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Zambrano Settled Status EU settlement scheme Paper Application Form - NEW

Use this section for any queries concerning the EU Settlement Scheme, for applicants holding pre-settled and settled status.

Moderators: Casa, push, JAJ, ca.funke, Amber, zimba, vinny, Obie, EUsmileWEallsmile, batleykhan, meself2, geriatrix, John, ChetanOjha, archigabe

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

Post by marcidevpal » Mon Dec 05, 2022 4:59 pm

Batool and Ors.

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

F. DECISION
95. The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law. The appellants’ appeals are accordingly dismissed.

Mr Justice Lane

The Hon. Mr Justice Lane
President of the Upper Tribunal
Immigration and Asylum Chamber

9. Since the decisions against which the Appellants had appealed were, Mr Makol conceded, in accordance with the withdrawal agreement and the Immigration Rules, the sole basis on which the appeals would now be presented was that the ECO’s decisions were incompatible with the respect for private and family life the Appellant’s enjoyed to which they are entitled by Article 8 of the European Convention on Human Rights and, for that reason, unlawful by virtue of section 6 of the Human Rights Act 1998.

77. ..The only permissible ground in respect of the refusal of the human rights claim is that the decision is unlawful under section 6 of the Human Rights Act 1998.

78. It is, therefore, possible for an appellant to raise a human rights ground, in particular Article 8 of the ECHR, in a section 120 notice, which must then be considered by the First-tier Tribunal pursuant to its duty under regulation 9(1) and determined under regulation 10.

80. ...the Upper Tribunal found that the First-tier Tribunal has jurisdiction under regulation 9(4) to consider a human rights ground on an appeal against refusal of an application under the EUSS, provided that, if it is a “new matter”, the Secretary of State consents....

Unless the Secretary of State has previously considered the Article 8 ECHR issue in the context of the decision appealed against or in a section 120 statement, we agree with Ms Smyth that the Secretary of State’s consent will be necessary in order for the First-tier Tribunal to consider the Article 8 issue.

Since neither Appendix EU nor Appendix EU(FP) is intended to, and does not, give effect to this country’s obligations under Article 8 ECHR, consideration of Article 8 forms no part of the decision-making process in relation to such an application.

Regardless of the strength of any Article 8 claim, leave could not be granted under those provisions unless the requirements of the relevant rules were satisfied.

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

Post by marcidevpal » Mon Dec 05, 2022 5:07 pm

Dereci & Ors (European citizenship) [2011] EUECJ C-256/11 (15 November 2011)

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

72 Thus, in the present case, if the referring court considers, in the light of the circumstances of the disputes in the main proceedings, that the situation of the applicants in the main proceedings is covered by European Union law, it must examine whether the refusal of their right of residence undermines the right to respect for private and family life provided for in Article 7 of the Charter.

On the other hand, if it takes the view that that situation is not covered by European Union law, it must undertake that examination in the light of Article 8(1) of the ECHR.

73 All the Member States are, after all, parties to the ECHR which enshrines the right to respect for private and family life in Article 8.

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

Post by marcidevpal » Mon Dec 05, 2022 5:15 pm

Amirteymour v SSHD [2017] EWCA Civ 353; [2017] Imm AR 1368

https://tribunalsdecisions.service.gov. ... 5-ukut-466

(I can't find a link to the Court of Appeal ruling)
The Court held that human rights could not constitute a ground of appeal under the 2006 Regulations (the predecessors of the 2016 Regulations), unless it had featured in a response to a section 120 notice (the “new matter” provisions not having come into being at that time).

Unless there has been a section 120 response raising human rights,
  • the First-tier Tribunal may entertain a submission that leave should be granted in order to avoid a breach of section 6 of the Human Rights Act 1998,
  • only with the consent of the Secretary of State
  • if this would involve consideration of a “new matter”.

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

Post by marcidevpal » Mon Dec 05, 2022 5:28 pm

To summarise,

1.) The European Court of Justice said judges should take into account Article 8 rights if EU Charter rights do not apply. But the UK has left the EU, so this point does not matter so much anymore.

2.) The President of the Upper Tribunal (Mr Justice Lane) said he does not agree Article 8 rights can be considered on EEA type cases - without the consent of the SSHD. The SSHD is incredibly unlikely to agree to Article 8 rights being considered, particularly if there is a strong case in favour of the applicant.

