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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

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

Post by Nyamebeye » Sun Jan 08, 2023 8:56 pm

My contribution is a mixture of personal experience and some legal knowledge of appeals.

I would not want to be doing a to and fro commenting here as it may not be helpful. Remember the refusal letter is part of the evidence submitted as part of the appeal bundle. What does the refusal say? Does it say 'you have been refused because we do not accept / consider you as a family member of an EEA national with retain right'?

There are reasons why most lawyers advise people to highlight human rights in applications or even just to.memrion it in applications that are not typically human rights application. This way it can be raised in appeals.

I agree with some of the points you raise but not all. The Home Office knows it's a waste of tax payers money to go through an appeal that they know they will lose but they still go through anyway. They know it was a waste of money, time and resources they don't have for the EU Settlement Scheme and yet they have gone ahead by making us make pre-settled application, only to make another application for settled status in a months time and .... wait for it, one has to submit the same documents, and submit another biometric enrolment as if biometric data of a person changes within a month 😂

I was not condemning mentioning of the EEA family member application, I was highlightimg that it should not be the main focus of this appeal.You cannot argue a case in an appeal you have not made the home office aware of. It becomes new material.

In one of my appeals, the judge made it clear to the home office that they could not use evidence from a previous application and it's subsequent appeal to make a case in the new appeal, as one appeal was an EEA family member, and the other was Zambrano based, even though they were all under the same regulations. I won my cases and now have settled status.

We can all see how the Akinsanya case is developing each time and where it is now.
It seemed a straightforward case which was like a done deal but look where things are now.

Food for thought.

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

Post by marcidevpal » Sun Jan 08, 2023 11:24 pm

Judges don't directly make decisions based on what the Home Office refusal letter says. They are guided by the statutory instruments and the procedure rules for their tribunal. I have made this point a few times now.

Human rights are relevant in any claim under which the European Court of Human Rights has made a ruling. The idea of a 'human rights application' is an administrative label, just as a Zambrano appeal or an EEA appeal is an administrative label. Unless you can reference a statutory instrument that specifically mentions Zambrano, then there is no such thing as a Zambrano appeal, in terms of the law. There is just an appeal under the associated statutory instrument.

Wishfulgirl made submissions. Her submissions had three aspects. She asked for help to develop her submission around the EEA part, and she received it. The EEA part was not a main focus anymore than the other two parts.

When I mention what I believe a judge will do, I base it on what the relevant documentation says the judiciary should do. I don't talk off the cuff or assume or make connections between cases that may not exist. The Home Office is part of the UK. The UK agreed to help applicants who are EU citizens or their family members. The Home Office facilitated Wishfulgirl's entry and leave in the UK as a family member of an EEA national. Wishfulgirl therefore falls under the Withdrawal Agreement. What she does or does not choose to assert is her prerogative.

Evidence from one appeal may not be allowable in another appeal. Wishfulgirl is asserting her rights as a family member of an EEA national. Rights are a very different matter from evidence.

Plenty of cases won in the First-tier Tribunal and Upper Tribunal. Plenty of cases with similar circumstances lost. The President of the Upper Tribunal declared the EU Settlement Scheme is fundamentally flawed. Any win (or loss) has to be put in perspective.

We cannot see how Akinsaya is developing because nothing has been made public since the Court of Appeal published its decision. Care to share with everyone new developments on Akinsaya?

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

Post by marcidevpal » Mon Jan 09, 2023 9:33 am

The Withdrawal Agreement
ARTICLE 18
Issuance of residence documents


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

(a) the purpose of the application procedure shall be to verify whether the applicant is entitled to the residence rights set out in this Title. Where that is the case, the applicant shall have a right to be granted the residence status and the document evidencing that status;

(e) the host State shall ensure that any administrative procedures for applications are smooth, transparent and simple, and that any unnecessary administrative burdens are avoided;

(o) the competent authorities of the host State shall help the applicants to prove their eligibility and to avoid any errors or omissions in their applications; they shall give the applicants the opportunity to furnish supplementary evidence and to correct any deficiencies, errors or omissions;

(r) the applicant shall have access to judicial and, where appropriate, administrative redress procedures in the host State against any decision refusing to grant the residence status. The redress procedures shall allow for an examination of the legality of the decision, as well as of the facts and circumstances on which the proposed decision is based. Such redress procedures shall ensure that the decision is not disproportionate.

