Category: Updates & Publications

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.

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

Changes to the Immigration Rules: Tier 2 (General) Visa

The Home Office announced on 15 June 2018, changes to the Immigration Rules will affect a number of categories including Tier 2 of the Points-Based System.

Changes are being made to exempt doctors and nurses from the Tier 2 (General) limit. This is in response to the particular shortages and pressures facing the NHS at the current time, and the fact that the limit has been oversubscribed in each month since December 2017.

The changes will mean that health sector employers will be able to sponsor doctors and nurses without requiring restricted Tier 2 certificates of sponsorship or putting pressure on the limit. This will free up places within the limit for other key roles which contribute to the UK economy and other public services. The changes will be kept under review.

In all other respects, the change preserves the existing arrangements. This means that all applications for nurses, and all applications for doctors not currently recognised on the Shortage Occupation List, will continue to be required to demonstrate that they have met the requirements of the Resident Labour Market Test.

Doctors currently recognised on the Shortage Occupation List will continue to be exempt from the RLMT.

The following additional changes are being made to Tier 2 Visa category:

  • Amendments are being made so that applications for Restricted Certificate of Sponsorship for Croatian nationals no longer count towards the Tier 2 limit. 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 of the fifth anniversary of Croatia’s accession to the EU.
  • From 14 June 2012, the skills threshold for jobs sponsored under Tier 2 (General) and Tier 2 (ICT) increased from Regulated Qualifications Framework (RQF) level 4 to RQF level 6. The transitional arrangements, for those previously in these routes to extend their stay, are no longer needed and are being closed. Provisions for these migrants to apply for indefinite leave to remain are being retained. The Government signalled in March 2016 that this closure would take place in July 2018, and set this out in the published guidance for Tier 2 sponsors.
  • A change is being made to expand the restriction on Tier 2 migrants holding more than 10% of shares in their sponsor so as also to restrict such ownership being held indirectly, such as via another corporate entity.
  • A change is being made to the evidential requirements for Tier 2 migrants applying for settlement, who have been absent from work on maternity, paternity, shared parental or adoption leave. These applicants are additionally required to provide evidence of the underlying adoption or birth that necessitated their leave. These changes bring the requirements in line with similar requirements elsewhere in the Immigration Rules.
  • References to Find a Job, the service replacing Universal Jobmatch, have been included for the Resident Labour Market Test.
  • Minor drafting corrections are being made to correct the Standard Occupational Classification (SOC) code used for midwives. These corrections have no impact on the way applications for midwives are considered.

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.

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.

New UK start-up visa introduced by the Home Office

The new visa route was announced by the Home Secretary, Sajid Javid, during London Tech Week on 13 June 2018. According to the statement, the UK start-up visa route will widen the applicant pool of talented entrepreneurs and make the visa process faster and smoother for entrepreneurs coming to the UK. It will replace a visa route which was exclusively for graduates, opening it up to a wider pool of talented business founders.

People who want to start a business in the UK will be able to apply for a new “start-up” visa, the Home Secretary has announced. 

According to the Home Secretary, new start-up visa will help to ensure that the UK continues to attract the best global talent and maintain the UK’s position as a world-leading destination for innovation and entrepreneurs.

It will require applicants to have acquired an endorsement from a university or approved business sponsor, including accelerators. This start-up visa has been designed following advice from the Migration Advisory Committee and feedback from the tech sector and other stakeholders.

This initiative builds on other recent reforms to the visa system – including doubling the number of visas available on the Exceptional Talent route to 2,000 per year – and shows the government’s commitment to making the UK a dynamic, open, globally-trading nation.

The expanded UK start-up visa route will launch in Spring 2019, further details will be announced in due course.

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.

Is your business compliant with the New Data Protection Regulation?

What is General Data Protection Regulation (GDPR)?

In short, the General Data Protection Regulation (GDPR) is a set of European regulations on how EU citizens’ data is handled. In general, the rules are more strict than before and there are significant fines and penalties if you do not take care to familiarise yourself with the new legislation.

Does it apply to my business?

The General Data Protection Regulation (GDPR) will apply from 25 May 2018.

