Zambrano Settled Status EU settlement scheme Paper Application Form - NEW

[Miss-Suz]

And also why would they give me a right of appeal knowing that Zambrano won’t exit no more after the 31/12?
I am trying to understand this
They should say in their letter that we are refusing you and you cannot appeal this decision as this route will no longer exit as we are approaching the deadline.

[Miss-Suz]

It’s just confusing

[lolwe]

My understanding is that, if one applied before the deadline they should normally be issuing a card if they are successful even after the 31st
Why would they still accept application? On to the government website the link for derivative card is still available. But they state that one can no longer apply after the 31/12

The Home Office have to keep operating as if they are in the EU until 31 December 2020. The Courts also have to keep operating under normal rules until 31 December 2020.

After 31 December 2020, the Courts will no longer have the authority to process these Zambrano applications unless the Brexit deal specifically allows them to do so.

Submit your DRF1 appeal if the cost does not bother you. I wouldn't spend too much time on a DRF1 appeal, though. The judges have seen your type of refusal letter for the past two years, or so. The key is proving you are a Zambrano carer.

Your DRF1 argument should be the same as your EUSS appeal. The point I am trying to make is that the card is simply not valid after 31 December 2020 for anything other than to make an application under EUSS.

DRF1 Appeals.

1.) Convince the judge that the answers to these two questions is YES:
a.) Is there a relationship of dependency between the Zambrano carer and the child?
b.) If the Zambrano carer left the UK, would the child be forced to also leave the UK?

2.) Tell the judge that the Supreme Court said that the correct question is whether the British child would leave the UK, if the parent left the UK.

3.) Explain to the judge that the 'right of last resort' argument raised by the Home Office is wrong. The issue of whether the Zambrano carer "could" apply for leave to remain under the Immigration Rules is irrelevant, with regard to the "Zambrano test".

[lolwe]

And also why would they give me a right of appeal knowing that Zambrano won’t exit no more after the 31/12?
I am trying to understand this
They should say in their letter that we are refusing you and you cannot appeal this decision as this route will no longer exit as we are approaching the deadline.

By law, they must offer you a right of appeal. The Withdrawal Agreement applies until 31 December 2020. You might as well file your DRF1 appeal. Hopefully, the Court will give you a refund if they decide not to process your DRF1 appeal. They couldn't say anything because the Brexit agreement was under negotiation as recently as 23 December 2020.

[Miss-Suz]

And also why would they give me a right of appeal knowing that Zambrano won’t exit no more after the 31/12?
I am trying to understand this
They should say in their letter that we are refusing you and you cannot appeal this decision as this route will no longer exit as we are approaching the deadline.

By law, they must offer you a right of appeal. The Withdrawal Agreement applies until 31 December 2020. You might as well file your DRF1 appeal. Hopefully, the Court will give you a refund if they decide not to process your DRF1 appeal. They couldn't say anything because the Brexit agreement was under negotiation as recently as 23 December 2020.

Thank you Lolwe

[Miss-Suz]

I am just laughing right now, I read again the DRF1 refusal letter and the case worker who refused my EUSS application is the exact same person who refused again my DRF1

I thought EU settlement applications was completely different department!!

[lolwe]

I am just laughing right now, I read again the DRF1 refusal letter and the case worker who refused my EUSS application is the exact same person who refused again my DRF1

I thought EU settlement applications was completely different department!!

What if the same person signs all Zambrano carer refusals? That would be funny (and creepy).

What if the person doesn't use their real name, because they don't want to go down in history as a bad person

[Miss-Suz]

I am just laughing right now, I read again the DRF1 refusal letter and the case worker who refused my EUSS application is the exact same person who refused again my DRF1

I thought EU settlement applications was completely different department!!

What if the same person signs all Zambrano carer refusals? That would be funny (and creepy).

What if the person doesn't use their real name, because they don't want to go down in history as a bad person

My first correspondence for my EUSS application was with him. He was the one who advised me to reapply for Appendix FM, before they close my case instead of refusing me, that was by email. I would never forget that name as I was so furious when hearing that after 18 months of waiting. He then sent me a refusal letter when I replied saying he has no right to tell me the route to apply for.
Now this letter I just received is signed with the same name.

[lolwe]

I am just laughing right now, I read again the DRF1 refusal letter and the case worker who refused my EUSS application is the exact same person who refused again my DRF1

I thought EU settlement applications was completely different department!!

What if the same person signs all Zambrano carer refusals? That would be funny (and creepy).

What if the person doesn't use their real name, because they don't want to go down in history as a bad person

My first correspondence for my EUSS application was with him. He was the one who advised me to reapply for Appendix FM, before they close my case instead of refusing me, that was by email. I would never forget that name as I was so furious when hearing that after 18 months of waiting. He then sent me a refusal letter when I replied saying he has no right to tell me the route to apply for.
Now this letter I just received is signed with the same name.

