Zambrano Settled Status EU settlement scheme Paper Application Form - NEW

[marcidevpal]

ENTRY CLEARANCE OFFICER, ABU DHABI v KHAN (ANONYMITY DIRECTION SET ASIDE)

https://tribunalsdecisions.service.gov. ... 11721-2021

UPPER TRIBUNAL JUDGE O’CALLAGHAN
DEPUTY UPPER TRIBUNAL JUDGE JARVIS

https://tribunalsdecisions.service.gov. ... 11721-2021

In this case, the First Tier Tribunal judge applied human rights to the child!!! That proves this issue of considering EUSS appeals with regard to ECHR is not so obvious or straightforward.

It seems some First Tier judges do understand that they should apply human rights to EUSS cases. They are just being overruled by the president of the First Tier Tribunal, and the Upper Tribunal.

24. We are satisfied that the material error made by the Judge was to conclude the existence of a human rights appeal as arising from an appeal made under the 2020 Regulations, without more.

The Upper Tribunal has recently confirmed in the reported decision of Celik (EU exit; marriage; human rights) [2022] UKUT 00220 (IAC) that regulation 9(4) of the 2020 Regulations confers a power on the First-tier Tribunal to consider a human rights ground of appeal, subject to the prohibition imposed by regulation 9(5) upon the Tribunal considering a new matter without the consent of the respondent, in this matter the ECO:

‘92. The first question is to decide whether the First-tier Tribunal has jurisdiction, in an appeal of this kind, to consider human rights.

The question arises because decision-making under residence scheme immigration rules (Appendix EU) does not involve a consideration of the applicant’s (or any other person’s) rights under Article 8 of the ECHR.

26. That leaves us, as a panel, with a two-year old child residing apart from her parents and elder sibling, consequent to the personal impact of the United Kingdom’s withdrawal from the European Union. No doubt has ever been raised in these proceeding as to the genuineness of parental love towards the claimant, and the strains separation is having upon the claimant’s parents – lawfully present in this country - who separated from their younger child when she was months old. Over the course of the hearing, we saw the claimant’s sibling wandering around our hearing room, eating crisps and charming us with her smile and humour. Her separation from the claimant was at the forefront of our minds; they are four and two years of age and could reasonably expect to be growing up and playing with each other, developing those close sibling bonds that can be a bedrock through life.

27. At our request, Mr. Tufan took instructions, and we were subsequently informed that consequent to the exceptional circumstances arising, the ECO was willing to consent to the Tribunal considering the human rights (article appeal as a new matter.

===================================================

UK Human Rights Act 1998

1. Articles are to have effect for the purposes of this Act subject to any designated derogation or reservation

2. A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any—

(a)judgment, decision, declaration or advisory opinion of the European Court of Human Rights, whenever made or given, so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen.

On Derogation

The Human Rights Convention recognises that sometimes States experience situations of extreme crisis. In those times, it might not be possible for a State to achieve all of the Convention obligations it’s adopted. So, the Human Rights Convention provides some flexibility for States dealing with crises – it gives States a power to derogate from certain Convention obligations through Article 15. There is no derogation for Appendix EU as far as I am aware.

On Reservation

Reservations are statements that modify the UK's obligations under the ECHR. They allow states to adjust particular obligations. No reservation has been made regarding the 2020 Regulations, as far as I am aware.

Summary

If there was a derogation or a reservation regarding EUSS and Article 8, I am pretty sure the judges would have said so. Instead, the judges say that because the 2020 Regulations do not "specifically mention" Article 8, that they don't have to or can't take human rights into account. Hogwash.

The Immigration Rules don't have to specifically say a person can appeal on human rights grounds. Any action taken by a public authority is subject to ECHR. How is this point so difficult???? This situation is nothing short of scandalous.

[marcidevpal]

Just to say, regarding the above case - Abu Dhabi versus Khan,

A two year old child was very close to being denied residence in the UK. Why?

Because the rules "do not allow" the UK judges to take into account Article 8 ECHR.

It was only because the Home Office "agreed" to allow the judges to take into account her human rights, that she was allowed to stay.

Absolutely shocking.

[marcidevpal]

The 2020 Regulations are a statutory instrument (No. 61).

Statutory Instruments (SIs) are a form of legislation which allow the provisions of an Act of Parliament to be subsequently brought into force or altered without Parliament having to pass a new Act.

Statutory instruments are also referred to as secondary, delegated or subordinate legislation.

Human Rights Act 1998 ('HRA 1998') Section 3(1) states: "So far as it is possible to do so, primary and subordinate legislation must be read and given effect, in a way which is compatible with the Convention rights".

The Human Rights Act requires the courts to interpret United Kingdom legislation so far as is possible in a manner compatible with Convention rights.

There are three main canons of statutory construction relevant to the protection of human rights in the UK:

• the presumption that Parliament does not intend to abridge fundamental rights—the principle of legality;

• the presumption that Parliament does not intend to legislate contrary to the United Kingdom's international obligations, including its obligations under international human rights instruments—the presumption of compatibility, and

• the statutory duty under section 3 of the Human Rights Act 1998 (HRA 1998) to read legislation in a way which is compatible with rights under the European Convention on Human Rights so far as it is possible to do so.

[marcidevpal]

Human Rights Act 1998

https://www.legislation.gov.uk/ukpga/1998/42/section/6

We have a situation in which the Court being asked to provide justice is, itself, in violation of the European Convention on Human Rights, in respect of its refusal to allow Article 8 claims:

6 Acts of public authorities.

(1)It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

(2)Subsection (1) does not apply to an act if—

(a)as the result of one or more provisions of primary legislation, the authority could not have acted differently; or

(b)in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.

(3)In this section “public authority” includes—

(a)a court or tribunal, and

(b)any person certain of whose functions are functions of a public nature,

but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.

