The case concerned the question whether a marriage by proxy, according to religious rite in Iraq, can be accepted for the purpose of family asylum according to Section 26 (1) of the Asylum Act in Germany. The Administrative Court of Stade granted family asylum to an Iraqi national of Muslim faith pursuant to Section 26 (1) in conjunction with Section 26 (5) No 1 and 2 of the Asylum Act and based on the incontestable international protection of the wife. The Administrative Court of Stade noted that the marriage was performed in Iraq according to religious rite before an imam in the presence of only the groom and with only subsequent confirmation on the part of the bride (marriage by proxy). Also, the marriage was not registered before an Iraqi court.

The Administrative Court of Stade stated that the requirements of Section 26 (1) of the Asylum Act were fulfilled even without state registration, if the registration of the otherwise legally valid marriage had only a declaratory effect.

The BAMF filed an application for leave to appeal against the judgment, which was rejected by the Higher Administrative Court of Lower Saxony on grounds of the absence of relevant admission reasons, namely because the case is not of fundamental importance.

In its reasoning, the Higher Administrative Court of Lower Saxony stated that the question of the validity of a marriage under Section 26 (1) of the Asylum Act is governed by the marriage law of the country of origin. It further stated that the answer to the question whether registration in the persecuting state is required depends solely on whether the registration is declaratory or constitutive under the national legislation of the country of origin.

Based on the above and by taking into account the decision of the Federal Court of Justice, Applicants v Register Office, XII ZB 309/21, ECLI:DE:BGH:2021:290921BXIIZB309.21.0, 29 September 2021, the Higher Administrative Court of Lower Saxony stated that in the case of marriage by proxy, other provisions would apply only  if the marriage violates the ordre public pursuant to Art. 6 of the Introductory Act to the Civil Code. Thereby, by referring to the decision of the Higher Administrative Courts Oldenburg, Applicant v Register Office, 12 W 63/19 (PS), 30 January 2020 and Zweibrücken, Applicant v Register Office, 3 W 175/10, ECLI:DE:POLGZWE:2010:1208.3W175.10.0A, 8. December 2010, the Higher Administrative Court of Lower Saxony held that a violation of the ordre public is not to be assumed if the proxy merely refers to the issuance of the declaration of marriage whereas a violation of the ordre public occurs in the case of a proxy in which a third person decides the "whether" of the marriage and the choice of the spouse. This would depend on an assessment in the individual case and was therefore not amenable to the decision in the onward appeal procedure.