Zambrano Settled Status EU settlement scheme Paper Application Form - NEW

I really thought the argument before the First Tier Tribunal would be lengthy.

It seems like the Council of Europe is clear that any parent of a British child should be given residence after five years.

And, also, it seems clear that the UK is still a member of the Council of Europe.

So, why wouldn't any Zambrano carer with five years' residence just make it clear to the judge that they qualify under the Council of Europe rules.

Article 13, ECHR - Effective Remedy

The Akinsaya case is not just about a failure of Article 8 of the European Convention on Human Rights.

It raises an Article 13 issue. Under the ECHR, Article 13, which is also applicable to immigration cases, grants individuals the right to access an effective remedy at the national level.

The Court of Appeal ruled in January 2022 that Ms Akinsaya was a Zambrano carer. Yet, there has been no effective remedy. Nothing has changed.

An effective remedy should include the following criteria:
i. The remedy must be effective in practice as well as in law.4 It should be capable of preventing or stopping the alleged violation or providing suitable redress.

Under the ECHR, to access an effective remedy, individuals must first be able to lodge a complaint before a complaints mechanism capable of establishing the violation of an ECHR right and any liability of state officials or bodies for that violation

The following are characteristics of an effective complaints mechanism:

iv. The mechanism should be capable of delivering a legally binding, enforceable decision.
v. Complaints mechanisms should process complaints thoroughly and expeditiously.

The Court of Appeal did not deliver an enforceable decision.

https://rm.coe.int/european-standards-o ... 1680a3187b

Council of Europe: Updates on the UK's participation

https://search.coe.int/cm/Pages/result_ ... 16804eb800

Appendix to Recommendation Rec(2000)15, Explanatory memorandum, Ad Section 1, (Acquisition of secure residence status of long-term immigrants)

The UK opted out of paragraph 1.a.ii

As concerns paragraph I.1.
The residence authorisation referred to in paragraph I.a.ii. corresponds in Belgium to the authorisation of establishment. Regarding the same paragraph, the United Kingdom reserves the right to apply national law.

Paragraph I.a.ii states

Recommends that the governments of member states apply the following principles in their law and administrative practice:

1. As regards the acquisition of a secure residence status for long-term immigrants
a. Each member state should recognise as a "long-term immigrant" an alien who:
ii. has been authorised to reside on its territory permanently or for a period of at least five years; or

The UK did not, however, opt out of paragraph 1.a.iii. This paragraph relates to parents

Paragraph 1.a.iii

iii. is a family member whose residence on the territory of the member state has been authorised for a maximum period of five years for the purpose of family reunification with a national of the member state or an alien as defined in sub-paragraphs i and ii above.

That seems like good news. Paragraph iii seems to relate to Zambrano carers.

Correction! The correct sub paragraph is 1.a.i

https://search.coe.int/cm/Pages/result_ ... 16804eb800

Recommends that the governments of member states apply the following principles in their law and administrative practice:

1. As regards the acquisition of a secure residence status for long-term immigrants

a. Each member state should recognise as a "long-term immigrant" an alien who:

i. has resided lawfully and habitually for a period of at least five years and for a maximum of ten years on its territory otherwise than exclusively as a student throughout that period; or

ii. has been authorised to reside on its territory permanently or for a period of at least five years; or

iii. is a family member whose residence on the territory of the member state has been authorised for a maximum period of five years for the purpose of family reunification with a national of the member state or an alien as defined in sub-paragraphs i and ii above.

I would really consider printing out this recommendation from the Council of Europe to member governments as a .pdf and sending it to the judge at the First Tier Tribunal.

The UK will try to argue that Zambrano carers are not "habitual" residents.

I don't think the UK judge, or the European Court of Human Rights would accept that anyone who has continuously resided lawfully in the UK for five years or more, is not a habitual resident.

Recommendations can't just be ignored by governments, it seems. They are 'soft law', apparently. They are not enforced, but if someone raises their rights under a Recommendation, then the European Court applies the Recommendation.

That is why it is important to be willing to go to the European Court of Human Rights. The Council of Europe oversees (for lack of a better word) the Council of Europe.

Yay for Brexit! So much attention was put on the 2003 Directive when the Council of Europe ruling was there all this time.

Updated Arguments (Simplified)

1.) The original intention of the Home Office was to give everyone who had residence rights on the day of the Brexit vote, and then on the Withdrawal Date, pre-settled or settled status.

2.) Even if one accepts their original intention was to create two classes of UK based parents of British children (Zambrano carer), this intention is unlawful for at least three reasons:

2.a.) The United Nations International

2.b.) Article 8 of the European Convention on Human Rights

2.c.) The Council of Europe's Recommendations

2.c.1.) If the SSHD (Home Office) wants to argue that subparagraph i of paragraph 1.a does not apply to Zambrano carers, because they do not consider Zambrano carers to be "habitually resident", that argument is undermined by

2.c.1.a) the apparent and undeniable events of the parent meeting the accepted definition of habitual. The Council of Europe does not ask or allow members to(re)define the term habitual. The standard definition applies.

