Zambrano Settled Status EU settlement scheme Paper Application Form - NEW

[Eburnie27]

Important!

Did the Home Office refuse your application because you had leave to remain under Appendix FM on 31 December 2020?

Are you filing an appeal with the First Tier Tribunal?

1.) You may want to submit a copy of the Withdrawal Agreement to the Court
2.) The Withdrawal Agreement says judges have to take into account case law after 31 December 2022.
3.) The EU Court says that a Zambrano carer based in the Netherlands is entitled to permanent residence after five years.


https://assets.publishing.service.gov.u ... munity.pdf

March 2022

Can a parent who is a third-country national and resides in a Member State by virtue of the right that he or she derives from the status of citizen of the European Union of his or her child, a minor, rely on that residence before the authorities of that Member State with a view to obtaining the status of long-term resident?

September 2022

Article 3(2)(e) of Directive 2003/109 must be interpreted as meaning that the concept of residence ‘solely on temporary grounds’, which is referred to therein, does not cover the residence of a third-country national under Article 20 TFEU within the territory of the Member State of which the Union citizen concerned is a national.

(This statement from September means that Zambrano carers are not temporary residents).


Article 4 of the EU Withdrawal Agreement

Methods and principles relating to the effect, the implementation and the application of this Agreement

1. The provisions of this Agreement and the provisions of Union law made applicable by this
Agreement shall produce in respect of and in the United Kingdom the same legal effects as those
which they produce within the Union and its Member States. Accordingly, legal or natural persons shall in particular be able to rely directly on the provisions contained or referred to in this Agreement which meet the conditions for direct effect under Union law.

2. The United Kingdom shall ensure compliance with paragraph 1, including as regards the required powers of its judicial and administrative authorities to disapply inconsistent or incompatible domestic provisions, through domestic primary legislation.

3. The provisions of this Agreement referring to Union law or to concepts or provisions thereof shall be interpreted and applied in accordance with the methods and general principles of Union law.

4. The provisions of this Agreement referring to Union law or to concepts or provisions thereof shall in their implementation and application be interpreted in conformity with the relevant case law of the Court of Justice of the European Union handed down before the end of the transition period.

5. In the interpretation and application of this Agreement, the United Kingdom's judicial and administrative authorities shall have due regard to relevant case law of the Court of Justice of the European Union handed down after the end of the transition period.

Hi Forney

Thanks so much for this information, I shall be using it to build my case.
Have a good day

[Whyworry]

Thanks Forney -again again,This Is very helpful as I just received the home office buddies yesterday

I am planning to send my buddies to Court and respondent as well the appeal is base on paper hearing.
The refusal was mainly because I have leave to remain, please if you can suggest any documents I need to be included in the buddies that would be very appreciated

Please what did home office sent to you? Please can you share, ?
@Tina , nothing special they included refusal letter and my supporting documents in the buddle as same has been sent to court by home office.

[Kmt2014]

Good morning. Pleass what is bundle. Thanks

[marcidevpal]

Important!

Did the Home Office refuse your application because you had leave to remain under Appendix FM on 31 December 2020?

Are you filing an appeal with the First Tier Tribunal?

1.) You may want to submit a copy of the Withdrawal Agreement to the Court
2.) The Withdrawal Agreement says judges have to take into account case law after 31 December 2022.
3.) The EU Court says that a Zambrano carer based in the Netherlands is entitled to permanent residence after five years.


https://assets.publishing.service.gov.u ... munity.pdf

March 2022

Can a parent who is a third-country national and resides in a Member State by virtue of the right that he or she derives from the status of citizen of the European Union of his or her child, a minor, rely on that residence before the authorities of that Member State with a view to obtaining the status of long-term resident?

September 2022

Article 3(2)(e) of Directive 2003/109 must be interpreted as meaning that the concept of residence ‘solely on temporary grounds’, which is referred to therein, does not cover the residence of a third-country national under Article 20 TFEU within the territory of the Member State of which the Union citizen concerned is a national.

(This statement from September means that Zambrano carers are not temporary residents).


