ZP (South Africa) v Secretary of State for the Home Department

LORD JUSTICE MOORE-BICK: I shall invite Beatson LJ to give the first judgment.

LORD JUSTICE BEATSON:The appellant, Zaheer Pochee, whose name need not be anonymised, is a South African national. His application for a permanent residence card as the former spouse of an EEA national was refused by the Secretary of State in a decision dated 12 June 2013. His appeals to the First-tier Tribunal and the Upper Tribunal were refused respectively on 27 January and 11 April 2014. Permission to appeal against the determination of the Upper Tribunal was given by a senior immigration judge on 7 July 2014.

It appears that the decision giving leave was not served on the appellant until 31 July 2014. On that assumption, his appeal should have been lodged at the latest by 28 August 2014. In fact, it was only lodged on 21 November. His current solicitors, Duncan Lewis, were instructed on 29 August 2014, a day after time expired. On 1 December, they informed this court that on 20 November, a day before the appeal was lodged, the appellant had been granted legal aid under the exceptional funding system. The certificate was dated 15 October 2014, thus retrospectively authorising work from that date.

There are two issues before this court. The first is a question of procedure: should time be extended to enable the appellant to proceed with his appeal, which was lodged three months out of time, almost two and a half months after his present solicitors were instructed but only very shortly after legal aid was granted? The second question is a substantive one: the Immigration (European Economic Area) Regulations 2006 SI/2006 No 1003 ("the 2006 Regulations") require an applicant for a permanent residence card in the United Kingdom based on the exercise by his former spouse of her rights of free movement as an EEA citizen to show that the former spouse continually exercised those rights for a period until the divorce. The question in this case is whether the First-tier Tribunal and the Upper Tribunal erred in law in their approach to the case by not addressing the appellant's grounds of appeal, and in their approach to the evidence adduced in support of the appellant's claim that his former wife had continuously exercised her rights for the period required; and, if so, whether it was inevitable on the evidence before the First-tier Tribunal that the tribunal and the Upper Tribunal were bound to find that she had done so.

I have deliberately not referred to what "the period" was, because that became a subject of dispute during the hearing. I first summarise the background facts found by the First-tier Tribunal. I can do that briefly before setting out the evidence before the First-tier Tribunal.

The applicant, who was in the United Kingdom on a student visa, met a Ms Stasiak, a Polish national. She was in this country working at Heathrow Airport, first for Caffe Italia and then for a currency exchange company. He married her on 24 March 2007, and on 29 March applied for a residence card on the basis of his marriage. That application was granted in October 2007 and a residence card was issued for a period of five years.

During the summer of 2010 the marriage broke down, and despite a temporary reconciliation in "October/November 2010", during which their son was conceived, the couple divorced on 16 December 2010. In May 2011, Ms Stasiak travelled to Poland on maternity leave. The couple's son was born in Poland on 22 July 2011. Ms Stasiak returned to the UK with him and her mother in May 2012.

She had at one stage agreed to provide the appellant with documents showing her exercise of EEA rights to support his application for a permanent residence card which was made shortly before his five-year card expired, but she did not do so. When he applied for the permanent residence card in October 2012 he only had pay slips and P60s for 2007, 2008 and 2009. He was not able to get other documentary support as to her position.

The appellant is required under the 2006 Regulations to show that he has resided in the UK in accordance with the Regulations for a continuous period of five years (see Regulation 15(1)(f)). In this case, the period started on his marriage in March 2007 and part of the qualifying period relied on him being a qualified person by virtue of his marriage until and including the date of the divorce in December 2010. As those representing the appellant at that time recognised, that in turn depended on Ms Stasiak continuously exercising her rights of free movement as an EEA citizen for a five-year period until the divorce (see Regulation 15(1)(a), 10(5) and (6), 6(1) and (2) and Regulation 14). Regulation 10 defines which family members, including those who cease to be family members on the termination of a marriage, are qualified persons for the purpose of the Regulations; Regulation 6 provides that a qualified person is an EEA national who is subject to exceptions in Regulation 6(2) (which do not apply here) is in the UK inter alia as a worker; Regulation 13 deals with the EEA national's initial right of residence subject to the exceptions in Regulation 6(2); and Regulation 14 deals with the qualified person's extended right of residence. These Regulations implement Directive 2004/38 on the right of Union citizens and their family members to move and reside freely within the territory of the EU and the EEA. Article 16 of the Directive provides for the acquisition of a right of permanent residence where the EEA national has resided lawfully in the host Member State for a continuous period of five years (see the decision of the CJEU in Case C-162/09 Secretary of State for Work and Pensions v Lassal [2011] 1 CMLR 31 to which Ms Rhee drew our attention during the course of the hearing.