3.) If you appeal your refusal and mention Article 8, it seems the First Tier Tribunal will not approve your application on human rights grounds.

4.) If you appeal your loss to the Upper Tribunal, it seems the Upper Tribunal will also not approve your application, based on Batool and Celik.

5.) If you then appeal to the European Court of Human Rights, it seems to me that you may win. It would be important to explain why the UK courts should consider Article 8 in terms of what the European Convention on Human Rights said, in addition to referencing decisions made by the European Court of Human Rights.

The big question is,

What if UK judges are wrong to not include human rights considerations, unless the SSHD consents?

They were wrong before, when they said Zambrano carers were not habitually resident....

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

Post by marcidevpal » Tue Dec 06, 2022 10:07 am

The European Convention on Human Rights was signed in Rome on 4 November 1950, under the auspices of the Council of Europe. It went into effect in September 1953.

The European Court of Human Rights was organized in 1950 in Strasbourg. Its purpose was to address alleged violations of the European Convention on Human Rights.

The European Court of Human Rights in Strasbourg (the "ECHR"),

provides European nationals, and others,

a forum that transcends national court authority for adjudication of issues

in instances where they believe their human rights,

as guaranteed by the European Convention on Human Rights (the "European Convention"),(2)

have been violated.


Generally, nation states have been the final arbiters of most issues affecting their citizenry and within their borders.

Article 8 Cases before the European Court which ruled against the UK

In the Case of T.P. & K.M. v. the United Kingdom, the court will address the instance of a mother and her child, who were separated when the London Borough of Newham took the child into care on the mistaken assumption that the man who had abused the child was still living with the mother. The European Commission opined that there had been violations of Articles 6, 8, and 13. 

---------------------------

The Case of Z. and Others v. the United Kingdom concerns five siblings, allegedly severely neglected and mistreated by their parents, whom the Bedfordshire County Council allegedly failed to protect. The Commission determined the U.K. had failed to provide court access or other remedy in accordance with the European Convention.

---------------------------


In September 1999 decisions of the ECHR, the court ruled that the U.K.'s policy excluding homosexuals from service in the armed forces, including the investigations into applicants' private lives, and their subsequent dishonorable discharges, violated their fundamental human right to privacy, as guaranteed by Article 8 of the European Convention.

The court also found the U.K. in violation of Article 13 of the Convention because applicants had no effective remedy before a national authority to pursue alleged violations of the Convention.

In response to the decisions, the U.K. issued a revised code of military conduct.

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

Post by Fustrated2019 » Tue Dec 06, 2022 12:26 pm

Who does bail 201 apply to ? If you have a pending EUSS application, are you liable to be detained?

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

Post by marcidevpal » Tue Dec 06, 2022 1:17 pm

Immigration bail may apply, for example, to a person who is a visa overstayer or an asylum seeker whose appeal rights are exhausted (ARE)

A person can apply for immigration bail. The Secretary of State may grant immigration bail whether or not the person has applied for an immigration bail if the Secretary of State thinks that granting the person immigration bail is appropriate.


Bail 201 Can I continue working

Post by Gcoast » Sat Nov 03, 2018 11:08 am
I recently got a BAIL 201 letter after my FLR (FP) application was refused. The only bail condition on the letter was that I should start reporting at a reporting centre. Does this mean I can continue working?

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

Post by Fustrated2019 » Tue Dec 06, 2022 1:40 pm

marcidevpal wrote:
Tue Dec 06, 2022 1:17 pm
Immigration bail may apply, for example, to a person who is a visa overstayer or an asylum seeker whose appeal rights are exhausted (ARE)

A person can apply for immigration bail. The Secretary of State may grant immigration bail whether or not the person has applied for an immigration bail if the Secretary of State thinks that granting the person immigration bail is appropriate.


Bail 201 Can I continue working

Post by Gcoast » Sat Nov 03, 2018 11:08 am
I recently got a BAIL 201 letter after my FLR (FP) application was refused. The only bail condition on the letter was that I should start reporting at a reporting centre. Does this mean I can continue working?
@marcidevpal Thank you for your reply. I have a pending EUSS. I have contacted the resolution centre who confirmed that my status is still legal. I have not made any other immigration application. My status is still showing as certificate of application. What is your advice please ?

