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Zambrano Settled Status EU settlement scheme Paper Application Form - NEW

Use this section for any queries concerning the EU Settlement Scheme, for applicants holding pre-settled and settled status.

Moderators: Casa, push, JAJ, ca.funke, Amber, zimba, vinny, Obie, EUsmileWEallsmile, batleykhan, meself2, geriatrix, John, ChetanOjha, archigabe

Lagosbos
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Re: Zambrano Settled Status EU settlement scheme Paper Application Form - NEW

Post by Lagosbos » Wed Jun 29, 2022 12:27 pm

Thank you @KSplendide - we can't give up so easily until everyone wins this battle and that's the reason I don't see myself leaving this forum.

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Re: Zambrano Settled Status EU settlement scheme Paper Application Form - NEW

Post by forney-again » Wed Jun 29, 2022 12:57 pm

Human Rights Act Reform: A Modern Bill of Rights - consultation

(Updated 24 June 2022)

https://www.gov.uk/government/consultat ... nsultation
We intend to revise and reform the flaws we have identified, and replace the Human Rights Act with a modern Bill of Rights
These proposals will be fully in line with our commitments under the Withdrawal Agreement, the Northern Ireland Protocol and the TCA.
Whilst human rights are universal, a Bill of Rights could require the courts to give greater consideration to the behaviour of claimants and the wider public interest when interpreting and balancing qualified rights.
Under section 2 of the Act, courts in the UK must ‘take into account’ any relevant Strasbourg jurisprudence...The IHRAR Panel recommended that section 2 be amended...Domestic courts must first consider whether a rights issue can be resolved by reference to a specific domestic statute or the common law, before considering Convention rights and Strasbourg case law.
220) The government believes that claims aiming to vindicate rights are serious matters, and the system needs to focus on cases where a genuine harm or loss has been caused. We have witnessed a proliferation of human rights claims under the Human Rights Act, not all of which merit court time and public resources. We also believe rights claims should not be used simply as another avenue of litigation to obtain compensation. The introduction of a permission stage would ensure that courts focus on genuine and credible human rights claims.
Judicial Remedies: section 8 of the Human Rights Act
The government wants a Bill of Rights to refocus rights-based claims on serious cases where a genuine injustice needs to be addressed...Our proposals would require applicants to pursue any other claims they may have first, either so that rights-based claims would not generally be available where other claims can be made, or in advance of any rights argument being considered, to allow the courts to decide whether the private law claims already provide adequate redress.

forney-again wrote:
Wed Jun 29, 2022 2:27 am
Are you a Zambrano carer with leave to remain based on Appendix FM?

Appendix FM is based on Article 8 of the European Convention on Human Rights (ECHR). Article 8 of the (ECHR) protects your right to respect for private and family life.

Appendix FM is also based on the UK's Human Rights Act.

The Conservative party does not want migrants to be able to rely on their right to family life in order to stay in the UK.

The courts interpret UK law according to rights provided under the ECHR (as far as possible). If Parliament makes a law that goes against the ECHR, or the Home Office issues guidance that is incompatible with the ECHR, the judges can ask the Home Office to "reconsider".

Section 3 of the Human Rights Act gives judges the authority to ask the Home Office to reconsider. In my OPINION, I believe the judges in Akinsaya relied on section 3 of the Human Rights Act when they asked the Home Office to "reconsider" their refusals.

The new Bill of Rights, to be introduced this Wednesday, will remove section 3 of the Human Rights Act.

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Re: Zambrano Settled Status EU settlement scheme Paper Application Form - NEW

Post by to be free » Wed Jun 29, 2022 3:51 pm


to be free
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Re: Zambrano Settled Status EU settlement scheme Paper Application Form - NEW

Post by to be free » Wed Jun 29, 2022 3:56 pm

@lagosbos and snooky, roughly how long does administrative review and then going on to appeal take?

It seems like this is the next step

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Re: Zambrano Settled Status EU settlement scheme Paper Application Form - NEW

Post by Agyapa » Wed Jun 29, 2022 5:36 pm


Following the Court of Appeal judgement in Akinsanya's case, I thought her lawyers applied to the Supreme Ciurt to challenge the aspect of the ruling which dealt with the interpretation of EU law? I totally disagree with the position of the Court of Appeal on this. Justice Mostyn's original ruling at the high court should be the correct position.

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Re: Zambrano Settled Status EU settlement scheme Paper Application Form - NEW

Post by forney-again » Wed Jun 29, 2022 6:21 pm

VELAJ - https://www.bailii.org/ew/cases/EWCA/Civ/2022/767.html

The idea

Persons with limited leave
  • are not exempt persons and
  • are entitled to a derivative right to reside, alongside their leave to remain
  • so long as they satisfy the criteria under one of paragraphs (2)–(6).
Guidance issued to UK Border Agency staff in 2012 stated that:
"where someone has limited leave (and so is not listed as one of the exempt categories above) and can demonstrate that they meet all other requirements of regulation 15A, then they can acquire a derivative right of residence."
Paragraph 60.

The Upper Tribunal did not consider whether Akinsaya could or could not satisfy the criteria in Regulation 16(5) given that she had leave to remain under Appendix FM. The Court of Appeal did not consider the question either.

Paragraph 65.
In Akinsanya this court was not required to consider, and did not consider, the requirements of Regulation 16(5) and how 16(5)(c) might be satisfied in practice by a primary carer who had limited leave to remain.

Also paragraph 65.

The Court of Appeal considered whether Regulation 16(7) stops Ms Akinsanya from being a Zambrano carer once she got limited leave to remain.

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Re: Zambrano Settled Status EU settlement scheme Paper Application Form - NEW

Post by forney-again » Wed Jun 29, 2022 7:28 pm

Does Regulation 16(7) mean your status as a Zambrano carer ends if you get limited leave to remain?

In other words, does 16(7) say that once you get limited leave to remain, you are exempt from being considered a Zambrano carer? Decide for yourself.

