EC for wife (second marriage before the first was annulled)

[adnan111]

adnan111, I can only reiterate how many times I have seen refusals on the forum for the route you seem determined to take, but after all the choice is yours. I would however, advise others against it.

Casa I appreciate your advice, and I am thankful to you. I posted here 1 year ago and someone has brought this thread up again, however since posting here I obtained legal opinion and submitted application where I should be hearing soon.

Rule 278 is as follows:

278. Nothing in these Rules shall be construed as allowing a person to be granted entry clearance, leave to enter, leave to remain or variation of leave as the spouse and civil partner of a man or woman (the sponsor) if:
(i) his or her marriage or civil partnership to the sponsor is polygamous; and
(ii) there is another person living who is the husband or wife of the sponsor and who:
(a) is, or at any time since his or her marriage or civil partnership to the sponsor has been, in the United Kingdom; or
(b) has been granted a certificate of entitlement in respect of the right of abode mentioned in Section 2(1)(a) of the Immigration Act 1988 or an entry clearance to enter the United Kingdom as the husband or wife of the sponsor.
For the purpose of this paragraph a marriage or civil partnership may be polygamous although at its inception neither party had any other spouse or civil partner.

[Casa]

See this flow chart from the Immigration Rules on guidance to Entry Clearance Officers and in particular:
Was there anything in the law of either party’s country of domicile (see SET15 Domicile) that restricted his/her freedom to enter the marriage? > Yes? > Marriage not valid in the UK [/b

https://www.gov.uk/government/uploads/s ... wchart.pdf

Also from the Immigration Rules on guidance on right to refuse:
Where one of the parties to a marriage abroad was domiciled in England and Wales at the time of the marriage, and there was a lawful impediment in English law (that is, he / she was under the age of 16; the parties were not respectively male and female; he / she was already lawfully married or a civil partner; the parties were related within the prohibited degrees), the marriage could not be recognised in England and Wales

[Casa]

dhimwa123 you've high jacked another member's thread and your post bears no relationship to the subject. Please post this in your own thread to avoid confusion.

[adnan111]

The flow chart is from 2009, whereas I believe immigration rules have been updated in 2012. So the flow chart could be out of date.

[Casa]

I don't believe there have been any changes in SET14 - Polygamous / potential polygamous marriage. In fact the flow chart although first published earlier, remains in the updated UKVI Immigration Rules.

[adnan111]

I don't believe there have been any changes in SET14 - Polygamous / potential polygamous marriage. In fact the flow chart although first published earlier, remains in the updated UKVI Immigration Rules.

These are the current immigration rules, known as Immigration Rules Part 8.

https://www.gov.uk/government/uploads/s ... _final.pdf

[Casa]

No change in the rules on polygamy then (marrying again before divorced).

[adnan111]

There may not be a change on the law on polygamy but your second marriage will be valid as soon as you get your decree absolute for the purpose of entry clearance.

The rules state that you have to be married to the person applying AND also to be married to someone else to be refused entry. It follows that once you get your decree absolute you cannot be denied a visa on this ground as you don't meet the condition for refusal. Both of these need to apply and not one (278 (i) and (ii)) as AND is mentioned quite clearly.

The information is in front you, now if you don't want to believe then I am not going to try to convince you otherwise.

[adnan111]

.

[Casa]

Well Adnan, I sincerely hope your application is successful and that all the refusals posted on the forum due to the marriage taking place before the divorce was finalised was an error in law by the ECO.

I still however have to say that I don't agree with your interpretation that a void marriage under British law can become legally valid with the divorce decree absolute. I wish you well.

[adnan111]

Well Adnan, I sincerely hope your application is successful and that all the refusals posted on the forum due to the marriage taking place before the divorce was finalised was an error in law by the ECO.

I still however have to say that I don't agree with your interpretation that a void marriage under British law can become legally valid with the divorce decree absolute. I wish you well.

