marcidevpal wrote: ↑Fri Jul 07, 2023 3:56 pm
I am so very sorry to hear that, Wishfulgirl!
Many, many people struggle with the First-tier Tribunal.
The next step would be to identify any errors of law your judge would have made.
Then, to apply to the First-tier Tribunal for permission to appeal. And, if they say no, to apply to the Upper Tribunal for permission to appeal.
If you raised Celik in your appeal, I am very surprised the First-tier would decide your appeal before Celik's decision was published.....
I’m not sure if I did raised Celik. I definitely should’ve Ben able to update my skeleton argument before the appeal. I did mentioned human rights thought. The decision is as follows. Moderators, if I have missed anything, please remove any information I may have missed when redacted the sensitive. I don’t believe I have but just in case. I’m not sure if I am able to appeal to the upper tribunal tbh. From what I seen No mentioned of the EEA retained rights, it’s all based around Zambrano. I’m not sure if making an application has retained rights is even worth it now because the uk has left EU and Home Office may argue the current rules does not apply to me.
Find decision below.
The appellant is xxxxxxx (the Appellant), date of birth xxxxx she is female and is a citizen of xxxxx. The Appellant’s nationality is accepted. For the reasons that I set out below I have dismissed the Appellant’s appeal.
© CROWN COPYRIGHT 2023
The Appellant’s Immigration History
The Appellant says and I accept that she arrived in the UK 2010. I note that she did so subject to an EEA Family permit valid from the 4th October 2010 to 4th April 2011 granted by the Secretary of State for the Home Department (the SSHD) under the provisions then immigrations regulations for EEA residents and their families. I add that she was further granted leave to remain by the SSHD by virtue of a Residence Card granted under the EEA regulations. Such Residence card was valid from 19th July 2011 to 19th July 2016.
Thereafter the Appellant applied for leave to remain and was granted such leave from the 10th October 2019 to 9th April 2022. I have copy residence documents establishing so.
On the 11th August 2021 the Appellant made an application for what is described in the documentary evidence as a returning resident under Appendix EU of the immigration rules (the Rules). Her claim is made as a Zambrano carer in light of connection to three of her four children. On the 21st July 2022 the Appellant's application was considered, both in respect of settled and pre settled status under Appendix EU of the Rules, by the Secretary of State for the Home Department (the SSHD) but refused for reasons set out in a letter (the Refusal Letter) of that date. The Appellant sought to appeal that decision by application dated August 2022, and she pursues her appeal to this Tribunal pursuant to the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 (the Exit Regulations) and section 82 of the Nationality, Immigration and Asylum Act 2002.
The Legal Framework of this Decision
The background to the Appellant’s leave to remain in the UK and/or appeal is made in respect of her connection to her children xxxxx, xxxx, (date of birth xxxxx, xxxxxxxx xxxxxxx date of birth xxxxxx and xxxxxx , (the Children). The Children I accept are British citizens – I note upon the documentary evidence that their father is xxxxxxxx . I further note that the Appellant has a further child xxxxx . It is the Appellant’s case that she is their carer. The Appellant’s application was made and considered under Appendix EU of the Rules and in particular rule EU11 and EU14, and refused it is said under EU6.
The Burden and Standard of Proof
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The burden of proof on all matters is upon the Appellant. The standard of proof is the normal civil standard. So far as the Immigration Rules are concerned it is for the Appellant to show, to that standard, that she meets the requirements of the Rules. I add it is for the Appellant to prove the documents upon which she relies are reliable as per Tanveer Ahmed [2002] UKIAT 00439 approved of by QC (verification of documents; Mibanga duty) China [2021] UKUT 00033.
Evidence
The SSHD provided a tribunal bundle, the RB, which runs to 178 pages. At page 2 of the bundle is an index set out in sections A-F. I do not set out the contents they are set out in the Index.