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

Post by marcidevpal » Tue Dec 06, 2022 1:41 pm

Deportation
Deportation is the act of removing an individual “for the public good” and is usually applicable to foreign nationals that have been remanded in custody for a criminal offence or have been convicted of a criminal offence and sentenced to a prison term of over 12 months.

Administrative Removals
On the other hand, removals, often called administrative removals (also known as ‘removals’), is the act of removing those from the UK that have no right to remain in the UK; namely if the leave to remain has expired or if an application for leave to remain has been refused.

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

Post by marcidevpal » Tue Dec 06, 2022 1:50 pm

"Although there is no automatic right to appeal a deportation or removal order, you may however, raise a human rights claim or claim that the order is contrary to the UK’s obligations. One option is to seek emergency injunction from the High Court Judge to challenge your removal on legal grounds."

See - solicitor weblink removed by moderator


https://assets.publishing.service.gov.u ... r_2020.pdf

18. Applicants may qualify for settled status under the EUSS (which is referred to under UK immigration law as indefinite leave to enter or indefinite leave to remain), in particular:

(a) having completed a ‘continuous qualifying period’ (as defined in Annex 1 to Appendix EU) of residence in the UK.......

And not falling to be refused on suitability grounds because:

(e) the applicant is subject to a removal decision under the EEA Regulations on the grounds of their non-exercise or misuse of rights under the Free Movement Directive, and refusing the application is proportionate.


23 The CJEU judgment in McCarthy C-434/09 found that a person who holds the nationality of the host Member State (regardless of whether they hold dual nationality with another EEA Member State) and has never exercised their right of free movement does not benefit, and nor do their family members, from rights of residence under the Free Movement Directive. Transitional provisions were made in the EEA Regulations in 2012 to enable certain family members affected by the judgment to retain or obtain a residence document enabling them to remain in the UK. As a matter of domestic provision, they can rely on those provisions to obtain status under the EUSS.

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

Post by marcidevpal » Tue Dec 06, 2022 2:10 pm

In the case of Otite v. the United Kingdom, published on 27 September 2022

The applicant, Mr Junior Otite, is a Nigerian national, who was born in 1972 and lives in Orpington. He is represented before the Court by Mr D. Mariampillai, a lawyer practising in London with David Benson Solicitors.

The United Kingdom Government (“the Government”) are represented by their Agent, Ms K. Hamilton of the Foreign, Commonwealth and Development Office.

Five judges voted for Mr Otite to be deported, two voted against.
42. In determining this issue, the Court will not – unless there are strong reasons for doing so – substitute its own assessment of the merits for that of an independent and impartial domestic court or tribunal which has examined the facts carefully, applied the relevant human rights standards consistently with the Convention and the Court’s case-law, and balanced the interests of the applicant against those of the general public.

However, where there has not been such an examination, the Court remains empowered to give the final ruling on whether an expulsion measure is reconcilable with Article 8 of the Convention (see Unuane, cited above, §§ 76 and 79 see also Ndidi, cited above, § 76 and Maslov, cited above, § 76).


45.... As the Upper Tribunal did not conduct the balancing exercise as required by Article 8 of the Convention, it therefore falls to the Court, in exercise of its supervisory jurisdiction, to give the final ruling on whether the applicant’s expulsion would be reconcilable with that Article 8 (see Unuane, cited above, § 85).

46....while the applicant asserted in his application form that his deportation would be a disproportionate interference with his right to respect for his family and private life, he did not further advance this argument in the application form itself or in his observations before this Court, nor did he provide any additional information to that which was before the Upper Tribunal.

So, if you lose your case and the First Tier Tribunal and Upper Tribunal refuse to consider Article 8, then the European Court of Human Rights has the right to decide if your refusal of your EU Settlement application violates your human rights. It is important to explain how the decision violates your Article 8 human rights in your application.

The judge who voted against deportation writes:

According to this case-law, although Article 8 of the Convention does not contain an absolute right for any category of alien not to be expelled, there are circumstances where the expulsion of an alien will give rise to a violation of Article 8 of the Convention.

The Upper Tribunal failed to strike an appropriate balance between the public and private interests by underestimating, without sufficient justification, one of the most relevant criteria established by the Court, namely the best interests and well-being of the children.

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

Post by marcidevpal » Tue Dec 06, 2022 2:24 pm

Unuane v United Kingdom

November 2020
The case concerns the deportation of a Nigerian national who served a prison sentence for the falsification of ‘leave to remain’applications.

