Suzia Abdin v Entry Clearance Officer, Dhaka

A marriage celebrated outside England and Wales is void under section 11(d) of the Matrimonial Causes Act 1973 where it is actually polygamous and either party was then domiciled in England and Wales. The Private International Law (Miscellaneous Provisions) Act 1995 removed the former invalidity of potentially polygamous marriages where neither party already had another spouse. It did not validate actually polygamous marriages.

An applicant under the Immigration Rules must establish every mandatory requirement, including adequate accommodation. An error concerning the existence of family life under Article 8 does not require the appeal to be allowed unless it could have affected the proportionality outcome.

The appellant, a Bangladeshi citizen, applied for entry clearance for herself and three children to join her British-citizen husband in the United Kingdom. At the time of their marriage in Bangladesh, his English divorce from his first wife had not been finalised.

The First-tier Tribunal dismissed the appeal. It found that the sponsor had acquired an English domicile of choice, that the marriage was actually polygamous and void in English law, and that the Immigration Rules were not met. It also rejected the accommodation and Article 8 claims.

On appeal, the Upper Tribunal considered whether the 1995 Act had altered the effect of section 11(d) for an actually polygamous marriage, whether the domicile finding was sustainable, and whether errors in the Article 8 assessment were material.

1. The appeal was dismissed. The First-tier Tribunal had made no material error of law, and its dismissal of the entry-clearance appeal was upheld.

2. The evidence entitled the First-tier Tribunal to find that the sponsor had not divorced his first wife before marrying the appellant. The later marriage was therefore actually polygamous. Although the sponsor retained Bangladeshi nationality, renewed a Bangladeshi passport and visited Bangladesh, the respondent discharged the burden of showing that he had acquired a domicile of choice in England and Wales. His British citizenship, long residence in the United Kingdom, citizenship applications for his children and declaration that he was permanently settled there were weighty factors.

3. Section 5(1) of the Private International Law (Miscellaneous Provisions) Act 1995 did not repeal section 11(d) of the Matrimonial Causes Act 1973. The statutory amendment concerned marriages which were de facto monogamous or potentially polygamous at inception. It did not affect actually polygamous marriages. Accordingly, because the sponsor was domiciled in England and Wales when he entered the marriage while still married to another person, the marriage was void under section 11(d).

4. CB (Validity of Marriage) Brazil [2008] UKAIT 00080 did not assist the appellant. It concerned the form of a proxy marriage and did not concern polygamy or capacity to marry.

5. The accommodation requirement was mandatory. The First-tier Tribunal had given advance notice that accommodation was in issue and permitted the sponsor to address it. Its finding that the asserted tenancy had not been established was unchallenged in substance and independently defeated the Immigration Rules appeal.

6. The First-tier Tribunal erred in finding that no family life had been established, given the British passports issued to the children and the absence of any challenge to paternity in the refusal decision. The error was immaterial. The evidence did not show that refusal would disproportionately interfere with family life, which had been conducted through visits, or that the children’s best interests required relocation from Bangladesh.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appeal on error of law and upheld the First-tier Tribunal’s decision.
• First-tier Tribunal: on 30 November 2011, dismissed the appellant’s appeal against the refusal of entry clearance under the Immigration Rules and Article 8.