Kareem – Proxy marriages EU law
The appellant is a Nigerian citizen. He is married to a Dutch citizen, who is working in the United Kingdom. Although the Secretary of State accepts that the person, the appellant, describes as his wife is a qualified person for the purposes of the Immigration (European Economic Area) Regulations 2006, she does not accept that the appellant is married as claimed.
The appellant says that his marriage was conducted in accordance with customary law and was subsequently registered by the local customary court, which issued a marriage certificate. In support of his claim, the appellant has produced an affidavit from his father, a court order, the marriage certificate and statements from the appellant and others.
The Secretary of State’s reason for disputing that the appellant is married is, in essence, that she does not believe that the evidence produced is sufficient to establish that the appellant is married according to Nigerian law. If the appellant is not married according to the laws of the country in which the marriage is said to have taken place, then he is not married according to English law.
In this appeal the only concern is whether the appellant has contracted a marriage. It is not argued whether he is in a registered partnership or a durable relationship. These are different types of relationships and, as confirmed in the European jurisprudence just cited, cannot be regarded as marital relationships for the purposes of EU law.
Unlike a non-marital ‘durable relationship’, it cannot be established merely by proof of facts, for example of cohabitation: establishing a marriage requires both proof of relevant facts and demonstration that a relevant legal order regards those facts as constituting a marriage.
Whether a person is married is a matter that falls within the competence of the individual Member States. From this it is inferred that usually a marriage certificate issued by a competent authority will be sufficient evidence that a marriage has been contracted. Of course, a document which merely calls itself a marriage certificate does not have any legal status.
A certificate will only have legal status if it is issued by an authority with legal power to create or confirm the facts it attests, that is, by an authority that has such competence. Where a marriage document has no legal status or where such status is unclear, other evidence may be used to establish that a marriage has been contracted. However, once again it is found that these principles do not help to determine whether a person is a spouse, because it will depend on identifying the authority with legal power to create or confirm that a marriage has been contracted.
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.
The appellant’s claimed marriage did not take place in the Netherlands. The claim is that the ceremony took place in Nigeria whilst the appellant and his claimed spouse remained in the United Kingdom.
The appellant’s evidence includes extracts from the Dutch Civil Code. Although this is presented as evidence, there is no indication as to whether the version provided is up to date. Furthermore, no assistance has been given as to how it should be interpreted or as to whether the appellant’s marriage ceremony would be regarded as a lawful marriage under the Dutch Civil Code.
The original Dutch version or confirmation have not been provided that the translation is either authorised or certified. A marriage that is contracted outside the Netherlands shall not be recognised in the Netherlands where such recognition obviously would be incompatible with Dutch public order.
Was the appellant’s marriage certificate issued by a competent authority? The Secretary of State has provided in evidence the Nigerian Births, Deaths, (compulsory Registration) Act 1992 and two letters from the British High Commission, Abuja which discuss how Nigerian law might be interpreted and applied, although perhaps not from the point of view of a person with legal expertise.
The two letters from the High Commission explain that the information it contains has been obtained from Nigerian lawyers and given that the Secretary of State relies on their observations it can be assumed that she does not dispute the accuracy of the information contained.
Proxy marriages can only be accepted as valid in Nigerian law if conducted under customary law. Where legal requirements prescribe a marriage certificate to be presented, then only a certificate issued under the Marriage Act will be acceptable. Hence, most couples conduct “registry weddings” in addition to their customary marriage.
The letter also confirms amongst others the following points which are relevant to this appeal: 1. A Nigerian citizen can marry a foreigner by proxy under customary law in a ceremony that is held in Nigeria. 2.The validity of a customary marriage in Nigeria does not depend on it being registered within 60 days. 3.No certificates are issued in respect of customary marriages by any recognised official body and no official records are kept.
We turn to the Nigerian Births, Deaths, etc (Compulsory Registration) Act 1992. Part V of the 1992 Act relates to the registration of customary marriages or divorces. This legislation appears to have been amended and supplemented by a Statutory Instrument in 1996. Part VII of the 1996 legislation indicates that there is a requirement that a customary marriage should be registered within sixty days and that certain details are to be provided and included in any certificate issued.
The details required for registration are:
- the names of the bride and groom
- their marital status
- their occupations
- their ages
- their States of origin
- the address of their usual place of residence
- their nationalities
- the name of the persons who consented to the marriage
- the respective relationship of those persons to the bride and groom.
The certificate should include most of these details together with the registration number, the date of marriage, the date of registration and the signature of the court registrar.
The certificate provided by the appellant does not include many of the elements required by the statutory provisions. For example, it does not give the background details of the appellant or his claimed wife. It is also noted that although it has been advised that the customary marriage ceremony occurred on 26 November 2011, the marriage certificate was issued on 1 March 2012, well outside the sixty-day period stated in Nigerian law. We have no evidence that the person who signed the certificate or the court order was a registrar.
In light of these considerations it is wholly unpersuadable that the certificate has been issued by a competent authority in Nigeria. The document is no more than a written note of a statement made by a person with no legal authority. In other words, the document is not the emanation of an authority with legal power to create or confirm what it attests.
The lack of evidence on this point further undermines the appellant’s claim that he has produced a marriage certificate issued by a competent authority.
The proper approach under the law of England and Wales has been set out by the Tribunal in CB (Brazil). In summary, a proxy marriage would be regarded as valid under English and Welsh law if it was valid according the law of the place where it took place, recognising that the marriage took place where it was celebrated.
The fact that the evidence does not support the view that the appellant’s proxy marriage would be regarded as a marriage in Nigeria means that it would not be regarded as a marriage under the law of England and Wales.
In light of the findings, it is not accepted that the appellant has shown that he is in a marital relationship with a qualified person and therefore he cannot benefit from EU free movement and residence rights on that basis. The conclusion has been reached on the basis that the appellant’s marriage is not one that would be recognised in the laws of the Netherlands because it would not be recognised under the law of Nigeria, and insofar as relevant, nor in England and Wales.
Proxy marriage would be regarded as valid under English and Welsh law if it was valid according the law of the place where it took, recognising that the marriage took place where it was celebrated. A marriage certificate issued by a competent authority such as Registry would be deemed lawful and recognised in the UK.
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.
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.
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.
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.