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

An application to extend time for filing an appeal after expiry must be assessed using the Denton three-stage approach. The court must assess the seriousness and significance of the default, its explanation, and all the circumstances. Strong merits and an absence of prejudice may justify an extension despite an inadequate explanation.

A former spouse seeking a permanent residence card under the Immigration (European Economic Area) Regulations 2006 must establish the required continuous exercise of free-movement rights by the EEA national during the qualifying period. An appellate court should not make a disputed factual inference from incomplete evidence where the specialist tribunal can properly determine it. It should remit the case where the tribunal's reasons are unclear or it has not addressed the grounds of appeal.

The appellant, a South African national, sought a permanent residence card after his divorce from a Polish national. He relied on evidence from himself and three witnesses that his former wife had worked continuously at Heathrow Airport during the relevant period. The First-tier Tribunal rejected the appeal because gaps in the evidence prevented reliance on continuity. The Upper Tribunal found no material error of law.

The appellant's appeal to the Court of Appeal was lodged about three months late. The Secretary of State accepted that, if time were extended, the tribunal decisions were flawed because the First-tier Tribunal's reasons were unclear and the Upper Tribunal had not addressed the grounds of appeal. The central issues were whether time should be extended and whether the Court of Appeal should itself infer continuous employment or remit the factual issue.

1. Appeal allowed. The court extended time and remitted the case to the Upper Tribunal. Beatson LJ gave the judgment, with which Moore-Bick and Vos LJJ agreed.

2. The three-stage approach in Denton, as applied in Hysaj to late notices of appeal, governed the extension application. The delay was serious and significant. Waiting for exceptional funding was not a good explanation, since the appellant could have been advised to lodge a holding notice or take self-help steps. However, the Secretary of State suffered no prejudice, and accepted that the tribunal decisions could not stand if time were extended. The grounds were therefore very strong, a consideration with significant weight at the third stage.

3. The appellant's contention that his former wife's exercise of Treaty rights mattered only on the divorce date was not properly raised and was, in any event, untenable. The statutory scheme and Article 16 of Directive 2004/38 required continuous lawful residence during the qualifying five-year period. A former spouse had to establish the continuous exercise of the relevant free-movement rights until the divorce.

4. The First-tier Tribunal had not accepted that the witnesses proved continuous employment. Their evidence was supportive and could justify that inference, but it contained material gaps, especially after cross-examination. The Court of Appeal had neither a transcript nor sufficient material to make the factual finding itself.

5. There were sound institutional reasons not to undertake the specialist tribunal's fact-finding task. The Upper Tribunal was to decide whether further oral evidence was needed or whether it could determine, from the existing summaries and its expertise, whether the former wife had worked continuously until the divorce.

• Court of Appeal (Civil Division): Allowed the appeal, extended time for filing it, and remitted the case to the Upper Tribunal: [2015] EWCA Civ 1273.
• Upper Tribunal (Immigration and Asylum Chamber): Dismissed the appeal on 11 April 2014, finding no material error of law in the First-tier Tribunal's decision.
• First-tier Tribunal: Dismissed the appeal on 27 January 2014 because gaps in the evidence did not establish continuous exercise of Treaty rights by the appellant's former spouse.