Case No: C5/2011/0829
Neutral Citation Number: [2013] EWCA Civ 220
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
[APPEAL No: OA/56881/2009]

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday 21st February 2013

Before:

LORD JUSTICE MUMMERY
LORD JUSTICE RICHARDS
and
LORD JUSTICE LEVESON
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Between:

	MB (Bangladesh) by her MOTHER and LITIGATION FRIEND, JB	
Appellant	
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Secretary of State for the 
Home Department 	

Respondent	

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Ms Leanne Targett‑Parker (instructed by Messrs Hafiq and Haque) appeared on behalf of the Appellant.

Mr Neil Sheldon (instructed by the Treasury Solicitors) appeared on behalf of the Respondent.

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Judgment
Lord Justice Richards:

1.	The appellant is a young girl whose date of birth is given as 28 May 2000 so she is therefore now aged 12.  She has lived in Bangladesh all her life.  Her mother is the third wife of a Mr U, a British citizen who is now deceased. 

2.	In 2003 the appellant and her three older sisters applied for certificates of entitlement to a right of abode in the United Kingdom as the daughters of Mr U.  The three sisters were successful and came to the United Kingdom but the appellant's application did not succeed.  In April 2006 the mother left the appellant in Bangladesh and came to the United Kingdom on a false passport to join the other three girls.

3.	In July 2009 the appellant made a fresh application to the entry clearance officer in Dhaka for a certificate of entitlement as the daughter of Mr U.   The application was refused on grounds of failure to comply with the requirements of the Immigration (Certificate of Entitlement to Right of Abode in the United Kingdom) Regulations 2006 ("the 2006 Regulations"), in particular as regards the production of the requisite supporting documents.  An appeal to the First-tier Tribunal was dismissed by Immigration Judge Geraint Jones QC in June 2010 and a further appeal to the Upper Tribunal was dismissed by Senior Immigration Judge Jordan in January 2011.  Permission to appeal to this court was subsequently granted by Longmore LJ.

4.	The appeal came on for hearing on 20 June 2012 before a different constitution of this court but on that occasion the court adjourned the case so as to enable the Secretary of State to consider fresh evidence which had been produced by the appellant's representatives during the hearing.  The court also drew attention to an apparent flaw in the Tribunal's decisions which had not been identified by the parties.  Since that date yet further evidence has come to light as a result of a trawl of documents by consular officials, a matter to which I will return.  On consideration of those various matters the Secretary of State now accepts that the appeal should be allowed but submits that the case should be remitted to the Upper Tribunal for redetermination in the light of all the evidence now available.  A draft consent order to that effect was submitted to the appellant's representatives but was rejected.  The position adopted on behalf of the appellant is that remittal is not required; this court should allow the appeal and hold that the appellant's claim to a certificate of entitlement has been made good.

5.	With that introduction I turn to the detail.  By Regulation 6 of the 2006 Regulations one of the conditions for the issue of a certificate of entitlement is that the applicant has a right of abode in the United Kingdom under Section 2(1) of the Immigration Act 1971, which provides inter alia that a person is to have a right of abode in the United Kingdom if he or she is a British citizen.

6.	The appellant's claim to British citizenship rests on Section 2(1) of the British Nationality Act 1981, which provides under the heading ‘Acquisition by descent’: 

"A person outside the United Kingdom … after commencement shall be a British citizen if at the time of the birth his father or mother—

(a) is a British citizen otherwise than by descent …"

7.	The claim in this case is based as I have indicated on descent from Mr U as the father.  There is no suggestion that the appellant's mother is a British citizen. The definition of father for these purposes is to be found in Section 50(9) of the 1981 Act in the form in which it existed prior to an amendment introduced by Section 9 of the Nationality Immigration and Asylum Act 2002.  The amended provisions apply only to children born on or after 1 July 2006.  In its pre-amendment form the section read, under the heading ‘Legitimacy of child’: 

"For the purposes of this Act-
(a) the relationship of mother and child shall be taken to exist between a woman and any child (legitimate or illegitimate) born to her; but
(b) subject to section 47, the relationship of father and child shall be taken to exist only between a man and any legitimate child born to him;
and the expressions "mother", "father", "parent", "child"
and "descended " shall be construed accordingly."

Section 47 is not material to the present issue.  

8.	It follows that in order to have a right of abode as a British citizen pursuant to Section 2 of the 1981 Act the appellant must establish that she is a legitimate child of Mr U.  

9.	That she is the child of Mr U is sufficiently established by DNA evidence that was produced before the Upper Tribunal (though it had not been available at the time of the hearing before the First-tier Tribunal).  There is however a live question as to whether she is his legitimate child.  I have mentioned that the appellant's mother was the third wife of Mr U.  It is not in dispute that their marriage was a polygamous marriage; the second wife had died by the time of the marriage but the first wife was still alive.  The marriage between the appellant's mother and Mr U was entered into in Bangladesh.  According to the marriage certificate relied on it took place in 1992.

