Errors of Law - Examples
SECTION A
First-tier Tribunal Judge ABC committed errors of law. She
failed to:
- Acknowledge the fact that the First-tier Tribunal and Upper Tribunal recognized the appellant is a Zambrano carer under Union law in 2019.
- Recognise the only reason the appellant applied for leave to remain under Appendix FM was because the EU Settlement Scheme had not opened, and it was unclear whether or not the appellant would qualify.
- Accept the fact that the appellant had been resident in the UK as a Zambrano carer for five years prior to the transition date. The case of E.K. v Netherlands establishes the right of Zambrano carers to achieve permanent residence after five years. Under the terms of the Withdrawal Agreement, judges should have due regard for case law passed after Brexit.
- Allow the appellant's arguments about the way in which the SSHD misdirected herself by advertising the scheme as open to “Zambrano carers” for years without informing the public that she intended to exclude people who applied for leave to remain under Appendix FM.
- Address the appellant’s arguments about the discriminatory nature of the domestic provisions, particularly in light of the statistics which show 90 percent of applicants were refused.
- Give due consideration to the points made regarding the Human Rights Act or the European Convention on Human Rights.
SECTION B
(In this area, quote sentences from the First-tier Judge's refusal letter. Explain how each sentence is wrong.)
1.) At paragraph [insert number here], FtT Judge ABC writes,
insert the judge's sentence here
The judge failed to consider the paragraph [insert number here] of the
Withdrawal Agreement (WA) which states,
insert quote from the Withdrawal Agreement here
2.) At paragraph [insert number here], FtT Judge ABC concludes,
insert the judge's sentences here
The judge did to recognise paragraph [insert number here] of the
Political Declaration (PD) which states,
insert quote from the Political Declaration here
3.) At paragraph [insert number here], FtT Judge ABC reasons,
insert the judge's sentence here
The judge also did not take note of paragraph [insert number here] of the case of Ms E.K versus the Netherlands, in which the
European Court of Justice (CJEU or ECJ) ruled the following:
insert quote from the ECJ case law on Ms E.K. here
4.) At paragraph [insert number here], FtT Judge ABC writes,
insert the judge's sentence here
The judge also did not consider paragraph [insert number here] of the case of [insert case here], in which the
European Court of Human Rights (ECtHR) ruled the following:
insert quote from the ECtHR case law here
5.) At paragraph [insert number here], FtT Judge ABC says,
insert the judge's sentence here
The judge also did not appreciate paragraph [insert number here] of the case of [insert case here], in which the UK
Court of Appeal (CA) ruled the following:
insert quote from the Court of Appeal case law here
6.) At paragraph [insert number here], FtT Judge ABC concludes,
insert the judge's sentence here
The judge also did not account for paragraph [insert number here] of the case of [insert case here], in which the
Upper Tribunal (UT) ruled the following:
insert quote from the Upper Tribunal case law here
Conclusion
Accordingly, the appellant's request for permission should be granted.
