NC v Entry Clearance Officer, Islamabad [2009] UKAIT 16

[2009] UKAIT 00016

Asylum and Immigration Tribunal

Date 4 March 2009

THE IMMIGRATION ACTS

Before

Senior Immigration Judge Gleeson

Between

NCAppellant

Entry Clearance Officer, IslamabadRespondent

Mrs A Javed, solicitor with Reiss Solicitors for Appellant

Mrs R Petterson, Home Office Presenting Officer for Respondent

DECISION

[1]The Muslim Family Laws Ordinance 1961 applies to Muslim divorces in Pakistan (other than the part of Kashmir which is in Pakistan) (Baig v Entry Clearance Officer, Islamabad(Pakistan)

[2002] UKIAT 04229

);

[2]There is no similar restriction on divorce in India, and Indian Muslim husbands may lawfully divorce their wives by bare talaq, as may Pakistani Muslim husbands in that part of Kashmir which is in Pakistan;

[3]Such divorces are recognised by the United Kingdom (subject to the rules on domicile and habitual residence therein set out) pursuant to s.46 (2) of the Family Law Act 1986. DETERMINATION AND REASONS

[1]This is the reconsideration, with permission granted to the appellant, of the determination of the Tribunal (Immigration Judge EMM Smith) dismissing his appeal against the decision of the Secretary of State to refuse the appellant entry clearance to join his wife, Mrs Rummana Dudhwala who is present and settled in the United Kingdom pursuant to paragraph 281 of the Immigration Rules HC 395 (as amended).

[2]The appellant is a citizen of Pakistan. He applied for entry clearance to join the sponsor in the United Kingdom. Both had previously been divorced, the appellant in the part of Kashmir which is in Pakistan and the sponsor in India, and both their former spouses subsequently remarried. Both divorces were by ‘bare talaq’ and not obtained by means of proceedings as defined in s.46 of the Family Law Act 1986:

“46 Grounds for recognition (1) The validity of an overseas divorce, annulment or legal separation obtained by means of proceedings shall be recognised if— (a) the divorce, annulment or legal separation is effective under the law of the country in which it was obtained; and (b) at the relevant date either party to the marriage— (i) was habitually resident in the country in which the divorce, annulment or legal separation was obtained; or (ii) was domiciled in that country; or (iii) was a national of that country. (2) The validity of an overseas divorce, annulment or legal separation obtained otherwise than by means of proceedings shall be recognised if— (a) the divorce, annulment or legal separation is effective under the law of the country in which it was obtained; (b) at the relevant date— (i) each party to the marriage was domiciled in that country; or (ii) either party to the marriage was domiciled in that country and the other party was domiciled in a country under whose law the divorce, annulment or legal separation is recognised as valid; and (c) neither party to the marriage was habitually resident in the United Kingdom throughout the period of one year immediately preceding that date. (3) In this section “the relevant date” means— (a) in the case of an overseas divorce, annulment or legal separation obtained by means of proceedings, the date of the commencement of the proceedings; (b) in the case of an overseas divorce, annulment or legal separation obtained otherwise than by means of proceedings, the date on which it was obtained. (4) Where in the case of an overseas annulment, the relevant date fell after the death of either party to the marriage, any reference in subsection (1) or (2) above to that date shall be construed in relation to that party as a reference to the date of death. (5) For the purpose of this section, a party to a marriage shall be treated as domiciled in a country if he was domiciled in that country either according to the law of that country in family matters or according to the law of the part of the United Kingdom in which the question of recognition arises.” (a) the divorce, annulment or legal separation is effective under the law of the country in which it was obtained; and (b) at the relevant date either party to the marriage— (i) was habitually resident in the country in which the divorce, annulment or legal separation was obtained; or (ii) was domiciled in that country; or (iii) was a national of that country. (a) the divorce, annulment or legal separation is effective under the law of the country in which it was obtained; (b) at the relevant date— (i) each party to the marriage was domiciled in that country; or (ii) either party to the marriage was domiciled in that country and the other party was domiciled in a country under whose law the divorce, annulment or legal separation is recognised as valid; and (c) neither party to the marriage was habitually resident in the United Kingdom throughout the period of one year immediately preceding that date. (a) in the case of an overseas divorce, annulment or legal separation obtained by means of proceedings, the date of the commencement of the proceedings; (b) in the case of an overseas divorce, annulment or legal separation obtained otherwise than by means of proceedings, the date on which it was obtained. (4) Where in the case of an overseas annulment, the relevant date fell after the death of either party to the marriage, any reference in subsection (1) or (2) above to that date shall be construed in relation to that party as a reference to the date of death. (5) For the purpose of this section, a party to a marriage shall be treated as domiciled in a country if he was domiciled in that country either according to the law of that country in family matters or according to the law of the part of the United Kingdom in which the question of recognition arises.”

