India and Georgia to Be Added to Safe Countries List

On November 8, the UK Home Office announced the draft legislation procedure of adding India and Georgia to the safe countries list within Section 80AA of the Nationality, Immigration and Asylum Act 2002. This means that if individuals from these countries seek asylum or make human rights claims in the UK, those claims would be considered inadmissible unless there are “exceptional circumstances.”

What is the Safe Countries list?

The Section 80 AA safe countries list was introduced by Section 59 of the Illegal Migration Act 2023. The upcoming regulations aim to expand this list.

According to Section 80A of the 2002 Act, any asylum claims made by EU nationals will be deemed inadmissible unless there are exceptional circumstances. Once the Section 59 of the Illegal Migration Act is fully enacted, Section 80A will be expanded beyond EU nationals and will apply to nationals of all countries on the list at section 80AA.

According to Section 80AA of the UK law, the Home Secretary can add a country to the safe countries list if there is “no serious risk of persecution of its nationals, and removal of nationals to that country cannot go against the UK’s obligations under the Human Rights Convention”, revealed the UK government.

The section 80AA list is also referred to in the Illegal Migration Act 2023 at Section 4 (unaccompanied children and power to provide for exceptions) and 6 (removal for the purposes of section 2 or 4), although neither section is yet in force. Section 6 provides that where the duty to remove applies, a person who has claimed asylum cannot be returned to their country of origin unless it is on the list in section 80AA. They could be returned to a country listed in the Schedule to the Act, but this would require those countries to agree to accept third country nationals.

Why are India and Georgia being added?

The Home Office justified including India and Georgia in the safe countries list based on asylum statistics, showing a significant number of asylum claims from these countries. This is despite the UK government claiming that people from there are not at risk of persecution.

For the UK government, there are two separate reasons for adding countries to the ‘safe’ list. The first one is that if the duty to remove was brought into force, an Indian national who claimed asylum could not be returned to India if it was not on the section 80AA list, but they could be sent to Rwanda (if there was a functioning transfer agreement in place). As there is no functioning agreement, it makes more sense for the government to add India to the section 80AA list so that Indian nationals can be returned there if the duty to remove is brought in.

The second reason is that even without the duty to remove, adding these countries to the list means that asylum and human rights claims made by their nationals must be deemed inadmissible under section 80A of the 2002 Act, absent “exceptional circumstances”.

Our Comments

By expanding the safe countries list, the UK government hope to strengthen the UK immigration system. In their view, this can be done by preventing unnecessary protection claims from asylum seekers as part of their goal to reduce migration.

Former Home Secretary Suella Braverman said expanding the ‘safe’ countries list will enable the UK government “to more swiftly remove people with no right to be here and sends a clear message that if you come here illegally, you cannot stay”.

However, concerns have been raised regarding the potential repercussions of this policy shift. Despite recognizing nationals from India and Georgia as refugees, the UK government recognizing nationals from India and Georgia as refugees, the process becomes more challenging for individuals from these countries seeking asylum. The apprehension is that this adjustment may result in some people being sent back to their home countries, possibly exposing them to persecution. This concern is heightened by the stringent requirement of “exceptional circumstances” needed to resist the return. This policy shift, while aiming to strengthen immigration control, raises human rights considerations and the potential risk of returning individuals to precarious situations.

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Judicial Wake-Up Call: A Tale of Late Notices, Non-Compliant Statements, and Inadequate Time Estimates

The recent judgment in the case of Hua She Asset Management (Shanghai) Co Ltd v Hung & Anor [2023] EWHC 2445 (Comm) underscores the importance of adhering to the Civil Procedural Rule. It highlights the duty of all parties involved to promptly inform the court of any emerging complexities and to reassess previously agreed time estimates for substantive submissions. Failing to do so may result in costly adjournments during substantive hearings.

Our firm had the honour of representing the second and third respondents in this case, with Mr. Roger Masefield KC as the leading counsel and Mr. Nicholas Yell serving as the senior counsel for our clients. I had the privilege of serving as the leading solicitor on this case, working alongside my colleague, Paul Cheuk, whose valuable assistance greatly contributed to our efforts.

Key Issues

Judge Mark Pelling KC, who presided over this case, was unimpressed with various aspects, including the claimant’s late service of a notice under CPR 32.19, challenging document authenticity nearly two weeks before the hearing, the fourth defendant’s non-compliant witness statement filed nearly two weeks before the hearing, and the collective failure of the claimant and second, third, and fourth respondents to recognise the inadequacy of the time estimate.

“12. The need for an adjournment in large part arises from a failure on the part of the claimant (i) to issue the relevant notices challenging authenticity in time, (ii) to issue an application for relief from sanctions until two weeks before this hearing was due to commence, and (iii) the claimant requiring the application to be listed at the start of the trial.

13. By the same token, some responsibility must rest on the shoulders of each of the second, third and fourth respondents for their failure to engage directly with the court and/or with the claimant in relation to the time estimate once it became apparent that the time estimate was plainly inadequate. Had that been addressed, then an application for directions could have been made at short notice and the wasting of at least some of the court time could have been avoided.”

The judgment thoroughly examined the intricacies of the adjournment and assigns responsibility to each party for the resulting costs.

Background

The case involved an application to make a charging order absolute, which was originally scheduled for a three-day hearing with half a day’s judicial reading time. However, it became apparent that the hearing would require a longer duration, and all parties agreed on a period of five days with one and a half days’ judicial reading time. The primary issue revolved around determining the ultimate beneficial owners of the property subject to charging orders, specifically focusing on the second, third, and fourth respondents.

Complications and Relief from Sanctions

The issue arose when two applications for relief from sanctions were made by the fourth respondent and the claimant which added complexity to the proceedings. The fourth respondent sought relief due to the Mandarin-speaking nature of their witnesses, whose statements were initially presented in English without proper translation from Mandarin. The Claimant also filed an application for relief due to the late service of notice to challenge the authenticity of the underlying agreements relied upon by the second, third and fourth respondents were non-authentic and sham.

