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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 » Wed Jan 04, 2023 2:57 pm

marcidevpal wrote:
Wed Jan 04, 2023 2:38 pm
Correction - Birch v SSHD

https://tribunalsdecisions.service.gov. ... 20-ukut-86

Hearing date:29 Jan 2020
Promulgation date:26 Feb 2020
Publication date:16 Mar 2020
Last updated on: 5 Oct 2022

Judges:The Hon. Mr Justice Lane, President, Mr C M G Ockelton, Vice President
KeywordsPrecariousness and mistake; new matters

In Birch, a Presidential panel of the Upper Tribunal considered whether the First-tier Tribunal and the Upper Tribunal have jurisdiction to consider an EEA ground of appeal in a human rights appeal. They said the Tribunal should determine an EU rights issue alongside the human rights issue.

The majority of UK judges today no longer believe the Birch ruling is correct. The judges will tell you the First-tier Tribunal and the Upper Tribunal must have approval from the Home Office to consider human rights. Don't be surprised if the judge does not like that you include the Birch ruling, because it seems many think it was wrong.

I believe the Birch ruling is correct when it says the Upper Tribunal judges can consider human rights but incorrect when it says the First-tier Tribunal cannot consider human rights. I believe the European Court of Human Rights would say the judges need to consider human rights. The ECHR is clear. Judges must consider human rights where relevant ECHR case law exists. One can go back and forth as to whether the UK Human Rights Act 1998 is being violated.

Some may argue that the Borders, Citizenship and Immigration Act 2009 or the Nationality, Immigration and Asylum Act 2002 allow for human rights to not be considered without the approval of the Home Office. It doesn't really matter to me, because it is not worth having these arguments in the UK courts. It is better to just continue on to the European Court of Human Rights and see what those judges say.

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

Post by Wishfulgirl » Wed Jan 04, 2023 3:15 pm

marcidevpal wrote:
Wed Jan 04, 2023 2:51 pm
UK judges & Article 8
9. The grounds of appeal assert that there was a misapplication of Begum... It is asserted that the Tribunal did not consider the appeal under Article 8 ECHR or Article 10 of the withdrawal agreement (WA).
16. If the Appellant was seeking to submit an Article 8 claim at the hearing that was not raised previously, then any failure by the judge to address the matter would not be material as consent would have been required from the SSHD before it could be pleaded (Hydar (s.120 response; s.85 “new matter”, Birch) [2021] UKUT 00176. There was no representation on behalf of the SSHD at the hearing and it has not been evidenced how such consent was granted.
So, the SSHD wins by not even showing up to the hearing! If the Home Office does not show up to the hearing, they cannot give their consent for human rights to be considered, and, therefore, the judge does not have to consider your human rights. Does that not sound ridiculous to anyone?
I agree how can this be legally accepted. They can just not show up and the case is not recognised. The more I read, the more worrying I have. I haven’t slept for the past 3 days , writing and rechecking the skeleton argument again and again.

In my witness statement I included my mental health condition & evidence to confirm this by my mental health team. However, I worry the judge may feel I need to be sectioned & disregard my argument and dismiss my case. This is what I wrote , Moderators: please remove the word suicide if this is not accepted. “ 7. I am considered a vulnerable adult who suffers from multiple mental health conditions. I am currently diagnosed with Emotionally unstable personality disorder (EUPD) and Obsessive-compulsive personality disorder (OCD). These mental illnesses affect my ability to function normally on a daily basis. I regularly experience disturbed patterns of thinking, cognitive distortion, unpredictable mood swings, heightened anxiety, and I lack the ability to concentrate and complete tasks within a reasonable time. I regularly have suicidal thoughts and struggle to interact publicly with individuals due to my condition.The decision to refuse my application under the EU settlement scheme had a direct impact on my mental health and my children's emotional well-being. “ This has been my condition for years, and has impacted my daily life, I cannot work due to my condition or maintain relationships with others. It really is just me and children.

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

Post by marcidevpal » Wed Jan 04, 2023 3:42 pm

The Home Office can choose to not show up and your human rights will not be considered. That is different from the rest of the claim. The other submissions will be considered by the judge, just not human rights.

The judge will review your case in line with what the Withdrawal Agreement says. You are different from most Zambrano carers. Your first submission or argument is that you are the "retained" family member of an EEA national. The Home Office already accepted that you were the family member of an EEA national when they granted you the right to enter, and again when they granted you the right to remain as the family member.

They may argue that you are ineligible because you did not update your document to switch from a family member to a retained family member. They may also argue that you are ineligible because your document had expired. Or, they may say nothing. The Home Office seems to be overwhelmed at the moment.

The First-tier judge will have to weigh your argument and the Home Office's and decide. Even if you win at the First-tier Tribunal, there is a possibility that the Home Office will appeal to the Upper Tribunal. Many, many people who won at the First-tier Tribunal lost before the Upper Tribunal.

You have to ask yourself if you have the mental energy to continue. Your health is number one. I believe you would win before either the European Court of Justice or the European Court of Human Rights. The question is, are you sure you want to go that route given the stress you are under?

Have you tried to contact the EU organizations for support? If not, why not? Now that you have a better understanding of your position, you will be able to explain your goal with greater confidence.

