Zambrano Settled Status EU settlement scheme Paper Application Form - NEW

[marcidevpal]

Good morning Krish,

Do you still have a copy of the letter they sent you when they approved your leave to remain under Appendix FM? The letter should tell you if you were approved under R-LTRPT.1.1 or GEN.3.2.3.

Appendix FM is for people who are family members of British citizens. One of the following must be true at the time you applied:

• Your spouse is a British citizen, or

• Your children are British citizens, or

• You are eligible under exceptional circumstances.

Did the Home Office admit in their Appendix-FM letter to you, that your children were British citizens? If so, that probably means you were a Zambrano carer even before you made the application.

If the Home Office did NOT admit in their Appendix FM letter to you that your children were British citizens, that could mean that at the time you made the application, it may mean you were not a Zambrano carer.

The Court of Appeal's Lord Justice Underhill said a Zambrano right must 'arise'. If your children were recognized as British citizens at the same time you were granted leave to remain as a parent under Appendix FM, your Zambrano right never had the chance to 'arise'.

Some UT and FtT judges may disagree. Given that you did not apply for a derivative residence card, it is hard to argue against what LJ Underhill said.

In any case, you could appeal your EUSS refusal on human rights grounds. . You could cite Celik and Dereci.

[krish147]

Hi
Grant of leave information is below . please see it. thanks.


On December 2018 you submitted an application for limited leave to remain on the basis of your family and private life in the UK.
We have decided that you do not meet the requirements for a grant of leave under the 10-year partner route under paragraphs R-LTRPT.1.1.(a), (b) and (d) of Appendix FM because your partner is not British or does not have settled or refugee status in the UK.
However we consider, under paragraph GEN.3.2. of Appendix FM,that there are exceptional circumstances in your case which would render refusal a breach of Article 8. This is because, given the evidence present in the casefile,l am satisfied that you have a genuine and subsisting relationship with a child in the UK who is under the age of 18 and has lived in the UK for a period of 7 years continuously. It would be in the child's best interests to remain in the UK and it would be unreasonable to expect them to leave.
Accordingly you have been granted a period of 30 months limited leave to remain on the 10-year partner route under paragraph D-LTRPT.1.2. of Appendix FM.

We have decided that your application does not meet the requirements of paragraph GEN.1.11A. of Appendix FM. Your grant of limited leave to remain in the UK is therefore subject to a condition of No Recourse to Public Funds. This means you are not entitled to receive public funds to help meet your living and accommodation costs (or those of any dependants). In addition your sponsor is not entitled to claim or receive public funds on your behalf.
Further information on what this decision means for you is set out on the next page

[marcidevpal]

I don't understand why they kept you on the partner route. I guess it doesn't matter.

Your child either

• became a British citizen or

• at least became eligible for British citizenship

BEFORE you applied for leave to remain under Appendix FM.

What was your visa status in 2017 until December 2018?

If you had no immigration status when your first child turned 7 years old, you could argue you became a Zambrano carer on the day they turned 7.

If you became a Zambrano carer in 2017 or 2018, the fact that you got Appendix FM in 2019 is not really relevant. You would still a Zambrano carer. Like Akinsaya. Although Akinsaya reached five years as a Zambrano carer before 31 December 2020.

I really believe a solicitor would want to take your case, as long as you qualified for legal aid. If you go to the Tribunal Decisions website, and search for Zambrano cases, you will see barristers and firms that focus on Zambrano carers. You could also try a Google search. You can also just make the points yourself.

[marcidevpal]

Language is everything

However we consider, under paragraph GEN.3.2. of Appendix FM,that there are exceptional circumstances in your case which would render refusal a breach of Article 8. This is because, given the evidence present in the casefile,l am satisfied that you have a genuine and subsisting relationship with a child in the UK who is under the age of 18 and has lived in the UK for a period of 7 years continuously. It would be in the child's best interests to remain in the UK and it would be unreasonable to expect them to leave.

This paragraph is key for your appeal.

That is Zambrano type language.

You could argue the Home Office agreed you were a Zambrano carer.

I would make sure the Judge sees this letter. I would include it in your bundle to the Court.

