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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

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

Post by marcidevpal » Thu Jan 05, 2023 3:20 pm

Apply to the ECtHR

https://www.echr.coe.int/Pages/home.asp ... s/forms&c=

You will need a PDF viewer to see the latest documents. Complete the

1. Application Form
2. Authority form

The authority form should be used if the applicant did NOT have a representative at the time of filling in the application form.

Applications to the Court must be sent by post to the following address:

The Registrar
European Court of Human Rights
Council of Europe
67075 Strasbourg Cedex
FRANCE

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

Post by Wishfulgirl » Thu Jan 05, 2023 3:26 pm

marcidevpal wrote:
Thu Jan 05, 2023 2:15 pm
Wishfulgirl wrote:
Thu Jan 05, 2023 2:12 pm
You must be feeling pretty good, then! I don't think it matters if it is perfect. I have seen barristers submit arguments with loads of typos. What matters is your submissions. I get the feeling you feel pretty good about your arguments. You seem to be quite confident. Congratulations, you did it!
Yes, I am feeling better. Thanks to you! You’ve been a gem to this board posting everyday. I told said to god last night before bed. Thank you for helping me overcoming this first hurdle filling this appeal and thanks to that special person on this board who was there to help me throughout. The board has been rather silent lately and tbh, I wouldn’t have known how to properly prepare my argument without your help. Thank you again.

I feel way better mentally now compared to 3 days ago. I slept well last night for the first time after sleepless nights and heightened anxiety.

You mentioned me being on benefits could be the weakest part of my argument? Is it best not mentioning it. I did state I am unable work due to my mental health condition and I am working with my mental team to support me better my condition so I can continue to be the best mom and eventually integrate back into society one day without mental health issues.

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

Post by Wishfulgirl » Thu Jan 05, 2023 3:44 pm

JB007 wrote:
Thu Jan 05, 2023 11:16 am
Wishfulgirl wrote:
Wed Jan 04, 2023 5:12 pm
I went as far as contacting Hackney law centre at the point of refusal & they just said to continue on appendix FM & watch for further steps the akinsanya case. Unfortunately for me I did not renew the leave to remain in April 2022.
There is information about welfare benefits on the Hackney Law Centre site

https://hclc.org.uk/2021/06/zambrano-ca ... d-to-know/
Am I eligible for universal credit?

 
If you have limited leave to remain with no prohibition on recourse to public funds, then you are eligible for universal credit on the same terms as a British citizen. Making a Zambrano EUSS application does not affect this. If the Zambrano EUSS application is eventually granted (after the Home Office has reconsidered Appendix EU) and you are given ‘settled status’ because you have been a Zambrano carer for more than 5 years, then your eligibility for benefits will not change.

But, if you are eventually given only ‘pre-settled status’, this kind of leave to remain may not count as eligibility for universal credit. Under the current Universal Credit Regulations it does not count, but a case before the Supreme Court called Fratila may lead to a change in this law.
The Fratila case was lost.

 
If I make a Zambrano EUSS application, am I eligible for free NHS treatment

 Yes. A person with a pending EUSS application is not chargeable for NHS treatment:

 regulation 13A(1) of the NHS (Charges to Overseas Visitors) Regulations 2015 (as amended by S.I. 2020/1423). If the application is granted then any charges recovered for services from the date of the EUSS application must be repaid.

 
However, if the EUSS application is refused then charges must be made for services provided after the date of application (unless the person is exempt for another reason): reg 13A(4).
and in June 2022-
https://hclc.org.uk/2022/06/euss-zambra ... june-2022/

 
I don’t fully understand, does this mean I should be charged NHS fee upon home office decision to reject my Zambrano application even though I am appealing?

Does this also mean I can’t rely on the COA to receive benefits after the leave to remain expired even though there’s a COA in place? Now I’m worried I’m going to be penalised. Surely the COA says it can be use to claim benefits & it remain valid should I decide to appeal or make an administrative review to which I’ve done both.

CAN anyone please tell me if the COA ceases to be valid during the appeal & administrative review process. Because I am really worried now.

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

Post by marcidevpal » Thu Jan 05, 2023 5:19 pm

Wishfulgirl wrote:
Thu Jan 05, 2023 3:44 pm
My understanding is that as long as your appeal remains active, your status before you appealed remains the same. Only when the appeal is exhausted or finished, does your status change. So, if you lose at the First-tier Tribunal and do not appeal, you could lose your access to benefits. If you lose at the First-tier Tribunal and appeal in time to the Upper Tribunal, your status remain the same. If you lose at both the First-tier Tribunal and the Upper Tribunal and take no action, you could lose your access to benefits. You want the Home Office to clarify what their position is on your benefits or for the Judge to clarify what should be done so you can maintain your benefits. If you appeal to the European Court of Justice if you lose in the First-tier Tribunal and Upper Tribunal, I am not sure what will happen with your status regarding your benefits. You may want to contact EU type organizations. If you appeal to the European Court of Human Rights, I am not sure what impact that has on your right to continue to access benefits. You may want to appeal to the European Court of Human Rights while you appeal to the First-tier Tribunal and Upper Tribunal. The UK Courts have declared they will not consider your human rights unless the Home Office give them permission. So, once the Home Office answers the question of whether the UK judges can consider your human rights, I am guessing you can go to the ECtHR. If the Home Office allows the UK judges to consider your human rights, you won't need to go to the ECtHR.
You mentioned me being on benefits could be the weakest part of my argument? Is it best not mentioning it. I did state I am unable work due to my mental health condition and I am working with my mental team to support me better my condition so I can continue to be the best mom and eventually integrate back into society one day without mental health issues.
I think you almost have to mention your benefits. You may just want to add why you are a benefit to UK society - despite the fact you currently rely on benefits. Talk about your skills, or your hopes for the future. Perhaps you will become a human rights activist, or a nurse, or a teacher?

