Zambrano Settled Status EU settlement scheme Paper Application Form - NEW

[Rosh_2704]

He was Indian. He passed away when I was 5 months pregnant

[lolwe]

@Rosh_2704 I am very sorry for your loss and the difficult time you must have had. Miss Suz also lost her husband. I wonder how many Zambrano carers are widowers? Perhaps one day the Home Office would show people who come to the UK a bit of compassion!

I suggest you include a request for leave outside the rules and for indefinite leave outside the rules. If you have time, perhaps other people on this thread could offer their opinion? The request letter could say something like this:

18 December 2020

Dear SSHD,

RE: [insert home office reference number here]

I understand that Appendix EU defines a Zambrano carer as one who does not have leave to remain under another part of the Immigration Rules. I write to respectfully request I be granted indefinite leave to remain outside the Immigration Rules ('ILOTR') on compassionate ground for the following compelling reasons:

1.) I have lived in the UK on a continuous basis for over 10 years;
2.) I have not left the UK for longer than 90 days within the past 10 years;
3.) I have a good knowledge of language and life in the UK;
4.) My husband died when I was 5 months pregnant. Had he not passed away, I would have been in a position to apply for leave to remain ten years ago.

In the event you do not see fit to grant me indefinite leave outside the rules, I ask that you reconsider my application to grant leave outside the rules ('LOTR'), for the following reasons:

1.) My current leave to remain, granted under Appendix FM of the Immigration Rules, expires on 10 June 2021, several weeks before the deadline for applying for settlement under Appendix EU.
2.) I would succeed in my Appendix EU application for leave to remain had I not made an application for limited leave under Appendix FM.

Discretion is discussed by Lord Dyson in R(Munir) v Secretary of State for the Home Department, [2012] UK SC 32:

[44] "In my view, it is the [Immigration Act 1971] itself which is the source of the Secretary of State’s power to grant leave to enter or remain outside the immigration rules. The Secretary of State is given a wide discretion under sections 3, 3A, 3B and 3C to control the grant and refusal of leave to enter or to remain: see paras 4 to 6 above. The language of these provisions, especially section 3(1)(b) and (c), could not be wider. They provide clearly and without qualification that, where a person is not a British citizen, he may be given leave to enter or limited or indefinite leave to remain in the United Kingdom. They authorise the Secretary of State to grant leave to enter or remain even where leave would not be given under the immigration rules."

The SSHD has a discretion, derived from the Immigration Act 1971, to act outside the terms of the Immigration Rules. That discretion is subject to the standard restrictions on the exercise of any discretion vested in the executive or any public administrative body. Where such discretion exists, if a person who might benefit from the discretion requests that it should be exercised, proper consideration must be given to that request. In British Spam Company Ltd v Minister of Technology [1971] AC610, at 625C Lord Reid held, "The general rule is that anyone who has to exercise a statutory discretion must not 'shut his ears to an application'...I do not think there is any great difference between a policy and a rule. There may be cases where an officer or authority out to listen to a substantial argument reasonably presented urging a change of policy. What the authority must not do is to refuse to listen at all".

In all the circumstances, consideration ought to be given to granting ILOTR, or at least, LOTR. The failure to do so would be a material error of law. For these reasons, I respectfully request consideration be given to being granted some form of leave outside the rules.

Yours sincerely,

Rosh_2704

[Rosh_2704]

Thank you so so much for your valuable input and time you took in my case. I’ve submitted the DRF appeal today and will hopefully draft the letter for ILOTR tomorrow. I’m happy to read suggestions from other members too.

[lolwe]

29,000 applications refused as of 30 November 2020 (in total)

ZAMBRANO
Approximatey 60% of EUSS applications by Zambrano carers are refused.

3,270 applications received from Zambrano applicants as of 30 September 2020
1,090 Zambrano applications refused as of of 30 September 2020

2,890 applications received from Zambrano applicants as of 30 June 2020
770 Zambrano applications refused as of of 30 June 2020

ALL APPLICATIONS
The Home Office are processing about 400,000 applications per month. There is no excuse for them taking over six months to process a few thousand Zambrano applications.

198,400 applications pending as of 30 November 2020

total applications received up to 30 November 2020 - 4,478,800
total applications concluded up to 30 November 2020 - 4,280,400


total applications received up to 30 September 2020 - 4,062,000
total applications concluded up to 30 September 2020 - 3,880,380

ADDRESSES
The Court of Appeal has decided in Alam v Secretary of State for the Home Department [2020] EWCA Civ 1527 that sending a decision letter to a person’s last known address will generally be sufficient proof that the letter has been received. To prove otherwise, it must be shown the letter was intercepted and did not arrive, not merely that the person was unaware of the letter.

[LULUBABY]

Thank you so much for simplifying it for me. I’m very grateful. I feel so overwhelmed and weakened in my life right now and I’m battling mental health issues. The refusal( even though I expected and thought I was ready to fight it in the court), triggered the emotions I put aside and it’s hard for me to handle everything. I almost gave up and didn’t wish to file the appeal (hence the deadline).

Again, thank you so much.

Don’t give up. Keep fighting.

[lolwe]

What is Article 8 of the European Convention on Human Rights [ECHR]?

provides a right to respect for one's "private and family life, his home and his correspondence", subject to certain restrictions that are "in accordance with law" and "necessary in a democratic society".

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others

You have the right to enjoy family relationships without interference from government. This includes the right to live with your family and, where this is not possible, the right to regular contact.

Which law is superior, when the right in question is governed by conflicting domestic and Convention provisions? The answer to that question is clear

In general, the rights guaranteed by the Convention are superior to domestic law. If the domestic and Convention provisions conflict, the Convention provisions must be applied.

The refusal of Zambrano applications because the Zambrano carer has leave to remain under another part of the Immigration Rules (Appendix FM) violates the Zambrano carer's Article 8 rights. Zambrano carers who are not given settlement under EUSS should complain to the European Court.

