Zambrano Settled Status EU settlement scheme Paper Application Form - NEW

marcidevpal · Post by **marcidevpal** » Sat Dec 24, 2022 8:33 am

Mr Zambrano

If you remember Mr Zambrano's case, he simply did not qualify for residence under the rules. Yet, he went to the CJEU anyway. The CJEU looked at his situation and told Belgium to give him a residence card. So, even if you don't technically fall within the rules in every single aspect, the CJEU will look at your entire situation.

To my mind, the difference between the CJEU and the UK Courts is this: One looks at how they can give you residence, while the other looks at all the different ways you should be denied residence. Worry less about changing your arguments. Focus first and foremost on who is your audience. Find people who show you in their actions(their decisions) that they put family first. Just my thoughts...

Wishfulgirl · Post by **Wishfulgirl** » Sat Dec 24, 2022 10:54 am

marcidevpal wrote: ↑
Sat Dec 24, 2022 6:32 am

Wishfulgirl wrote: ↑
Fri Dec 23, 2022 11:55 pm
Hello Wishfulgirl,

Have you sent the email to the Court and copied in the Home Office with your email address, home address, phone number, etc? Also, you can email the court and ask them to ask the judge for a further two weeks as we are in the middle of the holidays. The judge may say yes. A copy of the structure for the skeleton argument is in an earlier post.

You have two strong statutory grounds to argue. You can stress yourself trying to create the perfect argument, or you can accept that the current environment means there is a strong chance you will lose at the First-tier Tribunal, Upper Tribunal, etc. and will need to appeal to a higher court, outside the jurisdiction of the UK.

It's just my opinion, but I think you should focus on creating a skeleton argument and witness statement that will help you with either the CJEU and/or the ECtHR. (That means the European Court of Justice and the European Court of Human Rights).

It is important to understand in a general sense, what you are arguing and why. Then, it becomes relatively straightforward to write the arguments. Here is my understanding of what you would say, based on what you explained:

Ground 1 - The decision is in breach of your rights under the Withdrawal Agreement

You were given leave under the EU rules as the family member of an EEA national. I believe those rights continue even if your sponsor dies, but I could be wrong. You could argue that you completed five years under the EU rules and should have been given permanent residence before the 31st December 2020. Under the Withdrawal Agreement, the UK has a responsibility to help people qualify. I would just make the argument that I qualify under the Withdrawal Agreement as the family member of an EEA national, and/or also as a Zambrano carer who should have been eligible for permanent residence before 31st Dec 2020 and let the Home Office or the judge prove you are not.

Ground 2 - The decision is in breach of the Immigration Rules

I am not sure how you would argue this ground. It may not be worth it.

Ground 3 - The decision is in breach of your human rights (ECHR)

This third ground is not accepted by the First-tier Tribunal, but you should probably make it anyway. They may say you have to get the permission of the Home Office for the judge to consider your human rights. In my opinion, that is simply false. Human rights are universal and fundamental. The UK is a member of the Council of Europe. That means they agree to take into account ECtHR jurisprudence where relevant. The UK simply can not make legislation that prevents people from raising a human rights claim and from having it considered, in my opinion. If the UK judges refuse to consider your human rights, however, then you need to file a claim with the European Court and the judges will do a balancing test. You have been in the UK lawfully for over 10 years. You have a strong case for why you should be granted permanent residence. The UK is a contracting state to the United Nations and to the European Convention on the Protection of Human Rights. They say that after a certain amount of time, people should be granted permanent residence. It is good that you applied on paper, because you will have all of your documents to show to those courts. Based on my readings of the E.K. decision, and various decisions by the ECtHR, if you don't have a serious criminal record, I don't see how they will rule against you. The ECtHR does a balancing test. They balance society's needs for immigration control against your need for permanent residence. There is a case for criminals, people who entered illegally or overstayers to not be given residence, but even then only in certain circumstances. There has to be a legitimate aim for denying you residence.

Hi, thanks for your response. I did send the email to the courts with the relevant information, I don’t remember copying Home Office into that email though. That’s probably because I wasn’t sure what I was doing. Thank you for your suggestion on the grounds for the skeleton argument. However I have checked the board and can’t see a recent drafted copy I could use to include my grounds. Also, On an earlier page you stated not to copy and paste the skeleton argument. I don’t know how to draft a skeleton argument let alone pinpoint my grounds legally and professionally. I was looking for a drafted copy of an already published skeleton argument here, obviously redacting information that doesn’t suit my case and including my argument as I see fit to my case. I don’t know how to do this, Is there an updated skeleton argument relevant to the Zambrano case which is similar to that of snooky’s previous skeleton argument I could use now. I have checked the board but I haven’t seen one. I’m not sure if I missed it. If I have, Can someone pinpoint what page number on the board I can find this please. As I suffer with anxiety and ocd. I have now lost the ability to remain focus after that email yesterday & I’m dreading the worst. I can indeed email the courts and asked for a 2 weeks extension to provide the information. I just want to make sure I can provide the information when the time comes. They are asking for a skeleton argument, Am I right in thinking they are just looking for me to explain what grounds and why I believe the decision to reject my application was wrong? Is there anyway I can word this to make it seem like I know what I’m saying to a judge? I know I am going over and over again but honestly this how my mind thinks and I’m just trying to make it make sense when I physically type it. What I’m asking is , Is there anywhere on the forum that I can use a current up to date drafted copy of a skeleton argument Making sure I include information that’s relevant to me and my case and the current law. I know no one is allowed to give legal advice. I’m just looking for information that may be of use. If there isn’t a current drafted copy of such argument. Is it possible if someone , anyone could help me which such argument? meaning how do I put into context, short simple professional which makes sense. I don’t want the judge to read my skeleton argument and go, We’ll she’s obviously mentally derail & needs section and just says no. I’m not sure if I’m making any sense, I hope I am. I would really appreciate any information from anyone. Thanks

