An Appellant's Skeleton Argument
Note: I quickly put the below together today over a couple of hours. I thought it would be helpful to update the previous sample skeleton arguments. There are tons of more points that can be made. Have fun with it. Just review the previous pages for ideas.
Before the Court of ....
EA/5555/2022
JANE UZOH V SSHD
APPELLANT'S SKELETON ARGUMENT
A. Case Summary
Ms Uzoh is a citizen of XX born DD/MM/YYYY. She is of African heritage. She entered the UK in 2011. She has had a derivative residence card as the sole carer of her son (born in 2013) since 2014. She was granted leave to remain under Appendix FM on the 10 year route in June 2020. She applied for leave to remain under Appendix EU in June 2021 and was refused in May 2022.
B. Refusal Reasons
SSHD contends Ms Uzoh ceased to be recognised as a Zambrano carer when she obtained leave to remain under Appendix FM in 2020. The respondent does not believe Ms Uzoh falls within the scope of the Withdrawal Agreement. SSHD also argues that Ms Uzoh does not qualify for settlement under Appendix EU because the rules bar individuals who held leave to remain under Appendix FM on 31 December 2020. Based on Celik, Ms Uzoh is not eligible to have her Article 8 human rights considered. The SSHD has declined a request to allow the Court to consider Ms Uzoh's human rights.
C. Questions to be considered
- Do Zambrano carers who later acquire leave to remain under Appendix FM retain their status as Zambrano carers?
- Do Zambrano carers fall within the scope of the Withdrawal Agreement?
- Are the Immigration Rules discriminatory and therefore unlawful?
- Should the Court conduct a human rights balancing exercise despite Celik?
D. Legal Framework
- copy and paste what the EEA Regulations say about Zambrano carers
- copy and paste what the Protocol says about the UK and the ECHR
- copy and paste what the Withdrawal Agreement says about the Court taking into account CJEU (ECJ) case law before and after Brexit, the provisions on discrimination, residence rights, etc
- copy and paste what the Human Rights Act says about the Court's responsibility to consider ECtHR jurisprudence or case law
- copy and paste what the ECHR says about the requirement of the Court to consider ECtHR case law and the Home Office to grant residence
- copy and paste what the United Nations declaration, protocol, convention, etc says about the requirement of the UK to treat migrants fairly
E. Grounds for appeal
1. The appellant remains a Zambrano carer under Union law on the transition date despite her additional status under Appendix FM.
a.) In
Giraldo, the SSHD argued "Zambrano leave was a last resort and was not appropriate here. The claimant had previously had Article 8 ECHR leave to remain and there was a realistic prospect that she would be granted further such leave." At the date of application, she was on the path to settlement under Appendix FM (private and family life) with leave granted on 12 March 2015 and extended to 29 May 2020. Deputy Upper Tribunal Judge Chana ruled against the SSHD, citing the following at paragraph ??, "Mr Walker accepted at the hearing that, applying Akinsanya, the First-tier Tribunal Judge did not err in allowing the appeal, as at the date of decision, the claimant did not have indefinite leave to remain and was a Zambrano carer. If the claimant were removed, her daughter would be unable to remain in the UK without her."
b.) In
Akinsaya, Upper Tribunal Judge Mostyn J ruled unequivocally that a Zambrano carer retains her status even after she acquires leave to remain under another part of the Immigration rules. In the Court of Appeal, Mr Cox argued once a Zambrano right is established, it cannot be extinguished by the addition of another form of leave to remain.
c.) Lord Justice Underhill argued that the Zambrano right arises only when the parent's right to remain is under threat. He said he preferred the SSHD's arguments in relation to ground one. On the second ground, LJ Underhill agreed with the Upper Tribunal that the way the rules are written means Zambrano carers can have leave to remain under Appendix FM and still be Zambrano carers. It remains unclear what precisely LJ Underhill was trying to achieve on ground one.
d.) In
Noel, UT Judge Allen and Deputy UT Judge Chapman explain at paragraph 12, "However, in a judgment dated 25 January 2022, whilst Underhill LJ preferred the submissions on behalf of the SSHD with regard to ground 1, the effect of the Zambrano jurisprudence, he upheld the judgment of Mostyn J as to the SSHD’s erroneous approach to regulation 16 of the EEA Regulations,
holding that persons with limited leave to remain are entitled to a derivative right to remain, alongside their limited leave, if they otherwise satisfy certain specified criteria.".
e.) One can draw only one logical conclusion from the Giraldo, Noel and Akinsaya appeals. The appellant's Zambrano right remained effective under Union law on the transition date despite the fact that she held leave to remain under Appendix FM. Her case is strengthened by the fact that her Zambrano right arose prior to her right to remain under Appendix FM.
