Zambrano Settled Status EU settlement scheme Paper Application Form - NEW

[marcidevpal]

What are Communications?

(Nothing will change in the United Kingdom's approach to migrants until the United Nations are involved, in my opinion. I don't think the United Nations have a clue about what is happening here, or they think it is just a few unlucky people. That is why it is so important to complain. Tell your story. They need to know. You have to share your details with the UN, but you don't have to give permission for the UN to share your details with the United Kingdom. Plus, it's free and quick. You have at least two ways to complain. Complain to the Special Rapporteur and/or complain via the Human Rights Council Complaint Procedure.).

Communications are letters sent by the Special Procedures to Governments and others, such as intergovernmental organisations, businesses, military or security companies. In these letters, the experts report on allegations of human rights violations they have received, regarding:

• past human rights violations – which can be the object of a letter of allegation;

• on-going or potential human rights violation – which can be the object of an urgent appeal;

• concerns relating to bills, legislation, policies or practices that do not comply with international human rights law and standards.

The expert(s) will in the letter present the allegations and request clarifications on them. Where necessary, the experts request that the concerned authorities take action to prevent or stop the violation, investigate it, bring to justice those responsible and make sure that remedies are available to the victim(s) or their families. The experts also recall the applicable human rights provisions in these letters.

The complaints procedure of the Special Procedures is not a quasi-judicial procedure, and the Special Procedures do not have power or authority to enforce their views or recommendations.

There are also procedures for complaints which fall outside of the Special Procedures system - through the complaints procedures to the Treaty Bodies and the Human Rights Council Complaint Procedure.

What is the purpose of communications?

The purpose of communications is for the Special Procedures to:

• draw the attention of Governments and others on alleged human rights violations;

• ask that the violations are prevented, stopped, investigated, or that remedial action is taken;

• report to the Human Rights Council on communications sent and replies received, therefore raising public awareness on individual, and group cases as well as legislative and policies developments they have addressed in a given period.

What do Communications address?

The communications address:

• allegations of violation of the human rights of one or more individuals;

• allegations of violation of the human rights of a group or a community;

• allegations that a bill, a law, a decree, a policy and/or a practice is not in compliance with international human rights law and standards.

What are the criteria applied to act on a submission?

Each expert will decide whether she/he will take action on a given submission, on the basis of the information received and the scope of her/his mandate.

This decision depends also on criteria laid down in the Code of Conduct for the experts (“Code of conduct of the Special Procedures mandate-holders of the Human Rights Council”, Human Rights Council resolution 5/2):

• the communication should not be manifestly unfounded or politically motivated;

• the communication should contain a factual description of the alleged violations of human rights;

• the language in the communication should not be abusive;

• the communication should be submitted on the basis of credible and detailed information;

• the communication should not be exclusively based on reports disseminated by mass media.

https://spsubmission.ohchr.org

[marcidevpal]

Why I like paper hearings

In person hearings are a good if you have to prove you are a Zambrano carer. You can answer parenting questions, bring your child(ren) to the court room, etc.

I also like paper hearings because if you have little control over what is written. Judges will often just write dismissed. They won't say what issues were discussed or explain their reasoning. It really is quite disrespectful and goes against the principles of justice, in my opinion.

Anyway, the judge doesn't have that option on paper appeals. If you raise Article 8 as a ground of appeal in your submissions, and you provide case law by the European Court of Human Rights, the judge should respond to it with a balancing exercise. These days, however, the judges simply refuse to engage on human rights for EUSS appeals. So, when you appeal to the European Court of Human Rights (ECtHR), you can show the judges that the UK judges couldn't be bothered. Paper hearings leave no doubt as to what was or was not considered.

[marcidevpal]

Options for Zambrano Carers on EUSS

1.) Be lucky and get approved by the Home Office. I say luck because the majority were refused based on published statistics.

2.) Be lucky and win your appeal before the First-tier Tribunal. I say lucky because this option is unlikely if you are a litigant in person, but still possible.

3.) Be lucky and win in the Upper Tribunal. Same reason as in item two.

4.) Appeal to the European Court of Human Rights. You probably have a pretty good chance.

5.) The Independent Monitoring Authority (IMA) takes the United Kingdom to court before the European Court of Justice. This option is highly unlikely as the IMA have not announced plans to take any such action (see UK Ministry of Justice).

