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Another example
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IN THE FIRST-TIER TRIBUNAL (IMMIGRATION & ASYLUM CHAMBER)
BETWEEN:
EA/XXXXX/202X
JANE DOE
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
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APPELLANT’S SKELETON ARGUMENT “ASA”
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This skeleton argument relates to the appellant’s appeal against the respondent’s refusal of an application under the European Union Settlement Scheme (Appendix EU) dated DD MM YYYY.
In this ASA, references will be made to “RL” which is the refusal letter, “WS” are the appellant’s witness statements, “AB” is the appellant’s bundle, and the “RB” refers to the respondent’s bundle.
[A] CASE SUMMARY
1. The appellant came to the UK as a family member of an EEA national in 2010. At this time, her mother was
the civil partner of an Irish national. The respondent granted the appellant a 5 year residency permit in 2011. The EEA national died in 2015. The 5 year EEA residency permit was not renewed nor did the appellant apply for permanent residence.
2. In 2014, the appellant had her first British child with my ex partner. In 2015, the appellant gave birth to her second British child. In 2018, she gave birth to her third British child. A victim of domestic violence, the appellant split from her ex partner in 2018.
3. In October 2019, the appellant applied for EU settlement It was rejected in august 2022Social services instructed the appellant to apply for leave to remain under Appendix FM despite her reservations and desire to apply for a derivative residence card as a Zambrano carer. The respondent granted the appellant further leave to remain which expired in April 2022. The respondent refused the appellant's application under Appendix EU in August 2021.
[] RESPONDENT'S CASE
1. The respondent's refusal letter says .....
[C] ISSUES TO BE DETERMINED
1. Is the appellant entitled to permanent residence as the family member of an EEA national?
2. Is the appellant entitled to permanent residence as the sole carer of three British children?
[D] LEGAL FRAMEWORK
1.
The Immigration (European Economic Area) Regulations 2016
https://www.legislation.gov.uk/uksi/201 ... egulation/
“Family member”
7.—(1) In these Regulations, “family member” means, in relation to a person (“A”)—
(a)A's spouse or civil partner;
(b)A's direct descendants, or
the direct descendants of A's spouse or civil partner who are either—
(i)aged under 21; or
(ii)dependants of A, or of A's spouse or civil partner;
(c)dependent direct relatives in A's ascending line, or in that of A's spouse or civil partner.
(3) A person (“B”) who is an extended family member and has been issued with an EEA family permit, a registration certificate or a residence card must be treated as a family member of A, provided—
(a)B continues to satisfy the conditions in regulation 8(2), (3), (4) or (5); and
c)dependent direct relatives in A's ascending line, or in that of A's spouse or civil partner.
“Family member who has retained the right of residence”
“Family member who has retained the right of residence”
10.—(1) In these Regulations, “family member who has retained the right of residence” means, subject to paragraphs (8) and (9), a person who satisfies a condition in paragraph (2), (3), (4) or (5).
(2) The condition in this paragraph is that the person—
(a)was a family member of a qualified person or of an EEA national with a right of permanent residence when the qualified person or the EEA national with the right of permanent residence died;
(b)resided in the United Kingdom in accordance with these Regulations for at least the year immediately before the death of the qualified person or the EEA national with a right of permanent residence; and
(c)satisfies the condition in paragraph (6).
(3) The condition in this paragraph is that the person—
(a)is the direct descendant of—
(i)a qualified person or an EEA national with a right of permanent residence who has died;
(ii)a person who ceased to be a qualified person on ceasing to reside in the United Kingdom;
(iii)the spouse or civil partner of the qualified person or EEA national described in sub-paragraph (i) immediately preceding that qualified person or EEA national's death; or
(iv)the spouse or civil partner of the person described in sub-paragraph (ii); and
(b)was attending an educational course in the United Kingdom immediately before the qualified person or the EEA national with a right of permanent residence died, or ceased to be a qualified person, and continues to attend such a course.
(4) The condition in this paragraph is that the person is the parent with actual custody of a child who satisfies the condition in paragraph (3).