Insufficient Time Estimate

The time estimate of three days was considered inadequate and later adjusted to five days. The hearing became increasingly problematic with the addition of the seventh respondent, Mandarin-speaking witnesses, and the time-consuming relief from sanctions applications. Recognising the impracticality of the original time estimate, all parties agreed to an adjournment.

Judge’s Critique

Judge Pelling expressed strong disapproval of the last-minute adjournment, emphasising the unacceptability of cramming a vast amount of submission in a short time. Such a practise could potentially lead to unfairness. Furthermore, such inadequacy in time estimate wasted three full days of the Commercial Court time. The Judge highlighted the responsibility of all parties, except the fifth, sixth, and seventh respondents, for failing to address the inadequacy of the time limit.

Costs Allocation

The central question addressed in the judgment was the allocation of costs resulting from the adjournment. The claimant argued for cost reservation pending the determination of the substantive issues. However, the judge rejected this, asserting that the adjournment costs are distinct from the substantive outcome.

Responsibility Attribution

Judge Pelling determined that the claimant bore primary responsibility for the adjournment due to late issuance of notices challenging authenticity and the delayed application for relief from sanctions. Nonetheless, he acknowledged the shared responsibility of the second, third and fourth respondents for not addressing the time estimate issue promptly.

Costs Award

The judge ruled that the second and third respondents were entitled to recover 75% of their adjournment costs from the claimant, reflecting their share of responsibility. The fourth respondent, facing additional issues related to the relief from sanctions application, was awarded 50% of her adjournment costs. The fifth, sixth, and seventh respondents, with a limited role and no direct responsibility for the time estimate, were entitled to recover their adjournment costs in full.

Conclusion

I am glad that our clients were happy with the outcome above but it is imperative to bear in mind the critical importance of complying with the Civil Procedural Rule and timely procedural adherence in legal proceedings. The last-minute adjournment, though regrettable, necessitated a fair allocation of costs. The court acknowledges the primary responsibility of the claimant for procedural lapses leading to the adjournment. However, shared responsibility is recognised concerning the inadequacy of the time estimate.

In determining costs, a balanced approach was adopted. The second and third respondents are awarded 75% of their adjournment costs, reflecting their proportional responsibility. The fourth respondent, facing additional complexities, is awarded 50% of her costs. The fifth, sixth, and seventh respondents, with a limited role and no direct impact on the adjournment, are entitled to recover their costs in full.

The judgment above serves as a reminder to all practitioners of the judiciary’s commitment to procedural fairness and the need for parties to engage proactively in addressing time estimates and compliance issues. It serves as a great reminder that all parties share the responsibility for efficient case management, failing which it will reflect dearly when it comes to allocation of costs.

It is evident that the case was successful being led under the guidance of Mr Roger Masefield KC https://www.brickcourt.co.uk/our-people/profile/roger-masefield-kc and Mr Nicholas Yell https://www.barstandardsboard.org.uk/barristers-register/912631B093D13865AE6EA50D81F049B6.html. We would highly recommend their expertise in both civil and commercial disputes.

Please feel free to contact myself, Evveline Ziwei Loh at e.loh@lisaslaw.co.uk or Paul Wai Ho Cheuk at p.cheuk@lisaslaw.co.uk.

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Debt Recovery Legal Considerations: Strategies for Disputed and Undisputed Debts

This article will focus on legal considerations for debt recovery. There are two ways to proceed when a debt is owed. If it’s disputed, we would advise that a pre-action letter is issued, and claim issued to the court. For undisputed debt, statutory demand can be considered.

A statutory demand should not be employed as a means of recovering debts under dispute. If a creditor issues a statutory demand for a disputed debt or fails to retract it upon the emergence of a dispute, they may be liable to cover the debtor’s legal costs. These costs could arise when the statutory demand is set aside for an individual or when an injunction is granted to prevent the creditor from presenting a winding-up petition.

The expenses incurred by the creditor in such situations, whether in setting aside the demand or obtaining an injunction, can range from £2,000 and upward, even if, in the end, the debt is deemed valid. It’s crucial for creditors to understand that withdrawing the demand does not imply an acknowledgment that the debtor is exempt from payment. Instead, it signifies an acknowledgment of a genuine dispute or an issue that the court must adjudicate.

Pre-action Letter

The pre-action protocol is not applicable to debts between businesses (except when the debtor is a sole trader). If you, the creditor, are a “business” seeking payment from an individual, it applies.

A Pre-Action Letter (PAL) is a formal communication sent by your legal representative on behalf of a potential claimant to a prospective defendant. It articulates specific demands, such as debt payment, and acts as a warning of impending legal action if these demands aren’t met within a reasonable timeframe.

Typically dispatched after unsuccessful prior payment requests, the PAL provides the other party with an opportunity to respond, either by addressing the demands or presenting a dispute before the situation escalates. Non-compliance with outlined demands may lead to the initiation of legal proceedings.

The sending of a PAL adheres to the requirements of the Civil Procedure Rules and Pre-Action Protocols, governing the conduct of involved parties and outlining necessary steps before initiating a claim. In litigation, the court expects compliance with the relevant Pre-Action Protocol, with potential consequences for non-compliance in case directions and cost awards.

While the specifics of each PAL may vary based on the claim’s nature and applicable protocol, a general template includes the debtor’s details, background summary, debt breakdown with interest, a reasonable response time (typically 14 days or 30 days depending on whether the debt claim pre-action protocol applies), relevant document annexation, and a clear statement that legal proceedings will commence if no response is received within the specified timeframe.

A PAL is a valuable tool for demanding payment or notifying the other party of breaches. It allows for a detailed presentation of anticipated losses, giving them an opportunity to rectify the breach. Alternatively, if the issues are not addressed, it establishes the groundwork for initiating court proceedings.

Statutory Demand

If the debt faces no dispute, an alternative is to dispatch a formal statutory demand to the debtor, whether an individual or a company, stipulating payment within 21 days in a specified format.