Maybe his Christmas bonus is based on the number of Zambrano carers he gets to switch to Appendix FM

[Miss-Suz]

The three “gateways” by which EU law will be retained after the end of the implementation period are as follows:

EU-derived domestic legislation (s.2 EUWA)

EU-derived domestic legislation (i.e. the legislation saved and modified under s.1B) as it stands at the end of the implementation period is retained at the end of that period under s.2 EUWA (as amended by s.25(1)(a) of the 2020 Act).

Direct EU legislation (s.3 EUWA)

This is defined in s.3(2) and includes EU regulations, decisions or tertiary legislation. This direct EU legislation is retained at the end of the implementation period under s.3 EUWA, as amended by s. 25(2) of the 2020 Act. However, s.25(2)(b)(ii) of the 2020 Act introduces some changes to the conditions that were set out in s.3 EUWA for such legislation to be retained. First, EU regulations/decisions/tertiary legislation must have been applicable to and in the UK by virtue of Part 4 of the Withdrawal Agreement. Second, they must not take effect by virtue of the new s.7A or B of the EUWA.[7]

Note that the following do not count as direct EU law after the end of the implementation period:

Anything that becomes part of EU-derived domestic law retained under s.2 (s.3(2)(b)).
Directives (see the definition of “tertiary legislation” in s.20), and the provisions of the Treaties themselves. However, insofar as rights arising under the Treaties are directly effective, they will be retained under s.4 as explained below. Equally, some directly effective rights arising under Directives will be retained under s.4 and/or under s. 2, if they have been transposed into domestic law.
The Charter of Fundamental Rights (s.5(4)). However, “any fundamental rights or principles which exist irrespective of the Charter” are unaffected by this (s.5(4)-(5)).

[Miss-Suz]

Morning everyone,

Lolwe, would you please explain the above to me? As Zambrano is from a derived law, does that mean it is retained?

[Miss-Suz]

Chapter 3: Retained EU law

Introduction

16.Clauses 2–4 set out the general approach of the Bill, which is to make all existing EU and EU-derived law11 part of domestic law post-exit. The Bill creates a novel category of law known as “retained EU law”,12 consisting of three main elements:

“EU-derived domestic legislation” that is saved by clause 2. This includes domestic secondary legislation made under the ECA for the purpose of implementing EU directives.
“Direct EU legislation” that is rendered part of domestic law by clause 3. This includes EU regulations, EU decisions and EU tertiary legislation (e.g. provisions made under regulations and directives) as they had effect in EU law immediately before exit day.
Directly effective EU law that is saved by clause 4. Clause 4 saves directly effective EU law that had effect in the UK by virtue of the ECA and that is not already saved by clause 3. Clause 4 will therefore, for instance, domesticate directly effective treaty provisions and (at least some) provisions in directives that are capable of direct effect.
17.Along with these three categories of “retained EU law”, the Bill makes provision about the post-exit domestic relevance of case law of the Court of Justice of the European Union (CJEU) and general principles of EU law. This gives rise to new domestic categories of “retained EU case law” and “retained general principles of EU law”, both of which are defined in clause 6(7).

18.“Retained EU law” will form a discrete, novel and legally significant category of law. As we concluded in our interim report, “it is imperative, in the interests of legal certainty, that there is maximum clarity as to what counts as retained EU law” on and after exit day.13 In the rest of this chapter, we consider what constitutes retained EU law. In the following chapters, we examine the status of that body of law, the application of the “supremacy principle” to it and its interpretation by the courts.

Types of retained EU law

EU-derived domestic legislation

19.Clause 2(1) provides: “EU-derived domestic legislation, as it has effect in domestic law immediately before exit day, continues to have effect in domestic law on and after exit day.” As we noted in our interim report, clause 2 casts the net very wide in terms of what counts as EU-derived domestic legislation.14 The following are examples of things that will fall within it:

Secondary legislation made under the ECA that implements EU directives or other EU obligations or that otherwise relates to the EU or the European Economic Area (EEA).
Provisions of secondary legislation made under other primary legislation that implement EU directives or other EU obligations or that otherwise relate to the EU or the EEA.
Provisions in Acts of the UK Parliament that implement EU directives or other EU obligations or that otherwise relate to the EU or the EEA.
Provisions in devolved primary and secondary legislation that implement EU directives or other EU obligations or that otherwise relate to the EU or the EEA.
20.Retained EU law will therefore have many different legal forms. This already complex picture is made more complicated as it will not always be clear whether something is or is not retained EU law. Judgement will often have to be brought to bear—ultimately, by the courts—on whether, for instance, a given domestic legal provision relates to the EU or the EEA. One consequence is that some parts of a given piece of domestic primary or secondary legislation might constitute retained EU law, while other parts of the same piece of legislation might not.