2.c.1.b) the Grand Chamber ruled in September 2022 that Zambrano carers were not "temporary residents" - see E.K. (Ghana) v The Netherlands.

Documents to consider

Council of Europe

• Recommendation Rec(2000)15 of the Committee of Ministers to member states concerning the security of residence of long-term migrants

• Recommendation on the legal status of persons admitted for family reunification Rec(2002)4

European Convention on Human Rights/ European Court of Human Rights

• Article 8, Right to respect for one's "private and family life, his home and his correspondence

United Nations

• International Covenant on Economic, Social and Cultural Rights (New York, 16 December 1966)

Grand Chamber

• Ms E.K. versus the Netherlands

UK Supreme Court

• MM et al versus Secretary of State for the Home Department

(I added MM because it shows the Supreme Court relies on Recommendations from the Council of Europe in making its decisions.)

Further points on Recommendation Rec(2000)15 of the Committee of Ministers to member states concerning the security of residence of long-term migrants

• Each member state should have the option to add further conditions to those mentioned under sub-paragraph i above.

• Each member state should also have the option to extend the deTnition of a "long-term immigrant" to other categories of aliens.

Regarding the above, I think the Home Office will argue that the 2000 Recommendation on long-term migrants allows them to impose any conditions they want.

A judge may even agree with them.

If you list the UK's rules for obtaining permanent residence under Appendix FM/FP, and show how you meet every aspect of those rules - apart from having leave to remain under Appendix FM or FP, it will be difficult for them to win.

At that point, it's just semantics, in my opinion.

To put it another, the Council of Europe says you should be granted residence after five years, provided you
generally did not acquire residence by means of proven fraudulent conduct, resided continuously, no serious crimes committed, with no threat to national security.

The UK says you should be granted residence after some period of time via two ways, it seems

• via the Article 8 route which involves a proportionality test

• via the standard route, which requires a language test, minimum income

Both ways also include the Council of Europe tests.

If you can show you meet the Council of Europe's tests, the Article 8 tests and/or the standard route tests, then it is disproportionate to deny you long term residence - simply because you were lawfully resident under a derivative residence card, as opposed to a visa under Appendix FM or FP.

The difference between the EU and the Council of Europe

The UK signs up to agreements around human rights, then negotiates numerous opt outs.

The EU allowed the opt outs to stand because they perhaps wanted to keep the UK in the EU.

I think that is why UK based Zambrano carers of British children were not accounted for in the Withdrawal Agreement.

I am not sure the Council of Europe is willing to allow the exclusions to apply to the same extent, particularly if the SSHD is challenged in the European Court of Human Rights.

On paper, it is not 100% clear how far the UK can go to deny long term residents permanent status.

At some point, the goals of human rights effectively become undermined. I think the European Court will take a pragmatic yet holistic approach to cases such as Ms Akinsaya's.

With the UK judges, the only thing you could be sure of, is that it will take them too long to resolve the issue, and the decision quite possibly will not be an effective remedy.

Comment on the UK's Opt Outs from Human Rights Laws

I have heard activists on television complain about countries signing up to treaties, only to then excuse themselves from the substance of those same treaties.

It is only now, when I see how the UK

a.) was a member of the EU (before Brexit), but

• opted out of the 2004 Directive that would have afforded rights to Zambrano carers,

• removed itself from the 2003 Directive, which would have given long term residence to Zambrano carers

b.) is a member of the Council of Europe, but

• opts out of the 2000 Recommendation on long term migrants with regard to residence rights for long term residents and for people who obtain a five year visa

that I understand what they mean.

This situation, in which the UK signs up to benevolent treaties, then undermines the treaty by not participating in their true goals and motivations, can only be resolved in the Courts.

The lack of barristers willing to fight these cases, and fight them all the way to the European Court of Human Rights, is the most troubling aspect of this issue at present.

I see two solutions. One, Zambrano carers complain to the United Nations. Two, they file as a litigant in person, all the way to the European Court of Human Rights. Just my thoughts.

marcidevpal wrote: ↑

Tue Nov 01, 2022 8:50 am

The difference between the EU and the Council of Europe

The UK signs up to agreements around human rights, then negotiates numerous opt outs.

Turkey is a member. Russia was a member and it appears they still have a judge with the European Court of Human Rights?

If you look at the list of the members, quite a few have poor human rights for women. Some of those countries are also in the EU!