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

Post by Nyamebeye » Mon Jan 09, 2023 12:06 pm

marcidevpal wrote:
Sun Jan 08, 2023 11:24 pm
Judges don't directly make decisions based on what the Home Office refusal letter says. They are guided by the statutory instruments and the procedure rules for their tribunal. I have made this point a few times now.

Human rights are relevant in any claim under which the European Court of Human Rights has made a ruling. The idea of a 'human rights application' is an administrative label, just as a Zambrano appeal or an EEA appeal is an administrative label. Unless you can reference a statutory instrument that specifically mentions Zambrano, then there is no such thing as a Zambrano appeal, in terms of the law. There is just an appeal under the associated statutory instrument.

Wishfulgirl made submissions. Her submissions had three aspects. She asked for help to develop her submission around the EEA part, and she received it. The EEA part was not a main focus anymore than the other two parts.

When I mention what I believe a judge will do, I base it on what the relevant documentation says the judiciary should do. I don't talk off the cuff or assume or make connections between cases that may not exist. The Home Office is part of the UK. The UK agreed to help applicants who are EU citizens or their family members. The Home Office facilitated Wishfulgirl's entry and leave in the UK as a family member of an EEA national. Wishfulgirl therefore falls under the Withdrawal Agreement. What she does or does not choose to assert is her prerogative.

Evidence from one appeal may not be allowable in another appeal. Wishfulgirl is asserting her rights as a family member of an EEA national. Rights are a very different matter from evidence.

Plenty of cases won in the First-tier Tribunal and Upper Tribunal. Plenty of cases with similar circumstances lost. The President of the Upper Tribunal declared the EU Settlement Scheme is fundamentally flawed. Any win (or loss) has to be put in perspective.

We cannot see how Akinsaya is developing because nothing has been made public since the Court of Appeal published its decision. Care to share with everyone new developments on Akinsaya?


No new development on this as we all know. I meant the journey so far. How it started and where it is now.

Saying nothing more on this topic 🤐
Take care
Thanks.

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

Post by marcidevpal » Mon Jan 09, 2023 1:01 pm

Are the Immigration Rules Unlawful?

Zambrano carers who had leave to remain on 31 December 2020 are (generally) ineligible for settlement.

What if you were a Zambrano carer who acquired five years' residence under the EEA Regulations prior to 31 December 2020?

According to E.K.' case before the European Court of Justice, you would have been (ordinarily) entitled to permanent residence.

In a recent ruling, the President of the Upper Tribunal said two key things. One, that the Withdrawal Agreement seeks to delineate or clearly define what people fall within the scope and are covered by it. Two, that it protects rights acquired under EU law prior to Brexit.

However, Annex I of Appendix EU / EUSS effectively ends those rights. Therefore, the EU Settlement Scheme is unlawful with regard to how it treats Zambrano residents.

Moreover, there is a question as to whether Zambrano carers who acquired residence rights prior to Brexit are covered by the Withdrawal Agreement.

The EU Exit Regulations explicitly allow for two grounds of appeal. One, that the Home Office's refusal is not in accordance with the Withdrawal Agreement. Two, that the refusal is not in accordance with the Immigration Rules. I think you can argue both grounds on behalf of Zambrano carers.

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

Post by marcidevpal » Mon Jan 09, 2023 1:07 pm

Nyamebeye wrote:
Mon Jan 09, 2023 12:06 pm
No new development on this as we all know. I meant the journey so far. How it started and where it is now.

Saying nothing more on this topic 🤐
Take care
Thanks.
Good to know! By the way, Article 13 of the European Convention on Human Rights includes the Right to an effective remedy. Akinsaya's case is a good example of no effective remedy.

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

Post by marcidevpal » Tue Jan 10, 2023 11:33 am

The UK's Obligations under Article 8 ECHR

If you ask the judge to consider your human rights, and in particular your Article 8 human rights, the judge should consider the UK's obligations. The UK is obliged to NOT do certain things, an also has responsibility TO DO some things. You may want to consider what you think the UK should have done with regard to the EU Settlement Scheme in your particular case.

Per the ECHR - https://www.echr.coe.int/Documents/Guide_Art_8_ENG.pdf

The primary purpose of Article 8 is to protect against arbitrary interferences with private and family life, home, and correspondence by a public authority (Libert v. France, §§ 40-42).

Negative (standard) Obligations
Where the case concerns a negative obligation, the Court must assess whether the interference was consistent with the requirements of Article 8 paragraph 2, namely in accordance with the law, in pursuit of a legitimate aim, and necessary in a democratic society.

