Month: July 2018

Appeal allowed after a lengthy long-distance relationship reunited

Sterling Law have successfully represented a client in a complex appeal case, and helped to challenge the Home Office’s refusal of our client’s EEA Family Permit application.

In the present case, the Home Office sought to argue that the marriage between the appellant and her EEA national spouse was “a marriage of convenience”, contracted for the sole and predominant purpose of gaining an immigration advantage. The Home Office was not satisfied with the applicant’s evidence submitted, such as their marriage certificate.

Moreover, the fact that there is a substantial age gap between the couple, the Home Office further suspected the scum marriage.The application to join as a family member of the EEA was then refused by the Home Office, subsequently an appeal was prepared by Sterling Law based on the  evidence, which shows the frequency of travelling of the sponsor to the home country of the appellant, photographs, supporting letters from close friends and family.

The Appeal was allowed, and the Immigration Judge noted that the sponsor had given credible evidence, supported by the documents prepared.

Should you have any further questions, or think any of the above may apply to your matter, please do not hesitate to contact us directly:

 

Nollienne Alparaque 

Email: nollienne@sterling-law.co.uk

Tel. +44 (0) 20 7822 8535

Mob. +44 (0) 0781276 9389

Immigration Assistance

For expert advice and assistance in relation to your particular immigration case, please contact our immigration lawyers on Tel. +44(0)20 7822 8535, Mobile / Viber: +447463382838, or via our online appointment booking form.

Is initial coin offering (ICO) regulated in the UK?

ICO: FCA’s Regulatory Position

The Financial Conduct Authority (FCA) does not offer a universal criteria to determine  whether an Initial Coin Offering (ICO) falls under its  regulatory reach.  According to the FCA, a  this can be decided only on a case by case basis.   As a result, a multitude of ICOs are not subject to the FCA’s clearance. However, due to a variance in structure, ICOs often involve regulated investments. At the same time, the firms which are  a part of the ICO process may also be subject to regulation.

The UK Regulatory Position

ICO participants often see a lack of regulatory barriers as a primary attraction of carrying out the ICO in the UK. Whilst the ICO regulatory framework in the UK is non-existent (both the concept and its terminology), the perception that all ICOs are unregulated is a misconception.

Due to a consumer warning concerning ICOs, the FCA identified certain similarities between ICOs and IPOs in September 2017. Thus, crowdfunding, collective investment schemes, and private placement of securities were identified as facets of ICOs which fall under the existing legislation.

Authorisation of ICOs is subject to whether it involves activities falling under the regulated guidelines. These include dealing, arranging transactions, providing financial services or advisory services for the investment industry in the UK.

All regulation and categories are set out under the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 (SI 2001/544).

Regulated Activities

Section 19 of the Financial Services and Markets Act 2000 (FSMA) sets a general prohibition:

a person may not carry on a regulated activity in the UK, or purport to do so, unless they are either an authorized person or an exempt person.

Thus, any person who seeks to carry out activities which are in breach of the general prohibition, as described in FSMA, are liable for prosecution that may lead to a maximum of two years in prison or a fine. Moreover, agreements may be made void if entered into by parties who act in breach of the general agreement or without the necessary permission. Failure to adhere to the general prohibitions could result in compensatory requirements to be paid out to investors who have purchased tokens.

Promoters of an ICO may require authentication depending on whether the offering will involve  activities that are regulated: dealing, advising or arranging transactions, in the context of the UK commercial sector and in relation to specific investments. These categories of investments are outlined within the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 (SI 2001/544).

Below are some of the most frequently used specified investments within an ICO and the regulated activities that may be undertaken with regard to them:

  1. Collective investment schemes.

Collective investment schemes (CISs) are defined as specified investments as under section 235 of FSMA. They are, according to section 235, any arrangement with regard to property under any description, including money. The purpose of CISs is to enable participants to derive profits or income that is brought about by the CISs are specified investments and are defined in section 235 of FSMA as any arrangements with respect to acquisition, management, holding, or disposal of property or dividends thereof.

  1. Alternative Investment Fund. Alternative investment funds (AIF) are a collection of investment undertakings that serve to raise funds from a plural of investors. The purpose of AIFs is to allow investors to provide capital for a defined investment policy with the expectance of future dividends or economic gain. A token is subject to the AIF regulations depending if it engages in activities that fall under the general guidelines of FSMA.
  2. Electronic money. The tokens that are issued under the investment guidelines of an ICO may be considered as a form of electronic money. Electronic money may be defined under the following criteria:
  • Provide the means of payment for certain transactions
  • Accepted by any individual or legal entity, other than the token founder(s).

