Lisa’s Law Helps Human Trafficking Victim in Successful Asylum Appeal Case

Amidst the harrowing tales of human trafficking, a beacon of hope emerges with the outcome of a successful asylum appeal case of an individual who had endured the horrors of modern-day slavery. The Upper Tribunal’s landmark decision overturns a previous ruling. This new ruling recognises the plight of our client, a Chinese national who was trafficked into the country under the guise of debt repayment.

The appellant’s journey from victim to survivor is a testament to her resilience and the pursuit of justice. This article delves into the details of her ordeal, the legal battle for asylum, and the implications of this victorious asylum appeal for future trafficking survivors seeking refuge and redemption in the United Kingdom.

Background of the case

The individual appealing is a Chinese national, born in 1975, who was trafficked into the United Kingdom in December 2013 under the guise of repaying a debt incurred by her husband. She was trafficked into prostitution by the trafficker and forced to perform unpaid sex work. After a police raid on the brothel where she was held, she was rescued and freed.

Subsequently, she claimed asylum, citing ongoing fear of the loan sharks responsible for her trafficking. While she was recognised as a victim of modern slavery after a referral to the Single Competent Authority in January 2022, her asylum application was initially refused on 02 April 2022. However, upon appeal, the First-Tier tribunal’s decision on 14 June 2023 was found to contain a legal error. The Upper Tribunal granted permission to appeal, leading to a decision in favour of the appellant on 10 October 2023.

Facts of the case

The appellant lived in China with her ex-husband and son before being trafficked to the United Kingdom. The ex-husband had struggled with employment, drinking, and gambling since 2006, often becoming abusive when intoxicated. His financial troubles escalated, leading him to borrow large sums of money. This escalated to the point where he eventually owed 100,000 RMB to the loan shark with interest payable. To repay this debt, he borrowed even more, placing the appellant in a precarious situation. Loan sharks began harassing the appellant regularly, visiting and damaging her home, frightening her son, and physically harming her.

In 2013, the idea of going to the UK for work was proposed by the loan sharks, promising high-paying jobs. They arranged for the appellant to travel with a man to the UK, where upon arrival, she was introduced to a couple who forced her into prostitution where she was taken to a brothel. Despite initial refusal, she was coerced through violence, citing her inability to repay her ex-husband’s debt as justification.

Following a police raid on the brothel in 2014, the appellant was taken to the police station but did not seek asylum due to fear and lack of knowledge about the asylum process. After leaving the station, she found herself homeless until meeting another Chinese national who offered her shelter and food in exchange for household help.

The appellant claimed to fear returning to China, believing the loan sharks will locate and harm her for escaping the brothel and failing to repay the debt. Additionally, she fears further abuse from her ex-husband upon her return.

The issues of the case

The issues in disputes were whether:

1. The Appellant has a well-founded fear of persecution or faces a real risk of serious harm in China.

2. The Appellant can obtain sufficient protection in China from the identified risks.

3. The Appellant can reasonably internally relocate to escape those risks.

4. The Appellant would face very significant obstacles to integration.

5. The Appellant’s removal is a disproportionate interference with Article 8 ECHR.

How we dealt with the issues

Although it was acknowledged that the appellant had fallen victim to modern slavery due to outstanding debt owed to a loan shark, we have facilitated the appellant in providing clear evidence to explain the disputed aspects of her case.

Initially, the Home Office contended, under Section 8 of the Asylum and Immigration Act 2004, that the appellant arrived in the UK in December 2013 but did not seek asylum until April 22, 2020, following her arrest by the police on June 13, 2014. The Home Office questioned why she did not regularize her status during the six years following her release from the police station, attributing this delay to behaviour they deemed unreasonable. While it was acknowledged that trauma may have contributed to her delay in seeking asylum, particularly given her support network’s inquiries about her immigration status, the Home Office deemed a six-year delay unreasonable.

While it was reasonable for the Home Office to present such arguments, it is important to recognize that recovery from traumatic experiences, such as those endured by the appellant, cannot be expected within a set timeframe. Furthermore, as a non-professional, the appellant may not have been fully aware of the asylum claiming process. Her continued post-traumatic symptoms, such as sleep difficulties and depression, further attest to her ongoing mental health struggles.

Expert report provided evidence

We relied on a country expert report detailing the challenges the appellant would face upon return to China, including difficulties in relocating within the country and re-establishing her identity, hindering her access to state benefits and integration into society while still being exploited.

However, during the 1^st hearing of the first-tier tribunal, doubts were raised about the validity of the expert report. We worked with the expert to clarify the report’s sources, ensuring its reliability and legitimacy.

In addition to the expert report, we assisted the appellant in drafting a detailed witness statement to address the Home Office’s refusal of her asylum claim, providing necessary clarifications as requested by the court. This was a crucial step in securing victory for her case, enabling the court to gain a comprehensive understanding of her situation.

It was emphasized that the focus of the dispute should not be on identifying the instigator of the problem, but rather on recognizing who faces the genuine risk of harm as a result of the situation. Additionally, it was pointed out that for the appellant to reclaim her identity in China, she would inevitably have to return to the region where the initial harm occurred.

