Zambrano Settled Status EU settlement scheme Paper Application Form - NEW

[marcidevpal]

Statutory Ground 1 - The Withdrawal Agreement - Revisited

TLDR;

You may want to argue the following ground -

The Home Office's refusal violates Title 1 General Provisions of the Withdrawal Agreement.

While acknowledging the statutory ground does not explicitly call for Title 1.

======

In an earlier post, we considered possible grounds for your Appendix EU / EUSS appeal.

There is a document the judges will use to determine your appeal. The document is a statutory instrument.

A statutory instrument s a form of secondary legislation.

An Act is a form of primary legislation. An example of an Act is the Human Rights Act of 1998.

Primary legislation is voted on by all Members of Parliament. It is powerful. It strongly binds the Courts.

Secondary legislation comes from the Government (a much smaller number of MPs.) It weakly binds the Courts.

The name of the statutory instrument the Judges will use to decide your appeal is called the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020.

The Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 has two grounds Zambrano carers can rely upon when drafting their EUSS Appeals. This post is about Ground 1 - the Withdrawal Agreement.

Earlier, I said that Zambrano carers will fail on Ground 1.

Ground 1 says the only parts of the Withdrawal Agreement the Judges can take into account.

The parts of the Withdrawal Agreement listed in Ground 1 have nothing to do with Zambrano carers.

• They are not in the UK because they are workers.

• They are not in the UK because they are self-employed.

• They are not covered by Chapter 1 of the Withdrawal Agreement. Chapter 1 is for people covered by the 2004 Directive. Zambrano carers are excluded from the 2004 Directive.

You might be tempted to NOT mention ground 1 in your EUSS appeals for the above reasons. I disagree. Here's why -

Chapter 1 of the Withdrawal Agreement falls withing Title 2 of the WA.

There is also a Title 1. Title 1 applies to Zambrano carers. Title 1 is a general provision of the contract. At the end of the day, the Withdrawal Agreement is simply a contract.

Title 1 is overarching. You can't consider Title 2 without putting it in context of Title 1. So, eventhough Title 1 is not explicitly mentioned in the statutory instrument, it is there in spirit. And, Zambrano carers can and should make arguments based on Title 1.

I would be beyond surprised if a Judge said he could not consider Title 1 because the statutory instrument does not mention Title 1 in the grounds.

It is a basic tenet of contract law.

So, you may want to argue the following ground:

The Home Office's refusal violates Title 1 General Provisions of the Withdrawal Agreement.

Let the judge know that you know Title 1 is not explicitly listed in the statutory grounds.

Just as the judge is entitled and authorised to consider your human rights due to the HRA, so too is the judge entitle to consider whether or not the refusal violates Title 1 of the Withdrawal Agreement.

Remember, the UK signed the ENTIRE agreement. Not just Chapters 1 and 2.

References:

https://www.legislation.gov.uk/uksi/202 ... ion/8/made
https://www.gov.uk/guidance/immigration ... ppendix-eu

[marcidevpal]

CORRECTION!!! - I meant to say PART ONE, Common Provisions instead of TITLE 1, General Provisions

Earlier I said you should mention Title 1 General Provisions. Title 1, General Provisions is still useful. HOWEVER,

Part 1 - Common Provisions is the section I really meant to emphasise.

I confused Title 1, General Provisions with Part 1, Common Provisions. It is an easy mistake to make. Make sure you don't make the same mistake in your appeals.

The Articles in Bold are the sections you may want to emphasise in your appeal.

WITHDRAWAL AGREEMENT - PART ONE - COMMON PROVISIONS

• ARTICLE 1, Objective

• ARTICLE 2, Definitions

• ARTICLE 3, Territorial scope

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

• ARTICLE 5, Good faith

• ARTICLE 6, References to Union law

• ARTICLE 7, References to the Union and to Member States

• ARTICLE 8, Access to networks, information systems and databases

To sum,

Focus on Part One of the Withdrawal Agremeent. It is called, "Common Provisions". This section is the foundational part of the Withdrawal Agreement.

Eventhough the Government did not list Part One in the statutory instrument for the EUSS appeals, this section is still valid to raise as a ground.

I base my opinion on the basic principles of contract law.

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

[marcidevpal]

Statutory Ground 1 - A simple example

Let's say you are a Zambrano carer who, like Akinsaya, achieved five years of continuous residence in the UK before 31 December 2020.

The case of Ms E.K. established that under Article 20 TFEU, Zambrano carers are eligible for permanent residence after 5 years. The judgement was handed down by the European Court of Justice.

