marcidevpal wrote: ↑
Thu Jan 05, 2023 1:48 pm
Updated - Skeleton Argument & Human Rights
[A] Case summary
 Respondent's position
[C] Issues to be considered
[D] Legal framework
1. The appellant contends she is entitled to permanent residence under the EUSS as a Zambrano carer.....
2. The appellant also contends human rights should be a statutory ground upon which she can challenge the respondent’s decision. The United Kingdom is a member of the Council of Europe and a Contracting Party to the European Convention on Human Rights. Accordingly, a court or tribunal determining a question which has arisen in connection with a Convention right must take into account any judgment, decision, declaration or advisory opinion of the European Court of Human Rights, whenever made or given, so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen. The issue of her permanent residence is a question which concerns her Convention rights.
a.) The only basis upon which the First Tier Tribunal will currently allow an appeal against a decision refusing status under the EUSS is that the decision breaches a right under the Withdrawal Agreement or is not in accordance with the Immigration Rules. The Withdrawal Agreement stipulates that Union law is applicable to and in the United Kingdom. Union law directly includes international agreements, of which the ECHR is one. The Immigration Rules were deemed unlawful by the President of the Upper Tribunal in December 2022.
b.) The Human Rights Act requires the Court to interpret United Kingdom legislation so far as is possible and, in a manner compatible with Convention rights. The three main concepts relevant to the protection of human rights in the UK are: the presumption that Parliament does not intend to abridge fundamental rights— the principle of legality; the presumption that Parliament does not intend to legislate contrary to the United Kingdom's international obligations, including its obligations under international human rights instruments—the presumption of compatibility, and the statutory duty under section 3 of the Human Rights Act 1998 (HRA 1998) to read legislation in a way which is compatible with rights under the European Convention on Human Rights so far as it is possible to do so. The appellant requests the Court adopt a 'structured approach' to evaluate the possibility of her being successful outside the Rules, apply guidance from the Supreme Court decision in Agyarko v SSHD  UKSC 11 at paragraph 53, consider all the factors relevant under section 117B and strike a fair balance between her individual rights and the public interest.
(i) In Oyoma v SSHD(2020)
, Upper Tribunal Judge Blundell reasoned if the appellant would be bound to be granted leave to remain on private life grounds if she made a further application to the respondent, that fact is plainly relevant to the assessment of proportionality. In this claim, the earliest the appellant could be granted permanent residence were she to follow the respondent's preferred route is in 20XX. Given that she has already resided in the UK for XX years, it is unreasonable to ask her to spend another XX years under a visa regime. Given that the appellant arrived in the UK in 20XX, she would have spent XX years in the UK by the time she became eligible for permanent residence, just XX years less than someone who had entered the UK illegally.
(ii) In Huang v SSHD (2007)
, the Appellate Committee (Lord Bingham of Cornhill, Lord Hoffmann, Baroness Hale of Richmond, Lord Carswell and Lord Brown of Eaton- under-Heywood) reasoned at paragraph 11, "These provisions, read purposively and in context, make it plain that the task of the appellate immigration authority, on an appeal on a Convention ground against a decision of the primary official decision-maker refusing leave to enter or remain in this country, is to decide whether the challenged decision is unlawful as incompatible with a Convention right or compatible and so lawful...It is not a secondary, reviewing, function dependent on establishing that the primary decision-maker misdirected himself or acted irrationally or was guilty of procedural impropriety...The appellate immigration authority must decide for itself whether the impugned decision is lawful and, if not, but only if not, reverse it....This is the decision reached by the Court of Appeal (Judge, Laws and Latham LJJ) in these conjoined appeals, and it is correct:  EWCA Civ 105,  QB 1."
c.) The European Court of Human Rights will expect the Court to conduct a balancing exercise as undertaken in related immigration cases:
(i) In Butt v Norway (2012)
, ECtHR were not convinced the authorities of the respondent State acted within their margin of appreciation when seeking to strike a fair balance between its public interest in ensuring effective immigration control, on the one hand, and the applicants’ interests in remaining in Norway in order to pursue their private and family life, on the other hand. The appellant contends the UK authorities have not acted within their margin or appreciation or balanced the public interest in refusing her application.
(ii) In Nunez v. Norway (2011),
ECtHR examined whether regard to the children’s best interest would upset the fair balance under Article 8. The ruling emphasised children are indirectly protected under the Convention, even if they are not applicants in a case which concerns a parent. They considered relevant the children’s long lasting and close bonds to their mother, the decision in the custody proceedings, the disruption and stress that the children had already experienced and the long period that elapsed before the immigration authorities took to make their decision. The appellant is the only family member her son has in the UK, with whom he is in contact. Although he is an adult, and has some friends, he still requires support from a close family member. Without the presence of his mother in the UK, he will leave the country.
(iii) In Rodrigues Da Silva and Hoogkamer v The Netherlands(2006)
, ECtHR reiterates that in order to meet both their positive and negative obligations, the State must strike a fair balance between the competing interests of the individual and of the community as a whole.
(iv) In Keegan v. the United Kingdom (2006)
, ECtHR says although national authorities enjoy a certain margin of appreciation in matters, an interference with rights guaranteed by Article 8 § 1 of the Convention can be regarded as being “necessary in a democratic society” only if it has been taken in order to respond to a pressing social need and if the means employed are proportionate to the aims pursued. The respondent has not indicated a pressing social need in her refusal.
(v) In Tuquabo-Tekle v. Netherlands(2005)
, the European Court of Human Rights (“ECtHR”) reasoned Article 8 of the Convention imposed on the respondent State a positive obligation to allow the fifth applicant to reside in the Netherlands with the rest of her family.
(vi) In Buck v. Germany (2005)
. ECtHR says the reasons adduced to justify such measures must be relevant and there must be sufficient and adequate and effective safeguards against abuse. After approximately XX
months, the respondent has yet to respond to the appellant’s application for Administrative Review. Apart from appealing to the First-tier Tribunal, the respondent has not instituted any effective safeguards for the appellant.
(vii) In Olsson v Sweden (1988)
, the notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued.
(viii) In Berrehab v. The Netherlands (1987)
, the Strasbourg court held the impugned interferences did not pursue any of the legitimate aims listed in Article 8 § 2 (art. 8-2). It prevented Mr Berrehab from maintaining regular contacts with his daughter, did not promote the "economic well-being of the country”, did not achieve balance between the various interests involved (even though the disputed decisions were consistent with Dutch immigration-control policy and could therefore be regarded as having been taken for legitimate purposes such as the prevention of disorder and the protection of the rights and freedoms of others) and so therefore could not be considered "necessary in a democratic society".
(ix) In W v. the United Kingdom (1987)
, the Strasbourg Court held unanimously that a violation of Article 8 of the Convention occurred. Any interference must correspond to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued. There may in addition be positive obligations inherent in an effective "respect" for family life. In determining whether an interference is "necessary in a democratic society" or whether there has been breach of a positive obligation, the Court will take into account that a margin of appreciation is left to the Contracting States.