Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal no: HU /13832/2016

THE IMMIGRATION ACTS

At
Decision & Reason Promulgated
On 16.10.2017 & 05.12.2017
On 08.12.2017

Before:
Upper Tribunal Judge
John FREEMAN

Between:
sumaira Bibi
appellant
and

respondent
Representation:
For the appellant: Mr EK Mahmood (working under the supervision of NationWide Law Associates)
For the respondent: Mr Paul Duffy

DECISION AND REASONS
This is an appeal, by the , against the decision of the First-tier Tribunal (Judge Mohd. Asif Khan), sitting at Hatton Cross on 14 July, to an appeal by a citizen of Pakistan, born there in 1977, against refusal of a visa for her to join Arshad Mahmood (the sponsor) here as his wife. The sponsor, who became a British citizen by naturalization on 22 December 1999, had been married before; but on 18 May 2001 he pronounced talaq against his first wife before a lawyer in Pakistan. He married the appellant in Pakistan on 10 December that year, but did not get a decree absolute of divorce from his first wife (in the Sheffield County Court) till 22 January 2004.
2. At paragraph 16 the judge concluded, without going into details as to why, that the talaq would not be recognized under the law of England and Wales. However he went on at 17 to find that the marriage between the sponsor and the appellant would even so be recognized under English law "? because it is recognized in Pakistan", taking the view that there was nothing to stop the sponsor from entering into a polygamous marriage under Pakistani law.
3. That conclusion may well have been right, so far as it went; but the judge was clearly aware that something more needed to be said. He went on at 18 to say this:
There is the issue as to where the sponsor was domiciled at the time of his second marriage. The fact that the sponsor had a British passport in 2001 does not necessarily mean that he was domiciled in the UK [sic], having a British passport ? is not a conclusive factor in ones place of Again that was right, so far as it went; but the judge went no further. The basic law on the subject is clearly summarized in the judicial head-note to Abdin (domicile - actually polygamous marriages) Bangladesh [2012] UKUT 309 (IAC):
Whilst the Private International Law (Miscellaneous Provisions) Act 1995 amended section 11(d) of the Matrimonial Causes Act 1973 so that a potentially polygamous marriage would not be void if either party was at the time of the marriage domiciled in England and Wales, it did not alter the position regarding actually polygamous marriages. Under section 11(d) of the 1973 Act a polygamous marriage entered into outside England and Wales shall still be void if either party at the time of the marriage was domiciled in England and Wales.
4. The judge had found that the talaq itself was not valid; so on that basis he unarguably needed to make an express finding as to the sponsor's domicile at the time of his marriage to the appellant before finding that that was valid. Recognition of overseas divorces is governed by the Family Law Act 1986; in this case there is no evidence that the talaq was obtained 'by means of proceedings', and it might be described as a bare talaq. Mr Mahmood sought to support it as valid by the law of Jammu and Kashmir, still applying in Azad Kashmir, the part claimed by Pakistan, and the homeland of the relevant parties.
5. However, the terms of the 1986 Act are quite clear: by s. 46 (2)
The validity of an overseas divorce ? obtained otherwise than by means of proceedings shall be recognised if-
(a) the divorce, annulment or legal separation is effective under the law of the country in which it was obtained;
(b) at the relevant date-
(i) each party to the marriage was domiciled in that country; or
(ii) either party to the marriage was domiciled in that country and the other party was domiciled in a country under whose law the divorce, annulment or legal separation is recognised as valid; and
(c) neither party to the marriage was habitually resident in the United Kingdom throughout the period of one year immediately preceding that date.
6. Under s. 46 (a), the talaq 's intrinsic validity needed to be established according to the law of Jammu and Kashmir. As for the status of the parties, the talaq could clearly not be recognized under s. 46 (2) (b) (i), unless also both the sponsor and his first wife had been domiciled at the time in that state; or under (ii), unless one was domiciled there, and the other in some other country which recognized the talaq. Under s. 46 (2) (c), it also had to be shown that neither of them were habitually resident in this country for the year before it was pronounced. It follows that, for the appeal to be allowed, the questions of the sponsor's and his first wife's domicile and habitual residence at the time of the talaq needed to be answered by specific findings on the part of the judge, of which there is no sign in his decision.
