snooky wrote: ↑Tue Sep 15, 2020 8:48 am
New Cover letter for AR. You can tweak it for anything to help your argument.
Administrative Review
Edit to your case
Dear Sir/Madam,
I have made an immigration application under the EU Settlement Scheme as someone with a Derivative Right of Residence – Zambrano or would be a Zambrano Carer. This application was logged in (date) and received by the EU Settlement Scheme Permanent Migration Team responsible for the warfare of EEA family members on (date).
As per the Agreement under the Withdrawal Agreement and further UK Parliamentary Act on HC1919, Home Office in its promised, auctioned that Zambrano Derivative would be looked after and be issued Settled or Pre Settled Status.
This was further cemented in the Annex 1 Appendix EU immigration EU11, EU12 and EU13 Condition 3. Quoting from page 95 of the Main Caseworkers’ Guidance as follows “Applicant has completed a continuous
qualifying period of 5 years
Under condition 3 in rule EU11 the applicant meets the eligibility requirements for indefinite leave to enter (ILE) or indefinite leave to remain (ILR) where you are satisfied that the applicant either:
• is a relevant European Economic Area (EEA) citizen
• is (or for the relevant period was) a family member of a relevant EEA citizen
• is (or for the relevant period was) a family member who has retained the right of
residence by virtue of a relationship with a relevant EEA citizen
• a person with a derivative right to reside
• a person with a Zambrano right to reside
• a person who had a derivative or Zambrano right to reside”
Moreover on 12 of the Zambrano Guidance for the EU Settlement Scheme also affirms that Zambrano Jurisprudence in the EU Settlement Scheme will be taken care of these group when the meet the Regulation 16
Eligibility requirements
Indefinite leave to enter or remain
The applicant meets the eligibility requirements for indefinite leave to enter or remain as a ‘person with a Zambrano right to reside’ (or, as the case may be, as a ‘person who had a derivative or Zambrano right to reside’ who relies on having been a ‘person with a Zambrano right to reside’ before they moved into any – and have since remained in any or any combination – of the other categories to which the definition of a ‘person who had a derivative or Zambrano right to reside’ refers) if, at the date of application, they meet condition 3 of rule EU11 of Appendix EU.
Again you will agree with me on page 10 of the Free Movement Right- Derivative Right of Residence that : This section explains what a derivative right of residence is and who can claim a right of residence in the UK on this basis.
'Derivative rights' are rights which come from (or are 'derived' from) other instruments of EU law rather than from the Free Movement Directive 2004/38/EC (the Free Movement Directive). A person who is not an ‘exempt person’ may qualify for a derivative right of residence. The requirements are set out in regulation 16 of the Immigration (European Economic Area) Regulations 2016 (the 2016 regulations).
An ‘exempt person’ is defined in regulation 16(7)(c) of the 2016 regulations as a person:
• who has a right to reside in the UK as a result of any other provision of the
2016 regulations, for example, a person who is already exercising free
movement rights as a European Economic Area (EEA) national
• who has a right of abode in the UK by virtue of section 2 of the Immigration Act
1971 (the 1971 act), for example, the person is a British citizen
• to whom section 8 of the 1971 act, or any order made under subsection (2) of
that provision applies
• who has indefinite leave to enter or remain in the UK
As confirmation of a derivative right of residence, a person can apply for a derivative residence card which has the same appearance as a residence card.
My application was refused on (date). The exact reason of refusal is as follows;
“A derivative right to reside is only available to an applicant who has no other means to remain lawfully in the UK as the primary carer of a dependent British citizen, or a dependent of that primary carer.
As a Zambrano case centres on a person seeking to remain in the UK with a British citizen, there is significant overlap with the right to respect for private and family life which is protected by Article 8 of the European Convention on Human Rights (ECHR).
Where a person wishes to remain in the UK on the basis of family life with a British citizen, they should first make an application for leave to remain under Appendix FM to the Immigration Rules, not for a derivative residence card on the basis of Zambrano.
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 also ruled that Zambrano is a not a back-door route to residence for those who have a British citizen child without having or acquiring leave to remain.
This means that a Zambrano application must be refused if the applicant:
• has never made an application under Appendix FM to the Immigration Rules or any other Article 8 ECHR claim, where that avenue is available
• has been refused under Appendix FM or Article 8 ECHR but their circumstances have changed since the decision was made – for example, the applicant applied on the basis of their relationship with a British spouse, but the couple now have a British child
“You have previously been granted LTR under the UK’s domestic immigration law. As your circumstances have not changed, you are invited to re-apply to continue on the route to settlement in the UK”.
I would like to appeal for the Administrative review because your reason to refuse was not in accordance with EEA regulations and the best interest of the child was not carefully considered
Part of the arguments advanced with me Appeal is in relation to the these
• The foundations of the Secretary of State’s Policy Guidance as applied to the case could not stand. The outcome in Shah in the Supreme Court did mean that a third country national primary carer parent, who is in a relationship with a British citizen partner, is able to rely upon a Zambrano application as opposed to an application under Appendix FM, where the requisite level of relationship of dependency with their British citizen child is fulfilled and the quality of that relationship is a relevant factor in determining whether the child is compelled to leave the EU.
• Chavez-Vilchez v Raad van bestuur van de Sociale verbekeringsbank (Case C-133/15) [2018] QB 103 before the CJEU, concerned cases of separated parents where the Union citizen parent was not the primary carer. As noted by the Supreme Court there is no direct analogy with a case, such as the Shah appeal, where the family is living together. Similarly, as in this case, there was no direct analogy where the family is living together but where both parents are neither settled here nor have British citizenship. The circumstances of this case made it even more critical that a right of residence be granted to the Appellants as on the facts the compulsion test was satisfied.
