Baig (Immigration - Validity of Pakistani Divorce)
| Jurisdiction | England & Wales |
| Judge | C M G OCKELTON,DEPUTY PRESIDENT |
| Judgment Date | 13 September 2002 |
| Neutral Citation | [2002] UKIAT 4229 |
| Court | Immigration Appeals Tribunal |
| Docket Number | [2002] *STARRED* |
| Date | 13 September 2002 |
[2002] UKIAT 4229
IMMIGRATION APPEAL TRIBUNAL
Mr C M G Ockelton (Deputy President)
Dr H H Storey
Mr D J Parkes
[2002] *STARRED*
Baig (Immigration — Validity of Pakistani Divorce) Pakistan *
In this starred determination, we give the views of the Tribunal on the effect, in English law, of a Pakistani Muslim divorce in which there has been no notification to the Chairman of the Union Council. This is not only a difficult issue: it is a current one, because of the perceived trend towards Islamicisation of the law in certain Muslim countries, including Pakistan, which has led courts and commentators in those countries to prefer to move away from a secular gloss on the rules of Islamic law. To our personal knowledge, the present case is one of a number raising similar issues.
The Appellant, a citizen of Pakistan, appeals, with leave, against the determination of an Adjudicator, Mr T R Jones, dismissing his appeal against the decision of the Respondent on 17 th July 2000 refusing him entry clearance to the United Kingdom with a view to settlement as the husband of Nigat Parveen Batti, the Sponsor. Before us he is represented by Miss Weston, instructed by Thornhill Ince, and the Respondent is represented by Mr Sheik.
Leave to appeal was granted as long ago as July 2001. The hearing of the appeal was unfortunately initially delayed by difficulties relating to the Tribunal's move to new premises in October 2001. It was considered necessary to have this appeal heard by a Tribunal with particular experience. On 30 th November 2001, the parties were given notice that this appeal would be heard on Thursday 7 th March 2002. On the latter date, the Tribunal convened and it rapidly became apparent that, unfortunately, the parties were not yet in a position to deal with the difficulties of this appeal and, in particular, were not yet aware of the leading English judgments on the subject. The appeal was accordingly adjourned then, and re-listed to be heard on 29 th May 2002. We now have the benefit of a brief skeleton argument on behalf of the Appellant, but unfortunately it does not deal with the decision of the House of Lords in Quazi v Quazi [1980] AC 744, nor does it contain any argument on the detailed provisions of the Islamic law, on which, perhaps understandably, it simply refers generally to the expert evidence. We heard the appeal on 29 th May. We reserved our determination, but we are certain that the representatives of both parties were clearly aware both that we had in mind materials of which they were not yet entirely familiar, and also that we proposed to dismiss this appeal for reasons which, essentially, were put to Miss Weston in the course of the hearing. We have deferred writing this determination in case, in that context, either party wished to make further submissions to us or to ask for the hearing to be resumed. There have been no such submissions.
The Appellant claims that he is entitled to entry clearance because he is the husband of the sponsor. The relevant immigration rules are those in paragraph 281 of HC 395: we are concerned with nothing other than the validity of the marriage. The Appellant has not previously married anybody other than the sponsor. The sponsor, however, is a party to an earlier marriage. On 14 th December 1992, she married Arshad Mahmood in Pakistan. There appears to have been no rukhsati. The sponsor returned to England after the marriage and continued her education. Ashad Mahmood instituted divorce proceedings, which we shall have to consider in some detail.
The Appellant, Mirza Baig, came to the United Kingdom as a student. As he told the Entry Clearance Officer at his interview in connection with the present application, although he used his student entry clearance, he “ didn't study at all”. He did, however, meet the sponsor, in December 1998. They went through ceremonies of marriage in August 1999. There was an Islamic ceremony on 8 th August, evidenced by a Nikah Nama of that date, in the usual form, save that it is in English. It describes the bride as a divorced teacher, and the “ bridge groom” as a bachelor student. There was also a Registry Office marriage. The Entry Clearance Officer was unaware of this because, in his interview (Q9), the Appellant denied having undergone a civil marriage ceremony. We have not seen an original certificate, but a photocopy is in the papers before us. It records a marriage on 25 th August 1999 at Manchester Register Office between the Appellant and the sponsor. The details are the same as those on the Nikah Nama, except that on this occasion the sponsor is described as a spinster.