6.) Complain to the United Nations via the Universal Periodic Review (UPR) is a review of the human rights records of each UN Member State. The United Kingdom's review happens every five years - in 2012, 2017 and next should be in 2023.

7.) Complain to the United Nations via the Human Rights Council Advisory Committee. It has 18 experts who will review your complaint. They take complaints from the public about any country. They meet twice a year, for one week in February immediately before the March session of the Council and for one week in August.

8.) Complain to Dr Felipe Gonzalez Morales, the Special Rapporteur on the human rights of migrants.

[marcidevpal]

Why you will probably lose your appeal

1.) Judges don't believe Zambrano carers are covered by the Withdrawal Agreement

2.) If you had Appendix FM on 31 December 2020, the immigration rules say you are ineligible for leave to remain under Appendix EU (EUSS).

3.) Due to Celik v SSHD, the UK judges are not supposed to decide your appeal while taking into account your human rights.

The statutory instrument for EUSS appeals lists only two relevant grounds of appeal - the refusal goes against the Withdrawal Agreement or the refusal goes against the Immigration Rules (Appendix EU).

That is why the European Court of Human Rights and the United Nations are crucial for many, if not most Zambrano carers undergoing appeals.

[marcidevpal]

Why you shouldn't have to lose your appeal

1.) Zambrano carers are covered by the Withdrawal Agreement (WA) for any of the following reasons:

• The WA has a section on the idea of 'proportionality'. I can't remember the section but the letter of the paragraph is either (o) or (m). The Home Office and Judges should be reasonable in their decision-making. It is disproportionate to exclude a group of people who were legally resident in the UK for years before Brexit from settlement under the EU Settlement Scheme.

• The adjoining Political Declaration explicitly commits the UK to apply ECHR in its implementation of its responsibilities under the WA. The exact word is "should".

• The WA commits the UK to respect case law delivered before Brexit. The long established, well respected case of Dereci establishes that human rights should be considered. The President of the Upper Tribunal inexplicably said in his ruling that Dereci was not relevant on EUSS appeals.

• The WA also state the UK should honor case law delivered by the European Court of Justice post-Brexit. The case of Ms E.K., a Ghanain national and Zambrano carer, has been ignored by UK judges. The President of the European Court of Justice, along with a host of senior judges, unanimously ruled Zambrano carers should be given permanent residence after five years. Many Zambrano carers who are denied on their EUSS appeals completed five years lawful residence before Brexit.

• At first glance, one would conclude the WA is designed to exclude UK Zambrano carers. But I strongly argue two points. One, Union law always overrides the terms in international agreements signed by the EU. Two, Union law puts the Charter of Fundamental Rights at the heart of its mission. And Zambrano carers won the right to reside based on the Charter. The WA cannot take away acquired rights for any group covered by Union law. Therefore, the WA covers UK Zambrano carers. Finally, as a side note, the Charter is based on the ECHR.

All of these points regarding the WA should be put before the European Court of Justice. Unfortunately, the system is rigged. Zambrano carers have no viable way to challenge the idea that they are not covered by the Withdrawal Agreement. They must rely on the EU or the IMA to raise the issue - and that's not happening. That is why unlucky Zambrano carers must go to the European Court of Human Rights and the United Nations.


2.) Appendix EU of the UK's immigration rules are unlawful for the following reasons:

• The President of the Upper Tribunal said so.

• It creates a subcategory of Zambrano carers and excludes them from obtaining settlement under the EU Settlement Scheme. This category is arguably irrational, discriminatory, dearly beloved and sexist.

3.) Human rights should always be considered by the UK judges where related case law by the European Court of Human Rights exists.

[marcidevpal]

No Recourse to Public Funds (NRPF)

Since 2012, Zambrano carers were subject to no recourse to public funds - even if they applied for leave to remain under Appendix FM. When they applied to have the ban lifted because they were struggling financially, or even homeless, they were denied by the Home Office. When they applied to the Admin Court and Court of Appeal and Supreme Court to force the Home Office to lift the ban, Judges at the highest levels refused to do so. Year after year after year. In 2020, the High Court ruled in R(W) v SSHD, Case No: CO/3036/2019, that the ‘no recourse to public funds’ (NRPF), breached the “law of humanity” under common law and Article 3 of the European Convention on Human Rights. A very young British child filed the appeal (along with his mother). The Home Office amended the policy but it remained unlawful. Another claim was filed. In 2021, the judges again ruled that the policy is unlawful in ST(VW) v SSHD, Case No: CO/5025/2019.