How does one appeal a Home Office refusal that relies (at least in part) on human rights when the Court simultaneously violates those same human rights?

[marcidevpal]

East African Asians v UK

Here is another case from the European Court of Human Rights against the UK, that you might find useful in your arguments....I wonder how many lawmakers benefitted from this case?

The European Commission of Human Rights (see section 2.4) concluded that publicly to single out a group for differential treatment on facial grounds constituted a special affront to human dignity and that each of the applicants, as British citizens, had been subjected to such degrading treatment in breach of Article 3 of the ECHR.247

In response, the UK Government created a special voucher scheme to allow entry into the UK for an annual quota of British Asians from East Africa, as refugees rather than as British subjects exercising their right of residence.

The case concerned section 1 of the Commonwealth Immigrants Act 1968, which prevented British passport holders in East Africa - mainly of Asian descent - from entering or settling in the UK.

In the aftermath of attaining independence, Kenya, Uganda, and Tanzania had introduced policies of ‘Africanisation’, which deprived many Asians of their livelihoods.

As a result, from the mid-1960s, increasing numbers of East African Asians - who had earlier taken UK citizenship and thereby renounced their right to local African citizenship - had exercised their right to come to the UK, fearful that the UK might decide to deprive them of their rights of entry and of residence.246

The Commonwealth Immigrants Act was driven through all its parliamentary stages in just three days after a ‘brief but effective populist campaign’ led by Enoch Powell MP and Duncan Sandys MP to deprive the British Asians of their right to enter or settle in the UK (Lester, 2002: 54).

As Lord Lester (who acted as co-counsel for the applicants at Strasbourg) (2002: 55) notes, the extent of the suffering which ensued for those affected was considerable:

... stripped of their livelihood and possessions in East Africa; divided from members of their families in the United Kingdom; detained for weeks or months in prison if they sought to enter the United Kingdom without Home Office vouchers; or shuttled here and there, across Europe, Africa and Asia, desperately seeking a new world

[marcidevpal]

HYDAR v SSHD

This case provides background info on Zambrano carers, EUSS applications and Article 8

https://tribunalsdecisions.service.gov. ... 1-ukut-176

He entered the United Kingdom in 1997 and was granted indefinite leave to remain in October 2003.

He committed a number of criminal offences, beginning in 1999. In 2007, he was convicted of two counts of robbery and one count of attempted robbery. He was sentenced to imprisonment for six years. On 23 July 2018, SSHD decided that the appellant should be deported from the United Kingdom.

Before the First Tier Tribunal, he relied solely on Article 8 of the ECHR, based on his subsisting parental relationship with his daughter, born in 2008, who is a British citizen whom the appellant was supporting.

At that hearing, the appellant sought to raise, for the first time, his potential entitlement to a derivative right of residence (DRR) under regulation 16 of the Immigration (European Economic Area) Regulations 2016.

The panel also addressed whether the First-tier Tribunal and the Upper Tribunal have jurisdiction to consider an EEA ground of appeal in a human rights appeal under section 82(1)(b) of the 2002 Act.

According to Birch (Precariousness and mistake; new matters) [2020] UKUT 86 (IAC); [2020] Imm AR 873, it is unnecessary for that Tribunal to have the respondent’s consent before it can consider a “new matter”.

[marcidevpal]

Birch v SSHD

https://tribunalsdecisions.service.gov. ... 20-ukut-86

26 February 2020

Summary:
Ms Birch paid an "immigration officer" for a stamp on her passport. The guy was a fraudster. The Home Office then tried to deport her. She filed an Article 8 appeal. During her appeal, she completed 20 years residence. She wanted to raise her 20 year residence as part of her appeal as a new matter.

A lot of people are like Mrs Birch. After they start their appeal, their situation changes. Moreover, the Courts have said that if you introduce Article 8 on your EUSS appeal, that you are raising a 'new matter'.

From 20 October 2014 s85 of the 2002 Act provides how the "tribunal" would deal with a new matter. Basically, a new matter requires the consent of the Home Office in order for the judge to consider it.

The Home Office argued that the Upper Tribunal was prohibited by s 85(4)-(6) of the 2002 Act from taking into account new matters without their approval.

In Birch, the Upper Tribunal did not agree with the Home Office -

“The prohibition on considering new matters in s 85 of the 2002 Act does not apply to proceedings in the Upper Tribunal."

The Upper Tribunal took into account her 20 years of residence - without asking the Home Office for permission.

On many EUSS appeals, the Upper Tribunal is refusing to take into account Article 8 rights unless the Home Office approves (see Celik, Baton, et al).

Here is Birch's argument:

Birch submitted that the First Tier Tribunal had failed to follow a “structured approach” in its application of the Immigration Rules and the possibility of success outside them, had failed to apply guidance from the Supreme Court decision in R (on the application of Agyarko) v Secretary of State for the Home Department[2011] UKSC 11, had failed to consider all the relevant factors under section 117B of the 2002 Act, and had failed to strike a fair balance between the individual rights affected and the public interest.

[marcidevpal]

Huang v SSHD & Kashmiri v. SSHD

(Conjoined Appeals) TRP Solicitors, Luqmani Thompson & Partners

https://www.bailii.org/uk/cases/UKHL/2007/11.html

HOUSE OF LORDS

Mrs Huang appears before the House as a respondent in an appeal by the Secretary of State and Mr Kashmiri as an appellant in an appeal against the Secretary of State, but it is convenient to refer to them as "the applicants".

Neither of the applicants qualifies for the grant of leave to remain in this country under the Immigration Rules and administrative directions currently promulgated.

Both claim that the refusal of leave to remain is unlawful because incompatible with their Convention right to respect for their family life guaranteed by sections 2, 3 and 6 of and article 8 in Schedule 1 to the Human Rights Act 1998.