(5) The condition in this paragraph is that the person (“A”)—
(a)ceased to be a family member of a qualified person or an EEA national with a right of permanent residence on the termination of the marriage or civil partnership of A;
(b)was residing in the United Kingdom in accordance with these Regulations at the date of the termination;
(c)satisfies the condition in paragraph (6); and
(d)either—
(i)prior to the initiation of the proceedings for the termination of the marriage or the civil partnership, the marriage or civil partnership had lasted for at least three years and the parties to the marriage or civil partnership had resided in the United Kingdom for at least one year during its duration;
(ii)the former spouse or civil partner of the qualified person or the EEA national with a right of permanent residence has custody of a child of that qualified person or EEA national;
(iii)the former spouse or civil partner of the qualified person or the EEA national with a right of permanent residence has the right of access to a child of that qualified person or EEA national, where the child is under the age of 18 and where a court has ordered that such access must take place in the United Kingdom; or
(iv)the continued right of residence in the United Kingdom of A is warranted by particularly difficult circumstances, such as where A or another family member has been a victim of domestic violence whilst the marriage or civil partnership was subsisting.
(6) The condition in this paragraph is that the person—
(a)is not an EEA national but would, if the person were an EEA national, be a worker, a self-employed person or a self-sufficient person under regulation 6; or
(b)is the family member of a person who falls within paragraph (a).
(7) In this regulation, “educational course” means a course within the scope of Article 10 of Council Regulation (EU) No. 492/2011 F1.
(8) A person (“P”) does not satisfy a condition in paragraph (2), (3), (4) or (5) if, at the first time P would otherwise have satisfied the relevant condition, P had a right of permanent residence under regulation 15.
(9) A family member who has retained the right of residence ceases to enjoy that status on acquiring a right of permanent residence under regulation 15.
Right of permanent residence
15.—(1) The following persons acquire the right to reside in the United Kingdom permanently—
(b)a family member of an EEA national who is not an EEA national but who has resided in the United Kingdom with the EEA national in accordance with these Regulations for a continuous period of five years;
(3) The right of permanent residence under this regulation is lost through absence from the United Kingdom for a period exceeding two years.
2. The Withdrawal Agreement
https://assets.publishing.service.gov.u ... munity.pdf
ARTICLE 10 Personal scope
2. Persons falling under points (a) and (b) of Article 3(2) of Directive 2004/38/EC whose residence was facilitated by the host State in accordance with its national legislation before the end of the transition period in accordance with Article 3(2) of that Directive shall retain their right of residence in the host State in accordance with this Part, provided that they continue to reside in the host State thereafter.
3. Paragraph 2 shall also apply to persons falling under points (a) and (b) of Article 3(2) of Directive 2004/38/EC who have applied for facilitation of entry and residence before the end of the transition period, and whose residence is being facilitated by the host State in accordance with its national legislation thereafter.
5. In the cases referred to in paragraphs 3 and 4, the host State shall undertake an extensive examination of the personal circumstances of the persons concerned and shall justify any denial of entry or residence to such persons.
ARTICLE 11 Continuity of residence
Continuity of residence for the purposes of Articles 9 and 10 shall not be affected by absences as referred to in Article 15(2).
The right of permanent residence acquired under Directive 2004/38/EC before the end of the transition period shall not be treated as lost through absence from the host State for a period specified in Article 15(3).
ARTICLE 13 Residence rights
3. Family members who are neither Union citizens nor United Kingdom nationals shall have the right to reside in the host State under Article 21 TFEU and as set out in Article 6(2), Article 7(2), Article 12(2) or (3), Article 13(2), Article 14, Article 16(2), Article 17(3) or (4) or Article 18 of Directive 2004/38/EC, subject to the limitations and conditions set out in those provisions.
4. The host State may not impose any limitations or conditions for obtaining, retaining or losing residence rights on the persons referred to in paragraphs 1, 2 and 3, other than those provided for in this Title. There shall be no discretion in applying the limitations and conditions provided for in this Title, other than in favour of the person concerned.