Postive (proactive) Obligations
Member States also have positive obligations to ensure that Article 8 rights are respected. These obligations may involve the adoption of measures designed to secure respect for private life. Regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole.

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

Post by marcidevpal » Tue Jan 10, 2023 11:41 am

Another way the EUSS violated your Article 8 Rights

Were you, as a Zambrano carer, completely shocked and surprised by the new definition of a Zambrano carer in Annex 1 of the EUSS / Appendix EU?

Did the new definition of a Zambrano carer mean you would not qualify for settlement under the EUSS?

Under the European Convention of Human Rights, member countries (or Contracting States) can not create laws that negatively affect your rights without sufficient warning.

Per the ECHR - https://www.echr.coe.int/Documents/Guide_Art_8_ENG.pdf

"With regard to foreseeability, the phrase “in accordance with the law” thus implies, inter alia, that domestic law must be sufficiently foreseeable in its terms to give individuals an adequate indication as to the circumstances in which, and the conditions on which, the authorities are entitled to resort to measures affecting their rights under the Convention (Fernández Martínez v. Spain [GC], § 117). Foreseeability need not be certain. In Slivenko v. Latvia [GC], the applicants must have been able to foresee to a reasonable degree, at least with the advice of legal experts, that they would be regarded as covered by the law (see also Dubská and Krejzová v. the Czech Republic [GC], § 171)."

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

Post by Mypapers » Tue Jan 10, 2023 2:07 pm

My solicitor contacted me today saying that my Zambrano application has been refused on basis, that I have other leave to remain. I don’t know what to do now because the solicitors told me it’s not worth appealing. I’m not very good with paperwork to do myself.

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

Post by marcidevpal » Tue Jan 10, 2023 3:28 pm

Point 1

Did you achieve five years residence as a Zambrano carer before 31 December 2020? If so, based on the case of E.K. versus the Netherlands before the European Court of Justice, you should have been granted permanent residence. The UK government created a statutory instrument (secondary legislation) called the EEA Regulations. Section 15 of that document said people who held derivative cards were not eligible for permanent residence. We know now that Provision 15 was unlawful. It denied Zambrano carers permanent residence in an unlawful manner.

Point 2

You can also appeal based on your human rights.

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

Post by marcidevpal » Wed Jan 11, 2023 8:47 am

The Withdrawal Agreement, Political Declaration & the ECHR

You probably know all about the Withdrawal Agreement. There is also a Political Declaration. The POLITICAL DECLARATION sets out the framework for the relationship between the EU and the UK. This document says both parties agree to respect human rights. Specifically, the UK "should" rely on the ECHR and the EU will rely on the Charter of Fundamental Rights. Some people argue the UK can not leave the Council of Europe to no longer follow the ECHR because of what the Political Declaration says.

Anyway, if you are filing an appeal, you could perhaps argue the decision is not in accordance with the Withdrawal Agreement, because the Political Declaration goes hand in hand with the Withdrawal Agreement and requires the UK to respect human rights, and the European Convention on Human Rights.

INTRODUCTION -

1. ...This declaration accompanies the Withdrawal Agreement that has been endorsed by the Parties, subject to ratification.

3. ...The Union and the United Kingdom agree that prosperity and security are enhanced by embracing free and fair trade, defending individual rights and the rule of law, protecting workers, consumers and the environment, and standing together against threats to rights and values from without or within.

PART I: INITIAL PROVISIONS

I. BASIS FOR COOPERATION

A. Core values and rights

6. The Parties agree that the future relationship should be underpinned by shared values such as the respect for and safeguarding of human rights and fundamental freedoms, democratic principles, the rule of law and support for non-proliferation. The Parties agree that these values are an essential prerequisite for the cooperation envisaged in this framework. The Parties also reaffirm their commitment to promoting effective multilateralism.

7. The future relationship should incorporate the United Kingdom's continued commitment to respect the framework of the European Convention on Human Rights (ECHR), while the Union and its Member States will remain bound by the Charter of Fundamental Rights of the European Union, which reaffirms the rights as they result in particular from the ECHR.

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

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

Post by marcidevpal » Fri Jan 13, 2023 10:22 am

SSHD v GJERA

The idea that any EUSS applicant would

a.) have to be served a section 120 notice, and
b.) have to obtain the approval of the Secretary of State for the Judge to even consider Article 8 human rights,

is a blatant violation of the European Convention on Human Rights.

The other idea that EUSS applicants must make a special application is also an appalling violation of the ECHR. (Notice the vague manner in which everyone talks about this application).

