Zambrano Settled Status EU settlement scheme Paper Application Form - NEW

[marcidevpal]

A Possible Compromise: The Customs Union

It may take a while for the UK to have the second referendum on EU membership.

The EU may also not want the headache.

Both parties could agree on a compromise: the UK could rejoin the European customs union.

The UK was willing to remain a part of the customs union before - but the EU said no.

The customs union allows the free movement of goods and services.

But to join the customs union, you have to also accept the free movement of people.

The UK wanted to 'control its borders' so it did not want the free movement of people.

The latest immigration figures show that if Brexit was about reducing migration, Brexit failed.

Anyway, Zambrano carers in the UK of British children do not exercise their free movement rights.

However, if the UK does rejoin the customs union, there may be an arrangement that allows concept of a Zambrano carer to be accepted once again.

All that is to say, you may want to take steps now to save your documents in digital format.

For example, you could scan all the documents and email them to yourself and to friends or family.

You may need them again one day.

[marcidevpal]

Settled Status Residents to Get the Vote?

Currently, EUSS residents do not qualify to vote in UK elections.

Sir Keir Starmer has pledged to allow EUSS residents to vote - if Labour wins the next general election.

Even if Labour has to govern with the Liberal Democrats, I suspect both would work together on the issue.

3 to 4 million people have settled status. Another 2 million are on pre-settled status.

Imagine if all of those people were able to vote?

Imagine if they voted for MPs who believed in human rights for all?

A number of Britons already don't like Brexit.

With the EUSS voters, I think the UK will attempt to rejoin sooner than later.

Moreover, SKS has said he is open to 16 and 17 year olds getting the vote.

They are overwhelmingly pro-EU, too.

So, what does this post have to do with Zambrano carers?

I hope those of you who are on settled or pre-settled status will vote, if the opportunity arises.

For those of you waiting for a decision or who lost at the Upper Tribunal, hopefully this news gives you comfort that, in the long run, all will be well.

[marcidevpal]

The End of the "Super" Hostile Environment?

Tory MP Dominic Raab announced he will not try to hold onto his seat in next year's general election. He blames left wing media. His most recent role as Justice Minister was to oversee the Courts, Prisons, etc.

Braverman is under increasing pressure due to her inflammatory comments, and her possible breaches of the ministerial code. According to one Tory minister, it is just a matter of time before she is forced to resign as a Government Minister.

Perhaps now we will return to a Teresa May type of hostile environment...(Not that hostility in any form is a good thing)....

--------

Let's say you are about to go to a hearing. Or you are going to file an appeal.

You may want to argue you should be granted settlement due to your Article 8 right to family life under the ECHR.

The judge should do a 'balancing exercise'. The judge should then consider your ECHR request against society's best interests.

The Home Office under Braverman will probably try to stop the judge from doing the balancing exercise.

If the balancing exercise goes ahead anyway, the Home Office will possibly argue that they need to keep immigration down.

---------------------------

You could then argue that the Sunak's Government disagrees with the Home Secretary.

The Sunak Government Ministers have made comments over the past few months to say they wanted to bring people in to fill key roles.

That is why this Thursday's announcement of the immigration numbers will show a dramatic rise.

It wasn't by accident. The Sunak Government WANTS more migrants.

Therefore, should Celik win this July, the judge will hopefully do a balancing exercise. (Although, you have to raise Article 8 in your grounds first).

So,
if you have skills in areas the Government has determined it needs OR,
if you WANT to work in areas the Government says it needs,

the balancing exercise should hopefully work in your favour.

[marcidevpal]

Change at your doorstep

Sir Kier Starmer (SKS) discussed what made him decide to give the vote to EUSS people.

He said it was because of what happened when he went knocking door to door, asking for votes.

Many Europeans who answered the door said, "My spouse and children can vote. I can't - eventhough I have lived in the UK for decades and pay taxes."

Those short conversations changed his mind.

So, if someone knocks on your door during the election season, talk to them.

Don't just tell them you can't vote.

Explain you can't vote DESPITE living in the UK for X number of years.

Also, tell them about the hostile environment you endured over the years. You never know. It may create change.

[marcidevpal]

Vote for the Person, not (necessarily) the Party

Just to be clear, I am not saying you should vote for one party over another. Nope.

One of the strongest pro-Zambrano politicians represented the SNP. And his party didn't save him.

Labour has never talked about Zambrano carers.

There are some Tory MPs who are leading the fight against the "super" hostile environment.

This chaos has arisen under all the major parties.

I am not a fan of any particular one.

Thanks!

[chopwell20]

We now have four types of Zambrano carers

1.) Zambrano carers based in an EU member state;
2.) Zambrano carers based in the UK, who never applied for leave to remain under Appendix FM;
3.) Parents who applied for leave to remain under Appendix FM and then later applied for a derivative residence card; and,
4.) Zambrano carers based in the UK who applied for leave to remain under Appendix FM.

Group 1 will now have permanent residence after 5 years under the 2003 Directive (as long as they meet the basic requirements).

Group 2 seems to have been granted settlement by the Home Office.

Group 3 seem unlikely to ever get EU settlement because the Court of Appeal ruled they are not really Zambrano carers.