Paragraph 8

In the Human Rights Act 1998 Parliament not only enabled but required the Convention rights set out in Schedule 1 to the Act (including article to be given effect as a matter of domestic law in this country.

It did so (section 2) by requiring courts or tribunals determining a question which had arisen in connection with a Convention right to take into account any relevant Strasbourg jurisprudence, by requiring legislation, where possible, to be read compatibly with Convention rights (section 3) and, most importantly, by declaring it unlawful (section 6) for a public authority to act in a way incompatible with a Convention right.

Thus immigration officers, the appellate immigration authority and the courts, as public authorities (section 6(3)), act unlawfully if they do not (save in specified circumstances) act compatibly with a person's Convention right under article 8.

The object is to ensure that public authorities should act to avert or rectify any violation of a Convention right, with the result that such rights would be effectively protected at home, thus (it was hoped) obviating or reducing the need for recourse to Strasbourg.

Paragraph 11

These provisions, read purposively and in context, make it plain that the task of the appellate immigration authority, on an appeal on a Convention ground against a decision of the primary official decision-maker refusing leave to enter or remain in this country, is to decide whether the challenged decision is unlawful as incompatible with a Convention right or compatible and so lawful.

It is not a secondary, reviewing, function dependent on establishing that the primary decision-maker misdirected himself or acted irrationally or was guilty of procedural impropriety.

The appellate immigration authority must decide for itself whether the impugned decision is lawful and, if not, but only if not, reverse it.

This is the decision reached by the Court of Appeal (Judge, Laws and Latham LJJ) in these conjoined appeals, and it is correct: [2005] EWCA Civ 105, [2006] QB 1.

Paragraph 20

In an article 8 case where this question is reached, the ultimate question for the appellate immigration authority is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by article 8.

If the answer to this question is affirmative, the refusal is unlawful and the authority must so decide.

It is not necessary that the appellate immigration authority, directing itself along the lines indicated in this opinion, need ask in addition whether the case meets a test of exceptionality.

The suggestion that it should is based on an observation of Lord Bingham in Razgar above, para 20.

He was there expressing an expectation, shared with the Immigration Appeal Tribunal, that the number of claimants not covered by the Rules and supplementary directions but entitled to succeed under article 8 would be a very small minority.

That is still his expectation. But he was not purporting to lay down a legal test.

[marcidevpal]

Anoliefo v SSHD

https://tribunalsdecisions.service.gov. ... 3-ukut-345

The First Tier Tribunal has rules it operates under. You can see the search for the most up to date rules by looking for First-tier Tribunal (Immigration and Asylum Chamber) Rules 2014 Consolidated version

When you file an appeal to the First Tier Tribunal, you have to list the statutory grounds or the legal basis for your appeal.

If you applied for settlement under the EU Settlement Scheme, your application would have been based on the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020.

They talk about a violation of the Withdrawal agreement, or that the Home Office's decision was not in alignment with the Appendix EU rules, and others.

1.) Zambrano carers are not considered to be covered by the Withdrawal Agreement.

2.) Zambrano carers with leave to remain under Appendix FM can not say there is an error of law. They are not eligible under the immigration rules so because the rules do not define them as Zambrano carers.

3.) The statutory grounds for the 2020 Regulations do not list human rights violations. The First Tier Tribunal judge may say that Zambrano carers are not allowed to raise Article 8 human rights considerations.

Zambrano carers with leave to remain under Appendix FM who were refused under Appendix EU may have to file for judicial review if they want to raise an Article 8 human rights claim.

However, the case of Anoliefo suggests you may be able to get permission to appeal if you raise a human rights ground before the First Tier Tribunal -

16. Where there is no reasonable prospect that any error of law alleged in the grounds of appeal could have made a difference to the outcome, permission to appeal should not normally be granted in the absence of some point of public importance that is otherwise in the public interest to determine.

If you raise a human rights claim in your appeal to the First Tier Tribunal, you may want to explain why it is of 'public importance'.

People who are covered by the Withdrawal Agreement will rely on Section 18 which asks the judge to consider whether or not the refusal is "proportional" given the public interest. In this way, people covered by the Withdrawal Agreement can make similar arguments to Article 8.

[marcidevpal]

SSHD v Olusori

https://tribunalsdecisions.service.gov. ... 00190-2021

The Upper Tribunal published Mr Olusori's full name and date of birth!! That should not happen, in my opinion.

Upper Tribunal Judge Bruce & Deputy Upper Tribunal Judge Sills write,

On 19 August 2021, First-Tier Tribunal Judge Cole (the Judge) allowed Mr Olusori's appeal against the refusal to grant him leave to remain under the Immigration Rules of the EU Settlement Scheme (EUSS), namely Appendix EU. On 10 February 2020 A applied for leave to remain under Appendix EU, as ‘a person with a Zambrano right to reside’... While the provisions of the Appendix EU are not consistent with the EEA Regs,they do not breach any principles of the Zambrano jurisprudence... R has subsequently confirmed that the provisions of Appendix EU will not be amended...Mr Olusori cannot show that the decision to refuse his application under the Appendix EU breaches those Immigration Rules or the terms of the Withdrawal Agreement.

It isn't clear if Mr Olusori applied for a derivative residence card under the EEA Regulations. If he did, then he should have been granted permanent residence after 5 years under Article 20 TFEU, based on

E.K. versus Staatssecretaris van Justitie en Veiligheid (State Secretary for Justice and Security, Netherlands)

Case C‑624/20

https://eur-lex.europa.eu/homepage.html?locale=en

The Withdrawal Agreement safeguards permanent rights acquired prior to 31 December 2020, as far as I know.

The case raises the key question, in what way does Appendix EU breach the principles of Zambrano jurisprudence?

[chopwell20]

We now have four types of Zambrano carers

1.) Zambrano carers based in an EU member state;
2.) Zambrano carers based in the UK, who never applied for leave to remain under Appendix FM;
3.) Parents who applied for leave to remain under Appendix FM and then later applied for a derivative residence card; and,
4.) Zambrano carers based in the UK who applied for leave to remain under Appendix FM.

