Zambrano Settled Status EU settlement scheme Paper Application Form - NEW

[abdulhasim]

Dear Marcidevpal
Thanks for your insightful advice , I am going to start working on those point that you suggest.
Thanks again for your kind and selfless help. Its means a lot.

[marcidevpal]

Evening Abdul,

Glad to see you are taking the feedback like a true hero! At the end of the day, all that matters is that you are as comfortable as possible with the strategy you adopt.

I don't really understand your whole situation, so I can only be of limited help. Take what I say with a grain of salt. That means, not too seriously. Who knows? Something I say could make you reject my advice, but realise you should do something you never thought of before.

I do hope others can weigh in with their thoughts. The more perspectives, the better! It certainly sounds like you have a decent chance of winning your appeal if their main argument is that you should apply for Appendix FM. Keep us posted! No matter what happens, you are making history. I am sure your family is proud. All the best, MDP

[marcidevpal]

In person trials - Traps

I mentioned previously that you may want to create a checklist and practice speaking your checklist. Moreover, you could have a friend interrupt you as you are going through your checklist. Practice what you will say to the judge if you are interrupted. Practice finding your place again and continuing your train of thought.

There is a step before practicing being interrupted. The judge will probably want someone to summarize the key issues to set the tone. The lawyer for the Home Office will probably offer to do the summary.

In my opinion, I do not believe you should let the barrister do the summary. The barrister is likely to leave out key facts that could help you, or even get things wrong.

Practice what you may want to say to the judge to let you do the summary. But that only works if you have created a checklist of things to say.

All of these things to consider may stress you out. That is why I am a fan of paper hearings. I think in person hearings are best if the Home Office does not believe you are actually a Zambrano carer. That is a point of fact that you can probably best establish by showing up in person. For appeals that are more philosophical, it is probably best to put all of your arguments on paper. That way, you know you got a chance to say everything you needed to say. But, that is just my opinion.

[marcidevpal]

Refusals - September 2022

14,540 applications were received from Zambrano applicants. 9,350 were concluded.

Zambrano refusals = 7,070
Total refusals for all derivative rights applications = 7,530

Zambrano applications accounted for 94% of the total refusals for derivative rights applicants.

Also, 7,070 Zambrano carers were refused. 9,350 applications were decided. That means 78% of Zambrano applications that were decided were refused!

[marcidevpal]

Refusals - June 2022

13,820 applications were received from Zambrano applicants. 4,260 were concluded.

Zambrano refusals = 2,360
Total refusals for all derivative rights applications = 2,780

Zambrano applications accounted for 85% of the total refusals for derivative rights applicants.

Since 2,360 Zambrano carers were refused and 4,260 applications were decided that means 55% of Zambrano applications that were decided were refused by June 2022.

https://www.gov.uk/government/statistic ... -june-2022

https://www.gov.uk/government/statistic ... ember-2022

[marcidevpal]

Repost - Refusals December 2022

EU Settlement Scheme Statistics - Refusals

https://www.gov.uk/government/statistic ... ember-2022

As of 31 December 2022
14,790 applications received from Zambrano applicants
12,870 concluded applications for Zambrano applicants
10,300 refused applications for Zambrano applicants

Total number of refusals for derivative rights applications 10,790. Zambrano applicants accounted for 95% of the total refusals.

So about 2570 Zambrano applicants were successful as of 31 December 2022.

10,300 Zambrano applications were refused - out of 12,870 decided applications. That's an 80% refusal rate.

[marcidevpal]

Repost - Sample Checklist

Summary

Here are a few topics you may want to learn about and potentially raise in your appeals:

1.) United Nations Human Rights Council, special rapporteurs, investigations, etc
2.) ECtHR case law - previous pages list about 20 cases to review
3.) CJEU / ECJ case law - in particular Zambrano, Dereci and E.K.
4.) Supreme Court rulings - MM
5.) Court of Appeal rulings - Akinsaya, Celik, Velaj
6.) Upper Tribunal Zambrano cases - Akinsaya, Celik, the Colombian Zambrano carer who won, early Zambrano cases (circa 2013)
7.) The Withdrawal Agreement and Political Declaration references to ECHR, discrimination, Union law
8.) The Human Rights Act - requirements put upon judges
9.) Appendix EU and the related policy guidance - highlight unlawful passages
10.) How the Secretary of State for the Home Department current state of mind is illogical and irrational
11.) Articles 8 ECHR and more
12.) Discrimination by reference to the UN, ECHR, HRA

[marcidevpal]

In person trials - Mean Judges & "Appeal Mode"!

