Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000261

First-tier Tribunal No: EA/02231/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

11th April 2025

Before

UPPER TRIBUNAL JUDGE RINTOUL
DEPUTY UPPER TRIBUNAL JUDGE JOSHI

Between

HARPAL SINGH
(NO ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: The appellant did not attend and was not represented
For the Respondent: Mr E Terrell (Senior Home Office Presenting Officer)

Heard at Field House on 24 March 2025

DECISION AND REASONS
1. These written reasons reflect the decision which was given at the end of the hearing.
2. The appellant, with the permission of the First-tier Tribunal, appeals against the decision of a judge of the First-tier Tribunal, (“the Judge”), who, in a decision dated the 5th of August 2024, dismissed the appellant’s appeal against the respondent’s decision dated the 3rd of June 2023 refusing his application under the EU Settlement Scheme (“EUSS”) within Appendix EU to the Immigration Rules.
Background
3. The appellant is a citizen of India born in 1985. His application under the EUSS was based on his claim that he is a family member of a relevant EEA citizen as he is married to Ms N Jankowska, (the sponsor), an EEA citizen. The Appellant claimed they married on the 3rd of June 2020.
4. On the 6th of July 2020, the appellant applied pursuant to the Immigration (European Economic Area) Regulations 2016 (“the EEA Regulations”) for a residence card as confirmation of his right of residence as the spouse of an EU citizen. That application was refused on the 3rd of November 2020 on the basis that the respondent was not satisfied that the marriage, said to have taken place by proxy, was valid according to the law of India, and thus was not a valid marriage under the EEA Regulations, it not being a valid marriage for the purposes of the law of England and Wales. He appealed against that decision, requesting the appeal be determined on the papers. The First-tier Tribunal dismissed the appeal in a decision (EA/05723/2020) promulgated on the 8th of September 2021 on the basis that the appellant had not shown that a proxy marriage was valid under the law applicable in India and thus was not valid for the purposes of the EEA Regulations.
5. On the 11th of September 2021, the appellant applied for a grant of permanent residence under the EUSS. That application was refused on the 3rd of June 2023 on the basis again that the respondent was not satisfied that a proxy marriage conducted in India was a valid marriage in accordance with the law in India because the Hindu Marriage Act 1995 does not allow proxy marriages and requires that both parties be present. Thus, it was not valid for the purposes of the EUSS. It is against that decision that this appeal was brought.
6. The appeal came before the Judge for paper determination. The Judge was satisfied at [11] of their decision that they could justly determine the appeal on the papers. The Judge found at [14] that the marriage certificate was for a proxy marriage and concluded for the same reason as the respondent that it was not a valid marriage under the laws of India. In [15] the Judge identified that the appellant had not produced any evidence to show that he had cohabited with the sponsor at any stage. At [17] the Judge was satisfied that the appellant did not satisfy the requirements for pre-settled or settled status under the EUSS and dismissed the appeal.
7. We pause here to observe that neither the July 2020 application nor the decision of the First-tier Tribunal of September 2021 was referred to in the decision of the 3rd of June 2023, nor were papers related to it put before the Judge in his appeal. They were, however, referred to in the respondent’s rule 24 response. We deal with this issue below.
The appellant’s appeal
8. The appellant sought permission to appeal from the First-tier Tribunal. The two main grounds of appeal were:
i. It was argued that the Judge erred in finding that the marriage took place by proxy. The Judge wrongly understood the marriage certificate to have recorded that the marriage took place by proxy and failed to take into account the letter from the Registrar of Marriages (dated the 21st of July 2023) stating that all the parties were present at the marriage.
ii. It was argued that the Judge was wrong to make findings of fact on issues that were not in dispute relating to whether or not the appellant and the sponsor were in a subsisting relationship. They relied on Lata (FtT: principal controversial issues) [2023] UKUT 00163 (IAC).
9. The First-tier Judge granting permission did not limit the scope of her grant dated the 17th of January 2025. The reasons for her decision are set out at [3-4] of her permission grant:
“3. Having considered the grounds of appeal it is arguable that the Judge made a mistake of fact that the marriage was by proxy and/or hand not taken evidence into account including the letter from the Civil Registrar confirming that it was not a proxy marriage.
4. For those reasons, it is arguable that there are material errors of law and permission to appeal is granted.”
The Secretary of State’s position
10. The respondent in her rule 24 response dated the 23rd of January 2025 did not oppose the appellant’s application for permission to appeal on the basis that the Judge erred in finding that the marriage certificate by itself was evidence of a proxy marriage.