If the Court finds Article 8 is applicable, the Court will go on to the second stage of the assessment. The most common situation is where the applicant claimed that the State took action which he or she considers was in violation of his or her Article 8 rights; in that situation, the Court will consider whether the interference with the Article 8 right can be justified with reference to the requirements of Article 8 para. 2

[lolwe]

You can bring an action before the EUROPEAN COURT OF HUMAN RIGHTS (ECtHR). You can bring this action as a last resort, after exhausting all remedies available to you in your own country. An application can be brought by a group of individuals.

Your application to the ECHR: How to apply and how your application is processed
https://echr.coe.int/Documents/Your_Application_ENG.pdf

Before Brexit, you could have applied to the COURT OF JUSTICE OF THE EUROPEAN UNION (CJEU) or (ECJ).

AFTER 31 December 2020 - Apply to the European Court of Human Rights

EUROPEAN COURT OF HUMAN RIGHTS (ECtHR)

• is based in Strasbourg

• is not an EU "institution"

• is part of the Council of Europe (Note: not the Council of the European Union)

• was established by the European Convention on Human Rights

EUROPEAN CONVENTION ON HUMAN RIGHTS (ECHR)

• was drafted by the Council of Europe in Strasbourg

• is interpreted by the European Court of Human Rights

• was incorporated into UK law by the Human Rights Act of 1998

• Article 8 of the European Convention on Human Rights protects the right to family life

• a 1953 international convention

• protects the human rights of people in countries that belong to the Council of Europe, a different organisation to the EU

THE COUNCIL OF EUROPE

• is based in Strasbourg

• has 47 member states, including Russia and the UK

• the UK became member of the Council of Europe on 5 May 1949

• promotes democracy and protect human rights and the rule of law in Europe

REFERENCES
https://echr.coe.int/Documents/Your_Application_ENG.pdf
https://echr.coe.int/Documents/Case_pro ... rt_ENG.pdf
https://www.europarl.europa.eu/charter/pdf/text_en.pdf

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION (The Charter)
Some rights in the Charter are not in the ECHR. The EU Charter goes further than the ECHR. Just 15 out of 50 articles (30%) have an equivalent protection in the ECHR. Although the UK will still be signed up to the ECHR after 31 December 2020, citizens living in the United Kingdom will see some of their rights undermined, because of the difference between the two regulations.

[shay007]

Good evening everyone
Does anyone know the email for requesting a COA? Thanks

[lolwe]

Before you apply to the European Court of Human Rights (ECtHR)
https://app.echr.coe.int/CheckList/Introduction.aspx

Questions to answer:

• Does the Court have jurisdiction to deal with your application?

• Is your application directed against one of the 47 States Parties to the Convention?

• Does your application concern an act, decision or omission by a public official?

• Does the act, decision or omission concern you directly?

• Does your application concern one of the rights guaranteed by the Convention?

• The United Kingdom ratified the European Convention on Human Rights and its Protocols on 08/03/1951. (See the details on the Council of Europe Treaty Office website.) Did the act, decision or omission take place after 08/03/1951?

• Was there a procedure capable of remedying your situation?

• Have you brought your case before a competent national court?

• Have you brought your case before a competent national court in accordance with all the relevant formal requirements?

• Have you brought your case in the final instance before the highest court competent to deal with the subject matter of your dispute? The competent national courts in the United Kingdom are in principle: The Supreme Court

• Is the date on which you lodged/intend to lodge your application with the Court no more than six months after the date on which the final decision as referred to in question 4 was delivered or served on you?

If you think you should go ahead and apply to the Court based on your answers, please download the application pack available at the following link: Application Pack.

Video "How to lodge a valid application"
https://www.youtube.com/watch?v=mA_iGhv ... e=youtu.be

[SPooky2020]

All,

We are a non-EEA family and I had submitted paper applications for myself, my wife and daughter in October 2019, as my son has British citizenship.

Since my current T2 leave to remain is about to expire, I had written to my MP for intervention and I got the decision from EUSS Resolution Centre over email within 2 weeks of writing to the MP.

Having followed this thread for nearly a year now, I had come to expect the decision that I received recently.

Our applications for pre-settled status were refused but the decision accompanied the following text:

"An EU Settlement Scheme application based on a Zambrano right to reside will
be refused where there is a realistic prospect that an application for leave to
remain under Appendix FM to the Immigration Rules, or otherwise relying on
Article 8 (the right to respect for private and family life) of the European
Convention on Human Rights (ECHR), would succeed. This is because if you
are able to obtain leave to remain in the UK on one of these bases, you will not
be required to leave the UK, which means xxxx will not be compelled to
leave the UK or the EEA.

You cannot show that you would be required to leave the UK, and therefore
cannot be considered a person with a Zambrano right to reside, if you have
never made an application under Appendix FM to the Immigration Rules or an
Article 8 ECHR claim where there is a realistic prospect that such an application
or claim would succeed.

An Appendix FM application, or Article 8 ECHR claim, will be considered to
have a realistic prospect of success where the applicant has family life in the
UK with a British citizen and there is no apparent reason why such an
application or claim would be refused.

Our records show that you have never made an attempt to regularise your
status in the UK through an application under Appendix FM and your family life
in the UK has not previously been considered under Article 8 ECHR.

It is currently considered that such an application or claim has a realistic
prospect of success in your case because it is accepted, for the purposes of
your EU Settlement Scheme application, that you are the primary carer of a
British citizen child and because there is no apparent reason why an Appendix
FM application or Article 8 ECHR claim would be refused."

I will accept the advice and apply under the FLR (FM) (Parent) route.

Given Zambrano is such a unique category, I believe most applicants will qualify for FLR route, so their EUSS applications are likely to be refused. Not sure why it should take such a long time to conclude the decision process if the guidance is clear.

