Tribunal decisions

The decision

NA (Customary marriage and divorce – evidence) Ghana [2009] UKAIT 00009

Asylum and Immigration Tribunal

THE IMMIGRATION ACTS

Heard at Field House

On 20 November 2008

Before

SENIOR IMMIGRATION JUDGE LATTER
SENIOR IMMIGRATION JUDGE MCKEE
MR A F SHEWARD

Between

Appellant
and

ENTRY CLEARANCE OFFICER – ACCRA

Respondent

Representation:

For the Appellant: Mr L Rooney of Leytonstone Citizens’ Advice Bureau
For the Respondent: Mr J Wright, Home Office Presenting Officer

1. Customary marriages in Ghana can be lawfully dissolved in accordance with the applicable customary law. Dissolutions can be registered but this is optional.

2. The onus of proving either a customary marriage or dissolution rests on the party making the assertion. It is normally for the appellant to prove that a marriage is valid. Where this involves proving that a previous customary marriage has been dissolved, it is reasonable to expect the appellant to produce the best available evidence to support this assertion.

3. As registration of the dissolution of a customary marriage is not mandatory in Ghana, an appellant does not necessarily have to produce a registration of dissolution to prove the divorce although it would be sensible to do so. In the alternative, evidence in the form of a statutory declaration or an affidavit produced by family members or other people able to confirm the dissolution of the customary tribal marriage should be produced.

DETERMINATION AND REASONS

1. This is the reconsideration of an appeal against the respondent’s decision made on 11 January 2007 refusing the appellant admission to the United Kingdom as the husband of an EEA national exercising treaty rights.

Background

2. The background can be briefly summarised as follows. The appellant is a citizen of Ghana born in September 1952. He married his wife (the sponsor) on 3 September 2006. She is also Ghanaian and lived there until 1981 when she went to Germany to work. She met her first husband, another Ghanaian citizen also working there, and they married in 1989. They have three children. They lived together until 2001 and were divorced in Germany on 21 November 2002. The sponsor became a German national in 2001.

3. In 2003 the sponsor visited Ghana and met the appellant at a party. They kept in contact by telephone. In June 2004 she came to the UK. At that stage she was still hoping for a reconciliation with her husband but by 2006 she realised that this was not going to happen. She then resumed contact with the appellant. Their relationship developed and they decided to get married. The sponsor travelled to Ghana in August 2006. A customary marriage took place on 3 September 2006 in Ntonso, the home town of the appellant’s father, and there was a civil marriage in Kumasi on 4 September 2006. The sponsor had to return to the UK on 10 September 2006 because her younger children had to go back to school and she to her employment.

4. The appellant applied for a family permit to join his wife. When he was interviewed on 18 September 2006 he was asked whether he had been married before. His reply is recorded as: “No … that was customary but I divorce”. He said that had been in 1974. When asked for evidence of the divorce, he replied: “it was customary and resolved traditionally”. The respondent was not satisfied that the appellant and sponsor had contracted a valid marriage or that it was subsisting. He regarded it as a marriage of convenience. He found that the maintenance and accommodation requirements of the Rules were not fulfilled and in these circumstances the appellant could not meet the provisions of reg. 12(1)(b)(ii) of the Immigration (European Economic Area) Regulations 2006 (“the 2006 Regulations”).

The Hearing before the Immigration Judge

5. The immigration judge said that it was understandable that the respondent had decided that this was a marriage of convenience on the basis of the evidence available to him but he had now heard further evidence from the sponsor whom he found to be an impressive witness. He was satisfied that there was a genuine and subsisting relationship, the parties intended to live together as husband and wife and the financial requirements of the Rules were met. As the sponsor was an EEA national exercising treaty rights, the appellant qualified for the issue of a family permit under reg. 12 of the 2006 Regulations. He added that the appellant would also be entitled to admission under reg. 11(4).

6. The respondent applied for reconsideration on the basis that the judge had failed to make a finding on whether the appellant and the sponsor had entered into a valid marriage or to explain why the appellant would qualify for admission under reg 11(4).

7. Reconsideration was granted and on 14 May 2008 the Tribunal (Senior Immigration Judge Gleeson) found that the judge had materially erred in law for the following reasons:

“1. The appellant has been granted review of the Tribunal’s determination dismissing an appeal against the Entry Clearance Officer, Accra, Ghana. The Entry Clearance Officer refused entry to the United Kingdom under the Immigration (European Economic Area) Regulations 2006. He was concerned as to the validity of the claimed marriage.

