Dangers of judicial over-thinking of EEA Law: Court of Appeal overturns flawed Upper Tribunal decision on proxy marriages

Overly thinking and excessively analysing  EEA  law  probably results in Upper Tribunal  decisions such as  Kareem [2014] UKUT 24 and TA [2014] UKUT 316 (IAC) (and of course, arguably Sala).

 

It is now evident, following on from the very recent Court of Appeal decision of Awuku v Secretary of State for the Home Department [2017] EWCA Civ 178,  that directly as a result of Kareem,  those non – EEA nationals  who had conducted proxy marriages with  UK resident treaty exercising  EEA nationals, were most likely  denied  the benefit of rights due  to them as family members. This is because for a period of  3 years, following this Upper Tribunal decision,  such  affected persons  would have had their applications and appeals negatively  decided when  they should not have been.

The effect of Kareem was to exclude a spouse of an EU national who had concluded  a  proxy marriage  from qualifying  as a family member: such marriages were not valid  unless the marriage was recognised in the EEA national’s home State.

 

Following Kareem, immigration practitioners  may over the years  have found it  highly frustrating  to have included the decisions of Kareem and TA within bundles intending to  argue before the First Tier Tribunal that these decision were wrongly decided, as was the unrelenting suspicion,  only to be  shut down at the start of proceedings  in the light of this  authority.

 

As an alternative and where appropriate, affected persons resorted to placing reliance  upon  the EEA Regulations,  not as a spousal  family member  but as  an extended family member, ie, an unmarried partner  in a durable relationship with  an EEA national.  Unlike family members, extended family members do not have automatic rights to enter and reside in the UK. The  Secretary of State has a discretion to issue a residence card where a person establishes they are an extended  family member.  Once a residence card is issued, an extended family member  can then be  treated as a  family member  provided that they continue to satisfy the conditions in the EEA Regulations.

 

Further, for persons adversely  affected by the decision in Kareem, consideration would also have been  given to submitting  human rights applications  having  regard to Article 8 of the ECHR- Right to private and family life.

 

Overthinking   the law  as per Kareem and TA:

 

Kareem [2014] UKUT 24 and TA [2014] UKUT 316 (IAC), states inter alia:

 

“17. Spouses’ rights of free movement and residence are derived from a marriage having been contracted and depend on it. In light of the connection between the rights of free movement and residence and the nationality laws of the Member States, we conclude that, in a situation where the marital relationship is disputed, the question of whether there is a marital relationship is to be examined in accordance with the laws of the Member State from which the Union citizen obtains nationality and from which therefore that citizen derives free movement rights.

 

18.The same conclusion may readily be reached by a different route. Within EU law, it is essential that Member States facilitate the free movement and residence rights of Union citizens and their spouses. This would not be achieved if it were left to a host Member State to decide whether a Union citizen has contracted a marriage. Different Member States would be able to reach different conclusions about that Union citizen’s marital status. This would leave Union citizens unclear as to whether their spouses could move freely with them; and might mean that the Union citizen could move with greater freedom to one Member State (where the marriage would be recognised) than to another (where it might not be). Such difficulties would be contrary to fundamental EU law principles. Therefore, we perceive EU law as requiring the identification of the legal system in which a marriage is said to have been contracted in such a way as to ensure that the Union citizen’s marital status is not at risk of being differently determined by different Member States. Given the intrinsic link between nationality of a Member State and free movement rights, we conclude that the legal system of the nationality of the Union citizen must itself govern whether a marriage has been contracted.”

 

TA [2014] UKUT 316 (IAC), states:

 

“20.Given that which I set out above, it is difficult to see how the Upper Tribunal in Kareem could have been any clearer in its conclusion that when consideration is being given to whether an applicant has undertaken a valid marriage for the purposes of the 2006 Regulations, such consideration has to be assessed by reference to the laws of the legal system of the nationality of the relevant Union citizen. Mr Akohene’s submissions to the contrary are entirely misconceived and are born out of a failure to read the determination in Kareem as a whole”.

Summary facts in Awuku:

Mr Awuku was married by proxy in Ghana to a German national on 4 February 2013 under Ghanaian customary law. Following a refusal decision by the Home Office for a residence card as confirmation of a right to reside in the United Kingdom as the spouse of an EEA national who is exercising free movement rights, the First-tier Tribunal allowed the appeal. The Tribunal found that the marriage between  Mr Awuku  and the EEA national was recognised in the country(Ghana) in which it took place, that it was properly executed so as to satisfy the requirements of that law, and that there was nothing in the law of either party’s country of domicile that restricted their freedom to enter into the marriage.