Consequently, it would be impossible for her to do so without attracting the attention of the loan shark in her local area. It was argued that the appellant lacked family support due to their fear of retaliation from the loan sharks, who had previously threatened them with violence.

Moreover, the appellant feared that her ex-husband might disclose her whereabouts to the loan sharks if he knew her location, increasing the risk of being located if she attempted to relocate. Considering her mental health condition, it was asserted that the appellant fell into a highly vulnerable category and would be susceptible to further abuse and exploitation if forced to return to China.

The outcome of the case

On 08 February 2024, before the Deputy Upper Tribunal judge, it was determined that little significance should be attached to the fact that the appellant has remained within a 7-mile radius of where she was held as a victim of modern slavery, despite having no further contact with her traffickers. This decision was based on the understanding that the appellant was trafficked to a densely populated area of the United Kingdom, making such proximity subjective. Additionally, the judge noted that the appellant took steps to avoid interactions with Chinese individuals and minimized her outings over the intervening years.

The judge further concluded that although it was the appellant’s husband who borrowed money to settle his gambling debts, as his spouse, she was equally held responsible and was trafficked to settle that debt.

Victim unaware she could claim asylum

Regarding the delay in seeking asylum, the appellant stated that she was unaware she could claim asylum at the police station and feared being detained. The expert report suggested that the delay was also influenced by the stigma attached to having been coerced into sex work by traffickers, as sex workers in China face discrimination. Despite the prolonged delay, the judge found the appellant’s reasons credible, particularly considering her ongoing psychological therapy and medication for depression and anxiety.

The risk posed by the loan sharks was addressed by the expert, who found the appellant’s account consistent with known tactics used by such individuals. The judge determined that the loan sharks likely maintained interest in the appellant due to her unpaid debt incurred during her enslavement period. The illegality of money lending was deemed irrelevant, as evidence indicated continued operation of loan sharks, particularly in cases of historic unpaid debts.

Therefore, applying a lower standard of proof, the judge concluded that there was a reasonable likelihood of the appellant facing persecution from the loan sharks, who were deemed affiliated with or inseparable from the trafficking gang responsible for her forced sex work in the United Kingdom.

The judge suggested that there is a genuine risk of detection by the loan sharks and the appellant’s ex-husband if she were to attempt to re-establish her identity in China, as this would entail returning to her previous residence. Alternatively, failing to register would heighten her vulnerability to re-trafficking, as she would be unable to access state support, such as healthcare, shelter, or assistance to prevent destitution, given her status as an unregistered individual.

Would face genuine harm if returned to China

After carefully considering the credibility of the Appellant’s account, the judge determined that she would face genuine harm if returned to China, particularly from the loan sharks who orchestrated her trafficking to the United Kingdom in 2013. Additionally, based on expert evidence and considering the Appellant’s vulnerability, depression, and anxiety—which are likely to worsen upon her return—the judge finds that there is a reasonable likelihood she would be at risk of re-trafficking, either by her initial traffickers or by a different group.

As a result, the judge allowed the appeal because the removal of the Appellant to China would be contrary to Article 3 of the European Convention on Human Rights and/or a breach of the 1951 Convention on Refugees due to her affiliation with a specific social group, namely, trafficked women. Consequently, the judge determined that the Appellant would face very significant obstacles to integrating into society in China, contrary to the guidelines outlined in Appendix Private Life of the Immigration Rules.

The triumph comes with the appellant’s successful appeal on both protection and human rights grounds.

Have questions? Get in touch today!

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James Cook

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EHRC Investigation Reveals Racial Discrimination Practices at Pontins Holiday Parks

Pontins is a historic holiday park company, which at its height, had a number of parks up and down the country. It now runs just two, and recently found itself in hot water over a racial discrimination investigation by the Equality and Human Rights Commission (EHRC).

This investigation has resulted in Pontins being served with an unlawful act notice based on several clear breaches of the Equality Act 2010 for discrimination targeted towards Gypsies, Travellers, their associates, and those they suspected of being Gypsies and Travellers.

Keep reading to find out more about this case and to learn more about race discrimination law in the UK, as well as how your business can ensure that you comply with such laws.

Background

The origins of this report dated back to March 2020, when information was received from a whistle-blower stating that Pontins had discriminated against Gypsies and Travellers. The information disclosed by the whistle-blower included an ‘Undesirable Guest List’, which featured 40 names of Irish origin. This was used to identify suspected Gypsy and Travellers guests in order for Pontins’ staff to more easily to cancel or refuse their bookings.

In February 2021, the EHRC entered into a section 23 agreement with Pontins as per the Equality Act 2006. This required Pontins to carry out an action plan and provide evidence of how they were carrying out prevention of future acts of discrimination against Gypsy and Travellers. However, just shy of a year later, the EHRC terminated the section 23 agreement due to Pontins’ breach of the terms.