JB007 wrote: ↑

Tue Nov 01, 2022 11:15 am

marcidevpal wrote: ↑

Tue Nov 01, 2022 8:50 am

The difference between the EU and the Council of Europe

The UK signs up to agreements around human rights, then negotiates numerous opt outs.

Turkey is a member. Russia was a member and it appears they still have a judge with the European Court of Human Rights?

If you look at the list of the members, quite a few have poor human rights for women. Some of those countries are also in the EU!

Turkey and Russia are not the best examples, in my opinion. If you asked the average person, they would assume that the UK's approach to migrants is fair. They would not necessarily be so giving for the other two countries.

I think a judge should be evaluated on their own individual merits, not based on their country's overall practices.

It's the hypocrisy and self-righteousness of the UK's position. You can't get through a discussion without someone mentioning the the UK is the "most generous" country. Yet, when you peel back the layers, the insides are hollow.

marcidevpal wrote: ↑

Tue Nov 01, 2022 11:39 am

You can't get through a discussion without someone mentioning the the UK is the "most generous" country.

Myth.

EU countries give higher welfare payments than the UK does e.g Sweden, France, Germany.

The UK also has a housing crisis: not enough houses.

The generosity myth extends beyond welfare benefits.

It is the idea that the UK is morally superior to other countries in its approach to immigration, tolerance, etc.

The UK's opt outs from human rights provisions are a symptom of a deep animosity toward migrants, underpinned by an understated intolerance of the other.

marcidevpal wrote: ↑

Tue Nov 01, 2022 1:05 pm

It is the idea that the UK is morally superior to other countries in its approach to immigration, tolerance, etc.

Myth.

"Streets of London are paved with gold" = myth

"everyone gets a house" = myth.

"the NHS is free and covers everyone and all treatments" = myth.


We are going off topic forney. This forum is for Zambrano and the law.

marcidevpal wrote: ↑

Tue Nov 01, 2022 1:05 pm

It is the idea that the UK is morally superior to other countries in its approach to immigration, tolerance, etc.

It's the skiled workers the UK welcomes.

Recommendation Rec(2002)4 on the legal status of persons admitted for family reunification

https://www.refworld.org/docid/5a4cadb34.html

Council of Europe

I. Scope of application

1. For the purpose of this recommendation, the term "family members" covers all persons admitted to reside on the territory of a member state with a national or a lawfully residing alien in order to form or preserve the family unit. [Does this definition not apply to Zambrano carers ???]

2. For the purpose of this recommendation, a child means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier.

II. Residence status of family members

1. After admission for family reunification, the family member should be granted an establishment permit, a renewable residence permit of the same duration as that held by the principal or a renewable residence permit.

I do not see a UK opt out on this Recommendation.

JB007 wrote: ↑

Tue Nov 01, 2022 1:12 pm

marcidevpal wrote: ↑

Tue Nov 01, 2022 1:05 pm

It is the idea that the UK is morally superior to other countries in its approach to immigration, tolerance, etc.

Myth.

"Streets of London are paved with gold" = myth

"everyone gets a house" = myth.

"the NHS is free and covers everyone and all treatments" = myth.


We are going off topic forney. This forum is for Zambrano and the law.

If you feel Zambrano carers migrate to the UK principally for welfare benefits, it may alter the way in which you offer Zambrano carers support. Or, it may not. Just something to consider.

The hunt is on to find

• Recommendations by the Council of Europe, and

• Treaties by the United Nations

- that the UK has not opted out of and that could benefit Zambrano carers.

Also, a search for relevant case law by the European Court of Human Rights.

Upper Tribunal Decision

https://tribunalsdecisions.service.gov. ... 00386-2021

CB v SSHD

20. I accept the appellant’s contention that merely because he had the possibility of applying for a right this should not deprive him of the right as a Zambrano carer. However, the question for the FtT was whether his son would be compelled to leave. Given the specific factual circumstances of this case, the FtT concluded that the British citizen child would not be compelled to leave. In the circumstances, the FtT concluded that the appellant was not a Zambrano carer and that was a finding that was open to the FtT to make. There was no error of law.

This case shows it is important to establish that you are a Zambrano carer, unless the Home Office accepts you are and/or you have a derivative residence card.

Upper Tribunal Decision - SSHD v BARDHI

https://tribunalsdecisions.service.gov. ... 04750-2021

This case is really quite important.

JUDGE KAMARA said two things

1.) That applications for EU settlement by Zambrano carers are to be seen as a last resort.

2.) That the Appendix EU Rules, which exclude Zambrano carers such as Akinsaya, are lawful.

If Judge Kamara's position represents the First Tier Tribunal and the Upper Tribunal, it seems clear to me that the only way forward is the European Court of Human Rights.

You may want to directly address these two points in your submissions.

=========

The respondent is the primary carer of her British citizen children (G and A).