 

The effect of Kareem upon Mr  Awuku’s appeal in the Upper Tribunal:

 

The Secretary of State appealed the decision to the Upper Tribunal. Permission to appeal to the Upper Tribunal was granted on the basis that the judge had erred in failing to have regard to the decision in Kareem , which required her to consider whether the marriage was recognised in the EEA national’s home State, in this case Germany.

 

The Upper Tribunal allowed the Secretary of State’s appeal on the basis that the effect of Kareem was that, in this case, it was for German law to determine whether the appellant’s marriage by proxy to his EEA national spouse was valid and recognised. In the absence of any evidence that his marriage was recognised by German law, the appellant had failed to discharge the burden of proof on him and the decision of the First-tier Tribunal could not stand. In addition, it was  held that in the light of a lack of evidence as to the validity of the appellant’s marriage under German law,  the First Tier Tribunal’s  conclusions on Article 8 could not stand.

 

On application, permission to appeal was granted to Mr Awuku by the Court of Appeal.

 

English law and proxy marriages:

 

The Court of Appeal summarised as follows:

 

  • In the law of England and Wales the general rule is that the formal validity of a marriage is governed by the law of the country where the marriage was celebrated (“the lex loci celebrationis”)

  • A marriage celebrated in the mode or according to the rites or ceremonies required by the law of the country where the marriage takes place is, as far as formal requisites go, valid.

  • In general the law of a country where a marriage is solemnised must alone decide all questions relating to the validity of the ceremony by which the marriage is alleged to have been constituted.

  • A marriage by proxy will be treated as valid in England if recognised by the local law, even if one of the parties is domiciled and resident in England and the power of attorney authorising the proxy to act is executed in England. The transaction is not contrary to public policy.

 

Kareem and proxy marriages:

 

The Court of Appeal observed that in Kareem, the Upper Tribunal had, by contrast, created a new private international rule for the purposes of EU law, referring to the law of the Member State of the EU national’s nationality. In doing so it had displaced the domestic rule of private international law which would normally apply. The question for consideration in Awuku was whether EU law requires such an approach.

 

Considerations, criticism  of Kareem and conclusion of the Court of Appeal:

 

The Court of Appeal considered as follows:

 

  • The starting point is that the substantive law relating to marriage is outside EU competence.

  • Save to the limited extent that recognition of marriages celebrated overseas could be the subject of family law measures concerning judicial co-operation in cross-border family cases adopted in accordance with the special legislative procedure set out in Article 81(3) TFEU, EU competence does not extend to the recognition of foreign marriage. No relevant measures have been adopted pursuant to that Article and there is, accordingly, no EU law applicable to the recognition of marriages.

  • The formal validity of marriages is left to be decided by the application of domestic law principles including domestic law rules of private international law.

  • The Citizens Directive includes no definition of “spouse” and includes no express provision as to the means by which formal validity of a marriage is to be determined

  • There are, nevertheless, certain indications that the formal validity of a marriage is left to be determined by the law including the private international law of the host State. Thus Recital (28) of the Citizen’s Directive provides that in order to guard against abuse of rights or fraud, notably marriages of convenience, Member States should have the possibility to adopt the necessary measures.

  • Recital (5) and Article 2(2)(b) of the Citizens Directive also supports the view that it is for the domestic law of the host State to determine whether the qualifications for a “family member” within Article 2(2) are met. These provisions acknowledge that it is the domestic law of the host Member State which will determine whether registered partnerships should be recognised. The fact that such specific provision is made for registered partnerships when none is made for marriage is explicable by the fact that not all Member States recognise registered partnerships whereas all recognise marriage. That these issues are left to the domestic law of the host Member State is not surprising. Questions of the formal validity of marriage and similar issues will often reflect considerations of public policy which may, most appropriately, be left to the domestic law of the host Member State.