[3]The parties married in Pakistan on 12 March 2007 and the appellant applied for entry clearance to join the sponsor, on 29 May 2007. On 3 August 2007, an Entry Clearance Officer refused to grant entry clearance because he was not satisfied that either of the parties was divorced in a manner recognised in United Kingdom law, and thus that the marriage the subject of this application was invalid (paragraph 281 (i) (a) or (b)). He considered that the appellant, a man with no qualifications or work experience, who could not speak, read or write English and had made no attempt to research jobs in the United Kingdom, had not shown that he would be able to seek employment in the United Kingdom and to live with the sponsor without recourse to public funds (paragraph 281(v)). He further considered that there was no breach of

Article 8 ECHR

in refusing entry clearance.

[4]The appellant appealed, unsuccessfully. The Immigration Judge dismissed both the marriage application (on the basis that the sponsor’s divorce was not recognised in United Kingdom law) and the Article 8 claim. The Immigration Judge recorded that the sponsor earned over £240 a week but did not consider it necessary to engage with accommodation and maintenance, having found that there was no obligation on the United Kingdom to recognise the sponsor’s divorce and that the parties were not, therefore, validly married for the purpose of paragraph 281.

Muslim Family Laws Ordinance 1961 and bare talaq

[5]Before the first Immigration Judge, the respondent accepted, and the Tribunal found, that the appellant’s divorce was recognisable in the United Kingdom because in the part of Kashmir which is in Pakistan, where the appellant’s divorce took place, compliance with the Muslim Family Laws Ordinance 1961 was not necessary.

[6]That exception to the Ordinance is explained at paragraph 13 of the Immigration Appeal Tribunal’s starred determination in Baig (the neutral citation for that determination is now B v Entry Clearance Officer, Islamabad (Pakistan)

[2002] UKIAT 04229

“The Law of Pakistan 13. In the previous paragraphs we have set out the major forms of divorce in Islamic law and their effect in Islamic law. Pakistan, like a number of other states with substantial Muslim populations, introduced during the second half of the twentieth century legislation which had the intention or social purpose of ameliorating some of the provisions of Islamic law as it applied to its citizens (see, generally, Norman Anderson, Law Reform in the Muslim World, London 1976). Pakistan enacted the Muslim Family Laws Ordinance in 1961. By Section 2, the Ordinance extends to "the whole of Pakistan and applies to all Muslim citizens of Pakistan, wherever they may be". That expression of validity needs to be read subject to two considerations. The first is that, because of its date, the Ordinance applies also in Bangladesh. The second is that it appears to be generally accepted that the provisions of the Ordinance have no effect in the part of Kashmir which is in Pakistan (sometimes called "Azad Kashmir", that is "Free Kashmir", by those who hold certain views about its proper governance). Neither of those factors, however, are germane to this appeal, for the Appellant is a citizen of Pakistan, and not from Kashmir. ”

In contrast to the situation in Baig, the present appellant is from the part of Kashmir which is in Pakistan. The Presenting Officer accepted at the original hearing that he was validly divorced and free to marry the sponsor, according to the divorce laws as they apply in Kashmir (in Pakistan). That must be right: if there is no requirement to comply with the Ordinance, then a properly evidenced bare talaq (such as that of this appellant) is sufficient to meet the provisions of s.46.

[7]The appeal failed because the evidence before the Tribunal as to the sponsor’s divorce did not satisfy the Immigration Judge that the sponsor was also divorced in a manner recognised by the United Kingdom.

[8]The question therefore is whether the bare talaq pronounced in India is recognised in United Kingdom law. Baig cannot help with that: it is a case on the Pakistani law of divorce.

(b) :

“ 46(2) (b) [That] at the relevant date— (i) each party to the marriage was domiciled in that country; or (ii) either party to the marriage was domiciled in that country and the other party was domiciled in a country under whose law the divorce, annulment or legal separation is recognised as valid; and (c) neither party to the marriage was habitually resident in the United Kingdom throughout the period of one year immediately preceding that date.”

