Zambrano Settled Status EU settlement scheme Paper Application Form - NEW

[marcidevpal]

Akinsaya Questions

HCLC says Akinsaya is going to file another judicial review. The website says the new judicial review is in the "pre-action" stage.

Akinsaya was refused in July 2022. We are now in March 2023. The rules around judicial review state you must filed within 3 months of the "event".

I could be wrong, but I get the impression they are waiting until all the Zambrano carer cases to be finished going through the Courts. Then they will give Akinsaya settlement. She would not have to go through with the second judicial review at that point. Everyone who was relying on Akinsaya would lose out.

[marcidevpal]

Chen and Teixeira Carers

You may want to argue that Zambrano carers should be treated the same as Chen and Teixeira carers. Chen and Teixeira carers are directly covered by the Withdrawal Agreement.

Parents of British children never left the UK. Many people argue these Zambrano carers are not covered by the Withdrawal Agreement.

Per the Home Office -

Chen and Ibrahim and Teixeira cases are covered by the Withdrawal Agreement with the EU and the citizens’ rights agreements with the other EEA countries and Switzerland.

https://www.gov.uk/government/publicati ... essible--2

It seems you would have to convince the judge Zambrano carers are covered by the Withdrawal Agreement to win on this point. (The point being that Zambrano carers should be treated the same as Chen and Teixeira carers.)

Below are excerpts from the Withdrawal Agreement that relate to Chen and Teixeira carers:

GENERAL PROVISIONS

ARTICLE 9 Definitions

For the purposes of this Part, and without prejudice to Title III, the following definitions shall apply:

(a) "family members" means the following persons, irrespective of their nationality, who fall within the personal scope provided for in Article 10 of this Agreement:

(ii) persons other than those defined in Article 3(2) of Directive 2004/38/EC whose presence is required by Union citizens or United Kingdom nationals in order not to deprive those Union citizens or United Kingdom nationals of a right of residence granted by this Part;

ARTICLE 10 Personal scope

1. Without prejudice to Title III, this Part shall apply to the following persons:

(e) family members of the persons referred to in points (a) to (d), provided that they fulfil one of the following conditions:

(i) they resided in the host State in accordance with Union law before the end of the transition period and continue to reside there thereafter;

https://assets.publishing.service.gov.u ... munity.pdf

[marcidevpal]

The Discrimination Argument

You may want to argue that the Home Office's policy and refusal is discriminatory. And so you should. The refusal rate for Zambrano carers is well over 80%. The vast majority are women. The vast majority claim an ethnic background from Asia, Africa or Eastern Europe.

But litigants in person are far less likely to win their appeal based on discrimination. It's a very hard thing to argue properly. A pure discrimination play is probably best left to the lawyers. Although you should include it in your arguments, in my opinion, it should be just one of many.

Focus your skeleton argument instead on something like the legitimate expectation argument. Or the procedural rules. Or the misdirection on law. Or irrationality. Or all of them.

[marcidevpal]

Section 55 of the Borders, Citizenship and Immigration Act 2009

There is a clear argument to make regarding Section 55. The Home Office's refusal of your EU Settlement Scheme application is, to my mind, clearly not in the best interests of the child. But this argument has been made time and time again over the years to the First-tier Tribunal, Upper Tribunal and even to the Court of Appeal. It feels to me like they ignore it. Only the Supreme Court seems to care about Section 55.

So, make the argument that the refusal is not in the best interest of your British child, yes! But I wouldn't count on it too heavily, unfortunately. Just my thoughts.

[marcidevpal]

HCLC Argument - EEA Regulations

Of all the HCLC template grounds, I find this one to be most compelling -

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.

I had to read it several times to understand the point. HCLC is saying that after Akinsaya won her appeal to the Court of Appeal, the Home Office decided not to update the definition of a Zambrano carer.

The Home Office should have updated the definition in Appendix EU of a Zambrano carer to allow people like Akinsaya. Instead, they kept it the same.

The Home Office gave a reason for keeping the definition the same. They say they can keep their definition because the EEA Regulations were revoked (no longer in use) after 31st December 2020. The EEA Regulations defined a Zambrano carer to include people like Akinsaya.

The questions become, was it "irrational" to no longer apply the EEA Regulations? I wouldn't use the word "irrational".

On the face of it, the EEA Regulations are no longer in force. It is arguably rational to not base Appendix EU on the EEA Regulations.

What is not rational, is to ignore or water down the Withdrawal Agreement and Political Declaration. Appendix EU should be written in line with the Withdrawal Agreement and whatever the UK wants - provided it does NOT undermine the Withdrawal Agreement and Political Declaration.

