Category: Company News

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

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!

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 an essential need for 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 for the 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 the application process is rather complex, which requires much attention and knowledge. The 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 experienced lawyer for legal assistance. This way, the applicant will be ensured that all paperwork is completed correctly, which increases chances for a positive result in application consideration. Sterling Law highly recommends requesting legal assistance from qualified and licensed lawyers, who have long-term practice in immigration law and will be able to find the 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

 

 

 

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

 

LEGAL COSTS – can you recover them from your opponent after winning a legal dispute?

Kuldeep S. Clair, our senior Consultant Solicitor in Dispute Resolution and Employment Law offers his views on this important topic: 

This question is understandably a common initial concern for many clients when they are deciding whether to issue court / tribunal proceedings, and  also when they are defending proceedings against them. 

The rules are complex and not automatic. They depend on the discretion of the Judge, and on things like the nature of the claim and the particular court or tribunal that you are in. Let’s go through a few guidelines but please remember to refer to the exceptions I have outlined later as well: 

  1. Employment tribunals – you will not recover your legal costs if you win, and will not have to pay the other side’s legal costs if you lose either. 
  • Civil money claims of less than £10,000 – as above, apart from relatively nominal fixed amounts totaling probably a few hundred pounds in most cases. (The other side will pay your court fees.)
  • Civil money claims above £10,000 – You will usually be able to recover a large proportion of legal costs which are reasonably incurred. What that means is that there is still a duty on your solicitors to act reasonably in the conduct of a claim so that whatever shortfall payable by you is as small as possible.   
  • Other civil claims, such as landlord/tenant, employment, commercial claims, company disputes – as per 3 above. The court is more likely to award you costs in a matter which is of higher value, since judges do not want to encourage people to clog up the courts with low-value disputes. But the value of the claim is only one factor, and of course, disputes can concern many other issues than just money. 

All of these principles can be overridden by the basic exception which is that a court or tribunal may award costs against a party if he/she has behaved in a manner which is regarded by the Judge as appalling or un-co-operative, and which has increased the legal costs incurred by the other side. It is important to appreciate that this does not mean just by losing the case. Clearly someone always has to lose. It means seriously inappropriate behavior, such as pursuing a utterly hopeless or dishonest case which was absolutely bound to fail. Or using litigation as a device to abuse or harass an opponent. 

If you are advised by your lawyer that all your legal costs will definitely be covered or recovered from the other side, you should remain skeptical. I always advise my clients honestly and fully about the merits of their case and also about the position on costs.  There are no guarantees concerning costs, other than through certain kinds of legal insurance. The problem with that kind of ‘after-the-event’ insurance is that it is only suitable for certain kinds of situations and cases, and it is also quite expensive. I can discuss those options with you in detail. 

Your best bet is to have a solicitor who has the experience and perspective to give you honest, forthright advice about the positive and negative aspects of your case, to prepare your case thoroughly, and fight your case vigorously once you have given clear instructions.  

If you have any queries about a dispute, please feel free to contact me initially without obligation. 

Kuldeep S. Clair 

Consultant Solicitor

Employment, Dispute Resolution and Litigation

+44 (0) 7484 61 4090

kuldeep@sterlinglawyers.co.uk

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EU Settlement Scheme will Open to Public from 21 January 2019

EU citizens living in the UK who have a valid passport will be able to take part in a public test phase of the EU Settlement Scheme.

From 21 January 2019, EU citizens, as well as their non-EU citizen family members who hold a valid biometric residence card, will be able to apply for the immigration status they will need once the UK has left the EU. By applying during this test phase, they will also provide valuable insight into how the system is performing so that further improvements can be made before the scheme is fully rolled out from March 2019.

EU Settlement Scheme Details

The public testing follows a successful private beta phase with employees in higher education, health and social care sectors.

The EU Settlement Scheme will be fully open by 30 March 2019, and EU citizens will have until 30 June 2021 to apply, in line with the draft Withdrawal Agreement.

The expansion has been announced through changes to the Immigration Rules. The Rules are accompanied by some initial findings of how the scheme performed during the second private beta test phase. Feedback during that phase, which ends on 21 December 2018, has so far been positive.

By 13 December 2018, more than 15,500 applications had been made and more than 12,400 of these had been concluded. 71% of the concluded applications were granted settled status and the rest were granted pre-settled status. Many of the applicants received their decision within 24 hours. We will publish a full report in January 2019.

The new, wider test phase will again require applicants to prove their identity by using the EU Exit: Identity Document Check app which is part of the integrated online application process. There will also be support for EU citizens who might need additional help in making their application.

Read further information on the EU Settlement Scheme.

End of Free Movement: New Skills-based Immigration System Announced

Today, Wednesday, 19 December 2018, The Home Secretary Sajid Javid announced a new route for skilled workers, strengthened border security and an end to free movement as part of a new immigration system.

