THE SOCIAL SECURITY COMMISSIONERS

Commissioner’s Case No:  CG/1822/1998

SOCIAL SECURITY ADMINISTRATION ACT 1992

SOCIAL SECURITY ACT 1998

APPEAL FROM THE APPEAL TRIBUNAL UPON A QUESTION OF LAW

DEPUTY COMMISSIONER:  A J GAMBLE

DECISION OF SOCIAL SECURITY COMMISSIONER

1.	My decision is that the decision of the overseas social security appeal tribunal of 17 November 1997 is erroneous in law.  I set it aside and remit the case for redetermination, in accordance with the directions contained in this decision, by an appeal tribunal consisting of a legally qualified panel member sitting alone under regulation 36(1) of the Decisions and Appeals Regulations 1999.   That legally qualified panel member should not be the same person who sat as the chairman of the social security appeal tribunal of 17 November 1997.

Background

2.	Monir Ali died in Bangladesh on 11 June 1994.  At that date he was in receipt of a United Kingdom retirement pension.  The claimant resides in Bangladesh.  On 4 November 1994 she wrote to the Overseas Branch of the Department of Social Security claiming to be Monir Ali’s widow.  That letter has been accepted as a claim for widow’s benefit from 12 June 1994, based on Mr Ali’s National Insurance contributions.  Contributions questions are not in dispute in the present case.  The matter at issue is whether the claimant is Mr Ali’s “widow” for the purposes of section 38 of the Social Security Contributions and Benefits Act 1992.  To establish this, she must first of all show that she was lawfully married to Mr Ali at the date of his death.  Secondly, as it is not in dispute that the law of Bangladesh permits polygamy, she must also show that as at the date of Mr Ali’s death, her marriage to him, although potentially polygamous, was actually monogamous.  That is the effect of regulation 2 read along with regulation 1(2) of the Social Security and Family Allowances (Polygamous Marriages) Regulations 1975.  Regulation 2 of those regulations reads as follows:

“2. – (1)  Subject to the following provisions of these regulations, a polygamous marriage shall, for the purpose of the Social Security Act and the Family Allowances Act and any enactment construed as one with those Acts, be treated as having the same consequences as a monogamous marriage for any day, but only for any day, throughout which the polygamous marriage is in fact monogamous.

(2)	In this and the next following regulation – 

(a)	a polygamous marriage is referred to as being in fact monogamous when neither party to it has any spouse additional to the other; and
(b)	the day on which a polygamous marriage is contracted, or on which it terminates for any reason, shall be treated as a day throughout which that marriage was in fact monogamous if at all times on that day after it was contracted, or as the case may be, before it terminated, it was in fact monogamous.”

Regulation 1(2) of those regulations provides that the term “in fact monogamous” is to be construed in accordance with regulation 2(2) of those regulations – reproduced by me above.  Thus the claimant has to show that at Mr Ali’s death he had no other lawful spouse.  

3.	The requirements arising from the legislation cited in paragraph 2 above are not academic issues in this case.  This is because it is not in dispute that Mr Ali had at various times three wives.  The claimant asserts that she is Mr Ali’s third wife, having gone through a ceremony of marriage with him in Bangladesh on 6 July 1981.  It appears that Mr Ali first married someone whom I shall designate as “A” at some date prior to 1946.  (Apparently, he first came to the United Kingdom in 1946).  Thereafter he married a second wife, whom I shall designate as “B”, in 1955.  That marriage was also celebrated in Bangladesh.  It is not in dispute that “B” is now deceased (although I cannot ascertain the alleged date of her death from the file before me).  The claimant asserts that Mr Ali divorced “A” on 20 April 1991.  On the basis, therefore, of “B” apparently predeceasing her husband and “A” being divorced by him in 1991, the claimant’s case is that she satisfies the legal requirements (laid out in paragraph 2 above) for success in her claim to widow’s benefit i.e. that at the date of Mr Ali’s decease she was lawfully married to him and was the only person who at that date was lawfully married to him, given that he had no other lawful spouse by then.  

4.	The adjudication officer took the view that the claimant had not established her claim.  He held that the claimant’s marriage to Mr Ali was not in fact monogamous at the date of his death.  See document 59.  The claimant appealed against that decision to the tribunal.  See document 61.  Given that she resides in Bangladesh, it is not surprising that she did not attend the oral hearing in Newcastle.  However, it appears from the record of proceedings reproduced at document 65 that a presenting officer was present at that hearing.  The tribunal upheld the decision under appeal.  The claimant now appeals with leave of a Commissioner.  Her appeal is supported by the Secretary of State who has assumed the functions of the adjudication officer under section 1 of the Social Security Act 1998. 