11. She did dispute whether the letter from the Registrar of Marriages dated the 21st of July 2023 was before the Judge given that they had no evidence of its service.
12. She also made an application under rule 15(2A) to adduce further evidence regarding an earlier application as a spouse made by the appellant under the EEA Regulations. This evidence included the dismissed appeal determination of the First-tier Tribunal promulgated on the 9th of September 2021 and the appellant’s application form for that application signed on the 29th of June 2020.
The appellant’s response
13. The appellant provided a rule 25 reply dated the 24th of January 2025. In brief, the appellant submitted that the letter from the Registrar of Marriages was before the Judge.
14. Relying on the decision in Lata (FtT: principal controversial issues) [2023] UKUT 00163 (IAC) the appellant submitted that a duty falls upon the parties to identify their respective cases and to identify aspects of earlier decisions which are the starting point. The appellant added that it was wrong for the Judge to put in dispute his relationship because this had not been raised by the respondent.
15. Finally the appellant argued that it would be wrong if the respondent were granted permission to rely on new evidence which was not before the Judge.
The hearing before us
16. The appellant did not attend the hearing and was not represented. No reason was provided for his non-attendance. We were satisfied that the appellant was aware of the hearing because he had contacted HMCTS by email on the 10th of March 2025 to update his address. He confirmed in that email that he was aware of the hearing. We noted that the appellant had requested a paper determination before the First-tier Tribunal. We also noted that the standard directions sent to the appellant expressly stated at paragraph v that if we identify a material error of law then the re-making of the decision will take place at the same hearing. The appellant was also aware of the respondent’s rule 15(2A) application as he had responded to it. With these factors in mind, we decided that it was, in all the circumstances, fair and in the interests of justice to proceed to hear and determine the appeal in the appellant’s absence.
17. On behalf of the Secretary of State, Mr Terrell relied on the rule 24 response and acknowledged that the Judge erred in finding that the marriage certificate by itself was evidence of a proxy marriage.
18. He acknowledged that the appellant opposed the rule 15(2A) application in his Rule 25 reply. He submitted that this evidence does not relate to a new issue and that the respondent has always maintained that the marriage took place by proxy and does not satisfy the laws of India.
19. He recognised that there was an oversight in that it had not been provided before but submitted that it was material evidence that related to the only issue before the Tribunal. He submitted that it was highly relevant for the Tribunal to see the findings in an earlier determination on the same issue and the evidence relied on at that stage. He submitted that it was not an unreasonable request for this evidence to be admitted.
20. He referred us to the earlier application form from 2020 at section 5.18 where the appellant had ticked the box to indicate that he and the sponsor were not present at the marriage ceremony because his passport was with the Home Office and he could not travel (at page 154 of the bundle). He also referred us to paragraph 8 of the earlier determination where it was found that his marriage was done by proxy and that proxy marriages are not valid under the Hindu Marriage Act 1955 (at page 304 of the bundle).
21. He submitted that the principle from Devaseelan (Second Appeals - ECHR - Extra-Territorial Effect) Sri Lanka * [2002] UKIAT 00702 applied and that the previous Judge’s finding is the starting point. He submitted that the evidence is clear that the appellant and / or the sponsor were not present at the time of the marriage. Further, he added that given the appellant’s immigration history as an overstayer it was unlikely that he could have left the United Kingdom to marry in India and then re-enter the United Kingdom.
22. In respect of the letter from the Registrar of Marriages he submitted that the content cannot be correct because the appellant had already stated with a valid reason in 2020 that the marriage was done by proxy. He submitted that the marriage was not valid under Indian law and therefore could not be recognised as valid in the United Kingdom.
Discussion and conclusions
23. In the circumstances we are satisfied that the decision involved the making of an error of law, affecting the outcome and must be set aside.
24. We find that the Judge’s reliance on the appellant’s marriage certificate as evidence of him having conducted his marriage by proxy was flawed given that the marriage certificate itself makes no reference to a proxy marriage. We find that whether the Judge had the letter from the Registrar of Marriages before him or not is not material to our decision to set aside the Judge’s decision because the reliance on the marriage certificate in finding that the marriage was done by proxy alone is sufficient for us to set aside the decision.
