[2024] UKUT 00363 (IAC)

The appellant (“A”) is a national of Pakistan. He came to the United Kingdom in 2010 as a student and is lawfully in the United Kingdom, with limited leave due to expire on 11 February 2025. He had a relationship with a Bulgarian national, Ms Silvia Antonova Yankova (“Y”) from 2015. They sought to marry. On 29 September 2016 the Secretary of State gave notice under s 50 of the Immigration Act 2014 that A had failed to comply with an investigation under that section, with the result that the process for undergoing a civil marriage was not open to them in either Scotland or England and Wales (s 3F(7) and paragraph 2 of Schedule 1A to the Marriage (Scotland) Act 1977, and s 28H(9) of and paragraph 2 of Schedule 3 to the Marriage Act 1949 respectively). They underwent an Islamic marriage on 10 October 2016.

A and Y have a child, born in Scotland on 2 April 2019, who has been issued with a Bulgarian passport. Having made the appropriate declarations, A and Y took part in a ceremony of marriage in Scotland under the provisions of s 20 of the Marriage (Scotland) Act 1977 on 2 May 2019. The child’s birth was registered on 21 May. A little over two years later, on 23 July 2021, the marriage on 2 May 2019 was dissolved by Decree of Divorce.

A sought indefinite leave under the provisions of the EU Settlement Scheme. He based his application on retained rights arising from his marriage to Y. The rules are notoriously complex, but fortunately for present purposes only one aspect of them matters. He could be successful in his application only if before he started proceedings to terminate the marriage it had lasted for at least three years. This requirement appears in paragraph (d)(i) of the definition of “family member who has retained the right of residence” in the definitions in Annex 1 to Appendix EU to the Immigration Rules. The date when the proceedings to terminate the marriage is not clear, but as the period between 2 May 2019 and 23 July 2021 is itself less than three years, it is evident that A cannot succeed if his marriage was on 2 May 2019 as the Secretary of State found or assumed in refusing his application. His position is that he has been married since 10 October 2016. He says that the marriage upon which he relies was contracted in Pakistan on that date (although both parties were in the United Kingdom) and that as such that marriage is or was valid in Scots law and United Kingdom law.

A appealed against the refusal of his application. His appeal raised a number of grounds, all of which were rejected in the First-tier Tribunal by Judge Debra Clapham in her decision of 9 March 2023. He appeals, with permission, to this Tribunal on the sole ground that Judge Clapham erred in her approach to the evidence and the law governing the marriage of A and Y.

Argument on A’s behalf was presented to us fully and elegantly by Mr Shabbir, partly on the basis of grounds drafted by Mr Zane Malik KC. Mr Lindsay put the Respondent’s position. Although our task is to determine whether Judge Clapham erred in law, it is, we think, preferable in this case to look at the evidence, and the relevant law, from first principles.