It seems awfully strange to me that from 2012 until 2020, no High Court judge could see that the policy was unlawful. Hundreds, if not thousands of complaints were brought during this period from people who were subject to the ban. Pretty much all were rejected, although the UK Courts always have a way of anointing
the lucky few. The Judges now admit that the policy violates Article 3 of the European Convention on Human Rights. What if just one migrant had appealed to the European Court of Human Rights years ago? The United Kingdom would have had to have stopped its policy. The Judges would not have been able to ignore the complaints brought to them by destitute migrants.

From where I sit, it appears the UK allows unlawful policy to persist for years, if not decades. Once the claims have significantly reduced, because people think, "what's the point", then and only then, will the UK judges acknowledge the unlawfulness of the Home Office policy. And, they may do so for the sake of getting the historical record straight, not because they actually care.

Does that sound ridiculous? Look at the E.K. case. UK judges including the Court of Appeal effectively put Zambrano carers in the same category as au pairs or nannies. They said people in the UK under the Zambrano route did not have the right to permanent residence - ever. If not for the Judge in the Netherlands who sent this question to the European Court of Justice, who then basically said the idea to be ridiculous, Zambrano carers would still be in the nanny class today. Zambrano carers in the EU now get permanent residence after five years. Since the UK has left the EU, what does that mean for Zambrano carers in the UK? You would think that anyone who qualified as a Zambrano carer before Brexit, and who achieved five years residence before Brexit, would certainly get permanent residence. That would be the right and just thing to do. In the UK, those Zambrano carers get nothing.UK judges show absolutely no desire to correct their earlier misjudgments when they relate to Zambrano carers.

Zambrano carers are in the exact same situation today with regard to the EU Settlement Scheme. Hopefully, people will learn from the past and keep going to the European Court of Human Rights and file complaints with the United Nations. The time to rely on the UK Justice System to, not be perfect, but at least be fair, has long past.

References:

R(W) v SSHD - https://www.judiciary.uk/judgments/r-w-v-sshd/

• • Alex Goodman (instructed by Deighton Pierce Glynn) for the Claimant
  Steven Kovats QC, Colin Thomann and Tom Tabori (instructed by the Government Legal Department) for the Defendant

• Amanda Weston QC, Bijan Hoshi and Ollie Persie (instructed by the Public Law Project) for the Intervener

ST(VW) v SSHD - https://vlex.co.uk/vid/st-child-by-his-866319994

• Mr Goodman and Mr Amunwa (instructed by Deighton Peirce Glynn) for the Claimants

• Mr Kovats QC, Mr Thomann and Mr Tabori (instructed by Government Legal Department) for the Defendant

[marcidevpal]

UK Supreme Court, Agyarko v SSHD

JUSTICES: Lady Hale (Deputy President), Lord Kerr, Lord Wilson, Lord Reed, Lord Carnwath, Lord
Hughes, Lord Hodge

Appellants - Parminder Saini (Instructed by Nag Law Solicitors Ltd and MTG Solicitors)
Respondent - Lisa Giovannetti QC, Neil Sheldon (Instructed by The Government Legal Department)

https://www.supremecourt.uk/cases/uksc-2015-0129.html

Ms Agyarko entered the UK on a visitor's visa, overstayed, then applied for leave to remain due to her relationship with a British person. The Home Office refused her application. The Upper Tribunal, Court of Appeal and Supreme Court dismissed her appeal.

The Supreme Court considered two questions:
1.) Are the Immigration Rules incompatible with Article 8 of the European Convention on Human Rights? and
2.) Are the Immigration Rules incompatible with Union law?

Borrowing from the UK Supreme Court judges, maybe you want to frame your skeleton argument in a similar way. For example,
[A] is the case summary,
[B has SSHD's refusal reasons,
[C] would be questions to be considered by the judge,
[D] would be the relevant legal framework or case law,
[E] would be your grounds for appeal and
[F] could be your conclusion?

Appendix EU is clearly incompatible with Article 8 ECHR. Appendix EU excludes a subcategory of Zambrano carer from achieving settled status, while not allowing for a human rights balancing exercise. The guidance should allow Home Office staff to consider whether it makes sense to say no, in light of the public's interests.

