Zambrano Settled Status EU settlement scheme Paper Application Form - NEW

[marcidevpal]

"After a waiting period of 10 days, totalling 115 days from the original communication, I received a response from the court, which explicitly stated that they had no record of permission to appeal."

Hi NAD,

I thought they wrote to say they did have a record of an application for permission to appeal? No matter. If you feel comfortable sharing, it would be good to know

- if permission was granted,
- which court granted it,
- the reasons the Home Office gave for why an appeal should go ahead and
- the reasons the judge gave for why permission was granted.

[chopwell20]

"After a waiting period of 10 days, totalling 115 days from the original communication, I received a response from the court, which explicitly stated that they had no record of permission to appeal."

Hi NAD,

I thought they wrote to say they did have a record of an application for permission to appeal? No matter. If you feel comfortable sharing, it would be good to know

- if permission was granted,
- which court granted it,
- the reasons the Home Office gave for why an appeal should go ahead and
- the reasons the judge gave for why permission was granted.

Thank you for your prompt response.

At the moment I am waiting for further response from them after they sent me acknowledgement.

Kind Regard.

[marcidevpal]

Permission to Appeal, Court of Appeal

The High Court had backed the government's Rwanda policy at an earlier hearing. In December, the High Court decided that the plan did not breach the UN's Refugee Convention.

In January, some of the parties were granted permission to appeal against elements of that decision.

Two out of the three Appeal Court judges - Lord Chief Justice Lord Burnett, Sir Geoffrey Vos and Lord Justice Underhill - found that there was a risk that asylum seekers sent to Rwanda could then be forced back to the country from where they were originally fleeing.

This means the UK government's immigration policy contravenes the European Convention on Human Rights, which protects against torture.

The judges said that sending asylum seekers to Rwanda will be unlawful "unless and until the deficiencies in [its government's] asylum processes are corrected".

The home secretary told MPs she respected the judgement, but added it was "disappointing" and that the government would be challenging it.

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

So, you can win at the Upper Tribunal but if the other side is granted permission to appeal on at least one groupd - the whole decision can be overturned. The opposite applies to you. You may have lost at the Upper Tribunal, but if you are allowed to appeal to the Court of Appeal - even on just one ground - you could still win settlement. Don't give up!

[chopwell20]

Dear marcidevpal
I wanted to express my sincere gratitude to you and this forum for the support and encouragement I received during our conversation in December. Your words gave me the courage to fight on, and I have remained hopeful ever since. Thank you for your professionalism and friendly guidance.

With heartfelt appreciation, NAD

[marcidevpal]

Happy Friday NAD,

Glad to see you are keeping your spirits high. Thank you for the acknowledgement. It's so hard to get a sense of what is happening. One can feel they are being individually targeted by the Home Office. Everyone's contribution on this platform shows the patterns.

The UK media will never mention Zambrano carers or any group apart from refugees and people on work visas. The only way is to get creative. Thanks so much for your feedback on your journey. It gives us all into insight about the Courts.

....Next week looks busy with the Celik appeal. Here's hoping for a positive result!

Cheers,
MDP

[marcidevpal]

Lord Kinnoull, Chair of the European Affairs Committee

https://committees.parliament.uk/public ... 4/default/

On 18 January 2023, Lord Kinnoull wrote to the Secretary of State at the Foreign, Commonwealth and Development Office. If you received pre-settled status, you may find the letter useful.

[marcidevpal]

Secondary Legislation Scrutiny Committee (House of Lords)

The House of Lords can ask the Home Office why they don't create impact assessments or why (bad) secondary legislation is approved. For example, on 11th May 2023, the Lords asked the Home Office about the following:

- the Home Office’s failure to publish the Impact Assessment relating to these instruments;
- the process for producing and signing off secondary legislation and Explanatory Memoranda in the Home Office.

See - https://committees.parliament.uk/commit ... gislation/

One wonders why the Lords didn't ask these questions about the statutory instruments related to the EU settlement scheme???

There are 11 members

The Rt Hon. the Lord Hunt of Wirral MBE
The Lord De Mauley
The Baroness Harris of Richmond DL
The Rt Hon. the Lord Hutton of Furness
The Baroness Lea of Lymm CBE
The Lord Powell of Bayswater KCMG
The Baroness Randerson
The Baroness Ritchie of Downpatrick
The Lord Rowlands CBE
The Lord Russell of Liverpool
The Rt Hon. the Lord Thomas of Cwmgiedd

[marcidevpal]

Retained EU Law (Revocation and Reform) Act 2023

The Retained EU Law (Revocation and Reform) Act 2023 will revoke certain retained EU law.