Failure by the debtor to adhere to the demand—whether by not paying, failing to negotiate an acceptable arrangement with the creditor, or disputing the demand (in the case of an individual)—can be grounds for supporting a bankruptcy or winding petition, citing the debtor’s inability to settle debts. Statutory demands are assertive tools and should not be misused solely for debt recovery, as such misuse can be criticized by the court.

Consider the following key points concerning statutory demands:

1. There’s no obligation for a creditor who issued a statutory demand to initiate insolvency proceedings.

2. If insolvency proceedings commence, note that secured creditors take precedence over those with unsecured debts.

3. For individual debtors, the demanded debt must be an undisputed liquidated sum of at least £5,000.

4. A statutory demand and winding-up petition are valid only if:

a) The debt exceeds £10,000.

b) Debts related to rent or other sums under a ‘relevant business tenancy’ are unaffected by COVID-related financial issues.

c) The creditor issues a “schedule 10 notice” with prescribed information, giving the debtor 21 days to propose debt repayment.

d) The debtor fails to provide a satisfactory proposal within 21 days from the delivery of the schedule 10 notice.

Using a statutory demand is a quicker method to recover payment compared to a PAL and debt recovery proceedings. However, it is a forceful tool and should not be used if the debt is genuinely disputed; in such cases, the appropriate route is the PAL.

Please note that the debtor could apply to set aside the statutory demand if disputed within 18 days of it being served on.

Please see the below forms for your perusal:

1. Demand immediate payment of a debt from a limited company: Statutory Demand Form (Form SD 1)

2. Demand immediate payment of a debt (‘statutory demand’: Statutory Demand Form (Form SD 2)

3. Debt payable at a future date: Statutory Demand Form (Form SD 3)

4. Debt for liquidated sum payable immediately following a judgment or order of the court (Statutory Demand Form (Form SD 4)

Have questions? Get in touch today!

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

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Rwanda Policy held to be unlawful by UK Supreme Court

Recently, the UK’s immigration policy faced a crunch moment when the Supreme Court decided that the government’s Rwanda policy is unlawful. The highest court in the UK has spent a month deliberating the legality of the plans to remove asylum seekers to the East African country.

Today, the Supreme Court released its final judgement, declaring that the Rwanda plan is unlawful because of risks to asylum seekers being sent there.

Keep reading to learn more about the decision and its consequences.

Supreme Court Decision

In court, Lord Reed, president of the supreme court, set out the details of the Rwanda policy. According to Lord Reed, the policy is not about letting Rwanda decide if people get asylum in the UK. Instead, it is about sending people to Rwanda, where they can claim asylum to stay there.

The central issue in the present case is therefore not the good faith of the Rwandan government at the political level, but its practical ability to fulfil its assurances (at least in the short term) in the light of the present deficiencies of the Rwandan asylum system. In addition, its past and continuing practice of refoulement, as well as the scale of the changes in procedure, understanding and culture which are required.

Furthermore, Lord Reed emphasized the importance of the non-refoulement rule, stating that refugees should not be returned to their country of origin if they could face prosecution there. This rule is a principle of the UN refugee convention, endorsed by the UK and other conventions. This demonstrates that the European Convention on Human Rights is not the only obstacle to unjust repatriation.

Despite the Home Secretary’s claim that Rwanda can be relied on based on the Memorandum of Understanding it has agreed with the UK, the United Nations High Commissioner for Refugees (the UNHCR) presented evidence challenging Rwanda’s treatment of asylum seekers. The UNHCR also raised concerns about how the Rwandan judicial system operates. Furthermore, it highlighted instances of non-refoulement violations in a prior agreement with Israel.

Rwanda has also received criticism for carrying out extra-judicial killings, and the British police has had to caution Rwandan refugees about death threats. Such evidence indicates that Rwanda may not be adhering to its international obligations. As it stands, the evidence establishes substantial grounds for believing that there is a real risk that asylum claims will not be determined properly, and that asylum seekers will in consequence be at risk of being returned directly or indirectly to their country of origin under the Rwanda plan.

Given this evidence, the court of appeal concluded that there were good grounds for thinking asylum seekers going to Rwanda were at risk. The Supreme Court is unanimously of the view that the court of appeal was right.

Details about the Rwanda Policy

The Rwanda policy is a central plank of the Conservative party’s immigration policies under the governments of Boris Johnson, Liz Truss and Rishi Sunak. These immigration policies give ministers powers to detain anyone who arrives in the UK illegally and deport them to a safe third country such as Rwanda or their home country.

In April 2022, following a drastic increase in the number of people crossing the Channel, then-prime minister Boris Johnson announced a plan to deport migrants arriving in small boats to Rwanda for their claims to be processed, presenting it as a “very considerable deterrent”. Responding to the Channel migration issue, in April 2022 the then home secretary, Priti Patel, signed an agreement to send “tens of thousands” of “irregular” asylum seekers to Rwanda.

The five-year agreement set out a memorandum of understanding for which the UK government has so far paid £140m. In exchange, the Rwandan government said it will house and settle the refugees and process their claims. There is no official route back to the UK if the refugees’ asylum claims are deemed to be genuine.

However, the courts, domestic and European, have so far held up the removal of anyone to Rwanda under the scheme. In June 2022, the first deportation flight to Rwanda was cancelled just minutes before take-off following a ruling by a judge at the European Court of Human Rights in Strasbourg.

Legal challenges against the Rwanda policy

Legal challenges ensued. The High Court ruled the Government’s Rwanda policy was lawful, but ordered the cases of the first eight deportees to be reconsidered. Subsequently, a High Court judge ruled that asylum seekers facing removal to Rwanda can appeal against the Home Office’s decisions over alleged errors in the consideration of whether relocation poses a risk to their human rights, dealing another blow to the plan.

Despite this, the Court of Appeal ruled against the government on a single issue of safety, saying there was a real risk of asylum claimants being returned to their country of origin where they could face inhumane treatment.