Tribunal’s statement of facts and reasons

5.	The full statement of facts and reasons prepared by the tribunal is reproduced as document 65b.  It reads as follows:-

“In the absence of the claimant or any further evidence we have carefully perused the scheduled documents but find no reason to disturb the Adjudication Officer’s decision which is set out in full, with reasons, together with an explanation of the relevant statutory provisions, in the Adjudication Officer’s submission.

We agree and confirm that decision.”

Given the complexity of the issues in this case (which will become very apparent from this decision) the above statement of facts and reasons is hopelessly inadequate.  It thus represents a clear breach of regulation 23(3A) of the Adjudication Regulations 1995 (in force at the relevant time).  A very closely parallel form of words was used by the tribunal whose decision was set aside by Commissioner Jacobs in CP/1977/99 (a case similar to this one).  I endorse his comments at paragraph 10 of that decision that forms of decisions by tribunals cast in the above terms are “in need of supersession.”  I also agree with his reasons for that conclusion laid out in detail in paragraphs 8.1 and 8.2 of the above decision. These, so far as relevant to the present case, read as follows:-

“First, the tribunal deprives the claimant of a short statement of the reasons for decision.  This may be the only opportunity a claimant has of receiving a statement of the law and its application to her case free from the technicality and detail contained in an Adjudication Officer’s submission to a tribunal.  ….. Second, the wording is open to the interpretation that the tribunal began with an assumption that the Adjudication Officer’s decision was correct and looked for reasons to show the contrary.  That is not the correct way to take an inquisitorial approach to a case. …. This form of words can also create the impression that the adjudication officer’s decision was confirmed by a process more akin to an administrative rather than a judicial proceeding.”

The decision of the tribunal thus necessarily falls to be set aside.

The issues at the rehearing

6.	The task facing the legally qualified panel member rehearing this case will not be without difficulty.  It would be very appropriate if the rehearing were to be entrusted by The Appeals Service to a District Chairman or at least to an experienced part-time legally qualified panel member.  I should add that the aim of the directions contained in the following paragraphs is to make the task of the new tribunal easier, not more onerous.

7.	I have already explained in paragraphs 2 and 3 above what the basic question at issue is, i.e. the claimant has to show that at Mr Ali’s death she was his only lawful spouse.  This will require consideration of four issues, in turn, viz. (1) the date of the decease of “B”, (2) proof of the claimant’s marriage to Mr Ali in 1981, (3) the validity of that marriage, and (4) the validity of the divorce of “A” in 1991.

The decease of “B”

8.	As narrated in paragraph 3 above, it appears that Mr Ali married “B” in 1955 in Bangladesh.  It does not seem to be in dispute that “B” is now deceased.  However, there is evidence on file that she was alive in July 1987.   See paragraph 14 of document 57.  On the other hand, there is also evidence on file that she did not attend an appointment at the British High Commission in Dhaka in 1988.  See document 30.  I direct that the claimant and those acting for her should provide, if they so choose, any further information which they may have as to the date of death of “B” to the new tribunal.   Although it is asserted on file that “B” is now deceased and is indeed buried in Bangladesh (see documents 32 and 33), there is no definite evidence that she predeceased Mr Ali who, as explained in paragraph 2 above, died on 11 June 1994.  The legally qualified panel member will have to decide, on balance of probabilities, on all the information before him including any further information which might be supplied in response to my direction in this paragraph, whether “B” did indeed predecease Mr Ali.  If he is not so satisfied, then the claimant’s case will necessarily fail as, in these circumstances, she will not have established that she was the sole lawful spouse of Mr Ali on 11 June 1994.  It is of importance in this connection to note that, so far as I can ascertain, the Secretary of State has never explicitly conceded that “B” predeceased Mr Ali.  This whole issue is not addressed in detail either in his written submissions to the social security appeal tribunal or in those to the Commissioner.   The legally qualified panel member should deal with this aspect of the case in the manner directed by me in this paragraph.  