Group 1 will now have permanent residence after 5 years under the 2003 Directive (as long as they meet the basic requirements).

Group 2 seems to have been granted settlement by the Home Office.

Group 3 seem unlikely to ever get EU settlement because the Court of Appeal ruled they are not really Zambrano carers.

Group 4 represents two groups. The first group managed to get settlement either by going to court or because the Home Office gave them residence. The second group, the Akinsaya group, are fighting for residence.

It seems to me, all Zambrano carers should be treated the same way.

Dear MarcidevPAL,

Thank you very much for your comprehensive and informative explanation. Your insights have been incredibly valuable and I am grateful for your time and generosity in sharing your knowledge with me and the other members of this forum.

I am interested to know more about your research, specifically if it would be beneficial for individuals like myself who fall into group 3 or 4 to pursue an appeal procedure. I understand that you have put a lot of effort into your research and I am grateful for the opportunity to learn from your findings.

I hope this message finds you well and I appreciate any guidance or insights you can provide.

Sincerely,
NAD

[marcidevpal]

We now have four types of Zambrano carers

1.) Zambrano carers based in an EU member state;
2.) Zambrano carers based in the UK, who never applied for leave to remain under Appendix FM;
3.) Parents who applied for leave to remain under Appendix FM and then later applied for a derivative residence card; and,
4.) Zambrano carers based in the UK who applied for leave to remain under Appendix FM.

Group 1 will now have permanent residence after 5 years under the 2003 Directive (as long as they meet the basic requirements).

Group 2 seems to have been granted settlement by the Home Office.

Group 3 seem unlikely to ever get EU settlement because the Court of Appeal ruled they are not really Zambrano carers.

Group 4 represents two groups. The first group managed to get settlement either by going to court or because the Home Office gave them residence. The second group, the Akinsaya group, are fighting for residence.

It seems to me, all Zambrano carers should be treated the same way.

Dear MarcidevPAL,

Thank you very much for your comprehensive and informative explanation. Your insights have been incredibly valuable and I am grateful for your time and generosity in sharing your knowledge with me and the other members of this forum.

I am interested to know more about your research, specifically if it would be beneficial for individuals like myself who fall into group 3 or 4 to pursue an appeal procedure. I understand that you have put a lot of effort into your research and I am grateful for the opportunity to learn from your findings.

I hope this message finds you well and I appreciate any guidance or insights you can provide.

Sincerely,
NAD

Hi NAD,

People generally appeal if they feel they have a strong (or at least valid) argument, can afford it (or qualify for legal aid), and they understand how far they want to go.

If you go down the appeal route, you may want to ask yourself how far you are willing to take your fight? To the Supreme Court? To the European Court of Human Rights? That may take years and cost a lot of money. And, you still may lose.

You should also ask yourself why you want to appeal? Is it to make a larger point about human rights, or the treatment of Zambrano carers? Or is it just about you? And, if it is just about you, why not consider applying to or remaining on the Appendix FM route?

Another question to ask yourself is, how important to you is to obtain eligibility under the EU rules versus the UK Immigration Rules? If your goal is to ultimately become a citizen or get a British passport, does it matter if you qualify via the EU rules or the UK rules? Some people may be concerned about what they perceive to be the apparent ease with which their UK citizenship can be taken away, and may feel safer if they obtain settlement via the EU scheme.

So, I don't have an answer for you. Just questions you may want to consider. I don't think anyone can tell you to appeal on the EU Settlement Scheme outright if you are a Zambrano carer. The chances of success seem low - at least in the first stages based on recent rulings. But if you have researched the rulings and feel confident, you may want to seek legal advice.

[marcidevpal]

To appeal or not to appeal?

NOTE: The below thoughts are just my opinion and should not be regarded as legal advice.

When the Zambrano case happened around 2012, the Home Office spent years trying to prevent Zambrano carers from benefitting from the rights they acquired.

The Home Office took years to make decisions on Zambrano applications. They took years to provide Zambrano carers with (derivative) residence cards. They held (or sometimes lost) people's passports, preventing them from work or travel or to access benefits.

Zambrano carers sometimes complained to their MPs but they were not always able to get a decision during this period. The Home Office was stubborn. Zambrano carers eventually figured out that if they filed pre-action protocol letters, that the Home Office would usually give them a decision. Even still, many carers had to wait years for a decision.

Once the decision letters started to be sent, the vast majority were refusals. The Home Office believed, of those Zambrano carers who remained in the UK and who hadn't given up, many would give up at this point. But something very interesting happened. Zambrano carers, most of whom had zero legal training and many who struggled with the English language, began to appeal their refusals before the First Tier Tribunal. And they won. I think the figure was around 80 to 90%. I would have loved to have seen the look on the faces of the Home Office officials.

Anyway, Zambrano carers became complacent. They thought, I just need to know what arguments to make, and go before the First tier Tribunal, and everything will be ok. You can't blame anyone for thinking this, as it worked previously. However, the Home Office had learned from the previous round of legal cases.

One, they were successful in convincing the First tier Tribunal, Upper Tribunal and Court of Appeal that Zambrano carers were not 'habitually resident'. The idea is that their status in the UK should be limited to when the child was a child. This idea was debunked in September 2022 when Ms E.K., a carer from Ghana, sued the Netherlands version of the Home Office and won. Reading this case, it becomes obvious that Zambrano carers should have been allowed permanent residence after five years, and to stop them from achieving it was mean and unfair.

Two, when it came to negotiating the Withdrawal Agreement, the UK government was careful to exclude Zambrano carers, while at the same time telling the British public that 'everyone legally in the UK prior to Brexit would be able to remain permanently after Brexit.'

