Assessing Marital Validity under 2006 EEA Regulations: Clarifications from TA and Others (Kareem explained)

Introduction

The case of TA and Others (Kareem explained) ([2014] UKUT 316 (IAC)) addresses critical issues concerning the recognition of marital relationships for the purpose of issuing EEA residence cards under the Immigration (European Economic Area) Regulations 2006. The appellants, consisting of Ms TA, Master KA, and Miss ANAG from Ghana, sought residence confirmation in the United Kingdom as non-EEA family members of EKT, a Dutch national. Central to the case was the validity of the marriage between Ms TA and EKT, particularly given they were not present in Ghana when their marriage was contracted and the implications of proxy marriages under EU law.

Summary of the Judgment

The Upper Tribunal (Immigration and Asylum Chamber) reviewed the First-tier Tribunal’s decision, which had previously allowed the appellants' appeals based on the validity of their marriage under the 2006 EEA Regulations. The Secretary of State appealed, asserting that the First-tier Tribunal erred by not considering the Upper Tribunal's decision in Kareem (Proxy marriages - EU law). The Upper Tribunal agreed, emphasizing that the validity of a marriage for EEA residence purposes must be determined according to the national law of the EEA sponsor's country—in this case, the Netherlands. Given the absence of evidence that Dutch law recognizes proxy marriages, the Tribunal concluded that the marriage between Ms TA and EKT was not valid under the 2006 Regulations. However, the Tribunal found that the relationship was durable under Regulation 8, allowing the appellants to be recognized as extended family members eligible for residence.

Analysis

Precedents Cited

The judgment prominently references the Kareem (Proxy marriages - EU law) ([2014] UKUT 24) decision. In Kareem, the Upper Tribunal delineated how the validity of a marriage should be assessed for EEA purposes, particularly emphasizing the necessity to apply the national law of the EEA sponsor's country. This precedent played a pivotal role in the current case, as it guided the Upper Tribunal to scrutinize whether the marriage between Ms TA and EKT was recognized under Dutch law.

Legal Reasoning

The court's legal reasoning hinged on the interpretation of the 2006 EEA Regulations, particularly regulations 7 and 8. The Upper Tribunal underscored that:

Validity of marriage must be assessed according to the sponsor’s national law.
A marriage certificate from a competent authority is typically sufficient evidence, but lacking proof under the sponsor’s law necessitates further investigation.
In the absence of recognition of the marriage under Dutch law, the marital relationship does not satisfy the requirements of Regulation 7.
Despite the invalidity for Regulation 7, the relationship can still be considered durable under Regulation 8, which allows for extended family members if a durable relationship is proven.

The Tribunal meticulously analyzed paragraph 68 of the Kareem decision, clarifying misconceptions presented by Mr. Akohene and affirming Mr. Kandola’s standpoint that the determination must align with the EEA sponsor’s national legislation.

Impact

This judgment reinforces the importance of applying the EEA sponsor’s national law when assessing marital validity for residence purposes. It clarifies that even in cases where a marriage is not recognized under the sponsor’s law, a relationship may still qualify under Regulation 8 if it is deemed durable. This dual pathway provides a nuanced framework for adjudicating complex family relationships in immigration law and underscores the necessity for rigorous proof aligned with the sponsor's legal system.

Complex Concepts Simplified

Proxy Marriage: A marriage where one or both parties are not physically present and are represented by others during the ceremony. Such marriages' recognition varies under different national laws.

Durable Relationship: A long-term, stable relationship akin to marriage, recognized under Regulation 8 of the 2006 EEA Regulations for the purpose of extending residence rights.

Regulation 7 vs. Regulation 8: Regulation 7 pertains to family members derived directly from the sponsor (e.g., spouse, partner, children), while Regulation 8 covers extended family members (e.g., dependent relatives) who may not fall under Regulation 7 but have a durable relationship with the sponsor.

Conclusion

The Upper Tribunal’s decision in TA and Others (Kareem explained) clarifies that the validity of a marriage for EEA residence purposes must be assessed according to the national law of the EEA sponsor’s country—in this instance, the Netherlands. The judgment underscores the necessity of aligning marital validity with the sponsor’s legal framework, thereby ensuring consistency and fairness in the application of free movement and residence rights across Member States. Additionally, the affirmation that durable relationships can provide a pathway to residence extends protective measures to relationships that may not meet formal marital requirements, reflecting the evolving dynamics of family structures in immigration law.