Post
by LULUBABY » Fri Dec 11, 2020 1:58 am
The Respondent’s submissions
4. The Applicant’s grounds are confusing and poorly particularised. The Applicant’s grounds at paragraphs 2-4 make reference to a First-tier Tribunal (FTT) determination on 30 January 2020, however the grounds fail to provide a citation or case name. It would also seem that the entire grounds rely on this unnamed and unreported FTT determination. The Applicant’s grounds, on page 16 -19 of the PDF document, contain an excerpt from an unknown webpage which may also be related to the same case. Again, no citation or case name is provided.
5. The President of the Upper Tribunal in R (on the application of SN) v Secretary of State for the Home Department (striking out – principles) IJR [2015] UKUT 00227(IAC) held at [32] that “[a] bare pleading that the impugned decision is unlawful, unreasonable and irrational, or one framed in comparable terms, is never acceptable. The judge should not have to forage, dig and mine in order to identify the essentials of the Applicant's case”.
6. Notwithstanding the above, the Respondent makes the following submissions.
7. The Applicant, at paragraph 1 of her ‘statement of facts’, asserts that the Respondent’s policy guidance is in conflict with the outcome in the Supreme Court’s case of Patel and Shah v SSHD [2019] UKSC 59 which the Applicant argues “means that a third country national primary carer parent, who is in a relationship with a British citizen partner, is able to rely on Zambrano application as oppose to an application under Appendix FM”.
8. The Applicant’s ‘statement of facts’ at paragraph 9 goes on to refer to the case of KA v Belgium [2018] 3 CMLR 28, where the Applicant states the EU Settlement Scheme does not expressly state that a person with extant leave cannot apply under the scheme. Further, the policy guidance of the Home Office prevents the Applicant and British citizen minor child from exercising their Treaty rights as EU law permits.
9. The Respondent submits that a derivative right of residence stemming from the Court of Justice of European Union’s (CJEU) decision in Ruiz Zambrano (Case C-34/09), hereinafter referred to as a ‘Zambrano right’, is a highly exceptional right because it arises when there has been no exercise of free movement rights under EU law, such that EU law would ordinarily not be engaged at all. It is only in circumstances where an EU citizen would be compelled – i.e. forced without choice – to leave the UK or EEA, thus losing the genuine enjoyment of the substance of the rights conferred upon them as an EU citizen, including their right of free movement, that EU law applies in what would otherwise be a wholly internal situation outside the scope of EU law.
10. In R (HC) v Secretary of State for Work and Pensions (AIRE Centre intervening) [2017] UKSC 73, [2017] 3 WLR 1486 at [15], Elias LJ stated in Harrison (Jamaica) v Secretary of State for the Home Department [2013] 2 CMLR 23, at [67]: “… In my judgment it is necessary to focus on the nature of the right in issue and to decide what constitutes an impediment. The right of residence is a right to reside in the territory of the European Union. It is not a right to any particular quality of life or to any particular standard of living. Accordingly, there is no impediment to exercising the right to reside if residence remains possible as a matter of substance, albeit that the quality of life is diminished.”
11. Earlier, in a passage also approved in HC at [15], Elias LJ stated: “[63] … If the EU citizen, be it child or wife, would not in practice be compelled to leave the country if the non-EU family member were to be refused the right of residence, there is in my view nothing in these authorities to suggest that EU law is engaged. Article 8 Convention rights may then come into the picture to protect family life as the court recognised in Dereci … but that is an entirely distinct area of protection… [66] Moreover … the actual results in McCarthy … and Dereci … do not sit happily with the submissions now advanced by the Appellants. In both those cases the removal of the husband or partner, who in Dereci was also the father, would inevitably mar the enjoyment of the right of residence of wife and children. Even if the non-EU national is not relied upon to provide financial support, typically there will be strong emotional and psychological ties within the family and separation will be likely significantly to rupture those ties, thereby diminishing the enjoyment of life of the family members who remain. Yet it is plainly not the case, as Dereci makes clear and Mr Drabble accepts, that this consequence would be sufficient to engage EU law. Furthermore, if Mr Drabble's submission were correct, it would jar with the description of the Zambrano principle as applying only in exceptional situations, as the court in Dereci observed. The principle would regularly be engaged.”