marcidevpal · Post by **marcidevpal** » Sat Dec 24, 2022 12:16 pm

Wishfulgirl wrote: ↑
Sat Dec 24, 2022 10:54 am
Hi, thanks for your response. I did send the email to the courts with the relevant information, I don’t remember copying Home Office into that email though. That’s probably because I wasn’t sure what I was doing. Thank you for your suggestion on the grounds for the skeleton argument. However I have checked the board and can’t see a recent drafted copy I could use to include my grounds. Also, On an earlier page you stated not to copy and paste the skeleton argument. I don’t know how to draft a skeleton argument let alone pinpoint my grounds legally and professionally. I was looking for a drafted copy of an already published skeleton argument here, obviously redacting information that doesn’t suit my case and including my argument as I see fit to my case. I don’t know how to do this, Is there an updated skeleton argument relevant to the Zambrano case which is similar to that of snooky’s previous skeleton argument I could use now. I have checked the board but I haven’t seen one. I’m not sure if I missed it. If I have, Can someone pinpoint what page number on the board I can find this please. As I suffer with anxiety and ocd. I have now lost the ability to remain focus after that email yesterday & I’m dreading the worst. I can indeed email the courts and asked for a 2 weeks extension to provide the information. I just want to make sure I can provide the information when the time comes. They are asking for a skeleton argument, Am I right in thinking they are just looking for me to explain what grounds and why I believe the decision to reject my application was wrong? Is there anyway I can word this to make it seem like I know what I’m saying to a judge? I know I am going over and over again but honestly this how my mind thinks and I’m just trying to make it make sense when I physically type it. What I’m asking is , Is there anywhere on the forum that I can use a current up to date drafted copy of a skeleton argument Making sure I include information that’s relevant to me and my case and the current law. I know no one is allowed to give legal advice. I’m just looking for information that may be of use. If there isn’t a current drafted copy of such argument. Is it possible if someone , anyone could help me which such argument? meaning how do I put into context, short simple professional which makes sense. I don’t want the judge to read my skeleton argument and go, We’ll she’s obviously mentally derail & needs section and just says no. I’m not sure if I’m making any sense, I hope I am. I would really appreciate any information from anyone. Thanks

The below is what I meant when I said I already created a template of a skeleton argument. I was referring to the structure only. Not the structure + the arguments.

When I said you shouldn't copy and paste an argument, I was saying you can not copy and paste someone's arguments in relation to their grounds to satisfy your own grounds.

Every Zambrano carer has to look at ground 1 (the WA) and ground 2 (the Immigration Rules) and ask themselves if they can create an argument around either of those two grounds that is specific to their immigration history. They should also ask themselves if they should add a third ground for human rights. If they do add a further ground for human rights, they need to create arguments that are specific to their personal immigration history.

The only things you can copy and paste are the structure of a skeleton argument and perhaps point "B" which is the Respondent's Case, and that is only because the Home Office refusal letters were copy and paste. You can also copy the case law to support your arguments.

Again, you should think carefully about copying and pasting arguments without first understanding how your particular situation relates to the grounds.

marcidevpal wrote: ↑
Fri Dec 23, 2022 8:28 pm

IN THE FIRST-TIER TRIBUNAL (IMMIGRATION & ASYLUM CHAMBER)

BETWEEN:

EA/XXXXX/202X

JANE DOE

Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

--------------------------------------------------------------

APPELLANT’S SKELETON ARGUMENT “ASA”

--------------------------------------------------------------
This skeleton argument relates to the appellant’s appeal against the respondent’s refusal of an application under the European Union Settlement Scheme (Appendix EU) dated DD MM YYYY.

In this ASA, references will be made to “RL” which is the refusal letter, “WS” are the appellant’s witness statements, “AB” is the appellant’s bundle, and the “RB” refers to the respondent’s bundle.

[A] CASE SUMMARY

[] RESPONDENT'S CASE

[C] ISSUES TO BE DETERMINED

[D] LEGAL FRAMEWORK

[E] SUBMISSIONS

ESSENTIAL READING

The court is invited to allow the appeal.
DD MONTH 202X

marcidevpal · Post by **marcidevpal** » Sat Dec 24, 2022 12:32 pm

[A] CASE SUMMARY

When were you born? What country are you a citizen of? When was your child born? What was your immigration status when you entered the country? What was you immigration status at the time you gave birth? Has you child's father been in their life? Is the father in the UK? When did you file your applications? When were you refused? When did you file appeals? What was the outcome of the appeals?

[] RESPONDENT'S CASE

What does your refusal letter say are the reasons for refusal? List their reasons briefly! Perhaps give two or three reasons they gave in your refusal letter.

[C] ISSUES TO BE DETERMINED

Here is where you start to make your case, see examples of questions you want the judge to consider. If the judge answers the questions with a 'yes', then you would hopefully be successful in your appeal

Whether the appellant is protected by the Withdrawal Agreement?

Whether the respondent violated the appellant's human rights?

[D] LEGAL FRAMEWORK

What does the Withdrawal Agreement say? What does the Human Rights Act say? What does the European Convention on Human Rights say? What about Appendix EU? And the EEA Regulations? (this is copy and paste)

[E] SUBMISSIONS

Issue 1: Whether the appellant is covered by the Withdrawal Agreement

reason 1

reason 2

reason 3

reason 4

reason 5

Issue 2: Whether the respondent's refusal violates the appellants human rights

reason 1

reason 2

reason 3

reason 4

ESSENTIAL READING

Appellants Skeleton argument dated DD/MM/YYYY

Respondent's refusal letter dated DD/MM/YYYY

Witness statement dated DD/MM/YYYY

The court is invited to allow the appeal.
DD MONTH 202X
[/quote]

marcidevpal · Post by **marcidevpal** » Sat Dec 24, 2022 12:39 pm

Wishfulgirl wrote: ↑
Sat Dec 24, 2022 10:54 am

If you did not send your documents to the Home Office then you are in non-compliance. Either party must serve the other party, or the case could be dismissed. The best thing to do is, when you send your documents to the Court by email, copy in the Home Office. That way the Court can see that you served the other side in a timely manner.