Ok, so you are standing there before the judge. From the first moment to the last, the judge signals zero compassion for your situation. Perhaps they have a thing against Zambrano carers. Here are some things you may experience:

• He or she may dismiss your arguments or cut you off while you are talking.

• They may use super complex legal language.

• They may ask you why you did not bring certain evidence and blame you.

• They may even call you names, insult your intelligence, etc.

If you know you are going to lose, you may want to go into "Appeal mode". That means being aware of many mistakes the judge makes. Shift your focus to the judge. The list below is a list of mistakes made by judges.

MISTAKES

Appeal to the Upper Tribunal (UTIAC) on a point of law

An appeal on a point of law could include any ground of challenge that would be available in an application for judicial review. You may want to challenge the First-tier Tribunal judge if their decision:

• ignores relevant factors

• takes into account irrelevant factors

• fails to direct itself properly in law (ie failure to follow the statute or the case law that has interpreted how the law should be applied)

• reverses the burden of proof or imposes too high a burden of proof

• fails to give the applicant the benefit of the doubt (where there is a doubt)

• fails to make findings of fact

• fails to give adequate reasons for its decision

• fails to follow the statutory review procedure

• reaches a decision totally at variance with the facts or for which there is no factual basis

• fails to act in accordance with the objects and principles of the relevant Act

• fetters its discretion (often referred to as operating blanket policies)

• goes back on a legitimate expectation

• acts dishonestly or in bad faith (this is normally very difficult to prove)

• comes to a decision which is so unreasonable that no reasonable authority could have come to it

What I am saying is this: Keep trying to make your points. Interrupt the other side if they are wasting time or saying things that are simply not true. If the judge ignores you, make a note of all the things you feel the judge did wrong in the moment. After the hearing, talk into your phone. Say what struck you as unfair. Say as much as possible. Later, turn your voice notes into written notes. Then, decide which points should go into your appeal.

[marcidevpal]

Refusals & Celik

June 2022: The Home Office says they will not change their policy. The decision means many Zambrano carers want to rely on human rights arguments to win their appeal.

July 2022: The Celik decision happens. The President of the Upper Tribunal effectively told First-tier Tribunal and Upper Tribunal judges to NOT take their Article 8 ECHR human rights into account.

Zambrano refusals over time

• 10,300 at December 2022

• 7,070 at September 2022

• 2,360 at June 2022

The Celik decision happened at the moment Zambrano carers needed to rely on their human rights. At present, Celik is under appeal before the Court of Appeal. If Celik is overturned, Zambrano carers can raise Article 8 on their EUSS appeals again.

[marcidevpal]

What's happening with the Celik Appeal? Hint: See Case Tracker

The Case Tracker allows users to search for information on applications or appeals in the Court of Appeal, Civil Division. https://casetracker.justice.gov.uk/getD ... 022-002008

Reference: CA-2022-002008
Title: Celik v The Secretary of State for Home Department
Appeal from the order of Upper Tribunal Judge Mr Justice Lane, UTJ Hanson and UTJ McWilliam
Upper Tribunal Immigration and Asylum Chamber dated 18-Jul-2022
Hearing Status: N/A
Case results:Allowed on 26-Jan-2023
Current Status: Awaiting a hearing - see Hearing Status
Last Updated: 06-Mar-2023

[marcidevpal]

What's happening with the Akinsaya appeal? Supreme Court?

Akinsaya won before the Upper Tribunal and Court of Appeal. The Home Office changed the immigration rules. They refused Akinsaya's EU Settlement Scheme application anyway. I wonder if she wants to keep fighting? I do not see any upcoming cases under the name, Akinsaya, on the Supreme Court's website. See https://www.supremecourt.uk/current-cases/index.html for the list of current cases.

I could be wrong, but I think the problem created by the Court of Appeal, is the idea that the Secretary of State for the Home Department can do whatever it pleases - as long as the words it uses are correct - in legal terms. Do you realize what that means? It means that there is no way to win.

