Author: Sterling Law

Settled Status for EU Citizens and Family Members in the UK after Brexit

Today, the Home Secretary, Sajid Javid announced more details on the settled status for the EU citizens and their family members. In the official electronic notification, the Home Secretary stated that safeguarding the rights of EU citizens in the UK has always been the first priority and the agreement reached with the EU earlier this year did just that. The rights that EU citizens and their families currently have are protected which include access to healthcare, benefits and pensions.

Away from the negotiations, my team in the Home Office have been working hard to develop the service that you’ll use to get your settled status. This work will continue as we make sure that the system and processes are rigorously tested and meet every requirement ahead of the launch. Sajid Javid

According to the statement, the scheme will open later this year and the Home Office is on track to open the scheme fully by 30 March 2019. The deadline for applications to the scheme will be 30 June 2021.

More details of the suggested scheme including overview, eligibility requirements and application process have been released on the government’s website.

Settled Status Scheme for EU citizens and their family members living in the UK

The scheme will open fully by March 2019. The deadline for applying will be 30 June 2021. You may be able to apply after this date if you’re joining a family member in the UK.

Rights for citizens of Norway, Iceland, Liechtenstein and Switzerland are still being negotiated.

Getting settled status means you can continue to live and work in the UK for as long as you like. It will mean you’re eligible for:

  • public services, such as healthcare and schools
  • public funds and pensions
  • British citizenship, if you meet the requirements

Full details of the scheme are still subject to approval by Parliament.

Eligibility

To be eligible for settled status, you’ll need to:

  • be an EU citizen, or a family member of an EU citizen
  • have been living in the UK continuously for 5 years (‘continuous residence’)
  • have started living in the UK by 31 December 2020

If you’ve lived in the UK for less than 5 years, you’ll generally be eligible for ‘pre-settled status’ instead.

If you’re a non-EU citizen, you will need to show your relationship to an  EU citizen living here.

Continuous residence

Continuous residence means you’ve been in the UK for at least 6 months in each of those 5 years, except for:

  • one period of up to 12 months for an important reason (for example, to work or study)
  • compulsory military service

If you will not have 5 years’ continuous residence when you apply

You’ll generally get ‘pre-settled status’ instead. Pre-settled status means you can stay in the UK for a further 5 years. You can live and work here, and will have access to public funds and services on the same basis as you do now.

Once you have 5 years’ continuous residence you can apply for settled status.

Applying for settled status

The scheme will open fully by March 2019.

The deadline for applying will be 30 June 2021. You may be able to apply after this date if you’re joining a family member in the UK.

The application form will be online. You’ll be able to get support over the phone or in person if you need help doing things online.

Necessary Documents

When you apply, you’ll need proof of:

  • your identity
  • your residence in the UK, unless you have a valid permanent residence document or valid indefinite leave to remain
  • your relationship to a family member from the EU living in the UK, if you’re from outside the EU

Fees

The fee to apply (subject to approval by Parliament) will be:

  • £65 if you’re 16 or over
  • £32.50 if you’re under 16

It’ll be free to apply if:

  • you already have valid indefinite leave to remain or a valid permanent residence document
  • you’re applying to move from pre-settled status to settled status
  • you’re a child in local authority care

There will be support for the vulnerable and those without access to a computer.

Legal Assistance

 

New Fees: British Passport Applications
How to Apply for British Passport Online 
Apostille and Document Certification in London
Employment Rights in the UK

 

For expert advice and assistance in relation to your particular case and relevant immigration law requirements, please contact our immigration lawyers on tel. +44(0)20 7822 8535, mobile: 07305848477 or by e-mail: contact@sterling-law.co.uk or via our online appointment booking form.

Spouse Visa

Sterling Law Influence Home Office’s Investor Visa Policy Change

On 15 June 2018, the Home Office announced introduction of the new changes to the Immigration Rules which will affect a number of categories including Tier 1 Investor Visa.

