Author: Sterling Law

EPC Contracts

We have reviewed the EPC contract and provided a legal opinion on force majeure clauses (re Covid-19) and its implications.

Engineering, procurement, construction and commissioning (EPC) contracts are the most common form of contract used to undertake construction works by the private sector on large-scale and complex infrastructure projects. Under an EPC contract, a contractor is obliged to deliver a complete facility to a developer who needs only turn a key to start operating the facility, hence EPCC contracts are sometimes called turnkey construction contracts. In addition to delivering a complete facility, the contractor must deliver that facility for a guaranteed price by guaranteed date and it must perform to the specified level. Failure to comply with any requirements will usually result in the contractor incurring monetary liabilities. The EPC contractor coordinates all design, procurement and construction work and ensures that the whole project is completed as required and in time. He also may or may not undertake actual site work.

Key features of an EPC contract are:

  • A “firm” contract price with limited ability for the contractor to claim additional amounts.
  • A fixed date for project completion with limited ability for the contractor to claim an extension of time (EOT).
  • Single point responsibility.
  • Contractor responsibility for proving the performance and reliability of the completed asset or facility.
  • A focus on the long-term performance of the asset or facility and its ability to generate revenue.

Xena Semikina

Senior Solicitor

xena@sterlinglawyers.co.uk

 

Michael Iatsukha

Trainee Solicitor

michael@sterlinglawyers.co.uk

What is the impact of coronavirus on immigration detention centres?

Throughout the last two months, we have seen that the coronavirus is very contagious; we have witnessed that it can spread very quickly, especially in crowded places. Immigration detention centres are some of the places where an outbreak of the coronavirus will put the lives of many immigration detainees at risk.

Furthermore, a recent article published in the Guardian highlights another issue with immigration detention centres; that there are immigrants who have been unlawfully detained. As a result of the coronavirus outbreak, the release of some detainees has been delayed. There are two reasons for this:

1) detainees who were particularly vulnerable to contracting coronavirus were placed in solitary confinement for a minimum of three months;

2) detainees cannot be removed to their home countries because of the pandemic. This means that the detention of such detainees may have become unlawful.

According to the leaked data from the Home Office released by the Guardian:

The Home Office is only supposed to detain people if there is a realistic prospect of removing them from the UK. Yet two people who have received letters telling them to stay in their cells for the next three months come from countries on a Home Office list of about 50 that officials cannot currently remove people to because of coronavirus.’

(‘Revealed: at-risk immigration detainees ‘to be put in solitary confinement’’ by Diane Taylor, published in the Guardian on 02 April 2020)

If an individual is still in detention that is unlawful, it may be possible to:

  • Challenge the unlawful detention in Court;
  • Challenge the detention procedure;
  • Ask the Court for compensation; and
  • Ask the Home Office or the detention centre for a formal apology.

Sterling Law is here to help those who have been victims of unlawful detain. In addition to the above, we can advise whether a human rights claim can be brought depending on how long the detention was and what treatment was received in detention.

If we are instructed on behalf of an individual to challenge their unlawful detention at Court, we will represent and guide them throughout the entire court process. Our immigration specialists have significant experience in dealing with the same or similar complex immigration cases.

If you or a member of your family are in a similar situation, or you know somebody who has been detained unlawfully, please contact us on contact@sterling-law.co.uk .

Refusal on Suitability grounds

Sterling Law successfully appealed refusal on Suitability grounds.

The client came to the UK on a visit visa, overstayed and became pregnant. The baby tragically died. She afterwards entered a relationship with a settled person and applied for leave on that basis. The application was refused and we successfully appealed to the First-Tier Tribunal.

The application was refused on Suitability grounds due to NHS debt from maternity services. However, the judge found it unreasonable not to exercise the discretion given the tragic and traumatic circumstances of losing the baby and the fact that the client was committed to settling the debt. It was held that the Suitability ground does not apply.

The appeal was allowed on Article 8 grounds outside the rules. Although the client did not meet the threshold of insurmountable obstacles, it was recognised that her return would be difficult, especially as she is currently pregnant and given her traumatic experiences.

You can contact us at contact@sterling-law.co.uk 

Or speak to us through Telmie for 50% off your first consultation.

Daughter-in-law of an EEA national can stay in the UK

Our immigration team achieved great success in representing a client in her appeal against the Home Office’s decision to refuse issuance of the Residence Card as an extended family member of an EEA national.