Firstly let us look at the definition of "AND" which is "used to connect words of the same part of speech, clauses, or sentences, that are to be taken jointly". This means that 278 (I) and (ii) are addressing the same issue and have to taken jointly and not read in isolation.

The rule is:
i) his or her marriage or civil partnership to the sponsor is polygamous; and
(ii) there is another person living who is the husband or wife of the sponsor and who:

This means that you cannot be in two marriages at the same time, or that you cannot have a wife or husband in UK while sponsoring a person as a spouse at the time of entry clearance, the word "is" is used and not "was" which means presently. If you are applying after getting a decree absolute then (ii) does not apply to you, and if (ii) does not apply then 278 cannot apply to you.

As far as polygamy is concerned you can make an argument for it, but if you are marrying in a different jurisdiction, one where your previous marriage dissolution and new marriage is recognised then I don't view it as polygamy. It will never become an issue of polygamy until you apply for entry clearance, but if you have decree absolute by then, then there is no polygamy. This definition may not be a strict legal definition but it is a definition for the purposes of entry clearance. Perhaps you are getting confused by the two.

[Casa]

I'm not confused, I'm going by the reason for refusals for invalidity of marriage which regrettably are fairly common (due to the divorce only being finalised after the second marriage). We've had members over the years posting for advice on what steps to take after the application has been rejected. Which is why I advised you a year ago to take the safer fiance route. I'll leave it here but please keep us updated on your application.

[adnan111]

I'm not confused, I'm going by the reason for refusals for invalidity of marriage which regrettably are fairly common (due to the divorce only being finalised after the second marriage). We've had members over the years posting for advice on what steps to take after the application has been rejected. Which is why I advised you a year ago to take the safer fiance route. I'll leave it here but please keep us updated on your application.

I would be interested to read through any links that you have of cases within the last 3 years where a visa has been refused for an application after a decree absolute has been obtained in the UK.

[Casa]

If I have time to search for them, I'll post them for you.

[Casa]

Here's one which may help:
http://www.immigrationboards.com/immigr ... ce#p601431

Which contains this:
The ECO has refused application with the following judgement
Your sponsor was previously married to xxxxx and the decree absolute submitted shows that the divorce was made final on xxx Oct 2011. You entered into marriage with your UK sponsor one year earlier on xxx Nov 2010 and only registered the marriage on 29th Nov 2011 – approximately one month after your sponsors divorce. As such I am not satisfied that your sponsor was free to marry you in nov 2010 as at the time he was still legally married to his first wife. I am therefore not satisfied you meet the requirements 281(i)(a) of the UK immigration rules HC395 (as amended)

I have therefor refused your application because I am not satisfied, on the balance of probabilities, that you meet all the requirements of the relevant paragraph of the united kingdom immigration rules.

[adnan111]

interesting, but I would be interested in hearing about any applications from 9th July 2012 onwards which is when I think the rules may have been amended. Or from 13th February 2014 when the current rules came in force.

[Casa]

I'll leave you to do a search...family life calls....

[NZama1]

I agree with casa, it seems common sense that just because you obtained a decree absolute at some point in the future after 2nd marriage, that this would then mean that your second marriage becomes valid, when at the time of your 2nd marriage you were not free to marry. i doubt the eco will be sympathtic and essentially backdate the decree absolute to enable the 2nd marriage to become valid

[NZama1]

Adnan111, what course of action did you decide to take. was it successfull? did you submitt the decree absolute and this make your 2nd marriage valid and therefore visa issued

[Casa]

I believe that Adnan's spouse visa application hasn't been decided yet.

[secret.simon]

This is one of the threads that I would like Obie to comment on, if only because he is the only moderator that I know is a lawyer (I'm not aware if you are, Casa).

From what I have read of the Rules (Annex FM 1.3, 1.4 & 1.5), recognition of marriage/divorce seems to revolve on the woolly question of domicile.

