Hasan1980 wrote: ↑Sun Feb 11, 2018 12:51 pm
The British lady has dual nationalty she has Pakistani passport and identity card as well..
It is not nationality that is relevant in such cases (of deciding whether a marriage is valid or not), it is
domicile. Domicile is generally considered as "the place which a person regards as his / her permanent home and with which he / she has the closest ties".
In law nobody is without a domicile: every person has one (and only one) at any given time. Generally a person can only have a domicile within a territory subject to a single system of law. This means that generally a person cannot, for example, be domiciled in the UK, but can be domiciled in England and Wales, or in Scotland, or in Northern Ireland.
Domicile is relevant in assessing polygamous / potentially polygamous marriages and divorces;
If the British/Pakistani citizen was born in the UK, her domicile of origin would be the part of the UK that she was born in.
If either one of the parties to a marriage abroad was domiciled in England and Wales at the time of the marriage, and there was a lawful impediment in English law (such as already lawfully married or a civil partner), the marriage could not be recognised in England and Wales.
The recognition under the law of England or Wales, or Scotland, or Northern Ireland, of any marriage which took place outside the UK is governed by the following three questions:
- Is the type of marriage one recognised in the country in which it took place?
- Was the actual marriage properly executed so as to satisfy the requirements of the law of the country in which it took place?
- Was there anything in the law of either party’s country of domicile that restricted his / her freedom to enter the marriage?
If the answers to the above questions are respectively ‘yes’, ‘yes’ and ‘no’, only then will the marriage be treated as a marriage for the purpose of the ‘spouse’ paragraphs of the Rules.
As the British/Pakistani dual citizen is likely domiciled in one of the nations of the UK, the last question would be answered as a Yes and therefore she would not be able to sponsor her Pakistani spouse to the UK for a spouse visa.
Further reading
Guidance: Spouses
Guidance: Domicile
Alternative approaches
As
Casa has pointed out, the British/Pakistani dual citizen is of course free to move to Pakistan to live there with her Pakistani spouse and extended family.
It is unclear as to how EU law deals with polygamous marriages. It may be possible (I will leave it for others to advise further) for the British/Pakistani dual citizen to move to another EEA member-state (i.e. leave the UK) before Brexit and then for her Pakistani spouse (and even the children under the age of 21 from his first marriage) to join her in that other EEA member-state.
I faintly recall a case where
Obie had suggested that it may be possible for a married British citizen to also sponsor another person as a durable partner/being in a relationship akin to marriage. I could of course be entirely wrong as I can't locate the post/thread and it was a while ago (a year or two ago). But it may be possible for the British/Pakistani dual citizen to sponsor the Pakistani citizen spouse as a durable partner and not a spouse if she were to live with him in Pakistan for at least two years (with proof of being in a relationship akin to marriage, i.e. joint bills, bank statements, etc). Again, wait for others, especially
Obie, to advise further on this point.
I am not a lawyer or immigration advisor. My statements/comments do not constitute legal advice. E&OE. Please do not PM me for advice.