[9]The sponsor is an Indian citizen, as was her first husband. She is now present and settled in the United Kingdom, having come to the United Kingdom after her divorce, pursuant to a right of abode derived from her father and it may be that her present status caused some confusion in the mind of the appellant’s former representatives and the Tribunal. Her present status is not relevant to the recognition of her divorce, since it is quite clear that at the date of the divorce she was domiciled in India, as was her spouse. The sponsor still has an Indian passport.

[10]The sponsor was therefore not habitually resident in the United Kingdom in the year preceding her divorce and the recognition of that divorce is mandatory, provided that it is a valid divorce in Indian law. The sponsor’s first husband has remarried, as has the appellant’s first wife.

The validity of a bare talaq in Indian family law

[11]The Tribunal had some assistance on this point, albeit not in the form of an expert report as was originally anticipated. The expert evidence was simply too expensive for the appellant to afford it. We have however received the following documents filed by the appellant’s representative:(a) an excerpt from the previous edition of Macdonald’s Immigration Law and Practice;

(b) A note entitled ‘Divorce in India’ by Seth Associates (undated but available unchanged on the website today);

(d) A BBC news report of ‘India Muslim divorce code set out’ [2 May 2005];

(e) An article from the website, ‘Women living under Muslim laws’ (http://www.wluml.org/english/index.shtml) entitled ‘Dossier 19: Muslim Women and ‘Islamic Divorce’ in England’, (undated but available unchanged on the website today at http://www.wluml.org/english/pubsfulltxt.shtml?cmd%5B87%5D=i-87-2684); and

(f) Cornell University Noel Coulson Memorial Lecture [1995] on ‘The application of Islamic law in the English courts’ by Judge David Pearl.

(a) Macdonald’s Immigration law and practice

[12]The appellant relied on the previous edition of Macdonald’s, but the up-to-date passage is atChapter 11.37-11.40. Paragraph 11.37 of that is the most relevant to these proceedings:

“11.37 The rules relating to recognition of foreign divorces and judicial separations are now to be found in sections 44 to 54 of the Family Law Act 1986 1 and are not set out comprehensively here. The recognition of Islamic talaq divorces is an issue which usually arises in the immigration context when considering whether the parties are married and a claimant can enter the UK as a spouse. Under Islamic Shari’a law, a husband is permitted to divorce a wife without recourse to court proceedings simply by declaring unequivocally his intention to repudiate the marriage in the presence of witnesses. This is a bare talaq and involves no proceedings at all. Most Islamic countries have modified religious law by requiring some additional formal registration of the talaq with a court or administrative body and/or that the parties undertake conciliation proceedings. Thus in Pakistan the Muslim Family Law Ordinance requires registration of the talaq with the Chairman of the Union District Council, and the talaq does not become effective until the elapse of a period for reconciliation.2 A failure to comply with these formalities renders the husband liable to a penalty.3 In Azad Kashmir, however, the Muslim Family Law Ordinance does not apply.4 1 In force 4 April 1988. If a divorce fails to be recognised under the provisions of the 1986 Act, s 52(4) and (5) of that Act allows 'stepping back' to the previous legislation, the Recognition of Divorce and Legal Separations Act 1971 (in force 1 January 1972), including amendments to that Act by the Domicile and Matrimonial Proceedings Act 1973 (the amendments commenced on 1 January 1974). See IDI, Ch 8, Annex B on the recognition of marriage and divorce. 2 Muslim Family Law Ordinance 1961. See discussion of Pakistani talaq requirements in Baig v Entry Clearance Officer, Islamabad [2003] INLR 117, aka B v Entry Clearance Officer, Islamabad (Pakistan) [2002] UKIAT 04229 (13 September 2002) (starred). 3 It may be that a divorce that fails to comply with these provisions is still a valid divorce recognised in Pakistan, and may therefore be recognised in the UK under the Immigration Rules where no proceedings have taken place; see below. 4 See Bi (Maqsood) (10144), and see below. The jurisdictional limits of Pakistan's legal jurisprudence were confirmed in Khan (Sakhi Daler) v The State of Pakistan PLD 1957 Lahore 813 and in the Azad Jammu and Kashmir Interim Constitution Act 1974. ”

[13]Note 4 supports the findings as to Azad Kashmir already set out. The succeeding paragraphs deal with marriages where one party is not domiciled or habitually resident in the country where a bare talaq takes place, which is not the situation here. The question of the validity of the Indian divorce in Indian law is crucial.