Part One, Article 4 of the Withdrawal Agreement says,

5. In the interpretation and application of this Agreement, the United Kingdom's judicial and administrative authorities shall have due regard to relevant case law of the Court of Justice of the European Union handed down after the end of the transition period.

Therefore, your judge should address the case law of Ms E.K. that was handed down by the European Court of Justice.

If the judge fails to address the issue, you could argue they have made an error of law.

Your judge or the Home Office may argue you the Judge is not allowed to consider the case of E.K.

Why? Because the statutory instrument for EUSS appeals says Judges can only consider Part Two, Title 2 of the Withdrawal Agreement - not Part One of the WA.

You would then say two things to the Judge:

1.) Part One, Article 4 says the following

1. The provisions of this Agreement and the provisions of Union law made applicable by this
Agreement shall produce in respect of and in the United Kingdom the same legal effects as those
which they produce within the Union and its Member States.
Accordingly, legal or natural persons shall in particular be able to rely directly on the provisions
contained or referred to in this Agreement which meet the conditions for direct effect under Union
law.

2. The United Kingdom shall ensure compliance with paragraph 1, including as regards the
required powers of its judicial and administrative authorities to disapply inconsistent or
incompatible domestic provisions, through domestic primary legislation

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.

AND,

2.) Title 2, Chapter 1, Article 13 says

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.

You could say these things in person, or you could address the point in your skeleton argument.

DISCUSSION

Many people say Zambrano carers are not covered by Title 2.

Title 2 says the UK's power over granting or refusing residence only applies to people covered by Title 2.

Therefore, the UK has no authority to take away rights that Zambrano carers acquired under Article 20 TFEU.

People like Akinsaya acquired the right to reside before 31 December 2020.

The UK has no authority to ignore or invalidate that right.

The Withdrawal Agreement does not give the UK the right to ignore or disapply those acquired rights.

FYI

• Part one is called Common Provisions.

• Article 4 is called Methods and principles relating to the effect, the implementation and the application of this Agreement

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

[marcidevpal]

Another Option - Statutory Ground 1

The statutory instrument for EUSS appeals have two grounds for Zambrano carers.

Ground 1 must show the refusal violates Chapter 1 or 2 of the Withdrawal Agreement. These chapters are in Part 2, Title 2.

Option 1: You could argue the statutory instrument is unlawful and should include

• all of Part One and

• Part 2, Title 1.

Option 2: You could just focus your first ground on Part Two, Title 2, Chapter 1. The statutory instrument already allows Part 2, Title 2, Chapter 1. Paragraph 4 says,

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.

You could say

• Zambrano carers are not part of Title 2,

• Paragraph 4 prevents the UK from imposing limitations or conditions on Zambrano carers,

• Appendix EU DOES impose limitations on residence rights for Zambrano carers.

Limitations placed on Zambrano carers by the UK include (but are not limited to) the following:

• Current Zambrano carers with leave to remain under Appendix FM are not recognised as Zambrano carers, depite the Court of Appeal ruling in Akinsaya

• Past Zambrano carers who had resided in the UK for five years prior to the 'transition date' are not recognised as Zambrano carers unless they moved into a category covered by the 2004 Directive

Therefore,

• Appendix EU is unlawful, and

• Appendix EU breaches the UK's commitments to the Withdrawal Agreement, and

• Zambrano carers who acquired residence rights under Article 20 TFEU should retain their rights

[marcidevpal]

Grounds - Permanent Residence

MY FIRST POINT

a.) The case of E.K. by the European Court of Justice says Zambrano carers acquire the right of permanent residence after five years under Article 20 TFEU.

b.) Therefore, if you lived in the UK for five years before 31 December 2020, you acquired the right of permanent residence based on the E.K. ruling.

c.) The question is, does the Withdrawal Agreement protect your acquired right to permanent residence?

PART ONE Common Provisions
ARTICLE 4 Methods and principles relating to the effect, the implementation and the application of this Agreement

5. In the interpretation and application of this Agreement, the United Kingdom's judicial and administrative authorities shall have due regard to relevant case law of the Court of Justice of the European Union handed down after the end of the transition period.

(The case was published around September 2022. The transition period ended on 31 December 2020.)

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

MY SECOND POINT

a.) The Home Office may argue you can't rely on the Withdrawal Agreement to explicitly protect your acquired right to permanent residence.

b.) Part Two of the Withdrawal Agreement explicitly protects rights of people who fall under the 2004 Directive. It directly protects:

• their right of permanent residence

• their right to non-discrimination

c.) The Protocol section of the Withdrawal Agreement explicitly protects the people of Northern Ireland from discrimination.