2. The appellant falls within the scope of the Withdrawal Agreement.
a.) Three factors, when combined, justify her inclusion in the scope: she relied on Union law for five years as a Zambrano carer before the transition date; the case of E.K. before the CJEU establishes her right to permanent residence; and the provisions Withdrawal Agreement.
b.) The Withdrawal Agreement obliges the UK to take case law passed after Brexit into account; stipulates any person who acquires permanent residence prior to Brexit maintains that right; and, calls for proportionality.
c.)The only reason the appellant did not have documentation to prove her residence, is because the EEA Regulations unlawfully barred her from obtaining her residence. Had the EEA Regulations been lawful, the appellant would have acquired permanent residence in 2019.
3. Appendix EU of the Immigration Rules discriminate against some Zambrano carers and are therefore unlawful. It is arguably irrational, discriminatory, r-acist and sexist.
a.) The SSHD have not explained the reasons why their definition of Zambrano carer deviates from the long-established definition, why they have create a subcategory of Zambrano carers who did have leave to remain under Appendix FM on 31 December 2020 versus Zambrano carers who did not have leave to remain under Appendix FM on 31 December 2020; Derivative rights holders who applied to EUSS; EU applicants to the EUSS; Appendix FM and asylum seekers or refugee, or what purpose it serves to exclude them from obtaining settlement under the EU Settlement Scheme.
b.) Zambrano carers are up to 23 times more likely to be refused than any other group who applied to the EU Settlement Scheme. As of 31 December 2022, the SSHD had received 14,790 applications from Zambrano carers. 10,300 Zambrano applications were refused - out of 12,870 decided applications. The total number of refusals for derivative rights applications 10,790. Zambrano applicants accounted for 95% of the total refusals. Only some 2570 Zambrano applicants were successful as of 31 December 2022. For non-EEA nationals, the top 5 nationalities in concluded applications were: Indian (86,990), Pakistani (74,230), Brazilian (54,920), Nigerian (34,820) and Albanian (34,250).
c.) The Preamble of the Withdrawal Agreement requires parties to ensure that rights under the Agreement are enforceable and based on the principle of non-discrimination. Article 12 Non-discrimination says, "Within the scope of this Part, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality within the meaning of the first subparagraph of Article 18 TFEU shall be prohibited in the host State and the State of work in respect of the persons referred to in Article 10 of this Agreement."
d.) In the case of
Rottman, the CJEU ruled that "even in the absence of a cross-border element, Article 20 TFEU opposes a national measure which does not formally deprive an individual of the rights attaching to his or her status as an EU citizen but, in practical terms, produces the same effect."
e.) The case of
Dereci is about deprivation that arises due to some official action taken by a country that affects many. Appendix EU is a national measure that deprives rights to a subset of people who are mainly women of black, Asian and Eastern European heritage their right to obtain settlement under EUSS. Appendix EU discounts their acquired the right to reside before 31 December 2020.
f.) In
Juszczyszyn v. Poland at para 311, the Court writes, "The real focus of the Court’s scrutiny has been more on the ensuing and closely connected issue: whether the restriction is necessary or justified, that is to say, based on relevant and sufficient reasons and proportionate to the pursuit of the aims or grounds for which it is authorised.Those aims and grounds are the benchmarks against which necessity or justification is measured (see Merabishvili, cited above, § 302)." The purpose of limiting the changes is to discriminate against migrants and facilitate a hostile environment.
g.) UN experts say discrimination against people of African descent is structural, institutional and systemic. The United Kingdom has ratified and is bound by the following instruments: International Convention on the Elimination of All Forms of facial Discrimination, International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights, Convention on the Elimination of All Forms of Discrimination against Women, Convention on the Rights of the Child Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, International Convention for the Protection of all Persons from Enforced Disappearance and the Convention on the Rights of Persons with Disabilities. As UN Secretary-General António Guterres’ said in remarks to the Human Rights Council, in Geneva on 27 February 2023, "Refugee and migrant rights are human rights. They must be respected without discrimination."
