Zambrano Settled Status EU settlement scheme Paper Application Form - NEW

Wishfulgirl wrote: ↑

Thu Mar 30, 2023 11:49 am

How strange that you should have to wait so long. I think you should be given the opportunity to update your submissions. The Celik appeal should hopefully be decided and published by then.

marcidevpal wrote: ↑

Thu Mar 30, 2023 2:00 pm

Wishfulgirl wrote: ↑

Thu Mar 30, 2023 11:49 am

How strange that you should have to wait so long. I think you should be given the opportunity to update your submissions. The Celik appeal should hopefully be decided and published by then.

Am I able to do that? Do they allow the possibility to update my submission? Even if the courts do allow it, will Home Office accept it. That'll be interesting to know.

Wishfulgirl wrote: ↑

Thu Mar 30, 2023 3:50 pm

If the judge allows you to make further submissions, it does not matter what the Home Office thinks. You may want to write to the Court and request permission to be able to make further submissions, particularly in light of the Celik appeal. The Courts may decide other cases that could help you.

Statement of Changes to the Immigration Rules HC1160

The immigration rules are always changing in April. The UK Government published its latest Statement of Changes to the Immigration Rules ('the Rules') on 9 March 2023. See page 22 for the updated definition of a Zambrano carer. I don't think it will help most people but I could be wrong.

https://www.gov.uk/government/publicati ... march-2023

March 2022 EUSS Refusal Statistics

When looking at the refusals in the derivative rights applicants, Zambrano applications accounted for 85% of the total refusals.

Total refusals are 2,680.
Zambrano refusals are 2,280

March 2021 EUSS Refusal Statistics

When looking at the refusals in the derivative rights applicants, Zambrano applications accounted for 92% of the total refusals.

Total refusals 2,260
Zambrano refusals 2,090

• March 2021 statistics - https://www.gov.uk/government/statistic ... march-2021

• All statistics reports - https://www.gov.uk/government/collectio ... statistics

Scandal

This story is about asylum seekers but is still relevant for Zambrano carers. I will explain why at the end. Imagine the Illegal Migration Bill has passed. You are an asylum seeker who arrives to the UK. You are immediately put into detention and told any legal claim you try to file is "inadmissible". In other words, the Courts will not accept it because the Illegall Migration Bill tells them not to accept it. You don't speak English very well. Your lawyer tries to see you in detention, but has difficulty scheduling the translator or you are ill on the day the lawyer arrives, or something else.

You are then transferred to a barge or boat. Because you can't apply to the UK courts, your lawyer suggests you apply to the European Court on Human Rights. The ECtHR or Strasbourg Court says you have four months from the date you receive your decision from the judge or from the date your human rights were violated. Because you were not allowed to petition the Court, your four month time limit probably starts from the day you were put in detention, or on the day you arrived in the UK. But because you are on a boat, your lawyer has even greater difficulty meeting up with you. It is time consuming for them to get to you. The translator is busy, too. Somehow, the lawyer finds a way to get your application submitted to the ECtHR in time.

The ECtHR refuses over 80% of applications. Unfortunately, you are one of the unlucky ones. One day, people come to your room on the barge and tell you that you are being returned to the country you fled. So, that's it. No day in court in the UK. Not even a day in court in Strasbourg. You are returned even though approximately 70% of asylum seekers in the UK are eventually recognized as genuine refugees.

What does this story have to do with Zambrano carers? By studying other groups, you can get a sense for the approach taken for your group. The statistics show a consistent and high refusal rate for Zambrano carers. There is no option to go before the European Court of Justice. The option to go before the European Court on Human Rights is highly restricted. The Admin Court is likely to refuse permission for a judicial review. The refusal rate by the Home Office is around 85- 90%. I am not sure what percentage of Zambrano carers win before the First-tier Tribunal and/or Upper Tribunal, but I think it is small. Their decision-making is chaotic and not consistent anyway. All of the sentences in this paragraph sound so extreme and so negative, you would be tempted to think it is an exaggeration. That is, unless you look at the situation faced by asylum seekers.