Group 4 represents two groups. The first group managed to get settlement either by going to court or because the Home Office gave them residence. The second group, the Akinsaya group, are fighting for residence.

It seems to me, all Zambrano carers should be treated the same way.

Dear MarcidevPAL,

Thank you very much for your comprehensive and informative explanation. Your insights have been incredibly valuable and I am grateful for your time and generosity in sharing your knowledge with me and the other members of this forum.

I am interested to know more about your research, specifically if it would be beneficial for individuals like myself who fall into group 3 or 4 to pursue an appeal procedure. I understand that you have put a lot of effort into your research and I am grateful for the opportunity to learn from your findings.

I hope this message finds you well and I appreciate any guidance or insights you can provide.

Sincerely,
NAD

Hi NAD,

People generally appeal if they feel they have a strong (or at least valid) argument, can afford it (or qualify for legal aid), and they understand how far they want to go.

If you go down the appeal route, you may want to ask yourself how far you are willing to take your fight? To the Supreme Court? To the European Court of Human Rights? That may take years and cost a lot of money. And, you still may lose.

You should also ask yourself why you want to appeal? Is it to make a larger point about human rights, or the treatment of Zambrano carers? Or is it just about you? And, if it is just about you, why not consider applying to or remaining on the Appendix FM route?

Another question to ask yourself is, how important to you is to obtain eligibility under the EU rules versus the UK Immigration Rules? If your goal is to ultimately become a citizen or get a British passport, does it matter if you qualify via the EU rules or the UK rules? Some people may be concerned about what they perceive to be the apparent ease with which their UK citizenship can be taken away, and may feel safer if they obtain settlement via the EU scheme.

So, I don't have an answer for you. Just questions you may want to consider. I don't think anyone can tell you to appeal on the EU Settlement Scheme outright if you are a Zambrano carer. The chances of success seem low - at least in the first stages based on recent rulings. But if you have researched the rulings and feel confident, you may want to seek legal advice.

Dear MarcidevPAL

Thank you for your kind words. I deeply appreciate your dedication, guidance, and the value of the information you provided.

During the period of waiting for my appeal decision, I maintained a calm and focused demeanor, thanks to the invaluable assistance and guidance you provided me with. Your expertise and advice equipped me with the necessary tools to construct a compelling case and fortified my mindset for the upcoming battle.

I am immensely grateful to report that my appeal has been allowed. This outcome stands as a testament to the meticulous preparation and the professional approach we adopted throughout the process. Your guidance played a pivotal role in shaping the arguments and evidence presented, which ultimately led to this favorable resolution.

Once again, please accept my sincere appreciation for your unwavering support and the valuable insights you shared. Your contribution has not only assisted me in achieving a positive outcome but has also broadened my understanding and strengthened my skills for future endeavors.

Thank you for being an invaluable source of wisdom and inspiration, and for helping me navigate through this challenging phase of my life..

[marcidevpal]

NAD WINS!!! HURRAH!!

Dear MarcidevPAL

Thank you for your kind words. I deeply appreciate your dedication, guidance, and the value of the information you provided.

During the period of waiting for my appeal decision, I maintained a calm and focused demeanor, thanks to the invaluable assistance and guidance you provided me with. Your expertise and advice equipped me with the necessary tools to construct a compelling case and fortified my mindset for the upcoming battle.

I am immensely grateful to report that my appeal has been allowed. This outcome stands as a testament to the meticulous preparation and the professional approach we adopted throughout the process. Your guidance played a pivotal role in shaping the arguments and evidence presented, which ultimately led to this favorable resolution.

Once again, please accept my sincere appreciation for your unwavering support and the valuable insights you shared. Your contribution has not only assisted me in achieving a positive outcome but has also broadened my understanding and strengthened my skills for future endeavors.

Thank you for being an invaluable source of wisdom and inspiration, and for helping me navigate through this challenging phase of my life..

Hi NAD,

I thought maybe people could find a use for my suggestions.

I am humbled when people actually do work them into their submissions.

You perservered, even when things looked dire for Zambrano carers.

You did the work.

And I am beyond thrilled you won!!!

Britain is indeed a better country for granting residence to Zambrano carers like you.

I am also grateful to the judges for hearing your arguments. It shows they are listening.

Everyone, if you are there... Will you take a moment to please congratulate NAD?

NAD's win is a win not just for him and his family.

It's a win for us all.

Cheers,
MaricDevPal

[Wishfulgirl]

We now have four types of Zambrano carers

1.) Zambrano carers based in an EU member state;
2.) Zambrano carers based in the UK, who never applied for leave to remain under Appendix FM;
3.) Parents who applied for leave to remain under Appendix FM and then later applied for a derivative residence card; and,
4.) Zambrano carers based in the UK who applied for leave to remain under Appendix FM.

Group 1 will now have permanent residence after 5 years under the 2003 Directive (as long as they meet the basic requirements).

Group 2 seems to have been granted settlement by the Home Office.

Group 3 seem unlikely to ever get EU settlement because the Court of Appeal ruled they are not really Zambrano carers.

Group 4 represents two groups. The first group managed to get settlement either by going to court or because the Home Office gave them residence. The second group, the Akinsaya group, are fighting for residence.