The Appellant returned to Pakistan immediately after that ceremony, arriving on 27 th August. He then applied for entry clearance as a husband. The application was refused for two reasons set out in the explanatory statement. The first was based on the lack of a civil marriage ceremony. The Entry Clearance Officer can hardly be blamed for basing his reasoning on this matter on the Appellant's clear denial that there had been a civil marriage. It is now, however, clear that there had been such a ceremony. The second reason for the refusal was that the sponsor was not divorced from her first husband and was therefore incapable of marrying the Appellant.
Following the Adjudicator's decision, the sponsor commenced divorce proceedings in England in an attempt to settle her marital status for the future. A letter from Platt Halpern, her solicitors for those purposes, is before us. It states that “ On 7 th November 2001 we heard from the Court stating that the District Judge was satisfied that the Talaq divorce would be recognised in this country”. We also have the letter from the Court. No reasons are given. In view of the remaining contents of this determination, we are surprised that the District Judge was so readily able to reach the conclusion attributed to him.
We will deal at this stage also with an argument put as an alternative by Miss Weston. This is that, whatever be our view of the divorce, the Appellant and the sponsor are validly married according to the law of Pakistan, and that we should accordingly regard them as husband and wife for the purposes of English immigration law. We are quite unable to accept that argument. The marriage upon which the parties rely took place in England. If, at the time it was celebrated, the sponsor was not divorced from her husband by a divorce recognised by English law, her marriage was, by English law actually (as distinct from merely potentially) polyandrous. The marriage must be void for polygamy unless the divorce is recognised. Given, further, that the sponsor is a Muslim domiciled (as far as we are aware) in England, it is difficult to see that she could ever have capacity to contract a polyandrous marriage.
It follows that it is indeed the divorce that concerns us. We begin by setting out the basis of the law in the three relevant jurisdictions.
The basic incidents of the principal forms of Muslim divorce ( talaq) are not properly open to dispute. We take judicial notice of them, and we note that neither party objected to our doing so. All of them are based on formal pronouncements by the husband. In talaq al-ahsan, the most approved form of divorce, there is a single pronouncement of divorce, followed by a three-month abstention from intercourse, the ‘idda. During the ‘ idda the divorce can be revoked by the husband by words or by conduct (eg co-habitation) but, otherwise, the divorce takes effect at the end of the ‘ idda. Talaq al-hasan, or proper divorce, follows a more complex procedure. Here the divorce is pronounced three times, in three of the wife's successive monthly cycles. There may be co-habitation between the pronouncements, provided that, at the time of each pronouncement, there has been no intercourse during the period of purity in that cycle. The divorce becomes effective on the third pronouncement, but a period of ‘idda is still necessary before the wife can remarry, so that the paternity of any subsequently-born child will not be in doubt.
These two forms are regarded by most Islamic jurists as a talaq as-sunnat, that is to say divorce in accordance with the rules of tradition: only a minority of jurists regard talaq al-hasan as “innovative”. The talaq al-hasan is traced to a view of the Prophet that wives should not be treated as chattels, subject to constant divorce and re-acceptance; so a husband who divorces his wife three times loses her.
Hardly any jurists, however, doubt that the third form of divorce, the so called triple talaq, is talaq al-bid'at or innovative divorce. In this form, the husband pronounces talaq three times on the same occasion, or at least during the same month. This form is the most prevalent in India and Pakistan. It is regarded as lawful, though sinful, by the Hanafis, but some other schools do not recognise it as effective at all. Where it is effective, it is (because of its triple nature, based on the talaq al-hasan) effective immediately, but again the wife cannot remarry until the end of the ‘ idda.
In the previous paragraphs we have set out the major forms of divorce in Islamic law and their effect in Islamic law. Pakistan, like a number of other states with substantial Muslim populations, introduced during the second half of the twentieth century legislation which had the intention or social purpose of ameliorating some of the provisions of Islamic law as it applied to its citizens (see, generally, Norman Anderson, Law Reform in the Muslim World, London 1976). Pakistan enacted the Muslim Family Laws Ordinance in 1961. By Section 2, the Ordinance extends to...
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