Kareem (Proxy Marriages - EU Law) [Asylum and Immigration Tribunal]

JurisdictionUK Non-devolved
CourtUpper Tribunal (Immigration and Asylum Chamber)
JudgeMr C.M.G. Ockelton,McKee,McCarthy,C M G Ockelton,McCarthy DUTJ,McKee UTJ
Judgment Date16 Jan 2014
Neutral Citation[2014] UKUT 24 (IAC)

[2014] UKUT 24 (IAC)

Upper Tribunal

(Immigration and Asylum Chamber)

THE IMMIGRATION ACTS

Before

Mr C.M.G. Ockelton, Vice-President

Upper Tribunal Judge McKee

Deputy Upper Tribunal Judge McCarthy

Between
Saheed Gbadebo Kareem
Appellant
and
Secretary of State for the Home Department
Respondent
Representation:

For the Appellant: Ms C Callinan, Counsel instructed by Owoyele Dada & Co Solicitors, London

For the Respondent: Mr S Allan, Home Office Specialist Appeals Team

Kareem (Proxy marriages — EU law)

  • a. A person who is the spouse of an EEA national who is a qualified person in the United Kingdom can derive rights of free movement and residence if proof of the marital relationship is provided.

  • b. The production of a marriage certificate issued by a competent authority (that is, issued according to the registration laws of the country where the marriage took place) will usually be sufficient. If not in English (or Welsh in relation to proceedings in Wales), a certified translation of the marriage certificate will be required.

  • c. A document which calls itself a marriage certificate will not raise a presumption of the marriage it purports to record unless it has been issued by an authority with legal power to create or confirm the facts it attests.

  • d. In appeals where there is no such marriage certificate or where there is doubt that a marriage certificate has been issued by a competent authority, then the marital relationship may be proved by other evidence. This will require the Tribunal to determine whether a marriage was contracted.

  • e. In such an appeal, the starting point will be to decide whether a marriage was contracted between the appellant and the qualified person according to the national law of the EEA country of the qualified person's nationality.

  • f. In all such situations, when resolving issues that arise because of conflicts of law, proper respect must be given to the qualified person's rights as provided by the European Treaties, including the right to marry and the rights of free movement and residence.

  • g. It should be assumed that, without independent and reliable evidence about the recognition of the marriage under the laws of the EEA country and/or the country where the marriage took place, the Tribunal is likely to be unable to find that sufficient evidence has been provided to discharge the burden of proof. Mere production of legal materials from the EEA country or country where the marriage took place will be insufficient evidence because they will rarely show how such law is understood or applied in those countries. Mere assertions as to the effect of such laws will, for similar reasons, carry no weight.

  • h. These remarks apply solely to the question of whether a person is a spouse for the purposes of EU law. It does not relate to other relationships that might be regarded as similar to marriage, such as civil partnerships or durable relationships.

DETERMINATION AND REASONS
1

The appellant is a Nigerian citizen. He says he is married to a Dutch citizen who is working in the United Kingdom. Although the Secretary of State accepts that the person the appellant describes as his wife is a qualified person for the purposes of the Immigration (European Economic Area) Regulations 2006, she does not accept that the appellant is married as claimed.

2

The appellant states that he married his wife on 26 November 2011 in a ceremony that neither of them attended. The ceremony took place in his father's home in Mushin, Lagos State, Nigeria by proxy. The appellant says that his marriage was conducted in accordance with customary law and was subsequently registered by the local customary court, which issued a marriage certificate. In support of his claim, the appellant has produced an affidavit from his father, a court order, the marriage certificate and statements from the appellant and others.

3

The Secretary of State's reason for disputing that the appellant is married is, in essence, that she does not believe that the evidence produced is sufficient to establish that the appellant is married according to Nigerian law. If the appellant is not married according to the laws of the country in which the marriage is said to have taken place, then he is not married according to English law.

4

Within the Secretary of State's reasoning is an assumption that, for the purposes of EU law, a Member State can use its own legal order to determine whether or not a person is married to another. We are aware that 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 likewise.