The Immigration (European Economic Area) Regulations 2016 - https://www.legislation.gov.uk/uksi/201 ... ulation/16
(c)an “exempt person” is a person—
(i)who has a right to reside under another provision of these Regulations;
(ii)who has the right of abode under section 2 of the 1971 Act(1);
(iii)to whom section 8 of the 1971 Act(2), or an order made under subsection (2) of that section(3), applies; or
(iv)who has indefinite leave to enter or remain in the United Kingdom [F3(but see paragraph (7A))].

Akinsaya argued that Regulation 16(7) does not end her Zambrano status. She argues the derivative right and the limited leave to remain can exist at the same time.

Upper Tribunal Judge MR JUSTICE MOSTYN in Akinsaya
https://www.bailii.org/ew/cases/EWHC/Ad ... /1535.html
I have already rejected the Secretary of State's argument that the true scope of the Zambrano jurisprudence does not extend to people with limited leave to remain. That should be the end of the matter.
Court of Appeal Judge in Akinsaya
The Claimant [Akinsaya] contends that persons with limited leave are accordingly not exempt persons and by virtue of paragraph (1) (b) are entitled to a derivative right to reside, alongside their leave to remain, so long as they satisfy the criteria under one of paragraphs (2)-(6). On any natural reading of the language of paragraph (7) that submission is plainly right.
Court of Appeal Judge LADY JUSTICE KING in Valej
https://www.bailii.org/ew/cases/EWCA/Civ/2022/767.html
As Underhill LJ pointed out at [60] the claimant's [Akinsaya's] case was clearly right on any natural reading of Regulation 16(7).

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Re: Zambrano Settled Status EU settlement scheme Paper Application Form - NEW

Post by forney-again » Wed Jun 29, 2022 7:30 pm

Does Regulation 16(7) mean your status as a Zambrano carer ends if you get limited leave to remain?

In other words, does 16(7) say that once you get limited leave to remain, you are exempt from being considered a Zambrano carer? Decide for yourself.

The Immigration (European Economic Area) Regulations 2016 - https://www.legislation.gov.uk/uksi/201 ... ulation/16
(c)an “exempt person” is a person—
(i)who has a right to reside under another provision of these Regulations;
(ii)who has the right of abode under section 2 of the 1971 Act(1);
(iii)to whom section 8 of the 1971 Act(2), or an order made under subsection (2) of that section(3), applies; or
(iv)who has indefinite leave to enter or remain in the United Kingdom [F3(but see paragraph (7A))].

Akinsaya argued that Regulation 16(7) does not end her Zambrano status. She argues the derivative right and the limited leave to remain can exist at the same time.

Upper Tribunal Judge MR JUSTICE MOSTYN in Akinsaya
https://www.bailii.org/ew/cases/EWHC/Ad ... /1535.html
I have already rejected the Secretary of State's argument that the true scope of the Zambrano jurisprudence does not extend to people with limited leave to remain. That should be the end of the matter.
Court of Appeal Judge in Akinsaya
The Claimant [Akinsaya] contends that persons with limited leave are accordingly not exempt persons and by virtue of paragraph (1) (b) are entitled to a derivative right to reside, alongside their leave to remain, so long as they satisfy the criteria under one of paragraphs (2)-(6). On any natural reading of the language of paragraph (7) that submission is plainly right.
Court of Appeal Judge LADY JUSTICE KING in Valej
https://www.bailii.org/ew/cases/EWCA/Civ/2022/767.html
As Underhill LJ pointed out at [60] the claimant's [Akinsaya's] case was clearly right on any natural reading of Regulation 16(7).

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Re: Zambrano Settled Status EU settlement scheme Paper Application Form - NEW

Post by omar1978 » Wed Jun 29, 2022 7:36 pm

As i applied for the Zambrano Settled Status on 30 june 2021 and still i have and always had limited leave to remain, so i assume they will refuse my application soon.

What is that the outcome now? what i can do?
to prepare myself for the nest visa(LTR) extension application?

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Re: Zambrano Settled Status EU settlement scheme Paper Application Form - NEW

Post by forney-again » Wed Jun 29, 2022 8:07 pm

Court of Appeal LORD JUSTICE UNDERHILL in Akinsaya
(Vice-President of the Court of Appeal (Civil Division))
The Zambrano jurisprudence says what it says.
Ruiz Zambrano v Office National de l'Emploi, case no. C34/09

The Zambrano jurisprudence does say that the right arises when a carer has no other right to reside in the host country.

The Zambrano jurisprudence does NOT say
  • the Zambrano right can not exist alongside rights granted at the national level
  • the carer must exhaust all options prior to claiming Zambrano carer status
Lord Justice Underhill assumes the derivative right to reside automatically ends when a carer gets another status. He does not offer any references from the legislation to support his claim. He just cites other cases.

In other EU countries, Zambrano carers are allowed to enjoy both statuses concurrently. Therefore, there is nothing in the EU decision that stops a Zambrano carer from holding two statuses at the same time.

In the UK, some judges feel the two exist concurrently. Other judges say otherwise.

The idea that a Zambrano carer can only have one status at a given point in time is a constructed opinion. This question has remained open for at least ten years, with a majority of judges saying you can hold both statuses at the same time.

At least the Home Office tried to refer to the regulations. They tried to use Reg 16(7) to prove you can't have two statuses at the same time. Everyone rejects that argument, but at least they tried.

Lord Justice Underhill basically just says, "Can't you see? It's obvious you can't hold two statuses at the same time!" - without providing any conclusive evidence.

What a mess.

