Child of polygamous marriage refused entry to UK

Within the United Kingdom, the issue of polygamy is one of policy as much as it is one of law. Unlike bigamy which is a crime in England and Wales under section 57 of the Offences Against the Persons Act 1861, the Attorney General has confirmed that polygamy is not regarded as a specific offence. Whilst marriages which take place in the United Kingdom must be monogamous, polygamous marriages are recognized provided that:

“the parties [are] domiciled in a country where polygamous marriage is permitted, and must have entered into the marriage in a country which permits polygamy”.

A recent House of Commons Library Note considered a number of policy issues relating to polygamous marriages: their recognition; immigration issues; social security benefits and pension entitlement.  It noted

“[t]he Immigration Directorate Instructions (IDI) state that it is Government policy to prevent the formation of polygamous households in this country”,

Moreover, following the proposed introduction of Universal Credit system for benefits in October 2013 for new claims and the transfer of existing claimants by October 2017,

“[t]he Government has decided that the Universal Credit rules will not recognise additional partners in polygamous relationships”.

Against this background, the Upper Tribunal heard the appeal of SG (child of polygamous marriage) Nepal [2012] UKUT 265 (IAC) (9 July 2012) which concerned a child of a former Gurkha soldier who wished to join her father and his second wife in the United Kingdom whilst her natural mother, the father’s third wife remained in Nepal.

Summary

The facts of the case were complex:

  • The claimant, SG, was born in Nepal in 2003. The first marriage of her father, SB Gurung, was terminated by divorce and he subsequently married two others: S Gurung, his second wife with whom he had a son and his third wife P Gurung, who was the mother of SG.
  • The second marriage was still subsisting and at the time of the determination of the appeal the father, both wives, the claimant and her step-sibling were all residing together in the father’s house in Nepal.
  • The father served in the Brigade of Gurkhas from 1969 to 1985. He did not have an opportunity to settle in the United Kingdom on completion of his military service but, following subsequent changes in policy, immigration rules provide for a right of settlement for Gurkhas decommissioned after 1997 and other policies for those who were decommissioned before then.
  • Although in 2009 the father was granted clearance to come to the UK, the claimant’s application was refused on 29 October 2010. Whilst a subsequent appeal by the claimant was initially held to be successful, the Entry Clearance Officer in turn appealed to the Upper Tribunal against this decision.
  • On the 23 October, 2011 a differently constituted panel of the Upper Tribunal concluded that there was an error of law and a further hearing was necessary.  It concluded that this should examine whether Article 8 (private and family life) required the appeal to be allowed: having regard in particular to the best interests of the child; the impact on Article 8 decision-making of section 55 of the Borders, Citizenship and Immigration Act 2009; and the decision of the Supreme Court in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 (1 February 2011).

The Upper Tribunal hearing was held on 3 July 2012 and considered four issues:

  • The question of the sole responsibility of SG;
  • The undesirability of her exclusion;
  • The UK policies relating to Ghurkhas; and
  • The Article 8 claim to admission: discrimination; balance of the Article 8 assessment.

It refused the appeal on the grounds that:

  • Educational advantages and economic betterment, which might be enjoyed by a child if admitted to the United Kingdom, are not compelling considerations to make that child’s exclusion undesirable, where the biological mother has cared for the child, and will continue to do so, in the country of origin.
  • There is a legitimate aim in excluding from admission to the United Kingdom a woman who is a party to an actually polygamous marriage and that aim justifies the indirect effect of that exclusion on the child of such a marriage, in that it will be more difficult for the child to satisfy the immigration rules relating to sole responsibility and circumstances making exclusion of the child undesirable.
  • The policies adopted by the Secretary of State to facilitate admission of Ghurkha former soldiers and their dependants were not intended to give more favourable treatment to children born of an actually polygamous marriage.
  • Paragraph 296 of HC 395, [Immigration Rules (HC 395) made under section 3(2) of the Immigration Act 1971], as presently applied, does not prevent the admission of such children and would probably be contrary to Articles 8 and 14 ECHR if it did.
  • In these circumstances it is not unreasonable to expect a sponsor to choose between coming to the United Kingdom with part of his family or remaining in Nepal with all its members, where there has been no previous residence and establishing of family life in the United Kingdom.
  • The wishes of the child and both parents are relevant to ascertaining what her best interests are in the context of an application for admission to the United Kingdom but are not decisive of the proportionality balance.
  • The proportionality balance in such cases is a fact-sensitive one rather than determined by the rules.

Comment

In its analysis of the case, UK Immigration Law blog notes that the Upper Tribunal did not deny SG admission for being the child of a polygamous marriage, but because: she was not being joined by both her parents; and she did not meet the general criteria for joining a sole parent [para. 39]. In the circumstances of the case, however, this was a consequence of the exclusion of SG’s natural mother, P Gurung, which was the result of, and justified as, an expression of UK public policy [para.29]. This is acknowledged in the Upper Tribunal’s consideration of the balance of the Article 8 assessment, which states, [para. 47],

“to the extent that the exclusion of the child is the indirect consequence of denying admission to the mother as a party to an actually polygamous marriage, the modest contribution to the discouragement of such marriages in Nepal [where polygamous marriages are illegal, although the practice is ‘quite widespread’, para.41] or elsewhere is a legitimate aim in pursuit of morals and the rights of others particularly the pursuit of gender equality” [emphasis added].

Furthermore, following the decision in T (entry clearance – s.55 BCIA 2009) Jamaica [2011] UKUT 483 (IAC) (16 December 2011) [para.53],

“the statutory duty to have regard to guidance to promote the child’s welfare does not apply to children who are located outside the United Kingdom, but the exclusion [as] undesirable rule, the principles of the Article 8 case law and the direction in the Secretary of State’s guidance that the spirit should be applied in entry clearance cases are all relevant”.

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