Example 1
A definition of a Zambrano carer that does not take into account ECJ case law is a misdirection of law. It directly violates the Withdrawal Agreement. The case of E.K. makes it clear Akinsaya should have acquired permanent residence BEFORE 31st December 2020, because she had already completed 5 years residence.

Example 2
A definition of a Zambrano carer that excludes well over 80% of people who previously would have qualified for residence under Union law is discriminatory and irrational - particularly as the group is comprised mostly of women and people of color and Eastern Europeans.

[marcidevpal]

Grounds - Appellant's Skeleton Argument!!!(ASA)

TLDR;
1.) the refusal breaches rights you have by virtue of the Withdrawal Agreement;
2.) the refusal violates the residence scheme rules

You may be writing your skeleton argument. I previously offered the following structure - case summary, refusal reasons, questions to be asked, legal framework, relevant case law, submissions and conclusion.

Under submissions, you state your grounds. As you are appealing your refusal under Appendix EU, your first point of call should be the document that tells judges how to approach Appendix EU/EUSS appeals.

This document is called a 'statutory instrument'. The statutory instrument for Appendix EU/ EUSS appeals is called the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020.

You can see the entire instrument here - https://www.legislation.gov.uk/uksi/202 ... tents/made

The part that relates to you is in section 8 of Chapter 1. It tells you the available grounds for appeal

You can see section 8 here https://www.legislation.gov.uk/uksi/202 ... gulation/8

You may want to include more grounds. You may want to make sure you at least start with the following two grounds mentioned in the statutory instrument.

PART 2 Appeals in respect of citizens' rights immigration decisions
Grounds of appeal
8.—(1) An appeal under these Regulations must be brought on one or both of the following two grounds.

(2) The first ground of appeal is that the decision breaches any right which the appellant has by virtue of—

(a)Chapter 1, or Article 24(2) [F1, 24(3), 25(2) or 25(3)] of Chapter 2, of Title II [F2, or Article 32(1)(b) of Title III,] of Part 2 of the withdrawal agreement,

Your decision is the kind listed in 3(1)(d) -

CHAPTER 1 Appeals: general, Decisions other than those relating to frontier workers, 3.Right of appeal against decisions relating to leave to enter or remain in the United Kingdom made by virtue of residence scheme immigration rules

Right of appeal against decisions relating to leave to enter or remain in the United Kingdom made by virtue of residence scheme immigration rules

3.—(1) A person (“P”) may appeal against a decision made on or after exit day—

(d)not to grant indefinite leave to enter or remain in the United Kingdom in response to P's relevant application (where limited leave to enter or remain is granted, or P had limited leave to enter or remain when P made the relevant application).

THEREFORE,

(3) The second ground of appeal is that—
(b)where the decision is mentioned in regulation 3(1)(c) or (d), it is not in accordance with residence scheme immigration rules;

IN CONCLUSION,

If you are scratching your head over your skeleton argument, wondering what grounds to put in your submissions section, you could start with what the statutory instrument says for Appendix EU/ EUSS appeals.

But, remember, statutory instruments are written by the Government. The same government that is responsible for over 80% of Zambrano carers being refused.

The Home Office will say, in relation to ground 1, you have no rights under the Withdrawal Agreement. They will also say, the rules say you can't be approved if you have Appendix FM at the time of application. Therefore, you can't say the refusal goes against the rules.

That means, under the statutory instrument, you have no way to challenge your refusal. That is clearly wrong.

HCLC are right. This matter should have been settled via judicial review. Oh well.
So, you may want to expand your grounds. Or not. Just a thought.

[marcidevpal]

A possible path to win

Let's say your leave to remain under Appendix FM expires next month. You can apply to renew your leave under Appendix FM.

But what if you don't renew your Appendix FM, let it expire, then apply under Appendix EU? That means, at the time you applied for Appendix EU, you did not have leave under Appendix FM.

Under the new guidance, the Home Office will refuse you because you "can" apply for leave under Appendix FM. This guidance is clearly unlawful and should be challenged via judicial review.

At the date of application and in an application made by the required date, one of conditions 1 to 7 set out in the following table is met:

(a) The applicant:

(vi) is a person who had a derivative or Zambrano right to reside; and

(b) The applicant has completed a continuous qualifying period of five years in any (or any combination) of those categories; and

(c) Since then no supervening event has occurred in respect of the applicant

(supervening events are about deportation or removal actions)

If you completed five years prior to 31 December 2020 (like Akinsaya),
you allow your leave to remain under Appendix FM to expire and
you submit a (late) application under EUSS,
you should be approved under EUSS.

