Category: Updates & Publications

british citizenship

Court of Appeal prevents limitation on Surinder Sigh facilitation right

It is a common occurrence for a British citizen to meet and form a relationship with a non-EU national living in the EU with their respective right of residence. The principle established in the Surinder Sigh allows a British citizen returning from the continent to bring certain non-EU relatives into the UK. It is important to note that this is a European Union law and not the domestic rules of a particular member state that also applies to any family members. 

In the recent case of Secretary of State for the Home Department v Christy [2018]EWCA Civ 2378 the Home Office has made an attempt to limit the obligation to consider the right established in Surinder Sigh. Ms. Christy established a strong relationship with Mr. Jones, a British citizen whilst they were residing in Poland under Poland’s domestic immigration rules and not under EU law. 

The Home Office argued that they had no obligation on a Member State to even consider a Surinder Sigh application where the applicant was not granted a right to remain in the member state where the relationship was formed on the basis of that relationship. 

Although a member state will still have the freedom to refuse an application after full examination on the personal circumstances of the applicant, Lord Justice Sales stated in his judgment

it would be inconsistent with the rationale given by the CJEU …. to deny the existence of a derived right of facilitation in such a case”

Lord Justice goes on to affirm that the Home Office must bear in mind that the absence of an application in the host member state for status under EU law based on the relationship could not be a relevant factor, given that it was not a pre-requisite. 

The decision made is entirely sensible and fair as it would be wrong to impose a requirement on a non-EU national when they had their own right to reside under the appropriate domestic law.

 

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.

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Landlord & Tenant Disputes: Legal Basics

Our senior litigation solicitor, Kuldeep S. Clair, reviews how we may be able to help you if you are involved in disputes over property which you have either rented or are renting out.

Sterling Law can help in disputes whether you are the landlord or the tenant. In practice, we deal with disputes over residential property, and the majority of those properties are let on ‘assured short-hold tenancies’. However, we deal with other rental situations, and commercial tenancies as well.   

Assured shortholds are designed to cover tenancies of households that tenants use as the main home.

Such a tenancy usually begins for a fixed term of at least six months, and then it can theoretically be renewed for a further fixed term. But it can also just carry on, usually on a monthly basis. 

The important points which distinguish assured shorthold tenancies are that: 

  • Landlord can take possession without giving a valid reason once the original term has expired.
  • Landlord must still give a minimum period of notice to do that, and cannot forcibly remove the Tenant without do so through licensed bailiffs, and obtaining a court order first.
  • An initial deposit is taken by the Landlord, which is must be held under an authorised independent scheme and repaid to the Tenant at the end of the tenancy.        

Sterling Law can help whether you are a landlord or tenant, if you have a dispute over, e.g.

  • unpaid rent or longstanding arrears of rent 
  • alleged damage to the property, 
  • use of property for unlawful purposes, causing annoyance to neighbours  
  • harassment/intimidation/bullying to the residents  
  • unlawful eviction, or wanting legitimate re-possession. Assessment of the Landlord’s grounds to re-possess.
  • any other breach of the agreement by either side – what are your rights and obligations, and how can they be enforced?

If you require any assistance or advice, please contact us directly for a free case assessment:  

Kuldeep S. Clair

Consultant Solicitor 

kuldeep@sterlinglawyers.co.uk 

Tel. 0207822 8599

Mob. 07484 614 090

 

 

Discrimination prevails between married and cohabitating couples in the LGPS

Catherine Harvey who has been cohabitating with her partner Stephen Roe for 29 years has been refused survivors’ pension when Mr. Roe passed away in 2016 from the Local Government Pension Scheme (LGPS). This refusal was maintained despite the reform on 1st April 2008 where the Secretary of State changed the rules to include cohabiting couples in the entitlement to survivors’ pension. It was clear discrimination when the partner of someone who had worked alongside Mr. Roe for ten years up to 2003 and continued working until May 2008 was entitled to survivors’ pension for their service including the ten years they worked alongside Mr. Roe whereas Ms. Harvey was not entitled to receive anything for the same service. 

As our society changes, marriage is further down the ‘life plan’ for many couples. The United Kingdom, known as a forward moving country should have pension scheme rules which reflect the world we live in today, and not the world of 50 years ago. The Court’s judgment towards Ms. Harvey portrays the UK as a country that forces couples who are potentially saving to marry or are just not ready to marry into marriage. The discrimination against Ms. Harvey is totally unacceptable and needs to be addressed as a matter of urgency.