The judges are supposed to judge the reasonableness of the actions taken by the Home Office. The Court should not rubber-stamp decisions by the Home Office. It could easily be next year before Akinsaya type Zambrano carers get a final answer by the Supreme Court (assuming it goes to the Supreme Court).

[marcidevpal]

Celik Appeal - 4th July 2023

https://casetracker.justice.gov.uk/getD ... 022-002008

Case Reference: CA-2022-002008
Title: Celik v The Secretary of State for Home Department
Appeal / Application: from the order of Upper Tribunal Judge Mr Justice Lane, UTJ Hanson and UTJ McWilliam
Upper Tribunal Immigration and Asylum Chamber dated 18-Jul-2022

Hearing Status: Fixed on 04-Jul-2023 - estimated length (in hours): 6:00

[askme234]

Hi All,

I need your help on the following points.

Background

Applied for Derivative card as a Zambrano carer before the end of the Dec 2020 transition period whilst I hold leave to remain under the Fm route which was due to expire in 2021.

Application refused by home in 2020, appealed the decision, first tier tribunal dismissed the appeal. Appealed first tier tribunal decision at the upper tribunal, Upper tribunal found that first tier erred in law, set aside the decision of the first-tier tribunal and it is to remake the decision.

Home office has now brought forward another argument which is likely to be considered in the hearing which is due soon.

Home office arguments

That regulation 16 has been revoked on 31 Dec 2020 and the consequential regulations did not save Reg 16 hence reg 16 is not available to me to argue or to the tribunal hence the case should be dismissed.

it then went on to say the court only has jurisdiction to allow the appeal based on a breached rights under reg 16 as they continue in effect by the consequential regulations or Citizen rights or EU withdrawal agreement.

my questions

are these arguments valid in law? Is there any relevant case law that I can use to counter these arguments on the basis that the law at the date of application should be used to determine the appeal?

In the event that the argument is considered by the judge based on a breached of rights as stated above, could you please assist me with any case law or relevant law that I can use to prove that my right was indeed breached under Citizen right, EU withdrawal agreement?

Your contribution or your experience if you have had similar case would be highly appreciated.

Just to add I am litigation in person and hold no leave since 2021

[marcidevpal]

What type of Zambrano carer are YOU??

First things first, you are NOT an Akinsaya type Zambrano carer.

You applied for leave to remain under Appendix FM around 2018 and for a derivative residence card in 2020.

Akinsaya had a derivative residence card for years, and then applied for leave to remain under Appendix FM.

Your situation is worse than Akinsaya's yet you won at the Upper Tribunal. What a fantastic achievement!

It seems you may be a Giraldo type carer. Therefore, you could cite the case law of Giraldo v SSHD.

https://tribunalsdecisions.service.gov. ... 01800-2021

[marcidevpal]

Error of law

Appealed first tier tribunal decision at the upper tribunal, Upper tribunal found that first tier erred in law, set aside the decision of the first-tier tribunal and it is to remake the decision.

What was the error in law? This information could be very useful to other Zambrano carers. Understanding the error in law will also help put the Home Office's new arguments in context.

[marcidevpal]

The Court of Appeal & "Arise"

Based on my reading of the Akinsaya case, the Court of Appeal said you can't become a Zambrano carer if you already have leave to remain under Appendix FM. In other words, the Zambrano right does not "arise" or become real.

The Court of Appeal says the Zambrano right is "waiting in the wings" in case you lost your leave to remain under the UK's immigration rules. The Court of Appeal did seem to accept, however, that you didn't HAVE to apply for leave to remain under the UK rules.

The Court accepted you could just apply for a derivative residence card and never apply for leave to remain under Appendix FM. Also, if you applied for leave to remain under Appendix FM AFTER having a derivative residence card, you were still a Zambrano carer. You would not lose your status as a Zambrano carer.

But then we see the Giraldo case from 2 November 2022. Ms Giraldo had leave to remain under Appendix FM from 2015 to May 2020. In March 2020, she applied for settlement under Appendix EU (the EU Settlement Scheme). The First-tier Tribunal and Upper Tribunal both agreed she was entitled to permanent residence under Appendix EU.

After the Giraldo case, the Home Office changed the rules again. They say you can't count time spent under Appendix FM. They also say that if you are likely to be approved for an extension for Appendix FM, that your application will be refused. At the end of the day, the Courts have to decide if all of these limitations the Home Office places on Zambrano carers are rational. Then, the Courts need to apply the decision fairly to everyone. Right now, the Courts are treating some Zambrano carers with the same background differently to others. That's why I call them the lucky ones.