2. The marriage issue is a tricky one and the immigration judge did not address it. The appellant when he met the sponsor was still married to his first wife. He is a Jehovah's Witness and so is the sponsor. The sponsor is a German citizen exercising her Treaty rights in the United Kingdom. The sponsor was also married when they met; she is divorced and there was no question of her not being free to enter into the claimed marriage. There was no documentary evidence of the appellant’s divorce proceedings; his previous marriage is said to have been a customary marriage in Ghanaian law but there is also no evidence before the Tribunal of the terms on which such marriages may be legally contracted and ended.

3. The appellant claims to have ended his marriage before he undertook the present marriage with the sponsor. The parties married on 3 September 2006 in a customary marriage, followed by a civil marriage on 4 September 2006. There appears to have been a discussion at the beginning of the hearing at which the appellant’s representatives understood the Immigration Judge to say that he was satisfied that the marriage was lawful; that the Home Office Presenting Officer understood him to say he was satisfied ‘about the relationship’ and that Immigration Judge Markham-David cannot remember what he said. He thinks there might have been evidence that the appellant was divorced but there is none on the file. The evidence which is on the file is not such as to put beyond doubt that the appellant was free to contract a second marriage on 3 or 4 September 2006 and the point is plainly material. It may be that evidence of Ghanaian marriage law will be necessary to resolve the point.

4. The sponsor was present for the material error of law hearing; she indicated that as the first marriage had just been a customary marriage, they had given a man some money and he gave some money back and that disposed of the first marriage. That sounds unlikely to be legally right; the appellant must make the position clearer. The Tribunal notes that the present marriage was solemnised both by a customary marriage and a civil marriage.

5. The appeal was therefore set down for full reconsideration by any Immigration Judge (excluding Immigration Judge Markham-David, who determined the appeal under challenge).”

Directions were given for filing of evidence including an expert report on Ghanaian marriage law. At the hearing before us the appellant produced documentary evidence in a bundle A indexed and paginated 1-14. The respondent’s documents are set out in a bundle indexed and paginated 1-38.

Marriage and Divorce in Ghana

8. In his witness statement dated 8 September 2008 (A1) the appellant gave the following details about his previous customary marriage. In 1972 he entered into a friendship with a girl and she became pregnant in 1974. Under Ghanaian village customary law he was compelled to marry her. Unfortunately their baby died a couple of months after she was born and at that stage he was able to seek a divorce. The marriage was dissolved on 7 September 1975 but some time later he and his former wife reconciled and they remained friends until 1980 when she became pregnant again and gave birth to a baby boy on 28 December 1981. When their parents heard about this, it was made clear that they would have to remarry but before negotiations could be completed she left and went to live in another town. In his statement the appellant solemnly declares he does not have any wife either customary or constitutional apart from his present wife.

9. There is a statutory declaration made on 18 June 2008 by the appellant’s uncle and his first wife’s sister jointly and they declare:

“2 That we are the respective uncle and sister of AKN and AO who were born to their respective fathers OKS (deceased) and CEO (deceased) and their mothers AK (deceased) and AT all being Ghanaians.

3. That a marriage was contracted between the couple in accordance with the Ghanaian customary marriage laws and usages in 1974 at Kumasi in the presence of elders of both parties and was dissolved under the same customary laws on 7 September 1975.

4. That we positively confirm now the dissolution of the marriage under the Ghanaian customary divorce laws between the couple who are at liberty to remarry any woman or man of their choices irrespective of colour or race from any part of the world.”

10. The appellant also relies on an expert opinion prepared by Mercy Akman. She was admitted as a barrister in Ghana in April 2004. She has completed a course in Ghanaian customary law in 2004 and worked in the judicial service of Ghana from January 2005 to March 2008. She is now a member of chambers at 36 Bedford Row, London and has been asked to report on how customary marriages and dissolutions operate in Ghana and to advise on whether the account given by the appellant about the dissolution of his first marriage under customary law in 1975 is plausible.