Our client, a Ukrainian national entered the UK as a Family Permit holder and was residing in the UK as an extended family member of an EEA national (her father-in-law was Portuguese).  Our client lived with her husband and son, whose residence in the UK was also dependent on the same EEA national.

The family applied for Residence Cards under the European Community law. However, the Home Office refused to issue our client and her family Residence Cards on the basis of insufficient evidence of dependency on their EEA sponsor.

In the refusal letter the Home Office stated that printed envelopes and package labels showing our client’s address were insufficient evidence to prove that she was part of the household of the sponsor in Ukraine or UK. Also, there was not enough evidence to demonstrate that she was financially reliant upon the sponsor in Ukraine or the UK.

The family subsequently appealed against the Home Office’s decision to refuse their applications.

Shortly after the appeal was lodged, the Home Office issued Residence Cards to our client’s husband and son as direct family members of the sponsor. The client herself, however, was refused.

The client contacted one of our experienced immigration lawyers, Nozima, who successfully represented her in bringing an appeal against the Home Office decision. Sterling Law submitted that the client was dependent upon the sponsor both in Ukraine and the UK and formed part of the sponsor’s household in the UK, moreover, she was financially dependent on the sponsor in the UK and thus, the refusal to issue residence card was wrong in all the circumstances. After reviewing all the ample evidence, the First-Tier Tribunal decided that the Home Office’s decision to refuse to issue a Residence Card to our client was wrong. The Tribunal stated there was sufficient evidence to show that our client and her family were financially dependent on the sponsor and that she was part of the sponsor’s household in the UK:

‘…money transfers from the sponsor to the appellant and her family members in the Ukraine … are significant in value and extensive covering a significant period of time…’

And:

‘substantial evidence of a reliable nature to demonstrate that the appellant is part of the sponsor’s household in the UK … includes official documentation including the application for National Insurance number, HMRC documentation, confirmation of residence of all parties from the landlord and registration with a GP at the sponsor’s address…’

Therefore, the appeal was allowed and the client was permitted to stay in the UK with her family and obtain residence card, which allows her to exercise more rights in the UK, including the right to work.

Are you an extended family member of an EEA national and have been refused/or want to apply for a Residence Card/ pre-settled status to stay in the UK? If you are in a similar situation or should you have any other immigration-related query or issue, please do not hesitate to contact us on contact@sterling-law.co.uk.

 

Why it is important to have a Will and ensure it is up to date

A Will is one of the most important documents of a person’s life because it gives you control over how you dispose of your assets after you die. Without it, your assets could go to people you do not know or like, leaving your beloved family members and relatives without a share of your estate. Even if you have made a Will, your loved ones may still get nothing from your estate if you do not have your Will updated to reflect your changing personal and financial circumstances.

If your personal and financial circumstances change significantly and you do not have a Will in place, you may wish to have one prepared for you to reflect these changes.

Major life events, which necessitate changes in your Will, include the following:

  • Marriage or civil partnership

If you have made a Will prior to your marriage or civil partnership, the marriage or civil partnership automatically invalidates the terms of your existing Will. This means that your Will is invalid and, unless a new Will is drawn up, your estate will be distributed according to the laws of intestacy after you die. The rules of intestacy mean that your property is shared out according to set rules, where your spouse or civil partner is the first to inherit what remains in your estate. This creates a problem if you wish to leave your estate to your children or other family members instead of leaving it to your new spouse or civil partner.  If that is the case, you need to make a new Will in order to ensure that your estate is distributed according to your wishes.

  • Divorce or dissolution of civil partnership

Getting a divorce or dissolving your civil partnership does not automatically invalidate your Will. If your marriage or civil partnership ends, your Will works as if your spouse or civil partner had died on the date when the divorce or the dissolution of the civil partnership was issued. This means that if your spouse or civil partner was named as an Executor or Trustee in your Will, they are no longer able to fulfil this role. Further, any portion of your estate that you had left to them no longer takes effect unless you expressly state this, and it returns back to the residue of your estate passing to your Residuary Beneficiaries. Also, you may wish to take into account your stepchildren when updating your Will.

  • Children and grandchildren

The birth or adoption of children or grandchildren may necessitate a change in your Will if you wish to provide for your new children or grandchildren in your Will.

