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Aug 8, 2023, 11:44:13 AM8/8/23
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This thread is for discussions on the Court of Appeal

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Aug 8, 2023, 11:57:32 AM8/8/23
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My thoughts on the Celik v SSHD decision (July 2023)

Issue 1 - Judicial Reviews

The judges said that at least one of the issues raised are best dealt with via judicial review.  Many of the issues faced by Zambrano carers in their EUSS refusals should probably be raised via judicial review.

Judicial reviews are almost never won by litigants in person. Many Zambrano carers are litigants in person either because they can't afford to pay for a solicitor and barrister, or they qualify for legal aid, but can't find a lawyer willing to represent them. 

As such,  Zambrano carers may struggle to win their judicial review cases, particularly if they are litigants in person. Also, the First-tier Tribunal and Upper Tribunal judges seem to have more experience dealing with litigants in person. So, although the FtT and UT are not the places to discuss certain issues, they are the better option for litigants in person.

It seems the best thing may be for Zambrano carers to get together and file a judicial review as a group.  They have a better chance of finding a solicitor and barrister.  I am really not sure about the cost implications, but it may be that if at least one person qualifies for legal aid, then that should be enough to file a claim. 

Issue 2 - Human Rights

Celik's legal team submitted that the Home Office's refusal violated Article 8 of the European Convention on Human Rights. The Court of Appeal said that Article 8 of the ECHR applies to the Immigration Rules. Celik applied to the EUSS under Appendix EU of the Immigration Rules. The Court of Appeal appears to be saying, that because Celik has the option to apply under Appendix FM of the Immigration Rules, that his human rights were not violated. 

This position seems to go against what the ECHR says. ANY DECISION for which human rights is a question should be considered in light of the ECHR. The decision in question fell within Appendix EU. Therefore, human rights balancing exercise should have been applied to the Home Office's refusal under Appendix EU. The fact that Appendix FM exists, does not relieve the judge from considering Celik's human rights under Appendix EU.

Second, the judge ignores the substantive differences between Appendix FM and Appendix EU. The two schemes are not interchangeable.  Celik could have to remain under Appendix FM for the next 10 years or so and pay thousands in fees before he qualifies for permanent residence. Had he won, under Appendix EU, he would likely would have been granted residence within the next 3 years without having to pay anything. 

It will be interesting to see if he challenges the decision to the Supreme Court. 

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