The EHRC identified that Pontins had failed in its requirement to review its terms and conditions in order to assess whether they were either directly or indirectly discriminatory against Gypsies and Travellers. Furthermore, Pontins concluded that their list of surnames was justified and that it was not used for a discriminatory purpose.

A few months later, the EHRC launched an investigation which examined whether Pontins had committed unlawful acts of race discrimination. These included those that they perceived or suspected were either Gypsies, Travellers, are those who were associated with them such as friends or families.

What are the discrimination rules under the Equality Act 2010?

As a holiday company, Pontins is deemed to be a service provider under the Equality Act 2010. Discrimination against guests can entail the following:

Refusal to provide a service
The terms on which a guest’s holiday is provided
Terminating the holiday
Subjecting guests to any other detriment

The racial discrimination discussed in this report focuses on whether Pontins committed unlawful acts of discrimination against Gypsies and Travellers. However, it also includes guests or potential guests that Pontins either perceived or suspected of being Gypsies or Travellers.

How is discrimination defined under the Equality Act 2010?

The nature of Pontins discrimination against Gypsies and Travellers was multi-faceted. The EHRC found Pontins to be responsibility for direct, indirect and associated discrimination, all of which are defined as unlawful under the Equality Act 2010. These distinct forms of discrimination are defined as follows:

Direct discrimination

Direct discrimination includes when a person discriminates against another person because of a protected characteristic. Or, if they treat a person with a protected characteristic less favourable than they treat others.

In the case of race-based direct discrimination, less favourable treatment includes segregating a person from a specific race from others.

Pontins committed direct discrimination based on their identification of Irish Travellers and use of systems and databases to ban Irish Traveller guests and their associates. This includes those who they perceived to be Irish Travellers, but may not have been.

Indirect discrimination

Indirect discrimination is slightly more nuanced, however the Equality Act defines it as being when a person applies to a person or a group of people a “provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic” of that person or group. This puts that person or group of people with a protected characteristic at a disadvantage compared with someone who does not share that characteristic.

This type of discrimination is often more common in workplace environments where a company has applied a blanket policy. However, it would not be deemed indirect discrimination if:

there is a good reason for doing so that is not discriminatory, and
it is a proportionate and necessary way to achieve that aim.

Pontins were indirectly discriminatory towards Gypsies and Travellers based on their requirement for guests to be on the electoral roll.

Discrimination by association

Pontins were also found to be responsible for two acts of direct discrimination by association. This is defined as treating someone less favourable than another person because they are associated with a person who either is or is perceived to be of a protected characteristic. In this case, Irish Travellers or Gypsies.

Guest were refused services by Pontins due to their association with people who were, or were perceived to be Irish Travellers or Gypsies.

How did Pontins breach the EHRC?

A number of startling breaches of the Equality Act by Pontins were discovered by the EHRC. These included the following:

Instructing their call centre staff to listen out for Irish accents in order to supposedly identify Irish travellers as well as to decline or cancel their bookings
The creation of a list of common Irish surnames that they labelled as ‘undesirable guests’. This would be used to instruct staff to decline or cancel bookings made under those names.
Labelling Irish travellers and their associates as ‘undesirables’.
Maintaining a ‘banned guest’ list. This list was made up of people suspected of being Irish travellers and their associates by Pontins
Finally, Pontins were also found to have introduced rules in 2018 which required guests to be on the electoral register. This was a practise which was found to be discriminatory against Gypsies and Travellers

What must Pontins do next?

The EHRC investigation concludes with a number of measures which must be implemented by Pontins. Pontins must meet the following recommendations in accordance with the law:

Apologise to and engage with the Gypsy and Traveller community, acknowledging their corporate responsibility and committing to a zero-tolerance approach to discrimination.
Monitor booking cancellations and failures in order to identify future or remaining issues.
Review and update their policies and procedures to ensure they are not discriminatory.
Develop and deliver training, including equality training around their legal duty to not discriminate.
Remove terms that stipulate electoral roll checks.

As part of these recommendations, Pontins must produce an action plan by 5pm on 9^th April 2024. As the action plan is enforceable in court, failure to do so will result in criminal sanctions for failure to comply.

How can businesses take measures to comply with anti-discrimination legislation?

It is a necessity for businesses to uphold their legal obligations and promote a fair and inclusive environment for all individuals.

There are actions that business owners can take to comply with such obligations. These include:

Policies and trainings: Implement clear policies prohibiting discrimination and providing equal opportunities for all employees and customers. Regular training for staff on diversity, equality, and inclusion is crucial.

Review Practices: Regularly review recruitment, promotion, and customer service practices to identify and eliminate any potential discriminatory barriers.

Consultation: Consult with employees, customers, and other stakeholders to understand their experiences and perspectives on equality and diversity within the business.

Monitoring and Reporting: Implement systems to monitor and report on equality and diversity issues within the business. This includes tracking recruitment, retention, and promotion statistics by protected characteristics.

Seek Advice: Seek advice from legal professionals or equality specialists to ensure compliance with EHRC regulations and to address any potential risks.