21.Most of these categories of domestic legislation would remain in force even without clause 2. Most obviously, provisions in Acts of Parliament—such as the Equality Act 2010—that implement EU obligations would not be repealed or otherwise rendered inoperative either by withdrawal from the EU or by repeal of the ECA. As we concluded in our interim report, clause 2 appears significantly broader than it needs to be.15

22.This has implications when it comes to understanding how the powers to amend retained EU law in clause 7 will work—and, in particular, how far they will extend. (These powers are considered in more detail in Chapter 8.) Clause 7 creates ministerial powers to amend “retained EU law”, which includes, by virtue of clause 6(7), “anything which, on or after exit day, continues to be, or forms part of, domestic law by virtue of section 2.”16 Although legislation that would have continued in force with or without clause 2 cannot continue to be or form part of domestic law “by virtue of” that provision, the Bill provides in clause 14(3) that, in effect, EU-derived domestic legislation is to be treated as continuing to be domestic law “by virtue of” clause 2 irrespective of whether it would have continued to be domestic law anyway. In this way, the Bill captures EU-related domestic legislation and treats it as “retained EU law” even when such domestic legislation does not need to be sustained by the Bill because it would have continued to form part of domestic law in any event. The effect is to inflate the range of domestic law—including primary legislation—in relation to which the ministerial “correction” powers conferred by the Bill can be exercised. This, in turn, raises questions about the constitutional appropriateness of those powers, given that their appropriateness turns in part on the range of domestic legislation that is subject to their exercise. It is not constitutionally necessary or appropriate for primary legislation, which will continue in force in any event, to be treated as “retained EU law” by clause 2 and subject to the powers of amendment in clause 7.

Direct EU legislation

23.Unlike EU directives, directly effective EU law does not need to be implemented by means of domestic transposition. Instead it has direct effect through section 2(1) of the ECA, which provides for direct effect insofar as that is required by the UK’s treaty obligations. Section 2(1) will be repealed, and those treaty obligations will be extinguished, on exit day. For both of those reasons, directly effective EU law that currently has domestic effect under section 2(1) of the ECA would, if it were not for the Bill, cease to have such effect when exit day arrives.

24.Clause 3 saves a number of forms of EU law that are capable of direct effect: namely, most EU regulations, EU decisions and EU tertiary legislation to the extent that such instruments have effect in EU law immediately before exit day. Regulations, directives and tertiary legislation appear to be saved in their entirety, irrespective of whether each individual element of the relevant legislative instrument is directly effective. Whereas clause 2 purports to save many instruments that do not need to be saved, clause 3 bites on EU law that does need to be saved, at least in the short term, for reasons of legal certainty and continuity.

25.The relationship between retained EU law saved by clauses 2 and 3 may become complex. When some or all of an EU decision, EU regulation or piece of EU tertiary legislation is already given effect by a domestic enactment that is saved by clause 2, it does not constitute “direct EU legislation”: it is clause 2, not clause 3, that operates in such circumstances. It is possible, however, to envisage circumstances in which only part of a relevant EU instrument is reflected in domestic legislation. In that scenario, those parts of the EU instrument that are reflected in domestic legislation will be saved (to the extent necessary) by clause 2 while the other elements will be domesticated by operation of clause 3. Thus, post-exit, certain EU instruments may persist in domestic law through the combined effect of clauses 2 and 3, such as some provisions of the Equality Act 2010.

Treaty rights

26.Some EU law that is directly effective, and is given domestic effect by the ECA, falls outside the definition of “direct EU legislation” and is therefore not incorporated into domestic law by clause 3 on exit day. The most significant category of directly effective EU law that is outside the scope of clause 3 is directly effective treaty provisions, which are dealt with by clause 4. It provides that any “rights, powers, liabilities, obligations, restrictions, remedies and procedures” which were recognised and available in domestic law pre-exit by virtue of section 2(1) of the ECA will continue to have domestic effect on and after exit day.

27.Some directly effective treaty provisions create rights that can straightforwardly continue to apply post-exit. This will be the case when treaty rights do not turn on reciprocal commitments and arrangements that presuppose membership of the EU. For instance, Article 157 of the Treaty on the Functioning of the European Union (TFEU) enshrines “the principle of equal pay for male and female workers for equal work or work of equal value”. This right does not depend on EU membership, and treating it as a domestic law right post-exit, on the grounds that it becomes part of retained EU law under clause 4, is unproblematic. Such rights, however, stand in contrast to treaty provisions that do presuppose EU membership or which create rights that are reciprocal in nature. Such rights will make little, if any, sense post-exit. For instance, the Government acknowledges that Article 110 TFEU, which prohibits Member States from using discriminatory taxation measures against products from other Member States, will become domestic law under clause 4.17 However, it is hard to see why or how this law would be retained once the UK has fully left the EU. Similarly, many reciprocal rights—such as the right of EU nationals under Article 49 TFEU to establish and operate a business in another Member State—will become retained EU law under clause 4, but will make little sense post-exit (unless the UK remains part of the single market). Clause 4 will therefore domesticate all directly effective treaty provisions, whether or not they will be capable of meaningful application following exit.

