Awuku v Secretary of State for the Home Department

For EEA family-member purposes, EU law does not prescribe an autonomous rule for determining the formal validity of a marriage. That question is governed by the host State’s domestic law, including its private international law rules. Under the law of England and Wales, formal validity generally follows the lex loci celebrationis: a proxy marriage is valid if recognised by the law of the place of celebration, absent contrary legislation or public policy. The law of the EU national’s State of nationality does not displace that rule. The Upper Tribunal’s contrary approach in Kareem was wrong. The appeal was allowed on that issue.

The appellant, a Ghanaian national, married a German national by proxy in Ghana under customary law and applied for an EEA residence card as her spouse. The Secretary of State refused the application.

The First-tier Tribunal allowed the appeal, accepting the marriage as valid under Ghanaian law and finding removal disproportionate under Article 8. The Upper Tribunal allowed the Secretary of State’s appeal, applying Kareem and requiring consideration of German law. The Court of Appeal considered whether the formal validity of the marriage was governed by the law of Germany, whether German recognition was required, and whether the Article 8 issue had been properly addressed.

1. Disposition. The Court of Appeal allowed the appeal on Ground 1. Grounds 2 and 3 did not arise for consideration.
2. Applicable conflict rule. Under the law of England and Wales, the general rule is that the formal validity of a marriage is governed by the law of the country where it was celebrated. The law of the place of solemnisation determines the validity of the ceremony: Sottomayor v De Barros (No.1) (1877) 3 P.D. 1. A proxy marriage is treated as valid in England if recognised by the local law, and is not contrary to public policy merely because it was conducted by proxy: Apt v Apt [1948] P. 83. The same approach had been applied in the EEA context in CB (Validity of Marriage: proxy marriage) Brazil [2008] UKAIT 00080.
3. EU law. The substantive law of marriage falls outside EU competence, subject only to the limited possibility of relevant family-law measures under Article 81(3) TFEU. No such measures applied. The Citizens Directive contained no independent rule for determining the formal validity of marriage. Its treatment of registered partnerships supported the conclusion that recognition questions were left to the domestic law of the host Member State.
4. Kareem. The Upper Tribunal in Kareem [2014] UKUT 24 (IAC) had created a new private international rule requiring reference to the law of the EU national’s State of nationality. That reasoning was flawed. The connection between nationality and free-movement rights did not mean that marital status was governed by nationality law. Nationality and marital status were distinct matters. Nor did the possibility of differing outcomes between Member States justify the new rule, since such differences could arise under either approach.
5. Accordingly, there was no reason to require evidence that German law recognised the Ghanaian proxy marriage. The court did not determine the separate German-law or Article 8 grounds.

• Court of Appeal (Civil Division): allowed the appeal on the issue of the law governing formal validity of the marriage; the remaining grounds did not arise.
• Upper Tribunal (IAC): on 3 June 2014 allowed the Secretary of State’s appeal, holding that German law governed recognition of the marriage and that the Article 8 conclusions could not stand.
• First-tier Tribunal: on 12 March 2014 allowed the appellant’s appeal, accepting the Ghanaian marriage as valid under local law and finding removal disproportionate under Article 8.
• Secretary of State: refused the residence-card application on 28 November 2013.