England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM UPPER TRIBUNAL (IAC)
UPPER TRIBUNAL JUDGE ESHUN
IA/02332/2014

		Royal Courts of Justice Strand, London, WC2A 2LL
		23/03/2017

LORD JUSTICE LLOYD JONES :

1. This is an appeal by Mr. Albert Awuku ("the appellant") against a decision of Upper Tribunal Judge Eshun promulgated on 3 June 2014 allowing the Secretary of State's appeal against a decision of First-tier Tribunal Judge Raikes promulgated on 12 March 2014, in turn allowing an appeal against the decision of the Secretary of State for the Home Department ("the Secretary of State") made on 28 November 2013 refusing the appellant's application for a residence card as a confirmation of a right to reside in the United Kingdom on the ground that the appellant was not the "spouse" of an EEA national for the purposes of Regulation 7 of the Immigration (European Economic Area) Regulations 2006 ("the EEA Regulations"). The decision of the Upper Tribunal is also challenged on the basis that it failed to consider Mr Awuku's rights under Article 8 ECHR when allowing the appeal.
2. The appeal comes before the court in rather unusual circumstances. In advance of a hearing before Gloster and Lloyd Jones L.JJ. and Cranston J. on 6 December 2016 the Secretary of State notified the court that she had changed her position on the appeal and now invited the court to allow the appeal by consent on the basis that a line of authority in the Upper Tribunal, including the decisions in Kareem [2014] UKUT 24 (IAC) and TA [2014] UKUT 316 (IAC), was wrongly decided. In a judgment dated 6 December 2016 the Court of Appeal adjourned the matter to be relisted with the benefit of adversarial argument from an advocate to the court.
3. We are grateful to H.M. Attorney General for nominating Miss Samantha Broadfoot QC as advocate to the court and to Miss Broadfoot and the other counsel in the case for their very helpful submissions.

Factual and Procedural Background

4. The appellant was born on 10 October 1973 and is of Ghanaian nationality. He was married by proxy in Ghana to a German national on 4 February 2013 under Ghanaian customary law. On 28 August 2013 he applied under the EEA Regulations for a residence card as a confirmation of a right to reside in the United Kingdom as the spouse of an EEA national who is exercising free movement rights. The application was refused on 28 November 2013 on the ground that the Secretary of State was not satisfied that Mr Awuku's claimed marriage was registered in accordance with the Ghanaian Marriage and Divorce (Registration) Law 1985.
5. First-tier Tribunal Judge Raikes considered Mr Awuku's appeal on the papers on 4 March 2014. On the basis of the evidence provided by the appellant, including his marriage certificate and a statutory declaration, the judge was satisfied that he was the spouse of an EEA national. The First-tier Tribunal judge based her conclusions on:

(1) The appellant's Ghanaian passport and his EEA national partner's German passport covering the period 21 February 2008 to the present day.

(2) A marriage certificate showing the date of marriage in Ghana as 4 February 2013, that the marriage was registered with the District Registrar in Ghana on 13 August 2013 and that neither party had been married prior to entering into this agreement.

(3) A statutory declaration to support the marriage and application for registration, containing the names of the parties to the marriage, their place of residence at the time of the marriage and a statement that there had been compliance with the conditions essential to the validity of the marriage in the applicable customary law. The declaration also stated that the declarants were Ghanaian by both birth and nationality and were the fathers of the appellant and the EEA national.

(4) The fact that the statutory declaration was accepted by the Registrar of Marriages who duly registered it and the existence of evidence that the notary's credentials had been authenticated by the Ghanaian authorities.

6. On this evidence the First-tier Tribunal judge found that the marriage between the Appellant and the EEA national was recognised in the country in which it took place (the lex loci celebrationis), that it was properly executed so as to satisfy the requirements of that law, and that there was nothing in the law of either party's country of domicile that restricted their freedom to enter into the marriage.
7. Although it was unnecessary for her to do so, given her finding that the appellant was a family member of the EEA national for the purposes of the EEA Regulations, the First-tier Tribunal judge also considered whether Article 8 ECHR was engaged by the Home Office decision and whether there was any breach of the appellant's Article 8 rights. The judge applied the five-stage test outlined in Razgar [2004] UKHL 27 and came to the conclusion that any removal would be a disproportionate breach of the Article 8 rights of the appellant and his spouse.
8. Permission to appeal to the Upper Tribunal was granted on the basis that the judge had erred in failing to have regard to the decision in Kareem [2014] UKUT 24, which required her to consider whether the marriage was recognised in the EEA national's home State, in this case Germany.
9. The appeal was heard by Upper Tribunal Judge Eshun on 22 May 2014. Judge Eshun allowed the Secretary of State's appeal on the basis that the effect of Kareem is that, in this case, it was for German law to determine whether the appellant's marriage by proxy to his EEA national spouse was valid and recognised. In the absence of any evidence that his marriage was recognised by German law, the appellant had failed to discharge the burden of proof on him and the decision of the First-tier Tribunal could not stand. In addition, he held that in the light of a lack of evidence as to the validity of the appellant's marriage under German law, Judge Raikes's conclusions on Article 8 could not stand.
10. Permission to appeal to the Court of Appeal, limited to the Kareem issue, was granted by Moore-Bick LJ on 24 October 2014. On a renewed application the appellant was also granted permission to appeal on another ground relating to the application of Article 8 ECHR. Counsel for the appellant, Mr. Zane Malik, subsequently reformulated these two grounds as three grounds of appeal. These may be restated as follows:

