Zambrano Settled Status EU settlement scheme Paper Application Form - NEW

[LULUBABY]

Hi all, just checked my email and saw they refused. They asked the Judge to refuse the application and gave me an invoice (that is what it looks like to me) of the costs I will repay if the judge refuses the application.

I broke down in tears, cried and called the tribunal. The guy was actually expecting my call, as soon as I said hello and started crying he asked “Is that
LULUBABY ?. I said ‘yes’, he consoled me and told me I have a chance to go before the courts.

Aww Lulubaby,
I am crying with you. So sorry to hear this my dear
Please don’t give up!!! We need to win these battles

Thanks Miss-Suz. The struggle continues.

[LULUBABY]

What was the reasons given for refusing permission?

Were you permitted to renew it to an oral hearing?

They haven’t refused permission yet. I called the tribunal today and the guy told me the Judge hasn’t decided yet, that HO only made an application / replied to my bundle. He also told me that I still have the chance of oral hearing. He said I can renew now or go for oral hearing. He kept on telling me I still have a chance of oral hearing.

[lolwe]

I get what you mean. Knowledge is power. So if you can please explain what you meant by the post, I am basically tired of this whole matter. All I can think about now is not becoming an overstayed again!

Ok, let's try again.

Each political party in the UK publishes a manifesto. The manifesto says what the party plans to do if they win the election. If you look at the Conservative party manifestos under David Cameron, Boris Johnson, etc, you will see they make promises around the European Court of Human Rights -

Prime Minister David Cameron’s Conservative Party toughened its stance on Europe on Friday, announcing a pre-election plan to quit the European Court of Human Rights unless it agrees that Britain’s parliament has the final say over its rulings.

The Human Rights Act (HRA) was introduced by the Labour government in 1998. The HRA is the British version of the ECHR. The lastest manifesto in 2019 simply promised to “update” the HRA -

BORIS Johnson’s Government is planning to ditch human rights laws as part of its withdrawal plan from the European Union.To do so, Tory ministers would either amend the Human Rights Act, or disapply its provisions from new legislation.

If you look at the Immigration Rules, they are made of different appendices. For example, Appendix EU is for the EU Settlement Scheme. Appendix FM implements Article 8 of the ECHR. Article 8 is the right to respect for private and family life. Therefore, Appendix FM is based on family life.

Civil rights groups fear the policy is aimed at severely limiting the scope of legal protections for asylum seekers, victims and other vulnerable groups. Per the Guardian newspaper

Many disputes around the act focus on interpretations of article 8 in the convention, which guarantees the right to respect for private and family life.

If the civil rights groups are correct, the way the Human Rights Act is implemented could change. That means Appendix FM, which is basically Article 8, could change:

For example, last month the ECHR, which considers claims that the convention has been breached, ruled the UK had violated the right to family life of a Nigerian man deported in 2018, one of whose children had a rare congenital heart defect. In that case British courts were criticised for adopting too narrow an interpretation of the protections.

More quotations showing the HRA is under threat

Lammy said: “It is bonkers that the government is prioritising launching an attack on human rights in the middle of the coronavirus pandemic.

and per Kate Allen, the director of Amnesty International UK

Tearing up the Human Rights Act would be a giant leap backwards. It would be the single biggest reduction in rights in the history of the UK...“It took ordinary people a very long time to win these rights and we mustn’t let politicians take them away with the stroke of a pen.

[lolwe]

What was the reasons given for refusing permission?

Were you permitted to renew it to an oral hearing?

They haven’t refused permission yet. I called the tribunal today and the guy told me the Judge hasn’t decided yet, that HO only made an application / replied to my bundle. He also told me that I still have the chance of oral hearing. He said I can renew now or go for oral hearing. He kept on telling me I still have a chance of oral hearing.

The oral hearing is a hearing for permission. It is not a hearing to decide your claim.

[LULUBABY]

What was the reasons given for refusing permission?

Were you permitted to renew it to an oral hearing?

They haven’t refused permission yet. I called the tribunal today and the guy told me the Judge hasn’t decided yet, that HO only made an application / replied to my bundle. He also told me that I still have the chance of oral hearing. He said I can renew now or go for oral hearing. He kept on telling me I still have a chance of oral hearing.

The oral hearing is a hearing for permission. It is not a hearing to decide your claim.

The guy is saying the judge hasn’t looked at the bundle to decide whether or not he will refuse permission.