h.) The applicants submitted that they have been treated differently in respect of their enjoyment of their rights under Article 8 of the Convention from other persons who were granted settlement under Appendix EU of the Immigration Rules in the United Kingdom. In particular, they rely on the example of other Zambrano carers, 2500 of whom had been granted settlement under Appendix EU in the United Kingdom. The applicants also submit that Zambrano carers who had leave to remain under Appendix FM had been in an analogous position to Zambrano carers who did not have leave to remain under Appendix FM at 31 December 2020. In each case the person had established an entitlement to temporary residence in the United Kingdom. The difference in treatment between Zambrano carers who had leave to remain under Appendix FM, on the one hand, and Zambrano carers who did not have leave to remain on "Brexit Day", on the other, can not be objectively and reasonably justified. They have been treated differently, without objective and reasonable justification, from other applicants to the EU Settlement Scheme. They are over ten times more likely to be refused settlement by the Secretary of State for the Home Department.The applicants rely on the domestic decisions of [Akinsaya?] and [?], in which both the Court of Appeal did not appear to determine a public interest justification for distinguishing between Zambrano carers with leave to remain under another part of the Immigration Rules on 31 December 2020, versus those who did not, especially given both are considered Zambrano carers under the 2016 EEA Regulations.
4. The SSHD's refusal interferes with and/or violates the appellant's Article 8 rights under the European Convention on Human Rights, the Human Rights Act and the UN instruments.
a.) Human rights should always be considered by the UK judges where related case law by the European Court of Human Rights exists. Judges have a responsibility to conduct an Article 8 human rights balancing exercise. It would depend on whether or not she had a criminal record, what benefit she could bring to UK society, how long and deep her ties to British friends, or partners, etc.
b.) The Upper Tribunal's decision not to apply ECtHR jurisprudence to EUSS appeals, as explained in Celik v SSHD, is currently undergoing a challenge before the Court of Appeal. The Court has accepted an appeal on all grounds.
c.) The Supreme Court explained when case law from the European Court of Human Rights should be followed: ‘where there is a clear and consistent line of decisions whose effect is not inconsistent with some fundamental substance or procedural aspect of our law, and whose reasoning does not appear to overlook or misunderstand some argument or point of principle, we consider that it would be wrong for this court not to follow that line’ at [48]. ECtHR decisions which concern migrants and their right of permanent residence are clear and consistent.
d.) Per the ECHR guidance at para. 172, "An effective right: the parties to the proceedings have the right to present the observations which they regard as relevant to their case. This right can only be seen to be effective if the observations are actually “heard”, that is to say duly considered by the trial court. In other words, the “tribunal” has a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties (Kraska v. Switzerland, § 30; Van de Hurk v. the Netherlands, § 59; Perez v. France [GC], § 80).
e.) In the 2018 ECtHR case of
Hot v Croatia, the Court dismissed the Government’s request and held Croatia accountable for violating the Applicant’s right to private life by not providing effective and accessible procedures for the individual to determine his stay and status in the country and by not assessing the Applicant’s personal circumstances under Article 8 ECHR.
f.) In the 2020 ECtHR case of
Sudita Keita v Hungary, "The Court was not satisfied that the State had complied with its positive obligation to provide an effective and accessible procedure, or combination of procedures, enabling the applicant to determine his status with due regard to his private-life interests, contrary to Article 8 ECHR."
g.) In the 2021 ECtHR case of
M.A. v. Denmark, the Court agreed at paragraph 194 that, "Having regard to all the above considerations, the Court is not satisfied, notwithstanding their margin of appreciation, that the authorities of the respondent State, when subjecting the applicant to a three-year waiting period before he could apply for family reunification with his wife, struck a fair balance between, on the one hand, the applicant’s interest in being reunited with his wife in Denmark and, on the other, the interest of the community as a whole to control immigration with a view to protecting the economic well-being of the country, to ensuring the effective integration of those granted protection and to preserving social cohesion (see paragraph 165 above)."
F. Conclusion
The Court is invited to allow the appeal.