[marcidevpal]

Language is everything - part 2

When you explain your story to people, it is important to say it right. For example

Do NOT say this: "I was granted leave under the partner route of Appendix FM," when your partner is neither British nor settled in the UK.

Say something like this instead: "I applied for leave under the partner route Appendix FM. I did not meet the requirements. The Home Office approved my application anyway based on exceptional circumstances due to my children."

The first way will confuse people.

[marcidevpal]

In simpler terms

Your first child's right to remain arose in 2017.

You're right as a Zambrano carer arose on the same day (unless you had some other form of leave.)

If you had no leave - at any point - from the day your first child turned 7 years old until the day you made the application for leave to remain under Appendix FM, then your Zambrano right "arose".

Or, at least, that is the argument you could make to the judge.

But that only establishes you are a Zambrano carer. You still have the same problem as Akinsaya and many, many other Zambrano carers.

If Celik wins his appeal in July, I hope the judges will allow everyone's appeal on human rights grounds.

[marcidevpal]

Or, said another way...

In a perfect world, you would have

• applied for citizenship for your first child in either 2016 or 2017, and

• applied for a derivative residence card at the same time, soon after, or at least before you applied for leave to remain under Appendix FM, but

• never applied for leave to remain under Appendix FM

Instead, you applied for citizenship and LTR under Appendix FM in 2019.

The question for the judge is, "Should you be refused (punished) for your honest mistake?"

I think your witness statement is important. You need to explain that if you knew then what you know now, you would have done things differently.

And that not applying sooner for citizenship for your child, and not applying for a derivative residence card was an honest mistake due to (for example) a lack of funds, stress, bad advice, not being able to afford a lawyer, etc.

[krish147]

Good morning,
BEFORE you applied for leave to remain under Appendix FM.

What was your visa status in 2017 until December 2018?
Ans: No status at well.

I don't understand why they kept you on the partner route. I guess it doesn't matter.

Your child either

• became a British citizen or

• at least became eligible for British citizenship

BEFORE you applied for leave to remain under Appendix FM.

What was your visa status in 2017 until December 2018?

If you had no immigration status when your first child turned 7 years old, you could argue you became a Zambrano carer on the day they turned 7.

If you became a Zambrano carer in 2017 or 2018, the fact that you got Appendix FM in 2019 is not really relevant. You would still a Zambrano carer. Like Akinsaya. Although Akinsaya reached five years as a Zambrano carer before 31 December 2020.

I really believe a solicitor would want to take your case, as long as you qualified for legal aid. If you go to the Tribunal Decisions website, and search for Zambrano cases, you will see barristers and firms that focus on Zambrano carers. You could also try a Google search. You can also just make the points yourself.

[krish147]

Thanks for the valuable information.
How many of Zambrano carers has received

So far is any Zambrano carer had success in the tribunals and Home office has granted the leave?

If Celik wins his appeal in July 2023 , what will be his/her chances to get the visa? if Celik lost the case what will be the options ?

I am going post here my Eu settlement refusal letter. Please advise on it. thanks.

In simpler terms

Your first child's right to remain arose in 2017.

You're right as a Zambrano carer arose on the same day (unless you had some other form of leave.)

If you had no leave - at any point - from the day your first child turned 7 years old until the day you made the application for leave to remain under Appendix FM, then your Zambrano right "arose".

Or, at least, that is the argument you could make to the judge.

But that only establishes you are a Zambrano carer. You still have the same problem as Akinsaya and many, many other Zambrano carers.

If Celik wins his appeal in July, I hope the judges will allow everyone's appeal on human rights grounds.

[krish147]

EU refusal letter:

Thank you for your application under the EU Settlement Scheme as a ‘person with a Zambrano right to reside’.
Your application has been carefully considered but from the information and evidence provided or otherwise available you do not meet the requirements of the scheme. I am sorry to inform you that your application has therefore been refused.

The remainder of this letter details the reasons your application has been refused, what you can do next and the help available from us.

