Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number:
OA/08446/2015

THE IMMIGRATION ACTS

Heard at: Field House
Decision Promulgated
On: 17th January 2017
On: 18th January 2017

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

Madiha Mohsin Mufti
(No anonymity direction made)
Appellant

And

Entry Clearance Officer, Islamabad
Respondent

For the Appellant: Mr R. Ahmed, Counsel instructed by Juris Solicitors
For the Respondent: Mr S Kotas, Senior Home Office Presenting Officer

DETERMINATION AND REASONS

1. The Appellant is a national of Pakistan born on the 14th October 1984. She appeals with permission1 the decision of the First-tier Tribunal (Judge NMK Lawrence) dated 8th August 2016 to dismiss her appeal against a decision to refuse to grant her entry clearance under Appendix FM as the spouse of a person present and settled in the United Kingdom.

2. The sole matter in issue before the First-tier Tribunal was whether Appellant and her sponsor Mr Mohsin Mufti were validly married. The ECO had noted that Mr Mufti had previously been married, and that he had submitted a Pakistani divorce certificate dated 10th June 2011. Although this talaq-nama had pre-dated the marriage to the Appellant by some three years, the ECO was not satisfied that is showed the marriage to have lawfully dissolved:

"your sponsor is required to submit a United Kingdom issued Decree Absolute as he sponsored his first spouse entry into the UK".

Although it is not spelled out, presumably the ECO was here concerned that the first Mrs Mufti was still living in the United Kingdom. This raised a question about whether she could be divorced in Pakistan, as well as the spectre of possible polygamy.

3. In dismissing the appeal the First-tier Tribunal took an entirely different tack. At paragraphs 2 and 9 the determination records that Mr Mufti's first wife was a British citizen. It goes on to assert that he obtained entry to the United Kingdom, and subsequently British nationality, by virtue of that marriage. As a result, the Tribunal reasons, the dissolution of that marriage had to be validly conducted in the country of domicile of the parties, before the marriage to the Appellant took place in August 2014. Since both parties appeared to be British, and there was no English divorce until Uxbridge Family Court became involved in December 2015, this was not the case. The appeal was thereby dismissed.

The Appeal

4. Mr Ahmed's point on appeal is a simple one. The Tribunal got the law wrong because it got the facts wrong. Mr Mufti's first wife was not a British national at all. She was a Pakistani national who married him in accordance with the laws of Pakistan (a nikah followed by registration with the Union Council under the terms of the Muslim Family Law Ordinance 1961) in 2007. At the time he was a work permit holder and he sponsored an application for her to come and see him in the United Kingdom. She subsequently returned to Pakistan and was resident there when Mr Mufti declared talaq in 2011. That is confirmed by the divorce certificate issued by the Government of Khyber Pukhtunkhwa. It gives her address at the time of the divorce as Nishar Abad, Peshawar. The certificate gives the date on which conciliation was deemed to have failed, and the date that the divorce was granted, as the 10th June 2011. Mr Ahmed places reliance on the terms of the Family Law Act 1986, section 46, which deals with recognition of foreign divorces:

"Grounds for recognition.
(1) The validity of an overseas divorce, annulment or legal separation obtained 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; and
(b) at the relevant date either party to the marriage-
(i) was habitually resident in the country in which the divorce, annulment or legal separation was obtained; or
(ii) was domiciled in that country; or
(iii) was a national of that country.

5. Mr Ahmed submitted that the divorce evidenced by the talaq-nama certificate issued by the Khyber Pukhtunkhwa government demonstrated:

a) That it was a divorce obtained by means of proceedings. I accept that analysis. It is not a bare talaq. It is a divorce properly registered in accordance with the MFLO 1961;

b) It is effective under the law in the country in which it is obtained;

c) At the relevant date (10th June 2011) Mr Mufti's first wife was habitually resident in Pakistan;

d) She was arguably then domiciled there, and in any event

e) She was certainly a national of that country.

6. For the Respondent Mr Kotas conceded that under either alternative (habitual residence or nationality/domicile) in s46, that divorce was recognised by the United Kingdom. It follows that the error as to the facts was material and the decision of the First-tier Tribunal must be set aside.

The Re-Made Decision

7. Given what is said above it is perhaps not necessary to revisit the ECO's reasoning in any great detail, since it is evident that he too approached the matter under the misapprehension that Mr Mufti's first wife had remained living in the United Kingdom. In view of s.46(b) (iii) it would seem that the reasoning was misplaced. In any event I am satisfied, having had regard to the talaq-nam,a that she was at the date of divorce living in Peshawar (it would appear with her father). For the reasons already elaborated, that means that the divorce was valid as far as United Kingdom law was concerned. It follows that Mr Mufti was free to marry the Appellant on the 23rd August 2014. That being the only matter in issue the appeal is allowed.

Decisions

8. The determination of the First-tier Tribunal contains an error of law and it is set aside.

9. The decision in the appeal is remade as follows:

"The appeal is allowed under the immigration rules"

10. There is no order for anonymity.

Upper Tribunal Judge Bruce
17th January 2017