It seems to me, all Zambrano carers should be treated the same way.

Dear MarcidevPAL,

Thank you very much for your comprehensive and informative explanation. Your insights have been incredibly valuable and I am grateful for your time and generosity in sharing your knowledge with me and the other members of this forum.

I am interested to know more about your research, specifically if it would be beneficial for individuals like myself who fall into group 3 or 4 to pursue an appeal procedure. I understand that you have put a lot of effort into your research and I am grateful for the opportunity to learn from your findings.

I hope this message finds you well and I appreciate any guidance or insights you can provide.

Sincerely,
NAD

Hi NAD,

People generally appeal if they feel they have a strong (or at least valid) argument, can afford it (or qualify for legal aid), and they understand how far they want to go.

If you go down the appeal route, you may want to ask yourself how far you are willing to take your fight? To the Supreme Court? To the European Court of Human Rights? That may take years and cost a lot of money. And, you still may lose.

You should also ask yourself why you want to appeal? Is it to make a larger point about human rights, or the treatment of Zambrano carers? Or is it just about you? And, if it is just about you, why not consider applying to or remaining on the Appendix FM route?

Another question to ask yourself is, how important to you is to obtain eligibility under the EU rules versus the UK Immigration Rules? If your goal is to ultimately become a citizen or get a British passport, does it matter if you qualify via the EU rules or the UK rules? Some people may be concerned about what they perceive to be the apparent ease with which their UK citizenship can be taken away, and may feel safer if they obtain settlement via the EU scheme.

So, I don't have an answer for you. Just questions you may want to consider. I don't think anyone can tell you to appeal on the EU Settlement Scheme outright if you are a Zambrano carer. The chances of success seem low - at least in the first stages based on recent rulings. But if you have researched the rulings and feel confident, you may want to seek legal advice.

Dear MarcidevPAL

Thank you for your kind words. I deeply appreciate your dedication, guidance, and the value of the information you provided.

During the period of waiting for my appeal decision, I maintained a calm and focused demeanor, thanks to the invaluable assistance and guidance you provided me with. Your expertise and advice equipped me with the necessary tools to construct a compelling case and fortified my mindset for the upcoming battle.

I am immensely grateful to report that my appeal has been allowed. This outcome stands as a testament to the meticulous preparation and the professional approach we adopted throughout the process. Your guidance played a pivotal role in shaping the arguments and evidence presented, which ultimately led to this favorable resolution.

Once again, please accept my sincere appreciation for your unwavering support and the valuable insights you shared. Your contribution has not only assisted me in achieving a positive outcome but has also broadened my understanding and strengthened my skills for future endeavors.

Thank you for being an invaluable source of wisdom and inspiration, and for helping me navigate through this challenging phase of my life..

Congratulations NAD! How exciting you must be feeling right now!

We are all excited and happy for you! This gives us Zambrano carers who have outstanding appeal some hope.

Again , I continue to commend you Marcidevpal for sticking around on this forum even when it seems everyone stopped responding. Your daily insightful information is a treasure to us all!

[marcidevpal]

Hey, Hey @Wishfulgirl

Great to hear from you! You must be excited to get a decision soon.

It seems you are the only one left on this forum.

I assume the other views are from people in other Appendix EU categories.

I will target my updates to your situation. Your case is really strong, by the way.

I am confident you will win.

However, just to be safe, you may want to consider the following in case the FtT judge says no

1.) The judge may have ignored key facts. For example, some First-tier Tribunal judges are ignoring the fact that people are Zambrano carers - even those who held derivative residence cards. They ignore Zambrano carers who were recognised by the First-tier Tribunal judges.

2.) Take all the facts your judge ignored and put them into your appeal to the Upper Tribunal. They should be listed as errors of law.

3.) Look at the other types of errors of law. See if your FtT judge made other types of errors.

4.) Remember, you only have 14 days to send in your appeal.

5.) Another FtT judge will decide if you should be allowed to appeal. If they say no, that is ok. You have another chance.

6.) Send your second request for an appeal to the Upper Tribunal. Add more errors of law, or clean up your first document so it reads better. An Upper Tribunal judge willl look at this request. Hopefully, you will be allowed to appeal.

7.) If you are allowed to appeal to the Upper Tribunal, the Home Office will possibly send in a Rule 24 Response. The Home Office will say why they object to you being granted an appeal.

8.) The Court should send you a copy of the Rule 24 response that the Home Office sent in. You can email them and remind them.

9.) The thing about the Rule 24 response is, the Home Office can request an IN PERSON HEARING. So, your appeal before an Upper Tribunal judge may not happen on the papers.

10.) Moreover, the judge can change the hearing to in person if they feel like it.

11.) You probably want to be represented by a direct access barrister at this hearing. Or you may want to hire a solicitor, who will find a barrister for you.

12.) You may want to get legal aid to pay for representation. You may want to start getting your paperwork together soon. If you have everything ready to go, it should be less stressful.