Appendix EU is clearly incompatible with Union law, because Union law incorporates the Charter of Fundamental Rights. The ECJ/CJEU ruled that all Zambrano carers are entitled to permanent residence, not just a subcategory.

Perhaps someone will appeal all the way to the Supreme Court. It would be interesting to hear their thoughts, one way or the other. The first question would be whether or not they accept that the appeal would be an article 8 case -

The ultimate question in article 8 cases is whether a fair balance has been struck between the competing public and individual interests involved, applying a proportionality test. The Rules and Instructions do not depart from that position, and are compatible with article 8.

[marcidevpal]

Akinsaya, European Court of Human Rights

The Supreme Court did not decide in Ms Akinsaya's favour. Did they do a human rights balancing exercise? Did they have a responsibility to conduct an Article 8 human rights balancing exercise? They appear to have decided that because the Home Office did the balancing exercise, that that was enough. If the Supreme Court did not do the balancing exercise, do the lower courts now feel confident to not weigh the public's interest versus the migrant's request? Should Ms Akinsaya have continued her appeal process to the European Court of Human Rights, in Strasbourg? Perhaps her lawyer told her there was nothing further to be done, since the UK Supreme Court had ruled against her? Perhaps she was too tired to keep going? In either case, I personally would have liked to have seen what the European Court of Human Rights would have said. It would depend on whether or not she had a criminal record, what benefit she could bring to UK society, how long and deep her ties to British friends, or partners, etc. A case I posted earlier regarded a man who sued Denmark. His case had gone all the way to the Supreme Court of Denmark. All courts ruled against him - except for the European Court of Human Rights.

[marcidevpal]

Discrimination against people of African descent is structural, institutional and systemic, say UN experts

27 January 2023

https://www.ohchr.org/en/press-releases ... titutional

“Streamlining accessible, independent and effective complaint mechanisms to address Rcism, ensuring police accountability, fair trial guarantees for all persons, and redress to all persons affected by the Windrush scandal are imperative” said Catherine S. Namakula, Chair of the Working Group.

The Working Group, which also included human rights experts Barbara Reynolds and Dominique Day, visited London, Birmingham, Manchester and Bristol. The experts will present a report with their findings and recommendations to the UN Human Rights Council in September 2023.

The Working Group of Experts on People of African Descent was established on 25 April 2002 by the then Commission on Human Rights, following the World Conference against beloved held in Durban in 2001. It is composed of five independent experts:

• Ms. Catherine Namakula (Uganda) current Chair-Rapporteur;

• Ms. Barbara Reynolds (Guyana) current Vice-Chair;

• Ms. Dominique Day (United States of America); and

• Ms. Miriam Ekiudoko (Hungary).

The Working Group is part of what is known as the Special Procedures of the United Nations Human Rights Council. Special Procedures, the largest body of independent experts in the United Nations Human Rights system, is the general name of the Council's independent fact-finding and monitoring mechanisms. Special Procedures mandate-holders are independent human rights experts appointed by the Human Rights Council to address either specific country situations or thematic issues in all parts of the world. They are not UN staff and are independent from any government or organization. They serve in their individual capacity and do not receive a salary for their work.

[marcidevpal]

Working Group of Experts on People of African Descent

Email: ohchr-africandescent@un.org

Many Zambrano carers are of African descent. I don't think this Working Group is aware of what is happening to Zambrano carers in the United Kingdom. Someone should tell them...

The Working Group is particularly interested in learning more about the following topics:

• Human rights of migrants and refugees, immigration laws, detention/probation centres; citizenship and deportation issues;

• Human rights of migrants and refugees, immigration laws, detention/probation centres; citizenship and deportation issues;

• The situation of youth and children; women and girls; and multiple/intersecting forms of discrimination;

https://www.ohchr.org/en/calls-for-inpu ... ed-kingdom

[marcidevpal]

Zambrano carers and Northern Ireland

I wonder what the new agreement between the UK and the EU says? Under EU law, Zambrano carers are eligible for permanent residence after five years. So, if the new deal puts Northern Ireland under EU law, and any Zambrano carer moves to Northern Ireland after the new deal is signed, will they be eligible for permanent residence under the EUSS after five years? Wouldn't that be hilarious?