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

Post by marcidevpal » Wed Jan 04, 2023 3:58 pm

A Structured Approach

The judge should not only apply the Rules but also
  • evaluate the possibility of you being successful outside the Rules.
  • apply guidance from the Supreme Court decision in Agyarko v SSHD [2017] UKSC 11 at paragraph 53.
  • consider all the factors relevant under section 117B
  • strike a fair balance between your individual rights and the public interest

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

Post by marcidevpal » Wed Jan 04, 2023 4:04 pm

Birch Summarised

https://tribunalsdecisions.service.gov. ... 20-ukut-86

The woman had been in the UK for 20 years by the time she had her hearing before the Upper Tribunal. Under the Immigration Rules, people who had spent 20 years in the UK were entitled to permanent residence. The Home Office said that the fact that 20 years had passed was a "new matter" that could not be considered as part of her human rights claim. The Upper Tribunal disagreed. The Upper Tribunal said they could decide what they could and could not take into account.

QUOTES FROM THE JUDGES

23. It is clear that in general procedure before the Upper Tribunal is not identical to that before the First-tier Tribunal: there are two different sets of Procedure Rules; and the Upper Tribunal alone has the powers given by section 25 of the 2007 Act. Although section 12(4) of the 2007 Act provides that on an appeal the Upper Tribunal may make any decision that the First-tier Tribunal could make, there is no suggestion that the route to a decision, or the reasons for the decision, are confined to those that would be open to the First-tier Tribunal; and paragraph (b) of that subsection specifically provides that the Upper Tribunal may make "such findings of fact as it considers appropriate".

24. We therefore reject the argument that we cannot take the new matter into consideration. The passage of time is clearly relevant to the determination of this appeal as it now stands before us. Whatever might have been the substantive merits of the appellant's case before the expiry of twenty years since her arrival in the United Kingdom, the position now is that she meets the substantive requirements of the Rules entitling her to a grant of leave. For that reason, and that reason only, we consider that in her case it would NOT be proportionate to remove her from the United Kingdom.

25. We therefore allow the appellant's appeal.

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

Post by marcidevpal » Wed Jan 04, 2023 4:19 pm

Wishfulgirl wrote:
Wed Jan 04, 2023 3:15 pm
In my witness statement I included my mental health condition & evidence to confirm this by my mental health team. However, I worry the judge may feel I need to be sectioned & disregard my argument and dismiss my case.
I don't think a judge can section you off your witness statement. Even if they have that power, what are some ways to minimize the impact? If someone challenges your parenting, are you able to show you are a good parent? Are other adults in your children's lives able and willing to say you are a good parent? Have you added a paragraph to your witness statement in which you outline how you are coping with the stress and uncertainty? Have you spoken to your children to see how they feel? Are they on regular schedules? Do you have activities you do together? Do you have healthy coping mechanisms for when you feel stressed? Or, if they feel stressed from seeing you stressed? Perhaps you go for walks, or play soccer in the park. This information could be useful to your witness statement.

It may be better to allow yourself to imagine the worst and then imagine all the ways you can defend yourself, and start preparing now. But, if imagining the worst makes you spiral out of control, it could be a sign that this fight may not be the right one for you and your family at this particular point in time.

Everyone has their limits. There is no shame in that. We can all handle only so much, at any particular period in our lives. The bravest thing to do is be honest with yourself about where your limits lie.

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

Post by marcidevpal » Wed Jan 04, 2023 4:23 pm

Is no UK barrister or solicitor really going to help Wishfulgirl?

Wow. Just wow people.

@wishfulgirl, I really think you should try again to reach out to people in your local area for help with mental health and legal issues.

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

Post by CR001 » Wed Jan 04, 2023 4:32 pm

marcidevpal wrote:
Wed Jan 04, 2023 4:23 pm
Is no UK barrister or solicitor really going to help Wishfulgirl?

Wow. Just wow people.

@wishfulgirl, I really think you should try again to reach out to people in your local area for help with mental health and legal issues.
We are NOT solicitors or barristers on the forum. We are all unpaid volunteers, normal everyday people who have come through various immigration routes.
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Please DO NOT send me a PM for immigration advice. I reserve the right to ignore the PM and not respond.

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

Post by Wishfulgirl » Wed Jan 04, 2023 4:51 pm

marcidevpal wrote:
Wed Jan 04, 2023 4:19 pm
Wishfulgirl wrote:
Wed Jan 04, 2023 3:15 pm
In my witness statement I included my mental health condition & evidence to confirm this by my mental health team. However, I worry the judge may feel I need to be sectioned & disregard my argument and dismiss my case.
I don't think a judge can section you off your witness statement. Even if they have that power, what are some ways to minimize the impact? If someone challenges your parenting, are you able to show you are a good parent? Are other adults in your children's lives able and willing to say you are a good parent? Have you added a paragraph to your witness statement in which you outline how you are coping with the stress and uncertainty? Have you spoken to your children to see how they feel? Are they on regular schedules? Do you have activities you do together? Do you have healthy coping mechanisms for when you feel stressed? Or, if they feel stressed from seeing you stressed? Perhaps you go for walks, or play soccer in the park. This information could be useful to your witness statement.

It may be better to allow yourself to imagine the worst and then imagine all the ways you can defend yourself, and start preparing now. But, if imagining the worst makes you spiral out of control, it could be a sign that this fight may not be the right one for you and your family at this particular point in time.

Everyone has their limits. There is no shame in that. We can all handle only so much, at any particular period in our lives. The bravest thing to do is be honest with yourself about where your limits lie.
Yes, I have a social worker support assistant, who support me and my children with daily support and activities etc….