While the UT allowed his partner’s appeal, concluding that the effect of separating her from the minor children would be “unduly harsh” on the children, it did not allow Mr Unuane’s appeal. He was deported in February 2018.

The UT neither made any further adverse findings nor conducted a separate balancing exercise. As such, it fell to the ECtHR to give the final ruling on whether the expulsion was reconcilable with Article 8.

The Court unanimously agreed that the UT’s conclusion was irreconcilable with Article 8 and considered that the nature or degree of seriousness of the offence committed by the applicant did not outweigh the best interests of the children so as to justify his expulsion.
In simple terms, because the Upper Tribunal did not consider his Article 8 rights, the European Court considered his rights.

They looked at his application and decided that it was better for him to remain in the UK, because of his children.

It seems the First Tier Tribunal and Upper Tribunal will not consider Article 8 rights of Zambrano carers when the file an appeal.

Zambrano carers will have to apply to the European Court of Human Rights for their Article 8 rights to be reviewed. (This step assumes you do not win in the UK courts.).

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

Post by marcidevpal » Tue Dec 06, 2022 2:31 pm

Unuane continued....

ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION READ TOGETHER WITH ARTICLE 8

91. The applicant further complained that he did not have an effective remedy before a national authority for the breach of his rights under Article 8 of the Convention.

92. Article 13 of the Convention provides as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

93. However, the applicant was able to appeal against the deportation order, first to the First-tier Tribunal and then to the Upper Tribunal. From the Upper Tribunal, he was able to seek permission to appeal to the Court of Appeal, and in doing so he was able to argue that the Tribunal had not considered all the factors relevant to the Article 8 proportionality assessment. He was not, therefore, denied an effective remedy within the meaning of Article 13 of the Convention and this complaint must be declared inadmissible as manifestly ill-founded pursuant to Article 35 § 3(a) of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

94. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

Damage

95. The applicant claimed twenty-five thousand euros (EUR) in respect of non-pecuniary damage.

96. The Court considers that the applicant must have suffered distress and anxiety as a result of his deportation and separation from his family. Making an assessment on an equitable basis it awards the applicant EUR 5,000 under the head of non-pecuniary damage, plus any tax that may be chargeable.


Costs and expenses

97. The applicant also claimed “costs and expenses, to be particularised on an up-to-date basis in line with section 4 of the Practice Direction on just satisfaction claims in the event of this application being declared admissible”. No further particulars of his claim have been submitted to the Court.

98. Both the Practice Direction to which the applicant refers and Rule 60 of the Rules of Court provide that an applicant who wishes to obtain an award of just satisfaction under Article 41 of the Convention must submit itemised particulars of all claims, together with any relevant supporting documents, within the time-limit fixed for the submission of his or her observations on the merits unless the President of the Chamber directs otherwise. If the applicant fails to comply with this requirement the Chamber may reject the claims in whole or in part.

99. The applicant was therefore required to submit itemised particulars of his claim for costs and expenses within the time-limit fixed for the submission of his observations on the merits. As he did not do so, the Court rejects any claim for costs and expenses.

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

Post by marcidevpal » Tue Dec 06, 2022 4:24 pm

In simpler terms, you may want to consider the following:

1.) Ask the judge to consider your human rights under Articles 8 and 6
2.) The judge may ask the Home Office for permission to consider your human rights.
3.) If the Home Office says no, the judge seems unlikely to consider Articles 8 and 6.
4.) If your application is refused, you can apply to the European Court of Human Rights and ask them to consider your appeal with regard to Article 8.
5.) If they agree to hear your case, they will look at the arguments you made in your application to the UK court and in your application to their court.

Notes

a.) You have four months to put in your appeal.
b.) You may want to look at the EK case for guidance

Deportations / Administrative Removals

If the Home Office serves you with a deportation or administrative removal, you may need to apply to the European Court of Human Rights. You could ask yourself if your case is similar to Mr Otite's or Mr Uanuane?

Mr Uanuane falsified documents. The European Court decided unanimously that his crime was not bad enough to make him leave the UK. Mr Otite's crimes were such that 5 out of 7 judges decided he should leave the UK.

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

Post by marcidevpal » Tue Dec 06, 2022 5:05 pm

Campbell v SSHD

https://tribunalsdecisions.service.gov. ... 01030-2021

Campbell was granted indefinite leave to remain in 2004. The Secretary of State then tried to deport him because he was convicted of supplying Class A drugs (heroin).