12. Lord Carnwath further considered the CJEU decision in Dereci in HC. He considered that [66]-[69] indicated the exceptional nature of the Zambrano right: [11].
13. Further, the CJEU has repeatedly made clear that the essential criterion which triggers application of the Zambrano principle is compulsion to leave the EU. The question is whether the EU citizen will be compelled, in practice, to leave the EU if their primary carer is required to leave. As Lord Carnwath held in HC at [9], the reasoning of the CJEU in Zambrano itself turned “specifically and solely on the risk of being obliged to leave the territory of the Union”. It was triggered (at [11]): “… not by the mere desirability of keeping the family together, on economic or other grounds, but solely by the threat of being “forced to leave Union territory” if the right were not granted: para 68. Subsequent authorities are to the same effect.”
14. The decisions of the UK Supreme Court in Shah and Patel reinforced the principle that a derivative right can only exist where the relevant British citizen dependent would be under compulsion to leave the UK and EEA were the primary carer not given such a right.
15. In paragraph 30 of Shah and Patel, Lady Arden noted (emphasis added): “… I do not accept that submission. The overarching question is whether the son would be compelled to leave by reason of his relationship of dependency with his father. In answering that question, the court is required to take account, “in the best interests of the child concerned, of all the specific circumstances, including the age of the child, the child’s physical and emotional development, the extent of his emotional ties both to the Union citizen parent and to the third-country national parent, and the risks which separation from the latter might entail for that child’s equilibrium” (Chavez-Vilchez, para 71). The test of compulsion is thus a practical test to be applied to the actual facts and not to a theoretical set of facts. As explained in para 28 of this judgment, on the FTT’s findings, the son would be compelled to leave with his father, who was his primary carer. That was sufficient compulsion for the purposes of the Zambrano test. There is an obvious difference between this situation of compulsion on the child and impermissible reliance on the right to respect for family life or on the desirability of keeping the family together as a ground for obtaining a derivative residence card. It follows that the Court of Appeal was wrong in this case to bring the question of the mother’s choice into the assessment of compulsion.”
16. It is therefore submitted that, when looking at the overarching question of whether the British citizen child would be compelled to leave by reason of dependency with their primary carer, the answer to that question requires the court to take account of all the specific circumstances. As explained by Lady Arden, the test of compulsion is a practical one to be applied to the actual facts of the case and not to a theoretical set of facts.
17. Consequently, the Respondent submits that such an assessment must be intrinsically linked to the availability of an alternative source of immigration status for primary carer. Therefore, Patel and Shah do not support the Applicant’s case and her reliance upon the judgment of the Supreme Court is misplaced. The Applicant currently has extant leave to remain in the UK at the time of her application and, consequently, would not be compelled to leave the UK. Section 55 of Borders, Citizenship and Immigration Act 2009
18. Reference is made in the Applicant’s grounds at paragraph 6 to section 55 of Borders, Citizenship and Immigration Act 2009. The Applicant’s ground is unparticularised and unsubstantiated however, the Respondent would submit that she has never contested that the Applicant has a genuine parental relationship with a British citizen child and that section 55 of the Borders, Citizenship and Immigration Act 2009 imposes upon the Respondent a duty to have regard to the need to safeguard and promote the welfare of children who are in the UK when exercising functions in relation to immigration.
19. The Respondent submits that she considered section 55 of Borders, Citizenship and Immigration Act 2009 when making the decision dated 16 July 2020.
20. The Respondent would like to highlight the Applicant’s chronology. The Applicant gave birth XXXXXXXXXXXXXX , at which point the applicant had completed two years’ lawful residence. On 3 April 2014, the Applicant applied for leave to remain under the Family / Private Life 10-year route to settlement. This was rejected due the Applicant failing to pay the required fee. However, the Applicant then applied for leave to remain under the Family / Private Life 10-year route to settlement on 18 July 2017 and was granted on leave 12 January 2018, valid until 12 July 2020. As illustrated, the Applicant has demonstrated through her immigration history that leave to remain has been available to her, and that her son was never in a position of being factually compelled to leave the UK or the EEA. Furthermore, the refusal letter of 16 July 2020 will not hinder the Applicant’s further applications, should she wish to apply for appropriate leave.