Reasons why your application has been refused
We have considered whether you meet the requirements for settled status (also known as indefinite leave to enter or remain) or pre-settled status (also known as limited leave to enter or remain) under the EU Settlement Scheme. Unfortunately, based on the information and evidence provided or otherwise available, and for the reasons set out in this letter, you do not meet the requirements. In making this decision, we have complied with our duty under section 55 of the Borders, Citizenship and Immigration Act 2009 to have regard to the need to safeguard and promote the welfare of any children who may be affected by the decision, namely your daughters XXXXX and XXXXX. Although this duty cannot on its own satisfy the eligibility requirements of the EU Settlement Scheme for a person with a Zambrano right to reside, the children’s best interests have been a primary consideration in assessing your application.

To qualify under the scheme, you need to meet the requirements that are set out in Appendix EU to the Immigration Rules. You can find out more about the requirements here www.gov.uk/settled-status-eu-citizens-f ... ligibility.

You have applied under the scheme as a ‘person with a Zambrano right to reside’ (as defined in Annex 1 to Appendix EU) on the basis that you are the ICD.5298 2 of 5 primary carer of a British citizen. There are three key elements which must be met:

1. you must meet the requirements of that definition throughout the continuous qualifying period in the UK in which you rely on being or having been a ‘person with a Zambrano right to reside’. Broadly, the requirements are that the person meets the relevant conditions of regulation 16 of the Immigration (European Economic Area) Regulations 2016 (‘the EEA Regulations’) and does not hold leave to remain (unless this was granted under the EU Settlement Scheme); and

2. that continuous qualifying period in the UK as a ‘person with a Zambrano right to reside’ must have begun before the specified date (2300 GMT on 31 December 2020), unless you fall within sub-paragraph (b) or (c) of the definition of a ‘relevant EEA family permit case’ in Annex 1 to Appendix EU; and

3. you must meet one of the following, either:

(a) your continuous qualifying period in the UK as a ‘person with a Zambrano right to reside’ must be continuing at the date of your application to the scheme; or

(b) your continuous qualifying period in the UK as a ‘person with a Zambrano right to reside’ must have been continuing at the specified date and ended when you completed a five-year continuous qualifying period in the UK as such a person (and by the date of your application to the scheme there has been no supervening event); or

(c) at the date of your application to the scheme, you must be a ‘person who had a derivative or Zambrano right to reside’, meaning you were a ‘person with a Zambrano right to reside’ immediately before you met another qualifying category (such as the family member of a relevant EEA citizen) and have since remained in that or another qualifying category through to the date of your application to the scheme.

Your application has been refused because you do not satisfy paragraph 1, above. You have claimed to have a continuous qualifying period in the UK, during which you met the definition of a ‘person with a Zambrano right to reside’, between March 2008 and June 2021. However, you did not meet the definition throughout this period.

Home Office records show that both of your daughters acquired British Citizenship on December 2019 . Therefore, your continuous qualifying period as a person with a Zambrano right to reside, provided you had met the criteria as such, would have started on December 2019. The reason for this is that, at the specified date and at the date of your application, you did not satisfy paragraph (b) of the definition of a ‘person with a Zambrano right to reside’ as, for the purposes of a continuous qualifying period in the UK as a ‘person with a Zambrano right to reside’, an applicant cannot rely on any period in which they held non-Appendix EU leave. Our records show that you were granted leave to enter or remain in the UK on June 2019 valid until November 2021 under Family/Private Life Rules ( Appendix FM).

As this means your application as a ‘person with a Zambrano right to reside’ cannot succeed, we have not considered the rest of the eligibility requirements for this category of the EU Settlement Scheme. It is considered that the information available does not show that you meet the eligibility requirements for settled status set out in rule EU11 or for pre-settled status set out in rule EU14 of Appendix EU to the Immigration Rules. This is for the reasons explained above.

We have also considered whether you meet any of the other eligibility requirements under Appendix EU, set out in rule EU11, EU12 and EU14. However, from the information and evidence provided, or otherwise available, you do not meet any of the other these other eligibility requirements and your application has, therefore, been refused under rule EU6 of that Appendix

[marcidevpal]

It's just painful reading your story

It's all just so frustrating. Just so we are clear, you need to understand the following:

• I believe your first child was eligible for British citizenship in 2017 based on the rules in force at the time.

• You had no status during this period. Therefore, had your child become a British citizen in 2017, you would have automatically become a Zambrano carer on that same day.