These two acts meant Zambrano carers would not be able to rely on quick, easy arguments to win before the First tier Tribunal. The grounds for appeal were decided to be that the refusal went against the Withdrawal Agreement (which Zambrano carers were not covered by), or went against the Home Office rules. And, the Home Office would simply change the rules on the fly to make sure Zambrano carers were not eligible - while, at the same time, granting residence to 'some' Zambrano carers. The reason why these Zambrano carers were successful over others, remains to be seen.

The EU settlement refusal rate for Zambrano carers was around 66% last time I looked. As with the derivative residence card, Zambrano carers had to wait months, if not years, for a decision. They had to apply by paper, for no good reason. The Home Office claims it is because Zambrano applications 'are complex', but Zambrano carers had already been processed and were in the system, as opposed to many EU nationals who had just arrived and were completely unknown to the Home Office. In contrast to Zambrano carers, EU nationals were able to apply via an app and often received a decision within 72 hours.

I should mention at this point, that Zambrano carers are mostly women from Africa, the Caribbean, Southeast Asia and Eastern Europe. A gender and/or ethnic lens should be factored in when you think about why things went so wrong.

So, Zambrano carers finally received their EU settlement applications, and the majority were shocked to find out they were refused. They applied to the First tier Tribunal and found many judges who said, 'no', and many who said 'yes'. There is very little consistency in the rulings, from what I have gathered. Then came Akinsaya.

Many Zambrano carers believed this case would decide the matter in the same way Mr Zambrano's case decided their immigration status before the European Court of Justice. But the UK Court of Appeal is not the European Court. After all those years, the Court of Appeal basically said, Home Office, your definition of Zambrano carers is unlawful, but as you make the rules, you can change them in whatever way you like. The ruling never mentioned human rights, how the refusals serve the public good, what legitimate aim is achieved by forcing Zambrano carers like Akinsaya to spend thousands of pounds and wait years to achieve settlement - in addition to the 8 or so years she had already spent lawfully in the UK.

The Akinsaya 'win' for the Home Office ( I say win because even though they technically lost the appeal, the Court of Appeal established their right to do whatever they wanted), gave the Home Office the confidence to appeal their earlier losses. If you look on Tribunal Decisions, you will see case after case being overturned. It is like a wave of misery for EU family members and Zambrano carers alike.

But there is a fatal flaw in the way this has played out. The UK judges have refused to consider human rights. In the case of Zambrano carers, they have refused to consider the E.K. case. By avoiding the elephants in the room, the UK judges have made their rulings open to being overturned by a higher court.

Zambrano carers should have done what Ms E.K. did long ago when the Home Office created a provision in the EEA Regulations to exclude Zambrano carers from obtaining permanent residence. They should have appealed to the European Court of Justice. But, what is done is done. Zambrano carers in the UK can still rely on this case - even after Brexit - because the Withdrawal Agreement says the UK Courts must take their cases into account.

Many Zambrano carers who applied for a card before 31 December 2015 are covered by the Withdrawal Agreement, because they should have been granted permanent residence and the Withdrawal Agreement protects rights acquired before Brexit.

The implications of the E.K. decision are shocking for another reason. If they should have been eligible for permanent residence after five years, it is possible they should have been eligible for benefits, to take out student loans, travel freely, etc the entire time!!! Even if Zambrano carers were only eligible after five years, many suffered or experienced a lower standard of family life due to the error in law by the Home Office and the Court's inability to correct it.

Zambrano carers are owed an apology. They may even be owed compensation. Those who completed five years residence prior to 31 December 2020 are definitely owed settlement under the EU settlement scheme, without a doubt. For if we live in a democratic society, and the Court 'got it wrong', should the Court not take action now to right the wrong? To ignore the E.K. ruling is to refuse justice to a group of marginalized people who only wanted to raise their British children in the best way possible.

Right now, in Europe, those Zambrano carers receive a permanent residence card after five years - all because of Ms E.K. Zambrano carers in the UK deserve the same opportunity.

At the end of the day, when it comes to the question of whether to appeal or not to appeal, Zambrano carers should revisit recent history. See where the winds are blowing. Understand that a resolution which involves being recognised under the EU laws may not be found in the UK Courts, but in a higher court such as the European Court of Justice or the European Court of Human Rights.

[marcidevpal]

CASE OF JEUNESSE v. THE NETHERLANDS

STRASBOURG Court (Grand Chamber) - 3 October 2014 (Application no. 12738/10 https://hudoc.echr.coe.int/eng

Ms Jeunesse alleged that the refusal to exempt her from the obligation to hold a provisional residence visa and the refusal to admit her to the Netherlands violated her rights under Article 8 of the Convention. She had been in the Netherlands for more than sixteen years and had no criminal record. She repeatedly submitted residence requests and awaited the outcome of appeals. The applicant’s address, where she has been living for the last fifteen years, has always been known to the Netherlands authorities. The Court her case to be exceptional.

Questions the Court asked: Are there any exceptional circumstances? Did the Netherlands authorities fail to strike a fair balance in denying the applicant residence in the Netherlands? Bearing in mind the margin of appreciation afforded to States in immigration matters was a fair balance struck between the personal interests of the applicant, her husband and their children in maintaining their family life in the Netherlands on the one hand and, on the other, the public order interests of the respondent Government in controlling immigration?

122. Accordingly, the Court concludes that a fair balance has not been struck between the competing interests involved. There has thus been a failure by the Netherlands authorities to secure the applicant’s right to respect for her family life as protected by Article 8 of the Convention.
123. There has accordingly been a violation of Article 8 of the Convention.

[marcidevpal]

E.K. versus the Netherlands

https://curia.europa.eu/juris/document/ ... doclang=EN

I forgot to mention, Ms E.K's case was a really big deal. It was no ordinary hearing. The hearing was before the President of the European Court of Justice (CJEU), the Vice-President, the Presidents of Chambers, and more.I really don't see how UK judges can just ignore what they said. They said Zambrano carers should generally get permanent residence after 5 years.