[lolwe]

What was the reasons given for refusing permission?

Were you permitted to renew it to an oral hearing?

They haven’t refused permission yet. I called the tribunal today and the guy told me the Judge hasn’t decided yet, that HO only made an application / replied to my bundle. He also told me that I still have the chance of oral hearing. He said I can renew now or go for oral hearing. He kept on telling me I still have a chance of oral hearing.

The oral hearing is a hearing for permission. It is not a hearing to decide your claim.

The guy is saying the judge hasn’t looked at the bundle to decide whether or not he will refuse permission.

If you can not articulate your grounds, you have little prospect of success.

1.) You can not fight the legality of Appendix EU in the Upper Tribunal.
2.) The First Tier Tribunal is now accepting applications from Zambrano carers who applied for settlement before 31 January 2020. In the past, Zambrano carers had to go straight to the Upper Tribunal.
3.) It is unclear what argument you put in your bundle.
4.) If the judge gives you an opportunity to withdraw without having to pay the Home Office's fees, you should seriously consider taking it.
5.) Your case is similar to other people's. You are just behind them in the process because your LTR expired in July 2020. You should follow their path. Apply again now that your LTR has expired. Your application will be straightforward this time around. Your status will be protected while you go through the process.

[lolwe]

If I didn't want Zambrano carers to remain in the UK, I would....

• Go to the Supreme Court and ask them to make it easier to deport Zambrano carers;

• Discourage them from applying for settlement under Appendix EU (EUSS);

• Encourage them to apply under Appendix FM (which is basically Article 8 of the ECHR);

• Create a panel to "review" the UK's commitment to Human Rights

• Announce that I will withdraw from the ECHR and delete Article 8 the HRA;

• I would make this announcement AFTER the deadline for applying for settlement under Appendix EU passes, so Zambrano carers can not switch back to the EU Settlement Scheme;

• Cancel Appendix FM as a route to settlement in the UK;

The UK has already completed steps 1-4.

[Obie]

What was the reasons given for refusing permission?

Were you permitted to renew it to an oral hearing?

They haven’t refused permission yet. I called the tribunal today and the guy told me the Judge hasn’t decided yet, that HO only made an application / replied to my bundle. He also told me that I still have the chance of oral hearing. He said I can renew now or go for oral hearing. He kept on telling me I still have a chance of oral hearing.

There was no need to cry then, the Home Office will always oppose in their acknowledgement of Service. It is therefore premature to be concerned.

[lolwe]

DEPORTATION & THE SUPREME COURT - Robinson (Jamaica) v SSHD [2020] UKSC 53

BACKGROUND
The case involved a Jamaican woman who is the mother of a British citizen child, now aged 12. She was imprisoned for a Class A drug supply offence back in 2006. Deportation proceedings began in 2007. She and her husband had indefinite leave to remain.

UPPER TRIBUNAL
The Upper Tribunal found that Ms Robinson was a “Zambrano carer” because the woman’s child would be forced to leave the EU if his mother was deported. EU law came into play Because the child was an EU citizen (at the time anyway) . Therefore, there were no exceptions to the Zambrano principle and the woman could not be deported.

COURT OF APPEAL
There is no additional “exceptional circumstances” test which applies to protect a Zambrano carer from deportation.

SUPREME COURT
The Supreme Court agreed with the Court of Appeal. Lord Stephens gave the court’s sole judgment. The applicable test is one of EU law proportionality. The test will include an assessment of the best interests of the affected child.

CONCLUSION
The Upper Tribunal will now have to decide whether it is proportionate to deport a settled woman for a drugs offence which attracted a sentence of two years and six months back in 2006, and in doing so force her now 12-year-old British child to leave the country with her.

MY THOUGHTS
It is interesting that the Upper Tribunal considered Ms Robinson to be a Zambrano carer, eventhough she had indefinite leave to remain.

If I didn't want Zambrano carers to remain in the UK, I would....

• Go to the Supreme Court and ask them to make it easier to deport Zambrano carers;

• Discourage them from applying for settlement under Appendix EU (EUSS);

• Encourage them to apply under Appendix FM (which is basically Article 8 of the ECHR);

• Create a panel to "review" the UK's commitment to Human Rights

• Announce that I will withdraw from the ECHR and delete Article 8 the HRA;

• I would make this announcement AFTER the deadline for applying for settlement under Appendix EU passes, so Zambrano carers can not switch back to the EU Settlement Scheme;

• Cancel Appendix FM as a route to settlement in the UK;

The UK has already completed steps 1-4.