But I wish the best for anyone still waiting for a decision and hope that you get the status you applied for.

(P.S. is there a forum specifically for the FLR parent (10-year) route that I can take tips from?)

[lolwe]

All,

We are a non-EEA family and I had submitted paper applications for myself, my wife and daughter in October 2019, as my son has British citizenship.

Since my current T2 leave to remain is about to expire, I had written to my MP for intervention and I got the decision from EUSS Resolution Centre over email within 2 weeks of writing to the MP.

I will accept the advice and apply under the FLR (FM) (Parent) route.

Given Zambrano is such a unique category, I believe most applicants will qualify for FLR route, so their EUSS applications are likely to be refused. Not sure why it should take such a long time to conclude the decision process if the guidance is clear.

The Zambrano category is only 'unique' because the Home Office discriminate against single mothers who are mostly from Black and Asian backgrounds.

About 40% of Zambrano applications are approved. This approval rate shows the Home Office is NOT applying their EUSS rules in a consistent manner. Their approach is discriminatory and therefore unlawful.

There is nothing in the EU rules that says you can not be a Zambrano carer and have leave to remain under another part of the immigration rules. If you have leave to remain under Appendix FM, that does not mean you are not a Zambrano carer.

The Home Office want you to apply for leave to remain so that you will not qualify under EUSS. I would challenge the refusal, if I were you. Many people in your situation are challenging the refusal. When one wins, everyone should win. I would prefer to be covered under the EU settlement scheme over Appendix FM. But it is your choice.

It took long to conclude your decision because their refusal is open to challenge in court. They wanted to reduce the chances you would challenge the decision, which is why they take 5 days for EU applicants and years for Zambrano carers.

Article 8 of the European Convention on Human Rights is not a "route" is a right given to people who live in countries that have agreed to the Convention. Article 8 applies even to the EUSS scheme.

The UK has left the Charter on Fundamental Rights, as it has left the EU. The UK is now considering leaving the Council of Europe, which implemented the European Convention on Human Rights. The review is due to be published in the summer of 2021.

If the UK leaves the Council of Europe, and your family's stay is based on Article 8, how do you think that will affect your immigration status in the UK? Have you reviewed whether or not you and your wife qualify under the 5 year route or the 10 year route? I would be particularly concerned under the 10 year route.

[SPooky2020]

All,

We are a non-EEA family and I had submitted paper applications for myself, my wife and daughter in October 2019, as my son has British citizenship.

Since my current T2 leave to remain is about to expire, I had written to my MP for intervention and I got the decision from EUSS Resolution Centre over email within 2 weeks of writing to the MP.

I will accept the advice and apply under the FLR (FM) (Parent) route.

Given Zambrano is such a unique category, I believe most applicants will qualify for FLR route, so their EUSS applications are likely to be refused. Not sure why it should take such a long time to conclude the decision process if the guidance is clear.

The Zambrano category is only 'unique' because the Home Office discriminate against single mothers who are mostly from Black and Asian backgrounds.

About 40% of Zambrano applications are approved. This approval rate shows the Home Office is NOT applying their EUSS rules in a consistent manner. Their approach is discriminatory and therefore unlawful.

There is nothing in the EU rules that says you can not be a Zambrano carer and have leave to remain under another part of the immigration rules. If you have leave to remain under Appendix FM, that does not mean you are not a Zambrano carer.

The Home Office want you to apply for leave to remain so that you will not qualify under EUSS. I would challenge the refusal, if I were you. Many people in your situation are challenging the refusal. When one wins, everyone should win. I would prefer to be covered under the EU settlement scheme over Appendix FM. But it is your choice.

It took long to conclude your decision because their refusal is open to challenge in court. They wanted to reduce the chances you would challenge the decision, which is why they take 5 days for EU applicants and years for Zambrano carers.

Article 8 of the European Convention on Human Rights is not a "route" is a right given to people who live in countries that have agreed to the Convention. Article 8 applies even to the EUSS scheme.

The UK has left the Charter on Fundamental Rights, as it has left the EU. The UK is now considering leaving the Council of Europe, which implemented the European Convention on Human Rights. The review is due to be published in the summer of 2021.

If the UK leaves the Council of Europe, and your family's stay is based on Article 8, how do you think that will affect your immigration status in the UK? Have you reviewed whether or not you and your wife qualify under the 5 year route or the 10 year route? I would be particularly concerned under the 10 year route.

Hi @lolwe,

Thanks for the encouraging reply, but going by the paragraph from the decision letter quoted below, I can't be considered for EUSSS Zambrano route if there is an alternative available:

"An EU Settlement Scheme application based on a Zambrano right to reside will be refused where there is a realistic prospect that an application for leave to remain under Appendix FM to the Immigration Rules, or otherwise relying on Article 8 (the right to respect for private and family life) of the European
Convention on Human Rights (ECHR), would succeed."

I suspect the EUSS decisions are influenced by the applicant's nationality and ethnic background, economic status and whether they can afford alternative means to obtain leave to remain.

I would have definitely preferred to be covered under EUSS rather than taking the more expensive and longer route to settlement, however, my current situation doesn't favour me. I am on T2 ICT, which expires in 6 weeks' time, and My T2 ICT sponsorship is unlikely to be extended when it expires. I have been in and out of furlough in the recent months, and am fast running out of my savings. And without a valid Leave to remain which would allow me to work and change jobs I cannot sustain here with my family.

So, basically, I don't have the time nor the resources to challenge the decision. Unfortunately, my experience with immigration lawyers also hasn't been great and I am not sure whether I will get the decision overturned even if I spend on legal fees while staying without valid right to work (read unemployed and without benefits).

I have not considered the future of Article 8, but in these uncertain times, I just can't see beyond the next quarter. Even if the 10-year parent route looks like a long-term trap, I know I will be short-sighted to apply in this category just so I can avoid dire circumstances. Unless, of course, I decide to leave the UK for good.

