forney wrote: ↑Thu Sep 24, 2020 12:55 pm
Provision of Appendix EU (Annex 1) requires mandatory refusal of a former Zambrano carer on grounds that the carer has limited leave to remain under another part of the Immigration rules.
This provision is unlawful for the following reasons:
1. Zambrano carers have a
legitimate expectation that the provisions made in Appendix EU should be
the same or not more restrictive than the provision for such persons under the Immigration (European Economic Area) Regulations 2016 (‘the 2016 Regulations’).
2. The 2016 Regulations provide that a person may enjoy an EU derivative right to reside as a Zambrano carer notwithstanding that a person has limited leave to remain under the Immigration Rules.
3. Per the 2016 Regulations, only individuals with
indefinite leave are prevented from enjoying an EU derivative right to reside as a Zambrano carer.
4. The Home Office repeatedly signaled its intention, from 2016 onwards, to provide for former Zambrano carers on the same basis as the 2016 Regulations as regards qualifying conditions.
5. The Home Office is required to be straight forward in its dealings with the public. A departure from this requirement is not in the public interest.
6. To frustrate the expectation held by Zambrano carers is so unfair, that to take a new and different course, is tantamount to an abuse of power.
Zambrano carers have a legitimate expectation upon which they may rely, and which leads to the conclusion that the Home Office ought to grant ILR on their respective applications.
References:
The Immigration (European Economic Area) Regulations 2016 (‘the 2016 Regulations’)
16 Derivative right to reside
(1) A person has a derivative right to reside during any period in which the person
(a) is not an exempt person; and
(b) satisfies each of the criteria in one or more of paragraphs (2) to (6).
(7) In this regulation—
(c) an “exempt person” is a person—
(i) who has a right to reside under another provision of these Regulations;
(ii) who has the right of abode under section 2 of the 1971 Act;
(iii) to whom section 8 of the 1971 Act, or an order made under subsection (2) of that section, applies; or
(iv) who has indefinite leave to enter or remain in the United Kingdom (but see paragraph (7A)).
If you are going to court, if you are challenging your refusal for settlement because you have leave to remain, you need an argument.
You need a reason why the Home Office is wrong.
One possible reason is that the Home Office made a promise to Zambrano carers, you relied on that promise when you made your application, but the Home Office broke that promise.
The first promise is what the Immigration Minister said publicly in 2018, after another MP asked her about Zambrano carers
UIN 163111, tabled on 11 July 2018
To ask the Secretary of State for the Home Department, what plans he has to bring forward proposals on the status of Zambrano carers after the UK has left the EU.
16 July 2018
As set out in paragraph 6.12 of the Statement of Intent on the EU Settlement Scheme published on 21 June 2018, provision in the Immigration Rules will be made for a non-EU citizen who is the primary carer of a British citizen in the UK and who currently derives a right of residence from wider EU law (a Zambrano carer). Further details will be provided in due course on the new status which will be available to them.
So, in June 2018, the Home Office said that Zambrano carers would be taken care of based on the draft Immigration Rules.
The draft Immigration Rules published in June 2018,
do not say Zambrano carers with leave to remain should be refused settlement.
The draft Immigration Rules from June 2018 did not even really mention Zambrano carers.
https://assets.publishing.service.gov.u ... e_2018.pdf
Todays Immigration Rules published in May 2019, require Zambrano carers to be treated differently - and to be refused.
THE ARGUMENT: Zambrano carers have a
legitimate expectation to be treated the way the Home Office described in June 2018. The second definition of Zambrano carers published by the Home Office in 2019 is unlawful.
This new definition, which excludes Zambrano carers with LTR, is more strict than the original definition from 2018. People have a right to rely on the 2018 definition. There is no good reason for the change.
More specifically, the Home Office was wrong to create a category for "the family members of a qualifying British citizen" and another category for "Zambrano carers". Zambrano carers are the parents of a British citizen so they are also family members of a qualifying British citizen.
The June 2018 draft Immigration Rules
This Appendix sets out the basis on which an EU citizen39and their family members, and the family members of a qualifying British citizen, will, if they apply under it, be granted indefinite leave to remain or limited leave to remain.
https://assets.publishing.service.gov.u ... e_2018.pdf
