Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004771

First-tier Tribunal No:
EA/50189/2024
LE/03048/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 30 August 2025

Before

UPPER TRIBUNAL JUDGE RUDDICK

Between

HANI HASHI SAID
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr L. Youssefian, instructed by Forward and Yussuf Solicitors
For the Respondent: Mr J. Nappey, Senior Home Office Presenting Officer

Heard at Field House on 13 August 2025

DECISION AND REASONS
1. This decision is the remaking, under section 12 (2) (b) (ii) of the Tribunals, Courts and Enforcement Act 2007, of a First-tier Tribunal (“FTT”) decision dated 29 August 2024 but set aside by the Upper Tribunal in a decision promulgated on 25 June 2025.
2. The appellant appeals against the respondent’s decision to refuse her entry clearance to the UK under Appendix EU (Family Permit). It is not in dispute that:
(i) The appellant is a citizen of Somalia and her husband (the sponsor) is a citizen of the Netherlands.
(ii) The sponsor was granted Indefinite Leave to Remain under Appendix EU on 4 December 2023.
(iii) The couple entered into an Islamic marriage in Kenya on 10 August 2019 and registered that marriage with the Kenyan civil authorities on 9 September 2022.
(iv) They are now legally married under Kenyan law and have been legally married under Kenyan law since at least 9 September 2022.
3. At the outset of the hearing before me, I confirmed with Mr Nappey that it is not the respondent’s position that the marriage is or has ever been a marriage of convenience, such that there is no requirement for the appellant to prove the genuineness and subsistence of her relationship to her husband. For the avoidance of doubt, although the issue of the genuineness of the couple’s marriage was not before me, I note that they have provided a number of wedding photographs, other photographs of them together appearing relaxed and happy in each other’s company, and records of their communication with each while apart. There is nothing here to raise any concern that their marriage was one of convenience.
4. The parties both confirmed at the outset of the hearing:
(i) If the couple’s marriage was legally valid under Kenyan law from the date of the Islamic ceremony on 10 August 2019, the appellant meets all of the requirements for a grant of entry clearance under Appendix EU (FP).
(ii) However, if the couple’s marriage was not legally valid under Kenyan law until the date of its registration with the civil authorities on 9 September 2022, the appellant cannot meet the requirements for a grant of entry clearance under Appendix EU (FP).
(iii) It is for the appellant to adduce evidence of the Kenyan law on which she relies, and for the tribunal to interpret and apply that law according to the principles set out in Brownlie v FS Cairo (Nile Plaza) LLC [2021] UKSC 45 and Hussein and Another (Status of passports: foreign law) [2020] UKUT 00250 (IAC)).
5. The appellant has provided the following documentary evidence of her marriage and its registration:
(i) A document entitled Affidavit 188/22, sworn by the couple before the Khadi Court at Voi, Kenya on 9 September 2022, asking for the Khadi to “solemnise this marriage and subsequently issue a marriage certificate in accordance with the Marriage Act 2014”; and
(ii) A document entitled “Republic of Kenya: Marriage Act, 2014: Muslim Marriage Certificate”, signed by a named Muslim Marriage Officer and stamped by the Khadi Court at Voi, Kenya. This is dated 9 September 2022.
6. As a guide to interpreting the legal effect of these documents under Kenyan law, the appellant has provided:
(i) A certified excerpt from the Kenya Gazette Supplement, published on 6 May 2014, setting out Part VII of the Kenya Marriage Act 2014, entitled “Marriage Under Islamic Law”; and
(ii) A Ruling issued by the Khadi’s Court at Upper Hill Nairobi on 11 December 2023 declaring that the couple’s marriage certificate issued on 9 September 2022 is “valid, legal and binding and must be treated with respect by all”, and giving reasons for that ruling based on specific provisions of the Constitution of Kenya (2010), the Marriage Act No. 4 of 2014, and the Muslim marriage Rules 2017.
7. The respondent does not query the authenticity of any of these documents.
8. At the hearing before me, both parties accepted that the Ruling of 11 December 2023 was an authoritative source of Kenyan law and urged me to decide the appeal in accordance with their interpretation of it. I agree that this is the key document in this appeal. It is a formal declaration as to the validity and legal effect of the couple’s 2022 marriage certificate, issued by a Kenyan court that (as accepted by the parties) had the jurisdiction to make such a declaration.