21. The Respondent has not compromised her duty under section 55 of Borders, Citizenship and Immigration Act 2009 to have regard to the need to safeguard and promote the welfare of the Applicant’s child by refusing her application. The decision is not in accordance with the “EU settlement rules”; and the decision breaches any rights the Applicant has under the Withdrawal Agreement and the EEA EFTA Separation Agreement.
22. Again, it is not clear what the Applicant is seeking to argue, and these grounds relate to an uncited FTT determination. In response to the challenge that the decision breaches any rights the Applicant has under the Withdrawal Agreement and the EEA EFTA Separation Agreement the Respondent submits that, if the Court finds against the compatibility of the Respondent’s policy with EU law, derivative rights of residence per the judgment of the CJEU in Zambrano are not covered within the Citizens’ Rights Agreements with the EU, EFTA Member States and Switzerland.
23. For example, Article 10 of the EU Withdrawal Agreement defines the scope of those within its ambit; those benefitting from a derivative right of residence under Article 20 of the Treaty on the Functioning of the European Union are excluded from its coverage and do not feature elsewhere within the Agreement. This is mirrored across the other Citizens’ Rights Agreements, meaning the Respondent is not under any obligation to provide EUSS access to beneficiaries of the CJEU’s ruling in Zambrano.
24. The fact that the Respondent has elected to make provision for Zambrano beneficiaries based on the UK’s application of EU law is entirely a domestic policy decision and is not reflective of the fulfilment of an obligation under the Citizens’ Rights Agreements.
25. The Respondent submits that she is not under any obligation to provide EUSS access to beneficiaries of the CJEU’s ruling in Zambrano.
26. The lawfulness of the UK’s requirement for a person to be both without leave and without the reasonable availability of leave in order to benefit from a derivative right of residence under the CJEU’s judgment in Zambrano is discussed above.
27. The Respondent submits the Applicant’s application under the EU Settlement Scheme was considered in accordance with the correct rules, policy and guidance and was correctly assessed against those. It is not accepted that the Respondent’s interpretation of Appendix EU is contradictory to the intentions of Parliament and the spirit of the EEA Regulations of 2016.
28. The Applicant made an application under the EU Settlement Scheme as a person with a Zambrano right to reside on the basis that she is the primary carer of a British citizen. To qualify under the EU Settlement Scheme, she must meet the requirements of annex 1 of Appendix EU of the Immigration Rules.
29. Page 9 of Home Office Policy Guidance, ‘EU Settlement Scheme, Person with a Zambrano right to reside’, issued on the 13 February 2020, confirms that the following must be satisfied; in order for a non-EEA Citizen to continue residing in the UK as the Primary Carer of British Citizen child: “A ‘person with a Zambrano right to reside’ is defined in Annex 1 to Appendix EU as a person: • who has satisfied the Secretary of State, including (where applicable) by the required evidence of family relationship, that, by the specified date, they are (and for the relevant period have been), or (as the case may be) for the relevant period were, resident for a continuous qualifying period in the UK as a person with a derivative right to reside by virtue of regulation 16(1) of the Immigration (European Economic Area) EEA Regulations 2016 (‘the EEA Regulations’), by satisfying the criteria in either: • paragraph (5) of that regulation • paragraph (6) of that regulation where that person’s primary carer is, or (as the case may be) was, entitled to a derivative right to reside in the UK under paragraph (5), regardless (where the person was previously granted limited leave to enter or remain under Part 1 of Appendix EU as a person with a Zambrano right to reside and was under the age of 18 at the date of application for that leave) of whether, in respect of the criterion in regulation 16(6)(a) of the EEA Regulations, they are, or (as the case may be) were, under the age of 18 years. • In addition, the person must be without leave to enter or remain in the UK granted under another part of the Immigration Rules.”
30. The Applicant’s immigration history has already been discussed above at paragraph 20 as well as the overarching question of whether the British citizen child would be compelled to leave by reason of dependency with their primary carer at paragraph 16 and 17 above.
31. The Respondent’s findings were lawful and within the remit of the Immigration Rules, and they must be applied to all applicants accordingly as an effective manner of immigration control. Conclusion 25. The Respondent respectfully submits that, in light of the above, this application for judicial review should be refused
