Case No. UKUT-00180-(IAC)

The claimant’s husband as a qualified person 17. We take first a matter that has never been in dispute and find as a fact that Mr Awuah has been and is exercising his Treaty rights in the United Kingdom. He is employed by ISS, as evidenced in the Appellant’s bundle, and is therefore a worker for the purposes of Regulation 6 of the Regulations. The validity of the marriage according to Ghanaian law 18. We have no hesitation in finding that the claimant’s marriage to Mr Awuah was valid according to Ghanaian law. That finding, and a finding that, contrary to the respondent’s assertion, Mr Awuah was indeed free to marry as his previous marriage had in fact been validly dissolved in 2012, are part of the findings made by the First-tier Tribunal and are preserved. In any event, there is the letter from the Ghanaian High Commission in London, which states unequivocally that both the divorce and marriage were valid according to law. In absence of any cogent evidence to the contrary, it would not be appropriate to go behind the clear statement of the competent authority of the country in which the events took place. 19. Although Mr Melvin raised an issue in respect of the Ghanaian documents and the issue of the registration of the claimant’s marriage with the Dutch Embassy in Accra, he expressly declined to submit that the documents were forgeries. He did however submit that the Ghanaian authorities had “distanced themselves” from the marriage certificate in particular by only attesting to the authenticity of the signatures of officials. When the preserved finding of First-tier Tribunal Judge Dineen relating to the validity of the marriage under Ghanaian law was pointed out to him, Mr Melvin accepted that if this was the case his submission on this point failed. The validity of the marriage according to Dutch law 20. We turn now to the core issue in this appeal, namely the validity of the proxy marriage according to Dutch law. This necessarily entails dealing with the expert evidence in some detail. 21. In respect of Dr Curry-Sumner’s suitability as an expert in the field of Dutch law, we simply refer to paragraph 10 of Mr Melvin’s skeleton argument, in which he states that, “No issue is taken with Dr Curry-Sumner’s expertise in the area in question.” There is nothing in the evidence to cast any doubt on this concession, and we need say no more about the matter. The report before us is from a suitably qualified source. 22. Within the section of the report entitled “Assignment”, Dr Curry-Sumner sets out the instructions from the claimant’s solicitors, a comprehensive list of the relevant documents provided to him in advance of the report’s production, and the specific questions posed by Upper Tribunal Judge Rintoul in his error of law decision. A statement of truth is also included, as is a declaration of his impartiality in the case and a lengthy curriculum vitae. To this extent there is compliance with the requirements of paragraph 10 of the Practice Directions for the Immigration and Asylum Chambers of the First-tier Tribunal and Upper Tribunal. 23. Mr Melvin submitted that weight should not be attached to Dr Curry-Sumner’s report for, in summary, the following reasons: a) The sources cited by the expert in his report were in Dutch and had not been translated for the benefit of the Respondent or the Upper Tribunal and so the Upper Tribunal could not rely on what the expert said. It followed, that there was no evidence before us to show that the expert’s assertions were correct. b) The fact that the author of the report was not at the hearing to give oral evidence was relevant. We assume that this submission went to the question of weight. c) The expert made references in his report to marriages contracted in Las Vegas, USA, and Pakistan (paragraph 2.4). These could not be relevant to the present case and so the weight attached to the report was thereby undermined. 24. We reject Mr Melvin’s first submission. Dr Curry-Sumner’s report is fully sourced, in footnote form, as to academic works, legislative provisions and case-law; the respondent has conceded that Dr Curry-Sumner is a suitably qualified expert; and, it is the function of an expert to provide their opinion on the issues in question. Particularly in the context of matters of foreign law, it is the expert opinion which constitutes the evidence to be assessed, not the primary source materials upon which that evidence is based. As is made clear in Kareem , simply examining legal materials from a particular country is unlikely to be of any assistance in deciding questions of fact in relation to foreign law. Further, no authority has been put to us supportive of the contention that the absence of translations effectively renders the report valueless. 25. We note that paragraph 10.9 of the First-tier Tribunal Practice Directions does not include a requirement for materials in a foreign language relied on to be translated. On Mr Melvin’s case, the expert, or in reality the claimant’s solicitors, would have had to provide translations of not only the relevant Dutch legislative provisions, but also extracts of all academic works and court judgments cited in the report. In our view, this would amount to a disproportionate burden. It is also contrary to the purpose of instructing an expert when disputes as to foreign law arise; the need for the expert is because a Tribunal in the United Kingdom cannot interpret foreign laws, even if translated, as Kareem makes abundantly clear. 26. Finally, there is the respondent’s conduct in this case. At no stage prior to the production of the skeleton argument on the morning of the hearing before us has the respondent taken the absence of translated source materials as a point against the expert report, a report which has been in her possession since May 2015. No questions for the expert relating to the source materials (or indeed any other matter) have ever been provided by the respondent, and of course she has not provided an expert report of her own. In light of this, even if translations had been produced, it is unlikely in the extreme that any further evidence would have emanated from the respondent. With all due respect to Mr Melvin, the reality is that all he could have done would be to make submissions on translated legal materials in relation to which he had no expertise. 27. In view of the above, the absence of translations of primary source materials does not materially detract from the weight we attach to Dr Curry-Sumner’s report. 28. We can deal briefly with two further criticisms made of the expert report. The fact that Dr Curry-Sumner did not give oral evidence has no material bearing on the weight we attach to his report. There has never been any indication from the respondent that she had any questions to put to him. The history of the respondent’s failure to engage with the expert evidence in this appeal rather suggests that there were no such questions. Mr Melvin did not allude to any matters he might have wished to raise with Dr Curry-Sumner. 29. The second point made is Dr Curry-Sumner’s citation of two judgments of the Dutch courts in his report: the first relating to a Pakistani Islamic marriage (footnote 5 on page 5); the second concerning a marriage in Las Vegas in paragraph 2.4. These were clearly just examples of how the Dutch courts had applied the law when considering the validity of marriages contracted outside of the Netherlands, which may not have been permitted within the domestic jurisdiction. The examples were relevant and we fail to see how they could possibly undermine the substance of the report. 30. Before moving on to the substance of the expert report, we need to say something more about the respondent’s engagement with this appeal following the error of law decision in December 2014. As mentioned previously, she has not provided any expert evidence of her own. This is despite having had ample time in which to do so, not only since the possibility of such evidence was flagged up by Upper Tribunal Judge Rintoul in his initial directions, but more importantly since she came into possession of an expert report back in May which clearly favours the claimant’s case. There has been no obligation on the respondent to commission a report in this appeal, but we regard it as a pity that she has seemingly declined to take any steps whatsoever to assist with the accumulation of the best evidence possible on an issue affecting not only the claimant but quite probably numerous other individuals in similar situations. 31. It does not follow that the absence of expert evidence from the respondent has the effect of increasing the weight to be attached to Dr Curry-Sumner’s report: it does not (see