appeal letter for Derivative Residence Card / Regulation 9

appeal letter for Derivative Residence Card / Regulation 9

24-07-2013
So below is a copy of the letter that has been sent to the Immigration appeal.  In addition to plenty of information etc.

So bear in mind the following, I am self employed, and so should our appeal fail, we can move (with difficulty) to Ireland and then return via the direct Singh route.  As my daughter is in school, we are instead going by this route (appeal).
We got in touch with numerous solicitors, none of them were willing to touch legal aid, saying it was too complex to apply for on the basis of HRA etc… so effectively, the Home Office have won in the respect that a normal person, with a normal income won’t be able to get any legal representation for court.
We cannot afford £3000 (at the low end) or £5000 (a usual rate) or possibly even more (lots of quotes were more) for an appeal. – And this was based solely on the Derivative Rights appeal.
So again, if it fails, it fails… doesn’t stop us trying though, does it…
£140 application fee for an Oral hearing, £15 to post off paperwork (3.5kg of paper documents – close to 1000 pages).
and now we’re waiting….
—————————————————————–
[wife] (Formerly [wife – maiden]) [address]

Date: 16th July 2013

First Tier Tribuneral (Immigration and Asylum Chamber) PO Box 6987, Leicester United Kingdom, LE1 6ZX Email: [email protected]

Ref: RE: [refusal number]

Dear Sir(s),

I am writing my letter along with my appeal to the First Tier Tribuneral Service.

I am appealing against the decisions made by the Home Office in relation to my case.  The reasons for my appeal are as follows:

1) The decisions are not compatible with current law. 2) Discretion under the Immigration Rules should have been exercised differently 3) The decision is not in accordance with the case law of Case C-370/90 (Singh), Case C-60/00 (Carpenter), Case C-34/09 (Zambrano), Metock (along with various other cases).

In the case of Singh: “THE COURT, in answer to the question referred to it by the High Court of Justice (Queen’ s Bench Division) by order of 19 October 1990, hereby rules: Article 52 of the Treaty and Council Directive 73/148/EEC of 21 May 1973 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services, properly construed, require a Member State to grant leave to enter and reside in its territory to the spouse, of whatever nationality, of a national of that State who has gone, with that spouse, to another Member State in order

to work there as an employed person as envisaged by Article 48 of the Treaty and returns to establish himself or herself as envisaged by Article 52 of the

Treaty in the State of which he or she is a national. A spouse must enjoy at least the same rights as would be granted to him or her under Community law if

his or her spouse entered and resided in another Member State. ”

In the case of Carpenter: “THE COURT, in answer to the question referred to it by the Immigration Appeal Tribunal by order of 16 December 1999, hereby rules: Article 49 EC, read in the light of the fundamental right to respect for family life, is to be interpreted as precluding, in circumstances such as those in

the main proceedings, a refusal, by the Member State of origin of a provider of services established in that Member State who provides services to recipients

established in other Member States, of the right to reside in its territory to that provider’s spouse, who is a national of a third country.”

Regulation 9 of the EEA Regs 2006 states: (3) Where these Regulations apply to the family member of a United Kingdom national the United Kingdom national shall be treated as holding a valid passport

issued by an EEA State for the purpose of the application of regulation 13 to that family member.

The  on the case of Jia v Migrationsverket (Case C-1/05) [2007] QB 545 and the statement in paragraph 35 of the judgment that:

“According to the case law of the Court of Justice the status of ‘dependent’ family member is the result of a factual situation characterised by the fact

that material support for that family member is provided by the community national who has exercised his right of free movement or by his spouse…”

The same is therefore true to clearly demonstrate that the Home Office and UK interpretation of Case C-34/09 is clearly flawed.

Paragraph 3 of the Reasons for Refusal states that I applied as the Primary Carer of a British Citizen.  I did, however apply as the spouse and primary carer

of an EEA national – Mr Wayne Brian Pearsall, and parent of TWO british Children – [daughter]l and [son]l.