Issuing electronic money is regulated under the FSMA guidelines. However, utility tokens satisfy the aforementioned conditions, apart from the case where  the tokens are issued as a refund for cryptocurrency payment.

Marketing of ICOs

There are restrictions of marketing an ICO, which must be well governed.

Financial promotions

Section 21 of FSMA states clearly that “a person must not, in the course of business, communicate an invitation or inducement to engage in investment activity unless the promotion has been made or approved by an authorized person or it is directed at a person who falls into one of the exempt categories of recipient and meets a series of tests.”

Misleading statements and impressions

With regards to specific investments, section 89 and section 90 of the Financial Services Act 2012 cover misleading statements and misleading impressions respectively. These apply to issued whitepapers and any other marketing endeavors partaken by the token issuers.

Furthermore, section 89 of the 2012 Act also states that

a token issuer will commit a criminal offence if it knowingly or recklessly makes a materially false or misleading statement, or dishonestly conceals any material facts, with the intention of inducing, or it is reckless as to whether it might induce, another person to enter into, or to refrain from entering into a relevant agreement, for example, an agreement to subscribe for tokens.

Moreover, section 90 of the 2012 Act provides the basis for prosecution:

whereby a token issuer will commit an offence if, among other things, it creates a false or misleading impression as to the market in, or the price or value of, a relevant investment in order to induce another person to acquire or subscribe for investments such as tokens.

Token issuers are required to remain attentive to the common law liabilities – even if the token does not fall under specific investment regulations. Thus, civil liability may come to the force in case of the misleading  marketing materials, activities, or omissions. Any public material that contains misinformation or deceit, leads to criminal and civil liability for an offense deriving from  deception or misrepresentation.

Appeal allowed after Home Office refuses EEA Residence Card for Brazilian National

A new successful case came out recently after the decision by the First-tier Tribunal.

The case concerned a family couple, where a Brazilian national married an EEA national. The appellant entered the UK, with the EEA national, on the basis of her Brazilian marriage certificate. Subsequently, the wife applied for a residence card as a family member of the EEA national and were refused by the Home Office.

Sterling Law appealed the decision of the Home Office, who considered their marriage to be one of convenience and, therefore, refused the residence card and ordered the appellant’s removal from the UK.

The refusal was based on the fact that the marriage certificate was not sufficient proof of the existence of a genuine marriage, or relationship.

The couple were expected to provide evidence of financial ties and cohabitation throughout their relationship. Further issues arose on the day when the Home Office team visited the couple’s property, which the appellant shared with her husband and parents-in-law.

Immigration lawyer, Nollienne Alparaque acted on behalf of the client and clarified that when the Home Office team visited the appellant’s property, there was miscommunication between the officers and the appellant’s friend, who spoke very little English, and could not properly confirm the name of the appellant’s spouse. Moreover, there was no any evidence reporting the visit by the Home Office team.

As to the alleged lack of financial ties, it has been argued that the appellant could not open a bank account, because the Home Office had her passport.  The couple had demonstrated active communication through Facebook, phone calls and messages before they got married in Brazil.

To conclude, the decision of the Home Office to refuse the residence card was found not to be in accordance with the EEA Regulations 2016, and the appellant was entitled to the residence card as an EEA family member.

Immigration Assistance

For expert advice and assistance in relation to your particular immigration case, please contact our immigration lawyers on Tel. +44(0)20 7822 8535, Mobile / Viber: +447463382838, by e-mail: contact@sterling-law.co.uk or via our online appointment booking form.

An Employment Law Victory – Substantial Compensation Achieved for Our Client

Sterling Law’s Employment Solicitor, Kuldeep Clair, dealt with a case over the past six months this year which resulted in a significant victory for our client.

Our British-born client had been working remotely in Latvia for a northern English company for almost 10 years. He resigned in December 2017 after serious allegations of negligence and incompetence were made, and his pay was cut by 25%.

We represented our client since after the resignation, and suspected that other motives were at play in the business’s very heavy-handed approach. The employer held out against any offer of compromise, and refused to take part in ACAS conciliation, both before and after tribunal proceedings were eventually issued.

The employer was represented by a large northern law firm; one of the most reputable and well-regarded commercial law firms in the country, and the tribunal hearing was set for today at Manchester Employment Tribunal. The employer resisted our claim with every argument possible, including the suggestion that English law did not apply to the employment contract, as our client was based abroad. This was legally nonsensical.

