ZP (South Africa) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moore-Bick,Lord Justice Beatson,Lord Justice Vos |
| Judgment Date | 02 July 2015 |
| Neutral Citation | [2015] EWCA Civ 1273 |
| Docket Number | C5/2014/3799 & 3799(A) |
| Court | Court of Appeal (Civil Division) |
| Date | 02 July 2015 |
[2015] EWCA Civ 1273
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Moore-Bick
Lord Justice Beatson
Lord Justice Vos
C5/2014/3799 & 3799(A)
Mr Adam Tear (Solicitor Advocate) (instructed by Duncan Lewis) appeared on behalf of the Applicant
Ms Deok Joo Rhee (instructed by Government Legal Department) appeared on behalf of the Respondent
I shall invite Beatson LJ to give the first judgment.
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:
"A right of permanent residence should therefore be laid down for all Union citizens and their family members who have resided in the host Member State in compliance with the conditions laid down in this Directive during a continuous period of five years without becoming subject to an expulsion measure."
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:
"For all the time we were together, Ms Stasiak was working at Heathrow Airport and is still working there."
He also stated that he had seen her working there about a year before the hearing, ie in about December 2012.
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...
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