasons, I find that the sponsor is domiciled in the United Kingdom and that he has been so domiciled at all relevant times. Given that the sponsor did not divorce his first wife until 2009 and that he married the appellant in 2005, his marriage to the appellant is polygamous and so it is not a valid marriage at English law.
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46. I now turn to the requirements of paragraph 281 of the Immigration Rules which requires (inter alia) that the applicant be married to the sponsor. Since the appellant has failed to show that her marriage to the sponsor is valid at English law, she cannot succeed under paragraph 281. In addition, given that the sponsor is not a credible witness, he has failed to show that he intends to live permanently with the appellant, so that again her appeal under paragraph 281 of the Immigration Rules must fail. In addition, since the sponsor has failed to show that he has the accommodation claimed, the appellant has failed to show that there would be adequate accommodation for her here without recourse to public funds, so that, for this additional and independent reason, her appeal must fail under the Immigration Rules. For all these reasons, I must dismiss the appellant's appeal under the Immigration Rules and I hereby do so.”
Although the judge here refers to the appellant marrying the sponsor in 2005, the actual documentation gives the date of the marriage as 19 April 2004, although this was not registered until 19 April 2005.
The judge further concluded that for Article 8 purposes the appellant had failed to show she had a family life with the sponsor or that she or the sponsor were the parents of the three children claimed to be theirs.
It is as well to set out before proceeding further relevant parts of two sets of statutory provisions. There is first of all s. 11 of the Matrimonial Causes Act 1973 (as amended):
“Nullity
11 Grounds on which a marriage is void.
A marriage celebrated after 31 st July 1971 shall be void on the following grounds only, that is to say-
(a) that it is not a valid marriage under the provisions of the Marriage Acts 1949 to 1986 that is to say where –
(i) the parties are within the prohibited degrees of relationship;
(ii) either party is under the age of sixteen; or
(iii) the parties have intermarried in disregard to certain requirements as to the formation of marriage;
(b) that at the time of the marriage either party was already lawfully married or a civil partner;
(c) that the parties are not respectively male and female;
(d) in the case of a polygamous marriage entered into outside England and Wales, that either party was at the time of the marriage domiciled in England and Wales.
For the purposes of paragraph (d) of this subsection a marriage is not polygamous if at its inception neither party has any spouse additional to the other.”
Then there is ss. 5-7 of paragraph 2 of the Schedule to the Private International Law (Miscellaneous Provisions) Act 1995 which entered into force on 8 January 1996. Paragraph 2 of the Schedule amends s. 11 of the Matrimonial Causes Act:
“2(1) The Matrimonial Causes Act 1973 shall be amended as follows.
(2) In section 11 (grounds on which a marriage is void), for the words “may be polygamous although” there shall be substituted the words “is not polygamous if “.”
It can be seen that my citation of s. 11 incorporates this amendment. So far as is relevant ss. 5 and 6 of the 1995 Act provide:–
“PART II VALIDITY OF MARRIAGES UNDER A LAW WHICH PERMITS POLYGAMY
5 Validity in English law of potentially polygamous marriages.
(1) A marriage entered into outside England and Wales between parties neither of whom is already married is not void under the law of England and Wales on the ground that it is entered into under a law which permits polygamy and that either party is domiciled in England and Wales.
(2) this section does not affect the determination of the validity of a marriage by reference to the law of another country to the extent that it falls to be so determined in accordance with the rules of private international law.
6 Application of section 5 to prior marriages.
(1) Section 5 above shall be deemed to apply, and always to have applied, to any marriage entered into before commencement which is not excluded by subsection ( 2) or (3) below.
(2) That section does not apply to a marriage a party to which has (before commencement) entered into a later marriage which either -
(a) is valid apart from this section but would be void if section 5 above applied to the earlier marriage; or
(b) is valid by virtue of this section.
(3) That section does not apply to a marriage which has been annulled before commencement, whether by a decree granted in England and Wales or by an annulment obtained elsewhere and recognised in England and Wales at commencement.
(4) An annulment of a marriage resulting from legal proceedings begun before commencement shall be treated for the purposes of subsection (3) above as having taken effect before...
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