Proof of the claimant’s marriage to Mr Ali

9.	The issue of whether the claimant’s marriage to Mr Ali has been established and if so, whether it was valid will arise if the legally qualified panel member decides the question discussed in paragraph 8 above in the claimant’s favour.  So far as the first of the above points is concerned, the legally qualified panel member should determine on the basis of all the evidence before him whether or not, on balance of probabilities, the claimant and Mr Ali did go through a marriage ceremony on 8  July 1981.  He should weigh, on the one hand, the statements provided by the claimant in which she asserts her marriage to Mr Ali along with the marriage certificate in Bengali produced by her (documents 36a and 36b) and the accompanying English translation (documents 38 and 39) and, on the other hand, the absence of any reference to the claimant or any third wife whatever in the sworn declaration made by Mr Ali in England on 29 July 1987.  That sworn declaration is reproduced as documents 55 to 57.  It was apparently made for immigration purposes and was obtained by the adjudication officer from a Home Office file.  

Validity of the claimant’s marriage to Mr Ali

10.	If the legally qualified panel member is satisfied, as a matter of fact, that the marriage between the claimant and Mr Ali has been established, he must then go on to consider its validity.  This is because a question has been raised by the adjudication officer as to whether a third marriage in Bangladesh by Mr Ali in the circumstances which existed in his life at the relevant time was valid.  In particular, it has been suggested that such a marriage would not be valid without the recorded consent of his two prior wives who were then alive.  See document 29, paragraph 13 of document 1e, and also paragraph 10 of document 73.    I am relieved to be able to hold that I do not need to decide whether this question should be classified, for the purpose of the rules of English international private law, as being one of formalities of marriage or of capacity to marry.  Classification as the former would require a reference to the law of Bangladesh as the law of the place of celebration of marriage.  Classification as the latter would require a reference to the law of the domicile of each of the parties to the marriage.  Given that the claimant has always been domiciled in Bangladesh and also that it has now been conceded by the Secretary of State that Mr Ali never lost his domicile of origin in that territory (see paragraph 9 of document 73) it is clear that Bangladeshi law will apply to the question of the validity of the marriage between the claimant and Mr Ali however the question is classified. The content of the law of Bangladesh is a question of fact in proceedings before the appeal tribunals and the Commissioners like all issues of overseas law.  Unlike the situation in respect of the effectiveness of a divorce within Bangladesh, discussed by me in paragraph 15 below, there are, so far as I am aware, no Commissioner’s cases in which the issue discussed in this paragraph has been commented upon.  In these circumstances detailed information as to the relevant provisions of Bangladeshi law will be required for the legally qualified panel member.  I do not consider that the brief statements made by the pensions liaison officer on document 29 are sufficient to determine this question.  Thus more evidence on Bangladeshi law will be needed.  I have carefully considered how that evidence could be obtained.  I note that under section 7(4) of the Social Security Act 1998 an appeal tribunal is empowered to require the assistance of an expert when it is dealing with a question of fact of special difficulty, which I consider the matter of Bangladeshi law to be in the present case.  However, section 7(5) of the said Act goes on to define the word “expert” restrictively as being someone who is a member of the panel from which the appeal tribunals are constituted who has the relevant knowledge or experience. Frankly, I consider it unlikely that there will be any member of the appropriate panel who will be sufficiently qualified in Bangladeshi law to be called upon by the appeal tribunal for this purpose.  I regret that Parliament saw fit to enact such a restrictive definition with such limiting effects on the power of appeal tribunals to obtain expert assistance.  Given that the adjudication officer, as the statutory predecessor to the Secretary of State, has raised the question of the validity of the marriage between the claimant and Mr Ali on the basis of Bangladeshi law and also given the inability of the tribunal to obtain its own expert assistance on this specialised matter for the reason just given, I take the view that it is appropriate for me to direct that the Secretary of State should provide the relevant evidence for the new tribunal.  I so direct him.  Such information will be available e.g. from academic lawyers specialising in the Muslim law of the Indian sub-continent.  Thus, the Secretary of State should provide for the tribunal written advice from an expert on Bangladeshi law as to the need or otherwise for the consent of prior wives if a husband contracts a fresh polygamous marriage under that law.  In the special circumstances of this case that expert opinion should also include comment, if possible, on the position which would arise in Bangladesh if one of these wives were mentally incapable of giving or indeed withholding such consent.  This is highly relevant as there is material on file which indicates that it may well have been the case that “B” was in that state in 1981.  See e.g. paragraph 6 of document 55 and paragraph 14 of document 57.  The advice should also contain information as to the legal effect on a marriage in Bangladeshi law, as it stood as at the date of the relevant marriage ceremony, of such consent not being granted or not having been recorded as granted (assuming it was required).  These are highly pertinent issues given the text of the English translation of the claimant’s certificate of marriage to Mr Ali.  See document 38, especially paragraph 21.  I further direct that the claimant and those acting for her should, if they so choose, place written submissions before the new tribunal on the issues raised in this paragraph.  The legally qualified panel member will have to determine the validity of the claimant’s marriage to Mr Ali under Bangladeshi law having regard to the contents of the expert opinion supplied to him in accordance with my directions in this paragraph and any submissions from the claimant supplied in accordance with the directions given above.  I should add that the issue of Mr Ali’s capacity to enter a polygamous marriage at all will not arise.  This is because it has now been conceded by the Secretary of State that he had always retained his domicile of origin in what is now Bangladesh and it is further accepted that such marriages are permitted under Bangladeshi law.  See paragraph 9 of document 73.  In R(G)1/93 a polygamous marriage contracted in Bangladesh was accepted as valid given that the parties to it were domiciled there at the time of the ceremony.  See especially paragraph 16 of that decision which I follow. The question of what the situation would have been had Mr Ali been domiciled in England at the time of his marriage to the claimant should be ignored by the new tribunal.  