Wishfulgirl · Post by **Wishfulgirl** » Sat Dec 24, 2022 6:55 pm

marcidevpal wrote: ↑
Sat Dec 24, 2022 12:39 pm

Wishfulgirl wrote: ↑
Sat Dec 24, 2022 10:54 am
If you did not send your documents to the Home Office then you are in non-compliance. Either party must serve the other party, or the case could be dismissed. The best thing to do is, when you send your documents to the Court by email, copy in the Home Office. That way the Court can see that you served the other side in a timely manner.

Thank for this information. It now makes sense why I was sent the email of non compliance yesterday. This would be because home office didn’t received my bundle. Thank goodness, now I can at least worry a little less knowing this information.

Just for confirmation, I will use the drafted copy of the skeleton argument using my circumstances & probably include case laws. I’ll then send a copy to the Courts & the Home Office & this should be sufficient ?

Do you know if by receiving the Non compliance email yesterday, it means there’s a possibility the courts will look at the appeal soon & make a decision? This is because reason number 4 given by them quoted: “ In any event, the hearing of this appeal will take place on the first available date after 14 days from the date of issue of these Directions. This will be a final hearing not a Pre- Hearing Review or a Case Management Review.“

I’m not sure if I understand fully what that means.

marcidevpal · Post by **marcidevpal** » Sat Dec 24, 2022 8:01 pm

Wishfulgirl wrote: ↑
Sat Dec 24, 2022 6:55 pm

Regarding non-compliance, I am just assuming it is because you did not send your bundle to the Home Office. You may want to read the letter again to make sure it isn't for something else. It sounds like they are not happy that you did not send your bundle to the Home Office, but it is a relatively common mistake by litigants in person.

I don't think you should just do a skeleton argument. I think you should also do a witness statement. Remember, you are asking for permanent residence....not just a visa...so the standards are a bit higher.

Suggestion for the ASA:
1.) Copy the entire ASA form. It starts with In the Immigration Chamber....
2.) Paste the form into a Word document (or similar).
3.) A numbered paragraphs to each of the sections, [A], B, [C], [D], etc
4.) The paragraphs represent legal arguments that are specific to your circumstances and based on the legal frameworks.
5.) When you are finished, add the document to your bundle. Email your bundle to the Court and copy in the Home Office in your email

Suggestion for your witness statement:
1.) Explain your circumstances, your immigration history, how the delay has affected your family life.
2.) If you decide to appeal to the European Court of Human Rights, they will look closely at your witness statement. This court makes decisions one person at a time. They have to feel that you deserve permanent residence. They want to feel like they understand who you are, because they are basically telling the UK to let you stay in their country. The European Court of Human Rights will balance your desire to stay against the UK society's desire to control immigration and have a safe society.
3.) If you decide to appeal to the European Court of Justice (CJEU), they will want to understand who you are as well. Unlike the European Court of Human Rights, the decision the CJEU makes will affect many UK based Zambrano carers. Your witness statement will be important. I don't think they are aware that UK Zambrano carers do not have permanent residence. Your situation is unique. You may want to also argue that you are the family member of an EEA national. You should talk about your time as an EEA national in your witness statement.

My understanding is that after you send your documents, the admin clerks will get everything together and send your case to a judge. It will sit on the judge's desk until they decide they want to deal with it. It could happen immediately. It could take weeks or months. It all depends on the judge. The judge may want to consider many paper applications at the same time, so the judge may delay looking at your claim until more are received.

marcidevpal · Post by **marcidevpal** » Sat Dec 24, 2022 8:21 pm

Withdrawal Agreement

If you feel you are protected by the Withdrawal Agreement, it is important to understand and use the Articles in your appeal. Below are some articles you may want to understand and say to the judge

Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community

19 October 2019

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

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

1. The provisions of this Agreement and the provisions of Union law made applicable by this Agreement shall produce in respect of and in the United Kingdom the same legal effects as those which they produce within the Union and its Member States.
Accordingly, legal or natural persons shall in particular be able to rely directly on the provisions contained or referred to in this Agreement which meet the conditions for direct effect under Union law.
2. The United Kingdom shall ensure compliance with paragraph 1, including as regards the required powers of its judicial and administrative authorities to disapply inconsistent or incompatible domestic provisions, through domestic primary legislation
5. In the interpretation and application of this Agreement, the United Kingdom's judicial and administrative authorities shall have due regard to relevant case law of the Court of Justice of the European Union handed down after the end of the transition period.

ARTICLE 9 Definitions

a) "family members" means the following persons, irrespective of their nationality, who fall within the personal scope provided for in Article 10 of this Agreement:
(i) family members of Union citizens or family members of United Kingdom nationals as defined in point (2) of Article 2 of Directive 2004/38/EC of the European Parliament and of the Council1;
(ii) persons other than those defined in Article 3(2) of Directive 2004/38/EC whose presence is required by Union citizens or United Kingdom nationals in order not to deprive those Union citizens or United Kingdom nationals of a right of residence granted by this Part;

ARTICLE 10 Personal scope

1. Without prejudice to Title III, this Part shall apply to the following persons:
(e) family members of the persons referred to in points (a) to (d), provided that they fulfil one of the following conditions:
(i) they resided in the host State in accordance with Union law before the end of the transition period and continue to reside there thereafter;
(f) family members who resided in the host State in accordance with Articles 12 and 13,
Article 16(2) and Articles 17 and 18 of Directive 2004/38/EC before the end of the transition period and continue to reside there thereafter.

2. Persons falling under points (a) and (b) of Article 3(2) of Directive 2004/38/EC whose residence was facilitated by the host State in accordance with its national legislation before the end of the transition period in accordance with Article 3(2) of that Directive shall retain their right of residence in the host State in accordance with this Part, provided that they continue to reside in the host State thereafter.

3. Paragraph 2 shall also apply to persons falling under points (a) and (b) of Article 3(2) of Directive 2004/38/EC who have applied for facilitation of entry and residence before the end of the transition period, and whose residence is being facilitated by the host State in accordance with its national legislation thereafter.

5. In the cases referred to in paragraphs 3 and 4, the host State shall undertake an extensive examination of the personal circumstances of the persons concerned and shall justify any denial of entry or residence to such persons.

