Reminder: EUSS Appeals: Submissions
If you file an appeal, the judge will want to know your grounds of appeal. The Court will ask you for your "submissions". That means you must submit your grounds of appeal, at the very least, but you should also ideally include a witness statement. In other words, s/he wants to know the legal basis for your appeal. Legislation was passed that outlines the valid grounds for appeal for the EUSS. This type of legislation is called a 'statutory instrument'. It is secondary legislation. Secondary legislation does not go through the same level of analysis by MPs as primary legislation.
The statutory instrument for the EUSS outlines two grounds from appeal that may relate to Zambrano carers. Ground 1 is to argue that the Home Office's refusal goes against the Brexit Withdrawal Agreement. Ground 2 is that the refusal goes against the UK's Immigration Rules. The UK's Immigration Rules are divided into section, called Appendices. You may already be familiar with Appendix FM. The EUSS has its own appendix, called Appendix EU. So, ground two is that the refusal goes against Appendix EU.
I would argue for you to submit a third ground of appeal - that the refusal goes against your Article 8 human rights. The judges will probably disregard this ground, due the Celik v SSHD case. I understand that the secondary legislation, or statutory instrument, does not expressly mention human rights as a ground for appeal. The UK's Human Rights Act asks judges to consider human rights. The Human Rights Act is primary legislation (not secondary) in the UK. Therefore, even if secondary legislation does not explicitly mention human rights, I believe it remains a ground for appeal. You may want to seek legal advice on this topic.
Ground 1 - Not in Accordance with the Withdrawal Agreement(WA)
The WA prioritises Union Law above all other considerations. Human rights are fundamental to Union Law and share equal weight with the terms of any agreement. It is against the Charter of Fundamental Rights to invalidate residence rights acquired prior to Brexit and to not recognize rights acquired as a result of lawful residence post Brexit.
The Home Office will argue that UK Zambrano carers are not covered by the WA. This question really should have gone before the European Court of Justice, sometimes referred to as the CJEU or ECJ. I don't see how Zambrano carers will have their day in court, because the Independent Monitoring Authority (IMA) in the UK seems uninterested in Zambrano carers. The IMA has the right to take the UK to Court if a dispute arises in the WA. It is funded by the UK's Ministry of Justice....
Ground 2 - Not in Accordance with the Immigration Rules (Appendix EU)
During the Akinsaya v SSHD hearings, the UK courts asked the Home Office to clarify what it sought to achieve by adding Zambrano carers to the EUSS. The courts said that if the Home Office intended to give residence to Zambrano carers
based on the EU's definition of the term, then they could not exclude Zambrano carers who also had leave to remain under Appendix FM. The Home Office then effectively said their aim was to exclude a subsection of Zambrano carers. The Courts have not evaluated whether or not this position is irrational or discriminatory.
If you are a Zambrano carer who did not hold leave to remain under Appendix FM on 31 December 2020, then, based on the Giraldo case, you should be successful in your appeal. However, there is little consistency to the judgements coming out of the First-tier and Upper Tribunals, so you have to take that with a grain of salt. The key problem with the Giraldo case, is the judge took into account time spent in the UK under Appendix FM and applied it to Appendix EU. According to the Immigration Rules, time spent under Appendix FM should not have counted. So, even when people win, the logic applied by the judges is not necessarily internally consistent....
No judge addresses the issue that the Home Office never warned Zambrano carers that holding leave to remain under Appendix FM on 31 December 2020 would disqualify them from residence under EUSS. The Home Office were silent for most of the period. At other times, they sent letters to Zambrano carers encouraging them to apply for leave to remain under Appendix FM before 31 December 2020. It was a trick that should never have worked in the UK courts.
If you are a Zambrano carer who did hold leave to remain under Appendix FM on 31 December 2020, the judge seems unlikely to accept ground 1 or ground 2 - although I am sure some people were successful, anyway. You may want to go for ground 3.
Ground 3 - Interference or Violation of Article 8 ECHR
This ground is particularly useful to Zambrano carers who have lived in the UK for a long period of time - say, five years or more. It is irrational for Zambrano carers to have to pay thousands of pounds and wait for sometimes decades to be granted permanent residence, as is the case for many.
Summary
To sum, I believe Zambrano carers should argue that they are covered by the WA, even though everyone says they are not. Who knows? Maybe someone will bring a challenge to the WA on behalf of Zambrano carers before the CJEU. You want to be able to say you also raised this point. I also believe they should raise human rights grounds, in case they want to continue their fight to the European Court of Justice.
Hope you found my summary useful