In July 2023, the government sought approval to elevate the legal battle over its Rwanda deportation policy to the Supreme Court. Starting on October 9, the Supreme Court conducted a three-day hearing on the Government’s challenge to the Court of Appeal’s ruling that the plans to send asylum seekers to Rwanda are unlawful.

What are the consequences of the decision?

This marks a victory for reason and compassion for many, preventing asylum seekers from facing forced deportation to Rwanda.

With the unlawful ruling on the Rwanda policy, asylum seekers don’t need to worry about being placed on planes against their will and sent 4,000 miles to Rwanda by the government. Lawyers representing those facing deportation to East Africa argue that Rwanda has an “authoritarian, one-party state” with a “very poor” asylum system. Sile Reynolds, head of asylum advocacy at Freedom from Torture also highlighted the terror that this plan inflicts on survivors of torture who have fled unimaginable horrors and are trying to rebuild their lives in the UK.

However, the government’s attempts to tackle the migrant issue are evident. The Prime Minister has warned of the unsustainable pressure on the asylum system, as the taxpayer bill nearly doubles to almost £4 billion. With the UK government recently adding India and Georgia to the ‘safe’ countries list, the government may potentially expand the list of countries under the Illegal Migration Act. Such a move could lead to swift deportations, as claims from affected nationals could be automatically rejected.

In conclusion, the announcement of the Supreme Court is a sign that the government should pledge to create an asylum system that works, which should be one with clear, open, safe and legal routes for applicants, quick and efficient determinations and support for resettlement into local communities with properly funded local services.

Have questions? Get in touch today!

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

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Success in Recognition of Dependants – Decade-Old Error Corrected

There are numerous pathways to securing immigration status in the United Kingdom. Each individual’s unique circumstances often leads them to selecting specific visa routes, and at times they may even possess multiple legal foundations for achieving Indefinite Leave to Remain (ILR). Dependants in particular can sometimes face a harder route to secure immigration status.

Due to the intricate and subtle legal complexities within the UK immigration system, it’s important to note that the Home Office may consider these different ILR grounds differently. The Home Office might also make mistakes, such as failing to recognise a migrant’s dependants. If the Home Office gets it wrong when applying the immigration rules, it can significantly impact individuals seeking ILR under different grounds.

The case we’re discussing today, R (on the application of Shantay Seneke Blake) v Secretary of State for the Home Department (SSHD), shows the importance of accurately interpreting and applying immigration laws. It also demonstrates the importance of knowing what we can do to protect our rights if the Home Office made a mistake in applying the law.

Background of R v SSHD

The applicant, a Jamaican national, arrived in the UK with her mother (M) and brother as visitors in 2000 when she was just three years old, and her brother was less than a year old. They overstayed upon the expiry of their leave.

In 2006, M was convicted of drug offenses and sentenced to two years’ imprisonment, leading to deportation proceedings against her commencing in 2007. The First-tier Tribunal (FTT) later granted M humanitarian protection under Article 3 of the European Convention on Human Rights. In 2013, M was granted Leave to Remain (LTR) as a refugee, issued a UK Residence Permit (UKRP). The applicant and her brother received UKRPs which wre valid until 2018.

In 2018 and 2021, the applicant applied for Indefinite Leave to Remain (ILR), which required LTR in a specific category. This emphasises her eligibility as a dependant on her mother’s asylum claim and eligibility under Immigration Rules Paragraph 339R. However, both applications were rejected by the Secretary of State because the LTR had been granted under Article 8 of the Convention, and she wasn’t considered to have LTR in a qualifying capacity.

The SSHD stated that as the applicant has never been granted permission to stay as a refugee or person granted humanitarian protection, the application under paragraph STP 1.4 of the Settlement Protection Annex, which requires an applicant for ILR in that capacity to have leave to remain in a specific category, was invalid and should be rejected.

Application for judicial review

The applicant applied for judicial review, challenging the lawfulness of the Secretary of State’s decision to reject her application for settlement as invalid. The applicant contends that she was her mother’s dependant and ought to have been granted leave as such. Finally, the applicant contended that the SSHD erred in failing to grant her leave as the dependant of a refugee and that every subsequent consideration of her immigration status, including the decision under challenge, was tainted by that error.

While the SSHD acknowledges that the applicant’s mother was granted leave to remain as a refugee in 2013, it disputes that the applicant was her dependant at that time. Moreover, the SSHD asserts that the applicant did not have leave that entitled her to ILR under the Immigration Rules.

Court Decision on R v SSHD

The Upper Tribunal allowed the applicant’s judicial review application, challenging the Home Office’s decision to reject her application for settlement. They mainly assessed whether the Secretary of State’s continued refusal to treat the applicant consistently with the 2013 decision of the FTT (as someone who had been granted or should have been granted five years’ LTR as the dependant of a person granted leave as a refugee) had been unlawful.

The tribunal considered not only the claims made by the applicant and her mother over the last fifteen years or more, but also the departmental records concerning those claims.

The tribunal’s decision in relation to the claimant’s dependants

1. The applicant and her brother had not been expressly named as dependants. However, there had been no suggestion anywhere in the record of the FTT proceedings that the applicant and her brother were to be separated from M.

2. The senior caseworker who had approved the refusal decision failed to explain the basis to grant leave to the applicant and her brother only pursuant to art 8 of the Convention. In the absence of any explanation, the decision appeared to be unlawful, in that it had not been in accordance with the Immigration Rules and the respondent’s published policy.

3. While it had been correct that the Secretary of State had not been obliged to treat the applicant as if having leave under para 339Q of the Immigration Rules, that had not been a complete answer to the applicant’s complaint. It had ill-behoved the Secretary of State to rely on the applicant’s delay and her failure to challenge the 2013.

The Tribunal also clarified why it was incorrect to consider the case as one where the applicant passively accepted an erroneous LTR grant in 2013.

there had been no notice in 2013 that she received anything other than refugee-dependant leave;
the applicant was a child at that time and could not properly be criticised for not recognizing the wrong decision;
finally, the first indication of a different ground of leave other than as a dependant of a refugee had been in 2018 when her ILR was denied.