Article 4 of the EU Withdrawal Agreement

Methods and principles relating to the effect, the implementation and the application of this Agreement

1. The provisions of this Agreement and the provisions of Union law made applicable by this
Agreement shall produce in respect of and in the United Kingdom the same legal effects as those
which they produce within the Union and its Member States. Accordingly, legal or natural persons shall in particular be able to rely directly on the provisions contained or referred to in this Agreement which meet the conditions for direct effect under Union law.

2. The United Kingdom shall ensure compliance with paragraph 1, including as regards the required powers of its judicial and administrative authorities to disapply inconsistent or incompatible domestic provisions, through domestic primary legislation.

3. The provisions of this Agreement referring to Union law or to concepts or provisions thereof shall be interpreted and applied in accordance with the methods and general principles of Union law.

4. The provisions of this Agreement referring to Union law or to concepts or provisions thereof shall in their implementation and application be interpreted in conformity with the relevant case law of the Court of Justice of the European Union handed down before the end of the transition period.

5. In the interpretation and application of this Agreement, the United Kingdom's judicial and administrative authorities shall have due regard to relevant case law of the Court of Justice of the European Union handed down after the end of the transition period.

Hi Forney

Thanks so much for this information, I shall be using it to build my case.
Have a good day

The Withdrawal Agreement covers the 2004 Directive. Zambrano carers are not covered by the 2004 Directive. Therefore, Zambrano carers are not directly covered by the Withdrawal Agreement.

The judge could decide to ignore any argument you make that relies on either the Withdrawal Agreement or the 2004 Directive.

However, the paragraph highlighted in Article 4 of the Withdrawal Agreement could be useful to show that the EU would want the UK judges to take into account the decision taken in September 2022.

The judge could also decide not to take into account the decision from September 2022, because the UK is no longer a Member of the European Union.

Neither point will prove in a direct way that you should get permanent residence. They will help to show that the EU probably would have wanted you to have had it.

[marcidevpal]

Good morning. Pleass what is bundle. Thanks

A bundle is a list or bundle of papers you want the judge to read and take into consideration.

The first page of the bundle should give an index, or an overview of what the bundle contains.

For example,

Index

1. Claimant's Application
2. Notice of Decision
3. Witness Statement
4. Submissions
5. Relevant case law

[marcidevpal]

Hi Forney

Thanks so much for this information, I shall be using it to build my case.
Have a good day

forney-again-again
BANNED
Posts: 4
Joined: Thu Oct 27, 2022 11:29 am
American Samoa

[Tina87]

where is the letter i can’t see any letters here?

Check on page 179

@tina this is just random practice of court they send you this letter to submit the supporting documents

Thank you zoovi ,I already sent when submitting my appeal. But the issue is my supporting document they are requesting from HO which I sent to them when I applied, HO return all my document when they sent me a refusal. So my question is should send them back the document HO sent to me when I was being refused?

[Tina87]

Good morning. Pleass what is bundle. Thanks

A bundle is a list or bundle of papers you want the judge to read and take into consideration.

The first page of the bundle should give an index, or an overview of what the bundle contains.

For example,

Index

1. Claimant's Application
2. Notice of Decision
3. Witness Statement
4. Submissions
5. Relevant case law

Thanks so much

[marcidevpal]

The SSHD (Home Office) refused Ms Akinsaya's application because she had leave to remain under the Article 8 Rules on 31 December 2020.

Home Office guidance published online on 13 June 2022:

The Home Secretary has carefully considered the Court of Appeal judgment and has decided that she no longer wishes that definition in Appendix EU to reflect the scope of the 2016 Regulations (which have now been revoked) but wishes it to reflect the scope of those who, by the end of the transition period, had an EU law right to reside in the UK as a Zambrano primary carer, in line with the originally stated policy intention.

If your position is similar to Akinsaya's, you are, at least partially, fighting over "intentions"

You should prove their original intention was always to cover Zambrano carers, they just were mistaken on the definition.

They will argue their original intention was to cover a certain type of Zambrano carer.

Your fight will not be easy or simple. You have to make a bunch of good arguments and give a lot of evidence to prove your point. It is not as simple as pointing to a rule.

