Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: hu/04562/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 5th March 2018
On 26th March 2018

Before

DEPUTY UPPER TRIBUNAL JUDGE SAINI

Between

entry clearance officer
Appellant
and

MRS SHAGUFTA FIRDOS
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Ms K Pal, Senior Home Office Presenting Officer
For the Respondent: Mr M. Ahsan, Sponsor

DECISION AND REASONS
1. The Entry Clearance Officer appeals against the decision of First-tier Tribunal Judge Aziz promulgated on 4th July 2017 allowing the appeal of the Appellant on the basis of her human rights in respect of an entry clearance application under the Family Reunion Provisions of the Immigration Rules, particularly paragraph 352A of those Rules. The Entry Clearance Officer was granted permission to appeal by Upper Tribunal Judge Martin sitting as a judge of the First-tier Tribunal. The reasons given for granting permission may be summarised as follows:
"It is arguable that the First-tier Tribunal has made errors of law for the reasons succinctly set out in the grounds, in particular that the decision to allow the appeal on Article 8 grounds is based on an erroneous finding that the marriage was valid when it was undertaken in the UK by proxy and thus not recognised as valid. The Judge arguable was in error in believing that the requirements of the Immigration Rules were met."
2. I was not provided with a Rule 24 reply but was addressed by the Sponsor in casual submissions.
3. Given that the Appellant was unrepresented, and as the Sponsor indicated was his preference, I ensured that the Entry Clearance Officer's representative made her submissions first, and in extremely simple terms. I then canvassed with the Sponsor whether he understood all the arguments made and ensured that he comprehended the procedure, the complaints made against the First-tier Tribunal's decision. I finally ensured that the Sponsor was able to ventilate his reasons in reply on the Appellant's behalf as to why the decision was free from error, and that he was able to make any other submissions he saw fit on his wife's behalf.
Error of Law
4. At the close of the hearing I reserved my decision which I shall now give. I do not find that there was an error in law such that the decision should be set aside. My reasons for so finding are as follows.
5. The Entry Clearance Officer's appeal is contained in three short paragraphs. The first two paragraphs concern the submission that the validity of the marriage in England and Wales is governed by the law of the country where the marriage is celebrated, however given that the Nikkah ceremony took place with the Sponsor present in England on 1st May 2012 as noted on the marriage certificate, the judge erred in finding at paragraph 37 of his decision that the registration ceremony in Pakistan should be seen as the date of marriage, not the date upon which the Nikkah ceremony took place. In support of her appeal the Entry Clearance Officer has simply relied upon a web link to what appears to be a Wikipedia article (https://en.wikipedia.org/wiki/Marriage_in_Pakistan). Firstly I note that the Wikipedia article was not appended to the Grounds of Appeal, nor was there any application under Rule 15(2) of the Tribunal Procedure (Upper Tribunal) Rules 2008 to adduce that further evidence beforehand, nor was any such application made before me and nor was the article itself provided. Consequently, without any production of the article in question or any application to rely upon it, the appeal contesting the basis upon which the judge reached the findings that he did at paragraphs 36 and 37 of his decision is based upon mere assertions rather than objective or background evidence or higher court authority or a professional/expert report on proxy marriages conducted with one party in Pakistan and one in the UK as being invalid in the United Kingdom, as one would have expected. I note before going further that the second part of the grounds in relation to Article 8, as Ms Pal conceded, is entirely contingent upon the first issue being made out namely in respect of the judge's findings concerning the applicable date of marriage not being open to him.
6. Notwithstanding that the article was not produced and no application was made to adduce that evidence I do go on to consider this matter for the sake of completeness and to provide a view on the matter from the Upper Tribunal in the event that I am wrong.
7. In my view the judge was entitled to make the findings that he did at paragraphs 36 and 37 of his decision. He makes clear that he was prepared to accept the evidence he heard from the Sponsor that he comes from a community in which there are several events which take place over a period of time and that it is the registration ceremony at the end of these events which should be seen as the relevant date of the marriage. The Wikipedia article was not before the First-tier Judge nor is there any reason given why that was not so, nor any indication that an opporunity to present that evidence did not exist. Notwithstanding that, even if it were before me or before the First-tier Judge I do not find that it would reveal a material mistake of fact. This is because the judge reached the findings that he did based upon the live evidence heard from the Sponsor which takes matters beyond a mere Wikipedia article authored by members of the public and this was evidence that the judge was plainly permitted to either accept or reject in the event.
8. Notwithstanding that, I do find that the marriage was a valid one because, as stated in the Grounds of Appeal to this Tribunal, the Entry Clearance Officer mentioned that the law of England and Wales recognises a marriage as being valid if it is considered to be valid in the jurisdiction where it was contracted. In this regard I note the Court of Appeal's decision in Awuku v Secretary of State for the Home Department [2017] EWCA Civ 178 wherein at [15, 16 and 23] the Court of Appeal unanimously decided that the law of England and Wales recognises a proxy marriage if it is valid by the lex loci celebrationis principle. That principle states in short that if the marriage is valid in the country where it is celebrated, then it is a valid marriage for the purposes of the law of England and Wales.
9. I note that the key reason given for refusal is that the Entry Clearance Officer relied upon a position that a proxy marriage performed where one of the parties was in the UK and the other was in Pakistan was not a valid marriage for the purposes of entry clearance. However, that position which appears to be supported by a letter from the British High Commission of 9th November 2010 which appears at paragraph 24.61 of the Country of Origin Information Report for Pakistan published on 7 December 2012, cannot undermine or deviate from the binding authority of Awuku which makes clear that if Pakistan recognises proxy marriages by telephone which it does appear to do according to paragraph 24.60 of that Country of Origin Information Report, then according to the lex loci celebrationis that proxy marriage conducted remotely with a party in the UK and one party in Pakistan, would always be valid according to the Muslim Family Law Ordinance 1961. Consequently, notwithstanding the finding by the First-tier Judge that the operative date of the marriage was its registration in Pakistan, the marriage would be valid even if taking the date of the marriage being contracted and it being conducted by telephone proxy (where one party was in the UK and one party was in Pakistan) because such marriages are recognised in Pakistan, and therefore are in turn recognised as valid under the law of England and Wales. According to the lex loci celebrationis principle.
10. Therefore in light of the above, the Entry Clearance Officer's appeal against the findings of the First-tier Tribunal Judge do not reveal an error of law such that the decision should be set aside.
Notice of Decision
11. The appeal to the Upper Tribunal is dismissed.
12. The decision of the First-tier Tribunal is hereby affirmed.
13. No anonymity direction is made.

Signed Date 22/03/2018

Deputy Upper Tribunal Judge Saini