Validity of the divorce of “A” by Mr Ali 

(a)	Proof of the divorce

11.	The claimant asserts that “A” was divorced by Mr Ali on 20 April 1991.  She has produced a Bengali document (document 34) with an accompanying English translation (documents 35 and 36).  Documents 35 and 36 indicate that document 34 is a certificate of divorce.  Document 40 is another, somewhat different, English translation of the divorce certificate.  (Document 34 appears to be reproduced later in the papers as document 68 and document 40 re-appears as document 69.)  No suggestion has been made that any of these documents are forgeries.  The legally qualified panel member can therefore, in the absence of any proof to that effect, hold that a divorce of “A” by Mr Ali took place on 20 April 1991.  

(b)	Choice of the rule of recognition – “incidental question” or principal question

12.	The next issue which arises is which law should be used to determine the recognition in England of the said divorce for the purposes of the claim to widow’s benefit.  I hold that this matter falls to be determined by the provisions of Part II of the Family Law Act 1986, which contains the English (and indeed the United Kingdom) rules for the recognition of overseas divorces.  I do not consider that the question of the recognition of the divorce of “A” in April 1991 is “an incidental question” (in the technical sense in which that phrase is used in the rules of international private law) in the present case.  I refer to and endorse the comments of Commissioner Jacobs in paragraph 12 of CP/1977/99 in this connection.  I hold, as he did in that case, that the question at issue here is whether the claimant’s marriage was monogamous.  That in turn depends, at least in part, on the validity of her husband’s divorce from “A”.  That is not an incidental question, in the sense just described, but rather an independent question the answer to which will determine, at least in part, whether the claimant’s marriage was monogamous.  Thus, the difficult issues discussed by Commissioner Mesher in CG/13358/96, paragraphs 11 to 18 relating to the “incidental question” do not arise in the present case.  That is because the validity of the claimant’s marriage to Mr Ali does not turn on the validity of his divorce from “A”.   Obviously, that could not be the situation here because the divorce took place almost 10 years after the marriage between the claimant and Mr Ali and in any event it has never been in dispute that under Bangladeshi law Mr Ali could take two or more wives.  The situation in CG/13358/96 was very different.  That case related to the validity of a marriage in Bangladesh which in turn depended on the validity of a divorce granted there.  That was a key issue because a woman under Bangladeshi law can only legally take one husband at a time in contrast to the situation relating to men.     As an independent question, the validity of the Bangladeshi divorce falls to be determined by the English rules for the recognition of overseas divorces identified above.

(c)	Form of the Bangladeshi divorce

13.	The documents described in paragraph 11 above indicate the method by which Mr Ali divorced “A”.  The divorce was effected by a talaq not granted under classical Islamic law (a so-called bare talaq) but rather under the provisions of the Muslim Family Law Ordinance 1961.  The latter is a piece of Pakistani legislation which remained in force in Bangladesh after the secession of the latter territory from Pakistan.  The documents bear to be addressed to and served upon a functionary known as the Chairman of the Union Council in accordance with the above ordinance and to have been signed and sealed by that functionary.  It can be taken from the general tenor of the documents in question that they were also served on “A” herself but issues may possibly be raised in that connection at the re-hearing.  See paragraph 17 below.

