[2024] UKUT 00363 (IAC)

The evidence in this case is twofold: there is evidence from A and Y, and there is evidence in the form of certificates and similar documents from official, or semi-official, sources. It is convenient to begin with the latter.

The Nikah Nama of the Islamic marriage between A and Y is completed (and partly printed) in English. It records that the marriage took place in Birmingham at the Jamia Masjid Minhaj ul Quran Mosque in Birmingham on 10 October 2016 at 4 pm. There was an immediate dower of a nominal sum, and two male witnesses. The certificate bears signatures of A and Y, the witnesses, and the Nikah Khan, whose name is given as “M. Bilal Qadri”.

There is no certificate of any marriage between A and Y in Pakistan on the same or any other day.

There is a document in Bulgarian, issued by the Municipality of Svilengrad on 21 December 2016. We have a translation, with the heading ‘Civil Marriage Certificate’. It sets out the names and other data of A and Y, together with the data (as translated) “Date of the civil marriage conclusion: 10.10.2016; Place of marriage conclusion: Pakistan”.

Next in time is the application for a Scottish second marriage ceremony, consisting of an application setting out the facts, a statutory declaration by A and Y, and a purported witnessing by a Justice of the Peace. We use the word ‘purported’ because although the form clearly requires the Declaration to be signed before a Justice of the Peace, the Councillor who signs as witness has not indicated that he is one, and has competed the date in a strikingly unusual way (but in the same way as the date entered by A and Y in the Declaration itself). Be that as it may, in the Declaration A and Y declare that they went through a marriage ceremony with each other “at PAKISTAN over the skype and registered marriage in Pakistan and Bulgaria on 10 October 2016. The marriage was solemnised by M. Bilal Qadri in accordance with the laws of Pakistan”. The circumstances of the marriage are entered on the form by a statement that A and Y “were not physically present in the ceremony we attended the ceremony over the skype and we registered the marriage in Pakistan in accordance with Pakistani law. [Y] also registered marriage in Bulgaria and now we moved to United Kingdom so we want to legalise our marriage in United Kingdom because we will reside in United Kingdom”.

The next document is the certificate of the parties’ marriage in Scotland on 2 May 2019 giving the status of each as “Existing Marriage”, and with a note that ‘the parties went through a marriage ceremony with each other on Tenth October 2016 in Pakistan’. Finally, there is an extract Decree of Divorce, dated 9 August 2021 and giving 23 July 2021 as the date of the divorce, and dissolving the marriage that took place on 2 May 2019.

The evidence from the parties is found in A’s witness statement. There was no evidence from Y (who, according to the Decree of Divorce, had returned to Bulgaria, but is now again living in Glasgow); and it appears that A’s evidence at the hearing before the First-tier Tribunal judge was in essence limited to adopting his witness statement and pointing to certain features of the documents. The statement is apparently intended to be a full account of A’s immigration and marital history. It records that A and Y encountered each other on social media and first met on 26 April 2016, on which date also they started living together. They were not able to undertake a UK civil marriage, but:

“Thereafter, we got married on 10 October 2016 under Islamic Nikah at Birmingham. We also registered our marriage in Pakistan through Skype and got subsequently married in accordance with the Pakistani law. I submit that we attended the ceremony over the Skype as we were not physically present in Pakistan. Further, my ex-wife provided our Pakistani marriage certificate to Bulgarian authorities for the registration of our marriage in Bulgaria which was accepted as legal and valid. Thus our marriage was also legally registered in Bulgaria and we were issued the marriage certificate dated 21 December 2016. … [The Scottish authorities] accepted my application considering my marriage dated 10 October 2016 as legal and valid and issued the marriage registration certificate [drawing attention to the note, cited above]. … Later on, unfortunately, our marriage broken down on 23 July 2021. …”

Apart from the statements of A, and in the statutory declaration, Y, the only evidence of the second ceremony is said to be the existence of the Bulgarian certificate. The First-tier Tribunal judge said as follows about that:

“Although the authorities in Bulgaria may have been prepared to accept the 2016 date I was not given evidence about how the Bulgarian legal system determines these matters or the factual basis which might have inclined the Bulgarian authorities to accept the 2016 date.”

We agree entirely with that, so far as it goes: in these proceedings, and in the absence of evidence of those matters, the Bulgarian certificate does not assist A’s case. But in a sense the First-tier judge does not go far enough. The question is not only the date (because it is clear that there was a marriage in Birmingham in 2016) but the place of the marriage that is important. Because the Birmingham marriage is not entitled to recognition in any part of the United Kingdom, A needs to prove on the balance of probabilities that there was also the marriage in Pakistan on that date. The Scottish marriage certificate takes the matter no further: it simply repeats the statements made in the statutory declaration and cannot itself constitute a Pakistani marriage; nor is it itself evidence of a formally valid Pakistani marriage as detailed in the note. The presumption of formal validity applies in relation to the Scottish ceremony itself, but that is no help either, particularly because the reason (or a possible reason) for the s 20 procedure is uncertainty about the parties’ marital status.