Even if you are not approved, you should win your appeal.

You would have good reason for submitting a late appeal; i.e., waiting for your leave to expire.

[marcidevpal]

The Discrimination Argument

Here are points to consider raising in your discrimination argument

• The Home Office now refuse people under Appendix EU for not having applied for Appendix FM.

• Prior to the 31st December 2020, the Home Office sent letters to Zambrano carers, telling them to apply to Appendix FM - eventhough they didn't have to

• The Home Office refuse over 80% of Appendix EU applications by Zambrano carers

• Most Zambrano carers are women of color or of Eastern European descent.

It is clear, from the above points, that the Home Office did not, and does not want Zambrano carers to qualify under EUSS - eventhough they relied on Union law just like all the other groups covered by the Withdrawal Agreement.

It can be said that the Home Office instituted a disinformation campaign against Zambrano carers to trick them into falling foul of the immigration rules.

It can also be said Zambrano carers had a legitimate expectation their applications would be approved, in light of public statements made by the Home Office. They suffered a negative effect - the refusal - due to this reliance.

The Government's actions also fall foul of Article 31 of the Vienna Convention.

[marcidevpal]

The IMA & Discrimination

If you are European, and you arrived in the UK before 31st December 2020, you can make an application today to the EUSS.

The same is true of Zambrano carers.

If you are European, and you have lived in the UK for five years, you will be granted settlement.

If you are a Zambrano carer, and you have lived in the UK for five years, you will be refused either because you have leave to remain under Appendix FM, or because you could apply for leave to remain under Appendix FM.

Regarding the latter, the Home Office say you should instead apply for leave to remain under Appendix FM. And, anyone who obtains leave to remain under Appendix FM is disqualified from settlement under Appendix EU.

The obvious problem with this last statement is that it is profoundly illogical. It makes you wonder about their cognitive abilities. They should not have bothered to create the category in Appendix EU in the first place.

If it were truly the case that Zambrano carers should be refused because they could apply under Appendix FM, you should see no Zambrano carer with status under Appendix EU. Again, no Zambrano carer should have been granted status under Appendix EU. That is because every Zambrano carer could, in theory, have qualified for Appendix FM.

Yet, some Zambrano carers today do indeed have status under Appendix EU. It can only mean the Home Office (and Courts) are cherry-picking Zambrano carers. That is IN NO WAY how a democracy should work. Cherry-picking winners is corruption at the highest levels.

The next problem is, according to the outcome of the recent case, Independent Monitoring Authority v Secretary of State for the Home Department [2022] EWHC 3274 (Admin), all a European needs to do is to have entered the UK before the transition date, make an application under Appendix EU, and the rest is history - provided they remain continuously for five years and not break any laws.

Mr Justice Lane ruled that:

Applicants granted pre-settled status should not lose their rights of residence if they do not make an application for settled status, and

Settled status rights accrue automatically, once the conditions of such status have been satisfied by the individual

So you see? Settled rights accrue automatically for EU people once the conditions have been met. Not so for Zambrano carers. That is wrong!!!!

Settled rights should accrue automatically for anyone who makes the application.

So, if you

• entered the UK prior to 31st December 2020, and

• you have since achieved five years residence in the UK not including time spent under Appendix FM, and

• at the time of your application you do not have Appendix FM,

you should be approved.

**I personally think you should be approved even if you count years spent under Appendix FM, but that is a slightly harder argument to fight.

[marcidevpal]

A (risky) strategy

Here is a risky strategy....but a good one in my opinion!

1.) Someone needs to file a judicial review to stop the home office from refusing people just because they could have applied for leave under Appendix FM, but did not.

2.) As long as you entered the UK before 31st December 2020, you may want to let your leave to remain under Appendix FM completely expire.

3.) The day it expires, submit your application for Appendix EU / EUSS.

4.) Your application will be considered late. The Home Office may very well refuse it for the reason. You will need to appeal to the First-tier Tribunal to have the application ruled as valid.

5.) You have submitted a valid application with no leave under Appendix FM. You may not have five years when you subtract the years spent under Appendix FM. That's ok. You should still get pre-settled status.

6.) Once you get pre-settled status, the Home Office MUST give you settled status automatically once you reach five years.

[marcidevpal]

Giraldo, revisited

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

Giraldo won at the First-tier Tribunal. The judge granted permission to the Home Office for an appeal

There is an arguable error of law in that the decision lacks clarity in highlighting the statutory basis for allowing the appeal under the 2020 Regulations

So there we have it. Your job, as a litigant in person, is to establish a statutory basis upon which the judge can allow your appeal. The reference document is the Citizens Rights Regulations 2020.