The UK's barristers and solicitors need to be willing to challenge these decisions to either the European Court of Human Rights, or to the European Court of Justice, or both. The discussion should not end in the UK court system.

This court system is the same system which, for years agreed with Provision 15 of the EEA Regulations which said derivative card holders were not habitually resident and were ineligible for permanent residence. The E.K. versus Netherlands case proves they were wrong. Yet, nothing has been done to right this wrong.

This court system is the same one that allowed the Home Office to argue - for years - that Zambrano carers who had leave to remain under Appendix FM were not Zambrano carers.

In another vein, has a single UK judge referred a single question to the European Court of Justice? The E.K. case was referred by the Netherlands judge to the CJEU. That is why we have the ruling today.

So, the court system can rule that people should have to go on some sort of hunting exercise for a "human rights application", but that rule will not stand over time. Just think about it.

a.) If the only way to have your human rights considered, is to fill out an application each and every time, then you will always fill out a human rights application at the beginning. That leads us to where we are today.

b.) Alternatively, you will have to fill out two applications simultaneously, one to deal with how the Home Office did not follow the rules, and another application on how the Home Office interfered with your human rights.The judges seem to want more work. Or, maybe some people are hoping people just give up?

So, a pattern emerges. Judges who agree with the President of the Upper Tribunal in the Celik case say EUSS applicants need to "make a human rights claim". Judges who follow the ECHR apply relevant ECtHR decisions to appeals. That is what the UK signed up to.

Based on my reading, Mr Gjera may be able to go directly to the European Court of Human Rights. The judge in this case mentions the Court of Appeal. Given the number of years spent on this issue, and the number of people impacted it seems arguments can be made as to why the European Court should agree to consider whether Mr Gjera's human rights should have been considered and what the outcome would be. The First-tier Tribunal judge considered Mr Gjera's human rights and decided he should be granted settlement. It seems likely the European Court of Human Rights would agree.
UPPER TRIBUNAL JUDGE KEITH

https://tribunalsdecisions.service.gov. ... 15426-2021

Representation:
For the appellant: Mr P Georget, Counsel, instructed by Malik & Malik solicitors
For the respondent: Mr T Melvin, Senior Home Office Presenting Officer

28. If the Secretary of State’s appeal is successful on the basis of the Claimant had not made a human rights claim, any such claim may simply go through the usual process for consideration by the Secretary of State and if necessary, onwards to a First-tier Tribunal.

33. In respect of the FtT’s reasons, which allowed the Claimant’s appeal by reference to article 8 ECHR, there is no decision which engages article 8; no section 120 notice has been issued, and the Secretary of State has not consented to any new matter being considered. The FtT therefore erred in law, in allowing an appeal on the basis of which the Secretary of State had not reached a decision.

34.I bore in mind paragraphs 7.2(a) and (b) of the Senior President’s Practice Statements...The Claimant’s appeal under the 2020 Regulations falls to be dismissed because of Celik. There is no human rights decision on which an appeal can be remade.

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

Post by marcidevpal » Fri Jan 13, 2023 10:48 am

Margin of Appreciation

https://www.echr.coe.int/documents/convention_eng.pdf
Affirming that the High Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in this Convention and the Protocols thereto, and that in doing so they enjoy a margin of appreciation, subject to the supervisory jurisdiction of the European Court of Human Rights established by this Convention, Have agreed as follows:

ARTICLE 1
Obligation to respect Human Rights

The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention
The above is a direct quote from the Convention. The UK is a "High Contracting Party". High Contracting Parties are to be the first place for you to secure your human rights. There is a bit of space in terms of how the UK wants to enforce human rights. But making people file multiple applications, simply goes beyond its powers. The additional hoops the Courts ask people to jump through are, in an of themselves, unacceptable under the ECHR. The fact that so many judges automatically considered human rights (prior to Celik), tells you something is wrong. Each judge studied the law. They would not have applied the ECHR if it was not warranted. One case is now being used to stop human rights considerations. That should never happen. A case is not even legislation. It isn't even secondary legislation, like a badly written statutory instrument. At the very least, the refusal to consider human rights should come via an act of Parliament, not from one case. What a shame.

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

Post by marcidevpal » Fri Jan 13, 2023 6:00 pm

On Human Rights Applications

When the Council of Europe was created, what they decided was that the member states, would continue to deliver justice in their normal way - with a key exception.