Error made by the Home Secretary

The 2013 error led to the refusal of the 2018 ILR application under Immigration Rules and the invalidation of the 2021 application. But the Secretary of State erred in failing to consider, in the exercise of the discretion, whether to grant the applicant ILR outside the Immigration Rules so as to correct the error it made in 2013. The outcome for the applicant would likely have been different had the Secretary of State properly considered her submissions in this regard. Given the 2013 error, the applicant had a valid case for leave outside the Immigration Rules.

The tribunal finally held, among other things, that the applicant had been included as a dependant on M’s application for asylum and that she had been treated as such by the Secretary of State. She should have been granted LTR under para 339Q of the Immigration Rules as a result, and it had been erroneous to grant her LTR pursuant to art 8 of the Convention only.

Our comments

This case deals with the years of litigation that resulted from the Immigration Department’s mistaken belief that the applicant was not a family member of a refugee. Fortunately, the story has a good result, although it comes 10 years late.

According to this case, we can see that the Home Office also makes mistakes. The SSHD’s persistence in these errors has caused huge losses to the parties and resulted in years of litigation, so it is important for the SSHD to fully consider the actual situation of the parties when exercising its discretion.

Moreover, the appellant’s victory in this case is a good example for other immigrant family members in similar situations. A real cohabitation and the age of civil behaviour should also be considered when assess the identity of dependants of immigrants.

Finally, this case highlights the need for clarity in the application of immigration rules to ensure that the rights of individuals seeking residence in the UK are protected.

Have questions? Get in touch today!

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

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Captain Tom Foundation ordered to demolish spa complex built using charity’s name

Captain Tom Moore could be described as the totemic figure of the Covid lockdown period in the UK. Raising millions of pounds for NHS charities by walking laps of his garden, one of the defining images of the first lockdown was the uniform-adorned 99-year-old and his walking frame. Captain Tom became a global news story overnight, and his efforts were celebrated as the embodiment of the spirit and determination of the British public during the pandemic. He would go on to be knighted by Queen Elizabeth II, before passing away in February 2021 aged 100.

Before he died, the Captain Tom Foundation would be launched in his name. His daughter, Hannah Ingram-Moore, and her husband would become trustees of the charity in February 2021. The charity made Hannah Ingram-Moore an interim CEO, where she earned £85,000. It has come under intense scrutiny for its high costs relative to its charitable grants, leading to a statutory inquiry by the Charity Commission which began in June 2022.

This takes us up to the present day, where Ingram-Moore and her husband have lost a planning application appeal for a spa complex in their garden which was built using the charity’s name. They have also been given three months to demolish the structure by Central Bedfordshire Council.

Keep reading to learn more about the case and the lessons that can be learned for charities like the Captain Tom Foundation.

Background

The building on the grounds of the family home originally gained planning permission in August 2021 for an L-shaped building to be used for foundation activities and housing memorabilia.

However, a revised planning application was made in February 2022 for a C-shaped building. This included a spa pool, toilets, as well as a kitchen for private use. The justification for the building by Ingram-Moore and her family was that the new building would allow “Captain Tom’s story to be enjoyed by the public”. They also suggested that the spa pool would be opened up for rehabilitation sessions to be enjoyed by elderly people once or twice a week. However, there were no clear details regarding how the plans would work in practise.

This version of the building was refused planning permission by the Council, leading to the planning authority issuing an enforcement notice on 16^th March 2023 requiring the unauthorised building to be demolished. This enforcement notice required the demolition of the detached single storey building, the removal of the building materials from the land, as well as the restoration of the land to its former condition prior to the building being constructed.

An appeal was subsequently filed under section 174(2) (a),(e),(f),(g) of the Town and Country Planning Act, however ground (e) was subsequently withdrawn. The remaining grounds relate to:

1. (a) The effect of the ground on the Old Rectory (a Grade II listed building), the character and appearance of the area, and the living conditions of neighbouring occupiers, having regard to outlook

2. f) That the requirements of the notice exceed what is necessary to achieve its purpose

3. g) That the time given to comply with the requirements of the notice is too short

Why were these grounds of appeal unsuccessful? Let’s find out.

Why did the appeal against the planning decision fail?

There was one key reason why the ground (a) appeal for the unauthorised building failed. The scale and massing of the building caused harm to the Old Rectory; the Grade II listed building the family lived in. The inspector argued that conditions would not be able to overcome the harm to the building. Despite this, the planning inspector determined that it was not demonstrated that there was unacceptable harm to “either the character and appearance of the area or local residents”. This was in relation to the living conditions of the local residents in terms of outlook.

Both grounds (f) and (g) also failed. In the case of ground (f) the appellants failed to specify lesser steps which would overcome the objections to the development. However, the requirement to restore the land to its former condition before the building was constructed was removed from the enforcement notice. The reason for this is that the appellants interpreted the notice to mean that they would be required to re-instate the tennis court which preceded the L-shaped building.

For the ground (g) appeal, it was determined that the actual removal of the building (rather than what happens before and after this) should take no more than three months. This was despite the appellants originally arguing that they believed it would take a year to demolish the building, source the appropriate contractors and to leave the site in a fit condition.

The Executive Member for Planning and Development, Councillor Mary Walsh, said:

“Naturally, we are pleased that the Planning Inspector has dismissed this appeal and upheld the council’s requirement that the building is demolished. We have a duty to protect the appearance and setting of heritage assets such as the Old Rectory and our decision making is guided by national and local policies. In this case, the Inspector agreed with the council that the proposed use of the building was not justified and that, by virtue of its size and appearance, caused sufficient harm to warrant its removal.

We will always take robust enforcement action when it is appropriate to do so. Our next steps are to monitor compliance with the enforcement notice and expect the building to be demolished within three months, as set out in the Inspector’s decision.”