(1) The Upper Tribunal erred in concluding that the law by which the formal validity of the marriage is to be determined for the purposes of Regulation 7 of the EEA Regulations is the law of Germany.

(2) The Upper Tribunal erred in concluding that in the absence of evidence that German law recognises a Ghanaian marriage by proxy as valid, the marriage would not be recognised in the United Kingdom.

(3) The Upper Tribunal erred in failing to address the appellant's Article 8 claim.

Statutory Provisions

11. The recitals to Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States of 29 April 2004 ("the Citizens Directive") provide in relevant part:

"(1) Citizenship of the Union confers on every citizen of the Union a primary and individual right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaty and to the measures adopted to give it effect.

…

(3) Union citizenship should be the fundamental status of nationals of the Member States when they exercise their right of free movement and residence. It is therefore necessary to codify and review the existing Community instruments dealing separately with workers, self-employed persons, as well as students and other inactive persons in order to simplify and strengthen the right of free movement and residence of all Union citizens.

…

(5) The right of all Union citizens to move and reside freely within the territory of the Member States should, if it is to be exercised under objective conditions of freedom and dignity, be also granted to their family members, irrespective of nationality. For the purposes of this Directive, the definition of "family member" should also include the registered partner if the legislation of the host Member State treats registered partnership as equivalent to marriage.

…

(28) To guard against abuse of rights or fraud, notably marriages of convenience or any other form of relationships contracted for the sole purpose of enjoying the right of free movement and residence, Member States should have the possibility to adopt the necessary measures."

Article 2 provides in relevant part:

"Article 2 – Definitions

For the purposes of this Directive:

1) "Union citizen" means any person having the nationality of a Member State;

2) "Family member" means:

(a) the spouse;

(b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State; …

3) "Host Member State" means the Member State to which a Union citizen moves in order to exercise his/her right of free movement and residence."

Article 9 provides in relevant part:

"Article 9 - Administrative formalities for family members who are not nationals of a Member State

1. Member States shall issue a residence card to family members of a Union citizen who are not nationals of a Member State, where the planned period of residence is for more than three months."

12. The Immigration (European Economic Area) Regulations 2006 provide in

relevant part:

"7. - Family member

(1) Subject to paragraph (2), for the purposes of these Regulations the following persons shall be treated as the family members of another person—

(a) his spouse or his civil partner…"

Ground 1: The Upper Tribunal erred in concluding that the law by which the validity of the marriage is to be determined for the purposes of Regulation 7 of the EEA Regulations is the law of Germany.

The decision in Kareem

13. The decision of the Upper Tribunal in the present case followed the decision of the Upper Tribunal in Kareem (Proxy Marriages - EU Law) Nigeria [2014] UKUT 24. In that case the appellant, a Nigerian citizen, claimed to have married in a proxy ceremony in Nigeria a Dutch citizen who was resident in the United Kingdom. Although the Secretary of State accepted that the Dutch citizen was a qualified person for the purposes of the EEA Regulations 2006, she did not accept that the appellant was married as he claimed. The Upper Tribunal (Immigration and Asylum Chamber) (CMG Ockleton (Vice President), McKee UTJ and McCarthy DUTJ) concluded that the question whether a marriage had been contracted for the purposes of the EEA Regulations was governed by the law of the nationality of the EEA citizen concerned. The reasoning by which it reached this conclusion is set out in the following paragraphs:

"10. We conclude that in EU law the question of whether a person is in a marital relationship is governed by the national laws of the Member States. In other words, whether a person is married is a matter that falls within the competence of the individual Member States.

…

14. In light of the preceding considerations, the question we must answer is how we might identify which national legislation applies in a particular situation and how the relevant national legislation applies to the facts of the present case.

15. To answer this question, we start from the fact that the rights of free movement and residence stem directly from Union citizenship. According to the Treaties, a person having the nationality of a Member State is a Union citizen. It follows from these provisions that a Union citizen's rights of free movement and residence are intrinsically linked to that person's nationality of a Member State. Judgments of the CJEU indicate that where there are issues of EU law that involve the nationality laws of Member States, then the law that applies will be the law of the Member State of nationality and not the host Member State (cf Micheletti (C-369/90) [1992] ECR I-4239, para 10 & 14). This is because nationality remains within the competence of the individual Member States.