Tbh, I have only the settlement to gain and everything to lose if I don’t proceed with this appeal. I have until Friday to sent the bundle back to the courts. I understand the appeal may or may not be allowed at the first tier tribunal or even at the upper tribunal. However, my mental health and my children wellbeing depends on this. I currently rely on the COA to receive benefits and housing. We live in temporary accommodation. A decision to reject the appeal will definitely leave us destitute. Despite all this, I have to fight with everything within me it is my right and the rights of my children, it’s is imperative I give it everything I have dispite my limited knowledge. I refuse to give up.

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

Post by Wishfulgirl » Wed Jan 04, 2023 5:12 pm

marcidevpal wrote:
Wed Jan 04, 2023 4:23 pm
Is no UK barrister or solicitor really going to help Wishfulgirl?

Wow. Just wow people.

@wishfulgirl, I really think you should try again to reach out to people in your local area for help with mental health and legal issues.
I have a really good support from my mental health team. I previously explored avenues help with my appeal few months ago, however no one was interested. They kept saying to continue on the Appendix FM route. I went as far as contacting Hackney law centre at the point of refusal & they just said to continue on appendix FM & watch for further steps the akinsanya case. Unfortunately for me I did not renew the leave to remain in April 2022.

I do now wonder with the uncertainty of my appeal, if it’s within mine & my children best interest to make another application under Appendix FM. My biggest fear is that the home office may grant this leave & possibly use it against me, similar to how they use the first grant of leave to refuse my application.

It’s all very complicated really.

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

Post by Wishfulgirl » Wed Jan 04, 2023 5:23 pm

marcidevpal wrote:
Wed Jan 04, 2023 3:58 pm
A Structured Approach

The judge should not only apply the Rules but also
  • evaluate the possibility of you being successful outside the Rules.
  • apply guidance from the Supreme Court decision in Agyarko v SSHD [2017] UKSC 11 at paragraph 53.
  • consider all the factors relevant under section 117B
  • strike a fair balance between your individual rights and the public interest
Can I also include this within my skeleton argument? Or is this just a statement from yourself.

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

Post by marcidevpal » Wed Jan 04, 2023 6:02 pm

Wishfulgirl wrote:
Wed Jan 04, 2023 5:12 pm

I have a really good support from my mental health team. I previously explored avenues help with my appeal few months ago, however no one was interested. They kept saying to continue on the Appendix FM route. I went as far as contacting Hackney law centre at the point of refusal & they just said to continue on appendix FM & watch for further steps the akinsanya case. Unfortunately for me I did not renew the leave to remain in April 2022.

I do now wonder with the uncertainty of my appeal, if it’s within mine & my children best interest to make another application under Appendix FM. My biggest fear is that the home office may grant this leave & possibly use it against me, similar to how they use the first grant of leave to refuse my application.

It’s all very complicated really.
Witness statement - One possible strategy for your paragraphs

1.) Immigration history as a family member of an EEA National

2.) Immigration history as a Zambrano carer

3.) Discussion of Benefits you have access to.

4.) Mental health issues

5.) Discussion around the types of support you applied for and were successful in obtaining.

6.) Discussion around the types of support you applied for but were rejected from.

Skeleton argument - possibilities

[D] Submissions

1.) The appellant contends she is entitled to permanent residence as the family member of an EEA national with retained residence .....

2.) The appellant also contends she is entitled to permanent residence as a Zambrano carer.....

3.) The appellant asserts that the refusal to grant her permanent residence interferes with her Article 8 human rights. She asks the Court to take a 'structured approach to evaluate the possibility of you being successful outside the Rules, apply guidance from the Supreme Court decision in Agyarko v SSHD [2017] UKSC 11 at paragraph 53, consider all the factors relevant under section 117B and strike a fair balance between her individual rights and the public interest.

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

Post by marcidevpal » Wed Jan 04, 2023 6:13 pm

Wishfulgirl wrote:
Wed Jan 04, 2023 5:12 pm
I do now wonder with the uncertainty of my appeal, if it’s within mine & my children best interest to make another application under Appendix FM. My biggest fear is that the home office may grant this leave & possibly use it against me, similar to how they use the first grant of leave to refuse my application.
I would create a separate paragraph in my witness statement and make this point. If the judge is on the ball, they will address this point in their decision. I posted earlier that you can think of this process as a heavily discounted discussion with an immigration expert. If the judge can see your dilemma, if they have a heart, they should give you advice. It is better to have multiple numbered paragraphs where each number represents a single big point, than to combine multiple points into one paragraph.

If you stress that you have a support system in place for your mental health concerns, I don't think the judge can hold that against you, particularly if your support system says you should continue to parent your children.

Regarding Appendix FM, there is no point worrying about it until the judge makes their decision. You may want to send an email to the Home Office and ask them for their opinion on the judge considering human rights. Or, you may want to include the request in your bundle. I believe the Home Office has just two days to respond to your request. If the Home Office do not respond to your request, the judge may allow your request for your human rights to be taken into account. If the Home Office tell the judge not to consider your human rights, that will look crazy to the European Court of Human Rights and to the European Court of Justice, especially if they don't give a reason why. But that is just my opinion.

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

Post by LULUBABY » Thu Jan 05, 2023 7:09 am

Good morning all. I was sent an application form to apply for Settled Status. Please what is the procedure?. Do I have to start everything I did before all over again or what?.

Happy New year all !!!!