The Test of Article 8 ECHR:

Demonstrate that the impact of your deportation on either your partner or qualifying child would be “unduly harsh”.

If that test is met, deportation will be deemed by statute to be disproportionate and thus unlawful under s6(1) of the Human Rights Act 1998.

==========

Questions to consider
  • Do you enjoy a genuine and subsisting relationship with each of your children?
  • Do any children have particular vulnerabilities?


The Court of Appeal (Underhill LJ) held that it is no longer correct to say, as it was in PG (Jamaica) [2019] EWCA Civ 1213, that the ‘commonplace’ distress caused by separation from a parent or partner is insufficient to meet the test: it could be. The focus should be on the emotional impact on this child.

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

Post by marcidevpal » Wed Dec 07, 2022 12:06 pm

Wholly incompatible positions by the UK Courts.

SCENARIO 1

If the UK judges will not consider Article 8 on appeal, because the decision falls under the EEA Regulations, then that means the Home Office defines Zambrano carers based on the EEA Regulations.

As the Court of Appeal and Upper Tribunal have said, the Home Office definition of a Zambrano carer is unlawful and Akinsaya should be granted permanent residence.


SCENARIO 2

If the UK judges accept that the Home Office can create their own definition of a "Zambrano carer" that does not rely on the EEA regulations, then the Home Office must be willing to consider Article 8.

If you apply Article 8 to Zambrano carers, you almost certainly will conclude they deserve permanent residence after five years.

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

Post by LULUBABY » Wed Dec 07, 2022 5:08 pm

Fustrated2019 wrote:
Tue Dec 06, 2022 12:26 pm
Who does bail 201 apply to ? If you have a pending EUSS application, are you liable to be detained?
Are you ok?. What happened?. Did you receive any letter from Home Office about bail?.

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

Post by marcidevpal » Wed Dec 07, 2022 10:25 pm

Human Rights Act 1998

See - https://www.legislation.gov.uk/ukpga/1998/42/contents

The Human Rights Act 1998 allows people to challenge the SSHD via the UK courts. Before the Act, you would have to go directly to the European Court.

Section 2
of the Human Rights Act requires the court to take into account cases decided by the European Court.

Section 6
says it is unlawful for a public authority like the SSHD to act in a way that goes against the European Convention's human rights.

Section 8
gives the Court the power to grant any relief or remedy, or make such order, within its powers as it considers just and appropriate.

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

Post by marcidevpal » Wed Dec 07, 2022 10:42 pm

ECtHR - Sen v. the Netherlands, Application no. 31465/96, 21 December 2001

The European Court of Human Rights found an infringement of the applicants’ right to respect for their family life, guaranteed by Article 8 of the European Convention on Human Rights, on account of the rejection of their application for a residence permit for their daughter.

Case Law Cited:
  • 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

------

My opinion:

According to Section 2 of the UK's Human Rights Act 1998, the UK Courts must take into account cases by the European Court of Human Rights. The above case, Sen v Netherlands, is one example of a family with an Article 8 claim due about residence.

The judges are wrong to not consider Article 8 for Zambrano carers on their EUSS appeals.

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

Post by marcidevpal » Wed Dec 07, 2022 10:56 pm

Berrehab v. The Netherlands 28 May 1988


This Article 8 case before the European Court of Human Rights is directly relevant to Zambrano carers. The UK judges should take this case into account. Therefore, the UK judges should take Article 8 considerations into account - without the approval of the SSHD.

The European Court would probably say that there is no point in excluding parents like Akinsaya from the EU Settlement Scheme, particularly when they have already allowed other Zambrano carers to get residence.

The Home Office's policy around Zambrano carers serves no legitimate aim nor does is it necessary in a democratic society.


FOR THESE REASONS, THE COURT

1. Holds by six votes to one that there has been a violation of Article 8 (art. 8);

Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 21 June 1988.


(b) Legitimate aim

25. In the applicants' submission, the impugned interferences did not pursue any of the legitimate aims listed in Article 8 § 2 (art. 8-2); in particular, they did not promote the "economic well-being of the country", because they prevented Mr. Berrehab from continuing to contribute to the costs of maintaining and educating his daughter.

The Government considered that Mr. Berrehab's expulsion was necessary in the interests of public order, and they claimed that a balance had been very substantially achieved between the various interests involved.

