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Hi You need to pay fee. if you win your case you will get refund. good luckGreatgreat wrote: ↑Fri Dec 25, 2020 4:41 amMerry Christmas everyone. Hoping for the new year to bring us good tidings.
Pls I have a question. I am teting to fill in my EUSS appeal form and I'm wondering if I need to pay for appeal as the application was a free one.
Thanks
Thank youmubashir1981 wrote: ↑Fri Dec 25, 2020 8:54 amHi You need to pay fee. if you win your case you will get refund. good luckGreatgreat wrote: ↑Fri Dec 25, 2020 4:41 amMerry Christmas everyone. Hoping for the new year to bring us good tidings.
Pls I have a question. I am teting to fill in my EUSS appeal form and I'm wondering if I need to pay for appeal as the application was a free one.
Thanks
I was refused EEA zambrano as there was no evidence that proved my relationship to the British child. I am married to the BC's mother who is none British and on 10years FM route. We have another child, none British. I have no legal guidanceship document or parental order as evidence of parental responsibility. I hope this helps in answering my question.
Please provide the exact words used in the refusal.Spirit007 wrote: ↑Sat Dec 26, 2020 1:59 pmI was refused EEA zambrano as there was no evidence that proved my relationship to the British child. I am married to the BC's mother who is none British and on 10years FM route. We have another child, none British. I have no legal guidanceship document or parental order as evidence of parental responsibility. I hope this helps in answering my question.
Also, what is the UAT number and where can I find it as it is required to submit an admin review.
Thanks
Step-parents cannot acquire Parental Responsibility for a child simply by marrying the child's biological parent. You can get Parental Responsibility as a step-parent in a number of ways including legal adoption, a Parental Responsibility Agreement and a Court Order. This information applies in England and Wales. The Children Act 1989 sets out a legal definition of Parental Responsibility.
Thank you Lolwe, that clarifies my doubts and does answers my questionlolwe wrote: ↑Sat Dec 26, 2020 2:31 pmStep-parents cannot acquire Parental Responsibility for a child simply by marrying the child's biological parent. You can get Parental Responsibility as a step-parent in a number of ways including legal adoption, a Parental Responsibility Agreement and a Court Order. This information applies in England and Wales. The Children Act 1989 sets out a legal definition of Parental Responsibility.
Currently a step-parent living in England or Wales can acquire Parental Responsibility for a child under the following circumstances:
- When the Court makes a Child Arrangements Order that the child lives with the step-parent either on their own or with another person (these types of ‘step-parent’ Orders are uncommon)
- When the step-parent adopts a child which puts him/her in the same position as a birth parent
- Through the signing of a Parental Responsibility Agreement to which all the other people with Parental Responsibility consent (see below for more information)
- When the Court has made a Parental Responsibility Order following an application by the step-parent. On acquiring Parental Responsibility, a step-parent has the same duties and responsibilities as a biological parent.
That is what the UK would say...for your admin review, you may want to argue what the European Court of Justice (CJEU) would say...Spirit007 wrote: ↑Sat Dec 26, 2020 2:43 pmThank you Lolwe, that clarifies my doubts and does answers my questionlolwe wrote: ↑Sat Dec 26, 2020 2:31 pmStep-parents cannot acquire Parental Responsibility for a child simply by marrying the child's biological parent. You can get Parental Responsibility as a step-parent in a number of ways including legal adoption, a Parental Responsibility Agreement and a Court Order. This information applies in England and Wales. The Children Act 1989 sets out a legal definition of Parental Responsibility.
Currently a step-parent living in England or Wales can acquire Parental Responsibility for a child under the following circumstances:
- When the Court makes a Child Arrangements Order that the child lives with the step-parent either on their own or with another person (these types of ‘step-parent’ Orders are uncommon)
- When the step-parent adopts a child which puts him/her in the same position as a birth parent
- Through the signing of a Parental Responsibility Agreement to which all the other people with Parental Responsibility consent (see below for more information)
- When the Court has made a Parental Responsibility Order following an application by the step-parent. On acquiring Parental Responsibility, a step-parent has the same duties and responsibilities as a biological parent.
