Category: Updates & Publications

Successful ILR application as a Tier 1 (Entrepreneur), accelerated route

Fantastic news for Sterling Law as an application for indefinite leave to remain as a Tier 1 (Entrepreneur) Migrant (accelerated route) was successful.

Our client, who entered the UK as a Tier 1 (Entrepreneur) Migrant, had established a successful business in the UK which, as a result of his services, saw a net increase in gross income from business activity of at least £5 million during a 3-year continuous period. As a result, our client was eligible to apply for indefinite leave to remain after 3 years of leave to remain as a Tier 1 (Entrepreneur) Migrant.

Applications of this type can be very complex and great attention to details is required, especially considering the large amount of documents submitted in support of the application and the complexity of the Immigration Rules. However, due to the meticulous work by Oksana Demyanchuk and her team, our client faced no such problem and his application was approved by the Home Office without any issue.

Interested? Book your consultation now!

 

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 Visitor visa under 3 working days

Famous celebrity/ songwriter got her visitor visa to the UK just under 3 working days! Very rare type of application under the Visitor Visa Permitted Paid Engagement route was handled by our immigration lawyer Nollienne Alparaque! This type of visitor visa allows professional artists, entertainers, musicians or sportspersons to carry out an activity directly connected to their profession! If you are interested in obtaining a visitor visa to the UK, please do not hesitate to contact Sterling & Law.

You can schedule an appointment with Nollienne through this link. Alternatively, you can always contact her on nollienne@sterling-law.co.uk or 020 7822 8535

Crypto assets challenges: are tokens a security or utility?

Cryptoassets have attracted significant and growing attention from consumers, markets, governments, and regulators globally. Tokens, although not ‘rocket science’, is a quite complicated area even for businesses and individuals dealing with it.

In accordance with FCA Guidance currently there are three types of tokens:

  1. Exchange tokens(not issued or backed by any central authority and used as a means of exchange, usually outside the FCA regulation perimeter).
  2. Securitytokens(tokens with specific characteristics; classify as a Specified Investment like a share or a debt instrument; within the FCA regulation perimeter.
  3. Utility tokens: (support capital raising and/or the creation of decentralised networks; can be used or traded on the secondary market; usually outside the FCA regulation, although might meet the definition of e-money in certain circumstances, in which case – within the FCA regulation perimeter)

However, firms should note that 5th EU Anti-Money Laundering Directive will be implemented into UK law by the end of 2019 and will extend the FCA regulation, as a result, all crypto exchange platforms will fall within an FCA Regulation.

Regardless of technology – if regulated crypto asset activities(e.g. Managing or advising on investments, including security tokens, dealing with warranties, etc.) are undertaken,  an appropriate FCA authorisation is required unless you are exempted. You will also need to ensure you have appropriate authorisation if your tokens constitute e-money.

E-money

E-money is electronically stored monetary value which is:

  • issued on receipt of funds for the purpose of making payment transactions;
  • accepted by a person other than the electronic money issuer ;
  • not excluded by regulation 3 of the Electronic Money Regulations 2011.

Exchange tokens like Bitcoin, Ether, and other equivalents are unlikely to represent e-money because, amongst other things, they are not usually centrally issued on the receipt of funds, nor do they represent a claim against an issuer.

Voting rights and security tokens

Tokens would classify as security tokens if they represent ownership or control (e.g. via voting rights), provide access to a dividend of company profits or the distribution of capital upon liquidation. However, this is not always the case as some tokens give voting rights on the direction without it being considered as control. For example, a token that provides the token holder with the right to vote on future ICOs the firm will invest in and no other rights would likely not be considered a share as the voting rights don’t confer control-like decisions on the future of the firm. It must be noted that whether a token that provide voting rightsrepresents a share in the capital of a body corporate or similar entity incorporated outside the UK will depend on the operation of the company and corporate law. In addition, negotiability on the capital markets can be an indicator of the transferable security nature of a token.

Decentralisationis also an important factor in determining whether a token is a security or utility. Decentralisation allows for trade directly with another party, using a blockchain to finalise the operation. The FCA approach is, the greater the degree of decentralisation the less likely it is that a token will confer enforceable rights and be a security.

Despite the fact that issuers of tokens don’t need to be authorised to issue their own securities, in the course of promoting their issuance, they may be advising on investments or undertaking other activities that may require FCA permission.

Sterling Law can provide tailored advice on the nature of your tokens and other crypto asset related matters. Our team can also obtain FCA Crypto team confirmation on the issue of whether specific tokens are security or not.