The Appellant has provided numerous documents including a copy of her residence permit, EEA family permit, residence card (EEA), copy passports of the Children, letter mental health services xxxx, the Appellant’s skeleton argument (the ASA), various letters from xxxx social service children's services and the Appellant’s witness statement. In addition I have the appeal application (of 30 pages).
I was also provided with the copies of case law namely Berrehab v Netherlands [1986] 10730, Birch v SSHD [2020] UKUT 86, Ahmut v Netherlands 21702/93, Boughanemi v France 22070/93, Abdulaziz and others v UK 9214/80, Mehemi v France 53470/99, X, Y and Z v UK 21830/93, EK v Netherlands 7256/11, SSHD v Giraldo [2015], Gul v Switzerland 23218/294, Huang and others v SSHD [2007] UKHL 11, Johansen v Norway 17384/90. I add that I did not find the case law helpful noting that these authorities, largely, relate to matters and claims brought under the European Convention of Human Rights (the ECHR) and articles 2, 3 and 8 of the convention. I note that I am concerned with an application made under Appendix EU of the Immigration Rules, further that the Appellant, so far as I can see has made no claim in respect of an asserted breach of the ECHR and in any event the SSHD have not considered such a claim. I am therefore prohibited from considering in particular (as it might apply in the Appellant’s circumstances) article 8 of the ECHR. I further note that it was and is open to the Appellant to make an application under Appendix FM of the Rules. I have not considered whether such application would be successful as it is not open to me (for the same reasons) to do so.
I remind myself it is for the parties to provide the evidence upon which they intend to rely and of their responsibility to assist the tribunal to further the overriding objective as per rule 2(4) of the The Tribunal Procedure (First Tier Tribunal) (Immigration and Asylum Chamber) Rules 2014.
This matter was considered on the papers with the consent of the parties.
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I do not repeat the documentary evidence but shall refer to those aspects that I found particularly pertinent to the issues I was considering, where I do so, I do not exclude any other evidence but merely seek to identify that particular evidence that I found particularly pertinent on the issue.
I have read all the documents placed before me. I have read the case authorities to which I have been directed by the parties and to those which I have referred to in this Decision I have considered all this evidence when coming to this Decision. I remind myself that it is for the parties to provide the documentary evidence upon which they seek to rely.
I have taken into consideration all the evidence before me, as well as the parties submissions even where not specifically mentioned in reaching this decision.
In determining this Appeal I have considered section 81(1) of the 2002 Act and in so doing I have considered all avenues open to this Appellant.
The Appellants’ Claim and Submission
The Appellant’s case is that she is living in the UK with the Children as their sole carer. It is said that the three youngest Children’s father, was violent and abusive to her. She has some mental health conditions. The Appellant’s claim is made as a Zambrano carer seeking reliance under Appendix EU of the Rules and section 55 of Borders Citizenship and Immigration Act 2009 (Section 55) and further article 3 of the UN Convention of the Rights of the Child.
I note her statement and the ASA as to her position and argument made before me. I do not repeat this evidence or submission it is clearly set out in those documents and in the documentary evidence.
The Respondent’s Decision
The Respondent relies upon the Refusal Letter. The Respondent considered the Appellant's application but refused it because, it was said that the Appellant did not meet the eligibility requirement of the Appendix EU. It is said that the SSHD had regard to the Section 55 in respect of the Children.
The SSHD refers to the criteria of the then under the Rules (the Rules in respect of Zambrano carers have changed since the application and decision).
Findings of Fact and Credibility
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I accept the Appellant is a xxxx national. I accept the immigration history as is set out above at [3] to [6] above. I accept that the Children are her children and that she cares for them. I accept upon the evidence of the mental health letter, social workers letters, the school letter and her statement to me that she is the sole carer of all of her children. They are all I find living in the UK.
