Obie wrote:I very much welcome contrary views to mine.
I accept this is not a simple issue with a simple answer, and might involve a bit of fighting.
We have to take this matter step by step.
1. It is settled law that validity of marriage is determined by
Lex Loci celebrationis as opposed to domiciled, therefore the last criteria provided in the link above has been overruled by the UK courts in
CB (Validity of marriage : proxy marriage ) Brazil [2008] UKAIT 00080
2. Pakistan Recognises this marriage or else it would not have been contracted.
3. OP is not seeking to bring 2 or 3 wives, he is seeking to bring 1 wife in only.
4. Let say, for argument sake, the domicile is relevant, we simply don't know where OP was domiciled prior to the marriage. Holding a British passport, does not on its own make someone a UK domiciled person
4. Even if i am wrong in my above statement, i believe the OP will have a strong case Under Article 3(2) of Directive 2004/38EC for his wife to be brought it under the Durable Relationship provision.
I am obviously mindful of Regulation 9.
- Regulation 9 is not absolute. It is intended to incoporate the Singh and Enid Ruling into UK domestic law.
- It fails to make provision for beneficiaries, who are covered by community law.
- Therefore a person, is allowed to challenge it in court and have the provision of Article 3(2) applied directly to their situation.
without contrary views, we would never learn anything? I am always open to learning, and on this forum I learn a lot.
I would agree that there is no simple answer, and from the case law reference you quoted i note:
para 22
Ms Cannell also referred to the second paragraph of those Instructions which say the following:
"2. Marriage Overseas
The recognition of any marriage which has taken place overseas is governed by the following:
• Is the type of marriage one recognised in the country in which it took place?
• Was the actual marriage properly executed so as to satisfy the requirements of the law of the country in which it took place?
• Was there anything in the law of either party's country of domicile that restricted his freedom to enter into the marriage ?
If the answers to the above questions are respectively, 'Yes', 'Yes', and 'No' then the marriage is valid whether or not it is polygamous."
i have highlighted the pertinent part? was there anything that restricted either party....
YES, one party to the marriage was not divorced.
so if the answer to the question is yes yes no, then its valid, but if either of the yes are a no or the no is a yes then it is not valid?
and from para 4 of the same:
The Immigration Judge went on to consider capacity to marry of those domiciled in the United Kingdom. This is governed by section 11 of the Matrimonial Causes Act 1973. There are four requirements: that both parties are over the age of 18, neither is lawfully married, the parties are not inter-marrying, and the parties are respectively male and female. By implication he found that the appellant and his wife met these four criteria and that as a consequence there was nothing in the law of their country of domicile to prevent them from contracting a valid marriage by proxy in Brazil. He accepted therefore that they were legitimately married and that the appellant was therefore Ms Kowalczyk's family member. She is a citizen of Poland and it seems not to be contested that at all material times she has been a qualified person within regulation 6 of the Immigration (European Economic Area) Regulations 2006.
the OP does not meet all 4 of the criteria? again because he was not divorced at the time.
isn't a Brit cit always domiciled in Britain?
I do understand the reasoning in the case law reference about proxy marriage, I wasn't married by proxy but i did marry overseas, and to the requirements of that country (Tunisia) which involved my producing a CONI, and to get that I had to produce a Decree Absolute, to show that i was free to marry, irrespective of where polygamy is practiced, which it isn't in Tunisia, if i did not have a decree absolute i would have been committing bigamy from the point of view of the UK, and in Tunisia a person must be divorced more than 3 months, and if not divorced (no decree absolute) then i would also have been committing bigamy. i think the issue here is bigamy rather than polygamy?
I am not up to speed on the requirements of marriage in Pakistan, one would assume that the marriage met the requirements, but was/is the OP a brit cit, or does he also hold Pakistan nationality? if so did he marry as a brit cit or as a Pakistan national?
as you so rightly say, no simple answer, as there is much to consider where the marriage is concerned?
But is the OP seeking to bring only 1 wife? as he was not free to enter into the marraige she actually isnt his wife, as he committed bigamy?
just because a brit cit goes to another country to marry, if they are not free to marry they are a bigamist? irrespective of the laws of the country they marry in?
me thinks i need to read up a whole lot more?
I would think that holding a british/UK passport doesn't make one domiciled in the UK? isn't ikimi v ikimi case law on same? domicle/residence
I would agree totally that the OP falls within 3.2b, the extensive examination of personal circumstances might just pick up the marriage?
could the UKBA deny residence under durable relationship if it was found that the couple had married but that it wasn't valid,which is the whole question i guess?
If reg 9 can be challenged, and article 3.2 applied directly, then that is an option.
I am mindful of the fact that if the OP goes as married, it will be found that the marriage is not valid, so going as durable would work, but create other issues, in that it comes under OFM rather than FM.
in theory as a res card has been issued there is no need for an EEA/fp.
something else i (we) have recently done, as you know from my posts, and my hubbies RC had "expired" as it wasn't issued for 5 years!
but just because there are some similarities in cases doesn't mean they will work in all cases?
