The Secretary of State for the Home Department v TA & Ors

For the purposes of the Immigration (European Economic Area) Regulations 2006, whether an asserted spouse of an EEA national is in a marital relationship must be determined under the law of the Member State of that national’s citizenship. A marriage certificate issued in the country of celebration does not remove the need to establish recognition under that legal system.

A person whose marriage is not so recognised may nevertheless be an extended family member if they prove a durable relationship. The Secretary of State must then exercise the discretion to issue a residence card. The Tribunal cannot make that discretionary decision in the first instance.

The claimants, Ghanaian nationals, applied for EEA residence cards as the non-EEA-national family members of a Dutch national. The first claimant relied on a proxy marriage contracted in Ghana. Her two children were not the Dutch national’s biological children.

The First-tier Tribunal allowed the appeals under the Immigration (European Economic Area) Regulations 2006, finding the marriage valid. The Secretary of State appealed on the ground that the Tribunal had not applied Kareem (Proxy marriages – EU law) [2014] UKUT 24. The central issue was whether the marriage had to be recognised by Dutch law and, if not, what consequence followed for the residence-card applications.

1. Appeals allowed to a limited extent. The First-tier Tribunal erred in law by deciding that the proxy marriage was valid without considering the law of the Netherlands, the Member State of the Union citizen sponsor’s nationality. Its decision was set aside.

2. Following Kareem (Proxy marriages – EU law) [2014] UKUT 24, the question whether an applicant is the spouse of an EEA national for EU-law purposes must be governed by the legal system of the Member State from which the Union citizen derives free-movement rights. The relevant passages in Kareem had to be read as a whole. A certificate issued by a competent authority in the country of celebration may evidence a marriage, but it does not itself decide whether the relationship is a marriage for these purposes.

3. There was no evidence that Dutch law recognised the proxy marriage. The first claimant therefore could not establish that she was a family member under Regulation 7.

4. However, Regulation 8(5) was satisfied. A durable relationship is determined case by case. The unchallenged findings that the relationship was genuine and subsisting, together with the evidence and the marriage ceremony, established that the first claimant was the sponsor’s durable partner and thus an extended family member.

5. Under Regulation 17(4), the Secretary of State retains discretion whether to issue an extended family member a residence card. Applying FD (EEA discretion – basis of appeal) [2007] UKAIT 49 and Ihemedu (OFMs – meaning) [2011] UKUT 00340 (IAC), the Tribunal could not exercise that discretion before the Secretary of State had done so. The first claimant’s appeal was therefore allowed because the decision was not in accordance with the law. The children’s appeals were allowed to the same extent because their applications depended on their mother’s application.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the Secretary of State’s appeals, set aside the First-tier Tribunal’s determination, and substituted decisions allowing the claimants’ appeals only to the extent that their residence-card applications remained outstanding.
• First-tier Tribunal: Allowed the claimants’ appeals under the Immigration (European Economic Area) Regulations 2006 in a determination promulgated on 22 April 2014.