ARTICLE 11 Continuity of residence

The right of permanent residence acquired under Directive 2004/38/EC before the end of the transition period shall not be treated as lost through absence from the host State for a period specified in Article 15(3).

ARTICLE 13 Residence rights

3. Family members who are neither Union citizens nor United Kingdom nationals shall have the right to reside in the host State under Article 21 TFEU and as set out in Article 6(2), Article 7(2), Article 12(2) or (3), Article 13(2), Article 14, Article 16(2), Article 17(3) or (4) or Article 18 of Directive 2004/38/EC, subject to the limitations and conditions set out in those provisions.
4. The host State may not impose any limitations or conditions for obtaining, retaining or losing residence rights on the persons referred to in paragraphs 1, 2 and 3, other than those provided for in this Title. There shall be no discretion in applying the limitations and conditions provided for in this Title, other than in favour of the person concerned.

ARTICLE 15 Right of permanent residence

1. Union citizens and United Kingdom nationals, and their respective family members, who have resided legally in the host State in accordance with Union law for a continuous period of
5 years or for the period specified in Article 17 of Directive 2004/38/EC, shall have the right to reside permanently in the host State under the conditions set out in Articles 16, 17 and 18 of Directive 2004/38/EC. Periods of legal residence or work in accordance with Union law before and after the end of the transition period shall be included in the calculation of the qualifying period necessary for acquisition of the right of permanent residence.

3. Once acquired, the right of permanent residence shall be lost only through absence from the host State for a period exceeding 5 consecutive years.

ARTICLE 17 Status and changes

1. The right of Union citizens and United Kingdom nationals, and their respective family members, to rely directly on this Part shall not be affected when they change status, for example between student, worker, self-employed person and economically inactive person. Persons who, at the end of the transition period, enjoy a right of residence in their capacity as family members of Union citizens or United Kingdom nationals, cannot become persons referred to in points (a) to (d) of Article 10(1).

ARTICLE 18 Issuance of residence documents

1. The host State may require Union citizens or United Kingdom nationals, their respective family members and other persons, who reside in its territory in accordance with the conditions set out in this Title, to apply for a new residence status which confers the rights under this Title and a document evidencing such status which may be in a digital form.
Applying for such a residence status shall be subject to the following conditions:
(d) where the deadline for submitting the application referred to in point (b) is not respected by the persons concerned, the competent authorities shall assess all the circumstances and reasons for not respecting the deadline and shall allow those persons to submit an application within a reasonable further period of time if there are reasonable grounds for the failure to respect the deadline;

ARTICLE 18 Issuance of residence documents

1. The host State may require Union citizens or United Kingdom nationals, their respective family members and other persons, who reside in its territory in accordance with the conditions set out in this Title, to apply for a new residence status which confers the rights under this Title and a document evidencing such status which may be in a digital form.
Applying for such a residence status shall be subject to the following conditions:
(o) the competent authorities of the host State shall help the applicants to prove their eligibility and to avoid any errors or omissions in their applications; they shall give the applicants the opportunity to furnish supplementary evidence and to correct any deficiencies, errors or omissions;
(r) the applicant shall have access to judicial and, where appropriate, administrative redress procedures in the host State against any decision refusing to grant the residence status. The redress procedures shall allow for an examination of the legality of the decision, as well as of the facts and circumstances on which the proposed decision is based. Such redress procedures shall ensure that the decision is not disproportionate.

marcidevpal · Post by **marcidevpal** » Sat Dec 24, 2022 8:23 pm

Wishfulgirl wrote: ↑
Sat Dec 24, 2022 6:55 pm

As you only have two weeks (unless they give you an extension, you may want to start reading some Articles in the Withdrawal Agreement. You can use the Article to make your point.

marcidevpal · Post by **marcidevpal** » Sun Dec 25, 2022 10:41 am

Bad Statutory Instruments (SI)

How Zambrano carers ended up being denied permanent residence:

The EEA regulations are a statutory instrument with a provision that the CJEU has said is unlawful. Provision 15 stops derivative card holders from getting permanent residence after 5 years. EU law does not support that denial of residence. Therefore, the statutory instrument is bad.

1.)Government created documents, called statutory instruments (SI). SI's impose systemic unfairness on a marginalized or vulnerable group of people - Zambrano carers. These SI's have unlawful provisions and presumptions that are incompatible with EU Law or the Human Rights Act or the ECHR.

2.) Serious executive/administrative action happened due to the bad SI. For Zambrano carers, it is the ongoing mass denial of permanent residence or access to benefits. Immigration detention is another example (mostly for other groups such as asylum seekers).

In a perfect world, bad statutory instruments would be struck down. The media would bring attention to the fact that the EEA Regulations denied Zambrano carers residence for years. We should see public law to correct the error and private claims against the Home Office. That seems unlikely to happen, so Zambrano carers are going to have to go to either the European Court of Human Rights or the European Court of Justice to get residence, or continue under the UK's Immigration Rules.

Statutory instruments that relate to Zambrano carers are the European Union (Withdrawal Agreement) Act 2020 and the The Immigration (European Economic Area) Regulations 2016

https://www.legislation.gov.uk/ukpga/20 ... ts/enacted
https://www.legislation.gov.uk/uksi/2016/1052

marcidevpal · Post by **marcidevpal** » Tue Dec 27, 2022 12:09 pm

SSHD v Bharaj

https://tribunalsdecisions.service.gov. ... 14387-2021

Representation:
For the Appellant: Ms Z. Young, a Senior Home Office Presenting Officer.
For the Respondent: Mr G Brown, instructed by Norton Folgate Solicitors LLP.

Mr Brahaj sought permission to appeal on two grounds under the Immigration (Citizens Rights Appeals) (EU Exit) Regulations 2020, the decision was not in accordance with the Withdrawal Agreement and/or not in accordance with Appendix EU.