25. In re-making the decision we decided it was in the interests of justice to admit the evidence submitted by the respondent with the Rule 15(2A) application including the previous determination of the First-tier Tribunal promulgated on the 9th of September 2021 and the appellant’s application form signed on the 29th of June 2020. In doing so, we recognise that the respondent could have and should have provided this evidence before the First-tier Tribunal. We also note that the appellant was aware of this application and the additional material relied upon. We have taken his submissions set out in his rule 25 response in deciding whether to permit the respondent to rely on it, noting also that the appellant must have been aware of the earlier application, refusal and determination. However, we agree with Mr Terrell that the nature of the evidence goes to the core of an existing issue in dispute – whether the appellant’s marriage was undertaken by proxy or not. Further, we find that the evidence is material to this issue given the earlier findings of fact made by the First-tier Tribunal. For the avoidance of doubt, we did not rely on this evidence in determining that the Judge’s decision contained a material error of law. We were also mindful that the appellant had not attended the hearing, however, we were satisfied that he was aware of this evidence given the content of his rule 25 reply.
26. To succeed in his appeal, the appellant had to show that he is a “family member of a relevant EEA citizen”. The only basis put forward for him meeting that requirement is as the spouse of such a person. To qualify as a spouse as defined, he must be lawfully married to that person. For the reasons set out below, he has not done so.
27. The key issue is whether the marriage was valid for the purposes of the laws of India. If it is not, then it is not valid for the purposes of the EUSS. We are satisfied that proxy marriages are not recognised in India under the Hindu Marriage Act 1955 which requires that both parties be present. There is a significant conflict of evidence as to whether they were both present.
28. We have considered the marriage certificate, and we are satisfied that it does not state that the appellant’s marriage took place by proxy. We have also considered the letter from the Registrar of Marriages dated the 21st of July 2023 which recorded that the marriage took place on the 3rd of June 2020 and was registered on the 5th of June 2020. It adds that the marriage certificate is genuine, not a proxy marriage certificate, and that the parties were present at the time and date of the marriage. Although the appellant and the sponsor did not attend the hearing to provide oral evidence, we note that the sponsor’s witness statement stated the same as the letter from the Registrar of Marriages.
29. However, we have some concern regarding this evidence. It contradicts the appellant’s own evidence when he made his application under the EEA Regulations where at section 5.18 he had ticked the box to indicate that he and the sponsor were not present at the marriage ceremony. The appellant then went on to explain that this was because his passport was with the Home Office and he could not travel (at page 154 of the bundle). We attach weight to this evidence given that it was provided freely by the appellant as a part of that application process. We note that the Judge in the previous determination promulgated on the 9th of September 2021 concluded at [8] of their decision that the marriage was done by proxy.
30. We also agree with the submission in the respondent’s rule 24 response that the appellant would have had practical difficulties in leaving and then re-entering the United Kingdom at the time the marriage took place because he did not have leave to enter or remain; on his own evidence he did not have a travel document; and India was subject to a lockdown due to the pandemic where international flights were not permitted from the 23rd of March 2020 until after the 31st of July 2020 with the exception of some scheduled services.
31. It is notable that neither the appellant nor the sponsor have provided evidence that they travelled to India either by way of tickets, or passport stamps which would confirm their presence at the wedding. Further, the appellant has failed to explain why he said in the earlier application that he had not been present at the wedding yet now relies on a document stating that he had been present. We find that this casts significant doubt on the reliability of the letter from the Registrar, and we find it unreliable and not a document upon which we can place weight.
32. Accordingly, we find that, contrary to the requirements of Indian law, the appellant was not present at the wedding and thus this was not a valid wedding. On that basis, he is not lawfully married to the sponsor.
33. For these reasons we are not satisfied that the appellant is a family member of a relevant EEA citizen for the purpose of his application under the EUSS within Appendix EU to the Immigration Rules.
Notice of decision
There is a material error of law in the Judge’s decision and we set it aside.
We remake the decision and we dismiss the appeal under the EU Settlement Scheme within Appendix EU to the Immigration Rules (the Immigration (Citizens' Rights Appeals) (EU Exit) Regulations 2020).

M D JOSHI

Judge M D Joshi
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

02 April 2025