Author: Sterling Law

Sterling Law at Jessup competition 2019

Very important event for Sterling Law will take place on the 15-16th of February. One of our Associates Nozima Rakhimjonova will be a judging at the United Kingdom National round of Phillip C. Jessup competition – the world’s largest moot court contest.

The Jessup competition has been held every year since 1960. It is designed for law students, where participants receive a hypothetical legal dispute between countries. Teams shall prepare written and oral pleadings for the applicant and respondent. It is a simulation of a real court hearing before International Court of Justice. Evidently, judicial organ of the United Nations consists of panel of judges, one of whom will be our prominent Associates Nozima.

Ms.Rakhimjonova holds a law degree from the University of Westminster and Master’s degree in International Business, Corporate and Finance Law at the Liverpool John Moores University, both courses were completed with distinction. Nozima deals with various cases in the sphere of commercial litigation, dispute resolution and contracting matter under supervision. Being an Associate for Sterling Law, Nozima successfully represented number of cases related to civil, commercial and immigration matters. She regularly produces publications for prestigious editions.Also, Nozima is a member of the Inner Temple – professional association for barrister and judges in London.

Sterling Law is proud to be working with such prominent legal team!

Legal impact of ‘Brexit’ on the United Kingdom

The result of the British referendum, also known as EU referendum, established a new reality, in which almost 52% of the British voted for “Leave” the European Union membership. However, the official withdrawal from the EU is planned on March 2019. Terms and conditions of ‘Brexit’ still remain unknown, but it obviously will be impossible to avoid significant changes in laws, regulations, taxes, court jurisdictions, whatever form ‘Brexit’ will take.

One of the AI legal companies has performed an interesting investigation using technical tools to measure the impact of hard ‘Brexit’ on British law. The results were overwhelmingly impressive.

  • Approximately 12% of UK case law will fall under reckless risk in comparison with the last year due to EU legal issues that became part of the UK cases.

  • Nearly 40-50% of UK Supreme Court judgements involve EU law, which clearly indicates that UK Supreme Court base its decisions on EU law, from which

  • over 6% of UK Supreme Court decisions were entirely based on EU law.

This was a complex research, which involved over 300,000 cases to be analyzed on the subject of EU law influence on British court system. Provided statistical results raise a considerable degree of uncertainty. However, data analysis obtained by using machine learning techniques serves as a progressive tool which can objectively improve the law.

Brexit may lead to the situation where EU case law, which British courts referred to before, will be invalid. This opens an enormous gap in litigation area. Nobody knows how long it will take to replace legal framework and judicial system in particular. The truth is that it may be very complicated to dispose of EU law, which along the decades has deeply rooted into the UK domestic legal system.

Right of residence granted to an Extended Family Member of EEA National after refusal based on insufficient evidence

Turkmenistan National has appealed against the decision made to refuse his application for a residence card as an Extended Family Member of European National who is exercising treaty rights in the UK. The client was in unmarried partnership when they applied for a residence card, which was refused on the basis that the client has not provided enough evidence to prove a durable relationship with their partner. Their relationship began and progressed as a long distance relationship due to the clients return to Turkmenistan. The client has kept in contact on regular basis and continued long distance relationship with their partner. Three years later, the client has returned to the UK and started living together with their partner.

The Home Office had refused the initial application. This was done on the basis that the Applicant has failed to evidence that their relationship with the sponsor was durable, as they failed to submit sufficient evidence to prove they stayed in contact while being in a long distance relationship. Furthermore, the Home Office argued that the evidence the client provided to prove that they started living together was insufficient, as they only provided one gas bill.

Our lawyer Nollienne appealed against this decision, arguing that the client has submitted a significant body of documents which included different identity documents, payslips of their partner showing that they are exercising their treaty rights in the UK, variety of letters proving cohabitance with the sponsor, such as bank statements, utility bills, phone bills. Also, messages and conversations between the applicant and their partner were submitted together with photographs, proving their relationship.

The Judge was satisfied with the evidence submitted, as it was heard that the client and their partner have started introductions between their family members, showing clear intent to marry. With the consideration of all of the documents submitted and the oral evidence given in court, confirmed the durable nature of their relationship. Consequently, the Judge allowed the appeal, stating that the Appellant is entitled to be issued with a Residence Card.

Nollienne Alparaque 

Email: nollienne@sterling-law.co.uk

Tel. +44 (0) 20 7822 8535
Mob. +44 (0) 0781276 9389     

Supreme Court clarifies meaning of “reasonableness” and “unduly harsh” in children’s cases

An interesting judgment was handed down in KO (Nigeria) and Others v Secretary of State for the Home Department [2018] UKSC 53 where the question of “reasonableness” and “unduly harsh” when assessing the effect of deportation on a child was answered.