But as I mentioned in an earlier post, this document does not provide a statutory ground of appeal for Zambrano carers.

The grounds listed in the Citizens Rights Regulations 2020 are for people who are directly covered by the Withdrawal Agreement. Everyone seems to think Zambrano carers are NOT covered by the Withdrawal Agreement.

The grounds listed in the Citizens Rights Regulations 2020 are also for people who can prove the Home Office did not follow the rules. But the rules were written in such a way that you must lose. Either you have or had Appendix FM, in which case you are disqualified. Or, you don't have Appendix FM, in which case you are disqualified for not having applied.

The only way you CAN meet the rules is if you wait for your Appendix FM to expire (assuming you entered the UK before 31st December 2020), and make a late application to EUSS.

Even then, you will almost certainly have to appeal to the First-tier Tribunal.

You will have to convince the judge to allow your late application AND disagree with the Home Office that you had to apply for Appendix FM.

But, if you were able to do those two things, then technically, you should be granted EUSS under the rules. Because, after all, that is why Giraldo was granted settlement under Appendix EU/ EUSS.

[marcidevpal]

Bad Statutory Instruments + Bad Case Law = Chaos

In the previous post, I explained that a judge will consider your appeal according to what the statutory instrument says.

The statutory instrument for EUSS / Appendix EU appeals says Zambrano carer grounds are either that the Withdrawal Agreement was not applied correctly, or that the Appendix EU immigration rules were not applied correctly.

Zambrano carers are not covered by the WA, and the rules were updated to guarantee you will be refused.

People who got through on their appeals were lucky, in a sense. They were able to take advantage of the one loophole left - the Giraldo loophole.

(I call it the Giraldo loophole because at the time she applied, the rules did not require Home Office workers to refuse people who had not yet applied for leave to remain under Appendix FM, or for renewal, in the case of Giraldo.)

But that loophole has been closed for a few months now. So what's next?

No matter how unfair and unlawful a statutory instrument is, judges have the power to allow human rights considerations. In actual fact, they have a duty to apply ECHR and the HRA where relevant.

That is why the Celik case is so important. It took away the one power judges had to correct the wrongs done by the statutory instrument.

Celik is an example of bad case law. Hopefully, the Court of Appeal will overturn it in July.

Until then, even if a judge wants to help you and approve your appeal, they will struggle. There is no clear statutory basis to allow the appeal.

At some point, Zambrano carers are going to have to update their strategy and switch to judicial reviews.

[marcidevpal]

Citizens Rights Regulations 2020 - Statutory Ground 1

The Citizens Rights Regulations 2020 is also formally known as the The Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020. See it here - https://www.legislation.gov.uk/uksi/202 ... ion/8/made

This statutory instrument is the document judges use to understand how to decide your EUSS appeal. There are 2 grounds available for you to reference in your appeal. Ground 1 is about whether or not the Home Office violated parts of the Withdrawal Agreement when reaching their decision.

I argued previously that all Zambrano carers would automatically fail on ground 1, because almost no one thinks they are covered by the Withdrawal Agreement.

Let's look again at the Withdrawal Agreement and the statutory instrument to be sure.

Grounds of appeal

8.—(1) An appeal under these Regulations must be brought on one or both of the following two grounds.

(2) The first ground of appeal is that the decision breaches any right which the appellant has by virtue of—

(a)Chapter 1, or Article 24(2) or 25(2) of Chapter 2, of Title II of Part 2 of the withdrawal agreement,

There are just three areas in the Withdrawal Agreement that the statutory instrument covers:

All of Chapter 1
Chapter 2, Articles 24(2) and
Chapter 2, 25(2)

See - https://www.gov.uk/government/publicati ... eclaration


Chapter 1 - Rights Related to Residence, Residence Documents

ARTICLE 13 Residence rights
ARTICLE 14 Right of exit and of entry
ARTICLE 15 Right of permanent residence
ARTICLE 16 Accumulation of periods
ARTICLE 17 Status and changes
ARTICLE 18 Issuance of residence documents
ARTICLE 19 Issuance of residence documents during the transition period
ARTICLE 20 Restrictions of the rights of residence and entry
ARTICLE 21 Safeguards and right of appeal
ARTICLE 22 Related rights
ARTICLE 23 Equal treatment

CHAPTER 2 - Rights of Workers and Self-employed Persons

ARTICLE 24 Rights of workers
2. Where a direct descendant of a worker who has ceased to reside in the host State is in education in that State, the primary carer for that descendant shall have the right to reside in that State until the descendant reaches the age of majority, and after the age of majority if that descendant continues to need the presence and care of the primary carer in order to pursue and complete his or her education.

