Lex Loci Celebrationis and Proxy Marriage in English Law

Awuku v Secretary of State for the Home Department [2017] EWCA Civ 178 (23 March 2017)

Marriage by proxy is quite an important legal institution. As seen before, in the present case the home office agreed with Awuku 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. Somersaulting on its earlier position, the home office thus wanted the appeal to be allowed by consent on the basis that a line of authority in the Upper Tribunal, including the dubious decisions in Kareem [2014] UKUT 24 (IAC) and TA [2014] UKUT 316 (IAC), was wrongly decided. “Rather unusual circumstances,” is how Lloyd Jones, King and Lindblom LJJ described the overall state of affairs in this case. Awuku argued three grounds of appeal in the Court of Appeal. First that the UT erroneously concluded that the law by which the validity of the marriage is to be determined for the purposes of regulation 7 is the law of Germany. Second that it erroneously concluded in the absence of evidence that German law recognises a Ghanaian marriage by proxy as valid, the marriage would be unrecognised in the UK. And third that it erred in failing to address Awuku’s claim under article 8 of the ECHR.

Allowing the appeal on the first ground, Lloyd Jones LJ held that CMG Ockelton, Judge McKee, Deputy Judge McCarthy had been wrong in Kareem to create a new rule of private international law requiring reference to the law of the member state of the EU national in order to determine the marital status of a spouse or partner for the purposes of Directive 2004/38/EC. In light of analysis and commentary in Dicey, Morris and Collins on the Conflicts of Laws, 15th Edition (2012), Lloyd Jones LJ held that marriage by proxy would be treated as valid in England if recognised by the local law. It was clear to the court that there is nothing inherently unchristian about proxy marriage. Subsequent to the last hearing, these proceedings benefitted from adversarial argument from an advocate to the court. Of course, the mistakes made by the three judges in Kareem have been rather costly for those adversely affected by that decision.

Background

Awuku married a German national by proxy in Ghana under Ghanaian customary law. His application for a residence card as the spouse of an EEA national exercising free movement rights was refused. The appeal was allowed because, among other things, the judge concluded that the marriage was recognised in Ghana – the lex loci celebrationis – and it was properly executed and satisfied the legal requirements of the country in which it took place. The UT allowed the home office’s appeal on the basis that under Kareem it was for German law to determine whether the proxy marriage was valid and that in the absence of any evidence that his marriage was recognised by German law, Awuku had not discharged the burden of proof resting on him. Thereafter, the government changed track and invited the court to allow the appeal by consent because Kareem had been wrongly decided.

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. They 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.

CB (Brazil) [2008] UKAIT 00080 decided that a proxy marriage would be regarded as valid under English law if it had been valid according to the law of the place where it took place, recognising that the marriage took place where it was celebrated. CMG Ockleton VP, McKee UTJ and McCarthy DUTJ said in Kareem that the question whether a marriage had been contracted for the purposes of the 2006 Regulations was a matter governed by the law of the nationality of the EU citizen concerned. They interpreted judgments such as Micheletti (C-369/90) to mean that in cases where issues of EU law involve member states’ nationality laws then the law of the home member state, and not the host member state, will be applicable. Moreover, the intrinsic link between nationality of a member state and free movement rights was such that the legal system of the nationality of the EU citizen must itself govern whether a marriage has been contracted.

The Court of Appeal

Lloyd Jones LJ stated that all questions relating to the validity of the ceremony by which the marriage is alleged to have been constituted must in general be solely resolved by reference to the law of a country where a marriage is solemnised. A proxy marriage will be treated as valid in England if it is 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. According to Dicey, Morris and Collins, the transaction is not contrary to public policy. Nothing repugnant to Christian ideas could be observed in proxy marriages whose celebration is a matter of the form of the ceremony or proceeding; and not an essential of the marriage. Without legislation pointing the other way, no doctrine of public policy entitled a court to rule that the ceremony, valid in the country where it was performed, is ineffective in England to constitute a valid marriage.

CB (Brazil) entailed the rejection of the argument that different rules should be applied to the legal framework governing validity of marriage when the issue arose in an immigration context. The UT strongly reasserted that the lex loci celebrationis governs the formal validity of a marriage. The First-tier judge’s decision that because Brazilian law recognised proxy marriages CB and his wife’s marriage was valid in English law (and consequently the relevant requirements of the 2006 Regulations had been met).

Troubled by the approach in Kareem, Lloyd Jones LJ found that CMG Ockleton VP, McKee UTJ and McCarthy DUTJ had lost their way. They had strayed off target by unilaterally creating an unnecessary new private international rule for the purposes of EU law. Their haphazard new rule needlessly referred to the law of the member state of the EU citizen’s nationality and their overall approach:

17. … displaced the domestic rule of private international law which would normally apply.

In the present case, the question was whether EU law required the approach taken by the UT. The court noted that the substantive law relating to marriage is outside EU competence. Except for the special legislative mechanism set out in article 81(3) of the TFEU, the recognition of foreign marriage falls outside the scope of EU competence. Since the provision was not in play and no relevant measures had been adopted, EU law did not apply to the recognition of marriages. Lloyd Jones LJ therefore held that:

18. … 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.