It has been clearly set out in s117C of the Immigration Act 2014 that it will be in the public interest for foreign criminals to be deported, the more serious the offence the higher public interest. The prime question is – will it be “unduly harsh” to deport a qualifying child  (child with more than 7 years residency in the UK) of the foreign criminal? It was held that the Tribunal should not take into account parental misconduct but should carry out more child-focused assessment. The phrase “unduly harsh” requires focus on a more serious impact on the child, an impact that is severe. This essentially brings beneficial consequences because a child should not be held responsible for the conduct of the parent.

S117(6) of the Immigration Act 2014 focuses on those who are not liable to deportation. It is set out that the public interest does not require a removal so long as the person is a parent of a qualifying child and it would not be reasonable for the child to leave the United Kingdom. The same approach of assessing “unduly harsh” should be used to assess “reasonableness” namely the criminal or misconduct of the parent should not be taken into account.

It is enlightening to see the court provide a clear assessment that portrays the importance of the principle that children should not be held responsible for the conduct of their parents. The case of KO provides reassurance to families and properly promotes the best interest of the child.

Adult dependent relative

One of the strongest misconception related to immigration is to assume that only direct family members can apply for Family visa to the United Kingdom. Direct family members usually imply fiancé, spouse, child, parent. However, according to the UK Immigration regulations, a person can apply for Family visa if he is ‘an adult person coming to the UK to be cared for by a relative’. Care can be provided by such relatives as a parent, grandchild, brother, sister, son, daughter or others who are living in the UK.

Certainly, there is a number of requirements applied to the caregiver in the UK, namely:

  • to be living in the UK permanently;

  • to be a British citizen;

  • to be settled in the UK;

  • to have refugee status or humanitarian protection in the UK.

Adults who are eligible for this type of visa will have to prove to they are in essential need of long-term care due to a serious health condition, disability or advanced age. One of the most important requirements for the applicant is that he is not able to receive such treatment in his home-country because it is not available or not affordable. However, one limitation for the applicant is applied – he cannot claim public funds for at least 5 years period. It means that the applicant will not be able to pretend to most benefits, tax credits or disability living allowance that are paid by the state. This is the Receiving party (British caregiver) who is taking responsibility over applicant in all financial matters. To apply for Family visa as an adult dependent relative, the Applicant must be located outside the UK and the age must be 18 or over. If the paperwork was done correctly and the applicant was lucky enough to obtain a family visa as an adult dependent relative, his stay in the UK is considered as unlimited, as long as he joined British family living in the UK without a breach of continuity.

It should be noted that application process is rather complex, which requires much attention and knowledge. Applicant will have to prepare not only his personal information consisted of at least 16 documents but also nearly the same amount of documents for his Receiving party not including proof of relationship with the British caregiver. The best way to cope with the paperwork is to ask an experiences lawyer for legal assistance. This way, the applicant will be ensured that all paperwork is completed correctly, which increases chances for positive result in application consideration. Sterling Law highly recommends to request legal assistance from qualified and licensed lawyers, who have long-term practice in immigration law and will be able to find a right solution in any unpredicted circumstances.

McDonald’s loses the ‘Big Mac’ trademark

The giant of fast-food industry McDonald’s has lost its trademark “Big Mac” in EU case in favor of Irish fast food chain called Supermac’s.

Managing director of the Irish food chain Pat McDonagh received his nickname Supermac back in 1960, while being a teenager he led his team to a victory in Gaelic football match.  It must be a taste of victory he felt back then which is guiding him through life till now.

Pat McDonagh brought the case before the EU regulator two years ago, claiming that McDonald’s had not properly registered its ‘Big Mac’ trademark. Last week the European Union Intellectual Property Office accepted the claim.

McDonald’s trademarked the “Big Mac” in Europe in 1996 as a burger or restaurant name. Even though McDonald’s representatives claimed that Supermac’s was too similar to the ‘Big Mac’ burgers, they failed to show that it had been “put to genuine use in the union for the goods or services for which it is registered”. McDonald’s was disappointed with the EUIPO’s decision and said that they intend to appeal the decision. It was an undesirable loss for a company with annual revenue of nearly $22.8 billion.