[LULUBABY]

What was the reasons given for refusing permission?

Were you permitted to renew it to an oral hearing?

They haven’t refused permission yet. I called the tribunal today and the guy told me the Judge hasn’t decided yet, that HO only made an application / replied to my bundle. He also told me that I still have the chance of oral hearing. He said I can renew now or go for oral hearing. He kept on telling me I still have a chance of oral hearing.

There was no need to cry then, the Home Office will always oppose in their acknowledgement of Service. It is therefore premature to be concerned.

Thank you so much.

[lolwe]

Recent Article from 17 September 2020: The Zambrano case demonstrates that even while a Member State of the European Union, the UK found ways to undermine the effect of EU Law in the UK.

2012 - THE ZAMBRANO AMENDMENTS

• In 2012, the government introduced reforms to Immigration Law that specifically targeted ‘Zambrano mothers’ - The Immigration (European Economic Area) (Amendment) (No.2) Regulations 2012 .

• The Zambrano Amendments were intentionally designed to exclude Zambrano carers from key mainstream benefits.

• During the many years of deliberation on Zambrano Amendments, at no point was a question referred to the CJEU.

2016 - BREXIT

Brexit was used as an opportunity to strip the Zambrano status of any value. This was easy to do as given their marginalised status in society and lack of political voice, the situation of these families was ignored by politicians, the mainstream media and mainstream campaigns.

2019 - EUSS

The EU Settlement Scheme was created to protect the residency of EU citizens in the UK and was amended only at the last minute to include the rights of Zambrano mothers in order to comply with international obligations on child welfare.

BLACK MOTHERS

Brexit has fulfilled the British government aim to deprive Zambrano carers – black and migrant women who are mothers to British citizen children, or carers to adult British nationals – of their right to residence in in the UK, as set out in EU law. (The majority of Zambrano families in the UK comprise black mothers from beyond the EU bringing up black British children alone. Official data suggests that 57 per cent of the mothers and carers in the UK who gained residency rights in this way have Nigerian, Jamaican or Ghanaian nationality. 94 per cent of Zambrano carers are lone parents and of these only 21 per cent are men (79 per cent are women))

[Rosh_2704]

Hi everyone,

My DRF application got refused last week on the basis that I have LTR till 10th June 2021. I have appeal rights under 2016 regulations and my deadline to submit the appeal is tomorrow. I’m going through a mental block and I’m finding it very difficult to state my grounds for appeal despite having gone through all the valuable info on this thread. I have filled the rest of the online FTT appeal form but I’m struggling to put my arguments across. I know I’m a bit late asking for help as my deadline is tomorrow but I would be grateful if anyone could guide me please.

[lolwe]

Hi everyone,

My DRF application got refused last week on the basis that I have LTR till 10th June 2021. I have appeal rights under 2016 regulations and my deadline to submit the appeal is tomorrow. I’m going through a mental block and I’m finding it very difficult to state my grounds for appeal despite having gone through all the valuable info on this thread. I have filled the rest of the online FTT appeal form but I’m struggling to put my arguments across. I know I’m a bit late asking for help as my deadline is tomorrow but I would be grateful if anyone could guide me please.

The Home Office rely on the 2017 decision by the Court of Appeal in Patel v SSHD:

In the case of Patel v SSHD [2017] EWCA Civ 2028 (13 December 2017), the Court of Appeal ruled that someone holding leave to remain under domestic law would not benefit from a derivative right to reside.

The Court of Appeal relied on the Immigration (European Economic Area) Regulations 2006 ("the 2006 Regulations").

The 2006 Regulations define a Zambrano carer as follows:

"[15A. Derivative right of residence]
(1) A person ("P") who is not [an exempt person] and who satisfies the criteria in paragraph (2), (3), (4) [(4A)] or (5) of this regulation is entitled to a derivative right to reside in the United Kingdom for as long as P satisfies the relevant criteria.
…
[(4A) P satisfies the criteria in this paragraph if–
(a) P is the primary carer of a British Citizen ("the relevant British citizen");
(b) the relevant British citizen is residing in the United Kingdom; and
(c) the relevant British citizen would be unable to reside in the UK or in another EEA State if P were required to leave.