9. Mr Nappey submitted that the Ruling should be read as confirming the respondent’s position that the couple’s marriage was not valid under Kenyan civil law until 9 September 2022. The reasoning behind this submission was as follows:
(i) Para. 4 of the Ruling cited Section 3 of the Marriage Act No.4 of 2014: “All Marriages registered under this Act have the same legal status.” This should be read as establishing that no marriage was legally valid unless it was registered under the Act.
(ii) Para. 6 of the Ruling cited Section 4(1) of the Muslim marriage Rules 2017, which requires that “parties to a Muslim marriage shall, after the marriage is conducted, make an application for registration of the marriage to a Muslim Marriage Officer or Khadi.” This should be read as establishing that the marriage was not valid until it was registered.
(iii) Para. 7 of the Ruling cited section 15 of the Rules:
“Nothing in these rules shall be construed to render valid or invalid, by reason only of registration or non-registration, any Muslim marriage which is otherwise valid or invalid, as the case may be, according to the law governing the respective Muslim school of jurisprudence to which parties to such marriage belong.”
This was consistent with the respondent’s position, because it only established that registration would have no effect on the validity of the marriage under Islamic law. It was “silent” as to the effect of registration on the validity of a marriage under civil law.
(iv) Para. 9 of the Ruling confirmed that the 2022 marriage certificate was valid, legal and binding. This implied that until this certificate was issued, the marriage had not been valid.
10. I am not persuaded by this line of argument. Most fundamentally, Para. 9 constitutes a clear declaration that, by reference to all of the legal provisions cited above, the marriage certificate issued in 2022 is “valid, legal and binding and must be treated with respect by all.” It is not for me to go behind that declaration and look for other ways that the laws and rules cited in the Ruling could, theoretically, be interpreted. The court with the relevant jurisdiction under the Kenyan Constitution has declared that the marriage certificate is valid, legally, binding and must be respected by all. There are no qualifications whatsoever in this declaration.
11. Turning to that valid and legally binding certificate, I find that it contains the very information on which this appeal turns, namely the date of the couple’s marriage. The second line on the certificate is entitled “Date of Marriage” and the entry on that line is 10 August 2019. There is nothing in the certificate that gives any alternative date for the couple’s marriage. Any person seeking to respect the contents of that certificate would be required to treat the couple as having been married on that date.
12. Mr Nappey urged me to read the first line, entitled “Marriage Entry No.” as establishing the date of legal of the validity the couple’s marriage. I consider that this is an entirely artificial reading of the certificate. It is inconsistent with the plain language of the certificate, which clearly gives a “Date of Marriage”. There is no qualification here, such as “Date of Marriage (for religious purposes)”. Nor is there anything in the heading “Marriage Entry No.” that would indicate to a reader of the document that the answer to the fundamentally important question of when a couple became legally married is to be found here. It is not, for example, entitled “Validity Date”. Nor could the date of the validity of the marriage be determined from this information, as it does not even contain a date. It is a number and a year, in this case, “188/2022”.
13. A marriage certificate is a fundamentally important civil identity document. I find that it is clearly more likely than not that the information it contains is intended to be comprehensible from the face of the document, such that if it gives a “Date of Marriage”, without qualification, that is intended to be treated as the legal date of marriage. It is highly implausible that an official marriage certificate would contain an unambiguous declaration as to the date of a couple’s marriage, but that anyone to whom that certificate was presented would be expected to ignore that date in favour of some other date, when there is nothing on the face of the document that directs them to do so.
14. In the alternative, if I am wrong that Para. 9 declares that the marriage certificate must be respected in its entirety, including as to the date of marriage, and it is open to me to come to my own interpretation as to the date of marriage based on the contents of the rest of Ruling, I would interpret the ruling as confirming that the marriage was legally valid from the date is was contracted between the couple, not from the date of registration. I consider that the Ruling can be fairly summarised as follows:
(i) Since 2014, Muslim marriages have no longer been governed by a separate statute. Christian, civil, customary, Hindu and Muslim marriages are all governed by a single Act.
(ii) The 2014 Act requires that Muslim marriages be officiated by a Khadi, sheikh or imam as may be authorised by the registrar and celebrated in accordance with Islamic law. (There is no dispute that this is what was done on 10 August 2019).
(iii) Rules issued in 2017 by the Attorney-General pursuant to sections 93 and 94 of the Marriage Act 2014 require the registration of Muslim marriages “after” they are “conducted”, but they do not establish a deadline for doing so. They further establish that a marriage that is valid under Islamic law is not rendered legally invalid by the fact that it has not been registered.
(iv) For these reasons, the couple’s marriage, having been conducted in accordance with Islamic law on 10 August 2019, was legally valid from that date. It was not rendered invalid by the couple’s delay in registering it with the Khadi Court. This is correctly reflected in the civil marriage certificate issued upon registration in 2022, which declares that the couple were legally married on 10 August 2019.
15. I am unpersuaded by Mr Nappey’s efforts to interpret the Ruling as establishing that the couple were not in a legally valid marriage until the certificate was issued. I address each of his submissions in turn.
16. There is nothing in the sentence “All Marriages registered under this Act have the same legal status” that explicitly speaks to the validity of marriages that have not been registered. Nor, when read in context, is there any justification for reading such a significant additional provision into these few words. As the Ruling explains, the Marriage Act 2014 repealed the Mohammedan Marriage and Divorce Registration Act and recognised “Christian, civil, Customary, Hindu and Muslim” marriages in a single Act. The Ruling then introduces the sentence relied on by Mr Nappey as follows: “Section 3 of the Act gives all the above marriages the same legal status. None is superior to the other. All marriage certificates issued under the different regimes have the same status.” Establishing the legal equality of different types of marriage is self-evidently an important purpose in a multi-faith and multi-ethnic state. It is more likely than not that it was considered worthy of expression in a freestanding clause. Read in this context, the statement that “All Marriages registered under the Act have the same legal status” should be read as intended to establish merely what it says and nothing more.
17. The requirement of the 2017 rules to register a Muslim marriage could be read as establishing that a Muslim marriage is not valid unless it is registered, but only if it is taken out of context. As Mr Youseffian pointed out in his submissions, the Ruling relies in Para. 6 on the fact that there is no timeframe within which the marriage must be registered. If marriages were invalid until they were registered, this would create a situation of significant legal uncertainty for extended periods of time. More importantly, the Rules specifically provide that the non-registration of a Muslim marriage does not render it invalid. As set out above, Mr Nappey argued that the Rules were referring here to the validity of the marriage for religious purposes only, not for civil purposes. The problem with Mr Nappey’s argument is twofold. First, it requires reading words into the Rules that are not there, as follows:
“Nothing in these rules shall be construed to render valid or invalid [under Islamic religious law], by reason only of registration or non-registration, any Muslim marriage which is otherwise valid or invalid, as the case may be, according to the law governing the respective Muslim school of jurisprudence to which parties to such marriage belong.”
18. Secondly, the Ruling describes the Muslim marriage Rules as “made by the Attorney-General under sections 93 and 94 of the Marriage Act.” It is difficult to imagine the constitutional basis on which the Attorney-General, a self-evidently civil official in a multi-faith state, could have had the authority to publish rules about the validity or invalidity of marriages under religious law. It is far more likely that the Rules were published in order to regulate matters within the Attorney-General’s jurisdiction, namely, civil law matters.
19. For these reasons, I am persuaded by the evidence before me that the couple’s marriage was valid as a matter of Kenyan civil law from the date it was contracted under Muslim law. That date is accepted to be 10 August 2019.
20. The appellant therefore meets all of the requirements for a grant of entry clearance as a spouse under Appendix EU (Family Permit).

