CB (Validity of marriage: proxy marriage)
| Jurisdiction | England & Wales |
| Judge | or,Senior Immigration Judge Allen |
| Judgment Date | 09 September 2008 |
| Neutral Citation | [2008] UKAIT 80 |
| Court | Asylum and Immigration Tribunal |
| Date | 09 September 2008 |
[2008] UKAIT 80
Asylum and Immigration Tribunal
THE IMMIGRATION ACTS
Senior Immigration Judge Allen
For the Appellant: Ms I Cannell, Solicitor with Nabas Legal Consultancy
For the Respondent: Mr J Gulvin, Home Office Presenting Officer
CB (Validity of marriage: proxy marriage) Brazil
There is no exception in immigration cases to the rule of private international law that the validity of a marriage is governed by the lex loci celebrationis and on the authority of Apt v Apt [1948] P 83 there is no reason in public policy to deny recognition to a proxy marriage.
The appellant is a national of Brazil. He appealed to an Immigration Judge against the Secretary of State's decision of 20 February 2008 refusing to issue a residence card.
The appellant claimed to have entered into a lawful marriage with Ms Aneta Kowalczyk in Brazil on 10 March 2007. It was a marriage by proxy with neither of the parties attending. The Immigration Judge had before him an expert report which among other things stated that marriage by proxy has been valid under Brazilian law since the Brazilian Civil Code of 1916 (Article 201), and is still valid by reason of Article 1542 of the Brazilian Civil Code of 2002. The Immigration Judge was satisfied from the factual and expert evidence including a copy of the original Brazilian marriage certificate, that the appellant and Ms Kowalczyk had contracted a marriage by proxy which was recognised as lawful in Brazil.
The Immigration Judge went on to note that marriages by proxy which take place in the United Kingdom are not recognised under the law of England and Wales. He said however that the United Kingdom recognises marriages as if they are valid under the domestic law of the country in which they take place, provided they have been executed properly. He commented that the validity of any given marriage is not governed by the law of either party's domicile. The relevance of domicile was whether or not the parties had the capacity to enter into the proposed marriage under the law of the country in which they were domiciled. He noted the responses by the appellant and his wife to domicile questionnaires and concluded that at the time of their marriage they were both domiciled in the United Kingdom. [In fact, the correct finding should have been that they are domiciled in England and Wales, but that is not a material error]. This indeed was a conclusion to which the Secretary of State had already come.
The Immigration Judge went on to consider capacity to marry of those domiciled in the United Kingdom. This is governed by section 11 of the Matrimonial Causes Act 1973. There are four requirements: that both parties are over the age of 18, neither is lawfully married, the parties are not inter-marrying, and the parties are respectively male and female. By implication he found that the appellant and his wife met these four criteria and that as a consequence there was nothing in the law of their country of domicile to prevent them from contracting a valid marriage by proxy in Brazil. He accepted therefore that they were legitimately married and that the appellant was therefore Ms Kowalczyk's family member. She is a citizen of Poland and it seems not to be contested that at all material times she has been a qualified person within regulation 6 of the Immigration (European Economic Area) Regulations 2006.
The Immigration Judge went on to consider the application of the recent decision of the European Court of Justice in Metock C-127/08 and concluded that in the light of that judgment, whether the appellant entered the United Kingdom before or after his wife was an irrelevant consideration, and that the words “accompany” and “join” in Article 3(1) of Directive 2004/38 had to be read in a way non-restrictive of a Union citizen's rights. He concluded that the appellant was entitled to a residence card and the appeal fell to be allowed.
The Secretary of State sought reconsideration of this decision, arguing that there was a material error of law in the finding that the proxy marriage in Brazil was to be recognised in the United Kingdom, on the basis that the Immigration Judge had accepted that the United Kingdom was the country of domicile and the United Kingdom did not recognise marriage by proxy. It was said that consideration of a valid marriage had to take into account the legislation of the country of domicile. Reference was made to the IDIs chapter 8 (Annex D2) concerning the proper test for and regulations relating to domicile. A Senior Immigration Judge ordered reconsideration.
The hearing before me took place on 9 September 2008. Ms I Cannell of Nabas Legal Consultancy, appeared on behalf of the appellant. Mr J Gulvin appeared on behalf of the Secretary of State.
Ms Cannell relied upon the reply that she had put in and the attached authorities and also argued that the decision of the Secretary of State breached Articles 8 and 12 of the European Human Rights Convention.
Mr Gulvin put in a copy of Mark v Mark [2005] UKHL 42. He argued that for immigration purposes it was contended on behalf of the Secretary of State that the importance of domicile was that it was accepted as being a status which determined the ability to marry and under what law a person's marriage should be considered. The appellant and his wife were both found to be domiciled in the United Kingdom, and therefore they had no capacity to marry by proxy or to have their proxy marriage regarded as valid in the United Kingdom. It was irrelevant that the marriage was seen as valid in Brazil. There were two ways in which it could be determined whether a marriage was valid, either by way of assessing the lex loci celebrationis or domicile. For immigration purposes it was argued that it was proper to consider domicile. The appropriateness in other forms of law of the lex loci celebrationis did not translate into immigration, if a couple, as in this case, had made the United Kingdom their domicile of choice in that then it was only right that their capacity to marry should be judged under that regime. It was therefore a question of whether the United Kingdom would accept a proxy marriage and not a question of recognition of the validity of the marriage in Brazil. The couple were not in Brazil.
Mr Gulvin referred to a decision put in by Ms Cannell of Wilkinson v Kitzinger and Others [2006] EWHC 2022 at paragraphs 15 and 16. With regard to that he argued that for immigration purposes as a matter of policy it was of importance that if a...
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Upper Tribunal (Immigration and asylum chamber), 2023-05-22, EA/00545/2021
...the country where it was celebrated. That proposition is uncontroversial. Further, in CB (Validity of Marriage: proxy marriage) Brazil [2008] UKAIT 00080, the Upper Tribunal rejected the submission that different rules apply to the legal framework governing validity of marriage when the iss......
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Kareem (Proxy Marriages - EU Law) [Asylum and Immigration Tribunal]
...the same assumption was presented and adopted without discussion by the Tribunal in CB (Validity of marriage: proxy marriage) Brazil [2008] UKAIT 00080 and that a number of unreported Upper Tribunal decisions have done 5 We have found no legal basis in EU law for such an assumption. We reca......
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Albert Awuku v Secretary of State for the Home Department
...was performed, is not effective in this country to constitute a valid marriage." 16 In CB (Validity of Marriage: proxy marriage) Brazil [2008] UKAIT 00080 the Upper Tribunal rejected a submission that different rules should be applied to the legal framework governing validity of marriage wh......
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Upper Tribunal (Immigration and asylum chamber), 2012-08-30, [2012] UKUT 309 (IAC) (Abdin (domicile – actually polygamous marriages))
...that either party is domiciled in England and Wales. The author of the grounds also prayed in aid CB (Validity of Marriage) Brazil [2008] UKAIT 00080 where the Tribunal is said to have stated that for the purposes of English law the validity of the marriage is now governed solely by the lex......