By proactively addressing equality and diversity issues within their businesses, owners can minimise the risk of breaching EHRC regulations and create a more inclusive and fair environment for all, which is vital for business in the modern world to succeed and thrive.

Our thoughts

The recommendations made by the EHRC towards Pontins are a comprehensive set of measures which, if followed, will address discrimination targeted towards Gypsies and Travellers.

The actions taken by the EHRC against Pontins are a reminder to businesses providing services of their duty to comply by the Equality Act 2010. Businesses should review their policies and practises to ensure that they are not discriminating, either directly or indirectly, against those with a protected characteristic.

At Lisa’s Law, we have a great track record of guiding businesses and employers in regulatory compliance, as well as extensive experience of advising on company policy, employment contracts and company handbooks. Contact us today.

Have questions? Get in touch today!

Call us on 020 7928 0276, phone calls are operating as usual and we will be taking calls from 9:30am to 6:00pm.

Email us on info@lisaslaw.co.uk.

Use the Ask Lisa function on our website. Simply enter your details and leave a message, we will get right back to you: https://lisaslaw.co.uk/ask-question/

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James Cook

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Changes to Health and Care Worker Route introduced in new Statement of Changes

The Home Office has issued a new Statement of Changes in Immigration Rules HC 556 on 19 February 2024. The Statement makes a number of anticipated changes to the rights of care workers to bring dependents to the UK through the Health and Care Worker route, as well as changes to the various Ukraine schemes – including the closure of the Ukraine family scheme.

Below, I will highlight some of the key changes.

Care worker

Dependents of care workers will no longer be able to apply to join the main applicant in the UK from 11^th March 2024. This applies in all cases where the main applicant has leave in either Standard Occupational Code (SOC) codes 6145 (Care worker) or 6146 (Senior care worker). The change will not affect those who are currently on a dependent visa, have children born in the UK or have applied for entry clearance before 11 March 2024.

All employers sponsoring care workers must have Care Quality Commission (CQC) registration from 10^th March 2024. This means that an applicant applying for a skilled worker visa as a care worker must ensure that their employer has the above registration otherwise the visa will be refused.

The above has been introduced by making amendments to Appendix Skilled Worker, Appendix Skilled Occupations and Appendix Shortage Occupation List of the Immigration Rules. They come into force for applications submitted on and after 11 March 2024.

The Explanatory Memorandum states that the changes are being made ‘in response to high levels of non-compliance and worker exploitation and abuse, as well as unsustainable levels of demand’.

There have also been changes to the Ukraine scheme with the immediate closure of the Ukraine family scheme.

Have questions? Get in touch today!

Call us on 020 7928 0276, phone calls are operating as usual and we will be taking calls from 9:30am to 6:00pm.

Email us on info@lisaslaw.co.uk.

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James Cook

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Government considers 99% mortgages – but are they a good idea?

“Getting on the housing ladder”. It’s a phrase which for generations has been an aspirational one for many young people living in the UK. However, with wages struggling to keep up with inflation, a lack of housebuilding, and rapidly escalating property prices, it is widely acknowledged to be increasingly difficult to buy your first property. Many solutions have been put forward, with the latest being 99% mortgages.

This idea has been reportedly considered by the government and may be introduced in the Chancellor, Jeremy Hunt’s Spring Budget on 6^th March. But are 99% Loan to Value (LTV) mortgages a good idea? In today’s article, we take a look at the idea of 99% mortgages, examining the advantages and disadvantages for first-time buyers.

What is a 99% LTV mortgage?

Simply put, a 99% LTV mortgage means that a lender (bank or building society) gives a buyer a loan which is worth 99% of the price they are buying a property for. This means that for a buyer, they only need to put up a 1% deposit. If a property is worth £250,000, they would only need to put £2,500 towards the deposit. This is a far lower deposit than would be needed for a 5% or 10% deposit for example. As a result, a property with a 99% mortgage is far more affordable in terms of getting on the property ladder.

Some lenders are already offering 100% mortgages, which mean that the buyer doesn’t need to put down a deposit at all. Most of these are guarantor mortgages, however there are some which are largely based on your rental payment history.

Advantages of 99% Mortgages

A major difficulty for those who want to go from renting to buying their own home is high rental costs. Many who are currently renting are paying increasingly high rent to their landlords, particularly in UK cities like London. This makes it difficult to save, even though those individuals would be paying less for their mortgage than they currently are by renting. Therefore, 99% mortgages would allow first-time buyers to save less before purchasing their property.

While 95% mortgages are still available through the mortgage guarantee scheme, meaning that the government will cover the costs if the lender loses money, these deposits can still be very hard to save for. The reason for this is that house prices have soared in recent years, and the average cost for a home is now £288,000 as of June 2023. Meanwhile, the average wages has struggled to keep up.

There are also positives to be had for lenders, with a potentially bigger market available to them. Nevertheless, there are also potentially disadvantages when it comes to 99% mortgages. Let’s discuss these now.