The changes address our previous requests for clarification of the Immigration Rules. Owing to our persistence on getting the Home Office’s business helpdesk to clarify whether invested bonds from a bank loan can be used to score points as collateral for a further loan for a Tier 1 investor, the Home Office has now incorporated this into the new statement of changes.

It is, perhaps, not exactly the results that we hoped for when making a request on such a clarification, but the Home Office has been prompted due to our team’s unyielding actions to ensure that the scope of the Immigration Rules have everything covered.

Now, the answer to whether invested bonds from a bank loan can be used to score points as collateral is that it is not permissible for a migrant to use funds invested in bonds as collateral for further loans. The Home Office makes reference to paragraph 61A with the requirement of the money to be under the migrant’s control and therefore, excludes money that a loan has been secured against.

Thus, the following changes are introduced to the Tier 1 Investor Visa rules:

  • Applicants are required to maintain their investments. While the investors (applicants) may withdraw interest and dividend payments generated by their qualifying investments from their portfolios, they may not do so if these were generated before the applicant purchased the portfolio.
  • As evidence of their investment, applicants must currently submit portfolio reports signed off by a financial institution regulated by the Financial Conduct Authority. A technical change is being made to require institutions to confirm that the funds have only been invested in qualifying investments, and that no loan has been secured against those funds.
  • This change will put a further obligation on financial firms to scrutinise the suitability of applicants’ investments, in addition to their own due diligence.

Aliya Rimshelis, Corporate Immigration Adviser, raised this issue before the Home Office on behalf of Sterling Law and assisted in filling a gap which previously existed.

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

More information is available in the statement of changes.

For more details, please feel free contact our 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.

Employee, Worker, or Self-Employed: Know your rights and liabilities

Are you an employee or worker? Are you a self -employed ‘contractor’?

Are you an employer? What are your rights and liabilities?

You may think you know the answer to these questions. But the answer may be different from what you imagine. Your position may be either better or worse than you think.

Difference in legal rights between ‘employees’ and ‘self-employed’

The former have certain rights such as the right to claim unfair dismissal, redundancy, maternity pay, holiday pay, statutory sick pay and others rights. The latter do not. Just to make things more confusing, there is a category in the middle, classed as ‘workers’, who have some of these rights, but not others.

Self-employed contractor recognised as a worker

In a leading case in the Supreme Court on 11 June 2018, it was decided that a plumber who had been working for Pimlico Plumbers Ltd apparently on a self-employed basis, paying with his own tax and NI, was still a worker for legal purposes.

He was therefore entitled to holiday pay and sick pay. This was mostly because of the degree of control exercised by the company over his work. He worked exclusively for Pimlico Plumbers Ltd, and drove their van, and wore the company uniform whilst at work. It was important that he was not acting as an independent entrepreneur, touting for work for himself for his own account.

This case reflects other decisions in this area involving drivers for Uber, Deliveroo, and Addison Lee.

In fact the Uber case is still continuing to the Court of Appeal and is yet to be heard. Other cases have been decided in favour of employers.

The crucial point of all of them, which should be borne in mind by businesses and individuals alike, is that the issue of ‘employment’ status is a factual decision in each case. It is a good idea to get professional advice about your position in good time, and have a reliable contract drawn up to reflect and solidify the true position.

However, even many lawyers who are not well-versed in employment law do not understand that even a contract cannot alter the legal position after the event, if the facts indicate that only a particular version of the legal position is correct on the facts.

We can help with either:

  • advising on how the law applies to your particular circumstances
  • drawing up a suitable agreement /contract
  • a dispute that has arisen on employment issues

If you would like advice on any aspect of employment law, please contact us directly by phone or email.

Contact our employment solicitor Kuldeep Clair directly:

Phone: +44 (0) 20 7822 8599

Mobile: +44 (0) 7484 61 4090

Fax: +44 (0) 870 23520 4427

E-mail: kuldeep@sterlinglawyers.co.uk

New changes in the Tier 1 (Exceptional Talent) Visa Category

New changes to the Immigration Rules were prepared and laid by the Home Office before Parliament on 15 June 2018. These changes will come into effect on 6 July 2018.