I am aware that the UK do not consider a derivative right as a Free Movement right.  However, the current UK legislation outlines that discrimination against

against any group of people is unlawful.  Therefore I also state that the paragraph four outlines that the Equality Act is being breached by failure to treat

a group of people (those with a Derivative right of residence) inequally to another group of people (those with a Free Movement right of residence).  All the

same, my application did not request to sponsor any family members into the country who do not already have a clear right of residence.

Paragraph 5 states that I do not come under the category of “family member”.  I am the direct accending relative (mother) of two British children.  I am also

the spouse of Wayne Pearsall, A British citizen who has excersised his right of free movement in Finland (another EEA Member State) – and therefore is to be

treated equally to  another EEA national.  The definition of Family Member is assigned in the EEA Regulations 2006, the UK’s implementation of Directive

2004/38/EC – and I clearly fall within the scope of the definition of Family Member.

Article 2(1): “Union citizen” means any person having the nationality of a Member State;

Article 2(2): “Family member” means: (a) the spouse; (b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of

the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of

the host Member State; (c) the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b); (d) the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b);

Article 2(3): “Host Member State” means the Member State to which a Union citizen moves in order to exercise his/her right of free movement and residence.

Having previously excersised his right to free movement and work within Finland, Mr Wayne Pearsall (my lawful spouse) then excersised his right to move back

to the UK – at which point he bears the status of an EEA National, and not simply the nationality of a British Citizen.

As Described on Page 2 of the refusal letter, in paragraph 2, and in the EEA Regs 2006,to be regarded as the primary carer I need to meet two elements.. a) Be the direct relative or legal guardian of that person *AND*; (emphasis added)

b)i) Have the primary responsibility for that persons care; *OR* (emphasis added) b)ii) share equally responsibility for that persons care who is not an exempt person.

I believe that point (b)(ii) clearly shows a degree of racial discrimination, as it makes it possible for the UK to override an EU declaration of the law on

the basis of another persons nationality and/or status in the country, which goes against the TFEU which is founded on the principle of EVERYONE being equal.

Paragraph 4 on page 2 explains that to be considered the primary carer, the Home Office would expect that I provide evidence to show that the child lives

with myself or spends the majority of their time with me, etc.

I met the requirements stated here by way of the letter from the Children’s Centre Stratford.  Please see the attached information on the purpose of the

Children’s Centre.  The Children’s Centre replace many of the Social Services and NHS core functions.  The letter from the centre states that in their

opinion I am the primary carer of my children.  However, as Article 8 ECHR states that a governmental department must have respect for the family and PRIVATE

LIFE that I have with my family, to expect further information, would clearly breach this fundamental right that we have under law.

In support of my application a Human Rights application letter was also submitted (also attached).  It made it very clear that the Home Office had a duty to

consider the implications of Article 8 ECHR when deciding my application.  Further more, numerous emails (and therefore written submissions in law) were made

by my spouse, Mr Wayne Brian Pearsall. Rob Whiteman, the former CEO of UKBA, replied to my Human Rights application stating that the Home Office would not consider Human Rights in my case.  This

fact has been ommitted in their refusal notice, but the letter is attached.  The Human Rights Act (and ECHR) states that in ANY decision made, the authority

must pay due consideration to our Human Rights.

Paragraph 8 of Page 2 states that there is insufficient evidence to show that the British Citizen children would be unable to remain in the EEA if I were

forced to leave.  This is untrue.  The Zambrano / Article 8 guidance issued (FOI 27354 – Annex A: Guidance on Zambrano and Article 8) states the following:

“(a) Cases where the primary carer is being removed or deported to a country outside the EEA, but a Zambrano right is refused on the basis that the British

citizen will be able to continue to live in the EEA with another parent In some circumstances the case worker will refuse to recognise that the adult migrant has a right to residence here on the basis of Zambrano because the

child or disabled adult could remain in the UK with another parent or carer and would not therefore be compelled to leave the EEA. Where a refusal is made on

this basis, and the case worker is then considering the Article 8 rights of the primary carer, they cannot conclude that there will be no interference with

family life because the family can live together as a family unit in a country outside the EEA. To do so would directly conflict with the basis upon which

recognition of the Zambrano right had been refused.”

