Ortega- Jerez v Entry Clearance Officer

This appeal has come before the court as at present constituted on the footing that it is essentially an immigration case. It seemed to all of us on reading the papers, and has now become acutely apparent, that it is much more centrally a case on matrimonial law and conflict of laws in the context of matrimonial law. It will assist nobody if a judgment is given which is open to criticism for a lack of breadth and depth in its appreciation of the ramifications, which may be considerable, of the issues we are confronted with. It is very much better that a specialist court should hear this and that we should adjourn the appeal to recommence before such a court. We have ascertained over the short adjournment that such a court, presided over by the President of the Family Division, is available with space in its list in the near future to take this appeal, and it is to that court that we propose to adjourn this hearing.

An initial point was taken by Mr Manjit Gill QC that the entire appeal, which is the Home Secretary's appeal, was academic because, shortly after the grant of permission to appeal by Sir Richard Buxton, Mr Ortega-Jerez was admitted to this country lawfully on a 27-month multiple entry visa as a spouse. We took the view that this in no way rendered the issues academic or at least sufficiently academic for it to be appropriate for the court to wash its hands of the case. Indeed, apart from the fact that the point is bound to arise in this case at the end of the 27 months, it may very well arise in another case. In consequence we rejected Mr Gill's initial submission and began to hear the appeal. That issue is now water under the bridge and to be treated as such.

In the course of the argument today it has become apparent, largely at the instigation of the court, that the effect of the Marriage Act 1949 on the consular marriage in the Ecuadorian consulate with which this case is concerned was capable of mattering. Mr Gill was taxed by Mr Sachdeva with having abandoned any point on the validity of the marriage in United Kingdom law. We, however, have taken the view that it may well be impossible to address the issues in this case without considering this, and we have not been minded to hold Mr Gill to any such concession. Mr Sachdeva for his part indicated that he might be embarrassed by the point being taken as late as this. That might have mattered had we continued to hear the appeal. It will not matter now that the case is standing over, and we would not expect an objection to be raised again, not only for the reason that I have given and the availability of time to consider the point but also because, in the best traditions of Treasury counsel, it is not done to raise such points unless they are a genuine embarrassment making it impossible to argue them properly.

On that footing we propose to stand the appeal over undetermined for determination by a differently constituted court. The order will be simply that the case is to stand over to a date to be fixed.