Zambrano Settled Status EU settlement scheme Paper Application Form - NEW

[Tina87]

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.

Thanks very much. Was it a paper appeal or oral hearing? As I submitted mine (paper) around November but when I call, they keep telling me no judge has been assigned to my case yet.So I was wondering.

[marcidevpal]

@Tina87

Hi Tina,

You may want to ask permission to resubmit your paper appeal.

Perhaps you could rewrite it taking into account all of the latest points raised?

Or, just make it easier for a judge to read?

If I had to guess, it is possible they think your case is strong, but you didn't present all of the necessary arguments. But, yeah, it is just a guess.

[marcidevpal]

Hierarchy of Grounds

Here are some grounds, ranked in order of my preference, only

The appellant contends the refusal violates....

1.) Ground 2 of the EUSS Appeals statutory instrument. (The details of this argument will be specific to you).

2.) The appellant's human rights under ECHR and HRA (this depends on the outcome of the Celik case)

3.) The appellant's legitimate expectation her application would be evaluated based on ECJ case law (Zambrano, Dereci) with no additional unreasonable or irrational limitations or restrictions

4.) The statutory procedure rules which require the respondent to assess the impact of statutory instruments, the outcome of which would have suggested just 400 applicants would achieve settlement out of 10,000 applications (procedural impropriety)

5.) The rights of Zambrano carers to not be discriminated against. Zambrano carers are primarily single mothers of Asian, African race and Eastern European ethnicity.

6.) Other grounds - you can talk about material error of law, misdirection of law, irrationality, unreasonableness, etc

FOR APPEAL RIGHTS
Immigration (Citizens' Rights Appeals) (EU Exit) Regulations 2020
SI 2020/61, laid on 30 January 2020
https://www.legislation.gov.uk/uksi/202 ... tents/made

FOR EEA REGULATIONS
Citizens' Rights (Restrictions of Rights of Entry and Residence) (EU Exit) Regulations 2020
SI 2020, laid on 21 September 2020
https://www.legislation.gov.uk/uksi/2020/1210/made

EU SETTLEMENT SCHEME STATISTICS
https://www.gov.uk/government/collectio ... statistics

[marcidevpal]

Grounds: Immigration Rules - Part 1

Let's say your refusal letter says something like this:

We have considered whether vou meet the requirements for settled status (also known as indefinite leave to enter or remain) or pre-settled status (also known as limited leave to enter or remain) under the EU Settlement Scheme.

Unfortunately, based on the information and evidence provided or otherwise available, and for the reasons set out in this letter, you do not meet the requirements.

To qualify under the scheme you need to meet the requirements that are set out in Appendix EU to the Immigration Rules.

You have applied under the scheme as a 'person with a Zambrano right to reside' (as defined in Annex 1 to Appendix EU) on the basis that you are the primary carer of a British citizen.

There are three key elements which must be met:

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

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

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

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

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

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

Your application has been refused because you do not satisfy paragraphs 1 and 3, above.

[marcidevpal]

Grounds: Immigration Rules - Part 2

Let's say you became a Zambrano carer in 2013.

Six years later, in 2019, you applied for leave to remain under Appendix FM.

You met the conditions of Regualation 16 of the EEA Regulations for five years and did not have leave to remain under Appendix FM.

You could argue your continuous qualifying period was from 2013 until 2018.

Therefore, you met requirement number 1.

Your status as a Zambrano carer began before 31 December 2020.

That just leaves requirement number 3.

Therefore, you also meet requirement number 2.

[marcidevpal]

Grounds: Immigration Rules - Part 3

The immigration rules are unlawful, irrational and discriminatory.

But let's imagine for a moment they are lawful.

(a) The continuous qualifying period would have been broken (using the example above) in 2019.
- However, let's say we did not renew their Appendix FM leave in 2021.
- A second continuous period would have begun.
- The statutory instrument called Citizen's Rights, protects everyone's status as a Zambrano carer while applications and appeals are pending.
- Annex 1 of Appendix EU defines "EEA Regulations" as valid until at least 1 July 2021 -

(b) (where relevant to something done after 2300 GMT on 31 December 2020 and before 1 July 2021) the Immigration (European Economic Area) Regulations 2016 (as, despite the revocation of those Regulations, they continued to have effect, with specified modifications, by virtue of the Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020);

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

Therefore, the person in this example would meet the requirement 3. They would get pre-settled status rather than settled status.

