Month: March 2019

Appeal allowed for a further leave to remain based on private life in the UK and financially dependent child

Nollienne Alparaque and the team were recently successful in an appeal case in the First-tier Tribunal.

In this case, the client has appealed against the refusal for a further leave to remain in the UK, in which they heavily relied on their private life in the UK and their financially dependent child of 20 years of age. The applicant is financially self-sufficient and has owned her business for over ten years. The client’s son is a University student, who failed to obtain a student loan to pay his university fees, as he did not have a three year visa. Due to not being able to finance his own education, as he has no savings and assets, the client’s son seeks full financial support from his mother during his university years.

The judge has considered the fact that the applicant’s son has been living with his mother before going to university, and continues to do so throughout his university years, as he is wholly reliant on his mother and does not lead an independent life. Furthermore, it was found that there is a clear financial and emotional dependency enabling the applicant’s son to complete his education without the applicant’s support. The judge noted that if the client had to leave the UK, she would not be able to run her business, which would make it no longer possible to generate the income required to support and pay for her son’s university education.

The outcome of this appeal was successful, as the judge ruled that under those circumstances it would be a breach of the right to a family life and the client’s son would be deprived in the event of his mother’s removal from the UK to pursue his education and career.

Domestic violence – Indefinite Leave to Remain

A VICTORY FOR OUR CLIENT IN THE FIRST-TIER TRIBUNAL

Our lawyers won the appeal regarding indefinite leave to remain in the UK on the human right grounds.
Our client, a national of the Russian Federation, has lived and worked in the UK as a consultant for more than 3 years. Throughout her leave she held a spouse visa under the Immigration Rules (part 8, Appendix FM) as she was married to a British Citizen who is settled and present in the UK. The client had a complicated relationship with her British spouse (former), she was persuaded by former husband to apply for the spouse visa rather than a working visa that was also an option at that time. Our client’s spouse had regular mood swings, behaved with the client aggressively from time to time, forced her to leave the matrimonial house against her will and even forced her to make an act that was against her religion. Also, the client’s husband threatened to inform the Home Office that their marriage is over if she did not follow his instructions. After these events, our client had mental problems, was in continuous grief, sadness, stress, and regret; could not work properly. In addition, she suffered financial abuse since she was forced to transfer money into the spouse’s account, most notoriously, former husband did not give access to that funds.
Our client made an application for indefinite leave to remain in the UK as a victim of domestic violence that was initially refused by the Home Office, and she had been divorced 5 months before the final hearing.
In the Appeal case, our team provided the successful representation of domestic violence. The appeal was allowed and the right for indefinite leave to remain as a victim of domestic violence was granted.

Fully Qualified Practice Accountant

Fully Qualified Practice Accountant 24 hours (Part time) (£40,000-50,000 p.a. pro rata)

Job Description

Sterling Beanland is an accountancy practice based in the heart of London, Blackfriars. Due to the fast-growing team, the company requires a professional with outstanding leadership skills, great motivation and significant experience in the financial industry who will take over and lead the team to success.

Overview

This role would suit a qualified Chartered Accountant or Client Manager with 3 years Practice experience, who is able to work efficiently and support your clients, you will need excellent attention to detail and be able to respond quickly to queries and think on your feet. The role will mainly be dealing with statutory accounts, SA Returns, dealing with tax & HMRC, and other stakeholders. You will likely have a varied background working in an accounting firm with sole traders, partnerships, corporate accounts as well as personal tax, business tax and corporate tax. You will be personable in front of clients and able to build strong relationship with all kinds of clients. You will be fully qualified accountant ACCA/CTA/ATT /ACA etc. qualified.

 

Requirements:

Minimum of 3 years’ experience in practice
ACA, CTA, ATT or ACCA qualified
Strong communication skills
Excellent customer service skills
Excellent knowledge of Taxation
Knowledge Xero, Quickbooks, Taxfiler, Taxcalc

Position Remuneration

Salary of £40,000 – £50,000 p.a pro rata dependant on skills and experience
Ongoing training and career development
Pension scheme

Domestic Violence Retained Rights Appeal Allowed!

Another fantastic result from Oksana Demyanchuk and her client after another successful appeal to the First-tier Tribunal.