• Where the Tribunal follows the Secretary of State’s Guidance of May 2019 and does not undertake a substantive consideration of this appeal, that would in effect amount to an acceptance that the Tribunal’s jurisdiction in these types of appeals has been ousted- which cannot be correct in law, in particular there being a need to follow the proper approach set out by the Supreme Court in Patel v Secretary of State for the Home Department [2019] UKSC 59 (16 December 2019), which drew heavily on KA v Belgium (Case C-82/16) [2018] 3 CMLR 28.
Reliance by the Secretary of State on her Policy Guidance could not stand having regard to the principles arising in KA v Belgium (Case C-82/16) [2018] 3 CMLR 28, on the correct interpretation of Article 20 of TFEU.
On 30 January 2020 and having heard a number of test cases, Judge Neville of the First-tier Tribunal (IAC) at Taylor House ruled that a person meeting the requirements Regulation 16 of the Immigration (European Economic Area) Regulations 2016 (‘the 2016 Regulations’) has a derivative right of residence notwithstanding that he or she has not yet made an application under the Immigration Rules and pursuant to Article 8 ECHR. The upshot is that the novel concept set out in Home Office policy that a Zambrano carer must first make an unsuccessful fee-paid human rights application before an application under the 2016 Regulations can be submitted is unlawful.
1. Article 20 of TFEU
to be interpreted as meaning that it precludes a Member State from refusing a third country national upon whom his minor children, who are European Union citizens, are dependent, a right of residence in the Member State of residence and nationality of those children, and from refusing to grant a work permit to that third country national, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen.
This Ruling was made by Judge Neville after the Supreme Court has Ruled on 16 December 2019 Patel vs SSHD which now becomes a precedent and make the 2017 Patel vs SSHD SSHD obsolete. Furthermore, Judge Neville went on to make these proceedings
Where the Secretary of State accepts:
1. That the appellant is the primary carer for a British citizen child; and
2. That the child would not be able to remain in the United Kingdom or another EEA member state if the appellant were required to leave the United Kingdom for an indefinite period…
Is it in breach of the appellant’s rights under the EU Treaties in respect of entry to or residence in the United Kingdom for an application for a residence card under Reg. 20 of the 2016 Regulations to be refused because the appellant has not yet made an application for leave to remain under the Immigration Rules (or otherwise pursuant to Article 8 ECHR) on the basis of the relationship with the British citizen child?
Further, the Secretary of State also argued that someone holding leave to remain under domestic law would not benefit from a derivative right to reside. She sourced the above principles from Patel. The FtT rejected this contention and held that the Respondent’s interpretation ‘cannot survive the actual legal principles engaged nor, in any event, would her interpretation of the law provide a sound basis for the requirement imposed by the guidance’ [28].
The FtT agreed that Patel, properly read, offers no support for either proposition. The judge ruled that the Respondent’s guidance contained legal principles which were ‘unsupported by, and in some cases completely at odds with, previous authority’ [46].
This is because Zambrano is concerned with the circumstances in which a TCN will have a right of residence under EU law, and in particular Article 20 of the Treaty on the Functioning of the European Union (‘TFEU’):
1. 1. Citizenship of the Union is hereby established. Every person holding the nationality of a member state shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.
2. 2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:
a) the right to move and reside freely within the territory of the member states; …
Therefore, the obligation and the jurisdiction to grant residence follows Art.20.There was thus a distinct separation between EU law, and other provisions such as the ECHR, to form ‘two sources of protection’ [32]. In the learned judge’s opinion, the correct approach to take in determining Issue 1 was as follows:-
1. Is there a derivative right of residence as defined by Zambrano? If not;
2. Would removal be contrary to the right for respect for the TCN’s family and private life afforded by Article 8 ECHR?
As such, the Respondent’s guidance (and their application of their guidance) erred in law as it is predicated on testing whether the TCN is being compelled to leave the EU, rather than testing what would happen if he or she were so compelled.
In R (on the application of Alvi) v Secretary of State for the Home Department [2012] UKSC 33 the Supreme Court held that the UK Border Agency cannot refuse immigration applications purely because of Policy Guidance that is not contained in the Immigration Rules.
3. Regulations 2016
16(1), 16(5), {16(6), that is if there is dependant}
16(6B), 16(7) and 16(7A)
Section 115 of the Immigration and Asylum Act affects people who are not nationals of an EEA state who: require leave to enter or remain but do not have it.
3.UNCRC Article 3
4 core principles of the Convention on the Rights of the Child?
The four core principles of the Convention are: Non-discrimination (article 2): All children have rights, regardless of race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.
4.Section 55
of the Borders, Citizenship and Immigration Act 2009 requires the Home Office to carry out its existing functions in a way that takes into account the need to safeguard and promote the welfare of children in the UK. ... key principles to take into account in all immigration activities.
5. Zambrano Case C34/9
6. Patel vs SSHD Supreme Court Ruling 16 December 2019
7. Senneh vs SSHD
8.H/O failure to ask for further documentation as enshrined in the case worker's guidance
9. Article 7 of the charter
10. KA v Belgium (Case C-82/16) [2018] 3 CMLR 28
You agree with me that eve the main guidance for the settlement scheme does not explicitly say someone with Leave to Remain could not apply to the Scheme. The EEA Regulations itself also does not eliminate people who are not exempt from having a Derivative Right of Residence.
It is of great concern that the police guidance of the Home Office precludes me and my Union Minor child from exercising our treaty right in my family members country as the EU laws permit.
I attached herewith further documentation for your perusal.
Yours faithful
ABC Visa
lol, will be ready for them, I called them 2 day they said they are already prossessing it , nd sending my passport and my daughters today I didn't send any supporting doc, coz they didn't return the previous ones to me.