[lolwe]

ECxit and Appendix FM

The UK may withdraw from the Council of Europe and therefore withdraw from the European Convention on Human Rights (ECHR). This withdrawal from the ECHR is known as ECxit. Appendix FM is based on Article 8 of the European Convention on Human Rights. If Article 8 goes, Appendix FM may likely go, too.

BACKGROUND
The UK was a founding member of the Council of Europe in 1949 and an early signatory of the European Convention on Human Rights in 1950. The UK is one of the five largest financial contributors to the Council of Europe. The most well-known Council of Europe institution is the European Court of Human Rights. A UK delegation is sent to Strasbourg. The procedure for selecting the UK delegation is by Prime Ministerial appointment.

QUOTES

No mature democracy has done more to destabilise the Council of Europe in recent years than the UK

As Home Secretary before the referendum vote, Teresa May advocated UK withdrawal from the ECHR (known as ‘ECxit’). She later changed her mind because ECxit lacked sufficient Parliamentary support. Today, the Conservatives have a majority of about 80 MPs.

Conservatives want to replace the Human Rights Act with a "British Bill of Rights".

[lolwe]

All,

We are a non-EEA family and I had submitted paper applications for myself, my wife and daughter in October 2019, as my son has British citizenship.

Since my current T2 leave to remain is about to expire, I had written to my MP for intervention and I got the decision from EUSS Resolution Centre over email within 2 weeks of writing to the MP.

I will accept the advice and apply under the FLR (FM) (Parent) route.

Given Zambrano is such a unique category, I believe most applicants will qualify for FLR route, so their EUSS applications are likely to be refused. Not sure why it should take such a long time to conclude the decision process if the guidance is clear.

The Zambrano category is only 'unique' because the Home Office discriminate against single mothers who are mostly from Black and Asian backgrounds.

About 40% of Zambrano applications are approved. This approval rate shows the Home Office is NOT applying their EUSS rules in a consistent manner. Their approach is discriminatory and therefore unlawful.

There is nothing in the EU rules that says you can not be a Zambrano carer and have leave to remain under another part of the immigration rules. If you have leave to remain under Appendix FM, that does not mean you are not a Zambrano carer.

The Home Office want you to apply for leave to remain so that you will not qualify under EUSS. I would challenge the refusal, if I were you. Many people in your situation are challenging the refusal. When one wins, everyone should win. I would prefer to be covered under the EU settlement scheme over Appendix FM. But it is your choice.

It took long to conclude your decision because their refusal is open to challenge in court. They wanted to reduce the chances you would challenge the decision, which is why they take 5 days for EU applicants and years for Zambrano carers.

Article 8 of the European Convention on Human Rights is not a "route" is a right given to people who live in countries that have agreed to the Convention. Article 8 applies even to the EUSS scheme.

The UK has left the Charter on Fundamental Rights, as it has left the EU. The UK is now considering leaving the Council of Europe, which implemented the European Convention on Human Rights. The review is due to be published in the summer of 2021.

If the UK leaves the Council of Europe, and your family's stay is based on Article 8, how do you think that will affect your immigration status in the UK? Have you reviewed whether or not you and your wife qualify under the 5 year route or the 10 year route? I would be particularly concerned under the 10 year route.

Hi @lolwe,

Thanks for the encouraging reply, but going by the paragraph from the decision letter quoted below, I can't be considered for EUSSS Zambrano route if there is an alternative available:

"An EU Settlement Scheme application based on a Zambrano right to reside will be refused where there is a realistic prospect that an application for leave to remain under Appendix FM to the Immigration Rules, or otherwise relying on Article 8 (the right to respect for private and family life) of the European
Convention on Human Rights (ECHR), would succeed."

I suspect the EUSS decisions are influenced by the applicant's nationality and ethnic background, economic status and whether they can afford alternative means to obtain leave to remain.

I would have definitely preferred to be covered under EUSS rather than taking the more expensive and longer route to settlement, however, my current situation doesn't favour me. I am on T2 ICT, which expires in 6 weeks' time, and My T2 ICT sponsorship is unlikely to be extended when it expires. I have been in and out of furlough in the recent months, and am fast running out of my savings. And without a valid Leave to remain which would allow me to work and change jobs I cannot sustain here with my family.

So, basically, I don't have the time nor the resources to challenge the decision. Unfortunately, my experience with immigration lawyers also hasn't been great and I am not sure whether I will get the decision overturned even if I spend on legal fees while staying without valid right to work (read unemployed and without benefits).

I have not considered the future of Article 8, but in these uncertain times, I just can't see beyond the next quarter. Even if the 10-year parent route looks like a long-term trap, I know I will be short-sighted to apply in this category just so I can avoid dire circumstances. Unless, of course, I decide to leave the UK for good.

Hi SPooky2020, The sentence you quote from the Home Office is unlawful. Judges have said this position is unlawful. The Home Office is careful to not ban everyone from a particular ethnic background or socio-economic status, as it would be very easy to prove discrimination in court. They choose to approve a small percentage from every area to make it seem as if they are being fair. Their goal is to substantially reduce the numbers overall.

You were granted a Certificate of Application when you applied to the EUSS? If you challenge your refusal in the First Tier Tribunal, your CoA remains valid while your case is pending before the court. You could file a claim today online with the First Tier Tribunal for £80. You may even qualify for a fee waiver and file for free. Who knows? The judge may look at your claim and make a decision before your T2 ICT sponsorship runs out. In terms of time, you can complete the online form in about one hour, with help from this forum.

[Haid3]

Good evening everyone
Does anyone know the email for requesting a COA? Thanks

Call to resolution centre.
i did i and they snt it ti me with in a week

[SPooky2020]

All,

We are a non-EEA family and I had submitted paper applications for myself, my wife and daughter in October 2019, as my son has British citizenship.

