Property dispute causes couple to pay £280,000 over extension too close to neighbour’s house

When you renovate a property or plan to expand the area of the property, there are usually two things to pay attention to: first, whether you need to apply for planning permission; second, how close the property extension is to the boundary. In many cases, the second problem may be more troublesome for homeowners, especially when your property is very close to neighbours.

A recent case saw a couple get taken to court over an extension that was too close to a neighbour’s home. Now they face the prospect of demolishing the extension, which is said to cost £80,000. Not only that, but their legal fees cost £200,000.

Keep reading to find out more about the case and how to avoid any issues with your neighbours in the event of disputes over property renovations.

Background

Shabaz Ashraf and his wife Shakira own a property worth £700,000 in London. In 2019, they decided to build another extension to the property’s garden.

However, their expansion plan annoyed the neighbours, the Dhinjans. The Dhinjans said their neighbours’ extension had gone over the boundary, 2.68 inches off the land, and the roof over hanged the Dhinjans’ home by 3.86 inches.

They conceded that the expansion was not particularly encroaching on their borders. However, the extension was so close to their wall that there was no room for outside air to circulate, making their house very humid and often mouldy.

Face-to-face negotiations were unsuccessful, so the Dhinjans filed a lawsuit in a London court ordering the Ashrafs to demolish the extension.

Unconvinced, the Ashrafs countersued their neighbours. The Ashrafs told the judge that their house had been extended in 1970, and they had built the new extension according to the original footprint which did not encroach on other people’s land. If it can be said that this situation is encroachment, then any “encroachment” has lasted 41 years. They there have the right to occupy the land according to squatters rights (adverse possession).

Long-term squatters can become registered owners of the property or land they occupy without the owner’s permission. You can apply through a lawyer if you can prove that:

You or a chain of squatters have occupied the property continuously for 10 years, or 12 years if not registered with the Land Registry
You or your predecessor were owners of the property for the entire time
You or any of your predecessors did not have permission from the landlord, e.g. the property was not originally rented to a squatter)

But lawyers representing the Dhinjans told the judge that the 2019 reconstruction exceeded the footprint of the old extension.

“While insignificant in terms of valuation, it caused significant damage to the land belonging to the claimant, which is an encroachment. In addition, the defendant has continued to conduct activities designed to annoy the claimant. Now, only the extension will be demolished and built. It’s where it’s supposed to be to keep it from mould and moisture. Money can’t make up for that damage.”

What did the judge decide?

After expert evidence and related investigations, the judge found that the statement made by the accused Ashraf couple that they built the new extension in the exact same location as the previous construction was completely untrue.

“The Joint Specialist Surveyor concluded in his report that there was 68mm of erosion. I can see from the pictures that some places were built beyond the existing boundary line, so, they are within the existing boundary The idea of building within the line is not sustainable because the pictures show where the existing boundary line is. Their new building – the wall – is clearly outside the original boundaries.”

As a result, it turns out that the wall that the Ashrafs built as an extension did indeed encroach on the claimants’ land.

In addition, the judge found that by April 2019, the Ashrafs had become aware that their expansion would encroach on someone else’s land and would constitute trespass, but they continued with their project. Such behavior is not acceptable.

Finally, the High Court ordered the Ashrafs to declare that the fence between the two houses belonged to the Dhinjans and asked the Ashrafs to remove their extension.

It reportedly cost £80,000 to tear down and rebuild the extension In addition to their own legal costs, the Ashrafs will also need to pay their neighbours’ legal costs – estimated at almost £100,000. All told, the family’s legal costs were estimated at £200,000.

Our thoughts

As the housing market becomes more competitive, many homeowners may choose to stay put rather than sell and buy a new home. In this case, house renewal or expansion is indeed a good way to meet the needs of the owners.