7. In the circumstances the judge's decision is set aside, and I shall go on to make the necessary findings for myself, having heard the sponsor's evidence (in English, with an Urdu interpreter standing by to help if needed, which she was not) on 5 December. On the s. 46 (a) question, the talaq appears to have been pronounced in Jammu and Kashmir, and Mr Duffy was content for me to take the family law of that state as it was accepted in Baig (Immigration - Validity of Pakistani Divorce) Pakistan * [2002] UKIAT 04229, to which Mr Mahmood referred me.
8. The Tribunal in Baig noted that the Pakistan Family Law Ordinance 1961, and particularly the procedural requirements for a talaq under s. 7, were generally accepted not to apply in Jammu and Kashmir. The expert evidence before the Tribunal showed that a 'bare talaq ' (in other words, one pronounced, as in this case, without the registration or 90-day 'cooling-off period' required by s. 7) was valid under the law of that state, and so that can also be assumed in this case.
9. The sponsor had signed a document headed 'Ammended witness statement' on 5 December, which he confirmed and enlarged on in oral evidence. He had come to this country in 1993 as the husband of his first wife, a British citizen. In 1994 he had been given indefinite leave to remain on that basis, and then gone back to Pakistan for a month or two, to see his mother, who was sick. He accepted Mr Duffy's summary of his movements till 2001 as involving regular visits to Pakistan, but not for more than two or three months at a time.
10. Asked why he had applied for British citizenship in 1999, the sponsor explained that he had done so because he wanted to live here, for the indefinite future. After they had had three children, all British citizens, he had fallen out with his first wife in 1996 or 1997, and by this time was separated from her. His first wife had grown up in this country and always lived here, apart from visits to Pakistan for and following their marriage in 1986. There had never been any plan for the first wife to live in Pakistan, and she had been unwilling to share a roof with his mother. His plans for the future when he became a British citizen were to live and work in this country; but by that time his first wife didn't want to be with him.
11. In 2001 both the sponsor and his first wife had gone out to Pakistan, so he could pronounce talaq against her. From that time on till 2015, when his mother had died, he had lived in Pakistan, as he needed to look after her. He said he had lived in this country for ten years in all, but had no property here: he was living with his sister, brother-in-law and nephew. When he had last renewed his British passport, he had done so at the British High Commission in Islamabad.
12. Some findings of fact can be made without difficulty:
(a) the sponsor's first wife retained her domicile of origin in this country throughout: there is simply no evidence to the contrary;
(b) both she and he were habitually resident here during the year before the talaq was pronounced on 18 May 2001: the evidence referred to at paragraphs 9 - 11 makes it clear that this did not change, in his case, till after that, when he stayed there, first to marry the appellant on 10 December that year, and then to look after his mother till she died;
(c) the appellant has been domiciled in Azad Kashmir throughout.
13. The question of whether the sponsor acquired a domicile of choice in this country when he became a British citizen in 1999 is more problematic, and I shall go on to consider it only if I need to: the rules of private international law require clear evidence that he intended to give up his domicile of origin, and live in this country for good. If the appellant had to establish the validity of the talaq under s. 46 (2) of the Family Law Act 1986, in order to show that her marriage was also valid under the law of England and Wales, then it is clear that each of my findings (a) on the first wife's domicile, and (b) on her and the sponsor's habitual residence during the year before the talaq , would be fatal to the appellant's case.
14. Nor could the talaq could qualify for recognition under s. 46 (2) (b) (i), nor under (ii), since, even if the sponsor remained domiciled in Jammu and Kashmir, his first wife never was, and the law of this country would not recognize a bare talaq pronounced there unless all the requirements of s. 46 (2) were satisfied. Finally, since each of them was habitually resident in this country for the relevant year, the talaq was in any case disqualified from recognition by s. 46 (2) (c).
15. The argument to the contrary relied on by Mr Mahmood is taken from Abdin (see 4). At paragraph 7, the Upper Tribunal (Judge Hugo Storey) sets out the grounds on which a marriage is void, under the Matrimonial Causes Act 1973 s. 11, as amended by the Private International Law (Miscellaneous Provisions) Act 1995. The relevant ones are these:
(d) in the case of a polygamous marriage entered into outside England and Wales, that either party to the marriage was at the time of the marriage domiciled in England and Wales.
For the purposes of paragraph (d) of this subsection a marriage is not polygamous if at its inception neither party has any spouse additional to the other.