The client, in this case, came to Sterling & Law Associates LLP after her marriage to an EEA national had broken down on grounds of domestic violence. Accordingly, an application for a residence card on the basis of the retained right of residence was made to the Home Office.

However, this application was refused as the marriage between our client and her EEA national Sponsor has not lasted for at least 3 years and the Home Office was not satisfied that our client had been a victim of domestic violence as there was little documentary or no independent evidence to corroborate our client’s claim to have been the victim of domestic violence.

Accordingly, Oksana lodged an appeal to the First-tier Tribunal against the decision of the Home Office, asserting that the client’s claim to be the victim of domestic violence was credible and therefore the Home Office decision was unlawful.

As is often the case in matters involving domestic violence, our client had little tangible evidence to demonstrate that they were a victim of such violence. Therefore, Oksana has placed particular attention and emphasis on the witness statements in the appeal.

The Judge, accepting that evidence in cases of domestic violence is not always available, found that the evidence of our client and witnesses was credible and gave a detailed picture that our client was, in fact, a victim of domestic violence. In doing so the Judge noted the following:

“I am not confined or restricted to independent documentary evidence such as that which the respondent may usually seek in cases involving or alleging domestic violence. The absence of police and medical reports are not necessarily indicators that the appellant did not suffer or was not the victim of domestic violence.

There are a whole host of reasons why those who suffer domestic violence, and especially women victims of male perpetrators, are reluctant to report to the police and the authorities that they are such victims. The reasons can be multifarious and complex and this is well documented in much research and studies in the area of domestic violence.

Appeal allowed for refusal of permanent residence as derived from being an EEA national exercising treaty rights in the UK for a continuous period of 5 years

Under Regulation 15 of the Immigration (European Economic Area) Regulations 2016, EEA nationals and family members of EEA nationals acquire the right of permanent residence after residing in the UK and exercising treaty rights for a period of at least 5 continuous years. Sterling law represented clients who were refused the right of permanent residence in the UK on this basis. The first appellant was an EEA national who was denied these rights along with their third-party national spouse who was refused the right of permanent residence as the spouse of an EEA national.

It was said that the reason for refusal was that the main appellant had not satisfied that they were exercising treaty rights for a continuous period of 5 years.

The bundle prepared by Sterling Law on behalf of the appellants showed that the reasons for refusal were unfounded. It was proved that the main appellant satisfies and had established treaty rights as an EEA worker in the UK. Evidence was provided by way of bank statements and pay slips for a period of just over 5 years. It was also found that the appellant was a job seeker as established by Hoekstra (nee Unger) case 76/63 (1964) ECR 177 which held that the EU law protected the ‘present worker’ but also ‘one who has left his job, and is capable of taking another’, as the main appellant was unemployed for two months within the 5 year period. It was also found that the second appellant (as the spouse of the main appellant) also exercised their treaty rights in the UK by proof of residence and employment for a period of 5 years and therefore is also entitled to permanent residence.

INVESTIGATING MISCONDUCT – How important is a proper investigation after an allegation of misconduct at work?

Kuldeep S. Clair, our senior Consultant Solicitor in Employment Law and Civil Disputes offers his views: 

In employment cases, it is generally crucial for there to be a fair investigation before an employee is dismissed for an allegation of misconduct. All relevant evidence must be heard. The employer must show that he has not acted unreasonably, or for underhand motives when dismissing. The reason and evidence should be clear, or at least as clear as it is possible to be, in the circumstances.

A warning should generally also only be given after an investigation which is proportionate to the seriousness of the wrongdoing which is being alleged.

A recent case in the Employment Appeal Tribunal demonstrates how this is a soft, and case-by-case principle, last week, in the case of Beattie v Condorrat War Memorial & Social Club. The claimant employee had been dismissed after the employer took into account a previous written warning which had been given without a full detailed investigation. The claimant challenged the earlier warning as being unfair on procedural grounds. Part of those grounds was justified in principle.

The tribunal held that the dismissal was basically unfair, but that her damages ought to be reduced to zero, on the basis that the result would have virtually certainly been the same, even if a proper investigation had been carried out.