As to family members, after referring to strengthening the feeling of EU citizenship and promoting social cohesion, recital 17 to the Directive states:

The documents about the appellant's former wife's work which he had did not cover the five-year period prior to the divorce. He therefore sought to rely on the evidence he and three other witnesses gave to show that Ms Stasiak exercised her rights continuously until the divorce. The contents of the appellant's witness statement are set out in paragraphs 5 and 6 of the FTT's determination. It is there stated that he stated, inter alia, that:

The evidence of three other witnesses is summarised in paragraphs 7 to 12 of the determination. Ranjan Perera, a friend of the appellant who also worked at Heathrow, said he saw Ms Stasiak working there about once or twice a week during 2006. He was either off work or working somewhere else between April 2007 and September 2008. When he started working at Heathrow again for American Express in September 2008, he saw that Ms Stasiak also worked for the firm as a cashier and he saw her "now and then". He left American Express's employment in July or August 2010.

In his statement, Iraj Perera said he worked in Heathrow "since 2004". He knew the appellant and Ms Stasiak from the time they started going out in 2005 and saw her regularly at Heathrow "since January 2006". He lived with the couple between October 2007 and January 2008. She worked for American Express in several of the terminals from 2006, and most recently for Moneycorp from November 2013. He stated that he saw her working regularly between 2007 and December 2010, sometimes weekly or fortnightly, but he said it was never more than a month between him seeing her at work. The summary of his cross-examination is that he said he had seen Ms Stasiak "in 2007, sometime between September and October he was working [at Heathrow] and had been living with her in 2007" and that "he had seen her between January and October 2007".

Zunaid Dessai remembered seeing Ms Stasiak working at Caffe Italia at Heathrow not long after he met her early in 2006. He stated he saw her working at Caffe Italia and in her work uniform going home from work at International Currency Exchange and American Express. Sometimes he gave the appellant and her a lift, and he occasionally travelled on the bus with them. In his statement he said he worked at Heathrow between 2006 and 2010, but in his cross-examination he said he had not worked there since 2006 but had after that time gone to the airport to pick up his girlfriend and had done that four or five times in 2007. He also said that until early 2010 he would see Ms Stasiak in the street visiting her house.

The First-tier Tribunal summarised the requirements of the 2006 Regulations in paragraph 3 of its determination. In the present case what is material is its statement that:

I have referred to the First-tier Tribunal's treatment of the evidence. Its conclusion is in paragraph 16 of its determination, which I will set out in full:

In the Upper Tribunal's determination, the deputy Upper Tribunal judge referred to the evidence and then stated that the immigration judge had observed that there was a lack of documentation in paragraph 16 of her determination; that the witnesses who have given evidence were doing their best; but that she was dissatisfied with the gaps in the documentation and made the observations in her paragraph that the gaps that existed in the evidence are too much to be able to rely on any principle of continuity. It is not material, but the First-tier Tribunal did not state that she was simply dissatisfied with the gaps in the documentation: it was the gaps in the evidence, which it was clear from her treatment included the oral evidence.