11. She explains that there are three types of marriage in Ghana: customary law marriage, marriage under the Marriage Ordinance Act of 1844, revised in 1951 (civil marriage) and marriage under the Muhammadan Ordinance of 1907. She goes on to say:

“5. The most common form of marriage in Ghana is the customary marriage. It is a type of marriage contracted under the particular tradition and customary practices of a group of people. Indeed until the introduction of civil marriages by the British in Ghana, then Gold Coast, the only form of marriage was the customary marriage. These days, civil or ordinance marriages and customary marriages co-exist and both are legally recognised. It is up to the parties to choose which form of marriage they desire. A valid customary marriage can only be validly contracted between two Ghanaian citizens and both parties must have capacity to marry. This means that there should be no violation of any rule of tribal relationship. These rules differ from tribe to tribe. Thus, whilst in some traditions, a man cannot marry his cousin, other traditions accommodate cross-cousin marriages.

6. A particular characteristic of customary marriage which distinguishes it from the system of marriage in Europe and other places is that it is not just a union of “this man” and “this woman”. It is the union of “the family of this woman” and “the family of this man”. Marriage in the customary context therefore unites families and not merely the individuals.

7. It involves payment of a bride price by the bridegroom’s family to the bride’s family. If the appropriate bride price is not paid, there is no valid marriage, even if parties live as man and woman for many years. The acceptance of drink from the man’s family is an indication of the consent of the wife’s family to the marriage. In the Akan system which is the area from where [the appellant] hails, the bride price may take the form of drinks, cash, cloth and in the old days, gold dust. It is potentially polygamous in nature; a man may decide to marry as many women as his strength and resources can accommodate.

8. There are four types of customary marriages practiced in Ghana. The most common type is where a man and woman agree to marry. The man approaches the woman’s parents or family to ask for the woman’s hand in marriage. If the parents or family agree to the marriage, the man makes a present or presents in cash or kind as required by the appropriate custom to the woman’s parents or family and the marriage is concluded. There are neither documents nor certificates and in many cases no ceremony.

9. A marriage may also occur when the families agree to a couple getting married after the woman discovers she is pregnant. The marriage may simply be after the man accepts responsibility for the pregnancy and presents a drink or presents which could include money to the woman’s family. If the drink and gifts are accepted by the woman’s family the couple can start cohabiting. The woman’s family are said to have acquiesced and a valid marriage is found to exist. Alternatively, when a woman becomes pregnant, the woman’s family sends a representative to the man to enquire as to whether he accepts responsibility for the pregnancy. The man may accept responsibility in two ways – either he sends a message back or he may simply send a drink, usually alcoholic, to the girl’s family by way of admission. To register his intention to marry the girl he will send additional drink, presents or sum of money to the girl’s family and if the family accepts these gifts, a valid marriage is concluded. The sending of the additional drink or presents amounts to a request by the man for the hand of the woman and the acceptance of that additional drink or presents amounts to consent by the family to the marriage. The marriage is then deemed to have been concluded.

10. There is not always a formal ceremony. Even if there was, the couples do not have to be present at this ceremony for a valid marriage to take place, provided representatives of the two families are present as witnesses to the meeting or event.”

12. She sets out in paragraph 11 the essential elements of a customary marriage laid down in 1962 in the Ghanaian case of Re Caveat by Clara Sackitey [1962] GLR as follows:

“There must be-

(i) the agreement by the parties to live together as man and wife;

(ii) consent of the family of the man that he should have the woman to be his wife – that consent may be indicated by the man’s family acknowledging the woman as wife of the man;

(iii) consent of the family for the woman that she should be joined in marriage to the man, that consent is indicated by the acceptance of drink from the man or his family or merely the family of the woman acknowledging the man as the husband of the woman;

(vi) consummation of the marriage by cohabitation”

13. She then deals with registration and certification of marriages in Ghana:

“12. Customary Marriage and Divorce (Registration) Law 1985 (P.N.D.C.L. 112) provided for mandatory registration of customary marriages and divorces after 1985, but was this law was amended in 1991 by the Customary Marriage and Divorce (Registration) Amendment Law 1991 (P.N.D.C.L. 263) to make the registration of marriages and divorces optional. This is the current position of the law. The parties to a customary marriage may choose to register the marriage at any time after the marriage with the Registrar of Marriages and Divorce but this is not mandatory and records show that registration of marriages have declined over the years. Whereas in 2004 1172 marriages were registered, only 677 were registered in 2007. If the marriage is registered, the couple are issued with a certificate and the notification is entered on the register.”

