The Court of Appeal has held that the Upper Tribunal has been wrong all along about proxy marriages and EU law. The case is Awuku v Secretary of State for the Home Department  EWCA Civ 178 and it overrules the earlier tribunal cases of Kareem (Proxy Marriages – EU Law) Nigeria  UKUT 24 and TA and Others (Kareem explained) Ghana  UKUT 316.
It is always a bad sign when a judgment subsequently has to be “explained”. And so it was here.
The Home Office had already conceded that the approach of the Upper Tribunal was wrong and the Court of Appeal had to resort to appointing an Advocate to the Court to try and present some arguments in support of the Upper Tribunal’s position.
The problem with the tribunal’s approach in Kareem and TA is that it paid no regard at all to private international law, made no reference to Dicey on Conflict of Laws or to the relevant case law and proceeded to invent a new (or previously undiscovered) principle of private international law with no real regard to the effect on the personal legal status of those affected.
This is particularly mysterious given the tribunal got it right in the earlier case of CB (Validity of marriage: proxy marriage) Brazil  UKAIT 00080, from which the tribunal inexplicably later departed.
Giving the leading judgment, Lloyd Jones LJ held:
In Kareem, the Upper Tribunal has, 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 has displaced the domestic rule of private international law which would normally apply. The question for consideration in the present case is whether EU law requires such an approach.
Recognition of marriages is outside EU competence, found Lloyd Jones LJ, as it is plainly a matter for the domestic law of Member States, as is the issue of nationality and therefore citizenship of the Union. There was therefore no role for EU law to play in determining the validity of a given marriage.
And that was that.
I’m not necessarily an expert in proxy marriage law but with even my basic familiarity with international family law I am at least aware of some “known unknowns”, to quote Donald Rumsfeld. The tribunal apparently was not.
These unnecessary legal mistakes have very seriously inconvenienced a significant number of EU nationals and their family members. Some have wrongly had their residency applications refused and will have been removed or be living illegally. Others have been put to great personal expense in order to meet the evidential requirements wrongly imposed by the Upper Tribunal.
This was all eminently avoidable. What went wrong? This is not a situation where there was any real authority to support the view the tribunal reached; quite the contrary, in fact. Meanwhile, big jurisdiction cases such as Amirteymour and Sala are also widely thought to be wrong; the Upper Tribunal is like the plumber who charges a call out fee, sucks in some air, tuts a few times and then tells you a heating engineer is needed. Judicial review is no substitute for a proper merits based appeal, as was recently recognised in the High Court in Akturk. Sala is now the subject of a reference to the CJEU but because it has now been incorporated into domestic UK regulations the damage to the rights of EU nationals and family members is permanent.
It would be reassuring to know there was some internal evaluation at the tribunal on how to avoid similar problems arising in future.