Our thoughts

This is a case which clearly demonstrates the importance of conforming to the original planning permission. In this instance, the family of Captain Tom decided to considerably alter what was notionally meant to be a meeting place for the Captain Tom Foundation by adding a spa and kitchen.

Further issues which are not covered by the planning inspector’s decision arise over the blurred lines between the family and the Captain Tom Foundation. While the Ingram-Moores applied for planning permission using their own name, they also used the charity’s name and logo, stating that the building was intended for the charity. This raises potential IP/trademark complications as the trademarks are registered under Club Nook Ltd, a private company they had set up.

An investigation was launched over a year ago by the Charity Commission in relation to conflicts of interest between businesses owned by the Ingram-Moores and their charity, the Captain Tom Foundation. There are also concerns over mismanagement and compliance with charity law. It now seems that the Foundation will not exist for much longer, with family lawyer Scott Stemp stating: “It’s not news to anybody that the foundation, it seems, is to be closed down following an investigation by the Charity Commission.”

Have questions? Get in touch today!

Call us on 020 7928 0276, phone calls are operating as usual and 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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20 year residence appeal – refusal to accept tribunal decision leads to win

20 years is a long period for an individual. Our team has assisted many clients with their 20-year long residence application, with people seeking to obtain legal immigration status in the UK after being in the UK for such a long period of time.

We were instructed by a client that had arrived in the UK in 2000. He instructed us to apply for leave to remain on the basis of 20-year Long Residence, on his behalf. Although this client provided plenty of documents to prove his continuous residence in the UK from 2000, the Home Office refused his application.

We believed that the decision was wholly wrong as our client had genuinely been in the UK for over 20 years and therefore we appealed the decision. Keep reading to learn more about why we were successful with this 20 year residence appeal.

Appeal

After lodging the appeal against the refusal of our client’s application, we represented this client in the First-tier Tribunal, primarily challenging the decision’s legality under Section 6 of the Human Rights Act 1998. We stated that the client was relying on Article 8 of the European Convention on Human Rights, citing his health and long-term residency in the UK (18 years at the time of application and over 20 years at the time of the hearing), to show that a refusal would breach his right to a private life and that there would be significant barriers in his reintegration into China.

Understandably our client did not have documentary evidence for every year that he had been in the UK illegally. However, he did have witnesses who gave evidence as to his residence.

The judge was not satisfied with the lack of documentary evidence and believed that the witnesses were not credible. The Judge gave much weight to the fact that the Home Office had conducted a home visit a few years ago and the client was not there. The Judge then concluded that the client had not been in the UK resident since 2000.

Permission to Appeal

Following receipt of the appeal determination, we believe the judge erred. The reason for this is that we felt adequate reasons were not given as to why the Judge concluded that there were intervening years during which our client was not present in the UK.

We argued that it should be considered that producing documentary evidence for individuals who live unlawfully in the UK for lengthy periods can be challenging. Therefore, a lack of evidence covering each year does not necessarily invalidate a claim of having been present during the relevant periods.

We argued that the Judge did not give adequate reasons as to why it was decided that little weight would be given to the client’s witnesses.

Permission was granted to appeal. The Upper Tribunal agreed that errors had been made and the appeal was scheduled to be reheard.

New Appeal Hearing

At the new appeal hearing, the client’s witnesses attended again, and the case was heard from the start this time by a different Judge. The Home Office case was the same, that is to say that the client has not been in the UK continuously since 2000 as there was years not accounted for.

We argued that the disputed years represented a minority of the client’s total residence in the UK.

The Judge agreed that the balance of the evidence is that it is more likely than not that the appellant has been present throughout each of the disputed years. He has resided in the UK continuously since 2003. The disputed years represent a minority of the appellant’s total residence in the UK.

Accordingly, the client was granted leave to remain.

The conclusion

Our client was delighted that his case was finally successful.

This case highlights the importance of ensuring that a decision should not just be accepted. Any decision needs to be carefully reviewed to ascertain whether it has been considered fairly and in accordance with the law. In our client’s case it had not, and therefore should we not have challenged this our client would not have leave to remain today.

Have questions? Get in touch today!

Call us on 020 7928 0276, phone calls are operating as usual and 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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Trainee Solicitors begin training contracts with Lisa’s Law

We are delighted to share the news that two exceptional members of our team have officially begun their training contracts on their journey to becoming solicitors. This underlines our ongoing commitment to nurturing talent within the company.

Lisa’s Law’s Managing Director, Chuanli Ding, expressed his excitement:

“I am very pleased to see Stephanie and Heidi progress from legal assistants to trainee solicitors. They have both demonstrated remarkable dedication, client care and business awareness; the fundamental virtues a successful solicitor needs to possess. I am confident that they will continue to thrive in their career development.”

We look forward to Heidi and Stephanie completing their training contracts with us, as well as continuing to provide excellent service for their clients at Lisa’s Law.

Heidi

Heidi joined us in December 2022.

Born and raised in Sabah, Malaysia, Heidi did her LLB, LPC and BTC in Birmingham.

Whilst she was in Birmingham, Heidi initially worked as a legal assistant, then as a paralegal at a boutique Chinese law firm for 3 – 4 years. She speaks English, Mandarin, and Bahasa Malaysia (Malay language).

Stephanie

Stephanie joined in November 2022.

Stephanie holds a degree in Asian and International Studies from the City University of Hong Kong and subsequently completed the Graduate Diploma in Law and the Legal Practice Course both at the University of Law.

Before joining Lisa’s Law, Stephanie worked as a legal intern for Zhong Lun Law Firm in London, where she assisted in the purchase and sale of residential property transactions. She will be focusing on Property Law at Lisa’s Law.

Stephanie is also fluent in English, Cantonese and Mandarin.

Have questions? Get in touch today!

Call us on 020 7928 0276, phone calls are operating as usual and 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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No Recourse to Public Funds Lifted! UK Immigrants may access benefits in the future

No recourse to public funds (NRPF) is a not a new thing for migrants in the UK, and always appears on their BRPs. For those with ‘No Public Funds’ on their BRP, they have no recourse to public funds and are not able to claim most benefits, tax credits or housing assistance that are paid by the state.