In addition to the removal of doctors and nurses from the Tier 2 visa cap there are a number of changes to other UK’s visa routes, including Tier 1 (Exceptional Talent), Tier 1 (Investor) and Tier 1 (Entrepreneur).

Tier 1 (Exceptional Talent) Visa Changes

The Tier 1 (Exceptional Talent) category is for talented individuals in the fields of science, humanities, engineering, the arts and digital technology to work in the UK without the need to be sponsored for employment in a specific post. The applicants must be endorsed by a Designated Competent Body.

The following changes are being made to this category:

  • Opening up the exceptional talent visa to include leading fashion designers. The endorsement of arts applicants is being widened to include those in the fashion industry who are operating leading designer fashion businesses. These applicants will be assessed by the British Fashion Council operating within the endorsement remit of Arts Council England.
  • Tier 1 (Exceptional Talent) route has also been opened up to a wider pool of TV and film applicants, under the remit of ACE. This is due to the changes to the criteria and list of eligible awards for applicants in film and television.
  • Other changes are being made to the criteria for endorsement by each Designated Competent Body, at those bodies’ requests. These include changes to the evidential requirements for applicants holding a peer-reviewed research fellowship; and changes for digital technology applicants to reflect the rebranding of “Tech City UK” as “Tech Nation”.
  • Amendments are being made so that endorsements for Croatian nationals no longer count against the number of allocated endorsements available to each Designated Competent Body. This is because Croatian nationals will no longer need to apply for work authorisation in this category, owing to the lifting of transitional controls on the work rights of Croatian nationals on the occasion, this July, of the fifth anniversary of Croatia’s accession to the EU in July 2013.

More information is available in the statement of changes.

For more details, please feel free contact our 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.

Sterling Law sets precedent with Baigazieva [2018] EEA Retained Rights Case in the Court of Appeal

Baigazieva [2018] EWCA Civ 1088 is a case of Sterling Law that is an important new precedent on EEA retained rights of residence. The decision, given by Singh LJ of the Court of Appeal, has served a positive outcome to the appeal brought from the Upper Tribunal against the Home Office’s contention that the Appellant’s former spouse was not exercising treaty rights at the point of their divorce.

In doing so, the decision has also shed light by giving a new direction to a previously ambiguous interpretation of law under Article 10(5) of the EEA Regulations 2006, now revoked and replaced by EEA Regulations 2016.

Background: EEA Retained Rights of Residence

The Appellant, Ms. Baigazieva, applied for retained rights of residence on the basis that she was a former family member of an EEA national who was exercising treaty rights at the time of divorce after which she was residing in the UK as a qualified person.

The Home Office, notwithstanding the fact that she was previously issued a residence card as a family member of a qualified person, refused the application on the grounds that she did not provide sufficient evidence that she has retained a right of residence following divorce from an EEA national in accordance with Regulation 10(5) of the Immigration (EEA) Regulations 2006. Inclusive to the the issue of sufficient evidence not being provided, was the contention that the former spouse of the Appellant was not exercising treaty rights at the point of divorce.

Legal Issue

As such, the appeal turns on the correct interpretation of Regulation 10(5) of the Immigration (European Economic Area) Regulations 2006 (“the 2006 Regulations”). On 9 December 2015, when the Secretary of State the appellant’s application for a residence permit as a family member with a retained right of residence, the 2006 Regulations were still in force. However, on 1 February 2017, the 2006 Regulations were revoked and replaced by the Immigration (European Economic Area) Regulations 2016 (subject to transitional provisions) (“the 2016 Regulations”).

This case has set a much-needed precedence for both ongoing retained rights of residence applications and appeals, as well as applicants hoping to apply for retained rights of residence as former spouses of an EEA national exercising treaty rights in the UK.

This is a right that has subsisted since 2004 under the Directive of the European Parliament and of the Council of April 2004 (Directive 2004/38/EC) which ordains that it is a right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. Article 13(2) of the Directive provides for third country family members of EU citizens to retain their right to reside in an EU Member State in the event of divorce and is supplemented by Regulation 10 of the EEA Regulations 2006 (and now 2016) which lays out the conditions under which a family member may retain a right of residence.