You can read the cases by the European Court on Human Rights and think, I have a good chance of winning against the UK. And so you should. But the reality is you probably won't get your day in the ECtHR. And it is by design. The ECtHR accepts just enough cases to give the appearance of fairness. Do you really think 82% of ECtHR cases should be refused without being heard by the judges? I suspect many are immigration applications. They should be heard by the ECtHR judges. The whole thing perverts the course of justice and is a scandal waiting to be addressed, in my opinion.

Prison

I was reading my news feed and saw a story about people who went to prison. One story was about a lady who bought sneakers for her mother in prison. The sneakers were not special, they were no-name. When she went to the prison to give her mother the sneakers, the guard took them, apparently. On her second visit, the same thing happened. The guard took the simple sneakers. But, on her third visit, there was a different guard on duty. This guard gave the third pair of sneakers to her mother.

Zambrano carers have been in a sort of invisible prison for years. Some may say the prison existed since the Brexit vote in 2016. Others may say the prison began in May 2019 when the EU Settlement Scheme first opened to Zambrano carers. Either way, the idea of a prison resonates with me because the only way "out" of the EU Settlement Scheme is for you to be lucky. We should not pretend that the redefinition of an EU concept, "Zambrano carer", to a completely new and very limited concept is fair. Moreover, the new definition of a Zambrano carer serves no purpose but to limit freedoms and rights. But that's just my opinion.

When is a Scheme a Scheme?

Around 90% of Zambrano applicants are refused for the EU Settlement Scheme. The vote happened in June 2016. The scheme opened to Zambrano carers in late May 2019. There was no suggestion at any point that 90% of Zambrano carers would be refused. The Home Office would have known how many people they would refuse. They had access to the data because they issued the derivative residence cards and Appendix FM visas. They failed to warn people. What is the point of an immigration scheme that advertises to a group but automatically disqualifies 90% of that group? There is a point about fundamental unfairness that no one wants to discuss. But then, this is the same court system in which your success depends on the particular judge you meet on the day.

Hi Everybody's
I am silent a follower of this forum for a while, and an Applicant for Akinsanya type Zambrano application, The Application was made on 27 June 2021. I have got a Face to face Hearing date before First Tier Tribunal on the 19th April 2023, although did not expect that quick. The Tribunal Direct me to sent an AEC (appellant Explanation in the Case) to the Tribunal and the Respondent so that Respondent get done a meaningful review. After submitting the AEC The Presenting Officer (POU) Unite sent a review creating a counter schedule

As following:
''Whether the A1 (Appellant 1)and A2( Appellant 2) meets the requirements in accordance with Regulation 16(5) of the Immigration (European Economic Area) Regulations 2016.

1. The Respondent maintains its refusal.

2. The R submits that both A1 and A2 can only make an application under the Zambrano right to enter under Regulation 16(5) of the Immigration (EEA) Regulations 2016 as a matter of last resort.

3. Neither A1 or A2 had leave in the UK by virtue of Zambrano rights at the relevant time period.

4. The R seeks to rely upon the case of Velaj v SSHD [2022] EWCA Civ 767 at par 57:

… Underhill LJ concluded that as a matter of EU law, a Zambrano right is a right of last resort which does not arise if the third-country national carer otherwise enjoys a right under domestic law reside in the member state in question.

6 The R submits that the A1 and A2 are able to make an in-country application and should only make a Zambrano application as a last resort.''

Both the Appellants are Third Country National. Looking for advise from the senior member of the forum for hearing on the 19th.As I will represent myself. your support will be highly appreciated.

abdulhasim wrote: ↑

Sat Apr 01, 2023 5:26 am

Appellant’s Explanation of Case (AEC)

Good to see the UK judges attempt to save taxpayers' money!

An AEC means that the respondent (The Home Office) must take another look at your evidence.