The Commission noted that the disputed decisions were consistent with Dutch immigration-control policy and could therefore be regarded as having been taken for legitimate purposes such as the prevention of disorder and the protection of the rights and freedoms of others.

26. The Court has reached the same conclusion. It points out, however, that the legitimate aim pursued was the preservation of the country's economic well-being within the meaning of paragraph 2 of Article 8 (art. 8-2) rather than the prevention of disorder: the Government were in fact concerned, because of the population density, to regulate the labour market.


(c) "Necessary in a democratic society"

27. The applicants claimed that the impugned measures could not be considered "necessary in a democratic society".

The Government rejected this argument, but the Commission accepted it, being of the view that the interferences complained of were disproportionate as the authorities had not achieved a proper balance between the applicants' interest in maintaining their contacts and the general interest calling for the prevention of disorder.

28. In determining whether an interference was "necessary in a democratic society", the Court makes allowance for the margin of appreciation that is left to the Contracting States (see in particular the W v. the United Kingdom judgment of 8 July 1987, Series A no. 121-A, p. 27, § 60 (b) and (d), and the Olsson judgment of 24 March 1988, Series A no. 130, pp. 31-32, § 67).

In this connection, it accepts that the Convention does not in principle prohibit the Contracting States from regulating the entry and length of stay of aliens. According to the Court's established case-law (see, inter alia, the judgments previously cited), however, "necessity" implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued.

29. Having to ascertain whether this latter condition was satisfied in the instant case, the Court observes, firstly, that its function is not to pass judgment on the Netherlands' immigration and residence policy as such. It has only to examine the interferences complained of, and it must do this not solely from the point of view of immigration and residence, but also with regard to the applicants' mutual interest in continuing their relations. As the Netherlands Court of Cassation also noted (see paragraph 16 above), the legitimate aim pursued has to be weighed against the seriousness of the interference with the applicants' right to respect for their family life.

As to the aim pursued, it must be emphasised that the instant case did not concern an alien seeking admission to the Netherlands for the first time but a person who had already lawfully lived there for several years, who had a home and a job there, and against whom the Government did not claim to have any complaint. Furthermore, Mr. Berrehab already had real family ties there - he had married a Dutch woman, and a child had been born of the marriage.

As to the extent of the interference, it is to be noted that there had been very close ties between Mr. Berrehab and his daughter for several years (see paragraphs 9 and 21 above) and that the refusal of an independent residence permit and the ensuing expulsion threatened to break those ties. That effect of the interferences in issue was the more serious as Rebecca needed to remain in contact with her father, seeing especially that she was very young.

Having regard to these particular circumstances, the Court considers that a proper balance was not achieved between the interests involved and that there was therefore a disproportion between the means employed and the legitimate aim pursued. That being so, the Court cannot consider the disputed measures as being necessary in a democratic society. It thus concludes that there was a violation of Article 8 (art. 8).

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

Post by marcidevpal » Thu Dec 08, 2022 8:50 am

Many Zambrano carers who lost their appeal may have won, if the UK Courts had allowed them to raise Article 8 human rights concerns!

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

Post by marcidevpal » Thu Dec 08, 2022 9:14 am

In simple terms,

1.) The Home Office refused a group of Zambrano carers because they had leave to remain under Appendix FM on 31 December 2020. They did this after telling them to apply for leave to remain under Appendix FM.

2.) The Upper Tribunal and Court of Appeal said that this refusal was unlawful, based on how the EEA Regulations define the concept of a Zambrano carer.

3.) In June 2022, the Home Office then said they are not going to rely on the EEA Regulations to define the concept of a Zambrano carer. They said their refusals would remain in effect.

Article 8 & the UK Courts

4.) At the same time, the UK Courts said Article 8 human rights could not be raised as an argument during appeal hearings without the consent of the Home Office. Apparently it is because the Regulations do not mention it. Immigration (Citizens’ Rights) (EU Exit) Regulations 2020 (“the 2020 Regulations”)

https://tribunalsdecisions.service.gov. ... ukut-00220
14. Mr Hawkin made reference to the appellant’s Article 8 rights and sought to include those in this application. However, I drew his attention to the nature of the appeal, which was brought under the 2020 regulations. The grounds of appeal are laid out in regulation 8 and do not allow for an appeal on human rights grounds....Nevertheless, I refused to consider an article 8 argument, no human rights case having been made and it not being an available ground of appeal under the 2020 regulations.
5.) The UK is a (founding) member of the Council of Europe. The Council of Europe created both the European Court of Human Rights and the European Convention on Human Rights. Members must agree to take all jurisprudence, or all decisions made by the European Court into consideration, regardless of whether their laws specifically mention human rights or not.
A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any—