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

Citizens' Rights & Residence

PART TWO Citizens' Rights
TITLE II Rights and Obligations
CHAPTER 1 Rights Related to Residence, Residence Documents
ARTICLE 15 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.

Citizens' Rights & Non- Discrimination

PART TWO Citizens' Rights
TITLE I General Provisions
ARTICLE 12 Non-discrimination

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.

Belfast-Good Friday Agreement & Non-Discrimination

The Protocols section of the Withdrawal Agreement explicitly protects rights of people who fall under the Belfast-Good Friday Agreement.

PROTOCOL ON IRELAND/NORTHERN IRELAND

The Union and the United Kingdom HAVE AGREED UPON the following provisions, which shall be annexed to the Withdrawal Agreement:

ARTICLE 2 Rights of individuals

1. The United Kingdom shall ensure that no diminution of rights, safeguards or equality of opportunity, as set out in that part of the 1998 Agreement entitled Rights, Safeguards and Equality of Opportunity results from its withdrawal from the Union, including in the area of protection against discrimination, as enshrined in the provisions of Union law listed in Annex 1 to this Protocol, and shall implement this paragraph through dedicated mechanisms.

[marcidevpal]

What the UK Judges must decide

The "spirit" of the Withdrawal Agreement is simple.

Anyone who acquires rights under Union law, retains those rights.

The only exception is if they leave the host country for over five years or are found guilty of something.

The "letter" of the Withdrawal Agreement is less clear.

The confusion is made worse by the statutory instrument and the Celik case.

Questions for the Judge regarding all Zambrano carers

• Did the Withdrawal Agreement take away or invalidate their acquired rights under Union law?

• Or, alternatively, does the Withdrawal Agreement protect the residence rights of everyone who relied on Union law?

• Does the Withdrawal Agreement only protect the residence rights of people covered under the 2004 Directive?

For Zambrano carers who completed five years prior to 31 December 2020:

• Are they entitled to settlement under EUSS based on the case of E.K.?

For Zambrano carers who completed less than five years prior to 31 December 2020:

• Are they entitled to pre-settled status based on the case of E.K.?

[marcidevpal]

Corrected version

Statutory Ground 1 - The Withdrawal Agreement - Revisited

TLDR;

You may want to argue the following ground -

The Home Office's refusal violates PART ONE, COMMON PROVISIONS of the Withdrawal Agreement.

While acknowledging the statutory ground does not explicitly call for PART ONE, COMMON PROVISIONS.

======

In an earlier post, we considered possible grounds for your Appendix EU / EUSS appeal.

There is a document the judges will use to determine your appeal. The document is a statutory instrument.

A statutory instrument s a form of secondary legislation.

An Act is a form of primary legislation. An example of an Act is the Human Rights Act of 1998.

Primary legislation is voted on by all Members of Parliament. It is powerful. It strongly binds the Courts.

Secondary legislation comes from the Government (a much smaller number of MPs.) It weakly binds the Courts.

The name of the statutory instrument the Judges will use to decide your appeal is called the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020.

The Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 has two grounds Zambrano carers can rely upon when drafting their EUSS Appeals. This post is about Ground 1 - the Withdrawal Agreement.

Earlier, I said that Zambrano carers will fail on Ground 1.

Ground 1 says the only parts of the Withdrawal Agreement the Judges can take into account.

The parts of the Withdrawal Agreement listed in Ground 1 have nothing to do with Zambrano carers.

• They are not in the UK because they are workers.

• They are not in the UK because they are self-employed.

• They are not covered by Chapter 1 of the Withdrawal Agreement. Chapter 1 is for people covered by the 2004 Directive. Zambrano carers are excluded from the 2004 Directive.

You might be tempted to NOT mention ground 1 in your EUSS appeals for the above reasons. I disagree. Here's why -

Chapter 1 of the Withdrawal Agreement falls withing Title 2 of the WA.

There is also a PART ONE, COMMON PROVISIONS. PART ONE, COMMON PROVISIONS applies to Zambrano carers. PART ONE, COMMON PROVISIONS is a general provision of the contract. At the end of the day, the Withdrawal Agreement is simply a contract.

