The Secretary of State for the Home Department v Shirley Nana Ama Cudjoe

For the purposes of the Immigration (European Economic Area) Regulations 2006, whether a proxy marriage gives an applicant the status of spouse must be assessed under the law of the Union citizen’s state of nationality. The applicant bears the burden of proving that the overseas proxy marriage was valid under the law of its place of celebration and that both parties were free to marry.

A certificate issued by a competent authority may found a statutory presumption of validity, but the applicant must establish the certificate’s reliability and the authority’s competence. Other reliable evidence may prove the marriage. Where a prior divorce affects capacity, its validity under the law of the country where it occurred must also be proved.

The Secretary of State had refused Shirley Nana Ama Cudjoe a residence card as the spouse of a Dutch national exercising Treaty rights. The First-tier Tribunal allowed her appeal, finding that her husband’s prior Ghanaian customary marriage had been dissolved and that their Ghanaian proxy marriage was valid.

In an earlier error-of-law decision, the Upper Tribunal set aside only the First-tier Tribunal’s finding that the marriage was recognised by Dutch law. The preserved findings established both the valid Ghanaian divorce and the validity of the proxy marriage under Ghanaian law.

On remaking, the issue was whether the proxy marriage was valid for Dutch law and therefore made the claimant a spouse under the Immigration (European Economic Area) Regulations 2006.

1. The appeal was allowed on remaking. The claimant’s Ghanaian proxy marriage was recognised as valid under Dutch law. She was consequently the spouse and family member of a Dutch national who was a qualified person, and was entitled to a residence card under Regulation 17(1) of the Immigration (European Economic Area) Regulations 2006.

2. The Tribunal applied Kareem (Proxy marriages – EU law), [2014] UKUT 00024 (IAC), and TA and Others (Kareem explained) Ghana, [2014] UKUT 00316 (IAC). The marital relationship for this purpose had to be examined under Dutch law, as the law of the Member State of the Union citizen’s nationality.

3. On the accepted expert evidence, Dutch law ordinarily recognised a proxy marriage concluded abroad if it was valid under the law of the place of celebration, the parties were free to marry, and no public-policy exception applied. A valid foreign marriage certificate issued by a competent authority could give rise to a statutory presumption of validity. The person relying on it nevertheless bore the burden of proving its reliability and the authority’s competence. Proof was not confined to a marriage certificate.

4. The preserved findings and Ghanaian official evidence established both the validity of the Ghanaian marriage and the husband’s freedom to marry. The expert evidence also established that Dutch public policy did not prevent recognition of an overseas proxy marriage. Registration with Dutch authorities was procedural and was not a constitutive requirement of validity.

5. The Tribunal gave significant weight to the unchallenged qualified expert report. The lack of translations of its Dutch source materials did not materially reduce its weight; foreign law was a factual matter to be proved by expert evidence, not by the Tribunal’s own interpretation of translated primary materials. The Secretary of State’s failure to obtain contrary expert evidence did not itself enhance the report’s weight.

• Upper Tribunal (Immigration and Asylum Chamber): The First-tier Tribunal’s decision was set aside for material error of law only insofar as it found that the proxy marriage was valid under Dutch law. The preserved findings were that the prior marriage had been validly dissolved and that the Ghanaian proxy marriage was valid under Ghanaian law.
• First-tier Tribunal: Allowed the claimant’s appeal against the refusal of a residence card. Its determination was promulgated on 15 September 2014.