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Re: Zambrano Settled Status EU settlement scheme Paper Application Form - NEW

Post by forney-again » Wed Jun 29, 2022 9:37 pm

More analysis of Akinsaya - Court of Appeal - LORD JUSTICE UNDERHILL
(Vice-President of the Court of Appeal (Civil Division))

Underhill LJ considers two cases raised by the Home Office

1.) Iida v Stadt Ulm C-40/11
2.) NA v Secretary of State for the Home Department C-115/15

In Iida v Stadt Ulm C-40/11
  • Mr Lida had a residence permit from early 2006
  • He applied for residence under the EU rules in May 2008
  • In 2012, the Court refused his application for a Zambrano residence card because he was entitled to indefinite leave to remain. He had already lived in Germany for 5 years by then.
This case is not relevant to Akinsaya. Akinsaya does not have indefinite leave to remain. If she did have indefinite leave to remain, she would not be in court. Nonetheless, Underhill LJ says,
In my view Iida does indeed support Mr Blundell's case, for the reasons that he gives.

NA v Secretary of State for the Home Department
  • In this case, a Pakistani mother of two German children applied for a derivative residence card in the UK.
  • The woman was refused a derivative residence card as a Zambrano carer because she was already eligible for residence under the EU rules.
This case is also not relevant to Akinsaya's. Akinsaya has no European children. I don't believe the child's father is European. Nonetheless, Underhill LJ says,
I accept Mr Blundell's submission that it supports his characterisation of the Zambrano right in the same way.
Moreover, the key question in Akinsaya was whether or not you can have both rights at the same time. (And Reg 16(7) does not say you can not have both rights at the same time.)

Meanwhile, Underhill LJ and the Home Office were instead busy off exploring at what point a Zambrano right arises.

And Jesus wept.

In my OPINION, this matter clearly has to go to the Supreme Court. Underhill LJ is the Vice President of the Court of Appeal. It seems the only one higher would be the President or the Supreme Court.

I suspect the Home Office will start sending out refusal letters at some point this summer. People should file an appeal before their deadline, even if it isn't perfect. Then, it is just a matter of waiting for the Supreme Court.

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Re: Zambrano Settled Status EU settlement scheme Paper Application Form - NEW

Post by Agyapa » Wed Jun 29, 2022 10:30 pm

forney-again wrote:
Wed Jun 29, 2022 9:37 pm
More analysis of Akinsaya - Court of Appeal - LORD JUSTICE UNDERHILL
(Vice-President of the Court of Appeal (Civil Division))

Underhill LJ considers two cases raised by the Home Office

1.) Iida v Stadt Ulm C-40/11
2.) NA v Secretary of State for the Home Department C-115/15

In Iida v Stadt Ulm C-40/11
  • Mr Lida had a residence permit from early 2006
  • He applied for residence under the EU rules in May 2008
  • In 2012, the Court refused his application for a Zambrano residence card because he was entitled to indefinite leave to remain. He had already lived in Germany for 5 years by then.
This case is not relevant to Akinsaya. Akinsaya does not have indefinite leave to remain. If she did have indefinite leave to remain, she would not be in court. Nonetheless, Underhill LJ says,
In my view Iida does indeed support Mr Blundell's case, for the reasons that he gives.

NA v Secretary of State for the Home Department
  • In this case, a Pakistani mother of two German children applied for a derivative residence card in the UK.
  • The woman was refused a derivative residence card as a Zambrano carer because she was already eligible for residence under the EU rules.
This case is also not relevant to Akinsaya's. Akinsaya has no European children. I don't believe the child's father is European. Nonetheless, Underhill LJ says,
I accept Mr Blundell's submission that it supports his characterisation of the Zambrano right in the same way.
Moreover, the key question in Akinsaya was whether or not you can have both rights at the same time. (And Reg 16(7) does not say you can not have both rights at the same time.)

Meanwhile, Underhill LJ and the Home Office were instead busy off exploring at what point a Zambrano right arises.

And Jesus wept.

In my OPINION, this matter clearly has to go to the Supreme Court. Underhill LJ is the Vice President of the Court of Appeal. It seems the only one higher would be the President or the Supreme Court.

I suspect the Home Office will start sending out refusal letters at some point this summer. People should file an appeal before their deadline, even if it isn't perfect. Then, it is just a matter of waiting for the Supreme Court.

But who will take the matter to the Supreme Court? It appears lawyers for Akinsanya are going back to the High Court to challenge the SSHD's refusal to reconsider Appendix EU in relation to Zambrano carers. Clearly that will have to travel back to the Court of Appeal and will likely land before Underhill LJ again.
However, I agree with you that anyone who receives a refusal on their EUSS application from the HO must appeal and exhaust the legal route at least to the Upper Tribunal.

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Re: Zambrano Settled Status EU settlement scheme Paper Application Form - NEW

Post by forney-again » Wed Jun 29, 2022 11:20 pm

The Home Office may want to keep this Akinsaya case going for as long as possible.

If Akinsaya keeps going, the Home Office can grant Zambrano carers with leave to remain under Appendix FM, indefinite leave to remain under Appendix FM.

Then, they will refuse Zambrano carers leave to remain under Appendix EU, because Appendix EU says that if you have indefinite leave to remain under another Appendix, you are ineligible for indefinite leave to remain under Appendix EU.

The more important question is, why does the Home Office even care? Zambrano carers will eventually get indefinite leave to remain under Appendix FM, even if they do not get it under Appendix EU.

Perhaps the Home Office worry that if you get indefinite leave to remain under Appendix EU, it will be harder for them to suddenly take it away from you when they feel like it.

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Re: Zambrano Settled Status EU settlement scheme Paper Application Form - NEW

Post by forney-again » Thu Jun 30, 2022 12:19 am

Akinsaya - Court of Appeal - Lord Justice Underhill

Why the Supreme Court? Underhill LJ is literally the Vice President of the Court of Appeal. I don't see how a First Tier Tribunal Judge or Upper Tribunal judge will go against him.

Who before the Supreme Court? Akinsaya, hopefully. What is the point in starting over with someone new? It would take forever.

Underhill LJ says in paragraph 40

It followed that from the moment that she [Akinsaya] was granted leave to remain, albeit limited, the Claimant enjoyed no Zambrano right to reside.