The Court held that for the purposes of such an assessment, the fact that the other parent, an EU citizen, is actually able and willing to assume sole responsibility for the primary day-to-day care of the child is a relevant factor.
However, this is not in itself a sufficient ground for concluding that there is not a dependency relationship between the third-country national parent and the child that would compel the child to leave the EU’s territory if a right of residence was refused to that third-country national97.
The Court reiterated that relevant factors in the assessment by the competent authorities include ‘the question of who has custody of the child and whether that child is legally, financially or emotionally dependent on the third-country national parent”98.
The Court then added that, in assessing these factors, ‘account must be taken, 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’99.
In Aristimuño Mendizabal v. France (135)
the European Court of Human Rights (ECtHR) found that the applicant’s rights under Article 8 of the ECHR had been violated by the French authorities’ excessive delay of over 14 years in issuing her with a residence permit. The ECtHR noted that the applicant had been entitled to such a permit under both EU and French law.
In Unuane v United Kingdom
the applicant successfully argued that his removal from the UK was a disproportionate interference with family life because it separated him from his children. Though finding for the applicant, the Court rejected his attack on the compatibility of the Immigration Rules – an issue that as recently as 2016 the Supreme Court had authoritatively settled.
lolwe wrote: ↑Fri Dec 18, 2020 12:49 amThe Home Office rely on the 2017 decision by the Court of Appeal in Patel v SSHD:Rosh_2704 wrote: ↑Thu Dec 17, 2020 11:42 pmHi everyone,
My DRF application got refused last week on the basis that I have LTR till 10th June 2021. I have appeal rights under 2016 regulations and my deadline to submit the appeal is tomorrow. I’m going through a mental block and I’m finding it very difficult to state my grounds for appeal despite having gone through all the valuable info on this thread. I have filled the rest of the online FTT appeal form but I’m struggling to put my arguments across. I know I’m a bit late asking for help as my deadline is tomorrow but I would be grateful if anyone could guide me please.
The Court of Appeal relied on the Immigration (European Economic Area) Regulations 2006 ("the 2006 Regulations").In the case of Patel v SSHD [2017] EWCA Civ 2028 (13 December 2017), the Court of Appeal ruled that someone holding leave to remain under domestic law would not benefit from a derivative right to reside.
The 2006 Regulations define a Zambrano carer as follows:
"[15A. Derivative right of residence]
(1) A person ("P") who is not [an exempt person] and who satisfies the criteria in paragraph (2), (3), (4) [(4A)] or (5) of this regulation is entitled to a derivative right to reside in the United Kingdom for as long as P satisfies the relevant criteria.
…
[(4A) P satisfies the criteria in this paragraph if–
(a) P is the primary carer of a British Citizen ("the relevant British citizen");
(b) the relevant British citizen is residing in the United Kingdom; and
(c) the relevant British citizen would be unable to reside in the UK or in another EEA State if P were required to leave.
(5) P satisfies the criteria in this paragraph if–
(a) P is under the age of 18;
(b) P's primary carer is entitled to a derivative right to reside in the United Kingdom by virtue of paragraph (2) or (4);
(c) P does not have leave to enter, or remain in, the United Kingdom; and
(d) requiring P to leave the United Kingdom would prevent P's primary carer from residing in the United Kingdom.
The 2006 Regulations are outdated and were replaced by the Immigration (European Economic Area) Regulations 2016 ("the 2016 Regulations").
The 2016 Regulations define a Zambrano carer as follows
As you can see, the 2016 regulations do not exclude Zambrano carers with leave to enter or remain in the United Kingdom.Derivative right to reside
16.—(1) A person has a derivative right to reside during any period in which the person—
(a)is not an exempt person; and
(b)satisfies each of the criteria in one or more of paragraphs (2) to (6).