This clearly demonstrates that the Home Office did not act in accordance with guidance issued to them by the secetary of state, nor did they excersise a

discretion afforded to them by the Secetary of state.

Furthermore, UNCRC Article 3(1), UNCRC Article 9 and the key part: Article 24 of the charter of the rights of European citizens, it is clear that the

expected removal of myself, the mother of British Citizen children removes key rights of European citizens, so much so that the Home Office themselves admit

that to seperate myself from my children would inflict on their human rights in a way that to keep the family life they would need to acompany myself to

Indonesia.

President Justice Blake of the Upper Tribunal set the criteria which the national courts should follow when determining cases with removal of non-eea parents

of a British citizen in line with Ruiz Zambrano and Zh Tanazania.  He set the rules in his determination of the case of Omuntunde vrs the secretary of state.

Paragraph 1, 2, 3 of the determination deals with Zambrano refusals. Not forgetting the determination of Lady Hale in ZH Tanzania.

On page 3, paragraph 3 it is noted about my breast feeding of our youngest child ([son]l).  The Home Office accept that their decision breaches Article 8

ECHR, but fails to act in a manner in accordance with the law.

Paragraph 3 then goes onto state that I share responsibility for our children’s care equally with an excempt person.  This is untrue. I am the primary carer

for our children.  I make all decisions relating to our children – from medical, to schooling.  I am the person who bathes our children daily, I feed our

child daily.

Page 3, Paragraph 4.  Carpenter (Case C60/09) established that considering my husband is the supplier of services to the EU Article 49 EC precludes the UK

from refusing to grant myself a right to reside.  Paragraph 3 states that it would appear that my husband is not currently employed.  This is an assumption

made by the Home Office.  My husband continues to offer services across the EU.  Infact his primary Domain for such services “PersonalHost.co.uk” offering

free web hosting in exchange for advertisment revenue (which is provided by Google Inc, based in the Republic of Ireland).  My Husband is also an active

reseller for Hostinger International, an hosting firm based in Cyprus. Hostinger International Ltd,’s address being: 61 Lordou Vironos Street, Lumiel

Building, 6023 Larnaca, Cyprus.  Cyprus is an EEA Member State.  Therefore Articles 21(1) TFEU and Article 49 TFEU applies.

Paragraph 5 refers to my husbands mobility problems.  My husband submitted substantial evidence to confirm his mobility issues.  MY husband did infact submit

his Blue Badge, along with confirmation of the badge.  The criteria for the blue badge being “Virtually Unable to Walk”.  Article 26 TFEU (Integration of

persons with disabilities) applies here, as it is clear that the UK are failing to “recognise OR respect the right of persons with disabilities to benefit

from measures designed to ensure their independence, social and occupational integration and participation in the life of the community.”

Page 3, Paragraph 6 states that they requested further information as to why my husband cannot care for our children.  As explained to the Home Office, dated

03, may 2013, Article 24(3) TFEU states that our children have a right to direct meaningful contact with both parents.  The same is true when it comes to

another set of wider-reaching legislation – the UNCRC.