Underhill LJ basically told the Home Office what to do to avoid being unlawful. He says in paragraph 57
If the Secretary of State's purpose in wanting to "understand the Zambrano jurisprudence" was indeed to restrict rights under the EUSS to people whose right to reside at the relevant dates directly depended on Zambrano, then her approach was consistent with the EU case-law.
The Home Office now say, as long as you had a right to reside on 31st December 2020, you qualify. As such, the Court of Appeal would probably say the Home Office is now right in its interpretation of the law.

The Supreme Court will hopefully say the following
  • Anyone with a Zambrano status on the relevant date is eligible
  • Having limited leave to remain under Appendix FM on the relevant date does not invalidate your Zambrano status
In Shah (and Patel) versus the Home Office,
https://www.bailii.org/uk/cases/UKSC/2019/59.html
  • Mr Nilay Patel was a carer with no right to remain in the UK.
  • Mr Shah had no right to live or work in the UK.
Lady Arden J said
1.) The overarching question is whether the son would be compelled to leave
2.) The Court of Appeal made an error of law when it treated as determinative what could happen to Mr and Mrs Shah’s son if the father left the UK, rather than what the FTT had found would happen in that event
If Ms Akinsaya loses her limited leave to remain under Appendix FM she will not be able to rely on her Zambrano rights because Zambrano rights are gone.

She would still be, for all intensive purposes, a Zambrano carer, because she still looks after her British children.

Imagine the following scenario

A Zambrano carer gets derivative residence card in 2019.
The carer gets leave to remain under Appendix FM in 2020.
On January 2, 2020, for some reason, her leave to remain is withdrawn by the home office.
Under the current rules, the carer and her children would have no right to remain in the UK, because she had limited leave to remain in December 2020.

In Shah/ Patel, Lady Arden said the Court of Appeal cannot deny someone a derivative right of residence because in theory the child would remain in the UK, no matter what.

By extension, it is not for the Court of Appeal to assume a Zambrano carer will automatically get indefinite leave to remain under Appendix FM.

Regarding Zambrano jurisprudence (because the Home Office clearly lost on the question of the EEA Regulations), Underhill LJ did not really address the Charter of Fundamental Rights of the European Union (“the Charter”) or article 20 of the Treaty on the Functioning of the European Union (the “TFEU”).

Lady Arden (Supreme Court) specifically raised Articles 7 (Respect for private and family life) and 24 (The rights of the child) in Patel, Shah.

Furthermore, in Valej, Lady Justice King says in paragraph 68
https://www.bailii.org/ew/cases/EWCA/Civ/2022/767.html
The immigration status of a person with limited leave to remain is precarious; leave is likely to be subject to conditions and it is liable to be withdrawn or truncated. It is possible to conceive of situations in which the conditions attached to a limited leave to remain are such as to make it impossible in practice for the primary carer to remain in the UK and look after the child.
Conclusion:
It can not be right that a British child could potentially miss out on remaining in the UK because their parent held limited leave to remain under Appendix FM on 31st December 2020, and that leave was subsequently revoked (or not renewed).

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Re: Zambrano Settled Status EU settlement scheme Paper Application Form - NEW

Post by forney-again » Thu Jun 30, 2022 11:15 am

I see roughly six groups of people

a.) those who the Home Office are kind to and give settlement under EUSS
b.) those who go for administrative review, and get lucky
c.) those who win at the first tier tribunal, and the home office does not appeal
d.) those who win at the first tier tribunal and win, and the home office appeals. they go to the upper tribunal and win again
e.) those who lose at the first tier tribunal, appeal to the upper tribunal, and win

f.) Everyone else might as well just wait for the Supreme Court. Going to the Court of Appeal is a waste of time.

Underhill LJ, the Vice President, does not believe Zambrano carers with leave to remain should be granted settlement under EUSS.

Underhill LJ agrees with the other judges that the Home Office is wrong to say Regulation 16(7) says parents with leave to remain are not Zambrano carers.

But Underhill LJ still maintains that you can not have both statuses. He claims it is obvious. The problem is the Court of Appeal have held this position for so very long, they will not see reason.

If the EEA Regulations did not exclude parents with leave to remain under Appendix FM, Underhill LJ is being unreasonable to try to force his conclusion. He is actually going against the EEA regulations. The absence of the exclusion is an argument for dual status.

Underhill LJ and the Home Office have to argue why the EEA Regulations are wrong to include parents with limited leave to remain under Appendix FM. But they won't do that, because the flaws in the argument become obvious.

Moreover, Underhill LJ is essentially saying that the three years the government spent negotiating the Withdrawal Agreement and Appendix EU, are not to be taken seriously.

As of today, the Home Office have rewritten their guidance on EUSS. The guidance can not be more restrictive than Appendix EU. Nothing in Appendix EU says Akinsaya should be refused.

At the very least, the Home Office should explain if and when they plan to update Appendix EU to match their new guidance. They should not refuse Akinsaya and others in the shadows. A democracy demands transparency.

If the UK goes back on its word and changes Appendix EU, it will stand as yet another example of bad faith negotiations. Even more, changing Appendix EU is to rip up the Withdrawal Agreement. The Withdrawal Agreement is clear that once rights are given, they should not be taken away.

Appendix EU currently gives rights to Zambrano carers with limited leave to remain under Appendix FM. Underhill LJ's comments give the Home Office permission to take away those rights.

That is why I say the Supreme Court should decide this matter once and for all, one way or the other.

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Re: Zambrano Settled Status EU settlement scheme Paper Application Form - NEW

Post by forney-again » Thu Jun 30, 2022 11:20 am

So, what should one do? File an appeal if you get a refusal to get your name on the list, so to speak
Also, enjoy your time with your children. Be extra kind, helpful, etc. At the heart of this drama is a belief that Zambrano carers are somehow less desirable, less capable and less worthy. Prove them wrong, not just in Court, but in your day to day life. They know the incredible amount of stress they cause people. The cruelty is the point. And the Courts let them get away with it for far too long. So, find a way to be happy anyway. As long as you are on the list, and you have your CoA every six months, try not to worry about it too much.