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.
3. Once acquired, the right of permanent residence shall be lost only through absence from the host State for a period exceeding 5 consecutive years.
ARTICLE 16 Accumulation of periods
Union citizens and United Kingdom nationals, and their respective family members, who before the end of the transition period resided legally in the host State in accordance with the conditions of Article 7 of Directive 2004/38/EC for a period of less than 5 years, shall have the right to acquire the right to reside permanently under the conditions set out in Article 15 of this Agreement once they have completed the necessary periods of residence. 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.
ARTICLE 17 Status and changes
1. The right of Union citizens and United Kingdom nationals, and their respective family members, to rely directly on this Part shall not be affected when they change status, for example between student, worker, self-employed person and economically inactive person. Persons who, at the end of the transition period, enjoy a right of residence in their capacity as family members of Union citizens or United Kingdom nationals, cannot become persons referred to in points (a) to (d) of Article 10(1).
ARTICLE 18 Issuance of residence documents
1. The host State may require Union citizens or United Kingdom nationals, their respective family members and other persons, who reside in its territory in accordance with the conditions set out in this Title, to apply for a new residence status which confers the rights under this Title and a document evidencing such status which may be in a digital form.
Applying for such a residence status shall be subject to the following conditions:
(o) the competent authorities of the host State shall help the applicants to prove their eligibility and to avoid any errors or omissions in their applications; they shall give the applicants the opportunity to furnish supplementary evidence and to correct any deficiencies, errors or omissions;
(r) the applicant shall have access to judicial and, where appropriate, administrative redress procedures in the host State against any decision refusing to grant the residence status. The redress procedures shall allow for an examination of the legality of the decision, as well as of the facts and circumstances on which the proposed decision is based. Such redress procedures shall ensure that the decision is not disproportionate.
3.
UK Human Rights Act 1998
[E] SUBMISSIONS
1. The appellant contends she is a family member who has retained the right of residence. She became eligible for permanent residence in 2016. Per the terms of the Withdrawal Agreement, she retains this right. The respondent failed to help the appellant prove her eligibility for permanent residence. The appellant is eligible for residence based on five years residence in the UK.
2. The appellant contends she is a Zambrano carer based on the 2016 EEA Regulations. In Akinsaya v SSHD, the Court of Appeal ruled a Zambrano carer can hold leave to remain under Appendix FM and still be a Zambrano carer. In Giraldo v SSHD, the Upper Tribunal ruled Zambrano carers who met the definition as per the EEA Regulations, are entitled to permanent residence after five years under Appendix EU. The appellant is entitled to permanent residence based on five years residence in the UK.
3. The appellant contends her Article 8 human rights have been violated by the respondent's refusal to grant her permanent residence. In the following cases, the European Court of Human Rights found that the state's rejection of the application for a residence permit resulted in an infringement of the applicants’ right to respect for their family life, guaranteed by Article 8 of the European Convention on Human Rights -
ECtHR - Boughanemi v. France, Application no. 22070/93
ECtHR - Gül v. Switzerland, Application no. 23218/94
ECtHR - X., Y. and Z. v. United Kingdom, no. 21830/93
ECtHR - Mehemi v. France, no. 53470/99
ECtHR- Berrehab v. the Netherlands, Application no. 10730/84
United Kingdom - McMichael v The United Kingdom, Series A No 207-B(1995) 20 EHRR 205
ECtHR - Ahmut v. the Netherlands, Application 21702/93, 28 November 1996
ECtHR - Johansen v Norway, Application No. 17383/90
ECtHR - Abdulaziz, Cabales and Balkandali v. the United Kingdom, Application Nos. 9214/80, 9473/81 and 9474/81
ESSENTIAL READING
1. Witness statement dated 1 January 2023
2. Appellant's skeleton argument dated 1 January 2023
3. Respondent's refusal letter dated 1 June 2022
The court is invited to allow the appeal.
05 January 2023