Since my current T2 leave to remain is about to expire, I had written to my MP for intervention and I got the decision from EUSS Resolution Centre over email within 2 weeks of writing to the MP.

I will accept the advice and apply under the FLR (FM) (Parent) route.

Given Zambrano is such a unique category, I believe most applicants will qualify for FLR route, so their EUSS applications are likely to be refused. Not sure why it should take such a long time to conclude the decision process if the guidance is clear.

The Zambrano category is only 'unique' because the Home Office discriminate against single mothers who are mostly from Black and Asian backgrounds.

About 40% of Zambrano applications are approved. This approval rate shows the Home Office is NOT applying their EUSS rules in a consistent manner. Their approach is discriminatory and therefore unlawful.

There is nothing in the EU rules that says you can not be a Zambrano carer and have leave to remain under another part of the immigration rules. If you have leave to remain under Appendix FM, that does not mean you are not a Zambrano carer.

The Home Office want you to apply for leave to remain so that you will not qualify under EUSS. I would challenge the refusal, if I were you. Many people in your situation are challenging the refusal. When one wins, everyone should win. I would prefer to be covered under the EU settlement scheme over Appendix FM. But it is your choice.

It took long to conclude your decision because their refusal is open to challenge in court. They wanted to reduce the chances you would challenge the decision, which is why they take 5 days for EU applicants and years for Zambrano carers.

Article 8 of the European Convention on Human Rights is not a "route" is a right given to people who live in countries that have agreed to the Convention. Article 8 applies even to the EUSS scheme.

The UK has left the Charter on Fundamental Rights, as it has left the EU. The UK is now considering leaving the Council of Europe, which implemented the European Convention on Human Rights. The review is due to be published in the summer of 2021.

If the UK leaves the Council of Europe, and your family's stay is based on Article 8, how do you think that will affect your immigration status in the UK? Have you reviewed whether or not you and your wife qualify under the 5 year route or the 10 year route? I would be particularly concerned under the 10 year route.

Hi @lolwe,

Thanks for the encouraging reply, but going by the paragraph from the decision letter quoted below, I can't be considered for EUSSS Zambrano route if there is an alternative available:

"An EU Settlement Scheme application based on a Zambrano right to reside will be refused where there is a realistic prospect that an application for leave to remain under Appendix FM to the Immigration Rules, or otherwise relying on Article 8 (the right to respect for private and family life) of the European
Convention on Human Rights (ECHR), would succeed."

I suspect the EUSS decisions are influenced by the applicant's nationality and ethnic background, economic status and whether they can afford alternative means to obtain leave to remain.

I would have definitely preferred to be covered under EUSS rather than taking the more expensive and longer route to settlement, however, my current situation doesn't favour me. I am on T2 ICT, which expires in 6 weeks' time, and My T2 ICT sponsorship is unlikely to be extended when it expires. I have been in and out of furlough in the recent months, and am fast running out of my savings. And without a valid Leave to remain which would allow me to work and change jobs I cannot sustain here with my family.

So, basically, I don't have the time nor the resources to challenge the decision. Unfortunately, my experience with immigration lawyers also hasn't been great and I am not sure whether I will get the decision overturned even if I spend on legal fees while staying without valid right to work (read unemployed and without benefits).

I have not considered the future of Article 8, but in these uncertain times, I just can't see beyond the next quarter. Even if the 10-year parent route looks like a long-term trap, I know I will be short-sighted to apply in this category just so I can avoid dire circumstances. Unless, of course, I decide to leave the UK for good.

Hi SPooky2020, The sentence you quote from the Home Office is unlawful. Judges have said this position is unlawful. The Home Office is careful to not ban everyone from a particular ethnic background or socio-economic status, as it would be very easy to prove discrimination in court. They choose to approve a small percentage from every area to make it seem as if they are being fair. Their goal is to substantially reduce the numbers overall.

You were granted a Certificate of Application when you applied to the EUSS? If you challenge your refusal in the First Tier Tribunal, your CoA remains valid while your case is pending before the court. You could file a claim today online with the First Tier Tribunal for £80. You may even qualify for a fee waiver and file for free. Who knows? The judge may look at your claim and make a decision before your T2 ICT sponsorship runs out. In terms of time, you can complete the online form in about one hour, with help from this forum.

Hi lolwe,

Thanks for this helpful reply. I do have the COA from my EUSS application, which was issued in October of last year.

If I want to challenge the refusal in the First Tier Tribunal, what will it be based on?
You say the statement in the quote is unlawful? Is there a judgment that has confirmed this to be unlawful? Is there precedence for such challenges resulting in decisions being overturned?

On a related note, is there a window when I can file a claim? It just so happens that today is the 28th day since I received my decision (on 24th Nov) via email. I had given up on the decision so did not bother to seek an AR. Is it too late to file a claim?

Do I have to file a claim separately for each of the 3 decisions (for myself, my wife and daughter's)?

Could you please share details on the process to appeal? Is there any way to speak/discuss over a call?

Apologies for the barrage of question

[Chris90]

Hi all,

Once again. In the realm of legally home office has no legs to stand on in the stilly refusal given to most of us.

You will have to decide which route you are exercising and stick to it it, should you decide Zambrano (derivative) put your case in line with what a judge would need to allow your appeal.

There is no need, time to second guess or doubt. ONLY A JUDGE can tell us we are not Zambrano carers. Should you meet the derivative leave to remain requirements, not even the judge can deny you this... Without making an error of law.

The supreme court did not tell shah to exercise domestic (appendix FM /human rights) first. The caselaw books allows Zambrano carers to appeal and win, so does the requirements of the EEA REGULATIONS 2016.

Enforce your rights if this is your choice......do not ask.. ENFORCE and leave the rest to the tribunal judges.

