Kareem (Proxy Marriage)

Kareem (Proxy Marriage –  EU Law) [2014] UKUT 00024 IAC is a case involving a Nigerian citizen who married his wife by proxy marriage. Proxy marriage is when a couple get married without being present at the ceremony.

The home office did not accept the marriage certificate as valid. The home office said the marriage certificate was invalid by Nigerian law. If the marriage is invalid by the Nigerian law, then it is invalid by English law. This is the position established in the case of CB (Validity of Marriage; Proxy Marriage) Brazil [2008] UKAIT 00080.

The home office refusal to accept the marriage certificate as valid also means the home office does not accept the appellant and his wife who is a EU citizen are in a marital relationship.

The tribunal was concerned with whether the right law had been applied in determining whether the marriage is valid. In addition, the tribunal was concerned about the effect the decision had on the EU citizen’s free movement rights.

The tribunal reasoned that the EU citizen derives their citizenship from their nationality. This citizenship entitles them to free movement that host member states must not impede. Therefore the tribunal decided that the correct law to use in such circumstances is the national law of the EU citizen person in the marriage.

The tribunal therefore decided that Dutch law, being the national law of the EU citizen in Kareem proxy marriage, is the relevant law to determine the marriage certificate’s validity.

Why Kareem proxy marriage is the wrong approach

The decision to use the national laws of the EU citizen to determine a marriage certificate’s validity breaches a long standing rule known as lex loci celebrationis. This is a Latin term that means the law of the land where the marriage was celebrated.

The case of Berthiaune V Dastous [1930] AC 79 explains this principle better. It was explained as “If a marriage is good by the laws of the country where it is effected, it is good all the world over, no matter whether the proceedings or ceremony which constituted marriage according to the law of the place would not constitute marriage in the country of the domicile of one or other of the spouses”.

The decision of Kareem proxy marriage conflicts with this long established private international law.

Furthermore, the EU Regulation says that a EU citizen’s spouse can obtain a residence card to live in another member state where that EU citizen is living and working.

The EU Regulation does not define ‘spouse’ for this purpose.The case of Netherlands v Reed (59/85)[1986] ECHR 1283; [1983] 2CMLR 448 at [15], provides guidance. It suggested the word ‘spouse’ means a marital relationship.

It is up to individual member states to define ‘marital relationship’ in accordance with their domestic laws, because the Regulation of the quoted case did no define the phrase marital relationship.

Kareem proxy marriage’ decision means that United Kingdom must define the term marital relationship with the domestic laws of another member state, rather than the provision of the EU Regulation which provides that it must use its own domestic laws.

The Right Approach

The right approach is to use English laws in determining a marriage certificate’s validity. The home office’s position as stated in the CB (Validity of Marriage; Proxy Marriage) Brazil [2008]

Ask the following three questions:

• “Is the type of marriage one recognised in the country in which it took place?

• Was the actual marriage properly executed so as to satisfy the requirements of the law in which it took place?

• Was there anything in the law of either party’s country of domicile that restricted his freedom to enter into the marriage?”

The marriage is valid if the answer to the above questions is yes, yes and no respectively.

As a result of the above, Danbar Immigration experts are confident that the above is the correct legal position. Our immigration team has challenged the decision in Kareem proxy marriage at the court of appeal.

The case at the court of appeal is Awuku v Secretary of State for the Home Office Department. This case is still pending and Danbar Solicitors shall update you with the final decision.

Finally, benefit from our extensive knowledge, if you are applying to the home office for leave to remain based on proxy marriage. Call us today and let our expert team advise you with their deep knowledge in proxy marriage applications.

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