For example, per the House of Commons Library, Briefing Paper, Number 8584, Published February 2020

https://commonslibrary.parliament.uk/re ... briefings/

3.1 Derivative rights of residence

The EU Settlement Scheme is also open to people resident in the UK based on their ‘derivative right’ to reside under EU law. These include ‘Chen carers’ (the primary carer of a self-sufficient EEA citizen child), ‘Ibrahim and Teixeira’ cases (a child of a former EEA citizen worker who is in education in the UK and their primary carer), and ‘Zambrano carers’ (the primary carer of a British citizen child or dependent adult). In September 2018 it was estimated there were around 1,700 people currently relying on a derived right to reside in the UK.

Unlike Chen and Ibrahim and Teixeira cases, Zambrano carers are not protected by the WA, however the Government stated in the Explanatory Memorandum to the Statement of Changes to the Immigration Rules (HC 1919) that:

In light of the particular circumstances of these cases, it is appropriate that their long-term stance in the UK should be protected by bringing them within the scope of the EU Settlement Scheme. The Government was criticised, including by the Refugee and Migrant Children’s consortium, for the delay in clarifying the rights of people with derived rights of residence in the UK following Brexit. The Government initially said in the Statement of Intent for the EUSS in June 2018 that ‘further details will be provided in due course on the new status available to them,’47 however the detail was not provided until March 2019.

The Home Affairs Select Committee report on the EUSS stated:

It should not have taken such a length of time for the Government to make a clear and unambiguous statement on the rights of Zambrano carers under the Settlement Scheme and following Brexit. We welcome the clarity the Government has now afford this group, but it is unacceptable that these citizens were left in limbo for so long.

You could send the briefing paper as part of your bundle to show their original intention.

[marcidevpal]

where is the letter i can’t see any letters here?

Check on page 179

@tina this is just random practice of court they send you this letter to submit the supporting documents

Thank you zoovi ,I already sent when submitting my appeal. But the issue is my supporting document they are requesting from HO which I sent to them when I applied, HO return all my document when they sent me a refusal. So my question is should send them back the document HO sent to me when I was being refused?

The judge will want to see your original application. The Home Office can also upload your application to the MOVE-IT Portal which is accessible by the First Tier Tribunal.

[marcidevpal]

You could also include pdf's of Akinsaya's rulings and Velaj in your bundle.

The FtT and UT establish that the SSHD/Home Office's originally stated policy intention was based on a flawed understanding of EU law.

a. The respondent/SSHD/Home Office challenge to the decision of Mostyn J in Akinsanya was only partially successful.
b. SSHD’s appeal to the Court of Appeal on Akinsaya and Velaj failed substantively.

You could remind the court that the Home Office got it wrong about Zambrano carers repeatedly. You could also include in your bundle two recent rulings, Aftar and Noel:

Secretary of State for the Home Department v Aftar [EA/05574/2020]
Secretary of State for the Home Department v Noel [EA/06270/2020]


Per UT Judge Allen at paragraph 12.3:

a. In a judgment dated 25 January 2022, whilst Underhill LJ preferred the submissions on behalf of the SSHD with regard to ground 1, the effect of the Zambrano jurisprudence, he upheld the judgment of Mostyn J as to
the SSHD’s erroneous approach to regulation 16 of the EEA Regulations, holding that persons with limited leave to remain are entitled to a derivative right to remain, alongside their limited leave, if they otherwise satisfy certain specified criteria.

Per UT Judge Kopieczek at paragraph 23:

a. However, in considering the second ground of appeal advanced by the Secretary of State in that case, the Court of Appeal at [59]-[67] rejected the argument that an “exempt person” in regulation 16(7)(c) of the EEA
Regulations includes a person with limited leave to remain (and thereby cannot qualify under the EEA Regulations for a derivative residence card). The Court decided that aspect of the ‘exemption’ only applied to persons with indefinite leave to remain, whatever may have been the intention in the drafting of the EEA Regulations in that respect.

b. At [66] the Court said this: “66. In the end, however, the short answer to Mr Blundell’s submission is that, whatever the contextual considerations, the language of regulation 16 (7) © (iv) is simply too clear to allow it to be construed as covering persons with limited leave to remain. The explicit reference to persons with indefinite leave to remain necessarily precludes its application to persons with limited leave. As Mostyn J says at para. 72 of his judgment, the Secretary of State is seeking to imply words into the provision which completely change its scope and meaning.”