• You could have then applied for an official derivative residence card. But it would not have been required.

• As long as you did not fall into the trap of applying for Appendix FM, you would almost certainly now have status under Appendix EU or the EUSS.

Pardon my language, but your success on appeal depends on whether or not people are going to be petty.

That lady at the Home Office could have been petty and simply refused your application under Appendix FM. But she did not. She recognized that you were the parent of a "British" child since 2017.

YOUR QUESTIONS

1.) I don't know how many Zambrano carers have been successful at the First-tier Tribunal and/or Upper Tribunal. You can make a "Freedom of Information Request" or FOI to either the Home Office or the Ministry of Justice on a website called "What Do They Know".

2.) Winning can take many forms. The Court of Appeal is there to "correct" any errors made by the President of the Upper Tribunal. The Home Office will look closely at what the Court of Appeal says. If the Home Office gets the feeling that Celik should be granted settlement, they may 'reconsider' their decision to refuse his EUSS application.

If you look at the Akinsaya case, for example, she technically "won" but the Home Office didn't change its policy. Akinsaya is a classic example of justice denied, in my opinion.

3.) If Celik loses, it probably means people who applied to the EUSS and were refused, can't rely on human rights.They can't rely on the ECJ case law of Dereci, for example, because the President of the Upper Tribunal said Dereci no longer applies - rather bizarrely. But, again, losing can take various forms. The meaning is all in the decision.

I really hope Lord Justice Underhill doesn't write the decision for Celik. Reading his decisions is pure torture.

CONCLUSION

All you can do if you apply is to see what type of judge(s) you get. Even if you win at the First-tier Tribunal, I would bet the Home Office appeals to the Upper Tribunal.

It boils down to the quality of your submissions and pettiness. I hope by now you have an idea of what needs to be done, at least in a general sense. After you create your submissions, if the people who look at your story want to be petty and blame you, then, yes, you will lose. But at least you will know it isn't your fault and you did everything you could.

I don't think immigrants should have to do everything perfectly to enjoy their full rights and freedoms - particularly when the Home Office is so hostile. I think judges should be flexible and understanding.

I speak English fluently, have access to internet, and pretty decent research skills. And I struggle to keep up with everything.

So, don't feel bad in any way. It isn't your fault.

And, keep asking questions. Even if I can't answer, someone reading might be able to.

[marcidevpal]

Appellant's Skeleton Argument - Draft

I would create a skeleton argument, find immigration solicitors online, send them the argument and ask them if they are interested and have capacity. The argument doesn't have to be perfect. So, here goes...

----REMEMBER THE COVER PAGE -----

(also remember to number each page)

A CASE SUMMARY

1.The appellant is a citizen of Country A (I don't need to know) born on DD/MM/YYYY(I don't need to know). He entered the UK in December 2001 on a ?? month work permit. His partner is a citizen of ?.

2. Both children were born in the UK. The first in July 2010 and the second in August 2014. His first child became eligible for British citizenship in August 2017. She received confirmation of her status in December 2019.

3. In August 2017, the appellant would have become a Zambrano carer. He had no immigration status in the UK and was eligible on the basis that his daughter was eligible for British citizenship.

4. In June 2019, he was granted leave to remain under Appendix FM on the Partner route due to exceptional circumstances. The immigration officer granted leave due to his relationship with children who had resided in the UK for at least the prior 7 years.

5. In December 2019, the respondent issued both children a certificate of registration of British citizenship.

B REFUSAL REASONS OFFERED BY THE RESPONDENT

1. The appellant's children, born in 2010 and 2014, respectively, became British citizens in 2019.
2. The appellant held leave to remain under Appendix FM on 31 December 2020.

C QUESTIONS TO BE CONSIDERED BY THE JUDGE

1. Did the appellant's child become protected from deportation from the UK following seven years of lawful residence in 2017?
2. Did the appellant become a Zambrano carer upon the seventh birthday of his first child in 2017 due to no other status?
3. Did the appellant have a legitimate expectation that he would be approved under the EUSS?
4. Is the respondent's administration of the scheme discriminatory and irrational, in light of the 90% refusal rate?