16. Mr Mahmood went on to refer to paragraph 9 of Abdin, where s. 5 of the 1995 Act is set out, as follows:
5 Validity in English law of potentially polygamous marriages.
(1) A marriage entered into outside England and Wales between parties neither of whom is already married is not void under the law of England and Wales on the ground that it is entered into under a law which permits polygamy and that either party is domiciled in England and Wales.
(2) this section does not affect the determination of the validity of a marriage by reference to the law of another country to the extent that it falls to be so determined in accordance with the rules of private international law.
17. So far as the relevance of this section is concerned, the words 'neither of whom is already married' in sub-section (1) confirms what the heading suggests. This section is dealing with potentially polygamous marriages; but the marriage between the sponsor and the appellant in this case was actually polygamous, unless the talaq had been valid in terms of s. 46 (2) of the Family Law Act 1986, since, if not, then he was still married to his first wife at its inception. Here s. 5 of the 1995 Act is completely irrelevant, and the validity of the marriage has to be decided by reference to s. 11 (d) of the Matrimonial Causes Act 1973. The effect of this is that the marriage is to be regarded as void, if, and only if the sponsor was domiciled in England and Wales when it took place, and so I shall have to decide that question on the facts.
18. The sponsor's declaration in his statement that he still retains his domicile of origin counts for little: this is a question for me to decide on the relevant facts. Since the question is where he was domiciled at the time of his marriage in 2001, these mainly relate to his movements and intentions up to that point, though what has actually happened since is also relevant. While the sponsor married a British citizen in 1986, came to live here in 1992, and got indefinite leave to remain in 1993, the first event which might show he intended to make his permanent home in this country, rather than in Pakistan, was his acquisition of British citizenship in 1999.
19. However by this time the sponsor had already fallen out with his British wife, mainly because, he said, she was unwilling for them to live with his mother in Pakistan. While he went on living in this country for most of the year till 2001, it was to Pakistan that he returned, with her as it happened, to pronounce talaq that May, Then he not only remained there till December to marry the appellant, but for the next 14 years, to look after his mother till she died.
20. The sponsor now lives in this country, but with his sister and family, as he has never acquired a house of his own here. In most cases taking out British citizenship is strong evidence of an intention to become domiciled in the relevant part of the United Kingdom, and, if this sponsor had still been together with his first wife when he did so, then it would have been very strong evidence that they intended to make their permanent family home in this country.

21. However that was not the case, and, as events showed, the sponsor's main loyalty remained with his mother, as long as she lived. While he got an English divorce from his first wife in 2004, that may have been for her purposes, rather than his. At all events, it did not lead him to do anything about returning to this country till after his mother died in 2015, and the appellant's visa application was made early the following year.
22. Taking all the relevant evidence together, I am not satisfied that the sponsor intended to give up his domicile of origin when he took out British citizenship in 1999, or at any time before he married the appellant in Azad Kashmir in 2001. Permission to appeal was sought and given only on the validity of the marriage, and it follows, as already explained, that the appeal must be allowed.
Respondent's appeal allowed: first-tier decision set aside
Appellant's appeal against refusal of wife visa allowed

(a judge of the Upper Tribunal)