(b) ‘Divorce in India’ by Seth Associates

[14]Seth Associates describe themselves as an internationally networked law firm. Their note is not dated: however, it still appears in the same form on the internet today:

“DIVORCE IN INDIA The Law All major religions have their own laws which govern divorces within their own community, and separate regulations exist regarding divorce in interfaith marriages. Hindus, including Buddhists, Sikhs and Jains, are governed by the Hindu Marriage Act, 1955; Christians by the Indian Divorce Act, 1869; Parsis by the Parsi Marriage and Divorce Act, 1936; and Muslims by the Dissolution of Muslim Marriages Act, 1939, which provides the grounds on which women can obtain a divorce, and the uncodified civil law. Civil marriages and inter-community marriages and divorces are governed by the Special Marriage Act, 1956 .Other community specific legislation includes the Native Converts’ Marriage Dissolution Act, 1866 that allows a Hindu to appeal for a divorce if a spouse converts to Christianity. …Divorce under Muslim law Muslims are governed by their personal laws under which “Nikah” (i.e. marriage) is a contract and may be permanent or temporary and permits a man 4 wives if he treats all of them equally. To have a valid “Nikah” under the Muslim Law, presence of a Qazi (Priest) is not necessary. Merely a proposal in the presence and hearing of two sane males or one sane male and two sane female adults, all Muslims and acceptance of the said proposals at the same time constitute a valid Nikah under the Muslim Personal Law. A husband can divorce his wife without any reasons merely by pronouncing thrice the word “Talak”

. However for a Muslim woman to obtain divorce certain conditions are necessary.” The Law …Divorce under Muslim law (c). ‘Family Law and the Immigrant Communities’ by Prof. Stephen Cretney

[15]The excerpt from this booklet bears no date. The relevant passage is at paragraph 6.2:

“6.2 …The [Muslim Family Laws] Ordinance has not been extended to Kashmir, and although the procedures under the Ordinance appear to be followed in that territory, the English Court has following the position put to it that it is not necessary to comply with the provisions of the Ordinance in Kashmir (Chaudhary v Chaudhary [1985] FLR 476). There has been no legislation in India regarding the right of the Muslim husband to divorce his wife.” [Emphasis added]

(d). BBC News report: ‘India Muslim divorce code set out’ [2 May 2005]

[16]A BBC news report of 2 May 2005 notes that a new marriage code had been issued by the All India Muslim Personal Law Board, an authoritative body of Muslim clerics in India. Muslim women activists were disappointed by the code, which whilst it recommended mediation, laying down that divorce and marital discord was no longer a matter for the civil courts, was silent on the minimum marriage age for Muslim women and stopped short of banning the bare talaq procedure. The campaigners were seeking legislation on these matters. The report notes that under the Indian constitution, Muslims had the right to separate laws in matters such as marriage, divorce and inheritance. Hindu nationalists were unhappy about that aspect of the Constitution and were pushing for a uniform civil code for all Indian nationals. (e). ‘Dossier 19: Muslim Women and ‘Islamic Divorce’ in England’ from Women Living under Muslim Laws (www.wluml.org)

[17]This article notes that: “While a Pakistani talaq fulfils the statutory requirement of “judicial or other proceedings,” a ‘bare’ or ‘classical’ talaq (e.g., an Indian talaq) does not under Pakistani law, induced the English Courts to conclude that a Pakistani talaq constituted a divorce “obtained by means of . . . other proceedings” in the context of the Recognition of Foreign Divorces and Legal Separations Act, 1971” (f). Cornell University Noel Coulson Memorial Lecture: ‘The application of Islamic Law in the English Courts’ [1995] Judge David Pearl

[18]Judge David Pearl, a former President of the Immigration Appeal Tribunal said this in his Cornell University lecture in 1995:

“Probably the most frequent problem to occupy the courts and tribunals in this area concerns the question of the validity of the talaq in the context of Pakistan or Bangladesh law. Those two countries, although neither in India nor Pakistan Kashmir, an Ordinance of 1961 has introduced certain procedural reforms to the traditional forms of talaq, the most important being the requirement that notification of the pronouncement of the talaq must be delivered to the Chairman of a local administrative unit known as the Union Council. It is important to observe that there are now cases in Pakistan which tend to undermine the framework of the Ordinance. If this turns out to be the basis for the law in Pakistan in the future, the procedural requirements available under the Ordinance will no longer be of relevance. At the present time, however, English Courts and Tribunals do draw a distinction between the Pakistan and Bangladesh talaq which they refer to as a "procedural" talaq and the classical form of talaq (as in India) which they often call a "bare" talaq. The distinction is important because Part II of the Family Law Act 1986 draws the distinction, developed by case law, between a divorce obtained by "judicial or other proceedings" (including the procedural talaq of Pakistan and Bangladesh) and the divorce obtained "otherwise than by means of proceedings" (for example the talaq pronounced in India or in Pakistani Kashmir). So far as the former is concerned, the talaq is recognised in UK if it is effective by the law of the country in the place where it was obtained and, at the relevant date, either party was habitually resident, domiciled either in accordance with the local law or English law, or a national of that foreign country. In contrast, and for rather ill-formed public policy reasons, a "bare" talaq will only be recognised in UK if it is effective by the law of the country where it was obtained and if, at the relevant date, each party was domiciled in that country (or if only one was domiciled in that country, then the other was domiciled in another country where the bare talaq was recognised). Furthermore, there is an important and restrictive proviso to the recognition of the "bare" talaq in the UK; namely no recognition will be entertained if one of the parties has been habitually resident in the UK throughout the period of one year immediately preceding the pronouncement.”

