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Immigration solicitors London

Landmark Case Regarding Curtailments

Landmark case reconfirms that the Home Office bears the burden of proof to show that refusals and curtailments have been ‘effectively served’

As the law previously stood, 8ZA and 8ZB of the Immigration (Leave to Enter and Remain) (Amendment) Order 2013, stated that the Home Office merely needed to send a decision granting, refusing or varying leave, to the person’s last known address.

Judge Neil Granham, sitting as a Deputy High Court Judge stated in the case of Javed, R (on the application of) v Secretary of State for the Home Department [2014] EWHC 4426, stated however at paragraph 25: In my judgment however, merely to send a curtailment of leave letter to the person’s address and rely on the receipt signed by another individual who happens to be present when the letter was delivered is manifestly insufficient.

This Judgment greatly assists those people against who have had an immigration decision taken against them, who have not been informed appropriately, and only find out later, when the decision has been mentioned in the latter decision. Kindly contact Senior Legal Advisor Sheryar Khan, who can guide such people with the correct implementation of the case of Javed, at whichever stage they may be in their appeals process, or otherwise.

Unlawful detentions due to maladministration by the Home Office

The Human Rights Act 1998 brought into English law the European Convention on Human Rights 1950, enshrining such fundamental human rights as freedom from unlawful detention, or as it is also referred to, the right to liberty and security (Article 5 ECHR). This legislation states that with the exception of certain limited circumstances – such as a lawful court conviction – no one is to be deprived of their liberty.

In the event that you have been unlawfully detained, therefore, a claim can be brought by you against the police, immigration officials or other State bodies who are responsible for your detainment. Especially common are immigration detention cases, which involve detention being taken out pending deportation.

The law concerning the permitted detention length is complicated, which only increases the importance of engaging a solicitor with the right experience and track record in this area, and who can therefore secure you the maximum amount of compensation if you are held for an unreasonable time period. The Home Office paid out almost £4.5m in compensation for unlawful detention related to immigration in the 2011/12 financial year, and more than £5m in compensation in 2012/13.

A range of claims for unlawful detention can be made. You may wish to claim compensation for your unlawful detention or desire a Judicial Review to challenge it. Claims can also be made to secure the release of children who have been wrongly detained, alongside the associated compensation claims. The lawfulness of detaining vulnerable individuals, such as those who are ill, disabled, victims of crime or pregnant women, can also be challenged.

Even apologies, admissions of wrongdoing and alterations to police, prison and immigration detention procedures can be secured as a result of successful claims in relation to unlawful detention. Those contemplating such a claim should be aware of the Home Office’s great tendency to make mistakes in the exercise of its immigration powers, as shown by the high success rates for appeals – in some categories, as much as 50%.

Only in limited circumstances, however, can the Home Office be forced by means of a court case to pay compensation. Thankfully, unlawful detention is one of these circumstances. You are advised to first pursue your case for a payment through the Home Office complaints procedure, providing clear information on losses and plenty of supporting evidence.

In the event of the Home Office refusing to make a payment, you may be able to show ‘maladministration’ that will entitle you to substantial compensation, for direct financial losses as well as for inconvenience or hurt feelings. With the right solicitor by your side, you can maximise your chances of success through all of these avenues.

Beginning of the end for TOEIC cases?

Japanese students with plans to enrol at a British university might have previously – on being accepted for a place – used the TOEIC (Test of English for International Communication) or TOEFL (Test of English as a Foreign Language) tests in order to obtain a student visa. Now, however, Britain has stopped accepting them, following a recent BBC Panorama investigation that uncovered evidence of cheating during the taking of one of the tests.

TOEIC and TOEFL have long been widely used tests of English language ability in visa applications, but the US-based company that administers them – Educational Testing Service (ETS) – admitted that the firm that had been commissioned to run the tests in Britain, where the fraud occurred, had not acted professionally.

On April 17, ETS announced that it would not seek a renewal of its contract signed with the Home Office that enabled the use of the TOEIC and TOEFL tests as certification of English language ability. Although the cheating had been confined to the TOEIC test, neither test will be used in the future given that they were part of the same SELT license regime.