28.The Government acknowledges this in the explanatory notes to the Bill. It lists (on a non-exhaustive basis) articles of the TFEU that will be incorporated into domestic law by clause 4, including several articles that deal with the customs union and the single market.18 However, as the explanatory notes go on to point out, provisions that are domesticated by clause 4 will be “subject to amendment or repeal” using the powers in clause 7, meaning that where a domesticated provision “has no practical application, or makes provision for reciprocal arrangements or rights which no longer exist or are no longer appropriate once the UK has left the EU, statutory instruments can be brought forward to repeal or amend the provisions.”19

29.We heard of concerns about the uncertain future of reciprocal rights.20 The Law Society of Scotland observed that “The explanatory notes state that it is ‘the right itself that is converted not the text of the article’” but in their view “it is very difficult to divorce the right from the text which creates it. Ministers should explain how this actually will work in practice.”21 Sir Keir Starmer told us: “The explanatory notes … tend to suggest that the modification powers in clause 7 would be used to get rid of reciprocal rights … It looks as if the Government are lining up to say that … we need not worry ourselves about how to deal with reciprocal rights, because we are going to get rid of them anyway.”22

30.This uncertain future for reciprocal rights was confirmed by the Government, which wrote:

“This clause deliberately acts as a broad ‘sweeper’ provision. It ensures that, as a starting point, all existing rights which are available in domestic law immediately before exit day as a result of section 2(1) of the ECA will continue to be available in our domestic law after we exit the EU … As with any other element of retained EU law, these rights may require amendment in order to function clearly and effectively in domestic law after our exit. The Government will consider how these rights can be given effect to in the context of our exit from the EU on a case-by-case basis ahead of exit day.”23

31.The Solicitor General, Robert Buckland QC MP, added that the Government was offering “further reassurance” in the form of paragraph 13(b) of schedule 7 to the Bill, which makes:

“provision for regulations to be made so as to make any provision that restates retained EU law to be clearer and more accessible. For example, some of these directly effective rights, whose wording might appear to be a bit weird because we are no longer a member, can be amended to make them understandable and accessible to retain their force. In other words, there can be reassurance that we are not going to tamper with them; we are just going to ensure that they are as clear as possible.”24

32.Clause 4 also extends to (at least some) directly effective provisions contained in EU directives. Directives do not have direct effect in the same sense as EU regulations, EU decisions and some EU treaty provisions. However, when a Member State fails to implement a directive, provisions in directives that satisfy certain criteria (such as clarity and unconditionality) can have a limited form of direct effect. An important limit is that in such circumstances directives are effective “vertically” (that is they are binding on public bodies) but not “horizontally” (they cannot straightforwardly be enforced in proceedings against individuals, companies and so on).

33.Clause 4 is ambiguous in a number of important respects. It presupposes that directives, to the extent that they comply with the criteria for direct effect, can be brought into domestic law. However, it is not clear from clause 4 whether, when brought into domestic law, directly effective provisions of directives will have effect only vertically.

34.Clause 4 also provides that directives will not be brought into domestic law if they are “not of a kind recognised by the European Court or any court or tribunal in the UK in a case decided before exit day”. It is unclear whether this means that there must be a judgment on the specific provision of the particular directive, holding that it has direct effect, or whether it simply requires that the provision in question satisfies the criteria that would be applied if the matter were to be judicially considered. The language of clause 4 supports the latter interpretation, but the explanatory notes appear to endorse the former.25

35.Clause 4 appears to domesticate directly effective provisions of directives irrespective of whether the directive has been implemented in domestic law by means of EU-derived legislation that will (where necessary) be saved by clause 2. This gives rise to the question whether the operation of clauses 2 and 4 will result in two versions of some EU norms coexisting within the domestic legal system—the version in EU-derived domestic legislation and the version domesticated by clause 4. An answer to this concern may be that clause 4 is intended to operate only on directly effective provisions in directives to the extent that such provisions have not already been domesticated through the medium of EU-derived domestic legislation. However, this is not clear from clause 4 as drafted. There may be conflict and dispute if, for example, a litigant argues that the rights under clause 4 give them greater rights than the domestic implementation of the EU instrument under clause 2, as the Bill does not tell the court which is to have priority. Lord Neuberger of Abbotsbury advised that “the nettle has to be grasped by a provision simply saying which will prevail.”26

36.The Government said that any “overlap should not result in any practical difficulties, as it would only arise in circumstances where domestic legislation fully implements the directly effective right. This is no different to the present situation, where domestic legislation may follow from a judgment which establishes that a provision of a directive has direct effect.”27 However, this explanation does not suggest how a conflict between two different types of retained EU law would be resolved, especially in light of the ambiguities in clause 5 that we turn to later.