Home office knows they in the wrong in the eyes of the law, this why they reminding us of appendix FM like it's made of gold telling us it's likely to be successful

Rights do not work the way home office would like us to believe, it always guaranteed if you met the requirements. REMEMBER THIS...

Do not allow home office the take away the few rights non EU residents manage to obtain over the years.

Best regards

[lolwe]

Hi lolwe,

Thanks for this helpful reply. I do have the COA from my EUSS application, which was issued in October of last year.

If I want to challenge the refusal in the First Tier Tribunal, what will it be based on?
You say the statement in the quote is unlawful? Is there a judgment that has confirmed this to be unlawful? Is there precedence for such challenges resulting in decisions being overturned?

On a related note, is there a window when I can file a claim? It just so happens that today is the 28th day since I received my decision (on 24th Nov) via email. I had given up on the decision so did not bother to seek an AR. Is it too late to file a claim?

Do I have to file a claim separately for each of the 3 decisions (for myself, my wife and daughter's)?

Could you please share details on the process to appeal? Is there any way to speak/discuss over a call?

Apologies for the barrage of question

Hi Spooky2020, We will just go through your questions on this thread. Many other people will have the same questions, as they will have received the same refusal letter. Also, if I enter something incorrectly, other people can catch the error.

FIRST, THE EASY QUESTIONS
My understanding is that you don't have to file an Admin Review. You can file a claim directly with the First Tier Tribunal. You can file one claim for your family. You have 14 days to appeal from the date the decision was sent. If you apply after the deadline, you must explain why - the tribunal will decide if it can still hear your appeal.

How to file

• General Overview - https://www.gov.uk/immigration-asylum-t ... hin-the-uk

• A decision to deport you, refuse or revoke your status, or vary the length or condition of your stay under the EU Settlement Scheme - https://immigrationappealsonline.justic ... k/IACFees/

THE HARDER QUESTIONS
The key question you must answer is whether or not you and your wife are Zambrano carers. Feel free to add as much evidence as you can to prove this point. (Copies only, as you may not get your originals back).

The second point, concerns the lawfulness of their refusal. Your refusal letter is a template that has been sent to hundreds, if not thousands of Zambrano carers. The First Tier Tribunal judge will look at your refusal letter and make a decision fairly quickly about this type of refusal, because he or she has almost certainly seen it before. So, how do you argue their refusal is unlawful?

Ideally, I would provide you with a list of references. Unfortunately, I can not provide website addresses on this forum. I include quotes that you can google.

The amended aspects of the Guidance when read in their entirety and in conjunction with the caselaw it seeks to rely upon, have never made any sense and on publication 8 months ago, appeared to have been hurriedly drafted, imposed upon the public, with Home Office decision-makers doggedly and blindly applying it to refuse Zambrano applications

BACKGROUND
The Home Office Policy Guidance, Derivative rights of residence, published on 2nd May 2019 states at page 52: “A derivative right to reside is only available to an applicant who has no other means to remain lawfully in the UK as the primary carer of a dependent British citizen, or a dependent of that primary carer..."

GROUNDS / THE CHALLENGE

1.) Following the Supreme Court Judgement in Patel v Secretary of State for the Home Department [2019] UKSC 59 (16 December 2019):

a.) The offending parts of the Guidance have no basis in law, be it EU law or caselaw. Therefore, the Guidance should no longer continue in existence in the public domain in its current form.

b.) The circumstances of this case made it even more critical that a right of residence be granted to the Appellants as on the facts the compulsion test has been satisfied.

c.) The outcome in Shah in the Supreme Court did mean that a third country national primary carer parent, who is in a relationship with a British citizen partner, is able to rely upon a Zambrano application as opposed to an application under Appendix FM, where the requisite level of relationship of dependency with their British citizen child is fulfilled and the quality of that relationship is a relevant factor in determining whether the child is compelled to leave the EU. In Mr Shah’s appeal the overarching question was whether the son would be compelled to leave with his father, who was his primary carer, because of his dependency on his father. In answering that question, the Supreme Court had to take into account the child’s bests interests and his relationship with each parent. The FTT found the son would be compelled to leave. That was held to be sufficient compulsion for the purposes of Zambrano and Mr Shah’s appeal was allowed.

2.) The SSHD's reliance upon Chavez-Vilchez v Raad van bestuur van de Sociale verbekeringsbank (Case C-133/15) [2018] QB 103 before the CJEU is not relevant. It concerned cases of separated parents where the Union citizen parent was not the primary carer.

3.) Reliance by the Secretary of State on her Policy Guidance could not stand, having regard to the principles arising in KA v Belgium (Case C-82/16) [2018] 3 CMLR 28, on the correct interpretation of Article 20 of TFEU. This decision establishes that automatic refusal decisions undermine the effectiveness of Article 20 TFEU.

4.) The Secretary of State appeared to be seeking to rely upon a Home Office Policy Guidance “Free Movement; Derivative Rights of Residence, Version 5.0, 2nd May 2019, which appears to be based upon the Court of Appeal decision in Patel v SSHD [2017] EWCA Civ 2028, which in turn appears to have been recently considered by the Supreme Court in Patel v Secretary of State for the Home Department UKSC59(16 December 2019). Furthermore, the Court of Appeal decision relies on the 2006 EEA Regulations as opposed to the more recent 2016 EEA Regulations. The new regulations do not prohibit Zambrano carers from having leave to remain.

CONCLUSIONS
The Secretary of State’s decision was not in accordance with the evidence and the law as enshrined in the EEA Regulations. No evidence or legal authority had been filed by the Secretary of State to establish that a Derivative Right to Reside is a “right of last resort” and the Appellants should exhaust Article 8 remedies before applying under the EEA Regulations. Nothing contained within the EEA Regulations which stipulates/requires that an applicant must exhaust all other means to remain lawfully in the United Kingdom under “domestic immigration law”.

