The idea of a “proxy marriage” is rather alien in the UK and our fairly recently developed romantic love culture. It involves one or both parties to a marriage being represented by someone else at the marriage ceremony rather than attending in person. It is a sort of literal version of one’s mind being elsewhere, I suppose, and in an increasingly globalised and time-poor world will perhaps become more common…

Proxy marriages have been addressed in at least two previous tribunal determinations (and my first post on this subject was in 2008) and also featured in a recent Chief Inspector or Borders and Immigration report (and even more so in the ensuing media coverage). The latest case is TA and Others (Kareem explained) Ghana [2014] UKUT 316 (IAC). It usually means trouble where a previous determination or judgment needs to be “explained”.

In the UK we generally recognise as valid any marriage which was lawful in the country in which it took place, the only known exception to this being the sad family law case of KC & Anor v City of Westminster Social & Community Services Dept. & Anor [2008] EWCA Civ 198. This reflects an established rule of private international law that avoids the potentially very serious problem of a person being considered married in one country but not another and the possibility of having to get married in multiple countries. Some countries criminalise sex outside marriage, for example.

The determination in TA seems to cast all this aside, though. The headnote reads:

Following the decision in Kareem (proxy marriages – EU law) [2014] UKUT 24, the determination of whether there is a marital relationship for the purposes of the Immigration (EEA) Regulations 2006 must always be examined in accordance with the laws of the Member State from which the Union citizen obtains nationality.

The determination in TA seems to completely misunderstand Kareem, in fact. In Kareem, the tribunal recognised that Dutch law generally recognised marriages contracted abroad if lawful in the country in question. The central question became whether Nigerian law recognised the marriage in that case. The tribunal in Kareem concluded that this was not proven on the facts of that case. In TA, paragraph 22 obviously misstates paragraph 29 of Kareem and then the tribunal simply fails to consider whether the marriage would be recognised in Nigerian law.

This is from paragraph 29 of Kareem:

We do recognise, however, that article 1:66 permits marriage by representation in certain circumstances, which would suggest that marriage in the absence of one of the parties would not be contrary to Dutch public order. However, as we have indicated, we have not received evidence on these complex issues and have been given no help on how Dutch law might apply.

This is from paragraph 22 of TA:

…the Tribunal in Kareem itself gave consideration to the relevant legal provisions of the Dutch Civil Code and concluded, on the evidence before it, that it was not satisfied that the Netherlands was one of the countries that recognised the validity of proxy marriages. Thus, I find that the first claimant and EKT are not to be treated as being married for the purposes of the 2006 Regulations and, therefore, that the first claimant cannot establish that she is a family member for the purposes of regulation 7 of those Regulations.

Er, spot the difference?

The Upper Tribunal seems quite fixed on the idea that nationality determines the applicable law, but for my own part I’m not sure that it is necessarily always right. The issue of domicile arises. The concept of domicile determines which country’s laws govern a person’s personal status. Most old cases on the subject concern wills but is also impinges on marriage and divorce – particularly the latter, as in the case of Mark v Mark [2005] UKHL 42. It is hard for a person to lose the domicile of their original country of nationality but it is not impossible. A long period of residence abroad might (but will not always) change domicile and acquisition of a further nationality, personal declaration and other factors would need to be considered.

Neither the word nor the concept of “domicile” appear in either Kareem or TA, which seems to be quite a major omission when addressing a major question of international private law. It is perfectly feasible that a national of an EU state might be domiciled elsewhere and therefore able to be married under the laws of that country, irrespective of what the laws of the country of nationality provide.