(b) In our example, a person had leave to remain under Appendix FM at the specified date (31 December 2020). Therefore, this Zambrano carer would not meet requirement 3 (this scenario only).

(c) At the date of the 2021 application, the Zambrano carer could say they were a 'person who had a Zambrano right to reside' from 2013 until 2018. Note: this argument accepts the UK's false definition that a Zambrano carer is one who does not have LTR under Appendix FM. The problem is the move to a 'qualifying category'. Our Zambrano carer would not meet requirement 3 (this scenario only).

[marcidevpal]

Grounds: Immigration Rules - Part 4 - Important!!

In summary,

There are two continuous qualifying periods.

Period 1 is from 2013 to 2019.
Period 2 is from 2021 to present.

Our Zambrano carer can challenge the lawfulness of the immigration rules.
- Rely on the Continuous Period from 2013 to 2019
- Challenge the lawfulness of the first and third requirements
- Ask for settled status

Or, a Zambrano carer can accept the immigration rules as is, HOWEVER,
- Make sure you don't renew your leave to remain under Appendix FM
- Rely on the Continuous Period from 2021 to present
- Remind the judge about the Citizen's Rights Statutory Instrument- the continuing status under the EEA Regs
- Remind the judge about Annex 1 of Appendix EU, the definition of EEA Regulations (b)
- Ask for pre-settled status

Is your situation is very similar to our example person's?

At the very least, you should get pre-settled status. (Just my opinion).

[marcidevpal]

Grounds: Immigration Rules - Part 5

Zambrano carers are currently covered by the 2016 EEA Regulations.

The EEA Regulations say Zambrano carers are not eligible for permanent residence.

The European Court of Justice determined in the 2022 case of E.K. that Zambrano carers ARE ELIGIBLE for permanent residence after 5 years.

This right applies to the ECJ's definition of a Zambrano carer, not the UK's new definition.

The Withdrawal Agreement says the Courts must take into account case law from the ECJ passed after Brexit.

Therefore, the judges should grant Zambrano carers settlement under Appendix EU.

[marcidevpal]

3 Questions - Continuous Period

Answer these questions for the judge:

1.) What is the continuous period under the 2016 EEA Regulations?
2.) What is the first continuous period under Appendix EU?
3.) What is the second continuous period under Appendix EU?

FOR EXAMPLE

Under the 2016 EEA Regulations, my continuous qualifying period began in 2014 and continues to the present.

Under Appendix EU, my first continuous qualifying period begain in 2014 and ended in 2019 when I applied for Appendix FM.

Also, under Appendix EU, my second continuous qualifying period began in 2021 when I did not renew my leave under Appendix FM.

========

This way, the judge can decide which continuous qualifying period she wants to apply.

Under the first two scenarios, you should get settled status.

Under the last scenario, you may get pre-settled status.

[marcidevpal]

The Specified Date - 31 December 2020

Appendix EU defines a 'person with a Zambrano right to reside' as:

a person who has satisfied the Secretary of State by evidence provided that they are (and for the relevant period have been) or (as the case may be) for the relevant period they were:
(a) resident for a continuous qualifying period in the UK which began before the specified date

Appendix EU says a Zambrano carer can't have leave to remain under Appendix FM on the specified date of 31 December 2020.

Bot the Upper Tribunal and Court of Appeal confirmed in Akinsaya that the EEA Regulations allow a Zambrano carer to have leave to remain under Appendix FM and still be a Zambrano carer.

Zambrano carers had a legitimate expectation that the SSHD would use the definition created by the EEA Regulations.

Instead, the Home Office sent letters to Zambrano carers to fool them into applying for Appendix FM in the period immediately before 31st December 2020.

If the Home Office acted responsibly, they would have informed Zambrano carers at least 2.5 years BEFORE the specified date of their intentions.

