[2024] UKUT 00363 (IAC)

It is apparent from A’s evidence that his position is that three events took place on 10 October 2016, in the following order: an Islamic marriage in Birmingham, the registration of that marriage in Pakistan, and an Islamic marriage in Pakistan. The registration must have been of the Birmingham marriage because the later one had not taken place; and the second marriage of that day must have been an Islamic marriage because it was, as his statutory declaration for the Scottish marriage asserts, solemnised by M. Bilal Kadri, i.e. the same person who solemnised the Birmingham marriage (unless it is another person of exactly the same name – but such a coincidence of two different people of the same name officiating at two separate marriages of the same couple on the same day in two different countries is a possibility we are prepared to discount). The two latter events must have taken place after 9 pm in Pakistan, because of the time of the Birmingham marriage.

The absence of a certificate was explained to us (not by way of evidence) as resulting from the Bulgarian authorities having retained the only certificate, in a process requiring Bulgarian nationals to register, in Bulgaria, a marriage entered into abroad. Even if that were so, there is no reason why another certificate could not have been obtained, if such a marriage did take place; and without a certificate there is no room for the presumption of marriage. Evidently no certificate of a Pakistani marriage was produced in the course of arrangements for the Scottish marriage.

Without any direct documentary evidence of a marriage in Pakistan, the following questions (at least) arise, and other than the bare statements already detailed, there is no evidence enabling any of them to be resolved in A’s favour.

First, could the ceremony have happened, as a marriage taking place in Pakistan? As we have said, there is nothing before us to show that a marriage in which neither party is present in Pakistan, and neither party is represented by a person present in Pakistan, is recognised or is capable of being recognised as a marriage that took place in Pakistan. In the present case there appears to be a further difficulty in that the Nikah Khan was not in Pakistan either. As a valid Islamic ceremony, it may well be the case that the Birmingham marriage is recognised in Pakistan as a valid marriage that took place outside Pakistan, but that is another matter altogether and is no help to A.

The second question is whether the ceremony did happen. We have no evidence about the extent to which registration of an existing marriage, and then an Islamic marriage, can take place in Pakistan after 9 pm. But we do note that in contrast with all the details recorded on the Birmingham Nikah Nama, neither of the parties has been able to say anything about the place where the second marriage was celebrated, save that it was ‘in Pakistan’. There is no evidence of dowry, or of the identity of the witnesses. We have noted that there is no evidence that a new certificate of that marriage has ever been sought, but on A’s evidence there is no reason to suppose that he has any awareness of where his marriage is supposed to have taken place or even where the earlier marriage was registered.

There is a further aspect to this question. The basis of A’s case is that despite the non-recognition of the Birmingham marriage, because there was a marriage in Pakistan on the same day, he is to be regarded in Scots (and UK) law as having entered into a valid marriage on 10 October 2016. But if that is so, it is remarkable that there is no evidence of dissolution of that marriage. The only marriage that has been dissolved is the later Scottish marriage: the Decree is specific as to that. If A’s position is that the marriage of 10 October 2016 was valid in Scots law, it follows that he and Y are still married in Scots law, which is not how he describes his marital status. In particular, in a parental agreement dated 12 October 2022, A and Y describe themselves as divorced on 23 July 2021, and in his EUSS application, A describes himself as divorced by decree issued on 9 August 2021. Those statements are not obviously consistent with an assertion of the Pakistani marriage in 2016 of which no dissolution is mentioned. (In any event A and Y are apparently still married in Islamic law, with all that that entails for both of them.)

The third question is whether, if the ceremony did take place, it would have had any effect. It is not suggested that the Birmingham marriage was not effective as an Islamic marriage, having full effect in Islamic law (and entitled to recognition in Pakistan: if there were any doubt about that, there is nevertheless no doubt about A’s position, because he says it was registered in Pakistan). The second ceremony was, therefore, supposed to be a ceremony in Pakistan uniting in an Islamic marriage a couple each of whom was already a party to an Islamic marriage (which so far as the bride is concerned is not valid in Islamic law, and so far as the groom is concerned is not permissible save by the process set out in the Muslim Family Laws Ordinance of 1961, of which we take judicial knowledge). Further, each was already a party to an Islamic marriage with the other. We have been shown no basis upon which such a ceremony, even if permitted in Islamic law or the law of Pakistan (which we doubt) could have had the effect of creating a (new) valid marriage between two persons already validly married to each other.

Those are the questions. Our answers are that we are not remotely persuaded that a further ceremony by skype could have been regarded as taking place in Pakistan, or that it would have had any effect if it did; and we do not believe that any such ceremony took place or that A and Y consider themselves bound by it.

We have treated the matter at length because of the submissions made to us. Our prime task is to determine whether the First-tier Tribunal erred in law. On the evidence before it, that Tribunal made no error in concluding that a marriage between A and Y in Pakistan in 2016 had not been established. There was no event before 2019 that could be counted as initiating a period of “marriage” for the purposes of the EU Settlement Scheme. This appeal is therefore dismissed.