[marcidevpal]

UK Human Rights Minister Lord Ahmad

https://www.gov.uk/government/news/uk-e ... rm-2021-23

The UK bid for election to the UN Human Rights Council for the term 2021-23. The UK conducted a year-long campaign. The UK received a high number of votes from countries around the world. I don't think the countries who voted know about Zambrano carers.

As a founding member of the UN Human Rights Council, the UK has been a strong advocate of its vital work since its inception, and we are honoured to be elected for a fifth term.

We will keep using our voice to help strengthen the Council, and to support countries working to improve their human rights record. We will continue to hold to account all those responsible for the worst violations and abuses.

The UK strives to be a force for for good in the world, working to protect the most vulnerable from some of the most pressing global human rights issues. This includes making sure girls’ have access to a quality education, working to end violence against women and girls, standing up for democratic values and media freedom, and protecting freedom of religion or belief.

I thank those who supported our candidacy and look forward to working closely with the members of the Council, the Office of the High Commissioner for Human Rights, and civil society to deliver our election pledges.

[marcidevpal]

UK Supreme Court, Pinnock v Manchester

The Supreme Court made it clear when case law from the European Court of Human Rights should be followed:

‘where there is a clear and consistent line of decisions whose effect is not inconsistent with some fundamental substance or procedural aspect of our law, and

whose reasoning does not appear to overlook or misunderstand some argument or point of principle,

we consider that it would be wrong for this court not to follow that line’ at [48].

Many of the ECtHR decisions around migrants and permanent residence are clear and consistent. They are consistent with the Human Rights Act. Therefore, the Tribunal's decision not to apply ECtHR jurisprudence to EUSS appeals, as explained in Celik v SSHD, is wrong.

[marcidevpal]

4 reasons UK Judges may not follow ECtHR case law

• The case(s) you raise conflict with UK primary legislation

• The Judges read the case, but consider the ECtHR's decision to be wrong

• The relevant cases are not consistent in their decisions and

• The judge can claim an exception to the 'margin of appreciation'.

The bottom line is, the Judge should explain why they are not following ECtHR or Strasbourg case law. They should list one of the four reasons above when they refuse to consider human rights. They are not doing that, based on the published decisions I read. Instead, they just say something like, 'human rights are not relevant due to Celik v SSHD.' That is not up to the standard they should promote.

Also, if you cite a case from the Strasbourg Court and the Judge thinks it conflicts with an Act of Parliament, the judge can ignore your case. But the judge should still take action and put their decision on the record. This is called a 'declaration of incompatibility'. And, if the judge thinks the Strasbourg Court got it wrong, the UK is supposed to enter into dialogue with the Strasbourg Court. Everything is being done in secret at the moment (or so it seems).

[marcidevpal]

Human rights applications

How does one define a 'human rights application'? Is it a judicial review with an appeal to the Admin Court, or an appeal to the First-tier Tribunal under Appendix FM? I think it can be either. I suspect a human rights application is any application outside of the established rules.

All human rights applications should have the same standard to be heard. There should not exist a system whereby some human rights applications require the consent of the Home Office and others do not, unless the Home Office has already considered your human rights and you have had the opportunity to challenge their human rights assessment.

So, should it be possible to bring an appeal outside the Appendix EU Immigration Rules without the consent of the Home Office? If an appeal outside the Appendix FM Immigration Rules is possible without first obtaining the consent of the Home Office, then it should be possible to appeal outside the Immigration Rules for Appendix EU (just my thoughts).

Let's assume you filed for settlement under Appendix EU of the Immigration Rules but were refused. Perhaps you now want to appeal outside the Immigration Rules on the basis that it would be disproportionate for you (the appellant) to be refused settlement. Give the judge reasons to find in your favour.

The goal is to prove

• you are in a genuine and subsisting relationship the British relative(s), friends, partners, etc,

• that it would not be in the best interests of the children if you are removed, and

• that there would be more than mere hardship if you were removed.

You may want to provide evidence

• of your role in your children’s lives

• of the extent and nature of your relationship with the children,

• that the children live with you

• of any relationship with your (British) partner

If you provide statements from family or friends, they would ideally show up to your hearing so the lawyer for the Home Office can ask them questions under cross-examination.

It seems people often don't show up to the hearing. Probably due to fear, stress, or anxiety. You may want to go for a paper hearing instead. If you do choose in person, attend the hearing or provide a reason for your absence.