ARTICLE 25 Rights of self-employed persons
2. Article 24(2) shall apply to direct descendants of self-employed workers.

CONCLUSION

You can quickly see that Chapter 2 is not relevant for Zambrano carers.

Chapter 1 is essentially all about Directive 2004/38/EC. Zambrano carers are not part of this directive.

The part of the Withdrawal Agreement that relates to Zambrano carers is Title I General Provisions. But Title 1 is not listed in the statutory instrument. So, Zambrano carers would technically fail to establish a statutory basis for their appeal on ground one.

I have yet to see a UK judge acknowledge this fact.

Perhaps it is because, to acknowledge the exclusion of Zambrano carers on ground one would force one to admit the statutory instrument is irrational, discriminatory and unlawful.

[marcidevpal]

Citizens Rights Regulations 2020 - Statutory Ground 2

The Citizens Rights Regulations 2020 is also formally known as the The Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020. See it here - https://www.legislation.gov.uk/uksi/202 ... ion/8/made

This statutory instrument is the document judges use to understand how to decide your EUSS appeal. There are 2 grounds available for you to reference in your appeal.

Ground 2 is about whether or not the Home Office violated its own immigration rules when reaching their decision on your application.

This ground is NOT about whether or not the immigration rules are fair. It is about whether or not the rules, as written at the time they decided your application, were applied correctly.

We all know the rules are discriminatory, irrational and should be considered unlawful. But that fact is not going to help you here. Unless you get lucky with the judge.

I reckon the vast majority of the First-tier Tribunal judges will look at what the rules say, look at your refusal letter, and refuse your appeal.

On previous pages, I talked about how Zambrano carers made "mistakes". I said, if Zambrano carers knew then what they know now, they would not have made mistakes.

Unfortunately, the First-tier (and Upper Tribunal) judge will look at your statutory ground 2. This ground does not make exception for mistakes. So, the judge will probably reject this ground.

So, you were rejected on statutory ground 1, because Title 1 is not part of the statutory instrument, and Zambrano carers are not covered by Title 2, Chapters 1 or 2.

That means you are almost certain to be rejected on both statutory grounds.

[marcidevpal]

Human Rights Act (HRA) & ECHR - Ground 3

The Human Rights Act is not explicitly mentioned in the statutory instrument for EUSS Appeals - the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 also known as the Citizens Rights Regulations 2020.

Don't be fooled. Eventhough the HRA is not listed in the statutory instrument, it is still there, "waiting in the wings" - to borrow Lord Justice Underhill's (in)famous phrase.

The HRA is based on the European Convention on Human Rights (ECHR). It takes the ECHR and puts it into UK law. Parliament did this to make sure judges take their responsibilities seriously as they relate to human rights.

All judges MUST incorporate the HRA and the ECHR into their decision-making. Judges must incorporate the HRA because it is an act of Parliament. Judges must incorporate the ECHR because the UK is still a member of the Council of Europe. The Council of Europe made the ECHR.

Unfortunately, Upper Tribunal President Justice Lane told judges not to take human rights into account last July in the Celik case.

The Court of Appeal will hopefully rule that Justice Lane was wrong. Then, judges will start taking human rights into account again.

I think we should see a decision by September 2023.

You may want to delay your hearing until after the Court of Appeal's decision on Celik is published.

You could also raise in your appeal a third ground. This ground talks about how the respondent's refusal violates the appellant's Article 8 right to family life, in addition to the Human Rights Act.

Here are some quotes from the Human Rights Act:

2 Interpretation of Convention rights.

(1)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,

3 Interpretation of legislation.

(1)So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

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.

(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.

[marcidevpal]

The Best Hope - Judicial Review

Akinsaya's new judicial review is stuck in the "pre-action" stage. Someone needs to file a judicial review.

The problem with judicial reviews is that your chances of losing are high. If you are a litigant in person, you will almost certainly lose.

And, when you lose, you have to pay thousands of pounds. But if you are on legal aid, you don't have to pay if you lose. (At least, that is my understanding).

The ideal scenario is for a Zambrano carer who qualifies for legal aid to find a solicitor and/or direct access barrister. Together, they would file for judicial review.

It is the best option at this time, in my opinion.

The Home Office have created an impossible situation. Their bad statutory instrument that offers no reasonable grounds and no route to challenge the refusal.

Upper Tribunal Justice Lane blocked judges from taking into account your human rights.

