JO v The Secretary of State for the Home Department

A United Kingdom immigration tribunal should accept another European Union Member State’s recognition of a marriage and grant of that Member State’s citizenship. It should not investigate the genuineness of the marriage, or treat the resulting nationality as invalid, merely because it suspects that the marriage was a sham. Questions concerning the validity of that foreign marriage and nationality fall for resolution by the authorities of the Member State concerned.

Evidence of family relationship is not confined to birth certificates. A DNA profiling report is admissible and may establish the relationship where, despite identified concerns, an alternative explanation involving substitution of samples is sufficiently improbable.

The appellants appealed against the First-tier Tribunal’s dismissal, dated 24 August 2010, of their appeals from the refusal of residence cards. They claimed residence as the daughters of an Italian national exercising Treaty rights.

The sponsor also held Nigerian nationality. The First-tier Tribunal found that his marriage to an Italian national, through which he said he had acquired Italian citizenship, was a sham. It also gave little weight to delayed birth certificates and rejected the reliability of a DNA report said to establish the claimed relationships.

The Upper Tribunal considered whether the First-tier Tribunal could investigate the foreign marriage and citizenship, and whether its conclusion on the DNA evidence could stand.

1. Appeal allowed. The First-tier Tribunal erred in law by investigating whether the sponsor’s marriage to an Italian national was genuine and by concluding that Italian citizenship had been obtained through fraud.

2. The United Kingdom’s public authorities should not seek to investigate a marriage recognised as genuine under Italian law, or question the validity of Italy’s grant of citizenship on the alleged facts surrounding that grant. As a matter of comity, those issues must be explored and finally resolved in Italy. The Secretary of State accepted that the United Kingdom was bound to recognise both the marriage and the grant of Italian citizenship.

3. The Upper Tribunal agreed that the late birth certificates carried little weight. It nevertheless held that the DNA profiling report was admissible and sufficiently reliable. The relevant regulations did not require proof by birth certificate alone. The possibility that four unrelated persons had been substituted for the appellants, while theoretically possible, was so unlikely that it could be dismissed.

4. The DNA evidence established the claimed relationships. The appellants therefore satisfied the criteria for residence cards as daughters of an EEA national exercising Treaty rights under Immigration (European Economic Area) Regulations 2006, reg 7(1).

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appellants’ appeal and set aside the First-tier Tribunal’s adverse conclusions on the foreign marriage, Italian nationality and DNA evidence.

• First-tier Tribunal: Dismissed the appeals on 24 August 2010. No citation is stated in the judgment.