Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/10669/2012

THE IMMIGRATION ACTS

Heard at : Field House
Determination Promulgated
On : 5th June 2013
On : 20th June 2013

Before

Mr C.M.G. Ockelton, Vice-President
Upper Tribunal Judge McKee
Deputy Upper Tribunal Judge McCarthy

Between

morufu adekunle igbede

Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr Niyi Aborisade of OA Solicitors
For the Respondent: Mr S. Allan of the Specialist Appeals Team

DETERMINATION AND REASONS

1. The appellant is a Nigerian citizen, born on 15th January 1960, who came to this country on a visitor’s visa in September 2005 and has since overstayed. In November 2011 he applied for a residence card as the family member of a Dutch national, Carmen Canto Pimentel, whom he said he had married by proxy in Nigeria on 13th July 2011. The application was refused on 26th April 2012, on the basis that the evidence provided did not prove Ms Pimentel to be a ‘qualified person’ in terms of reg. 6 of the EEA Regulations 2006, while the validity of the Nigerian certificate adduced as proof of the marriage was also queried.

2. Notice of appeal was received by the First-tier Tribunal on 4th May 2012, the grounds of appeal being that the Nigerian marriage certificate was indeed a genuine document and that the appellant’s wife was indeed exercising ‘Treaty rights’. The decision was also said to constitute an unlawful interference with the Article 8 right to private and family life. It was indicated on the notice of appeal that an oral hearing was requested, but the administrative staff wrote back to say that the appeal form had not been accompanied by a fee, and that the requisite fee for an oral hearing was £140. Mr Igbede responded that he had never requested an oral hearing and that he wanted his appeal to be determined ‘on the papers’, for which he attached the fee of £80. OA Solicitors were now instructed, and they confirmed that the appeal should be determined on the papers.

3. When the papers were put before Judge Nicholls on 4th September, however, he directed that the case be adjourned for an oral hearing, and this was duly listed for 28th September 2012. This appears to have been done without asking Mr Igbede whether he wanted an oral hearing and whether he was willing to pay the extra fee. The extra fee was not in fact paid, and the appeal went ahead with a Yoruba interpreter being booked for Mr Igbede and a Spanish interpreter for his wife, who hails originally from the Dominican Republic. It would seem that this arrangement was not contrary to the First-tier Tribunal (Immigration and Asylum Chamber) Fees Order 2011, which at Article 5(4) stipulates that where, having paid the £80 fee for a paper determination, “the appellant withdraws their consent to the appeal being determined without a hearing”, the balance of £60 “becomes payable on the withdrawal of that consent.” In this instance, however, it was not a matter of the appellant withdrawing his consent. Rather, the First-tier Tribunal decided of its own motion to list the appeal for an oral hearing.

4. Mr Igbede and Ms Pimentel both gave evidence at the hearing, it being confirmed that a customary wedding ceremony had taken place in their absence and that it had been registered the following day at the customary court by the appellant’s brother. The Presenting Officer could adduce no evidence that the marriage certificate was a false document, and Judge Nicholls was satisfied on the evidence that Ms Pimentel was a worker for the purposes of regulation 6. But the issue was now raised whether the marriage attested by the certificate could be recognised under English law. The judge acknowledged that it might be valid in the local area where it had been registered, but he was not satisfied that it was valid according to the laws of the Nigerian state itself. He therefore concluded that the appellant was not entitled to a residence card as the family member of an EEA national. In the alternative, it was argued on behalf of the appellant that the decision to refuse a residence card breached the appellant’s rights under Article 8, but that argument was rejected by Judge Nicholls because there had been no decision to remove the appellant.

5. Permission to appeal to the Upper Tribunal was now sought on the basis that the First-tier judge had misunderstood the position of customary marriages within the federal law of Nigeria. It was also asserted that the judge had ignored Article 3.2(b) of the Citizens Directive, which enjoins the Member States to facilitate the entry and residence of the partner with whom a Union citizen has a durable relationship, duly attested. This ground was not included in the notice of appeal to the First-tier Tribunal, nor was it raised at the hearing before Judge Nicholls. Nor was it mentioned by Judge Chohan when he granted permission to appeal. His grant was confined to the issue of whether proxy marriages are valid in Nigeria, on which issue it was said that “cogent evidence” would be needed that such marriages are recognised.

6. On 16th January 2013 the appeal came before Upper Tribunal Judge McKee and Deputy Upper Tribunal Judge Grimes, when the appellant was represented by Mr Aborisade and the respondent by Mr Deller. It was decided that the case would be suitable for listing before a Presidential or Vice-Presidential panel, as it was one of a large number of similar cases which had come before the First-tier Tribunal, where Nigerian men with irregular immigration status had applied for residence cards on the basis of marriage to nationals of Member States by proxy in Nigeria. It was clearly desirable that guidance be given on whether such marriages could confer rights under European law. The case was accordingly adjourned without a decision being made on whether there had been an error of law at first instance, and in due course it was listed before a Vice-Presidential panel of the Upper Tribunal.

