Overruling Kareem: Proxy Marriages and Recognition under European Union Law

Awuku v Secretary of State for the Home Department [2016] EWCA Civ 1303 (06 December 2016) see update here

Questions about the validity of marriage have eternally dogged immigration law. Born in October 1973, and the holder of Ghanaian nationality, Awuku married a German national by proxy in Ghana in February 2013 under Ghanaian customary law. His application for a residence card as the spouse of an EEA national exercising free movement rights was refused in November 2013 because the decision-maker was not satisfied that his claimed marriage was registered in accordance with the Ghanaian Marriage and Divorce (Registration) Law 1985. The appeal was considered on the papers and on the evidence put to her, including a marriage certificate and a statutory declaration, the judge concluded that the marriage was recognised in the country where it took place. She also found that it was properly executed and satisfied the legal requirements of the country in which it took place. Equally, nothing in the law of either party’s country of domicile affected their ability to freely enter into the marriage. Her examination of the decision led her to conclude that that removal would disproportionately violate Awuku, his spouse and his family’s article 8 rights. However, her findings on Awuku’s marriage conflicted with Kareem (Nigeria) [2014] UKUT 24 (IAC) and the matter entered the Upper Tribunal.

These important proceedings will have wide-ranging legal consequences and Lloyd Jones LJ described Kareem as lying “at the heart of the case”. The novelty of the appeal is that in the Court of Appeal, the respondent home office agrees with Awuku that that the Upper Tribunal fell into error by finding that he was not a spouse for the purposes of regulation 7 of the Immigration (European Economic Area) Regulations 2006. Therefore, it also wants the appeal to be allowed. The Upper Tribunal was of the view that consideration needed to be provided to the question whether the marriage was recognised in the EEA national’s home state, which was Germany in the present case. Judge Ehsun allowed the home office’s appeal because she found that the German authorities needed to assess whether Awuku’s marriage to his German spouse by proxy was valid and recognised under German law.


The wider significance of the questions arising on appeal and the need to rescind Upper Tribunal authority in allowing the appeal were such that the home office expressed a preference for the court to pronounce judgment on the appeal following a hearing rather than disposing of the matter without determining the merits.

Without any evidence demonstrating that the said marriage was indeed recognised in Germany, the First-tier judge’s decision was unsustainable because the appellant had not discharged the burden of proof on him. Moreover, the judge’s article 8 findings were dubious because of the absence of evidential verification regarding the validity of Awuku’s marriage under German law.

In addressing its own task regarding how to correctly identify which national legislation applied, the Upper Tribunal made the view that the rights of free movement start from EU citizenship its point of departure. It found that an EU citizen’s rights of free movement and residence are intrinsically rooted in his or her nationality of the home member state. The nexus between free movement rights and the nationality laws of member states was such that where the validity of a marriage was disputed, the question of the existence of a marital relationship had to be approached from the law of the member state whose nationality the EU citizen holds and derives free movement rights.

Alternatively, the Upper Tribunal reached the same result by thinking that free movement was unachievable in EU law if the host member state was able to decide the question whether an EU citizen has contracted a marriage. Uniformity and legal certainty would suffer because different member states would be in a position to arrive at different conclusions regarding the said citizen’s marital status. EU citizens and their spouses would suffer because of such an incongruous system and the consequent confusion created by it. People might have greater freedom to move to a member state where the marriage would be recognised in comparison to another member state where it might not. Overall, free movement of persons in the EU would be disrupted and basic EU law principles would be infringed.

The Court of Appeal

Three grounds of appeal argued that the Upper Tribunal erred by (i) concluding that the partner’s member state of nationality needs to recognise a proxy marriage as valid (ii) concluding that in the absence of any evidence confirming that German law recognises proxy marriages as valid the marriage would not be recognised in the UK and (iii) failing to grapple with the article 8 claim.

Despite agreement on the point that the appeal should be allowed, the home office did not invite Lloyd Jones and Gloster LJJ and Cranston J to allow the appeal unopposed. Instead, it requested a hearing and invited the court to overrule Kareem and the Upper Tribunal’s subsequent decisions connected to it. There was also consensus between the parties that a determination of the merits should be made by the court.

In light of para.6.4 of Practice Direction 52A of the Civil Procedure Rules 1998 and the authorities of Bokor-Ingram [2009] 2 FLR 922 and Halliburton Energy Services Inc [2006] RPC 26, Lloyd Jones LJ held that it would inappropriate simply to allow the appeal without hearing the case on the merits. Four reasons pointed to this conclusion. First, an important legal point in immigration law had arisen. Moreover, the issue concerned the correct implementation of an EU Directive and the UK’s obligations in EU law. Furthermore, Kareem is a widely applied decision in both tiers of the tribunal and to allow the appeal would create uncertainty in the law. Finally, despite unity between the parties Lloyd Jones LJ had his doubts about whether Kareem had been “clearly wrongly decided” and so his Lordship concluded:

13. … that the public interest requires that this court should decide the point after hearing full argument on the merits.

In the absence of the advantage of hearing adversarial argument, concern arose as to the court being invited to give judgment on a key issue involving questions of private international law, EU law and UK immigration law. Since all counsel present advanced a particular case as regards Kareem, the court found that full adversarial argument would be valuable and it held:

14. … the appeal does give rise to matters which deserve to be investigated more fully than will be possible at a hearing where both parties now take a virtually identical view.

The appeal was therefore adjourned and the attorney general was invited to appoint an advocate to the court in order for the matter to be fully argued on both sides.