The FtT Judge found that
- Mr Brahaj is the durable partner of an EEA citizen
- Mr Brahaj was a family member of an EEA citizen and that as eligibility under condition 1 was the only issue raised in the appeal, allowed the appeal pursuant to regulation 8(3) of the 2020 Regulations.
- the fact they had decided to marry was enough.
- the ‘durable partner’ definition in Appendix 1 of Appendix EU and the provision at (b) (ii) for scenarios where a durable partner, spouse or civil partner may not be in possession of a relevant document.
-Mr Brahaj should not have been denied residence in the UK without an extensive examination of his personal circumstances and that Article 18(1)(o) applied in the appellant’s case.

Points against Mr Brahaj:
- they had not lived together for two years
- he did not hold the relevant documentary evidence - a family permit/residence card to show that he was in a durable relationship

QUOTES

27. A lot of the difficulty in this area is that identified by the Judge based upon the complexity and poor drafting of the provisions of the rules and guidance. In Ferrer (limited appeal grounds; Alvi) [2012] UKUT 00304(IAC) the Tribunal held, inter alia, applying Philipson (ILR – not PBS: evidence) [2012] UKUT 00039 (IAC), that where the provisions in question are ambiguous or obscure, then it is legitimate to interpret the provisions by assuming that Parliament is unlikely to have sanctioned rules which (a) treat a limited class of persons unfairly; and (b) disclose no policy reason for that unfairness.

The Immigration Rules Appendix EU cannot override the agreed legal provisions set out in the Withdrawal Agreement.

28. I find it is also a fair assumption that Parliament would not have sanctioned provision of the Immigration rules or Guidance suggesting a course of action or procedure contrary to the Withdrawal Agreement.

In relation to the guidance, it is merely that, guidance, not a statement of the law, and cannot override the obligations set out in the Withdrawal Agreement.

RELEVANT CASE LAW

In Odelola v SSHD [2008] EWCA Civ 308 the Court of Appeal held that the Immigration Rules were statements of executive policy at any particular time and not rules of law a finding which was essentially confirmed by the House of Lords in Odelola v SSHD [2009] UKHL 25

In Hesham Ali (Iraq) v SSHD [2016] UKSC 60 Lord Reed said that the "Immigration Rules are not law (although they are treated as if they were law for the purposes of section 86(3)(a) of the 2002 Act), but a statement of the Secretary of State’s administrative practice: see Odelola v Secretary of State for the Home Department [2009] UKHL 25...They do not therefore possess the same degree of democratic legitimacy as legislation made by Parliament: Huang v Secretary of State for the Home Department [2007] UKHL 11; [2007] 2 AC 167, para 17.

In Ferrer (limited appeal grounds; Alvi) [2012] UKUT 00304(IAC) the Tribunal held, inter alia, applying Philipson (ILR – not PBS: evidence) [2012] UKUT 00039 (IAC), that where the provisions in question are ambiguous or obscure, then it is legitimate to interpret the provisions by assuming that Parliament is unlikely to have sanctioned rules which (a) treat a limited class of persons unfairly; and (b) disclose no policy reason for that unfairness.

Wishfulgirl · Post by **Wishfulgirl** » Wed Dec 28, 2022 10:35 am

marcidevpal wrote: ↑
Sat Dec 24, 2022 8:23 pm

Wishfulgirl wrote: ↑
Sat Dec 24, 2022 6:55 pm

As you only have two weeks (unless they give you an extension, you may want to start reading some Articles in the Withdrawal Agreement. You can use the Article to make your point.

Hi, Thank you again for your response, I took some time away to gather what I need put into context. And tbh I wasn’t coping mentally. I am a bit better now. I was wondering do you know if using this quote
Underhill LJ Judge “ 55. Zambrano rights are for that reason exceptional. They are not typical Treaty rights, since they arise only indirectly and contingently in order to prevent a situation where EU citizen dependants are compelled to leave the EU. That being so, it makes sense to treat them as arising only in circumstances where the carer has no domestic (or other EU) right to reside (or to
work, or to receive necessary social assistance).” Is something I could put in my argument sighting at the time of decision my Limited leave to remain expired? Or I am unable to use this?

I have copied the information in word document as you’ve stated and I’ve written my circumstances. However I am stuck at the section where I quote legal arguments/ case laws which are relevant to Zambrano and my case in particular. Can I use the ones you’ve suggested above? Also does anyone know how I can make sure home office receives a copy of this bundle this time around? I haven’t got their email. Is it the same email as the Administrative Review? Or will I have to post it to them? Thanks

marcidevpal · Post by **marcidevpal** » Wed Dec 28, 2022 11:09 am

SENDING BUNDLES

As per the Judge's order, the Home Office is supposed to provide you with the correct email address and you are supposed to provide them with the correct email address. If the Home Office has not provided you with their email address, you should email the court and let them know you have not received the email address. The Court will then provide you with the email address or they will order the Home Office to give it to you.

The Home Office accepts service via email, so as long as you have proof that you emailed them the bundle, that is enough. That is why I said you should send your bundle to the Home Office and to the Court at the same time.

marcidevpal · Post by **marcidevpal** » Wed Dec 28, 2022 11:13 am

HOW TO CHOOSE THE BEST QUOTES

First, choose quotes after you decide your strategy.

1.) Decide what issues you want the judge to determine
2.) Decide on what ground(s) you want to challenge the refusal - the Withdrawal Agreement, the Immigration Rules (Appendix EU), the Human Rights Act / ECHR, etc
3.) Within the ground you choose, explain how the Home Office violated the rules.

Then, choose quotes that support what you explained in steps 1 to 3.

marcidevpal · Post by **marcidevpal** » Wed Dec 28, 2022 11:39 am

EXAMPLE USE ONLY

[A] CASE SUMMARY
1. Ms Jones ("the appellant") is a citizen of COUNTRY born on 1 January 1985. The appellant entered the UK on a 3 month visitor's visa on 1 January 2013, met the child's father shortly thereafter and gave birth to her daughter on 1 January 2014. The child's father does not live in the UK and sees the child during the holidays.

2. The appellant's grandmother, who is an EEA national, sponsored her for a residence card under the EU regulations in January 2014. She achieved five years residence under this route.