5

We have found no legal basis in EU law for such an assumption. We recall that a Member State cannot use its own legislation to determine whether a person is a family member (cf Jia (C-1/05) [2007] Imm AR 439, para 36) because doing so has the potential of restricting the exercise of rights of free movement and residence. Therefore, we do not adopt this assumption and turn instead to EU law to determine the proper approach to the legitimate question posed by the Secretary of State.

The meaning of spouse in EU law
6

The Member States do not share a common definition of spouse, each state defining marital relationships for itself. For example, in several Member States a person cannot be a spouse if of the same sex as the partner whilst the laws of other Member States describe such a person as a spouse. Similarly, whilst many Member States refuse to describe any person in a polygamous relationship as a spouse other than the person first married, the laws of other Member States may recognise all partners as spouses in certain circumstances. In terms of EU law, the law of marriage can be said to be within the competence of the Member States.

7

The Court of Justice of the European Union (CJEU) has found that in EU law spouse refers solely to the question of whether a marriage has been contracted (cf Diatta (C-267/83) [1985] ECR 567, para 20; Reed (C-59/85) [1986] ECR 1283, para 15) but this does not help us identify who is a spouse for the purposes of EU law because, as we have shown, marital relationships are not defined in the same way in each Member State.

8

EU law affords the Charter of Fundamental Rights the same legal value as the Treaties and has regard to the human rights convention (ECHR) as part of the common tradition of the Member States (see Treaty on European Union, article 6). Article 9 of the Charter mirrors article 12 ECHR in recognising that the right to marry is guaranteed by national law.

9

We mention at this juncture the fact that in this appeal we are only concerned with the question of whether the appellant has contracted a marriage. We are not considering whether he is in a registered partnership or a durable relationship. These issues do not arise in this appeal, the appellant never having argued that he is in a registered partnership and having produced no evidence of cohabitation. These are different types of relationships and, as confirmed in the European jurisprudence just cited, cannot be regarded as marital relationships for the purposes of EU law. Of course, marriage is special kind of contractual relationship recognised by law as effecting a change in civil status. Unlike a non-marital ‘durable relationship’, it cannot be established merely by proof of facts, for example of cohabitation: establishing a marriage requires both proof of relevant facts and demonstration that a relevant legal order regards those facts as constituting a marriage.

10

We conclude that in EU law the question of whether a person is in a marital relationship is governed by the national laws of the Member States. In other words, whether a person is married is a matter that falls within the competence of the individual Member States.

11

In addition to these points, the CJEU has established that a Member State can expect persons claiming to be family members to establish that they meet the requirements of EU law (cf Jia (C-1/05) [2007] Imm AR 439, para 37ff). Article 10(2)(b) of the Citizens Directive (2004/38/EC) 1 indicates that non-EEA nationals can establish that they are family members by the production of a document attesting to the existence of a family relationship. We are also aware that the jurisprudence of the CJEU just cited indicates that in the absence of a document attesting to the existence of a family relationship, other evidence may be considered.

12

From this we infer that usually a marriage certificate issued by a competent authority will be sufficient evidence that a marriage has been contracted. Of course, a document which merely calls itself a marriage certificate does not have any legal status. A certificate will only have legal status if it is issued by an authority with legal power to create or confirm the facts it attests, that is, by an authority that has such competence. Where a marriage document has no legal status or where such status is unclear, other evidence may be used to establish that a marriage has been contracted. However, once again we find that these principles do not help us determine whether a person is a spouse because it will depend on identifying the authority with legal power to create or confirm that a marriage has been contracted.

13

Whilst considering the issue of evidence of marriage, we remind ourselves that the proof of the law of another country is by evidence, including proof of private international law of that other country. Such evidence will not only have to identify relevant legal provisions in the other country but identify how they apply in practice. A lack of evidence of relevant foreign law will normally mean that the party with the burden of proving it will fail.

14

In light of the preceding considerations, the...

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