Kareem concerned a Nigerian national whose Dutch citizen “wife” was working in the UK. He contended that they married by proxy in Nigeria but neither of them attended the ceremony. It was said that their marriage was held in accordance with customary law. A marriage certificate was issued when the local customary court subsequently registered the ceremony. The claim was supported by numerous documents but the decision-maker was unconvinced that Kareem was married as claimed.

In Kareem, the Upper Tribunal followed CB (Brazil) [2008] UKAIT 00080 where it was decided that a proxy marriage would be regarded as valid under English and Welsh law if it were valid according to the law of the place where it took place, recognising that the marriage took place where it was celebrated. It was said that the starting point must be to decide whether a marriage was contracted between a third country national and the qualified person within the meaning of the national law of the EEA country of the qualified person’s nationality.

The strident nature of Kareem means that “mere assertions” of the law and evidence “carry no weight” and an assumption needs to be made that in the absence of independent and reliable evidence regarding the recognition of the marriage under the laws of the EEA country and/or the country where the marriage took place, the tribunal is unlikely to find that sufficient evidence has been provided to discharge the burden of proof.

From that angle, the developments in Awuku are rather welcome and seem to be a step in the right direction. It is a “big landscape” case and looks set to transform this nagging area of the law. It is ultimately quite odd that the UK should pick on people’s customs about marriage in Africa, Asia and South America when a large section of this society does not believe in the institution of marriage at all.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Article 8, Citizens Directive, Citizenship and Nationality, ECHR, European Union, Public Interest, Spouses, Tribunals and tagged , , , , , , , , . Bookmark the permalink.

1 Response to Overruling Kareem: Proxy Marriages and Recognition under European Union Law

  1. The discussion of Awuku and Kareem reminded me of a footnote in my memoire de maîtrise written in the early 1990s at Louvain-la-Neuve and which concerned comparative law of domicile. I hadn’t considered proxy marriage as relevant to UK or EU law, but it has a perhaps honourable history in American law. According to Wikipedia (sorry) such marriages may be legally solemnised (at least under some circumstances) in Texas, Colorado, Kansas, and Montana. Prof. Ernest G. Lorenzen wrote on the subject in 1932 and I suspect that there has been little change in practice since, except that the Vietnam War seemed to revive interest (for reasons set out in my footnote, below), especially when a deployed soldier discovered his fiancée was pregnant, or otherwise wanted to provide military privileges (life insurance, medical care, Commissary and PX privileges) to a fiancée back home. (Years ago when I spoke to the county clerks in Texarkana AR (no waiting period) and Texarkana TX, across the street (3-day waiting period; but proxy marriages are allowed for military personnel) it seemed that the Arkansas alternative of a quickie marriage before deployment was attractive for the same reason. The Lorenzen article is here: http://www.uniset.ca/other/art/32HarvLRev473.html

    Finally, relating to U.S. immigration, 8 U.S. Code §1184(d) requires that fiancés have met within two years prior to the issuance of a visa, although that can happen after the wedding if the soldier remains alive. I would not be surprised to learn (I haven’t looked) if there have been private laws passed by the Congress to relieve hardship cases where there is an American-citizen child involved and the fiancée was a nonresident alien.

    Here’s the text of my old footnote (sorry for the French); the note relates to the sentence “Les lois concernant l’état et la capacité des personnes régissent les Français, même résidant en pays étrangers FN498”. The law relating to marriage of a deceased military member to his fiancée by order of the President was invoked (among other cases) in favour of Capt. Charles Trépel (of Commando Trépel, whose descendants live in Britain and whom I happen to know).

    FN498 Cette disposition a été mise en application, par exemple, pour légitimer des enfants des militaires morts dans la Guerre. Cf. Code civil français, art. 3. Art. 146-1 (L. no 93-1027 du 27 août 1993) : “Le mariage d’un Français, même contracté à l’étranger, requiert sa présence. ” Le mariage par procuration est souvent boiteux, et son application limitée dans l’Ouest aux fins politiques, administratives et fiscales; par exemple un arrêt concernant une réclamation sous la police d’assurance-vie d’un officier mort pendant la guerre, marié par procuration : Barrons c. U.S., 191 F.2d 92 (1951) (recours de 91 F.Supp. 319); c’était la lex celebrationis qui a été appliquée par la cour. V. Lorenzen, “Marriage by Proxy and the Conflict of Laws “, 32 Harv.L.Rev., 1919, pp. 473, 483. L’Immigration and Nationality Act des Etats-Unis, 8 U.S.C. § 1101(a)(35), dispose : “The term ‘spouse’, ‘wife’, or ‘husband’ do not include a spouse, wife, or husband by reason of any marriage ceremony where the contracting parties thereto are not physically present in the presence of each other, unless the marriage shall have been consummated.” Le Uniform Marriage and Divorce Act proposé par l’American Law Institute et en vigueur intégralement ou partiellement dans les Etats d’Arizona, Colorado, Illinois, Kentucky (sauf § 206), Minnesota, Missouri, Montana et Washington, admet dans § 206 (b) : “If a party to a marriage is unable to be present at the solemnization, he may authorize in writing a third person to act as his proxy” Prof. Clark (Domestic Relations, 1968, pp. 58-59) a commenté : “Marriage by proxy is a legal institution of variable importance. During times of war it has proved useful to enable men who are away in the services to marry, and often to legitimate children, when they could not contract a valid marriage in any other way. In more normal times, it is seldom used.”

    Andrew Grossman

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