[marcidevpal]

DAGUNDURO v SSHD

https://tribunalsdecisions.service.gov. ... 04031-2020

A married couple made a human rights application and were refused. The judge said they should return to Nigeria and apply from there. The First-tier Tribunal judge and Upper Tribunal judge appeared to assess the human rights claim from the standpoint of,

• "How difficult will it be for them if they return to Nigeria?", as opposed to

• "Is it in the UK's best interests for the Dagunduro's to leave?".

The wife's mother lived in the UK, so they had family ties. Both would find jobs easily in the UK. They work in sectors that are desperate for staff. Here is what the judge says at paragraph 29 -

29. The fact that the first appellant has qualifications in health and social care and her husband had been offered work were not weighty matters that would have made any material difference to the balancing exercise if the appellants did not otherwise qualify for leave to remain under the immigration rules in work categories. The evidence only sought to underline the fact that the appellants have the qualifications and ability to find work in Nigeria.

Yet, it appears all the judge prioritized the fact that they wouldn't suffer too much if they returned to Nigeria. If I were them, I would appeal to the European Court of Human Rights. What is the point of making a human rights application if the UK judges are not going to do the balancing exercise in the way it is defined? The balancing exercise should not be, can you return to your country without being harmed? It should be a question of, what is in society's interests?

[marcidevpal]

Two ways you will probably lose your human rights appeal

1.) The judge refuses to even consider your Article 8 ECHR arguments (see Celik v SSHD).

2.) The judge agrees to consider your human rights, but uses your evidence against you. Specifically, in order to show it is in the public's interest for you to remain in the UK, you submit evidence that shows you are a hard worker, of good character, skilled, educated, etc. The judge then uses those arguments to conclude you will be fine if you return to your home country.

You can't win in either scenario in the UK courts. You would basically have to appeal to the European Court of Human Rights.

[marcidevpal]

The Dagunduros

I just had a quick thought. The Dagunduros lost their appeal to remain in the UK under human rights laws. It appears they will have to leave the UK - eventhough they both work in health care and social care. The UK is known for recruiting health and social care workers from developing countries.

Can you imagine the Dagunduro's shock if they discovered a UK recruiter sitting next to them on their flight to Lagos? The recruiter would going to find people with their exact skills! Oh, the madness of it all.

[marcidevpal]

You may have to ask the Judge for permission to raise human rights violations

https://assets.publishing.service.gov.u ... s-2022.pdf

The UK government wants to change the laws so that you have to apply to the Court to ask for permission to raise human rights before the judge will even consider your human rights. It also wants to put your appeal in a UK context - whatever that means. Third, the government wants Parliament to override what the European Court of Human Rights rules. These goals go against what the Council of Europe stands for and why it was created. If you want to raise human rights in your appeals, the time to do so is sooner rather than later, before it becomes a lot more complicated, expensive and/or difficult.

Excerpts:

Implement a permission stage to ensure trivial cases do not undermine public confidence in human rights. The introduction of a permission stage will ensure that courts focus on serious human rights claims and places responsibility on the claimant to demonstrate that they have suffered a significant disadvantage before a human rights claim can be heard in court.

Strengthen domestic institutions and the primacy of UK law. The Bill empowers UK courts to apply human rights in a UK context, affirming the Supreme Court’s independence from the Strasbourg Court. It will make explicit that the UK Supreme Court is the ultimate judicial arbiter.

Enhance Parliament’s role in responding to adverse Strasbourg rulings. The Bill enhances the role of Parliament in responding to adverse Strasbourg judgments against the UK. The Bill also affirms Parliament’s supremacy in the making of laws.

[Onomskky]

Interesting read and some ray of hope that the tribunal can work in your favour - https://tribunalsdecisions.service.gov. ... 01800-2021
Goodluck to everyone and don’t give up.

[marcidevpal]

Giraldo

Between

THE SECRETARY OF STATE FOR THE DEPARTMENT Appellant
and
SANDRA MILENA HOYOS GIRALDO
(NO ANONYMITY DIRECTION MADE)
Respondent


Representation:
For the appellant: Mr Steven Walker, a Senior Home Office Presenting Officer
For the respondent: Mr Adrian Berry of Counsel, instructed by Wilson Barca Solicitors

Signed Sureta Chana Date: 2 November 2022
Deputy Upper Tribunal Judge Chana

https://tribunalsdecisions.service.gov. ... 01800-2021

SUMMARY

The Secretary of State refused Giraldo's application for a permanent right of residence under the EU Settlement Scheme (EUSS) application, with reference to Appendix EU. At the date of application, she was on the path to settlement under Appendix FM (private and family life) with leave granted on 12 March 2015 and extended to 29 May 2020.