Like the respondent, in this case the claimant in Akinsanya had leave to remain under Appendix FM when the application under the EUSS was made.

Mr Deller confirmed that the Secretary of State was pursuing her appeal because the appellant had leave to remain in the UK when she applied under the EUSS

Mr Thoree sought to defend the decision of the First-tier Tribunal, stating that it was correct at the time and that it should not make a difference that matters had moved on. Many other cases had resulted in a grant of ILR on identical facts.

There had been much confusion as to the outcome of Akinsanya, however the Court of Appeal had agreed that an application under the EUSS was a right of last resort, and this justified the Secretary of State’s position.

The scheme Rules were lawful.

The claimant in Akinsanya was again refused under the EUSS after the Secretary of State reviewed the decision and has been granted permission to judicially review that decision.

In addition, an application has been made for permission to appeal the decision in Velaj [2022] EWCA Civ 767, which also has some relevance here.

SSHD v Bardhi - Continued

The problem with this case is not that the Rules are lawful (which they aren't), or that the EU Settlement Scheme is a scheme of last resort, which is isn't.

The problem is Bardhi applied for leave to remain under the UK rules prior to applying for a derivative residence card under the EEA Regulations.

Bardhi's Zambrano right never arose, according to the Court of Appeal.

She was previously granted two periods of leave to remain on human rights grounds, with the second period of leave expiring on 3 July 2020.

On 1 May 2020, the respondent applied for a Derivative Residence card on a Zambrano basis, under the EU Settlement Scheme.

Akinsaya v SSHD - Court of Appeal

https://www.bailii.org/ew/cases/EWCA/Civ/2022/37.html

I looked at the Court of Appeal ruling again.

The Home Office admitted their original intention was to give anyone fitting the EEA definition of a Zambrano carer, settlement!

see paragraph 34.

34. {I}n advance of the hearing below the Secretary of State accepted that her intention in framing the Annex 1 definition was that it should accurately state the actual right to reside enjoyed by Zambrano carers in the UK.

It followed that if the Claimant in fact enjoyed such a right notwithstanding the grant of leave to remain the Secretary of State had in framing limb (b) proceeded under a misunderstanding, and she accepted that it would be unlawful for her to make her decision on that basis.

I don't see how their 'original intention' could be made any clearer than in the above sentences.

If SSHD admits her refusal was unlawful, why hasn't she given Akinsaya settlement?

Appendix EU still shows the same unlawful definition of a Zambrano carer!

According to Underhill LJ last Dec/Jan, "Counsel agreed a modification."

https://www.gov.uk/guidance/immigration ... ppendix-eu

Updated: 18 October 2022,

person with a Zambrano right to reside

a person who has satisfied the Secretary of State, including (where applicable) by the required evidence of family relationship, that, by the specified date, they are (and for the relevant period have been), or (as the case may be) for the relevant period in which they rely on having been a person with a Zambrano right to reside (before they then became a person who had a derivative or Zambrano right to reside) they were:

(a) resident for a continuous qualifying period in the UK with a derivative right to reside by virtue of regulation 16(1) of the EEA Regulations, by satisfying:

(i) the criterion in paragraph (1)(a) of that regulation; and

(ii) the criteria in:

(aa) paragraph (5) of regulation 16 of the EEA Regulations; or

(bb) paragraph (6) of that regulation where that person’s primary carer is, or (as the case may be) was, entitled to a derivative right to reside in the UK under paragraph (5), regardless (where the person was previously granted limited leave to enter or remain under paragraph EU3 of this Appendix as a person with a Zambrano right to reside and was under the age of 18 years at the date of application for that leave) of whether, in respect of the criterion in regulation 16(6)(a) of the EEA Regulations, they are, or (as the case may be) were, under the age of 18 years; and

(b) without leave to enter or remain in the UK, unless this was granted under this Appendix

Per Underhill LJ, Court of Appeal, Akinsaya v SSHD

My rejection of ground 2 means that I would in substance dismiss the appeal, despite my conclusion on ground 1.

Accordingly Mostyn J's order quashing the Secretary of State's decision of 29 September 2020 stands.

However, counsel have agreed a modification of the terms of the declaration which I have set out above in order more precisely to reflect our reasoning, as follows (added words italicised):

"The Secretary of State erred in law in her understanding of regulation 16 of the Immigration (European Economic Area) Regulations 2016 when providing, in Annex 1 to Appendix EU to the Statement of Changes to the Immigration Rules HC 395 as amended, that the definition of a 'person with a Zambrano right to reside' includes paragraph (b) 'a person …. without leave to enter or remain in the UK, unless this was granted under this Appendix'."

I would substitute a declaration in those terms.

Am I missing something? Or is the SSHD blatantly disregarding what they agreed with the Court of Appeal?