The deputy Upper Tribunal judge concluded that the immigration judge's reasoning was not particularly full but it is clear that she was not satisfied as to the evidence provided that the necessary period of time of continuity had been established; oral evidence does count as evidence, but it was for the immigration judge to weigh that evidence up as against the test that needed to be satisfied. He stated that it was not for the Upper Tribunal to substitute its decision in circumstances where a decision was reasonably open to the First-tier Tribunal on the evidence it heard, and this was such a case. He therefore concluded that the determination did not contain a material error of law and dismissed the appeal.

The application for permission to appeal to this court is defective in muddling together the grounds of appeal and the submissions in support of those grounds in a way not contemplated by the CPR and which this court has stated should not be done: see Rasheed v Secretary of State for the Home Department [2014] EWCA Civ 1493. Unravelling the document as best as I can, the written grounds are that the decision of the First-tier Tribunal was flawed in law because the conclusion reached by the immigration judge was not in accordance with the evidence or his findings and because of an error of law in relation to what the immigration judge described as a "principle of continuity". The grounds upon which the decision of the Upper Tribunal is said to be flawed in law appear to me to be: (1) the Upper Tribunal judge did not deal with the grounds for permission to appeal to the Upper Tribunal on which permission was granted; and (2) its determination was contradictory and incomplete and did not grapple with the contention that the First-tier Tribunal erred in law (a) in introducing a principle of continuity test which does not exist in EEA law and (b) in failing to explain why the oral evidence by the applicant and other witnesses was insufficient.

An Upper Tribunal judge granted permission to appeal to this court. His reasons are completely unparticularised. They refer only to the apparent failure by the deputy Upper Tribunal judge to have engaged with the grounds of appeal to that tribunal. It may be that this lack of particularity was the result of what I have described as a muddled and to some extent also incoherent way the application for permission is worded. It may also be that it was this lack of particularity in the grant of permission that led Mr Tear, who appeared on behalf of the appellant today, to claim that the Tribunal erred in requiring continuity in the exercise of the right by the EEA national on whom the appellant's application depended. He first maintained that all that was relevant under Regulation 15 was the position on the date of the divorce, but in response to questions accepted that there had to be a period, although he was unable to say what that period was. This was not one of the grounds upon which permission to appeal the decision of the FTT in the Upper Tribunal was sought, nor is it properly raised in the grounds of appeal to this court. I do not consider the glancing references to breaks in continuity in paragraph 10 and to what is described as a "new continuity principle" in paragraph 16 as doing so.

On behalf of the Secretary of State, Ms Rhee submitted that this appeal has been lodged well out of time and there is no reason in the circumstances of the case in the light of the authorities for the court to grant an application for an extension of time pursuant to CPR Rule 52.6. She submitted that although permission to appeal was given, it cannot be said that the decision of either tribunal was "plainly wrong" in its assessment of the evidence, and that on the approach of this court in R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1663; [2015] 1 WLR 2472 the principle of finality should preclude extending time in this case. She however accepted that, if an extension of time is granted, the reasoning of the First-tier Tribunal is not entirely clear and the Upper Tribunal similarly did not clearly address the appellant's grounds of appeal.

On the question of substance, the difference between the parties is therefore narrow. The Secretary of State agreed that the flaws in the tribunals' decisions justify the matter being remitted to the Upper Tribunal for a redetermination of the appeal. She stated that an offer to this effect had been made to the appellant in January, but it was rejected. Mr Tear in reply submitted that it was rejected for good reason: it was maintained on the appellant's behalf that the only conclusion open to the First-tier Tribunal on the findings that were made was that the appellant's former wife was in continuous employment throughout the relevant period with the result that he is entitled to the grant of a permanent residence card. It is therefore submitted on his behalf that this court should so conclude and should not remit the matter.

