Category: Updates & Publications

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

How to act in case your employer refuses to pay you?

Sadly to say, this is not a rare situation, when workers suffer from unscrupulous behavior of their employers. 

Sterling Law was honored to represent rights of employees of a large construction company. The employer (the company) continually refused to pay salaries to the construction workers. When the collective claim against the company was set, the employer had to react. He decided to provide numerous untruthful excuses to the Court to justify himself. Firstly, the employer stated that those builders who provided collective claim have not been working for his company. The argument failed, so the next one was that the amount of outstanding salaries was made out and did not correspond to reality. The final argument was that the quality of  work was not satisfactory. 

Employees instructed Sterling Law to represent them. Our Trainee Solicitor Michael Iatsukha, did not leave any chances for the employer to win the case. Due to Michael robust presentation and active communication with the employer’s representative, Sterling Law was able to protect builders’ rights in full. 

As a result, the employer agreed to pay a quarter of the claim at the beginning. Later, Sterling Law pressed for the full amount of outstanding salaries to be paid out to the workers, which was done in due course. Should you find yourself in a similar situation, please do not hesitate to contact us.

We are ready to do our best to fight for justice and protect your rights. 

 

Michael Iatsukha

Trainee Solicitor

michael@sterlinglawyers.co.uk

+44 (0) 20 7822 8599

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.

 

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.





Nollienne Alparaque 

Email: nollienne@sterling-law.co.uk

Tel. +44 (0) 20 7822 8535

Mob. +44 (0) 0781276 9389

Shakir Hussain, Senior solicitor

Email: shakir@sterling-law.co.uk

Phone: +44 (0) 20 7822 8535

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.

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

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

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

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

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

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

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

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

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

Kuldeep S. Clair 

Consultant Solicitor

Employment, Dispute Resolution and Litigation

+44 (0) 7484 61 4090

kuldeep@sterlinglawyers.co.uk

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Appeal allowed under Article 8 ECHR

A Ukrainian national, who was refused asylum, had his appeal allowed under Article 8, which protects the right to a private and family life. The appellant first came to the UK with false identification for the sole purpose to work illegally. The Judge questioned the credibility of the appellant and the documents put forward as evidence. However, this did not prevent the judge from making positive findings on the merits of the appellant’s family life case. His son was in the process of being diagnosed with autism by the NHS and it was held in the best interests of the child for the diagnostic process to continue.

Sterling Law’s analytical lawyers focused on the merits of our client’s case. It was ensured that the severe difficulties in development faced by the appellant’s son were highlighted in the argument. The lawyers made it a point to explain that it was important that parents attend the sessions required in the diagnostic process, otherwise the child would be discharged from the service. Therefore, it was prudent that the appellant was in the UK to support his child’s diagnosis. Our lawyers conducted extensive research on the position of autistic individuals in Ukraine and found that this condition is misunderstood within the Ukraine culture. Evidence of this was put forward to the Judge and it was concluded the removal of the appellant and his family would disrupt the diagnostic process that is currently undergoing by the NHS in the UK. 

Although the credibility of the appellant was initially questioned, the Judge adopted a child-focused approach. The Judge was satisfied that the child’s condition on this occasion amounts to an ‘exceptional circumstance’. The best interests of the child were the sole consideration in allowing the appeal. 

UPDATE: NHS Immigration Health Surcharge will increase to £400 a year from 8 January 2019

On 11 October 2018, the Home Office laid an order before Parliament in accordance with section 38 of the Immigration Act 2014, ‘The Immigration (Health Charge) (Amendment) Order 2018’  seeking to double the NHS immigration health surcharge paid by temporary migrants to the UK.

The surcharge will rise from £200 to £400 per year. The discounted rate for students and those on the Youth Mobility Scheme will increase from £150 to £300.

The increase will come into effect on 8 January 2019.

The annual charge is paid by people from outside the European Economic Area (EEA) who are seeking to live in the UK for 6 months or more to work, study or join a family.

The Department of Health and Social Care (DHSC) estimates that the NHS spends £470 on average per person per year on treating surcharge payers. Projections suggest that the increased charges may provide around £220m extra every year, with this money going to NHS services.

Current NHS Immigration Health Surcharge Requirements

Some immigration applications are subject to the payment of the immigration health surcharge (IHS).

The applicants who are making immigration application online or through a premium service centre, have to pay the IHS as part of the application or when booking an appointment.

If application is made by post, healthcare surcharge is paid online before the application is sent (the IHS reference number must be indicated in the application form).

Amount of NHS Immigration Health Surcharge

  • £150 per year for a student or Tier 5 (Youth Mobility Scheme) visa, eg £300 for a 2-year visa
  • £200 per year for all other visa and immigration applications, eg £1,000 for a 5-year visa
  • Dependants usually need to pay the same amount as the main applicants.

Only half of the yearly amount should be paid if the application includes part of a year that is less than 6 months. The migrant will have to pay for a whole year if the application includes part of a year that is more than 6 months.