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

Post by marcidevpal » Thu Jan 05, 2023 6:00 pm

Batool

https://tribunalsdecisions.service.gov. ... ukut-00219

You should probably also do a paragraph on Batool. A lot of judges reference Batool
The case of Batool & Ors (other family members: EU exit) [2022] UKUT 219 (IAC) (19 July 2022), amongst other matters, effectively provides for the definition of family members and other (or extended) family members within the meaning of Article 2.2 and 3.2 of Directive 2004/38/EC when considering an EUSS appeal.

In particular, the fact that extended family members did not enjoy automatic residence rights under EU law and had to be the beneficiary of a positive exercise of discretion, recognised by the grant of residence documentation, is relevant to ascertaining the point from which they can establish they retain/preserve their rights of residence thus enabling them to rely upon the EU Settlement Scheme (“EUSS”).
Unlike Batool, you were granted residence documentation.
Wishfulgirl wrote:
Thu Jan 05, 2023 3:44 pm

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

Post by Wishfulgirl » Thu Jan 05, 2023 6:13 pm

marcidevpal wrote:
Thu Jan 05, 2023 6:00 pm
Batool

https://tribunalsdecisions.service.gov. ... ukut-00219

You should probably also do a paragraph on Batool. A lot of judges reference Batool
The case of Batool & Ors (other family members: EU exit) [2022] UKUT 219 (IAC) (19 July 2022), amongst other matters, effectively provides for the definition of family members and other (or extended) family members within the meaning of Article 2.2 and 3.2 of Directive 2004/38/EC when considering an EUSS appeal.

In particular, the fact that extended family members did not enjoy automatic residence rights under EU law and had to be the beneficiary of a positive exercise of discretion, recognised by the grant of residence documentation, is relevant to ascertaining the point from which they can establish they retain/preserve their rights of residence thus enabling them to rely upon the EU Settlement Scheme (“EUSS”).
Unlike Batool, you were granted residence documentation.
Wishfulgirl wrote:
Thu Jan 05, 2023 3:44 pm
Thank you I’ll include this. This might sound like a daft question, In your updated skeleton argument you posted earlier.

“The appellant contends she is entitled to a permanent residence card under the EU Settlement Scheme for the following reasons “ I know this bit is suppose to be in submission. However, the cases you quoted do they fall under case summary or submission or ? Regarding the batool case, do I include this under submission or case summary?

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

Post by marcidevpal » Thu Jan 05, 2023 7:11 pm

Wishfulgirl wrote:
Thu Jan 05, 2023 6:13 pm
“Regarding the batool case, do I include this under submission or case summary?
Probably put it in submissions

The appellant contends she applied for facilitation before the end of the transition period and remained in the UK thereafter. Therefore, the appellant falls within the terms of Appendix EU and is within the scope of Article 18.1 of the Withdrawal Agreement. Per Batool and others (other family members: EU exit) Upper Tribunal (Immigration and Asylum Chamber)
63. As is evident from the website, persons were told in plain terms that family members could apply as such for a family permit or under the EUSS. However, in order to apply under the EUSS, they must be a “close” family member. That was expressly contrasted with the “extended” family member, who could apply for an EEA family permit until 31 December 2020, but not under EUSS.
64. As we have seen from Article 10 of the Withdrawal Agreement, in order to fall within the scope of Part 2 (and, thus, Article 18) a person asserting to be an other family member must have “applied for facilitation of entry and residence before the end of the transition period”.
65. Although we have permitted the appellants to withdraw the concession made on their behalf in the First-tier Tribunal, it is plain from the above analysis that, notwithstanding the submissions now made on their behalf, the appellants simply do not fall within the terms of Appendix EU (FP). Those immigration rules give effect to the Withdrawal Agreement and the appellants are not family members within the scope of Article 18.1 of the Withdrawal Agreement.

For you information / personal knowledge - thoughts from me:
The President of the Upper Tribunal argues that because the Court held that human rights could not constitute a ground of appeal under the 2006 EEA Regulations (the predecessors of the 2016 Regulations) in Amirteymour v SSHD [2017] EWCA Civ 353; [2017], that the Judges can also ignore human rights in the 2016 EEA Regulations.

Well, I say that the 2006 EEA Regulations and the 2016 EEA Regulations are both statutory instruments. And statutory instruments are secondary legislation. Secondary legislation does not have to list human rights as a ground of appeal, because all secondary legislation is subject to human rights.

Anyway, I don't think anyone can be bothered to argue back and forth with the UK Courts. It is important to make the human rights argument, but, unless the Home Office says yes, it seems the judges will ignore any human rights argument. What a mess. I have realized it isn't worth getting upset over their refusal. The best way forward is for the European Court of Human Rights to evaluate the UK's actions.

