United Kingdom Asylum and Immigration Tribunal

LS (Mut'a or sighē) Iran [2007] UKAIT 00072

ASYLUM AND IMMIGRATION TRIBUNAL

Date of hearing: 25 May 2007

Date Determination notified : 25 July 2007

Before

Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal Immigration Judge De Haney

Immigration Judge McAll

Between

LS	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

For the Appellant: Mr Bhatti, of Just Immigration Services For the Respondent: Mr O'Leary, Home Office Presenting Officer

DETERMINATION AND REASONS

The Islamic institution of mut?a or sighe is in its essence neither permanent nor exclusive. It is not marriage within the meaning of the Immigration Rules, and its existence does not imply a relationship continuing or intended to continue beyond its termination.

1. The appellant, a citizen of Iran, appealed to an Immigration Judge against the decision of the respondent on 3 October 2006 refusing her entry clearance to the United Kingdom as the spouse of the sponsor. The Immigration Judge dismissed her appeal. The appellant sought and obtained an order for reconsideration. Thus the matter comes before us.
2. The sponsor came to the United Kingdom in June 2003 and was granted refugee status the following month. Before leaving Iran he had entered into what has been called a "temporary marriage" with the appellant for a period from 15 March 2003 to 13 April 2006. The sponsor has not, we understand, seen the appellant since he left Iran. He has made a number of attempts to see her in either Syria or Turkey, but those attempts have been unsuccessful because the appellant has not been granted a visa to leave Iran.
3. Following the expiry of the temporary marriage, the sponsor went to Turkey and, because the parties could not meet, he telephoned her from there and it is said that the result of that telephone call was a valid further temporary marriage, the contract of which we have seen. It was registered on 22 April 2006 and expired on 22 April 2007. The date of the decision was, as we have said, 3 October 2006, that is to say during the period of the second (claimed) temporary marriage. The reasons for refusal set out in the notice of decision are extensive and are as follows. First, the Entry Clearance Officer was not satisfied that the appellant met the requirements of paragraph 281 of the Statement of Changes in Immigration Rules, HC 395 (which relate to entry clearance with a view to settlement as a spouse), because he was not satisfied that she was married to the sponsor, nor that she and the sponsor had met, nor that she and the sponsor intended to live permanently with each other as husband and wife, nor that the marriage was subsisting, nor that there would be adequate accommodation and maintenance for them without recourse to public funds. Secondly, the Entry Clearance Officer was not satisfied that the appellant met the requirements of paragraph 290 of the Immigration Rules (which relates to entry clearance for marriage and settlement) for the same reasons, with the exception that the objection that the parties are not married does not apply in this case. Thirdly, the Entry Clearance Officer was not satisfied that the appellant met the requirements of paragraph 352A of the Immigration Rules (which relates to entry clearance for settlement as the spouse of a refugee), because he was not satisfied that the parties were married or that any marriage did not take place after the sponsor left Iran in order to seek asylum, nor was he satisfied that each of the parties intended to live permanently with the other as his or her spouse and that the marriage was subsisting. The reasons given in the notice of decision for those views include that proxy marriages are not recognised in the United Kingdom and that the sponsor appeared to him to have been in the United Kingdom when the second claimed temporary marriage took place. The Entry Clearance Officer also took the view that the evidence of contact between the appellant and the sponsor during the three years of their separation was inadequate to prove any genuine subsisting relationship.
4. An explanatory statement issued for the purposes of the appeal contains the following further observations:

"I can see that the appellant and sponsor have met and that they intend to live together as they have now provided evidence of them together and of an ongoing relationship. The matter that remains a concern to me is now their legal relationship. Whilst a temporary marriage is legal in Iran the temporary marriage entered into expired and was only renewed when the sponsor was in the UK. I am not satisfied that the renewal has any legal validity therefore as the sponsor was not present in a country where either proxy or temporary marriage was recognised. The appeal does not dispute the fact that the lack of maintenance and accommodation available, but instead relies upon the application falling within the parameters of paragraph 352A of the Immigration Rules. Whilst there was a relationship and temporary marriage before the sponsor's flight I am not satisfied that forming a temporary marriage is indicative at the time of an intention to live permanently together and therefore to form a new family unit. No explanation has been offered as to why only a temporary marriage had been entered into and I am not therefore satisfied that the appellant and sponsor formed a family unit prior to the sponsor's flight. In the round I am not satisfied that the appellant meets the requirements of paragraph 352A of the Immigration Rules.