10.	A polygamous marriage entered into outside the United Kingdom is void under English law if either of the parties to the marriage was domiciled in England and Wales at the time of the marriage.  That is the effect of Section 11 of the Matrimonial Causes Act 1973, in particular at paragraph (d) which I need not set out.  

11.	In the First-tier Tribunal the Immigration Judge did not accept even the reliability of the marriage certificate, because of discrepancies between it and other documents.  In the Upper Tribunal the Senior Immigration Judge found that there had been no material error of law by the Immigration Judge but did so on the basis of different reasoning directed in substance to the terms of Section 11 of the Matrimonial Causes Act.  The Senior Immigration Judge held that the capacity of Mr U to enter into a polygamous marriage valid in English law was a matter to be affirmatively proved by the appellant yet the evidence did not address the issue at all.  Mr U had been a British citizen for some 22 years before the marriage.  It was true that he had not lost his Bangladeshi nationality by acquiring British citizenship and that he had been in Bangladesh at the time of his death, but in the view of the Senior Immigration Judge those matters were not sufficient to sustain an inference that at the time of the marriage Mr U was domiciled in Bangladesh rather than in England and Wales.  The focus was on the domicile of Mr U because it was accepted that the appellant's mother had been domiciled at the material time in Bangladesh. 

12.	One of the matters advanced before us on behalf of the appellant is a submission that Mr U was in fact domiciled in Bangladesh at the time of the marriage, so that the polygamous marriage was a valid marriage pursuant to Section 11.  In my judgment, however, there is no basis on which the Senior Immigration Judge could be said to have erred in law in declining to find that Bangladesh was Mr U's domicile; and in short I am satisfied that it was open to the tribunal judges to find that the marriage fell within Section 11(d) of the Matrimonial Causes Act and was therefore void (or at the very least to find that it had not been proved that the marriage was valid).

13.	A child of a void marriage may nonetheless be regarded as legitimate if one or both of the parents reasonably believed that the marriage was valid.  That is the effect of Section 1 of the Legitimacy  Act 1976 which reads as follows: 

"1. Legitimacy of children of certain void marriages

(1)	The child of a void marriage, whenever born, shall, subject to subsection (2) below and Schedule 1 to this Act, be treated as the legitimate child of his parents if at the time of the insemination resulting in the birth or, where there was no such insemination, the child’s conception (or at the time of the  celebration of the marriage if later) both or either of the parties reasonably  believed that the marriage was valid. 
(2)	This section only applies where the father of the child was domiciled in England and Wales at the time of the birth or, if he died before the birth, was so domiciled immediately before his death. 
(3)	It is hereby declared for the avoidance of doubt that subsection (1) above applies notwithstanding that the belief that the marriage was valid was due to a mistake as to law. 
(4)	In relation to a child born after the coming into force of section 28 of the Family Law Reform Act 1987, it shall be presumed for the purposes of subsection (1) above, unless the contrary is shown, that one of the parties to the void marriage reasonably believed at the time of the insemination resulting in the birth or, where there was no such insemination, the child’s conception (or at the time of the celebration of the marriage if later) that the marriage was valid."

14.	The effect of that section was not considered by the First-tier Tribunal or the Upper Tribunal.  At the first hearing of the appeal in this court, prior to the adjournment, attention was drawn in particular to the failure of the tribunal judges to give any consideration to the presumption in Section 1(4).  The view was expressed that the failure infected the decision-making process in the case as a whole.  It appears that the provision was simply not brought to the attention of either tribunal.  The Secretary of State now accepts, and in my judgment rightly accepts, that there has been no proper assessment by the tribunals of the appellant's legitimacy, applying the statutory presumption and considering all the evidence to determine whether the presumption has been rebutted.  The Secretary of State's position, as I have said, is that the case must in consequence be remitted to enable that exercise to be carried out.

15.	The evidence relevant to that exercise includes evidence which was before the First-tier Tribunal that the appellant mother used false documents to secure her own entry into the United Kingdom:  she told the Immigration Judge that she knew she would not have been granted a visa if she applied in her own name. Part of the Secretary of State's case is that the mother would not have taken that course if she believed she was validly married to a British citizen.  The counter to that, in the written submissions for the appellant, is that it was only after the appellant had been refused a certificate of entitlement in 2003 and therefore long after the date of insemination or the conception that the mother might have come to believe that the marriage was not valid under English law.

