gee4 wrote: ↑Thu Oct 29, 2020 2:20 pm
Hi everyone, I have been following this forum for a while now and I need your help.
I have been refused a Zambrano application based on not having made application through FM before. I have copied @snooky appeal format and have modified it as below. Can you kindle look through and help with amendments as appropriate please.
Appeal No. xxxx
IN THE FIRST-TIER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
BETWEEN
xxx
Appellant
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
SKELETON ARGUMENT OF THE APPELLANTS
1. This skeleton argument is in support of this appeal against the decision of the Secretary of State for the Home Department ("the Respondent") dated 19 October 2020 to refuse the Appellants' applications for derivative residence cards through the Zambrano route.
Accordingly this skeleton argument will refer to xxxxx as "the Appellants"
2. xxxxx who currently suffered from anxiety and depression and has a British son (xxxxx) with autistic spectrum disorder has suffered with more stress due to Home Office delay.
Facts
1 References to the Appellants' and Respondent's bundles are in the format [A/ 1] and [R/ l] respectively
3. The Appellant xxxxx is Nigerian ([R/202]) and was born on xxxxx. She was married to xxxx a EU national in xxxx x
4 The Appellant applied for derivative residence cards in 2013 [R/ 196] based on her marriage and she was issued with a 5 years residence card in xxxx
5 xxxx has a son xxxx who is a British national born xxxx
6 xxx applied in March 2019 to regularize her visa which expired in January 2019 by phoning the EU Settlement Centre to enquire if she can make an application to the scheme based on the fact that she is still married to an Eu national but they have been separated. xxx was guided to make this application online after it was confirmed she was eligible to apply through the scheme
7 By letter dated 03 June 2020 the Respondent refused the Appellants' application (R/208-12).
8 xxxx phoned the EU settlement on 03 June to enquire if she can apply through the Zambrano route based on her British national son, She was also deemed eligible after she answered the eligibility questions and a paper application was sent out to her home address.
9 xxx received the form on 11 June 2020, she completed the form and posted back to the Respondent on same day.
10 By letter dated 19 October 2020 the Respondent refused the Appellant's application (R/208-12). No issue in that refusal was taken as to the Appellant's status as parent and sole primary carers of her EEA-national child. The Respondent did not address the relevant case-law and Regulations at all. Instead, the sole reason given for the refusal of their application was as follows:
'You have made no attempt to regularise your stay in the UK through an application made under the UK 's domestic immigration law
The Zambrano route
7. The Court of Justice of the European Union ("CJEU") considered in Ruiz Zambrano v Office national de I 'emploi (C-34 09) 8 March 2011 the effect of EU citizenship as established by Article 20 of the Treaty on the Functioning of the European Union in circumstances, such as these, where non-EEA national parents are the primary carers of EEA national children. From paragraph [42], the CJEU set out that a refusal to grant a right of residence to a third country national with dependent EU citizen minor
children would deprive those children of the genuine enjoyment of their right of citizenship. The Court said:
"[42] [... ] Article 20 TFEUprecludes,national measures which have the effect o de rivin citizens o the Union o the enuine eWo mento the substance o the rights couferred by virtue Qf their status as citizens Qf the Union (see, to that effect, Rottmann, paragraph 42).
[43] A refusal to grant a right of residence to a third counüy national with de endent minor children in the Member State where those children are nationals and reside. and also a refusal to grant such a person a work permit, has such an effect.
[44] It must be assumed that such a refusal would lead to a situation where those children. citizens qf the Union. would have to leave the territory of the Union in order to accompany their parents. L...] In those circumstances, those citizens of the Union would, in fact, be unable to exercise the substance of the rights conferred on them by virtue of their status as citizens of the Union. [45] Accordingly, the answer to the questions referred is that Article 20 TFEU is to be interpreted as meaning that it precludes a Member State from refusing a third country national upon whom his minor children, who are European Union citizens, are dependent, a right of residence in the Member State ofresidence and nationality of those children, andfrom refusing to grant a workpermit to that third country national, in sofar as such decisions deprive those children ofthe genuine enjoyment ofthe substance ofthe rights attaching to the status ofEuropean Union citizen.