Accordingly, subsection (5) of Regulation 10 provides that a person satisfies the conditions in this paragraph if –

  • He ceased to be a family member of a qualified person on the termination of marriage or civil partnership of the qualified person;
  • he was residing the United Kingdom in accordance with these Regulations at the date of the termination;
  • he satisfies the condition in paragraph (6)
  • either –
  • prior to the initiation of the proceedings for the termination of the marriage or the civil partnership the marriage or civil partnership had lasted for at least three years and the parties to the marriage or civil partnership had resided in the United Kingdom for at least one year during its duration.

Until this decision was made an ambiguity persisted on the interpretation of the law under Regulation 10(5) in which it was unascertained whether a third country national ex-spouse is required to show that their former spouse was exercising Treaty rights in the host Member state at the time of their divorce (note that it is at the time of the divorce and not having acquired the divorce, the decree absolute) in order to retain a right of residence under Article 13(2) of Directive 2004/38/EC. This is despite the Court of Justice of the European Union (CJEU) giving an answer to that question in 2014 in the context of domestic abuse, which was that the EU spouse, as the qualified person, must reside in the host member state until the date of the commencement of the divorce proceedings.

Thereby, the general implication here was that it was not necessary for the EU spouse to reside in the host Member State until the divorce itself was granted. Though at the EU level, such a determination has not, until this Baigazieva [2018] decision, been made in the UK despite the Secretary of State admitting that the issue has arisen in several proceedings in recent years without definitively being resolved.

Success – SSHD Concedes Appeal

As such, the Secretary of State for the Home Office not only conceded the appeal in the public interest so that the court to give a substantive judgement on the issue of law which arises but the this appeal also prompted the SSHD to accept that a third country national, or order to retain a right to reside in the UK in reliance of Regulation 10(5), does not need to show that their former EEA spouse exercised treaty rights as a “qualified person” until the divorce, the decree absolute, itself. Rather, it is sufficient to show that the former EEA spouse exercised treaty rights until divorce proceedings were commenced.

Singh LJ, the presiding judge of this Upper Tribunal appeal delivered a substantive judgment and concluded that the Upper Tribunal Judge erred in the approach she took to Regulation 10(5) of the 2006 Regulations. Ultimately, this judgement which finds that a third country national has to show their former spouse was a qualified person at the point of the initiation of divorce proceedings rather than at the point of divorce, now sets precedent for succeeding cases on the same matter.

The legal representatives of this case were Counsel, Agatha Patyna, from Doughty Street Chambers acting for the Appellant upon the instructions of the Appellant’s legal representative, Nadia Pylypchuk (as supervised by Ruslan Kosarenko) from Sterling Law.

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.

 

 

 

Workshop Invitation: Employing Foreign Workers and Sponsor Licence Pitfalls, 27 June 2018

Sterling Law and Drystone Chambers invite for the workshop for the UK employers and business owners to discuss practical issues of “Employing Foreign Workers in the UK, Sponsor Licence Pitfalls and How to Avoid Them”. The workshop will be held at the office of Drystone Chambers on Wednesday, 27 June 2018.

Date and time:

Wednesday, 27 June 2018 at 6.00 PM (followed by Q&A and wine reception)

Location:

Drystone Chambers, 35 Bedford Row, London, WC1R 4JH (MAP)

In order to hire a worker from outside of the EEA countries, the UK employer needs to obtain a Sponsor Licence from the Home Office. Although the process of obtaining a Sponsor Licence might seem straightforward, there are many peculiarities and practical issues that the British employer must take into account. Even once the Licence is granted, employers may still face additional checks and audits from the Home Office and will be required to comply with the numerous legal requirements.

To help the UK employers to deal with the practical issues of employing foreign workers and applying for a sponsor licence, we are organising this workshop.