37.The implications of the Bill for reciprocal rights remain uncertain, as such rights are inextricably linked to the legal relationship between the UK and the EU post-exit. The full impact of Brexit upon reciprocal rights will not be known until the UK’s future relationship with the EU is determined. This highlights a broader issue that the uncertain environment in which the Bill is being considered makes it difficult fully to assess its likely consequences, including its constitutional implications, at the time of its passage.

38.The ambiguities in the interpretation and effect of clause 4 will inevitably cause legal uncertainty about a fundamental provision of the Bill. This will undermine one of the Government’s main objectives in bringing forward this Bill. The ambiguities need to be resolved.

11 Other than the Charter of Fundamental Rights, which is excepted by clause 5(4)

12 Clause 6(7)

13 Constitution Committee, European Union (Withdrawal) Bill: interim report (3rd Report, Session 2017–19, HL Paper 19), para 31

14 Ibid., para 24

15 Ibid., para 25

16 Clause 6(7)

17 Explanatory Notes to the European Union (Withdrawal) Bill [HL Bill 79 (2017–19)-EN], para 93

[Miss-Suz]

Government to implement proposals to allow Court of Appeal to depart from CJEU case law

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The Government has released draft regulations that will allow the Court of Appeal, and other appellate courts in the UK, to depart from Court of Justice of the European Union (CJEU) case law after the Transition Period expires.
The stated aim of doing this would be to “allow for appropriate and timely development of retained EU law”. In other words, the proposals are intended to increase the pace at which UK law can diverge from EU law. However, this may come at the cost of uncertainty and likely increased litigation over issues that were previously thought settled.

The Government has decided against further extending the power to depart from CJEU case law to lower courts (such as the High Court).

Retained EU law
EU law will cease to apply in the UK after the end of the Transition Period (defined as “IP Completion Day”.) To provide continuity, however, most EU legislation will be “copied and pasted” into the UK statute book (albeit with sometimes significant amendments and carve-outs most of which can be enacted by secondary legislation subject to limited parliamentary scrutiny) so as to create an entirely new form of domestic UK law, known as “retained EU law”.

The EU (Withdrawal) Act 2018 (EUWA 2018) provides for retained EU law to continue to be interpreted in line with “retained case law”, which includes relevant decisions of the CJEU handed down before the end of the Transition Period (known as “retained EU case law”). UK courts may “have regard” to CJEU decisions handed down after the expiry of the Transition Period but will not be bound by them. Importantly EUWA 2018 provides that the principle of supremacy of EU law will continue to apply to “the interpretation disapplication or quashing of any enactment or rule of law” made before IP Completion Day but not to any enactment made on or after that date. Therefore the legal effect of domestic acts made before IP Completion Day will still be judged against compatibility with retained EU Law, but this will not apply to acts passed after the end of the Transition Period.

The Supreme Court’s power to depart from retained EU case law
Section 6 EUWA 2018, as originally enacted, provided that only the Supreme Court1 would be able to depart from CJEU decisions and that other UK courts would be bound by CJEU decisions made before IP Completion Day in the same way that they would be bound by decisions of the Supreme Court.

In deciding whether to depart from CJEU decisions, the Supreme Court will apply the same test that it uses when considering whether to depart from its own previous case law, namely “whether it appears right to do so”. This test is a broad and flexible one, although in practice the Supreme Court has tended to use the power to depart from its own previous decisions sparingly.

Extending the power to depart from retained EU case law
However, section 26(1) EU (Withdrawal Agreement) Act 2020 (EUWAA 2020) amended EUWA 2018 to give ministers the power to pass regulations to designate additional courts or tribunals with the power to depart from retained EU case law and to identify the circumstances in which they should do so. On 2 July 2020, the Government launched a consultation on how that power should be exercised, with a view to implementing regulations before 31 December 2020 when the Transition Period ends and the power to make regulations under section 26(1) EUWAA 2020 expires.

In its consultation paper, the Government presented the following two options:

to extend the power to depart from CJEU case law to the Court of Appeal of England and Wales and its closest equivalents in other UK jurisdictions; or
to extend the power, in addition to the Court of Appeal and equivalent courts, to the High Court of Justice of England and Wales and its closest equivalents in the other UK jurisdictions.
The consultation paper also proposed that, when considering whether to depart from CJEU case law, the relevant court should apply the same test as the Supreme Court, namely “whether it appears right to do so”.

The consultation paper noted that in addition to retained EU case law, there is also be an existing body of domestic judgments (known as “retained domestic case law”), in which UK courts have considered the meaning and effect of EU law and have applied relevant decisions of the CJEU. The consultation paper did not express a view on how retained domestic case law should be treated and asked for views on this point.