(Composed of K. Lenaerts, President, L. Bay Larsen, Vice-President, A. Arabadjiev, C. Lycourgos, I. Jarukaitis, N. Jääskinen, I. Ziemele (Rapporteur) and J. Passer, Presidents of Chambers, F. Biltgen, P.G. Xuereb, N. Piçarra, L.S. Rossi, A. Kumin, N. Wahl and O. Spineanu-Matei, Judges, Advocate General: J. Richard de la Tour, Registrar: M. Ferreira, Principal Administrator)

[Wishfulgirl]

Hi all, I made an appeal after my eu settlement application was rejected in August 2022 due to having held further leave to remain previously once. I copied the skeleton argument from this board and sent it with my appea along with other supporting documents. I received this today and I don’t understand what it means. I’m worried sick because I did not extended my further leave to remain in April 2022 when it expired and I am currently relying on the COA for my benefits. Can somebody explained what this means and how should I reply? Thanks

“ 1. The Respondent filed a bundle in accordance with directions given on 21/09/2022.
2. The Appellant has failed to file an Appeal Skeleton Argument in accordance with directions given on 21/09/2022.
3. The Appellant now has 14 days from the date of issue of these Directions to comply, otherwise the Appellant will be deemed to rely solely on the grounds of appeal.
4. In any event, the hearing of this appeal will take place on the first available date after 14 days from the date of issue of these Directions. This will be a final hearing not a Pre- Hearing Review or a Case Management Review.
5. Either party may make an application to vary these directions at any time.
6. Any failure to comply with the directions may be taken into account when considering the issue of costs.”

[Whyworry]

@ Wishfulgirl, When you sent your appeal the did you copied the Court and The home office

And if you do , did you used signed for postage as the evidence ?

Again, did you index your appeal and included all support documents, E.g refusal letter, application form, COA plus other relevant documents similar to what home office was relying

To be honest, I am fed up with all this appeals

I have lost hope and I think I would just rely on my last renewal for 10 years leave to remain coming up next year

[marcidevpal]

@wishfulgirl,

You may want to list the directions so people can help you.

The skeleton arguments from August are not anywhere near as good as or as clear as the arguments now. You are lucky, because you can draft a fresh appeal taking into account up to date information

1.) They will want you to say what grounds you are appealing on. The First tier Tribunal allows appeals on two grounds -

a.) the refusal is not in accordance with the Withdrawal Agreement
b.) the refusal is not in accordance with the immigration rules

I believe you may want to mention a third ground, c.) that the refusal violates your human rights under Articles 6 and 8. The First tier Tribunal judge may say that you are not allowed to argue human rights unless the Home Office allow the judge to consider your human rights. I do not believe that is correct, for reasons stated earlier, but you may want to seek legal advice.

[marcidevpal]

Appeal rights before the First-tier Tribunal & Zambrano carers w/ leave to remain under Appendix FM

My thoughts again but put in a simpler way (not legal advice, just my analysis to date)

The First-tier Tribunal identify two available grounds of appeal. Either ground does not help Zambrano carers who had leave to remain under Appendix FM before 31 December 2020. I suspect that is why this thread has gone quiet.

If you argue in your appeal ground 1 - the decision is not in accordance with the Withdrawal Agreement, the FtT may say UK based Zambrano carers are not covered by the Withdrawal Agreement. An appeal on this ground seems likely to fail.

If you argue in your appeal ground 2 - the decision is not in accordance with the Immigration Rules (Appendix EU), the FtT may say Appendix EU states people with a Zambrano right to reside who had leave to remain under another part of the Immigration rules do not qualify. An appeal on this ground may likely fail.

Therefore, it seems to me that UK Zambrano carers with leave to remain under Appendix FM will have to argue on human rights grounds or rely on the ruling by the European Court of Justice (CJEU) in the E.K. versus the Netherlands case. But, I could be wrong!!

[marcidevpal]

Submissions

IN THE FIRST-TIER TRIBUNAL (IMMIGRATION & ASYLUM CHAMBER)

BETWEEN:

EA/XXXXX/202X

JANE DOE

Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

--------------------------------------------------------------

APPELLANT’S SKELETON ARGUMENT “ASA”

--------------------------------------------------------------

This skeleton argument relates to the appellant’s appeal against the respondent’s refusal of an application under the European Union Settlement Scheme (Appendix EU) dated DD MM YYYY.

In this ASA, references will be made to “RL” which is the refusal letter, “WS” are the appellant’s witness statements, “AB” is the appellant’s bundle, and the “RB” refers to the respondent’s bundle.


[A] CASE SUMMARY

[] RESPONDENT'S CASE

[C] ISSUES TO BE DETERMINED

[D] LEGAL FRAMEWORK

[E] SUBMISSIONS

ESSENTIAL READING

The court is invited to allow the appeal.
DD MONTH 202X

[chopwell20]

We now have four types of Zambrano carers

1.) Zambrano carers based in an EU member state;
2.) Zambrano carers based in the UK, who never applied for leave to remain under Appendix FM;
3.) Parents who applied for leave to remain under Appendix FM and then later applied for a derivative residence card; and,
4.) Zambrano carers based in the UK who applied for leave to remain under Appendix FM.

Group 1 will now have permanent residence after 5 years under the 2003 Directive (as long as they meet the basic requirements).

Group 2 seems to have been granted settlement by the Home Office.

Group 3 seem unlikely to ever get EU settlement because the Court of Appeal ruled they are not really Zambrano carers.

Group 4 represents two groups. The first group managed to get settlement either by going to court or because the Home Office gave them residence. The second group, the Akinsaya group, are fighting for residence.

It seems to me, all Zambrano carers should be treated the same way.