16. Spouses' rights of free movement and residence are derived from a marriage having been contracted and depend on it. In light of the connection between the rights of free movement and residence and the nationality laws of the Member States, we conclude that, in a situation where the marital relationship is disputed, the question of whether there is a marital relationship is to be examined in accordance with the laws of the Member State from which the Union citizen obtains nationality and from which therefore that citizen derives free movement rights.

17. The same conclusion may readily be reached by a different route. Within EU law, it is essential that Member States facilitate the free movement and residence rights of Union citizens and their spouses. This would not be achieved if it were left to a host Member State to decide whether a Union citizen has contracted a marriage. Different Member States would be able to reach different conclusions about that Union citizen's marital status. This would leave Union citizens unclear as to whether their spouses could move freely with them; and might mean that the Union citizen could move with greater freedom to one Member State (where the marriage would be recognised) than to another (where it might not be). Such difficulties would be contrary to fundamental EU law principles. Therefore, we perceive EU law as requiring the identification of the legal system in which a marriage is said to have been contracted in such a way as to ensure that the Union citizen's marital status is not at risk of being differently determined by different Member States. Given the intrinsic link between nationality of a Member State and free movement rights, we conclude that the legal system of the nationality of the Union citizen must itself govern whether a marriage has been contracted."

14. Kareem was followed by the Upper Tribunal (Upper Tribunal Judge O'Connor) in TA [2014] UKUT 316 (IAC). We understand that it has also been applied by the First-tier Tribunal in a number of cases.

Discussion

15. In 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 the marriage was celebrated ("the lex loci celebrationis") (Dicey, Morris and Collins on the Conflicts of Laws, 15^th Ed., (2012), Rule 73). The editors of Dicey, Morris and Collins explain (at 17-004) that a marriage celebrated in the mode or according to the rites or ceremonies required by the law of the country where the marriage takes place is, as far as formal requisites go, valid. In general the law of a country where a marriage is solemnised must alone decide all questions relating to the validity of the ceremony by which the marriage is alleged to have been constituted. (Sottomayor v De Barros (No.1) (1877) 3 P.D. 1, 5 (CA)) A marriage by proxy will be treated as valid in England if recognised by the local law, even if one of the parties is domiciled and resident in England and the power of attorney authorising the proxy to act is executed in England. The transaction is not contrary to public policy (Dicey, Morris and Collins 17-012). In Apt v Apt [1948] P. 83 the Court of Appeal upheld the decision of Lord Merriman P. at first instance ([1947] P. 127) where he stated (at p. 147):

"The celebration of marriage by proxy is a matter of the form of the ceremony or proceeding, and not an essential of the marriage; that there is nothing abhorrent to Christian ideas in the adoption of that form; and that, in the absence of legislation to the contrary, there is no doctrine of public policy which entitles me to hold that the ceremony, valid where it was performed, is not effective in this country to constitute a valid marriage."

