Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/16410/2013

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 13 December 2013
On 23 December 2013

Before

DEPUTY UPPER TRIBUNAL JUDGE ZUCKER

Between

MS KATE OPPONG-BERKO
(ANONYMITY ORDER NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR the HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms C Hulse, instructed by Hammond Lloyd Legal
For the Respondent: Mr J Parkinson, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The Appellant is a citizen of Ghana whose date of birth is recorded as 18 November 1979. On 23 April 2013 her application for a Residence Card as confirmation of her right of residence in the United Kingdom was refused by the Respondent. She appealed. Her appeal was heard by Judge Morrison, Judge of the First-tier Tribunal, on 22 August 2013 when sitting at Glasgow. The Judge had regard to Regulation 7(1) and 8(5) of the Immigration (European Economic Area) Regulations 2006 and found that there was no valid marriage between the Appellant and her Dutch Sponsor but that there was a durable relationship such that the matter was to be remitted to the Secretary of State on the basis of the Appellant having been found an extended family member in the terms of Regulation 8(5) of the Regulations.
2. Not content with that Determination, by Notice dated 10 September 2013 the Appellant made application for permission to appeal to the Upper Tribunal. On 24 September 2013 Judge Hodgkinson, Judge of the First-tier Tribunal granted permission. Noting that the marriage relied upon was a customary marriage, Judge Hodgkinson went on, in granting permission to say at Paragraph 4 of the grant:-
“In Paragraphs 13-14 of his Determination, the Judge acknowledges that the registration of a Ghanaian customary marriage is no longer mandatory but, with reference to Paragraph 16, then appears to proceed to conclude that the marriage between the Appellant and her husband is no longer valid, because the statutory declaration, lodged with the application to register that marriage, is not in the requisite format. Clearly, if such registration is not required, it is difficult to see that a defect in the registration process itself is in any way determinative. In these circumstances, the Determination reveals an arguable error of law.”
3. This matter first came before me on 8 November 2013 when shortly after the commencement of the hearing, the Appellant appeared to go into labour. In the circumstances I adjourned the proceedings and although I had indicated on the basis of what had been said to me by Ms Martin, the Presenting Officer at the time, that there was an error of law, I appreciate that that concession was made in the rather unusual circumstances which appertained at the time so that when the matter came back before me on 13 December 2013 it was agreed that we would start afresh. All parties agreed that that was an appropriate way to proceed.
4. It was the submission of Ms Hulse that the Customary Marriage and Divorce (Registration) Law 1985 which provided at Section 2(1):-
“Where a marriage has been contracted, under customary law, either party to the marriage or both parties shall apply in writing to the Registrar of Marriages (referred to in this law as “The Registrar”) of the District in which the marriage was contracted for the registration of the marriage in the Register of Marriages in this law referred to as the “Register”.”,
had been amended by the Ghana Customary and Divorce [Registration] Act 1991.
5. The 1991 Act was not before the Judge below and indeed was not before me but there was no dispute that the Act amended Ghana’s Customary Marriage and Divorce (Registration) Law 1985 to make the registration, of marriages performed according to customary law, optional rather than mandatory. The parties to such a marriage might register it any time after it had been celebrated unless the Secretary for Justice subsequently set a time limit. The basis upon which there was common ground that the 1991 Act had made that amendment came from the guidance in the case of NA (Customary Marriage and Divorce – evidence) Ghana [2009] UK AIT00009.
6. The paragraph in the Determination which caused some difficulty was Paragraph 16 in which the Judge had written:-
“… Following the 1991 amendment introduced by the Ghana Customary Divorce and Registration Act 1991 registration is not mandatory but discretionary. However, where registration is undertaken then there is still a requirement for a valid statutory declaration. There is no doubt that in this case the marriage was registered. The certificate is headed, “Form of Register of Customary Marriages” which clearly indicates that the parties registered the marriage. That means that there has to be a valid statutory declaration. The statutory declaration was granted by Akwasi Siaw the father of Mr Osei and Daniel Oppong Berko the Appellant’s father. The statutory declaration is silent as to the whereabouts of the Appellant and Mr Osei. That being the case the inevitable conclusion is that the statutory declaration does not comply with the requirements of Section 3(1) of the 1985 Act and that as a result the marriage cannot be accepted as valid…”