Unlike you, on 6 March 2020, the claimant applied for further leave, but under Appendix EU as a Zambrano carer, rather than under Article 8 ECHR.

The Secretary of State refused Giraldo's application for just about the same reason they refused you - because she was not satisfied that the claimant required Zambrano leave.

Zambrano leave was a last resort and was not appropriate here. The claimant had previously had Article 8 ECHR leave to remain and there was a realistic prospect that she would be granted further such leave

In your appeal, try to establish whether or not the Home Office agree that you are a Zambrano carer.

The claimant satisfies Regulation 16(2)(-(6). The subsection relevant to her is Regulation 16(5) which regulates the position of third country national carers of British citizen children, that is to say, Zambrano carers. There is no dispute that this claimant meets the requirements of that Regulation.

If the Home Office accept that you ARE IN FACT a Zambrano carer, then they must accept you qualify for leave to remain under EUSS -

Mr Walker accepted at the hearing that, applying Akinsanya, the First-tier Tribunal Judge did not err in allowing the appeal, as at the date of decision, the claimant did not have indefinite leave to remain and was a Zambrano carer. If the claimant were removed, her daughter would be unable to remain in the UK without her.

The judge should then grant your appeal (hopefully).

On that basis, the Secretary of State’s appeal falls to be dismissed and the First-tier Tribunal decision upheld.

[marcidevpal]

Sudita Keita v Hungary

https://www.asylumlawdatabase.eu/en/con ... ivate-life

On 12 May 2020, the European Court of Human Rights published its decision on the case Sudita Keita v. Hungary (Application No. 42321/15) concerning a stateless individual’s protracted difficulty to regularise their status in Hungary.

The applicant, who is of Somali and Nigerian origin, arrived in Hungary in 2002. After his asylum application was rejected, he continued to live in Hungary without a regular legal status.

The applicant complained to the ECtHR that as a result of the challenges to regularise his status in the first fifteen years in Hungary, there were adverse repercussions on his enjoyment in respect of private and family life, including his ability to access health care and employment opportunities, and ability to marry.

The Court highlighted that the applicant's complaint was related not to the impossibility to obtain stateless status but rather the general impossibility of regularising his status in Hungary, which prevented him from living a normal private life for a fifteen-year-long period. As such, the applicant was deprived of basic entitlements to healthcare and employment.

The Court was not satisfied that the State had complied with its positive obligation to provide an effective and accessible procedure, or combination of procedures, enabling the applicant to determine his status with due regard to his private-life interests, contrary to Article 8 ECHR.

[marcidevpal]

SSHD v NOEL

Heard at Field House
Decision & Reasons Promulgated
On 3 August 2022
On 29 September 2022

Before
UPPER TRIBUNAL JUDGE ALLEN
DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN

Between
SECRETARY OF STATE FOR THE HOME DEPARTMENT Appellant
and NOEL (ANONYMITY DIRECTION NOT made) Respondent

Representation:
For the Appellant: Mr A Eaton, counsel instructed by Southwark Law Centre
For the Respondent: Mr P. Deller, Home Office Presenting Officer

1. The Respondent applied for leave to remain under the EUSS as the sole carer of a British citizen child. This application was refused in a decision and the Respondent appealed against this decision to the First tier Tribunal.

2. In a decision and reasons promulgated on 27 September 2021, Judge of the First-tier Tribunal Neville allowed the Respondent’s appeal on the basis that the decision of the SSHD was not in accordance with the residence scheme immigration rules.

12.5. Permission to appeal to the Upper Tribunal was granted solely in relation to the fact that the SSHD had obtained permission to appeal to the Court of Appeal. However, in a judgment dated 25 January 2022, whilst Underhill LJ preferred the submissions on behalf of the SSHD with regard to ground 1, the effect of the Zambrano jurisprudence, he upheld the judgment of Mostyn J as to the SSHD’s erroneous approach to regulation 16 of the EEA Regulations, holding that persons with limited leave to remain are entitled to a derivative right to remain, alongside their limited leave, if they otherwise satisfy certain specified criteria.