The results of the consultation
The Government received 75 responses to the consultation paper. Of those, 27% agreed that the power to depart from retained EU case law should be extended to other courts and tribunals beyond the UK Supreme Court; whereas 56% of respondents were not in favour of this proposal. (The remaining respondents either did not comment on this point or were unclear.)

The main reason given for opposing the proposals was that they would cause uncertainty, which would in turn lead to:

the re-litigation of well-established legal principles;
a divergence in legal approaches across the UK on similar issues; and
an incoherent legal framework with adverse impacts in key areas such as tax, employment, environment and equalities.
Concern was expressed that this uncertainty would have a negative impact on the UK’s standing as an international centre for dispute resolution. Many of the respondents who opposed the proposals also thought that any departures from retained EU case law would be best achieved by Parliament passing legislation, rather than by relying on the courts.

Notwithstanding the fact that the majority of respondents were opposed to extending the power, the Government preferred the views of the minority. In particular, the Government was persuaded by the following arguments made in favour of extending the power to the Court of Appeal and other appellate courts2:

the UK’s departure from the EU has changed the context in which retained EU law should be considered. “Retained EU law should not be tied to an interpretation from the Court of Justice of the European Union that is arguably no longer appropriate in the UK.”
it would take too long for cases about retained EU case law to reach and be decided by the Supreme Court. According to the Government, this could result “in “fossilisation” of our law, and the risk that our law does not evolve to reflect the UK’s changed status following its departure from the EU.”
the Supreme Court would benefit from the relevant issues having been considered and refined by a lower court.
if the Supreme Court were to be the only court with the power to depart from retained EU case law, this would place pressure on the resources of that court and “if the power were not extended to additional courts, the UK Supreme Court could become a bottleneck to the timely resolution of such cases due to an increase in demand.”
The Government also took the view that those who were opposed to extending the power were opposed to the principle of courts being able to depart from retained EU case law at all. The Government’s response to this was that this issue was not up for consultation, given that Parliament had already decided that an ability to depart from retained EU should exist when it passed EUWA 2018 and EUWAA 2020.

On other issues, the Government’s views were aligned with the majority of the respondents to the consultation. In particular, the Government and the majority of respondents agreed that:

the power to depart from retained EU case law should not be extended to lower courts (such as the High Court).
when deciding whether to depart from retained EU case law, the Court of Appeal should apply the same test as the Supreme Court (namely “whether it appears right to do so”). The legislation should not identify any criteria to be considered when a court is applying this test.
the Court of Appeal will be bound by its own previous decisions to depart from retained EU case law, as well as those of the Supreme Court.
normal rules of precedent will apply when retained domestic case law is being considered by the court. In other words, courts will be bound by previous decisions of UK courts on the meaning and effect of EU law, insofar as it forms part of retained EU law, to the same extent as on other issues.
Next steps
On 15 October 2020, the Government laid The European Union (Withdrawal) Act 2018 (Relevant Court) (Retained EU Case Law) Regulations 2020 (the Regulations) before Parliament. If, as seems likely, the Regulations are approved by both Houses of Parliament, they will come into effect at the end of the Transition Period.

In summary, the combined effect of the Regulations and EUWA 2018 will be that both the Court of Appeal and the Supreme Court will be able to depart from retained EU case law “when it appears right to do so”. Normal rules of precedent will apply to retained domestic case law.

One slightly incongruous outcome is that where, before IP Completion Day, the Court of Appeal (or the Supreme Court) has followed a decision of the CJEU, that domestic judgment will be part of retained domestic case law and will be binding on the Court of Appeal - with the result that the Court of Appeal will not be able to depart from the original CJEU decision. In that situation a party seeking a departure from retained case law will need to take the point to the Supreme Court.

Comment
As explained above, one of the objections raised by those opposed to extending the power to depart from retained EU case law was that this could lead to an increase in litigation. In its response to the consultation, the Government recognised that this is a possible outcome. Indeed, retained EU case law will only develop in the way envisaged by the Government if disputes are brought before the courts. However, the Government clearly takes the view that an increase in litigation and a degree of uncertainty are preferable to UK courts continuing to be bound by CJEU decisions after EU law has ceased to apply and a “fossilisation” of UK law.

The difficulty for litigants will be in predicting how the appellate courts will apply the test of whether it “appears right” to depart from retained EU case law. Lord Wilson recently considered the test in Peninsula Securities Ltd v Dunnes Stores (Bangor) Ltd (Northern Ireland) [2020] UKSC 36. He made it clear that the Supreme Court will only depart from its own earlier decisions “rarely and sparingly3” and “with a high degree of caution” because a “sudden change in the law is likely to destabilise it”. This suggests that successful challenges to retained EU case law will be rare. However, this situation is an entirely new one and it is not clear how UK judges will use this new power in the context of retained EU law. Parties seeking a departure from retained EU case law are likely to point to the Government’s statements that Brexit has fundamentally changed the context in which retained EU law should be considered and to argue that the courts should act with less restraint. Greater clarity will only emerge with the passing of time and the emergence of a body of case law on this point.

