askme234 wrote: ↑Tue Dec 21, 2021 3:38 pm
Hi Snooky and Co,
I need your help on the below;
My appeal for the derivative residence card under the Zambrano has been dismissed on the basis set out by the judge below. I need your help in applying to the upper tribunal as it says I can only apply on a point of law and it must be in accordance with the rule.
Would you please read the decision below and point me in the right direction? so that I don't break any law when lodging in the application.
Please note that my FM leave to remain has now expired and I didn't renew it. Although, I still have a pending application for the EU settlement scheme(Second application) which was sent in June this year.
Many thanks for your help in advance
To the Appellant and Respondent
Clerk to the First-tier Tribunal
Enclosed are the First-tier Tribunal’s decision and reasons in the above appeal.
Either party may apply to the First-tier Tribunal for permission to appeal to the Upper Tribunal on a point of law
arising from the First-tier Tribunal's decision.
Any application must be made in accordance with the relevant Procedure Rules and must be provided to the Tribunal
so that it is received no later than 14 days after the date on which the party making the application was sent the
written reasons for the decision, except where the Appellant is outside the United Kingdom; in which case any
application must be provided to the Tribunal so that it is received no later than 28 days after the date on which the
party making the application was sent the written reasons for the decision.
The Secretary of State will be informed of any application made by an appellant for permission to appeal to the Upper
Tribunal (but not the grounds). This is to prevent any unlawful action being taken.
All applications must be sent to:
© CROWN COPYRIGHT 2021
IAC-AH- -V1
First-tier Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Heard on the Papers at Taylor House Decision & Reasons
Promulgated
On 30 November 2021
………………21.12.2021………
Before
JUDGE OF THE FIRST-TIER TRIBUNAL N M PAUL
Between
(ANONYMITY DIRECTION NOT MADE)
Appellant
and
ENTRY CLEARANCE OFFICER
Respondent
DECISION AND REASONS
1. The appellant is a citizen of xxxxxxxxxx. On 22 September 2020
his application, made on 30 June 2020 for a derivative residence card under the
Zambrano judgment to confirm that he was a Primary Carer of a British citizen
dependant, was refused.
Respondent’s Decision
2. The application had been considered under Regulations 16(5), 8 & 20 of the EEA
Regulations 2016. The Secretary of State was required to issue an applicant with a
derivative residence card on production of a valid passport and proof that a person
had a derivative right to reside in the UK.
3. The appellant was applying on the basis that he was the Primary Carer of xx
xxxx, a British citizen. To be considered the Primary Carer, the
appellant would have to provide evidence to show that he spent the majority of his
time with his child, and that he was responsible financially for that child. No evidence
had been submitted to demonstrate that he lived with Philip, or that he was financially
responsible for him.
4. Furthermore, to qualify for a residence card, he had to show that he was the Primary
Carer. However, Philip was living with his mother, xxxxx, who was
a British citizen and free from British Immigration controls. The appellant’s son’s
mother could continue to care for her son in the UK if the appellant was required to
leave. The Zambrano application required that a person seeking this right had to
establish that he was the Primary Carer of the British citizen.
The Appeal
5. The appellant had submitted with his appeal notice a bundle of documents which
included (amongst other things) evidence of finance, employment, and his son’s
education and domestic circumstances. He also included a letter in which he set out
his reasons for applying for a derivative residence card. He said that they were living
at the same address, and his partner had another son with the appellant, as well as a
stepson. They had been living together at the same address since January 2016,
and the appellant’s son attended a local primary school in xxxx. The
supporting documents indicated that he was living with his father, and that the
appellant was financially responsible.
6. The appellant then invoked the decision of the Supreme Court in Patel & Shah -vSSHD [2019], and in particular quoted from the judgment of Lady Arden which said
that, where a father would be compelled to leave the UK, the consequences for the
child would be the determinative feature of whether or not the Zambrano test was
met.
7. It was therefore argued that the application had been wrongly refused on the basis of
the incorrect consideration of Regulation 16(5)c.
Conclusions & Reasons
8. The burden is on the appellant to show that he meets the requirements of the EEA
Regulations. The simple answer in this case is that the appellant has not established
that he is the Primary Carer under the Zambrano principle, because of course he
shares the care of his child with the child’s mother, and they are all living in a family
unit. In any event according to the respondent’s decision notice, he had previously
been granted leave to remain under Appendix FM, and that was the correct route for
a further application for leave to remain. Thus, it excluded him from being
considered under the EEA Regulations.
9. In my view, the SSHD’s analysis in this case is right, and the appellant’s attempt to
bypass the requirement of Appendix FM cannot succeed. The decision was properly
made.
This appeal is dismissed, as the respondent’s decision was in accordance with the EEA
Regulations.
No anonymity direction is made.
Signed Date 3 December 2021
Judge Nicholas M Paul
Judge of the First-tier Tribunal
TO THE RESPONDENT
FEE AWARD
I have dismissed the appeal and therefore there can be no fee award.
Signed Date 3 December 2021
Judge Nicholas M Paul
Judge of the First-tier Tribunal
.
