Adetola, R (on the application of) v First-Tier Tribunal (Immigration and Asylum Chamber) & Anor

For the purposes of an appeal under regulation 26(3) of the Immigration (European Economic Area) Regulations 2006, a person claiming to be the spouse of an EEA national must produce proof of the relationship. A genuine Church of England marriage certificate will ordinarily provide sufficient proof of a valid marriage. Immigration judges should be slow to treat such a marriage as sham or one of convenience, although they may scrutinise the certificate’s authenticity and the circumstances of the ceremony. A marriage of convenience is distinct from a bogus marriage: the former is legally valid, although excluded from the statutory definition of spouse. Where the required proof is produced and no finding of marriage of convenience is made, the claimant has a right of appeal.

The claimant, a Nigerian asylum-seeker, sought judicial review of a First-tier Tribunal decision dated 20 May 2010. The Tribunal had treated the claimant as having no in-country right of appeal against refusal of a residence card because it rejected the evidence of his marriage to an EEA national and made no finding that the marriage was one of convenience.

The claim also challenged removal directions, but no claim against the Secretary of State was pursued. The central issues were whether the Church of England marriage certificate and passport constituted sufficient proof under regulation 26(3) of the Immigration (European Economic Area) Regulations 2006, and whether the Tribunal had lawfully determined that no appeal right existed.

1. The judicial review application succeeded against the First-tier Tribunal. Its preliminary decision of 20 May 2010 was quashed, and the claimant was declared to have a right of appeal under regulation 26(3) of the Immigration (European Economic Area) Regulations 2006.
2. Regulation 2 defines an EEA decision and excludes a party to a marriage of convenience from the definition of spouse. Regulation 7 treats a spouse as a family member. Regulation 17 requires production of a valid passport and proof that the applicant is such a family member. Regulation 26(3) prevents an appeal unless the claimant produces an EEA family permit or other proof of the claimed relationship.
3. The best evidence of a marriage ceremony is ordinarily the marriage certificate: L-K v K (No 3) [2007] 2 FLR 741. The court also adopted the distinction explained in IS (marriages of convenience) Serbia [2008] UKAIT 00031: a bogus marriage is invalid, whereas a marriage of convenience is valid but does not confer the relevant rights.
4. The reasoning in R (Baiai and others) v Secretary of State for the Home Department [2006] EWHC 823 (Admin) concerning the safeguards surrounding Church of England ceremonies was endorsed and adopted. Immigration judges should therefore be slow to find that such a ceremony was sham. They may still verify that the certificate is genuine and examine the parties’ intentions. The same approach applies to other religious ceremonies involving comparable examination.
5. The immigration judge had found the claimant and his wife unsatisfactory witnesses and was suspicious of the documents, but had not found that the marriage was one of convenience. The Church of England certificate was sufficient evidence that a valid marriage had taken place. The claimant had also produced a valid passport. The Tribunal’s conclusion that there was no right of appeal was therefore legally flawed.
6. The claim against the Secretary of State was dismissed. Costs were divided according to the period before and after cancellation of the removal directions, with the remaining costs directions adjourned generally.

• First-tier Tribunal (Immigration and Asylum Chamber): dismissed the claimant’s appeal on a preliminary jurisdictional issue on 20 May 2010.
• High Court (Administrative Court): quashed that decision and declared that the claimant had a right of appeal under regulation 26(3) of the Immigration (European Economic Area) Regulations 2006.