However, if you are planning an extension to your home or any major construction work, be sure to understand the legal rules regarding extensions so as not to annoy your neighbours. If the situation is serious, you may be ordered by the court to demolish the building as in this case, and you will have to lose a lot of legal fees.

In conclusion, if you are concerned about neighbours blocking your plans to expand your home, it can be very helpful to have a lawyer and a surveyor at the outset of your project to help you assess this risk.

Bottom line, as with any building, it’s always worth talking to your neighbours, especially when boundary issues are involved. Let them see the plans, talk to them about the height of your build. This way, you can correct any problems in no time, speeding up the process.

If you are planning to expand your property, or if you have disagreements with your neighbours when expanding your property, please contact Lisa’s Law Solicitors. Our property law team and litigation lawyer team have many years of experience in this area and can provide you with professional expertise.

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New flexible working act becomes law – can I request flexible working from day one of employment?

Flexible working is now the norm for many employers and employees alike. With Covid lockdowns forcing many employees to work remotely, businesses across the world adapted and innovated to adjust to the new working environment. The UK has been somewhat of a global leader in this area, with a recent study showing that the UK has the highest rate of remote working in Europe.

Many have called for an expansion of the right to work flexibly, with the UK Parliament responding by passing the Employment Relations (Flexible Working) Bill on the 14^th July. It received royal assent, making it an act, on the 20^th July. Lisa’s Law has long been a champion of flexible working, with many of our staff working from home either full time or on a hybrid basis.

But what does this piece of legislation mean for flexible working rights? How will it affect employers and employees? And will it be possible to request flexible working from day one of employment? Keep reading to find out.

What is meant by flexible working?

Many people might purely associate flexible working with working from home, however it also covers a range of other types of working patterns. Namely, flexible working in the UK relates to the following:

Job sharing
Part time
Work from home
Compressed hours
Flexitime
Annualised hours
Staggered hours
Phased retirement

The above facets of flexible working reflect how it can appeal to a range of individuals, including some who can sometimes be marginalised in the workplace such as carers, parents, disabled people and more. Flexible working ensures that a company’s employment policies are flexible and inclusive,. It can also help to attract employment talent to their business.

What changes does the Employment Relations (Flexible Working) Act 2023 bring?

The main features of the legislation include the following:

New requirements for employers to consult with the employee before rejecting their flexible working request.
Permission to make two statutory requests in any 12-month period (rather than the current one request).
Reduced waiting times for decisions to be made (within which an employer administers the statutory request) from three months to two months.
The removal of existing requirements that the employee must explain what effect, if any, the change applied for would have on the employer and how that effect might be dealt with.

While the government stated that the legislation would also include the right to request flexible working from day one of employment, this is not explicitly stated in the legislation. For now, employees will still have to have completed 26 weeks continuous employment before requesting flexible working from their employer. The government have suggested that the right to request flexible working from day one may feature in secondary legislation, however this remains to be seen.

While there are some significant changes to employer-employee relations, particularly increasing the number of opportunities an employee is allowed to request flexible working per year, employers can still rely on the same reasons they could before to reject a flexible working request.

What doesn’t change with the new legislation?

The new legislation does not make flexible working the default position for employees and employers alike, much to the chagrin of campaigners. Employers will therefore still be able to rely on the following reasons to reject a flexible working request:

flexible working will affect performance and quality of work;
the work cannot be reorganised among other staff;
extra costs that will damage the business;
people cannot be recruited to do the work;
it will negatively impact the ability to meet customer demand;
there is a lack of work to do during the time the employee has requested to work; or
the business is planning changes to the workforce and the request will not fit with these plans.

Despite the range of reasons employers can still use to reject a flexible working request, many advocates will still welcome the progress made.

The Advisory, Conciliation and Arbitration Service (ACAS), a non-departmental public body, has also launched an 8-week consultation period to update its code of practice for dealing with flexible working requests. ACAS’s pro flexible working stance provides an important ally for proponents of flexible working, with the organisation’s role as the leading body for providing advice to employers on employment law and workplace relations. ACAS consultation on the new code of practice closes on 6 September 2023. We await to update you on the new changes following its completion.

