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

Factual and Procedural Background

The Appellant, a South African national, applied for a permanent residence card in the United Kingdom as the former spouse of an EEA national. The Secretary of State refused the application on 12 June 2013. Subsequent appeals to the First-tier Tribunal and the Upper Tribunal were dismissed on 27 January and 11 April 2014 respectively. Permission to appeal to the court was granted on 7 July 2014, but the Appellant lodged the appeal late, on 21 November 2014, after the expiry of the deadline. The Appellant’s former spouse, a Polish national, had worked in the UK, primarily at Heathrow Airport, and the Appellant sought to establish that she continuously exercised her EEA rights until their divorce on 16 December 2010.

The core dispute concerned whether the Appellant met the requirements under the Immigration (European Economic Area) Regulations 2006 to qualify for permanent residence, which required demonstrating continuous exercise of EEA rights by the former spouse during the relevant period. The First-tier Tribunal found gaps in the evidence and was not satisfied continuity was established. The Upper Tribunal upheld this decision, concluding no material error of law was made.

Legal Issues Presented

1. Whether time should be extended to allow the late appeal to proceed.
2. Whether the First-tier Tribunal and Upper Tribunal erred in law by failing to properly address the Appellant’s grounds of appeal and the evidence concerning continuous exercise of EEA rights by the former spouse.
3. Whether it was inevitable on the evidence that the former spouse continuously exercised her rights up to the date of the divorce.

Arguments of the Parties

Appellant's Arguments

• The appeal was lodged shortly after legal aid was granted, justifying an extension of time.
• The First-tier Tribunal erred by applying a "principle of continuity" test not recognized in EEA law.
• The evidence given by the Appellant and witnesses demonstrated continuous exercise of EEA rights by the former spouse until the divorce.
• The court should conclude the Appellant is entitled to a permanent residence card and not remit the matter back to the Upper Tribunal.

Secretary of State's Arguments

• The appeal was lodged well out of time and no sufficient reason exists to extend the time limit.
• The decisions of the tribunals were not plainly wrong in their assessment of the evidence.
• The principle of finality should preclude extension of time in this case.
• There were flaws in the tribunals’ reasoning, justifying remittance to the Upper Tribunal for redetermination.
• The Appellant’s rejection of the offer to remit the case was noted but does not affect the Secretary of State’s position.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first considered the procedural issue of whether to extend time for the late appeal. Applying the three-stage test from Mitchell and Denton, the court found the delay of three months to be serious and significant. The Appellant’s reliance on late legal aid funding and solicitor instruction was not considered a good reason for delay, as earlier self-help steps could have been taken. However, no prejudice to the Secretary of State was established, and the Secretary of State conceded that the tribunal decisions contained flaws justifying remittance.

Balancing these factors, the court granted the extension of time, emphasizing the strength of the Appellant’s grounds and the absence of prejudice.

On the substantive issue, the court analysed the evidence regarding continuous exercise of EEA rights by the former spouse. The First-tier Tribunal had found gaps in both documentary and oral evidence, concluding it was insufficient to confirm continuity. The Appellant argued that the evidence showed continuous employment up to the divorce, but the court found the tribunal’s reasoning did not amount to acceptance of this argument. Given the gaps and cross-examination summaries, the court held that it was not bound to find continuity on the evidence before it.

Invoking the principle from Jones, the court declined to make factual inferences itself and emphasized that such determinations are best made by the specialist appellate tribunal. Accordingly, the court concluded the matter should be remitted to the Upper Tribunal for redetermination, allowing it to decide whether further evidence is needed or whether the existing evidence suffices to establish continuity.

Holding and Implications

The court ALLOWED the appeal for an extension of time to lodge the appeal.

The substantive appeal was not decided on the merits by this court. Instead, the court ordered the case to be remitted to the Upper Tribunal for reconsideration of whether the Appellant’s former spouse continuously exercised her EEA rights for the relevant period, including whether further evidence should be heard. The decision does not establish new precedent but clarifies procedural expectations concerning extensions of time and the proper role of appellate courts in factual determinations in EEA residence cases.