Zambrano Settled Status EU settlement scheme Paper Application Form - NEW

[marcidevpal]

https://eur-lex.europa.eu/legal-content ... 2020CC0709

[marcidevpal]

CG v The Department for Communities in Northern Ireland

(continued from previous post above)

https://eur-lex.europa.eu/legal-content ... 2020CC0709

CG is Dutch and Croatian. She is a single mother with two children. They have lived in Northern Ireland since 2018. Northern Ireland refused her claim under Universal Credit. CG applied directly to the European Court of Justice. She didn't have to rely on the Independent Monitory Authority (IMA)! Europeans in England, Wales and Scotland have to go to the IMA if they have a problem with their Brexit rights. Even then, the IMA does not take on individual cases. Logically, that means there must be something in the agreements regarding Northern Ireland that allows people who live in Northern Ireland, to apply to the European Court of Justice.

Just my opinion only: Let's say you are a Zambrano carer who now lives in Northern Ireland. You've lived in England, Wales, Scotland or Northern Ireland for five years before 31 December 2020. You also have leave to remain under Appendix FM. Based on the case of E.K., you should have been granted permanent residence years ago. If the Home Office and UK judges refuse to grant you permanent residence, you may have the ability to apply directly to the European Court of Justice! Why, potentially because of the CG case.

If I am right, I could see a lot of Zambrano carers move to Northern Ireland.

[marcidevpal]

Zambrano carers in Northern Ireland

If you live in Northern Ireland and you are a Zambrano carer,

• were you refused by the Home Office?

• did the UK judges refuse your appeals?

• Do you know if you can apply to the European Court of Justice?

• Are you considering applying to the European Court of Justice?

If a refused Zambrano carer who already lives in Northern Ireland, appeals to the European Court of Justice and wins, all Zambrano carers would potentially rely on that ruling.

[marcidevpal]

The Northern Ireland Protocol

Article 2 Rights of individuals

1. The United Kingdom shall ensure that no diminution of rights, safeguards or equality of opportunity, as set out in that part of the 1998 Agreement entitled Rights, Safeguards and Equality of Opportunity results from its withdrawal from the Union, including in the area of protection against discrimination, as enshrined in the provisions of Union law listed in Annex 1 to this Protocol, and shall implement this paragraph through dedicated mechanisms.

2. The United Kingdom shall continue to facilitate the related work of the institutions and bodies set up pursuant to the 1998 Agreement, including the Northern Ireland Human Rights Commission, the Equality Commission for Northern Ireland and the Joint Committee of representatives of the Human Rights Commissions of Northern Ireland and Ireland, in upholding human rights and equality standards.

Rights of individuals

61.Article 2(1) of the Protocol sets out the UK’s commitment to ensuring no diminution of rights, safeguards or equality of opportunity as set out in the Belfast (Good Friday) Agreement, resulting from the UK’s withdrawal from the EU. This protection is also supported by six relevant equality directives.

Before Brexit, people in Northern Ireland could appeal directly to the European Court of Justice. Based on the Northern Ireland Protocol, it seems that right to appeal to the ECJ / CJEU has been protected....

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

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

[marcidevpal]

EU Commission, IMA and NIHRC

http://www.niassembly.gov.uk/globalasse ... e/6320.pdf

The EU Commission monitors the implementation of the Withdrawal Agreement for British people in Europe. The IMA monitors the implementation in the England, Scotland and Wales for Europeans. In Northern Ireland, it is the NIHRC. Unlike the other EU Commission and IMA, the NIHRC can support individuals who bring legal claims to the European Court of Justice.

(1) The Northern Ireland Human Rights Commission must monitor the implementation of Article 2(1) of the Protocol on Ireland/Northern Ireland in the EU withdrawal agreement (rights of individuals).

The Schedule also provides for powers that the Commissions may:
 Bring judicial proceedings in relation to an alleged breach of Article 2(1)
 Intervene in legal proceedings in relation to an alleged breach of Article 2(1)
 Support individuals in relation to an alleged breach of Article 2(1)

[marcidevpal]

In a perfect world....

The Northern Ireland Human Rights Council would intervene on behalf of a Zambrano carer who has been refused in the UK courts. They would appeal to the European Court of Justice. The Zambrano carer would need to be from a r-acial or ethnic minority background (most are).

The legal argument would be that the EUSS refusal by the Home Office violates a provision of Union Law -

• Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of r-acial or ethnic origin.

Article 2(1) of the Ireland/Northern Ireland Protocol says the UK will not discriminate against people in Northern Ireland based on several provisions. Directive 2000/43/EC is one of those provisions.