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

Post by JB007 » Thu Jan 05, 2023 11:16 am

Wishfulgirl wrote:
Wed Jan 04, 2023 5:12 pm
I went as far as contacting Hackney law centre at the point of refusal & they just said to continue on appendix FM & watch for further steps the akinsanya case. Unfortunately for me I did not renew the leave to remain in April 2022.
There is information about welfare benefits on the Hackney Law Centre site

https://hclc.org.uk/2021/06/zambrano-ca ... d-to-know/
Am I eligible for universal credit?

 
If you have limited leave to remain with no prohibition on recourse to public funds, then you are eligible for universal credit on the same terms as a British citizen. Making a Zambrano EUSS application does not affect this. If the Zambrano EUSS application is eventually granted (after the Home Office has reconsidered Appendix EU) and you are given ‘settled status’ because you have been a Zambrano carer for more than 5 years, then your eligibility for benefits will not change.

But, if you are eventually given only ‘pre-settled status’, this kind of leave to remain may not count as eligibility for universal credit. Under the current Universal Credit Regulations it does not count, but a case before the Supreme Court called Fratila may lead to a change in this law.
The Fratila case was lost.

 
If I make a Zambrano EUSS application, am I eligible for free NHS treatment

 Yes. A person with a pending EUSS application is not chargeable for NHS treatment:

 regulation 13A(1) of the NHS (Charges to Overseas Visitors) Regulations 2015 (as amended by S.I. 2020/1423). If the application is granted then any charges recovered for services from the date of the EUSS application must be repaid.

 
However, if the EUSS application is refused then charges must be made for services provided after the date of application (unless the person is exempt for another reason): reg 13A(4).
and in June 2022-
https://hclc.org.uk/2022/06/euss-zambra ... june-2022/

 

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

Post by marcidevpal » Thu Jan 05, 2023 11:55 am

EUSS & ECHR

Anyone who applies under the EUSS is ineligible to have their human rights considered by the UK judge - unless the Home Office approves - according to the recent cases of Celik and Baton. This position was communicated by The Hon. Mr Justice Lane, President of the Upper Tribunal and Judges Hanson and McWilliam.

Ordinarily, to apply to the European Court of Human Rights, you would need to show you took your case as far as it could go in the UK courts. But because the Courts have said they will not consider your human rights, the length of time these arguments have been going on for, the fact that the Akinsaya hearing did not result in an effective remedy you should be able to apply once the Home Office tells the Judge they do not give permission for the Court to consider your human rights.

Step one is to file an appeal. Step two is to ask the Court for the Home Office's contact information. Then, ask the Home Office how they feel about the judge taking into account your human rights. Copy the Court in on the email. If the Home Office say no, you are ready to create and send your claim to the European Court of Human Rights in Strasbourg, France.

You would send a copy of the Home Office letter and the Celik decision. Also send the Akinsaya decision.

The application is meant to be short. You can use paragraphs from your witness statement and skeleton argument to fill out the form.

My prediction: I believe people who were refused in the UK Courts will start to appeal to either the European Court of Human Rights or to the European Court of Justice. The UK cannot withdraw from the European Court of Justice. They agreed in the Withdrawal Agreement for this court to have jurisdiction. The UK can, however, withdraw from the Council of Europe. That means a withdrawal from the ECHR and the ECtHR. As more people who refused in the the UK Courts apply to the European Court of Human Rights, and win, the UK media will start to complain. The Conservatives have been threatening to leave for years. That is why I predict there is a real possibility the pull the UK out of the Council of Europe before the next election.

As of today, you have the right to apply to the European Court of Human Rights. You have proof that the UK judges will NOT take your human rights into account on your residence card application even though the Withdrawal Agreement specifically says all countries will apply provisions from international agreements, and the ECHR is an international agreement. Therefore, the UK judges must include human rights considerations in their determinations - regardless of the position of the Home Office. These judges will never agree with people like me. We are at a stalemate that means the question should be answered before the European Court of Human Rights. For that reason, I strongly recommend Zambrano carers (and others who applied under EUSS and were refused) apply as soon as possible to the ECtHR. It's just my opinion, not legal advice.

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

Post by marcidevpal » Thu Jan 05, 2023 12:10 pm

Wishfulgirl wrote:
Wed Jan 04, 2023 5:23 pm
I think you have a really strong case on Article 8 human rights grounds. If the Home Office tells the judge they do not give permission for the judge to consider your human rights, you may want to apply to the European Court of Human Rights.

I think the weakest part of your case is the fact that you are on benefits. You could point out that you perhaps would not have been on benefits if your health were in a better place. Your health is a direct result of the struggles you face in securing status from the Home Office. You may want to write a paragraph on what type of job you would do, or courses you would study for, if you had permanent residence.

Another point you could make in your Skeleton Argument under the Submissions section is to calculate the time you would have spent in the UK by the time you finish, if you continue under the Appendix FM route and compare that to the 20 years max an illegal migrant would have spent. If an illegal migrant who entered on the same day as you were to apply for residence after 20 years, would they get it before you, if you go back to Appendix FM? That would show how ridiculous the situation is.