[marcidevpal]

Current Appeals & Celik

If you are a Zambrano carer and you are appealing to the First-tier Tribunal and Upper Tribunal (or even the Admin Court or Court of Appeal), you may want to cite the Celik case. The Court of Appeal will not hear the case until early July, but you should raise it in your submissions. The outcome of the appeal may help you.

The case is about human rights. Celik is not a Zambrano carer. He did, however, apply for settlement under Appendix EU/ the EU Settlement Scheme. The President of the Upper Tribunal said he can't argue his Article 8 ECHR (human rights) have been violated.

The President ignored Dereci. Dereci is case law passed long before Brexit. Dereci says Courts and the Home Office must take into account human rights.

The Brexit Withdrawal Agreement says the UK must apply case law passed before Brexit. So, the Courts must apply Dereci. The President of the Upper Tribunal said the Courts are allowed to ignore Dereci. I believe Celik will win, but we will have to see.

[marcidevpal]

Are UTIAC ignoring Underhill (Court of Appeal)?

UTIAC = Upper Tribunal Immigration and Asylum Chamber

In the Court of Appeal's opinion in Akinsaya, Underhill LJ said you can't become a Zambrano carer if you already have leave to remain under Appendix FM. A group of people applied for leave to remain under Appendix FM first, and then later applied for a derivative residence card. These Zambrano carers were successful anyway before UTIAC.

Why were some successful and others not? Did the judges just prefer their accents?

Giraldo is a little bit different. It seems Giraldo never even applied for a derivative residence card. She only ever had leave to remain under Appendix FM. She applied for settlement under Appendix EU anyway. She was successful at the First-tier Tribunal and the Upper Tribunal. Both judges agreed she was a Zambrano carer.

Let's consider Giraldo again. Perhaps she had been in the UK for some period of time without any leave before she applied for leave to remain under Appendix FM? If so, then she would have been somewhat similar to Akinsaya.

Like Akinsaya, Giraldo's Zambrano right could have "arisen" before her leave to remain under Appendix FM. She would have been relying on her Zambrano rights at the time she applied for leave to remain under Appendix FM.

Unlike Akinsaya, Giraldo did not apply for the derivative residence card, and so did not have the official documentation. Under EU rules, you don't technically have to apply for a document to exercise your rights.

[marcidevpal]

Giraldo versus Akinsaya

Another key point about the difference between Akinsaya and Giraldo. On 31 December 2020, Giraldo had not been granted an extension to her leave to remain under Appendix FM. Akinsaya, on the other hand, still had an active status of leave to remain under Appendix FM on the 31st December 2020.

The next question becomes, is it right to refuse Akinsaya type carers just because their leave to remain was active on 31st December 2020? Or, is the policy irrational?

Surely, Akinsaya type carers would never have applied for leave to remain under Appendix FM if they had known it would disqualify them from settlement under Appendix EU. At the very least, they would have cancelled it.

The Home Office sent letters telling Zambrano carers to apply under Appendix FM and then refused them for it. It is deception and the Court should not allow it.

[askme234]

Error of law

Appealed first tier tribunal decision at the upper tribunal, Upper tribunal found that first tier erred in law, set aside the decision of the first-tier tribunal and it is to remake the decision.

What was the error in law? This information could be very useful to other Zambrano carers. Understanding the error in law will also help put the Home Office's new arguments in context.

Hi marcidevpal,
thanks for the comment and the case law.

the error of laws are

That the judge failed to apply Patel case in assessing the relationship of dependence in determining whether the British citizen would be compelled to leave if the carer is required to leave the UK or EU

that regulation 2016 was not followed because he assumed that because the appellant is joint primary carer he didn't meet the criteria in reg 16

that because the appellant has leave to remain at the time, he didn't qualify for reg 16. However, the judge found that the appellant only had limited leave and not indefinite leave


I think my case is similar to the case law you sent me. The only difference is that the appellant in that case applied for EU settlement scheme directly at the time and I applied for derivative card.

many thanks

[marcidevpal]

Hello A,

It would be helpful if you added the exact paragraphs from the Home Office. It is hard for me to follow what you have summarized.