14. Ms Akman then turns to the dissolution of customary marriages as follows:

13. Customary marriages are dissolved informally as they are concluded. The relatives of the parties meet and when all efforts at reconciliation have failed, the wife’s family returns the bride’s price to the husband’s family. If the husband is at fault, he is made to pay compensation to the wife and the dissolution is sealed by a special ceremony at the end of which the elder pronounces that the wife is now divorced and she is handed over to the woman’s family.

14. When a marriage has been registered with the Registrar of Marriages and Divorce, the parties may register a divorce by making a statutory declaration stating that the marriage has been dissolved in accordance with applicable customary law. If the dissolution is registered the couple is issued with a certificate and the notification is entered on the register. It is also possible to terminate a customary law marriage by application to the court.”

15. Ms Akman gives her opinion that the account given by the appellant about the circumstances leading to his marriage to his first wife is entirely plausible. At the time of his marriage and divorce there were no certificates for customary marriages and divorces. The need for documentary evidence led the Ghanaian government to introduce the mandatory registration of such marriages and divorces in 1985 but the law was amended in 1991 to make registration optional.

16. She confirms that in the absence of registration it can be difficult to produce evidence to confirm that customary marriages or divorces have taken place. It is her view that the best evidence is from witnesses who were present at these informal events to confirm they took place. She refers to the statutory declaration produced by the appellant and says that it appears genuine. The appellant’s marriage and divorce took place in the years 1972 to 1975 and she comments that it is difficult to see what further evidence he could produce to confirm these events beyond the evidence currently available.

17. The legal position as to the registration of a customary marriage is confirmed in the Ghana Gazette 1991 (R1) which referring to the Ghana Customary and Divorce (Registration) Act 1991 Act says:

“This Act amends Ghana’s Customary Marriage and Divorce Registration Act to make the registration of marriages performed according to customary law optional rather than mandatory. The parties to such a marriage may register it at any time after it has been celebrated unless the Secretary for Justice subsequently sets a time limit. The Act also makes optional the notification of the registrar of the dissolution of marriages performed according to customary law that have been registered under the Act.”

18. The UK BIA website (R2) giving guidance generally on marriage says in respect of Ghana:

“15.5.1 The Customary Marriage and Divorce (Registration) Law 1985 provided for the proper registration of customary marriages and divorces in Ghana, and was retroactive (i.e. applied to customary marriages and divorces contracted before, as well as after, its enactment). Non-compliance was punishable by a fine or imprisonment, but the marriage would still be regarded as valid. However, the Customary Marriage and Divorce (Registration) Amendment Law 1991 provided that registration of customary marriages and divorces would no longer be mandatory.

15.5.2 Since it is possible for Ghanaians living outside Ghana to obtain the proper certificates, certificates of marriage or divorce authenticated by the Ghanaian High Commission, should be requested in all cases where the marital state of an applicant is important. Statutory declarations made by a parent or other family elder of either party to an unregistered customary marriage should only be accepted where they complete a chain of otherwise first class documentary evidence of a claim to citizenship.”

19. Mr Wright referred us to a decision of the United States Department of Justice Board of Immigration Appeals in Kodwo (24 I&N Dec 479) which considered the issue of the evidence necessary to establish that a customary marriage in Ghana had been dissolved. In a previous decision in Kumah (1985) 19 I & N Dec 290, the Board had concluded that a Ghanaian Court decree that either granted or confirmed a customary divorce was an essential element of proof in substantiating a Ghanaian divorce. It was argued that following the amendments made in the 1991 Act, a court decree should no longer be required.

20. The Board held:

“Based on the arguments of the parties and the evidence presented by the USCIS, we agree that the holding in the matter of Kumah, supra, has been superseded by amendments to Ghanaian law. The matter of Kumah is accordingly modified to hold that affidavits executed by the heads of household i.e. the fathers of the husband and wife may be sufficient under Ghanaian law to establish the dissolution of a customary tribal marriage. We note, however, that in accordance with the Foreign Affairs Manual, the desirable proper documentation continues to be a court decree, both because customary divorce is more difficult to prove and because polygamous marriage is permissible under the customary law of some groups, but not under civil law.”