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

Post by marcidevpal » Thu Jan 05, 2023 1:16 pm

Skeleton Argument & Human Rights

Skeleton Argument

[A] Case summary
[]
[C]
[D]
[E] Submissions

1. The appellant contends she is entitled to permanent residence under the EUSS as a Zambrano carer.....

2. The appellant contends human rights should be a statutory ground upon which she can challenge the respondent’s decision. A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any 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. The issue of her permanent residence is a question which concerns her Convention rights. Relevant cases include Boughanemi v. France, Application no. 22070/93, Gül v. Switzerland, Application no. 23218/94, X., Y. and Z. v. United Kingdom, no. 21830/93, Mehemi v. France, no. 53470/99, Berrehab v. the Netherlands, Application no. 10730/84, United Kingdom - McMichael v The United Kingdom, Series A No 207-B(1995) 20 EHRR 205, Ahmut v. the Netherlands, Application 21702/93, 28 November 1996, Johansen v Norway, Application No. 17383/90, Abdulaziz, Cabales and Balkandali v. the United Kingdom, Application Nos. 9214/80, 9473/81 and 9474/81.

a.) The only basis on which the First Tier Tribunal will allow an appeal against a decision refusing status under the EUSS is that the decision breaches a right under the Withdrawal Agreement or is not in accordance with the Immigration Rules. The Withdrawal Agreement stipulates that Union law is applicable to and in the United Kingdom. Union law directly includes international agreements, of which the ECHR is one. The Immigration Rules were deemed unlawful by the President of the Upper Tribunal in December 2022.

b.) The appellant requests the Court adopt a 'structured approach' to evaluate the possibility of her being successful outside the Rules, apply guidance from the Supreme Court decision in Agyarko v SSHD [2017] UKSC 11 at paragraph 53, consider all the factors relevant under section 117B and strike a fair balance between her individual rights and the public interest.

c.) The European Court of Human Rights will expect the Court to conduct a balancing exercise. This exercise includes a consideration of.....

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

Post by marcidevpal » Thu Jan 05, 2023 1:48 pm

Updated - Skeleton Argument & Human Rights

Skeleton Argument

[A] Case summary
[] Respondent's position
[C] Issues to be considered
[D] Legal framework
[E] Submissions

1. The appellant contends she is entitled to permanent residence under the EUSS as a Zambrano carer.....

2. The appellant also contends human rights should be a statutory ground upon which she can challenge the respondent’s decision. The United Kingdom is a member of the Council of Europe and a Contracting Party to the European Convention on Human Rights. Accordingly, a court or tribunal determining a question which has arisen in connection with a Convention right must take into account any 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. The issue of her permanent residence is a question which concerns her Convention rights.

a.) The only basis upon which the First Tier Tribunal will currently allow an appeal against a decision refusing status under the EUSS is that the decision breaches a right under the Withdrawal Agreement or is not in accordance with the Immigration Rules. The Withdrawal Agreement stipulates that Union law is applicable to and in the United Kingdom. Union law directly includes international agreements, of which the ECHR is one. The Immigration Rules were deemed unlawful by the President of the Upper Tribunal in December 2022.

b.) The Human Rights Act requires the Court to interpret United Kingdom legislation so far as is possible and, in a manner compatible with Convention rights. The three main concepts relevant to the protection of human rights in the UK are: the presumption that Parliament does not intend to abridge fundamental rights— the principle of legality; the presumption that Parliament does not intend to legislate contrary to the United Kingdom's international obligations, including its obligations under international human rights instruments—the presumption of compatibility, and the statutory duty under section 3 of the Human Rights Act 1998 (HRA 1998) to read legislation in a way which is compatible with rights under the European Convention on Human Rights so far as it is possible to do so. The appellant requests the Court adopt a 'structured approach' to evaluate the possibility of her being successful outside the Rules, apply guidance from the Supreme Court decision in Agyarko v SSHD [2017] UKSC 11 at paragraph 53, consider all the factors relevant under section 117B and strike a fair balance between her individual rights and the public interest.

(i) In Oyoma v SSHD(2020), Upper Tribunal Judge Blundell reasoned if the appellant would be bound to be granted leave to remain on private life grounds if she made a further application to the respondent, that fact is plainly relevant to the assessment of proportionality. In this claim, the earliest the appellant could be granted permanent residence were she to follow the respondent's preferred route is in 20XX. Given that she has already resided in the UK for XX years, it is unreasonable to ask her to spend another XX years under a visa regime. Given that the appellant arrived in the UK in 20XX, she would have spent XX years in the UK by the time she became eligible for permanent residence, just XX years less than someone who had entered the UK illegally.

(ii) In Huang v SSHD (2007), the Appellate Committee (Lord Bingham of Cornhill, Lord Hoffmann, Baroness Hale of Richmond, Lord Carswell and Lord Brown of Eaton- under-Heywood) reasoned at paragraph 11, "These provisions, read purposively and in context, make it plain that the task of the appellate immigration authority, on an appeal on a Convention ground against a decision of the primary official decision-maker refusing leave to enter or remain in this country, is to decide whether the challenged decision is unlawful as incompatible with a Convention right or compatible and so lawful...It is not a secondary, reviewing, function dependent on establishing that the primary decision-maker misdirected himself or acted irrationally or was guilty of procedural impropriety...The appellate immigration authority must decide for itself whether the impugned decision is lawful and, if not, but only if not, reverse it....This is the decision reached by the Court of Appeal (Judge, Laws and Latham LJJ) in these conjoined appeals, and it is correct: [2005] EWCA Civ 105, [2006] QB 1."

c.) The European Court of Human Rights will expect the Court to conduct a balancing exercise as undertaken in related immigration cases:

(i) In Butt v Norway (2012), ECtHR were not convinced 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 appellant contends the UK authorities have not acted within their margin or appreciation or balanced the public interest in refusing her application.