Instead, the Home Office remained silent about their plan to exclude Zambrano carers with leave to remain under Appendix FM - until it was too late.

The behaviour by the Home Office is unlawful and should be challenged.

It also demonstrates procedural impropriety on their part.

Had the Home Office fulfilled their statutory duties to consult with experts and Zambrano carers, they would have known and accepted they had a responsibility to be transparent about their intentions.

Instead, the Home Office repeatedly gave false evidence to the House of Commons. The Home Office said they would apply Metock, and treat Zambrano carers humanely and apply the ECJ's definition of a Zambrano carer.

It is deceptive to use a widely recognised term Zambrano carer but apply a totally different definition.

The behaviour by the Home Office violates the principles of natural justice.

[marcidevpal]

An EEA or ECJ Zambrano carer versus a Home Office Zambrano carer

A Zambrano carer according to the Home Office is someone who

1.) Does not have leave to remain under Appendix FM on 31 December 2020
2.) Does not hold leave to remain under Appendix FM on the date you make your application

The Akinsaya cases challenged the point 2.

There was no finding of fact by either the Upper Tribunal or the Court of Appeal regarding point 1.

The rule is irrational and discriminatory.

Anyone residing in the UK under Union law on 31 December 2020 should be eligible for settlement.

It should not matter if you also had leave under Appendix FM on 31 December 2020.

You should consider raising this point in your grounds.

[marcidevpal]

Analysis

https://tribunalsdecisions.service.gov. ... 06890-2021

If you are a litigant in person, you may want to practice your understanding of the rules to date:

BACKGROUND
The Appellant exercised her right of appeal pursuant to reg 3 of the Immigration (Citizens’ Rights Appeals) EU Exit Regulations 2020 (“the Exit Regulations 2020”). There is a ground of appeal available under Reg 8 (3) of the Exit Regulations 2020; namely that the decision was not in accordance with the Immigration Rules (IR), in this case Appendix EU.

- Daughter born in September 2004.
- Mother applied for EUSS in July 2020.
- SSHD refused application in April 2021.
- Daughter was 16 years old when the SSHD refused the application.
- Daughter was aged 17 at the hearing before the First-tier Tribunal and Upper Tribunal.

THE DECISION
The Upper Tribunal judges ruled against her because her daughter was 17 years old at the time of the hearings. I believe this decision is wrong.

DISCUSSION
The mother applied when the child was 15 years old, so she was definitely a Zambrano carer at the time of her application. Under the Citizens' Rights statutory instrument, the mother retains her status as a Zambrano carer under the EEA Regulations until all appeals are exhausted. The child could have gone to school at the same time. An older child in school is still a dependent. What a shame she didn't know.

[marcidevpal]

Analysis continued

Moreover, if the mother had been a Zambrano carer for five years, she should have been entitled to permanent residence based on the ECJ case of E.K.

The judges should have looked at the mother's status at the time she made the EUSS application, not at the time she went before the Court.

Under Union law, you don't have to have a derivative card to be covered. Even if she did not apply for a derivative residence card, she was clearly a Zambrano carer. She met the tests. Just my thoughts...

[marcidevpal]

How old is your child?

I don't actually want to know the answer.

Based on the previous case, it seems the judges look at the age of your child ON THE DATE OF THE HEARING.

I don't think that is right. But, better to be safe than sorry.

If your youngest child is approaching 17 years old, you may want to start legal claim sooner rather than later.

[marcidevpal]

Irrationality - Child's Age

If the child of a Zambrano carer turns 18, the child is said to be able to reside in the UK without the parent.

If a British child turns 18 under Appendix FM, the parent's status does not change.

As long as the parent and child continue to share the same household, the parent can continue under Appendix FM.

The difference between a derivative right and Appendix FM is irrational. It violates human rights.

Moreover, I think it is cruel to expect a 17 year old to live alone in the UK without her parent.

Finally, people seem to want to pick and choose which rules they follow.

I have yet to see a ruling that respects the ECJ case law of Ms E.K.....

[marcidevpal]

Red Book Scams & Hostile Environment

Did you ever wonder why Zambrano carers are treated with SO MUCH hostility?