Per Judge Kopieczek at paragraphs 25 and 30:

a. Velaj (in the Court of Appeal) was concerned with the question of whether a person deciding the requirements of regulation 16(5)(c) (British citizen unable to reside in the UK or another EEA State if the
primary carer left the UK for an indefinite period) must consider whether the British citizen dependant would be unable to reside in the UK on the assumption that the primary carer will leave (irrespective of whether that
assumption is correct), or whether it must be considered what the impact of on the British citizen would be if in fact the primary carer would leave the UK for an indefinite period.

b. It is otherwise useful to bear in mind the following concluding paragraphs from Velaj:

68. ... the immigration status of a person with limited leave to remain is precarious; leave is likely to be subject to conditions and it is liable to be withdrawn or truncated. It is possible to conceive of situations in which the conditions attached to a limited leave to remain are such as to make it impossible in practice for the primary carer to remain in the UK and look after the child.

69. I can also envisage a Zambrano carer whose limited leave to remain is due to expire making an application under Regulation 16(5)(c) and succeeding on the basis that they would have to leave the UK as soon as their limited leave expired and the child would have to go with them. In such a case if the decision-maker asks "what will happen to the child in the event that the primary carer leaves the UK for an indefinite period?" they will not be positing a completely unrealistic scenario. In any event, the practical difficulties of someone with limited leave to remain being able to satisfy the requirements of Regulation 16(5)(c) would not be a
justification for construing those requirements in a manner which was clearly unintended."

[marcidevpal]

You can also go to Tribunal decisions and type Zambrano in the search box. You will see cases that mention Zambrano. Read the case to see if it is relevant to you.

https://tribunalsdecisions.service.gov.uk/utiac/

Aftar and Noel are published there.

[marcidevpal]

You could create a witness statement, and address WHY you applied for leave to remain under Appendix FM.

If you already had a derivative residence card, and you applied for leave because you were told to by the Home Office, you should say so.

The Home Office should not tell people to do things that will stop them from gaining permanent residence.

If you already had a derivative residence card, and you applied for leave because you were confused, you should say that in your witness statement.

The Home Office had a responsibility to communicate in a timely manner their intention and give people the knowledge to not apply for leave under Appendix FM.

[marcidevpal]

Important!

The biggest mistake you can possibly make is to assume the judge who reads your papers knows what is going on with Zambrano carers.

That is why your bundle is so important. You need to give the judge as many rulings as possible, so they can understand what has happened previously.

Moreover, if you do not make a point at the First Tier Tribunal, and you go to appeal, you won't be able to make new points. So make as many good points now as possible. If the judge ignores a point you make, that is ok. You just need the judge to agree with one.

[marcidevpal]

The 2003 Directive gave permanent residence to non-Europeans who lived in the EU for five years. The UK said Zambrano carers were not eligible.

UK barristers argued Zambrano carers were eligible under the 2003 Directive, but the First Tier Tribunal ruled against them.

https://www.halcyonchambers.com/2020/04 ... -unlawful/

It came to attention of David Tang & Co solicitors that in several of their appeal cases there was a recurring issue, summarised in the appeal as follows:

Where the Secretary of State accepts:

That the appellant is the primary carer for a British citizen child; and
That the child would not be able to remain in the United Kingdom or another EEA member state if the appellant were required to leave the United Kingdom for an indefinite period…

Is it in breach of the appellant’s rights under the EU Treaties in respect of entry to or residence in the United Kingdom for an application for a residence card under Reg. 20 of the 2016 Regulations to be refused because the appellant has not yet made an application for leave to remain under the Immigration Rules (or otherwise pursuant to Article 8 ECHR) on the basis of the relationship with the British citizen child? (Issue 1)

Exceptionally, exercising its general case management powers, the FtT agreed to consider this issue discretely as a preliminary issue.

