Zambrano Settled Status EU settlement scheme Paper Application Form - NEW

Nightclub bouncers...with wigs

In the event the UK withdraws from the Council of Europe and ECHR*

Phase one: The police person with wig in the Upper Tribunal and/or Court of Appeal decides the Home Office is fine to end Appendix FM . Each person on Appendix FM then has to fight for their right to remain.

Phase two: The nightclub bouncers with wigs in the First-tier Tribunal and Upper Tribunal decide, on a case by case basis, who the lucky ones will be to retain their right to remain under Appendix FM.

* I base the above fictional scenario on actual events for Zambrano carers who appeal Appendix EU refusals.

My opinion only

My limitations:
I am interested in this topic as long as I see a viable path to success. The UK may leave the Council of Europe and withdraw from the ECHR before the next election. If that happens, I no longer see a reliable way to win. That is, unless you already have a case pending with the European Court on Human Rights. I also see Appendix FM as a sinking ship.

Options:
You could relocate to Northern Ireland and hope for better treatment. You could also hope the "nightclub bouncer" selects you as one of the beautiful people and you are able to remain without too much drama. You could even hope Scotland leaves the UK in the very near future and has a better immigration policy.

I won't bother trying to decipher the best way to proceed in the UK court system if there is no ECHR. I decided long ago I would not want to live in a UK that has no oversight from either the European Court of Justice or the European Court on Human Rights.

Celik & the Court of Appeal

The Upper Tribunal ruled in Celik in July 2022. It will be some time after Easter before the next highest Court, the Court of Appeal rules if Celik is valid. So, almost a year before Celik is "corrected". In the meantime, thousands of families have been denied the opportunity to have Article 8 ECHR assessments. Over 150,000 people were refused at some point on the EUSS, so I don't exaggerate when I say thousands. It astounds me that the Court of Appeal took so long. And then I thought about it. Braverman said she hoped the UK would be out of the ECHR by the end of this year. That means notice would be served by March 2023. So, perhaps the Court of Appeal wanted to wait to see if Braverman puts in the withdrawal notice before they decide Celik. If the UK withdraws from the ECHR, the Court of Appeal may continue the ban on Article 8 - even though the judges should continue to apply ECHR until the UK actually leaves. If the UK does not withdraw from the Council of Europe, I think the Court of Appeal will allow Celik's appeal. Just a guess. The idea that the Court would allow thousands of people to be denied something so basic as a human rights assessment is very concerning.

The European Union

The one piece of this puzzle I simply could not get my head around is, "Why did the EU betray its principles and throw UK Zambrano carers under the bus by excluding them from the Withdrawal Agreement?" After some thought, I recalled that the Withdrawal Agreement(WA) specifically allows for the scope to be expanded to cover people not directly named in the text. The WA also calls for "proportionality" and the "general application" of the principles of Union law.

I believe the EU negotiators initially fought for everyone who relied on Union law on 31 December 2020, to remain covered by Union law. For Zambrano carers, that would be Article 21 TFEU. I suspect the UK negotiators said to the EU, "Don't worry, let's limit the actual text of the WA to people covered by the 2004 Free Movement Directive, but we the UK promise to include UK Zambrano carers in the EU settlement scheme." (UK Zambrano carers are not part of the Free Movement Directive.)

I don't think the EU imagined the UK would change the definition of Zambrano carer to represent a far smaller group of Zambrano carers. I think the EU thought they would faithfully use the EU's definition of Zambrano carer. The EU probably thought that even if the Home Office did violate their agreement on Zambrano carers, the UK judges would intervene and ensure Zambrano carers were treated fairly. That clearly has not happened. The Home Office and UK Judiciary have taken measures that, collectively, deprive the majority of UK Zambrano carers (parents of British children) the right to settlement under EUSS.

In the somewhat unlikely event the EU are watching this situation, they were probably comforted by the case of Ms E.K. The EU may have thought, surely the ruling in E.K., by the President of the European Court of Justice would cause the UK judiciary to rule in favour of Zambrano carers and grant them settlement under EUSS? But, again, that is not what is happening. The case of E.K. has had zero impact on the decisions made by the UK judiciary. In direct violation of the Withdrawal Agreement, the UK judges ignore case law passed after Brexit.

It gets worse. UK judges now ignore case law passed even before Brexit. The case of Dereci was approved years before Brexit. It was regularly cited as an example of the ECJ's thinking on derivative rights holders. UK judges had no problems applying it before Brexit. But then, in July 2022, the President of the Upper Tribunal said that Dereci no longer applies in the UK, or at least to the EU settlement scheme. Nonsense! Anyway, the evidence is piling up day by day. The Home Office problem for Zambrano carers is actually a UK problem that can only be solved via the international courts.