[Hbunny]

Hello family .. i am silent user to this form . has anybody received admin review results yet ? thanks in advance

[marcidevpal]

Inadmissible

If you apply to the European Court on Human Rights, the Court has to determine if your claim is admissible. The UK lawyers will try to argue that your claim is 'inadmissible'. The ECtHR decides if your claim is admissible - not the Home Office. If a refugee reaches the UK and files an asylum claim, the Home Office will immediately declare it "inadmissible". Do you see what they did there? They are acting as the judge and jury. I believe there is a provision that allows people to get around that, but only a fraction of people will be able to get around the inadmissibility trap. There is a bigger issue aside from human rights. The Illegal Migrant Bill violates the common themes of justice. It's an embarrassment. So, take nothing for granted in your appeals against the Home Office. Try to explain your arguments to the fullest extent possible.

[marcidevpal]

Hello family .. i am silent user to this form . has anybody received admin review results yet ? thanks in advance

Admin review! Wow, I suspect you are way behind everyone. Good for you. Hopefully, you will either be lucky in the review or, by the time you get to court, a lot of this mess will be sorted.

[marcidevpal]

Where we are today

Based on recent decisions, the Upper Tribunal judges seem to be reaching consensus on how to treat Zambrano carers on EUSS appeals. I get the impression that they

1.) Do not believe Zambrano carers are covered by the Withdrawal Agreement;
2.) Will not go against Appendix EU's definition of a Zambrano carer, even though it does not match the EU's definition;
3.) They will not take into account Article 8 ECHR (They blame Celik but Celik is with the Court of Appeal); and,
4.) They will not take into account case law from the European Court of Justice.

Possible Options:
1.) A Zambrano carer in Northern Ireland works with the Northern Ireland Human Rights Committee to file a court before the European Court of Justice.
2.) Zambrano carers raise their human rights in their submissions to the UK judges and keep appealing until they get to the European Court on Human Rights in Strasbourg.
3.) Zambrano carers file for judicial review to challenge the lawfulness of the Immigration Rules, particularly in light of the E.K. decision. Based on E.K., the EEA Regulations were unlawful because they denied Zambrano carers permanent residence after five years.

[Wishfulgirl]

In a perfect world....

The Northern Ireland Human Rights Council would intervene on behalf of a Zambrano carer who has been refused in the UK courts. They would appeal to the European Court of Justice. The Zambrano carer would need to be from a r-acial or ethnic minority background (most are).

The legal argument would be that the EUSS refusal by the Home Office violates a provision of Union Law -

• Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of r-acial or ethnic origin.

Article 2(1) of the Ireland/Northern Ireland Protocol says the UK will not discriminate against people in Northern Ireland based on several provisions. Directive 2000/43/EC is one of those provisions.

Hi,

I am happy to see that you are still here informing us all. Thanks again for your help previous. I am still awaiting a response regarding the appeal.

Regarding the recent Northern Ireland post. Is it a case that zambrano carers may have a a better chance by residing there and possibly better outcome of our application? I am asking because northern Ireland is where I lived when I originally arrived in this country to join my mom and her partner.

What would you say is the current legislation if one should move back under zambrano circumstances. Would it be any different to England Scotland and Wales? I had been considering moving back to northern Ireland for the past year now however cannot fully put my finger on why I still haven't made the decision.

[marcidevpal]

Greetings Wishfulgirl! I hope you and your family are keeping well.

Will you technically have more rights or options in Northern Ireland? It seems so. The problem is one of perception. Some will say the Commission is there to help people who historically have fought with one another - the Protestants and the Catholics. So you could get there, be eligible for support, but they decide not to help. The fact that you originally lived in Northern Ireland is a plus. It may be enough to overcome the perception problem, or not. Others may say, everyone in Northern Ireland who has a problem that falls within the scope of the Protocol should be helped by the Commission.

A key problem with the way Article 2(1) is written, is that it seems to just talk about discrimination as it relates to benefits, employment and r-acial discrimination. It doesn't touch on discrimination by nationality. So, if you were to somehow get the NIHRC to help you file, it seems you would have to fight on race or ethnicity.

One question is whether or not you can appeal to the European Court of Justice on your own - even if the NIHRC. I am not sure what the answer is. That could be massive for all Zambrano carers if you got to the European Court of Justice. You could raise E.K. and tell them the UK judges are ignoring it. Based on what the President of the ECJ said, I don't think they would agree with or approve of the UK judiciary.

At the end of the day, all Zambrano carers who spent 5 years in the UK before 31st Dec 2020 should be given permanent residence based on the ruling of the European Court of Justice in Ms E.K's case. The UK judges ignore this case, in violation of the Withdrawal Agreement. UK lawyers should be arguing this point. I do not believe they are. I hope Zambrano carers raise this point in their submissions to the court as part of their EUSS appeals.