  • If your spouse or civil partner dies

If you had appointed your spouse or civil partner to be the Executor or Trustee in your Will and they die, you need to update your existing Will to remove them as the Executor or Trustee and include a new Executor or Trustee.  Similarly, if your spouse or civil partner was the Beneficiary in your Will, you need to update your Will to remove them as the Beneficiary and include a new Beneficiary.

  • If an Executor or Beneficiary named in your Will dies

If your chosen Executor in your Will dies, you need to update your existing Will to remove them as the Executor and add a new Executor. Likewise, if a beneficiary in your Will dies, you need to update your Will to remove this Beneficiary and include a new Beneficiary.

  • Moving home

If you buy or sell your home or other property, you should review and update your existing Will if you already have one prepared. If you do not have a Will in place and you are purchasing a property, you should have a Will prepared for you to reflect this.

Similarly, if you acquire assets or property outside England and Wales, you need to update your Will to cover your assets and property located abroad. If you have already made a foreign Will in respect of your foreign assets and property, you need to ensure that your existing Will does not revoke any previous ones you have made.

  • Start or sell your business

If you start your own business or sell your business, you should review and update your existing Will if you already have one in place. If you do not have a Will in place and you are setting up a business, you should have a Will drawn up for you to reflect this.

  • Significant changes in estate value

Fluctuations in a person’s wealth are common and if the size of your estate has grown or shrunk significantly, you may wish to update your existing Will to reflect these changes in your financial circumstances.

  • Inheriting assets or money

If you have recently inherited a large legacy, you need to update your existing Will or have a new Will drawn up for you to add the new legacy. There might be tax consequences that you need to take into account.

Once you have updated your Will or had a new one drawn up for you, ensure to tell your Executor where your Will is stored so that they are able to locate your Will when it is necessary.

It is good practice to review your Will regularly, at least every three to five years, or after any major changes in your life to ensure that it reflects your wishes and changing personal and financial circumstances.

Ensuring that your Will reflects accurately any changes in your personal and financial circumstances could save your family members and relatives a lot of the complications and hassle that an outdated Will might entail. Further, a Will that reflects your wishes can ensure that your assets go to the people you want to benefit from your estate, that your children are looked after by people you trust and that people of your choosing administer your estate after you die.

Book a call with our family lawyer to discuss.

You can learn more about us here

Signing documents during the Covid-19 outbreak

As a lot of legal professionals are working from home at the moment, one of the main questions is how to execute remotely documents that require signatures.

An electronic signature can take a form of the typed name in the contract, pasting the signature in a form of an image into the contract, making a signature through Docu Sign or Adobe Sign, using a finger or stylus and touchscreen to sign electronically, scanning a printed document with a signature on it.

Use of electronic signature under English law

Simple contact

Indeed, according to the Law Commission, an electronic signature can be used to execute a document. The signatory party should intend to authenticate it and formalities for the execution of the documents have to be satisfied.

Deed

One of the key requirements for the execution of a deed is that it has to be signed in the presence of a witness. The Courts have stated on numerous occasions that a deed cannot be witnessed through a video call. This, of course, poses some concerns during the pandemic.

One way to solve the issue is for either two directors to sign the deed or director and a secretary. Those two parties can one after another sign the deed electronically. The parties will need to stay the date when the deed was executed and delivered.

One of the common questions that arise is how can one sign a document if they are unable to print it. There are several electronic platforms (DocuSign or AdobeSign) that allow signing the deed electronically. One can also type their name into the contract and this signature will be valid.

While it is clear that the simple contract can be executed by an electronic signature, it is less obvious how the more complex contracts should be approached. We, therefore, advise those with more complex issues to receive professional legal help in order to ensure that any transaction goes smoothly.

Still unsure? Speak to us: 07 305 966 531 or contact@sterling-law.co.uk

Self-employment income support scheme (SEISS) – what you need to know

In response to COVID-19 pandemic, the government announced the Self-employed Income Support Scheme (SEISS) for those self-employed and members of partnerships whose income has been lost due to the coronavirus outbreak.

This scheme will allow you to claim a taxable grant worth 80% of your trading profits up to a maximum of £2,500 a month, for 3 months (but may be extended).

The grant will be subject to Income Tax and National Insurance contributions but does not need to be repaid.