It all means that Japanese with an eye on taking a UK higher education programme will need to turn to lesser-known tests for their visa application. The IELTS (International English Language Testing System) is one such alternative, although the usual need for applications to be sent around five weeks prior to the exam makes it a lot less flexible than the TOEFL exam, where applications could be made just a few days before the exam.

The Pearson Test of English Academic is another potential route. However, the Eiken test for practical English proficiency is not an option for applying for a British visa.

The BBC programme was broadcast in February, and reported on attempts by organised crime in England to circumvent the country’s visa-granting process through the use of bogus exam takers and test proctors who were reading the test answers out loud.

The news, in April last year, caused great inconvenience to many private individuals wishing to study in Britain that autumn. Beo, a company specialising in support for those contemplating overseas study, spoke of receiving phone calls from worried prospective students who had already been given places on UK university courses but were yet to apply for their visas.

The Japan Student Services Organization, which provides support programs for Japanese studying abroad, has said that the fiscal year 2012 saw more than 3,000 Japanese head to the UK for a university programme.

Immigration solicitors London

Visa no longer required for European partners

Family members who are originally from outside Europe but who have valid rights of residence in the European Union (EU) cannot be made subject to a blanket visa requirement by Britain, according to a recent European court of justice ruling.

Amid attempts by the British government to restrict EU immigration and tackle what it considers to be abuse of the EU residence card system, it had initially demanded that such family members possess visas if they wished to enter the country. However, judges in Luxembourg have now overruled this on account of the EU’s freedom of movement rules.

The case concerned a Spanish-based dual British and Irish national, Sean McCarthy, and his Colombian wife, Helena, who the ECJ judges said did not require a UK visa or family permit to visit Britain. McCarthy had objected to the UK’s demand for a family permit or visa – valid for six months – whenever they visited these shores.

The ECJ decided that Helena McCarthy was entitled to make the journey to Britain without first obtaining a UK visa in Spain, on account of her possession of a Spanish residence card.

The British government has argued that it has the right to impose a blanket entry requirement due to its belief that some EU countries’ residence permit systems are suspect and vulnerable to abuse. This view was dismissed by the ECJ, which stated that in the event of suspicion, states could investigate individual cases and impose visa requirements, but not take a general catch-all approach.

The court of justice commented: “The [UK] legislation at issue requires an entry permit to be obtained prior to entry into UK territory, even where the authorities do not consider that the family member of an EU citizen may be involved in an abuse of rights or fraud. Family members who possess a valid residence card are thus prevented absolutely and automatically from entering the territory of the member states without a visa.

“The fact that a member state is faced with a high number of cases of abuse of rights or fraud cannot justify the adoption of a measure founded on considerations of general prevention, to the exclusion of any specific assessment of the conduct of the person concerned himself.

“Such measures would mean, as in the present case, that the mere fact of belonging to a particular group of persons would allow the member states to … disregard the very substance of the primary and individual right of EU citizens to move and reside freely within the territory of the member states.”

Tier 1 Venture Capital Appeals

Among the available work visas for the UK is the Tier 1 (Entrepreneur) visa, which can be applied for by those intending to set up or run a UK business and who are from outside the European Economic Area (EEA) and Switzerland, in addition to having access to a minimum of £50,000 in investment funds. This is subject to also fulfilling various other eligibility requirements.

However, a great number of Tier 1 applications are now being greeted with refusal by the Home Office, on strange grounds of non-compliance with the extensive Immigration Rules part 6A or Appendix A, particularly Para 41-SD or Para 46-SD.

Even for many of the applicants who do successfully comply with such long-winded rules, they can still hit a snag with the Genuineness Test and the availability and credibility of Funds and Business Plan and Market Research. Success for these applicants often depends on engaging a solicitor who can show to the judge that the appellant’s evidence should be assessed as a whole, instead of being rejected on the basis of a mere clerical error in the Business Plan and Market Research.

We have assisted many clients in the past whose Business Plan, availability and Credibility of funds and Business Plan and Market Research have not been assessed with the fairness that they should have been by the Home Office.