The only real solution - not one based on luck - is judicial review. (just my opinion).

Otherwise, you can try to raise other grounds in your EUSS appeal and see how the judge handles it. By other grounds I mean discrimination, irrationality, misdirection on law, breach of procedure, etc.

Or, see if you qualify for the Giraldo loophole (discussed earlier)...

[marcidevpal]

Three types of grounds

In case you are still confused by what I am saying, it may help to think of grounds by group.

Note: There is nothing legal or official about these groups. I am just saying this to help you understand.

• Group 1: Statutory grounds.

• Group 2: Human rights grounds.

• Group 3: All other grounds.

Group 1: Statutory grounds

Your statutory grounds for Appendix EU are written in such a way as to cause you to fail. That is why the Home Office appeals.

In their appeal, the Home Office will almost certainly say, "There is no statutory basis for the First-tier Tribunal judge to allow the appeal."

They can say that, because they have written the statutory instrument in such a way as to ensure you lose.

Group 2: Human rights grounds

Judges must take human rights into account when the case presented to them raises issues that relate to human rights. They are supposed to do a human rights balancing exercise.

UT President Lane ruled in the Celik case that First-tier Tribunal and Upper Tribunal judges should NOT take the case of Dereci in to account - unless the Home Office agrees - which they almost certainly will not.

Dereci was a much earlier case that went before the European Court of Justice (ECJ). The ECJ said judges must take human rights into account.

Group 3: All other grounds

You may want to talk to an immigration lawyer to explore all the other grounds you can raise. Many of the other grounds are typically used in judicial reviews.

Quotes from Celik case law

See https://tribunalsdecisions.service.gov. ... ukut-00220

90. In paragraph 14, the First-tier Tribunal Judge stated that she “refused to consider an Article 8 argument, no human rights case having been made and it not been an available ground of appeal under the 2020 Regulations”.

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.

96. Given what we have said about the nature of the respondent’s decision-making under Appendix EU, the raising of a human rights claim will always be a” new matter”, except where, for some reason, the respondent has already considered it.

97. In the present case, the respondent’s consent was not sought by the appellant, let alone given. As a result, even though the First-tier Tribunal Judge might have been mistaken as to the ambit of regulation 9(4), any error in this regard is immaterial. Since the respondent had not consented, the First-tier Tribunal Judge was prevented by regulation 9(5) from considering any Article 8 argument.

98. As the respondent submits, if the appellant now wishes to claim that he should be permitted to remain in the United Kingdom in reliance on Article 8, he can and should make the relevant application, accompanied by the appropriate fee.

[marcidevpal]

Grounds - Giraldo Loophole

TWO KEY POINTS

1.) These last two quotes at the bottom of this page clearly CONTRADICT one another. They are taken from Appendix EU. The immigration rules are irrational, contradictory, discriminatory and UNLAWFUL.

2.) If you meet the requirements below, then you should qualify under the immigration rules. That's the loophole.

==========

Let's say you were refused before the Home Office updated the immigration rules.

By update, I mean the rule that says, "Even if you do not have leave to remain under Appendix FM, you should be refused for not having applied for leave to remain under Appendix FM."

Let's also say that at the time you applied, you either

• did not have leave to remain under Appendix FM, or

• your leave to remain under Appendix FM had expired.

You could appeal and argue statutory ground number 2.

You would say that the refusal goes against the immigration rules.

The rules allowed Zambrano carers who had achieved five years residence, settlement.

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

Eligibility for indefinite leave to enter or remain

Persons eligible for indefinite leave to enter or remain as a relevant EEA citizen or their family member, or as a person with a derivative right to reside or with a Zambrano right to reside

EU11. The applicant meets the eligibility requirements for indefinite leave to enter or remain as a relevant EEA citizen or their family member (or as a person with a derivative right to reside or a person with a Zambrano right to reside) where the Secretary of State is satisfied, including (where applicable) by the required evidence of family relationship, that, at the date of application and in an application made by the required date, one of conditions 1 to 7 set out in the following table is met:

3. (a) The applicant:

(iv) is a person with a derivative right to reside; or
(v) is a person with a Zambrano right to reside; or
(vi) is a person who had a derivative or Zambrano right to reside; and
(b) The applicant has completed a continuous qualifying period of five years in any (or any combination) of those categories; and
(c) Since then no supervening event has occurred in respect of the applicant

person who had a derivative or Zambrano right to reside

a person who, before the specified date, was a person with a derivative right to reside or a person with a Zambrano right to reside, immediately before they became (whether before or after the specified date):

(c) a person with a derivative right to reside; or
(d) a person with a Zambrano right to reside; or

in addition, where a person relies on meeting this definition, the continuous qualifying period in which they rely on doing so must have been continuing at 2300 GMT on 31 December 2020

person with a derivative 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:

in addition:
(b) unless the applicant relies on being a person who had a derivative or Zambrano right to reside or a relevant EEA family permit case, the relevant period must have been continuing at 2300 GMT on 31 December 2020; and

[marcidevpal]

Appendix EU - Person who had a Zambrano right - Judicial Review

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

Appendix EU defines a Zambrano carer as someone who does not have leave to remain under Appendix FM.

