Upper Tribunal provides guidance on validity and recognition of proxy marriages
In Proxy Marriage – Cudjoe (Proxy marriages: burden of proof) [2016] UKUT 180 the Upper Tribunal provided guidance on the validity and recognition of proxy marriages. A proxy marriage involves a union where one or both parties are not present but are represented by another individual, often a family member.
This case was heard before the Upper Tribunal on 10th September 2015 and published on 14th April 2016. The headnote reads:
1. It will be for an appellant to prove that their proxy marriage was in accordance with the laws of the country in which it took place, and that both parties were free to marry. The burden of proof may be discharged by production of a marriage certificate issued by a competent authority of the country in which the marriage took place, and reliance upon the statutory presumption of validity consequent to such production. The reliability of marriage certificates and issuance by a competent authority are matters for an appellant to prove.
2. The means of proving that a proxy marriage was contracted according to the laws of the country in which it took place is not limited to the production of a marriage certificate, as is recognised in Kareem (Proxy marriages – EU law) [2014] UKUT 00024 (IAC).
3. In cases where a divorce has taken place prior to the proxy marriage and there is an issue as to whether the parties were free to marry, it is for an appellant to show that the dissolution of the previous marriage was in accordance with the laws of the country in which it occurred.
In this case the Respondent had refused to issue the Claimant with a residence card in accordance with the Immigration (European Economic Area) Regulations 2006 (the Regulations) as confirmation of her right of residence in the United Kingdom as the spouse of a Dutch national exercising Treaty rights.
In summary, Upper Tribunal Judge Rintoul found that First-tier Tribunal Judge Dineen erred by relying solely on an item of Dutch legislation entitled “Conflict of Law Rules for Marriages” to conclude that the Claimant’s proxy marriage to her husband in Ghana was valid for the purposes of Dutch law. This approach was contrary to the decisions in Kareem (Proxy marriages – EU law) [2014] UKUT 00024 (IAC) (Kareem) and TA and Others (Kareem explained) Ghana [2014] UKUT 00316 (IAC) (TA).
In Kareem [2014], which applies to marriage only, the Tribunal found that the spouse of an EEA national who is a qualified person can derive rights of free movement and residence if proof of the marital relationship is provided. A marriage certificate issued by a competent authority can meet this requirement. The document needs to be issued by an authority with the legal power to do so. Where this is not available the Tribunal will need to consider where the marriage was contracted and whether according to the national law of the EEA country of the qualified person’s nationality.
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.
In TA and Others (Kareem explained) the Tribunal found that whether the individual is a family member by virtue of their marriage must be examined in accordance with the laws of the member state, from which the EEA derives their nationality.
In Cudjoe findings of fact were preserved and the sole issue before Deputy Judge Norton-Taylor was whether the marriage in question was valid for the purposes of Dutch law? In a decision promulgated on 15th December 2015 the Claimant’s marriage had been found to be valid according to Ghanaian law.
The Tribunal examined a detailed and comprehensive expert evidence report produced by the Claimant and concluded that the marriage was valid according to Dutch law. The Respondent was only able to produce various additional materials taken from the websites of the Dutch Embassy in Accra and the Netherland’s Immigration and Naturalisation Service on the day of the hearing. The Tribunal noted:
“As mentioned previously, she has not provided any expert evidence of her own. This is despite having had ample time in which to do so, not only since the possibility of such evidence was flagged up by Upper Tribunal Judge Rintoul in his initial directions, but more importantly since she came into possession of an expert report back in May which clearly favours the claimant’s case. There has been no obligation on the respondent to commission a report in this appeal, but we regard it as a pity that she has seemingly declined to take any steps whatsoever to assist with the accumulation of the best evidence possible on an issue affecting not only the claimant but quite probably numerous other individuals in similar situations”.
At paragraph 47 the Tribunal concluded:
In summary, drawing together what is said in Dr Curry-Sumner’s report, we find that the following propositions as to Dutch law are made out:
a) A proxy marriage contracted outside of the Netherlands will in the normal course of events be recognised as valid according to Dutch law provided that it was so contracted in accordance with the laws of the country in which it took place, and that the parties were free to marry.
b) Proxy marriages are not regarded as being contrary to Dutch public policy.
c) It is for an applicant to prove that their proxy marriage was in accordance with the laws of the country in which it took place, and that both parties were free to marry.
d) The burden of proof may be discharged by production of a marriage certificate issued by a competent authority of the country in which the marriage took place, and reliance upon the statutory presumption of validity consequent to such production. The reliability of marriage certificates and issuance by a competent authority are matters for an applicant to prove.
e) The means of proving that a proxy marriage was contracted according to the laws of the country in which it took place is not limited to the production of a marriage certificate, (as is recognised in Kareem).
f) In cases where a divorce has taken place prior to the proxy marriage and there is an issue as to whether the parties were free to marry, it is for the claimant to show that the dissolution of the previous marriage was in accordance with the laws of the country in which it occurred.
The Claimant’s marriage was therefore found to be valid according to Dutch law. The Claimant was therefore the spouse of an EEA national and was therefore a family member of a qualified person. Consequently the appeal was therefore allowed under Regulation 17(1) of the Regulations.
This case provides further clarification in what can be a very complicated area of law.
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Source: Proxy Marriage – Cudjoe (Proxy marriages: burden of proof) [2016] UKUT 180