Summary: When convenient, you may want to
a.) prepare your errors of law spreadsheet
b.) prepare your financial information to apply for legal aid

[krish147]

EUSS_DR_01: EU Settlement Scheme: Derivative Right to Reside applications by route and outcome type, 28 August 2018 to 31 March 2023

Applications Zambrano

Application received 14,980

Applications concluded 14,430

of which are Settled status received 1,250
of which are Pre-settled 840

of which are Refused 11,640
of which are Withdrawn or Void 400
of which are Invalid 300
End of table.

I am not sure on what basis 1250 + 840 Zambrano applicants are successful as per the home office records. I am sure at least we or me match our Zambrano details with at least one successful applicants. We may add this point to our appeals in my opinion, or would you pls suggest me to best way to use this point?

[Tina87]

We now have four types of Zambrano carers

1.) Zambrano carers based in an EU member state;
2.) Zambrano carers based in the UK, who never applied for leave to remain under Appendix FM;
3.) Parents who applied for leave to remain under Appendix FM and then later applied for a derivative residence card; and,
4.) Zambrano carers based in the UK who applied for leave to remain under Appendix FM.

Group 1 will now have permanent residence after 5 years under the 2003 Directive (as long as they meet the basic requirements).

Group 2 seems to have been granted settlement by the Home Office.

Group 3 seem unlikely to ever get EU settlement because the Court of Appeal ruled they are not really Zambrano carers.

Group 4 represents two groups. The first group managed to get settlement either by going to court or because the Home Office gave them residence. The second group, the Akinsaya group, are fighting for residence.

It seems to me, all Zambrano carers should be treated the same way.

Dear MarcidevPAL,

Thank you very much for your comprehensive and informative explanation. Your insights have been incredibly valuable and I am grateful for your time and generosity in sharing your knowledge with me and the other members of this forum.

I am interested to know more about your research, specifically if it would be beneficial for individuals like myself who fall into group 3 or 4 to pursue an appeal procedure. I understand that you have put a lot of effort into your research and I am grateful for the opportunity to learn from your findings.

I hope this message finds you well and I appreciate any guidance or insights you can provide.

Sincerely,
NAD

Hi NAD,

People generally appeal if they feel they have a strong (or at least valid) argument, can afford it (or qualify for legal aid), and they understand how far they want to go.

If you go down the appeal route, you may want to ask yourself how far you are willing to take your fight? To the Supreme Court? To the European Court of Human Rights? That may take years and cost a lot of money. And, you still may lose.

You should also ask yourself why you want to appeal? Is it to make a larger point about human rights, or the treatment of Zambrano carers? Or is it just about you? And, if it is just about you, why not consider applying to or remaining on the Appendix FM route?

Another question to ask yourself is, how important to you is to obtain eligibility under the EU rules versus the UK Immigration Rules? If your goal is to ultimately become a citizen or get a British passport, does it matter if you qualify via the EU rules or the UK rules? Some people may be concerned about what they perceive to be the apparent ease with which their UK citizenship can be taken away, and may feel safer if they obtain settlement via the EU scheme.

So, I don't have an answer for you. Just questions you may want to consider. I don't think anyone can tell you to appeal on the EU Settlement Scheme outright if you are a Zambrano carer. The chances of success seem low - at least in the first stages based on recent rulings. But if you have researched the rulings and feel confident, you may want to seek legal advice.

Dear MarcidevPAL

Thank you for your kind words. I deeply appreciate your dedication, guidance, and the value of the information you provided.

During the period of waiting for my appeal decision, I maintained a calm and focused demeanor, thanks to the invaluable assistance and guidance you provided me with. Your expertise and advice equipped me with the necessary tools to construct a compelling case and fortified my mindset for the upcoming battle.

I am immensely grateful to report that my appeal has been allowed. This outcome stands as a testament to the meticulous preparation and the professional approach we adopted throughout the process. Your guidance played a pivotal role in shaping the arguments and evidence presented, which ultimately led to this favorable resolution.

Once again, please accept my sincere appreciation for your unwavering support and the valuable insights you shared. Your contribution has not only assisted me in achieving a positive outcome but has also broadened my understanding and strengthened my skills for future endeavors.

Thank you for being an invaluable source of wisdom and inspiration, and for helping me navigate through this challenging phase of my life..

CONGRATULATIONS TO YOU NAD. We hive God the glory. Please could you share with us while some of us are waiting and being hopeful.
Please when did you appeal
Is it a paper appeal or oral hearing?
Were you a zambrano on akisanya or you were from and EU member? Thanks so much.


Macie, we also do appreciate you for your relentless effort. Thank you so much.,may God continue to bless you.

[Wishfulgirl]

Hey, Hey @Wishfulgirl

Great to hear from you! You must be excited to get a decision soon.

It seems you are the only one left on this forum.

I assume the other views are from people in other Appendix EU categories.

I will target my updates to your situation. Your case is really strong, by the way.

I am confident you will win.

However, just to be safe, you may want to consider the following in case the FtT judge says no

1.) The judge may have ignored key facts. For example, some First-tier Tribunal judges are ignoring the fact that people are Zambrano carers - even those who held derivative residence cards. They ignore Zambrano carers who were recognised by the First-tier Tribunal judges.

2.) Take all the facts your judge ignored and put them into your appeal to the Upper Tribunal. They should be listed as errors of law.