PART ONE, COMMON PROVISIONS is overarching. You can't consider Title 2 without putting it in context of PART ONE, COMMON PROVISIONS. So, eventhough PART ONE, COMMON PROVISIONS is not explicitly mentioned in the statutory instrument, it is there in spirit. And, Zambrano carers can and should make arguments based on PART ONE, COMMON PROVISIONS.

I would be beyond surprised if a Judge said he could not consider PART ONE, COMMON PROVISIONS because the statutory instrument does not mention PART ONE, COMMON PROVISIONS in the grounds.

It is a basic tenet of contract law.

So, you may want to argue the following ground:

The Home Office's refusal violates PART ONE, COMMON PROVISIONS General Provisions of the Withdrawal Agreement.

Let the judge know that you know PART ONE, COMMON PROVISIONS is not explicitly listed in the statutory grounds.

Just as the judge is entitled and authorised to consider your human rights due to the HRA, so too is the judge entitle to consider whether or not the refusal violates PART ONE, COMMON PROVISIONS of the Withdrawal Agreement.

Remember, the UK signed the ENTIRE agreement. Not just Chapters 1 and 2.

References:

https://www.legislation.gov.uk/uksi/202 ... ion/8/made
https://www.gov.uk/guidance/immigration ... ppendix-eu

[marcidevpal]

Scenarios - Ground 1 SI only

Here is a reminder of what ground 1 of the statutory instrument (SI) - The Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020

Grounds of appeal

8.—(1) An appeal under these Regulations must be brought on one or both of the following two grounds.

(2) The first ground of appeal is that the decision breaches any right which the appellant has by virtue of—

(a)Chapter 1, or Article 24(2) or 25(2) of Chapter 2, of Title II of Part 2 of the withdrawal agreement,

(b)Chapter 1, or Article 23(2) or 24(2) of Chapter 2, of Title II of Part 2 of the EEA EFTA separation agreement, or

(c)Part 2 of the Swiss citizens’ rights agreement(1).

As you can see, (b) and (c) are not relevant for Zambrano carers.

Only (a) is relevant. (a) only mentions Part 2 of the withdrawal agreement, not Part 1.

Let's say you appeal on Ground 1 of the SI. Here are some options

Scenario 1
You raise ground 1 and talk about Part 1, Articles 1, 2, 4,5 and 6 of the Withdrawal Agreement.
Specifically, you could talk about the Judge's responsibilities to consider case law.

Scenario 2
You raise ground 1 and talk about Part 2, Title 2, Chapter 1, Article 13 of the Withdrawal Agreement.
Specifically, you could talk about the Home Office's lack of authority to limit the residence rights of Zambrano carers.

Scenario 3
You raise ground 1 and talk about Parts 1 and 2 of the Withdrawal Agreement.

Note: This post doesn't discuss ground 2 of the Withdrawal Agreement, or human rights grounds, or all other types of grounds.

[marcidevpal]

EEA Regulations 2016 versus Citizen's Rights Appeals- Grounds v Rights?

Let's compare the two main statutory instruments:

• The Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020

• The Immigration (European Economic Area) Regulations 2016

• The Citizens' Rights Appeals Regulations document lists "grounds" under which you can appeal.

• The EEA Regulations document talks about who has the "right" to appeal.

• The Citizens' Rights Appeals Regulations document has section 8 Grounds of Appeal

• The EEA Regulations has Part 6 Appeals under These Regulations

• The Citizens' Rights Appeals document tries to limit the grounds upon which you can appeal.

• The EEA Regulations allowed you to appeal on any relevant ground.

CONCLUSION

The Citizens' Rights Appeals document is

• irrational because it is limiting for no good reason

• discriminatory because it limits the rights of Zambrano carers

• breaches the Withdrawal Agreement in which the spirit and effect of Union law is to be respected

and is therefore unlawful.

References
https://www.legislation.gov.uk/uksi/202 ... ion/8/made
https://www.legislation.gov.uk/uksi/201 ... 1/data.pdf
https://www.legislation.gov.uk/uksi/2016/1052/made

[marcidevpal]

The Deadline @ 1100 hours on 31st December 2020

Let's imagine you allow your leave to remain under Appendix FM to expire. You don't renew it. You then make a fresh (but late) application under Appendix EU.

The Home Office may argue they have the right to refuse your application because you had leave to remain under Appendix FM at 1100 hours on 31st December 2020.

You can respond with the following points:

• The SSHD had a responsibility to make her intentions known publicly and in sufficient time to allow Zambrano carers to avoid applying under Appendix FM.

• At the time the appellant made his application for LTF under Appendix FM in August 2018, he had no guidance from the Home Office.

