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Free movement: Court of Appeal holds that validity of marriage in EEA cases to be determined by law of host member state

DATE: 27 Mar 2017

Awuku v Secretary of State for the Home Department [2017] EWCA Civ 178 (23 March 2017)

The case concerned a decision by the Secretary of State refusing the appellant's application for a residence card as a confirmation of a right to reside in the United Kingdom on the ground that the appellant was not the "spouse" of an EEA national for the purposes of Regulation 7 of the Immigration (European Economic Area) Regulations 2006 ("the EEA Regulations").

In upholding that refusal, the Upper Tribunal held that, following Kareem [2014] UKUT 24 (IAC) and TA [2014] UKUT 316 (IAC), the validity of the marriage had to be determined in accordance with the law of the country of which the EEA person seeking to exercise free movement rights was a national - in this case Germany.  As there was no evidence that Germany recognised marriages entered into by proxy, the appellant had not proved his entitlement to a residence card.

The Appellant appealed to the Court of Appeal on the grounds  that Kareem and TA were wrongly decided.  The case was unusual because by then the Secretary of State agreed.  The case was adjourned for full argument with the benefit of an appointment of a Friend to the Court. 

The Court of Appeal held that: 

1) In the law of England and Wales the general rule is that the formal validity of a marriage is governed by the law of the country where the marriage was celebrated ("the lex loci celebrationis").  

2) In Kareem, the Upper Tribunal had, by contrast, created a new private international rule for the purposes of EU law, referring to the law of the Member State of the EU national's nationality. In doing so it had displaced the domestic rule of private international law which would normally apply. The question for consideration was whether EU law required such an approach.

3) The answer was no.  Save in limited circumstances, EU competence does not extend to the recognition of foreign marriage. No relevant measures had been adopted pursuant to the special legislative procedure set out in Article 81(3) TFEU, and accordingly there was no EU law applicable to the recognition of marriages. The formal validity of marriages is left to be decided by the application of domestic law principles including domestic law rules of private international law.‚Äč

The First-Tier Tribunal having held that the marriage in the present case was properly executed so as to satisfy the requirements of Ghanaian law, and that there was nothing in the law of either party's country of domicile that restricted their freedom to enter into the marriage, and that it was established public policy did not forbid marriages by proxy, the marriage of the appellant and his wife was valid under the law of England and Wales and, as a consequence, the relevant requirements of the EEA Regulations were met.

The appeal was accordingly allowed.  Samantha Broadfoot QC instructed by the Attorney-General appeared as Friend to the Court.