Within fourteen days of the AEC being provided, the respondent (Home Office) must

• undertake a meaningful review of your case taking into account the AEC and appellant’s bundle – and

• provide the result of that review and

• state any additional grounds of refusal to you in writing.

At this point, it is possible that the Home Office will withdraw their refusal of your claim and make a new decision. It is also possible that the Home Office will simply repeat the points that they made in your refusal letter.

If the respondent maintains their decision to refuse your claim, you will be sent a Notice of Hearing from the Tribunal. This will tell you the time and date of the hearing, and where the hearing will take place.

About the AEC

• Respond to each paragraph of the Home Office refusal letter that you disagree.

• Write in clear and simple language so that the Judge can understand your arguments.

• Include direct quotes from Underhill and Mostyn

About Bundles

• Number each page of your bundle.

• Include an index at the beginning of the bundle, naming each document and writing the page number next to the name.

Akinsanya v Secretary of State for The Home Department: CA 25 Jan 2022

https://www.bailii.org/ew/cases/EWCA/Civ/2022/37.html

Hello Abdul,

Perhaps you can ask for a paper hearing? Otherwise, the first thing to do is to understand WHY you are right. Create an argument in your head in your own simple language. For example,

1.) The Home Office says you are not a Zambrano carer because you did not make an application for a derivative residence card.

Underhill LJ said that the Zambrano right comes into existence whenever the parents do not have another right to be in the UK. A Zambrano right does not arise when you have no right AND you make an application. Whether or not you have formally made an application does not affect your status as a Zambrano carer.

I interpret Underhill LJ to be saying that as long as

• you were in the UK prior to the transition date or 31 December 2020, and

• you were the primary carer of a British child, and

• you had no other right to be in the UK,

you were a Zambrano carer.

Second, the fact that you made an EUSS application as a Zambrano carer is substantively the same thing as making a derivative rights application. You are making it known to the Home Office you are a Zambrano carer. You could have not used an application at all and just written them a letter. The effect would have been the same, under EU guidelines.

Not that you have to put your Zambrano carer status in writing. Some judges feel you had to make it clear in writing. Other judges do not.

2.) The Home Office argue you should apply under Appendix FM.

First they said that those who did not have leave under another part of the Immigration Rules (Appendix FM) would qualify for EU settlement under Appendix EU. Now, they are saying that even if you don't have leave under Appendix FM, they will still refuse you because, in theory, you could apply under Appendix FM.

By this logic, the Home Office refusal rate should be 100%. Yet, statistics show the Home Office accepted at least 10% of Zambrano carers. Moreover, the First-tier Tribunal, Upper Tribunal and Court of Appeal have all delivered judgements that resulted in Zambrano carers being awarded settlement under EUSS.

The refusal is therefore disproportionate and illogical.

Dear marcidevpal
Thanks a lot for your kind help. Actually,When I lodged the Appeal I did choose a Face to Face Hearing, and the Hearing is listed on the 19th April.Just would like to know that the Respondent meaningful review where the SSHD relied upon the case of Velaj COA by quoting '' Underhill LJ said that Zambrano right is a last resort'' ,
That was not the deciding point in the case of Velaj ,as far as I know the Case of Velaj was concerned with the true Construction of the Regulation 16(5)(c) whether the British citizen child would be compelled to leave UK, the factual consideration as there was clear evidence from Ms Velaj that she is British citizen and She and her son will not be following Mr Velaj to live in Kosovo, as well as that was a deportation case if the 'last resort' were the deciding point than Velaj would have a different result, the deciding point was that the fact should be prioritised over the hypothetical question raised by Mr Velaj that the both primary carer and British citizen child will compel to live, in our case both of the primary carer are third country national and there is no alternative carer for the children,
My question is shall undermine the SSHD's position on the hearing as they are trying to apply the wrong principal to our case by referring the case of Velaj and Zambrano the last resort''.
Thanks in advance

Velaj and Akinsaya

Hello Everybody,

Velaj and Akinsaya decisions are hard to read. In my opinion, that makes them poorly written. Another reason is because everyone sees what they want to see in those decisions. Your job is to say that the Home Office's interpretation is wrong. Your job is NOT to say here is what the case of Akinsaya means, or here is what the case of Velaj means. You are a litigant in person. Keep your responsibilities focused on challenging or rebutting the points raised by the Home Office.