3.) Look at the other types of errors of law. See if your FtT judge made other types of errors.

4.) Remember, you only have 14 days to send in your appeal.

5.) Another FtT judge will decide if you should be allowed to appeal. If they say no, that is ok. You have another chance.

6.) Send your second request for an appeal to the Upper Tribunal. Add more errors of law, or clean up your first document so it reads better. An Upper Tribunal judge willl look at this request. Hopefully, you will be allowed to appeal.

7.) If you are allowed to appeal to the Upper Tribunal, the Home Office will possibly send in a Rule 24 Response. The Home Office will say why they object to you being granted an appeal.

8.) The Court should send you a copy of the Rule 24 response that the Home Office sent in. You can email them and remind them.

9.) The thing about the Rule 24 response is, the Home Office can request an IN PERSON HEARING. So, your appeal before an Upper Tribunal judge may not happen on the papers.

10.) Moreover, the judge can change the hearing to in person if they feel like it.

11.) You probably want to be represented by a direct access barrister at this hearing. Or you may want to hire a solicitor, who will find a barrister for you.

12.) You may want to get legal aid to pay for representation. You may want to start getting your paperwork together soon. If you have everything ready to go, it should be less stressful.

Summary: When convenient, you may want to
a.) prepare your errors of law spreadsheet
b.) prepare your financial information to apply for legal aid

Thank you for this information Marcidevpal, I am positively waiting for the outcome of my appeal next month. Not long now. I’m very nervous! You’ll be the first to know regardless of the outcome!

Let’s hope this is the start of a positive journey for us Zambrano carers waiting on appeal.

[marcidevpal]

Aha! Greetings to you, Tina!

Glad to see you are still on board.

You are very welcome.

Keep safe.

MDP

[marcidevpal]

We may add this point to our appeals in my opinion, or would you pls suggest me to best way to use this point?

Krish is our newest detective! Great work!

These numbers are so disappointing. What kind of residence scheme approves just 8.7% of all applicants? It's just awful.

1250/11430 - 0.0866 or 8.7%

THE BOTTOM LINE

So, out of 1250 accepted EUSS applications

840 Zambrano carers were awarded pre-settled status
410 were awarded settled status.

CALCULATIONS

1250 = settled + pre-settled
840 = pre-settled
equals 410 settled

A Few Possible Arguments I thought of quickly

1.) Zambrano carers had a legitimate expectation that the Home Office would use the EU's defintion of a Zambrano carer.

Instead, the Home Office added a requirement that you could not hold Appendix FM on the date you made your application.

The Home Office later added ANOTHER requirement that you MUST APPLY for Appendix FM before applying for Appendix EU.

2.) Zambrano carers had a legitimate expectation that they would be able to raise Article 8 ECHR in their appeals and undergo a balancing exercise.

3.) Zambrano carers had a legitimate expectation that the statutory instrument for EUSS appeals would include grounds for appeal around Part 1 of the Withdrawal Agreement.

4.) The Secretary of State for the Home Department(SSHD) engaged in procedural impropriety by not consulting with experts on Appendix EU for Zambrano carers.

5.) The SSHD committed a material error of law by creating a statutory instrument that says Zambrano carers are Zambrano carers under the EU's definition (the 2016 EEA Regulations) UNTIL their applications and/or appeals are determined, yet refusing Zambrano carers settlement under a different definition.

6.) The SSHD unlawfully discriminates against Zambrano carers. The guidance for Zambrano carers is far more restrictive than for other derivative rights holders. No other category of derivative rights holder has had their application refused under novel or special rules. Their applications are judged according to EU case law.

[marcidevpal]

Correction 14,430 not 11,430

Applications concluded 14,430
of which are Settled status received 1,250

1250 / 14, 430 = 0.0866 or 8.7%

Over 10 thousand families have been refused.

Where is the Independent Monitoring Association (IMA)?
Where are the Members of Parliament?
Where are the lawyers?
Why do Zambrano carers have to fight this battle alone?

[marcidevpal]

Settled Status = 410 families

Can we pause for a moment and reflect?

Just 410 Zambrano families were granted settled status.

Out of 14,430 applications.

I remember writing in the fall and winter of 2020, that most people would be refused.

Someone responded that I was "scaremongering". The person accused me of being unnecessarily negative. They wanted me banned from this platform.

Yet, here we are, years later with over 90% of Zambrano carers refused.

A judicial review led by a group of Zambrano carers was the answer.

[marcidevpal]

Judicial Review Grounds Summary

1.) An error in law
The Home Secretary
- applies the wrong test for settlement, or
- acts outside its statutory powers,
- takes into account irrelevant matters or
- fails to consider relevant matters

2.) Procedural impropriety
unfairness in the decision making process such as
- failure to disclose documents to enable representations to be made,
- refusal to call relevant witnesses or
- giving inadequate reasons

3.) The decision is irrational
- so unreasonable as to be unsustainable, or
- where there is an abuse of power.