(5) The criteria in this paragraph are that—
(a)the person is the primary carer of a British citizen (“BC”);
(b)BC is residing in the United Kingdom; and
(c)BC would be unable to reside in the United Kingdom or in another EEA State if the person left the United Kingdom for an indefinite period.
- The Secretary of State’s decision is not in accordance with the evidence and the law as enshrined in the EEA Regulations
- No evidence or legal authority had been filed by the Secretary of State to establish that a Derivative Right to Reside is a “right of last resort” and the Appellants should exhaust Article 8 remedies before applying under the EEA Regulations
- Nothing contained within the EEA Regulations stipulates/requires that an applicant must exhaust all other means to remain lawfully in the United Kingdom under “domestic immigration law”
- The Secretary of State appears to rely upon a Home Office Policy Guidance “Free Movement; Derivative Rights of Residence, Version 5.0, 2nd May 2019, which appears to be based upon the Court of Appeal decision in Patel v SSHD [2017] EWCA Civ 2028, which in turn appears to have been recently considered by the Supreme Court in Patel v Secretary of State for the Home Department UKSC59(16 December 2019)
- There is no dispute/challenge in the refusal decision that the Appellant is the primary carer of a British citizen child
- There is no dispute that the British Citizen child is residing in the United Kingdom.
- There is no dispute that the British Citizen child would not be able to continue to reside in the United Kingdom or in another EEA state if the Appellants left the United Kingdom for an indefinite period
- The Appellant made an application under the EEA Regulations and based on the evidence, the Appellant meets the criteria under Regulation 16(5)of the EEA Regulations.
lolwe wrote: ↑Sun Dec 27, 2020 12:02 pmOn DRF1 Refusals
lolwe wrote: ↑Fri Dec 18, 2020 12:49 amThe Home Office rely on the 2017 decision by the Court of Appeal in Patel v SSHD:Rosh_2704 wrote: ↑Thu Dec 17, 2020 11:42 pmHi everyone,
My DRF application got refused last week on the basis that I have LTR till 10th June 2021. I have appeal rights under 2016 regulations and my deadline to submit the appeal is tomorrow. I’m going through a mental block and I’m finding it very difficult to state my grounds for appeal despite having gone through all the valuable info on this thread. I have filled the rest of the online FTT appeal form but I’m struggling to put my arguments across. I know I’m a bit late asking for help as my deadline is tomorrow but I would be grateful if anyone could guide me please.
The Court of Appeal relied on the Immigration (European Economic Area) Regulations 2006 ("the 2006 Regulations").In the case of Patel v SSHD [2017] EWCA Civ 2028 (13 December 2017), the Court of Appeal ruled that someone holding leave to remain under domestic law would not benefit from a derivative right to reside.
The 2006 Regulations define a Zambrano carer as follows:
"[15A. Derivative right of residence]
(1) A person ("P") who is not [an exempt person] and who satisfies the criteria in paragraph (2), (3), (4) [(4A)] or (5) of this regulation is entitled to a derivative right to reside in the United Kingdom for as long as P satisfies the relevant criteria.
…
[(4A) P satisfies the criteria in this paragraph if–
(a) P is the primary carer of a British Citizen ("the relevant British citizen");
(b) the relevant British citizen is residing in the United Kingdom; and
(c) the relevant British citizen would be unable to reside in the UK or in another EEA State if P were required to leave.
(5) P satisfies the criteria in this paragraph if–
(a) P is under the age of 18;
(b) P's primary carer is entitled to a derivative right to reside in the United Kingdom by virtue of paragraph (2) or (4);
(c) P does not have leave to enter, or remain in, the United Kingdom; and
(d) requiring P to leave the United Kingdom would prevent P's primary carer from residing in the United Kingdom.
The 2006 Regulations are outdated and were replaced by the Immigration (European Economic Area) Regulations 2016 ("the 2016 Regulations").