(d)	Was the divorce “obtained by proceedings” for the purposes of the Family Law Act 1986?

14.	The first point which arises, under the Family Law Act 1986, in regard to the recognition of the Bangladeshi divorce is whether that divorce was “obtained by means of proceedings” for the purposes of section 46 of the said Act.  Under section 54(1) of the said Act, “proceedings” are defined as meaning “judicial or other proceedings” (my underlining).  In Quazi v. Quazi [1979]3 All ER 897 the House of Lords considered the recognition in England of a wife’s divorce by her husband in Pakistan under the same procedures, derived from the same legislation, as were used in the present case.  Their Lordships held that such a divorce was one which had been “obtained by proceedings” as that phrase was used in the statutory predecessor of the 1986 Act.  They took the view that the phrase “other proceedings” included all proceedings for divorce, other than judicial proceedings, which were legally effective in the country where they were taken.  I am obliged to follow that decision. I am thus satisfied, provided the proceedings of April 1991 were effective in Bangladesh, that the validity of the divorce should be tested by reference to section 46(1) of the Family Law Act 1986, the provision relating to the recognition of overseas divorces “obtained by means of proceedings” and not by reference to section 46(2) which relates to the recognition of overseas divorces which were not obtained by “proceedings” of any description.  

(e)	Application of section 46(1) of the Family Law Act 1986

15.	Section 46(1) of the Family Law Act 1986 provides for recognition of a relevant divorce: “if

(a)	The divorce … is effective under the law of the country in which it was obtained: and
(b)	At the relevant time either party to the marriage – 
(i)	was habitually resident in the country in which the divorce … was obtained; or
(ii)	was domiciled in that country; or
(iii)	was a national of that country.”

Applying the above provision, I hold and direct that the validity of the divorce of “A” by Mr Ali should be recognised by the legally qualified panel member (subject only to the matters dealt with in paragraphs 16 and 17 below).  The form of divorce used i.e. a talaq involving, as described in paragraph 13 above, intimation to the Chairman of the Union Council was effective under Bangladeshi law.  As held by me in paragraph 10 above, issues of overseas law are issues of fact before me as well as before the appeal tribunal. However, findings by Commissioners on issues of overseas law constitute evidence of such law, particularly if they are of recent date and can thus be used to establish the content of such law, especially if they are not disputed by parties.  That proposition summarises points made by Commissioner Mesher in paragraph 9 of CG/12487/96 as somewhat modified by him in paragraph 24 of CG/13358/96.  Applying that proposition here, I consider that the two cases just referred themselves contain evidence of Bangladeshi law on a talaq or extra-judicial divorce.  Having read both decisions carefully, I take the view, on balance of probabilities, that in 1991 notice to the Chairman of the Union Council was indeed actually required to make such a divorce effective in Bangladesh – whatever might have been the situation in 1973, just after the secession of Bangladesh from Pakistan (the matter dealt with in CG/13358/96).  CG/12487/96 provides information on the situation pertaining in 1986 (see especially paragraph 20 of that decision) and, on balance of probabilities, I take the view that the same situation applied in 1991.  I thus conclude, for the purposes of section 46(1)(a) of the Family Law Act 1986 that the divorce of 20 April 1991 was effective under the law of Bangladesh, subject to the matter raised in paragraph 16 below.  Secondly, I also hold that section 46(1)(b)(ii) is satisfied in this case because the Secretary of State now concedes that Mr Ali was domiciled in Bangladesh in 1991, having never lost his domicile of origin in that territory.  See paragraph 9 of document 73, also referred to by me in paragraph 10 above.

