An EEA appellant must prove a 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.
I think the tribunal may finally have it right on proxy marriages in this case. Third time lucky. The key question in any case in which the validity of a marriage is in question will be whether it is recognised in the country in which it took place. As a fundamental matter of private international law, most other countries will then recognise such a marriage – but in an EEA marriage case an appellant will still need to show that the relevant EEA country does indeed recognise the marriage.
In this case the appellant had commissioned what sounds like a very impressive expert report on Dutch marriage law. The Home Office was left scrabbling around raising whatever objection the Presenting Officer could think up off the top of his head on the day of the hearing. An alternative to an expert report could be a declaration by the courts of the relevant country, something that it is I think just about possible to obtain in the UK, albeit at fairly considerable expense.