16. In CB (Validity of Marriage: proxy marriage) Brazil [2008] UKAIT 00080 the Upper Tribunal rejected a submission that different rules should be applied to the legal framework governing validity of marriage when the issue arose in the context of immigration law. The Tribunal reaffirmed that the formal validity of a marriage is governed by the lex loci celebrationis. It upheld the decision of the Immigration Judge that since the lex loci celebrationis, Brazilian law, recognised proxy marriages, the marriage of the appellant and his wife was valid under the law of England and Wales and, as a consequence, the relevant requirements of the EEA Regulations were met.
17. In Kareem, the Upper Tribunal has, by contrast, created a new private international rule for the purposes of EU law, referring to the law of the Member State of the EU national's nationality. In doing so it has displaced the domestic rule of private international law which would normally apply. The question for consideration in the present case is whether EU law requires such an approach.
18. The starting point is that the substantive law relating to marriage is outside EU competence. As Miss White QC points out, on behalf of the Secretary of State, save to the limited extent that recognition of marriages celebrated overseas could be the subject of family law measures concerning judicial co-operation in cross-border family cases adopted in accordance with the special legislative procedure set out in Article 81(3) TFEU, EU competence does not extend to the recognition of foreign marriage. No relevant measures have been adopted pursuant to that Article and there is, accordingly, no EU law applicable to the recognition of marriages. The formal validity of marriages is left to be decided by the application of domestic law principles including domestic law rules of private international law.
19. The Citizens Directive includes no definition of "spouse" and includes no express provision as to the means by which formal validity of a marriage is to be determined. There are, nevertheless, certain indications that the formal validity of a marriage is left to be determined by the law including the private international law of the host State. Thus Recital (28) provides that in order to guard against abuse of rights or fraud, notably marriages of convenience, Member States should have the possibility to adopt the necessary measures. To my mind, Recital (5) and Article 2(2)(b) also support the view that it is for the domestic law of the host State to determine whether the qualifications for a "family member" within Article 2(2) are met. These provisions acknowledge that it is the domestic law of the host Member State which will determine whether registered partnerships should be recognised. The fact that such specific provision is made for registered partnerships when none is made for marriage is explicable by the fact that not all Member States recognise registered partnerships whereas all recognise marriage. That these issues are left to the domestic law of the host Member State is not surprising. Questions of the formal validity of marriage and similar issues will often reflect considerations of public policy which may, most appropriately, be left to the domestic law of the host Member State.
20. This is also confirmed by the travaux preparatoires to which the advocate to the court, Miss Broadfoot, has referred us. The European Parliament in its report dated 23 January 2003 sought to make significant amendments to Articles 2 and 3 of the original Commission proposal (references OJ C 270 E, 25.9.2001, p.150). In particular, the European Parliament considered that EU free movement legislation needed to reflect and respect the diversity of family relationships that exist in modern society and to include same sex relationships. In due course the Council largely rejected these proposed amendments to Articles 2 and 3 (OJ C54 E, 2.3.2004, p12 and p28). In doing so it expressly rejected the notion that the home Member State (i.e. the Member State of nationality of the qualifying EU citizen) should determine who was a "spouse" or "partner". It did so in order to avoid creating difficulties in the host Member State through reverse discrimination by effectively requiring the host Member State to recognise certain relationships which were not recognised for its own citizens.
21. Furthermore, I consider that the reasoning by which the Upper Tribunal in Kareem arrived at its conclusions is flawed. In that case the Upper Tribunal took as its starting point the proposition that rights of free movement and residence stem directly from Union citizenship, which itself is derived from citizenship of a Member State. As a result, the rights of free movement and residence of a Union citizen are intrinsically linked to that person's nationality of a Member State. Furthermore, it is well established that under international law and EU law it is for each Member State to lay down the conditions for the acquisition and loss of nationality. (See, for example Case C-369/90 Micheletti [1992] ECR I-4239 at [10] and [14]). So much is uncontroversial. However, it does not follow that, because a person's rights of free movement and residence are linked in this way to nationality of a Member State, issues as to the marital status of his or her spouse or partner must also be governed by the law of his or her State of nationality. On the contrary, nationality and marital status are clearly distinguishable. Nationality is exclusively a matter for the law of the Member State concerned. Marital status and its recognition in any given case, by contrast, are matters in respect of which the Directive contemplates that different Member States may take different views. As a result, there is no need to defer to the law of the State of nationality of the EU national when determining the marital status of his or her spouse or partner for the purposes of the Citizens Directive.
22. Moreover, the alternative route by which the Upper Tribunal in Kareem arrived at its conclusion is also open to objection. I accept that if it is open to a host Member State to determine by its law, including its rules of private international law, whether an EU citizen had contracted a marriage, this could have an effect on freedom of movement and residence within the EU. A spouse would be able to move to a Member State which recognised the marriage but not to a Member State which did not. However, similar inequalities arise if the issue is determined by the law of the State of nationality of the EU national. Mr. Malik provided the following example. Let us assume that German law recognises proxy marriages in third states and that French law does not. In those circumstances, such spouses of German nationals would enjoy rights of free movement to and residence in the United Kingdom (and indeed in other EU States) while such spouses of French nationals would not. Whether marital status is determined by reference to the law of the home State or the law of the host State, it is at risk of being determined differently by different Member States. This is an inevitable consequence of the fact that the Citizens Directive does not employ an independent rule for determining marital status. Once again, it is not a reason for conferring the power to determine marital status on the law of the Member State of nationality of the qualifying EU national.
23. More fundamentally, I consider that in cases such as the present the application of the rules of private international law in the law of England and Wales would not, on any view, result in any incompatibility with EU law. The law of England and Wales recognises proxy marriage if valid by the lex loci celebrationis. Accordingly, a spouse of an EU national who has concluded such a marriage will qualify as a family member within Article 2 of the Directive. There is no threat to EU rights here. As a result, there was simply no reason for the Upper Tribunal in Kareem to create a new rule of private international law requiring reference to the law of the State of the EU national.
24. For those reasons I would allow the appeal on Ground 1.

Ground 2: The Upper Tribunal erred in concluding that in the absence of evidence that German law recognises a Ghanaian marriage by proxy as valid, the marriage would not be recognised in the United Kingdom.

Ground 3: The Upper Tribunal erred in failing to address Mr Awuku's Article 8 claim.

25. In these circumstances Grounds 2 and 3 do not arise for consideration.

LADY JUSTICE KING:

26. I agree.

LORD JUSTICE LINDBLOM:

27. I also agree.