Supermac’s managing director proclaimed the “end of the McBully”. He stated that “this is a victory for all small businesses. It prevents bigger companies from hoarding trademarks with no intention of using them.” Also, Mr.McDonagh revealed that the US chain trademarked the term “SnackBox” – the Supermac’s most popular products, which McDonald’s does not use. “If you have a registered trademark, you have to use it or lose it,” said Glen Gibbons, an Irish barrister and expert on intellectual property.

This is not the first case that McDonald’s have to respond to. In 2009, a Malaysian chain won the right to be called McCurry, but it took them 8 years of continuous battle with the global fast-food chain.

Indeed, this case is significant as it shows that the EU ensures a fair hearing, no matter how many billions the Corporation’s annual income and influence in the world are.

Source: The Guardian

Please contact Katsiaryna with any IP related matters:

 Katsiaryna Pazniak

katsiaryna@sterlinglawyers.co.uk

+44 (0) 207 822 8535

 

 

 

Notice pay after termination of employment – when can it be withheld?

Case study – how we recovered a significant sum for notice pay on behalf of a client recently

 Kuldeep S. Clair, our senior Consultant Solicitor in Employment Law and Civil Disputes offers his views and tells the story of one of his recent cases:

This question commonly arises particularly when an employee does not have the right to claim unfair dismissal due to short length of service. Or otherwise, it may be especially important where the employee is lucky enough to be entitled to a lengthy period of notice, or has been on a high salary.

I advised a client recently who worked with a notice period of six months, as a lecturer at one of the country’s most reputable universities. She had initially been dismissed with notice and the university had intended to pay her ‘in lieu of notice’. Within a matter of days afterwards, an allegation was made that she had breached certain confidentiality requirements after the termination of her contract and that the notice pay was to be withheld.

My client disputed any breach. I advised that the suggestion of a breach was nonsense, and I wrote to say that unless any serious evidence of a breach was brought forward by the employer’s HR department, we required payment in full. There was aggravated correspondence between me and the employer; I set out the legal principles which applied, and it did not seem that the employer was disagreeing with anything much that I said, but their HR manager seemed to regard it as a matter to be proven by my client, with the burden of proof on her, rather than on the University.

We were forced to issue a ‘letter before action’ to demand payment of the notice pay, combining my thorough employment law knowledge with my civil litigation skills. I considered that this approach would be the best in ‘upping the stakes’ and extracting payment as quickly as possible. It would also give us the right to claim interest and court costs, if the employer continued to be so obstinate. This was particularly so, given the large amount in question, a substantial five-figure sum for six months pay for a lecturer in London.

We were met with a response from solicitors instructed by the University. This was a well-known respectable ‘Legal 500’ firm with offices around the country. Although their letter was over two pages long and sought to defend their client’s position vigorously on the face of it, it ended in the final very short paragraph by surrendering to our very reasonable demand and offering to pay the outstanding salary. Our client readily accepted, was delighted with the result, and she received payment a few days ago.

Moral and conclusion of the story:

It is always a good idea to seek advice early as to your entitlement in an employment dispute:

Is there a valid wrongful dismissal claim? In this case, the answer was yes – a very substantial claim.

Is there a valid unfair dismissal claim? This is a completely different question. Here the answer was ‘no’ – and we advised our employee-client accordingly from the beginning.

Here, the employer was even seeking to recover alleged losses from my client for the so-called breaches of confidentiality that had been committed by her. Until eventually caving in totally and paying what was due to her!

And more to the point, we managed to conclude the dispute without having to resort to proceedings, although we would have issued proceedings if necessary.

 

Kuldeep S. Clair

Consultant Solicitor

Employment, Dispute Resolution and Litigation

+44 (0) 7484 61 4090

kuldeep@sterlinglawyers.co.uk

 

Permission to appeal granted: PK precedent

Permission to appeal has been granted by the Court of Appeal against the Country Guidance decision of PK (Draft evader; punishment; minimum severity) Ukraine [2018] UKUT 241 (IAC).
 
In PK (Ukraine), the Upper Tribunal held that where an Appellant would be punished for refusing to undertake military service in which they may be forced to engage in acts contrary to basic rules of human conduct, the punishment must reach a minimum threshold of severity in order to result in a successful asylum claim. In this case, it was found that the Appellant would most likely face a fine by way of punishment. It was held that a fine would not meet the minimum threshold of severity.
 
The judgment in PK (Ukraine) is contrary to several authorities, most notably the House of Lords’ judgment in Sepet & Anor, R (on the application of) v Secretary of State for the Home Department [2003], in which it was held that where a person would be punished for refusing to engage in acts contrary to international humanitarian law, this will be sufficient for a successful asylum claim. No minimum threshold of severity was specified.
 