Our thoughts

We welcome this new legislation, which evolves an outdated flexible work application process and given employees more control over their own working patterns. Nevertheless, it does have its limitations, and is not the game-changer that many proponents of flexible working were originally hoping for. The absence of the right to request day one flexible working is particularly apparent, especially after the government included it in their initial plans last year.

On the face of it, the changes may not appear to be to the benefit of employers. However, it is worth bearing in mind that the Act expands the employment pool available to businesses, which is an important factor considering the UK’s tight labour market. Anything that expands the employment market is therefore to the advantage of businesses in the UK.

Flexible working from day one is something which may still be around the corner. As mentioned, it may be introduced by the government in secondary legislation. Furthermore, the prospect of the Labour Party coming to power within the next year is now a distinct possibility and the party have made the specific commitment for day one workers’ rights if they get into government. It is encouraging to see that there is a cross-party consensus for making flexible working more prevalent.

There is no formal introduction date for the new legislation, however employers should be aware of the changes and ensure that their policies are updated in line with the legislation. If you have any questions about the topics discussed within this article, such as employment law or workers’ rights, contact us today and we will be happy to help.

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What is the duty of my bank if I am a victim of fraud? Supreme Court provides clarity on Quincecare

The Supreme Court has recently made an important decision in the case of Philipp vs Barclays Bank, potentially spelling the end of the duty of care known as ‘Quincecare’.

Following this decision, victims of authorised push payment (APP) fraud can no longer rely on Quincecare duty, with the Supreme Court deciding that no such duty exists. Previously, Quincecare enabled fraud victims in certain situations to seek reimbursement from their bank or another payment service provider. The decision is therefore a victory for banks and a weakening of the rights of consumers. It does however provide much needed clarity on the obligations owed by banks towards their customers when it comes to the execution of instructions to transfer funds.

Keep reading to learn more about the duties of banks in cases of fraud, as well as what impact this case will have on their duties of care going forward.

Background

The case originates in 2018, when Mrs Fiona Philipp and her husband, Dr Robin Philipp became victims of fraud. The fraudsters involved used a type of scam called an ‘authorised push payment’, also known as APP fraud.

The fraud involved Mrs Philipp instructing Barclays Bank to transfer £700,000, the couple’s entire life savings, in two separate payments from her current account to bank accounts in the United Arab Emirates. The couple had been successfully persuaded by the fraudsters that they would be assisting law enforcement by doing so. On each occasion the transfer was made, Barclays contacted Mrs Philipp to confirm that she wished to proceed with the payment. They also twice attended a Barclays branch in person to facilitate two international transactions to bank accounts in the UAE. Mrs Philipp subsequently provided confirmation to the bank, giving them direct instructions to make the payments totalling £700,000.

With the money lost, and unable to be recovered by the bank, Mrs Philipp claimed that the Bank was responsible. Philip brought a claim against the bank in which she alleged that the bank should have APP detection procedures in place. She also claimed the bank was in breach of its Quincecare duty to ‘refrain from executing an order of Mrs Philipp if and for so long as it was put on inquiry, by having reasonable grounds for believing that the order was an attempt to misappropriate funds from Mrs Philipp.’

As Mrs Philipp’s claim alleges that the bank should have had reasonable grounds for believing that the instructions were an attempt of fraud, Mrs Philipp claimed that the bank breached its duties for two reasons:

1. By making the payments from her account

2. Not taking effective steps to ensure the money was recovered once the two separate payments were made

What is Quincecare duty?

Originating with the Barclays Bank plc v Quincecare case from 1992, the Commercial Court held that a bank which receives an instruction from an agent of its customer owes a duty to the customer not to execute a payment instruction if it believes that the agent is defrauding the customer for the agent’s own purposes.