Paragraph 10/11 refers to “my” pursuit of the COA for employment.  My pursuit of such a COA was so as I could aquire a National Insurance number so as to

form my own business.  I am in the process of setting up (with the aid of my husband) two businesses.  One focused on portrait photography, and the other

focused on online sales of my photography work…  Neither of these businesses would remove my ability to care for my children.  Infact it shows the opposite

where it will show that I am willing, as I have always been, to be financially responsible for my family.  When it came to the time at which I am unable to

care for my children due to work, there are numerous educational daycare environments where I would be able to place my child.  I am aware, however, that

this does not provide the educational system a claim of “responsibility” or “carership” as refered to in the ruling of Zambrano.  I am also aware that the

ruling of zambrano did not state SOLE CARERSHIP.  If such a ruling were made,  then the ruling would also make it legal for the Home Office to remove every

parent of a British child on the basis that the UK has a Social Services care department.  However, the ruling, as ALL OTHER EU / UK law needs reading in

accordance with Article 8 – ECHR.

Paragraph 12 and 13 then refer to assessing my spouse’s mobility issues.  This assessment was clearly done seperately to the assessment of carership for our

children.  The fact my husband has such needs the assessment should of also considered his ability to care for children.  I submit a number of documents from

local authorities, which provide information on the needs of a child.

Page 4 Paragraph 2 states that the Home Office requires evidence from the NHS / Local Authority / Private care.  I submitted numerous fit notes from my

husbands GP.  these notes made it clear that my husband suffers from a back disorder.  One of the notes (as referenced by the Home Office) states that my

husband needs to avoid work that puts pressure on his back.  Raising a child is a very strenuous process.  It involves physical, emotional and physocological

strength.  The physical factor is the largest factor, and would clearly put pressure on my husbands back – which goes against his doctors advice.

As the spouse of Mr Pearsall, I provide him with the care as his wife.  This means that our family life must be repected.  As his wife I prepare his meals,

take care of our home, and our children.  This is not something that can be provided by any other organisation in the UK, as this is a family and private

life arrangement that would clearly be broken should I be removed.

The Home Office have also considered my application under Regulation 9 of the Immigration (EEA) Regulations 2006.  My application was not based solely on the

fact that my husband had worked in Finland, but also on the basis that my husband is the provider of services to the EU.  My husband, during the course of

his personal development created a number of software applications.  He provided these applications for distribution as “FreeWare”.  One such application

being “TopBrowser” – A multilingual web browser, which enabled a tabbed web browser interface (Much like Internet Explorer today).  My husband developed this

under the brandname of “Web-Software Inc,” located at http://WSICorp.co.uk/ and http://TW-Chat.co.uk/.  These applications were installed on many machines

across Europe, including in Schools and Colleges.

This fact was brought to the attention of the Home Office in the course of Emails between my husband and Rob Whiteman.  The EREC (European Team) email box

was also sent a copy of all of these messages.  This clearly shows that the Home Office took absolutely no notice of the case law of Carpenter C-60/00.

Despite the Home Office’s statement in Para 11 on page 4.  Case C-127/08 (Metock) concluded the following:

1.      Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to

move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC,

72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC precludes legislation of a Member State which requires a national of a

non-member country who is the spouse of a Union citizen residing in that Member State but not possessing its nationality to have previously been lawfully

resident in another Member State before arriving in the host Member State, in order to benefit from the provisions of that directive.

2.      Article 3(1) of Directive 2004/38 must be interpreted as meaning that a national of a non-member country who is the spouse of a Union citizen

residing in a Member State whose nationality he does not possess and who accompanies or joins that Union citizen benefits from the provisions of that

directive, irrespective of when and where their marriage took place and of how the national of a non-member country entered the host Member State.

Whilst I understand that My husband is infact British, residing in Britain.  He also holds the nationality of an EU citizen, and has confirmed that

nationality by excersising his rights bestowed via Directive 2004/38/EC.  Unlike in the case of McCarthy where the EU National HAD NOT excersised the right

to free movement.

On page 5, the Home Office goes onto state that any application for my Human Rights to be considered, and therefore the Human Rights of my children

([daughter] and [son]l) and my spouse (Mr Wayne Brian Pearsall) must be submitted via form FLR(m) or FLR(o).  I submit that we did attempt to regulise my

stay in an application FLR(m) first of all submitted in May 2010.  This application was filed having been the unmarried partner of Mr Wayne Pearsall and the

mother of [daughter]l.  I further submit that on the refusal notice sent by the Home Office they accepted that myself and my (now) husband have a meaningful

relationship, and even went onto accept that for our Human Rights not to be breached my Husband and Daughter could leave the EEA and return to Indonesia.

