lolwe wrote: ↑Wed Nov 18, 2020 8:22 am
Do you REALLY know why the Home Office is wrong for refusing your EUSS application based on you not having applied for LTR under Appendix FM?
So, you were refused for settlement under EUSS. The reason? Because you have not applied for leave to remain under Appendix FM. You plan to fight this refusal to court, if necessary. Maybe you read what Judge Neville of the First-tier Tribunal (IAC) at Taylor House ruled said on 30 January 2020:
a person meeting the requirements Regulation 16 of the Immigration (European Economic Area) Regulations 2016 (‘the 2016 Regulations’) has a derivative right of residence notwithstanding that he or she has not yet made an application under the Immigration Rules and pursuant to Article 8 ECHR
Here is a bit of background to put Judge Neville's ruling in to context.
First, a bit about Ruiz Zambrano, Belgium and the European Court
Ruiz Zambrano lived with his family in Belgium. He lost his job because he didn't have a valid work permit. He sued the Employment Office in Belgium and won. He argued that he should not have to get a work permit as his children were born in Belgium and he therefore had a derived residence. Without this right, his family would have to leave Belgium. For him, this right was his last option. It was a right of last resort. The court agreed with him and said all EU member states should recognise this right.
THE UK
Had Ruiz Zambrano lived in the UK, he would have probably applied for a family visa. The visa would have allowed him to live and work in the UK. Everything would have been fine. Unfortunately for the UK, the UK had to apply the Zambrano ruling - even though it possibly was unnecessary. This is why the Home Office is so aggressive towards Zambrano carers. Before Zambrano, the Home Office would control what families would get visas. Now, they had to allow any family with a British child to live and work in the UK. Some of these families needed a bit of economic help, too.
The key point here is that the UK decided (was forced) to establish the Zambrano right to reside around 2014. A right of last resort - the Zambrano right - existed along with a right to remain under the UK law. If the UK did not want to implement the Zambrano right, they should have fought it at court. Anyway, once Zambrano was established in the UK, Zambrano carers were given two choices. They could apply under the UK rules, or exercise their Zambrano right to reside.
January 2017
Moving on to 2017, the Court of Appeal decided to redefine what it meant to be a Zambrano carer. The Court of Appeal said a Zambrano right to reside was a right of last resort. This ruling effectively cancelled the Zambrano right to reside for 99% of Zambrano carers because they could just switch to leave to remain under the Immigration Rules. In my opinion, this ruling was careless and did harm to Zambrano carers.
Moreover, it is wrong for the UK to suddenly change its position on derivative rights. Zambrano was firmly established as an option at that point. People had built their lives around it.
The real damage came from the Home Office. They looked at this ruling and changed their guidance. From 2017, the Home Office has been telling some Zambrano carers (but not all) that they must apply for leave to remain under the Immigration Rules (Appendix FP).
January 2019
Anyway, a greater injustice followed. The Supreme Court then took two years to finally reverse the Court of Appeal's ruling. Moreover, the Supreme Court failed to reject the Court of Appeal's position in clear, unambiguous language. The Supreme Court could have said, "The Zambrano right is NOT a right of last resort in the UK." Instead, they said other things that meant roughly the same thing.
January 2020
It took another year for a First Tier Tribunal judge, Judge Neville, to look at the Supreme Court ruling and understand that the Supreme Court basically said the Zambrano right is not a right of last resort - "A person meeting the requirements Regulation 16 of the Immigration (European Economic Area) Regulations 2016 (‘the 2016 Regulations’) has a derivative right of residence notwithstanding that he or she has not yet made an application under the Immigration Rules and pursuant to Article 8 ECHR." Unfortunately, because the ruling was made in the First Tier Tribunal, the public can not see what the judge wrote.
July 2020
Months later, the Upper Tribunal got involved. Cases at the Upper Tribunal are publicly available. In Mohamed v SSHD, Judge Lever of the First Tier Tribunal ruled against a Zambrano carer, stating the carer should apply under the UK rules as Zambrano was only a right of last resort. Judge Lever only had the Court of Appeal ruling to rely on at the time. Judge Grubb looked at the Supreme Court case and concluded Judge Lever was wrong.
Although the Supreme Court did not specifically refer to the Court of Appeal's comment that a derivative right of residence is a right of last resort which would only apply if a person has no other means to remain lawfully in the UK, I see no basis for such a limitation in principle. The fact that a person may be able to establish an alternative basis for remaining in the UK does not detract from, if it is established, his EU right of residence derived from the effect of his British citizen child being unable to remain in the UK.
So, now you know the story. Hopefully that puts all of the arguments in context.
I will say that if your argument is, "Home Office is wrong because of Judge Neville", you may want to expand your argument a bit.
What is Article 20 TFEU?
Article 20 TFEU prohibits national measures which have the effect of depriving EU citizens of the genuine enjoyment of the substance of the rights conferred by virtue of their status. Second, a refusal to grant a right of residence to a Third Country National TCN can undermine the effectiveness of the Union citizen if there exists a relationship of dependency between the TCN and the Union citizen of such a nature that it would lead to the Union citizen being compelled to leave the territory of the European Union as a whole for an indefinite period of time in order to accompany the third-country national concerned (para. 52).