[lolwe]

The SSHD should treat all Zambrano carers the same. Either everyone must first apply for leave to remain, or no one should be forced to apply first for leave to remain under Appendix FM.

Shah (& Patel) v SSHD
The EEA Regulations in 2006 said a Zambrano carer could not have leave under another part of the Immigration Rules. The Court of Appeal relied on the EEA Regulations 2006. They said the Zambrano right is a right of last resort. The updated 2016 EEA Regulations do not say Zambrano carers can not also have leave to remain. The Supreme Court overruled the Court of Appeals in December 2019.

Mohamed v SSHD
Judge Lever of the First Tier Tribunal read the Court of Appeal's ruling in Shah v SSHD. Judge Lever said the Zambrano right is a right of last resort. Judge Lever had not seen the Supreme Court ruling. Judge Lever ruled against Mohamed and the Home Office won.

Mohamed then appealed his loss to the Upper Tribunal. Judge Grubb of the Upper Tribunal said that Judge Lever was wrong to say the Zambrano right is a right of last resort. Judge Grubb said Judge Lever had not seen the Supreme Court's ruling, so it was not 100% Judge Lever's fault for making that mistake.

Here is a direct quote from Judge Grubb

There is one further point on the ground relying on the Supreme Court's decision in Patel and Shah. The grounds are also critical of Judge Lever's adoption of the Court of Appeal's comment (at [78]) that a derivative right is a right of last resort. 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. Of course, if the individual, in fact, has a right to remain in the UK (say under the Immigration Rules) then the derivative right based upon him leaving the UK and that his British citizen child will be compelled to leave with him would fall away.

Per Judge Neville's ruling of the First Tier Tribunal

The Secretary of State reasoned that a derivative right to reside is a right of last resort which only applies if a person has no other means to remain lawfully in the UK. In doing so, she sought to gain assistance from the Court of Appeal judgment in Patel v SSHD [2017] EWCA Civ 2028).

This would mean that a Zambrano application must be refused if the applicant:

• has never made an application under Appendix FM to the Immigration Rules or any other Article 8 ECHR claim, where that avenue is available;

• has been refused under Appendix FM or Article 8 ECHR but their circumstances have changed since the decision was made – for example, the applicant applied on the basis of their relationship with a British spouse, but the couple now have a British child.

Further, the Secretary of State also argued that someone holding leave to remain under domestic law would not benefit from a derivative right to reside. She sourced the above principles from Patel. The FtT rejected this contention and held that the Respondent’s interpretation ‘cannot survive the actual legal principles engaged nor, in any event, would her interpretation of the law provide a sound basis for the requirement imposed by the guidance’ [28].

The FtT agreed that Patel, properly read, offers no support for either proposition. The judge ruled that the Respondent’s guidance contained legal principles which were ‘unsupported by, and in some cases completely at odds with, previous authority’ [46].

This is because Zambrano is concerned with the circumstances in which a TCN will have a right of residence under EU law, and in particular Article 20 of the Treaty on the Functioning of the European Union (‘TFEU’):

1. Citizenship of the Union is hereby established. Every person holding the nationality of a member state shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.
2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:

a) the right to move and reside freely within the territory of the member states; …

Therefore, the obligation and the jurisdiction to grant residence follows Art.20.There was thus a distinct separation between EU law, and other provisions such as the ECHR, to form ‘two sources of protection’ [32]. In the learned judge’s opinion, the correct approach to take in determining Issue 1 was as follows:-

Is there a derivative right of residence as defined by Zambrano? If not;
Would removal be contrary to the right for respect for the TCN’s family and private life afforded by Article 8 ECHR?

As such, the Respondent’s guidance (and their application of their guidance) erred in law as it is predicated on testing whether the TCN is being compelled to leave the EU, rather than testing what would happen if he or she were so compelled.

In summary,
Judge Grubb of the Upper Tribunal and Judge Neville of the First Tier Tribunal both read the Supreme Court ruling and said it means that the Zambrano right is NOT a right of last resort. Nonetheless, some judges in the First Tier Tribunal and Upper Tribunal may still disagree with them.

[SPooky2020]

Hi lolwe,

Thank you very much for the detailed explanation for the appeal process as well as the details of the judgments. I am grateful to you for having taken the time to put together this information. I am sure many users of this thread will benefit from this post.

My decision letter indicates that I could request an AR, but doesn't say that it is an appealable decision. So, I doubt that I have the option to file a claim with the First Tier tribunal.

Having said that, I revisited the caseworker guidance for the EUSS applications for Zambrano carers. I noticed that paragraphs or several parts of the text on my decision letter have been lifted straight from the pages on the guidance document, specifically from under the heading "Stage 4: British citizen unable to reside in the UK or the EEA".

The quoted statement in a previous post that you said to be unlawful is the same that forms the basis for caseworkers to refuse applications and denies the "Zambrano carer" status for anyone who has any chance of success with Appendix FM.
Refer page 23 of https://assets.publishing.service.gov.u ... gov-uk.pdf

So, if Judge Grubb overrides Judge Lever, why has the caseworker guidance not been amended? Is this deliberate and intended to get every refused applicants to take the legal route to challenge the Home Office, knowing well that not many will go through the hassle?

[lolwe]

Hi lolwe,

Thank you very much for the detailed explanation for the appeal process as well as the details of the judgments. I am grateful to you for having taken the time to put together this information. I am sure many users of this thread will benefit from this post.

My decision letter indicates that I could request an AR, but doesn't say that it is an appealable decision. So, I doubt that I have the option to file a claim with the First Tier tribunal.

Having said that, I revisited the caseworker guidance for the EUSS applications for Zambrano carers. I noticed that paragraphs or several parts of the text on my decision letter have been lifted straight from the pages on the guidance document, specifically from under the heading "Stage 4: British citizen unable to reside in the UK or the EEA".