However, such a burden is not strictly possible.

Indonesia has a very strict immigration process, of which I am sure the Home Office is aware.  With the longest possible visa being a 12 month visa that must

be renewed OUT OF COUNTRY.  This would result in my husband having to spend substantial amounts of time away from the family unit.  In addition to this, it

would also clearly breach my children’s and husbands fundamental right to be able to live in their home country, or in general the EEA as a whole – therefore

Invoking Zambrano (as outlined on the Immigration Directorate Inructions guidance in reference to Article 8 and Zambrano).

Paragraph 2 of page 5 then goes onto talk about the Section 55 of the Borders Act.  It states that  “but it does not mean that the children’s interests will

necessarily outweigh these.”.  As was outlined in my Human Rights submission to the Home Office, in the Supreme Court decision of ZH (Tanzania) (FC) v

Secretary of State for the Home Department [2011] UKSC 4 Lady Hale at paragraph 17 sited the European Court of Human Rights (ECHR) case of Uner v The

Netherlands (2007) 45 EHRR 14 in which the European Court emphasised two criteria which amongst others must be considered in conducting the proportionality

exercise: “[ix] the best interests and well-being of the children, in particular the seriousness of the difficulties which any children of the applicant are likely to

encounter in the country to which the applicant is to be expelled; and [x] the solidity of social, cultural and family ties with the host country and with the country of destination”.

In the ECHR case of Neulinger v Switzerland (2010) 28 BHRC 706 the Court noted, at para 135, that “there is currently a broad consensus — including in

international law — in support of the idea that in all decisions concerning children, their best interests must be paramount”. Lady Hale states at paragraph 29 that the term ‘best interest of the child’ “involves asking whether it is reasonable to expect the child to live in another

country. Relevant to this will be the level of the child’s integration in this country and the length of absence from the other country; where and with whom

the child is to live and the arrangements for looking after the child in the other country; and the strength of the child’s relationships with parents or

other family members which will be severed if the child has to move away.”

Lady Hale went on to state at paragraph 26 that the important thing is to consider the “best interest [of the child] first“ and that no other consideration

should be treated“as inherently more significant than the best interests of the children”.

At paragraph 31 of ZH (Tanzania) (FC) Lady Hale stated that “it is not enough to say that a young child may readily adapt to life in another country.” She

went on to say that the child cannot be expected to easily adapt in the case of children who have lived here all their lives and are being expected to move

to a country which they do not know.  In my Human Rights submission, it specifically requested that the Secretary of State not to make any decision which

will be adverse to the safety and *welfare* of the childred mentioned in this application.

As I am sure the court is aware, Welfare is a broad reaching term, which includes not only physical welfare, but also physcological, emotional and other

developmental aspects of a child’s welfare.  When understanding the importance an attachment to a mother / father can play in the development of a child, it

is clear that the idea of seperating a child from their parent clearly does not bode well with protecting the rights of a child, nore their welfare.

This fact is clearly outlined in the Home Offices guidance issued in the IDI’s at chapter 399a – in their criminality guidance.

At point 8, it is clearly outlined:

8. The Supreme Court established in ZH Tanzania that particular weight must be given to British citizenship if the consequence of an immigration decision is

that a British citizen child will have to leave the UK. This is because in so doing that child may lose out on the inherent advantages of being a British

citizen growing up in the UK.

This therefore concludes that the Home Office are aware that to remove myself from the UK it would require my children and husband to leave the UK to

continue our family life.  The Home Office have already accepted this fact.  The Home Office have made no arguments against the fact that I have a subsisting

relationship with either my husband or our children.