About 10 days ago, BBC published a documentary.

Pregnant single mothers apparently pay British men to say they are the father of their unborn child.

After 7 years, BBC have not covered Zambrano carers.

They have yet to discuss the 10,000 families who were refused under EUSS.

The point of this post is to help you with your witness statement.

You may want to add a paragraph about how you met your British partner, if relevant.

[marcidevpal]

Grounds: Procedural Impropriety - NO CLEAR GOALS

Procedural impropriety occurs when the Home Office fails to take reasonable steps to understand the impact of its policies and immigration rule updates on the people most affected.

The proof that procedural impropriety occurred, is the fact that the Home Office granted just 410 families settled status out of over 14,400 valid applications.

Further proof is the fact that in the Akinsaya case, both the Upper Tribunal and Court of Appeal said the SSHD's goals were unclear.

The goals become clear as the government department goes through the procedure.

The judges in Akinsaya saw that the goals were unclear. They said so in their ruling.

Unclear goals = procedural impropriety.

The department would avoid making big errors if they went through the procedures.

The big error in Akinsaya is the SSHD thought Zambrano carers could not have leave to remain under Appendix FM.

MOSTYN J, UPPER TRIBUNAL

73. So here. It is my judgment that, irrespective of the true scope of the Zambrano jurisprudence, the natural, fair, reasonable and plain meaning of the words of Regulation 16 entitle an applicant under the 2016 Regulations for a derivative right to reside to have the application determined by reference to the prescribed eligibility criteria in that Regulation rather than being struck out peremptorily. The existing words in Regulation 16 are clear and the proposed amendments go well outside the permissible range of meaning of those words.

74. I did ask Mr Thomann why the Secretary of State was asking me to do her amending for her. Surely, I asked, if the Secretary of State was so anxious that persons with limited leave to remain should also be designated as exempt persons, it would be the easiest thing for the 2016 Regulations to be amended again. However, I was told that this would not be straightforward. The 2016 Regulations have in fact been revoked by the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 Sch.1(1) para.2(2) with effect from 31 December 2020, but the revocation has effect subject to savings specified in two statutory instruments made pursuant to that Act namely:

the Citizens' Rights (Restrictions of Rights of Entry and Residence) (EU Exit) Regulations 2020 (SI 2020/1210) Regulations 2, 3, 6, and Schedule 1; and

the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020 (SI 2020/1309) Regulations 82 - 83, Schedule 3 paras 2 - 6 and Schedule 4 paras 2 - 4.

Simply stated, the effect of the savings is to allow people in the position of the claimant whose rights had vested prior to implementation day on 31 December 2020 to make their claim. However, it is, apparently, not straightforward to make amendments to these preserved provisions.

75. Whether or not this is the case is of no relevance to the decision that I have to make. If it is the case, then perhaps the Secretary of State should have made the amendments to the 2016 Regulations before 31 December 2020.

76. That is my judgment.

Mostyn J's ruling says anyone who
- is a Zambrano carer by 31 December 2020,
- based on the definition of the 2016 EEA Regulations
should be eligible for settlement.

Mostyn J understands it is unfair to change the rules AFTER the fact.

REFERENCES

https://www.bailii.org/ew/cases/EWHC/Ad ... /1535.html
https://www.bailii.org/ew/cases/EWCA/Civ/2022/37.html

[marcidevpal]

The Government Admits- No Impact Assessment

No impact assessment = PROCEDURAL IMPROPRIETY!

No impact assessment was done for

The Citizens’ Rights (Restrictions of Rights of Entry and Residence) (EU Exit) Regulations 2020

You can see the admission in the Explanatory Note. It is the last line.

See - https://www.legislation.gov.uk/uksi/2020/1210/note/made

Moreover, they did not even consider Zambrano carers as a stakeholder.

The only stakeholders they considered were businesses, charities, etc. Not people.

EXPLANATORY NOTE
(This note is not part of the Regulations)

These Regulations save and modify the Immigration (European Economic Area) Regulations 2016 (S.I. 2016/1052) (“EEA Regulations 2016”)...