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Re: Zambrano Settled Status EU settlement scheme Paper Application Form - NEW

Post by to be free » Thu Jun 30, 2022 12:34 pm

forney-again wrote:
Thu Jun 30, 2022 11:20 am
So, what should one do? File an appeal if you get a refusal to get your name on the list, so to speak
Also, enjoy your time with your children. Be extra kind, helpful, etc. At the heart of this drama is a belief that Zambrano carers are somehow less desirable, less capable and less worthy. Prove them wrong, not just in Court, but in your day to day life. They know the incredible amount of stress they cause people. The cruelty is the point. And the Courts let them get away with it for far too long. So, find a way to be happy anyway. As long as you are on the list, and you have your CoA every six months, try not to worry about it too much.

I agree. Home office business can make one fall ill physically and mentally.

Be happy. This is important

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Re: Zambrano Settled Status EU settlement scheme Paper Application Form - NEW

Post by LULUBABY » Thu Jun 30, 2022 12:38 pm

forney-again wrote:
Thu Jun 30, 2022 11:20 am
So, what should one do? File an appeal if you get a refusal to get your name on the list, so to speak
Also, enjoy your time with your children. Be extra kind, helpful, etc. At the heart of this drama is a belief that Zambrano carers are somehow less desirable, less capable and less worthy. Prove them wrong, not just in Court, but in your day to day life. They know the incredible amount of stress they cause people. The cruelty is the point. And the Courts let them get away with it for far too long. So, find a way to be happy anyway. As long as you are on the list, and you have your CoA every six months, try not to worry about it too much.
I am dumbfounded, it feels like watching what you grasped, gradually slip off your hands.

I should have known better when Akinsanya won, instead of me to keep quiet and let the things cool down first, I started rejoicing. I promised my child to take him to Disney World. What got into my mouth then, I still don’t know.

I should have returned to reality when my child kept asking me “are you for real mummy?”

I am trying to be extra nice to my child now unfortunately I can’t see myself getting out of this one.

It’s approaching Summer Holidays and whenever I talk about filling out forms for his holiday club he starts screaming:

We need to upgrade mummy! Disney World mummy! Matthew 7:7 Mummy!!! We deserve it mummy, we have suffered mummy!!! - The exact things I was saying to him after Akinsanya won.

It just feels like we haven’t actually suffered enough....

My words have now come to haunt me. He was telling me Lego Land and I was busy lapping up Akinsanya win, screaming we must upgrade.

At least you need to have something before you upgrade, isn’t it?. If only I promised him where we can go with Oyster or worse case scenario by coach I wouldn’t be so worried now.

I have checked the period I was on Zambrano, it was 4yrs 11months and 19days before I got my leave to remain. Since it expired in July 2020 I haven’t renewed it.

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Re: Zambrano Settled Status EU settlement scheme Paper Application Form - NEW

Post by THGHZ » Thu Jun 30, 2022 2:04 pm

Hi all could we please avoid dumping loads of references here and stick to straightforward posts... It defeats the whole purpose of forum and not forgetting previous forum was closed down by moderator for such. Thanks

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Re: Zambrano Settled Status EU settlement scheme Paper Application Form - NEW

Post by forney-again » Thu Jun 30, 2022 2:47 pm

THGHZ wrote:
Thu Jun 30, 2022 2:04 pm
Hi all could we please avoid dumping loads of references here and stick to straightforward posts... It defeats the whole purpose of forum and not forgetting previous forum was closed down by moderator for such. Thanks
NO. You can not and should not tell people what to write.

The purpose of the forum is to educate.

People will have to respond to their refusal letters with a legal challenge.

Any legal challenge will need to display a basic level of understanding of the law.

You show your understanding by stating your position, and listing a reference.

You may have loads of money to hire a barrister, but not everyone does.

These types of comments drive people away from this forum. And come across as hugely ungrateful.

I am willing to close this account (again) and leave you all to it if the complaints about my posts continue.

You always have the option of just ignoring posts you don't like. If that is too much, let me know and I will close the account immediately.

forney-again
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Re: Zambrano Settled Status EU settlement scheme Paper Application Form - NEW

Post by forney-again » Thu Jun 30, 2022 3:01 pm

The fact that the judges now accept that the EEA Regulations do NOT say

Zambrano carers can not hold limited leave to remain under Appendix FM, and still be considered a Zambrano carer,

is a massive, massive win for Zambrano carers!!!

The Home Office argument revolves around two points. The EEA Regulations and the "Zambrano Jurisprudence." So, it's one point down, one to go.

The other point about Zambrano jurisprudence is highly nuanced. What cases constitute "Zambrano jurisprudence?" It's a free for all out there.

Another key problem is psychological. The Court of Appeal would have to 'eat crow' as they say, and accept that they were wrong. Maybe, just maybe, the judges in the Court of Appeal will talk to Underhill LJ and get him to see sense. Maybe, the media will cover the story and the judges will change their mind. There is always the Supreme Court. And Lady Arden cares about the welfare of the Zambrano children.

Also, their (Underhill LJ and the Home Office) reliance on case law that involves European children and not British children shows they are struggling to prove their point.

Hopefully, you all got something from the posts. This forum is becoming a bit too negative for me so I will have to close the account. I just picked this up a couple of days ago, after a long time, and thought I would add my analysis. If you remember from last time, I am NOT one to just say my conclusions... I develop them, hence the references.

In closing, I will say that I think Zambrano carers will succeed at the Supreme Court, if it gets that far. Hopefully, all decisions will be put on hold and people will be able to live their lives normally in the interim period. Take care of yourselves.