It is defined in Annex FM 1.5 as "the place which a person regards as his permanent home and with which he has the closest ties: it contains a dual element of actual residence in a place and an intention of remaining there permanently". I would argue that by applying to settle in the UK and actively gaining citizenship, as opposed to gaining it by descent or birth, the person has also changed his domicile to the UK. But the document suggests that that is not the case and that the domicile of origin and of the father would persist, unless the applicant gives a clear intention of his/her domicile changing. Unfortunately, it does not state how the applicant expresses such clear intent. So, I am not sure if the divorce would need to be filed in the UK or in Pakistan for the divorce to count.

There is a domicile questionnaire that shows the various factors that the Home Office must consider in such a case.

I have given up on this topic and am looking forward to the outcome of adnan111's case for clarity on this issue.

[adnan111]

I spoke to leading chamber of bar for immigration and they referred me to a band 1 immigration solicitor and I got the advice that I got. I had no problem with any advice that I would have received, and I have no reason to doubt the advice that I got.

The law is clear and so are the immigration rules, the only problem is people applying their selective morality.

[adnan111]

Calling your wife a fiancée or a unmarried partner is a fallacy, as you are legally married and you cannot get married again to the person that you are married to, without getting a divorce and then marrying someone else and then divorcing to get married to the same person again.....which you cannot do if you know all along that you are just going through the motions and is pre-planned. Also there is no concept of civil marriage for muslims in muslim countries, unless you pretend to be a non-muslim.

[secret.simon]

the only problem is people applying their selective morality

It is not clear if you are referring to your colleagues on these forums or to the Home Office/UKV&I case workers in this quote

Relax Adnan111. The question that you raised is an interesting academic question to explore and I find it interesting to explore all aspects of it. I do not dispute that the solicitor's advice and your interpretation of the text are sound. However, it does run contrary to the experience of others on this forum and that is what we are trying to reconcile.

I think that you are convinced that your action is in the right here, but a discussion of course only works on the basis that you could be wrong. Perhaps I am taking a philosophical approach, but at the end of the day, it will be the decision in your case (and any subsequent appeals) that will state which interpretation was definitively the correct approach. In the meanwhile, let us on these forums speculate.

What I am fairly certain about is that you are mistaken in the notion that a marriage conducted anywhere in the world is automatically valid the world over. While that is true of most (not all) monogamous marriages, it is not true of all marriages. Most countries recognise marriages conducted in other countries, but that is by custom, not by international treaty or law. There have been numerous exceptions to that rule. For instance, marriage within the UK with a member of the Royal Family was till recently not valid without the Queen's approval, but could be recognised by other countries. Likewise, morganatic marriages were not recognised the world over, nor marriages where one of the participants was under the age of consent (which differ from country to country-the participant could be of age in Saudi Arabia but not in the UK), nor same-sex marriages, the list goes on. I doubt any of these exceptions apply to you. I only list them to demonstrate that it is not automatic that a marriage celebrated in one country is automatically recognised the world over.

So, it may be necessary to call your wife a partner or fiancé if that country does not, for reasons of its own polity, recognise your marriage. No marriage, no wife, no husband, no spouse.

[secret.simon]

In some aspects, marriage (and divorce and other family law matters) is not dissimilar to citizenship. It not only depends on what you think or claim your status to be, it is also what the government (which is an embodiment of society) and the wider society that you live in think of it.

I think that you are likely a dual British Pakistani citizen. Other countries in the EEA would recognise you as an EEA citizen, but in the UK itself, you are treated as a solely British citizen. Likewise in Pakistan you would be treated a solely Pakistani citizen. India may refuse you a visa based on your Pakistani citizenship in spite of the fact that you are also British. Likewise Israel. Nothing detracts from the fact that you are both, but different countries may treat your citizenship in different ways.

There is no globally standard way for personal status matters, such as marriage status, citizenship, to be imported over national boundaries. Your status could change when you cross national boundaries.