D RELEVANT LEGAL FRAMEWORK

1. Withdrawal Agreement
2. Political Declaration
3. UK Statutory Instruments
4. ECHR
5. and more (see earlier posts)

E RELEVANT CASE LAW

1. Celik
2. Dereci
3. Akinsaya
4. Giraldo
5. and more (see earlier posts)

F SUBMISSIONS

[see earlier posts - take your time]

G CONCLUSION

In an ideal world, the appellant would have applied for recognition of his first child's British citizenship in mid to late 2016 or early 2017. He would have then applied for a derivative residence card and refrained from applying under Appendix FM altogether. He did not do so for reasons outlined in his witness statement. Under the relevant legal framework and case law, this mistake is not strong enough to disqualify him from settlement under Appendix EU, particularly in light of the unhelpful and discriminatory actions taken by the Home Office.

Signed,
Krish
DD/MM/YYY

APPENDIX

[Make a list of the websites with the tribunal decisions, ECtHR decisions, case law, WA, etc.]

[marcidevpal]

The Lawyers

At the end of the day, most of the Zambrano carers who appeal have the same underlying problem.

They took unknowingly took actions that are being used to deny them settlement under Appendix EU.

Had the Zambrano carers known, at the time, what they know today, they would have behaved differently.

There was no deception by Zambrano carers. Zambrano carers did their best with little or conflicting advice.

The "errors" are not strong enough to warrant denying Zambrano carers settlement, in my opinion.

In an ideal world, the lawyers would have challenged the basis upon which the applications are refused via a judicial review. That isn't happening. Instead, we just see the lucky few get through. That is why I blame the lawyers (to a certain degree).

[marcidevpal]

Stereotypes

There is an uncomfortable truth, in my opinion. Many people view Zambrano carers as people who 'tricked' British people into having British children. Or, people who are unskilled and unintelligent.

These stereotypes are largely unspoken. But you can see it in the decisions.

If a Zambrano carer applied for leave to remain under Appendix FM before 31 December 2020, the judge will likely decide it is their fault for not having done their research or due to their "failure" to pay for competent advice.

If the Zambrano carer didn't have the money to pay for legal advice, it is their fault for being poor. It doesn't matter that the Home Office regularly withheld the necessary documentation.

So, when Zambrano carers go before the First-tier Tribunal and/or Upper Tribunal and their appeals are refused for

• having leave under Appendix FM (eventhough the Home Office told them to apply), or

• for not having applied for citizenship for their children early enough (eventhough the fees are astronomical), or

• for not having applied for a derivative residence card (eventhough under the regulations, it is not required),

we know what this really is. It's discrimination. The typical person or group in a similar situation would not be held to such a high and unreasonable standard. (My opinion only).

So, you can file appeals. You can copy and paste super impressive words someone recommends to you. But you should really consider building a narrative or a story, that makes sense of what happened here over the past six years.

If only for your own mental health. The narrative should be simple to understand, even if it is multi-layered.

[marcidevpal]

Clarifications...

Do you ever read something you wrote, and realise it is not as clear as I meant it to be?

This sentence

If a Zambrano carer applied for leave to remain under Appendix FM before 31 December 2020, the judge will likely decide it is their fault for not having done their research or due to their "failure" to pay for competent advice.

should say,

If a Zambrano carer is refused in their application for settlement under EUSS because they held leave to remain under Appendix FM on 31 December 2020, the judge will likely decide it is the Zambrano carer's fault for not having "done their research" or due to their "failure" to pay for competent advice.

And this sentence

If the Zambrano carer didn't have the money to pay for legal advice, it is their fault for being poor. It doesn't matter that the Home Office regularly withheld the necessary documentation.

should say,

If the Zambrano carer didn't have the money to pay for legal advice, it is their fault for being poor. It doesn't matter to the judge that the Home Office regularly withheld from the Zambrano carer the necessary documentation to enable them to work. The Home Office also regularly fails to renew the work authorisation forms.

[marcidevpal]

Advantages of being a litigant in person

1.) Your skeleton argument can say a bit more than is required.'Skeleton' is the operative word. Judges don't like lengthy skeleton arguments. They want them short and to the point. But you are not a lawyer, so you have a little bit more leeway or room to breathe than a lawyer.

