This case concerned an Indian national who wished to obtain an EEA residence card under the Immigration (EEA) Regulations 2016 as the spouse of a Hungarian national living in the UK. He made his application on the basis that he was married by proxy in India but his application was dismissed because the SSHD did not accept the marriage certificate, stating that India does not recognise proxy marriages. The appellant appealed the decision and it was held in the First-tier Tribunal (FTT) that, as questions of foreign law are questions of fact, it would be up to the appellant to prove that the marriage was recognised. Upon the evidence, whilst the FTT did see some documents supporting the fact that a marriage had taken place, they saw no evidence that it was valid and so the appeal was dismissed.
The appellant then sought permission to appeal to the Upper Tribunal (UT). Whilst this permission was granted, the appellant did not turn up to his appeal, gave no reason for his absence, and was not heard from by the court. In his absence, the UT considered the case on submissions only.
The UT considered the case of Cudjoe (Proxy Marriages – burden of proof) [2016] UKUT 180 (IAC) which set out that the onus is on applicants to prove that their marriage was valid and recognised in accordance with the laws of the country where the marriage took place. A marriage certificate can prove this, but it has to be a valid marriage certificate, recognised by the country in which it was issued. The UT then turned to the case of Kareem (proxy marriages – EU law) [2014] UKUT 24 which provided further guidance on the issue. This guidance is clear and sets out the following key points (amongst others):
- “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…
- 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.
- 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.
- 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…”
As such, because there were doubts surrounding whether the marriage certificate was issued by a competent authority, it became up to the appellant to show that the marriage was valid by other evidence, if he had this. As regards the starting point, it was notable in the case that the EEA national was a national of Hungary, and no evidence was shown to illustrate that marriage by proxy was recognised under Hungarian law.
The UT found that the FTT had decided correctly and there was no error on a point of law in the case. The appellant had submitted other evidence besides his marriage certificate, including a memorandum of marriage, affidavit of the head of the village, and confirmation letter from the registrar of marriages, but no evidence to show that marriage by proxy was recognised. The FTT mentioned that, without the appellant producing legal provisions and materials, and importantly, explanations for how those provisions and materials are applied in India, she could not accept his marriage certificate at face value, given that she had heard evidence that set out that marriages by proxy were not recognised in India. The appeal was again dismissed.
The significant point here regards the burden which is on the appellant. In similar cases it is clear from this decision that there is a definite and not-negligible burden on appellants (and, by extension, applicants) to prove that their marriage is valid and recognised in the country where it took place. This will clearly require thorough and comprehensive evidence of that country’s legal provisions, as well as evidence to show how those provisions are commonly applied. This may be quite the burden for applicants but, with enough preparation time, it should be possible to discharge.
By: Cameron Dyer