8. Amendments to the Immigration (European Economic Area) Regulations 2006 ("the Regulations") put the decision in Zambrano on a legislative footing in domestic law. Section ISA, 'Derived rights of residence' of the Regulations provides:
(1) A person ('P ) who is not [an exempt person] and who satisfies that criteria in paragraph (2), (3), [(4A)] or (5) of this regulation is entitled to a derivative right to reside in the United Kingdom for as long as P satisfies the relevant criteria.
(4A) P satisfies the criteria in this paragraph if-
(a) P is the primary carer Qf a British citizen (xxxxx); (b) the relevant British citizen is residing in the United Kingdom; and (c) the relevant British citizen would be unable to reside in the UK or in another EEA State if P were required to leave.
9. In considering the scope of the Zambrano route, the CJEU and domestic courts have stressed a distinction between "choice" and "compulsion". It is not sufficient that if an appellant were refused a right of residence the EU citizen would choose to leave the territory of the EU; it is required that they would be compelled to leave the EU if the non-EU citizen so left. For example, in Dereci and Others v Bundesministeriumfiir Inneres (C-256 Il) 15 November 2011 the CJEU held at [67]:
The mere fact that it might appear desirable to a national of a Member State, for economic reasons or in order to keep his family together in the territory of the Union, for the members of his family who do not have the nationality o fa Member State to be able to reside with him in the territory of the Union, is not sufficient in itself to support the view that the Union citizen will be forced to leave the Union, if such a right is not granted. '
10. This distinction was particularly relevant in Dereci because in that case, unlike in Zambrano, one parent of the EU citizen children was an EU citizen herself.
Accordingly it would have been an exercise of choice to keep the family together by leaving the territory of the EU. Clearly that is not the case as regards the Appellant:
she is African national without leave to remain in the United Kingdom.
11. The Court of Appeal considered recently derived routes of residence through the Zambrano route in Patel v Secretary of State for the Home Department [2017] EWCA
Civ 2028 in light of the decision of the CJEU in Chavez-Vilchez v Raad van Bestuur van de Sociale Verbekeringsbank and others (C-113 15) 10 May 2017. In his consideration of Chavez-Vilchez, Irwin LJ said as follows:
'The Court confirmed that the relevant question was whether the children would, in practice. be compelled to leave the EU if their mothers were obliged to leave the territory of the EU (paragraph 65). That is a question of fact in each case, and the Court touched on a number ofj&tctors relevant to that question:
"68. In that regard, it must be recalled that, in the judgment Q/ 6
December 2012, O and ()/hers (C-35611 and C-357, 11,
776, paragraphs 51 and 56), the Court held that factors of relevance, for the purposes of determining whether a refusal to grant a right Q/residence to a third-country' national parent of a child who is a
Union citizen means that that child is deprived of the genuine eujoyment Q/ the substance of the rights conferred on him by that status, include the question o/'who has custody of the child and whether that child is legally, financially or emotionally dependent on the third-country: national parent.
69. As regards the second factor, the Court has stated that it is the relationship (21dependency between the Union citizen who is a minor and the third country national who is refused a right of residence that is liable to jeopardise the effectiveness of Union citizenship, since it is that dependency that would lead to the Union citizen being obliged, in practice, to leave not only the territory Q/ the Member State Q/which he is a national but also that of the European Union as a whole, as a consequence Q/such a refusal T...]