• insert argument about 'legitimate expectation'

• insert argument about the Vienna Convention

[Onomskky]

I just want to say thank you to everyone for their contributions on here and do keep the fire burning. I received the wonderful news that my appeal was successful at First Tier Tribunal. I’m just waiting on the home office to either grant me my stay as a Zambrano Carer/appeal to the Upper Tribunal within 14 days.

[marcidevpal]

Onomskky Wins Against Home Office

Onomskky's Background (pls correct if wrong)

• Zambrano carer with leave to remain under Appendix FM since (at least) 2015.

• Appendix FM expired in April 2020.

• No renewal application filed under Appendix FM

Grounds argued

• Ground 2: The refusal violated the immigration rules.

Timeline
Applied as a parent of a British child under the 10 yr route in Feb 2015. Application was successful and BRP received in April. I have renewed twice and qualify under the 5 yrs continuous stay. In August 2019, I applied as a Zambrano carer under the EUSS based on the advise of HO when I called to see if I qualify. Biometrics was done and COA received in September 2019. I’m in a bit of a limbo as current leave expired 11 April 2020 whilst application is with HO and I’m yet to get a decision.
My worry is what happens if my application gets denied as my current leave expired almost 3 weeks ago ?

Hello Onomskky, thinking of you and wondering how you have been. How are things with you?.

Hello Lulu, apologies, I have been very busy and not on here for a long time. My JR was refused in August, and I applied under family life as a parent, which was granted last week and I'm awaiting my BRP. Can you please explain what the steps are to join the group litigation against the HO?

@ omoskky, was extension issued as a continuation of your 10years or you had to start afresh, considering your leave expired before applying for an extension. Quite curious to know

It’s a continuation of my current stay. I used paragraph 39E of the Immigration Rules, which covers applications from overstayers that are made within 14 days of the Home Office refusing status. You can see the rules set out using the following link, if you scroll down to the bottom where it says exception for overstayers and click on that this will show you the relevant paragraph:

https://www.gov.uk/guidance/immigration ... -in-the-uk

[marcidevpal]

If Your Grounds include Discrimination

Discrimination is a difficult ground to argue. The Secretary of State has made it easier to argue discrimination as a ground.

Nine lawyers and faith organisations including the Society of Asian Lawyers, the Association of Muslim Lawyers and the Joint Council for the Welfare of Immigrants have lodged a complaint with the Bar Standards Board claiming the home secretary, Suella Braverman, a qualified barrister, has breached the body’s code of conduct with “dearly beloved sentiments and discriminatory narratives”.

The letter says: “It is our view that Ms Braverman’s comments incite violence against the British Pakistani and Muslim community as well as refugee communities, fuelling dearly beloved sentiments and discriminatory narratives.”

The letter concludes: “It is crucial that members of the legal profession uphold the highest standards of integrity, impartiality, and professionalism. Ms Braverman’s comments are a clear violation of these standards and should not go unchallenged.”

[marcidevpal]

Perverse Decisions by the FtT

If you lose at the First-tier Tribunal and you are able to appeal to the Upper Tribunal, the UT judge may declare the First-tier Tribunal's decision to be "perverse."

https://tribunalsdecisions.service.gov. ... 15143-2021

For example, in the above case, a young woman who was abandoned by her mother in Ghana sought entry clearance into the UK to stay with her father. Her father had visited her over the years and they had a relationship. The First-tier Tribunal Judge Andrew thought the father had abandoned his daughter. UT Judge Gleeson disagreed -

14. The decision of the First-tier Judge is perverse, on the evidence before her, and cannot stand. The evidence meets the TD test for sole responsibility.

[marcidevpal]

"Dearly Beloved Sentiments"

In earlier posts about discrimination, I copied and pasted sentences from the letter written to the Bar Standards Council about Suella Braverman's remarks.

Those sentences DID NOT say "dearly beloved".

The faith organisations and lawyers talked about RACE, ETHNICITY and DISCRIMINATION.

The immigrationboards system automatically changes the words.

If you are interested in what the letter actually says, feel free to Google it.

[marcidevpal]

Grounds & the "Perverse" Argument

Is it perverse to ask Zambrano carers to apply under Appendix FM?

Appendix FM can cost thousands of pounds. It takes up to 10 years.

Many Zambrano carers already spent 5, 10 years in the country - even before Brexit.

Some may argue that the Home Office "solution" for Zambrano carers to move to Appendix FM is perverse, particularly in light of the lack of benefits to society.