Dear MarcidevPAL,

Thank you very much for your comprehensive and informative explanation. Your insights have been incredibly valuable and I am grateful for your time and generosity in sharing your knowledge with me and the other members of this forum.

I am interested to know more about your research, specifically if it would be beneficial for individuals like myself who fall into group 3 or 4 to pursue an appeal procedure. I understand that you have put a lot of effort into your research and I am grateful for the opportunity to learn from your findings.

I hope this message finds you well and I appreciate any guidance or insights you can provide.

Sincerely,
NAD

Hi NAD,

People generally appeal if they feel they have a strong (or at least valid) argument, can afford it (or qualify for legal aid), and they understand how far they want to go.

If you go down the appeal route, you may want to ask yourself how far you are willing to take your fight? To the Supreme Court? To the European Court of Human Rights? That may take years and cost a lot of money. And, you still may lose.

You should also ask yourself why you want to appeal? Is it to make a larger point about human rights, or the treatment of Zambrano carers? Or is it just about you? And, if it is just about you, why not consider applying to or remaining on the Appendix FM route?

Another question to ask yourself is, how important to you is to obtain eligibility under the EU rules versus the UK Immigration Rules? If your goal is to ultimately become a citizen or get a British passport, does it matter if you qualify via the EU rules or the UK rules? Some people may be concerned about what they perceive to be the apparent ease with which their UK citizenship can be taken away, and may feel safer if they obtain settlement via the EU scheme.

So, I don't have an answer for you. Just questions you may want to consider. I don't think anyone can tell you to appeal on the EU Settlement Scheme outright if you are a Zambrano carer. The chances of success seem low - at least in the first stages based on recent rulings. But if you have researched the rulings and feel confident, you may want to seek legal advice.

Thank you for your thoughtful response, Marcidevpal. You have raised some valid points and given me some important considerations to take into account as I decide whether or not to appeal.

I understand that appealing may take a long time and could potentially be costly, and I need to weigh the potential benefits against these factors. I also need to consider my motivations for appealing and whether it is worth pursuing this route.

Your suggestion to consider applying to or remaining on the Appendix FM route is also a good one, and I will consider this option as well.

Thank you again for your insights and advice.

Sincerely,
NAD

[Wishfulgirl]

@wishfulgirl,

You may want to list the directions so people can help you.

The skeleton arguments from August are not anywhere near as good as or as clear as the arguments now. You are lucky, because you can draft a fresh appeal taking into account up to date information

1.) They will want you to say what grounds you are appealing on. The First tier Tribunal allows appeals on two grounds -

a.) the refusal is not in accordance with the Withdrawal Agreement
b.) the refusal is not in accordance with the immigration rules

I believe you may want to mention a third ground, c.) that the refusal violates your human rights under Articles 6 and 8. The First tier Tribunal judge may say that you are not allowed to argue human rights unless the Home Office allow the judge to consider your human rights. I do not believe that is correct, for reasons stated earlier, but you may want to seek legal advice.

Hi Marcidevpal, you are right. The skeleton argument I used in august is quite old & tbh I didn’t have much faith after sending it. Nevertheless, I sent it anyway. My history is that I came to the UK as a family member of an EEA national, My mother was in a relationship with an Irish national. I was granted a 5 year residency permit in 2011 due to this relationship & In 2015 The EEA national sadly died. The 5 year EEA residency permit expired in 2016. In 2014, I had my first British child with my ex partner, my second British child was born in 2015 & the third In 2018.I split from my ex partner due to DV at the end of 2018. With the help of social services I applied for my first further leave to remain in 2019. I originally wanted to apply for Zambrano & intended to however, was told further leave to remain made more sense ( Now I really regret it) In October 2019, I was granted further leave to remain which expired in April 2022. I applied for EU settlement in august 2021 It was rejected in august 2022, I appealed using the previous skeleton argument from this board. I also sent supporting documents, evidence that I am the sole parent for my children from school gp, social worker etc. I also suffer from mental health condition which restricts my daily life, so a supporting letter from my mental health team was also sent. I sent everything by email & I received confirmation
”
No: Appellant: Respondent:
THE IMMIGRATION ACTS
xxxxxxxxxxxxxx
Miss xxxxxxxxxxxxxxxxxxx Secretary of State
HO Ref: Port Ref: FCONumber: Reps Ref:
NOTICE AND DIRECTIONS TO APPELLANT(S) AND RESPONDENT
This appeal has been sent to
Xxxxxxxxxxxxxxxxxxxxxx. (Xxxxxxxxxxxxxx )
Provision of Information by the Parties
Within 5 working days of the date of this Notice parties must provide a direct contact number and dedicated email address to the Tribunal and to the other party to enable the Tribunal and the parties to communicate online if not already provided.
Documents must be provided by email to xxxxxxxxxxxxxxxxx and to the other party.
To the Respondent
Not later than 14 days after the date of this Notice, unless already provided, the respondent must provide a bundle compliant with rule 24(1) of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. This bundle must include the refusal decision and any material which was submitted in support of the application.
To the Appellant
You have indicated that you want the appeal to be decided on the papers without a hearing. The Tribunal may determine the appeal on the basis of the appeal documents together with any further written evidence or submissions you may wish to make. You must send any written evidence and submissions to the Tribunal and the Respondent not later than 28 days after the Respondent’s bundle is provided, or 42 days after the Notice of Appeal, whichever is the later.
Any written evidence or submissions in a language other than English must be accompanied by a certified full English translation. Please include the appeal number on any evidence you send.
If you do not have any further evidence or submissions, then no further action from you is required.”

