Category: Updates & Publications

Appeal allowed for a further leave to remain based on private life in the UK and financially dependent child

Nollienne Alparaque and the team were recently successful in an appeal case in the First-tier Tribunal.

In this case, the client has appealed against the refusal for a further leave to remain in the UK, in which they heavily relied on their private life in the UK and their financially dependent child of 20 years of age. The applicant is financially self-sufficient and has owned her business for over ten years. The client’s son is a University student, who failed to obtain a student loan to pay his university fees, as he did not have a three year visa. Due to not being able to finance his own education, as he has no savings and assets, the client’s son seeks full financial support from his mother during his university years.

The judge has considered the fact that the applicant’s son has been living with his mother before going to university, and continues to do so throughout his university years, as he is wholly reliant on his mother and does not lead an independent life. Furthermore, it was found that there is a clear financial and emotional dependency enabling the applicant’s son to complete his education without the applicant’s support. The judge noted that if the client had to leave the UK, she would not be able to run her business, which would make it no longer possible to generate the income required to support and pay for her son’s university education.

The outcome of this appeal was successful, as the judge ruled that under those circumstances it would be a breach of the right to a family life and the client’s son would be deprived in the event of his mother’s removal from the UK to pursue his education and career.

Fully Qualified Practice Accountant

Fully Qualified Practice Accountant 24 hours (Part time) (£40,000-50,000 p.a. pro rata)

Job Description

Sterling Beanland is an accountancy practice based in the heart of London, Blackfriars. Due to the fast-growing team, the company requires a professional with outstanding leadership skills, great motivation and significant experience in the financial industry who will take over and lead the team to success.

Overview

This role would suit a qualified Chartered Accountant or Client Manager with 3 years Practice experience, who is able to work efficiently and support your clients, you will need excellent attention to detail and be able to respond quickly to queries and think on your feet. The role will mainly be dealing with statutory accounts, SA Returns, dealing with tax & HMRC, and other stakeholders. You will likely have a varied background working in an accounting firm with sole traders, partnerships, corporate accounts as well as personal tax, business tax and corporate tax. You will be personable in front of clients and able to build strong relationship with all kinds of clients. You will be fully qualified accountant ACCA/CTA/ATT /ACA etc. qualified.

 

Requirements:

Minimum of 3 years’ experience in practice
ACA, CTA, ATT or ACCA qualified
Strong communication skills
Excellent customer service skills
Excellent knowledge of Taxation
Knowledge Xero, Quickbooks, Taxfiler, Taxcalc

Position Remuneration

Salary of £40,000 – £50,000 p.a pro rata dependant on skills and experience
Ongoing training and career development
Pension scheme

Domestic Violence Retained Rights Appeal Allowed!

Another fantastic result from Oksana Demyanchuk and her client after another successful appeal to the First-tier Tribunal.

The client, in this case, came to Sterling & Law Associates LLP after her marriage to an EEA national had broken down on grounds of domestic violence. Accordingly, an application for a residence card on the basis of the retained right of residence was made to the Home Office.

However, this application was refused as the marriage between our client and her EEA national Sponsor has not lasted for at least 3 years and the Home Office was not satisfied that our client had been a victim of domestic violence as there was little documentary or no independent evidence to corroborate our client’s claim to have been the victim of domestic violence.

Accordingly, Oksana lodged an appeal to the First-tier Tribunal against the decision of the Home Office, asserting that the client’s claim to be the victim of domestic violence was credible and therefore the Home Office decision was unlawful.

As is often the case in matters involving domestic violence, our client had little tangible evidence to demonstrate that they were a victim of such violence. Therefore, Oksana has placed particular attention and emphasis on the witness statements in the appeal.

The Judge, accepting that evidence in cases of domestic violence is not always available, found that the evidence of our client and witnesses was credible and gave a detailed picture that our client was, in fact, a victim of domestic violence. In doing so the Judge noted the following:

“I am not confined or restricted to independent documentary evidence such as that which the respondent may usually seek in cases involving or alleging domestic violence. The absence of police and medical reports are not necessarily indicators that the appellant did not suffer or was not the victim of domestic violence.

There are a whole host of reasons why those who suffer domestic violence, and especially women victims of male perpetrators, are reluctant to report to the police and the authorities that they are such victims. The reasons can be multifarious and complex and this is well documented in much research and studies in the area of domestic violence.

The royal engagement indicates how difficult it is for British citizen to get married with the foreigner

Many of British citizens, who want or ever wanted to wed a foreigner felt some sympathy for Prince Harry and his American fiancée Meghan Markle last year. Since 2012 it has become more difficult for the British to marry foreigners. There are various reasons for that. The first and foremost, an expensive test has caused many obstacles for British willing to connect their lives with the foreigners. Prince Harry was not an exception, he had a long interview with the Home Office. Also, Ms. Markle will not be able to avoid the procedure that most other foreign brides have to go through.

 

We believe that the first step for her is to obtain a fiancée visa, which will unite the couple and let them live together after the wedding. After that, Ms. Markle will be eligible to submit an application for leave to remain. Thereafter, she might be able to apply for a permanent residence after having resided in the UK for 5 years. Of course, this all is possible, if she will successfully pass the British life test. Another difficulty that we should admit, that this is a rather costly procedure and not many people can afford it. Roughly, it would cost nearly GBP 7000 all in.

 

However, not only foreign fiancée has to suit endless requirements for being able to become the wife of a British citizen. British husband/wife will have to pass a minimum income threshold. According to the new rules, a British national who wants to connect life with the foreign partner must have an income of approximately GBP 18,6000 a year. Saying from the start, 40 % of British citizens would not be able to pass this threshold, as their income is much less. The most interesting fact is that Prince Harry may also fail to succeed in this test, as since leaving the army in 2015 he has not done much work, but charity. Even so, they were able to get married due to having over GBP 62,000 of savings – this is what saved the legal part of their marriage.

 

Let us provide some statistics – in 2010 almost 41 thousand fiancée visas were granted, but 6 years later when the new rules came in, only 29 thousand of the lucky got a visa. This is a significant difference when more than a quarter of applicants were rejected. Rules on getting fiancée visa are getting tightened, which leave no other choice for British nationals but to give up their dreams to wed a special citizen of nowhere.

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

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

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

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

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

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

Nollienne Alparaque 

Email: nollienne@sterling-law.co.uk

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

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

 

 

 

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

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

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

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

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

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

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

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

Moral and conclusion of the story:

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

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

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

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

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

 

Kuldeep S. Clair

Consultant Solicitor

Employment, Dispute Resolution and Litigation

+44 (0) 7484 61 4090

kuldeep@sterlinglawyers.co.uk

 

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

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

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

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

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

UK Immigration & Legal Assistance

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

Tel. +44(0) 20 7822 8599

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

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

or via our online appointment booking form.