Previously, the Home Office approach had been to only consider lifting the NRPF condition in family life, private life and British National overseas (‘BNO’) cases. However, benefits remain unavailable to the majority of migrants, including the large numbers of students who come to the UK. Since many of them are likely to be on unstable low incomes, the lack of welfare and housing support makes living in the UK difficult for them.

However, that restriction no longer persists. The Home Office has recently released a new policy directive detailing the circumstances in which NRPF conditions will be lifted for those in the UK on student leave or as dependants of students, based on a fresh judgement by the High Court.

Let’s take a look at the case in question, and why the court made their judgment.

Background

PA, a Ghanaian national, arrived in the UK as a dependent on her ex-husband’s student visa but was subsequently abandoned by him. She later gave birth to NA, whose father was not PA’s ex-husband. Since NA’s father had settled status in the UK at the time of NA’s birth, NA was granted a British passport.

PA supported herself and NA as a single mother through work, but they faced financial difficulties. The defendant initially granted PA a fee waiver to apply for a visa under the family life route based on her relationship with NA. While this application was pending, their circumstances worsened. PA promptly applied to remove the NRPF condition from her student dependant visa. However, the Home Office initially refused to consider PA’s NRPF application, citing an inability to alter the conditions of her leave. PA issued judicial review proceedings against this decision and the related policies.

After obtaining permission for judicial review and expediting the claim, the Secretary of State for the Home Department (SSHD) made several crucial decisions. These included revoking NA’s British passport, refusing PA’s family life application because NA was no longer recognized as a British citizen, and maintaining the NRPF condition. PA appealed the family life refusal and applied to amend their grounds for judicial review to target the most recent NRPF refusal decision.

Section 3 of Immigration Act 1971

Section 3(1) of the Immigration Act 1971 (IA 1971) empowers the Secretary of State to grant limited leave to enter or remain in the UK to persons who require it. IA 1971, Section 3(2)(c)(ii) provides that the Secretary of State may grant limited leave to enter or remain subject to the NRPF condition. However, this statute does not state the circumstances in which the NRPF condition applies.

While the Immigration Rules provide that the NRPF condition should be lifted where (i) the person is destitute or imminently destitute; (ii) there are significant child welfare considerations; or (iii) there are other exceptional circumstances, presently, those exceptions only apply to persons on family, private life or BNO visas.

Court opinion

During the substantive judicial review, the judgement approved two declarations that were agreed by both sides. Firstly, the Secretary of State retains a discretion to lift or not impose the NRPF condition on a person’s grant of limited leave to remain. Secondly, it was unlawful for the Secretary of State to fail to adequately identify for caseworkers the statutory discretion to lift the NRPF condition for those on student visas.

The court held the following in relation to some of the declarations presented by claimants:

1. The Secretary of State retains a discretion to lift or not impose the NRPF condition on a person’s grant of limited leave to remain, including for persons with leave other than on family, private life and BNO routes.

2. The Secretary of State’s initial decision refusing to consider PA’s application to lift the NRPF condition was unlawful because it did not recognise the statutory discretion which applies irrespective of an applicants’ visa type.

3. Thirdly, the Secretary of State’s failure to adequately identify for caseworkers the statutory discretion to lift the NRPF condition for those on student visas was unlawful.

4. Even if the Immigration Rules do not refer to the Secretary of State’s discretion to lift the NRPF condition from a grant of limited leave to remain (as with the student visa provisions), the Secretary of State nevertheless retains the statutory discretion to lift or not impose the NRPF condition and she must consider requests to lift the NRPF condition from applicants on any type of visa.

The above is a summary of the court’s judgement.

Lastly, the court noted the claimants’ other challenges were superseded by the Secretary of State ‘s issuing of the new policy, according to which, the Secretary of State promptly granted NS access to public funds.

In the end, the Secretary of State agreed to reconsider NA’s application for a British passport. On the second day of the hearing, the Secretary of State granted NA access to public funds and the parties reached a settlement.

Our comments

The approval of this case is definitely good news for immigrants who need more support from the public funds, opening up the possibility for more visa holders to apply to lift the NRPF condition from their leave to remain. What’s truly remarkable is that this opportunity isn’t limited to specific visa types; even immigrants with student visas can benefit from it.

The judgment also underscores the government’s responsibility, calling on them to provide clear policy guidance to ensure that statutory rights are correctly applied. Following the judgement, the Secretary of State to publish a new interim policy, ‘OPI 1415’, outlining how such applications should be considered, by reference to child welfare, destitution and whether applicants can be reasonably expected to return to their home country.

The approval of this case is a significant step forward in securing the rights for immigrants in the UK, offering them a long-awaited opportunity to improve their lives and visa conditions.

Have questions? Get in touch today!

Call us on 020 7928 0276, phone calls are operating as usual and 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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Leasehold and Freehold Reform Bill – is this the end of leasehold as we know it?

A new law on leasehold reform was announced in the King’s Speech with the potential to affect millions in the UK. Leaseholds have come under intense scrutiny in recent times, with leasehold properties often subject to punishing fees related to extending their leases, service charges, ground rent or purchasing a freehold.

Leaseholds differ from freeholds because while owning a freehold means that you own both the property and the land it occupies outright, a leasehold essentially means that you only own the property for a specified period of time. Once this lease expires, the property returns to the freeholder. The cost of extending a leasehold is often highly expensive, however extending a property is usually necessary as properties lose a significant amount of value once they go below 80 years.

Those who are hoping for the eradication of the leasehold system will be disappointed, as the leasehold system is likely to be revised rather than abolished. The Leasehold and Freehold Reform Bill is set to ban leaseholds for new houses, but not flats, meaning that the vast majority of leaseholds will not be covered. According to the most recent data, an estimated 4.98m properties are classed as leasehold dwellings in England, equivalent to 20% of English housing stock. 70% of these nearly 5 million properties are flats.