(ii) In Nunez v. Norway (2011), ECtHR examined whether regard to the children’s best interest would upset the fair balance under Article 8. The ruling emphasised children are indirectly protected under the Convention, even if they are not applicants in a case which concerns a parent. They considered relevant the children’s long lasting and close bonds to their mother, the decision in the custody proceedings, the disruption and stress that the children had already experienced and the long period that elapsed before the immigration authorities took to make their decision. The appellant is the only family member her son has in the UK, with whom he is in contact. Although he is an adult, and has some friends, he still requires support from a close family member. Without the presence of his mother in the UK, he will leave the country.

(iii) In Rodrigues Da Silva and Hoogkamer v The Netherlands(2006), ECtHR reiterates that in order to meet both their positive and negative obligations, the State must strike a fair balance between the competing interests of the individual and of the community as a whole.

(iv) In Keegan v. the United Kingdom (2006), ECtHR says although national authorities enjoy a certain margin of appreciation in matters, an interference with rights guaranteed by Article 8 § 1 of the Convention can be regarded as being “necessary in a democratic society” only if it has been taken in order to respond to a pressing social need and if the means employed are proportionate to the aims pursued. The respondent has not indicated a pressing social need in her refusal.

(v) In Tuquabo-Tekle v. Netherlands(2005), the European Court of Human Rights (“ECtHR”) reasoned Article 8 of the Convention imposed on the respondent State a positive obligation to allow the fifth applicant to reside in the Netherlands with the rest of her family.

(vi) In Buck v. Germany (2005). ECtHR says the reasons adduced to justify such measures must be relevant and there must be sufficient and adequate and effective safeguards against abuse. After approximately XX months, the respondent has yet to respond to the appellant’s application for Administrative Review. Apart from appealing to the First-tier Tribunal, the respondent has not instituted any effective safeguards for the appellant.

(vii) In Olsson v Sweden (1988), the notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued.

(viii) In Berrehab v. The Netherlands (1987), the Strasbourg court held the impugned interferences did not pursue any of the legitimate aims listed in Article 8 § 2 (art. 8-2). It prevented Mr Berrehab from maintaining regular contacts with his daughter, did not promote the "economic well-being of the country”, did not achieve balance between the various interests involved (even though 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) and so therefore could not be considered "necessary in a democratic society".

(ix) In W v. the United Kingdom (1987), the Strasbourg Court held unanimously that a violation of Article 8 of the Convention occurred. Any interference must correspond to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued. There may in addition be positive obligations inherent in an effective "respect" for family life. In determining whether an interference is "necessary in a democratic society" or whether there has been breach of a positive obligation, the Court will take into account that a margin of appreciation is left to the Contracting States.

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

Post by Wishfulgirl » Thu Jan 05, 2023 2:12 pm

marcidevpal wrote:
Thu Jan 05, 2023 1:48 pm
Updated - Skeleton Argument & Human Rights

Skeleton Argument

[A] Case summary
[] Respondent's position
[C] Issues to be considered
[D] Legal framework
[E] Submissions

1. The appellant contends she is entitled to permanent residence under the EUSS as a Zambrano carer.....

2. The appellant also contends human rights should be a statutory ground upon which she can challenge the respondent’s decision. The United Kingdom is a member of the Council of Europe and a Contracting Party to the European Convention on Human Rights. Accordingly, a court or tribunal determining a question which has arisen in connection with a Convention right must take into account any 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. The issue of her permanent residence is a question which concerns her Convention rights.

a.) The only basis upon which the First Tier Tribunal will currently allow an appeal against a decision refusing status under the EUSS is that the decision breaches a right under the Withdrawal Agreement or is not in accordance with the Immigration Rules. The Withdrawal Agreement stipulates that Union law is applicable to and in the United Kingdom. Union law directly includes international agreements, of which the ECHR is one. The Immigration Rules were deemed unlawful by the President of the Upper Tribunal in December 2022.

b.) The Human Rights Act requires the Court to interpret United Kingdom legislation so far as is possible and, in a manner compatible with Convention rights. The three main concepts relevant to the protection of human rights in the UK are: the presumption that Parliament does not intend to abridge fundamental rights— the principle of legality; the presumption that Parliament does not intend to legislate contrary to the United Kingdom's international obligations, including its obligations under international human rights instruments—the presumption of compatibility, and the statutory duty under section 3 of the Human Rights Act 1998 (HRA 1998) to read legislation in a way which is compatible with rights under the European Convention on Human Rights so far as it is possible to do so. The appellant requests the Court adopt a 'structured approach' to evaluate the possibility of her being successful outside the Rules, apply guidance from the Supreme Court decision in Agyarko v SSHD [2017] UKSC 11 at paragraph 53, consider all the factors relevant under section 117B and strike a fair balance between her individual rights and the public interest.

(i) In Oyoma v SSHD(2020), Upper Tribunal Judge Blundell reasoned if the appellant would be bound to be granted leave to remain on private life grounds if she made a further application to the respondent, that fact is plainly relevant to the assessment of proportionality. In this claim, the earliest the appellant could be granted permanent residence were she to follow the respondent's preferred route is in 20XX. Given that she has already resided in the UK for XX years, it is unreasonable to ask her to spend another XX years under a visa regime. Given that the appellant arrived in the UK in 20XX, she would have spent XX years in the UK by the time she became eligible for permanent residence, just XX years less than someone who had entered the UK illegally.