Hi Abdul,

You still may be able to switch to a paper hearing particularly if the Judge may struggle to understand your English. It's up to you.

Try to write in short and clear sentences. Make sure each sentence serves a clear purpose. Make sure the sentence that follows relates to the previous sentence. State your point in the first paragraph and repeat the point in the last paragraph. Each paragraph should represent a single point.

In my opinion, it doesn't matter what the deciding point was in the case of Velaj. Your hearing is not an academic exercise. It is you being laser focused on the Home Office's main arguments and showing how they cannot possibly be correct. Focus on their words, not the cases. The cases are there just to add context. You may want to raise other cases. Just because the Home Office raise Akinsaya and Velaj, does not mean they are the only cases you discuss. Nevertheless, I would read the cases again and again as the judges are familiar with them.

The Court of Appeal judges made multiple points. The only question in my mind is, did the judges make the points that the Home Office claims? You should prove them wrong by making points one by one in a logical fashion. Don't start from their words. Start from a logical place; i.e, start by establishing basic definitions. I strongly urge you to make a chart and answer the following questions in very simple English.

1.) What is the Akinsaya case about?
2.) What does the Home Office say Akinsaya is about?
3.) What is the Velaj case about?
4.) What does the Home Office say Velaj is about?
5.) How are your circumstances similar to Ms Akinsaya's?
6.) How are your circumstances different to Ms Akinsaya's?
7.) How are your circumstances similar to Velaj's?
8.) How are your circumstances different to Velaj's?

You appear to be jumping to the part where you start to make arguments. I urge you to be able to answer the above questions from memory and in simple terms. Here is a start,

Akinsaya
Akinsaya considered Regulation 16(7). The judges considered the following questions,"Does 16(7) act as a threshold barrier? Namely,

• Did 16(7) preclude someone like Ms Akinsanya from asserting that she had a derivative right of residence under Regulation 16(5) (or its predecessor)? and

• Did her derivative right survive the subsequent grant to her of limited leave to remain?

Velaj
Velaj concerned Regulation 16(5) in general and 16(5)(c) in particular. The judges considered the following question, "Even if Ms Akinsanya held leave to remain under the Rules, would her British citizen child be unable to remain in the UK, or an EEA Member State or Switzerland, if she was in fact required to leave the UK for an indefinite period."

If you do not have leave to remain, then the case of Velaj is not relevant apart from one paragraph. I remember the judge in Velaj saying that the ability to apply for leave to remain under Appendix FM is not certain. Even if you were to get leave to remain the first time, there is no guarantee your renewal application would be successful. I would argue that Velaj is not relevant to your situation apart from that point. You don't seem to have leave to remain under Appendix FM.

Conclusion

Long story short, don't let the Home Office allow you to become distracted. The central issue FOR YOU is that their approach is discriminatory and irrational. They said their goal was to allow people without leave to remain under Appendix FM to obtain EUSS. Many families have achieved settlement on this basis. You don't have leave to remain under Appendix FM. The only question is, therefore, were you a Zambrano carer before the transition date?

The Home Office has not offered a compelling reason as to why you should be treated differently to those successful families. That is your argument. Not about what the judges may or may not be saying in Akinsaya or Velaj. Those cases have little to do with you - based on my understanding of your situation.

Interruptions

When you present yourself to the judge, try to get to the point in simple language. Think of yourself as someone who works in a hospital emergency room. You wouldn't worry about a person's foot if they are having a heart attack. What is the heart of the refusal? If you are going before the judge, do not let the lawyer for the Home Office confuse everyone and take the conversation towards the foot.

Keep bringing the conversation back to the heart. You must be relentless. Have a checklist. Practice going through the points on your checklist.