Appendix EU also defines a person who used to be a Zambrano carer.

That is somone who was a Zambrano carer, who then became an EEA citizen, or a family member of an EEA citizen, or a Zambrano carer, or a family member of a qualifying British citizen.

This definition should be challenged via judicial review. The definition strips Zambrano carers of their acquired rights under Union law.

The case of E.K. before the European Court of Justice establishes that Zambrano carers who achieved five years residence are entitled to permanent residence.

Appendix EU unlawfully takes that acquired right to settlement away.

It says, eventhough you achieved five years residence in the UK as a Zambrano carer, we, the UK, won't recognise that time unless you switched to a certain category.

A barrister should really challenge the definition of a 'person who had a Zambrano right to reside' via judicial review.

[marcidevpal]

Sample Argument by the Home Office

Below is an example of the type of argument the Home Office will raise to the Judge. Are you ready for it?

(i) Whether the appellant can meet the definition of a ‘person with a Zambrano right to reside’ under Annex 1 of Appendix-EU

1. The appellant had a previous period of leave granted under Appendix FM/Immigration Rules valid from DD MONTH YYYY to DD MONTH YYYY. Therefore the appellant had leave to remain prior to the specified date, 31 December 2020, but this was leave that was not granted under Appendix-EU which then continued up until the date of application, DD MONTH YYYY.

2. For the purposes of a ‘continuous qualifying period’ in the UK as a ‘person with a Zambrano right to reside’, the applicant cannot rely on any period in which they held non-Appendix EU leave (unless such leave was in effect by virtue of section 3C of the Immigration Act 1971 or, as a temporary concession, is limited leave to enter granted by virtue of having arrived in the UK with an EU Settlement Scheme family permit).

3. This approach is supported further at pages 12-14, 15-16 and 19-20 of the Home Office guidance: *EU Settlement Scheme: person with a Zambrano right to reside (publishing.service.gov.uk)

4. It is submitted that the appellant cannot meet the definitions of ‘continuous qualifying period’, ‘relevant period’ and ‘person with a Zambrano right to reside’ under Annex 1 of Appendix-EU (Immigration Rules - Immigration Rules Appendix EU - Guidance - GOV.UK (www.gov.uk)) based on the above considerations.

I would say that the Home Office should address the period before the appellant got leave under Appendix FM.

If the appellant acquired 5 years' residence before they achieved Appendix FM, they should be granted settlement.

If the appellant acquired less than 5 years' residence before they achieved Appendix FM, they should be granted pre-settled status.

[marcidevpal]

In a nutshell

The bottom line is UNLESS you can show,

• despite the (unlawful) immigration rules,

• you still meet all of their (unlawful) tests for settlement,

you may want to consider filing for judicial review.

However, a judicial review has the following caveats:

• it is expensive if you lose

• you will almost certainly lose if you are not represented by a barrister or barrister + solicitor

[marcidevpal]

Upper Tribunal Judge McWilliam Explains EUSS Grounds

https://tribunalsdecisions.service.gov. ... 15215-2021

This UT judge, and perhaps many many others, is only willing to consider two possible grounds of appeal on an EUSS application:

12. The Appellant has a right of appeal against the decision of the SSHD pursuant to Regulation 3 of the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020.

There are, in summary, two grounds of appeal available to this Appellant pursuant to Regulation 8.

The first ground available to this Appellant is that the decision breaches any right he has, by virtue of the Withdrawal Agreement.

The second ground available to him is that the decision is not in accordance with the Immigration Rules, Appendix EU.

*By Regulation 8, she means the section number 8 in the statutory instrument called Grounds.

She also follows Celik. She is not willing to consider human rights (at least, not without the Home Office's approval) -

13. ...Insofar as the judge allowed the appeal because the decision would not “be consistent with the spirit of the Withdrawal Agreement or with Article 18(1)(r)”, this is inadequately reasoned and contrary to the findings of the UT in Celik (EU exit; marriage; human rights) [2022] UKUT 00220.