Disadvantages of 99% mortgages

Despite the obvious benefits of 99% mortgages, particularly for those people who are looking to get onto the housing ladder, there are also some negatives to bear in mind.

For one thing, a 99% mortgage will naturally have higher interest rates than a mortgage with a lower LTV percentage. As a result, these mortgage holders will be paying a greater total amount in order to pay off the mortgage than a product with lower interest rates.

Higher interest rates may also mean that for some, they may find that the product puts them under financial strain. However, for those who are already renting, this may still be either a negligible difference or a much lower amount compared with their previous monthly rental payments.

There is also the possibility that 99% mortgages could leave these mortgage holders in negative equity if housing prices were to fall. This means that the outstanding balance on your mortgage is more than the house itself is worth. If this is the case, it can cause huge problems if you want to sell your home. Furthermore, it may also cause issues when your existing mortgage ends. Lenders don’t usually let mortgage holders switch to a new deal if they are in negative equity. Instead, they will usually be moved on to the lender’s standard variable rate, which tends to have a much higher interest rate.

Prior to the Great Recession of the late 2000s, banks were often lending 100% or sometimes even more of a property’s value. The financial crash resulted in thousands of mortgage holders being stuck in negative equity and stuck on high interest rates following the collapse of several lenders. Despite this, it is worth bearing in mind that the criteria for a mortgage from lenders is now much more stringent and based on affordability.

Finally, there has been concern from across the property industry over the impact that 99% mortgages could have on the market. With more people having the ability to buy a property, this could further increase demand while reducing supply if not enough new properties are built. After all, the lack of housing stock in the UK is already self-evident for many of those struggling to buy their first home.

Our thoughts

While the intentions of getting more people on to the housing ladder are a noble one, the idea of a government-backed 99 per cent mortgage scheme is not necessarily a way to address the root cause of the housing crisis. At the moment, there are a lack of affordable homes available, and this move would result in even greater competition between potential homeowners.

Nevertheless, despite the risks it may be a very popular move for young people, particularly in cities like London where the main difficulty with buying a home is saving enough for a deposit. A 99% government-backed mortgage would therefore potentially help to unlock a generation of new homeowners. We will wait and see whether the government decides to go ahead with this move in its upcoming Spring Budget, which will be the last one before the next General Election.

Have questions? Get in touch today!

Call us on 020 7928 0276, phone calls are operating as usual and we will be taking calls from 9:30am to 6:00pm.

Email us on info@lisaslaw.co.uk.

Use the Ask Lisa function on our website. Simply enter your details and leave a message, we will get right back to you: https://lisaslaw.co.uk/ask-question/

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James Cook

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Act now – Beat the ban on newly arrived care workers bringing immediate family members

Recently, the government has announced changes to the visa rules in order to reduce immigration. The government has come under pressure due to the unprecedented levels of immigration since the Covid pandemic, which has seen net migration increase to over 700,000 per year. This has resulted in the government taking action to cut net migration to a lower level.

One of these changes includes stopping overseas care workers from bringing family members to the UK, effectively banning care worker dependants. Last year, 120,000 dependants came via this route, a sizeable number of the total number of immigrants. The government has decided to take action to ensure providers in England will only be able to sponsor migrant workers if they are undertaking activities regulated by the Care Quality Commission.

This change will come in force on 11 March 2024. It will affect care workers (SOC 6145) and senior care workers (SOC 6146). We recommend submitting applications to bring your dependants to the UK by 10 March 2024 at the latest.

If you have any questions, please feel free to contact us and we would be happy to help.

Have questions? Get in touch today!

Call us on 020 7928 0276, phone calls are operating as usual and we will be taking calls from 9:30am to 6:00pm.

Email us on info@lisaslaw.co.uk.

Use the Ask Lisa function on our website. Simply enter your details and leave a message, we will get right back to you: https://lisaslaw.co.uk/ask-question/

For more updates, follow us on our social media platforms! You can find them all on our Linktree right here.

James Cook

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Surrender and regrant – is it applicable if a joint tenant leaves a property?

An important Court of Appeal case has reaffirmed the succession criteria for a tenancy when a joint tenant leaves a secure tenancy. Unlike assured shorthold tenancies, secure tenancies often allow for strong succession rights. This may allow family members such as spouses or children to succeed to the tenancy should the original tenant pass away. This case also outlines the rights and status of landlords and tenants in situations where one of the joint tenants in a secure tenancy leaves a property. Furthermore, it addresses the issue of when surrender and regrant applies if a joint tenancy leaves a property.

But what happens when a joint tenant in a secure tenancy decides to leave a property? Well, normally this means that both joint tenants continue to be responsible for the rent. However, the case we shall be discussing today, Rahimi v City of Westminster Council, presents a more complicated situation.

This case focuses on an appeal by the grandson of a former tenant of a flat owned by Westminster Council. The grandson (the appellant in this case) was appealing against a decision which had reversed a previous judgement that held that the appellant’s grandmother was the sole tenant following the departure of her husband from the property.