This is what is known to employment lawyers as a ‘Polkey reduction’ to the compensation. In this case, the reduction was by 100%. (It is possible for a reduction to be of any percentage that the tribunal believes is just.)

The Employment Appeal Tribunal also upheld the earlier tribunal’s decision of awarding no damages. It said that it was not appropriate in this case for the tribunal to start questioning the earlier decision of the employer to issue the warning. The tribunal should only be concerned with the decision in front of it unless it was obviously completely perverse. But in this case, the employee had accepted at least some responsibility for the offense for which she had received a warning.

Citing the above case probably makes a client little wiser about what to do in an individual situation. But it highlights the need for advice, based on fundamental principles, being tailored to the individual situation every time.

 

Kuldeep S. Clair

Consultant Solicitor

Employment, Dispute Resolution, and Litigation

Sterling Lawyers Limited

(usual contact details inc mobile no.)

EU National’s Children and British Passports

Since the June 2016 referendum, when most British voted for Brexit, EU nationals became concerned about protecting the interests of their children and started to look for options of securing a UK passport. Let’s get into more details.

According to the general rule, children born in the UK automatically acquire a British passport. However, depending on the date the child was born different rules might apply.

For instance, those children who were born in the UK from October 2000 to April 2006 must prove that one of their parents held permanent residence or indefinite leave to remain/enter at the moment they were born. Only, in that case, they will be able to get a British passport. Permanent residence card or a letter from the UK Visas and Immigration are enough evidence to be provided to the British immigration authorities. However, most parts of EU nationals did not apply for such documentation, mostly because of the lack of immigration law knowledge, so their children losses the right to obtain a British passport automatically. Such a pity, but due to non-acquaintance the parents will have to apply on behalf of their children and register them as British citizens.

 

Those, who were born after April 2006 can obtain British passport if they can prove that their parents were exercising Treaty Rights by residing in the UK for at least of 5 years before the child was born. EU parents who have not completed 5 years residence in the UK prior to giving birth will withdraw their children’s right to become British at birth. Nevertheless, this category of children will have a right to register as British citizens following the terms and conditions of the British Nationality Act 1981. It should be noted, that such application is rather high-priced and would cost nearly GBP 1000.

We often get lots of questions from the clients in the cases, where one child (usually the eldest one) was born outside the UK and the youngest – in the UK. In that case, the younger child will have two options: either to be British at birth or to register through automatic entitlement, which was described in the previous paragraph.

Holding British citizenship, you can always come back to the UK to live, study or work. As parents are highly concerned about their children education, you can get a British education, which is undoubtedly one of the most efficient in the world. Sure enough, British passport is one of the most beneficial nowadays and can be counted as a great investment into your child’s life providing lots of advantages and opportunities for a better future.

The royal engagement indicates how difficult it is for British citizen to get married with the foreigner

Many of British citizens, who want or ever wanted to wed a foreigner felt some sympathy for Prince Harry and his American fiancée Meghan Markle last year. Since 2012 it has become more difficult for the British to marry foreigners. There are various reasons for that. The first and foremost, an expensive test has caused many obstacles for British willing to connect their lives with the foreigners. Prince Harry was not an exception, he had a long interview with the Home Office. Also, Ms. Markle will not be able to avoid the procedure that most other foreign brides have to go through.

 

We believe that the first step for her is to obtain a fiancée visa, which will unite the couple and let them live together after the wedding. After that, Ms. Markle will be eligible to submit an application for leave to remain. Thereafter, she might be able to apply for a permanent residence after having resided in the UK for 5 years. Of course, this all is possible, if she will successfully pass the British life test. Another difficulty that we should admit, that this is a rather costly procedure and not many people can afford it. Roughly, it would cost nearly GBP 7000 all in.

 

However, not only foreign fiancée has to suit endless requirements for being able to become the wife of a British citizen. British husband/wife will have to pass a minimum income threshold. According to the new rules, a British national who wants to connect life with the foreign partner must have an income of approximately GBP 18,6000 a year. Saying from the start, 40 % of British citizens would not be able to pass this threshold, as their income is much less. The most interesting fact is that Prince Harry may also fail to succeed in this test, as since leaving the army in 2015 he has not done much work, but charity. Even so, they were able to get married due to having over GBP 62,000 of savings – this is what saved the legal part of their marriage.