(5) P satisfies the criteria in this paragraph if–
(a) P is under the age of 18;
(b) P's primary carer is entitled to a derivative right to reside in the United Kingdom by virtue of paragraph (2) or (4);
(c) P does not have leave to enter, or remain in, the United Kingdom; and
(d) requiring P to leave the United Kingdom would prevent P's primary carer from residing in the United Kingdom.

The 2006 Regulations are outdated and were replaced by the Immigration (European Economic Area) Regulations 2016 ("the 2016 Regulations").

The 2016 Regulations define a Zambrano carer as follows

Derivative right to reside
16.—(1) A person has a derivative right to reside during any period in which the person—
(a)is not an exempt person; and
(b)satisfies each of the criteria in one or more of paragraphs (2) to (6).

(5) The criteria in this paragraph are that—
(a)the person is the primary carer of a British citizen (“BC”);
(b)BC is residing in the United Kingdom; and
(c)BC would be unable to reside in the United Kingdom or in another EEA State if the person left the United Kingdom for an indefinite period.

As you can see, the 2016 regulations do not exclude Zambrano carers with leave to enter or remain in the United Kingdom.

• The Secretary of State’s decision is not in accordance with the evidence and the law as enshrined in the EEA Regulations

• No evidence or legal authority had been filed by the Secretary of State to establish that a Derivative Right to Reside is a “right of last resort” and the Appellants should exhaust Article 8 remedies before applying under the EEA Regulations

• Nothing contained within the EEA Regulations stipulates/requires that an applicant must exhaust all other means to remain lawfully in the United Kingdom under “domestic immigration law”

• The Secretary of State appears to rely upon a Home Office Policy Guidance “Free Movement; Derivative Rights of Residence, Version 5.0, 2nd May 2019, which appears to be based upon the Court of Appeal decision in Patel v SSHD [2017] EWCA Civ 2028, which in turn appears to have been recently considered by the Supreme Court in Patel v Secretary of State for the Home Department UKSC59(16 December 2019)

• There is no dispute/challenge in the refusal decision that the Appellant is the primary carer of a British citizen child

• There is no dispute that the British Citizen child is residing in the United Kingdom.

• There is no dispute that the British Citizen child would not be able to continue to reside in the United Kingdom or in another EEA state if the Appellants left the United Kingdom for an indefinite period

• The Appellant made an application under the EEA Regulations and based on the evidence, the Appellant meets the criteria under Regulation 16(5)of the EEA Regulations.

[Rosh_2704]

Thank you so much for simplifying it for me. I’m very grateful. I feel so overwhelmed and weakened in my life right now and I’m battling mental health issues. The refusal( even though I expected and thought I was ready to fight it in the court), triggered the emotions I put aside and it’s hard for me to handle everything. I almost gave up and didn’t wish to file the appeal (hence the deadline).

Again, thank you so much.

[lolwe]

Thank you so much for simplifying it for me. I’m very grateful. I feel so overwhelmed and weakened in my life right now and I’m battling mental health issues. The refusal( even though I expected and thought I was ready to fight it in the court), triggered the emotions I put aside and it’s hard for me to handle everything. I almost gave up and didn’t wish to file the appeal (hence the deadline).

Again, thank you so much.

@Rosh_2704, You are welcome. You have to do what is right for you and your mental health. If only there were a local support group for Zambrano carers! It is probably good to talk about your situation with others on the forum and get suggestions and insights. There are many people who are in a similar situation to yours.

If you have not already done so, I would apply for settlement as a Zambrano carer under the EU Settlement Scheme (Appendix EU) now.

The Appendix EU Immigration Rules say that the applicant (who applies as a Zambrano carer) must not have leave under another part of the Immigration Rules. You currently have leave to remain under another part of the Immigration Rules - Appendix FM. Therefore, your application for EUSS would ordinarily be refused.

I suggest you include a request for leave outside the rules in your application for EUSS under Appendix EU. If you have already submitted an application under EUSS, I would send them a request letter.

The request letter could say something like this:

I understand that Appendix EU defines a Zambrano carer as one who does not have leave to remain under another part of the Immigration Rules. My current leave to remain, granted under Appendix FM of the Immigration Rules, expires on 10 June 2021, several weeks before the deadline for applying for settlement under Appendix EU. I would succeed in my Appendix EU application for leave to remain if I had not made an application for limited leave under Appendix FM.