Background

To summarise the background of this case, the appellant (Mr Rahimi) was the grandson of a tenant (Mrs Hussain) who had originally rented the flat under a joint tenancy with her husband. The flat was owned by the local authority, Westminster Council. The husband left the property and became homeless, leaving the grandmother as the only occupant until her grandson, Mr Rahimi, arrived in the UK and started living with her.

Following Mrs Hussain’s death, Mr Rahimi defended his claim for possession on the basis that he had succeeded to the tenancy on Mrs Hussain’s death. However, this was dependent on the question of whether prior to her death, Mrs Hussain could be deemed a sole tenant. If she was a joint tenant, despite her husband leaving, succession would be prevented by the right of survivorship, which would mean Mrs Hussain’s estranged husband, Mr Kazam, would have been inherited sole tenancy by way of survivorship.

The trial judge had held that Mrs Hussain was the sole tenant granted to her by the local authority following Mr Kazam’s departure as a result of implied surrender and regrant, by way of Mr Kazam voluntarily moving out of the property. As a result, they held that the appellant, Mr Rahimi was entitled to succeed to the secure tenancy. However, on first appeal, the judge found that there had been no surrender of the joint tenancy and therefore no regrant. This was appealed by Mr Rahimi.

Decision

This appeal brings us to the subject case of this article. The main question which arose was whether the local authority had granted a new sole tenancy to Mrs Hussain with Mr Kazam’s permission.

It was found that:

There was no support for the finding by the trial judge that Mr Kazam had surrendered joint legal possession
Mrs Hussain remained liable for the rent
Mr Kazam made no request for the tenancy to be transferred solely to Mrs Hussain, nor was there evidence of the keys being returned
Leaving the property was not evidence of him relinquishing joint legal possession
There was also no evidence that Mr Kazam either consented to the grant of a new tenancy to Mrs Hussain, knew about any arrangement between her and the local authority, or that he had been excluded from the property
No evidence that Mrs Hussain had agreed to be solely responsible for the rent
There was therefore no evidence that Mrs Hussain had been granted a new sole tenancy by the local authority
Mrs Hussain had relied on her 2005 joint tenancy agreement when supporting her grandson, Mr Rahimi’s visa application in 2017

As a result of these findings by the Court of Appeal, it was concluded that Mrs Hussain had remained a joint tenant until her death. Mr Rahimi was therefore not entitled to succeed to this tenancy.

The justice who gave the lead judgment for the Court of Appeal, Lord Justice Lewison confirmed that the law is as follows: when a new tenancy is granted to a sole tenant, surrender and regrant would only occur in cases where the new tenancy is at the outgoing joint tenant’s request or with their consent.

Our thoughts

This important case clarifies the law on both succession of tenancies, as well as surrender and regrant in a secure tenant contract. It is not enough for a sole tenancy to be created if one of the joint tenants simply vacates the property. Instead, a new sole tenancy must be created by way of surrender and regrant between the landlord and tenant.

This underlines the importance of clear communication between landlords and tenants when it comes to their rental situation, particularly in joint tenancies where both parties are both jointly and independently liable for rent. If Mrs Hussain had been granted a new sole tenancy through surrender and regrant, this would have strengthened Mr Rahimi’s successions rights. If you require any advice or need help with your rental situation, contact us today and we will be happy to help.

Have questions? Get in touch today!

Call us on 020 7928 0276, phone calls are operating as usual and we will be taking calls from 9:30am to 6:00pm.

Email us on info@lisaslaw.co.uk.

Use the Ask Lisa function on our website. Simply enter your details and leave a message, we will get right back to you: https://lisaslaw.co.uk/ask-question/

For more updates, follow us on our social media platforms! You can find them all on our Linktree right here.

James Cook

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Guide to Commercial Lease Renewal

Recently, we have received many enquires about commercial lease renewal procedure. These questions are commonly asked. As a result, it is worth discussing the various aspects of commercial lease renewal procedure.

In English law, there are two primary processes for extending the term of a commercial lease: granting a new lease and lease renewal by reference. Keep reading for a breakdown of the difference between the two.

Granting a New Lease

Lease Terms: When granting a new lease, the parties negotiate and agree upon the terms of the lease afresh. This includes the length of the lease, rent, break clauses, repair obligations, and any other relevant terms.

Rent Review: The new lease often incorporates provisions for rent reviews, allowing the rent to be adjusted periodically during the term based on agreed-upon mechanisms (e.g., market value, fixed percentage increase).

Tenant’s Security: Granting a new lease provides the tenant with the opportunity to secure a longer-term commitment from the landlord, providing greater stability and continuity for their business operations.

Negotiation: The negotiation process for a new lease can be more open-ended, allowing for potential changes to the terms and conditions based on the specific requirements of both parties.

Lease Renewal by Reference

Existing Lease: Lease renewal by reference refers to the process of renewing an existing lease by incorporating the terms of the original lease, as varied and updated with statutory provisions.

Security of Tenure: Lease renewal by reference is typically carried out under the provisions of the Landlord and Tenant Act 1954, which grants tenants the right to renew their leases at the end of the contractual term. This helps provide security of tenure for commercial tenants.