The FtT also agreed to decide on a second matter as a preliminary issue, namely:

Where an appellant has spent five years living continuously in the UK with a derivative right of residence, have they acquired a permanent right of residence akin to that set out at Reg. 15 of the 2016 Regulations? (Issue 2)

[marcidevpal]

It seems to me, the judge will have to decide the following:

1.) What was the original intention of the Home Office for all types of Zambrano carers post-Brexit?
2.) Was the Home Office's original intention 'lawful'?

If the judge believes the original intention was to cover even Akinsaya, Akinsaya wins.

If the judge believes the original intention was NOT to cover Akinsaya, but the intention was unlawful, Akinsaya wins.

[marcidevpal]

Some people may say, there is no point in talking about or adding the Withdrawal Agreement to the bundle, because it does not directly apply to Zambrano carers based in the UK.

I disagree for a few reasons. One, the Withdrawal Agreement does mention Article 21 of the TFEU and Article 21 is about Zambrano carers.

https://lexparency.org/eu/TFEU/ART_21/

Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.

If action by the Union should prove necessary to attain this objective and the Treaties have not provided the necessary powers, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may adopt provisions with a view to facilitating the exercise of the rights referred to in paragraph 1.

Two, the Withdrawal Agreement reflects the mindset, thinking or spirit of the EU. I believe the EU would want all Zambrano carers who are in the UK to get residence after five years, not just one subset or subgroup. I think the WA indirectly applies to Zambrano carers.

So, you could include (parts of) the WA and Article 21 in the bundle.

[marcidevpal]

You can show legal opinion is on your side by including pdf copies of the Zambrano cases:

It would be unwise to assume the judge you get is aware of the history of Zambrano cases and how the court is ruling.

If it is your word versus the Home Office, the judge is quite possibly likely to go with the Home Office.

If you add cases to your bundle, the judge can see what other judges have said and, perhaps will be more likely to rule in your favour.

Cases:

• Akinsaya

• Velaj

• Aftar

• Noel

• and others on the Tribunal website

Important!

The biggest mistake you can possibly make is to assume the judge who reads your papers knows what is going on with Zambrano carers.

That is why your bundle is so important. You need to give the judge as many rulings as possible, so they can understand what has happened previously.

Moreover, if you do not make a point at the First Tier Tribunal, and you go to appeal, you won't be able to make new points. So make as many good points now as possible. If the judge ignores a point you make, that is ok. You just need the judge to agree with one.

[marcidevpal]

The previous pages on this forum seem to be about whether or not Akinsaya is a Zambrano carer.

That question was settled in the Court of Appeal.

The questions today, is what was the original intention of the Home Office when they launched the EU Settlement Scheme? And, was that original intention lawful?

Your submissions should address these questions in detail.

You should make it clear why you are a Zambrano carer, and cite the Court of Appeal ruling, but your arguments are probably going to be about this question of "intention".

[marcidevpal]

When the judge looks at the intention of the Home Office, the judge will also look at how the Home Office behaved.

That is why your witness statement is so important. You can tell the judge that as far as you knew, Zambrano carers would be given settlement under EUSS, and the reasons why you believe that was the case. For example, you could answer these questions:

How did the Home Office behave towards you between 2016 and 2020?

Did they send you letters or emails letting you know you could become ineligible for settlement if you apply for leave to remain under Appendix FM?

Did they warn you in any way?

Did you contact the Home Office to try to understand what your rights would be post-Brexit?


If the Home Office always "intended" to split Zambrano carers into different groups and give some settlement, how did their actions support their intention? Or, did their actions go against their now stated intention?

[marcidevpal]

If your situation is like Ms Akinsaya's and your submissions to the court are about arguing that you are a Zambrano carer, you may be on the wrong track.

Following the Court of Appeal ruling, the Home Office apparently now accepts that Zambrano carers like Ms Akinsaya are, in fact, Zambrano carers. What they do not accept is that Zambrano carers like Ms Akinsaya should get settlement.

In my opinion, the Home Office's position is wrong for at least a few reasons:

1.) After Brexit 2016, Parliament, the Government and the Home Office stated their original intention. They said they would allow people who were lawfully in the UK to remain in the UK.