The new immigration system will introduce a new route for skilled workers which favours experience and talent over nationality. It will enable employers to have access to the skills they need from around the world, while ensuring net migration is reduced to sustainable levels.

Read the full text of the White Paper.

Read the executive summary.

Key Changes & Proposals:

  • remove the annual cap on the number of work visas issued
  • widen the skills threshold to include people with qualifications equivalent of A levels
  • ends the requirements for labour market tests by employers wanting to sponsor a worker.

Home Secretary Sajid Javid said:

Today’s proposals are the biggest change to our immigration system in a generation.

We are taking a skills-based approach to ensure we can attract the brightest and best migrants to the UK.

These measures will boost our economy and benefit the British people.

There will also be a new route for workers at any skill level for a temporary period. This will allow all businesses to have the staff they need as we move to the new immigration system but ensure they have the incentive to train young people in the future.

The 12-month visa will provide access to the labour market, but no access to benefits. People arriving on this route will not be able to bring family members with them, won’t accrue rights to settle in the UK and will have a 12-month cooling off period once their visa expires. These proposals will be discussed with business as part of the extensive engagement programme planned.

The White Paper proposals will also ensure there is no limit on the number of genuine international students, who can come to the UK to study. Proposals extend the time they can stay post-study to find employment to six months for those who have completed a bachelor’s or master’s degree and 12 months for those who have completed a PhD.

Proposed measures to improve border security checks and support a frictionless flow of legitimate passengers’ checks:

  • creating a single, consistent approach to criminality by aligning both EU and non-EU criminality thresholds
  • ending the use national ID cards as a form of travel documentation for EU citizens as soon as is practicable, given these documents are more insecure and open to abuse than passports
  • introducing an Electronic Travel Authorisation (ETA) scheme to allow vital information to be collected at an earlier stage before visitors, who does not require a visa, travel. This will give visitors greater certainty that they will be able to enter the UK on arrival
  • allowing citizens from Australia, Canada, Japan, New Zealand, USA, Singapore and South Korea to use e-gates to pass through the border on arrival, alongside EU and UK citizens

The Immigration and Social Security Coordination (EU Withdrawal) Bill to be published on Thursday 20 December ends free movement and creates the legal framework for the future borders and immigration system. It also creates the legal framework for a future, single benefits system that will apply to both EU and non-EU nationals and maintains the Common Travel Area between the UK and Ireland.

The new immigration and borders system will be implemented in a phased approach from 2021 following an extensive 12-month programme of engagement with businesses, stakeholders and the public by the Home Office.

Changes to the Immigration Rules effective from January 2019

A new statement of changes to the Immigration Rules has been laid down recently. These changes are set to take effect from the 10th January 2019.

The main changes are set out as follows. 

Tier 1 (Exceptional Talent)

This category usually requires prospective applicants to be endorsed by a Designated Competent Body. The endorsement of arts applicants is being widened to include those in the field of architecture. The Royal Institute of British Architects operating within the endorsement remit of Arts Council England will assess the applicants.

Currently, only applicants who request 5 years’ leave qualify for the additional 4-month period. In the recent change, the grant periods for entry clearance applicants have been amended to include an additional 4-month period for each potential grant of leave.

Moreover, digital technology applicants who as a result of the Tech Nation online application form, will no longer be required to supply paper copies of their specified evidence to Home Office.

Tier 2 (Points Based System)

There is now an Academic Technology Approval Scheme (ATAS) requirement for Tier 2 (ICT) applicants extending leave in the United Kingdom. Applicants are required to obtain an ATAS certificate before studying a postgraduate qualification in certain sensitive subjects, knowledge of which could be used in programmes to develop weapons of mass destruction (WMDs) or their means of delivery.

Tier 4 (Points Bases System)

This route consists of Tier 4 (General) and Tier 4 (Child). It is often used by non-EEA nationals wishing to study in the UK.

Changes are being made to students who rely on student loans or funds from official financial sponsors. They are not required to demonstrate that the funds have been held for a period of 28 consecutive days. Instead, Tier 4 migrant must have the funds available to them on the date of application. The only exception is where the funds are being provided as a financial loan and the student separately confirms when the funds will be available to them.

Moreover, another important change is that if the applicant is a Tier 4 (Child) Student, the specified documents submitted with their application must confirm who is providing the maintenance funds for their use in studying and living in the UK and that the funds will remain available to them unless used to pay for course fees and living costs.