My knowledge is still limited but something tells me in the long run, Zambrano carers in Northern Ireland will be treated differently and better than others. So, if you have nothing left to lose by returning, you may want to.

[marcidevpal]

Sir Keir Starmer didn't vote

Did you know that Sir Keir Starmer, leader of the Labour Party and human rights barrister, did NOT vote on the Illegal Migration Bill? Apparently, he and 14 other Labour MPs abstained. I don't think Zambrano carers should get their hopes up too much when Labour take over after the next general election.

[marcidevpal]

Alyson Kilpatrick, Chief Commissioner, NIHRC

https://nihrc.org/about/who-we-are/our- ... kilpatrick

"On 1 September 2021, Alyson was appointed Chief Commissioner to the Northern Ireland Human Rights Commission. Alyson has extensive experience of litigation in the higher courts in a range of public law and human rights cases with a particular emphasis on cases concerning the protection of individuals’ rights."

[marcidevpal]

All-Party Parliamentary Group on Migration

https://publications.parliament.uk/pa/c ... ration.htm

All-party parliamentary groups have members of the House of Commons and the House of Lords. Sometimes the public can go to Westminster and listen in on their debates. The All Party parliamentary group on Migration does "evidence-based political debate about the challenges and opportunities relating to contemporary migration flows in the UK." The Migration APPG is co-chaired by David Simmonds, MP for Ruislip, Northwood and Pinner and Olivia Blake MP for Sheffield, Hallam.

[marcidevpal]

Timing

After Brexit, many Zambrano carers patiently waited for years for clarification from the Home Office on how to apply to the EUSS. Then, they patiently waited on the outcome of Akinsaya. During this period of time, they could have raised Article 8 ECHR before the courts, and the judges would have probably done a balancing exercise or human rights assessment. In June 2022, the Home Office declared they had no intention of approving EUSS applications from Zambrano carers who had leave to remain under Appendix FM on 31st December 2020. It seems now, that the Home Office refuse Zambrano carers who didn't have leave to remain under Appendix FM on 31st December 2020. They are telling them to apply for Appendix FM anyway. And some of the judges are supporting the Home Office in pushing (tricking) people into Appendix FM, even though Appendix FM is worse than Appendix EU. By July 2022, one month after the Home Office said they would not change their definition of a Zambrano carer, the President of the Upper Tribunal ruled that no human rights assessments should take place on EUSS applications. So, if you were waiting for Akinsaya to be resolved, you only had about a few weeks to have a judge consider your human rights. Crazy, huh? If Celik is overturned after Easter by the Court of Appeal, you should once again be able to have your human rights considered....

[marcidevpal]

ECHR & Illegal Migration Bill

A group of Tory MPs are saying that the Illegal Migration Bill does not go far enough. They are beginning to realise the obvious. It doesn't matter what Braverman does. It doesn't matter what the UK judges do. If migrants find their way to the European Court on Human Rights, and file a claim, the ECtHR judges will decide if the person can remain in the UK. (I just hope the refugees figure out how to file their ECtHR claim). So, what do the MPs propose? They want to amend the Illegal Migration Bill to make it tougher. They want to add an amendment that removes the United Kingdom from the Council of Europe. You can't remain in the Council of Europe if you do not agree to follow the ECHR and accept the rulings of the European Court on Human Rights. So, these Tory MPs want to leave. Braverman already said she wants to leave. What does that mean for Zambrano carers? It is difficult to bring a case before the European Court of Justice. The European Court on Human Rights is your only option if the UK judges fail you. If you do want to file, you may want to file sooner rather than later. In any case, the process for the UK to leave takes nine months.

[marcidevpal]

Timing...Part 2

Zambrano carers have to know when to hurry up, and when to wait. If Celik is overturned after Easter, there will be a period of time when judges should be willing to do Article 8 ECHR human rights assessments. That option is not guaranteed. Zambrano carers may want to push for their cases to be decided at this point, while the Court of Appeal's judgement in Celik is still "fresh". Some new ruling could come in to muddy the waters. The Home Office could change its guidance again. We saw them do it to Zambrano carers who did not have leave to remain under Appendix FM at the time they applied for EUSS. These people should have easily qualified for EUSS. The Court said time and time again that the Home Office should not deny Zambrano carers just because they "could have" applied for leave to remain under Appendix FM, or renewed it. The Home Office accepted the judges' positions for a period of time, then went back to refusing people anyway. So, if you are waiting on a decision, it is good to know when to act and when to wait. (Note: I am not telling you what to do, just providing examples.)

[marcidevpal]

4 Month Time Limit ECtHR & Celik

The European Court on Human Rights wants you to make an application within four months of the "event". By event, I mean a decision by the judge, or similar. It is important that you asked the judge to consider your human rights. If the judge said no because of Celik, then you may (or may not) be able to wait until after the Celik decision by the Court of Appeal to file a claim at the ECtHR.