This is not the only problem encountered by many Tier 1 (Entrepreneur) applicants. Although there is no prescribed rule behind the Genuineness Test, the evidence should nonetheless be looked at by the Home Office and the FT judge before the case worker or a judge. Their priority must be, instead of refusal on the grounds of minor errors and contradictions, how credible and genuine the appeal is as a whole.

That is because the Specified Documents under Appendix A are the kind of documents that are developed and updated by every business at every stage. This means that new start-ups, such as the Tier 1 Entrepreneur business, will naturally start from the most basic documents, updating and amending them over time in response to client feedback and as the Tier 1 Entrepreneur Applicant gains in business maturity.

The refusal of a UK visa is an extremely unwelcome event for many entrepreneurs wishing to invest money in the country and begin a new life. This only makes it all the more important to use the services of the most experienced, professional and capable UK immigration solicitors who have a strong track record of presenting clients’ cases advantageously and overturning the decisions made by immigration officials.

Changes to employment law in 2015

The coalition government may have supposedly made it its mission to cut red tape, but that hasn’t necessarily been the experience for many UK employers – indeed, the last year has seen the introduction of particularly complex new regulations.

It all leaves much to be handled by employers into the New Year, such as the long-awaited introduction of shared parental leave and pay. Available to couples with a baby due, or children placed for adoption, on or after 5 April 2015, this new legislation will give parents greater flexibility as to how they share the care of their child in its first year.

That legislation means that the mother’s maternity leave and – if available – maternity pay will be able to be shared between the parents. Shared parental leave will also be an option for employees who are, or anticipate becoming, a child’s parents under a parental order, where the child’s expected week of birth begins on or after 5 April 2015.

Notable alterations to adoption leave have also been made by the Paternity and Adoption Leave (Amendment) Regulations 2014. That includes the removal of the 26-week qualifying period for eligibility to take adoption leave, aligning it with the eligibility requirements for maternity leave.

Meanwhile, the Children and Families Act 2014 means that statutory adoption pay has been brought into line with statutory maternity pay, being set at 90% of average weekly earnings for the first six weeks.

There will also be eligibility for adoption leave for surrogate parents, while local authority parents who are prospective adopters will also be given a new right to take adoption leave, thanks to the Paternity and Adoption Leave (Amendment) (No 2) Regulations 2014.

Employers should also make themselves aware of a new right to attend adoption appointments that has been introduced by the Children and Families Act 2013, with the main adopter having the option to take time off to attend as many as five appointments, alongside an entitlement for the secondary adopter to take time off for up to two of these appointments.

5 April 2015 also sees a rise in the child age limit for parental leave, from five to 18 years. Parental leave is not related to shared parental leave, being the statutory right to a period of unpaid leave that a parent may take during the first years of a child’s life.

This latter change means that if the parent has sufficient qualifying service, they will have the right to unpaid parental leave of up to 18 weeks up to the 18th birthday of their child.

With such other changes to employment law as the removal of restrictions on defined-contribution pension schemes and increases to statutory maternity pay, ordinary maternity pay and adoption pay all afoot for 2015, it promises to be a busy year for any employer simply looking to stay on the right side of the latest legislation.

Bulgarian Citizenship by Investment

For many of those wishing to acquire European citizenship and in so doing, gain access to the continent’s economic opportunities and way of life, there may be few better options than Bulgaria’s citizenship by investment program.

Known as the Investor Program for Residence and Citizenship in Bulgaria, this programme affords a series of benefits relating to Bulgaria itself, such as its varied and interesting culture, mild climate and advantageous location in southeast Europe. However, the programme also allows for the fast acquisition of residency – within six to nine months – with citizenship possible within two years for those taking the relevant fast-track route.

This scheme of one of the EU’s youngest member states is a highly convenient one for many of those seeking European citizenship by investment, given that they are not required to be physically resident in the country and are also not subject to any language requirements for either residence or citizenship. Nor are they obliged in any way to relinquish their present nationality, and the country offers a free trade environment alongside some of the EU’s lowest tax rates.