Unlike Coronavirus Job Retention Scheme, the SEISS allows recipients of the grant to continue to work or take on another employment.

Eligibility:

  • You have filed a tax return for 2018/19,
  • You have continued to trade into the tax year 2019/20,
  • You intend to continue to trade into the tax year 2020/21 and trading when the application is made (or would have been trading had the coronavirus outbreak not occurred).
  • You have lost trading profits due to coronavirus.

Trading profits need to be no more than £50,000 and more than half of the individual’s total income for either:

  • the tax year 2018/19, or
  • the average of the last three tax years (2016/17, 2017/18 and 2018/19)

 

You can make a claim for Universal Credit while you wait for the grant. You should record the grant as part of your self-employment income, and it may affect the amount of Universal Credit you get. This will not affect Universal Credit claims for earlier periods.

The SEISS is intended to make payments by early June and claims will be backdated to March and paid in one instalment. There is no application process at the moment. HMRC will use tax returns already submitted to contact those who are eligible by mid-May and invite them to apply online.

If you require any assistance with applying for the SEISS scheme we provide such assistance via our sister company Sterling & Beanland[1] for FREE provided you sign a 12-month contract  with them for accounting services. Please speak to Dina Taimunkenova +44(0)745 068 4215 or email at dina@sterling-beanland.co.uk for further assistance.

[1] CIMA accredited city-based firm of Chartered Management Accountants.

Tier 2 & Covid-19

Recently, the government has issued immigration guidance for Tier 2, 4, 5 and sponsors in response to COVID-19, and as a managing partner at Sterling Law, I would like my Corporate clients to stay updated. This update is related to changes in reporting obligations of Sponsors, sick and furlough leave of the Tier 2 employees:

General rules

You do NOT need to report Tier 2 employee absences related to coronavirus (absences due to illness, their need to isolate or inability to travel due to travel restrictions);

You do NOT have to notify the Home office if you’re sponsoring employees who are working from home due to coronavirus;

Sick leave and Statutory Sick Pay is also available for Tier 2/ Tier 5 employees as it does not constitute public funds. For more details click here.

You still MUST report a reduction in your Tier 2 migrant’s salary within 10 days. (let us know if you require assistance)

You CAN furlough your Tier 2/ Tier 5 employee (However, certain conditions may apply, for example, you will require the furlough agreement to cover certain points. For further details, please speak to us.)

If a new employee is applying to switch into Tier 2 in the UK, they can do so inside the country until 31 May 2020 if the requirement previously was to apply from outside the UK. The applicants will still need to demonstrate that they meet the requirements of the visa they are applying for and pay all the applicable fees, including Home Office fees and IHS. Furthermore, expiring Tier 2 visas are now extended to 31 May 2020.

If your potential Tier 2 employee has been issued CoS, applied for a visa and is just waiting for the decision on the application, they can start working for you BEFORE they receive their visa decision. (conditions apply)

Ongoing Sponsor Duties

If a Tier 2 visa has been granted but the employees cannot travel to the UK:

The Home Office has not yet confirmed its position on this. The general rule is that the start date cannot be posted beyond 28 days from the start date on the CoS or 28 days from when the visa is issued. If it’s postponed to longer, you usually would have to apply for a new one. At the moment, the Home Office has not confirmed whether the rule will be waived.

Unpaid leave due to the Covid-19:

The general requirement is that Tier 2 migrants cannot have unpaid leave for more than 4 weeks per calendar year. The COVID-19 immigration guidance provides that there is no need to withdraw sponsorship if absence from work is due to COVID-19.

Employees stacked abroad

If your Tier 2 employees are currently outside the UK, they may get caught by a cooling-off period which would prevent them from returning to the UK on Tier-2 visa for 12 months. This requirement doesn’t apply if the salary is above £159,600 or if they are applying for a Tier 2 Intra-company transfer visa and their salary is above £120,000 or if the CoS was granted for three months or less. Furthermore, the ILR might also be affected if an employee is outside the country for over 180 days per year. The current guidance says that the Home Office will consider serious and compelling reasons such as illness or nature disaster. Coronavirus has not been added to the list yet.