Whenever a case was brought to their attention which raised human rights issues, the judges must agree to do two things -

1.) Conduct a human rights assessment
2.) Take any relevant ruling by European Court of Human Rights into account

The ECHR was never about creating a separate or two-tiered system. It was always about making the existing systems better and fairer. People who apply to the EUSS never had the opportunity to have their human rights taken into account. That is why, for a judge to outright refuse to conduct a balancing exercise, is so very shocking.

The rule that is referenced serves a particular purpose. Let's say you apply for leave to remain under Appendix FM. The Home Office should conduct a human rights assessment at the time you make your application. (By contrast, this assessment did not happen under the unlawful EUSS). To repeatedly raise human rights concerns before the Court would probably be a waste of everyone's time. That is why the rule exists that you have to get the Home Office's permission for human rights to be considered. It is in situations where the same balancing exercise may need to be done repeatedly.

The EUSS appeals, are not in this category. Just look at your refusal letters. Does the Home Office mention how it considered your human rights through a balancing exercise? No, because they didn't do one. Therefore, the First-tier Tribunal judge should. If not this judge, then the Upper Tribunal. If the judges won't consider your human rights, you can keep arguing in the UK Court system, or you can go to another court. Hopefully, that is clear.

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

Post by marcidevpal » Sat Jan 14, 2023 9:25 am

Human rights applications continued from above -

To establish the right to appeal on human rights grounds, you need to show that the decision on your immigration matter breaches your right to privacy and/or family life in the UK. There is no single application. Examples of applications you can make are listed below:


Admin Court - Form N461
File for a judicial review of decisions made by other courts, tribunals and public bodies. Cases may be heard by one High Court judge or by a ‘Divisional Court’ which consists of 2 or more judges, normally a High Court Judge and a Lord Justice of Appeal. If you look at the form, Question 4.4 says, "Does any part of the claim allege a breach of Convention rights protected under the Human Rights Act?"

Indefinite Leave to Remain ILR 10-years’ Long residence - Form Set-LR
Use this form if you have lived in the UK lawfully for 10 years continuously and now want to apply to settle in the UK.

UTIAC - Form UTIAC1
Perhaps you want to challenge the First-tier Tribunal's refusal to consider your human rights under the EUSS appeal? You can make an application for judicial review in the Upper Tribunal Immigration and Asylum Chamber (UTIAC). Your application must be made promptly and must be sent or delivered to the Tribunal so that it is received no later than 3 months. The fee to start your case is £154. If the Tribunal grants permission for a substantive hearing the Tribunal fee for the whole case is £924. You can ask for a mandatory order
a prohibiting order, a quashing order, a declaration or an injunction.
More help
Facing court without a lawyer?Support through the Court can help at all stages of the court process, either face-to-face or via a remote appointment. If you're facing court without representation anywhere in England or Wales, they can help. They are there for you at all stages of the court process and can offer emotional and practical support, and some help with completing court forms. They cannot give legal advice, and if our volunteers can’t help, they will try to suggest other services for callers.

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

Post by marcidevpal » Sat Jan 14, 2023 9:41 am

What if the Upper Tribunal refuses permission to appeal?

Let's say the First-Tier Tribunal refuses your appeal. You want to appeal to the Upper Tribunal, but the Upper Tribunal said no. You think, ok, maybe I will appeal to an even higher court, the Court of Appeal. You learn you are not able to do so.

The bad news is you probably can't go much further in the UK courts. The good news is you can apply to the European Court of Human Rights. You need to apply to the ECtHR within 4 months of the date you are refused permission to appeal.

In the past
You could file a "Cart" judicial review. A person named Cart, appealed all the way to the Supreme Court. The Supreme Court ruled you should have the right to appeal. A Cart JR has to be brought within 16 days of the decision to refuse permission by the Upper Tribunal. The 16 days starts on the date on which the UT sends you their decision, not on the date you receive it. With other types of judicial reviews, you have 3 months to file.

Today
Clause 2 of the Judicial Review Bill makes it difficult to file a Cart judicial review.
a decision made by the court of supervisory jurisdiction in relation to any such refusal by the Upper Tribunal, whether such decision of the court of supervisory jurisdiction is to refuse permission to proceed or is to dismiss the substantive claim in the supervisory court or is any other order, is final and cannot be questioned or set aside or reversed whether by way of renewal or appeal or otherwise.
https://bills.parliament.uk/publication ... ments/1754

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

Post by marcidevpal » Mon Jan 16, 2023 8:41 pm

Begum v SSHD

Heard at Field House

Before
DEPUTY UPPER TRIBUNAL JUDGE HANBURY
UPPER TRIBUNAL JUDGE ALLEN

Representation:
For the Appellant: Mr S Karim of counsel
For the Respondent: Mr Melvin a Home Office presenting officer

https://tribunalsdecisions.service.gov. ... 432021-ors
12. At least the judge should have made findings on these aspects of the sponsor’s evidence. The judge should have grappled with this to a greater extent than he did.