Agyapa
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Re: Zambrano Settled Status EU settlement scheme Paper Application Form - NEW

Post by Agyapa » Thu Jun 30, 2022 5:45 pm

forney-again wrote:
Thu Jun 30, 2022 3:01 pm
The fact that the judges now accept that the EEA Regulations do NOT say

Zambrano carers can not hold limited leave to remain under Appendix FM, and still be considered a Zambrano carer,

is a massive, massive win for Zambrano carers!!!

The Home Office argument revolves around two points. The EEA Regulations and the "Zambrano Jurisprudence." So, it's one point down, one to go.

The other point about Zambrano jurisprudence is highly nuanced. What cases constitute "Zambrano jurisprudence?" It's a free for all out there.

Another key problem is psychological. The Court of Appeal would have to 'eat crow' as they say, and accept that they were wrong. Maybe, just maybe, the judges in the Court of Appeal will talk to Underhill LJ and get him to see sense. Maybe, the media will cover the story and the judges will change their mind. There is always the Supreme Court. And Lady Arden cares about the welfare of the Zambrano children.

Also, their (Underhill LJ and the Home Office) reliance on case law that involves European children and not British children shows they are struggling to prove their point.

Hopefully, you all got something from the posts. This forum is becoming a bit too negative for me so I will have to close the account. I just picked this up a couple of days ago, after a long time, and thought I would add my analysis. If you remember from last time, I am NOT one to just say my conclusions... I develop them, hence the references.

In closing, I will say that I think Zambrano carers will succeed at the Supreme Court, if it gets that far. Hopefully, all decisions will be put on hold and people will be able to live their lives normally in the interim period. Take care of yourselves.
Please don't close the forum. I believe majority of us are benefiting from your detailed analyses on the Zambrano jurisprudence. I personally wouldn't have applied to the EUSS if not for the information provided by members like yourself, Snooky and others. I can testify that I used all the information posted here to support my friend to get her settled status, the battle of which started in 2019. We did this against the numerous advice of many Radio and facebook lawyers who thought anyone with limited leave to remain under Appendix FM was not entitled to get a status under the EUSS. Many thanks for your posts. We appreciate them.

LULUBABY
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Re: Zambrano Settled Status EU settlement scheme Paper Application Form - NEW

Post by LULUBABY » Fri Jul 01, 2022 11:41 am

Lagosbos wrote:
Tue Jun 28, 2022 8:44 pm
Appellant’s case
3. The Appellant entered the UK on a 6 month visit visa, which expired in February 20XX
and on XX November 20XX the Appellant applied for leave to remain under Appendix
FM. On xx March 20xx the Respondent granted 30 months’ limited leave to remain until
xx September 20XX. On XX May 20XX the Appellant applied to the EU Settlement Scheme
(EUSS) for limited leave to remain (pre-settled status) under Appendix EU of the
Immigration Rules, on the basis that she had been a person with a Zambrano right to
reside for a period of x year and x months continuous residence. The Respondent
refused the application by letter dated 1x February 20xx. The Appellant appeals against
that decision. It is the Appellant’s case that she is the primary carer for her x-year-old
child (X) and that she shares this responsibility equally with her partner (Mr XXXXXX),
who is settled in the UK and who is the child’s father. The Appellant states that her
young daughter suffers from significant medical difficulties which require constant and
adequate parental supervision to prevent life threatening crisis. The Appellant seeks
leave to remain in the UK to care for her child.
4. I have not felt the need to put an anonymity order in place in this instance. However,
due to the Appellant’s daughter’s age and medical position, I have not named her herein
and she will be referred to as X throughout the judgment.
The Respondent’s case
5. The Respondent refused the application on the basis that the requirements of Regulation
16(5) of the EEA Regulations were not met. It was argued that the Appellant had not
demonstrated that her daughter would be unable to remain in the UK in her absence, as
the child’s father had indefinite leave to remain in the UK and he resided with the child.
As there was an alternative carer available, A would be able to remain in the UK with
him. Therefore, it was argued, the Appellant did not meet the Zambrano requirements.
The Respondent stated that the Appellant did not meet the eligibility requirements for
settled status set out in rule EU11 of Appendix EU to the Immigration Rules or those for
pre-settled status which are set out in rule EU14 of that Appendix. Therefore, settled
status and pre-settled status were refused under EU6.
Relevant Legal Framework
6. The relevant legal provisions are set out in the EEA Regulations of 2016, which seek to
transpose into domestic law Council Directive 2004/38/EC on the right of citizens of the
European Union and their family members to move and reside freely within the territory
of Member States. Under the Regulation 16 of the EEA Regulations, a person has a
derivative right to reside if they are not an exempt person and they satisfy each of the
criteria in one or more of paragraphs 16(2) to 16(6).
7. As the Appellant is not an exempt person under Regulation 16(7)(c), the relevant
provisions in respect of this appeal fall under Regulation 16(5) of the EEA Regulations,
which provides a third country national with a derivative right to reside where:

(a) the person is the primary carer of a British citizen (BC);
(b) the BC is residing in the United Kingdom; and
(c) the 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.
Regulation 16(8) provides that a person is the ‘primary carer’ of another person (AP) if:
(a) the person is a direct relative or a legal guardian of AP; and
(b) either -
(i) the person has primary responsibility for AP’s care; or
(ii) shares equally the responsibility for AP’s care with one other person who is not an
exempt person.
Burden and standard of proof
8. The burden of proof is on the Appellant to demonstrate that she meets the relevant
requirements to establish a derivative right of residence as the primary carer of a British
citizen. The standard of proof in such matters is that of a balance of probabilities.
Findings of Fact and Reasons
9. In coming to a decision in this appeal, I have considered all the evidence submitted. This
includes the bundle submitted by the Appellant and the bundle submitted by the
Respondent. I have referred in my findings to the material aspects of the claim and
considered all evidence in the round applying the relevant standard of proof, that of a
balance of probabilities, but any absence of a reference to a particular piece of evidence
should not be taken to mean that I have not considered that evidence.
Primary carer
10. A derivative right of residence under EEA Regulations is a right that is derived from the
dependent European Union (EU) citizen, in this case the Appellant’s minor child. A key
issue in determining whether the Appellant has such a right is whether her daughter
would be unable to reside in the United Kingdom or another EEA state if the Appellant
is required to leave, thus depriving her of the benefits of Union citizenship. This
principle arose in the judgment of the Court of Justice of the European Union (‘the
CJEU’) in Zambrano v Office national de l’emploi (Case C-34/09), in which it was held
that a third country national parent of a Union citizen child resident in Union territory,
was entitled to a right of residence to avoid the child being deprived of enjoying the
substance of their Union citizenship rights if their parents were removed. This is why
such applications are referred to as Zambrano cases, though the derivative right of
residence is implemented in domestic legislation by virtue of Regulation 16 of the EEA
Regulations.
11. The Appellant must first establish that she is the primary carer for her young daughter
to satisfy the requirement under Regulation 16(5)(a) of the EEA Regulations. It is of note
that the Respondent does not appear to dispute this within the decision letter. In any
event, I am satisfied from the detailed evidence submitted that the Appellant is one of
two primary carers for her daughter. I find and accept that the Appellant shares her role
as carer for her daughter with her partner. She fulfils the criteria set out within 16(5) and
16(8) of the EEA Regulations.
12. Further, the Respondent has not raised any issue as regards Regulation 16(5)(b). There
is no issue that the Appellant’s daughter is residing in the UK and, in any event, on the
evidence submitted, I am satisfied that she is so resident.
Unable to remain
13. The Respondent’s argument (as set out within the decision letter) is that the Appellant
has not established that her minor child would be unable to reside in the UK or another
EEA state if she left, as required under Regulation 16(5)(c).
14. The Appellant must show that her daughter would be unable to reside in the United
Kingdom if she were required to leave for an indefinite period. I note that this is a
finding of fact to be made in each case. The Appellant’s representatives have helpfully
referred to relevant case law, including the cases of Patel v SSHD [2017} EWCA Civ 2028,
Chavez-Vilcher (C-113 15) 10 May 2017, (EEA Regulations – interpretation, Reg 16(5),
Zambrano) Kosovo [2021] UKUT 235 (IAC) (3 June 2021) and KA v Belgium (C-82/16
EU:2018:308). When determining the question of whether the Appellant’s daughter
would be able or unable to remain following the indefinite leave of her mother, it is clear
that relevant considerations include: the age of the child, the best interests of the child,
whether the other parent is willing to assume full responsibility for the child, the child’s
physical and emotional development, the extent of her ties with both parents and the
impact of the separation on the child. I note that I am bound to consider the best interests
of the children in the UK under section 55 of the Borders, Citizenship and Immigration
Act 2009 as a primary consideration (but not the primary consideration).
15. In the present case, the Appellant’s child is 3 years old. She is therefore very young. She
lives with her mother and her father. It is clearly the case that she will have a strong
bond with the Appellant, who is her mother. I accept this on the balance of probabilities
on the basis of the family set up and the child’s age alone. However, if further evidence
is required, I also accept the evidence of the Appellant’s partner (page 37 of the bundle)
that: “the love they have for one another is unbreakable and has created a special bond between
mother and daughter”. The photographs (provided outside of the paginated bundle) also
depict a loving and close relationship between mother and child and support my
conclusion that there is a close relationship and strong bond. In the present appeal, the
child also has significant medical challenges which require the input and supervision of
both parents. I have been provided with pictures of the XXXXX which is clearly
prescribed for x. I have also had regard to the letter from the GP (page 51 of the bundle)
and the subsequent medical evidence in the bundle which confirms that A suffers from
a significant number of allergic conditions. The level of care and supervision required
for such a young child cannot be provided should the Appellant be required to leave the
family home and the UK. The result would be that A (and the rest of the family) would
have to leave the UK (and the EU) with the Appellant. In coming to this decision, I have
also considered and accepted the evidence of the Appellant’s partner (page 37 of the
bundle). I note and accept that he works full time and that the Appellant works part
time. They have 2 young children. In order to financially, emotionally and physically
care for their children, the Appellant and her partner have to work together and share
that task. If the Appellant was to leave the UK and the family home for an indefinite
period, I find and accept that the family (including x) would be required to leave with
her. I find that the Appellant’s partner would not be able to work and care for the
children on his own in the UK. Further, when considering the best interests of the
Appellant’s child as a primary consideration (albeit not the primary consideration), I am
satisfied that her best interests are clearly met by remaining with her mother within the
family unit in the UK.
16. Having considered all the evidence presented in the round, I find that the Appellant has
established to the required evidential standard that her daughter, x, will be required to
leave the UK or EU territory if the Appellant is required to leave for an indefinite period.
Therefore, I find that the Appellant does satisfy the requirements under Regulation
16(5)(c) to establish a derivative right of residence. Should the Appellant leave the UK,
I am satisfied that her child would be compelled to leave with her on the facts of this
appeal.
Conclusions
17. Given my findings above, the Appellant has provided sufficient evidence to demonstrate
to the required evidential standard that she meets the requirements of Regulation 16(5)
of the EEA Regulations as the primary carer of a British citizen.
18. The Respondent’s decision is therefore unlawful, and the appeal is allowed.
Notice of Decision
I allow the appeal under the Immigration (European Economic Area) Regulations 2016.
No anonymity direction is made.
TO THE RESPONDENT
FEE AWARD
As I have allowed the appeal, I determine that the Respondent should pay any fee incurred
by the Appellant in lodging this appeal.
Well done. Good fight!!!

