Annex 13.3 - Effect of Section 2 of the Immigration Act 1988 in dealing with polygamous marriages

Section 2 of the Immigration Act 1988 prohibits certain polygamous wives from exercising their right of abode with the result that any application from such a wife has to be considered in accordance with Paragraphs 278 to 280 of the Rules, which contain provisions to restrict settlement in most cases to one wife.

Section 2 of the Act states that no wife who has previously had the right of abode in the UK under Section 2(1)(b) of the 1971 Act as amended on the basis of her polygamous marriage, and who has not prior to 1 August 1988 and since her marriage to her husband been in the UK, should be allowed to enter the UK to exercise that right of abode (or be granted a Certificate of Entitlement in respect of that right) if there is another woman living who is the wife or the widow of the husband and who:

1. is, or at any time since her marriage to the husband has been, in the UK; or
2. has been granted a Certificate of Entitlement in respect of the right of abode under Section 2(1) (b) of the 1971 Act as amended or an entry clearance to enter the UK as the wife of the husband.

Any woman who claims that Section 2 of the 1988 Act does not apply to her must prove her claim by showing either:

1. she has been in the UK prior to 1 August 1988 and since her marriage to her husband; or
2. she has been in the UK since her marriage to her husband and at a time when the husband was not married to a woman as described in subsections (a) and (b) above.

A marriage may be considered polygamous under Section 2 of the 1988 Act even though at its inception neither party had any spouse additional to the other.

How Section 2 of the Immigration Act is applied to polygamous wives through Paragraphs 278 to 280 of the Rules
A polygamous wife who either is prohibited from exercising her right of abode under Section 2 of the Immigration Act 1988 or never had it, will, unless she is a returning resident (see following subsection on wives entering under their own right), have to apply for entry clearance if she wishes to join her husband in the UK.

In accordance with Paragraph 278, entry clearance should be refused if the woman’s husband has another wife living who:

• is or, any time since her marriage to the husband, has been in the UK; or
• has been granted a Certificate of Entitlement in respect of the right of abode under Section 2(1) (b) of the 1971 Act as amended; or
• has been granted an entry clearance to enter the UK as the wife of the husband.

Paragraph 279 states that the above restrictions will not apply to a woman who can prove that:

• she has, before 1 August 1988, and since her marriage to the husband, been in the UK; or
• she has, since her marriage to her husband, been in the UK at any time when he was not married to a woman as is described in the provisions of Paragraph 278 of the Rules (see above).

Such a spouse should be treated as though he or she were not a polygamous spouse.

A child whose parent is party to a polygamous marriage should also be refused (Rules Paragraph 296).

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