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marcidevpal wrote: ↑Sun Jan 08, 2023 11:24 pmJudges don't directly make decisions based on what the Home Office refusal letter says. They are guided by the statutory instruments and the procedure rules for their tribunal. I have made this point a few times now.
Human rights are relevant in any claim under which the European Court of Human Rights has made a ruling. The idea of a 'human rights application' is an administrative label, just as a Zambrano appeal or an EEA appeal is an administrative label. Unless you can reference a statutory instrument that specifically mentions Zambrano, then there is no such thing as a Zambrano appeal, in terms of the law. There is just an appeal under the associated statutory instrument.
Wishfulgirl made submissions. Her submissions had three aspects. She asked for help to develop her submission around the EEA part, and she received it. The EEA part was not a main focus anymore than the other two parts.
When I mention what I believe a judge will do, I base it on what the relevant documentation says the judiciary should do. I don't talk off the cuff or assume or make connections between cases that may not exist. The Home Office is part of the UK. The UK agreed to help applicants who are EU citizens or their family members. The Home Office facilitated Wishfulgirl's entry and leave in the UK as a family member of an EEA national. Wishfulgirl therefore falls under the Withdrawal Agreement. What she does or does not choose to assert is her prerogative.
Evidence from one appeal may not be allowable in another appeal. Wishfulgirl is asserting her rights as a family member of an EEA national. Rights are a very different matter from evidence.
Plenty of cases won in the First-tier Tribunal and Upper Tribunal. Plenty of cases with similar circumstances lost. The President of the Upper Tribunal declared the EU Settlement Scheme is fundamentally flawed. Any win (or loss) has to be put in perspective.
We cannot see how Akinsaya is developing because nothing has been made public since the Court of Appeal published its decision. Care to share with everyone new developments on Akinsaya?
Good to know! By the way, Article 13 of the European Convention on Human Rights includes the Right to an effective remedy. Akinsaya's case is a good example of no effective remedy.
UPPER TRIBUNAL JUDGE KEITH
https://tribunalsdecisions.service.gov. ... 15426-2021
For the appellant: Mr P Georget, Counsel, instructed by Malik & Malik solicitors
For the respondent: Mr T Melvin, Senior Home Office Presenting Officer
28. If the Secretary of State’s appeal is successful on the basis of the Claimant had not made a human rights claim, any such claim may simply go through the usual process for consideration by the Secretary of State and if necessary, onwards to a First-tier Tribunal.
33. In respect of the FtT’s reasons, which allowed the Claimant’s appeal by reference to article 8 ECHR, there is no decision which engages article 8; no section 120 notice has been issued, and the Secretary of State has not consented to any new matter being considered. The FtT therefore erred in law, in allowing an appeal on the basis of which the Secretary of State had not reached a decision.
34.I bore in mind paragraphs 7.2(a) and (b) of the Senior President’s Practice Statements...The Claimant’s appeal under the 2020 Regulations falls to be dismissed because of Celik. There is no human rights decision on which an appeal can be remade.
The above is a direct quote from the Convention. The UK is a "High Contracting Party". High Contracting Parties are to be the first place for you to secure your human rights. There is a bit of space in terms of how the UK wants to enforce human rights. But making people file multiple applications, simply goes beyond its powers. The additional hoops the Courts ask people to jump through are, in an of themselves, unacceptable under the ECHR. The fact that so many judges automatically considered human rights (prior to Celik), tells you something is wrong. Each judge studied the law. They would not have applied the ECHR if it was not warranted. One case is now being used to stop human rights considerations. That should never happen. A case is not even legislation. It isn't even secondary legislation, like a badly written statutory instrument. At the very least, the refusal to consider human rights should come via an act of Parliament, not from one case. What a shame.Affirming that the High Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in this Convention and the Protocols thereto, and that in doing so they enjoy a margin of appreciation, subject to the supervisory jurisdiction of the European Court of Human Rights established by this Convention, Have agreed as follows:
Obligation to respect Human Rights
The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention
File for a judicial review of decisions made by other courts, tribunals and public bodies. Cases may be heard by one High Court judge or by a ‘Divisional Court’ which consists of 2 or more judges, normally a High Court Judge and a Lord Justice of Appeal. If you look at the form, Question 4.4 says, "Does any part of the claim allege a breach of Convention rights protected under the Human Rights Act?"
Use this form if you have lived in the UK lawfully for 10 years continuously and now want to apply to settle in the UK.
More helpPerhaps you want to challenge the First-tier Tribunal's refusal to consider your human rights under the EUSS appeal? You can make an application for judicial review in the Upper Tribunal Immigration and Asylum Chamber (UTIAC). Your application must be made promptly and must be sent or delivered to the Tribunal so that it is received no later than 3 months. The fee to start your case is £154. If the Tribunal grants permission for a substantive hearing the Tribunal fee for the whole case is £924. You can ask for a mandatory order
a prohibiting order, a quashing order, a declaration or an injunction.
Facing court without a lawyer?Support through the Court can help at all stages of the court process, either face-to-face or via a remote appointment. If you're facing court without representation anywhere in England or Wales, they can help. They are there for you at all stages of the court process and can offer emotional and practical support, and some help with completing court forms. They cannot give legal advice, and if our volunteers can’t help, they will try to suggest other services for callers.
https://bills.parliament.uk/publication ... ments/1754a decision made by the court of supervisory jurisdiction in relation to any such refusal by the Upper Tribunal, whether such decision of the court of supervisory jurisdiction is to refuse permission to proceed or is to dismiss the substantive claim in the supervisory court or is any other order, is final and cannot be questioned or set aside or reversed whether by way of renewal or appeal or otherwise.
Paragraph E-ECP.4.2.(c) of Appendix FM of the Immigration Rules allows for exceptional circumstances. Appendix EU of the Immigration Rules does not contain a provision for exceptional circumstances.12. At least the judge should have made findings on these aspects of the sponsor’s evidence. The judge should have grappled with this to a greater extent than he did.
16. The appellant said in response that the judge ought to have considered the argument that the first appellant’s failure to meet the English language requirement constituted exceptional circumstances. It was incumbent on the tribunal to consider article 8 (2) if raised but the burden rested on the Home Office to satisfy the tribunal as to that article. The judge did not engage with this point. The respondent argues that the appellants and the sponsor could meet in a third country but Mr Karim was not sure that it was put to the sponsor that this was viable. The sponsor’s subjective concerns were not considered either.
19. The Supreme Court, however, upheld the requirements of the Immigration Rules. It held that four questions generally arose for the court to consider:
(i) Whether the legislative objectives were sufficiently important to justify limiting a fundamental right;
(ii) Whether the measures which had been designed to meet it were rationally connected to it;
(iii) Whether they were no more than necessary to accomplish it; and
(iv) Whether they struck the right balance between the rights of the individual and the interests of the community.
20. A balance must be struck between the right to respect for private and family life and the legitimate aims of the respondent in protecting the national interest, including the economic well-being of the UK and promoting the integration of those who come to the UK.
21. However, the decision-maker must consider exceptional circumstances, where they are made out.
27. Accordingly, our provisional view is that the appeal should be remitted to the judge for him to assess whether there were any exceptional circumstances for allowing this appeal on the basis that the first appellant qualified for an exemption from the English language test requirement in E – ECP.4.2 (c) or she qualified outside the Immigration Rules. It may also be appropriate for the judge to consider article 8 afresh in the light of those findings.
SETF 1.1. A person who is applying for settlement must apply online on the gov.uk website on the specified form “Settlement as a partner or parent.”.
SETF 1.2. An application for settlement must meet all the following requirements:
(a) any fee must have been paid; and
(b) the applicant must have provided any required biometrics; and
(c) the applicant must have provided a passport or other travel document which satisfactorily establishes their identity and nationality; and
(d) the applicant must be in the UK on the date of application.
SETF 1.3. The applicant must have, or have last been granted, permission as a partner or parent under Appendix FM.
SETF 1.4. An application which does not meet all the validity requirements for settlement is invalid and may be rejected and not considered.
So what does the organization do? They create an Appendix EU with unlawful provisions and try to prevent any human rights or considerations of the applicant's humanity. They get the Courts to agree with them, that is truly important. They rely on the assumption that the applicant's will stop at the UK Courts and take no further action. They stay quiet about any case law from the European Court of Justice that could expose their provisions as unlawful.