3. The appellant applied for a derivative residence card in February 2014. She was refused in May 2014. She appealed to the First-tier Tribunal and was successful in September 2014. The respondent issued the appellant a five year derivative residence card in October 2014. She achieved five years residence under this status.

4. The appellant applied for leave to remain under Appendix FM in January 2019 and was issued a visa for 2.5 years on the 10 year route. The appellant applied for settlement under Appendix EU in January 2020 and was subsequently refused.

[] RESPONDENT'S CASE
1. The respondent's decision letter provides three reasons for her refusal. The respondent concluded the appellant is not 'a person with a Zambrano right to reside' based on the definition in Annex 1 of Appendix EU. According to Annex 1, 'a person with a Zambrano right to reside' is [add definition]. The respondent is aware the appellant had leave to remain under Appendix FM at the time of her application.

[C] ISSUES TO BE DETERMINED
1. Whether the appellant is protected by the Withdrawal Agreement?
2. Whether the respondent violated the appellant's human rights?

[D] LEGAL FRAMEWORK
1. Withdrawal Agreement
[copy and paste relevant paragraphs from the WA]

2. The EEA Regulations
[copy and paste relevant paragraphs from the EEA Regulations]

3. The Human Rights Act
[copy and paste relevant paragraphs from the HRA]

4. The European Convention on the Protection of Human Rights
[copy and paste relevant paragraphs from the ECHR]

5. Appendix EU
[copy and paste relevant paragraphs from Appendix EU]

[E] SUBMISSIONS

Issue 1: Whether the appellant is covered by the Withdrawal Agreement("WA")
1. The appellant contends she is covered by the WA by virtue of her status as the family member of an EEA national and due to the fact she qualified for permanent residence prior to 31 December 2020.

2. In [NAME OF 1ST PERSON V SSHD],

3. In [NAME OF 2ND PERSON V SSHD],

4. In [NAME OF 3RD PERSON V SSHD],

5. In [NAME OF 4TH PERSON 4 V SSHD],

Issue 2: Whether the respondent's refusal violates the appellants human rights
1. The appellant contends the respondent's refusal to grant her permanent residence violates her human rights under the Human Rights Act and the European Convention on Human Rights.

2. In [ECtHR CASE 1],

3. In [ECtHR CASE 2],

4. In [ECtHR CASE 3],

5. In [ECtHR CASE 4],

6. In [HRA CASE 1],

CONCLUSION

(Summarise all of the points above in a few sentences).

ESSENTIAL READING

Appellants skeleton argument dated DD/MM/YYYY

Respondent's refusal letter dated DD/MM/YYYY

Appellant's witness statement dated DD/MM/YYYY

The court is invited to allow the appeal.

01 January 2023

marcidevpal · Post by **marcidevpal** » Wed Dec 28, 2022 11:48 am

Wishfulgirl wrote: ↑
Wed Dec 28, 2022 10:35 am

I think you should fill out the skeleton argument. It is difficult for people to help you based on just a quote. Whether or not something is relevant, depends on your overall strategy. A quote is used to support an argument you make. A quote is not good on its own. Any argument you make will be specific to you. So the quotes you choose should specifically help you as you make your argument.

I also get the impression you believe you are no longer the family member of an EEA national. I am not sure if that is true. You may want to "contend" or "assert" that you remain the family member of an EEA national and let the Home Office prove you are not. If you are the family member of an EEA national, you are definitely covered by the Withdrawal Agreement. Zambrano carers do not automatically have that option.

Perhaps consider contending:
1.) You are the family member of an EEA national who achieved five years residence and so is entitled to residence under Appendix EU
2.) You are a Zambrano carer who achieved five years residence and based on E.K.'s case, are entitled to residence

marcidevpal · Post by **marcidevpal** » Wed Dec 28, 2022 12:54 pm

Article 8 Human Rights

The Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 is a statutory instrument (SI).

https://www.legislation.gov.uk/uksi/202 ... tents/made

This statutory instrument says that the First-tier Tribunal and Upper Tribunal cannot consider Article 8 Human Rights grounds as part of the appeal process, even if you raise a human rights claim as part of your appeal.

This statutory instrument is an example of a "Bad SI", in my opinion. Statutory instruments have been proven to be unlawful. The only way I know to challenge a bad statutory instrument is via judicial review. If you win, you can claim damages and/or compensation.

Why is this statutory instrument "bad" in my opinion? The UK is a founding member of the Council of Europe. The Council of Europe created the European Court of Human Rights and the European Convention on the Protection of Human Rights. By being a member, the UK Courts agree to take into account any relevant jurisprudence in all of its cases.

What that means is, if you can find a case that was decided in the European Court of Human Rights that relates to your situation, and you tell the UK judges about that case, and you raise Article 8 as a ground, then the UK judges are supposed to consider your human rights. Basically, they are supposed to consider society's best interests against your best interests.

I suspect that for the majority of Zambrano carers, it is in society's best interests for you to be given permanent residence. Most Zambrano carers do not have criminal records and are good parents. Even those who do have criminal records, the crimes committed did not result in harsh sentences and they can show that they do not pose a threat to society. That is probably why the statutory instrument tries to stop UK judges from considering the Article 8 human rights as a ground.

What if the judge refuses to take into account your human rights?. It is the judge's decision, ultimately. All you can do is accept it, or appeal to the European Court of Human Rights. If you do appeal to the ECtHR, they will do the balancing exercise, since the UK judge did not do it. They will want to see what documents you gave the judge. They will look closely at your witness statement and your skeleton argument.

So, make sure you "raise" article 8 in your skeleton argument. Make sure you list cases from the European Court of Human Rights that relate to residence card refusals. You can see examples of ECtHR cases on the previous pages of this forum's thread.

marcidevpal · Post by **marcidevpal** » Wed Dec 28, 2022 2:19 pm

The Nationality, Immigration and Asylum Act 2002

https://www.legislation.gov.uk/ukpga/2002/41/section/84

If you ask the judge to consider your Article 8 human rights, the Home Office may tell the judge they do not give their consent. The judge may then refuse to consider your human rights.