Notice of Decision
The appeal is allowed.

E. Ruddick

Judge of the Upper Tribunal
Immigration and Asylum Chamber

14 August 2025

Order under Rule 10(1)(b) of the Tribunal Procedure (Upper Tribunal) Rules 2008
As I have allowed the appeal, I have considered making an order for the respondent to pay the appellant’s appeal fee, as provided for by Rule 9(1)(b) of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. I consider it appropriate to make an order for the respondent to pay any appeal fee that was paid or is payable, because my decision is based on documents that were before the respondent when the refusal decision was made.

E. Ruddick

Judge of the Upper Tribunal
Immigration and Asylum Chamber

14 August 2025
ANNEX
(Error of law decision)

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004771

First-tier Tribunal Nos: EA/50189/2024
LE/03048/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

…………………………………

Before

UPPER TRIBUNAL JUDGE RUDDICK
DEPUTY UPPER TRIBUNAL JUDGE RAE-REEVES

Between

HANI HASHI SAID
(NO ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr M Mukulu, instructed by Forward & Yussuf Solicitors
For the Respondent: Ms A Ahmed, Senior Home Office Presenting Officer

Heard at Field House on 29 May 2025

DECISION AND REASONS
Introduction
1. This appeal concerns a decision of the First-tier Tribunal Judge Dyer (the ‘Judge’). She promulgated her decision on 29 August 2024. The Judge refused the appellant’s appeal against a refusal to allow her leave to enter the UK under Appendix EU Family Permit of the Immigration Rules. Her sponsor is her husband, Hassan Abdillahi Macalin, a Dutch national who enjoys settled status in the UK. The appellant herself is a citizen of Somalia currently resident in Kenya and she relies on her marriage to the sponsor which took place following Islamic custom on 10 August 2019 in Kenya. The fact that a marriage took place on that date and that it was registered on 9 September 2022 is not disputed and we will come in a moment to what is the heart of the dispute.
The Decision of the First-tier Tribunal
2. The Judge sets out her legal framework at paragraph 12 and she identifies the need for the appellant to demonstrate that she was married to the sponsor at the specified date which is 31 December 2020. In her decision the Judge finds that the Marriage Act 2014 “clearly sets out that for a marriage to be recognised under Kenyan law it must be registered in accordance with the Act. (See Part II General Provisions)”. Based on this finding she goes on to state that for a marriage to be contracted under the laws of Kenya it needs to be registered and that this took place in December 2022.
3. At paragraph 15 she goes on to say that the marriage is not valid under Kenyan law until registered in accordance with the requirements of the Marriage Act 2014. She goes on to make other findings about the relationship between the parties which we will address later in this decision. The Judge’s conclusion is that the appellant had failed to prove that she was married to the sponsor before the specified date and failed to prove that the marriage was subsisting at the time of application.
The Appeal to the Upper Tribunal
4. The grounds of appeal comprise one ground only and are summarised in the permission to appeal. We will not set that out in full but essentially it relies on an error that the marriage might have been valid even though it was not registered until later. The permission states “It is arguable that the Judge has made an error of law reaching this conclusion in light of the law of marriage in Kenya referred to, bearing in mind that the formal validity of a marriage is determined by the law of the place of celebration”. It is submitted in the grounds that the validity of the marriage was not contingent upon its registration date and relies on a case in the Upper Tribunal, but no application has been made to rely on that case. It is submitted essentially that the Tribunal conflated the need for registration with the requirement for legal recognition.
The Hearing
5. We have been assisted today by the submissions from Mr Mukulu on behalf of the appellant and Ms Ahmed on behalf of the respondent. At the conclusion of the hearing, we gave this ex-tempore decision. We indicated our wish to substitute our decision to set aside the appeal but Ms Ahmed wished to make further representations. We acknowledged that she is of course entitled to do so but, in this event, Mr Mukulu is also entitled to make further representations, and he told us that needed more time to do so. For this reason, we consider that, if they wish, both parties are entitled to make full representations and for this reason a remaking hearing would be listed.
Our Decision
6. Firstly, before we go into any detail, we will discuss a document found at page 131 of the bundle. This appears to be a court ruling from the Kadhi Court in Nairobi dated 11 December 2023. This document was provided as part of the Home Office bundle before the First-tier Tribunal at page 24 of that bundle. No objections to the validity or authenticity of the document have been put forward. It comments on the validity of marriage and sets out the various requirements under the Marriage Act 2024. In particular we have looked at paragraph 7 which states as follows:
“In any case, late registration of marriage does not vitiate a valid marriage that satisfies the requirements of Muslim law. Section 15 of the rules provide:
‘Nothing in these rules shall be construed to render valid or invalid, by reason only of registration, or non-registration, any Muslim marriage which is otherwise valid or invalid, as the case may be, according to the law governing the respective Muslim school of jurisprudence to which parties to such marriage belong’.”
We reflect that there is no mention of this ruling in the First-tier decision and we find it to be a material error of law by the First-tier Judge for the following reasons. We find that this evidence should have been considered and if it was so it may well have inevitably changed her decision. Alternatively, if the document was considered then it is a material error of law not to have set out reasons why the Judge did not accept a court ruling that late registration of a marriage does not vitiate an otherwise valid marriage.
7. We accept Mr Mukulu’s submission that the Judge appeared to have conflated the two issues. The first issue is the validity of the original Islamic marriage and the second issue being the effect of registration. Based on this document it appears to us that the original Islamic marriage in 2019 was not invalid simply because it was not registered based on the court ruling. In cases like this, full recognition needs to be given to evidence that provides opinion on local law because it is the law of the place of celebration that is relevant in determining validity of marriage.
8. We consider that this evidence is so clear and obvious that it would result in a material error of law in not considering it. Furthermore, it is not clear upon what the judge was basing her opinion that the Marriage Act clearly sets out that for a marriage to be recognised it must be registered. She quotes Part II General Provisions but does not set out any part of those provisions which would support that view and of course we bear in mind that neither the representatives nor the judge are experts in Kenyan law which is why the importance of external evidence is to the fore.
9. We note that the judge went on to doubt the nature and extent of the couple’s relationship, but our view is clear that under Appendix EU Family Permit the test is whether the marriage existed at the appropriate time at December 2020 and continues to exist at the date of application. It was never part of the respondent’s case that it was a requirement to demonstrate that the relationship was subsisting at the time of the application; it does not appear anywhere in the ECO refusal letter. There is reference to the genuineness in the Review but this is stated as an alternative if the marriage is not valid. The subsisting nature of the relationship is not relevant to the test that the Judge should have applied.
10. To conclude, we consider that the judge made a material error of law in conflating the need to register the marriage with legality and status of the Islamic marriage under Kenyan law. She did not consider a legal ruling advising on the local law or if she did, she did not set out reasons for rejecting it.
Notice of Decision
The First-tier Tribunal Judge materially erred in law and we set that decision aside with no findings preserved.
The remaking of the decision in the appeal is remitted to the Upper Tribunal to be remade afresh.

V Rae-Reeves

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

06/06/2025