Source: Bindmans LLP

UK Immigration & Legal Assistance

For expert advice and assistance in relation to your particular immigration case and to enquire about the immigration and legal fees, please contact our immigration lawyers on Tel. +44(0) 20 7822 8535, Mobile: +44 (0) 73 0584 8477, e-mail: contact@sterling-law.co.uk or via our online appointment booking form.

Rise in hostility in criminal courts?

In criminal proceedings, often the Defendant will stand and confirm their identity; name, date of birth and address. Evidently, this is necessary to ensure the right person is in the dock. In 2017, by virtue of section 162 of the Policing and Crime Act 2017, regulations do not require Defendants in England and Wales to prove the court with their nationality in addition to other information. If the Defendant fails to do so without ‘reasonable excuse’, they will be punishable with up to 51 weeks imprisonment or fine or both. These changes allowed to speed up deportation of foreign criminals. 

Inevitably the question arises – how will this impact the impartial and fair nature that comes with the criminal justice system? Racial bias is a serious problem. It is rising not only in the United Kingdom but also in countries all over the world. Forcing Defendants to reveal where they come from in court will potentially only worsen discrimination and lead to unfair trials. 

The function of criminal courts

The criminal courts primarily need to determine if an accused is guilty or not and impose any sanction as it sees fit. The new rule gives the criminal courts power to act as a partner of the UK Border Agency. This should not be the case. Bringing border controls into the criminal courtrooms will likely affect the Defendant’s trust in the court’s fairness. 

Penelope Gibbs, the director of Transform Justice and a former magistrate said “What relevance does a Defendant’s nationality have if they are pleading not guilty? Or if they are accused of a crime which is not imprisonable?”. On top of that, will the court disproportionately give a custodial sentence or bail? 

In addition to the concerns of the effects to this new rule, there is also very little information available as to how this new law will be implemented. In the event the Defendant fails or refuses to state their nationality – how will the court prove the charge? Will it treat it as contempt of court? 

Source: ILPA, October 2018

 

UK Immigration & Legal Assistance

For expert advice and assistance in relation to your particular case and to inquire about the 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.

 

Why register your trademark?

It is almost impossible to make a step without stumbling across a trademark today. And it is absolutely smart and fair. Each entrepreneur and every company put principal emphasis on its name and logo. The fortune of the trademark is determined by original representation and positive slogans rather than a simple quality of goods and services. Successful brands are working hard to create catchy names and admirable logos to attract clients attention. However, investments in marketing and a high-flown name would be unreasonable if the result is not thoroughly protected. If you ever thought about the value of your business name and logo you should know about the advantages of trademark registration. 

Business protection

Until your trademark (including name, logo and related branding) does not register it is not your property. Competitors may secretly register your trademark in their own name and prohibit the usage by your company. In this case, you might also be liable to compensate for the illegal use of the trademark and the associated costs.

Unfair Competition

If you don’t have the so-called monopoly on your trademark you risk suffering from market duplicates and copying.  Regardless of the amount of time and money you invested in the uniqueness of your name, there will always be the intent to steal your idea or exploit the reputation of your brand on the market. Unfair competitors can legally produce goods under your sign and bring your company reputational and commercial costs. 

Exclusive rights

With the registration of the trademark company, an owner gets the full scope of rights on its utilization. The owner may license it to another party for use in return for payment as well as sell it. Moreover, if your trademark is used without your consent on other products, labels, in advertisements, on signs or on the Internet and in other cases you may initiate the proceedings and qualify for compensation. 

Individualisation of goods and services

Registration of IP makes your company more reliable for customers and thus allows you to take a leading position on the market. Registered trademark brings uniqueness and significance to your idea. In addition to that, you can use the official ®s and ™ signs for the proper representation of your protected rights.  

Advertising

A competently created trademark in itself helps to sell any goods and services. It enhances the reputation of a company or brand and independently contributes to the reputation. A trademark certificate simplifies the registration of the company’s sign in state bodies and makes the advertising process work faster. 

 

 

Katsiaryna PazniakIntellectual Property Consultant

 Phone: +44 (0) 20 7822 8535

Fax: +44 (0) 20 7183 7379

E-mail: katsiaryna@sterlinglawyers.co.uk 

 

Shakir Hussain, Senior Solicitor

Email: shakir@sterling-law.co.uk

Phone: +44 (0) 20 7822 8535

 

A Victory for Our Client in the Employment Tribunal

Our client was employed as a bus driver and had 18 years of continuous employment. He had a clean record with no warnings or incidents. 