The following Regulation will be revoked - in its entirety - on 31 December 2023:

Council Regulation (EU) 2020/1998 of 7 December 2020 concerning restrictive measures against serious human rights violations and abuses

This Regulation allows for sanctions against governments and people that allow serious offences such as:

- trafficking in human beings;
- abuses of human rights by migrant smugglers;
- sexual violence and gender-based violence;
- violations or abuses of the freedoms:
of peaceful assembly and of association,
of opinion and expression,
of religion or belief.

The EU global human rights sanctions regime (EUGHRSR) provides a legal base for the EU to target individuals, companies and bodies – including those who are associated with national governments and those who are not – that are responsible for, involved in or associated with serious human rights violations and abuses worldwide, no matter where they occur.

https://www.legislation.gov.uk/ukpga/20 ... 028_en.pdf
https://eur-lex.europa.eu/legal-content ... UM:4496091
https://bills.parliament.uk/bills/3340
https://hansard.parliament.uk/Lords/202 ... C3/details

[marcidevpal]

Interventions - Court of Appeal (Things are heating up!)

Here for Good and the AIRE Centre have been granted permission to jointly intervene in the Court of Appeal case Celik v The Secretary of State for Home Department (CA-2022-002008). Here for Good and the AIRE Centre will jointly make oral and written submissions in the case.

Why does no charity intervene in Zambrano appeals such as in Akinsanya v SSHD????

Here for Good together with ILPA and the3million addressed issues faced by Celik in two letters sent to the Home Office.

Why does no charity send letters on behalf of Zambrano carers to the Home Office????

One of Here for Good's recommendations in the letters was for the Home Office to treat any such application for status under the EU Settlement Scheme made by the 31 December 2020 as an application for a Residence Card made under the EEA Regulations 2016.

Points to be debated / discussed:

- the interaction between the Covid-19 pandemic and the end of the transition period in December 2020;
- the correct interpretation of Part 2 of the WA and its personal scope;
- the applicability of the proportionality concept under EU law and as provided for in the Withdrawal Agreement; and
- the complicated relationship between the Withdrawal Agreement, the Citizen’s Rights Directive, the 2016 EEA Regulations and Appendix EU.

Good luck to Celik tomorrow!

[marcidevpal]

Hasanaj v SSHD (Court of Appeal)

The issue: Does an entry stamp under The Regulations prior to the relevant date fall within the definition of relevant document or otherwise for the purposes of the EUSS?

The Court of Appeal granted Hasanaj permission to appeal 'in a case of wider public significance'. The SSHD says he does not fall under the Withdrawal Agreement.

Hasanaj
- is an extended family member.
- entered the U.K. after being granted entry under The EEA Regulations at port prior to 31.12.2020.
- made his EUSS application after the relevant date.



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

Zambrano carers may care about this case because you may have been refused because you did not have a derivative residence card. Perhaps his human rights may also be considered...

[Chima Christian Dezi]

Good day house pls I have a delay in reply issue from UKVI administrative review. I applied for AR on the 13th of April, 2023 and till now no reply and my CoS has expired and still no reply from them . I have mailed and called all to no avail pls I need help

[marcidevpal]

Good day house pls I have a delay in reply issue from UKVI administrative review. I applied for AR on the 13th of April, 2023 and till now no reply and my CoS has expired and still no reply from them . I have mailed and called all to no avail pls I need help

Hi Chima,

You raise two (separate) issues: a delayed response to your admin review and an expired Certificate of Application.

If your admin review is to challenge your EUSS refusal, I get the impression there is not much that can be done.

Regarding your expired Certificate of Application, you can

- email the Home Office to file a complaint
- contact your local MP and see if they will contact the Home Office on your behalf
- send a pre-action letter to the Pre-Action team at the Home Office, threatening them with a judicial review if they don't give you a new CoA

I would definitely do the first option. Other people may have more ideas...

[marcidevpal]

Potential Contacts

a.) Make a complaint - https://www.ukvi-complaints.homeoffice.gov.uk/reason

b.) Contact your local MP - https://members.parliament.uk/FindYourMP

c.) Pre-action letter - UKVIJudicialReview@homeoffice.gov.uk

d.) Independent Monitoring Authority - https://ima-citizensrights.org.uk/report-complaint/

e.) House of Lords, European Affairs Committee - hleuroaffairs@parliament.uk

f.) House of Lords, European Union Committee - euclords@parliament.uk

g.) House of Commons, European Scrutiny Committee - ESCOM@parliament.uk

PRE-ACTION LETTERS

The Letter Before Claim should set out the following:

1.) The decision or decisions being challenged
2.) The date of those said decisions
3.) The grounds on which the decision is being challenged and the error of law which has been identified
4.) The action which is required by the Home Office to remedy the error
5.) The PAP letter should say the time by which the Home Office is expected to reply.