16.	The evidence produced by the appellant's representatives at the last hearing before this court is also relevant.  It consists of the original passports of the appellant's three older sisters, all of which contain their certificates of entitlement to a right of abode in the United Kingdom.  In relation to those sisters, therefore, their legitimacy appears to have been accepted by the British authorities; and there is DNA evidence that strongly indicates that the appellant is a full sister of at least one of those whose passports were produced and whose legitimacy appears to have been accepted.  It is said on behalf of the appellant that the passports produced at the hearing were simply originals of copies already before the tribunal and simply confirmed what was already in the material before the tribunal and that they did not constitute fresh evidence.  That may or may not be correct; it does not matter.  

17.	What does matter is what we are told was discovered in the course of investigating why the appellant appeared to have been treated differently from the sisters.  The information provided to this court is that the consular section of the British High Commission in Dhaka conducted a trawl of its archive documents, in the course of which there was discovered a copy of a letter dated 29 September 1998, that is, over a year and a half before the date of the appellant's birth and apparently directed to Mr U and the appellant's mother, whose names are set out in the letter just below the date and reference number.  The letter referred to an application for passport facilities in respect of the appellant's three sisters and informed the parents that their marriage appeared not to be valid in English law.  It continued: 

"Section 1 of the Legitimacy Act 1976, however, provides that the child of such a marriage shall be treated as legitimate if the father was domiciled in England and Wales at the time of the birth and if, at the time of conception either of the parents reasonably believed that the marriage was valid. 

Therefore should [the three sisters] prove to be related as claimed they would be eligible to hold British passports on the grounds that either you, your wife or both of you reasonably believed that your marriage was valid in English law at the relevant time. 

Such grounds would not, of course, exist in respect of further children born or conceived to you after receipt of this letter, because you are now aware of our view that the marriage ceremony which you went through is invalid."

18.	That letter is plainly relevant to whether, for the purposes of determining the appellant’s status, the Secretary of State can rebut the presumption that the parties to the marriage reasonably believed at the time of insemination or conception that the marriage was valid.  It is not contended on behalf of the Secretary of State that the letter is conclusive in her favour; it is acknowledged that much may depend on the evidence of the mother as to the mother's awareness of its terms.  But it is said that the evaluation of that and other evidence is a matter for the Upper Tribunal on a remittal.  

19.	The position adopted by the appellant's solicitors in very recent correspondence and by her counsel today is that the letter of 29 September 1998 has been disclosed extremely late.  The mother denies having received the letter at the time or having any knowledge of its existence until its recent disclosure.  Further, the genuineness of the letter is not accepted:  it is observed that the letter is not on headed notepaper, it does not contain any address for the recipients and is not signed (features which, one may observe, might be expected to have applied to a file copy of the original letter sent); and it is further said that the Secretary of State has adduced no evidence that the letter was served.  The appellant opposes the Secretary of State's reliance on the letter, saying that it was not before the tribunal and that this court should not receive it or take it into account.

20.	I need not say anything further about the specific criticisms made in relation to the letter.  They simply serve in my view to highlight the existence of a clear evidential dispute which cannot be resolved by this court and which cries out for the case to be remitted to the Upper Tribunal.  The effect of Section 1 of the Legitimacy Act has not previously been considered by the Upper Tribunal or indeed by the First-tier Tribunal.  That was an error of law on the part of the tribunals.  The issue calls for consideration if the claim to a certificate of entitlement is to be properly assessed.  There can be a rehearing for that purpose and at that rehearing all admissible evidence can be adduced.  It will be for the Upper Tribunal to rule on any contention that the letter of 29 September 1998 is inadmissible and to determine its weight and effect if it is admitted into evidence.  

21.	I reject the contention that the only reasonable conclusion that the tribunal could reach on the available evidence is that the mother did reasonably believe at the material time that the marriage was valid.  

22.	It is necessary to consider briefly whether any of the other points canvassed in the case have any impact on that otherwise obvious disposal of the case.  

23.	The original decision refusing a certificate of entitlement was based on a failure to provide a complete set of supporting documents required by regulation 4 of and paragraph 7 of Schedule 2 of the 2006 Regulations, but it seems to me that those points effectively have fallen away as a result of the subsequent evidence establishing that the appellant is the child of Mr U.  Mr Sheldon today has made clear on behalf of the Secretary of State that the Secretary of State would not contend that, if the appellant succeeded in establishing that she is the legitimate child of Mr U, she should nevertheless be denied a certificate of entitlement by reason of some inadequacy in the supporting documents.

24.	There was previously a contention on behalf of the appellant that Article 8 somehow entered into the picture in this case but Ms Targett‑Parker has rightly accepted that there is no Article 8 issue that she can properly advance.  

25.	Accordingly the case does now come down to the issue of legitimacy, and in the light of what I have said about that issue I would allow the appeal and remit the case to the Upper Tribunal for redetermination on all the evidence relating to that issue.

Lord Justice Leveson: 

26.	I agree.

Lord Justice Mummery: 

27.	I agree.

Order: Appeal allowed