If you are processing (handling) or controlling (making decisions about) any personal data (for example names, addresses, emails, phone numbers, IP addresses etc.) of an EU citizen, then you will be affected by these changes. This includes businesses that are not necessarily based in the EU and the data is not limited to your clients but also includes employees, suppliers and other partners. There is a separate group of ‘special categories’ of personal data for things like ethnic background or religious views.

Furthermore, the government has indicated that this legislation and the Data Protection Regulation will remain in full force after Brexit.

What do I have to do?

There are 11 chapters and 99 separate articles in the new General Data Protection Regulation (GDPR) legislation. There are various legal reasons you can have for processing data (contract/legal obligation/vital interests/public task/legitimate interests), but generally speaking, the most important one for most small businesses is that of consent.

Consent to handle data needs to be clear, specific, explicit and freely given, so it cannot be hidden in small print or involve a default ‘opt-in’ position.

Additionally, data must be deleted or anonymised after a certain period of time. People will also have the right to access all the personal data you hold on them at any time, or request that you delete the data you are storing on them, so it is important that it is stored in an organised and comprehensible fashion to be accessed quickly and easily.

What are the penalties for non-compliance?

Businesses that breach the new Data Protection Regulation are open to substantial fines of up to €20 million or 4% of your company’s annual global turnover (whichever is larger), so clearly these rules are not to be taken lightly. It is also worth bearing in mind that an individual who suffers as a result of poor data management can sue you for damage.

How can we help?

If you are unsure about what steps to take next, our lawyers are on hand to point you in the right direction.

Our comprehensive and competitive advice on the General Data Protection Regulation (GDPR) compliance includes, but is not limited to:

  • Update your Terms of Service and Privacy Policy to comply with the GDPR
  • Update your website to comply with GDPR
  • Provide a list of action points to anonymise online payments
  • Advise on anonymising inactive customers and prospects
  • Consult on data mapping
  • Provide full-scale, comprehensible information about “Right to Access” and “Right to be Forgotten”
  • Additional services, such as training your staff

For expert advice and assistance, please contact our lawyers on tel. +44(0)20 7822 8599 and by e-mail: info@sterlinglawyers.co.uk

employment contract

Illegality of employment contracts

When an employment contract is fundamentally unlawful, employers can rely upon the illegality of the contract as a defence to any claim that an employee may bring, for unfair dismissal for example.

One way of looking at this is that if both parties have benefited from some underlying fraud, the tribunal or court would be less likely to enforce the contract. However, if the employee has clearly been in a weaker position and has been exploited, the contract might be held to be enforceable.

Often this occurs because of an employee’s unlawful immigration status; one interesting recent case in which judgment was given on 15th January 2018 was Okedine v Chidale, decided by the Employment Appeal Tribunal (EAT). The Claimant employee had been brought to the UK as a domestic worker, but her immigration status meant that after six months, she was working illegally. She brought a claim having worked for two years, when she would have ordinarily gained unfair dismissal rights.

Not surprisingly, the Respondent employer argued that the Claimant had been working unlawfully and had no right to make any such claim due to her alleged breach of immigration law. The initial tribunal rejected that argument, finding that she had no knowledge of that illegality.

The Respondent employer appealed, arguing that the employment contract was void from the outset because it was not a temporary contract, it had been intended as permanent. Being void from inception is grounds for illegality which makes the contract completely invalid, i.e. it is treated as if it never existed from the very beginning.

But the Appeal Tribunal agreed with the original tribunal’s decision and rejected the employer’s argument. The contract was terminable upon six weeks’ notice and therefore was not ‘void from inception’, and therefore not in breach of immigration law.  The EAT decided that the legislation relied upon did not invalidate the contract, as even if it provided for a criminal offence, it said nothing about the validity of a contract entered into by an employer.

Furthermore, the EAT considered that in the interests of public policy, it was still appropriate to allow the enforcement of the contract in this case; allowing enforcement is always a matter of public policy, and this has always been the aim of established case precedents in this area (such as Hall v Woolston Hall Leisure Ltd.)

So what conclusions can we draw from this?

From the point of view of employers, it is necessary that all employers check the immigration status of their employees properly and have proper documentation. Not only could employing workers unlawfully result in criminal penalties, you could face a tribunal claim from an employee who technically was working in breach of his/her entitlement to work, or some other illegality.