4.) Breach of Human Rights
The Secretary of State for the Home Department has breached the requirement to act compatibly with rights under the European Convention on Human Rights (ECHR) or the UK Human Rights Act

[marcidevpal]

How Chaos Occurred

Step 1 - Breach of Legitimate Expectation:
Advertise the new scheme with false promises of fairness and humanity

Step 2 - Procedural Impropriety:
Refuse to fulfill statutory requirements to consult with experts, do impact assessments, respond to questions from MPs, talk to the people most likely to be impacted, etc

Step 4 - Error of law:
Create policy that changes the established definition of a Zambrano carer and ignores ECJ case law

Step 5 - Breach of human rights:
Create a statutory instrument that denies people the ability to fully challenge the new rules on human rights grounds

Step 6 - Irrationality:
Refuse over 90% of Zambrano applicants to the Scheme despite the fact that at the time they applied, the Zambrano applicant met the test for a Zambrano carer under statutory instrument called The Citizens’ Rights (Restrictions of Rights of Entry and Residence) (EU Exit) Regulations 2020

https://www.legislation.gov.uk/ukdsi/2020/9780348212211

[marcidevpal]

Procedural Impropriety & Statutory Instruments

I used to complain about bad statutory instruments.

But bad statutory instruments are the result of a failure to follow procedure.

The proper procedure is something like this:

The Government has an idea. They are supposed to

-talk to experts.
-collect evidence.
-do assessments.
-talk to people who are most likely to be affected
-talk to people who work with people most likely to be affected
-run the numbers on who would benefit versus who would be left out
- and so on.

ONLY AFTER collecting all of the evidence, should the Government even consider going ahead to the next step.

I propose the Government has created statutory instruments WITHOUT going through the proper procedures.

I think they do not go through the proper procedures because the evidence will show that their idea is bad, or unfair or unjust.

Today's session in the House of Commons is case in point.

==========

The Government (Home Office) has created a new statutory instrument to stop students from bringing their spouses and children to the UK. PhDs and students on MSc in Research courses are still allowed.

The SNP (and a few Labour MPs) asked the Tory Minister about the procedure. They asked,

What evidence do you have to support the new rule?
Who are the experts you spoke to about your proposals?
What assessments were carried out?

One after the other, the SNP kept asking questions about procedure.

The Home Office Minister's response was always roughly the same: "We spoke to the Department of Education."

I believe they made the point that the Home Office has created a new statutory instrument without going through the proper procedure.

Accordingly, a judge could rule the Home Office engaged in "procedural impropriety".

But, someone would have to make a claim for judicial review.

================

Again, I don't believe the Home Office went through the normal steps (in relation to Zambrano carers) when they created the statutory instrument for EUSS.

Unless someone brings a judicial review, we will never really know.

[marcidevpal]

Tell the Judges about the 90% refusal rate

I don't think the judges know the Home Office refused over 90% of Zambrano carer EUSS applications.

Here is the link to the EUSS statistics -

https://www.gov.uk/government/collectio ... statistics

If you are appealing your refusal, or you have an in-person hearing -

- tell your judge
- give them the link to the statistics so they can verify
- print out the statistics

There is no point in creating a scheme to accept less than 10% of applicants.

What if a company behaved like the Home Office?

The company would be sued for false advertising or misrepresentation.

If a company advertised a service, but then refused 90% of the potential customers, there would be problems.

So, why should the Home Office be able to advertise EUSS for Zambrano carers then reject 92%?

[marcidevpal]

How to create grounds

If you are struggling with the submissions section of your skeleton argument, here is a suggestion:

1.) Create an event timeline. Start with your own events. Then expand to the period June 2016 (when the Brexit vote happened) until today. Add as many facts as possible.

2.) Explain each fact-based event. Answer the question, "How did this event affect the Home Office's decision-making?"

3.) Assign each event from the previous step to an error of law.

FOR EXAMPLE Note- I just put this together quickly. Don't copy and paste it.

Mr ABC
versus
Secretary of State for the Home Department

Appellant's Skeleton Argument

(A) Case summary.....
(B) Respondent's refusal reasons.....
(C) Legal framework....
(D) Relevant case law....

(E) Submissions

1.) The appellant contends the respondent's refusal to grant her settlement is breaches her legitimate expectations and is irrational, discriminatory and a violation of human rights.

Prior to the introduction of the EUSS, the respondent said the following

"WE HAVE AGREED with the EU that the agreement will apply concepts of EU law interpreted in line with case law of the Court of Justice of the European Union (CJEU) by the end of the implementation period, including cases such as Metock, which limits consideration of the previous immigration status of those applying as non-EEA family members of EU citizens."

The Government made public statements to say they would implement and respect Metock. The Government's failure to apply Metock faithfully, violates the legitimate expectations of Zambrano carers.The Government made public statements to say they would respect case law passed BEFORE 31 December 2020. The Withdrawal Agreement says clearly in the next paragraph that case law passed AFTER 31 December 2020 must be taken into account. The European Court of Justice case of E.K. has not been addressed by the Goverment. (In the case of Ms. E.K., a Zambrano carer, the ECJ said people covered under Article 20 TFEU are eligible for permanent residence after 5 years.) Zambrano carers had a legitimate expectation that the Government would apply cases such as Ms E.K.

