Proxy Marriages & the burden of proof

A proxy marriage is a marriage where someone stands in for the other party. That is, either the bride or the groom is not physically present for the wedding. During the solemnization of the marriage, based upon a power of attorney, an agent acts on behalf of one of the parties. The law of the United Kingdom does not allow for marriages to be contracted in this country either: with one of the parties represented by an appointed proxy; or where the proceedings are conducted over the telephone. However, the laws of certain other countries can recognise either form of marriage as valid where they are contracted in that country. Where the local law does permit marriage either by proxy or telephone and the proceedings of any particular marriage appear to satisfy the requirements of that law then, in accordance with the normal rules on recognition of foreign marriages the marriage should be treated as valid for all purposes of United Kingdom law.

In the context of UK Immigration law the issue arises clearly in respect of applications for entry clearance to the UK and whether the marriage is considered valid and legally recognised in the country in which it took place.

As covered by various media reports, John Vine, former Chief Inspector of Borders warned of the increasing abuse of overseas proxy marriages in his 2014 report claiming that the process was being abused in a way to circumvent UK Immigration rules. It was claimed that 80 % of the 29 sample proxy marriage applications were proved to be invalid marriages. It was also claimed that the Home Office are working on a new intelligence system aimed at targeting such invalid marriages most often hailing from Nigeria , Brazil and Ghana.

The Tribunal have clarified the issue in a number of judgements throughout the course of 2014. The law is as settled by Kareem ( Proxy marriages - EU Law ) Nigeria [2014] UKUT 24. A person who is a spouse of an EEA national who is a qualified person in the UK can derive rights of free movement and residence if proof of the martial relationship is provided. The production of a marriage certificate issued by a competent authority will usually suffice but a document which calls itself a marriage certificate will not raise a presumption of the marriage it purports to record unless it has been so issued by an authority with the legal power to issue it. The tribunal recognised that where there was no marriage certificate, other evidence could suffice to attest to the marriage but the same conclusion was nevertheless required in so far that the evidence must point to the marriage being undertaken / recognised according to national law of the EEA country of the qualified persons nationality.

This was enforced in TA & Others ( Kareem explained ) Ghana [2014] UKUT 00316 : where the tribunal restated the position of Kareem indicating : Following the decision of Kareem ( proxy marriages - EU LAW ) 2014 UKUT 24, the determination of whether there is a marital relationship for the purposes of he Immigration EEA Regulations 2006, must always be examined in accordance with the laws of the members state from which the Union citizen derives nationality.

The burden of proof rests with the applicant to show the validity of the marriage and as concluded in Kareem,  independent and reliable evidence about recognition of the marriage must be provided, mere assertions as to the law of the countries will be insufficient to discharge the burden of proof.