Care needs to be taken before extending time after a delay of this length. Hysaj's case considered the guidance of this court in Mitchell [2013] EWCA Civ 1537; [2014] 1 WLR 795 and Denton [2014] EWCA Civ 906; [2014] 1 WLR 3926. In the latter case, it was stated that a court should address an application for relief from sanctions in three stages, and in Hysaj's case that was applied to an application for an extension of time. Moore-Bick LJ, with whom Tomlinson and King LJJ agreed, stated that in Denton the court affirmed the guidance given in paragraphs 40-41 of Mitchell but explained the approach in more detail. He stated that judges should look to the more detailed guidance in Denton's case when considering applications under CPR 3.9 and applications for extensions of time for filing a Notice of Appeal made after the time for doing so had expired. The court in Denton's case stated:

In Mitchell's case, the word used at the first and second stages was "trivial"; in Denton's case, the words used were "seriousness" and "significance". A delay of three months after the receipt of a grant of permission to appeal and over six months after the decision cannot be regarded as insignificant for the purposes of the first stage of the test in those cases. In Hysaj's case it was stated at paragraphs 46-48 that a delay of 42 days, nearly all of which was while the parties were awaiting the decision on the claimant's application for permission to appeal, was substantial, but was not significant in the sense of having an effect on the proceedings.

Although what has happened has meant that the appeal has not come on sooner, it was not suggested in this case that the Secretary of State has been prejudiced by the delay. In Hysaj's case, the court also identified a number of questions of general relevance. One was the significance of the fact that the case raised questions of public law. The court rejected the submission that a more lenient approach should be taken in public law cases. It stated that not all public law cases raise matters of considerable importance to the wider public or of great public interest which it is in the public interest for this court to consider. What should be considered is whether the case does [so?]. If it does, that may be taken into account at the third stage. Hysaj's case involved such a matter, but I do not consider that this case does. The court also stated at 43-45 that shortage of funds and the fact that an appellant would be a litigant in person are not generally good reasons for extending time. The funding difficulties of the appellant do not, therefore, assist him.

In relation to the particular difficulties those who apply for exceptional funding face, Mr Tear relied on the decision in Gudanaviciene v Director of Legal Aid Casework [2014] EWCA Civ 1622. But that case is about the availability of exceptional funding legal aid, not about extensions of time. It is Hysaj's case and its precursors, in particular Denton's case, which contain the relevant principles. I do not regard the funding position as a good reason for the delay in this case. Although the appellant's former advisors as an OISC organisation were not able to act in senior courts, they could have advised the appellant of the steps he was required to take to process his appeal or assisted him in framing a holding Notice of Appeal which he could put in pending the identification of a solicitor. Duncan Lewis was instructed a day after the expiry of the period. They could also have advised the appellant as to the self-help steps he might take while his application for funding was being considered. While I am conscious of the tight margins within which solicitors practising in publicly funded areas operate, and the consequences of a firm coming on the roll before satisfactory arrangements have been made, I do not consider that deciding simply to wait for the outcome of the funding application is a good reason for extending time.

Set against these pointers are two important considerations that come in at the third stage of the inquiry, their consideration of all the circumstances. The first is that Miss Rhee has not contended that the Secretary of State has been prejudiced by the delay. The second, which in my judgment is crucial in this case, is that she accepted that if time is extended, the tribunals' decisions are flawed because the FTT's reasoning is not clear and the Upper Tribunal did not address the appellant's grounds. She however submitted that, having rejected the Secretary of State's reasonable offer that the case be remitted to the Upper Tribunal, the position now is that the rules of the CPR [and the cases that should be applied?] and that the Secretary of State's offer should not count against the position she has taken.

I see the force of that argument. I would not want to discourage the Secretary of State from making reasonable offers to dispose of cases. Despite this, it must follow from the substantive position taken by the Secretary of State that the tribunal decisions are flawed because the First-tier Tribunal's reasoning was not clear and the Upper Tribunal did not address the appellant's grounds, but even if, as Miss Rhee submitted, the Tribunal decisions were not "plainly wrong", this is a case in which the court can, in the words used in Hysaj's case at 46, see "without much investigation that the grounds of appeal are ... very strong". The court stated that where this is so, the merits have "a significant role to play" in balancing the factors that have to be balanced at stage three of the process. In view of unusual circumstances that the Secretary of State in this case accepts, that if time is extended the case should be remitted, and the absence of prejudice by extending time, I have no doubt that an extension of time should be granted.