7. For the hearing, OA Solicitors provided an Appellant’s Bundle in which was reproduced an Affidavit sworn on 14th July 2011 by the appellant’s brother, who declares himself head of the Igbede family and deposes that a customary marriage took place by proxy the previous day, at which the bride was represented by a Mr Morina Sabina (no relation of hers), and a dowry of a goat and 500 Naira was collected by the representative. Also reproduced was a certificate issued on 14th July 2011 by the Registrar of the Customary Court Central Registry at Mapo Hill, Ibadan, expressing satisfaction that the traditional marriage conducted the previous day between Mr Igbede and Ms Pimentel “conformed with the native law and custom of the land.” The basis for the Registrar’s satisfaction was an oral motion moved on 14th July 2011 by Mr Igbede’s brother at the customary court, supported by the Affidavit already mentioned.

8. The rest of the Appellant’s Bundle consists largely of Nigerian cases concerning customary marriage, but none concern proxy marriage where one of the parties is not Nigerian and is not represented by a member of her family. There is also an “Expert Opinion” by one Prince Lateef O. Fagbemi, a Senior Advocate of Nigeria practising from Temitope Chambers in Abuja. Emphasizing the continuing importance of customary law in a wide range of matters, he lists the “essential ingredients” of a customary marriage, as settled by a long time of decisions by the superior courts of Nigeria, as follows :
(i) capacity of either party to marry;
(ii) consent of the parties and of their parents;
(iii) payment of dowry by the intending husband to the parents of the bride; and
(iv) a ceremony of marriage according to the custom of the people, and handing over of the woman to the man’s family, except in the case of marriage by proxy.

9. Regarding marriage by proxy, Mr Fagbemi explains that customary law allows this, provided the parents of both parties consent to the marriage and that they or their representatives are present at the wedding ceremony, so that the dowry can be handed over to the bride’s parents and the bride (if she is present, but not her husband) can be handed over to the groom’s parents.

10. At the hearing, we raised the question whether the law of the country of Ms Pimentel’s nationality (the Netherlands, not Spain, her mother tongue having given this mistaken impression) or of her domicile, if that is different, permits entry into a potentially polygamous marriage, such as a Nigerian customary marriage. Since the Private International Law (Miscellaneous Provisions) Act 1995 this has not been a problem for people domiciled in England and Wales, so Mr Aborisade sought to argue that Ms Pimentel has acquired a domicile of choice in this country. He founded on one sentence in Ms Pimentel’s witness statement : “Our marriage is based on mutual love and we intend to live permanently together in the UK.” That is very far from dislodging the presumption that Ms Pimentel has retained her domicile of origin, and we have no evidence before us concerning the law of that domicile.

11. In any event, two of the “essential ingredients” of a valid customary marriage, identified in the Expert Report provided to us, are clearly missing in the present case. The Affidavit sworn by the appellant’s brother, Paul Lawal, includes an assertion that the marriage was conducted with the consent of the bride’s parents, but there is no confirmation from them that their consent had been obtained. It is also asserted that the bride was represented by a Mr Morina Sabina, but there is no confirmation from the bride’s parents that he was authorised to represent them. In short, there is no reliable evidence that the consent of Ms Pimentel’s parents was obtained or that they were represented at the wedding by someone whom they had appointed. On the basis of the expert evidence provided by Mr Fagbemi, we cannot be satisfied that the requirements of a valid customary marriage were met in this instance.

12. It follows that Judge Nicholls did not err at first instance when he concluded that “the Appellant has not demonstrated that his marriage to his wife is a valid marriage in accordance with the laws of the Federal State of Nigeria.” Insofar as customary marriages are lawful in Nigeria, there was not been a valid customary marriage in the present case, for want of essential ingredients of such a marriage. Nor did Judge Nicholls make an error of law when he found that Article 8 was not engaged in the present appeal, because the refusal of a residence card did not prevent the appellant and Ms Pimentel from continuing to live together. Mr Aborisade contended that no consideration was given to whether the appellant was in a “durable relationship” with an EEA national, such as to make him an “extended family member” for the purposes of reg. 8 of the EEA Regulations 2006. But this was not a contention which was raised in the notice of appeal to the First-tier Tribunal or at the hearing before Judge Nicholls. So he cannot be said to have made an error of law by not considering it.

DECISION

The determination of the First-tier Tribunal is upheld, and the appeal is dismissed.

Richard McKee
Judge of the Upper Tribunal
18th June 2013