Eventually, we managed to obtain the five-figure sum satisfactory settlement that we were holding out for, at, would you believe, 5.55pm, two days before the hearing date. So the hearing did not prove to be necessary.

Our client was delighted with the outcome, although it was a pity that he had already made the journey all the way to Manchester from Latvia, and we had allocated our time for the hearing, and made our travel plans, bought our train tickets etc, by then.

It shows the value of tough negotiations where you have a good claim, which is presented and argued well by your lawyer, both in the documentation and the witness statements.

If you have any employment disputes and require a top quality legal advice on any employment matter, whether you are an employer or employee, please contact Kuldeep S. Clair, Consultant Solicitor and Advocate, directly:

Email: Kuldeep@sterlinglawyers.co.uk

Mobile: 07484 614090

Tel. 020 7822 8599

Court of Justice of the European Union rules that Surinder Singh applies to extended family members

In a recent judgement in the case of C‑89/17 Banger v UK, the Court of Justice of the European Union held that the rights of unmarried partners of British citizens who return to the UK having exercised Treaty rights in another EU country are also covered by Article 21(1) TFEU.

Rights of Extended Family Members

The Court ruled that Surinder Singh principles must be interpreted as requiring the Member State of which a Union citizen is a national to facilitate the provision of a residence authorisation to the unregistered partner, a third-country national with whom that Union citizen has a durable relationship that is duly attested, where the Union citizen, having exercised his right of freedom of movement to work in a second Member State, […] returns with his partner to the Member State of which he is a national in order to reside there.

In other words, the Court held that under EU law the rights of extended family member of British citizens who have returned to the UK after exercising Treaty rights in the EU member states, have to be interpreted so as to facilitate free movement and therefore falls within the scope of Article 21(1) TFEU.

Another important aspect of the judgement in Banger is that it implies that the UK’s decision to remove appeal rights from extended family members is unlawful.

The Court ruled:

Article 3(2) of Directive 2004/38 must be interpreted as meaning that the third-country nationals envisaged in that provision must have available to them a redress procedure in order to challenge a decision to refuse a residence authorisation taken against them, following which the national court must be able to ascertain whether the refusal decision is based on a sufficiently solid factual basis and whether the procedural safeguards were complied with. Those safeguards include the obligation for the competent national authorities to undertake an extensive examination of the applicant’s personal circumstances and to justify any denial of entry or residence.

Currently, extended family members do not have a right of appeal against Home Office decisions and therefore the only available remedy open to them is judicial review. The decision in Banger implies that this does not provide extended family member with a sufficient redress procedure. It therefore seems likely that appeal rights of extended family member will be reinstated following the judgement in Banger.

Reinstatement of Appeal Rights

In light of this, it may be the case that if you were previously denied a right of appeal as an extended family member of an EEA national, your appeal rights could be reinstated.

Should you have any further questions, or think any of the above may apply to your matter, please do not hesitate to contact us directly:

Oksana Demyanchuk

Email: oksana@sterling-law.co.uk

Tel. 020 7822 8535

 

Michael Carter

Email: michael@sterling-law.co.uk

Tel. 020 7822 8535

 

Immigration Assistance

For expert advice and assistance in relation to your particular immigration case, please contact our immigration lawyers on Tel. +44(0)20 7822 8535, Mobile / Viber: +447463382838, or via our online appointment booking form.

Requirements for indefinite leave to remain on the basis of long residence in the UK

Those migrants who have accrued 10 years’ lawful residence in the UK may be eligible to apply for indefinite leave to remain (settlement).

However, simply residing in the UK lawfully for 10 years continuously is in itself not sufficient to be eligible for indefinite leave to remain on this basis.

Indefinite Leave Requirements

In order to qualify for indefinite leave to remain based on long residence, the following requirements must be met by Applicants.

Firstly, an applicant must have valid leave to remain in the UK at the time of application. In other words, an Applicant must be lawfully resident in the UK when they make an application for indefinite leave to remain on the basis of their long residence. This leave can be in any immigration category.

Applicant must also have been in the UK for 10 years lawfully and kept to the terms and conditions of their visas. It is possible to combine periods of leave in any immigration category when applying on the basis of long residence. However, it is important that, firstly, there are no gaps between visas that may break an Applicant’s continuous residence, and, secondly, the Applicant complied with the terms of all their visas while in the UK.