The remaining question is whether the First-tier Tribunal judge in fact accepted that the evidence of the appellant and the other witnesses showed that his former wife had worked continuously up to the time of the divorce; whether Mr Tear is entitled to make his new argument that the relevant date for determining whether she was exercising her Treaty rights was the date of the divorce; and, if so, whether it has any substance.

As to the last two points (a) this was not a ground of appeal and it is not proper for it therefore to be advanced; but in any event (b) it is utterly unarguable in view of the terms of recital 17 to the Directive, Lassal's case and the provisions of the Regulations. As to whether the First-tier Tribunal judge in fact accepted that the evidence of the appellant and the other witnesses showed that his former wife had worked continuously up to the time of the divorce, Mr Tear submits that she did, and so it is inevitable on the evidence that was before the Tribunal that it must have found that the appellant had discharged the burden of showing that his former wife had continuously exercised her EEA rights for the period required and he is therefore entitled to a permanent residence card.

I have concluded that the way that the First-tier Tribunal judge expressed herself in paragraph 16 did not amount to an acceptance that the witnesses' evidence meant that the appellant's former wife had worked continuously up to the time of the divorce. My summary of the evidence of the appellant and the other witnesses earlier in this judgment shows that, whilst strongly supportive of the appellant's case and capable of justifying an inference of the sort for which the appellant contends, as recorded in the decision and in the light of the cross-examination there are gaps in the evidence. The strongest evidence was the appellant's. He said that for all the time they were together his former wife worked at Heathrow and she did so for a number of employers between 2006 and 2013. The marriage, however, broke up during the summer of 2010, and there was a period before the divorce when they were "not together". He did not give evidence about when in the summer that happened, but said they got back together in October or November 2010. There were clearer gaps in the evidence of the other three persons who testified: Ranjan Perera only covered 2006 and the period between September 2008 and August 2010; in cross-examination, Iraj Perera stated that he worked at Heathrow between January and October 2007 and saw Ms Stasiak, and he used to see her monthly; Zunaid Dessai said he had not worked at Heathrow since 2006, but had since gone to the airport to pick up his girlfriend and did so four or five times in 2007. His evidence when cross-examined was that after he stopped working at Heathrow he would see Ms Stasiak in the street visiting her house until early 2010.

The question is whether this court should itself make the inference that I have stated would be open to the finder of fact, or whether the appropriate course is to remit the matter to the specialist appellate tribunal. In R (Jones) v First Tier Tribunal (Social Entitlement Chamber) [2013] UKSC 19, the Supreme Court, albeit in a different context and in the context of the dividing line between "fact" and "law" emphasised that this court should not venture too readily into areas which are best left for determination by the specialist appellate tribunals.

In the circumstances of this case, I would reject the submission that it was inevitable that on the live evidence before the FTT the Tribunal was bound to find that the appellant's former wife had worked continuously up until the time of the divorce. The determination of the Tribunal contains only a summary of the cross-examination of the three supporting witnesses. Not surprisingly there is no transcript of the evidence, but the result is that I do not consider that this court has enough material before it to make the inference itself, even if, in the light of what was said in Jones, it should contemplate doing so.

Apart from the question of competence, there are strong reasons of policy for an appellate court not descending into the fray and becoming engaged in the matters which are properly the task of the first appellate court. It is for the first appellate court to fulfil its task appropriately.

Accordingly, if my Lords agree, this appeal should be allowed and the case should be remitted to the Upper Tribunal. It will be for the Upper Tribunal to decide whether it is necessary to hear the evidence again or whether, in the light of its experience and expertise in cases such as these, it is possible for it to find on the basis of the summary in the First-tier Tribunal's determination of the evidence of the appellant and the other three live witnesses that Ms Stasiak in fact worked continuously up until the time of the divorce in December 2010.

LORD JUSTICE VOS: I agree.

LORD JUSTICE MOORE-BICK: I also agree.