2.) Some lawyers are paranoid about their reputations. They don't want to appear too emotional. You are not a lawyer. You can have fun with your arguments. Be creative. But not silly. And make sure each point is clear. And not too long.

3.) The First-tier Tribunal judge may not expect you to know about 'errors of law'. He or she may assume they can make blatant errors of law. If I am wrong, you wouldn't see some of the blatantly rude reasoning or highly dismissive decisions.

Anyway, you may recognize the errors on a gut level. Your instincts may tell you something is wrong. But your lack of legal training would mean you would not know that you should raise those errors in your permission to appeal.

I am willing to bet that the First-tier Tribunal judge won't properly address all of your points. Now, they don't have to, technically. But if you can show that the First-tier Tribunal judge failed to address points that were key, then you should be granted permission to appeal.

[marcidevpal]

The point of Judges

Judges establishes facts. Then, they put those facts into context.

Your first goal, as a litigant in person, is to establish the facts as quickly as possible.

Your second goal, is to get the judge to reflect as deeply as possible on the context.

When I say "as deeply as possible", I mean to consider the wider implications of why you are filing the appeal.

That's why I advocate or push for a case summary that is lengthier than what many people would recommend. It's just my opinion.

I also recommend making a bullet point of key facts early in the witness statement.

Get the facts out of the way, as soon as possible, even if those facts make you feel uncomfortable.

make a list in the skeleton argument (case summary) and witness statement

For example,

• I applied for Appendix FM on 1 January 2020

• I did not apply for a derivative residence card

• I had no status from June 2014 until December 2018.

The judge can hopefully easily see what the problem is and why you were refused. You want the judge to spend rest of the time reading your points about why, despite fact 1, 2, or 3, you should be granted settlement anyway.

The points should draw upon principles of natural justice, to case law, to regulations, etc.

[marcidevpal]

A possible way to save on costs

If you don't qualify for legal aid, but you have some money, you may want to consider something like this:

1. Create a draft bundle with a witness statement, skeleton argument, relevant supporting documents.
2. Pay a solicitor to "fix" the bundle.
3. Apply to the court as a litigant in person.

On the down side, your chances of losing are higher. On the plus side, the chances of the judge making multiple errors of law are much higher.

4. If you win, great. If you lose or the Home Office appeals their loss, hire a lawyer to represent you before the Upper Tribunal. They may be ok if with coming in so late if you did step two.

Just a thought...

[marcidevpal]

Why Celik is important

Celik's case

• Since 8 April 2019, the appellant [Celik} has remained unlawfully in this country.

• He began a relationship with a Romanian national in December 2019.

• The Romanian national was granted pre-settled status on 10 March 2020.

• On 19 October 2020, the appellant [Celik] made an application for leave to remain under the EUSS. It was refused in on 2nd March 2021.

• Due to Covid-19 restrictions and the lockdown rules which were in place at the time” he and his fiancée, “were not given the date to get married before 31/12/2020. We only managed to get a date to get married on 09/04/2021”

Celik's "mistakes"

• Once his Romanian partner was granted leave, he should have applied for a residence card as a durable partner. He should have filed the application before 31st December 2020.

• He should have found a way to get married before 31st December 2020. (I have no idea how he could have avoided this mistake, but that is how the Court sees it.)

Celik's argument is, effectively,

• that whatever his "mistakes", he should be granted settlement under Appendix EU / EUSS.

• that the ECJ case law of Dereci compels the Court to take Celik's human rights into consideration

• that were the Judge to do a human rights balancing exercise, the Judge should see that Celik's wish to remain with his wife in the UK is not harmful to society's best interests.

• that the Withdrawal Agreement says Judges must abide by or follow case law handed down by the European Court of Justice prior to 31st December 2020.

The President of the Tribunal is saying, effectively,

The Court does not have to follow Dereci, does not have to consider human rights and does not have to do a balancing exercise. By extension, the Court does not have to abide by ECJ case law decided before 31st December 2020. Logically, that would mean the Court does not have to abide by the terms of the Withdrawal Agreement.