The Levelling Up, Housing and Communities Secretary, Michael Gove, has previously described the leasehold system as unfair and outdated. However, does this mean that the government will abolish the system entirely through the Leasehold and Freehold Reform Bill? Keep reading to find out.

Ban on new leasehold houses

As mentioned, the government has said that it will ban leaseholds for new houses. This represents roughly 30% of leasehold properties. However, it is worth noting that the proportion of new-build houses which are sold as leaseholds fell from a 15% high in 2016 to a tiny proportion of just 1% by December 2022. It is important to point out that this reform will only be for new houses. As a small number of houses are sold as leasehold now anyway, this is hardly the seismic reform many have been hoping for.

But what about those who already live in leasehold houses? This could make it very difficult for them to sell these increasingly rare and undesirable properties. Furthermore, there was no announcement on banning leasehold flats, which make up the majority of leaseholds (around 70%).

Freehold purchase

The ease of purchasing the freehold of a property will also be made easier by the prospective reform. Currently, if a group of leaseholders wish to purchase the freehold of the building, they are prevented from doing so if 25 per cent of the building is commercial. With the proposed reform, this will be extended to 50 per cent. This will make it much easier for those living in buildings with a commercial presence to purchase the freehold.

Another important announcement is that leaseholders will no longer have to wait two years before being able to extend their lease or purchase the freehold. At the moment, this acts as a significant restriction for properties which have close to 80 years left on the lease.

Ground rent

The government has already made extensive reform to ground rent, which we covered in a previous article. You can learn more about the Leasehold Reform (Ground Rent) Act in our article here. While this legislation prevented ground rent from being charged for most new leases, this is not currently the case for existing leases.

This means that if someone was to buy a new flat with a new lease, it won’t have ground rent, or if you extend your lease, it either won’t have ground rent or the ground rent won’t increase. While the government has not included an abolition of ground rent in the Leasehold and Freehold Reform Bill, as of January 2024 it is currently consulting on capping ground rent for existing leaseholders.

Standard lease extension length

Further measures include changes to the standard contract length extension of a lease. This currently stands at 90 years for flats and 50 years for houses as per the Leasehold Reform Housing and Urban Development Act 1993. This can cause problems for those trying to sell their leasehold property unless they pay to extend the lease by a further 90 years. In good news for leaseholders, the government have pledged to increase the standard contract lease extension to 990 years, which would give leaseholders security without having to worry about extending their lease.

In reality, it may be easier for leaseholders to purchase the freehold of their property rather than choosing to extend the lease by 990 years in many cases.

Marriage value

The legislation would also reportedly remove marriage value. In plain words, marriage value is the amount of money a leaseholder has to pay the freeholder when they require their lease to be extended if its term is less than 80 years. The landlord’s argument is that when the lease is extended, the value of their freehold will be reduced (as it will be subject to a longer lease) and that their ground rent will be reduced as well.

On the other hand, the leasehold’s value is increased, therefore the leaseholder needs to pay the landlord compensation. In practice, many leaseholders feel that such compensation tends to be very high and unreasonable. If the marriage value is removed, it would help to make it much cheaper to extend a lease.

Right to manage

Finally, another touted reform is extending leaseholders right to manage. This was originally introduced by the Commonhold and Leasehold Reform Act 2002. Right to Manage (RTM) enables some leasehold property owners to take over the management of the building without the landlord’s agreement. They must also meet certain requirements to do so. The Leasehold Knowledge Partnership has found that residents who take over the running of their property save an average cost of 20%. As well as taking control of the communal areas of their building, the right to hire and fire property managers will also reportedly be extended.

Our thoughts

This reform will be welcome news for many who either own a leasehold or are thinking of buying a leasehold property. Nevertheless, many would argue that it does not go far enough by excluding flats from much of the new legislation.

It is also worth pointing out that there is now only a relatively short window of time for the legislation to complete its passage through parliament. The last UK general election was held on 17^th December 2019, meaning that parliament must be dissolved by 17^th December 2024.

If the legislation is introduced to parliament by the end of 2023, this only gives roughly a year for it to complete its passage through parliament. Due to the complicated nature of the property industry, this may seem optimistic. The first Leasehold Reform Bill took over a year to go through, and this only related to new leases, which are much simpler than existing leases. It is also not clear what form the bill will take by the time it has made its way through parliament due to the amendments which are often made to such bills.

Even if the Conservatives were to lose the next general election, it seems likely that there would still be further reform regardless of the party in charge. Labour have responded to the news about the government’s leasehold reform plans by saying that Labour would “fundamentally and comprehensively reform the leasehold system”. This would include a system to replace private leasehold flats with commonhold among other measures.

Have questions? Get in touch today!

Call us on 020 7928 0276, phone calls are operating as usual and 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

See Full Bio

News and Insights

What is the Safe Countries list?

Why are India and Georgia being added?

Our Comments

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Key Issues

Background

Complications and Relief from Sanctions

Insufficient Time Estimate

Judge’s Critique

Costs Allocation

Responsibility Attribution

Costs Award

Conclusion

Have questions? Get in touch today!

Pre-action Letter

Statutory Demand

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Supreme Court Decision

Details about the Rwanda Policy

Legal challenges against the Rwanda policy

What are the consequences of the decision?

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Background of R v SSHD

Application for judicial review

Court Decision on R v SSHD

The tribunal’s decision in relation to the claimant’s dependants

Error made by the Home Secretary

Our comments

Have questions? Get in touch today!

Background

Why did the appeal against the planning decision fail?

Our thoughts

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Appeal

Permission to Appeal

New Appeal Hearing

The conclusion

Have questions? Get in touch today!

Heidi

Stephanie

Have questions? Get in touch today!

Background

Section 3 of Immigration Act 1971

Court opinion

Our comments

Ban on new leasehold houses

Freehold purchase

Ground rent

Standard lease extension length

Marriage value

Right to manage

Our thoughts

Have questions? Get in touch today!

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