Permanent residents of Bulgaria also benefit from high quality healthcare – both within the country and the wider EU – in addition to freedom of movement within the Schengen zone. Citizens, meanwhile, are able to not only live, work and study in Europe without restriction, but also own land in an EU country.

The necessary criteria for applying for citizenship by investment in Bulgaria includes – but is not restricted to – a valid passport or other substitute foreign travel document, proof that the applicant has no criminal record, the payment of application fees and the applicant making the minimum statutory trips to Bulgaria.

Applicants are also required to make a financial investment, choosing between full investment and financed investment. In the case of the former option, the applicant must have a personal net worth of €511,292 (BGN 1 million), depositing this amount in a Governmental Bond Portfolio for an investment period of five years, no further payment being required.

Once that five-year period is up, the investor is returned the full amount of their €511,292 (BGN 1 million), without any accrued interest. The government bonds fully guarantee this investment. Meanwhile, for the financed investment option, a net worth exceeding €1 million is required, with clients able to leverage their capital through the financing of the required amount of investment through a European Bank.

Citizenship can be applied for quicker via the fast-track option by those willing to double their investment, subject to certain conditions. Foreign investors choosing the regular programme will be able to apply for Bulgarian citizenship following an uninterrupted five years of permanent resident status, again as long as other conditions have been fulfilled.

Commercial Conveyancing: Getting it right

Conveyancing is a legal process crucial to the completion of any property or land purchase or sale, and while many have previously attempted to take on such a responsibility themselves, it is almost always strongly advisable to get in touch with a capable solicitor that can handle the process.

Commercial conveyancing, as the term suggests, involves the sale or purchase of commercial property, with many of the ground rules for this type of conveyancing being the same as for residential property.

In the following brief guide, we consider the conveyancing process that applies for commercial properties in the UK, whether for a shop, restaurant, pub, office, retail unit or other business.

Those purchasing commercial premises can expect their solicitor to first investigate the title to the property and commission any necessary pre-contract searches. On the buyer’s solicitor receiving the draft contract from the seller’s solicitor, they should approve it and raise any further enquiries that may be necessary given the search results and/or answers to standard commercial property enquiry forms known as ‘CPSE Enquiries’. It is also at this early stage that as a buyer, your solicitor may address such ancillary matters as mortgage finance and Stamp Duty Land Tax.

The initial conveyancing process for those selling a commercial property, meanwhile, entails the solicitor investigating the legal title to their property, followed by the preparation of the Contract for Sale. Depending on the given transaction type, the seller can also expect to be asked by their solicitor to complete one or more CPSE enquiry forms.

Also necessary on the seller’s side may be details of the property’s fixtures and fittings, after which, the buyer and seller may finally exchange contracts, with the buyer paying over any agreed deposit. This is the stage at which the transaction becomes legally binding on each party.

Even after this, there remains work for the solicitors involved to do. The buyer’s solicitor, for instance, will need to raise the necessary pre-completion searches, in addition to preparing the Transfer Deed for the approval of the seller’s solicitor. At this point, the buyer will also be asked to prepare the balance of the purchase monies ready for completion.

Meanwhile, the seller’s solicitor will need to approve the Transfer Deed that they receive from the solicitor of the buyer. It will also fall to them to give the necessary undertakings to discharge any mortgage to the property, after which, the transaction can finally be completed.

This completion stage involves the buyer forwarding the balance of the purchase price to the seller, so that both parties can complete the transaction. As part of this process, the buyer’s solicitor will pay any applicable Stamp Duty Land Tax, in addition to – if necessary – registering the transaction with the Land Registry.

This simply leaves the seller’s solicitor with the responsibility of settling any charges on the property and transferring any remaining funds to their client.

UK Temporary Workers Visa Options

If you wish to work in the UK on a temporary basis, then you may be able to obtain a Tier 5 visa, which was designed for just this purpose. You do not require a job offer to gain entry if you are from one of the small number of countries included in the Youth Mobility Scheme, but otherwise, you are likely to need a job offer from a licensed sponsor, in addition to passing a points-based assessment.

