Saheed Gbadebo Kareem v Secretary of State for the Home Department

For EU free-movement purposes, whether a person is a spouse of a Union citizen is determined, where it is disputed, by the national law of the Member State of that citizen’s nationality. The host state cannot determine marital status solely by its own law.

A marriage certificate will usually prove the relationship only if issued by an authority competent under the registration law of the place of marriage. Otherwise, the claimant must prove that a marriage was contracted. Reliable evidence is required both of the relevant foreign law and of its practical application. The guidance concerns marriage only, not civil partnerships or durable relationships.

The Nigerian appellant claimed a right of residence as the spouse of a Dutch national working in the United Kingdom. He relied on a Nigerian customary proxy marriage, at which neither party was present, and on a document headed Native Law & Custom Marriage Certificate.

The Secretary of State disputed that the marriage had been proved. The First-tier Tribunal’s determination was set aside for an error of law, and the Upper Tribunal re-made the appeal. The central issues were which national law governed the claimed marital status for EU purposes and whether the evidence established a marriage recognised by that law.

1. The appeal was dismissed. The appellant had not proved that he was in a marital relationship with the Dutch qualified person and could not derive EU residence rights on that basis.

2. EU law leaves the definition of marital relationships to Member States. In a dispute about whether a Union citizen has contracted a marriage, the governing law is ordinarily that of the Member State of the Union citizen’s nationality. That approach protects the citizen’s free-movement rights from inconsistent determinations by different host states.

3. Article 10(2)(b) of Directive 2004/38/EC permits proof of family status by a document attesting to the relationship. A certificate normally suffices only if issued by a competent authority. A document merely labelled a marriage certificate has no such presumptive force unless its issuer had legal authority to create or confirm the facts recorded.

4. Where no competent certificate is produced, the Tribunal must determine on other evidence whether a marriage was contracted. Foreign law is a matter for evidence. Legal texts and assertions without independent, reliable evidence of how the relevant law is understood and applied will ordinarily fail to discharge the burden of proof.

5. Dutch law was therefore the starting point. On the material available, the Tribunal could not conclude that the Dutch legal system would recognise the claimed proxy customary marriage. The purported Nigerian certificate was not shown to have been issued by a competent authority. The remaining evidence did not satisfactorily prove essential matters for a Nigerian customary marriage, including parental consent and dowry, and was insufficient to establish recognition in Nigeria.

6. The First-tier Tribunal determination was set aside and the appeal against the EEA decision of 7 September 2012 was re-made and dismissed.

• Upper Tribunal (Immigration and Asylum Chamber): set aside the First-tier Tribunal determination for an error of law and re-made the appeal, dismissing it.
• First-tier Tribunal: its determination was set aside; no citation is stated in the judgment.
• Secretary of State: made the EEA decision of 7 September 2012 challenged by the appellant.