[Miss-Suz]

So sorry guys for my long posts. I copied and pasted some articles which I think might be relevant for most of us.
I am just trying to understand if our appeals will still go forward after the 31/12

[lolwe]

Morning everyone,

Lolwe, would you please explain the above to me? As Zambrano is from a derived law, does that mean it is retained?

British citizens are covered by the TFEU until 31 December 2020. The TFEU is the Treaty on the Functioning of the EU.

Under Article 9 of the TEU and Article 20 of the TFEU, every person holding the nationality of a Member State is a citizen of the Union.

TFEU no longer applies to UK citizens (or indirectly to their Zambrano carer parents) after 31 December 2020 because they do not hold the nationality of a Member State.

Zambrano carers are not covered by the Withdrawal Agreement and the negotiated deal.

The UK decided to add Zambrano carers to the EU settlement scheme (Appendix EU), but they did not have to because Zambrano carers are not covered by the Withdrawal Agreement.

EU and UK citizens' rights after Brexit
Citizens' rights after the end of the transition period

After the end of the transition period, EU and UK citizens covered by the withdrawal agreement will benefit from rights protected therein for their lifetime, as long as they continue to satisfy the conditions. The agreement also protects the rights of their non-EU/EEA family members, under the limits set by its provisions.

[lolwe]

So sorry guys for my long posts. I copied and pasted some articles which I think might be relevant for most of us.
I am just trying to understand if our appeals will still go forward after the 31/12

The EUSS appeals will certainly go forward, as the programme is still open. I don't see the point to the DRF1 continuing after 31 December 2020, given that people are supposed to apply under EUSS.

[lolwe]

The three “gateways” by which EU law will be retained after the end of the implementation period are as follows:

Note that the following do not count as direct EU law after the end of the implementation period:

Anything that becomes part of EU-derived domestic law retained under s.2 (s.3(2)(b)).
Directives (see the definition of “tertiary legislation” in s.20), and the provisions of the Treaties themselves. However, insofar as rights arising under the Treaties are directly effective, they will be retained under s.4 as explained below. Equally, some directly effective rights arising under Directives will be retained under s.4 and/or under s. 2, if they have been transposed into domestic law.
The Charter of Fundamental Rights (s.5(4)). However, “any fundamental rights or principles which exist irrespective of the Charter” are unaffected by this (s.5(4)-(5)).

Zambrano carers can not directly rely on Article 20 of the Treaty of the Functioning of the EU (TFEU). The reliance is indirect, or derived.

[lolwe]

In terms of protections available to Zambrano carers after 31 December 2020, Zambrano carers can rely on the European Court of Human Rights because the UK is still a member of the Council of Europe. They can bring claims about the European Convention on Human Rights. Zambrano carers usually care about Article 8 (right to family life).

In the past, Zambrano carers would rely on the European Court of Justice because the UK was a member of the Council of the European Union. Here, they would bring claims about the Charter on Fundamental Rights. Zambrano carers usually cared about Articles 7 (right to family life) and 24 (best interests of the child).

The UK may leave the Council of Europe in the near future. That puts Appendix FM (or FP) at risk. Appendix FM is based on Article 8 of the European Convention on Human Rights.

[Miss-Suz]

Morning everyone,

Lolwe, would you please explain the above to me? As Zambrano is from a derived law, does that mean it is retained?

British citizens are covered by the TFEU until 31 December 2020. The TFEU is the Treaty on the Functioning of the EU.

Under Article 9 of the TEU and Article 20 of the TFEU, every person holding the nationality of a Member State is a citizen of the Union.

TFEU no longer applies to UK citizens (or indirectly to their Zambrano carer parents) after 31 December 2020 because they do not hold the nationality of a Member State.

Zambrano carers are not covered by the Withdrawal Agreement and the negotiated deal.

The UK decided to add Zambrano carers to the EU settlement scheme (Appendix EU), but they did not have to because Zambrano carers are not covered by the Withdrawal Agreement.

EU and UK citizens' rights after Brexit
Citizens' rights after the end of the transition period

After the end of the transition period, EU and UK citizens covered by the withdrawal agreement will benefit from rights protected therein for their lifetime, as long as they continue to satisfy the conditions. The agreement also protects the rights of their non-EU/EEA family members, under the limits set by its provisions.

[Miss-Suz]

Morning everyone,

Lolwe, would you please explain the above to me? As Zambrano is from a derived law, does that mean it is retained?

British citizens are covered by the TFEU until 31 December 2020. The TFEU is the Treaty on the Functioning of the EU.

Under Article 9 of the TEU and Article 20 of the TFEU, every person holding the nationality of a Member State is a citizen of the Union.

TFEU no longer applies to UK citizens (or indirectly to their Zambrano carer parents) after 31 December 2020 because they do not hold the nationality of a Member State.