16. The appellant said in response that the judge ought to have considered the argument that the first appellant’s failure to meet the English language requirement constituted exceptional circumstances. It was incumbent on the tribunal to consider article 8 (2) if raised but the burden rested on the Home Office to satisfy the tribunal as to that article. The judge did not engage with this point. The respondent argues that the appellants and the sponsor could meet in a third country but Mr Karim was not sure that it was put to the sponsor that this was viable. The sponsor’s subjective concerns were not considered either.

19. The Supreme Court, however, upheld the requirements of the Immigration Rules. It held that four questions generally arose for the court to consider:

(i) Whether the legislative objectives were sufficiently important to justify limiting a fundamental right;
(ii) Whether the measures which had been designed to meet it were rationally connected to it;
(iii) Whether they were no more than necessary to accomplish it; and
(iv) Whether they struck the right balance between the rights of the individual and the interests of the community.

20. A balance must be struck between the right to respect for private and family life and the legitimate aims of the respondent in protecting the national interest, including the economic well-being of the UK and promoting the integration of those who come to the UK.

21. However, the decision-maker must consider exceptional circumstances, where they are made out.

27. Accordingly, our provisional view is that the appeal should be remitted to the judge for him to assess whether there were any exceptional circumstances for allowing this appeal on the basis that the first appellant qualified for an exemption from the English language test requirement in E – ECP.4.2 (c) or she qualified outside the Immigration Rules. It may also be appropriate for the judge to consider article 8 afresh in the light of those findings.
Paragraph E-ECP.4.2.(c) of Appendix FM of the Immigration Rules allows for exceptional circumstances. Appendix EU of the Immigration Rules does not contain a provision for exceptional circumstances.

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

Post by marcidevpal » Mon Jan 16, 2023 8:51 pm

Appendix Settlement Family Life

Immigration Rules
Updated: 30 November 2022

https://www.gov.uk/guidance/immigration ... amily-life

This route is for a person who has permission to stay as a partner or parent (or has had a combination of the two) under Appendix FM, and who is eligible to settle in the UK after a qualifying period of 10 years.

https://www.gov.uk/guidance/immigration ... amily-life

The person may also be able to count time with permission on other routes towards the 10 year qualifying period, if certain conditions are met.

Parents and their dependent children may qualify for settlement on the basis of 10 years Long Residence in the UK
SETF 1.1. A person who is applying for settlement must apply online on the gov.uk website on the specified form “Settlement as a partner or parent.”.

SETF 1.2. An application for settlement must meet all the following requirements:
(a) any fee must have been paid; and
(b) the applicant must have provided any required biometrics; and
(c) the applicant must have provided a passport or other travel document which satisfactorily establishes their identity and nationality; and
(d) the applicant must be in the UK on the date of application.

SETF 1.3. The applicant must have, or have last been granted, permission as a partner or parent under Appendix FM.

SETF 1.4. An application which does not meet all the validity requirements for settlement is invalid and may be rejected and not considered.

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

Post by marcidevpal » Tue Jan 17, 2023 11:03 am

How Discrimination Works

If I want to discriminate against a group, I have to have an easy way to identify members of that group. After Brexit, everyone under the EU rules was to be given the same rights. It became difficult to target people who previously held derivative residence cards, such as Zambrano carers. So, what did the Home Office do?

1.) Told Zambrano carers to apply by paper, as opposed to via the much faster software app

2.) Attempted to write Zambrano carers out of the Withdrawal Agreement (I do not accept they were, but that is another story).

3.) Update the Immigration Rules of Appendix EU to create multiple categories of Zambrano carers. These subgroups were created with no explanation by the Home Office as to why they were necessary, or how they served the public good.

4.) Trick people into applying for Appendix FM by staying quiet on the EUSS requirements, sending letters to Zambrano carers telling them to apply under Appendix FM when they were not required to do so, refusing Zambrano carers under EUSS because they "had not applied" under Appendix FM.