(ii) In Huang v SSHD (2007), the Appellate Committee (Lord Bingham of Cornhill, Lord Hoffmann, Baroness Hale of Richmond, Lord Carswell and Lord Brown of Eaton- under-Heywood) reasoned at paragraph 11, "These provisions, read purposively and in context, make it plain that the task of the appellate immigration authority, on an appeal on a Convention ground against a decision of the primary official decision-maker refusing leave to enter or remain in this country, is to decide whether the challenged decision is unlawful as incompatible with a Convention right or compatible and so lawful...It is not a secondary, reviewing, function dependent on establishing that the primary decision-maker misdirected himself or acted irrationally or was guilty of procedural impropriety...The appellate immigration authority must decide for itself whether the impugned decision is lawful and, if not, but only if not, reverse it....This is the decision reached by the Court of Appeal (Judge, Laws and Latham LJJ) in these conjoined appeals, and it is correct: [2005] EWCA Civ 105, [2006] QB 1."

c.) The European Court of Human Rights will expect the Court to conduct a balancing exercise as undertaken in related immigration cases:

(i) In Butt v Norway (2012), ECtHR were not convinced 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 appellant contends the UK authorities have not acted within their margin or appreciation or balanced the public interest in refusing her application.

(ii) In Nunez v. Norway (2011), ECtHR examined whether regard to the children’s best interest would upset the fair balance under Article 8. The ruling emphasised children are indirectly protected under the Convention, even if they are not applicants in a case which concerns a parent. They considered relevant the children’s long lasting and close bonds to their mother, the decision in the custody proceedings, the disruption and stress that the children had already experienced and the long period that elapsed before the immigration authorities took to make their decision. The appellant is the only family member her son has in the UK, with whom he is in contact. Although he is an adult, and has some friends, he still requires support from a close family member. Without the presence of his mother in the UK, he will leave the country.

(iii) In Rodrigues Da Silva and Hoogkamer v The Netherlands(2006), ECtHR reiterates that in order to meet both their positive and negative obligations, the State must strike a fair balance between the competing interests of the individual and of the community as a whole.

(iv) In Keegan v. the United Kingdom (2006), ECtHR says although national authorities enjoy a certain margin of appreciation in matters, an interference with rights guaranteed by Article 8 § 1 of the Convention can be regarded as being “necessary in a democratic society” only if it has been taken in order to respond to a pressing social need and if the means employed are proportionate to the aims pursued. The respondent has not indicated a pressing social need in her refusal.

(v) In Tuquabo-Tekle v. Netherlands(2005), the European Court of Human Rights (“ECtHR”) reasoned Article 8 of the Convention imposed on the respondent State a positive obligation to allow the fifth applicant to reside in the Netherlands with the rest of her family.

(vi) In Buck v. Germany (2005). ECtHR says the reasons adduced to justify such measures must be relevant and there must be sufficient and adequate and effective safeguards against abuse. After approximately XX months, the respondent has yet to respond to the appellant’s application for Administrative Review. Apart from appealing to the First-tier Tribunal, the respondent has not instituted any effective safeguards for the appellant.

(vii) In Olsson v Sweden (1988), the notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued.

(viii) In Berrehab v. The Netherlands (1987), the Strasbourg court held the impugned interferences did not pursue any of the legitimate aims listed in Article 8 § 2 (art. 8-2). It prevented Mr Berrehab from maintaining regular contacts with his daughter, did not promote the "economic well-being of the country”, did not achieve balance between the various interests involved (even though 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) and so therefore could not be considered "necessary in a democratic society".

(ix) In W v. the United Kingdom (1987), the Strasbourg Court held unanimously that a violation of Article 8 of the Convention occurred. Any interference must correspond to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued. There may in addition be positive obligations inherent in an effective "respect" for family life. In determining whether an interference is "necessary in a democratic society" or whether there has been breach of a positive obligation, the Court will take into account that a margin of appreciation is left to the Contracting States.
I actually sent the bundle last night. I contacted the court just a minute ago, they have provided the email to send home office my bundle. They also said I can edit my skeleton argument if I feel I made any mistakes . I should then, ask the courts to discard my previous skeleton argument & my bundle and consider the updated version due to mistakes with the other one.

I’ll now copy this argument you’ve provided and correct some spelling within my witness statement and resend the bundle. I only also forgot to send the EEA national death certificate. Silly me!

I am so annoyed at myself because I’ve read the skeleton argument and my witness statement, over and over so many so many times & still manage to make mistakes.

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

Post by marcidevpal » Thu Jan 05, 2023 2:15 pm

Wishfulgirl wrote:
Thu Jan 05, 2023 2:12 pm
You must be feeling pretty good, then! I don't think it matters if it is perfect. I have seen barristers submit arguments with loads of typos. What matters is your submissions. I get the feeling you feel pretty good about your arguments. You seem to be quite confident. Congratulations, you did it!

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

Post by marcidevpal » Thu Jan 05, 2023 2:19 pm

Common mistakes when applying to the ECtHR

https://www.echr.coe.int/Documents/Appl ... es_ENG.pdf
  • not using the Court’s current application form
  • not putting a summary of the case on the application form
  • not attaching the decisions or documents setting out the measures at the heart of the case
  • not providing copies of decisions and documents showing that the applicant has brought all his/her complaints before the national courts or brought his/her complaints before the Court within the four-month time-limit
  • not sending the application form with the original signature at the end
  • where companies or organisations do not fill in the details of the application form identifying their official representative
  • not filling in the Statement of violations
  • leaving blank the part of the form dealing with remedies
  • forgetting to tick the country box
  • forgetting to put a list of the documents on the form
  • sending a separate authority form instead of filling in and signing the authority section on the application form
  • sending the application form at the last moment before the four-month time-limit expires
  • re-submitting a second incomplete application form

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

Post by marcidevpal » Thu Jan 05, 2023 2:34 pm

More on ECHR

Article 8

https://www.echr.coe.int/Documents/Guide_Art_8_ENG.pdf
397. The Court has affirmed that a State is entitled, as a matter of international law and subject to its treaty obligations, to control the entry of aliens into its territory and their residence there (Abdulaziz, Cabales and Balkandali v. the United Kingdom, 1985, § 67; Boujlifa v. France, 1997, § 42).