  • The Court of Appeal considered that the reasoning by which the Upper Tribunal in Kareem arrived at its conclusions was flawed. In that case the Upper Tribunal took as its starting point the proposition that rights of free movement and residence stem directly from Union citizenship, which itself is derived from citizenship of a Member State. As a result, the rights of free movement and residence of a Union citizen are intrinsically linked to that person’s nationality of a Member State. Furthermore, it is well established that under international law and EU law it is for each Member State to lay down the conditions for the acquisition and loss of nationality. However, the Court of Appeal concluded that it does not follow that, because a person’s rights of free movement and residence are linked in this way to nationality of a Member State, issues as to the marital status of his or her spouse or partner must also be governed by the law of his or her State of nationality. On the contrary, nationality and marital status are clearly distinguishable. Nationality is exclusively a matter for the law of the Member State concerned. Marital status and its recognition in any given case, by contrast, are matters in respect of which the Directive contemplates that different Member States may take different views. As a result, there is no need to defer to the law of the State of nationality of the EU national when determining the marital status of his or her spouse or partner for the purposes of the Citizens Directive.

  • The Court of Appeal also concluded that the alternative route by which the Upper Tribunal in Kareem arrived at its conclusion was also open to objection. The Court accepted that if it is open to a host Member State to determine by its law, including its rules of private international law, whether an EU citizen had contracted a marriage, this could have an effect on freedom of movement and residence within the EU. A spouse would be able to move to a Member State which recognised the marriage but not to a Member State which did not. However, similar inequalities arise if the issue is determined by the law of the State of nationality of the EU national.

  • Whether marital status is determined by reference to the law of the home State or the law of the host State, it is at risk of being determined differently by different Member States. This is an inevitable consequence of the fact that the Citizens Directive does not employ an independent rule for determining marital status. It is not a reason for conferring the power to determine marital status on the law of the Member State of nationality of the qualifying EU national.

  • More fundamentally, the Court of Appeal considered that in cases such as the present, the application of the rules of private international law in the law of England and Wales would not, on any view, result in any incompatibility with EU law. The law of England and Wales recognises proxy marriage if valid by the lex loci celebrationis. Accordingly, a spouse of an EU national who has concluded such a marriage will qualify as a family member within Article 2 of the Directive. There was no threat to EU rights . As a result, the Court of Appeal concluded that there was simply no reason for the Upper Tribunal in Kareem to create a new rule of private international law requiring reference to the law of the State of the EU national.

  • The Court of Appeal therefore decided that the Upper Tribunal in Awuku erred in concluding that in the absence of evidence that German law recognises a Ghanaian marriage by proxy as valid, the marriage would not be recognised in the United Kingdom.

Conclusion

 

There are several reasons why some people would conduct a proxy marriage and then submit applications under  the EEA Regulations with evidence of such a marriage.  For example, a non – EEA  partner, for whatever reason,  might at a particular  point in time not have  a valid passport or other acceptable valid form of identity  to present before a  UK marriage registrar  as evidence of identity. It would be most unfair if that alone  could delay  or prevent the parties in a genuine relationship from  marrying. Following Awuku, those  wishing to  marry,  may conduct such marriages, and those married in this manner already but whose previous applications for residence  cards  were refused following Kareem, can submit their residence card applications once again with  appropriate evidence.

 

It is also worthy of observance, as noted in Awuku that on  6 December 2016,  the Secretary of State had  notified the Court that she had changed her position on the appeal and now invited the court to allow the appeal by consent on the basis that a line of authority in the Upper Tribunal, including the decisions in Kareem and TA was wrongly decided. The  Court of Appeal  however adjourned the matter to be relisted with the benefit of adversarial argument from an advocate to the court.  Further to Awuku, it should however not be surprising if tightly drafted Home Office guidance policy on proxy marriages  in relation to EEA applications  is published  and perhaps even an amending of the newly published 2016 EEA regulations.

 

In Sala (EFMs: Right of Appeal) [2016] UKUT 00411 (IAC),  the Upper Tribunal last year suddenly  awakened to  the conclusion  that there is no statutory right of appeal against a decision of the Secretary of State not to grant a residence card to a person claiming to be an extended family member. The general “feeling” is Sala was wrongly decided. It is  currently understood that  permission to appeal has been granted in the Court of Appeal in one or two  appeals  to challenge the Upper Tribunal decision in Sala. If  the Upper Tribunal, as in Kareem,  took an unnecessary and  complicated exercise  overthinking issues in Sala therefore reaching the wrong conclusion, then a Court of Appeal  overturning also of Sala is much anticipated.

 

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