The Home Office may argue that

A new matter on Article 8 grounds was raised under s.85 Nationality, Immigration and Asylum Act 2002

What that means, generally speaking

Section 85 says Section 82(1) the judges who decide appeals cannot consider your human rights unless the Home Office consents.

Section 82(1)(b) says you can appeal if the Home Office refuses a human rights claim.

82(1)(a) relates to asylum seekers. 82(1)(c) relates to people who have had their immigration status cancelled.

Here's the thing:

You didn't file a human rights claim. You filed a residence claim under the EU Settlement Scheme (Appendix EU). If you had actually filed a human rights claim, the Home Office would have had to have considered your human rights as part of your application. The Home Office would have to explain why society's best interests are more important than your individual circumstances. Some people call this process a 'balancing exercise'. None of that is occurring, as far as I can tell. No balancing exercise happened.

In my opinion, the Home Office undermines the UK's commitment to uphold human rights by telling applicants they have to "seek permission" to have their human rights considered by the First-tier Tribunal judge. They also undermine the ECHR by refusing to conduct a human rights assessment.

It is dangerous to deny people their basic human rights.

marcidevpal · Post by **marcidevpal** » Wed Dec 28, 2022 2:56 pm

CELIK v SSHD

https://tribunalsdecisions.service.gov. ... ukut-00220

The President of the Upper Tribunal says

92. The first question is to decide whether the First-tier Tribunal has jurisdiction, in an appeal of this kind, to consider human rights. The question arises because decision-making under residence scheme immigration rules (Appendix EU) does not involve a consideration of the applicant’s (or any other person’s) rights under Article 8 of the ECHR.

The President also says he can not consider human rights without consent from the Home Office, based on Section 85 of the Nationality, Immigration and Asylum Act 2002.

The Nationality, Immigration and Asylum Act 2002 is only relevant for human rights applications.

Do you see the problem here? The President applies the rules of the Nationality Act to EU Settlement Scheme applications. Nationality Act applications are human rights applications. EU Settlement Scheme applications are not human rights applications. Therefore, you can't apply Nationality Act rules to EU Settlement Scheme appeals.

Again, the Nationality Act relates to human rights applications and the President of the Upper Tribunal has literally admitted the EU settlement scheme applications are not human rights applications.

UNBELIEVABLE. Celik v SSHD is illogical, erroneous and should not be used as a tool to deny EUSS applicants residence. Where are the UK's immigration barristers and solicitors?????

MORE QUOTES

96. Given what we have said about the nature of the respondent’s decision-making under Appendix EU, the raising of a human rights claim will always be a” new matter”, except where, for some reason, the respondent has already considered it.

97. Since the respondent had not consented, the First-tier Tribunal Judge was prevented by regulation 9(5) from considering any Article 8 argument.

marcidevpal · Post by **marcidevpal** » Wed Dec 28, 2022 3:12 pm

On "Appeals of THIS KIND"

Before

THE HON. MR JUSTICE LANE, PRESIDENT
UPPER TRIBUNAL JUDGE HANSON
UPPER TRIBUNAL JUDGE MCWILLIAM

92. The first question is to decide whether the First-tier Tribunal has jurisdiction, in an appeal of this kind, to consider human rights. The question arises because decision-making under residence scheme immigration rules (Appendix EU) does not involve a consideration of the applicant’s (or any other person’s) rights under Article 8 of the ECHR.

The Hon Mr Justice Lane says that only certain types of appeals can consider human rights. He does not define which appeals qualify by reference to the appropriate regulations. The appropriate documents are the Human Rights Act, the European Convention for the Protection of Human Rights, and others. The appropriate reference document IS NOT a statutory instrument. Statutory instruments contain unlawful provisions far too often.

The UK's Human Rights Act says it is unlawful for a tribunal to fail to protect human rights. The only exception is for primary legislation. The EUSS appeals do not relate to primary legislation. They relate to statutory instruments. Statutory instruments are "secondary" legislation. Therefore, the Hon. Mr Justice Lane and his fellow judges cannot ignore human rights simply because a statutory instrument instructs him to ignore those rights. The Human Rights Act is supposed to make it easier for people to exercise their human rights, without having to go to the European Court of Human Rights. In the case of Zambrano carers, this Act is failing, in my opinion.

The European Convention for the Protection of Human Rights says its members must take into account jurisprudence (case law) from the European Court of Human Rights where relevant.

The Hon. Mr Justice Lane should not tell people their right to invoke their human rights is based on a statutory instrument. He should tell people their rights stem from the Human Rights Act and the European Convention on the Protection of Human Rights. If he wants to add in a statutory instrument that is aligned to what the other two documents say, that is fine. But to act as if a "statutory instrument" holds more weight than the ECHR or the HRA is, quite frankly, appalling.

If you look at the Upper Tribunal decisions, you see tens of cases of people being refused. The judges are relying on Celik. What a tragedy.

marcidevpal · Post by **marcidevpal** » Wed Dec 28, 2022 3:51 pm

JUDICIAL REVIEW - Statutory Instruments - EEA Regulations 2016

https://www.legislation.gov.uk/uksi/201 ... ulation/15

If you are harmed by rules that are unlawful, perhaps the best way to get justice is to file a judicial review. The 2016 EEA Regulations are an example of legislation that contains unlawful sections.

Provision 15(2) of the 2016 EEA Regulations says:

(2) Residence in the United Kingdom as a result of a derivative right to reside does not constitute residence for the purpose of this regulation.

In the September 2022 case of Ms E.K. versus the Netherlands, the President, Vice-President, and other Judges of the European Court of Justice (CJEU) said that to deny Zambrano carers permanent residence after five years is unlawful. Moreover, Zambrano carers should have been considered 'habitually resident'.

Therefore, if you became a Zambrano carer before 31 December 2015, and remained a Zambrano carer, you should have probably been granted permanent residence before the Withdrawal date of 31 December 2020.

Moreover, as someone who was 'habitually resident', you should have been granted access to benefits in the same way other EEA family members had access, in my opinion.