The list of the evidence that the Home Office used to consider my application makes no reference to evidence of my sons nationality being British.

In relation to my Regulation 9 application, I draw attention to Para 8, 9 and 10 of Morocco [2010] UKUT 420 (IAC), in addition to Case C-60/09 (Carpenter).

The Home Office clearly states in its refusal notice that to care for our children on his own, would affect my husbands  ability to work.  This would clearly

violate TFEU which gives my husband the right to work without hinderance within any EU state, including his state of nationality.  Although, contrary to what

the Home Office state, my husband is infact still a worker as per EU legislation.  Although my husbands income is quite low at the moment, he is commited to

increase his income.  My husbands employment is a cross border / “Frontier Worker” with a number of European organisations.  As explained in one of the many

email’s to the Home Office (sent to both Rob Whiteman and  the European Casework teams).  I attach a number of documents to clearly demonstrate the fact that

my husband is infact working, and has been working across the EU since 2004.  This clearly asserts that he is STILL excersising his treaty rights under EU

law, even though he is physically present in the UK.  Also, attached is a statement of income from Google Adsense, which is a company registered in the

Republic of Ireland, and therefore clearly shows that my husbands work is genuine and effective).

It is demonstrated that the Home Office’s expectation for myself (and many others in a simular situation) to submit a serparate costly application via the

Immigration Rules to solidify an already exisiting right is unlawful and unjust.  In ANY ACTION taken by an organisation Human Rights must come into the desicion making process.

Yours Truely,
Mrs [wife]
———————————————————————————–
Also below is a list of some of the documents that were sent off to the court…

* About Hostinger International LTD * About Stratford Childrens Centre (ParentingProject.org.uk) * Information RE: Provision of services across the EU. * Initial Article 8 FLR Application (2010) * Prescription information for myself * Hospital Letters about myself * ‘Fit Notes’ – particularly dated 15/3/13 which states “needs to avoid job/work that causes back pain”

Please take note of the caselaw: ““““ Case C-34/09 (Zambrano) Case C-60/00 (Carpenter) Case 127/08 (Metock) Case C-434/09 (McCarthy) – Point 1 (myself has excersised his rights) & Point 2 (Removal of His Wife, and Primary carer would impede his rights) Case c-291/05 (Eind) Case C-109/01 (Hacene Akrich) – Judgement 4 Case C-106/09 Marleasing [1990] ECR 1-4135 Many other cases references in emails attached.

Article 8 – Rights Childrens Act 1989 – http://www.legislation.gov.uk/ukpga/1989/41/contents (and  Childrens Act 2004) TFEU Article 24 – The rights of the child United Nations Convention on Rights of the Child

Emails between ME and UKBA (check previous posts for my whinning emails) – Particularly: * Human Rights Submission Letter * Letter from Rob Whiteman – RE Human Rights (1st May 2013) – He states human rights will not be taken into account… *Note my husbands email to rob whiteman on 1st may 2013 – include URL’s to my husbands services…

Freedom of Information Requests “““““““““““““““` Importance of Play for children under 8 – DE787389 attachment.doc

Mental Health of Children from seperated Parents (Also see the additional information): http://www.ons.gov.uk/ons/about-ons/what-we-do/FOI/foi-requests/people-and-places/mental-health-of-children-from-separated-parents/index.html

Local Authorities (again, check out WDTK):

* Framework for the Assessment of Children in Need * Framework for the assessment of children in need and their families – pack Available here: http://webarchive.nationalarchives.gov.uk/20130107105354/http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_4008144

The Home Office: ““““““““ *** 27354 – Annex A: Guidance on Zambrano and Article 8 “““““““““““““““““““““““““““` – Zambrano and Dependancy *Shows the Home Office do not give the applicant a chance to supply sufficient evidence.* – Derivative Right of ResidenceCertificate of Application = Information regarding a Certificate of Application – RE other laws which the Home Office refused to respond to (Carpenter. C109, Singh, ETC)

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