[marcidevpal]

For the record...Withdrawal Agreement

Many many years ago, when the Withdrawal Agreement was first published, I said two things:

1.) The WA contradicts itself and has errors
2.) Zambrano carers are covered under it

Here we are, seven years later, and people are saying the Withdrawal Agreement has 'drafting errors'.

I was told Zambrano carers were not covered by the Withdrawal Agreement because Title 2 of the Agreement expressly excludes Zambrano carers. I agree Title 2 tries to write Zambrano carers out of the Withdrawal Agreement.

But, Title 1 includes Zambrano carers. Title 1 is about all of EU law - in general.

And, if there is a choice between Title 1 and Title 2, Title 1 wins.

Why? Because Title 1 sets the tone for the entire contract. The Withdrawal Agreement is just a contract at the end of the day.

Like Zambrano carers, extended family members such as Celik were written out of Articles 9 and 10 of Title 2. Some say extended family members are covered by the Withdrawal Agreement - eventhough they are not covered by Title 2. They say, the general principles of EU law mean extended family members are covered by the Withdrawal Agreement. Therefore, Zambrano carers must be covered by the Withdrawal Agreeement.

If only people had argued this point earlier....

It's the same thing with discrimination. I think we all pretty much agree that the way the Home Office administered the EUSS for Zambrano carers was discriminatory (90% refusal rate) - but no one will argue the point.

[marcidevpal]

I said it wrong...

(I keep saying Title 1 versus Title 2 when its Title 1, Part 1 versus Title 1, Part 2).

Title 1, Part 1 includes applies to everyone, including Zambrano carers

Title 1, Part 2 excludes Zambrano carers and extended family members

Title 2, Chapter 1, Articles 13, 15, 16, and 17 have 'drafting errors' as they relate to Zambrano carers

[marcidevpal]

WA Drafting errors - 'Family Members'

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

Did you live in the UK as a Zambrano carer for five years before 31st December 2020?

The only reason you have not been granted settlement under the Withdrawal Agreement is because Title 1, Part 2 says you are NOT eligible. It says you are NOT a 'family member'.

HOWEVER, if you apply the logic of Title 1, Part 1, you should be eligible. Under Title 1, Part 1 you are a family member because this part recognises all the EU case law.

Any normal person would say the parent of a British child is a family member of that British citizen. The Withdrawal Agreement, Title 1, Part 2, says Zambrano carers are NOT family members. That is ridiculous and cruel.

TITLE II - RIGHTS AND OBLIGATIONS
CHAPTER 1 - RIGHTS RELATED TO RESIDENCE, RESIDENCE DOCUMENTS
ARTICLE 15 - Right of permanent residence

1. Union citizens and United Kingdom nationals, and their respective family members,

who have resided legally in the host State in accordance with Union law for a continuous period of 5 years

or

for the period specified in Article 17 of Directive 2004/38/EC,

shall have the right to reside permanently in the host State under the conditions

set out in Articles 16, 17 and 18 of Directive 2004/38/EC.

Periods of legal residence or work in accordance with Union law before and after the end of the transition period shall be included in the calculation of the qualifying period necessary for acquisition of the right of permanent residence.

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

[marcidevpal]

Further ideas

Celik had argued that the Home Office was being unreasonable by not allowing him to apply (or re-apply) for a residence card after the 31st December 2020 deadline.

If the UK Courts agree that the Home Office was unreasonable, Zambrano carers can argue something similar.

For example, you could say the Home Office was being unreasonable by refusing your application because you either had leave under Appendix FM or could have applied for leave under Appendix FM.

It is unreasonable for at least two reasons:

- One, in Akinsanya, the Court of Appeal ruled that having leave under Appendix FM has no impact on your status as a Zambrano carer.

- Two, the Home Office tricked people into applying for Appendix FM in 2020.

========

Celik also argued the Home Office violated his human right to family life when they refused his EU settlement application. If the UK Courts agree with him, then Zambrano carers can make the same argument.

[Sllarev]

Hello everyone!

I have seen that Celiks appeal will be heard today as well.
Do we have any information how did yesterday’s hearing went? Any hopes? Also how long it takes for the court of appeal to give a decision on the case?

Thanks

Sara

[marcidevpal]

Celik's appeal

Hi Sara,

I am not sure what will happen.

People under the family permit scheme had a responsibility to apply for and receive a valid residence permit. (Zambrano carers do not have the same requirement).

What if you apply for the residence permit, but you fill out the form incorrectly? What if you sent in the form after the deadline due to COVID? What if you didn't send it in at all?

According to President Lane, if you didn't send in the form properly by the right date, you are completely out of luck. The Court of Appeal has to decide if they agree with President Lane.