Wishfulgirl · Post by **Wishfulgirl** » Wed Dec 28, 2022 7:08 pm

marcidevpal wrote: ↑
Wed Dec 28, 2022 11:48 am

Wishfulgirl wrote: ↑
Wed Dec 28, 2022 10:35 am

I think you should fill out the skeleton argument. It is difficult for people to help you based on just a quote. Whether or not something is relevant, depends on your overall strategy. A quote is used to support an argument you make. A quote is not good on its own. Any argument you make will be specific to you. So the quotes you choose should specifically help you as you make your argument.

I also get the impression you believe you are no longer the family member of an EEA national. I am not sure if that is true. You may want to "contend" or "assert" that you remain the family member of an EEA national and let the Home Office prove you are not. If you are the family member of an EEA national, you are definitely covered by the Withdrawal Agreement. Zambrano carers do not automatically have that option.

Perhaps consider contending:
1.) You are the family member of an EEA national who achieved five years residence and so is entitled to residence under Appendix EU
2.) You are a Zambrano carer who achieved five years residence and based on E.K.'s case, are entitled to residence

Thank you for this. What I was intending to ask was could I include a section of this argument within my skeleton argument. highlighting the quote from Judge Underhill, due to the fact I no longer hold further leave to remain as it’s expired in April 2022. And at the time of the decision no consideration was given to how this would impact the British children. You are right when you’ve stated I may have a right of retain residence as the family member of an EEA national. However, I may find it hard evidencing this has the EEA national have died in 2015 & other than a death certificate, I hold no further information which home office will require.

So far I have written my history, how I’ve entered the uk, my children being born British, my current immigration status, my housing, my responsibilities to my children, their relationship to their dad ( Non existent) due to us fleeing from dv. The fact that I held EEA family permit for 5 years,
My mental health, how the decision has impacted us. How can I word it professionally that I held EEA family permit for 5 years and I should by law receive settlement under this route or Zambrano route and any decision to strip me of such right is unlawful? I also included in the argument that no consideration was given to the impact a refusal of my Zambrano application would have on my British children. I know I may be going in circles here with just a few things. I feel I have wrote and rewritten it so many times but it still doesn’t sound or look professional. Just looks like I’m accusing the home office. And I don’t want to do that, I am trying my best to not make my mental health be a factor in why things are written and worded a certain way if you get what I mean.

marcidevpal · Post by **marcidevpal** » Wed Dec 28, 2022 7:33 pm

Akinsaya - Court of Appeal

The court of appeal said that the EEA Regulations say that a Zambrano carer who was then granted leave to remain under Appendix FM, is still a Zambrano carer under the EEA Regulations.

The Home Office created their own definition of a Zambrano carer in Annex 1 of Appendix EU of the EU Settlement Scheme.

The definition of a Zambrano carer under the EEA Regulations doesn't matter in the same way anymore because the UK left the EU. The definition that matters is the definition in Annex 1 of Appendix EU.

The definition in Annex 1 of Appendix EU says that if you had leave to remain under Appendix FM, that you are NOT eligible.

The Court of Appeal does not tell the Home Office how to define a Zambrano carer under Annex 1 of Appendix EU. The Court of Appeal says, if you use the definition of a Zambrano carer as per the EEA Regulations, then Ms Akinsaya should get permanent residence.

In June 2020, the Home Office said they do not want to use the EEA Regulations to define a Zambrano carer. They wanted to create their own definition.

One of the available grounds of appeal is to say that their decision is 'not in accordance with' the Immigration Rules (Appendix EU). Their decision is in accordance with the Immigration Rules, because the rules say you can not have leave to remain under Appendix FM.

Wishfulgirl wrote: ↑
Wed Dec 28, 2022 7:08 pm

Does that make sense? It is a really important point you should take time to understand. There are 2 definitions of a Zambrano carer.

marcidevpal · Post by **marcidevpal** » Wed Dec 28, 2022 7:37 pm

Wishfulgirl wrote: ↑
Wed Dec 28, 2022 7:08 pm
How can I word it professionally that I held EEA family permit for 5 years and I should by law receive settlement under this route or Zambrano route and any decision to strip me of such right is unlawful?

It seems you are mixing points that should be in your witness statement with points that should be in you ASA (appellant's skeleton argument).

I can't help you unless you 1.) use the template provided and 2.) put your arguments in the right category within the template.

Wishfulgirl · Post by **Wishfulgirl** » Wed Dec 28, 2022 8:07 pm

marcidevpal wrote: ↑
Wed Dec 28, 2022 7:37 pm

Wishfulgirl wrote: ↑
Wed Dec 28, 2022 7:08 pm
How can I word it professionally that I held EEA family permit for 5 years and I should by law receive settlement under this route or Zambrano route and any decision to strip me of such right is unlawful?
It seems you are mixing points that should be in your witness statement with points that should be in you ASA (appellant's skeleton argument).

I can't help you unless you 1.) use the template provided and 2.) put your arguments in the right category within the template.

Okay understood. I was of the view the witness statement was information provided at the point the appeal was made and the skeleton argument is what will be attached along with the other supporting evidence? Am I wrong with this view? Should I be providing two separate word document ie witness statement & skeleton argument separately. I really feel this appeal is gonna be dismissed because now I am definitely unsure what I am doing. In august I sent the appeal form, the skeleton argument from this forum ( I edited it to suit my circumstances) and within the appeal form, I thought I included my was mean to be my witness statement. So are you saying I done all that wrong? Now they’re asking me to provide a skeleton argument and attached and send everything to the home office? Now I am really confused. I knew I didn’t have much confidence when I originally sent the appeal back in august however now I’m definitely confuse. So to put it right, I should be providing my witnesses statement, skeleton argument, supporting documents, school letters, GP letters, Zambrano refusal letter and anything else? I hope not to seem difficult in my understanding. However I must highlight I struggle to understand complex information sometimes & often require rereading to fully grasp the information. My apologies, but I do really need the help as I am running out of time & would be devastated if the appeal is dismissed because I failed to provide the relevant information to the courts and the home office.

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