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

Introduction

1. By a decision promulgated on 23 December 2014, Upper Tribunal Judge Rintoul found that the First-tier Tribunal had materially erred in law when allowing the appeal of the respondent (whom we shall call the claimant) against the decision of the Secretary of State (whom we shall call the respondent), dated 8 January 2014, refusing to issue her with a residence card under the Immigration (European Economic Area) Regulations 2006 (the Regulations) as confirmation of her right of residence in the United Kingdom as the spouse of a Dutch national exercising Treaty rights. Upper Tribunal Judge Rintoul’s error of law decision is set out in full at Annex A.

2. In summary, it was found that First-tier Tribunal Judge Dineen erred by relying solely on an item of Dutch legislation entitled “Conflict of Law Rules for Marriages” to conclude that the claimant’s proxy marriage to her husband in Ghana was valid for the purposes of Dutch law. This approach was contrary to the decisions in Kareem (Proxy marriages – EU law) [2014] UKUT 00024 (IAC) ( Kareem ) and TA and Others (Kareem explained) Ghana [2014] UKUT 00316 (IAC) ( TA ).

3. It is important to note that although the decision of the First-tier Tribunal was set aside, certain findings were expressly preserved: first, that the previous customary marriage of the claimant’s Dutch husband, Mr Raymond Awuah , had been validly dissolved in 2012; second, that the proxy marriage contracted between the claimant and Mr Awuah in Ghana was valid according to the law of that country.

4. Thus, as was clearly stated in the error of law decision, the issue before us now is a narrow one: is the marriage in question valid for the purposes of Dutch law? History of directions issued by the Upper Tribunal

5. Contained within the error of law decision were clear directions relating to the provision of evidence on proxy marriages and their validity under Dutch law. As regards the crucial issue of expert evidence, specific questions were to be addressed by “either party” wishing to submit such evidence.

6. The appeal then came back before the Upper Tribunal on 26 March 2015, whereupon further directions were given, including a provision for the Respondent to put any questions about the expert opinion on Dutch law relied on by the claimant to her solicitors, in order that the relevant expert could address them.

7. The claimant’s solicitors produced a further expert report, served on 27 May 2015. Nothing by way of evidence or questions to the expert having emanated from the Respondent thus far, Upper Tribunal Judge Rintoul issued further directions to the parties on 20 July 2015. Direction 3a stated that: “Any material or expert evidence in response to the expert evidence adduced by the appellant must be served by the respondent on the appellant and on the Upper Tribunal at least 21 days before the hearing.”

8. The directions also required skeleton arguments from both parties, addressing all relevant issues including the recent apparent occurrence of registration of the marriage with the Dutch Embassy in Accra . The hearing before us

9. On the morning of the hearing, Mr Melvin, who has appeared for the Respondent throughout proceedings in the Upper Tribunal, provided us with a skeleton argument and various additional materials gleaned from the websites of the Dutch Embassy in Accra and the Netherland’s Immigration and Naturalisation Service. The service of these documents was very late in the day, and there was no explanation from the Respondent for this. Nonetheless, we admitted the skeleton argument and additional evidence. What we have made of this evidence is discussed later on in our decision.

10. The evidence we have considered in making our decision on the appeal is as follows: a) The bundle prepared by the Respondent for the appeal before the First-tier Tribunal; b) The bundle from the Appellant relied on before the First-tier Tribunal, indexed and paginated 1-109; c) The expert report, dated 25 May 2015, of Dr Ian Curry-Sumner, founder of Voorts Juridische Diensten , a legal services company based in Utrecht , the Netherlands ; d) A letter from the Ghanaian High Commission in London , dated 2 July 2014; e) Documents from the Ghanaian authorities previously submitted by the Appellant in respect of her marriage to Mr Awuah and subsequently stamped by the Dutch Embassy in Accra ; f) The Internet materials provided by Mr Melvin and referred to in the previous paragraph.

11. We were provided with the originals of the relevant Ghanaian documents.

12. The claimant and her husband attended the hearing but were not called upon to give oral evidence. Ms Ofei-Kwatia’s initial submissions

13. In her succinct opening, Ms Ofei-Kwatia relied on the expert report and submitted that it was comprehensive and sufficient for us to conclude that the claimant’s marriage was recognised under both Ghanaian and Dutch law. Relevant legal framework

14. We remind ourselves that matters of foreign law are questions of fact for us to determine and that it is for the Appellant to prove the facts relied upon in support of her case. For the reasons identified in Kareem and TA , the issue here, as noted above, is whether the claimant’s marriage is valid for the purpose of Dutch law. Paragraph [68] of Kareem states: “We make the following general observations. a) A person who is the spouse of an EEA national who is a qualified person in the United Kingdom can derive rights of free movement and residence if proof of the marital relationship is provided. b) The production of a marriage certificate issued by a competent authority (that is, issued according to the registration laws of the country where the marriage took place) will usually be sufficient. If not in English (or Welsh in relation to proceedings in Wales ), a certified translation of the marriage certificate will be required. c) A document which calls itself a marriage certificate will not raise a presumption of the marriage it purports to record unless it has been issued by an authority with legal power to create or confirm the facts it attests. d) In appeals where there is no such marriage certificate or where there is doubt that a marriage certificate has been issued by a competent authority, then the marital relationship may be proved by other evidence. This will require the Tribunal to determine whether a marriage was contracted. e) In such an appeal, the starting point will be to decide whether a marriage was contracted between the appellant and the qualified person according to the national law of the EEA country of the qualified person’s nationality. f) In all such situations, when resolving issues that arise because of conflicts of law, proper respect must be given to the qualified person’s rights as provided by the European Treaties, including the right to marry and the rights of free movement and residence. g) It should be assumed that, without independent and reliable evidence about the recognition of the marriage under the laws of the EEA country and/or the country where the marriage took place, the Tribunal is likely to be unable to find that sufficient evidence has been provided to discharge the burden of proof. Mere production of legal materials from the EEA country or country where the marriage took place will be insufficient evidence because they will rarely show how such law is understood or applied in those countries. Mere assertions as to the effect of such laws will, for similar reasons, carry no weight. h) These remarks apply solely to the question of whether a person is a spouse for the purposes of EU law. It does not relate to other relationships that might be regarded as similar to marriage, such as civil partnerships or durable relationships.”

15. The headnote of TA reads: “Following the decision in Kareem (proxy marriages – EU law) [2014] UKUT 24, the determination of whether there is a marital relationship for the purposes of the Immigration (EEA) Regulations 2006 must always be examined in accordance with the laws of the Member State from which the Union citizen obtains nationality.”

16. At paragraph [20] of TA, Upper Tribunal Judge O’Connor held: “Given that which I set out above, it is difficult to see how the Upper Tribunal in Kareem could have been any clearer in its conclusion that when consideration is being given to whether an applicant has undertaken a valid marriage for the purposes of the 2006 Regulations, such consideration has to be assessed by reference to the laws of the legal system of the nationality of the relevant Union citizen. Mr Akohene’s submissions to the contrary are entirely misconceived and are born out of a failure to read the determination in Kareem as a whole.”