In the matter of DaBaase (supra) we held that where a party seeks to prove the validity of a customary divorce, he or she must present evidence that establishes 1) the tribe to which he belongs, (2) the current customary divorce law of that tribe, and (3) the fact that the pertinent ceremonial procedures were followed. We also stated the following:

To establish the current customary law of his tribe the party may present evidence derived from reported cases, legal treaties and commentaries, and depositions of legal scholars. The evidence could also consist of advisory opinions from those organisations traditionally recognised by the Ghanaian government as possessing knowledge of customary law.

Moreover the parties must prove that the divorce was properly perfected. Affidavits should be specific and include the full names and birthdates of the parties; the date of the customary marriage; the date of, and the grounds for, the dissolution of the marriage; the names, birthdates of, and custody agreement for any children born of the marriage and a description of the tribal formalities that were observed including the names of the tribal leaders, the name of the tribe, the place, the type of divorce, and any other relevant information.”

21. On the issue of the evidence and necessary to prove a Ghanaian divorce the UK BIA website nationality instructions say:

"3.3.1 The Customary Marriage and Divorce (Registration) Law 1985 provided for the proper registration of divorces in Ghana, and was retroactive. All Ghanaians, whether living in or outside of Ghana, can now obtain certificates of divorce and they should be requested from applicants whenever marital status is important.

3.3.2 However, under the Customary Marriage and Divorce (Registration) Law 1991, registration is no longer mandatory. Where the relevant certificates are not available, we should expect to receive a statutory declaration by the heads of the families concerned (or two people representing the legal interests of the parties) confirming the date, place and type (e.g. tribal custom) of the marriage and/or divorce."

22. Mr Rooney produced a Notice of Registration of the divorce of the appellant and his first wife in the Accra Metropolitan Assembly, Marriage District. The divorce was registered on 13 November 2008 confirming that the marriage was dissolved on 7 September 1975. However, the registration itself is not evidence that we can take into account as the position must be assessed as at the date of decision, the provisions of s.85(5) of the Nationality, Immigration and Asylum Act 2002 having effect in relation to an appeal under the 2006 Regulations by virtue of Schedule 1.

Assessment

23. We are satisfied, and Mr Wright did not seek to resist a finding, that the appellant had entered into a customary marriage in 1973 which was dissolved in accordance with the appropriate customs on 7 September 1975. We accept that the dissolution is properly evidenced by the statutory declaration made by relatives of both the appellant and his former wife on 18 June 2008. Mr Wright accepted in the light of this finding that the appellant was entitled to a family permit under reg 12 and that no material issues arose under reg 11(4).

24. So far as the position relating to customary marriages and divorces in Ghana is concerned there is no substantial difference between the evidence produced by the appellant and the respondent and we can summarise our findings as follows:

(a) A customary marriage is a lawful form of marriage in Ghana which must be carried out under the relevant particular tradition and customary practices.

(b) Although registration was mandatory from 1985 to 1991, failure to register did not affect the validity of the marriage. Registration is now optional.

(c) Customary marriages can be lawfully dissolved in accordance with the applicable customary law. Dissolutions may also be registered but again registration is optional. Once a customary marriage has been dissolved, the parties are free to enter into another marriage. Customary law generally permits polygamy but this is not permitted for marriages under the Marriage Ordinance Act.

(d) The onus of proving either a customary marriage or dissolution rests on the party making the assertion. Under the immigration rules it is for the appellant to prove that a marriage is valid. Where this involves proving that a previous customary marriage has been dissolved, it is reasonable to expect the appellant to produce the best available evidence to support this assertion. As registration of the dissolution of a customary marriage is not mandatory in Ghana, an appellant does not necessarily have to produce a registration of dissolution to prove the divorce although it would be sensible to do so. In the alternative evidence in the form of a statutory declaration or affidavit produced by family members or other people able to confirm the dissolution of the customary tribal marriage should be produced. The fact that such evidence is not produced does not necessarily mean that the appellant cannot succeed on the basis of oral evidence alone but in such cases an appellant may need to explain the absence of documentary evidence which he can reasonably be expected to produce and may in consequence fail to discharge the onus of proof of showing that a previous marriage has been dissolved.

Decision

25. The original Tribunal materially erred in law. We substitute a decision allowing the appeal against a refusal of a family permit under the 2006 Regulations.

Signed Date: 19 December 2008

Senior Immigration Judge Latter