[19]The consensus which emerges very clearly from these materials is that bare talaq is the norm for Muslim divorces in India and, provided that both parties were domiciled in India (as here) or one was domiciled in India and the other in a country which recognised bare talaq divorces, and that neither was habitually resident in the United Kingdom in the year preceding the divorce, recognition of such a divorce is mandatory in United Kingdom law.

Validity of the sponsor’s divorce

[20]The parties to the sponsor’s first marriage were both Indian nationals. They are both Muslim, followers of Sir Md Johar Mohammed Burhanuddin, who witnessed the pronunciation of the triple talaq on 20 May 2004 and prepared the document recording it which appears in the bundle. The parties to the marriage were both present in Sagwar, Rajasthan when the talaq was pronounced (although the sponsor was in a side room where she could not be seen). There were other male witnesses, two of whom signed the divorce form. The witnesses, and the sponsor, also signed a clean break form giving custody of the two children of the marriage to the husband, and making it clear that both of the children were allowed to visit their mother.

[21]On those facts, Ms Petterson accepted that the sponsor’s Indian divorce was valid both in Indian and United Kingdom law. She was therefore free to remarry the appellant. The sponsor and appellant married three years after the sponsor’s divorce and were both legally free to do so, both in Pakistani, Indian, and United Kingdom law, at that time. The Immigration Judge’s determination erred in law in that respect and that finding was material to the outcome of the appeal; her determination makes it clear that the point was determinative. Had she been satisfied that the parties were free to marry, the Immigration Judge would have proceeded to consider maintenance and accommodation under rule 281(v) and would have reached the opposite conclusion.

Maintenance and accommodation

[22]The Immigration Judge did not proceed to determine questions of accommodation and maintenance, but Ms Petterson acknowledged at the reconsideration hearing that, at the date of decision, with the sponsor’s wage of £240 weekly and free accommodation from his brother, the parties could accommodate and maintain themselves without recourse to public funds, even if the appellant was unable to find work on arrival in the United Kingdom. The relevant income support level for a married couple was then (and remains) £90.50, leaving £149.50 for rent and other expenditure should that be necessary.

[23]Further, a ‘Certificate and Undertaking’ given by the appellant’s brother stated that his property, where the sponsor then resided, was a ‘four bedroomed attached property with the usual amenities’. The property was owned and occupied by the brother, his wife, their three children, and the sponsor. A letter from the appellant’s solicitors clarified that the sponsor occupied a fully furnished room with one double bed, electrical equipment and other normal furniture. Another room was used by the appellant’s brother and his wife, the third (with two double beds) was occupied by the brother’s minor children, and the fourth bedroom was unused and reserved for guests. It contained two double beds. There was clearly ample room for the appellant to join the sponsor in his brother’s home.

[24]The appellant’s brother states that:

“In the event that [the appellant] is granted leave to enter the United Kingdom the United Kingdom for this purpose I undertake to provide my brother and sister-in-law rent free accommodation in my property for indefinite period of time.”

[25]I am satisfied that the maintenance and accommodation requirements were met at the date of decision and that there has been no change in those arrangements. It follows that the outcome of the appeal is wrong and I must substitute a decision allowing it.

Conclusion

[26]The Tribunal has decided that the Immigration Judge’s determination contains a material error of law (in her assessment of the validity of the Indian talaq divorce) and substitutes a determination allowing the appeal under paragraph 281 of the Immigration Rules. DECISION The original Tribunal made a material error of law. The following decision is substituted. The appeal is allowed. Signed Dated: 22 September 2023 Senior Immigration Judge Gleeson