SECOND, in Metock (2008), the ECJ ruled the following:

"They submitted that Directive 2004/38 governs exhaustively the conditions of entry into and residence in a Member State for a Union citizen who is a national of another Member State and his family members, so that the Member States are not entitled to impose additional conditions. Since the directive makes no provision for a condition of prior lawful residence in another Member State, such as that imposed by the Irish legislation, that legislation is not consistent with Community law."

The European Court of Justice agreed with Metok's lawyers that Member States can not add conditions to an EU Directive. Yet, post-Brexit, the UK added provisions to the EUSS. They include the requirement to not have leave under Appendix FM and to be forced to apply for leave under Appendix FM, if you do not have it. Zambrano carers with pending applications or appeals are still covered by the EEA Regulations.

The EEA Regulations derive from Union law. The UK can not add conditions to rights already guaranteed by Union law. But that is what the Home Office has done. The Home Office has limited the appellant's rights under Union law - by adding conditions or 'provisions' for the appellant to obtain a right of residence under Union law.

The statutory instrument created by the respondent says a Zambrano carer is a Zambrano carer - based on the EU's definition - while they apply for EUSS or appeal their EUSS decision. On the other hand, when the SSHD evaluated the appellant's EUSS application, the respondent adopts a definition of a Zambrano carer that diverges from the ECJ's case law.

Metock would gain residence because his British wife moved to Ireland. But EU citizens who never left their home country would not be able to bring their family members in. Ireland said if Metock were to get residence because his British wife left Britain for Ireland, it would be unfair for British citizens who never left their home country -

"Those governments further submit that that interpretation of Directive 2004/38 would lead to unjustified reverse discrimination, in so far as nationals of the host Member State who have never exercised their right of freedom of movement would not derive rights of entry and residence from Community law for their family members who are nationals of non-member countries."

Although the Zambrano case happened four years later in 2012, this argument applies to Zambrano carers. British Zambrano children never exercised their freedom of movement rights; hence Ireland's argument that 'reverse discrimination' against EU citizens who never left their home country. British children (and their Zambrano carers) are experiencing unjustified discrimination.

The case of Ruiz Zambrano happened in 2011. Metock occurred in 2008. The ECJ said in Metock that EU citizens who never left their country are NOT covered by Community law. The ECJ also said the following

"Moreover, it should be recalled that all the Member States are parties to the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950, which enshrines in Article 8 the right to respect for private and family life."

Applying Metock, Zambrano families should always be able to rely on the European Convention on Human Rights. The ECJ later said that family members of EU citizens who never left their native country were covered by Union law. But, even before they changed their mind, the judges said EU citizens could rely on the ECHR.

The Zambrano expectation was, at the very least, that the Home Office would assess their EUSS applications taking into account the case law of Metock, and, in particular, their Article 8 human right to family and private life. The Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 does not list Article 8 ECHR as an available ground of appeal in Section 8. Therefore, the Home Office did not fully or faithfully apply Metock - eventhough they promised to do so. Accordingly, the Home Office breached the legitimate expectation Zambrano carers.

THIRD, the House of Commons engaged the respondent on several occasions to gain understanding of what the Government planned to do.

In January 2018, MP Yvette Cooper said, "We need to make sure that when Parliament has a meaningful vote, we have proper transparency and a debate on the decision, and that is why new clause 17 is so important...Everyone recognises that the single market issues are complex, linked as they are to questions of immigration and how we deal with future rules. That makes it even more important for Parliament and the public to be able to scrutinise the Government’s decisions on those complex issues. To do so, we need to know the facts and the impact on the economy and our constituencies."

On 9th March 2019, MP Stephen Gethins asked, "As part of that and on the issue of EU nationals, will he consider the 2012 European Court of Justice judgment in the case of Zambrano v. Office national de l’emploi, which gave EU nationals with primary caring responsibilities the right to reside in the member state of which their dependent child or adult is a national?"

David Davis, then Brexit Secretary, immediately responded, "I am not familiar with the individual case the hon. Gentleman raises. I will look at it in detail and come back to him, as is my normal approach. I say this, however: the European Court of Justice will not rule over the United Kingdom after the date of Brexit. That does not mean that we will not have a very humane, sensible and straightforward policy with respect to things such as family relationships, which the hon. Gentleman talks about." There is no record of a response in Hansard.

On 7th January 2020, Paul Blomfield asks, "Clearly, the Government are not intending to accept any amendments, so I would welcome the Minister intervening to confirm today on the record that the right of appeal will be created using powers under the withdrawal agreement and that it will cover all those in the UK, particularly those who came under the Zambrano and Surinder Singh routes. Would he like to intervene?
[Interruption] He indicates that he will come back at a later stage, and I would be grateful for that." The statutory instrument covering EUSS appeals does offers a single ground of appeal that is relevant to Zambrano carers. Part 2 of the Withdrawal Agreement does not apply directly to Zambrano carers. The only ground in the SI is that the Home Office's decision goes against the immigration rules. If the rules are unlawful and violate principles of natural justice, there is no available ground of appeal for Zambrano carers.

Again on 7th January 2020, Brandon Lews, MP and Minister of State for Security and Deputy for EU Exit and No Deal Preparation says, "Sadly, he did not give the whole quote, so colleagues are probably not quite aware of the point I was making, which was that the whole point of the settled status scheme is to ensure that nobody is left behind and all rights are properly protected."