And from the point of view of employees, the case is positive news in that it solidifies employees’ rights. But obviously it is vital to ensure that you are not breaching your immigration status and we are certainly not suggesting that it is an appropriate risk to take to work unlawfully for any reason. The law is still full of many uncertainties.

If you would like advice on any aspect of employment law, please contact us at info@sterlinglawyers.co.uk.

Kuldeep S. Clair

Football World Cup in Russia: Visas, Migration Control & Registration

This summary describes the main visa-free entry, migration control and registration requirements applied to the supporters travelling to Russia for the 2018 FIFA Football World Cup.

On the 11th May 2018, the Embassy of Russian in the UK published an official updateInformation on foreign citizens’ migration regulations and registration at the place of temporary residence during the 2018 FIFA World Cup™

According to this statement, foreign nationals and stateless persons, visiting the 2018 FIFA World Cup™ football matches, can enter and exit the Russian Federation between 4 June and 25 July 2018 without visas, using identity documents (passports, travel documents) and a FAN ID (personalised football supporter card) issued either in the paper (laminated) or electronic form.

FAN ID to Visit Russia for Football World Cup

The FAN ID entitles a foreign spectator to enter, temporary reside in and exit the Russian Federation during the football tournament.

The FAN ID is a personalised football supporter card, which is part of football fans’ identification system.

The FAN ID is issued to all football supporters to ensure their comfortable and secure stay at the stadiums in Russia during the football World Cup matches. All supporters, who have purchased tickets for the 2018 FIFA World Cup™ matches, must obtain this card.

The FAN ID is a personalised laminated card, which is issued free of charge and once for each spectator.

How does FAN ID work:

“Fan ID” holders are permitted to enter without a visa and stay on the territory of the Russian Federation from 4 June 4 to 25 July 2018.

  1. Buy a ticket for the 2018 FIFA World Cup™
  2. Register on the website and receive a confirmation
  3. You can get a FAN ID by mail or at one of the FAN ID Distribution centres
  4. Use your FAN ID for free travel in Russia
  5. Take your FAN ID with you for admission to the stadium 

Information on the procedure for obtaining a Fan ID can be found on the websites of the organizers of the above sports events at: www.fan-id.ru and www.welcome2018.com.

Fan ID Guide

Info for Travellers

Information for FIFA World Cup 2018 Travellers

The information on the migration legislation and foreign spectators registration

Entry to Russia: Migration Card & Registration

A migration card is handed out to each supporter by the Border Control officers on arrival to Russia. This card must be retained by a visitor during the whole period of stay in Russia.

In case of damage or loss of the migration card a visitor must apply to the migration subdivision of the territorial office of the Ministry of the Interior Affairs of Russia (the “Migration registration body”) at the place of temporary residence to obtain a duplicate.

Foreign nationals visiting Football World Cup venues in the cities of Volgograd, Yekaterinburg, Kazan, Kaliningrad, Moscow, Nizhniy Novgorod, Rostov-on-Don, Samara, Saint Petersburg, Saransk and Sochi between 25 May and 25 July 2018 must register at the place of their temporary residence within 24 hours after arrival to each city.

If a visitor intends to stay in one of the above cities less than 24 hours, he/she should not register, except in cases when he/she stays at a hotel.

Foreign nationals who are taking part in the sporting events, including Football World Cup participants, as well as representatives of the FIFA and FIFA subsidiaries, confederations and national football associations, and who are included in the FIFA lists, shall not be subject to registration at the place of their temporary residence (According to Article 8 of the Federal Law dated June 7, 2013 No 108-FZ “On preparation and hosting of the 2018 FIFA World Cup, the 2017 FIFA Confederations Cup in the Russian Federation”).

Who can host World Cup visitors in Russia?

The citizens of the Russian Federation, foreign citizens and stateless person having permanent residence in the Russian Federation (holders of residence permit), as well as legal entities and their subsidiaries or branch offices can act as the hosts (Hosting Parties) for the foreign nationals visiting Russian for the Football World Cup.

When a foreign national stays in a hotel, the hotel’s administration is the host (Hosting Party).

In order to fill in the Notification of Arrival at the Place of Temporary Residence (the Notification of Arrival) a foreign national must present to the Hosting Party identification document and migration card. In case a foreign national arrives to a new place of temporary residence he/she must also present to the Hosting Party a detachable part of the Notification of Arrival issued at his/her previous place of temporary residence in the Russian Federation.

