Inconvenient marriages, or what happens when ethnic minorities marry trans-jurisdictionally

Prakash Shah

doi:10.18352/ulr.122

Abstract

This article presents evidence of a trend in the practice of British immigration control of denying recognition to marriages which take place trans-jurisdictionally across national and continental boundaries and across different state jurisdictions. The article partly draws on evidence gleaned from the writer’s own experience of being instructed as an expert witness to provide opinions of the validity of such marriages, and partly on evidence from reported cases at different levels of the judicial system. The evidence demonstrates that decision making in this area, whether by officials or judges, often takes place in arbitrary ways, arguably to fulfil wider aims of controlling the immigration of certain population groups whose presence in the UK and Europe is increasingly seen as undesirable. However, and quite apart from the immigration control concerns underlying such actions, the field throws up evidence of the kinds of legal insecurity faced by those whose marriages are solemnized under non-Western legal traditions and calls into question respect for those traditions when they come into contact with Western officialdom.

Highlights

IntroductionHow do British officials and courts cope with the fact that marriages are taking place transjurisdictionally among members of Britain’s minority ethnic communities? In particular, how do immigration officials and judges judge the validity of acts of marriage solemnisation which take place on trans-jurisdictional terms? How do we explain their responses? Are the types of response raised here merely unusual occurrences or are they reflective of a more generalised pattern of official behaviour when members of minority communities seek to rely on more than one legal order to arrange their lives and affairs? How much do we know about minority trans-jurisdictional practices and the responses of official actors? What reactions do official responses provoke when they judge minority legal acts? These are some of the questions either addressed directly, or at least raised for discussion, in this article
From the evidence presented in this article, it seems that British officials and courts working in the immigration context do not cope well with the fact that marriages are taking place trans-jurisdictionally among members of Britain’s minority ethnic communities
This is especially so in those cases where the features of the marriages in question tend to be further removed from European norms

Summary

Introduction

How do British officials and courts cope with the fact that marriages are taking place transjurisdictionally among members of Britain’s minority ethnic communities? In particular, how do immigration officials and judges judge the validity of acts of marriage solemnisation which take place on trans-jurisdictional terms? How do we explain their responses? Are the types of response raised here merely unusual occurrences or are they reflective of a more generalised pattern of official behaviour when members of minority communities seek to rely on more than one legal order to arrange their lives and affairs? How much do we know about minority trans-jurisdictional practices and the responses of official actors? What reactions do official responses provoke when they judge minority legal acts? These are some of the questions either addressed directly, or at least raised for discussion, in this article. The judgement relies, on the often repeated freedom of the state authorities to regulate the entry and residence of spouses, there being no obligation on a State Party to respect their choice of residence.[24] This example indicates the marginal relevance of the ECHR in restraining states’ ability to control spouse entry and residence, constituting one of the failures of the European human rights protection system.[25] in the present context, the decision to decide on the validity of a marriage seems to be proofed against human rights norms, the interpretation adopted by the UK’s Immigration and Asylum Tribunal being that the actual existence of family life in the form of cohabitation must be demonstrated.[26] Applicants relying on Articles 8 and 14 ECHR have not met with success in cases of non-recognition by the UK immigration authorities of Hindu law adoptions taking place in India.[27]

The cases for discussion

Conclusion