Regulation 2 saves certain provisions within the EEA Regulations 2016, with the modifications specified in the Schedule insofar as they apply to certain persons who are protected by the Agreements and certain persons who are not protected by the Agreements but who have entry clearance or leave to enter or remain in the United Kingdom by virtue of the United Kingdom’s domestic implementation of the Agreements...

An impact assessment has not been produced for these Regulations as no impact on business, charities, voluntary bodies or the public sector is foreseen.

[marcidevpal]

3 Smoking Guns - Important!!

1. Breach of legitimate expectation

Brandon Lewis, MP, the Deputy Minister for EU Exit said

"The whole point of the settled status scheme is to ensure that nobody is left behind and all rights are properly protected."

See page 213 of this thread for further details and/or Hansard - https://hansard.parliament.uk/Commons/2 ... ent%29Bill

2. Procedural impropriety

The Government admitted they did not conduct an impact assessment when they created the Citizens' Rights (Restrictions of Rights of Entry and Residence) (EU Exit) Regulations 2020 (SI 2020/1210). Moreover, they didn't even accept that they had to taking into account fairness for Zambrano carers. See the Explanatory Notes for confirmation - https://www.legislation.gov.uk/uksi/2020/1210/note/made

3. Discrimination

The SSHD / Home Office granted settlement to just 410 families out of 14, 400 valid applications. Most Zambrano carers are single mothers from Africa, Asia, the Caribbean or Eastern Europe. See the published statistics for confirmation - https://www.gov.uk/government/collectio ... statistics

[marcidevpal]

Human Rights & Celik & Metok

A statutory instrument is a piece of secondary leglislation. Parliament does not vote on secondary legislation.

A statutory instrument was created for the EU Settlement Scheme. It tells judges what people's rights are.

The statutory instrument for the EUSS includes grounds for appeal.

Anyone who applies to the EUSS has different grounds they can raise in their appeal.

For Zambrano carers, there is only really one ground according to the statutory instrument -

The Appellant exercised her right of appeal pursuant to reg 3 of the Immigration (Citizens’ Rights Appeals) EU Exit Regulations 2020 (“the Exit Regulations 2020”). There is a ground of appeal available under Reg 8 (3) of the Exit Regulations 2020; namely that the decision was not in accordance with the Immigration Rules (IR), in this case Appendix EU.

Human rights are fundamental.

If a piece of legislation does not list human rights as a ground of appeal, UK judges are supposed to consider human rights anway - as long as you raise human rights as a ground.

In the case of Celik, the President of the Upper Tribunal said judges should not consider human rights grounds on EUSS appeals.

The Court of Appeal will decide if the President is corred in July.

Even without knowing the outcome in the Celik appeal, there is another argument to make to the judge regarding your human rights.

Soon after the Brexit vote, the Home Office said they would apply the principles in the Metok case.

The European Court of Justice said in Metok that people who never exercised their freedom of movement (Zambrano carers) could raise Article 8 ECHR to protect their residence rights.

[marcidevpal]

The Heart of the Problem - Citizens' Rights v Appendix EU

1.) The Citizens' Rights statutory instrument says you are a Zambrano carer, but the Immigration Rules say you are NOT a Zambrano carer. Both are currently in force. Citizens' Rights is a continuation of the 2016 EEA Regulations.

2.) Appendix EU defines a person with a derivative right to reside differently to the Citizens' Rights statutory instrument.

3.) The statutory instrument for EUSS appeals says Zambrano carers can only appeal against the Immigration Rules(Appendix EU). The statutory instrument for EUSS appeals does not mention the Citizens' Rights statutory instrument.

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

4.) The statutory instrument has one definition for all derivative residence card holders. Appendix EU has a definition for derivative residence card holders and another definition for Zambrano carers.

5.) The statutory instrument says all derivative residence cared holders CAN hold leave under Appendix FM and still be derivative residence card holders. Appendix EU says Zambrano carers can't hold leave under Appendix FM.

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

There are 3 statutory instruments to know:

- One statutory instrument says your rights before Brexit.
- Another statutory instrument says your rights after Brexit.
- The third statutory instrument tells you your appeal rights.