Switching to Appendix FM does not benefit UK citizens - apart from the extra fees Zambrano carers must pay.

There is no good reason or rational for refusing Zambrano carers on this basis.

The real reasons may be to stigmatise Zambrano carers by separating them from EU migrants by putting them into Appendix FM. Another reason could be to take away or limit their rights if the UK leaves the Council of Europe and the ECHR. Just a thought.

[marcidevpal]

Starting Over

Let's say you are approaching the end of your most recent Appendix FM leave. The day after the Appendix FM leave expires, you could make a fresh application under Appendix EU / EUSS.

The Home Office will probably refuse the application. You will need to appeal to the First-tier Tribunal.

You must convince the judge of at least 3 things:

• You have a valid reason for making a late application

• You should not be refused eventhough you had leave to remain under Appendix FM at 1100 hours on 31 December 2020

• You should not be refused because you did not make a renewal application under Appendix FM

[marcidevpal]

Rule 24 Response to Notice of Appeal

Let's say you do the following

1.) You appeal to the First-tier Tribunal. The FtT judge does not agree with you.
2.) You appeal to the First-tier Tribunal for permission to appeal to the Upper Tribunal. The FtT judge says no.
3.) You appeal to the Upper Tribunal for permission to appeal to the Upper Tribunal. The UT judge says yes.

The Home Office can write to the Upper Tribunal at this point. The letter is called a Rule 24 response.

You will want to see a copy of this response. Ask the court for a copy if they don't send it to you.

If you have a solicitor or barrister, make sure you show it to them.

(3) The response must state—

(a) the name and address of the respondent;
(b) the name and address of the representative (if any) of the respondent;
(c) an address where documents for the respondent may be sent or delivered;
(d) whether the respondent opposes the appeal;
(e) the grounds on which the respondent relies, including (in the case of an appeal against the
decision of another tribunal) any grounds—

(i) to uphold the decision for reasons other than those given by the tribunal; or
(ii) on which the respondent was unsuccessful in the proceedings which are the subject of the
appeal;
(ea) the reasons why any permission applied for under paragraph (1C) should be given; and

(f) whether the respondent wants the case to be dealt with at a hearing

(5) When the Upper Tribunal receives the response it must send a copy of the response and any
accompanying documents to the appellant and each other party.

https://assets.publishing.service.gov.u ... 22-nov.pdf

[marcidevpal]

Suggestion: Errors of Law Spreadsheet

If you are appearing in person, you may not want to rely on your memory to remember all of the errors of law.

Instead, create a spreadsheet with a table. The table can have two columns and several rows. Each row can contain an error of law and space below for your notes.

I wouldn't let people (the judge) see the spreadsheet. The person (judge) may feel like you are not listening and just focusing on making notes of their apparent errors.

For example,

Error of law 1	Error of law 2
notes	notes
notes	notes
notes	notes
notes	notes

Error of law 3	Error of law 4
notes	notes
notes	notes
notes	notes
notes	notes

Error of law 5	Error of law 6
notes	notes
notes	notes
notes	notes
notes	notes

Error of law 7	Error of law 8
notes	notes
notes	notes
notes	notes
notes	notes

*I created a list of errors of law on a previous post, on an earlier page.

[marcidevpal]

Errors of law: Quashing Orders (or Not)

QUASHING ORDERS

A public decision-making body has no jurisdiction or power to commit an error of law.

Thus where a body errs in law in reaching a decision or making an order, the court may

• quash that decision or order

• or may exercise its discretion not to quash and tell the First-tier Tribunal to make a new hearing

The best outcome is for the judge to quash the First-tier Tribunal judge's decision - if you lost at the First-tier.

THE RELEVANCE TEST

The error of law must be relevant. That means the error must be

• committed during the hearing or trial, and

• had an affect on the judge's decision.

HOW TO APPEAL

• An application for permission to appeal must clearly list the errors of law committed by the First Tier Tribunal.

• Do not use vague language!!!!

• You must specify the error(s) of law alleged and give brief but detailed explanations.

EXAMPLES

Examples of errors of law that may be committed by a First-tier Tribunal judges include (but are not limited to the following)

• failure to have regards to material evidence,

• taking into account and being influenced by by immaterial evidence,

• inadequate reasons,

• unfair procedure,

• misunderstanding or misconstruction of the law,

• disregarding a relevant statutory provision,

• failing to give effect to a binding decision of a superior court, and

• irrationality.