Statutory Protections: Lease renewal by reference ensures that the tenant continues to benefit from the rights and protections provided under the original lease and the Landlord and Tenant Act 1954, such as compensation for disturbance and the ability to apply for a new lease if the landlord opposes renewal.

Limited Variation: While lease renewal by reference incorporates the existing lease terms, it allows for some flexibility in making amendments. The parties can negotiate any necessary updates or changes to the lease terms during the renewal process.

Our thoughts

It’s important to note that the process of lease renewal by reference is subject to strict statutory procedures and timelines outlined in the Landlord and Tenant Act 1954. These procedures dictate the notices required, the timing of responses, and the circumstances in which the landlord can oppose the renewal. Additionally, lease renewal by reference may not always be available if the lease is contracted out of the protections provided by the Act.

A point to note is that a simple variation of the existing lease to extend the term would not be the proper way for lease extension, and it may trigger unfavourable consequences.

We will be happy to provide such legal advice to navigate the complexities of lease extension to suit your specific circumstances.

Have questions? Get in touch today!

Call us on 020 7928 0276, phone calls are operating as usual and we will be taking calls from 9:30am to 6:00pm.

Email us on info@lisaslaw.co.uk.

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James Cook

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High Court grants permission for judicial review of the government’s treatment of people with 3C leave

The High Court has granted the migrant and refugee charity organisation, Refugee and Migrant Forum Of Essex & London (RAMFEL), permission to bring a judicial review of the government’s treatment of people with 3C leave immigration status.

When an applicant is applying to extend their stay in the UK in time, applicants are automatically granted 3C leave so that their existing rights are protected while their application is processed.

Currently, the government does not provide those on 3C leave with proof of their immigration status, which RAMFEL states has led people to have difficulties with employment, study courses and disability benefits.

RAMFEL’s 2022 report found that 17% of people on 3C leave suffered serious detriment. Based on available figures, as many as 40,000 people nationwide could be facing wrongful suspension from work each year.

The report made four recommendations to the government, including providing confirmation of a person’s rights and entitlements whilst on 3C leave.

The High Court will now consider whether the government’s conduct is unlawful.

This case will be heard on 19 and 20 March 2024. If the court considers that the government’s conduct is unlawful, this will put huge pressure on the government to provide people proper proof of their immigration status whilst on 3C leave.

My thoughts

I have seen this so many times with my clients over the years when they have submitted an in-time application to extend their stay in the UK and are waiting for a decision on their application. In my opinion, some employers have been excessively requesting my clients for updates on their application. This has led to me writing a letter to the employers and providing evidence that their application was submitted on-time and that they are automatically granted section 3C leave so that their existing rights are protected while their application is processed.

Having (in their opinion) not received sufficient proof of my clients’ immigration status whilst on 3C leave, some employers have unfairly stopped my clients from working until they receive evidence that their visas have been approved. There are measures put in place for the employers to make their necessary checks if an individual is able to continue to work while their applications are being processed. However, some employers have chosen not to use these measures that have been put in place for the necessary checks to be made.

I believe that the government’s conduct is unlawful. This is another clear example of the government’s hostile environment which aims to prevent those who cannot evidence their immigration status from working and accessing basic services, such as opening a bank account or accessing medical care.

I am happy that this matter has been put forward into the court and I hope that we will see positive changes from this. I have long been in favour of the idea of a document which is provided to people on 3C with leave proof of their status. This would state their existing rights such as employment, study courses and disability benefits which would be protected while their application is processed.

Have questions? Get in touch today!

Call us on 020 7928 0276, phone calls are operating as usual and we will be taking calls from 9:30am to 6:00pm.

Email us on info@lisaslaw.co.uk.

Use the Ask Lisa function on our website. Simply enter your details and leave a message, we will get right back to you: https://lisaslaw.co.uk/ask-question/

For more updates, follow us on our social media platforms! You can find them all on our Linktree right here.

James Cook

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Walkers poppadoms are actually crisps! Zero rated VAT should not apply to the product, rules tribunal

When is a poppadom not a poppadom? Well, according to the First-tier tribunal it’s when it’s actually a potato crisp. Sensations Poppadoms, a potato-based snack made by Walkers, was recently the subject of a tribunal deciding whether the product should benefit from zero rated VAT, the sales tax applied in the UK to certain products.

HMRC had originally decided in June 2021 that Sensations Poppadoms should be subjected to standard rated VAT (20%). This resulted in Walkers filing an appeal against the decision.

Let’s examine the basic rules regarding VAT on snack products, as well as the details of the case.

What are the rules regarding VAT on snack products?

This is a complex topic. VAT is generally not applied to food with the exception of certain products. These include products within Note 5 which are (similar to potato crisps, potato sticks, potato puffs) made from the potato, or from potato flour, or from potato starch” which are packaged for “human consumption without further preparation”. These were two of the main factors considered by the tribunal when it came to deciding whether the Sensations Poppadoms should be standard or zero rated. The similarity of the products to potato crisps, as well as their fiscal neutrality, was also considered when deciding whether the snacks should be standard VAT rated or not.