The quoted statement in a previous post that you said to be unlawful is the same that forms the basis for caseworkers to refuse applications and denies the "Zambrano carer" status for anyone who has any chance of success with Appendix FM.
Refer page 23 of https://assets.publishing.service.gov.u ... gov-uk.pdf

So, if Judge Grubb overrides Judge Lever, why has the caseworker guidance not been amended? Is this deliberate and intended to get every refused applicants to take the legal route to challenge the Home Office, knowing well that not many will go through the hassle?

The Home Office is not going to encourage you to file a legal claim against them. They are going to use language that is vague and discourages you from going forward. You are not the first person to ask this question.

It is up to you to do the research to understand that their refusal is appealable. You have been refused under the EU Settlement Scheme. That refusal is appealable as per the First Tier Tribunal (Immigration)'s website https://www.gov.uk/immigration-asylum-t ... hin-the-uk. You can also call the First Tier Tribunal. They will confirm that you are eligible to appeal your refusal.

A decision to deport you, refuse or revoke your status, or vary the length or condition of your stay under the EU Settlement Scheme

The caseworker guidance has not been amended because no one has filed a legal challenge to force the Home Office to change the guidance. The courts can only respond to a claim that has been filed. Zambrano carers are often vulnerable and lack the financial means to hire lawyers to fight these battles. Many of the law firms that would have challenged the Home Office guidance went under during David Cameron's administration. The government stopped their funding.

That is why you see so many people on here encouraging you to file. There is no calvary. No hero exists for Zambrano carers. Zambrano carers must file individually in the court.


Contact the First-tier Tribunal (Immigration and Asylum)
General enquiries
First-tier Tribunal (Immigration and Asylum Chamber)
PO Box 6987
Leicester
LE1 6ZX
United Kingdom

Email

customer.service@justice.gov.uk

Telephone

+44 (0) 300 123 1711
Urgent appeals
Expedite Requests The First-Tier Tribunal
Office of the Duty Judge
Expedited Appeal Hearing Requests
First-tier Tribunal (Immigration and Asylum Chamber)
PO Box 6987
Leicester
LE1 6ZX
United Kingdom

Email

customer.service@justice.gov.uk

Find your nearest tribunal

https://courttribunalfinder.service.gov.uk/search/

[lolwe]

Further grounds to challenge / background information.

The UK is a member of the Council of the European Union until 31 December 2020. The Council of the European Union is not the same thing as the Council of Europe. The UK remains a member of the Council of Europe after Brexit, although the UK is reconsidering its membership, with an announcement due in the summer of 2021 (after the EUSS application deadline).

The Council of the European Union has its own human rights, called the Charter of Fundamental Rights. Zambrano carers care about Article 7 (right to family life) and article 24 (best interests of the child). If a member of the Council of the European Union breaches or does not follow the Charter of Fundamental Rights, individuals can apply to the Court of Justice of the European Union. That is what Ruiz Zambrano did.

APPLIES UNTIL 31 December 2020 - THEN SEE EUROPEAN COURT OF HUMAN RIGHTS, EUROPEAN CONVENTION ON HUMAN RIGHTS ( ARTICLE 8 ) AND THE COUNCIL OF EUROPE

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION (The Charter)

• some rights in the Charter are not in the ECHR

• The EU Charter goes further than the ECHR

• just 15 out of 50 articles (30%) have an equivalent protection in the ECHR

• As part of the Brexit negotiations, the UK has chosen not to incorporate the EU Charter of Fundamental Rights into domestic law

• the EU Withdrawal Bill excludes the EU Charter of Fundamental Rights

• brings together the fundamental rights of everyone living in the European Union (EU)

• applies to Member States only when they are implementing EU law

• was drafted by the EU

• is interpreted by the Court of Justice of the European Union (CJEU)

• is indirectly incorporated into the Lisbon Treaty

• Article 7 of the Charter protects the right to family life

• came into force of the Treaty of Lisbon on 1st December 2009

COURT OF JUSTICE OF THE EUROPEAN UNION (CJEU) or (ECJ)

• decided the Zambrano case (C-34/09)

• is based in Luxembourg

• ensures compliance with the law in the interpretation and application of the European Treaties of the European Union

THE COUNCIL OF THE EUROPEAN UNION

The Council of the European Union approves EU legislation. It is made up of ministerial representatives of the governments of all EU member states. It is an institution of the European Union, consisting of the heads of state or government from the member states together with the President of the European Commission, for the purpose of planning Union policy.

LISBON TREATY
The Lisbon Treaty requires the European Union to follow the European Convention on Human Rights.

REFERENCES
https://echr.coe.int/Documents/Your_Application_ENG.pdf
https://echr.coe.int/Documents/Case_pro ... rt_ENG.pdf
https://www.europarl.europa.eu/charter/pdf/text_en.pdf

[Spirit007]

Hi guys,

In applying for Zambrano, how can one go about proving parental responsibilities for a step parent other than; court orders/guardianship arrangements or step-parent parental responsibility agreement?

[lolwe]

Hi guys,

In applying for Zambrano, how can one go about proving parental responsibilities for a step parent other than; court orders/guardianship arrangements or step-parent parental responsibility agreement?

Your question lacks the appropriate detail and/or context.

[lolwe]

The EU will work with the UK on security - but only if the Tories behave on human rights

From the Mirror News Magazine:

A big issue in negotiations - and one where both the EU and UK were keen to work together - was on security, and tackling cross border organised crime and terrorism.

However, Brussels has set a major condition on this agreement - the Tories must observe their commitments to the European Convention on Human Rights.

The Commission said: "The security cooperation can be suspended in case of violations by the UK of its commitment for continued adherence to the European Convention of Human Rights and its domestic enforcement."

It comes after the Conservatives confirmed that they were launching a review of the Human Rights Act which gives the ECHR force in UK law.