The Home Office’s own guidance reflects the ruling in Sepet. The guidance states that a requirement to undergo compulsory military service – or punishment for failing to complete this duty – may constitute persecution where military service would involve acts, with which the person may be associated, which are contrary to the basic rules of human conduct. 
 
The Court of Appeal has granted permission to appeal against the decision in PK(Ukraine) on the basis that the following issues raise important points of principle or practice:
(i) whether punishment for draft evasion must reach a minimum severity.
(ii) the relevance of the Home Office’s guidance, which reflects the ruling in Sepet and does not go any further to impose a minimum severity threshold.
 
The Court of Appeal found that it is arguable that the Upper Tribunal failed to consider these issues adequately.
Ruslan Kosarenko
Senior Partner
info@sterling-law.co.uk

UK Immigration & Legal Assistance

For expert advice and assistance in relation to your particular case and to enquire about the legal fees, please contact our lawyers on

Tel. +44(0) 20 7822 8599

Mobile / Viber: +44 (0) 73 0584 8477

e-mail: contact@sterling-law.co.uk

or via our online appointment booking form.

 

RSS
Follow by Email
Facebook
Twitter
LinkedIn
Immigration Law

Applying for a Sponsor Licence

Unfortunately, very often applicants do not pay the necessary attention to the accuracy of the submitted documentation, avoiding the required procedures and rules. However, this can be a turning point in a decision-making process – and this is what happened to our Client.

One of the Sterling Law clients – an active company incorporated in London sought to employ a foreign worker (outside the EEA). The reason being that the foreign candidate possessed specific skills and knowledge required for a new project launched by the company. According to the British immigration law, in order to employ a foreign worker, a company has to have a Sponsor Licence. This is an obligatory rule which will enable the company to sponsor Tier 2 (work) visa.

Following this rule, our Client firstly applied for a Sponsor Licence on their own, without legal assistance. The application was rejected due to the reason that not all necessary documentation was provided and not in the correct format.

Our Client launched a start-up with a focus on medicine development, so they were not ready to give up that easily. The new application was made with the assistance of Sterling Law Immigration Lawyer Nataliya Varahash. Nataliya addressed and corrected all the issues raised in the rejection letter.

Nataliya, therefore, managed to achieve a positive decision for the business.

We are glad to announce that now our Client can develop their newly launched projects with the help of skillful foreign workers. We believe, that not only British society but the rest of the world will benefit from it, which would be impossible without the right people on board.

 

UK Immigration & Legal Assistance

For expert advice and assistance in relation to your particular case and to enquire about the legal fees, please contact our lawyers on

Tel. +44(0) 20 7822 8599

Mobile / Viber: +44 (0) 73 0584 8477

e-mail: contact@sterling-law.co.uk

or via our online appointment booking form.

 

Natalia Varahash, Immigration Lawyer (OISC Level 2)

Email: nataliya@sterling-law.co.uk

Tel. +44 (0) 20 7822 8535

Mob. +44 (0) 73 0598 9936

 

What to do if Home Office alleges your marriage to be one of “convenience”: case study

The client, a national of Ukraine upon marriage on a Lithuanian citizen was issued a 5 year residence document, as her family member in 2011. In 2016, the client applied for a permanent residence card on the basis of the same relationship but his application was refused on the sole ground that the marriage entered in 2011 was of “convenience” within the terms of Regulation 2 of the Immigration (EEA) Regulations 2006 (The Regulations then in force). 

Sterling law lodged a notice of appeal on behalf of our client on the grounds that the Secretary of State for the Home Department had gone against the client’s right to respect for family and/or private life and that there was a breach of the duty owed to the client under Community treaties. 

At the hearing, oral evidence was given on behalf of both parties. Sterling Law instructed the Counsel to suggested that the evidence from the third party has not posed any significance on the nature of the relationship. We also pointed that Secretary of State suggested that there had been a failure to divorce rather than addressing whether this was a marriage of convenience or not. 

After seeking assistance from Sterling Law, our client collected enough evidence to support his application. Through evidence of cohabitation, a number of photographs taken on different occasions and other facts proving the relationship the judge was satisfied that the client and his wife had a genuine relationship as partners since they were married. 

UK Immigration & Legal Assistance

For expert advice and assistance in relation to your particular case and to enquire about the legal fees, please contact our lawyers on

Tel. +44(0) 20 7822 8599

Mobile / Viber: +44 (0) 73 0584 8477

e-mail: contact@sterling-law.co.uk

or via our online appointment booking form.