Post
by LULUBABY » Tue Jul 13, 2021 4:38 pm
RENEWAL GROUNDS:
The kernel of the Applicant’s renewal grounds is this:
“The declaratory effect of the Supreme court's decision [in Patel v SSHD [2019] UKSC 59] is such that, the fact that I may be able to establish an alternative basis for remaining in the UK does not detract from my EU right of residence derived from the effect of my British citizen child being unable to remain in the UK. The SSHD's 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. Per Judge Neville, the SSHD's guidance contains legal principles which are 'unsupported by, and in some cases completely at odds with, previous authority.” (emphasis added).
Akinsanya
5. In Akinsanya, the High Court decided the question of whether a claim for a Zambrano right of residence was extinguished by the existence of a current limited right to remain under national law. . In the instant case, the issue is whether the ability to apply for limited leave to remain under national law precludes a Zambrano right of residence. The substantive point of law under consideration in Akinsanya is thus substantively the same and at least substantially overlaps with that under consideration in the instant case.
6. In the consent order in Akinsanya, approved by the High Court on 17 June 2021 and enclosed, the parties agreed to the directions:
“a. The Secretary of State is to reconsider the relevant provisions of Appendix EU of the Immigration Rules ("Appendix EU");
b. The Secretary of State will not determine applications made under Appendix EU on the basis that the applicant is or was a person with a Zambrano right to reside ('Zambrano application') and is affected by the Court's judgment, until after she has completed her reconsideration of Appendix EUl;
c. In paragraph (a)(v) of the definition of 'required date' in Annex 1 to Appendix EU the reference to "limited leave to enter or remain granted under another part of these Rules or outside the Immigration Rules which has not lapsed or been cancelled, curtailed or invalidated" includes leave to enter or remain granted under another part of these Rules or outside the Immigration Rules which is extended by operation of section 3C of the Immigration Act 1971;
d. To the extent that paragraph 34BB of the Immigration Rules applies to a Zambrano application, it will be disregarded where there is (i) an outstanding valid Zambrano application for leave to remain under Appendix EU and a valid application for leave to remain is subsequently made under Appendix FM based on the same circumstances; and (ii) an outstanding valid application for leave to remain under Appendix FM and a valid Zambrano application for leave to remain is subsequently made under Appendix EU based on the same circumstances as the Appendix FM application;
e. The Secretary of State intends to implement and publicise a policy under which, for a reasonable period of time which she will specify, but which will be for a period of not less than six weeks after publication of the outcome of her reconsideration referred to at a. above, Zambrano applications made on or after 1 July 2021 will be deemed, under the definition of 'required date' in Annex 1 to Appendix EU, to have reasonable grounds for the person's failure to make that application at the earlier date relevant under that definition.
f. In accordance with paragraph (c) of the definition of "EEA Regulations" in Annex 1 of Appendix EU, the question of whether an applicant is a person with a Zambrano right to reside as defined in Appendix EU in respect of a period on or after 1 July 2021 is to be determined on the basis of the Immigration (European Economic Area) Regulations 2016 as they had effect immediately before they were revoked, and, where the context requires it, on the basis that they had not been revoked;
g. Where a valid Zambrano application is made on or before 30 June 2021, the Secretary of State provides the applicant with a certificate of application confirming their entitlement to work, study and rent a place to live, until final determination of their Zambrano application;
h. The Secretary of State is considering the position in relation to the issue of similar certificates for applications made under Appendix EU on or after 1 July 2021, including in relation to Zambrano applications;
i. Before expiry of the period referred to in e., above, where persons are encountered by Immigration Enforcement on or after 1 July 2021 who may be eligible for leave as potential Zambrano applicants under Appendix EU in light of the judgment, such persons will be provided with written notice giving them an
opportunity to make a valid application under Appendix EU, normally within 28 days of the date of the written notice.”
7. The Respondent lodged an appeal to the Court of Appeal against the High Court’s decision in Akinsanya (Xxxxxxxxxx) and permission to appeal has granted by the Court of Appeal on both grounds.
8. In light of the consent order and the grant of permission to appeal, the Respondent offers to withdraw the decision under challenge and to reconsider the Applicant’s EUSS application, with a fresh decision issued three months (absent special circumstances necessitating further time) from the date of the Court of Appeal determination in Akinsanya.
9. This has been the Respondent’s position in UT proceedings where a similar point arises: Xxxxxxxxxxxxx
10. On that basis, the Respondent invites the Applicant to withdraw this judicial review application. It is hoped that the parties shall agree a consent order to withdraw the JR application. If not, the Respondent invites the UT to refuse permission on the ground that the application is academic and an adequate alternative remedy exists (reconsideration within three months of the Court of Appeal’s decision, or such longer period as special circumstances may necessitate).