Can a Zambrano carer have Appendix FM?

Akinsaya asked is a Zambrano right extinguished by the existence of a concurrent limited leave to remain?

Upper Tribunal
Judge Mostyn J said a Zambrano carer is still a Zambrano carer, even if they get Appendix FM.

The Upper Tribunal was clear. The Court of Appeal was not.

The Court of Appeal
Underhill said two things:

• Zambrano carers with Appendix FM leave are not Zambrano carers.

• Under EU law, Zambrano carers with Appendix FM leave are still Zambrano carers.

The two sentences say the exact opposite. The only way to make it make sense, is to conclude that people who first had Appendix FM could not then become Zambrano carers. Zambrano carers who apply for Appendix FM are still Zambrano carers.

Be careful, some judges are looking at point 1 of the Court of Appeal. They ignore point 2. They say to all Zambrano carers who have Appendix FM, you are not a Zambrano carer. It is as if you were never even a Zambrano carer. That is wrong for obvious reasons. A less obvious reason why that is wrong, is because of the E.K. decision. By pretending you were never a Zambrano carer, I don't have to take the E.K. decision into account. If you were just a Zambrano carer with no Appendix FM for five years before Brexit, E.K. should apply to you. You should get permanent residence, in a fair and just world.

3 Refusal Reasons on EUSS Appeals to the FtT and UT

Here are three reasons the judge may give for their decision to refuse your appeal:

1.) Zambrano carers do not fall within the scope of the Withdrawal Agreement.

2.) Zambrano carers who had leave to remain under Appendix FM; or are eligible for leave to remain under Appendix FM are not eligible based on what Appendix EU says.

3.) Because of the Celik v SSHD case, you are ineligible to have your Article 8 human rights considered.

Each point can (and should) be challenged through a further appeal.

An Appellant's Skeleton Argument

Note: I quickly put the below together today over a couple of hours. I thought it would be helpful to update the previous sample skeleton arguments. There are tons of more points that can be made. Have fun with it. Just review the previous pages for ideas.

Before the Court of .... EA/5555/2022

A. Case Summary
Ms Uzoh is a citizen of XX born DD/MM/YYYY. She is of African heritage. She entered the UK in 2011. She has had a derivative residence card as the sole carer of her son (born in 2013) since 2014. She was granted leave to remain under Appendix FM on the 10 year route in June 2020. She applied for leave to remain under Appendix EU in June 2021 and was refused in May 2022.

B. Refusal Reasons
SSHD contends Ms Uzoh ceased to be recognised as a Zambrano carer when she obtained leave to remain under Appendix FM in 2020. The respondent does not believe Ms Uzoh falls within the scope of the Withdrawal Agreement. SSHD also argues that Ms Uzoh does not qualify for settlement under Appendix EU because the rules bar individuals who held leave to remain under Appendix FM on 31 December 2020. Based on Celik, Ms Uzoh is not eligible to have her Article 8 human rights considered. The SSHD has declined a request to allow the Court to consider Ms Uzoh's human rights.

C. Questions to be considered

• Do Zambrano carers who later acquire leave to remain under Appendix FM retain their status as Zambrano carers?

• Do Zambrano carers fall within the scope of the Withdrawal Agreement?

• Are the Immigration Rules discriminatory and therefore unlawful?

• Should the Court conduct a human rights balancing exercise despite Celik?

D. Legal Framework

• copy and paste what the EEA Regulations say about Zambrano carers

• copy and paste what the Protocol says about the UK and the ECHR

• copy and paste what the Withdrawal Agreement says about the Court taking into account CJEU (ECJ) case law before and after Brexit, the provisions on discrimination, residence rights, etc

• copy and paste what the Human Rights Act says about the Court's responsibility to consider ECtHR jurisprudence or case law

• copy and paste what the ECHR says about the requirement of the Court to consider ECtHR case law and the Home Office to grant residence

• copy and paste what the United Nations declaration, protocol, convention, etc says about the requirement of the UK to treat migrants fairly

E. Grounds for appeal
1. The appellant remains a Zambrano carer under Union law on the transition date despite her additional status under Appendix FM.

a.) In Giraldo, the SSHD argued "Zambrano leave was a last resort and was not appropriate here. The claimant had previously had Article 8 ECHR leave to remain and there was a realistic prospect that she would be granted further such leave." At the date of application, she was on the path to settlement under Appendix FM (private and family life) with leave granted on 12 March 2015 and extended to 29 May 2020. Deputy Upper Tribunal Judge Chana ruled against the SSHD, citing the following at paragraph ??, "Mr Walker accepted at the hearing that, applying Akinsanya, the First-tier Tribunal Judge did not err in allowing the appeal, as at the date of decision, the claimant did not have indefinite leave to remain and was a Zambrano carer. If the claimant were removed, her daughter would be unable to remain in the UK without her."

b.) In Akinsaya, Upper Tribunal Judge Mostyn J ruled unequivocally that a Zambrano carer retains her status even after she acquires leave to remain under another part of the Immigration rules. In the Court of Appeal, Mr Cox argued once a Zambrano right is established, it cannot be extinguished by the addition of another form of leave to remain.

c.) Lord Justice Underhill argued that the Zambrano right arises only when the parent's right to remain is under threat. He said he preferred the SSHD's arguments in relation to ground one. On the second ground, LJ Underhill agreed with the Upper Tribunal that the way the rules are written means Zambrano carers can have leave to remain under Appendix FM and still be Zambrano carers. It remains unclear what precisely LJ Underhill was trying to achieve on ground one.

d.) In Noel, UT Judge Allen and Deputy UT Judge Chapman explain at paragraph 12, "However, in a judgment dated 25 January 2022, whilst Underhill LJ preferred the submissions on behalf of the SSHD with regard to ground 1, the effect of the Zambrano jurisprudence, he upheld the judgment of Mostyn J as to the SSHD’s erroneous approach to regulation 16 of the EEA Regulations, holding that persons with limited leave to remain are entitled to a derivative right to remain, alongside their limited leave, if they otherwise satisfy certain specified criteria.".

e.) One can draw only one logical conclusion from the Giraldo, Noel and Akinsaya appeals. The appellant's Zambrano right remained effective under Union law on the transition date despite the fact that she held leave to remain under Appendix FM. Her case is strengthened by the fact that her Zambrano right arose prior to her right to remain under Appendix FM.

2. The appellant falls within the scope of the Withdrawal Agreement.

a.) Three factors, when combined, justify her inclusion in the scope: she relied on Union law for five years as a Zambrano carer before the transition date; the case of E.K. before the CJEU establishes her right to permanent residence; and the provisions Withdrawal Agreement.

b.) The Withdrawal Agreement obliges the UK to take case law passed after Brexit into account; stipulates any person who acquires permanent residence prior to Brexit maintains that right; and, calls for proportionality.

c.)The only reason the appellant did not have documentation to prove her residence, is because the EEA Regulations unlawfully barred her from obtaining her residence. Had the EEA Regulations been lawful, the appellant would have acquired permanent residence in 2019.

3. Appendix EU of the Immigration Rules discriminate against some Zambrano carers and are therefore unlawful. It is arguably irrational, discriminatory, r-acist and sexist.

a.) The SSHD have not explained the reasons why their definition of Zambrano carer deviates from the long-established definition, why they have create a subcategory of Zambrano carers who did have leave to remain under Appendix FM on 31 December 2020 versus Zambrano carers who did not have leave to remain under Appendix FM on 31 December 2020; Derivative rights holders who applied to EUSS; EU applicants to the EUSS; Appendix FM and asylum seekers or refugee, or what purpose it serves to exclude them from obtaining settlement under the EU Settlement Scheme.

b.) Zambrano carers are up to 23 times more likely to be refused than any other group who applied to the EU Settlement Scheme. As of 31 December 2022, the SSHD had received 14,790 applications from Zambrano carers. 10,300 Zambrano applications were refused - out of 12,870 decided applications. The total number of refusals for derivative rights applications 10,790. Zambrano applicants accounted for 95% of the total refusals. Only some 2570 Zambrano applicants were successful as of 31 December 2022. For non-EEA nationals, the top 5 nationalities in concluded applications were: Indian (86,990), Pakistani (74,230), Brazilian (54,920), Nigerian (34,820) and Albanian (34,250).

c.) The Preamble of the Withdrawal Agreement requires parties to ensure that rights under the Agreement are enforceable and based on the principle of non-discrimination. Article 12 Non-discrimination says, "Within the scope of this Part, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality within the meaning of the first subparagraph of Article 18 TFEU shall be prohibited in the host State and the State of work in respect of the persons referred to in Article 10 of this Agreement."

d.) In the case of Rottman, the CJEU ruled that "even in the absence of a cross-border element, Article 20 TFEU opposes a national measure which does not formally deprive an individual of the rights attaching to his or her status as an EU citizen but, in practical terms, produces the same effect."

e.) The case of Dereci is about deprivation that arises due to some official action taken by a country that affects many. Appendix EU is a national measure that deprives rights to a subset of people who are mainly women of black, Asian and Eastern European heritage their right to obtain settlement under EUSS. Appendix EU discounts their acquired the right to reside before 31 December 2020.

f.) In Juszczyszyn v. Poland at para 311, the Court writes, "The real focus of the Court’s scrutiny has been more on the ensuing and closely connected issue: whether the restriction is necessary or justified, that is to say, based on relevant and sufficient reasons and proportionate to the pursuit of the aims or grounds for which it is authorised.Those aims and grounds are the benchmarks against which necessity or justification is measured (see Merabishvili, cited above, § 302)." The purpose of limiting the changes is to discriminate against migrants and facilitate a hostile environment.

g.) UN experts say discrimination against people of African descent is structural, institutional and systemic. The United Kingdom has ratified and is bound by the following instruments: International Convention on the Elimination of All Forms of facial Discrimination, International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights, Convention on the Elimination of All Forms of Discrimination against Women, Convention on the Rights of the Child Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, International Convention for the Protection of all Persons from Enforced Disappearance and the Convention on the Rights of Persons with Disabilities. As UN Secretary-General António Guterres’ said in remarks to the Human Rights Council, in Geneva on 27 February 2023, "Refugee and migrant rights are human rights. They must be respected without discrimination."

h.) The applicants submitted that they have been treated differently in respect of their enjoyment of their rights under Article 8 of the Convention from other persons who were granted settlement under Appendix EU of the Immigration Rules in the United Kingdom. In particular, they rely on the example of other Zambrano carers, 2500 of whom had been granted settlement under Appendix EU in the United Kingdom. The applicants also submit that Zambrano carers who had leave to remain under Appendix FM had been in an analogous position to Zambrano carers who did not have leave to remain under Appendix FM at 31 December 2020. In each case the person had established an entitlement to temporary residence in the United Kingdom. The difference in treatment between Zambrano carers who had leave to remain under Appendix FM, on the one hand, and Zambrano carers who did not have leave to remain on "Brexit Day", on the other, can not be objectively and reasonably justified. They have been treated differently, without objective and reasonable justification, from other applicants to the EU Settlement Scheme. They are over ten times more likely to be refused settlement by the Secretary of State for the Home Department.The applicants rely on the domestic decisions of [Akinsaya?] and [?], in which both the Court of Appeal did not appear to determine a public interest justification for distinguishing between Zambrano carers with leave to remain under another part of the Immigration Rules on 31 December 2020, versus those who did not, especially given both are considered Zambrano carers under the 2016 EEA Regulations.

4. The SSHD's refusal interferes with and/or violates the appellant's Article 8 rights under the European Convention on Human Rights, the Human Rights Act and the UN instruments.

a.) Human rights should always be considered by the UK judges where related case law by the European Court of Human Rights exists. Judges have a responsibility to conduct an Article 8 human rights balancing exercise. It would depend on whether or not she had a criminal record, what benefit she could bring to UK society, how long and deep her ties to British friends, or partners, etc.

b.) The Upper Tribunal's decision not to apply ECtHR jurisprudence to EUSS appeals, as explained in Celik v SSHD, is currently undergoing a challenge before the Court of Appeal. The Court has accepted an appeal on all grounds.

c.) The Supreme Court explained when case law from the European Court of Human Rights should be followed: ‘where there is a clear and consistent line of decisions whose effect is not inconsistent with some fundamental substance or procedural aspect of our law, and whose reasoning does not appear to overlook or misunderstand some argument or point of principle, we consider that it would be wrong for this court not to follow that line’ at [48]. ECtHR decisions which concern migrants and their right of permanent residence are clear and consistent.

d.) Per the ECHR guidance at para. 172, "An effective right: the parties to the proceedings have the right to present the observations which they regard as relevant to their case. This right can only be seen to be effective if the observations are actually “heard”, that is to say duly considered by the trial court. In other words, the “tribunal” has a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties (Kraska v. Switzerland, § 30; Van de Hurk v. the Netherlands, § 59; Perez v. France [GC], § 80).

e.) In the 2018 ECtHR case of Hot v Croatia, the Court dismissed the Government’s request and 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.

f.) In the 2020 ECtHR case of Sudita Keita v Hungary, "The Court 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."

g.) In the 2021 ECtHR case of M.A. v. Denmark, the Court agreed at paragraph 194 that, "Having regard to all the above considerations, the Court is not satisfied, notwithstanding their margin of appreciation, that the authorities of the respondent State, when subjecting the applicant to a three-year waiting period before he could apply for family reunification with his wife, struck a fair balance between, on the one hand, the applicant’s interest in being reunited with his wife in Denmark and, on the other, the interest of the community as a whole to control immigration with a view to protecting the economic well-being of the country, to ensuring the effective integration of those granted protection and to preserving social cohesion (see paragraph 165 above)."

F. Conclusion
The Court is invited to allow the appeal.

The Court of Appeal

Upper Tribunal Judge Mostyn J rightfully held that the Secretary of State had erred in her understanding of
(a) the Zambrano jurisprudence and
(b) regulation 16 of the 2016 Regulations.

Court of Appeal Judge Lord Justice Underhill held

If the Secretary of State's purpose in wanting to "understand the Zambrano jurisprudence" was indeed to restrict rights under the EUSS to people whose right to reside at the relevant dates directly depended on Zambrano, then her approach was consistent with the EU case-law.

and,

But if her intention was to extend those rights to all those carers whose removal would result in an EU citizen dependant having to leave the UK, then the exclusion of carers who currently had leave to remain on some other basis would evidently be inconsistent with that purpose.

Problems with what Lord Justice Underhill said:

1.) There is the obvious problem that the matter is not settled. The Home Office and many judges still believe Zambrano rights go away if someone gets leave to remain under Appendix FM - even though Akinsaya won.

2.) Underhill LJ does not explain in clear and simple terms what he means by "directly depended on Zambrano". If you have a derivative residence card, then your rights "directly depend" on Zambrano. It doesn't matter whether you also have leave to remain under Appendix FM or not. His language is confusing.

3.) The distinction Underhill LJ tries to create two separate groups of Zambrano carers:

• Group one represents people whose rights to reside directly depend on Zambrano case law.

• Group two represents carers whose removal would result in an EU citizen dependent having to the leave the UK.

4.) Zambrano case law defines Zambrano carers as people whose removal would result in an EU citizen dependent having to leave the UK. Therefore, there is no difference between group one and group two. Underhill LJ's decision lacks internal consistency.

5.) Underhill LJ may be trying to imply that people who held leave to remain under Appendix FM do not "directly depend" on Zambrano. As a judge, he has a responsibility to assess whether such a policy by the Home Office makes sense. Is it in society's interests to have such a policy? Is the policy potentially discriminatory? The Court's failure to asses is why I call the judges "policemen with wigs".

Celik & Akinsaya

Two cases collectively deny Zambrano carers, Celik and Akinsaya. Celik denies Zambrano carers the right to have their human rights taken in to Account. The Court of Appeal's decision in Akinsaya (not the one before the Upper Tribunal) is used by the Home Office and some judges to deny Zambrano carers recognition as Zambrano carers. Celik was made by the President of the Upper Tribunal. It is clear and wrong. Akinsaya (Court of Appeal) was made by a Lord Justice of the Court of Appeal. It is unclear and wrong. Celik is being appealed to the Court of Appeal. Akinsaya should have been appealed to a higher court but was not. The First-tier Tribunal, Upper Tribunal and Court of Appeal have gotten it wrong on Zambrano carers time and time again. The biggest failure was the idea that Zambrano carers were temporary residents on par with au pairs. That is why I urge people to consider appeals to higher courts.

How the deck is stacked against Zambrano carers

1.) The Home Office refuse approximately 90% of Zambrano EUSS appeals based on figures as of 31 December 2022. It is discrimination and violates the Withdrawal Agreement, the UK Human Rights Act, the ECHR and UN commitments.

2.) The President of the Upper Tribunal told judges not to consider human rights in the Celik case. This case is undergoing appeal, but I bet the UK does absolutely nothing to 'make things right' if Celik is overturned.

3.) The Court of Appeal decided Akinsaya in such a way that, even today, many, many judges still believe Zambrano carers who had leave to remain under Appendix FM are no longer Zambrano carers. By creating such a confusing document, they overturned the progress made by Mostyn J's decision. There is no "effective remedy" to Akinsaya because everyone sees what they want. There is no agreement on what the Court of Appeal decided.

4.) The First-tier Tribunal and Upper Tribunal judges refuse to follow the terms of the Withdrawal Agreement. The terms require them to take the E.K. case into account. If you mention the case, they will pretend as if they didn't read it in your submissions. They refuse to engage.

5.) The judges refuse to ask the question, "Why?". Why did the Home Office

• remain quiet for years, tricking Zambrano carers into applying for Appendix FM, then

• suddenly start telling people to apply for Appendix FM and then

refuse those Zambrano carers for having leave under Appendix FM?

Further questions the judges have not asked the Home Office
How is that not misdirection? How is it not discrimination? How does pushing people into Appendix FM serve society's interests? How is it fair to do that given that Appendix FM is less beneficial and more restrictive than Appendix FM? How is the policy not discriminatory? What if the UK withdraw from the Council of Europe, in which case the ECHR no longer applies? Will people on Appendix FM lose their right to reside? Will those who obtained British citizenship via Appendix FM lose their citizenship? (It seems highly unlikely, but you can't assume anything with this Home Office.)

Further questions for the judges
Why are the judges now encouraging Zambrano carers to apply under Appendix FM? Why would the judges promote a route that is worse and could be closed by the end of the year? Is the judge's behavior not unethical?

The Court of Appeal

The Upper Tribunal hasn't published any new cases lately, so I decided to have a look at the Court of Appeal. Bam! There you have it! Drama times 5 asylum cases all rolled in to one. Also, an organization called Asylum Aid filed a claim. It was heard before.....You guessed it! Lord Justice Underhill

https://caselaw.nationalarchives.gov.uk ... v/2023/266

And guess what? The decision is super clear. The Home Office lost. Big time. Why, oh why, can't Zambrano carers enjoy the same level of clarity?

Here are some quotes -

The Court was wrong to find, for the purposes of Article 31 of the Refugee Convention, that the removal of RM, before his asylum claim would have been considered, to a third country with which he has no prior connection, with the avowed aim of deterring them or others from seeking asylum in the UK after arriving by unlawful means, did not constitute a penalty and therefore was consistent with s.2 of the Asylum and Immigration Appeals Act 1993.

The Court erred in its application of the test for measuring the reliability of assurances laid down by the ECtHR in Othman (App No. 8139/09)

The Court erred in rejecting Asylum Aid’s grounds of claim and concluding that the Rwanda Removal Policy was not systemically unfair, in

UK Judges

Provision 15(1)(2) of the EEA Regulations and the case of Ms E.K. are incompatible. The EEA Regulations are a statutory instrument. They are a form of secondary legislation. The EEA Regulations prevented Zambrano carers (and all other holders of derivative residence cards) from achieving permanent residence.

The Immigration (European Economic Area) Regulations 2016
Right of permanent residence

15.—(1) The following persons acquire the right to reside in the United Kingdom permanently—
(2) Residence in the United Kingdom as a result of a derivative right to reside does not constitute residence for the purpose of this regulation.

The case of E.K. (C-624/20)

Quote 1

Article 3(2)(e) of Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents must be interpreted as meaning that the concept of residence ‘solely on temporary grounds’, which is referred to therein, is an autonomous concept of EU law, which must be interpreted uniformly throughout the Member States.

Quote 2

Article 3(2)(e) of Directive 2003/109 must be interpreted as meaning that the concept of residence ‘solely on temporary grounds’, which is referred to therein, does not cover the residence of a third-country national under Article 20 TFEU within the territory of the Member State of which the Union citizen concerned is a national.

The first quote in the case of E.K. means that even though the UK never signed up to the 2003 directive, it doesn't matter. The question of how to define 'temporary resident' applies to every member state within the EU. I know the UK is no longer a member state, but the period for which it was a member, it should have applied the correct interpretation.

The second quote tells you the correct interpretation of who is a temporary resident. It says that anyone in the UK based on Article 20 TFEU is NOT a temporary resident. Moreover, that person is generally eligible for permanent residence after five years. Therefore, if you achieved five years' residence before Brexit, you should have been able to get permanent residence. You were not, due to the statutory instrument called the EEA Regulations. Moreover, the Withdrawal Agreement says those who had permanent residence prior to Brexit keep their permanent residence. Therefore, Zambrano carers are being unlawfully denied recognition of their acquired right of permanent residence. It is patently obvious to me that the UK judges need to do the right thing and recognise that Provision 15(1)(2) was unlawful.

References
https://www.legislation.gov.uk/uksi/2016/1052/made
https://curia.europa.eu/jcms/jcms/j_6/en/

Declaration & Mandatory Order (Admin Court)

Zambrano carers had a legitimate expectation that the Upper Tribunal and First-tier Tribunal would fulfill their duties under the Political Declaration and Withdrawal Agreement. The principle of legitimate expectation is recognized in the case of R v Liverpool Corporation, ex parte Liverpool Taxi Fleet Operators Association [1972] 2 QB 299. (Zambrano carers like Akinsaya also had a legitimate expectation that the Home Office would rely on the EU's definition of a Zambrano carer. Instead, the Home Office created a new, far more restrictive definition years after the Brexit vote and the scheme launched).

The First-tier Tribunal and Upper Tribunal judges behave in an unlawful manner when they fail to

• have due regard for the ECHR

• apply Dereci and make decisions in a proportionate manner

• have due regard for case law passed after the transition date; i.e, the case of E.K

When a public authority does not act in a lawful manner, a person can as the Admin court for a declaration to clarify the respective rights of Zambrano carers and the obligations of the judges. A person can also apply to the Admin court for a mandatory order to compel the judges to apply the ECHR, Dereci and the case of E.K. to the EUSS appeals.

Apply here via form N461- https://www.gov.uk/government/publicati ... tive-court

HMCTS E-Filing service for citizens and professionals

Send files, pay fees and track cases in the High Court and the upper tribunals. The E-Filing service is an online tool managed by HM Courts and Tribunals (HMCTS). It can be used by legal professionals on behalf of their clientsor by people who do not have a solicitor, known as ‘litigants in person’.You can securely submit, pay for and manage your cases online for the: Court of Appeal (Civil Division), Upper Tribunal – Administrative Appeals Chamber, Upper Tribunal – Immigration and Asylum Chamber . Use the E-Filing registration form to create your account and start sending documents. You should use your email address as your username.

https://www.gov.uk/guidance/hmcts-e-fil ... fessionals
https://efile.cefile-app.com/login

Further Submissions

You may want to submit claims that go beyond just you. One wider claim is that the Secretary of State for the Home Department (SSHD)'s actions are arbitrary. Another claim is the attacks on the Judiciary by Braverman and the media have led to chaos in decision-making by the Courts. Judges are influenced by anti-migrant public pressure. Here is a quote you may find interesting -

Describing the High Court as "enemies of the people" is a classic first step towards a more autocratic system because the law, the legal institutions are always, as it were, one of the first constraints on arbitrary actions by politicians. The real worry in Britain is not autocracy now, but chaos, as it were, disorder, a continued failure. And so, I would say, ten, fifteen years from now in Britain, things might be much, much more dangerous than they are now. ~ Martin Wolf, Chief Economics Commentator, The Financial Times

• Arbitrary actions by politicians = The sudden redefinition of the term "Zambrano" to a much smaller group of people

• Chaos = the lack of consistency in the decisions on EUSS appeals, the Celik decision, etc

ECtHR Judges & Admissibility

https://www.echr.coe.int/Documents/Admi ... de_ENG.pdf

Getting your claim accepted as 'admissible' is the first step with the ECtHR. 82% of claims are declared "inadmissible". Zambrano carers have an uphill battle before the European Court on Human Rights Judges.

The best situation would be for Zambrano carers to file as a group. But, if you file individually, the refusal reason the ECtHR judge will give is probably this: "There is no appearance of a violation, based on the merits".

When the ECtHR judge says this, they are supposed to base this conclusion on similar cases. In all fairness, the judge should tell you which case(s) they used as a basis to say your application would fail. But they probably won't. They will probably just say there is no "appearance" of a violation, based on the "merits". If you believe your Article 8 ECHR rights have been violated, I strongly encourage you to consider applying to the ECtHR anyway.

The more people who apply, the greater the chance of a case going through to the next stage. If a Zambrano carer eventually wins, the ECtHR judges will not be able to say the applications are without merit. (The ECtHR judges should not assume Zambrano carers would lose given the number of cases around residence rights but, we are where we are). Nothing will change unless people apply, in my opinion. Good luck!

The Council of Europe (ECHR, ECtHR)

The UK is a member of the Council of Europe. The Council has a human rights commissioner. Her name is Dunja Mijatovic. She effectively said the UK's Illegal Migration Bill is incompatible with the ECHR. She directly called on MPs to vote down the bill.

There is no reason why the same situation could not happen for Zambrano carers. Appendix FM is not the same as Appendix EU. It is worse. The reason for excluding a majority of Zambrano carers from Appendix EU is not proportionate, in my opinion.

The Government have signaled they will leave the Council of Europe and ECHR if the ECtHR rules against them.

Zambrano updates???

Are many actual Zambrano carers still following this thread? If so, perhaps you would be willing to provide an update on your situation? Are things going well or worse than you expected? If not, why not? Have you switched to Appendix FM? Are you happy with the decision? Are you still waiting for a decision? Have you been waiting long?

I may limit my posts going forward if everyone has finished. It's all a bit time consuming.

marcidevpal wrote: ↑

Tue Mar 28, 2023 2:18 pm

Zambrano updates???

Are many actual Zambrano carers still following this thread? If so, perhaps you would be willing to provide an update on your situation? Are things going well or worse than you expected? If not, why not? Have you switched to Appendix FM? Are you happy with the decision? Are you still waiting for a decision? Have you been waiting long?

I may limit my posts going forward if everyone has finished. It's all a bit time consuming.

Hi Marcidevpal,

I have been trying to respond to your previous response regarding Northern Ireland, However the sight keeps shutting me out and sometimes doesn’t load and sometimes it’s just my wifi.

As per Zambrano, I am still waiting on the outcome of the appeal. Tbh, I received a generic response after sending my skeleton argument and witness statement to the Home Office and the appeals email address nothing since then.

Regarding the Administrative Review, Home Office has said there is a delay with that. I can’t speak for everyone but as for me. I haven’t went back to APPENDIX FM route, I am waiting on the outcome of my Zambrano appeal and I intend to pursue it further even if the appeal is lost. It would appear that everything regarding Zambrano is at a standstill, Home Office, Appeals, Reviews. Some may have given up and went back to Appendix FM others may just waiting. Others, checking for updates.

Please don’t leave us, your information here is very helpful. I check daily for your insightful information and any possible updates with regards to the courts. sometimes the sight doesn’t load, other times it does and I always go back to read whatever I may have missed out from your previous post. I believe others are here similar to me waiting to see what’s next with Appeal, Zambrano, Akinsanya, Review, the Courts etc.

Tbh sometimes I feel hopeless about the whole thing & it’s unfair. I made the Zambrano application in 2021 & here I am 2023 no closer to finding out what’s happening.

But please don’t leave us, you’ve been very helpful to me and I’m sure other silent readers here. I am not sure if anyone has made a new Zambrano discussion topic? If it has and I am not aware can someone please tell me. I’d love to join. If not, and this remains the only one. I’ll remain here for all updates. I don’t want to believe it is the end of the road for Zambrano carers, I have hope.

Thanks again Marcidevpal.

Wishfulgirl wrote: ↑

Tue Mar 28, 2023 3:53 pm

Hey hey Wishfulgirl!

Sorry about your connection problems. Sounds frustrating. I am grateful to everyone for the time and space to summarize a bunch of points. I feel pretty good about what happened, why this has happened, and what needs to happen. But do you not wonder - even a little bit - if it is just a couple of us at this point? Perhaps it is time for the Zambrano carers to take over the thread again. You know, share their stories, support one another, etc.

correction!

I feel good about my understanding of what happened, why this happened and what should be done about it. I don't feel good about what happened. I believe to my core the way Zambrano carers were treated violates basic principles of fairness and justice.

If you are reading this thread....

If you are reading this thread every day or multiple times per week, perhaps your interest in this topic extends beyond the Zambrano carer situation? Maybe, just maybe, you are naturally inclined to a career in the legal profession? Maybe your calling is to work with vulnerable communities? Or, maybe not. Just a thought At the very least, please make sure you vote when you get the right.

marcidevpal wrote: ↑

Tue Mar 28, 2023 5:02 pm

Wishfulgirl wrote: ↑

Tue Mar 28, 2023 3:53 pm

Hey hey Wishfulgirl!

Sorry about your connection problems. Sounds frustrating. I am grateful to everyone for the time and space to summarize a bunch of points. I feel pretty good about what happened, why this has happened, and what needs to happen. But do you not wonder - even a little bit - if it is just a couple of us at this point? Perhaps it is time for the Zambrano carers to take over the thread again. You know, share their stories, support one another, etc.

Hi,

Yes I agree with you. When we were all making Zambrano application in 2021 a lot of people were here , regular updates, opinions etc.. However, since the Akinsanya court hearing and Home Office dished out their decision, which was a rejection in majority of cases. It kind of died down since. A fee asked about appeal process and other administrative review but otherwise that’s it.

I was starting to think maybe a lot of people on the board is probably in the same situation as me. Currently Awaiting possible outcome of the appeal process and or administrative review. I know a few people who received the same email as me regarding a delay to administrative review with Zambrano carers.

It would be good to get updates from everyone though, whether that be changed if they switched back to Appendix FM, Administrative Review, Appeal Zambrano etc. Even from people who weren’t on Appendix FM. Let’s hope it everyone hasn’t given up.

marcidevpal wrote: ↑

Tue Mar 28, 2023 7:13 pm

If you are reading this thread....

If you are reading this thread every day or multiple times per week, perhaps your interest in this topic extends beyond the Zambrano carer situation? Maybe, just maybe, you are naturally inclined to a career in the legal profession? Maybe your calling is to work with vulnerable communities? Or, maybe not. Just a thought At the very least, please make sure you vote when you get the right.

It's funny, because I've been told this quite a few times. I am always reading, looking up on the laws, court case etc..

I'm not sure I have it within me though. I feel in this field, one requires a certain resilience to go up against Home Office, the courts etc.. It's not something I believe I have unfortunately. But the thought has crossed my mind a few times.

marcidevpal wrote: ↑

Tue Mar 28, 2023 7:13 pm

If you are reading this thread....

If you are reading this thread every day or multiple times per week, perhaps your interest in this topic extends beyond the Zambrano carer situation? Maybe, just maybe, you are naturally inclined to a career in the legal profession? Maybe your calling is to work with vulnerable communities? Or, maybe not. Just a thought At the very least, please make sure you vote when you get the right.

Hi, I've just contacted the tribunal & they've said the appeal is set for the 14th of June. I'm very nervous now! It's a paper hearing. I am really hoping for the best outcome.