Conducting the right to work checks:

Due to the coronavirus, the following rules have been adopted for the right to work checks:

· The scanned documents for checks can be sent via e-mail or through a mobile app
· An employee should hold the documents in front of the camera for the employer to
check the copy
· You should record the date when the check was made and mark it as “adjusted check undertaken due to Covid-19”

In addition, you might be aware that the government introduced a package of temporary business support measures including Coronavirus Job Retention Scheme, Self-employment Income Support Scheme, Business Interruption Loan Scheme, deferring VAT and self-assessment payments and other measures. You can also visit Sterling Law COVID-19 update page for additional information and useful COVID-19 related templates (e.g. Working from home Policy, Furlough Agreement etc.)

If you require any assistance with applying for Coronavirus Job Retention Scheme/ Business Interruption Loan Scheme and other supporting measures we provide such assistance via our sister company Sterling & Beanland if you sign a 12-month contract for accounting services (if you are not a client yet). Speak to Dina on 0745 068 4215 or email dina@sterling-beanland.co.uk

We value you as a client and we will answer your immigration, employment, commercial and other business-related questions for FREE during this period: please do not hesitate to send your questions to info@sterling-law.co.uk – we are here to help!

 

Force Majeure during Coronavirus Outbreak

A lot of businesses were affected by the Coronavirus outbreak in one way or another. The questions arise as to the rights and obligations in cases where the ability to perform under leases has been severely impaired. We will, therefore, try to explain the notion of force majeure under English Law and in which cases can it be invoked.

Force majeure

Force majeure is when the party is prevented from performing its obligations by events outside of its control. Although a lot of countries recognise ‘force majeure’ as a statutory right, common law does not recognise this concept.

 

However, parties might choose to insert a force majeure clause into their contract which will then be subject to the usual contractual rules. As the provisions are only protected by contract law, it is necessary to assess them on the case by case basis.

 

Doctrine of frustration

 

The closest the common law gets to the force majeure is the doctrine of frustration. It was firstly adopted in the case of Tylor v Caldwell where the defendant could not perform its obligations because the rented property got burnt down in a fire. The Court indeed excused the defendant from the performance. Now the doctrine is codified in the Law Reform (Frustrated Contracts) Act. The doctrine does not apply where an event or a problem makes the contract more difficult or expensive to perform. It would, however, apply where it is impossible to perform. In the circumstances of the coronavirus outbreak, the doctrine will apply in cases of travel agents, who cannot perform their obligations because borders are closed.

 

When it comes to a tenancy agreement or lease, the doctrine may be applicable. However, for now, there are no cases where the Court would found the lease to be frustrated. Thus, there is a hope that the Court might find the lease to be frustrated if the tenant cannot use the premises during the outbreak.  However, the threshold is set quite high and every case requires personal assessment.

 

This issue is particularly complex, and if you require assistance with your lease during the outbreak, our experienced lawyers are here to help.

Contact us on contact@sterling-law.co.uk

UK VISA/ LEAVE TO REMAIN COMES TO AN END IN THE NEXT 3 MONTHS: WHAT TO DO?

Sterling Law recommendation:

If you already have leave in the UK and planned to remain and apply to extend your visa here, you MUST proceed to do this. The reasons are:

  • You may become an overstayer if you do not submit your visa application or temporary visa extension request before your current leave is expired.

  • Temporary “Automatic” extensions of visas (for those whose leave expires after 24th January 2020 and who are unable to leave the UK due to the Coronavirus outbreak) will be available only until 31st May 2020 (unless you are working for the NHS).

  • Although the visa centres are currently closed, you can still submit your application online and attend an appointment once the visa centres are opened. The Requirement to enrol biometrics within 45 days has been waived!

  • If you already applied for Tier 4 or Tier 2/ Tier 5 visa and are waiting for the decision on your application, you can start your course (Tier 4 migrant) or work (Tier2/ Tier 5 migrants) BEFORE YOUR VISA APPLICATION HAS BEEN DECIDED if certain conditions are met.

  • You can apply from the UK to switch to a long-term UK visa until 31 May 2020, including applications for which you would usually need to apply from your home country.

 

And one more practical recommendation: significant delays and a BOOM of immigration applications are expected after the Coronavirus outbreak is over. It is important to be first in the queue when travel becomes easier and when visa centre facilities re-open, so your plans are not delayed. Also, case preparation and obtaining the required documents and information takes time: do not delay – start preparing your case now! If you require our assistance or have any questions – just email us at info@sterling-law.co.uk