Zeeshan Javed v The Secretary of State for the Home Department

A ceremony under section 20 of the Marriage (Scotland) Act 1977 does not determine whether an earlier overseas ceremony was a valid marriage. If the earlier marriage was not valid or recognised in Scots law, the parties become married from the date of the section 20 ceremony. If it was already valid and recognised, their marital status is unchanged, although the resulting documentation may establish it no later than that date.

A party relying on an earlier overseas marriage bears the burden of proving its formal validity. A Scottish section 20 certificate and foreign registration documents which merely repeat the parties’ assertions do not prove that an overseas ceremony occurred or was valid.

Zeeshan Javed, a Pakistani national, sought settled status under the EU Settlement Scheme on the basis of retained rights following his divorce from a Bulgarian national. He had to show that the marriage had lasted at least three years before proceedings for its termination began.

The parties had an Islamic ceremony in Birmingham on 10 October 2016. They later underwent a ceremony in Scotland under section 20 of the Marriage (Scotland) Act 1977 on 2 May 2019, which was dissolved on 23 July 2021. The appellant contended that an additional Skype ceremony in Pakistan on 10 October 2016 created a marriage recognised in Scots law.

The First-tier Tribunal, in a decision dated 9 March 2023, rejected that contention. The central issue was whether a Pakistani marriage in 2016 had been established.

1. Appeal dismissed. The First-tier Tribunal made no error of law in finding that a Pakistani marriage in 2016 had not been established. Accordingly, no marriage before 2019 could start the relevant three-year period for the EU Settlement Scheme.

2. Section 20 of the Marriage (Scotland) Act 1977 addresses cases in which parties have undergone an overseas ceremony but are not, or cannot prove that they are, validly married in Scots law. Where the earlier marriage was not valid or recognised, the section 20 ceremony creates a valid Scots marriage from its own date. Where the earlier marriage was already valid and recognisable, it neither revokes nor replaces that marriage. Its documentation can establish the parties’ status no later than the date of the Scottish ceremony. The process itself does not resolve the underlying doubt about the earlier ceremony.

3. The appellant bore the burden of proving, on the balance of probabilities, that a marriage in Pakistan took place and was formally valid there. The Birmingham Islamic ceremony was not formally valid in any part of the United Kingdom. There was no evidence that Pakistani law recognised a marriage said to occur in Pakistan where neither party, representative, nor officiant was present there.

4. The Bulgarian certificate and the Scottish section 20 certificate did not prove a Pakistani marriage. The former lacked evidence of the basis on which Bulgarian authorities accepted the asserted date and place. The latter merely repeated the parties’ statutory declaration. There was no Pakistani certificate, evidence of the location, witnesses, dower, or circumstances of the asserted second ceremony, or evidence that a valid 2016 marriage had been dissolved.

• Upper Tribunal (Immigration and Asylum Chamber): appeal dismissed; the First-tier Tribunal had made no error of law.
• First-tier Tribunal: Judge Debra Clapham rejected the appellant’s grounds in a decision dated 9 March 2023.