Speakers:

Agenda:

  • Prevention of illegal working & sponsoring foreign skilled workers
  • UKVI compliance visits
  • Issuance of sponsorship certificates
  • Revocation of sponsor licence
  • Q&A session

The workshop will be followed by a networking reception.

Registration:

Admission is free by registration is required via Eventbrite.

If you have enquiries please contact: enquiries@sterling-law.co.uk or tel. 02078228535.

Tier 2 Dependent Entry-Clearance Success for Unmarried Partner

Just this week, the Home Office gave the all-clear for an entry-clearance to our client as an unmarried partner from Ukraine. The casework in this representative matter was led by Jelena Ivanova, Immigration lawyer (OISC Level 3).

What makes this case more interesting is that it serves as a positive example for many young couples who wish to relocate to join their partners currently residing in the UK, without bearing all the restrictions of being married.

This is a hopeful success story. The client’s partner received a job offer in the UK and was granted a a Tier 2 (General) visa to come to the UK. Our client did not wish to separate from her partner for an uncertain period of time and thus, applied for a Tier 2 (General) dependent visa as an unmarried partner. Our client and her partner have been in a relationship for more than 2 years, with no immediate plans to get married as they are a young couple who wish to focus first on developing their relationship together by spending time with each other. A phenomenon which is becoming increasingly popular. There is now a significant increase in immigration applications being received that are for the Applicant to join or be sponsored by their unmarried partner currently residing or working in the UK.

For our client, an unexpected matter in this case is that whilst in the Ukraine, our client had lived together with her partner at his parents residence. The evidence of cohabitation for at least 2 years that was subsequently provided in support of this application was of a limited nature. It was simply a witness statement from the client’s partner’s mother attesting that they were living together, accompanied by a copy of the tenancy agreement of their Ukrainian residence.

Unmarried Partner Applications

Note that in such applications the general rule for unmarried partner applications is that evidence of cohabitation must be provided for at least 2 years. However, it is true that residency and accommodation arrangements between couples or partners may vary depending on the country the Applicant(s) have previously resided in.

Therefore, it need not necessarily be the same as in the UK. In these events, alternative and convincing evidence can and have been considered as proof of the relationship of unmarried partners by the Home Office.

This successful case of Sterling & Law Associates reasserts that entry-clearance to the UK for couples is not limited to Applicants being married partners. There are many successful cases such as this, where alternative routes and applications exist for unmarried couples to gain UK entry-clearance.

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.

Rights of Former Husband of an EEA National Restored after Refusal and Revocation of Residence Card

Our client, a citizen of Ukraine, applied for a retained right of residence on the basis that he is a former husband of an EEA National who was exercising treaty rights at the time of divorce and subsequent to divorce he has been residing in the United Kingdom as a qualified person.

The marriage lasted for three years and both the client and his ex-wife have been residing in the United Kingdom.

The reason for the refusal was based on insufficient evidence of retaining rights of residence following the divorce from the wife according to regulation 10(5) of the Immigration (EEA) Regulations 2006.

In particular, the Home Office was concerned as to whether the ex-wife’s business was genuine and economically active. Based on this reason the Home Office revoked the residence card of the client.

Following the decision of the Home Office, the client instructed Sterling and Law Associates LLP to lodge the appeal on his behalf based on the breach of the rights under the Community Treaties, s 84(1)(d) Nationality, Immigration & Asylum Act 2002. In addition, it was claimed that the decision of the Home Office was unlawful under section 6 and 8 of the Human Rights Act 1998.

During the appeal hearing, the Immigration Judge considered all the evidence and submissions made by Sterling & Law Associates LLP on behalf of the client and noted that the sole issue in the matter was whether the Appellant’s ex-wife was exercising her treaty rights at the date of divorce.

The Judge confirmed that concerns as to the discrepancies in the documents of the ex-wife’s company as a genuine trading business were not sufficient to justify the Home Office’s position.

The appeal was allowed under Article 8 of the ECHR on the human rights grounds.

The casework in this successful appeal case was managed by the Immigration lawyer, Oksana Demyanchuk, who ensured that our client can continue his stay in the United Kingdom in accordance with his retained rights.

