TLDR;
You may want to argue the following ground -
The Home Office's refusal violates Title 1 General Provisions of the Withdrawal Agreement.
While acknowledging the statutory ground does not explicitly call for Title 1.
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In an earlier post, we considered possible grounds for your Appendix EU / EUSS appeal.
There is a document the judges will use to determine your appeal. The document is a statutory instrument.
A statutory instrument s a form of secondary legislation.
An Act is a form of primary legislation. An example of an Act is the Human Rights Act of 1998.
Primary legislation is voted on by all Members of Parliament. It is powerful. It strongly binds the Courts.
Secondary legislation comes from the Government (a much smaller number of MPs.) It weakly binds the Courts.
The name of the statutory instrument the Judges will use to decide your appeal is called the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020.
The Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 has two grounds Zambrano carers can rely upon when drafting their EUSS Appeals. This post is about Ground 1 - the Withdrawal Agreement.
Earlier, I said that Zambrano carers will fail on Ground 1.
Ground 1 says the only parts of the Withdrawal Agreement the Judges can take into account.
The parts of the Withdrawal Agreement listed in Ground 1 have nothing to do with Zambrano carers.
- They are not in the UK because they are workers.
- They are not in the UK because they are self-employed.
- They are not covered by Chapter 1 of the Withdrawal Agreement. Chapter 1 is for people covered by the 2004 Directive. Zambrano carers are excluded from the 2004 Directive.
Chapter 1 of the Withdrawal Agreement falls withing Title 2 of the WA.
There is also a Title 1. Title 1 applies to Zambrano carers. Title 1 is a general provision of the contract. At the end of the day, the Withdrawal Agreement is simply a contract.
Title 1 is overarching. You can't consider Title 2 without putting it in context of Title 1. So, eventhough Title 1 is not explicitly mentioned in the statutory instrument, it is there in spirit. And, Zambrano carers can and should make arguments based on Title 1.
I would be beyond surprised if a Judge said he could not consider Title 1 because the statutory instrument does not mention Title 1 in the grounds.
It is a basic tenet of contract law.
So, you may want to argue the following ground:
The Home Office's refusal violates Title 1 General Provisions of the Withdrawal Agreement.
Let the judge know that you know Title 1 is not explicitly listed in the statutory grounds.
Just as the judge is entitled and authorised to consider your human rights due to the HRA, so too is the judge entitle to consider whether or not the refusal violates Title 1 of the Withdrawal Agreement.
Remember, the UK signed the ENTIRE agreement. Not just Chapters 1 and 2.
References:
https://www.legislation.gov.uk/uksi/202 ... ion/8/made
https://www.gov.uk/guidance/immigration ... ppendix-eu