Secondly, if and Applicant is aged 18 to 65 years old, they must meet the knowledge of language and life (KoLL) in the UK requirements. All those applying for indefinite leave to remain (ILR) under a route which requires KoLL, must meet both parts of the requirement, unless they are exempt because of their age or because of a physical or mental condition.

There are two aspects to KoLL, namely knowledge of language and knowledge of life in the UK, that must be met by an Applicant applying to settle in the UK.

Finally, and most importantly, Applicants must be able to demonstrate that they have continuously resided in the UK. In the case of R (Nesiama & Ors) v Secretary of State for the Home Department [2018] EWCA Civ 1369, the Court of Appeal recently gave guidance on what constitutes “residence” in the UK.

Physical Presence

In this case the Court of Appeal found that “residence” in the UK means “physical presence” in the UK.

It was argued in the above case that “residence” should be assessed taking into account factors such as property, payment of taxes and other connections to the UK, rather than simply “physical presence”.

However, the Court of Appeal was not convinced by this argument and held that in order to be considered resident in the UK, an Applicant needs to be physically present in the UK. Therefore, excessive absences, other than are for the purpose of assisting with a national or international humanitarian or environmental crisis overseas, or due to “serious or compelling reasons”, can effect an application for indefinite leave to remain regardless of whether an Applicant’s home is in the UK.  

Therefore, it is advisable to seek professional legal help before making any applications for indefinite leave to remain based on your long resided to ensure you do in-fact qualify.  

Should you have any further questions please contact our legal advisers directly: 

Oksana Demyanchuk

Email: oksana@sterling-law.co.uk 

Tel. 020 7822 8535

 

Michael Carter

Email: michael@sterling-law.co.uk

Tel. 020 7822 8535

 

Immigration Assistance

For expert advice and assistance in relation to your particular immigration case, please contact our immigration lawyers on Tel. +44(0)20 7822 8535, Mobile / Viber: +447463382838, or via our online appointment booking form.

EEA Retained Right of Residence Appeal Allowed

Oksana Demyanchuk and her team at Sterling Law were successful in yet another appeal in relation to Regulation 10 of the Immigration (European Economic Area) Regulation 2016.

Regulation 10 deals with non EEA nationals who have retained their rights of residence in the UK following the breakdown of their marriage to an EEA national. In the present case, the Home Office sought to argue that the relationship between the Appellant and his former EEA national spouse was a sham based on a visit conducted by Immigration Enforcement to his home.

Following the visit, Home Office was not satisfied that the relationship was genuine because of a limited contact, and that the Appellant had failed to provide adequate documentation to evidence the same.

The Appellant’s application for a Residence Card was then refused by the Home Office and so an appeal was lodged by Sterling Law.

The Immigration Judge allowed the appeal noting that

The Appellant’s documentation submitted in support of the appeal fully addressed and countered the Respondent’s objections.

The Judge further clarified that he found the reasons for the refusal were not legal, not valid and not factually correct.

Because of this the Judge proceeded to allow the appeal at the hearing, finding that the Appellant was entitled to a Residence Card.

Immigration Assistance

For expert advice and assistance in relation to your particular immigration case, please contact our immigration lawyers on Tel. +44(0)20 7822 8535, Mobile / Viber: +447463382838, by e-mail: contact@sterling-law.co.uk or via our online appointment booking form.

Sponsorship Certificates Update: Tier 2 Minimum Salary Threshold Reached £60,000

On 29 June 2018, the Home Office published an update on allocations of restricted certificates of sponsorship.

According to the official statement, the June allocation meeting took place on 11 June.

All valid applications received by 5 June were successful if they scored at least 60 points which means the Tier 2 cap salary threshold reached the record figure of £60,000.

The figures on the number of allocated sponsorship certificates is available on the Home Office’s web-page as at 28 June 2018. The next monthly allocation meeting date is 11 July 2018.

Recent changes to the Immigration Rules: Tier 2 General 

Changes have being made to exempt doctors and nurses from the Tier 2 (General) limit. This is in response to the particular shortages and pressures facing the NHS at the current time, and the fact that the limit has been oversubscribed in each month since December 2017.

These changes to the Immigration Rules will come into effect on 6 July 2018.

For more details, please feel free contact our please contact our immigration lawyers on Tel. +44(0)20 7822 8535, Mobile +44 (0) 73 0598 9936, by e-mail: contact@sterling-law.co.uk or via our online appointment booking form.