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.

Insurmountable Obstacles Proved in a Delicate Human Rights Appeal Case

Oksana Demyanchuk acted successfully in a complex human rights case involving insurmountable obstacles to family life outside the United Kingdom.

The client is a Ukrainian national who initially applied for Leave to Remain in the UK on the basis of her partner and private life. The application was subsequently refused by the Home Office and appealed to the Immigration Tribunal.

During the appeal process, the client (Appellant) had to show that there were insurmountable obstacles if she and her partner had to continue their family life outside the UK as well as a breach of her and her partner’s human rights.

Insurmountable Obstacles

As the Appellant had a successful appeal and was consequently granted leave to remain in the UK, her circumstances help to define what insurmountable obstacles would amount to.

The immigration Judge explained that insurmountable obstacles mean that the Appellant and her partner would be faced with very significant difficulties if they had to continue their family life outside of the UK, which could not be overcome or would entail very serious hardship for either the Appellant or her partner.

Her partner entered the UK lawfully as a student, lived in the UK for a period of over 19 years and has indefinite leave to remain. He held consistent employment throughout this time and bought a property where he lives with the Appellant and their children. On top of this, her partner recently underwent serious heart surgery, and was still recovering. The Appellant’s main responsibility was caring for her partner. Additionally, the Appellant plays a strong role in the upbringing of her grandchildren. It is therefore accepted that the Appellant has a close family unit within the UK.

Moreover, it is noted that the Appellant does not hold any property in Ukraine, nor does she have any immediate family, friends or neighbours in Ukraine. It can be seen that the Appellant has taken on a strong role as a carer within the family. In the case of Beoku-Betts [2008] UKHL 39, it was stated that when deciding an appeal on human rights grounds, it is important to take into consideration the effect that the decision would have on other family members with respect to their family life. In regard to this, strong considerations were made on the best interests of the children involved, specifically the Appellant’s grandchildren.

Additionally, the Appellant proved that she is able to speak and communicate in English. The Appellant does not and has never claimed state benefits. Furthermore, by allowing her to stay in the UK to take care of her partner, her partner would not have to seek help from social and health services thus helping to reduce the strain on public services. It should be noted that she is the only member of her family with an illegal status in the UK, the remainder of her family unit holds the legal right to remain and reside in the UK.

For this reason, it was acknowledged that our client and the family members would face extremely serious hardships if she was forced to return to Ukraine. Our client would have no employment, home, friends and family and thus have significant obstacles in reintegration back in her country of origin. Moreover, our client’s partner and the entire family unit would suffer without the care of the Appellant.

The appeal was allowed by the First-tier Tribunal under the Immigration Rules and the European Convention on Human Rights (1950)

This successful appeal ensures that our client will not be torn away from her partner and will now be able to stay in the UK with her partner.

 

Refusals & Appeals: Immigration Assistance

For expert advice and assistance in relation to your particular case, refusals and relevant immigration law requirements, please contact our immigration lawyers on Tel. +44(0)20 7822 8535, Mobile +44(0)74 6338 2838, by e-mail: contact@sterling-law.co.uk or via our online appointment booking form.

GDPR – complexities of small print and how to take it easy

Summary by Xena Semikina, Solicitor and Higher Rights Advocate

The EU General Data Protection Regulations (GDPR) are coming into force on 25 May 2018 and so far it has caused quite a stir among businesses.

The date is upon us, the penalties for non-compliance are severe and hardly anyone knows what exactly they have to do to comply. You suddenly find yourself on the wrong side of the law without knowing right from wrong.

The 119 page document was published in small print in an official periodical of the European Union and only lawyers can read it without falling asleep.

However, the beast is not vicious, but only misunderstood. We naturally have a fear of things we don’t know, but thankfully we don’t need to take up a degree course every time we face this fear.  This article will explain the new law in little more than a thousand words – not enough to make you an expert, but enough to alleviate the fear and prompt you to act.