Zambrano carers are not covered by the Withdrawal Agreement and the negotiated deal.

The UK decided to add Zambrano carers to the EU settlement scheme (Appendix EU), but they did not have to because Zambrano carers are not covered by the Withdrawal Agreement.

EU and UK citizens' rights after Brexit
Citizens' rights after the end of the transition period

After the end of the transition period, EU and UK citizens covered by the withdrawal agreement will benefit from rights protected therein for their lifetime, as long as they continue to satisfy the conditions. The agreement also protects the rights of their non-EU/EEA family members, under the limits set by its provisions.

I don’t understand this part

[Miss-Suz]

So sorry guys for my long posts. I copied and pasted some articles which I think might be relevant for most of us.
I am just trying to understand if our appeals will still go forward after the 31/12

The EUSS appeals will certainly go forward, as the programme is still open. I don't see the point to the DRF1 continuing after 31 December 2020, given that people are supposed to apply under EUSS.

If I understand, Zambrano judgment is a CJEU case law.
If so, the judges may decide by relying on this as it state in some of the articles. Given that we will have passed the
transition period

[lolwe]

Morning everyone,

Lolwe, would you please explain the above to me? As Zambrano is from a derived law, does that mean it is retained?

British citizens are covered by the TFEU until 31 December 2020. The TFEU is the Treaty on the Functioning of the EU.

Under Article 9 of the TEU and Article 20 of the TFEU, every person holding the nationality of a Member State is a citizen of the Union.

TFEU no longer applies to UK citizens (or indirectly to their Zambrano carer parents) after 31 December 2020 because they do not hold the nationality of a Member State.

Zambrano carers are not covered by the Withdrawal Agreement and the negotiated deal.

The UK decided to add Zambrano carers to the EU settlement scheme (Appendix EU), but they did not have to because Zambrano carers are not covered by the Withdrawal Agreement.

EU and UK citizens' rights after Brexit
Citizens' rights after the end of the transition period

After the end of the transition period, EU and UK citizens covered by the withdrawal agreement will benefit from rights protected therein for their lifetime, as long as they continue to satisfy the conditions. The agreement also protects the rights of their non-EU/EEA family members, under the limits set by its provisions.

Your British child has coverage under the Withdrawal Agreement. For example, your British child can get health insurance that will cover them if they go on holiday on the continent. You, as the parent of a British child, do not benefit.

[lolwe]

So sorry guys for my long posts. I copied and pasted some articles which I think might be relevant for most of us.
I am just trying to understand if our appeals will still go forward after the 31/12

The EUSS appeals will certainly go forward, as the programme is still open. I don't see the point to the DRF1 continuing after 31 December 2020, given that people are supposed to apply under EUSS.

If I understand, Zambrano judgment is a CJEU case law.
If so, the judges may decide by relying on this as it state in some of the articles. Given that we will have passed the
transition period

Yes, Ruiz Zambrano took his complaint to the European Court of Justice. He relied on the Charter of Fundamental Rights. Zambrano lived in Belgium. Belgium is a member of the Council of the European Union.

The UK was a member of the Council of the EU. The UK is no longer a member of the Council of the European Union.

The Zambrano ruling applied to the UK because the UK was a member of the Council of the European Union. Therefore, the Zambrano ruling no longer applies to the UK.

After 31 December 2020, UK judges will rely on UK laws, the European Convention on Human Rights, and the Brexit deal. Zambrano carers are at the mercy of the UK's Parliament.

The EU has no role for Zambrano carers after 31 December 2020.

[Miss-Suz]

So sorry guys for my long posts. I copied and pasted some articles which I think might be relevant for most of us.
I am just trying to understand if our appeals will still go forward after the 31/12

The EUSS appeals will certainly go forward, as the programme is still open. I don't see the point to the DRF1 continuing after 31 December 2020, given that people are supposed to apply under EUSS.

If I understand, Zambrano judgment is a CJEU case law.
If so, the judges may decide by relying on this as it state in some of the articles. Given that we will have passed the
transition period

Yes, Ruiz Zambrano took his complaint to the European Court of Justice. He relied on the Charter of Fundamental Rights. Zambrano lived in Belgium. Belgium is a member of the Council of the European Union.

The UK was a member of the Council of the EU. The UK is no longer a member of the Council of the European Union.

The Zambrano ruling applied to the UK because the UK was a member of the Council of the European Union. Therefore, the Zambrano ruling no longer applies to the UK.

After 31 December 2020, UK judges will rely on UK laws, the European Convention on Human Rights, and the Brexit deal. Zambrano carers are at the mercy of the UK's Parliament.

The EU has no role for Zambrano carers after 31 December 2020.

I get it, thanks Lolwe

[Miss-Suz]

I am trying to understand how we can all put our case together and take legal action against the Home Office as they breach the withdrawal agreement by refusing our EUSS application. Can that be possible? And how?