1.1 Background
Proxy marriage is the process where a couple can get married with their consent but without being present at the ceremony.
The Home Office has through policy banned illegal immigrants from getting married in the United Kingdom (UK). Proxy marriage became their next challenge. A proxy marriage is where two people can get married without attending the marriage ceremony. A proxy marriage which takes place in the UK will not be recognised. The problem is proxy marriage that takes place in countries that recognise it as a valid method of getting married. It is usually conducted between the couple’s family including extended family. Other people represent the couple, hence the term proxy marriage.
It is difficult to understand how someone else can represent a couple during their marriage ceremony. It is not so difficult to understand that usually the couple would have given their consent prior to the ceremony and during the ceremony. During Ghanaian marriage by proxy, the bride is asked three times whether the family can accept the gifts presented and to give her hand in marriage to the family seeking it. She must answer yes three times with emphases on the last yes. Ghanaian culture views marriage as a union between two families rather than a union between two individuals.
Proxy marriage is common in cultures were the marriage between the couple is considered to bring the two families together. The Groom’s family go to the Bride’s house to ask for her hand in marriage. It is important to note that only the father of the bride can give his daughter’s hand in marriage. If he is deceased, then his next of kin can give the bride’s hand in marriage. The father will usually call his elders and other people to witness the event. At the ceremony all that is required from the bride is her consent for her father to accept the gifts and to give her hand in marriage.
Ghana is a country in West Africa that practice proxy marriage. Proxy marriage is enshrined in its written constitution. This means in Ghana a couple can get married without attending the ceremony. They can then have the traditional ceremony registered at the Registrar of Marriages to obtain a marriage certificate.
The Ghanaian Marriage Certificate
A Ghanaian and a British or European can have a proxy marriage in Ghana. The proxy marriage is then registered and a certificate is issued. The couple can then make an application to the Home Office to obtain leave to be in the UK if the Ghanaian is subject to immigration control.
BOOM! The Home Office is receiving marriage certificates from people that through government policy, such ones could not get married in the UK.
You guessed something had to be done in relation to such marriage certificates which to be fair could be abused.
1.2 The Home Office Dilemma
A marriage certificate is one of the most international documents you are going to get. Otherwise, a married couple will have to remarry in every country they travel to, to authenticate their marital status, preposterous!
Therefore, any country that issues a marriage certificate by its authorised public authority, the rest of the world must accept that marriage certificate as a valid marriage certificate.
The UK’s position is stated in the case of CB (Validity of marriage: proxy marriage) Brazil [2008] UKAIT 00080. The Uk’s position requires three conditions to be met, namely;
Nevertheless, the Home Office was resolute to not recognising such marriages. The following tactics were used.
In 2012, proxy issued standard refusal letters in applications involving Ghanaian marriage. It included passages like
“…you have provided a customary marriage certificate in support of your relationship to the claimed sponsor”. “This type of marriage is governed by PNDC (Provisional National Defence Council) Law 112, Customary Marriage and Divorce (Registration). Law 1985. The law mandates the registration within three months of all customary marriages including entered into before the commencement of the law.”
The problem with this reason for refusal is the Home Office had ignored the provision of PNDC (Provisional National Defence Council) Law 263, Ghana Customary and Divorce (Registration) (Amendment) Law 1991 which made registering customary marriages OPTIONAL. Remember they were writing the above reason for refusal in 2012. Also, it is worth pointing out that such marriage certificates are considered legal and valid by the Ghanaian government and everywhere else except the Home Office.
Another standard reason for refusal that followed was
“… after examination of this certificate, the purple ‘wet ink’ stamps are found to be underneath the black background lines of the certificate. In light of this the following is stated in this regard; the purported wet ink has been digitally printed simultaneously with the background print. The document is not a colour copy as the signatures are wet ink. The document may therefore not be original document. In view of this we do not accept that the marriage was registered with the correct authorises”.
One can see that with this particular reason a caseworker sitting at his/her desk was refusing an application on an expert point in relation to the actual format of the blank marriage certificate. Surprise, surprise the immigration judges did not ask how these caseworkers were coming to this conclusion.
The independent immigration tribunal never questioned the expertise of the caseworker and the tribunal courts accepted the Home Office reason. It took a bold appellant who instructed an expert to stop this particular reason for refusal. This particular reason had been used to refuse 1000s of application.
3. The next standard reason for refusing such applications is an 11-page document. It includes among others,
No evidence to prove the relationship of the declarants of the statutory declaration to the couple.
Marriage certificate must have residential address
Both parties to the marriage must be Ghanaians or of Ghanaian descent, etc.
In the final point above, a Home Office presenting officer actually conducted an appeal hearing with a report on Ghanaian proxy marriage in which it confirms a Ghanaian can marry a non Ghanaian by proxy marriage Secretary of State vs Alexander Amoako
This 11- page reason for refusal is being used at the time of writing this article. Applicants have been going to the independent immigration tribunal who seems to be singing to the tune of the Home Office. None of the reasons in the 11 page refusal letters is from the 1985 Act on Customary marriages. The Home Office usually quote the 1985 Act and then misapply it to the relevant case before them.
Over 80% of applications involving proxy marriage are refused. Almost all of such refusals are appealed. Appellants also have the burden of proof so that the appellant have to prove the Home Office’s decision is wrong. This means the Home Office can misapply the law as much as they want and it is duty of the appellant to prove them wrong.
In one appeal,the immigration appeal tribunal came up with a decision in a case well known as Kareem (Proxy Marriages- EU Law). It has fortified the UK’s dislike and attitude against proxy marriage. This case and its follow up case TA –Kareem Explained are both wrong. Both cases will be discussed in part 2 of this article.