lolwe wrote: ↑Fri Dec 11, 2020 3:27 am
LULUBABY wrote: ↑Fri Dec 11, 2020 2:41 am
lolwe wrote: ↑Thu Dec 10, 2020 9:22 pm
In my opinion, it is important to keep your arguments simple and short. Big bundles can hurt you.
Before you take the court's time, you should be able to articulate
- the other side's position (in one or two sentences)
- the background or history leading up to their perspective (in two or three paragraphs)
- why that position is wrong (in a paragraph)
- references in support of your position
The more you say, the more opportunities you give for the other side to attack you. Also, if you add irrelevant points, you are going to frustrate the reader; aka the judge.
Granted, I fumbled. This is a learning curve and a steep one indeed.
LULUBABY wrote: ↑Fri Dec 11, 2020 1:58 am
The Respondent’s submissions...
My Quick Opinion (subject to change)
1.) The FTT determination is not binding. FTT Judge Neville is not a Supreme Court judge. Some FTT judges disagree with Judge Neville. Some Appeals Court judges disagree with Judge Neville. It is not enough to reference Judge Neville.
2.) A challenge to the lawfulness of the UK’s requirement for a person to be without leave in order to benefit from a derivative right of residence under the CJEU’s judgment in Zambrano should go before the High Court, not the Upper Tribunal.
3.) The SSHD rely on R (HC) v Secretary of State for Work and Pensions (AIRE Centre intervening) [2017] UKSC 73, [2017] 3 WLR 1486 at [15] - "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.” You should explain that the Courts have taken a different view since this 2017 ruling.
4.) The SSHD also rely on the CJEU decision in Dereci in HC. Dereci is not applicable to single parents. In Dereci, the EU minors lived with both their EU citizen mother and their TCN father. Moreover, Dereci does not mention the child’s best interests. If the SSHD wanted to reference a relevant ruling, they should have looked to the Chávez-Vílchez decision.
5.) In the Chávez-Vílchez ruling, the children are only dependent on their TCN mother. Union citizens could invoke Article 20 TFEU against their Member State of nationality, even if they had never previously made use of their free movement rights. Member States were precluded from denying a residence right to TCN carers of national minors. Chávez-Vílchez confirms that the protection under Article 20 TFEU and the genuine enjoyment rule can be quite powerful. The decision highlights that the underlying aim of this protection is safeguarding the best interests of the EU child. Article 20 TFEU therefore does not just establish Union citizenship but also ensures the protection of the future rights of EU citizen children.
6.) The decisions of the UK Supreme Court in Shah and Patel, show the SSHD are wrong to contend that any assessment must be intrinsically linked to the availability of an alternative source of immigration status for primary carer. As Lady Arden surmises, "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.”
7.) The SSHD was not under any obligation to provide EUSS access to beneficiaries of the CJEU’s ruling in Zambrano but decided to make provision for Zambrano carers anyway. The SSHD should apply the EUSS in a fair and logically consistent manner.
The SSHD must either revoke the EUSS leave granted under Appendix EU to any Zambrano carer who has not applied for leave to remain under Appendix FM, or who applied for leave to remain with expired leave under Appendix FM, of the SSHD should grant the Appellant leave to remain under Appendix EU. Furthermore, the Court should reject the SSHD's policy as discriminatory and irrational.
8.) The right to remain as the parent of a British child under the Immigration Rules existed before the implementation of the Zambrano right to reside. SSHD policy granted Zambrano carers a choice at the outset to apply under Appendix FM (or similar) or under the EU regulations. It was only following the Brexit vote, when the government announced publicly that all individuals who were lawfully in the country at the time of the vote to be able to remain in the country, that the SSHD changed its position to argue the Zambrano right was a 'right of last resort'.
9.) The Applicant began her lawful residence in the UK on DD MM YYYY. The Applicant gave birth to her British citizen daughter on DD MM YYYY. The Applicant was subsequently granted leave to remain under the Family / Private Life 10-year route on 12 January 2018, valid until 12 July 2020. The Applicant achieved or will have achieved ten years' lawful residence in the UK by DD MM YYYY. The SSHD should have considered granting the Applicant leave outside the rules due to the Applicant's long and lawful residence in the UK, notwithstanding the fact that the Applicant met all requirements for indefinite leave to remain under Appendix EU by 13 July 2020.
10.) 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. She currently meets the requirements of annex 1 of Appendix EU of the Immigration Rules to qualify under the EU Settlement Scheme.
11.) The SSHD’s refusal is unlawful and exceeds the remit of the Immigration Rules because the SSHD failed to apply the same requirements to all applicants in their duties to achieve an effective manner of immigration control. The Appellant respectfully submits that, in light of the above, this application for judicial review should be allowed.
12.) Options
- Apply again to the EU Settlement Scheme for leave to remain under Appendix EU. You don't have leave to remain under Appendix FM. You were granted a derivative residence card as a Zambrano carer. If they refuse you again, you will be in the same position as Miss Suz, Olaboy, and the others. By the time you get a response, you will be able to see if they won. If Miss Suz wins, just use her bundle.
- If you lose, just apply for indefinite leave to remain under the 10 year route.
- Pay to change your bundle. Fix your errors and resubmit with a clear, relevant and simple grounds.