[marcidevpal]

MUST KNOW!! EEA Regulations Post-Brexit

TLDR;

If you made a valid application under Appendix EU / EUSS before the deadline, you can continue to rely on the rights granted to you under EEA Regulations until your appeal is finished.

Basically, you remain a Zambrano carer - based on the EEA regulations' definition of the term - until your EUSS appeal finishes.

This is important because the Home Office redefined Zambrano carer to mean people who do not have leave to remain under Appendix FM.

You may want to raise this point in your appeal.

If the judge disagrees with the above facts, tell the judge about Silva v SSHD.

References
https://www.legislation.gov.uk/ukdsi/2020/9780348212204

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

On 31 December 2020, the EEA Regulations were withdrawn.

The mechanism by which the EEA Regulations were withdrawn, is via a statutory instrument.

The statutory instrument is called the Citizens' Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020.

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

Part 2 - Deadline for applications, Regulation 2 - Deadline for applications

30 June 2021 is the deadline for submission of an application for residence status

Part 3 - Saving of the EEA Regulations 2016 etc. during the grace period and whilst applications are finally determined, Regulation 4 - Applications which have not been finally determined by the application deadline

4.—(1) This regulation has effect if the EEA Regulations 2016 are revoked on IP completion day (with or without savings).

(2) This regulation applies to a person (“the applicant”) who—

(a)has made an in-time application (see paragraph (6)), and

(b)immediately before IP completion day—
(i)was lawfully resident in the United Kingdom by virtue of the EEA Regulations 2016, or
(ii)had a right of permanent residence in the United Kingdom under those Regulations (see regulation 15).


(6) For the purposes of this regulation—

(a)an in-time application is an application for leave to enter or remain in the United Kingdom by virtue of residence scheme immigration rules which—
(i)is valid under residence scheme immigration rules;
(ii)is made on or before the application deadline, and
(iii)has not been withdrawn;

(b)the relevant period begins immediately after the application deadline and ends—
(i)if the applicant is, by virtue of the in-time application, granted leave to enter or remain in the United Kingdom, on the day on which that leave is granted;
(ii)if a decision is taken not to grant any leave to enter or remain in the United Kingdom in response to the applicant’s application and the applicant does not appeal against that decision, on the first day on which the applicant is no longer entitled to appeal against that decision (ignoring any possibility of an appeal out of time with permission);
(iii)if a decision is taken not to grant any leave to enter or remain in the United Kingdom in response to the applicant’s application and the applicant brings an appeal against that decision, on the day on which that appeal is finally determined, withdrawn or abandoned, or lapses under paragraph 3 of Schedule 1 to the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020(8);

(c)a person is to be treated as residing in the United Kingdom at any time which would be taken into account for the purposes of calculating periods when the person was continuously resident for the purposes of the EEA Regulations 2016 (see regulation 3);

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Errors of law: Findings of fact

An error of law is an error made by a judge that caused the judge to rule against you.

Perhaps the easiest error of law for a litigant in person to detect, is the failure to find a fact.

Not just any fact, however. The fact that the judge fails to recognise must be relevant.

Ask yourself, if any reasonable person knew this fact, would they have decided differently?

• Make a list of all of the facts of your case. As many as possible.

• Rank them in order of importance.

• Add the facts to your skeleton argument and/or witness statement. Make sure the judge can easily see them.

• If you appear in person, repeat the most important facts to the judge.

• If you lose at the hearing, consider if the judge took your list of facts into account.

• If you file a request for permission to appeal to the Upper Tribunal, list all of the key facts the judge ignored.

That is an error of law.

The Upper Tribunal judge may quash the decision of the First-tier Tribunal judge because they ignored your facts. Alternatively, the judge may send the appeal back to the First-tier Tribunal judges to make the decision again. Or, you may lose. Good luck!

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Legitimate expectations

About 90% of Zambrano carers were refused settlement under Appendix EU / EUSS.

The Home Office changed the rules

• to disallow people who also had leave to remain under Appendix FM, or

• to refuse people who hadn't applied for leave to remain under Appendix FM.

Ironically, Zambrano carers who

• applied before 30 June 2021, and

• who are still waiting for a decision or are going through the appeals process with the Courts

can still say they are still Zambrano carers - even if they have leave to remain under Appendix FM.

They can rely on the EEA Regulations that were in force before Brexit.

See the above post on the statutory instrument called the Citizens' Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020 for more information.

You may be surprised to know the Home Office is sued all the time for a breach of legitimate expectation.

I put some key concepts and listed some cases below.