I thus conclude that the Children are all British citizens, the Appellant is their primary carer and I further conclude that each of the Children would be unable to reside in the UK or EEA state should the Appellant leave the UK indefinitely. I find that the Appellant would meet the criteria under regulation 16(5) of the Immigration (EEA) Regulations 2016 were they still in force and to the extent that they are relevant under Appendix EU. I make this finding accepting the social worker evidence that the Appellant was a victim of domestic violence by the Children’s father and that he no longer has contact with them. They are all young, I judge that they have lived in the UK all their lives (at least I have no evidence to suggest to the contrary) they require a person with parental responsibility to care for them. I note that the two eldest (xxxx and xxxx are over the age of 7 years) thus they have spent at least 7 years in the UK - a period of time which the SSHD through another aspect of the Immigration Rules acknowledges as significant. I take such matters into account in my best interest assessment applying Section 55 and conclude that it is in their best interest that they should remain in the UK in the care of the Appellant.
But, I must apply the Rules under which the Appellant makes her application. My Section 55 assessment cannot augment Rules such as to confer compliance with the Rules. The documentary evidence as to the family permit, residence card and residence permit confirm to me the various ways in which the Appellant has had immigration status in the UK since October 2010. Her last such status I find to be the residence permit which I judge was obtained under Appendix FM of the Rules (as the Refusal Letter asserts) and was for the period 10th October 2019 to April 2022. She made the application under appeal on the August 2021 thus during the currency of that leave to remain.
The definition in Annex 1 of Appendix EU stated (at the date of application and date of decision – it has since changed) as,
Person with a Zambrano right to reside
a person who has satisfied the Secretary of State, including (where applicable) by the required evidence of family relationship, that, by the specified date, they are (and for the relevant period have been), or (as the case may be) for the relevant period in which they rely on having been a person with a Zambrano right to reside (before they then became a person who had a derivative or Zambrano right to reside) they were:
(a) resident for a continuous qualifying period in the UK with a derivative right to reside by virtue of regulation 16(1) of the EEA Regulations, by satisfying: (i) the criterion in paragraph (1)(a) of that regulation; and (ii) the criteria in:
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(aa) paragraph (5) of regulation 16 of the EEA Regulations; or
(bb) paragraph (6) of that regulation where that person’s primary carer is, or (as the case may be) was, entitled to a derivative right to reside in the UK under paragraph (5), regardless (where the person was previously granted limited leave to enter or remain under paragraph EU3 of this Appendix as a person with a Zambrano right to reside and was under the age of 18 years at the date of application for that leave) of whether, in respect of the criterion in regulation 16(6)(a) of the EEA Regulations, they are, or (as the case may be) were, under the age of 18 years; and
(b) without leave to enter or remain in the UK, unless this was granted under this Appendix. [my indentations]
This is not an easy definition to read. But I find that the effect of the definition, as set out above - and as applicable in the Appellant’s circumstances - is that she falls outside of that definition because she had leave to remain under Appendix FM and so does not meet (b) of the definition. Put another way because she had leave to remain granted under Appendix FM of the Rules at the specified date (31st December 2020 – when the UK left the EU) and I note at the date of the application, she did not have a derivative or Zambrano right to reside at that time and so does not meet the requirements of the Rules in this regard. I note and have had regard to Akinsanya v SSHD [2022] EWCA Civ 37 but this authority does not assist the Appellant noting in particular the decision of Underhill LJ at [54] to [70] who concluded that the definition as set out above did not infringe the general principles of Zambrano albeit that the SSHD’s intentions in framing (b) of the definition was to restrict rights for those such as those in the Appellant’s circumstances. I note that the SSHD has clarified that it maintains the position, as per the Zambranao EU settlement Scheme guidance of 13th June 2022 as to the definition of (b) above above - notwithstanding the observations of the Court in Akinsanya v SSHD.
Conclusion
In light of the above findings I conclude that the Appellant does not meet the eligibility requirements of EU11, EU12 or EU14. As such her appeal must fail.
The Appellant's appeal was unsuccessful and so I do not make a fee award. Notice of Decision
The appeal is dismissed under the Immigration Rules applying Appendix EU.