 

 

Employee, worker, self-employed, contractor, employer? Know your rights

Are you an employee, worker, self-employed or contractor? Not sure? It is important to understand the difference, as this may determine your rights.

You may think you know the answer to that question, but the answer may be different from what you imagine. Your position may be either better or worse than you think!

Why is that, and what am I talking about?

I am referring fundamentally to the difference in legal rights between those who are legally ‘employees’ and those who are ‘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. Importantly, workers, do not have the right to claim unfair dismissal.

In a leading case in the Supreme Court on 11thJune 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, 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 was decided by the Court of Appeal in favour of the drivers in 2019 – they were classed as ‘workers’. A few 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 which turns upon employment status

If you think your rights are being violated, or you would just to know more about what you can and cannot do, please do not hesitate to contact us for a free consultation.

 

Kuldeep S. Clair

Consultant Solicitor

Employment, Dispute Resolution and Litigation

+44 (0) 7484 61 4090

kuldeep@sterlinglawyers.co.uk

Interests of a child outweigh public interest of immigration control

Our client, a national of Kyrgyzstan, applied for leave to remain, however, her application was refused. Sterling Law successfully appealed this refusal outside the Immigration Rules on the Human Rights grounds. The main reason for refusal was our client’s poor immigration history. Our client, who had previously lived lawfully in the UK for several years (on a visitor visa, EEA residence card, etc.) found herself in a situation when she could not apply for the next visa under the European rules. She was heavily pregnant and vulnerable which resulted in her making a false asylum claim using a false identity card (which was refused and she became an overstayer).

However, our client established a strong private and family life in the UK. Our client’s mother is in the UK and has British nationality. She also has a UK born child who suffers from Autism who has been living in the UK for more than 10 years, speaks the English language only and requires special care.

Considering all the circumstances of the case, and applying relevant law (MA (Pakistan) & Others [2016] EWCA Civ 705; ZH (Tanzania) [2011] UKSC 4), the Judge found that:

Although very significant breaches of immigration laws are involved in this case, the interests of this child outweigh the public interest in the removal of his mother.

Thus, the Appeal was allowed and our client, not only obtained legal status in the UK but also got a chance to remain with her child and continue to provide him with necessary support and love.

 

Oksana Demyanchuk

Email: oksana@sterling-law.co.uk

Tel. 020 7822 8535

 

Michael Carter

Email: michael@sterling-law.co.uk

Tel. 020 7822 8535

 

 

Is your case similar? Book a consultation with us and we will help.

 

Personal liability of directors

Can the directors of a limited company be personally liable for the company’s breaches of an employment contract with its employees?  

The basic principle is that the company is a legally distinct and separate entity from those individuals that own and direct the company. That is precisely why business people set up as companies at all – i.e. to avoid unlimited personal liability.

There are exemptions to that principle where that rule can be overriden. For instance, if the company has become insolvent and has been trading whilst obviously unable to pay its debts, the directors may be found to be personally liable for debts, and indeed even criminally liable, under the provisions of the Insolvency Act 1986. That is known as either wrongful trading or fraudulent trading. I am not going to examine those concepts here but can advise on that if you contact Sterling Law.

The High Court very recently decided that directors in the case of Antuzis v DJ Houghton (2019) were personally liable because the company employed the employee claimants in a very exploitative manner, working extremely long hours, working less than the minimum wage, and frequently not being paid sums due at all. Payments due were often withheld, and holiday pay/overtime was not paid.

Usually, directors are not liable for inducing breaches of contract by the company where they are acting bone fides vis a vis the company. But where the breach of contract has a statutory element, that suggests a failure of the part of the director to comply with his duty to the company, potentially making them liable to a third party.

The court found that this was what had happened here. The directors had not acted honestly in what they did, which was a breach of statutory duty. They were personally liable for those breaches of contract which they had induced.

 So – what is the lesson for business-owners and directors from this case?

I would say that those who run their businesses honestly and in good faith have little to worry about. This case should only be of concern to those businesses operating at the shady edge of the spectrum, who do not worry about basic statutory requirements. If you are not sure about any statutory requirements for your business, please arrange a consultation with me and get some proper advice from me – it may prove to be well worth it!

 

Kuldeep S. Clair

Consultant Solicitor

Employment, Dispute Resolution and Litigation

+44 (0) 7484 61 4090

kuldeep@sterlinglawyers.co.uk

 

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.