While driving in the rain, he had been involved in one unexplained low-speed accident which resulted in a collision with three parked cars and a fence. This caused about £40,000 of damage. He believed that the brakes on his vehicle had failed, although the employer had carried out tests and found nothing to be wrong.

There was video evidence of the bus journey, including in the driver’s cab. This showed that he was obviously awake and not distracted at the time that the accident occurred. 

The cause of the accident could only be complete unexplained negligence by our client, the driver, but he did not accept that. He disputed it from the very first time that the employer interviewed him. The company dismissed him within a couple of weeks, and his internal appeal was also unsuccessful.  

Attempts to negotiate a compromise were unsuccessful and this led to a hearing recently at Watford Employment Tribunal. One of the large ‘magic circle’ City law firms and their specialist employment barrister opposed us all along. 

Our employment solicitor, Kuldeep Clair, handled the case for us, and also advocated at the tribunal.

The decision of the tribunal came a month after a three-day hearing. We pointed out how the company had not considered theoretical alternative explanations for the accident, and how disclosure of the brake test reports had come extraordinarily late. The company’s culture of hostility to lawyers representing employees was also criticised; their HR appeals manager had been uncooperative and failed to look at the original decision afresh. 

The negative side was the following:

The tribunal felt that the employer can conclude the brakes were not faulty. This is in the light of all of the evidence, and lack of a positive alternative explanation from the client.

Decisions to dismiss are rarely black and white. They need to fall in a ‘band of reasonable responses’. A tribunal will always be looking at the overall reasonableness of the employer’s decision taking account of the full circumstances.   

However, we were successful in pointing out the procedural irregularities throughout. The tribunal decided that if the employer had adopted a proper procedure, there was a 30% possibility that the employer’s decision might have been in favour of our client. So, he received only a proportion of his full damages. However, that was enough to cover the trial costs. He fought the case as a matter of principle, and so he was pleased with the result. He had few ongoing losses as he found an alternative job three months after being dismissed in any event.

If you would like advice on any aspect of employment or business law, please contact us directly:

Kuldeep S. Clair

Consultant Solicitor 

kuldeep@sterlinglawyers.co.uk 

+44 7 484 614 090

UK Visa Premium Service Centres will close from 29 November 2018

The Home Office announced introduction of the new in-country visa application system from November 2018. The system is be based on the online application functionality and operation of the new UK Visa and Citizenship Application Service (UK VCAS) Centres.

The first VCAS opened around the UK from 5 November and current Premium Service Centres will close on 29 November 2018.

The applicants now have the choice to use one of 57 Service Points throughout the UK. It is also expected that more flexible “on-demand” (formerly known as Super Premium) and mobile application services will be available, for example at university campuses, employers’ offices or individual customers’ homes.

Application Routes

The applicants in the UK seeking to remain in the UK or to settle permanently on the following routes are eligible to use the new service UK Visa Citizenship Application Service (UK VCAS) from 5 November 2018:

  • Tier 1 (Investor)
  • Tier 1 (Exceptional Talent)
  • Tier 1 (Entrepreneur)
  • Tier 1 (Graduate Entrepreneur)
  • Tier 2 (General)
  • Tier 2 (Intra-Company Transfer): graduate trainee Tier
  • 2 (Intra-Company Transfer): long term staff
  • Tier 2 (Minister of Religion
  • Tier 2 (Sportsperson)
  • Tier 4 (General) student
  • Tier 4 (Child) student
  • Tier 5 (Temporary Worker)
  • PBS Dependant – partner
  • PBS Dependant – child
  • Member of HM forces or their dependants
  • Turkish Businessperson or Worker
  • Dependant partner of a Turkish Businessperson or
  • Worker (ECAA 3 – Dependant Partner)
  • Dependent child of a Turkish Businessperson or
  • Worker (ECAA 3 – Dependant Child)
  • Settle or extend your leave in the UK – Turkish ECAA categories only
  • Settle in the UK – long residence
  • Settle in the UK – child
  • Settle in the UK – partner of a person or parent of a child already settled in the UK
  • Settle in the UK – HM forces category
  • Settle in the UK – refugee or humanitarian protection
  • Settle in the UK – certain categories only
  • Registration certificate as an EEA or Swiss national
  • Document certifying permanent residence as an EEA or Swiss national
  • British citizenship by naturalisation
  • Register for British citizenship as a child under 18
  • Register as a British citizen
  • Update, replace or transfer – biometric residence permit
  • Other leave to remain applications within the rules (unless noted below)
  • Apply for a Home Office travel document

Applicants on the remaining routes will continue to need to use the existing service until January 2019.