Let’s take a look at each of the individual factors and find out why the First-tier tribunal came to the conclusion that they did.

Decision

Human consumption without further preparation

Part of Walkers’ reasoning for the products not qualifying for “human consumption without further preparation” is their claim that the products were designed to be eaten with chutneys, dips, pickles, or as a side to the meal. On this basis, the products did require further preparation before being eaten. The reason they were arguing this is that products which qualify for human consumption without further preparation are usually standard VAT rated.

But is this a convincing argument? The tribunal found that there was nothing on the packaging to indicate that any preparation was required. Furthermore, their own packaging showed people eating them straight from the packet without any preparation.

As a result of this, the tribunal found that the products were indeed packaged for human consumption without further preparation.

Potato content of the products

On this factor, the tribunal was provided a detailed list of the ingredients of both the Lime and Coriander flavour, as well as the Mango and Chilli flavour Sensations Poppadoms. Both flavours were found to contain around 17.5-18% potato granules, 17.5-18% potato starch, as well as 4.25% modified potato starch. The Tribunal noted that the consumer packaging for the poppadoms didn’t make any mention of modified potato starch in the ingredients list. The proportions of the potato granules and potato starch were also rounded down to the nearest whole number.

Walkers disputed the idea that potato granules should be included when determining whether a foodstuff should be considered under HMRC’s VAT rules. As a result of this, they submitted that the products should be regarded as only having 17% potato. Nevertheless, witness evidence submitted by HMRC contended that potato granules are pre-cooked dehydrated potatoes which should come under the term “the potato” as referred to under Note 5 mentioned earlier.

After considering all of the evidence, the Tribunal found that the products actually contain approximately 40% potato-derived ingredients. These took the form of potato granules, potato starch and modified potato. The proportion of potato in comparison with other ingredients was therefore considered significant in comparison with the products’ other ingredients. Despite this, although the Sensations Poppadoms contained enough potato-derived ingredients to be considered that they were made from these ingredients, the FTT noted that in isolation, this does not determine their similarity with potato crisps.

Similarity to potato crisps

But what about the similarity of Sensations Poppadoms to potato crisps? This would also have an important bearing on the FTT’s decision. The Tribunal referred to a decision made by the Court of Appeal in HMRC v Proctor & Gamble UK [2009] EWCA Civ 407 which considered whether Pringles are similar to potato crisps.

While Walkers posted the question of traditional poppadoms are or are not similar to potato crisps, the tribunal found that this was not relevant to the appeal. Instead, they made the point that the question posed by statute was whether the products which are the subject of the appeal are similar to potato crisps.

The marketing was also used by the tribunal in order to determine the similarity of Sensations Poppadoms to potato crisps. Walkers argued that the products were called “poppadoms, unlike potato crisps.” However, the tribunal held that it nominative determinism is not a characteristic of snack foods, and that weight is not given to the names of the products for determining whether they are potato crisps. For example, no one would argue that “Monster Munch” is a food which is principally for monsters.

In terms of similarity, it was concluded that the ingredients, packaging, appearance and texture meant that the products could be considered as similar to potato crisps.

Fiscal neutrality

Finally, on the issue of fiscal neutrality, the idea that a tax should not distort economic behaviour, the FTT decided that applying the standard rate of VAT to the Sensations Poppadoms would not breach this principle. The fact that Walkers decided to market their product which was made from potato-based ingredients as a poppadom does not mean it should be treated the same as a poppadom not made from potato-based ingredients.

As a result of the above considerations, the tribunal found that the products are within Note 5 and therefore standard rated for VAT purposes. The appeal was therefore dismissed, however Walkers does have the right to appeal against the decision.

Our thoughts

While at first glance this might seem like a fairly trivial case, it provides important lessons for businesses in the food industry. Food and drink products which are for human consumption are usually zero-rated, however foods which may be deemed ‘less healthy’ are nearly always standard-rated (20%). This explains why the point over whether the Sensations Poppadoms were similar to potato crisps was such a bone of contention. Walkers will now be required to pay VAT on its range of Sensations Poppadoms.

If you want to learn more about how VAT rates are decided for food and drink products, click here.

Have questions? Get in touch today!

Call us on 020 7928 0276, phone calls are operating as usual and we will be taking calls from 9:30am to 6:00pm.

Email us on info@lisaslaw.co.uk.

Use the Ask Lisa function on our website. Simply enter your details and leave a message, we will get right back to you: https://lisaslaw.co.uk/ask-question/

For more updates, follow us on our social media platforms! You can find them all on our Linktree right here.

James Cook

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Granting a New Lease

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My thoughts

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What are the rules regarding VAT on snack products?

Decision

Human consumption without further preparation

Potato content of the products

Similarity to potato crisps

Fiscal neutrality

Our thoughts

Have questions? Get in touch today!

Have questions? Get in touch today!

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