Moreover, the Convention does not guarantee the right of a foreign national to enter or to reside in a particular country. Thus, there is no obligation for the domestic authorities to allow an alien to settle in their country (Jeunesse v. the Netherlands [GC], § 103).

Nonetheless, the Court has accepted that the expulsion of settled migrants and foreigners unlawfully present on the territory of a Contracting State may interfere with their right to respect for their private and family life and, in certain circumstances, be incompatible with their rights under Article 8 of the Convention (Üner v.the Netherlands [GC]; Maslov v.Austria [GC]; Jeunesse v.the Netherlands [GC]; and Savran v. Denmark [GC]).
Immigration Guide

https://www.echr.coe.int/Documents/Guid ... on_ENG.pdf

2. Residence permits and possibility to regularise one’s legal status
78. The Court also examined, under Article 13, in connection with administrative charges to be paid as a precondition for the processing of the request for a residence permit, whether a foreigner had effective access to the administrative procedure by which he might, subject to fulfilling the conditions prescribed by domestic law, obtain a residence permit which would allow him to reside lawfully in the respondent State (G.R. v. the Netherlands).

As regards the protection of a migrant’s private-life interests in so far as they are affected by the uncertainty of his status and stay in a foreign country, see Abuhmaid v. Ukraine (see also B.A.C. v. Greece in respect of an asylum-seeker). In Hoti v. Croatia and in Sudita Keita v. Hungary, the Court found breaches of Article 8 because of the protracted difficulties for the applicants, stateless persons, to regularise their legal and residence status and the corresponding adverse effects on their private life. Determining an application for a residence permit based on an applicant’s health status is discriminatory and breaches Article 14 taken in conjunction with Article 8 (Kiyutin v. Russia; Novruk and Others v. Russia, concerning the denial of residence permits because the applicants were HIV-positive; see also Khachatryan and Konovalova v. Russia, where the Court found a breach of Article 8 in respect of the refusal to renew a long-term migrant’s residence permit on formal procedural grounds, because he had failed to furnish a requested medical certificate on time).
Last edited by marcidevpal on Thu Jan 05, 2023 2:35 pm, edited 2 times in total.

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

Post by marcidevpal » Thu Jan 05, 2023 2:34 pm

Hoti v Croatia!!!!

https://www.asylumlawdatabase.eu/en/con ... no-6331114

The Applicant, Mr. Hoti, is a stateless person born to Albanian parents residing in former SFRY (Socialist Federal Republic of Yugoslavia) Kosovo, as refugees. He has been living and working in Croatia for almost 40 years under temporary and humanitarian residence permits. Every attempt to regularise his status by applying for permanent residence permit or citizenship has been dismissed, because Croatia considers him to be an Albanian or Kosovar citizen and insists that he did not have an uninterrupted registered residence in the country for more than 5 years as required under domestic law.

The Court dismissed the Government’s request and held Croatia accountable for violating the Applicant’s right to private life by not providing effective and accessible procedures for the individual to determine his stay and status in the country and by not assessing the Applicant’s personal circumstances under Article 8 ECHR. The temporary residence permit was considered insufficient to remove the uncertainty of the Applicant’s residence status of which he complained, since the granting of a permanent residence permit, which would allow for the application to be stricken out under Article 37§1(b) ECHR, was not guaranteed.. Furthermore, the Court found that the lack of regularized status hindered the Applicant’s prospect of securing employment, health insurance and pension rights, given his advanced age.

Outcome:
Application granted (violation of Article 8 ECHR)

The Court held that Croatia was to pay the Applicant 7,500 EUR in respect of non-pecuniary damage plus any tax chargeable.

This ECtHR claim is a good one to include.
marcidevpal wrote:
Thu Jan 05, 2023 2:15 pm

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

Post by marcidevpal » Thu Jan 05, 2023 2:41 pm

Sudita Keita v Hungary

https://www.asylumlawdatabase.eu/en/con ... ivate-life

On 12 May 2020, the European Court of Human Rights published its decision on the case Sudita Keita v. Hungary (Application No. 42321/15) concerning a stateless individual’s protracted difficulty to regularise their status in Hungary.

The applicant, who is of Somali and Nigerian origin, arrived in Hungary in 2002. After his asylum application was rejected, he continued to live in Hungary without a regular legal status.

The applicant complained to the ECtHR that as a result of the challenges to regularise his status in the first fifteen years in Hungary, there were adverse repercussions on his enjoyment in respect of private and family life, including his ability to access health care and employment opportunities, and ability to marry.

The Court highlighted that the applicant's complaint was related not to the impossibility to obtain stateless status but rather the general impossibility of regularising his status in Hungary, which prevented him from living a normal private life for a fifteen-year-long period. As such, the applicant was deprived of basic entitlements to healthcare and employment.

The Court was not satisfied that the State had complied with its positive obligation to provide an effective and accessible procedure, or combination of procedures, enabling the applicant to determine his status with due regard to his private-life interests, contrary to Article 8 ECHR.

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