2.) Between Brexit and March 2019, the Home Office said specifically that their intention was to allow Zambrano carers to qualify for settlement under the EU scheme (Appendix EU).

3.) After March 2019, the Home Office changed their intention. They created two categories of Zambrano carers. Even if they now want to say this document represents their original intention, which we don't accept, their original intention, is irrational and discriminatory. There is no public benefit to excluding Zambrano carers like Ms Akinsaya from settlement. By granting settlement to just a subcategory of Zambrano carers, the Home Office makes a distinction that is unlawful.

4.) Zambrano carers should not be punished for the Home Office's incorrect definition of the term Zambrano carer.

5.) The Home Office strongly encouraged Zambrano carers to apply for leave to remain under Appendix FM and then later refused those same applicants under Appendix EU.

6.) Had the UK courts recognised Zambrano carers under the 2003 Directive, Ms Akinsaya (and applicants in a similar position) would have already had permanent residence.

7.) Article 21 of the TFEU calls for the protection of people who exercised their right to reside as part of their human rights. The UK agreed to uphold Article 21 in the Withdrawal Agreement. Although the Withdrawal Agreement does not apply directly to Ms Akinsaya, it asks UK judges to take into consideration EU rulings post Brexit.

[marcidevpal]

If your situation is like Ms Akinsaya's and your submissions to the court are about arguing that you are a Zambrano carer, you may be on the wrong track.

Following the Court of Appeal ruling, the Home Office apparently now accepts that Zambrano carers like Ms Akinsaya are, in fact, Zambrano carers. What they do not accept is that Zambrano carers like Ms Akinsaya should get settlement.

In my opinion, the Home Office's position is wrong for at least a few reasons:

1.) After Brexit 2016, Parliament, the Government and the Home Office stated their original intention. They said they would allow people who were lawfully in the UK to remain in the UK.

2.) Between Brexit and March 2019, the Home Office said specifically that their intention was to allow Zambrano carers to qualify for settlement under the EU scheme (Appendix EU).

3.) After March 2019, the Home Office changed their intention. They created two categories of Zambrano carers. Even if they now want to say this document represents their original intention, which we don't accept, their original intention, is irrational and discriminatory. There is no public benefit to excluding Zambrano carers like Ms Akinsaya from settlement. By granting settlement to just a subcategory of Zambrano carers, the Home Office makes a distinction that is unlawful.

4.) Zambrano carers should not be punished for the Home Office's incorrect definition of the term Zambrano carer.

5.) The Home Office strongly encouraged Zambrano carers to apply for leave to remain under Appendix FM and then later refused those same applicants under Appendix EU.

6.) Had the UK courts recognised Zambrano carers under the 2003 Directive, Ms Akinsaya (and applicants in a similar position) would have already had permanent residence.

7.) Article 21 of the TFEU calls for the protection of people who exercised their right to reside as part of their human rights. The UK agreed to uphold Article 21 in the Withdrawal Agreement. Although the Withdrawal Agreement does not apply directly to Ms Akinsaya, it asks UK judges to take into consideration EU rulings post Brexit.

A further point:

8. The Home Office refer to the EEA Regulations in their recent refusal letters. The Home Office rely on only the parts of the EEA Regulations they agree with. At the very least, they should have communicate how their position differs from the EEA Regulations in a fair, timely and transparent way. Moreover, if the Home Office rely on the Regulations as a basis for their decisions, which they did in their recent batch of refusals, then they should have to accept the EEA Regulations' definition of a Zambrano carer. According to the Court of Appeal, Ms Akinsaya is a Zambrano carer. I can't see how the Home Office can be permitted to 'cherry pick' what areas of the EEA regulations they agree with, but perhaps someone has case law on this point to show they can.


You need to look at your refusal letter. If your letter says they refuse you because they do not believe you are a Zambrano carer, then your submissions should show why you are a Zambrano carer.

If the refusal letter says they refuse you because you had leave to remain under Appendix FM on 31 December 2020, then your submissions should show why that policy is unlawful.

[JB007]

The questions today, is what was the original intention of the Home Office when they launched the EU Settlement Scheme? And, was that original intention lawful?