LULUBABY
Senior Member
Posts: 560
Joined: Thu Jan 30, 2020 8:33 pm
Mood:
Nigeria

Re: Zambrano Settled Status EU settlement scheme Paper Application Form - NEW

Post by LULUBABY » Fri Jul 01, 2022 11:47 am

apollo_alpha wrote:
Wed Jun 15, 2022 8:41 pm
LULUBABY wrote:
Wed Jun 15, 2022 10:23 am
UPDATE : JUST RECEIVED THIS

Thank you for your application under the EU Settlement Scheme.



We are in the process of considering your application and we require some additional information or evidence from you to help us to make sure we reach the correct decision. We would like to reassure you that no decision has been made on your EU Settlement Scheme application at this stage and we will work with you to help you with your application.



Consideration has been given as to whether you qualify for pre-settled status on the basis of completing a continuous qualifying period in the UK as the primary carer of a British citizen, referred to in Appendix EU as being a ‘person with a Zambrano right to reside’



This department requires the following information:

Evidence of your primary care over your sponsor, within the last six months, from January 2022 to June 2022 in the form of a school letter, Dr’s letter, or any other evidence that you have been the primary carer of your sponsor during the last six months.


Further guidance on family members who are eligible to apply to the EU Settlement Scheme along with guidance on documentation to provide as proof of your family relationship to an EEA citizen can be found at https://www.gov.uk/settled-status-eucitizens-families.



If you are unable to provide any further evidence that you have completed a continuous qualifying period of five years as defined in Annex 1 to Part 1 of Appendix EU, we will consider your application on the basis of your claimed continuous qualified period as a person with a Zambrano right to reside.



Please provide this information within two weeks of the date of this e-mail so that we can decide your application as quickly as possible.



If you have any queries about this e-mail / letter you can find further information and guidance at www.gov.uk/government/publications/eu-s ... r-guidance.



If you think you cannot provide the evidence we require or think you may need longer to gather the required evidence, please contact the EU Settlement Resolution Centre quoting your unique application number so that we can provide further advice.



You can contact EU Settlement Resolution Centre via telephone or email:



If you’re inside the UK

Telephone: 0300 123 7379

Monday to Friday (excluding bank holidays), 8am to 8pm

Saturday and Sunday, 9:30am to 4:30pm



If you’re outside the UK

Telephone: +44 (0)203 080 0010

Monday to Friday (excluding bank holidays), 8am to 8pm

Saturday and Sunday, 9:30am to 4:30pm

You can find out about the call charges at www.gov.uk/call-charges



EU Settlement Scheme contact form

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



Yours sincerely
Hi Lulubaby,

Hope you are well.

Hopefully, this comes out positive for you.

Just one question. Do you still have valid leave to remain or has it expired and you didn't renew it?

Many thanks,
Hi Apollo_Alpha, any news yet?. Any update?

apollo_alpha
Junior Member
Posts: 52
Joined: Fri Jan 31, 2020 2:01 pm

Re: Zambrano Settled Status EU settlement scheme Paper Application Form - NEW

Post by apollo_alpha » Fri Jul 01, 2022 2:36 pm

LULUBABY wrote:
Fri Jul 01, 2022 11:47 am
apollo_alpha wrote:
Wed Jun 15, 2022 8:41 pm
LULUBABY wrote:
Wed Jun 15, 2022 10:23 am
UPDATE : JUST RECEIVED THIS

Thank you for your application under the EU Settlement Scheme.



We are in the process of considering your application and we require some additional information or evidence from you to help us to make sure we reach the correct decision. We would like to reassure you that no decision has been made on your EU Settlement Scheme application at this stage and we will work with you to help you with your application.



Consideration has been given as to whether you qualify for pre-settled status on the basis of completing a continuous qualifying period in the UK as the primary carer of a British citizen, referred to in Appendix EU as being a ‘person with a Zambrano right to reside’



This department requires the following information:

Evidence of your primary care over your sponsor, within the last six months, from January 2022 to June 2022 in the form of a school letter, Dr’s letter, or any other evidence that you have been the primary carer of your sponsor during the last six months.


Further guidance on family members who are eligible to apply to the EU Settlement Scheme along with guidance on documentation to provide as proof of your family relationship to an EEA citizen can be found at https://www.gov.uk/settled-status-eucitizens-families.



If you are unable to provide any further evidence that you have completed a continuous qualifying period of five years as defined in Annex 1 to Part 1 of Appendix EU, we will consider your application on the basis of your claimed continuous qualified period as a person with a Zambrano right to reside.



Please provide this information within two weeks of the date of this e-mail so that we can decide your application as quickly as possible.



If you have any queries about this e-mail / letter you can find further information and guidance at www.gov.uk/government/publications/eu-s ... r-guidance.



If you think you cannot provide the evidence we require or think you may need longer to gather the required evidence, please contact the EU Settlement Resolution Centre quoting your unique application number so that we can provide further advice.



You can contact EU Settlement Resolution Centre via telephone or email:



If you’re inside the UK

Telephone: 0300 123 7379

Monday to Friday (excluding bank holidays), 8am to 8pm

Saturday and Sunday, 9:30am to 4:30pm



If you’re outside the UK

Telephone: +44 (0)203 080 0010

Monday to Friday (excluding bank holidays), 8am to 8pm

Saturday and Sunday, 9:30am to 4:30pm

You can find out about the call charges at www.gov.uk/call-charges



EU Settlement Scheme contact form

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



Yours sincerely
Hi Lulubaby,

Hope you are well.

Hopefully, this comes out positive for you.

Just one question. Do you still have valid leave to remain or has it expired and you didn't renew it?

Many thanks,
Hi Apollo_Alpha, any news yet?. Any update?
Hi Lulubaby,

There's no news yet. Just waiting but I have been told that there's the possibility that the SSHD might delay decision-making on Zambrano applications as AKinsanya has now raised another judicial review based on the new policy/guidance of the SSHD.

The grounds are that the policy is irrational and discriminatory. A date of the hearing has not been decided yet but I'm told that it might be September/October.

Locked
cron