12.8. Whilst we decided that it would be pertinent to include consideration of the effect of Velaj, in this particular case ultimately we have concluded that it makes no material difference, given the absence of any dispute of fact particularly as to the lack of availability of any alternative carer for the Respondent’s British daughter.

Decision
13. We find no error of law in the decision and reasons of First tier Tribunal Judge Neville and his decision is upheld.

The judges appear to be saying that any Zambrano carer should be granted residence under the immigration rules - even though the Home Office said that the immigration rules do not allow Zambrano carers who have leave to remain under Appendix FM. The cases are not applied consistently. Zambrano carers should be treated equally. At the very least, the judges should ask the Home Office to explain why and evaluate the lawfulness of the decision. It should not be irrational or discriminatory.

[marcidevpal]

CASE OF M.A. v. DENMARK

(Application no. 6697/18)

STRASBOURG - 9 July 2021

https://hudoc.echr.coe.int/

The Danish authorities refused MA residence because

• he had not been in possession of a residence permit for the past 3 years and

• there were no exceptional reasons.

The Danish High Court and the Supreme Court agreed with the Danish authorities.

The European Court of Human Rights (ECtHR) disagreed with the Danish government -

194. Having regard to all the above considerations, the Court is not satisfied, notwithstanding their margin of appreciation, that the authorities of the respondent State, when subjecting the applicant to a three-year waiting period before he could apply for family reunification with his wife, struck a fair balance between, on the one hand, the applicant’s interest in being reunited with his wife in Denmark and, on the other, the interest of the community as a whole to control immigration with a view to protecting the economic well-being of the country, to ensuring the effective integration of those granted protection and to preserving social cohesion (see paragraph 165 above).

195. It follows that there has been a violation of Article 8 of the Convention.

The question for the UK judges is whether, in light of the Home Office's refusal, they strike a fair balance between, on the one hand, the Zambrano carer's interest in being granted permanent residence and, on the other, the interest of the community as a whole to control immigration with regard to the economic well-being, social cohesion, etc.

[marcidevpal]

Begum v SSHD

Heard at Field House

Before
DEPUTY UPPER TRIBUNAL JUDGE HANBURY
UPPER TRIBUNAL JUDGE ALLEN

Representation:
For the Appellant: Mr S Karim of counsel
For the Respondent: Mr Melvin a Home Office presenting officer

https://tribunalsdecisions.service.gov. ... 432021-ors

12. At least the judge should have made findings on these aspects of the sponsor’s evidence. The judge should have grappled with this to a greater extent than he did.

16. The appellant said in response that the judge ought to have considered the argument that the first appellant’s failure to meet the English language requirement constituted exceptional circumstances. It was incumbent on the tribunal to consider article 8 (2) if raised but the burden rested on the Home Office to satisfy the tribunal as to that article. The judge did not engage with this point. The respondent argues that the appellants and the sponsor could meet in a third country but Mr Karim was not sure that it was put to the sponsor that this was viable. The sponsor’s subjective concerns were not considered either.

19. The Supreme Court, however, upheld the requirements of the Immigration Rules. It held that four questions generally arose for the court to consider:

(i) Whether the legislative objectives were sufficiently important to justify limiting a fundamental right;
(ii) Whether the measures which had been designed to meet it were rationally connected to it;
(iii) Whether they were no more than necessary to accomplish it; and
(iv) Whether they struck the right balance between the rights of the individual and the interests of the community.

20. A balance must be struck between the right to respect for private and family life and the legitimate aims of the respondent in protecting the national interest, including the economic well-being of the UK and promoting the integration of those who come to the UK.

21. However, the decision-maker must consider exceptional circumstances, where they are made out.

27. Accordingly, our provisional view is that the appeal should be remitted to the judge for him to assess whether there were any exceptional circumstances for allowing this appeal on the basis that the first appellant qualified for an exemption from the English language test requirement in E – ECP.4.2 (c) or she qualified outside the Immigration Rules. It may also be appropriate for the judge to consider article 8 afresh in the light of those findings.

Paragraph E-ECP.4.2.(c) of Appendix FM of the Immigration Rules allows for exceptional circumstances. Appendix EU of the Immigration Rules does not contain a provision for exceptional circumstances.