(Immigration and Asylum Chamber) Appeal Number: IA/23315/2012
THE IMMIGRATION ACTS
Heard at Field House
On 19th June 2013
On 21st June 2013
upper tribunal judge MARTIN
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
For the Appellant: Mr J Martin, instructed by St. John Legal
For the Respondent: Mr S Walker, Home Office Presenting Officer
DETERMINATION AND REASONS
1. This is an appeal to the Upper Tribunal by a citizen of Ghana born in July 1976. His original appeal to the First-tier Tribunal was in relation to a Decision made on 13th October 2012 refusing his application for a residence card as confirmation of his right to reside in the UK as the family member, namely a spouse, of an EEA national. His wife was originally of Ghanaian nationality but is now a Dutch national.
2. The appeal to the First-tier Tribunal was dismissed by Judge Morris in a determination promulgated on 4th January 2013. The reason for the original refusal was that the marriage was not valid because customary marriages had to be registered within three months in Ghana or they were not valid. The judge in the determination in the First-tier made various adverse credibility findings and dismissed the appeal. Permission having been granted to the Upper Tribunal, the matter then came before Judge Spencer on 18th March 2013 when the Appellant was once again represented by Mr Martin and in fact, as today, the Respondent was represented by Mr Walker. On that occasion Judge Spencer found that the First-tier Judge had made an error of law because she had decided the appeal on a basis not advanced by the Respondent without giving the Appellant the opportunity to adjourn and to prepare the case. The First-tier Tribunal Judge appeared to find the marriage not to be genuine and had not made a finding as to validity. By the time the matter came before Upper Tribunal Judge Spencer it was accepted that the marriage did not have to be registered within three months to be valid. However, there was also an issue raised by Judge Spencer, namely that according to the case of NA (customary marriage and divorce – evidence) Ghana  UKAIT 00009 when the Tribunal had expert evidence, a customary marriage was only available between two Ghanaian citizens and in this case it is accepted that the wife had given up her Ghanaian citizenship. Judge Spencer adjourned the case so that Mr Martin could prepare on the basis of the NA point and also for a rehearing generally.
3. A Transfer Order having been signed by the Principal Resident Judge, the matter then came before me for the resumed hearing. The Appellant’s representatives had put in a substantial bundle of documents including a lot of photographs of family members attending the customary marriage and various other documents addressed to the Appellant and his wife at their current address in Watford. The Appellant had also obtained a further expert report from the same expert who had given evidence in NA, Mercy Akman. It was she who, before the Tribunal in NA, said that customary marriages were only available to Ghanaian nationals. In her new report she said that she, after additional research and reflection, wished to clarify and revise that opinion to say that customary marriages were available between non-Ghanaian citizens. I have concerns about that expert opinion because it was not sourced or evidence-based which cast doubt, in my view, over not only that expert report but the evidence before the Tribunal in NA. However that all became somewhat irrelevant when Mr Walker produced a UKBA document entitled “Customary Marriage and Divorce/Proxy Marriages contracted in Ghana” dated 17th January 2012 which at page 3 refers to those eligible to enter into such marriages and it includes:-
Ghanaian nationals resident in Ghana or abroad;
At least one of the parties must be a Ghanaian national;
If both parties are non-Ghanaian nationals at least one of the parents of any of the couple must be a Ghanaian national
For a customary marriage to be registered. Non-Ghanaian nationals with no parental links to Ghanaian citizenship are not entitled to customary marriage certificates.
In this case the wife was of Ghanaian origin and her family are there, so Mr Walker accepted on behalf of the Secretary of State that they were entitled to enter into a customary marriage in Ghana. He also accepted that they had in fact entered into a customary marriage based on the new photographic evidence. He did not challenge the genuineness of the relationship.
4. Therefore, the Home Office Presenting Officer accepting that the couple have entered into a customary marriage in Ghana he also accepted on behalf of the Secretary of State that the Appellant is a family member of an EEA national, exercising treaty rights in the UK, and as such entitled to succeed under the Regulations. Accordingly the appeal is allowed under the EEA Regulations.
Signed Date 20th June 2013
Upper Tribunal Judge Martin