Tier 5 (Point Based System)

Currently, Tier 5 Religious Workers are permitted to fill roles, which ‘may include preaching, pastoral work and non-pastoral work’. A migrant is allowed to come to the UK and fill roles without having to demonstrate an ability to speak English. The new change now directs these applicants towards the appropriate (existing) category of Tier 2. The new requirement for Tier 5 Religious Workers will prohibit employers from assigning a certificate of sponsorship when the role is that of a Minister of Religion. This is to ensure that the needs of religious establishments are still catered for under Tier 2.

The “cooling off” period requirement requires the Tier 5 Religious Workers and Charity Workers to spend a minimum of 12 months outside the UK before returning to the UK either under a Tier 5 or Tier 2 visa. This will prevent migrants from applying for consecutive visas, thereby using the routes to live in the UK for extended periods, so as to reflect the temporary purpose of the routes better.

 Seasonal workers scheme

A new pilot scheme is due to come into effect in 2019. This scheme is to enable non-EEA migrant workers to come to the UK to undertake seasonal employment in the horticultural sector. The formal date of implementation of this scheme will be announced in due course.

Domestic violence provisions – Partnership visa

Victims of abuse who are in the UK under a partner visa or sponsorship by a British citizen or settled citizen will be granted indefinite leave to remain if their relationship breaks down. These include partners of people with refugee status who have not yet been granted indefinite leave to remain.

Upper Tribunal establishes a new Derivative Right of Residence under EU Law for Family Members of British Citizens

In the recently reported case of LS v SSHD (Article 45 TFEU – derivative rights) [2018] UKUT 00426 (IAC) concerning the free movement rights of British citizens who live in the UK but travel frequently to other Member States of the EU for business purposes, the Upper Tribunal held that a third country national family member of such British citizens may be able to establish a derivative right of residence under Article 45 of the TFEU.

Ultimately in this case, it was found that two British citizens would be realistically in danger of being unable to continue their employment in the UK which required them to travel frequently in the EU should their family member, a third country national, be unable to provide childcare.

New Derivative Right

This is a significant step in the interpretation of EU rights to free movement in the UK. The derivative right which is established by this judgment sets a precedent in upholding the rights of British citizens to exercise free movement rights in the EU.

The appellant in this case is a Russian national who entered the UK for the purpose of visiting her daughter and son-in-law, both British citizens, who had recently had their first child. The employment of both British citizens required them to travel very frequently to other EU countries. Several months into the appellant’s visit, when her daughter was looking to return to work but struggling to make alternative childcare arrangements, it became evident that the appellant’s presence was indispensable due to the child’s complex care needs. Without the appellant fulfilling the role of caring for her grandchild, neither her daughter nor her son-in-law could continue to travel as required by their respective employments.

The Upper Tribunal accepted the position set out in the ECJ’s judgment in S & G (C-457/12)(S v Minister voor Immigratie, Integratie en Asiel and Minister voor Immigratie, Integratie en Asiel v G), that a third country national could establish a derivative right of residence in the Member State of which their family member is a national, if they meet the following criteria:

  • They are a family member of a Member State national within the terms of the Citizens’ Directive
  • Their family member must be exercising treaty rights (travelling regularly to other Member States for professional purposes falls within the scope of exercising treaty rights under Article 45 of the TFEU)
  • If it were not for the presence of the third country national family member, an absence of adequate childcare for the child of the Member State national would discourage them from exercising treaty rights

The Upper Tribunal noted particularly the threshold of the requirement that the British citizen would be dissuaded from exercising treaty rights.

In many such cases, it would clearly be preferable for the child to be cared for by a family member rather than any alternative such as a nanny or au pair, not least because it would be in the best interests of the child. However, it was held that this would not be enough to establish the dissuasive element. The Tribunal would need to undertake a wide evaluative assessment of the particular childcare needs. Moreover, adequate and reasonable steps would need to have been taken to obtain alternative childcare. The interference with the British citizen’s exercise of treaty rights must be real and there must be a causal link between the absence of adequate childcare and such interference.

Reported so soon before the UK is expected to leave the EU, this judgment throws up an interesting point regarding the current rights of British citizens which are afforded by EU free movement.

It is difficult to conceive of domestic UK legislation upholding the rights of British citizens to undertake professional activities abroad in order to maintain their UK employment, where they are at risk of being discouraged from doing so by difficult family circumstances, such as an absence of adequate childcare arrangements.

It is suggested that perhaps some more progressive immigration provisions will be required in future to address the problem that British families may face an economic crisis or be prevented from engaging in an increasingly global workplace in order to uphold the safety or security of their children. Perhaps these measures are needed even to provide sufficient motivation for such British families to continue living in the UK.

For more details and comments please on this case and its implications, please feel free to get in touch directly with Josephine Smith and Ruslan Kosarenko

 


UK Immigration & Legal Assistance

For expert advice and assistance in relation to your particular immigration case and to inquire about the immigration and legal fees, please contact our immigration 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.