After this, I received a copy of all the information from home office in the post. Which I am assuming is their bundle. Everything regarding my EU settlement application, the refusal, even my previous further leave to remain application. A copy of my EU settlement review. I also did a review as well as an appeal for the EU settlement refusal. I am so anxious worried & paranoid Because the email I received today said non compliance. That’s all I received in my previous post. I don’t know how to word the skeleton argument, I don’t know how to argue it. I don’t know the best way to put forward a skeleton argument and the email says they need a response within 14 days. With Christmas and the NEW year coming up, How will I know if they’ll even receive my skeleton argument within that time. I want to argue that despite my grant of further leave to remain in October 2019. I served a full 5 years as a zambrano carer between the time my British child was born may 2014 & may 2019. I don’t believe a grant of further leave to remain issued on October 2019 should legally strip me of such right to receive settlement as Zambrano carer. I served the full 5 years as a Zambrano carer prior to being issued FLR. This should be taken into consideration. Also , at the time, the law stated it wasn’t compulsory Zambrano carers needed to apply for a Zambrano residency permit as a way of evidence . However, I am not clued up with law and I don’t know how to put my argument across legally and professionally to the courts where it makes sense. I cannot afford a lawyer & at this point I feel I should try and apply for a fee waiver and continue my flr. If anyone has any tips on how best I can draft a skeleton argument stating the current law regarding Zambrano and how I can send it within the next 14 days, I would really would appreciate it very much. Thanks

[marcidevpal]

You are welcome, Nad!

Best of luck, whichever route you pursue

[marcidevpal]

Hello Wishfulgirl,

Have you sent the email to the Court and copied in the Home Office with your email address, home address, phone number, etc? Also, you can email the court and ask them to ask the judge for a further two weeks as we are in the middle of the holidays. The judge may say yes. A copy of the structure for the skeleton argument is in an earlier post.

You have two strong statutory grounds to argue. You can stress yourself trying to create the perfect argument, or you can accept that the current environment means there is a strong chance you will lose at the First-tier Tribunal, Upper Tribunal, etc. and will need to appeal to a higher court, outside the jurisdiction of the UK.

It's just my opinion, but I think you should focus on creating a skeleton argument and witness statement that will help you with either the CJEU and/or the ECtHR. (That means the European Court of Justice and the European Court of Human Rights).

It is important to understand in a general sense, what you are arguing and why. Then, it becomes relatively straightforward to write the arguments. Here is my understanding of what you would say, based on what you explained:

Ground 1 - The decision is in breach of your rights under the Withdrawal Agreement

You were given leave under the EU rules as the family member of an EEA national. I believe those rights continue even if your sponsor dies, but I could be wrong. You could argue that you completed five years under the EU rules and should have been given permanent residence before the 31st December 2020. Under the Withdrawal Agreement, the UK has a responsibility to help people qualify. I would just make the argument that I qualify under the Withdrawal Agreement as the family member of an EEA national, and/or also as a Zambrano carer who should have been eligible for permanent residence before 31st Dec 2020 and let the Home Office or the judge prove you are not.

Ground 2 - The decision is in breach of the Immigration Rules

I am not sure how you would argue this ground. It may not be worth it.

Ground 3 - The decision is in breach of your human rights (ECHR)

This third ground is not accepted by the First-tier Tribunal, but you should probably make it anyway. They may say you have to get the permission of the Home Office for the judge to consider your human rights. In my opinion, that is simply false. Human rights are universal and fundamental. The UK is a member of the Council of Europe. That means they agree to take into account ECtHR jurisprudence where relevant. The UK simply can not make legislation that prevents people from raising a human rights claim and from having it considered, in my opinion. If the UK judges refuse to consider your human rights, however, then you need to file a claim with the European Court and the judges will do a balancing test. You have been in the UK lawfully for over 10 years. You have a strong case for why you should be granted permanent residence. The UK is a contracting state to the United Nations and to the European Convention on the Protection of Human Rights. They say that after a certain amount of time, people should be granted permanent residence. It is good that you applied on paper, because you will have all of your documents to show to those courts. Based on my readings of the E.K. decision, and various decisions by the ECtHR, if you don't have a serious criminal record, I don't see how they will rule against you. The ECtHR does a balancing test. They balance society's needs for immigration control against your need for permanent residence. There is a case for criminals, people who entered illegally or overstayers to not be given residence, but even then only in certain circumstances. There has to be a legitimate aim for denying you residence.

[marcidevpal]

A new dawn

I believe we are entering a new era, where immigrants accept that they will quite possibly lose in the UK courts, but try to get through the process as quickly as possible so their claim can be heard at either the European Court of Human Rights or the European Court of Justice.

Today, Zambrano carers do not spend too much energy on the Administrative Review process. Why? Because it takes too long and almost always results in a refusal. Often, people aren't even bother to go through Admin Review. People will still have to go through the First-tier Tribunal, Upper Tribunal, etc, but they won't rely on the decisions as the final word.

The Court of Appeal has gotten too many things wrong. They said Zambrano carers were not 'habitually resident' even though it is obvious they are. They allowed the EEA Regulations to stand. Provision 15 of the EEA Regulations say that people who hold derivative residence cards can not qualify for permanent residence. Well, we know from the President of the European Court of Justice that that rule is unlawful. Every single judge within the European Court of Justice will now be inclined to rule in favour of a Zambrano carer who wants permanent residence, and who has lived in the EU for at least five years.

What I can not understand, is why the UK barristers did not apply to the higher courts before. Or, why the UK judges never referred cases to the CJEU or the Strasbourg Court of human rights? Ms E.K.'s case was referred to the CJEU by a Netherlands judge. In any case, Zambrano carers may need to start preparing for an appeal to another court, once they receive their decisions from the UK courts.

In the early years, Zambrano carers would come onto this board and say, "I have been refused. " People would then help them file appeals before the First-tier Tribunal. In future, people will say, the UK Courts refused my appeal, and people will help them file appeals before the ECtHR and/or CJEU. It is important, however, that the arguments before the UK judges are presented in the right way. For example, it is important to actually raise human rights violations in your skeleton argument.