(f)	Possible need for registration of the divorce in Bangladesh

16.	Two other issues may however arise in respect of the validity of the divorce of 1991 which may require attention by the legally qualified panel member.  Firstly, in his submissions to the social security appeal tribunal, the adjudication officer raised the issue of the possible invalidity of the said divorce because it was not registered with “the Kazi” under the Muslim Family Law Ordinance.  See paragraph 13 on document 1e.  The Kazi is apparently a local registration official, presumably comparable to a Registrar of Marriages in the United Kingdom.  This appears from the designation used by the person who appended his seal to the certificate of marriage between the claimant and Mr Ali.  See document 39.  The submission just referred to had its origin in the report of the pensions liaison officer – document 29.   This alleged requirement of the Muslim Family Law Ordinance 1961 is not mentioned so far as I can ascertain in CG/12487/96 or CG/13358/96.  I also note the comments made by the representative of the Secretary of State at paragraph 11 on document 98 – “In Bangladesh, there is a provision providing that the divorce may be registered under section 6 of the Muslim Marriages and Divorces (Registration) Act 1974” (my underlining).  It may also be significant that a different piece of Bangladeshi law is referred to in that paragraph, not the 1961 Ordinance.  I hold and direct that if the Secretary of State wishes to submit that the matter raised in this paragraph constitutes a defect in the divorce which would prevent its recognition by the legally qualified panel member, having regard to the provisions of section 46(1)(a) of the Family Law Act 1986, as laid out in paragraph 15 above, then it will be insufficient for him to rely solely on the contents of document 29.  If he wishes to sustain an objection to the recognition of the validity of the divorce on this ground, he must produce more detailed evidence of Bangladeshi law in the manner described in paragraph 10 above.  Such evidence will be necessary if the Secretary of State wishes to persist in the submission made on this topic to the social security appeal tribunal in the re-hearing proceedings.  

(g)	Notice of the divorce proceedings to “A” and public policy

17.	Secondly, I draw to the attention of the legally qualified panel member who will rehear this case the provisions of section 51(3) of the Family Law Act 1986.  So far as relevant these read as follows: 

(3)	Subject to section 52 of this Act, recognition … of the validity of an overseas divorce, … may be refused if - 

(a)	in the case of a divorce … obtained by means of proceedings, it was obtained – 

(i)	without such steps having been taken for giving notice of the proceedings to a party to the marriage as, having regard to the nature of the proceedings and all the circumstances, should reasonably have been taken; or
(ii)	without a party to the marriage having been given (for any reason other than lack of notice) such opportunity to take part in the proceedings as, having regard to those matters, he should reasonably have been given; or
(iii)	… recognition of the divorce … would be manifestly contrary to public policy.
(underlining mine).
				
I direct the legally qualified panel member rehearing the case to apply the above provisions as follows.  Firstly, section 52 has no application to this case.  Secondly, he should observe that the above provisions are cast in a permissive form, not a mandatory one as my underlining attempts to make clear.  Thus he is entrusted with a judicial discretion.  Because of that, I direct that the Secretary of State should submit in writing to the new tribunal whether or not he wishes the legally qualified panel member to consider the possible effect of section 51(3)(a)(i) or (ii) in this case and, if he wishes him to do so, to give his grounds for such a submission in detail, having regard to such evidence as is available on the divorce proceedings of 1991.  This matter is not dealt with in the submissions made to me on behalf of the Secretary of State at paragraphs 14 and 15 of documents 98 and 99.  This is understandable because those submissions were prepared on the basis that section 46(2) of the Family Law Act 1986 applied to the case. I hold in paragraph 14 above that the correct approach is rather to deal with the present case by reference to section 46(1) of the said Act.  If the Secretary of State does not make a submission seeking to have recognition refused, then I hold and direct that the legally qualified panel member should not consider exercising the discretion conferred on him by section 51(3)(a)(i) or (ii) cited above against the claimant’s interests.  If, on the other hand, such a submission is made by the Secretary of State, then the legally qualified panel member should consider the whole matter on the basis of that submission and all relevant information before him.  Thirdly, in view of the submission made on behalf of the Secretary of State at paragraph 15 of document 99, no issue arises at the rehearing under section 53(3)(a)(iii) cited above.  The approach taken in that paragraph is appropriate and is indeed supported by the decision of the House of Lords in Quazi v. Quazi [1979] 3 All ER 897.  See for example the comments of Lord Salmon at page 907 and those of Lord Scarman at page 918 of that case.

18.	To summarise the effects of paragraphs 15 to 17 inclusive above, the legally qualified panel member should afford recognition to the validity of the Bangladeshi divorce under section 46(1) of the 1986 Act unless (i) either of the issues discussed in paragraphs 16 or 17 are raised in the rehearing proceedings on behalf of the Secretary of State in the manner directed in those paragraphs, and (ii) the legally qualified panel member considers it appropriate to accede to any submission thus made that he should not recognise the said divorce.

19.	The claimant’s appeal thus succeeds.  The case falls to be determined by the new appeal tribunal in accordance with  the detailed directions contained in this decision.

						(signed)
						A J GAMBLE
						Deputy Commissioner
						Date:  28 September 2000