WHAT THE COURT OF APPEAL'S DECISION MEANS

If the Court of Appeal says the President of the Upper Tribunal is wrong, then Zambrano carers who "made mistakes" can rely on the case law of Dereci.

Zambrano carers can say, just as Celik now says, that whatever the mistakes made, the Judge should take human rights into account, do a human rights balancing exercise, and, unless it is in society's interests to deny the Zambrano carer settlement under EUSS, the Zambrano carer should win on appeal.

That is why it is important that you raise Celik and Dereci in your skeleton argument of your appeal.

[krish147]

Thank you .
Great advice.
I am working on my witness statement & legal aid availability.
Thank you

[marcidevpal]

Great to see things are progressing with you.

Before you start to write your witness statement, you may want to create an outline to give your story structure.

Also, here are some questions to consider answering

A. On "mistakes" you made

• Why didn't you apply for a derivative residence card?

• Why didn't you apply for citizenship or recognition of citizenship for your children earlier?

B. On your value to British Society

• How have you contributed to society in the UK?

• What charities do you contribute to? Do you contribute time, money, both?

• Are your children doing well in school?

• What job do you do? What job do you want to do?

• What do you do in your free time? Are you learning new skills?

Regarding your answers to section A, you want the judge to read your explanation and think, "Although he made a mistake, it was a genuine mistake."

Regarding the answers to section B, you want the judge to think, "Based on a human rights balancing exercise, as per Article 8 ECHR, Krish's presence in the UK is overall a benefit to society."

[marcidevpal]

A key flaw with EUSS appellants

Everyone focuses 100% on what to say in their appeal to make the judge say 'yes'.

50% of your effort should go towards perfecting your arguments. The other 50% should be preparing for the errors of law the judge will make.

If you appear in person, you should be making notes on the errors of law made by the judge. You should have at least 10 errors of law memorized, so you can recognize the error as the judge makes it.

If you submitted your appeal on the papers, you should be able to read the refusal and recognise the errors of law the judge makes.

People put all of their energy into their appeal. When it is refused, all of their energy goes away. They become so depressed. That is the wrong approach. Prepare as if you were going to lose.

Of course, there is a way for you to truly lose your appeal. That is, if the judge does NOT make any errors of law.

But, because the judges are not considering Article 8 ECHR (human rights), the judges are making at least one error of law in all of these appeals.

[marcidevpal]

Akinsaya & HCLC Grounds

Published on 26/4/2023

Akinsaya

Further update on the Akinsanya case, the revised Home Office Guidance of December 2022, EUSS Zambrano/Chen/Teixeira applications, and template of grounds

In order to challenge the Home Office on these new grounds, it was ordered by the High Court that a new claim for judicial review should be issued including any additional grounds of challenge, and any amendments to the original unargued grounds from Ms Akinsanya’s first judicial review.

Ms Akinsanya is currently at the pre-action stage of this new challenge. Updates will be provided here.

HCLC Grounds

• SSHD acted irrationally and/or on the basis of a misdirection of law by basing her Decision to Maintain Paragraph (a)(iv) of the definition of a person with a Zambrano right to reside in Appendix EU on the revocation of the EEA Regulation.

• When making the decision to maintain paragraph (a)(iv) SSHD acted irrationally and/or misdirected herself in law in treating Zambrano cases fundamentally differently from Chen/Teixeira cases.

• The decision to maintain paragraph (a)(iv) is in breach of the public sector equality duty in section 149 Equality Act 2010 as regards the need to eliminate discrimination on the grounds of sex.

• The decision to maintain paragraph (a)(iv) is in breach of the public sector equality duty in section 149 Equality Act 2010 as regards the need to eliminate discrimination on the grounds of race and colour.

• The decision to maintain paragraph (a)(iv) is in breach of SSHD’s duty under section 55 of the Borders, Citizenship and Immigration Act 2009 to ensure that her consideration of whether to maintain the definition of ‘a person with a Zambrano right to reside’ unchanged was discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom.

