Upper Tribunal (Immigration and asylum chamber), 2008-11-26, [2008] UKAIT 92 (SM (Domicile of choice; Scots law))
| Jurisdiction | UK Non-devolved |
| Judge | Mr C M G Ockelton, Mr K R Forbes |
| Status | Reported |
| Date | 26 November 2008 |
| Published date | 11 December 2008 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 12 September 2008 |
| Subject Matter | Domicile of choice; Scots law |
| Appeal Number | [2008] UKAIT 92 |
SM (Domicile of choice; Scots law) Pakistan [2008] UKAIT 00092
ASYLUM AND IMMIGRATION TRIBUNAL
THE IMMIGRATION ACTS
Heard at: Glasgow Date of Hearing: 12 September 2008
Determination delivered orally at hearing
Before:
Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal
Immigration Judge Forbes
Between
SM
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation
For the Appellant: Mr. D Byrne, Drummond Miller LLP
For the Respondent: Ms. M MacDonald, Home Office Presenting Officer
1. In a Scottish case, whether a person is domiciled within the United Kingdom or not falls to be considered by the rules of Scots law, which, although placing the burden of proof firmly on the party asserting the acquisition of a domicile of choice do not impose a higher standard than the balance of probabilities. The evidence must be looked at as a whole, and as a whole it needs to show a change of permanent home for all purposes.
2. A person who evinces a desire to retain the laws of his original home (as distinct from the rules of UK or Scots law) for a continuing part of his life does not show the intention relevant to a change of domicile.
DETERMINATION AND REASONS
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The appellant is a citizen of Pakistan. She appealed to the Tribunal against the decision of the respondent Entry Clearance Officer on 12 July 2007 refusing her entry clearance as the unmarried partner of the sponsor. An Immigration Judge dismissed the appeal. The appellant sought and obtained an order for reconsideration. Thus the matter comes before us.
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The matrimonial or quasi-matrimonial history of the sponsor is a matter of some complexity and importance in this case. The sponsor was born in Pakistan and came to the United Kingdom as a child with his father. He has subsequently obtained British citizenship. In 1993 he married in Pakistan a wife who came to the United Kingdom under the provision of the Immigration Rules to settle with him. That relationship has now broken down, but there has been no divorce recognised in the United Kingdom. It follow that the sponsor and that wife of his are still married in United Kingdom and indeed Scottish law.
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Following the breakdown of his marriage he entered into a further relationship (possibly beginning as long ago as 2000) with the appellant in Pakistan and has a number of children by her. As we have said there is no United Kingdom divorce between the first wife and the sponsor, but in 2005 the sponsor executed, in Scotland, in English, what is called a “Letter of Divorce” and purports to be a Talaq. Following that he went again to Pakistan and entered into a ceremony of marriage with the appellant.
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There has been a previous application by the appellant for admission to the United Kingdom as the spouse of the sponsor. That application, we understand, was refused. The reason for the refusal may have been that the marriage was not valid or it may have been that under para 278 of the Statement of Changes in Immigration Rules, HC 395 a second wife (that is to say, a party to a polygamous marriage where other wives of the sponsor are already in the United Kingdom) cannot be admitted to the United Kingdom whilst the marriage to the first wife subsists. It is under those circumstances that, advised by the solicitors who represent her before us today, the appellant has made a further application to admission to the United Kingdom as an unmarried partner.
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The Immigration Judge’s determination, it is fair to say, exhibits some confusion. It is confusion which goes to the heart of the issue which the Immigration Judge had to determine. The Immigration Judge had before her evidence in the form of a witness statement adopted orally by the sponsor, and documentary evidence, showing links between the sponsor and the appellant said to continue over a number of years. The Immigration Judge was clearly in a state of some confusion as to whether the case fell to be decided under the rules applicable to “married’ or “unmarried” partners. Referring to the requirement under the rules applicable to unmarried partners, in para 295A of the Immigration Rules, she began her conclusion on the issue as follows:
“The Entry Clearance Officer’s decision was based on the fact that he did not consider that the Appellant had lived with the U.K. sponsor for a period of two years. He based this decision by applying rule 295A. I consider this approach to be erroneous.”