The Court of Appeal could agree with him. They could also go to the other extreme and say, any document is valid until the appeals process concludes.

Or, they could say it depends on the individual circumstances of the person who applied. In other words, they could say that judges have a responsibility to do a 'balancing exercise' or apply a 'proportionality test'.

Some would say the Court's role is just to 'facilitate' applications. That it is enough to make sure that everyone has an opportunity to file an application and have their appeal heard. This role is passive.

Others would say it is not enough and that the judges have the responsibility to actively assess whether the legislation and policies are in line with what EU law expects and to consider if the appellant was treated in accordance with EU law.

[marcidevpal]

Third time's a charm...

My previous reference numbers were wrong. I really wish they had done a table of contents.

Anyway, it should have said:

Part 1 Common Provisions says the Withdrawal Agreement applies to everyone covered under EU laws.

Part 2, Title 1 Citizen's Rights says the Withdrawal Agreement does NOT apply to Zambrano carers.

Part 2, Title 2, Rights and Obligations was drafted based on Part 2, Title 1 Citizen's Rights instead of Part 1 Common Provisions.

Part 2, Title 2 Rights and Obligations is wrong because Part 2, Title 1 Citizen's Rights is wrong.

Part 2, Title 1 Citizen's Rights is wrong because it erroneously limits the scope of Part 1.

Part 1, Article 4 says

PART ONE - COMMON PROVISIONS

ARTICLE 4 Methods and principles relating to the effect, the implementation and the application of this Agreement

3. The provisions of this Agreement referring to Union law or to concepts or provisions thereof
shall be interpreted and applied in accordance with the methods and general principles of Union
law

Therefore, Part 2, Title 2 has 'drafting errors'.

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

[marcidevpal]

Discrimination

How it happens

1.) Announce a law
2.) When talking to the press, give statements to suggest the policy will be nothing but fair
3.) When answering questions in the House of Commons / Lords, respond to say the policy will be nothing if not fair
4.) Refuse to do an impact assessment or exclude your target group from the impact assessment
5.) Get the judges to agree not to consider human rights

Why it happens

- perhaps lawyers are uncomfortable making the argument
- perhaps judges are so invested in the idea of the UK being a country free of systemic sexism, beloved, xenophobia, etc that they dismiss any argument out of hand

What should happen

- people most affected should raise discrimination in their appeals (but not rely on it too heavily as it will probably be ignored)

[marcidevpal]

Your witness statement

Let's imagine in a perfect world that the judges begin again to consider human rights. Your witness statement (as opposed to your submissions or skeleton argument) may become quite important. Have you addressed all the relevant points, particularly if you are not appearing in person?

[marcidevpal]

The problem with the Celik case

Hundreds (or thousands) of people were refused due to what President Lane said in Celik. It wasn't because they filed late applications. It wasn't necessarily because they didn't have a residence card under the EEA Regulations. Many were refused because President Lane said EUSS appellants did not have an automatic right to have their human rights considered.

I do hope the judges address this question: Do EUSS applicants have an automatic right to a balancing exercise? Otherwise, it is difficult to see how the upcoming Celik decision can help Zambrano carers.

[marcidevpal]

Discrimination

How it happens

1.) Announce a law
2.) When talking to the press, give statements to suggest the policy will be nothing but fair
3.) When answering questions in the House of Commons / Lords, respond to say the policy will be nothing if not fair
4.) Refuse to do an impact assessment or exclude your target group from the impact assessment
5.) Get the judges to agree not to consider human rights

Why it happens

- perhaps lawyers are uncomfortable making the argument
- perhaps judges are so invested in the idea of the UK being a country free of systemic sexism, beloved, xenophobia, etc that they dismiss any argument out of hand

What should happen

- people most affected should raise discrimination in their appeals (but not rely on it too heavily as it will probably be ignored)

I find it interesting that 'sexism' and 'xenophobia' are not changed, but when I list R-cism, it gets changed to 'beloved'.

There is a general, widespread problem in the UK and/or Europe when it comes to discussing or acknowledging matters of R.ace.

[marcidevpal]

The argument that will never go away....general principles of EU law v national law

Should the judges make EUSS decisions based ultimately on national law?

There will always be case law to support an answer of 'yes', and case law to support no.

I personally believe national law is the starting point, but EU law is the overriding principle or consideration.

If you apply to court as a litigant in person, you may want to cite case law that says so.

I suspect the Home Office will have cases that say national law is #1. The Government has also probably created secondary legislation (statutory instruments) to ignore EU law.

I wish the judges would take a stand one way or another.

At the moment, the applicant is relying on luck.

An EUSS applicant can 'hope' their judge agrees to give primacy to EU provisions, concepts, etc. If so, it's a win.