The application then has to be considered either as a spouse or a fiancée. Both of these categories carry a requirement to be able to maintain and accommodate the appellant from within the relationship without recourse to additional public funds. No evidence has been provided to show that this is the case. I have also taken account of the provisions of Article 8 of the Human Rights Act. I consider that refusing this application is justified and proportionate in the exercise of the immigration control. I note that refusing this application will not interfere with family life, for the purposes of Article 8(1) as I am not satisfied that you have formed a family unit and I am satisfied that steps could be made in the future which would enable the appellant to travel to the UK without having recourse to additional public funds."

5. Paragraph 352A of the Immigration Rules is, so far as material, as follows:

"352A. The requirements to be met by a person seeking leave to enter or remain in the United Kingdom as the spouse or civil partner of a refugee are that:

(i) the applicant is married to or the civil partner of a person granted asylum in the United Kingdom; and

(ii) the marriage or civil partnership did not take place after the person granted asylum left the country of his former habitual residence in order to seek asylum; and

…

(iv) each of the parties intends to live permanently with the other as his or her spouse or civil partner and the marriage or civil partnership is subsisting; and

… ."

6. Before the Immigration Judge there was no appearance by or on behalf of the respondent, who has thus been presumed to have relied solely on the arguments deployed in the notice of refusal and the explanatory statement. The Immigration Judge considered the material before him, which included oral evidence from the sponsor. He noted that, in order to succeed in this appeal, the appellant needed to show either that she was married to the sponsor or that she met the requirements of paragraph 290. If the appellant was at the date of the decision married to the sponsor, then, if her marriage pre-dated the sponsor's departure from Iran she might succeed under paragraph 352A; but, if her marriage post-dated the sponsor's departure, she could be admitted if she met only the requirements of paragraph 281. In that context, the material parts of his determination are as follows:

"41. However, I am faced with the fact that the temporary marriage has expired. It is a matter of fact that the second marriage document was not signed by the Sponsor and had to have been signed by proxy. This would have been a new temporary marriage because the previous marriage had expired.

42. For the Appellant to be able to enter the UK under Paragraph 352A HC 395 the marriage must not take place after the Sponsor had left Iran. A temporary marriage can be extended if both parties are in agreement but this does involve the signing of a new marriage contract.

43. I find that this new 'temporary marriage' would not satisfy paragraph 352A(ii) HC 395 because the marriage took place after he had been granted asylum and after he had left his former habitual residence. The requirements of the Rules are not therefore satisfied.

44. I turn now to the question of whether the Appellant could enter the UK under paragraph 290 HC 395. The parties can demonstrate an intention to live together and marry but the Sponsor's accommodation is paid for by Housing Benefit as the Sponsor is unable to work due to illness. It was not submitted that the Sponsor could personally maintain the Appellant without recourse to public funds.

45. It was submitted that the Appellant would easily obtain work due to her qualifications. There is no evidence that she would obtain work or has a job offer and I am not satisfied that the requirements of paragraph 290 HC 395 are satisfied.

46. The Appellant similarly cannot satisfy the requirements of maintenance and accommodation relating to paragraph 281 HC 395."

The Immigration Judge then went on to consider the arguments under Article 8 and determined them too against the appellant.