If you have a lawyer, ask your lawyer to make a legitimate expectation argument on your behalf.

THE LEGITIMATE EXPECTATION ARGUMENT

Perhaps the heart of the matter - and your appeal - is the legitimate expectation argument.

Zambrano carers had a legitimate expecation that when the Home Office announced they would include "Zambrano carers" in the EU Settlement Scheme, that, at the very least, the majority would qualify.

The Home Office's refusals go against principals of natural justice.

KEY CONCEPTS

• Substantive Legitimate Expectations

• Procedural Legitimate Expectations

• Overriding Interest

• Principle of Consistency

• Ultra Vires Representations

• Nature of the Representation

• Form of Relief

• Detrimental Reliance

RELEVANT CASE LAW

• Mandalia v Secretary of State for the Home Department [2015] UKSC 59 at [29]-[31]

• Nadarajah v Secretary of State for the Home Department [2005] EWCA Civ 1363

• R v Home Secretary, Ex parte Asif Khan [1984] 1 WLR 1337

• R v Home Secretary, ex p. Hargreaves [1997] 1 All ER 397

• R (Bhatt) v Independent Assessor; R (Niazi) v Secretary of State for the Home Department [2007] EWCA Civ 1495

• R (BAPIO Action Ltd) v Home Secretary [2008] UKHL 27; [2008] 1 AC 1003

• Secretary of State for the Home Department v The Queen (Rashid) [2005] EWCA Civ 744

• Schmidt v Secretary of State for Home Affairs [1969] 2 Ch 149

• Stretch v United Kingdom (2004) 38 EHRR 12 (ECtHR)

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Legitimate expectations continued...

DEFINITION
A statement or promise that is 'clear, unambiguous and devoid of relevant qualification'

For a legitimate expectation to arise,

• the public body's statement must be clear, unambiguous and without qualification.

At its most basic, a legitimate expectation claim is based on the assumption that,

• where a public body states that it will or will not do something,

• a person who has reasonably relied on that statement should be entitled to enforce it;

• if necessary, through the courts.

TYPES OF LEGITIMATE EXPECTATION CASES

• 'almost-contract' cases,

• guidance/instruction cases

• equal treatment cases

POINTS

1. In the years before the start of the ESUSS, the Home Office repeatedly announced they would cover 'Zambrano carers'. The term Zambrano carer is an EU concept. People expected the Home Office to apply the EU's definition of Zambrano carer, not make one up.

2. Zambrano carers expected they would be treated either like EU applicants, or, at the very least, like other derivative card holders. No other group has refusal rates that come close to Zambrano carers.

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Legitimate expectations...What the Government said in 2018

What does the Withdrawal Agreement say about citizens’ rights?

Published Monday, 10 December, 2018

https://commonslibrary.parliament.uk/wh ... ns-rights/

On 7 March 2019 the Government laid a Statement of Changes to the Immigration Rules before Parliament.

It included, inter alia, changes to Appendix EU to the Immigration Rules, which set out the requirements for settled status.

These changes expanded eligibility for settled status to those with derivative residence rights including the Chen, Ibrahim and Teixeira, and Zambrano carer categories.

The accompanying Explanatory Memorandum states:

“The Government has decided that, in light of the particular circumstances of these cases, it is appropriate that their longterm status in the UK should be protected by bringing them within the scope of the EU Settlement Scheme.”

The Government’s previous position was that Zambrano carers are not covered by the WA and that domestic policy proposals relating to Zambrano carers would be set out ‘in due course’.

The Home Office had also stated that ‘current rights do not lead to a right of permanent residence under EU law, but further details will be provided in due course on the new status available to them.’

So-called ‘Surinder Singh’ families are also not covered by the WA, but the Home Office has confirmed that those lawfully living in the UK prior to the end of the implementation period will be able to apply for settled status.

The Surinder Singh route is open to spouses and families of British citizens returning from an EU member state where they have exercised rights under EU free movement law.

DISCUSSION

1.) The Government said, the longterm status of Zambrano carers should be protected. The Government has refused around 90% of Zambrano applicants. Those two sentences contradict each other.

2.) The Government did NOT say Zambrano carers should be given residence under Appendix FM. The Government said within the EU Settlement Scheme. Therfore, 90% of Zambrano carers should not have been refused.

3.) Surinder Singh families are also not covered by the WA. They too were allowed to apply under Appendix EU.Their refusal rates are not anywhere near Zambrano carers.

4.) The E.K. case proves the Government wrong. Zambrano carers were eligible for permanent residence under EU law.