The 2016 Regulations define a Zambrano carer as follows
As you can see, the 2016 regulations do not exclude Zambrano carers with leave to enter or remain in the United Kingdom.Derivative right to reside
16.—(1) A person has a derivative right to reside during any period in which the person—
(a)is not an exempt person; and
(b)satisfies each of the criteria in one or more of paragraphs (2) to (6).
(5) The criteria in this paragraph are that—
(a)the person is the primary carer of a British citizen (“BC”);
(b)BC is residing in the United Kingdom; and
(c)BC would be unable to reside in the United Kingdom or in another EEA State if the person left the United Kingdom for an indefinite period.
- The Secretary of State’s decision is not in accordance with the evidence and the law as enshrined in the EEA Regulations
- No evidence or legal authority had been filed by the Secretary of State to establish that a Derivative Right to Reside is a “right of last resort” and the Appellants should exhaust Article 8 remedies before applying under the EEA Regulations
- Nothing contained within the EEA Regulations stipulates/requires that an applicant must exhaust all other means to remain lawfully in the United Kingdom under “domestic immigration law”
- The Secretary of State appears to rely upon a Home Office Policy Guidance “Free Movement; Derivative Rights of Residence, Version 5.0, 2nd May 2019, which appears to be based upon the Court of Appeal decision in Patel v SSHD [2017] EWCA Civ 2028, which in turn appears to have been recently considered by the Supreme Court in Patel v Secretary of State for the Home Department UKSC59(16 December 2019)
- There is no dispute/challenge in the refusal decision that the Appellant is the primary carer of a British citizen child
- There is no dispute that the British Citizen child is residing in the United Kingdom.
- There is no dispute that the British Citizen child would not be able to continue to reside in the United Kingdom or in another EEA state if the Appellants left the United Kingdom for an indefinite period
- The Appellant made an application under the EEA Regulations and based on the evidence, the Appellant meets the criteria under Regulation 16(5)of the EEA Regulations.
Rights with settled or pre-settled status:
- work in the UK
- use the NHS for free, if you can at the moment
- enrol in education or continue studying
- access public funds such as benefits and pensions, if you’re eligible for them
If you want to spend time outside the UK
- travel in and out of the UK
If you’re a Swiss citizen, you and your family members can spend up to 4 years in a row outside the UK without losing your settled status.
- If you have settled status, you can spend up to 5 years in a row outside the UK without losing your status.
If you have pre-settled status, you can spend up to 2 years in a row outside the UK without losing your status. You will need to maintain your continuous residence if you want to qualify for settled status.
If you have children after applying
If you get settled status, any children born in the UK while you’re living here will automatically be British citizens.
If you get pre-settled status, any children born in the UK will be automatically eligible for pre-settled status. They will only be a British citizen if they qualify for it through their other parent.
If you want to bring family members to the UK
Your close family members can join you in the UK before 31 December 2020 (or before 31 December 2025 for spouses and civil partners of Swiss citizens). They’ll need to apply to the EU Settlement Scheme once they’re here.
If you cannot bring your family member under the EU Settlement Scheme, they may still be able to come here in a different way, for example on a family visa.
Those who marry a British citizen and have children, without having (or acquiring) leave to remain, do so at the risk that they may be compelled to leave the country, facing the real quandary that arises for these families...The question remains whether, all things considered, the departure of the parent will mean the child will be compelled to follow.
In my judgment, the decision in Chavez-Vilchez represents no departure from the principle of EU law laid down in Zambrano, although it does constitute a reminder that the principle must be applied with careful enquiry, paying attention to the relevant criteria and considerations, and focussing not on whether the EU citizen child (or dependant) can remain in legal theory, but whether they can do so in practice. There is no alteration in the test of compulsion.
The correct approach would have been to ask is the situation of the child or children such that, if the non-EU citizen parent leaves, the British citizen will be unable to care for the child or children, so that the latter will be compelled to leave.