70. In this case, in order to assess the risk that a particular child, M'/IO is a Union citizen, might be compelled io lecn•e the territory of the European Union and thereby be deprived Q/ the genuine enjoyment of the substance of the rights conferred on him by Article 20 TFEU if the child's third-country national parent were to be rejilsed a right of residence in the Member Slate concerned, it is important to determine. in each case at issue in the main proceedings. which parent is the rima ' carero the child and whether there is in åct a relationshi o dependency between the child and the third-countrv national parent. As part ofthat assessment, the competent authorities must take account of the right to respectforfamily life, as stated in Article 7 of the Charter of Fundamental Rights Qflhe European Union, that article
requiring to be read in conjunction with the obligation to take info consideration the best interests Qfthe child, recognised in Article 24(2) of that charter.
12. The reasoning of the Respondent's decision letter is so bare that it requires some extrapolation. In Patel Irwin LJ said at [76] the following in respect of non-British nationals who marry British nationals and have children:
'Quite a number "years ago, Parliament chose to abrogate the historic approach that marriage io a Brüish citizen would bring, in effect automatically, residence in Britain for the spouse. No such automatic consequence now follows, see s. 6(2) Qi'/he British Nationa/üy Act
198] and s.2 QIfhe Nationality, Immigration and Asvlum Aci 2002 . Those who marry a British citizen and have children, without having (or acquiring) leave to remain, do so at the risk that they may be compelled to leave the country', facing the real quandary ihai arisesfor these families. The Zambrano principle cannot be regarded as a back-door route to residence by such nonEU citizen parents.
13. Clearly, that is not the case in respect of many of seek to vindicate their EU citizenship rights by way of the Zambrano route (including the Appellants).
Nonetheless the Respondent issued on 2 May 2019, a policy entitled 'Free movement rights: derivative rights of residence' v.5 ("the Policy"'). This Guidance sets out at p.52 that, in respect of every Zambrano application:
"In the case of [Patel] the Court ofAppeal ruled that someone holding leave to remain under domestic law would not benefit from a derivative right to reside. The Court also ruled that Zambrano is not a back-door route to residence for those who have a British citizen child without having or acquiring leave to remain.
This means that a Zambrano application must be refused if the applicant: Has never made an application under Appendix FM to the
Immigration Rules or any other Article 8 ECHR claim, where that avenue is available '
Submissions
14. The refusal of the Appellant’s application for derivative residence card is contrary to the Regulations. They plainly satisfy the following criteria under paragraph 4A of section 15A of those Regulations:
a. The Appellant is the primary carer of her British citizen children, who is 5 years old. See, by way of example, [5] of xxxxx witness statement.
b. Her British citizen child reside in the UK. See, by way of example, BT's EHC Plan at [A/23].
c. Her British citizen child would be "unable to reside in the UK or another EEA State if[the Appellant] were required to leave. " Any suggestion that these child would remain in the UK without their parents is fanciful.
15. Any preference on the part of the Respondent for an Appellant to apply by a different route first is irrelevant. Section 15A of the Regulations contains no provison that a human rights application (e.g. by way of Appendix FM) be made before an application under the Zambrano route.
16. The Court is bound to consider the best interests of the family's children, whether by operation of section 55 of the Borders, Citizenship and Immigration Act 2009 or the citation of Chavez-Vilchez cited above at [11]. This strongly militates in favour of a grant of derivative residence to their parents.
17. Further, it is by no means certain that an application under Appendix FM could be made, or would succeed. There are clear practical obstacles in the making of an application as set out in [17-8] of xxxx witness statement. Even if such an application were to be made, it is entirely uncertain that it would be granted by the Respondent.
18. In any event, the change to the Policy is at odds with the judgment in Patel itself. At [42], Irwin LJ considered the Secretary of State' s submission which emphasised that an appellant in Patel had never made an application for leave to remain in the UK on family life grounds. The Court' s response was unequivocal
"Ipause to remark that such an application might well be open to her. We have seen material in the course of the case which might well be relevant to such an application, although it cannot bear upon the decision we must take.
19. It follows that the application of the Policy in this case is not contrary just to Zambrano and the Regulations. It is contrary to the case which inspired it
Conclusion
20. The Court is respectfully invited to allow the appeal.