From the Hackney Community Law Centre, who have the Akinsanya case.

Although Ms Akinsanya was successful overall in the Court of Appeal, the Home Office were successful on one ground, regarding their interpretation of EU law. Their interpretation is that a person does not qualify for a Zambrano right to reside if they have another form of leave to remain and this interpretation was found to be correct by the Court of Appeal. In their announcement of 13 June 2022, the Home Office stated that the Appendix EU exclusion of Zambrano carers with other forms of leave from applying to the EU Settlement Scheme is justified, because this exclusion correctly reflects EU law.

https://hclc.org.uk/2022/06/euss-zambra ... june-2022/

From what I recall- under the EU rules, Zambrano didn't lead to settlement in the UK; the EU didn't make any provision for these in the Brexit talks and others who are non-EEA nationals?

[marcidevpal]

The questions today, is what was the original intention of the Home Office when they launched the EU Settlement Scheme? And, was that original intention lawful?

From the Hackney Community Law Centre, who have the Akinsanya case.

Although Ms Akinsanya was successful overall in the Court of Appeal, the Home Office were successful on one ground, regarding their interpretation of EU law. Their interpretation is that a person does not qualify for a Zambrano right to reside if they have another form of leave to remain and this interpretation was found to be correct by the Court of Appeal. In their announcement of 13 June 2022, the Home Office stated that the Appendix EU exclusion of Zambrano carers with other forms of leave from applying to the EU Settlement Scheme is justified, because this exclusion correctly reflects EU law.

https://hclc.org.uk/2022/06/euss-zambra ... june-2022/

From what I recall- under the EU rules, Zambrano didn't lead to settlement in the UK; the EU didn't make any provision for these in the Brexit talks and others who are non-EEA nationals?

under the EU rules, Zambrano didn't lead to settlement in the UK?

Under the EU rules, there is the 2003 Directive. The 2003 Directive provides long term non European residents with the ability to achieve permanent residence.

(see curia for the ruling)

Many countries, such as the Netherlands, decided Zambrano carers did not qualify under the 2003 Directive. Other countries, such as Germany, decided Zambrano carers were covered under the 2003 Directive.

The judge in March 2022 asked the higher court to decide whether or not Zambrano carers were covered, and for the decision to apply across all EU member states.

In September 2022, the Grand Court in The Hague ruled that Zambrano carers are covered by the 2003 Directive.

the EU didn't make any provision for these in the Brexit talks and others who are non-EEA nationals?

The Brexit talks led to the Withdrawal Agreement. The Withdrawal Agreement references the 2004 Directive. The 2004 Directive does not directly apply to Zambrano carers of British children who live in the UK. It only applies if the Zambrano carer moved to the EU.

The issue before the court is one of intention, and the lawfulness of that intention. How do you prove intention? By bringing in contextual factors. Although the WA is not directly applicable to Zambrano carers, part s of it provide a useful guide to show the mentality of both sides during the negotiations.

[marcidevpal]

A third country national who enjoys a right of residence as a family member of an EU citizen may acquire long-term resident status where he or she satisfies the conditions provided for by EU law

Judgment of the Court in Case C-624/20

The Court, sitting as the Grand Chamber, holds that residence as a family member of an EU citizen is NOT EXCLUDED from the scope of the directive.

In today's judgement, the Court takes the view, in the first place, that the directive excludes from its scope third-country nationals who reside solely on temporary grounds, for example as au pairs or seasonal workers, or as posted workers, or where their residence permit has been formally limited...

In the case at hand, the right of residence of a third country national in his or her capacity as a family member of an EU citizen, is justified on the ground that such residence is necessary in order for that Union citizen to be able genuinely to enjoy the substance of the rights conferred by that status for as long as the relationship of dependency with that national persists. Such a relationship of dependency is NOT, in principle, intended to be of short duration, but may extend over a considerable period.

It is for the national court or tribunal of the case in accordance with the Court's decision, which is similarly binding on other national courts or tribunals before which a similar case is issued.

The barristers who argued before the First Tier Tribunal for Zambrano carers to get permanent residence after five years were right according to the EU Grand Chamber, even though they lost.