5.) Create a new category of Immigration Rules called appendix Settlement Family Life. This new category puts Zambrano carers who could have applied under Set-LR into a separate category. Set-LR is for people who were lawfully in the UK for 10 years. So, there are now at least two categories of Set-LR people. Those who applied under Set-LR and those who apply under this new category.

My thoughts: All I am saying is a pattern emerges. The UK wants to create a separate set of Immigration Rules for parents of British children and force or shepherd them into those rules. Given the hostile environment, once parents of British children become concentrated into those rules, I believe you will see a two-tier discriminatory system emerge. I also believe those parents who go on to get British passports will run the risk of their passports being revoked for random reasons. If you can remain in the general categories, you should. Try to qualify under EUSS, or the general Set-LR. Otherwise, if you are in a group that relies on human rights only, and the UK leaves the Council of Europe, it is unclear what may happen.

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

Post by marcidevpal » Tue Jan 17, 2023 11:51 am

More on Begum v SSHD

If you look at this case, you may think, "Wow, those UK judges are really great to be willing to consider my request based on exceptional circumstances or under Article 8 - provided my original application was under Appendix FM. I should apply under Appendix FM because then I am almost certainly guaranteed to be give a human rights assessment, or at least to be granded leave due to exceptional circumstances.

This option is highly attractive, particularly if you are someone who has already spent over five years living in the UK. But no one stops to ask, why is it Appendix FM offers consideration of exceptional circumstances and Article 8 human rights, but Appendix EU offers neither?

Perhaps because Appendix EU is designed to make it relatively simple and straightforward for almost all groups to succeed. It is designed to (unlawfully) deny other, mostly vulnerable groups. You can't deny the vulnerable if you have an Article 8 assessment or an exceptional circumstances standard. That would defeat the purpose of the unlawful provisions...

So what does the organization do? They create an Appendix EU with unlawful provisions and try to prevent any human rights or considerations of the applicant's humanity. They get the Courts to agree with you, that is truly important. They rely on the assumption that the applicant's will stop at the UK Courts and take no further action. They stay quiet about any case law from the European Court of Justice that could expose your provisions as unlawful.

Begum v SSHD is not a celebration of the Upper Tribunal's strong words to encourage the First-tier Tribunal to fully consider Article 8 and exceptional circumstances. It is not a reason to go for Appendix FM. Is Appendix FM a "human rights application", as the judges so indelicately put it? Sure. But so too should Appendix EU unless and until a time when either the Home Office, the Courts or both, provide a proper explanation for why human rights are not a consideration under Appendix EU.

Appendix EU is an extension of the Withdrawal Agreement. The Withdrawal Agreement is tied to the Political Declaration. The Political Declaration is a contract, signed by Boris Johnson, then Prime Minister, which says the UK will uphold the European Convention on Human Rights. To exclude human rights considerations from Appendix EU is to break the contract between the United Kingdom and the EU.

I am more than happy to celebrate UK judges when they uphold human rights under Appendix EU.

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

Post by marcidevpal » Tue Jan 17, 2023 11:58 am

Corrections from previous post

This paragraph is confusing to read so I made changes. They are marked in red -
So what does the organization do? They create an Appendix EU with unlawful provisions and try to prevent any human rights or considerations of the applicant's humanity. They get the Courts to agree with them, that is truly important. They rely on the assumption that the applicant's will stop at the UK Courts and take no further action. They stay quiet about any case law from the European Court of Justice that could expose their provisions as unlawful.

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

Post by marcidevpal » Tue Jan 17, 2023 12:24 pm

UK Judges & Neutrality

A quick point:

You would expect UK judges to want to include human rights considerations, by default. Indeed, until Celik, the judges seemed to take human rights into account. After the Celik decision, they stopped doing so for the most part.

At the very least, you would expect the UK judges to say to the Home Office, tell us why we should not take human rights into account. Instead, what you have in Celik, is the President of the Upper Tribunal effectively making the Home Office's case for them.

The President of the Tribunal is basically saying, "We judges do not have to take human rights into account because the statutory instrument (EU Exit) does not tell us to." (The President would be aware that this requirement is not necessary under the terms of the UK's membership of the Council of Europe.) So, the judges are taking a position to disallow human rights on EUSS applications.

Parliament has NOT said explicitly or otherwise, "Do not take human rights into account". Parliament would not say that, either, because it would violate the Political Declaration. So, I am saying we have a proactive court.

They are using UK case law in Amir.... v SSHD (I forget the full name) to make the case that they do not have to consider human rights on EUSS appeals. The Court does not have the right to preference UK case law over its responsibilities as the member of the Council of Europe, nor as a signatory to the Political Declaration and Withdrawal Agreement. It also does not have the right to ignore Dereci, which is EU case law, because the Withdrawal Agreement says the UK will follow EU case law (both previous to Brexit and current).