Those wishing to do unpaid voluntary work for a charity in the UK, for example, will be able to apply for a Tier 5 (Temporary Worker – Charity Worker) visa, provided that they are also outside the European Economic Area (EEA) and Switzerland and fulfil the other eligibility requirements.

Those requirements are specifically a certificate of sponsorship reference number from their UK sponsor and £945 in savings, which must have been in the applicant’s bank account for 90 days. The savings requirement is so that the applicant can show their ability to support themselves during their time spent carrying out unpaid voluntary work in the UK.

Not only must those wishing to apply for such a visa in the UK be sponsored, but the work that they do in the country must also be related to the work of their sponsor organisation. A visa can be applied for up to three months prior to the applicant’s date of travel to the UK, and it should take no more than three weeks to get a decision.

However, those applying for a Tier 5 visa should also make themselves familiar with the exact fees that they will incur, which will differ depending on the applicant’s situation, where they are and how they apply. Those in the UK on a Tier 5 (Temporary Worker – Charity Worker) visa will be able to stay for as long as 12 months, or the time given on their certificate of sponsorship plus 28 days – whichever is shorter.

If you wish to apply for such a visa, you must also inform yourself of what you can and cannot do with it. While you can, for example, bring family members with you and do a second job in the same sector and at the same level as your main job for as many as 20 hours per week, you aren’t able to receive any payment for work, take a permanent job or get public funds.

Bear in mind that the aforementioned rules are strictly for those that apply for the Tier 5 (Temporary Worker – Charity Worker) visa. With other types of Tier 5 visa including the Youth Mobility Scheme, Creative and sporting, Government Authorised Exchange, International Agreement and Religious Worker visas, it is strongly advisable to familiarise yourself with the terms of the visa that you are considering, prior to application.

Cyprus and Malta Citizenship by Investment

Europe’s citizenship by investment programs have long enjoyed significant popularity among high net worth investors from outside the European Union who seek a better way of life, with two of the most frequently cited – but also occasionally controversial – being the schemes of Cyprus and Malta.

Both programs are relatively recent developments. Cyprus only introduced a citizenship by investment program in 2011, with several updates having occurred since. With the program presently under review by the Cypriot Government, there are widespread expectations of a continued reduction in investment requirements.

However, prospective participants in the Cypriot citizenship by investment program will also be subject to a residence requirement of a minimum of one year, in accordance with the agreement reached between Malta and the European Commission, which brought in this requirement.

Those interested in the Cyprus program are urged to keep a lookout for the latest news concerning any revisions to the criteria by the Cypriot government. As matters presently stand, citizenship can be gained by foreign nationals that meet certain criteria set out by the Ministry of Interior.

With options for those aspiring to Cypriot citizenship ranging from national investment and donation and direct investment to bank deposits and local business activities, it’s clear why the program has gained such a strong reputation in such a short time.

That popularity becomes even more explicable when one considers such benefits of the program as the right that it grants successful investors to live, work and study in the EU, alongside the visa-free travel through 157 countries – including the EU and Canada – that it enables.

Citizenship, once acquired by investors and their families, lasts for life, meaning that they can enjoy such a complete range of benefits as relatively low property prices and the option to invest in real estate, with the associated recoverability of investor funds.

In 2013, however, it was announced that the high net worth individuals outside the EU to which the Cypriot scheme is aimed also now had the option of becoming Maltese citizens. The Malta Individual Investor Program (IIP) offers citizenship in an especially stable and respected EU Member State, with the associated right of establishment in any EU country of the investor’s choosing.

The grant of citizenship is subject to the making of a significant contribution to the Maltese Government’s National Development and Social Fund, with the applicable minimal contribution levels in the program’s initial phase including 650,000 Euros by the main applicant, 25,000 Euros for the main investor’s spouse and minor children and 50,000 Euros each for dependent children aged 18 to 26 years or dependent parents above 55 years.

Again, citizenship gained through the Maltese scheme is for life, and can even be passed onto future generations by descent, but the applicant is required to retain a residence in the state for a minimum period of five years.

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