This requires banks to therefore take an active role in preventing financial crime by refusing to comply with instructions provided by customers that they believe are an attempt to misappropriate funds.

This was extended with the Court of Appeal’s decision in Philipp v Barclays Bank plc, where it was held that a duty of care should apply as soon as there is the bank is put on inquiry that the instructions may be an attempt to misappropriate funds. Following this decision, Barclays Bank appealed to the Supreme Court.

Decision

The Supreme Court allowed the appeal, and held that the Bank did not owe the alleged duty to Mrs Philipp, therefore reversing the Court of Appeal’s decision. It also criticised the Commercial Court’s decision in Barclays Bank plc v Quincecare [1992], stating that it ‘does not withstand scrutiny’.

In the titular case of Philipp v Barclays Bank plc, the Court held that as the instruction’s validity is not in doubt, no inquiries are necessary to ‘clarify or verify what the bank must do’. This applies in other cases of APP fraud where the instruction is clear and given by the customer personally or by an agent who is acting ‘with apparent authority’. Failure to execute the instruction would be a breach of duty by the bank as the customer had personally given the bank the instruction.

While the Supreme Court’s decision recognises the growing issue of APP fraud, it also states that the resolution of who should bear responsibility for the loss of funds should be deferred to lawmakers and regulators rather than the courts.

Mrs Philipps’ alternative case which argues that Barclays was in breach of duty by failing to act promptly in attempting to recall the funds has been remitted to the High Court.

Our thoughts

While this case will not be welcomed by consumers, it does provide some much-needed clarity for the courts and banks alike. Furthermore, despite not definitively spelling the end of Quincecare, it does remove a duty of care from banks in cases of APP fraud. It also provides clarity on obligations of banks in relation to the execution of transferring funds.

Nevertheless, responsibilities of banks when it comes to the recovery of funds lost to fraud will be addressed at a later date by the High Court in Mrs Philipps’ alternative case. As a result, it seems unlikely that the topic of a bank’s duties to protect its customers will be put to bed any time soon.

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Court dismisses appeal for deprivation of citizenship

By Yang Peng

In an important recent case, the Court of Appeal announced that the appellant A’s appeal in the case of Shyti v Secretary of State for the Home Department (SSHD) against the decision to deprive him of his British Nationality, was dismissed.

This article looks at the circumstances in which citizenship deprivation can occur following the granting of citizenship as a result of deception, as well as the correct procedure for courts to follow in such situations.

Keep reading to find out more.

Background

A was a national of Albania and had arrived in 1999 but falsely claimed asylum as a national of Kosovo. A’s asylum claim was refused but he was eventually granted indefinite leave (ILR) in 2010 under the Legacy Programme. He was later granted British citizenship in June 2013. On 4 March 2020, SSHD notified A of her decision to deprive him of his British Nationality in a fully reasoned letter (‘the Decision’) which was made after identity checks revealed that A was an Albanian national with a different name.

Deprivation of citizenship pursuant to S.40(3) British Nationality Act 1981 was made on the basis that A had obtained citizenship by means of fraud, concealment or false representation of a material fact.

A appealed against the Decision to the First-tier Tribunal (F-tT), which was allowed. The argument that the applicant would have been removed to Albania had his true identity been known was speculative. The deception had only an indirect bearing on the granting of ILR as the latter was based on long residence and the Legacy Programme.

The SSHD then appealed to the Upper Tribunal (UT). The UT held that there was an error of law in the F-TT’s determination and remitted the appeal to the F-tT for a new hearing. A would not have been granted ILR or citizenship had the SSHD been aware of the original fraud as to nationality. The grant of ILR was directly linked to the belief that the applicant was a national of Kosovo. ILR would not have been granted if the applicant was believed to be from Albania, resulting in their potential return.

This appeal was made by A against the determination of the UT.