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

Post by marcidevpal » Thu Jan 05, 2023 7:37 pm

Dereci & Celik

https://www.bailii.org/eu/cases/EUECJ/2011/C25611.html

If you look at the Upper Tribunal says in Celik v SSHD, the President says human rights are only considered by the Courts with the permission of the Home Office. Dereci and Others v Bundesministerium für Inneres [2012] 1 CMLR 45; [2012] Imm AR 230 (“Dereci”) says the exact opposite. The judges said Dereci does not apply to the EU Settlement Scheme -
91. We are in no doubt that Dereci does not have the effect for which the appellants contend, even if it somehow remains part of United Kingdom law for the purposes with which we are concerned. If the position were otherwise, Schedule 2 (appeals to the First-tier Tribunal) to the 2016 Regulations would have been framed so as to include, as a ground of appeal, that the decision under those Regulations was a violation of Article 8 of the ECHR. In fact, the judgment of the Court of Appeal in Amirteymour v SSHD [2017] EWCA Civ 353; [2017] Imm AR 1368 makes the appellants’ case untenable. There, the Court held that human rights could not constitute a ground of appeal under the 2006 Regulations (the predecessors of the 2016 Regulations), unless it had featured in a response to a section 120 notice (the “new matter” provisions not having come into being at that time).
My thoughts on Dereci

1.) The "Court" he refers to is a UK court and not the European Court of Human Rights or the European Court of Justice. The UK Court has no power to undermine or ignore human rights. And, every time a new statutory instrument is created, you don't have to specify that human rights are a ground for appeal. Human rights are automatically a ground for appeal.

2.)The UK signed the Withdrawal Agreement. The Withdrawal Agreement says the UK will adhere to EU case law created before Brexit, and after Brexit. Dereci happened in 2011. Dereci says you must consider human rights. You either consider it under Article 7 of the Charter of Fundamental Rights or you consider their human rights under Article 8 ECHR.

A quote from Dereci:
In the present case, if the referring court considers, in the light of the circumstances of the disputes in the main proceedings, that the situation of the applicants in the main proceedings is covered by European Union law, it must examine whether the refusal of their right of residence undermines the right to respect for private and family life provided for in Article 7 of the Charter. On the other hand, if it takes the view that that situation is not covered by European Union law, it must undertake that examination in the light of Article 8(1) of the ECHR.

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

Post by marcidevpal » Fri Jan 06, 2023 10:10 am

Updated - Skeleton Argument & Human Rights

Skeleton Argument

[A] Case summary
[] Respondent's position
[C] Issues to be considered
[D] Legal framework
[E] Submissions

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 [2017] 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: [2005] EWCA Civ 105, [2006] 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 Sudita Keita v Hungary (2020), the European Court of Human Rights was not satisfied that the State had complied with its positive obligation to provide an effective and accessible procedure, or combination of procedures, enabling the applicant to determine his status with due regard to his private-life interests, contrary to Article 8 ECHR. The current procedures made it generally impossible for him to regularise his status, which prevented him from living a normal private life for a fifteen-year-long period. As such, the applicant was deprived of basic entitlements.

(ii) In Hoti v. Croatia (2018), the Court held Croatia accountable for violating the Applicant’s right to private life by not providing effective and accessible procedures for the individual to determine his stay and status in the country and by not assessing the Applicant’s personal circumstances under Article 8 ECHR.

(iii) 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.

(iv) 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.

(v) 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.

(vi) 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.

(vii) 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.

(viii) 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.

(ix) 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.

(x) 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".

(xi) 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.

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

Post by marcidevpal » Fri Jan 06, 2023 10:19 am

Updated - Skeleton Argument & Human Rights

Skeleton Argument

[A] Case summary
[] Respondent's position
[C] Issues to be considered
[D] Legal framework
[E] Submissions

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 [2017] 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: [2005] EWCA Civ 105, [2006] 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 Sudita Keita v Hungary (2020), the European Court of Human Rights was not satisfied that the State had complied with its positive obligation to provide an effective and accessible procedure, or combination of procedures, enabling the applicant to determine his status with due regard to his private-life interests, contrary to Article 8 ECHR. The current procedures made it generally impossible for him to regularise his status, which prevented him from living a normal private life for a fifteen-year-long period. As such, the applicant was deprived of basic entitlements.

(ii) In Hoti v. Croatia (2018), the Court held Croatia accountable for violating the Applicant’s right to private life by not providing effective and accessible procedures for the individual to determine his stay and status in the country and by not assessing the Applicant’s personal circumstances under Article 8 ECHR.

(iii) 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.

(iv) 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.

(v) 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.

(vi) 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.

(vii) 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.

(viii) 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.

(ix) 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.

(x) 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".

(xi) 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.

(d) The President of the Upper Tribunal asserts that human rights are to be considered by the Courts only with the express permission of the Home Office. EU case law such as Dereci and Others v Bundesministerium für Inneres [2012] establishes another approach, "In the present case, if the referring court considers, in the light of the circumstances of the disputes in the main proceedings, that the situation of the applicants in the main proceedings is covered by European Union law, it must examine whether the refusal of their right of residence undermines the right to respect for private and family life provided for in Article 7 of the Charter. On the other hand, if it takes the view that that situation is not covered by European Union law, it must undertake that examination in the light of Article 8(1) of the ECHR." The Court's response to Dereci is as follows, "91. We are in no doubt that Dereci does not have the effect for which the appellants contend, even if it somehow remains part of United Kingdom law for the purposes with which we are concerned. If the position were otherwise, Schedule 2 (appeals to the First-tier Tribunal) to the 2016 Regulations would have been framed so as to include, as a ground of appeal, that the decision under those Regulations was a violation of Article 8 of the ECHR. In fact, the judgment of the Court of Appeal in Amirteymour v SSHD [2017] EWCA Civ 353; [2017] Imm AR 1368 makes the appellants’ case untenable. There, the Court held that human rights could not constitute a ground of appeal under the 2006 Regulations (the predecessors of the 2016 Regulations), unless it had featured in a response to a section 120 notice (the “new matter” provisions not having come into being at that time)." When the UK signed the Withdrawal Agreement, they agreed to adhere to EU case law created before Brexit, and after Brexit. The Court abandons its commitment to the Withdrawal Agreement by not following the long established guidance of Dereci to consider the appellant's human rights under Article 7 of the Charter of Fundamental Rights or under Article 8 ECHR. Second, the "Court" referred to at paragraph 91 is a UK court and not the European Court of Human Rights or the European Court of Justice. The UK Court has no power to undermine or minimize the effect of ECtHR jurisprudence. Third, the creation of a new statutory instrument does not require the author to directly specify that human rights are a ground for appeal. Human rights are automatically a ground for appeal in all secondary legislation.

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

Post by marcidevpal » Fri Jan 06, 2023 10:32 am

Court of Appeal versus European Court of Justice in Celik

There are two cases that say opposite things on Article 8 human rights considerations.

One is by the European Court of Justice
  • Dereci and Others v Bundesministerium für Inneres [2012]

Another is from the UK Court of Appeal
  • Amirteymour v SSHD [2017] EWCA Civ 353; [2017] Imm AR 1368


The first case, Dereci, says Judges must do a human rights exercise. Everyone knows this case. It is well established. Many decisions were based on this case. The second case, Amirteymour, says Judges cannot consider human rights unless the statutory instrument directly lists "human rights" as a ground on which to challenge the Home Office's refusal.

The rulings of the European Court of Justice have more power than the UK's Court of Appeal. Dereci is more powerful than the Amirteymour case.

Celik v SSHD makes the Amirteymour case more powerful than Dereci. The Celik ruling is being used to deny people the right to raise their Article 8 human rights as a ground of appeal. Eventually, someone will challenge the UK's refusal to consider human rights, and to not follow Dereci.

By the time the European Court of Justice tells the UK it was wrong to not consider human rights, many EU Settlement Scheme applicants will have given up.

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

Post by marcidevpal » Fri Jan 06, 2023 12:28 pm

Beware!

If you go before a First-tier Tribunal judge and they behave in an aggressive manner, you may be able to appeal on those grounds. See Hossain v SSHD at https://tribunalsdecisions.service.gov. ... 13882-2021
This happens more often than you can imagine!

Representation:
For the appellant: Mr Michael Biggs of Counsel, instructed by Liberty Legal Solicitors LLP
For the respondent: Mr Myroslav Diwnycz, a Senior Home Office Presenting Officer

Permission to appeal
16. Permission to appeal was granted on the basis that the Judge had arguably erred in embarking on cross-examination, questioning in an aggressive manner and had descended into the arena.

17. The grounds of appeal also asserted that the First-tier Judge had erred by:

(i) Making adverse credibility findings about two witnesses when the respondent had not made adverse credibility submissions about them;
(ii) Relying on factual findings in another appeal, on which the evidence was not before her;
(iii) Placing an evidential burden on the appellant;
(iv) Making irrational and erroneous findings of fact;
(v) Giving inadequate reasons for her conclusions, and failing to consider material evidence; and
(vi) Making mistakes of fact.
18. Permission to appeal was granted on all grounds.

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

Post by marcidevpal » Fri Jan 06, 2023 12:30 pm

The challenges to the Celik decision have started! :) :) :)

SSHD v Osmrija
https://tribunalsdecisions.service.gov. ... 00297-2022

Representation:
For the appellant: Mr Stephen Walker, a Senior Home Office Presenting Officer
For the respondent: Mr Tom Wilding of Counsel, instructed by A J Jones Solicitors
25. Mr Wilding submitted that Celik was wrongly decided: the Tribunal was not obliged to follow it and should decline to do so.
The Celik decision is used to stop judges from doing a balancing exercise. They should balance your request or permanent residence against society's best interests. Without Celik, the First-tier Tribunal judges must consider human rights.

Happy Friday!!!

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

Post by Wishfulgirl » Fri Jan 06, 2023 2:36 pm

marcidevpal wrote:
Fri Jan 06, 2023 10:10 am
Updated - Skeleton Argument & Human Rights

Skeleton Argument

[A] Case summary
[] Respondent's position
[C] Issues to be considered
[D] Legal framework
[E] Submissions

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 [2017] 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: [2005] EWCA Civ 105, [2006] 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 Sudita Keita v Hungary (2020), the European Court of Human Rights was not satisfied that the State had complied with its positive obligation to provide an effective and accessible procedure, or combination of procedures, enabling the applicant to determine his status with due regard to his private-life interests, contrary to Article 8 ECHR. The current procedures made it generally impossible for him to regularise his status, which prevented him from living a normal private life for a fifteen-year-long period. As such, the applicant was deprived of basic entitlements.

(ii) In Hoti v. Croatia (2018), the Court held Croatia accountable for violating the Applicant’s right to private life by not providing effective and accessible procedures for the individual to determine his stay and status in the country and by not assessing the Applicant’s personal circumstances under Article 8 ECHR.

(iii) 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.

(iv) 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.

(v) 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.

(vi) 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.

(vii) 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.

(viii) 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.

(ix) 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.

(x) 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".

(xi) 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.
Thank you very much for this info. I’ve now completed and sent the updated version to the courts and officially to the home office.

Previously when I forgot to send the home office my bundle back in august, it was honestly due to lack of knowledge and no experience regarding appeal etc. however due to such mistake and a non compliance from the courts in December. It has honestly given me the chance to prepare my bundle the right and professionally way, thanks to your help. looking back now at the information I sent within my appeal in august, it really didn’t include a lot of information and I really had no chance whatsoever. Within my previous skeleton argument, were no updated case laws regarding Zambrano, no mention of me being a EEA family member due to thinking it didn’t matter, no case law to back my arguments, no mention of why i have acquired 5 years a Zambrano carer, No evidence and witness statement within my bundle. Then…. I failed to send home office the bundle. Honestly it was a plane crash of a case and I was not in the frame of mind and lack the understanding, but I sent it to the court anyway. The courts probably would’ve thrown it out the case, not sure if i could call it a case. This is why forum like these are a god sent. Because without it, I really don’t know men… For anyone reading, please don’t be naive like me.

I am more confident with the Updated skeleton argument, witness statement and bundle I sent today as appose to one I thought I sent in august.

I guess it’s now a matter of waiting on the outcome. Regardless of the outcome, I gave it my best efforts & I’m willing to take it all the way. I can’t thank you enough Marcidevpal and thanks to the moderators who made this forum it has been very informative and helpful.

When I received the non- compliance email in December, I took it as a sign to forget the appeal and continue on appendix FM route. That was until, I decided to login on here and my view quickly changed. I decided I wasn’t gonna give up so easily. I knew I had to continue if not for anything else, at least do it for my children.

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

Post by marcidevpal » Fri Jan 06, 2023 2:57 pm

Wishfulgirl wrote:
Fri Jan 06, 2023 2:36 pm
Thank you very much for this info. I’ve now completed and sent the updated version to the courts and officially to the home office.

Previously when I forgot to send the home office my bundle back in august, it was honestly due to lack of knowledge and no experience regarding appeal etc. however due to such mistake and a non compliance from the courts in December. It has honestly given me the chance to prepare my bundle the right and professionally way, thanks to your help. looking back now at the information I sent within my appeal in august, it really didn’t include a lot of information and I really had no chance whatsoever. Within my previous skeleton argument, were no updated case laws regarding Zambrano, no mention of me being a EEA family member due to thinking it didn’t matter, no case law to back my arguments, no mention of why i have acquired 5 years a Zambrano carer, No evidence and witness statement within my bundle. Then…. I failed to send home office the bundle. Honestly it was a plane crash of a case and I was not in the frame of mind and lack the understanding, but I sent it to the court anyway. The courts probably would’ve thrown it out the case, not sure if i could call it a case. This is why forum like these are a god sent. Because without it, I really don’t know men… For anyone reading, please don’t be naive like me.

I am more confident with the Updated skeleton argument, witness statement and bundle I sent today as appose to one I thought I sent in august.

I guess it’s now a matter of waiting on the outcome. Regardless of the outcome, I gave it my best efforts & I’m willing to take it all the way. I can’t thank you enough Marcidevpal and thanks to the moderators who made this forum it has been very informative and helpful.

When I received the non- compliance email in December, I took it as a sign to forget the appeal and continue on appendix FM route. That was until, I decided to login on here and my view quickly changed. I decided I wasn’t gonna give up so easily. I knew I had to continue if not for anything else, at least do it for my children.
CONGRATULATIONS!!! You really did it! What a wonderful, vanglorious thing you just did. I hope you share your story of perseverance with your children. You basically just went through a crash course in UK, EU and International law. Fantastic.

Your judge may think, if a litigant in person who has gone through everything imaginable can fight for her and her family's rights, maybe we should do right by them and give them permanent residence.

I am sure many people had your exact same questions and will (quietly) benefit from your efforts on this thread / forum. It is because of people like you, who continue to return to the forum and ask questions until it makes sense, that you have been able to progress so far, so quickly. Kudos to you, Wishfulgirl.

One more thing: Please follow up with the home office. They should say in writing if they will allow the first tier tribunal judge to consider your human rights. If they don't agree and the judge refuses to consider your human rights, you can appeal to the European Court of Human Rights. Have a great weekend. Cheers,

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

Post by Wishfulgirl » Fri Jan 06, 2023 6:36 pm

marcidevpal wrote:
Fri Jan 06, 2023 2:57 pm
Wishfulgirl wrote:
Fri Jan 06, 2023 2:36 pm
Thank you very much for this info. I’ve now completed and sent the updated version to the courts and officially to the home office.

Previously when I forgot to send the home office my bundle back in august, it was honestly due to lack of knowledge and no experience regarding appeal etc. however due to such mistake and a non compliance from the courts in December. It has honestly given me the chance to prepare my bundle the right and professionally way, thanks to your help. looking back now at the information I sent within my appeal in august, it really didn’t include a lot of information and I really had no chance whatsoever. Within my previous skeleton argument, were no updated case laws regarding Zambrano, no mention of me being a EEA family member due to thinking it didn’t matter, no case law to back my arguments, no mention of why i have acquired 5 years a Zambrano carer, No evidence and witness statement within my bundle. Then…. I failed to send home office the bundle. Honestly it was a plane crash of a case and I was not in the frame of mind and lack the understanding, but I sent it to the court anyway. The courts probably would’ve thrown it out the case, not sure if i could call it a case. This is why forum like these are a god sent. Because without it, I really don’t know men… For anyone reading, please don’t be naive like me.

I am more confident with the Updated skeleton argument, witness statement and bundle I sent today as appose to one I thought I sent in august.

I guess it’s now a matter of waiting on the outcome. Regardless of the outcome, I gave it my best efforts & I’m willing to take it all the way. I can’t thank you enough Marcidevpal and thanks to the moderators who made this forum it has been very informative and helpful.

When I received the non- compliance email in December, I took it as a sign to forget the appeal and continue on appendix FM route. That was until, I decided to login on here and my view quickly changed. I decided I wasn’t gonna give up so easily. I knew I had to continue if not for anything else, at least do it for my children.
CONGRATULATIONS!!! You really did it! What a wonderful, vanglorious thing you just did. I hope you share your story of perseverance with your children. You basically just went through a crash course in UK, EU and International law. Fantastic.

Your judge may think, if a litigant in person who has gone through everything imaginable can fight for her and her family's rights, maybe we should do right by them and give them permanent residence.

I am sure many people had your exact same questions and will (quietly) benefit from your efforts on this thread / forum. It is because of people like you, who continue to return to the forum and ask questions until it makes sense, that you have been able to progress so far, so quickly. Kudos to you, Wishfulgirl.

One more thing: Please follow up with the home office. They should say in writing if they will allow the first tier tribunal judge to consider your human rights. If they don't agree and the judge refuses to consider your human rights, you can appeal to the European Court of Human Rights. Have a great weekend. Cheers,
Thank you,

I will be sure to follow up with them and let you know their response.

Happy weekend to you too. :)

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

Post by Nyamebeye » Sat Jan 07, 2023 5:02 pm

@Wishfulgirl

Go to Facebook and search for 'the community and the law' programme. They are live discussing EU Family members whose step parents have died. What they need to do to get settled status.

I've been silently reading your story but the info these days on the forum are so much that one can easily get lost in replying to posts.

My thoughts have been that you need to pursue your settled status as a person with retained rights due to your EEA national sponsor dying.

You cannot argue that in a Zambrano appeal as u have not applied for Settled status as a family member so they are two different cases.

These have been my thoughts ever since but the experts are discussing it now if you can tune in.
Take care.

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

Post by Nyamebeye » Sat Jan 07, 2023 5:02 pm

@Wishfulgirl

Go to Facebook and search for 'the community and the law' programme. They are live discussing EU Family members whose step parents have died. What they need to do to get settled status.

I've been silently reading your story but the info these days on the forum are so much that one can easily get lost in replying to posts.

My thoughts have been that you need to pursue your settled status as a person with retained rights due to your EEA national sponsor dying.

You cannot argue that in a Zambrano appeal as u have not applied for Settled status as a family member so they are two different cases.

These have been my thoughts ever since but the experts are discussing it now if you can tune in.
Take care.

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

Post by Wishfulgirl » Sat Jan 07, 2023 8:36 pm

Nyamebeye wrote:
Sat Jan 07, 2023 5:02 pm
@Wishfulgirl

Go to Facebook and search for 'the community and the law' programme. They are live discussing EU Family members whose step parents have died. What they need to do to get settled status.

I've been silently reading your story but the info these days on the forum are so much that one can easily get lost in replying to posts.

My thoughts have been that you need to pursue your settled status as a person with retained rights due to your EEA national sponsor dying.

You cannot argue that in a Zambrano appeal as u have not applied for Settled status as a family member so they are two different cases.

These have been my thoughts ever since but the experts are discussing it now if you can tune in.
Take care.
Hi Nyamebeye,

Thank you for this information, sadly I’ve only just seen your post. I still went on fb to check the name of it however, nothing came up, is it a group? A page? I can’t seem to find it. I’ve even typed it into google, please let me know thanks.

Are they saying the judge may disregard my argument as a family member of an EEA national in my appeal because I didn’t attempt to make the settlement application first?

Please let me know if they saved the live, I’ll attempt to search again, I really would like to see it. Thank you.

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

Post by marcidevpal » Sun Jan 08, 2023 1:52 am

Wishfulgirl wrote:
Fri Jan 06, 2023 6:36 pm
Thank you,

I will be sure to follow up with them and let you know their response.

Happy weekend to you too. :)
You are welcome. By the way, there is no such thing as a "Zambrano" appeal. Appeals to the First-tier Tribunal regarding the EU Settlement Scheme are governed by the Immigration (Citizens Rights Appeals) (UK Exit) Regulations 2020 (SI 2020 No. 61) (“UK Exit Regulations”).

The UK Exit Regulations tell the judges upon what grounds you are allowed to challenge your appeal. You outlined the grounds in your Submissions section.

The judge will look at the issues you asked him/her to consider. You asked him to consider whether you were covered by the Withdrawal Agreement, in light of your status as a retained family member of an EEA National.

The UK Exit Regulations are a statutory instrument (a form of secondary legislation). Statutory instruments are often problematic.

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



Here is what the UK Exit Regulations say:

Right of appeal against decisions relating to leave to enter or remain in the United Kingdom made by virtue of residence scheme immigration rules
3.—(1) A person (“P”) may appeal against a decision made on or after exit day—

(a)to vary P’s leave to enter or remain in the United Kingdom granted by virtue of residence scheme immigration rules(1), so that P does not have leave to enter or remain in the United Kingdom,

(b)to cancel P’s leave to enter or remain in the United Kingdom granted by virtue of residence scheme immigration rules,

(c)not to grant any leave to enter or remain in the United Kingdom in response to P’s relevant application, or

(d)not to grant indefinite leave to enter or remain in the United Kingdom in response to P’s relevant application (where limited leave to enter or remain is granted, or P had limited leave to enter or remain when P made the relevant application).

(2) In this regulation, “relevant application” means an application for leave to enter or remain in the United Kingdom made under residence scheme immigration rules on or after exit day.

Grounds of appeal
8.—(1) An appeal under these Regulations must be brought on one or both of the following two grounds.

(2) The first ground of appeal is that the decision breaches any right which the appellant has by virtue of—

(a)Chapter 1, or Article 24(2) or 25(2) of Chapter 2, of Title II of Part 2 of the withdrawal agreement,

(b)Chapter 1, or Article 23(2) or 24(2) of Chapter 2, of Title II of Part 2 of the EEA EFTA separation agreement, or

(c)Part 2 of the Swiss citizens’ rights agreement(1).

(3) The second ground of appeal is that—

(a)where the decision is mentioned in regulation 3(1)(a) or (b) or 5, it is not in accordance with the provision of the immigration rules by virtue of which it was made;

(b)where the decision is mentioned in regulation 3(1)(c) or (d), it is not in accordance with residence scheme immigration rules;


(c)where the decision is mentioned in regulation 4, it is not in accordance with section 76(1) or (2) of the 2002 Act (as the case may be);

(d)where the decision is mentioned in regulation 6, it is not in accordance with section 3(5) or (6) of the 1971 Act (as the case may be).

(4) But this is subject to regulation 9.

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

Post by marcidevpal » Sun Jan 08, 2023 2:00 am

The Immigration (Citizens' Rights Appeals) (EU Exit) Regulations 2020 - latest available as of 31/12/2020

https://www.legislation.gov.uk/uksi/202 ... gulation/8

This is a bit hard to read, but shows the updates from the original January 2020

The first ground of appeal is that the decision breaches any right which the appellant has by virtue of—

(a)Chapter 1, or Article 24(2) [F1, 24(3), 25(2) or 25(3)] of Chapter 2, of Title II [F2, or Article 32(1)(b) of Title III,] of Part 2 of the withdrawal agreement,

F1 Words in reg. 8(2)(a) substituted (4.11.2020 for specified purposes, 31.12.2020 in so far as not already in force) by The Citizens’ Rights (Frontier Workers) (EU Exit) Regulations 2020 (S.I. 2020/1213), regs. 1(2)(3), 24(6)(a)(i)

F2 Words in reg. 8(2)(a) inserted (31.12.2020 immediately after IP completion day) by The Immigration (Citizens’ Rights etc.) (EU Exit) Regulations 2020 (S.I. 2020/1372), regs. 1(2)(a)(3)(a), 2(6)(a)(i)

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

Post by Nyamebeye » Sun Jan 08, 2023 6:02 pm

Hello, to put it simple, you appeal against a decision to an application you have made, that is why there are different applications forms for different types of leave. The laws, rules, regulations may be the same but the application is decided on what you are applying for and the evidence provided. I cannot appeal against an EEA application I didn't make. Yes, by all means mention it and make a point of it in your appeal, but an appeal against leave to remain as a Zambrano carer cannot be decided on an application for retained right right as an EEA family member. This was the point I was making hence the use of the term "Zambrano appeal''.

It's like,...hmmm, lets say applying for leave under appendix FM as a parent and being refused and appealing to say that they could have considered your application as a spouse based on a previous relationship you had. Both applications are under appendix FM.
Same as applying for a visit visa for 6 months and expecting to be granted 2 yrs or 5 years multiple entry. You didn't apply for that.

So in short, Wishfulgirl could make a new application for retained right as a family member of an EEA national family member who has died. Then if she is refused that application, she can appeal.Her current appeal is a refusal of grant of limited leave as a Zambrano carer NOT as a family member of an EEA national.