Paul Blomfield responds, "When the Minister says that this will apply to all citizens, does he include those who came under the Zambrano and Surinder Singh routes?"

Brandon Lewis, MP, confirms, "Yes, absolutely....It is important that we encourage people to apply for this settled status. It is simple, quick and easy; it delivers on people’s rights; and it delivers on our promises. That is why we will not accept any amendments or new clauses this evening." To refuse 90% of Zambrano applications IS to leave people behind and NOT protect their rights....

[marcidevpal]

Sadiq Khan

The Government (and Labour) say immigration among skilled labour is too high.

Yesterday, Sadiq Khan said that even if you trained everyone in London, London would still not have enough people to fill the available jobs.

[marcidevpal]

Irrationality

Earlier, I said the SSHD or Home Office was irrational because they accept that Zambrano carers are still Zambrano carers while they await their appeals, yet refuse their Zambrano applications under different criteria.

You can add further examples of the Government's irrational behaviour to your submissions.For example, the Government goes to India, Nigeria and other countries in the 'developing' world to recruit people in shortage occupations. This practice is probably unlawful because it drains those countries of skilled workers.

Now, the Home Office complain when people from India and Nigeria come to study. They say they are a burden because they bring their families. If they did not offer workers from India and Nigeria dependent visas, the workers would not come.

So it is ok for workers to come and bring their families, but it is not ok for people studying for advanced degrees to bring their families? Someone who studies for an MSc in Computer Science is not allowed to bring their family. But someone who currently works as a software developer today can bring their family? The UK is desperate for technical people.

The Home Office regularly makes irrational policy decisions.

Have a thought for that person who got accepted to study in the UK next year. They probably put down a deposit on their course, gave notice at their job, put down a deposit on a flat in the UK, gave up their accommodation in their home country. Yesterday, they found out they can't bring their family with them. What sort of person ruins the dreams of strangers?

The Home Office said the reason they won't allow students to bring their families is because the number of dependents has increased substantially. Not a single journalist asked the simple question, "How many more students are arriving? Has the average age of the students increased? Do the universities prefer older students to younger ones, perhaps because they have more work experience and can benefit from the course more?

If you look at Europeans, more now leave than stay. I believe many are leaving because they are tired of giving their skills to a country that disrespects migrants. Once people from other countries realise that when they get to the UK, both major political parties talk about them as if they are a 'burden', they are going seriously consider leaving, too. Or just not emigrating to the UK in the first instance.

[marcidevpal]

Witness statement & Celik

Let's assume Celik wins his appeal in July.

Judges have to agree to take human rights into account on EUSS appeals.

I hope you raised article 8 in your appeal.

You can use your witness statement to explain why you deserve settlement.

The judge will do a balancing exercise. He or she will balance your request against society's best interests.

Your witness statement could have a few paragraphs where you explain why the judge should agree your request is either good for society.

[chopwell20]

NAD WINS!!! HURRAH!!

Dear MarcidevPAL

Thank you for your kind words. I deeply appreciate your dedication, guidance, and the value of the information you provided.

During the period of waiting for my appeal decision, I maintained a calm and focused demeanor, thanks to the invaluable assistance and guidance you provided me with. Your expertise and advice equipped me with the necessary tools to construct a compelling case and fortified my mindset for the upcoming battle.

I am immensely grateful to report that my appeal has been allowed. This outcome stands as a testament to the meticulous preparation and the professional approach we adopted throughout the process. Your guidance played a pivotal role in shaping the arguments and evidence presented, which ultimately led to this favorable resolution.

Once again, please accept my sincere appreciation for your unwavering support and the valuable insights you shared. Your contribution has not only assisted me in achieving a positive outcome but has also broadened my understanding and strengthened my skills for future endeavors.

Thank you for being an invaluable source of wisdom and inspiration, and for helping me navigate through this challenging phase of my life..

Hi NAD,

I thought maybe people could find a use for my suggestions.

I am humbled when people actually do work them into their submissions.

You perservered, even when things looked dire for Zambrano carers.

You did the work.

And I am beyond thrilled you won!!!

Britain is indeed a better country for granting residence to Zambrano carers like you.

I am also grateful to the judges for hearing your arguments. It shows they are listening.

Everyone, if you are there... Will you take a moment to please congratulate NAD?

NAD's win is a win not just for him and his family.

It's a win for us all.

Cheers,
MaricDevPal

Thank you all for your congratulations. I submitted an appeal at the end of December, and it was allowed in early March. However, I have not received any letter from the Home Office indicating whether they accept or challenge the appeal. Surprisingly, the tribunal has no record of the permission to appeal being submitted even after 60 days. The Home Office is not responding with any further action, such as issuing settled status.

I had a similar refusal in the past when I had valid FLR FP during the transition period. From 2014 to 2018, I had no legal status due to a separate case pending with the Home Office. This situation arose because my lawyer had deceived me, and I overstayed my visa. I challenged this matter with the ombudsman, but unfortunately, after a two-year process, there was no favourable outcome. The case was complicated further by the closure of the chamber, and no records could be found.

Regards and good wishes for all.