 

Let us provide some statistics – in 2010 almost 41 thousand fiancée visas were granted, but 6 years later when the new rules came in, only 29 thousand of the lucky got a visa. This is a significant difference when more than a quarter of applicants were rejected. Rules on getting fiancée visa are getting tightened, which leave no other choice for British nationals but to give up their dreams to wed a special citizen of nowhere.

Entrepreneur visa will no longer exist & changes to the investor route

Significant changes are happening to the Entrepreneur and Investor visa. Tier 1 Entrepreneur category will no longer exist from 29 March 2019, while Tier 1 will undergo significant changes.
 
The immigration minister says that the Entrepreneur route “has a long tail of low-quality projects which contribute little or nothing to the wider UK economy”.
 
In place of the entrepreneur comes the innovator:
 
The Innovator category is intended for more experienced business people. As well as an endorsement, applicants will need £50,000 to invest in their business from any legitimate source (reduced from £200,000 for most applicants in the current Tier 1 (Entrepreneur) category). The funding requirement will be waived for those switching from the Start-up category who have made significant achievements against their business plans. The category may lead to a settlement in the UK.
 
Again, the new Appendix W gives the details. The three main endorsement criteria are defined as follows:
 
Innovation: the applicant has a genuine, original business plan that meets new or existing market needs and/or creates a competitive advantage.
Viability: The applicant has the necessary skills, knowledge, experience and market awareness to successfully run the business.
 
Scalability: There is evidence of structured planning and of potential for job creation and growth into national and international markets.
 
Note that these are slightly different from the requirements for start-up visas, although the three headings are the same. The endorser must also be “reasonably satisfied that the applicant will spend the majority of their working time in the UK on developing business ventures”.
 
Unlike with the exceptional talent visa route, there is no set list of organisations that can endorse someone for an innovator visa. Endorsing bodies must be able to satisfy the criteria in Part W6.8, though.
 
Extension applications for Tier 1 (Entrepreneur) migrants will remain open until 5 April 2023, and settlement applications until 5 April 2025.
Contact us should you have any questions.
Ruslan Kosarenko
Senior Partner
info@sterling-law.co.uk

BASIC GUIDANCE ON CHALLENGING HOME OFFICE CIVIL PENALTY NOTICE

Penalty Notice, two words but so much damage. Businesses suffer from lower reputation, fines are expensive, and the competitors are thriving. Failure to conduct the lawful immigration checks leads to the issue of the penalty notice. There are many real-life examples regarding this matter and even more regarding other cases.

So, What is a Civil Penalty Notice?

It is a Document issued by  the Home Office, informing the organisation that they employed a person who has no legal right to work in the UK. The Civil Penalty regime was created to ensure employers comply with the UK’s immigration laws and regulations. It is set to punish both, the illegal employees and the organisation that hired them. Many employers received civil penalty notices by unknowingly hiring illegal immigrants, meaning that they have failed to complete the correct Right To Work checks. If that occurs, fines can go up to 20,000£ per worker. This is a big fine that can even end some organisations. Employers who in fact knew that they were hiring an illegal immigrant face up to 5 yeas of imprisonment and an unlimited fine.

Grounds for challenging a Civil Penalty Notice

Each organisation has 28 days to respond to the penalty. It starts with an employer making a formal objection to the Home Office. If an employer has grounds for a challenge and evidence to support their case , the fine may be reduced or withdrawn at this stage. If this fails, an appeal can be made to the court.

The ‘Statutory Excuse’

An employer who can prove they carried out correct Right To Work checks on an employee named in the Civil Penalty Notice has a ‘Statutory Excuse’ and does not have to pay the fine.

That is why it is so important to complete the Right To Work checks and have a robust compliance system in place. If the employer has completed the checks and has evidence proving so , they may not be required to pay the penalty. Even further, the Immigration Enforcement will not publish businesses name, reducing the reputation damage.

Employers have to understand that Immigration Law is what everyone has to follow. Employers must ensure that Right To Work checks are complied with and the evidence is retained. Objecting to the notice and processes following that are worse then just simply following the Home Office requirements.