It’s not difficult to grasp a piece of legislation if you know only one thing about it – its purpose. The purpose of a legislation is its spirit. The spirit of this particular legislation can be summoned by only one word – accessibility. This is the only thing that makes this legislation very different from all those pre-existing ones. All the rest of changes are subsequent to this one and arise from it naturally, by the virtue of common sense.

There are two main reasons why information has to be accessible and it affects subjects’ rights at two main stages – the stage of data collection and the stage of data retention.

Data Collection

At the stage of data collection the primary concern is the clarity of the information provided to the subjects. It is at this stage that your customers are expected to make the decision whether or not to enter a business relationship with you and share their data. The universal principle of human co-existence in a free world is that every contact between human beings has to be consensual. No one can be made party to something they reject. And business interactions are not different from private interactions in this respect.

Your customers have to give their consent to share their data with you and this consent has to be given knowingly.

‘Knowingly’ means that they have to know what exactly they are consenting to, how exactly their data will be used. They will not know, if they are not informed. ‘Informing’ used to mean ‘providing information’. GDPR puts an end to this interpretation and this is the most fundamental change it introduces.

According to GDPR ‘informing’ means not only providing information, but presenting it in a clear form, accessible to majority of people. When you request consent, you have to present your request in a clear, unambiguous language, and in a form which is easy to read (Article 7). No more lengthy policies in small print, no more hyperlinks that crush devices before they link – information has to be right before your customers’ eyes. You have to state your request in a plain and concise language, identifying clearly why you need the data, and the subjects have to give their consent explicitly, which means consciously. Pre-ticked boxes no longer count as an explicit consent.

Data Accessibility

Now you have collected the data and you keep it. This is where the new law kick in for the second time, and again with the same kick – accessibility.

In the language of GDPR it is called ‘data portability’. According to Article 20 of the GDPR 2016/679 the data has to be stored in commonly used and structured way. It has to be machine readable and easily transferable. The rationale behind this rule is very simple.

The data has to be easily accessible and available at a short notice on request of the data subject. It also has to be easily deleted if the subject requests it. This is because the subjects have the right of access to the data (Article 15) held by any business or organisation, they have the right to withdraw their consent for the processing of their data at any time (Article 7(3)) and request erasure of the data – so called ‘right to be forgotten’ (Article 17).

At this stage many of you may think: ‘I don’t like it’. It smells of total restructuring of your website and maybe the entire business, which for smaller enterprises may mean a great strain on already tight resources.

Here is good news for you.

A lot of businesses don’t need to modify their website or their business practices. Obtaining your customers’ consent is only one lawful basis for legitimate data processing (Article 6). In many clear cases consent may in fact be presumed. It covers situations where the data you have collected are strictly necessary for the pursuit of your business purposes, in other words the purposes which are mutual for you and your customers – the provision of services by you to them. In the language of GDPR it’s called legitimate interests.

GDPR & Legitimate Interests

When you think about it, it only makes sense. If someone comes to you and asks you to do something for him, of course he expects you to know where to find him. You do not need to explain to him that this is the purpose of you retaining his data and you don’t need to ask him for consent, because it is already presumed and clear to both of you. He has given it to you by his act of requesting your services. However, when using this basis for data processing, you have to be extra careful, because you take extra responsibility for the subjects’ rights and interests, and you have to balance you legitimate interests against their interests and fundamental rights at every point of data collection.

It may well be that your business does not have to undergo painful and expensive restructuring and all you have to do is to update two documents – your Privacy Policy and your Terms and Conditions – to make references to the new legislation. A careful analysis of your website at all points of data collection will show whether or not you will need your customers’ consent at any of those point or you can use legitimate interests basis.

At Sterling Lawyers, for a small fee, we can carry out thorough analysis of your website and your business practices, and advise you on whether or not you need to introduce changes to comply with the new legislation. We can also help you to amend your existing documents and create customer and staff notices compliant with GDPR.

For any assistance please feel free to contact Xena Semikina, Solicitor and Higher Rights Advocate by e-mail: xena@sterlinglawyers.co.uk or phone +44 (0) 207 822 8599