7. The grounds for reconsideration assert, firstly, that "none of the issues upon which this appeal is dismissed were put to the sponsor to deal with", and that "the issues involved were not put to the appellant which renders the decision unsustainable". The second ground is that the Immigration Judge attached too much weight to the fact that there was a period of time during which the parties were not contractually bound to one another, when that period was only nine days. The third ground is that the Immigration Judge did not have proper regard to the refugee status of the sponsor and in those circumstances should have found that an extension of temporary marriage by proxy should have been allowed. It is argued in the grounds that terms of the first marriage contract which empower the wife with the right of substitution and enable her to grant herself the remainder of the marriage period or end the temporary marriage are to be interpreted as allowing the marriage to be extended. It is further submitted that "it is possible that after speaking to and agreeing with the sponsor, the appellant probably discussed it with her family members and it took them some time to get an appointment with the local priest which resulted in the temporary marriage being registered on 22/4/2006, nine days after expiry on 13/04/2006". The fourth ground is that the Immigration Judge should have found that the second temporary marriage was a mere extension of the first and so enabled the appellant to meet the requirements of paragraph 352A and that the Immigration Judge erred in applying authorities on Article 8 relating to removal to a case where what was sought was entry clearance.
8. We heard submissions on the grounds from Mr Bhatti and Mr O'Leary. Neither adduced or sought to adduce any further evidence.
9. So far as concerns the first ground, we are satisfied that it is entirely lacking in merit. The notice of decision and the explanatory statement make it absolutely clear that the issue was whether the parties were married within the meaning of paragraph 281 or paragraph 352A of the Immigration Rules. The Immigration Judge decided that issue on the evidence before him which, we note, included no evidence of foreign law that could have assisted him in determining the appeal in favour of the appellant, upon whom lay the burden of proof. In those circumstances it is almost inevitable that his decision was against the appellant: certainly there is no procedural unfairness.
10. In order to consider the other grounds we need to say something about the type of relationship into which the appellant and the sponsor had entered. Like the Immigration Judge, we have not had the benefit of any evidence about it, but we can take judicial notice of its main features.
11. Temporary marriage or mut?a (the word means "enjoyment") is forbidden by all the Sunni schools and most of the Shi?ites. It is allowed only by the Ithna Ashari Shi?ites, with the consequence that it is most often encountered in Iraq and Iran, where the institution is called sighe. Its purpose is to render lawful what would otherwise be unlawful, and to make any children legitimate. The requirements for mut?a are agreement to the relationship for a period of time (which may be from a fraction of a day to many years) and mahr or dower paid to the woman. A woman may be party to only one mut?a or marriage; a man is unrestricted in the number of times he may be simultaneously the subject of this relationship. There is apparently Privy Council authority (Shoharat Singh v Mst Jafri Bibi (1914) 17 Bom L.R. 13) that a relationship begun with the appropriate intention for mut?a continues as such during the whole period of cohabitation if no term is specified in the contract; but in other circumstances the better view is that nikah cannot be construed from a mut?a for no fixed period, because the intentions, as well as the effects on the man's capacity to enter into further matrimonial contracts, are different. Mut?a ends by expiry of the term. The man has no right to divorce the woman during the terms, but may release her from further compliance: this is called hibae muddat, a gift of the term. The woman has no power to terminate the relationship. The mahr is payable in full if there has been cohabitation or if the relationship has been consummated.
12. We do not regard the question of whether a temporary marriage can be concluded by proxy as so clear as capable of being the subject of judicial notice. In particular, there is no evidence at all relating to the issue whether a temporary marriage can be created by a telephone call from Turkey. That feature of itself would be enough to cause the appeal to be dismissed if it depended on proof before the Immigration Judge that the second contract constituted a valid marriage between the appellant and the sponsor. There was no evidence as to its validity.
13. The Immigration Judge did not, however, take that point: instead, he took the view that even if the second contract was a valid marriage, it took place after the sponsor left Iran and therefore could not avail to the appellant for the purposes of paragraph 352A: the appeal was therefore, in his view, bound to fail because she could not meet the maintenance and accommodation requirements of paragraphs 281 and 290.
14. So far as the structure of that reasoning process is concerned, it seems to us that the Immigration Judge can have made no error. On the evidence there was no basis for saying that the appellant could meet the requirements of paragraphs 281 and 290. Paragraph 352A was therefore indeed crucial. The argument adduced on the appellant's behalf is that the Immigration Judge should have treated the second contract not merely as valid but in truth the continuation of the first: it is said not merely that the appellant and sponsor were married at the date of the decision, but that their marriage had effectively been in existence since before the date of the sponsor's departure from Iran three and a half years previously.
15. We are entirely unable to accept that submission. The period of time between the termination of the first mut?a and the inception or claimed inception of the second is entirely irrelevant: the only important fact is that there was an interval, during which the parties were not married to each other, and during which the appellant was free to contract a marriage with somebody else. If the second contract was effective, there can be no doubt that it was the contract of a new temporary marriage, not a continuation of the old marriage.
16. Mr Bhatti submitted, on the basis of the grounds, that there were terms in the contracts indicating the possibility of an extension, and that for that reason the second contract should be regarded merely as the extension of the first. We are unable to accept his submissions. The relevant clause of the contract has been translated as follows:

"By a separate binding contract the husband irrevocably empowered the wife with right of substitution that in case the husband fails to meet his religious responsibilities as approved mutually, the wife can grant herself the remainder of the marriage period and end the temporary marriage."

17. To regard that clause as one relating to the continuance or perpetuation of the temporary marriage is obviously contrary to its wording. The effect of that clause is entirely clear. It records a contract separate from that of the marriage itself, by which the parties gave to the woman a power which the incidents of mut?a do not give her: that is, to dissolve the marriage. As the man's right is expressed as giving the term to the woman, so the appropriate phrase for the woman is that which is found in the contractual term we have cited. There is nothing else before us giving any reason to suppose that at the time of making either of these contracts the parties intended or envisaged that they would be the subject of continuance or renewal.
18. A further question raised on the facts of this case is whether a mut?a is capable of being regarded as a marriage for the purposes of the Immigration Rules. This issue was not conceded by the respondent, who conceded merely that temporary marriage was legal in Iran. As we have said, mut?a is not recognised by the vast majority of Islamic schools of jurisprudence. It has two features that distinguish it particularly from marriage as understood in most cultures, including both those of Western Europe and those of the Sunni division of Islam. One is that it is by nature essentially temporary: it is not of the nature of mut?a to be dissolved by death (although death during the term does dissolve the relationship); the characteristic of mut?a is that it is terminated by mere effluxion of time. Secondly, the relationship between the man and the woman in mut?a is, so far as the man is concerned, not exclusive. His being a party to mut?a has no effect on his ability to contract another similar arrangement with another woman, or to become a party to a nikah or regular marriage. As is well known, the classic Islamic rules restrict a man to four wives. There is no doubt that women with whom he has the contract of mut?a do not count towards the four.
19. Notions of marriage naturally vary between cultures, but we do not think that it would be wrong to regard permanence and exclusivity as essential features of the institution. Both may be subject to variable understanding or even undermining. Rules allowing restricted polygamy, and rules permitting divorce, are found in many societies. But it does not seem to us that an institution which by its nature is neither permanent or exclusive can properly be regarded as marriage. If we had had to decide the issue, therefore, we should have further held that mut?a is not marriage for the purposes of the Immigration Rules.
20. In the grounds for reconsideration, the appellant's human rights are asserted rather casually at the end of the last ground. The grounds on this issue are without merit. There is no reason to suppose that the process, of determining whether an individual's situation is such that proportionality demands an outcome in his case contrary to that which the Immigration Rules suggest, is different according to whether the claimant is faced with removal or with refusal of entry. The position in the present case is that the parties chose an arrangement that was impermanent and which left them free to make other arrangements after it had concluded. Nothing in the respondent's decision prevents the appellant from obtaining entry to the United Kingdom. It is her application as a spouse that has been refused. No Convention right of hers is shown to be breached by the decision against which she appeals.
21. In summary, we find that the Immigration Judge was right in his conclusion that, because the second contract was not a continuation of the previous marriage, the contract upon which the appellant relied on the date of the decision did not pre-date the sponsor's departure from Iran. In any event, however, there was no basis upon which he could have found in the appellant's favour that the second contract was validly entered into by telephone from Turkey, and, further, in our view mut?a is not "marriage" for the purpose of the Immigration Rules in any event.
22. For the foregoing reasons we find that the Immigration Judge made no material error of law and we order that his determination, dismissing the appeal, shall stand.

C M G OCKELTON

DEPUTY PRESIDENT

Date: