Zambrano Settled Status EU settlement scheme Paper Application Form - NEW

marcidevpal wrote: ↑

Tue Jul 11, 2023 4:31 pm

Wishfulgirl wrote: ↑

Tue Jul 11, 2023 4:16 pm

And it looks like I can make an application for retained rights, she advised I get a solicitor....She did say in order to apply, I'd need to cancel my zambrano administrative review first.

Fantastic news, Wishfulgirl! I agree you are definitely entitled to settlement.

The Home Office legal team should read your letter and accept your offer. You are in the middle of legal action with the legal team, so the most efficient way forward is to communicate with them and through them. There are situations where the hotline says one thing and the legal team say something else...You want everyone at the Home Office to be on the same page.

I think you want to avoid a situation where you are dealing with different departments in the Home Office. Ideally, the Home Office legal team tells the EUSS team to either grant you settlemet or work with you on filing again.

Thank you Marcidevpal, Let's hope I get a response of some sort from the Home Office. I've now gone ahead and added myself to few EU settlement groups on social media, FB etc. I've asked in the groups in hopes of finding a competent solicitor who is experienced in dealing with EU cases. As well as conducting my research on Google for others. *Fingers crossed* I am hopeful I'll find one by God's grace.

If anyone on here is reading my circumstances and can offer any suggestion regarding a solicitor, you can find me, it’s the same username. I’d very much appreciate it.

Wishfulgirl wrote: ↑

Tue Jul 11, 2023 4:55 pm

Hi Wishfulgirl, Sounds like a plan. I hope someone can help you file for permission to appeal by the deadline.

marcidevpal wrote: ↑

Tue Jul 11, 2023 5:02 pm

Wishfulgirl wrote: ↑

Tue Jul 11, 2023 4:55 pm

Hi Wishfulgirl, Sounds like a plan. I hope someone can help you file for permission to appeal by the deadline.

Hi Marcidevpal,

Yes It does, here’s to hoping for the best. You’ve been a gem here on this forum for the past few months. Even with limited responses, you kept going which is very helpful because people are still here reading some just not responding. A lot is to do with waiting on the update regarding Akinsanya. Now that there is movement, I’m hopeful everyone will gather here again in the future to celebrate.

Wishfulgirl wrote: ↑

Tue Jul 11, 2023 5:33 pm

You’ve been a gem here on this forum for the past few months.

I have been commenting for more than a few months, but I get your point. Onward and upward!

Repercussions

Let's say you have an appeal pending against the Home Office. You just lost at the First-tier Tribunal and you have the option to apply for permisison to appeal. You ask the Home Office Legal Department to work with you anyway to resolve the situation.

Let's say you call the EUSS Contact Center and a customer service center supervisor tells you to make a new application and withdraw your administrative review application.

Any incentive the lawyer for the Government has to work with you has taken a back seat. The lawyer may conclude you are not going to apply for permission to appeal, you will withdraw your administrative review application and put in a new application. The power returns to them completely in that moment.

The alternative is to only speak to the legal team and keep the appeal going with the court. The legal team just has your offer letter to get a sense of what you are thinking and/or planning. Moreover, they know the offer letter can be used against them if you are granted permission to appeal.

The point is, by contacting customer service during an appeal, it creates uncertainty. It increases the chances the lawyers for the other side will let things play out rather than engage in negotiations. It also can look bad to the judge. But, you never know. You may get lucky.

Bottom line: You can't trust the other side's customer service team to be honest when you're in the middle of a legal dispute. Anything they say can't be held against them, because you are not supposed to be talking to them. You are supposed to be talking to their legal representatives.

marcidevpal wrote: ↑

Tue Jul 11, 2023 5:59 pm

Repercussions

Let's say you have an appeal pending against the Home Office. You just lost at the First-tier Tribunal and you have the option to apply for permisison to appeal. You ask the Home Office Legal Department to work with you anyway to resolve the situation.

Let's say you call the EUSS Contact Center and a customer service center supervisor tells you to make a new application and withdraw your administrative review application.

Any incentive the lawyer for the Government has to work with you has taken a back seat. The lawyer may conclude you are not going to apply for permission to appeal, you will withdraw your administrative review application and put in a new application. The power returns to them completely in that moment.

The alternative is to only speak to the legal team and keep the appeal going with the court. The legal team just has your offer letter to get a sense of what you are thinking and/or planning. Moreover, they know the offer letter can be used against them if you are granted permission to appeal.

The point is, by contacting customer service during an appeal, it creates uncertainty. It increases the chances the lawyers for the other side will let things play out rather than engage in negotiations. It also can look bad to the judge. But, you never know. You may get lucky.

Bottom line: You can't trust the other side's customer service team to be honest when you're in the middle of a legal dispute. Anything they say can't be held against them, because you are not supposed to be talking to them. You are supposed to be talking to their legal representatives.

Gotchu! Makes a lot of sense. I did thought (hmm) today when she said I’ll have to withdraw my administrative review. Wasn’t sure why I needed to do so, But I understand what your saying fully, I’ll refrain from engaging in the future.

I intend to appeal the courts decision though, with without a solicitor.

Wishfulgirl wrote: ↑

Tue Jul 11, 2023 6:14 pm

But I understand what your saying fully, I’ll refrain from engaging in the future.

I think that would be a wise move, indeed. Another thing you said that struck me - You will find a 'competent' solicitor. How does one know any given professional is competent? Often not until it is too late. However, you have an excellent opportunity before you - the UTIAC Tribunal Decisions. You can see who has argued Zambrano cases or EUSS cases. You can see their track record. Even if they are not taking on new clients, they can REFER you to someone who has the right background...

marcidevpal wrote: ↑

Tue Jul 11, 2023 6:39 pm

Wishfulgirl wrote: ↑

Tue Jul 11, 2023 6:14 pm

But I understand what your saying fully, I’ll refrain from engaging in the future.

I think that would be a wise move, indeed. Another thing you said that struck me - You will find a 'competent' solicitor. How does one know any given professional is competent? Often not until it is too late. However, you have an excellent opportunity before you - the UTIAC Tribunal Decisions. You can see who has argued Zambrano cases or EUSS cases. You can see their track record. Even if they are not taking on new clients, they can REFER you to someone who has the right background...

Great idea! Thank you. I didn't think of that! I'll add that to my list.

Begum: Your appeal can be remitted or retained

If you are granted permission to appeal, the Upper Tribunal judge can
- rule against you
- rule in your favour
- send the case back to the First-tier Tribunal

Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC)

https://tribunalsdecisions.service.gov. ... ukut-00046

"Remaking the decision in the UT has the effect of depriving the Appellant of the two-stage decision making process"

It is appropriate to carefully scrutinise
- the nature of the error of law,
- the effect of the unfairness on the decision as a whole,
- along with its nature and extent as part and parcel of the exercise of discretion.

The Upper Tribunal judges are willing to do a balancing exercise when it comes to deciding whether or not to send an appeal back to the First-tier Tribunal or decide the appeal themselves.

Isn't it interesting how the UT and FtT judges are NOT willing to do a balancing exercise for EUSS appellants with regard to their human rights?

Wishfulgirl wrote: ↑

Tue Jul 11, 2023 7:04 pm

Your First-tier Tribunal judge did not properly engage with your arguments around being an EU family member. Your judge didn't seem to acknowledge your rights under the Withdrawal Agreement....That's a pretty big error of law.

Even if you 'win' at the Upper Tribunal, there is a chance your appeal is sent back to the First-tier Tribunal to be remade.

Or, maybe the UT judge will just decide it.

marcidevpal wrote: ↑

Tue Jul 11, 2023 10:03 pm

Wishfulgirl wrote: ↑

Tue Jul 11, 2023 7:04 pm

Your First-tier Tribunal judge did not properly engage with your arguments around being an EU family member. Your judge didn't seem to acknowledge your rights under the Withdrawal Agreement....That's a pretty big error of law.

Even if you 'win' at the Upper Tribunal, there is a chance your appeal is sent back to the First-tier Tribunal to be remade.

Or, maybe the UT judge will just decide it.

That's what I observed from his decision, I wondered if he decided to just focused on the appeal reason and Home Office refusal decision/ Argument which were all based on Zambrano.

Wishfulgirl wrote: ↑

Tue Jul 11, 2023 10:08 pm

That's what I observed from his decision, I wondered if he decided to just focused on the appeal reason and Home Office refusal decision/ Argument which were all based on Zambrano.

Are you sure you posted the FtT judge's entire decision? Seems a bit short.

Let's recap two points from yesterday.

One, you have spent months thinking the fact that you didn't apply for retained rights disqualifies you as an EU family member. After speaking with the Home Office's Customer Service team, you were finally willing to believe this issue is not a roadblock. That suggests you are not willing to trust your instincts and would rather trust people who have shown themselves to not have your best interests at heart. I say this because you may not find a lawyer, or a lawyer you feel comfortable with. You need to be able to argue with everything you have. That means trusting your analysis and feeling confident in saying them to the next judge.

Two, you seem uncomfortable making the list of reasons why you should be granted permission to appeal to the Upper Tribunal. I have already made a few posts with some reasons to get you started. Yet, no list. Is it that you are distracted? Or are we having the same problem as above? You don't feel confident committing to the reasons I put forward AND/OR you don't feel comfortable creating reasons on your own? You could reflect on these questions over time.

One key advantage to creating a list now, is that you can use it to "interview" potential solicitors. Show the list to the prospective solicitor. If the person disagrees, that's not necessarily bad. Ask them why. See if their reasons make sense to you. Ideally, you want someone who reads your list of errors of law and says to you, "Yes, I agree (or disagree in ways you agree with) and really want to fight your case. Your case is an example of the reason I went into immigration law."

Errors of law - Example (Repost from page 221)

1.) FtT judge X did not consider all the relevant facts and circumstances of my application. The judge failed to recognise the rights afforded to me under the Withdrawal Agreement as the family member of an EU citizen. The rights include the following:

a.) The right to permanent residence after five years

b.) The right to help from the Home Office in making an application. The Home Office never considered that I was eligible under the EU rules.

c.) The right to be considered a 'family member' as defined by Article 9 and within scope of Article 10

2.) Article 18(1) of the Withdrawal Agreement entitles me to challenge the legality of the Immigration Rules (Appendix EU). The legality of the Home Office's position on treating Appendix FM as a disqualifier is pending judicial review in the case of Akinsanya v SSHD. It is premature to conclude the Home Office's position is lawful.

3.) The FtT judge did not conduct a balancing exercise under Article 8 ECHR or consider if the Home Office's refusal was proportionate under Article 18(1)(r) of the Withdrawal Agreement. As a UK resident since 2010, it is disproportionate to expect me to remain under Appendix FM until 20XX.

4.) The FtT judge did not engage with my arguments around discrimination. Over 90% of Zambrano carers were refused settlement. No other category came close to this refusal rate.

5.) The purpose of Article 18 is to establish if I met the residence requriments based on meeting the conditions of Title 2. The judge did not consider if I met the conditions.

Wishfulgirl wrote: ↑

Fri Jul 07, 2023 3:32 pm

The appellant is xxxxxxx (the Appellant), date of birth xxxxx she is female and is a citizen of xxxxx. The Appellant’s nationality is accepted. For the reasons that I set out below I have dismissed the Appellant’s appeal.

The Appellant’s Immigration History

The Appellant says and I accept that she arrived in the UK 2010. I note that she did so subject to an EEA Family permit valid from the 4th October 2010 to 4th April 2011 granted by the Secretary of State for the Home Department (the SSHD) under the provisions then immigrations regulations for EEA residents and their families. I add that she was further granted leave to remain by the SSHD by virtue of a Residence Card granted under the EEA regulations. Such Residence card was valid from 19th July 2011 to 19th July 2016.

Thereafter the Appellant applied for leave to remain and was granted such leave from the 10th October 2019 to 9th April 2022. I have copy residence documents establishing so.

On the 11th August 2021 the Appellant made an application for what is described in the documentary evidence as a returning resident under Appendix EU of the immigration rules (the Rules). Her claim is made as a Zambrano carer in light of connection to three of her four children. On the 21st July 2022 the Appellant's application was considered, both in respect of settled and pre settled status under Appendix EU of the Rules, by the Secretary of State for the Home Department (the SSHD) but refused for reasons set out in a letter (the Refusal Letter) of that date. The Appellant sought to appeal that decision by application dated August 2022, and she pursues her appeal to this Tribunal pursuant to the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 (the Exit Regulations) and section 82 of the Nationality, Immigration and Asylum Act 2002.

The Legal Framework of this Decision

The background to the Appellant’s leave to remain in the UK and/or appeal is made in respect of her connection to her children xxxxx, xxxx, (date of birth xxxxx, xxxxxxxx xxxxxxx date of birth xxxxxx and xxxxxx , (the Children). The Children I accept are British citizens – I note upon the documentary evidence that their father is xxxxxxxx . I further note that the Appellant has a further child xxxxx . It is the Appellant’s case that she is their carer. The Appellant’s application was made and considered under Appendix EU of the Rules and in particular rule EU11 and EU14, and refused it is said under EU6.

The Burden and Standard of Proof

The burden of proof on all matters is upon the Appellant. The standard of proof is the normal civil standard. So far as the Immigration Rules are concerned it is for the Appellant to show, to that standard, that she meets the requirements of the Rules. I add it is for the Appellant to prove the documents upon which she relies are reliable as per Tanveer Ahmed [2002] UKIAT 00439 approved of by QC (verification of documents; Mibanga duty) China [2021] UKUT 00033.

Evidence

The SSHD provided a tribunal bundle, the RB, which runs to 178 pages. At page 2 of the bundle is an index set out in sections A-F. I do not set out the contents they are set out in the Index.

The Appellant has provided numerous documents including a copy of her residence permit, EEA family permit, residence card (EEA), copy passports of the Children, letter mental health services xxxx, the Appellant’s skeleton argument (the ASA), various letters from xxxx social service children's services and the Appellant’s witness statement. In addition I have the appeal application (of 30 pages).

I was also provided with the copies of case law namely Berrehab v Netherlands [1986] 10730, Birch v SSHD [2020] UKUT 86, Ahmut v Netherlands 21702/93, Boughanemi v France 22070/93, Abdulaziz and others v UK 9214/80, Mehemi v France 53470/99, X, Y and Z v UK 21830/93, EK v Netherlands 7256/11, SSHD v Giraldo [2015], Gul v Switzerland 23218/294, Huang and others v SSHD [2007] UKHL 11, Johansen v Norway 17384/90. I add that I did not find the case law helpful noting that these authorities, largely, relate to matters and claims brought under the European Convention of Human Rights (the ECHR) and articles 2, 3 and 8 of the convention. I note that I am concerned with an application made under Appendix EU of the Immigration Rules, further that the Appellant, so far as I can see has made no claim in respect of an asserted breach of the ECHR and in any event the SSHD have not considered such a claim. I am therefore prohibited from considering in particular (as it might apply in the Appellant’s circumstances) article 8 of the ECHR. I further note that it was and is open to the Appellant to make an application under Appendix FM of the Rules. I have not considered whether such application would be successful as it is not open to me (for the same reasons) to do so.

I remind myself it is for the parties to provide the evidence upon which they intend to rely and of their responsibility to assist the tribunal to further the overriding objective as per rule 2(4) of the The Tribunal Procedure (First Tier Tribunal) (Immigration and Asylum Chamber) Rules 2014.

This matter was considered on the papers with the consent of the parties.

I do not repeat the documentary evidence but shall refer to those aspects that I found particularly pertinent to the issues I was considering, where I do so, I do not exclude any other evidence but merely seek to identify that particular evidence that I found particularly pertinent on the issue.

I have read all the documents placed before me. I have read the case authorities to which I have been directed by the parties and to those which I have referred to in this Decision I have considered all this evidence when coming to this Decision. I remind myself that it is for the parties to provide the documentary evidence upon which they seek to rely.

I have taken into consideration all the evidence before me, as well as the parties submissions even where not specifically mentioned in reaching this decision.

In determining this Appeal I have considered section 81(1) of the 2002 Act and in so doing I have considered all avenues open to this Appellant.

The Appellants’ Claim and Submission

The Appellant’s case is that she is living in the UK with the Children as their sole carer. It is said that the three youngest Children’s father, was violent and abusive to her. She has some mental health conditions. The Appellant’s claim is made as a Zambrano carer seeking reliance under Appendix EU of the Rules and section 55 of Borders Citizenship and Immigration Act 2009 (Section 55) and further article 3 of the UN Convention of the Rights of the Child.

I note her statement and the ASA as to her position and argument made before me. I do not repeat this evidence or submission it is clearly set out in those documents and in the documentary evidence.

The Respondent’s Decision

The Respondent relies upon the Refusal Letter. The Respondent considered the Appellant's application but refused it because, it was said that the Appellant did not meet the eligibility requirement of the Appendix EU. It is said that the SSHD had regard to the Section 55 in respect of the Children.

The SSHD refers to the criteria of the then under the Rules (the Rules in respect of Zambrano carers have changed since the application and decision).

Findings of Fact and Credibility

I accept the Appellant is a xxxx national. I accept the immigration history as is set out above at [3] to [6] above. I accept that the Children are her children and that she cares for them. I accept upon the evidence of the mental health letter, social workers letters, the school letter and her statement to me that she is the sole carer of all of her children. They are all I find living in the UK.

I thus conclude that the Children are all British citizens, the Appellant is their primary carer and I further conclude that each of the Children would be unable to reside in the UK or EEA state should the Appellant leave the UK indefinitely. I find that the Appellant would meet the criteria under regulation 16(5) of the Immigration (EEA) Regulations 2016 were they still in force and to the extent that they are relevant under Appendix EU. I make this finding accepting the social worker evidence that the Appellant was a victim of domestic violence by the Children’s father and that he no longer has contact with them. They are all young, I judge that they have lived in the UK all their lives (at least I have no evidence to suggest to the contrary) they require a person with parental responsibility to care for them. I note that the two eldest (xxxx and xxxx are over the age of 7 years) thus they have spent at least 7 years in the UK - a period of time which the SSHD through another aspect of the Immigration Rules acknowledges as significant. I take such matters into account in my best interest assessment applying Section 55 and conclude that it is in their best interest that they should remain in the UK in the care of the Appellant.

But, I must apply the Rules under which the Appellant makes her application. My Section 55 assessment cannot augment Rules such as to confer compliance with the Rules. The documentary evidence as to the family permit, residence card and residence permit confirm to me the various ways in which the Appellant has had immigration status in the UK since October 2010. Her last such status I find to be the residence permit which I judge was obtained under Appendix FM of the Rules (as the Refusal Letter asserts) and was for the period 10th October 2019 to April 2022. She made the application under appeal on the August 2021 thus during the currency of that leave to remain.

The definition in Annex 1 of Appendix EU stated (at the date of application and date of decision – it has since changed) as,

Person with a Zambrano right to reside

a person who has satisfied the Secretary of State, including (where applicable) by the required evidence of family relationship, that, by the specified date, they are (and for the relevant period have been), or (as the case may be) for the relevant period in which they rely on having been a person with a Zambrano right to reside (before they then became a person who had a derivative or Zambrano right to reside) they were:
(a) resident for a continuous qualifying period in the UK with a derivative right to reside by virtue of regulation 16(1) of the EEA Regulations, by satisfying: (i) the criterion in paragraph (1)(a) of that regulation; and (ii) the criteria in:

(aa) paragraph (5) of regulation 16 of the EEA Regulations; or
(bb) paragraph (6) of that regulation where that person’s primary carer is, or (as the case may be) was, entitled to a derivative right to reside in the UK under paragraph (5), regardless (where the person was previously granted limited leave to enter or remain under paragraph EU3 of this Appendix as a person with a Zambrano right to reside and was under the age of 18 years at the date of application for that leave) of whether, in respect of the criterion in regulation 16(6)(a) of the EEA Regulations, they are, or (as the case may be) were, under the age of 18 years; and
(b) without leave to enter or remain in the UK, unless this was granted under this Appendix. [my indentations]

This is not an easy definition to read. But I find that the effect of the definition, as set out above - and as applicable in the Appellant’s circumstances - is that she falls outside of that definition because she had leave to remain under Appendix FM and so does not meet (b) of the definition. Put another way because she had leave to remain granted under Appendix FM of the Rules at the specified date (31st December 2020 – when the UK left the EU) and I note at the date of the application, she did not have a derivative or Zambrano right to reside at that time and so does not meet the requirements of the Rules in this regard. I note and have had regard to Akinsanya v SSHD [2022] EWCA Civ 37 but this authority does not assist the Appellant noting in particular the decision of Underhill LJ at [54] to [70] who concluded that the definition as set out above did not infringe the general principles of Zambrano albeit that the SSHD’s intentions in framing (b) of the definition was to restrict rights for those such as those in the Appellant’s circumstances. I note that the SSHD has clarified that it maintains the position, as per the Zambranao EU settlement Scheme guidance of 13th June 2022 as to the definition of (b) above above - notwithstanding the observations of the Court in Akinsanya v SSHD.

Conclusion

In light of the above findings I conclude that the Appellant does not meet the eligibility requirements of EU11, EU12 or EU14. As such her appeal must fail.

The Appellant's appeal was unsuccessful and so I do not make a fee award.

Notice of Decision

The appeal is dismissed under the Immigration Rules applying Appendix EU.

Wishfulgirl wrote: ↑

Tue Jul 11, 2023 10:08 pm

That's what I observed from his decision, I wondered if he decided to just focused on the appeal reason and Home Office refusal decision/ Argument which were all based on Zambrano.

@Wishfulgirl,

Per your judge:

The Appellant’s claim is made as a Zambrano carer seeking reliance under Appendix EU of the Rules and section 55 of Borders Citizenship and Immigration Act 2009 (Section 55) and further article 3 of the UN Convention of the Rights of the Child.

It seems you told the judge in your submissions to look at Appendix EU, section 55 and article 3 of the UN Convention.

Where did you get that from? Did someone tell you to do that? Is your judge ignoring some of your arguments? Something doesn't make sense.

It appears you didn't mention the Withrawal Agreement. That's probably why he didn't look at it. And since he didn't look at the Withdrawal Agreement, he didn't conclude you had a right to settlement.

If you file an appeal and tell the judge to look at the (unlawful) Appendix EU, they are going to rely on the (unlawful) Appendix EU.

Repost from page 192

Wishfulgirl wrote: ↑

Wed Dec 28, 2022 8:07 pm

I really feel this appeal is gonna be dismissed because now I am definitely unsure what I am doing...I do really need the help as I am running out of time & would be devastated if the appeal is dismissed because I failed to provide the relevant information to the courts and the home office.

To be clear, you should really prepare yourself for the possibility that the First-tier Tribunal judge will say no. Even if you win at the First-tier Tribunal, the Home Office will probably appeal to the Upper Tribunal and you could easily lose at the Upper Tribunal. The goal should be to go to the European Court of Human Rights or the European Court of Justice, or to file a judicial review against provision 15(2) of the 2016 EEA Regulations.

Right now the judges are only willing to consider two grounds for Zambrano carers.

The first ground relies on whether you are covered by the Withdrawal Agreement. The judges generally do not believe Zambrano carers are covered by the Withdrawal Agreement.

Ground two relies on whether a mistake was made on the immigration rules (Appendix EU). The immigration rules clearly say that a Zambrano carer with leave to remain under Appendix FM at the time they applied, are not eligible.

If you raise Article 8 as a ground, the judge will say that the statutory instrument they use to decide the EUSS appeals does not "allow" them to consider your human rights.

Do you understand these points? It is really important that you take the time to understand where the Court stands. Just read it again slowly, taking your time, until it makes sense, or perhaps ask for help?

There are some basic points you have to understand to file an appeal.

Repost from page 192

Another example

NOTE: Please do not copy and paste this example. Just use it as an example.










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

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


[A] CASE SUMMARY

1. The appellant came to the UK as a family member of an EEA national in 2010. At this time, her mother was the civil partner of an Irish national. The respondent granted the appellant a 5 year residency permit in 2011. The EEA national died in 2015. The 5 year EEA residency permit was not renewed nor did the appellant apply for permanent residence.

2. In 2014, the appellant had her first British child with my ex partner. In 2015, the appellant gave birth to her second British child. In 2018, she gave birth to her third British child. A victim of domestic violence, the appellant split from her ex partner in 2018.

3. In October 2019, the appellant applied for EU settlement It was rejected in august 2022Social services instructed the appellant to apply for leave to remain under Appendix FM despite her reservations and desire to apply for a derivative residence card as a Zambrano carer. The respondent granted the appellant further leave to remain which expired in April 2022. The respondent refused the appellant's application under Appendix EU in August 2021.

[] RESPONDENT'S CASE

1. The respondent's refusal letter says .....

[C] ISSUES TO BE DETERMINED

1. Is the appellant entitled to permanent residence as the family member of an EEA national?

2. Is the appellant entitled to permanent residence as the sole carer of three British children?

[D] LEGAL FRAMEWORK

1. The Immigration (European Economic Area) Regulations 2016

https://www.legislation.gov.uk/uksi/201 ... egulation/

“Family member”

7.—(1) In these Regulations, “family member” means, in relation to a person (“A”)—

(a)A's spouse or civil partner;

(b)A's direct descendants, or the direct descendants of A's spouse or civil partner who are either—

(i)aged under 21; or

(ii)dependants of A, or of A's spouse or civil partner;

(c)dependent direct relatives in A's ascending line, or in that of A's spouse or civil partner.

(3) A person (“B”) who is an extended family member and has been issued with an EEA family permit, a registration certificate or a residence card must be treated as a family member of A, provided—

(a)B continues to satisfy the conditions in regulation 8(2), (3), (4) or (5); and

c)dependent direct relatives in A's ascending line, or in that of A's spouse or civil partner.

“Family member who has retained the right of residence”

“Family member who has retained the right of residence”

10.—(1) In these Regulations, “family member who has retained the right of residence” means, subject to paragraphs (8) and (9), a person who satisfies a condition in paragraph (2), (3), (4) or (5).

(2) The condition in this paragraph is that the person—

(a)was a family member of a qualified person or of an EEA national with a right of permanent residence when the qualified person or the EEA national with the right of permanent residence died;

(b)resided in the United Kingdom in accordance with these Regulations for at least the year immediately before the death of the qualified person or the EEA national with a right of permanent residence; and

(c)satisfies the condition in paragraph (6).

(3) The condition in this paragraph is that the person—

(a)is the direct descendant of—

(i)a qualified person or an EEA national with a right of permanent residence who has died;

(ii)a person who ceased to be a qualified person on ceasing to reside in the United Kingdom;

(iii)the spouse or civil partner of the qualified person or EEA national described in sub-paragraph (i) immediately preceding that qualified person or EEA national's death; or

(iv)the spouse or civil partner of the person described in sub-paragraph (ii); and

(b)was attending an educational course in the United Kingdom immediately before the qualified person or the EEA national with a right of permanent residence died, or ceased to be a qualified person, and continues to attend such a course.

(4) The condition in this paragraph is that the person is the parent with actual custody of a child who satisfies the condition in paragraph (3).

(5) The condition in this paragraph is that the person (“A”)—

(a)ceased to be a family member of a qualified person or an EEA national with a right of permanent residence on the termination of the marriage or civil partnership of A;

(b)was residing in the United Kingdom in accordance with these Regulations at the date of the termination;

(c)satisfies the condition in paragraph (6); and

(d)either—

(i)prior to the initiation of the proceedings for the termination of the marriage or the civil partnership, the marriage or civil partnership had lasted for at least three years and the parties to the marriage or civil partnership had resided in the United Kingdom for at least one year during its duration;

(ii)the former spouse or civil partner of the qualified person or the EEA national with a right of permanent residence has custody of a child of that qualified person or EEA national;

(iii)the former spouse or civil partner of the qualified person or the EEA national with a right of permanent residence has the right of access to a child of that qualified person or EEA national, where the child is under the age of 18 and where a court has ordered that such access must take place in the United Kingdom; or

(iv)the continued right of residence in the United Kingdom of A is warranted by particularly difficult circumstances, such as where A or another family member has been a victim of domestic violence whilst the marriage or civil partnership was subsisting.

(6) The condition in this paragraph is that the person—

(a)is not an EEA national but would, if the person were an EEA national, be a worker, a self-employed person or a self-sufficient person under regulation 6; or

(b)is the family member of a person who falls within paragraph (a).

(7) In this regulation, “educational course” means a course within the scope of Article 10 of Council Regulation (EU) No. 492/2011 F1.

(8) A person (“P”) does not satisfy a condition in paragraph (2), (3), (4) or (5) if, at the first time P would otherwise have satisfied the relevant condition, P had a right of permanent residence under regulation 15.

(9) A family member who has retained the right of residence ceases to enjoy that status on acquiring a right of permanent residence under regulation 15.


Right of permanent residence

15.—(1) The following persons acquire the right to reside in the United Kingdom permanently—

(b)a family member of an EEA national who is not an EEA national but who has resided in the United Kingdom with the EEA national in accordance with these Regulations for a continuous period of five years;

(3) The right of permanent residence under this regulation is lost through absence from the United Kingdom for a period exceeding two years.

2. The Withdrawal Agreement

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

ARTICLE 10 Personal scope
2. Persons falling under points (a) and (b) of Article 3(2) of Directive 2004/38/EC whose residence was facilitated by the host State in accordance with its national legislation before the end of the transition period in accordance with Article 3(2) of that Directive shall retain their right of residence in the host State in accordance with this Part, provided that they continue to reside in the host State thereafter.

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

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

ARTICLE 11 Continuity of residence
Continuity of residence for the purposes of Articles 9 and 10 shall not be affected by absences as referred to in Article 15(2).
The right of permanent residence acquired under Directive 2004/38/EC before the end of the transition period shall not be treated as lost through absence from the host State for a period specified in Article 15(3).

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

ARTICLE 15 Right of permanent residence
1. Union citizens and United Kingdom nationals, and their respective family members, who have resided legally in the host State in accordance with Union law for a continuous period of
5 years or for the period specified in Article 17 of Directive 2004/38/EC, shall have the right to reside permanently in the host State under the conditions set out in Articles 16, 17 and 18 of Directive 2004/38/EC. Periods of legal residence or work in accordance with Union law before and after the end of the transition period shall be included in the calculation of the qualifying period necessary for acquisition of the right of permanent residence.
3. Once acquired, the right of permanent residence shall be lost only through absence from the host State for a period exceeding 5 consecutive years.

ARTICLE 16 Accumulation of periods
Union citizens and United Kingdom nationals, and their respective family members, who before the end of the transition period resided legally in the host State in accordance with the conditions of Article 7 of Directive 2004/38/EC for a period of less than 5 years, shall have the right to acquire the right to reside permanently under the conditions set out in Article 15 of this Agreement once they have completed the necessary periods of residence. Periods of legal residence or work in accordance with Union law before and after the end of the transition period shall be included in the calculation of the qualifying period necessary for acquisition of the right of permanent residence.

ARTICLE 17 Status and changes
1. The right of Union citizens and United Kingdom nationals, and their respective family members, to rely directly on this Part shall not be affected when they change status, for example between student, worker, self-employed person and economically inactive person. Persons who, at the end of the transition period, enjoy a right of residence in their capacity as family members of Union citizens or United Kingdom nationals, cannot become persons referred to in points (a) to (d) of Article 10(1).

ARTICLE 18 Issuance of residence documents
1. The host State may require Union citizens or United Kingdom nationals, their respective family members and other persons, who reside in its territory in accordance with the conditions set out in this Title, to apply for a new residence status which confers the rights under this Title and a document evidencing such status which may be in a digital form.
Applying for such a residence status shall be subject to the following conditions:
(o) the competent authorities of the host State shall help the applicants to prove their eligibility and to avoid any errors or omissions in their applications; they shall give the applicants the opportunity to furnish supplementary evidence and to correct any deficiencies, errors or omissions;
(r) the applicant shall have access to judicial and, where appropriate, administrative redress procedures in the host State against any decision refusing to grant the residence status. The redress procedures shall allow for an examination of the legality of the decision, as well as of the facts and circumstances on which the proposed decision is based. Such redress procedures shall ensure that the decision is not disproportionate.

3. UK Human Rights Act 1998

[E] SUBMISSIONS

1. The appellant contends she is a family member who has retained the right of residence. She became eligible for permanent residence in 2016. Per the terms of the Withdrawal Agreement, she retains this right. The respondent failed to help the appellant prove her eligibility for permanent residence. The appellant is eligible for residence based on five years residence in the UK.

2. The appellant contends she is a Zambrano carer based on the 2016 EEA Regulations. In Akinsaya v SSHD, the Court of Appeal ruled a Zambrano carer can hold leave to remain under Appendix FM and still be a Zambrano carer. In Giraldo v SSHD, the Upper Tribunal ruled Zambrano carers who met the definition as per the EEA Regulations, are entitled to permanent residence after five years under Appendix EU. The appellant is entitled to permanent residence based on five years residence in the UK.

3. The appellant contends her Article 8 human rights have been violated by the respondent's refusal to grant her permanent residence. In the following cases, the European Court of Human Rights found that the state's rejection of the application for a residence permit resulted in an infringement of the applicants’ right to respect for their family life, guaranteed by Article 8 of the European Convention on Human Rights -

ECtHR - Boughanemi v. France, Application no. 22070/93
ECtHR - Gül v. Switzerland, Application no. 23218/94
ECtHR - X., Y. and Z. v. United Kingdom, no. 21830/93
ECtHR - Mehemi v. France, no. 53470/99
ECtHR- Berrehab v. the Netherlands, Application no. 10730/84
United Kingdom - McMichael v The United Kingdom, Series A No 207-B(1995) 20 EHRR 205
ECtHR - Ahmut v. the Netherlands, Application 21702/93, 28 November 1996
ECtHR - Johansen v Norway, Application No. 17383/90
ECtHR - Abdulaziz, Cabales and Balkandali v. the United Kingdom, Application Nos. 9214/80, 9473/81 and 9474/81

ESSENTIAL READING

1. Witness statement dated 1 January 2023
2. Appellant's skeleton argument dated 1 January 2023
3. Respondent's refusal letter dated 1 June 2022

The court is invited to allow the appeal.
05 January 2023

Wishfulgirl wrote: ↑

Fri Jul 07, 2023 3:32 pm

Hi Wishfulgirl,

You can see in the example skeleton argument from above, I suggested in January that you should argue for your rights as a family member under the Withdrawal Agreement, for your human rights and more. Did you do that?

The judge says you didn't list the Withdrawal Agreement. He also says you didn't put forward any arguments around your human rights. Either he is right or wrong.

Wishfulgirl wrote: ↑

Tue Jul 11, 2023 4:55 pm

To sum, if you

1.) Didn't argue you were entitled to residence as a family member, then the judge doesn't have to consider it.

2.) Relied on what Appendix EU says about Zambrano carers, then you were always going to lose because Appendix EU says you should NOT be granted residence due to having leave under Appendix FM at the time you applied.

3.) Argued section 55 of the Borders Act, you had a very high chance of losing. It is rare to win on Section 55 these days.

4.) Argued UN Article 3, you had a very high chance of losing. It is rare to win based on a UN treaty or convention.

5.) Didn't argue human rights, then the judge was never going to consider your human rights (or Celik)

I don't know how you argue there were errors of law in your permission to appeal if you didn't ask the judge to consider your rights under the Withdrawal Agreement, the ECHR, HRA, etc.

If you decide to appeal

It is super important to understand the grounds you are arguing. It is better to ask the judge for more time than to submit arguments that you don't understand. At the end of the day, anyone can give you advice. If you are going to go through the hassle and stress of appealing, know what you are appealing for and the reasons why the other side is wrong. Otherwise, anyone can tell you to 'copy and paste' something and you won't realise it was wrong until it is too late. If you are going to lose, at least lose knowing you made the strongest possible arguments. The person who gave you the advice doesn't have to live with the outcome.

If the judge misrepresents your grounds

What if you argued points a,b, c but the judge says you argued points x,y,z? That is a clear error of law.

You could apply for permission to appeal and point out the discrepancy.

marcidevpal wrote: ↑

Wed Jul 12, 2023 7:44 am

Wishfulgirl wrote: ↑

Tue Jul 11, 2023 10:08 pm

That's what I observed from his decision, I wondered if he decided to just focused on the appeal reason and Home Office refusal decision/ Argument which were all based on Zambrano.

Are you sure you posted the FtT judge's entire decision? Seems a bit short.

Let's recap two points from yesterday.

One, you have spent months thinking the fact that you didn't apply for retained rights disqualifies you as an EU family member. After speaking with the Home Office's Customer Service team, you were finally willing to believe this issue is not a roadblock. That suggests you are not willing to trust your instincts and would rather trust people who have shown themselves to not have your best interests at heart. I say this because you may not find a lawyer, or a lawyer you feel comfortable with. You need to be able to argue with everything you have. That means trusting your analysis and feeling confident in saying them to the next judge.

Two, you seem uncomfortable making the list of reasons why you should be granted permission to appeal to the Upper Tribunal. I have already made a few posts with some reasons to get you started. Yet, no list. Is it that you are distracted? Or are we having the same problem as above? You don't feel confident committing to the reasons I put forward AND/OR you don't feel comfortable creating reasons on your own? You could reflect on these questions over time.

One key advantage to creating a list now, is that you can use it to "interview" potential solicitors. Show the list to the prospective solicitor. If the person disagrees, that's not necessarily bad. Ask them why. See if their reasons make sense to you. Ideally, you want someone who reads your list of errors of law and says to you, "Yes, I agree (or disagree in ways you agree with) and really want to fight your case. Your case is an example of the reason I went into immigration law."

Thanks for the suggestion, I’ll go ahead and do that.

I don’t know how to attach files on here, I attached the appeal decision however I’m uncertain how to upload it.

Wishfulgirl wrote: ↑

Wed Jul 12, 2023 9:03 am

I forgot to edit the first pic my reference number is in it. Can someone please edit it, that’s what I was worried about forgetting to edit something out.

I have removed all your attachments as there was more than one page where you had not redacted personal information.

Please remember that you are posting an awful lot of personal information and specific circumstances information on a very public forum.

Wishfulgirl wrote: ↑

Wed Jul 12, 2023 9:03 am

What were your grounds?
What does your judge think your grounds were?
Are the two things the same?

Your judge is supposed to look at each of your grounds and agree or disagree with each one.

Wishfulgirl wrote: ↑

Wed Jul 12, 2023 9:03 am

If your grounds were that the Home Office's refusal goes against:

- Appendix EU
- Section 55 of the Borders Act
- UN Article 3

I think you may want to consider abandoning the appeal unless you can find a solicitor. Those arguments are super weak, in my opinion.