Note for practitioners: Home Office treatment of marriages in Pakistan by Ahmadi Muslims

On 6 October 2021 the Home Office in response to Letters before Claim for purposes of the Pre-action Protocol for Judicial Review clarified its position regarding marriages contracted in Pakistan by members of the Ahmadiyya Muslim Community (AMC).

The recognition of foreign marriages in the United Kingdom for purposes of, inter alia, immigration control, depends upon the validity of the marriage according to the legal jurisdiction in which it took place (lex loci celebrationis)- see further Dicey, Morris and Collins, The Conflict of Laws (15th edn, 2018), Rule 73, 17R-001 onwards.  This is applied by the Home Office in its published guidance Family Policy: Partners, Divorce and Dissolution (v1.0, 29 May 2019), p8.

Ahmadi Muslims consider themselves to be Muslims but are defined by the Constitution of the Islamic Republic of Pakistan as being non-Muslims (Art 260(3), Constitution of the Islamic Republic of Pakistan).  Under Pakistani family law, in particular by sub-section 5(1) of the Muslim Family Laws Ordinance, 1961, ‘Every marriage solemnized under Muslim Law shall be registered in accordance with the provisions of this Ordinance.’  Such marriages are registered with the designated Pakistani institution, the Union Council.

Because Ahmadi Muslims are not regarded as Muslims by the Pakistani state, they are not permitted to register their marriages with the Union Council.  Indeed, by section 298C of the Pakistani Penal Code, an Ahmadi who ‘directly or indirectly poses himself as Muslim, or calls, or refers to, his faith as Islam, or preaches or propagates his faith, or invites others to accept his faith, by words, either spoken or written, or by visible representations, or in any manner whatsoever outrages the religious feelings of Muslims, shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine.[1]  In the case of Ahmadi Muslims, their own community institutions conduct and register marriages by its members.  Marriages conducted by the AMC in Pakistan are regarded as valid and effective by the AMC, its members and the Pakistani authorities.

A substantial and growing number of refusal decisions made by Entry Clearance Officers and Home Office officials were seen by the Ahmadiyya Muslim Association United Kingdom (AMAUK), in which the validity of marriages between Ahmadi Muslims in Pakistan were challenged because they had not registered their marriages with the Union Council.  The AMAUK sought assistance from the Joint Council for the Welfare of Immigrants (JCWI) as a result of which the position was raised with the Home Office in Letters before Claim dated 23 July 2021 and 28 September 2021.  Inter alia these pointed to the fact that the Family Division of the High Court of Justice in England and Wales has given detailed consideration to the question of whether marriages contracted in Pakistan between Ahmadi Muslims must be recognised in the United Kingdom under the lex loci principle, and has decided that it is so, because the validity of the marriage in these circumstances arises from the ceremony, not from any separate act of registration – see R v M [2011] EWHC 2132 (Fam); [2011] Family Law 1074 (Judith Parker J) and K v A [2014] EWHC 3850 (Fam); [2015] 2 FLR 461 (Roberts J).  These confirm that in Pakistan as regards relevant marriages ‘the principle is that it is the ceremony of marriage rather than the registration which creates its validity’ so that registration is in any event declaratory rather than constitutive (R v M, §30).

In a response dated 6 October 2021 for UK Visas and Immigration it was accepted that marriages by Ahmadi Muslims conducted in Pakistan cannot, under the laws of Pakistan, be registered with the Union Council, and that applications ‘have potentially been refused in error, within operational caseworking departments’.  The response stated that ‘the Family Policy Unit has reacted to this by publishing an internal Operational Policy Instruction (OPI) to clarify Ahmadiyya marriage applicants should not be refused as a result of their marriage not being recognised in Pakistan.  The OPI has now been sent to all caseworking units to clarify this… This action will stop any future applications being refused in error for this reason.

The letter states that the Home Office is not able to trace all relevant decisions and is ‘currently unable to give any commitments on the reimbursement of fees or compensation’ about which decisions will be taken on a case to case basis.

JCWI has written to seek further clarification, and in particular confirmation that the correction of Home Office practice will be applied to relevant decisions of Entry Clearance Officers and Managers.

The correspondence is below, with details of specific cases redacted. Further information may be sought from Ms Sairah Javed at JCWI on 0207 553 7462 or on sairah.javed@jcwi.org.uk.

Note prepared by

Sairah Javed, solicitor, JCWI

Eric Fripp, barrister, 36 Group (36 Public & Human Rights)

Qaseem Ahmed, barrister (12 Old Square Chambers)

Footnote

[1] See further MN and others (Ahmadis – country conditions – risk) Pakistan CG [2012] UKUT 389 (IAC). [return to text]


Amended policy note from Home Office to caseworkers

Home Office response to our last pre action letter (6 October 2021)

Final response from Home Office clarifying residual concerns (5 November 2021)

source

https://www.jcwi.org.uk/note-for-practitioners-home-office-treatment-of-marriages-in-pakistan-by-ahmadi-muslims

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