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

Post by Nyamebeye » Sun Jan 08, 2023 6:15 pm

Wishfulgirl wrote:
Sat Jan 07, 2023 8:36 pm
Nyamebeye wrote:
Sat Jan 07, 2023 5:02 pm
@Wishfulgirl

Go to Facebook and search for 'the community and the law' programme. They are live discussing EU Family members whose step parents have died. What they need to do to get settled status.

I've been silently reading your story but the info these days on the forum are so much that one can easily get lost in replying to posts.

My thoughts have been that you need to pursue your settled status as a person with retained rights due to your EEA national sponsor dying.

You cannot argue that in a Zambrano appeal as u have not applied for Settled status as a family member so they are two different cases.

These have been my thoughts ever since but the experts are discussing it now if you can tune in.
Take care.
Hi Nyamebeye,

Thank you for this information, sadly I’ve only just seen your post. I still went on fb to check the name of it however, nothing came up, is it a group? A page? I can’t seem to find it. I’ve even typed it into google, please let me know thanks.

Are they saying the judge may disregard my argument as a family member of an EEA national in my appeal because I didn’t attempt to make the settlement application first?

Please let me know if they saved the live, I’ll attempt to search again, I really would like to see it. Thank you.

I don't think I'm allowed to post solicitors program links here that's why I asked you to search.
I will try and summarise the content and post it here for you when I am less busy so please bear with me.

I would encourage you not to panic at all about what you have already submitted for your appeal. It's all good that you have put your points across. You have got some good stuff. The main thing is that you are appealing against an Appendix EU application and you have done that. Fantastic. You applied as a Zambrano carer. Period. Your appeal will not be thrown away because you have mentioned EEA family member consideration. No, not at all so don't worry.
Take care.

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

Post by marcidevpal » Sun Jan 08, 2023 7:01 pm

Nyamebeye wrote:
Sun Jan 08, 2023 6:02 pm
Hello, to put it simple, you appeal against a decision to an application you have made, that is why there are different applications forms for different types of leave. The laws, rules, regulations may be the same but the application is decided on what you are applying for and the evidence provided. I cannot appeal against an EEA application I didn't make. Yes, by all means mention it and make a point of it in your appeal, but an appeal against leave to remain as a Zambrano carer cannot be decided on an application for retained right right as an EEA family member. This was the point I was making hence the use of the term "Zambrano appeal''.

It's like,...hmmm, lets say applying for leave under appendix FM as a parent and being refused and appealing to say that they could have considered your application as a spouse based on a previous relationship you had. Both applications are under appendix FM.
Same as applying for a visit visa for 6 months and expecting to be granted 2 yrs or 5 years multiple entry. You didn't apply for that.

So in short, Wishfulgirl could make a new application for retained right as a family member of an EEA national family member who has died. Then if she is refused that application, she can appeal.Her current appeal is a refusal of grant of limited leave as a Zambrano carer NOT as a family member of an EEA national.
Her appeal is against "a decision relating to leave to enter or remain in the United Kingdom made by virtue of residence scheme immigration rules".

Whether the form said Zambrano or retained family member of an EEA national is not a topic in the Statutory Instrument. The judges decide appeals based on the terms in the relevant the Statutory Instrument.

That is why the President of the Upper Tribunal says he cannot consider human rights. He argues that because the statutory instrument does not explicitly say that a ground of appeal is human rights, he cannot consider human rights.

In any case, Wishfulgirl made three arguments. 1.) That she is the retained family member of an EEA national. 2. That she is a Zambrano carer and 3. That her human rights are violated or interfered with by the refusal.

The judge is free to consider, reject or accept any of the submitted arguments. It would be a waste of UK taxpayer money for her to submit a new application and file a new appeal once the Home Office rejected her. The submission of a new form would not change the result. Therefore, the judge is likely to consider her eligibility under the EEA route.

Moreover, the Withdrawal Agreement is a contract. Under the contract, the UK agreed to help applicants apply - even if they made a mistake. It appears the Home Office did not conduct an extensive examination of her circumstances. They would have known from her immigration history she was issued with an EEA residence document. Therefore, the burden was on them to ensure she filled in the right form.

The EU knew that millions of people would choose the wrong form, or not have the right documents, or that those documents would have expired. That is why the EU negotiated in the Withdrawal Agreement for the UK to agree to help the EU citizens and family members. The Withdrawal Agreement also calls for "proportionality" in the decision-making. Is it proportional for Wishfulgirl to start all over again? Even if the judge tells her to do so, it is to her advantage in one respect. The longer her case goes on for, the more time she has to see how other judges decide. Celik will not survive in the long run. She will be able to rewrite her legal claim.

The Zambrano appeal is just an administrative term. It makes it easier for the admin clerks and judges to decide cases. There is no legal distinction in the legislation between an Zambrano appeal and an EEA appeal. The distinction is in the grounds of appeal.

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

Post by marcidevpal » Sun Jan 08, 2023 8:41 pm

Another point:

Wishfulgirl was right to make the EEA retained family argument for another key reason. The Home Office will (eventually) read her bundle. There is the smallest chance they will read her submission about being an EEA family member, do their research, see she was granted documentation to that effect, and give her settlement.
That scenario is the best for everyone. It saves the judge time, and acknowledges the obvious.

If she had not made the argument, the Home Office would not bother to do the research.

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