Have someone interrupt you. Know what you will say to the judge if the barrister interrupts you. They will do that if you are on a roll, and have momentum.

How will you keep your place if you are interrupted? Practice asking the judge to be allow you to continue your points without being interrupted. Have a process for marking off your points as you go through them. Somehow mark your place on you checklist if you are interrupted.

What I just said works, only if your points are short and relevant. If you have a bunch of long, barely relevant points, then even the judge may interrupt you. The judge will stop the Home Office from interrupting you only if your points are short, clear and directly relevant.

Sample Trial Checklist

Your checklist may summarise
1.) Your immigration history (3 or 4 points max)
2.) Why the Home Office refused you along with the regulations and case law they rely upon
3.) Which EU and UK regulations you believe should relate to this refusal
4.) Which EU and UK cases you believe should relate to this refusal
5.) The key questions for the judge to consider
6.) Give the answers to the questions. Hopefully, the judge will agree with you.

Don't try to sound "smart" - sound clear and relevant

The biggest problem I see with Zambrano carers is the tendency to try to sound like a lawyer. The focus is on using lawyerly language. If you are a litigant in person, you really don't have to do that. It will almost surely backfire because the other side is actually a lawyer.

The Home Office would love for you to waste your time just saying things that are unclear and not terribly relevant.

I can't say this enough. Your job is to keep bringing the discussion back to the issues that matter. You may even need to ignore what the other side says. As in, just not respond to it. If the other side keeps saying things that are not relevant, then when the judge gives you time to speak, use that time to say YOUR points. If someone keeps saying a cat is black when everyone knows the cat is white, why waste your limited time in Court repeating, the cat is white?

Hopefully, you addressed the point in the skeleton argument or the AEC anyway. Therefore, there is no reason for you to stand before the judge and repeat your rebuttal - the points from your skeleton argument or AEC.

Oh, yeah, and raise case law from the European Court on Human Rights. Because why not?

Trials - What to repeat from your rebuttal

The earlier post said not to repeat the points from your skeleton argument or AEC. That is not right. You want to do two things in your rebuttal. You want to address the points made by the Home Office and raise your own points.

So, if you go to trial, you want to focus on your own points again and again. Talk less about why the other side is looking at the issue all wrong. Talk more about how everyone should look at the issue. For example, you may feel the key issue is discrimination. You may feel the key cases are something else, like Giraldo, Noel or Agyarko. Besides, you already addressed their points in your skeleton argument or AEC.

You may not have much time to talk. So use your time to make your case. Spend less time on the issues they care about, particularly if they are not directly relevant to your situation. Repeat the part of your rebuttal submissions that come from you, not the Home Office.

Akinsaya type Zambrano carers

If you are an Akinsaya type Zambrano carer, that means you had leave to remain under Appendix FM at some point. But, even within Akinsaya type Zambrano carers, there are two different groups.

One group of Akinsaya type carers had leave to remain on 31st December 2020. Another group of Akinsaya type Zambrano carers did not have leave to remain on 31st December 2020 (the transition date).

Group One - Giraldo type Zambrano carers
If you did NOT have leave to remain on the transition date and the Home Office refused you, you could look at the Giraldo case.

Group Two - Celik carers versus E.K. type Zambrano carers
If you did have leave to remain on the transition date and the Home Office refused you, you have a much harder battle. There are two groups.

• You could raise human rights. Here, you rely on the Celik case.

• You could also point out that the EEA regulations were unlawful based on the case of Ms E.K. that went before the European Court of Justice. You could then say you are covered by the Withdrawal Agreement.

Are you an Akinsaya type carer?
Are you a Giraldo type carer?
Are you an E.K. type carer?
Are you a Celik-only type carer?

All carers can raise Celik. Celik type carers only have Celik.

What kind of carer are you?

Perhaps you are an Akinsaya-Velaj carer? Or an Akinsaya-Giraldo-Celik carer? Or a Noel type carer?

