TA and Others (Kareem explained)
| Jurisdiction | UK Non-devolved |
| Judge | O'Connor |
| Judgment Date | 10 June 2014 |
| Neutral Citation | [2014] UKUT 316 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 10 June 2014 |
[2014] UKUT 316 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
UPPER TRIBUNAL JUDGE O'Connor
(Anonymity Direction Made)
For the Appellant: Mr Kandola, Senior Presenting Officer
For the Respondent: Mr Akohene, Solicitor – Afrifa and Partners
TA and Others (Kareem explained) Ghana
Following the decision in Kareem (proxy marriages – EU law) [2014] UKUT 24, the determination of whether there is a marital relationship for the purposes of the Immigration (EEA) Regulations 2006 must always be examined in accordance with the laws of the Member State from which the Union citizen obtains nationality.
The appellant in these appeals is the Secretary of State for the Home Department. For the sake of convenience I shall refer herein to Ms TA, Master KA and Miss ANAG as ‘the claimants’.
The First-tier Tribunal made an anonymity direction and neither party has requested that I discharge that direction. Therefore, unless and until a Tribunal or Court directs otherwise, the claimants are granted anonymity. No report of these proceedings shall directly or indirectly identify them or any members of their family. Failure to comply with this direction could lead to a contempt of court.
The claimants are citizens of Ghana. The first claimant is the mother of the second and third claimants, who are minors. On 14 September 2012 the claimants each applied for an EEA residence card as confirmation of their right to reside in the United Kingdom as non-EEA national family members of EKT, a Dutch national. The two minors are not the biological children of the EEA sponsor (EKT). The Secretary of State refused these applications in a single decision of 2 May 2013.
The claimants appealed the Secretary of State's decision to the First-tier Tribunal. First-tier Tribunal Judge Chowdhury heard the appeals on 3 March 2014 and allowed them “under the 2006 Regulations” [this being a reference to the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003)] in a determination promulgated on 22 April 2014.
Having considered the reported decision of the Tribunal in NA (Customary marriage and divorce evidence) Ghana [2009] UKAIT 00009 the judge concluded that the first claimant and EKT had undertaken a valid marriage for the purposes of regulation 7 of 2006 Regulations.
The Secretary of State sought, and obtained, permission to appeal to the Upper Tribunal, it being said that the First-tier Tribunal had erred in law in failing to take into account and apply the recent reported decision of the Upper Tribunal of Kareem (Proxy marriages – EU law) [2014] UKUT 24; this being relevant because neither the first claimant, nor EKT, had been present in Ghana at the time their marriage was contracted.
It is not in dispute that the First-tier Tribunal ought to have, but failed to, consider the decision in Kareem, although the judge was not helped in this regard by the failure of both parties to draw her attention to it. Mr Akohene submits that this error was not material to the First-tier Tribunal's determination. Mr Kandola submits to the contrary.
It is prudent at this juncture to set out the terms of paragraph 68 of the decision in Kareem, upon which Mr Akohene seeks to found his submissions:
“We make the following general observations:
(i) 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.
(ii) 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.
(iii) 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.
(iv) 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.
(v) 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.
(vi) 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.
(vii) 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.
(viii) 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.”
Mr Akohene submits that it is clear that there is a two-stage process in the determination of whether a marriage can be considered to be valid for the purposes of the 2006 Regulations. Where a marriage certificate has been issued by a competent authority, this would usually be enough to demonstrate the validity of the marriage under the 2006 Regulations [paragraph 68(b) of Kareem]. In the instant case it is accepted that the competent authority in Ghana issued the marriage certificate and, consequently, the first claimant has demonstrated that she is married for the purposes of the 2006 EEA Regulations. It is not necessary to move on to the second...
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