Then you have the Immigration Rules:

- Appendix EU
- Appendix FM

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

The 2016 EEA Regulations ended in 2020. The Citizen's Rights Regulations took over. These two statutory instruments do not mention "Zambrano carers". They only talk about people with derivative residence.

Appendix EU is NOT a statutory instrument. It is an appendix in the Immigration Rules. Appendix EU separates Zambrano carers from people with derivative residence.

REFERENCES

- The Immigration (European Economic Area) Regulations 2016
- The Citizens’ Rights (Restrictions of Rights of Entry and Residence) (EU Exit) Regulations 2020
- Appendix EU of the Immigration Rules
- The Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020

https://www.legislation.gov.uk/uksi/202 ... edule/made
https://www.legislation.gov.uk/uksi/2016/1052/made
https://www.gov.uk/guidance/immigration ... ppendix-eu
https://www.legislation.gov.uk/uksi/202 ... tents/made

[marcidevpal]

In a nutshell

The Citizens' Rights statutory instrument borrows from the 2016 EEA Regulations.

If you look at the 2016 EEA Regulations, there is no special category called 'Zambrano carer'.

It's just people with a derivative right to reside.

But, if you look at Appendix EU, you see two things.

One, they created a separate and new category called "Zambrano carer" that is separate from 'people with a derivative right to reside.'

Two, they added a requirement that a Zambrano carer can't have leave to remain under Appendix FM - and still be a Zambrano carer.

Then, the Home Office created another statutory instrument for EUSS appeals. They said Zambrano carers can only appeal against the Appendix EU to stop Zambrano carers from talking about the Citizens' Rights statutory instrument.

Someone should bring a judicial review against the Home Office.

The Immigration Rules are unlawful.

Appendix EU violates rights Zambrano carers acquired under the 2016 EEA Regulations and continue to this day under the Citizens' Rights statutory instrument.

[marcidevpal]

Mostyn J, Akinsaya, Upper Tribunal

It is good to understand Mostyn J's point.

Mostyn J essentially told the SSHD (Home Office) the following:

"If you didn't want Zambrano carers with leave to remain under Appendix FM to participate in EUSS, you should have changed the statutory instrument (the 2016 EEA Regulations)."

The lawyer for the SSHD basically said:

"We can't change the 2016 EEA Regulations, because they are no longer active. Also, we created a new statutory instrument called the Citizens' Rights."

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

I checked. There have been no changes to the original Citizens' Rights statutory instrument -
https://www.legislation.gov.uk/uksi/2020/1210

Changes to legislation:

There are currently no known outstanding effects for the The Citizens’ Rights (Restrictions of Rights of Entry and Residence) (EU Exit) Regulations 2020. Help about Changes to Legislation

Therefore, the government can't create immigration rules that limit or restrict rights of derivative residents.

(Notice I didn't say 'restrict the right of Zambrano carers'. Technically there is just people with a right to reside and people with a derivative right to reside).

[marcidevpal]

In a nutshell (again)

Your application was rejected based on immigration rules that are unlawful.

Your appeal may be refused because of the judge's reliance upon immigration rules are unlawful.

The immigration rules violate the Citizens' Rights statutory instrument.

The Citzens' Rights statutory instrument keeps the 2016 EEA Regulations alive.

Statutory instruments are more powerful than Immigration rules.

Acts are more powerful than Statutory instruments.

Acts (such as the Human Rights Act) are primary legislation. Statutory instruments are secondary legislation.

The EUSS Appeals statutory instrument says you can only appeal if the decision does not follow the immigration rules. (But, the immigration rules are wrong).

Hope that helps.

[marcidevpal]

HCLC Grounds for Appeal

In April 2023, HCLC offered the following grounds for EUSS appeals:

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

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

Hopefully the posts above show you why these grounds should be argued:

- Eventhough the 2016 EEA Regulations were revoked, Citizens' Rights took over.

- The Citzens' Rights document does not differentiate one group of derivative card holders from another. Therefore Zambrano carers should not be treated differently to Chen/Teixeira cases.