I don't understand why the Home Office is choosing to focus on the EEA Regulations when they have an easier argument - that you had leave to remain under Appendix FM on 31st Dec 2020.

The Upper Tribunal judge seems to agree with you that you were a Zambrano carer before 31 December 2020. You also had leave to remain under Appendix FM on 31st December 2020.

You seem to be more like Akinsaya than Giraldo. Giraldo did not have leave to remain on 31st Dec 2020.

The First-tier Tribunal judge will probably refuse your application because you had leave to remain under Appendix FM on 31st December 2020.

You could raise your Article 8 ECHR to say that despite whatever arguments the Home Office raises, on balance, you deserve settlement under Appendix EU based on the European Convention on Human Rights.

You can also raise Akinsaya and mention that it is still undergoing appeal. The First-tier Tribunal judge may want to see what happens with Celik regarding your human rights. The judge may also want to wait for the Akinsaya appeal.

[marcidevpal]

Akinsaya & You

Hi again A,

So, you appear to NOT be like Akinsaya in this way:

Akinsaya was a Zambrano carer and then applied for leave to remain under Appendix FM. You had leave to remain under Appendix FM and then applied for settlement as a Zambrano carer.

This difference between you and Akinsaya may not matter at the end of the day. UTIAC judges do not appear to always care whether you had LTR under Appendix FM before you applied for a derivative residence card - or not. Underhill LJ cares, but your case may never get to the Court of Appeal.

You seem to be like Akinsaya in this way:

You both had leave to remain under Appendix FM on 31 December 2020. The Home Office says anyone with leave to remain under Appendix FM on this day should be refused settlement under Appendix EU. If Akinsaya wins at here next appeal, then you can benefit from her win.

[marcidevpal]

EEA Regulations versus ECJ Case Law

The Home Office asks UK judges not to take into account the EEA Regulations anymore, because the EEA Regulations were created in response to EU legislation and EU case law.

This argument seems logical. Brexit happened, so EU laws should no longer apply.

However, the Home Office references EEA Regulations in their refusal letters. The Home Office can't have it both way. They can't rely on EEA Regulations to refuse you, then say the EEA Regulations should not apply.

But my second point is even more important.

The EEA Regulations are a statutory instrument created by the UK. EU case law is created by the European Court of Justice.

Even if the judges ignore the statutory instruments EEA regulations, UK judges still have to pay attention the case law by the European Court of Justice (CJEU). Why? Because that's what the Withdrawal Agreement says.

Any case law passed before Brexit has to remain in force. Mr Zambrano's case was decided way before Brexit happened, just like Mr Dereci's case. UK judges have to apply the case law of Mr Zambrano under the terms of the Withdrawal Agreement.

The Withdrawal Agreement does not say UK judges have to apply EU case law - with the exception of the Zambrano case. Check it out for yourself. It's there in Article 4, paragraph 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.

The ECJ case of Mr Zambrano remains relevant case law - even if the EEA Regulations no longer apply.

References
https://www.legislation.gov.uk/eut/with ... ts/adopted

[marcidevpal]

Withdrawal Agreement: Concepts versus Scope

WA Scope
The Home Office will probably say that the Zambrano case law no longer applies because Zambrano carers do not explicitly fall within the "scope" of the Withdrawal Agreement. It is true that the Withdrawal Agreement identifies specific groups. Zambrano carers of British children are not one of those groups.

WA Concepts
The Withdrawal Agreement also talks about concepts. The WA raises the concept of proportionality. It also raises the concept of human rights. Finally, it says the concepts raised by previous (and current) ECJ case law fall within the scope of the WA. How Zambrano carers should be treated, is a concept covered by the Withdrawal Agreement, because ECJ case law is covered by the WA and the case of Mr Zambrano is ECJ case law.

So, while Zambrano carers of British children are not directly covered in the scope of the WA, the concept of the Zambrano carer is covered because of the ECJ's ruling on Mr Zambrano's case.

If the Court of Appeal rules this July that the case law of Dereci is relevant, they judges should also recognize the case law of Zambrano.

[marcidevpal]

Continued from above post.....

Although, the Home Office may then argue that Dereci relates to all types of derivative card holders, whereas Zambrano case law only relates to Zambrano carers. On that basis, they allow Dereci but not Zambrano.

But, then you would say to the judge that the EUSS application is literally named after Zambrano, so the case law of Mr Zambrano must indeed be relevant.