The following is based on a recent case, now subject of an appeal, we at Douglass Simon Solicitors, are dealing with. The scenario is one that is familiar to many couples. The parties met and pursued their relationship in the UK. The wife is British, the husband is Filipino and his original visa had expired and was an overstayer. He was already married in the Philippines albeit he had been separated for some time from his first wife.  The husband obtained a divorce, in the UK, against his first wife then he and his second wife set about to marry in the UK. In accordance with current requirements they gave notice to a designated registrar who in turn informed the Home Office, Marriage Unit, about the couple’s intention. The Marriage Unit considered the matter and confirmed that they do not have concerns about the parties proposed marriage so effectively provided their permission enabling the couple to marry in the UK.

After their marriage, the husband returned to the Philippines to pursue a spouse visa application to join his British wife in the UK. To our surprise the Home Office refused the husband’s application solely on the basis that according to the Home Office their marriage was not valid, because in the Home Office’s opinion the husband’s divorce from his former wife was also not valid and he was therefore not free to remarry. The Home Office reasoned that as the husband was in the UK illegally when he obtained a divorce, the divorce is not valid and therefore the subsequent marriage was also not valid. The Home Office further reasoned that as the husband was in the UK illegally the absence of legal domicile in the UK meant that the decree of divorce was not valid. The decision then goes on to state that as he was not validly divorced, his marriage in UK was also “invalid”. It is worth noting that there was a complete absence of reference to any legal doctrine in the Home Office’s decision. Let us not follow the Home Office example and refer to legal principles.

When assessing an application for a spouse visa the Home Office have a legal obligation to look at the Immigration Rules and part of this is E-ECP.2.7 which states: If the applicant and partner are married or in a civil partnership it must be a valid marriage or civil partnership, as specified.

In the case we are looking at, the Home Office avers that the marriage is invalid, firstly, because the divorce is not valid. This is wrong on various grounds; At the outset, the Home Office’s action is “ultra vires”. Ultra vires is a legal concept older than the Home Office, it means “acting or done beyond one’s legal power or authority”. The husband’s Decree Absolute was validly issued by a Family Court. A Decree absolute issued by the English Family Court is a court order, and as such the Home Office is bound by it just as anyone else in the UK. In disregarding the Decree absolute, the Home Office’s decision is plainly ultra vires; unlawful because it was made outside the remit or authority of the Home Office. Plainly, it was not in their power to unmake the decision.

Secondly, even if we are to pretend that the Home Office has some magical power to invalidate a court order (which thankfully they do not), the decision is still flawed in reasoning that the husband must be permanently and legally domiciled in the UK. The contrary was established in a House of Lords case in 2005 namely Mark v Mark [2005] UKHL 42. Baroness Hale of Richmond at § 49 of the Decision stated: “…there is no reason in principle why a person whose presence here is unlawful cannot acquire a domicile of choice in this country”. A domicile of choice is sufficient to apply for divorce in the English Court.

However, even assuming, that the Home Office’s contention is correct, that the Divorce is not valid, it does not automatically follow that the couple’s marriage in the UK is invalid. In English Family Law there is a distinction between an invalid marriage and a void marriage. The relatively recent case of Akhter v Khan [2018] EWFC 54 offers clear guidance on this issue. A marriage contracted by a person who is already married can be void, but it is not invalid. The Court, surmising previous case law clearly established that unlike an invalid marriage, a void marriage continues to be valid and to have legal effect until a Court dissolves it by way of a Decree of Nullity. That is to say, even if the husband’s divorce from his first wife could be invalidated, the Home Office is still bound to acknowledge the legal effects of the husband’s marriage to his second wife in the UK, as this marriage has not been annulled by the Court. The Home Office in this case appear to again simply proclaim, without any legal evidence, that the marriage is not valid. As if by magic subsuming the Family Courts’ power to grant Decrees of Nullity.

It is commonplace but still frustrating when an application is refused by the Home Office on an incorrect interpretation of legal doctrines. The Home Office in the above case appear to have taken the step further by magically acquiring the power to nullify a divorce and invalidate a marriage. The parties are understandably appealing the decision, but a successful appeal will unlikely make the Home Office reconsider their ever-increasing practice of making decisions without regard to legal principles. Regular readers will recall that at this point I try to provide a “moral of the story” advise, tips and hints to watch out for. Sadly, I am unable to in this case as it is entirely for the Home Office to get their law right.