The Hosting Party fills in the Notification of Arrival and submits it together with copies of all pages of the visitor’s identification document as well as the copy of migration card to a Migration registration body, which stamps the Notification of Arrival and returns the detachable part of the Notification of Arrival to the Hosting Party.

The Hosting Party then gives to a foreign national the detachable part of the Notification of Arrival. The fact that the visitor has the detachable part of the Notification of Arrival with the mark of reception confirms his/her migration registration.

There is no government fees or other charges for registration at the place of temporary residence.

The Hosting Party’s non-submission of the migration card to the Migration registration body can not serve as ground for a refusal to accept documents necessary for the foreign national’s registration at the place of temporary residence.

Submission of the Notification of Arrival and necessary documents via the post, through multifunctional centers, the Unified Portal of State Services or by electronic means in the course of the 2018 FIFA World Cup™ is not allowed.

A foreign national has the right to register his/her arrival at the place of temporary residence with the Migration registration body by him/herself in case there are documented reasonable excuses (illness, physical impossibility, etc.) preventing the Hosting Party from submitting the Notification of Arrival to a migration registration body.

The foreign nationals permanently residing in the Russian Federation and holding a residence permit have a right to notify the relevant Migration registration body of his/her arrival at the place of temporary residence by him/herself directly with the written consent of the Hosting Party.

Foreign nationals, who have not undergone registration at the place of their temporary residence are not subject to responsibility for violation of the migration registration rules, except in cases when the duty to register lies with the said foreign citizen (According to Article 24 of the Federal Law dated July 18, 2006 No.109-FZ “On the Foreign Citizens and Stateless Persons Migration Registration in the Russian Federation).

Additional Information

Foreign citizens who in the course of the Football World Cup plan to temporary reside and travel around Russia exclusively by buses, camper vans, personal transport means, small vessels, etc. are not subject to registration at the place of the temporary residence.

For the purpose of timely registration of the football supporters, the territorial offices of the Ministry of the Interior Affairs of Russia will be open on a daily basis, including weekends and public holidays.

Legal Assistance

For expert advice and assistance in relation to your particular case, please contact our 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: How to build a startup (and stay in the UK with Tier 1 visa) – 17 May 2018

Sterling & Law Associates LLP and Marylebone Entrepreneurial Club invite students and graduates to join our workshop “How to build a startup (and stay in the UK with Tier 1 visa)” held on Thursday, 17 May 2018 at Cass Business School, London.

Date & Time:

Thursday, 17 May 2018 at 18.00

Venue:

Cass Business School, 106 Bunhill Row, London, EC1Y 8TZ [MAP]

Admission: Free but registration is required via Eventbrite.

Speakers:

  • Ruslan Kosarenko Lawyer UK – Principal Partner at Sterling & Law Associates LLP, has 11 years of experience in immigration law practice with particular expertise in complex human rights cases. He is an expert in Tier 1 Visa (Investor and Entrepreneur) applications, acting for both corporate and individual clients.
  • Slava Baranovskiy – creative entrepreneur, tech startup founder, film director/producer and Entrepreneur in Residence of Westminster Business School with a strong business and tech background, founder of Eligent.

The event is aimed at Russian speaking students and graduates considering to establish their own company in the UK and utilise it to obtain a Tier 1 visa.

Schedule:

1. How to build your own start-up –  presentation by Slava Baranovskiy
2. How to get a Tier 1 visa – presentation by Ruslan Kosarenko
3. Panel Discussion on contiguous matters
4. Q&A session
5. Networking

Main topics covered:

1. Building a tech startup

– How to get a great tech startup idea.
– How to build your startup product.
– Main technologies you need to know.
– How to build your startup team.
– How to find CTO/tech resources for your startup.
– What are the main tech startup challenges/failures and how to resolve them?

2. Defining your product/service

– Who is your target audience?
– Who are your competitors?
– What is your Product/Service USP?
– What is your marketing/sales strategy?

3. Immigration and Business

– How to make myself and my business eligible for Tier 1 visa?
– How to prepare for application? Tips and hints.
– What are typical mistakes and reasons for refusal?
– How to get a Tier 1 Visa if I don’t have an idea?

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