Velaj and Akinsaya
Hello Everybody,
Velaj and Akinsaya decisions are hard to read. In my opinion, that makes them poorly written. Another reason is because everyone sees what they want to see in those decisions. Your job is to say that the Home Office's interpretation is wrong. Your job is NOT to say here is what the case of Akinsaya means, or here is what the case of Velaj means. You are a litigant in person. Keep your responsibilities focused on challenging or rebutting the points raised by the Home Office.
Hi Abdul,
You still may be able to switch to a paper hearing particularly if the Judge may struggle to understand your English. It's up to you.
Try to write in short and clear sentences. Make sure each sentence serves a clear purpose. Make sure the sentence that follows relates to the previous sentence. State your point in the first paragraph and repeat the point in the last paragraph. Each paragraph should represent a single point.
In my opinion, it doesn't matter what the deciding point was in the case of Velaj. Your hearing is not an academic exercise. It is you being laser focused on the Home Office's main arguments and showing how they cannot possibly be correct. Focus on their words, not the cases. The cases are there just to add context. You may want to raise other cases. Just because the Home Office raise Akinsaya and Velaj, does not mean they are the only cases you discuss. Nevertheless, I would read the cases again and again as the judges are familiar with them.
The Court of Appeal judges made multiple points. The only question in my mind is, did the judges make the points that the Home Office claims? You should prove them wrong by making points one by one in a logical fashion. Don't start from their words. Start from a logical place; i.e, start by establishing basic definitions.
I strongly urge you to make a chart and answer the following questions in very simple English.
1.) What is the Akinsaya case about?
2.) What does the Home Office say Akinsaya is about?
3.) What is the Velaj case about?
4.) What does the Home Office say Velaj is about?
5.) How are your circumstances similar to Ms Akinsaya's?
6.) How are your circumstances different to Ms Akinsaya's?
7.) How are your circumstances similar to Velaj's?
8.) How are your circumstances different to Velaj's?
You appear to be jumping to the part where you start to make arguments. I urge you to be able to answer the above questions from memory and in simple terms. Here is a start,
Akinsaya
Akinsaya considered Regulation 16(7). The judges considered the following questions,"Does 16(7) act as a threshold barrier? Namely,
- Did 16(7) preclude someone like Ms Akinsanya from asserting that she had a derivative right of residence under Regulation 16(5) (or its predecessor)? and
- Did her derivative right survive the subsequent grant to her of limited leave to remain?
Velaj
Velaj concerned Regulation 16(5) in general and 16(5)(c) in particular. The judges considered the following question, "Even if Ms Akinsanya held leave to remain under the Rules, would her British citizen child be unable to remain in the UK, or an EEA Member State or Switzerland, if she was in fact required to leave the UK for an indefinite period."
If you do not have leave to remain, then the case of Velaj is not relevant apart from one paragraph. I remember the judge in Velaj saying that the ability to apply for leave to remain under Appendix FM is not certain. Even if you were to get leave to remain the first time, there is no guarantee your renewal application would be successful. I would argue that Velaj is not relevant to your situation apart from that point. You don't seem to have leave to remain under Appendix FM.
Conclusion
Long story short, don't let the Home Office allow you to become distracted. The central issue FOR YOU is that their approach is discriminatory and irrational. They said their goal was to allow people without leave to remain under Appendix FM to obtain EUSS. Many families have achieved settlement on this basis. You don't have leave to remain under Appendix FM. The only question is, therefore, were you a Zambrano carer before the transition date?
The Home Office has not offered a compelling reason as to why you should be treated differently to those successful families. That is your argument. Not about what the judges may or may not be saying in Akinsaya or Velaj. Those cases have little to do with you - based on my understanding of your situation.