You may think, that's a strange way to go about thinking of things. But hear me out. Let's say the Home Office raise Akinsaya and Velaj but you know you are an Akinsaya-Giraldo type carer. The thrust of your argument could then be to draw the judge's focus away from Velaj and on to the Akinsaya and Giraldo cases.

That is not to say you ignore the Velaj case altogether. You address why Velaj is not particularly relevant to your legal claim. You can also point out parts of Velaj that help you, for good measure. But your main energy should perhaps go towards Akinsaya and Giraldo, in this example.

Correction

Earlier I said that you job is not to say what Akinsaya or Velaj mean. That is not 100% correct. What I meant to say is, it is not your job to go into a lengthy explanation of what Akinsaya means - unless your refusal is pretty much exactly like Akinsaya's.

There is so much hype around Akinsaya and Velaj that people get caught up in what the decisions say, or mean. Who cares? How does being right about the relationship between the Akinsaya case and the Velaj case affect your main argument? So, focus on those cases in the bare minimum - unless Akinsaya's situation or Velaj's situation closely mirror yours. Keep the conversation moving to cases that actually match your background and your refusal reasons.

Appeals

Let's say you consider yourself to be an E.K.-Giraldo type Zambrano carer. The Home Office sees you as an Akinsaya-Velaj type carer. Despite your best efforts, the First-tier Tribunal judge agrees with the Home Office. They think that the most relevant cases are Akinsaya and Velaj.

At this point, you may want to rethink if you really are an E.K.-Giraldo type carer, or something else. Perhaps because new cases were published that are closer to your situation? If you are certain that you really are an E.K.-Giraldo type Zambrano carer, your appeal becomes more straightforward.

You could argue in your appeal that the First-tier Tribunal judge erred by not giving due weight to the factors surrounding your Immigration History. In other words, by not consider fact 1, fact 2 and fact 3, the judge wrongly concluded you were a Akinsaya-Velaj type Zambrano carer.

That is why it is important to write your case summary in such a way that it becomes obvious to anyone that you are an E.K.-Giraldo type Zambrano carer (or whatever category you are).

The harsh reality is that it is probably not enough to know you are an Akinsaya type carer anymore. If you go down the appeal route, try to figure out what type of Akinsaya carer you are. All this should have ended with Akinsaya. But Akinsaya was poorly written and the Home Office use that fact to their advantage.

Akinsaya-Velaj Carers

Let's imagine that you agree with the Home Office. You are an Akinsaya-Velaj type carer. I doubt you are just that. The Home Office chooses those cases because they were decided at the Court of Appeal and can their interpretation can be easily manipulated. Your job would be to do the following:

1.) Identify the paragraphs the Home Office relies upon to make their case.
2a.) Either offer alternative paragraphs from the Akinsaya and Velaj decisions; or
2b.) Look at the same paragraphs they rely on and offer an alternative analysis; or
2c.) Do both 2a and 2b

For bonus points, go higher than the Court of Appeal. Look at cases from the Supreme Court such as Agyarko or MM.

Assess your Court performance

When you leave the Court, you want to ask yourself,

• How much time did we spend on the Home Office's argument that I am an Akinsaya-Velaj type carer?

• How much time did we spend on my argument that I am an Akinsaya-E.K. carer?

or, if you feel you match the Home Office. So, they say you are Akinsaya-Velaj and you agree. Ask yourself

How much time did we spend on the Home Office's paragraphs within the Akinsaya and Velaj decisions?
How much time did we spend on my paragraphs?

or, in a situation in which we both agreed the same paragraphs were relevant,

• How much time did we spend on the Home Office's interpretation of paragraphs X, Y and Z?

• How much time did we spend on my interpretation of the same paragraphs?

And, finally,

• Do I feel heard by the Judge?

Why it matters

Just to say the obvious. If the judge agrees you are an Akinsaya-Giraldo type carer, then you should win. Akinsaya and Giraldo both won their cases. So, it is important to get your label right. And, it is important to fight for the label. The way to fight is to really understand the labels and why they apply to you.