Do I agree with her decision? Absolutely not. But I can follow it. Her logic is consistent with the way Courts are supposed to be run.

• The judge looks at the grounds in the relevant statutory instrument.

• The appellant tells her which grounds apply to the appeal.

• The judge makes a decision about whether the arguments have merit.

It really is that simple in some ways. It is complicated by the fact that the Human Rights Act is an Act of Parliament. Acts of Parliament overtake, or are stronger than mere statutory instruments. HRA magically inserts human rights as a ground. But then, Celik gets in the way.

It also isn't clear to me what the judges will do with grounds that are not listed in the statutory instrument, such as discrimination.

Despite the loss, this decision is progress. Sooner or later, everyone will come to the inevitable conclusion that these arguments belong in judicial review hearings. Onward and upward!

[marcidevpal]

Why UT Judge McWilliam is wrong in this case

The applicant's lawyer writes in the skeleton argument:

6.As submitted by Counsel for the appellant...the appellant should not be put in a worse position that he (sic) would have been in under the EEA Regulations.

It is clear that they were in a durable relationship (as defined in Annex 1) prior to 31 December 2020, and proof of that ongoing relationship is satisfied by their marriage on 13 April 2021 and attendance at the hearing today.

Nor would putting them in a worse position than under the EEA Regulations be consistent with the spirit of the Withdrawal Agreement, or with Article 18(l)(r) as to the redress procedures against any decision refusing to grant residence status to ensure that the decision is not disproportionate.

The First-tier Tribunal judge agreed with Counsel and ruled in the applicant's favor.

In doing so, I believe the First-tier Tribunal judge was exercising their right to apply human rights considerations.

To me, that is the essence of Article 18(l)(r) of the Withdrawal Agreement. (You could consider raising it in your submissions).

Upper Tribunal Judge McWilliam disagreed. She cited the statutory instrument and case law.

The reason UT Judge McWilliam is wrong, in my opinion, is because there is a hierarchy:

• First there is the Human Rights Act - an Act of Parliament

• then, the relevant statutory instruments

• and finally, the relevant case law

She gave greater weight to case law and the statutory instrument than to the Human Rights Act.

The First-tier Tribunal judge did the opposite. I agree with this judge. I would have done the same, not that it matters. It can't be easy, though. Better them than me. Just kiddin'

[marcidevpal]

Why Celik should win

I believe Celik will be successful. That is why I recommend Zambrano carers raise human rights in their grounds.

If Celik loses, that means the President of the Upper Tribunal can tell all judges at any point, not to consider human rights on cases affecting potentially thousands of families - unless, of course, the Home Office agrees.

I am 100% guessing here. I think people become a judge for many reasons.

One reason, is to be trusted to deliver a decision that is in society's best interests.

I like to think the judges take the trust bestowed upon them seriously.

Case law like Celik, uniformly limits their ability to decide cases in a way that reflects what they truly believe is right - in light of all the mitigating circumstances.

Immigration systems are human centred. Human rights will always be part of any decision - however small.

To unilaterally bar a judge from weighing the applicant's request against society's interest, is to either not see the applicant as a human being, or to not trust the judge's wisdom.

Again, just my opinion. But what does this have to do with Zambrano appeals?

Well, if you already went to appeal and lost, you may want to consider your legal options if Celik wins. If you are in the middle of hearings, you may want to delay until Celik is decided. Or maybe not. Just a thought.

[marcidevpal]

Celik: The Fatal Flaw for the Home Office

Celik is about human rights for EUSS applicants.

The judges say the Home Office has to give approval for your human rights to be considered on your EUSS appeal.

Celik is currently with the Court of Appeal. The hearing date is 4th July 2023.

The Human Rights Act is an Act of the entire Parliament. A majority voted in favour of the Act.

(Statutory Instruments are done by a smaller number of MPs, the Government.Case law is created by judges. Celik is case law.)

Section 6 of the Human Rights Act is there to make sure all public authorities do not abuse people's human rights.

Public authority includes both the Courts and the Home Office.

THE KEY FLAW IN THE HOME OFFICE'S ARGUMENT

President Lane of the Upper Tribunal ruled in Celik that the Home Office DOES NOT have to be held accountable for human rights abuses - unless the Home Office agrees.

President Lane effectively gave the Home Office an 'opt out' from section 6 of the Human Rights Act.

The President's decision in Celik allows the Home Office to decide if, and when, it wants to be held to account on section 6 of the Human Rights Act.

No court has the authority to override an Act of Parliament. That is the fundamental flaw in their argument. That is why Celik will likely win, in my opinion.