I write to respectfully request I be granted leave to remain outside the Immigration Rules ('ILOTR'). Discretion is discussed by Lord Dyson in R(Munir) v Secretary of State for the Home Department, [2012] UK SC 32:

[44] "In my view, it is the [Immigration Act 1971] itself which is the source of the Secretary of State’s power to grant leave to enter or remain outside the immigration rules. The Secretary of State is given a wide discretion under sections 3, 3A, 3B and 3C to control the grant and refusal of leave to enter or to remain: see paras 4 to 6 above. The language of these provisions, especially section 3(1)(b) and (c), could not be wider. They provide clearly and without qualification that, where a person is not a British citizen, he may be given leave to enter or limited or indefinite leave to remain in the United Kingdom. They authorise the Secretary of State to grant leave to enter or remain even where leave would not be given under the immigration rules."

The SSHD has a discretion, derived from the Immigration Act 1971, to act outside the terms of the Immigration Rules. That discretion is subject to the standard restrictions on the exercise of any discretion vested in the executive or any public administrative body. Where such discretion exists, if a person who might benefit from the discretion requests that it should be exercised, proper consideration must be given to that request. In British Spam Company Ltd v Minister of Technology [1971] AC610, at 625C Lord Reid held, "The general rule is that anyone who has to exercise a statutory discretion must not 'shut his ears to an application'...I do not think there is any great difference between a policy and a rule. There may be cases where an officer or authority out to listen to a substantial argument reasonably presented urging a change of policy. What the authority must not do is to refuse to listen at all".

In all the circumstances, consideration ought to be given to granting ILOTR. The failure to do so would be a material error of law. For these reasons, I respectfully request consideration be given to being granted ILOTR.

[Rosh_2704]

Thank you for your kind words and encouragement. I sent an EU settlement application together with the drf and submitted my biometrics last Friday. I presume they would be deciding that soon too. I did not request decision outside the rules though. I will send them a request today. Thank you for this helpful advice again x

[lolwe]

Thank you for your kind words and encouragement. I sent an EU settlement application together with the drf and submitted my biometrics last Friday. I presume they would be deciding that soon too. I did not request decision outside the rules though. I will send them a request today. Thank you for this helpful advice again x

There are multiple ways to submit your LOTR or ILOTR letter.

POINT OF CLARIFICATION

• Ask for 'ILOTR' = Indefinite leave outside the rules => If you have been in the UK for over five years

• Ask for 'LOTR' = Leave outside the rule => If you have been in the UK for less than five years

CONTACT INFO FOR THE EUSS (Updated 8 October 2020)

• Email: eusettlementscheme@homeoffice.gov.uk

• Online: https://eu-settled-status-enquiries.ser ... v.uk/start

• Online: https://www.gov.uk/contact-ukvi-inside- ... led-status

You can also Phone: 0300 123 7379 Monday to Friday (excluding bank holidays), 8am to 8pm and Saturday and Sunday, 9:30am to 4:30pm (call charges may apply) and ask for an address to send your letter. Make sure you post the letter via recorded delivery.

Make sure you keep your details up to date - https://www.gov.uk/update-uk-visas-immi ... nt-details.

I suspect it may take a few months for them to decide your EUSS application.

[Rosh_2704]

I have been in the country since 2011 and may have enough documentation to prove my stay but part of it had been as an overstayer ( 2011-2018). I was granted 2.5 years LTR via appendix FM and it’s due for renewal in May ( expires on 10th of June)

Do you think I should apply for ILOTR or LOTR in this case?

[Rosh_2704]

Just read your previous posts. I understand that it would have to be LOTR since part of my stay had been illegal right?

[lolwe]

I have been in the country since 2011 and may have enough documentation to prove my stay but part of it had been as an overstayer ( 2011-2018). I was granted 2.5 years LTR via appendix FM and it’s due for renewal in May ( expires on 10th of June)

Do you think I should apply for ILOTR or LOTR in this case?

When was your British citizen child born?

[Rosh_2704]

My daughter was born in 2009 but she only acquired British citizenship through registration this year in July after her 10th birthday

[lolwe]

Did your daughter have citizenship from another EU country before acquiring British citizenship? What was your daughter's status before she acquired British citizenship?

[Rosh_2704]

No. She had my nationality at birth ( Mauritian) . The

[Rosh_2704]

I didn’t apply for her leave to remain at the time of her birth, so she had no status until she was granted British Citizenship

[lolwe]

Is your daughter's father British or European?