Article 3(1) UNCRC is a ‘substantive right’ that ‘creates an intrinsic obligation for States, is directly applicable (self-executing) and can be invoked before a court’In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration
THE QUICKER VERSION
What I am trying to say here is that it doesn't make sense that some Zambrano carers are refused either settlement under EUSS or Zambrano status under DRF1. Instead they are told to apply for leave to remain under Appendix FM (or FP).Moreover, all Zambrano carers should have to apply for leave to remain under Appendix FM. The Home Office is acting in a discriminatory and irrational manner. Therefore, their refusal is unlawful.
The DRF1 appeal is about whether or not you are a Zambrano carer. The EUSS appeal is about whether or not you are a Zambrano carer, and whether or not you fulfill the requirements for EUSS (Appendix EU).Miss-Suz wrote: ↑Sun Dec 27, 2020 8:54 amMorning Lolwe,
Hope you’re doing well. Do you remember when I said I applied for DRF1 EEA. That application was made early November, it took the Home Office only nearly 2 months to send me a refusal letter. Compared to my EUSS application 18 months to decide.
I received the DRF1 EEA refusal letter on Christmas Eve. Same reason as for my EUSS, that I did not apply for Appendix FM. I got right of appeal, which I will file.
I will therefore have 2 ongoing appeals.
Oh Lord!!!
Patel lost in the Court of Appeal AND in the Supreme Court.The Court of Appeal Patel case led to unhelpful updates to the Derivative Residence Card Guidance requiring a Zambrano application to be only a last resort and mandating a refusal if a human rights application had not been made earlier.
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).
In Mr Shah's case, the answer to the first question is that Mr Shah's child would leave the UKIn those circumstances I consider that the Court of Appeal made an error of law when it treated as determinative what could happen to Mr and Mrs Shah’s son if the father left the UK, rather than what the FTT had found would happen in that event
You need to prove to the Court that your child would be compelled to leave the UK, if you had to leave. That should be enough to win.If Mr Shah were to return to Pakistan, Mrs Shah, on the findings of the FTT, would not remain in the UK but would accompany her husband to Pakistan, and the child would have no option but to go too. In those circumstances the FTT and UT in Mr Shah’s case found that the child would be compelled to leave Union territory and that Mr Shah was, therefore, entitled to a derivative residence card.
It is likewise not relevant, contrary to the submission of Mr Blundell, that, had Mrs Shah remained in the UK with the child, Mr Shah could have had no derivative right of residence. On the facts as found by the FTT, the relevant relationship of dependency with Mr Shah was made out and that was not going to happen.
Note: by derivative, I mean indirectly
TCN = Third Country Nationals = Zambrano carers, and others10.This court has held that article 20 does not confer any rights on a TCN:R (Agyarko) v Secretary of State for the Home Department [2017] 1 WLR 823, para 62.
Thanks Lolwe,lolwe wrote: ↑Sun Dec 27, 2020 1:44 pmThe DRF1 appeal is about whether or not you are a Zambrano carer. The EUSS appeal is about whether or not you are a Zambrano carer, and whether or not you fulfill the requirements for EUSS (Appendix EU).Miss-Suz wrote: ↑Sun Dec 27, 2020 8:54 amMorning Lolwe,
Hope you’re doing well. Do you remember when I said I applied for DRF1 EEA. That application was made early November, it took the Home Office only nearly 2 months to send me a refusal letter. Compared to my EUSS application 18 months to decide.
I received the DRF1 EEA refusal letter on Christmas Eve. Same reason as for my EUSS, that I did not apply for Appendix FM. I got right of appeal, which I will file.
I will therefore have 2 ongoing appeals.
Oh Lord!!!
People spent a lot of time and energy on DRF1 appeals. It doesn't mean much because the benefits of just being a Zambrano carer are ending. Freedom of movement ends on 31 December 2020.
You still have to prove you are a Zambrano carer when you fight the EUSS battle. It will be easier to fight if you have a DRF1 residence card, but at this point, the Home Office are unlikely to print a card after 31 December 2020 anyway.