This includes most customers applying:

  • To join family members in the UK as a dependant, other than a PBS dependent, armed forces dependent or ECAA dependent
  • For family reunion with a refugee or person with humanitarian protection
  • On the basis of statelessness
  • On the basis of domestic violence under the specific route for that
  • Making further submissions after a failed protection claim to only enrol your biometric information
  • For a fee waiver or fee exemption
  • For British citizenship
  • For a certificate of right of abode

New UK Visa Application System Timeline

  • 2 November: appointment booking tool went live
  • 5 November: new UK VCAS centres started to open around the country and all locations will be open by 29 November 2018
  • During the period of 5 – 29 November 2018, the majority of applicants can choose whether to enrol their biometrics and submit their documents via these new centres or use the existing processes via Premium Service Centres.
  • 29 November: Premium Service Centres will close
  • January 2019: Service and Support Centres will open.

NOTE: New Visa Centres’ staff are NOT authorised immigration advisers and, therefore, will not be able to provide advice on the applications and immigration requirements. In the past,  we experienced many situations where applicants took advice from the clerks of the overseas visa centres which was inaccurate and led to the refusals. 

 

UK Immigration & Legal Assistance

For expert advice and assistance in relation to your particular immigration case and to enquire about the immigration and legal fees, please contact our immigration lawyers on Tel. +44(0) 20 7822 8535, Mobile: +44 (0) 73 0584 8477, e-mail: contact@sterling-law.co.uk or via our online appointment booking form.

UK Immigration Updates

UK VISA PREMIUM SERVICE RESTRICTIONS
UK Visa Requirements: Who needs a visa to enter or transit the UK 
UK VISA FEES EFFECTIVE FROM 6 APRIL 2018
REQUIREMENTS FOR INDEFINITE LEAVE TO REMAIN ON THE BASIS OF LONG RESIDENCE IN THE UK
LONG RESIDENCE APPEAL SUCCESSFUL IN THE UPPER TRIBUNAL
BREXIT UPDATE: EU SETTLEMENT SCHEME COMEs INTO FORCE ON 28 AUGUST 2018
COURT OF JUSTICE RULES THAT SURINDER SINGH APPLIES TO EXTENDED FAMILY MEMBERS
New Fees: British Passport Applications
How to Apply for British Passport Online 
Apostille and Document Certification in London
Employment Rights in the UK

Is Internet anonymity on its way to being banned in the UK?

The inevitable truth is that hiding behind a screen allows and encourages people to say and do things they wouldn’t normally do in person. Europe’s recent General Data Protection Regulation (GDPR) that came into effect in May 2018 gives individuals the option to withhold their personal details online. This is a portrayal of support of Internet anonymity. The government of the United Kingdom on the other hand, is planning to take action to restrict on nasty and illegal online behaviour. 

Digital Minister Margot James said the freedom to be anonymous has been abused in “such a substantial way, with such damaging effects”. James said that although new legislation could not be rushed, it would be brought to parliament at the “earliest opportunity after Brexit”. Some may argue that anonymity is necessary for those acting as whistle blowers and seeking psychological help. To ban anonymity may strip the online community from their freedom of exploration and expression that the online world offers. However, it should be acknowledged that if the UK government does not take any action of removing anonymity there could be issues in the way the government has chosen to define harm. It would portray that the UK government is not taking steps to address the extensive cyberbullying that is a modern day issue. 

Internet anonymity: It is accepted that the present issues at hand are challenging and complex

The notion that banning internet anonymity will cause online harassment to cease is a myth. Nevertheless, a code of practice would set out the bounds of ‘what is and isn’t acceptable behavior online’. Although anonymity does play a pivotal role in online harassment, it is not solely anonymity that encourages harassment, it is the lack of accountability.

For example, people might think twice about what they tweet and say if they are held accountable for the contents of their tweets.

According to a study by Carneige Mellon University, in the six months after he banning of anonymous posts in South Korea, cyberbullying decreased by 20%.

This clearly shows that banning anonymity does not tackle the issue as a whole but will improve the situation. Therefore, the upcoming laws need to address the parties whom are liable for content and for taking down content. This will be prudent in tackling the issue properly. 