“Spouse” is an undefined term in the Directive. Equally, no express provision is made in relation to the means by which formal validity of a marriage is to be determined. However, indications exist that the law (including the private international law) of the host state is determinative of the formal validity of a marriage. To that end, 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 necessary measures. To Lloyd Jones LJ’s mind, the text of recital 5 and article 2(2)(b) also supported the position that it is for the domestic law of the host state to determine whether the qualifications for a “family member” within article 2(2) have been achieved.

His Lordship said that these provisions acknowledge that the domestic law of the host state will determine whether registered partnerships should be recognised. Specific provision tailored for registered partnerships in the Directive – as opposed to no such provision for marriage – is understandable because all the member states recognise marriage, but not all of them recognise registered partnerships. The court found it unsurprising that such issues are left to the domestic law of the host member state because questions connected to formal validity of marriage and similar issues will frequently reflect those considerations of public policy most appropriately left to the host member state’s domestic law.

The travaux preparatoires additionally confirmed this analysis. In rejecting amendments proposed by the European Parliament to articles 2 and 3 of the original Commission proposal, the Council expressly rejected the option that the member state of nationality of the qualifying EU citizen should determine who was a “spouse” or “partner”. The Council’s approach aimed to avoid producing difficulties in the host member state through reverse discrimination by effectively requiring the host member state to recognise certain relationships that were unrecognised for its own citizens.

Lloyd Jones LJ found the reasoning, or perhaps the lack of it, adopted by the UT in Kareem to be flawed. The UT’s point of departure was the belief that rights of free movement and residence originate directly from EU citizenship, which is itself derived from a member state’s citizenship. Consequently, an EU citizen’s free movement and residence rights are intrinsically linked to his or her nationality of a member state. As seen in Micheletti, under international law and EU law it is for each member state to lay down the conditions governing the acquisition and loss of nationality

Yet the mere fact that an EU citizen’s rights of free movement and residence are linked in this way to a member state’s nationality does not mean that issues relating to his or her spouse or partner’s marital status must also be governed by the law of his or her state of nationality. To the contrary, “nationality and marital status are clearly distinguishable.” Lloyd Jones LJ explained that whilst nationality is exclusively a matter for the law of the member state concerned, marital status and its recognition in any given case are issues on which the Directive contemplates different member states taking different views. Consequently, it is unnecessary 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 Directive.

It was also the case that the alternative route taken by the UT was equally objectionable. Lloyd Jones LJ accepted that scope existed to argue that an effect on freedom of movement and residence within the EU would be produced if it were left 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. Indeed, a member state that recognised the marriage would attract spouses. But determining the issue using the law of the EU citizen’s state of nationality also gives rise to similar inequalities.

Assuming, for example, that German law recognises proxy marriages in third states and that French law does not, such spouses of German nationals would enjoy rights of free movement and residence in the UK (and indeed in other EU states) while such spouses of French nationals would not. The dilemma was such that it was clear to Lloyd Jones LJ that irrespective of the fact that marital status is determined by reference to the home state’s law or the host state’s law, it is at risk of being determined differently by different member states. The court found this to be an “inevitable consequence” of the fact that the Directive “does not employ an independent rule for determining marital status.” However, his Lordship did not find this to be sufficient rationale for “conferring the power to determine marital status on the law of the member state of nationality of the qualifying EU national.”

The court held that applying the rules of private international law in English law to cases like the present one would not at all result in any incompatibility with EU law. Ultimately, proxy marriage is recongnised by English law if valid by the lex loci celebrationis. Consequently, a spouse of an EU national who has concluded such a marriage qualifies as a family member within article 2 of the Directive. Lloyd Jones LJ did not find EU law rights to be under threat and held that:

23. … 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.

A longstanding saga of confusion created by the tribunal’s judicial incompetence has thus come to an end.

Comment

This judgment thankfully brought an end to the needless mayhem produced by the myopic and misdirected decision produced by CMG Ockleton VP, McKee UTJ and McCarthy DUTJ in Kareem. The terrible trio seems to have failed to appreciate the true nature of the law. It is quite common for tribunal judges to create their own laws by diktat of which the decision in Sala (EFMs: Right of Appeal: Albania) [2016] UKUT 411 (IAC) is a recent example and the decision in Amirteymour & Ors (EEA Appeals: Human Rights) [2015] UKUT 466 (IAC) is another ugly variant – see detailed analysis of Amirteymour and further criticism of Bilal Ahmed v SSHD (EEA/s 10 Appeal Rights: Effect (IJR) [2015] UKUT 436 (IAC). Worse still, presentation officers are keen to expand the scope of Sala to include EFMs who are EEA nationals and immigration judges are happy to deprive EEA national EFMs of their right of appeal notwithstanding CMG Ockleton’s clarification at paras 13 and 31 that “we are not concerned with EEA nationals in this appeal.”

Interestingly, McCarthy DUTJ is extremely short-tempered and tends to explode without warning. Highly intoxicated by his judicial power, he is infamous for shouting hysterically during hearings. He fails the duty of fairness underpinning the statutory appeals process because his unnecessary shouting is intimidating for poor immigration appellants. The learned judge really must really be kicking himself now for his excessive cleverness in Kareem. With the greatest of respect, as they say in South Asia: Seyaana Kawa Goo Khata Hai.

About mkp

Advocate High Courts of Pakistan
This entry was posted in Article 8, Citizens Directive, CJEU, Court of Appeal, European Union, Judges, Spouses and tagged , , , , , , . Bookmark the permalink.

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