(a)judgment, decision, declaration or advisory opinion of the European Court of Human Rights,

whenever made or given, so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen.
6.) Moreover, the 2020 Regulations are a subordinate legislation. They are a statutory instrument. It is made in response to the European Union (Withdrawal Agreement) Act 2020. It is widely accepted that the Withdrawal Agreement does rely on the ECHR. Two, any statutory instrument such as the 2020 Regulations can be judged according to the ECHR.
3 Interpretation of legislation.

(1)So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.
Article 8 & the European Court of Human Rights

7.) Now that I have explained why the UK judges should take Article 8 into account, we can look at what the European Courts have said. In Berrehab v. The Netherlands, the court made it clear that where a parent and a citizen child had resided in a country for a long period of time, that the parent should be granted permanent residence unless it could be shown that to grant residence serves a purpose or is in the best interests of a democratic society. For the majority of Zambrano carers, it seems they would win on this point, even if they lose on other points in their appeals.

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

Post by marcidevpal » Thu Dec 08, 2022 11:04 am

Here is the link to CASE OF BERREHAB v. THE NETHERLANDS (Application no. 10730/84)

JUDGMENT STRASBOURG - 21 June 1988

https://hudoc.echr.coe.int/eng and search for BERREHAB
As to the extent of the interference, it is to be noted that there had been very close ties between Mr. Berrehab and his daughter for several years (see paragraphs 9 and 21 above) and that the refusal of an independent residence permit and the ensuing expulsion threatened to break those ties.

That effect of the interferences in issue was the more serious as Rebecca needed to remain in contact with her father, seeing especially that she was very young.

Having regard to these particular circumstances, the Court considers that a proper balance was not achieved between the interests involved and that there was therefore a disproportion between the means employed and the legitimate aim pursued.

That being so, the Court cannot consider the disputed measures as being necessary in a democratic society. It thus concludes that there was a violation of Article 8 (art. 8).

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

Post by marcidevpal » Thu Dec 08, 2022 12:00 pm

Butt v Norway

Go to https://hudoc.echr.coe.int/eng and search for BUTT

This case was heard by the European Court of Human Rights. UK Judges must be willing to take this case into account because it is relevant to Zambrano carers. To fail to do so, is to violate their responsibilities as a member of the Council of Europe.
14. In the case of Butt v Norway 2012 (Application no. 47017/09), the Court found that the circumstances of the present case were indeed exceptional.

It was not satisfied that the authorities of the respondent State acted within their margin of appreciation when seeking to strike a fair balance between its public interest in ensuring effective immigration control, on the one hand, and the applicants’ interests in remaining in Norway in order to pursue their private- and family life, on the other hand.

The applicants alleged that their deportation from Norway to Pakistan would entail a violation of their rights under Article 8 of the Convention.

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

Post by marcidevpal » Thu Dec 08, 2022 12:29 pm

Rodrigues Da Silva & Hoogkamer v. The Netherlands

2006

The European Court of Human Rights concluded that
  • a fair balance was not struck between the different interests at stake and that, accordingly,
  • there has been a violation of Article 8 of the Convention.
4. In the case of Rodrigues Da Silva and Hoogkamer v The Netherlands(2006), the applicants alleged that the Government's refusal to allow the first applicant to reside in the Netherlands breached their right to respect for their family life as guaranteed by Article 8 of the Convention.

The impugned decision did not constitute interference with the applicants' exercise of the right to respect for their family life on account of the withdrawal of a residence status entitling the first applicant to remain in the Netherlands.

The question examined was whether the Netherlands authorities were under a duty to allow the first applicant to reside in the Netherlands, thus enabling the applicants to maintain and develop family life in their territory.

The Court considered the failure on the part of the respondent State to comply with a positive obligation (see Ahmut v. the Netherlands, 28 November 1996, § 63, Reports of Judgments and Decisions 1996‑VI).
Yet another case that is directly relevant to Zambrano appeals that the UK Courts appear unwilling to consider.

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