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So far so good, perhaps. The Immigration Judge then continues as follows:
“The fact is that the Appellant considers that she is married and indeed that there is a valid marriage under the laws of Pakistan. It is the status of the Appellant which is significant under the rules and I would refer to Rule 281(1)(a) in this connection which states ‘the applicant is married to or the civil partner of a person present and settled in the United Kingdom.’. It is therefore incorrect to seek to apply rule 295A in this case. The Appellant does not consider herself to be the unmarried partner of the sponsor but considers herself to be the spouse. However, the marriage is not valid under UK law as the UK sponsor is not divorced under UK law from his first wife. Accordingly, the Appellant does not meet the requirements of Rule 281. It is not open to the Appellant to then choose to apply another rule based on unmarried partners.”
The Immigration Judge then went on to consider matters relating to finance and to Art 8, although no ground of appeal was based on Art 8. The Immigration Judge dismissed the appeal.
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In making his application for reconsideration Mr. Byrne has pointed out that, broadly speaking, it is probably fair to say that a couple are either married or are not married and that the determination of the Immigration Judge does not demonstrate whether she thought that they were married or not married. Indeed, as he pointed out in his expansion of his grounds before us, she appears to have treated them both as being not married and not unmarried, evidently to the disadvantage of the appellant in attempting to prove her case.
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Those criticisms of the Immigration Judge’s determination appear to us to be sound. This was a case in which the Immigration Judge needed to decide whether she was satisfied that the appellant met the requirements of the Immigration Rules upon which she relied. She relied on Immigration Rules applicable to her as an unmarried partner and, because of the provisions of para 278 to which we have referred, she needed indeed to show that she was not married to the sponsor. It was therefore necessary for the Immigration Judge to decide whether the parties were married for the purposes of the Immigration Rules and UK law, and she failed to do so. That was an error of law.
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We then turn, as we must, to deciding whether that error was material. The error would not be material if the Immigration Judge would have been bound on the evidence before her and the law correctly interpreted, to have decide it in the same way that she did decide it.
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The relevant law as it apples to this appeal is, as it seems to us, as follows. The marriage ceremony between the appellant and the sponsor constitutes a marriage in UK and, in particular, Scots law, if and only if it was valid. Given that it was polygamous it would be valid if and only if neither of the parties was domiciled in any part of the United Kingdom at the time that the marriage took place. There is no doubt that the appellant was not domiciled in any part of the United Kingdom. The sponsor had a domicile of origin in Pakistan and would have a domicile in a part of the United Kingdom therefore only if he had acquired by choice a domicile different from his domicile of origin. It is well known that both in English law and Scots law and, indeed we understand it, the law of much of the rest of the world, it is for a person who seeks to establish that a domicile of origin has been lost and replaced by a domicile of choice to show that. The better and current view is probably that, despite some Scottish authority to the contrary, in a civil action the standard of proof is on no issue higher than the balance of probabilities (see eg Lamb v Lord Advocate 1976 SC 110). In this the law of Scotland (by which the sponsor’s domicile is to be determined in this appeal) may differ from that of England. There is no doubt, however, that the burden of proof is on the appellant in the present case. She needs to show that the sponsor had acquired a domicile of choice in Scotland before undergoing a ceremony of marriage with her. If he had done, her marriage to him would be (in Scots law) void on the ground of polygamy.
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If the sponsor was domiciled in Pakistan at the time of his marriage to the appellant the marriage is valid although polygamous. It is valid because there is nothing in the provisions of Scottish law or UK law which would invalidate it. The law of the United Kingdom and its various parts recognises polygamous marriages contracted abroad by those with domiciles not in the United Kingdom. The marriage although valid...
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