Let's say the judge decided your case last December. You should ideally apply to the ECtHR by this April. If the judge decided your case last September, you should have applied to the ECtHR by last January. The lawyers representing the United Kingdom will possibly say your claim is "inadmissible" because it was not filed in time.

You may want to speak to a lawyer. The lawyer may tell you to create a new event or wait for Celik. Possible events are as follows:

• write a letter to the Home Office and use their response as the "event", or

• file in the UK courts again and use the judge's decision as the "event", or

• you may be able to apply directly to the ECtHR and explain that the last "event" was the Celik decision.The Court of Appeal will decide Celik some time after Easter.

[marcidevpal]

Appendix FM

Phase 1: The Home Office creates policy. The Court either

• rules the policy is unlawful or

• accepts the policy is lawful, but rules that the Home Office violated the policy.

Phase 2: The Government responds by either

• temporarily changing the unlawful policy before changing it back again when no one is looking

• creates new legislation that makes the unlawful policy lawful

The example below shows a situation where the Court said a policy was lawful and that the Home Office violated it.

In Ibori v SSHD, the High Court ruled that the SSHD had abused her immigration powers to detain a foreign criminal in the UK to face confiscation proceedings. The SSHD informed Mr Ibori that he was liable for automatic deportation and issued a deportation order. The judge ordered Mr Ibori’s immediate release from immigration detention on the condition that he remained with the jurisdiction.

The SSHD’s policy within the Enforcement and Instructions Guidance (“EIG”) explicitly states that immigration detention must only be used for one of the statutory purposes, namely for

• preventing a person’s unauthorised entry or

• with a view for a person’s removal (although not necessarily deportation).

In addition it states that any detention must comply with domestic and ECHR case law and should only be used for a reasonable period in all the circumstances.

So, what has the Government done? Created the Illegal Immigration Bill, which makes detention lawful - even though it violates ECHR case law. The same thing could happen with Appendix FM in the future.

[marcidevpal]

More on Appendix FM

In 2012, the UK created Appendix FM (as part of HC194). The Secretary of State made her intentions clear. She said Appendix FM was created to codify the ECtHR (Strasbourg) case-law on article 8. Therefore, if the UK leaves the ECHR, the reason for why Appendix FM was created goes away. If the reason for Appendix FM goes away, Appendix FM may itself go away.

• If Appendix FM goes away, what happens to the people on Appendix FM?

• What happens to the people who gained permanent residence, or even citizenship via Appendix FM?

[marcidevpal]

Akinsaya & Appendix FM

In Akinsaya, the Upper Tribunal and Court of Appeal did one thing only: they tried to determine the SSHD's intention. The
judges didn't comment on whether the Home Office's intention was fair, or just, or in compliance with ECHR. So, when it comes to Appendix FM, the Court will do the same thing again. They will say, what was the SSHD's intention? The SSHD will say our intention with Appendix FM was to show we were following Article 8 ECHR. Now that the UK is no longer a member of the Council of Europe, we do not follow the ECHR. Therefore, we do not need Appendix FM and we do not have to give these people leave to remain. The Court will possibly say, we agree that was your intention. Therefore, you are free to deprive these people of the right to remain. After all, that is what the Court did to Akinsaya type Zambrano carers. There will be no ECtHR to appeal to at that point. No European Court of Justice to appeal to, either. That is my prediction. But that is all it is, a prediction. Nine months from the date they serve notice.

[marcidevpal]

EUSS & ECHR

Let's say you win your EUSS (or Appendix EU) appeal on Article 8 ECHR. The Home Office cannot take away your right to reside without violating the Withdrawal Agreement. By pushing you away from Appendix EU to Appendix FM, they are guaranteeing their ability to take away your right to reside at once they leave the Council of Europe and withdraw from the ECHR. So, what do you do if you are on Appendix FM? Perhaps switch to another category or try to get citizenship.

[marcidevpal]

Police persons with wigs

In my opinion, the Courts have become a pass-through entity for Government's wishes. There is no independent review of the Government's stated purpose. The Courts just confirm and/or clarify what the Government's wish may be. It's all there in the tribunal decisions. That is how Russia and Belarus are run. In a functioning democracy, the judiciary is independent of the people who make the laws.

[marcidevpal]

Velaj

In Velaj, the Judge made the point that to refuse someone under Appendix EU and tell them to go for Appendix FM is not good enough. Success under Appendix FM is not guaranteed. You can expand that argument in your submissions. Success on your Appendix FM application is not only uncertain, but the very future of Appendix FM is uncertain! Therefore, the judge should grant settlement under Appendix EU.