The UK government’s view on internet anonymity has received significant support. For example, Ben Wallace, Minister of State for Security and Economic Crime has voiced out that a major factor in bullying and grooming is anonymity. He said that banks can authenticate their users’ identities online, so there is no reason other websites could not do the same. He goes on to propose a solution by way of introducing a digital ID for every internet user as a way of resolving this issue. 

Internet anonymity has its disadvantages and advantages. It is evident that the advantages that come with the ban of internet anonymity is necessary. The UK government is seriously considering the ban of internet anonymity and there is high potential this ban will come into effect in the near future. 

Source: IBA Global Ibsight

The First-tier Tribunal allowed appeal on the spot

Clients of Sterling Law received amazing news as the First-tier Tribunal allowed their appeal on the spot. 

The successful outcome was possible because of experience and dedication of Oksana Demyanchuk and her team. 

The clients were nationals of Uzbekistan and had come to the UK to study. While in the UK, the clients had children and overstayed their visas. 

The clients approached Sterling Law to submit an application for leave on the basis of family and private life. 

Sterling Law lodged and appeal after Home Office refused the initial application. Oksana evidenced that such a refusal breaches the UK’s obligations under Article 8 of the European Convention on Human Rights. (It deals with family and private life.)

Article 8 of the European Convention of Human Rights reads as follows:

Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others

Oksana Demyanchuk and Michael Carter prepared the appeal bundle. On the basis of the evidence it contained, the Judge allowed the appeal. 

The Tribunal found that it would be unreasonable for the children to leave to the UK and return to a country of which they have no knowledge.

Accordingly, the appeal was allowed under the European Human Rights Convention.

What is most remarkable about this case, is that the Judge made this decision at the hearing. This was only possible because of the strength of evidence Sterling Law provided.

Should you have any questions regarding family and private life applications in the UK, please do not hesitate to contact us.

Oksana and Michael will also be able to provide a free assessment of your personal circumstances. 

 

Oksana Demyanchuk

Email: oksana@sterling-law.co.uk

Tel. 020 7822 8535

 

Michael Carter

Email: michael@sterling-law.co.uk

Tel. 020 7822 8535

 

 

 

UK Immigration & Legal Assistance

For expert advice and assistance in relation to your particular immigration case and to enquire 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.

Family member of an EEA national: Residence Card

Delays in issuing a residence card to a family member of an EEA national exercising their treaty rights in the UK is a frequent problem. Immigration practitioners often face a situation when the Home Office takes more than six months to make a decision. 

Despite there is a directive (2004/38) requiring the decision within the six month period, this is not always the case. 

Such delays can negatively affect job and education opportunities, as well as family life. 

But what is the sanction against the Home Office for the delay? The CJEU takes a reference from a Belgian Court and states that the sanction for the delay is according to the national law. 

The Judgement and Facts

Article 10 (1) of Directive 2004/38/ states that a decision to grant a residence card to a family member of EEA national has to be made within the six month period.

The case concerned a third county national – Mr Diallo, a Belgium resident. He applied for a residence card on the basis of being a family member of his EU national child. 

The Belgian authorities took negative decision 5 months and 28 days after the application, and Mr Diallo appealed. The authorities adopted the new decision a month and a half later, after Mr Diallo appealed. 

The Belgian court then adopted a new decision a month and a half later rejecting Mr Diallo’s application. The court stated that he had failed to provide sufficient evidence. For example, his resources and that the child was dependent on him. Mr Diallo appealed again. 

The Reasoning 

The Court of Justice of the European Union confirmed the following:

The state authorities must reach a decision within 6 months. This is irrespective of whether it is positive or negative. 

Under the Belgian law, a failure of state authority to make a decision within the six months entitles the applicant for an automatic issue of the residence card. The court found that, it would be contrary to the requirements of the Directive 2004/38 to issue a residence card to a person who does not fulfill the necessary requirements. 

CJEU stated that in order to derive a right of entry and residence from a family member who is a EU national, Mr Diallo should show that he is dependent on his child who is a Dutch resident. 

The court also noted that if a decision is annulled (as what happened in Mr Diallo’s case) the state cannot restart the six months time process again from the start.  

The Directive remains silent on sanctions for failure to determine the relevant time period. CJEU held that the principle of effectiveness applies.

The court stated that the new six month period would

‘render excessively difficult the exercise of the right of the family member of Union citizen’

and therefore is not acceptable. 

Source: ILPA European Update

 

UK Immigration & Legal Assistance

For expert advice and assistance in relation to your particular immigration case and to enquire 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.