The Upper Tribunal in the case of Cudjoe (Proxy marriages: burden of proof)  UKUT 180 (IAC) allowed the appeal of a non-European Economic Area (EEA) family member of an EEA national against the Home Office’s decision to refuse to grant her an EEA residence card because the couple had been married by proxy outside the EEA. The case is an interesting one as it shows the Tribunal’s willingness to ensure fairness for couples regardless of the fact that marriage was conducted by proxy. We have outlined the key facts of the case below.
The Claimant was a Ghanaian national and she was married to a Dutch national who was working in the United Kingdom. They were married by proxy in Ghana, after the Claimant’s husband’s previous marriage was dissolved. The Claimant and her husband provided documentation and a Dutch marriage expert report to show that their marriage was valid in Ghana and the Netherlands. The Home Office refused to issue the claimant with an EEA Residence card document.
The Claimant appealed to the First Tier Tribunal (FTT), and the appeal was allowed on the basis of the marriage certificate and a letter from the Ghanaian High Commission in London, that the marriage had been validly entered into according to the laws of Ghana; and having had regard to the decision in Kareem  UKUT 24 and the Dutch legislation presented to him that the marriage was valid according to the law of the Netherlands.
The Home Office then sought permission to set aside the decision. Permission was granted and the matter was reverted back to the upper tribunal to decide whether the marriage is valid for the purposes of Dutch law and as such whether she was a family member of an EEA national.
The Upper Tribunal’s Decision
The Upper Tribunal made a new decision to allow the appeal and made an order that the claimant should be granted an EEA residence document.
It found that the Claimant’s marriage was valid according to Dutch law as she was the spouse of an EEA national, she is therefore a family member of an EEA national who had been at all material times a qualified person, and thus, she was and is entitled to the issuance of a residence card under Regulation 17(1) of the Regulations.
The Upper Tribunal in its reasoning stated that in the case of an EEA national where there is a dispute about the validity of the marriage, the EEA national must prove the proxy marriage is lawful in country in which it was contracted and in the relevant EEA Member State.
It will be for an appellant to prove that their proxy marriage was in accordance with the laws of the country in which it took place, and that both parties were free to marry. The burden of proof may be discharged by production of a marriage certificate issued by a competent authority of the country in which the marriage took place, and reliance upon the statutory presumption of validity consequent to such production. The reliability of marriage certificates and issuance by a competent authority are matters for an appellant to prove.
The means of proving that a proxy marriage was contracted according to the laws of the country in which it took place is not limited to the production of a marriage certificate, as is recognised in Kareem (Proxy marriages – EU law)  UKUT 24 (IAC).
In cases where a divorce has taken place prior to the proxy marriage and there is an issue as to whether the parties were free to marry, it is for an appellant to show that the dissolution of the previous marriage was in accordance with the laws of the country in which it occurred.
EEA Immigration: Family Members of EEA nationals
Non-European family members of EEA or Swiss nationals can apply for a residence card which confirms their right of residence under European law. European law defines ‘family members’ as spouses, civil partner, the EEA nationals children or grandchildren (or the children or grandchildren of the EEA nationals husband, wife or civil partner) who are under 21 years of age or are a dependent on them and the parents or grandparents of the EEA national and their husband, wife or civil partner, if they are dependent on them.
Contact us for Successful EEA Residence Applications and Appeals
Our team of experienced and professionally qualified solicitors and barristers (regulated by the Solicitor’s Regulation Authority) will be able to guide you through the application or the appeals process step by step and limit the possibility of failure by complying with the strict letter of the law. Please always call us for a telephone consultation even if you wish to consider other advisers.
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