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

Post by marcidevpal » Tue Jan 17, 2023 12:56 pm

Said again in simper terms, the UK Courts have said that our previous case law says we don’t have to consider human rights, so we won’t on EUSS applications. It doesn’t matter that Parliament has not told us not to consider human rights. It also doesn’t matter that as a country, the UK is a member of the Council of Europe and that the UK as a whole is a Contracting Party to the Withdrawal Agreement and Political Declaration. We, the UK courts, are going to ignore human rights considerations - because of a case WE DECIDED in the UK courts. Not based on a case from the European Court of Human Rights, or from the European Court of Justice. But from our own case law. It is all really quite shocking.

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

Post by marcidevpal » Thu Jan 19, 2023 12:09 pm

Further Submissions

If the judge disagrees with the points below, he or she disagrees with the EU. I copied and pasted these points directly from the EU website.

1. From the outset of the negotiations, the EU has attached great importance to the fact that the provisions of the Withdrawal Agreement must clearly have the same legal effects in the United Kingdom as in the EU and its Member States. The Agreement explicitly includes such a requirement, meaning that both Parties should ensure, in their respective legal orders, primacy and direct effect, as well as consistent interpretation with the case law of the Court of Justice of the European Union (CJEU) handed down until the end of the transition. Direct effect is mentioned explicitly with reference to all provisions of the Withdrawal Agreement, which meet the conditions of direct effect under Union law. This basically means that concerned parties can invoke the Withdrawal Agreement directly before national courts both in the United Kingdom, as well as in the EU Member States.

2. It is also mandatory for the purposes of interpreting the Agreement to use the methods and general principles of interpretation applicable within the EU. This covers, for instance, the obligation to interpret the concepts or provisions of Union law referred to in the Withdrawal Agreement in a manner consistent with the Charter of Fundamental Rights.

3. Furthermore, United Kingdom courts must abide by the principle of consistent interpretation with the CJEU case law handed down until the end of the transition period and pay due regard to CJEU case law handed down after that date.

4. The Agreement specifically requires the United Kingdom to ensure compliance with the above through primary domestic legislation, specifically empowering United Kingdom judicial and administrative authorities to disapply inconsistent or incompatible national law.

5. Any national law provisions that are not consistent with the provisions of the Withdrawal Agreement will have to be disapplied. UK courts will be able to ask for preliminary rulings from the Court of Justice of the EU on the interpretation of the citizens' part of the Withdrawal Agreement for a period of eight years following the end of the transition period. For questions related to the application for the UK settled status, that eight-year period has started running on 30 March 2019.

6. The EU and the United Kingdom have agreed on the direct effect and the supremacy of the entire Withdrawal Agreement under the same conditions as those applicable in Union law, as well as the fact that the Court of Justice of the European Union (CJEU) is the ultimate arbiter for matters related to EU law or Union law concepts. In the event of a dispute on the interpretation of the Withdrawal Agreement, an initial political consultation would take place in a Joint Committee. If no solution is found, either party can refer the dispute to binding arbitration. In those cases where the dispute involves a question of EU law, the arbitration panel has an obligation to refer the question to the CJEU for a binding ruling. In addition, each party may request that the panel refers a question to the CJEU. In such cases, the arbitration panel must refer the question to the CJEU, unless it considers that the dispute in reality does not touch on EU law. It must give the reasons for its assessment and the parties may ask for a review of its assessment. The decision of the arbitration panel will be binding on the Union and the United Kingdom.

See - https://ec.europa.eu/commission/pressco ... nda_20_104

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

Post by marcidevpal » Thu Jan 19, 2023 12:19 pm

UK Judges

Did your First-tier Tribunal Judge or Upper Tribunal judge have due regard for the E.K. versus the Netherlands case? In Ms E.K.'s case, she is a Zambrano carer who had lived in the Netherlands for five years. The Court said Zambrano carers like her were entitled to permanent residence.)

Did your First-tier Tribunal Judge or Upper Tribunal judge "abide by the principle of consistent interpretation with the CJEU case law" by applying Dereci? In Dereci, courts were required to consider human rights. If your judge refused to consider your human rights when you asked them to, then they did not apply CJEU case law. Dereci was decided before the UK left the EU, so the UK's judges, MUST apply Dereci or they violate their agreement.

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