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Paragraph (a)(iv), Appendix EU

Appendix EU - person with a Zambrano right to reside

a person who has satisfied the Secretary of State by evidence provided that they are (and for the relevant period have been) or (as the case may be) for the relevant period they were:

(a) resident for a continuous qualifying period in the UK which began before the specified date and throughout which the following criteria are met:

(iv) they do not have leave to enter or remain in the UK, unless this:

(aa) was granted under this Appendix; or

(bb) is in effect by virtue of section 3C of the Immigration Act 1971; or

(cc) is leave to enter granted by virtue of having arrived in the UK with an entry clearance in the form of an EU Settlement Scheme Family Permit granted under Appendix EU (Family Permit) to these Rules on the basis they met sub-paragraph (a)(ii) of the definition of ‘specified EEA family permit case’ in Annex 1 to that Appendix;

https://www.gov.uk/guidance/immigration ... ppendix-eu

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Grounds

The grounds on which to challenge the decisions of public bodies include

Traditional grounds

• irrationality

• breaches of procedural rules

• misdirection on the law

Non-traditional ground

• breach of 'legitimate expectation'

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Ground 1: Irrationality

Whether a public body has a duty or discretion to exercise in making its decision, that decision must be rational.

An irrational or unreasonable decision is one that was not reasonably open to it, as expounded by Lord Green MR in the Associated Provincial Picture Houses v. Wednesbury Corporation [1948] 1 KB 223.

Meaning of irrationality

“Unreasonableness can include anything which can objectively be adjudged to be unreasonable. It is not confined to culpability or callous indifference. It can include, where carried to excess, sentimentality, romanticism, lovely, wild prejudice, caprice, fatuousness or excessive lack of common sense” In Re W (An Infant) [1971] AC 682, per Lord Hailsham at 699H
“a decision which does not add up” (R v Parliamentary Commissioner for Administration, ex parte Balchin [1998] 1 PLR 1)

“a decision which no sensible authority acting with due appreciation of its responsibilities would have decided to adopt” (Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, per Lord Diplock at 1064 E-F)

Ground 2: Breaches of the procedural rules

Examples of prescribed procedures for decision makers include:

express duty to consult
express duty to serve notice
express duty to publish agenda
express duty to seek written representations
express duty to hold oral hearing if requested
express duty to give reasons for decision
express duty to be informed of right of appeal

A public body must not act in bad faith, which is akin to dishonesty (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, at 229). It must act for a proper purpose. Those making public decisions must not have ulterior motives and must apply their minds when making decisions for the correct statutory objective (Padfield v Minister of Agriculture, Fisheries & Food [1968] AC 997). Public decision makers should act in a way that is proportionate. While the common law does not necessarily accept proportionality as a freestanding ground for judicial review, it is a principle embedded in both EU and ECHR law

Adequate reasons are reasons that:

• deal with all the substantial points that have been raised

• are sufficient for the parties to know whether the decision maker has made an error of law

• set out and explain key aspects of the decision maker’s reasoning in coming to its conclusion

• include all aspects of reasoning that were material to the decision made

• but do not need to set out in detail all the evidence and arguments referred to the decision maker

Ground 3: Misdirection on the law

It is unlawful for any public body to act contrary to one of the rights contained in the European Convention on Human Rights (“ECHR”) that has been incorporated into domestic law by the Human Rights Act 1998 (“HRA”)(section 6(1) HRA). For example, S6 Human Rights Act 1998 (HRA) makes it unlawful for a public authority to act in a way that is incompatible with a person’s rights under the European Convention on Human Rights.

The court can overturn or quash the decision in the event that the challenge is successful.

Public authorities may now be liable in damages if they are found to have committed breaches of individuals’ human rights contrary to section 6 of the Human Rights Act 1998.

Ground 4: Legitimate expectation

• a clear and unambiguous promise, relied on by somebody to their detriment, in circumstances where holding the authority to that promise does not have wide-ranging political or other consequences.

• the terms of the published guidance, instruction or policy were so clear and unqualified as to amount to promises of particular treatment.

• an established practice or policy gives rise to an expectation of consistent or equal treatment.

Relevant case law

In the 2005 Rashid case, the Court of Appeal held there to be an enforceable legitimate expectation that the Home Office would apply its published policy on immigration to Ms Rashid, even though she was unaware of the policy.

http://www.bailii.org/scot/cases/ScotCS ... IH_50.html