7. Mr Parkinson submitted that the Judge was entitled to find that because the statutory declaration was deficient, the Judge was not accepting that there had been a valid marriage. Ms Hulse was for submitting that the Judge was finding that the statutory declaration was not valid but since registration was not required all that the Judge had found was that the registration was deficient; it did not follow that there was no marriage.
8. I find what the Judge has written to be ambiguous and as I cannot be satisfied what he meant, the Determination contains a material error of law lacking, as it does, sufficient clarity. In the circumstances it is necessary for me to remake the decision.
The Remaking of the Decision
9. When this matter was last before me on 8 November 2013 I had the opportunity to inspect the Sponsor’s passport. I noted as did Ms Hulse that the Sponsor’s Dutch passport contained within it a Ghanaian visa. That was some evidence that the Sponsor did not have dual nationality. If he did he would not have needed to travel to Ghana on his Dutch passport. I also observed, on the last occasion, en passant, that if the Sponsor were Dutch, it was likely, subject to Dutch law, that the child would be a Dutch national and that the Appellant, as the mother of a Dutch child, might be able to establish that she was the family member of an EEA National exercising treaty rights. Notwithstanding those observations made on the last occasion, the matter came back before me today.
10. Since the last hearing, the baby has been born. Contact has been made, I was told with the Dutch Embassy to establish the nationality of the child but all of that is an aside. I was concerned by a number of matters. Before remaking the decision in the Appellant’s favour I had to be satisfied as to the requirements in Ghanaian law for there to be a valid marriage. Ms Hulse was in some difficulties though there was the guidance in NA to which I have already referred. There was a further difficulty given the guidance in the case of Igbede IA/10669/2012 (Unreported) (though available on the website) in which the Vice President sitting together with Upper Tribunal Judge McKee drew attention to the question whether the law of the country of the Sponsor’s nationality permitted a customary marriage with regard having to be had to the Private International Law (Miscellaneous Provisions) Act 1995. The matter was stood down to allow Ms Hulse to make enquiries of the Dutch Embassy.
11. When the matter came back before me, Ms Hulse was able to inform me that she had received an email from the Dutch Embassy stating that customary marriages from Ghana were generally recognised though not polygamous marriages. I have summarised what was in the email because this appeal fails in the remaking for a far more fundamental reason. The guidance in NA makes clear at Paragraph 11, being the evidence that was received by the Upper Tribunal, that a valid customary marriage can only be validly contracted between two Ghanaian citizens. Ms Hulse immediately recognised the difficulty that she had in pursuing this appeal in the remaking. She accepted that both parties needed to be Ghanaian and that as the Sponsor was Dutch the appeal could not succeed. That really was the end of the matter. Whether in due course an application is made on the basis of the baby now born is not for me.
12. For the avoidance of doubt, however, I do not interfere with the decision of the First-tier Tribunal that the Appellant is an extended family member so that the decision is remade to the limited extent that the Secretary of State should consider the matter having regard to Regulation 8(5) of the 2006 Regulations.

Decision
The appeal to the Upper Tribunal is allowed on the basis of there being an error of law. In remaking the decision, the appeal is dismissed having regard to Regulation 7 of the Immigration (European Economic Area) Regulations 2006, it not having been established that the Appellant is the spouse of the Sponsor however the appeal is allowed to the limited extent that there is a durable relationship between the parties now proved more demonstrably by the birth of the child. The Secretary of State therefore is invited to exercise her discretion and to grant to the Appellant an EEA Family Permit.

Signed Date

Designated First Tier Tribunal Judge
(Sitting as a Deputy Judge of the Upper Tribunal)