Shyti v Secretary of State for the Home Department (SSHD)

This case discussed ground (i) regarding whether it was open to the UT to have found that the F-TT erred in law; and ground (ii) regarding whether they had taken the correct legal approach to the appeals in cases such as that.

The court held that the only live question on the appeal was the question raised by ground (i), and they chose to decline to decide ground (ii) to avoid introducing legal uncertainty.

The court dismissed the following in relation to ground (i) presented by the appellant:

The Sleiman case (deprivation of citizenship: conduct) [2017] UKUT 00367(IAC), which A referenced to argue that the deception was not directly material to the grant of citizenship, was not decisive and the approach in that case cannot be generalised to the facts of this case. The distinction can be made on the grounds given in the SSHD’s notice of appeal to the UT, as elaborated by the Respondent. The Decision relied on several distinct examples of ‘fraud’ which are not forensic details but different and independent reasons justifying the Decision.

The F-tT had to consider the reasoning in the Decision as a whole and erred in law in not doing so. Every point in the Decision addressed the same legal issue: the appellant’s credibility. However, the presenting officer (HOPO) at the F-tT didn’t do a competent job to cross-examine the appellant on every single adverse point taken in the refusal letter.

The above is a summary of the court’s judgement on ground (i) presented.

The above discussion has focused mainly on the legality of court proceedings rather than the legality of the grant of the appellant’s citizenship. The decision also sent a message that relying solely on legal precedents to conclude that deception doesn’t directly affect the granting of citizenship is not a viable approach. Decision letters are based on various grounds, and when the reasoning in a decision letter consists of distinct and independent justifications for the decision, the court should consider the letter as a whole.

Our comments

The findings in Shyti v SSHD show that while it may not directly recognize the extent to which deception has affected the grant of citizenship, it substantiates the procedural requirement for courts to consider the reasoning in decisions as a whole.

The judgment emphasizes the UK’s firm stance against deception in granting citizenship and provides guidance for similar migration cases.

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Do you have a parent with EU citizenship? You might be eligible for a British passport!

Written by Lorraine Hon

A new law has given nationality rights to children born in the UK to EU citizens. Previously, the children of EU citizens who were working in the UK were not given British citizenship. However, this has changed with the recent implementation of a new law for those born before the year 2000.

On 29 June, the British Nationality (Regularisation of Past Practice) Act 2023 came into force. This Act protects the nationality rights of people who were born in the UK to a parent who was considered settled on the basis that their parent was exercising a freedom of movement right. Specifically, it confirms the nationality of children who were born between 1 January 1983 and 1 October 2000 in Great Britain or Northern Ireland. According to the government’s official factsheet, this does not create new British citizens. This only confirms the nationality rights of people who have always been considered British.

Previously, EU, EEA and Swiss nationals were not considered to be settled solely based on the fact that they were living and exercising their right to free movement in the UK. The Home Office took the position that in order for EU citizens to be considered settled, they had to have indefinite leave to remain. The new Act changes this.

Who can apply for a British passport?

This means that for people who are British on the basis of having a settled EU, EEA or Swiss parent in the remedial period, they can now apply for their first British passport.

Nonetheless, claiming citizenship might prove to be difficult. As the burden of proof is on the applicant, the applicant will have to provide evidence that their parent exercised their Treaty rights at the time of the applicant’s birth. This means they will have to rely on their parents to find evidence from as far back as 40 years ago.

The government provides guidance on what supporting documents applicants will need when they are doing Treaty Rights Passport applications. Please see link here.

Our thoughts

This is a welcome decision. It will ensure that people who should be British under EU law and British nationality law will be able to claim UK citizenship. They will finally be recognised as British on a legal basis.

If you are not sure whether you are eligible or need help with your application, feel free to come and see us. We would be happy to help.

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Surprise UK student visa announcement – students no longer able to switch to a work visa while studying!

We recently brought you news about the changes the Home Office are making to the UK Student Visa. Well, the Home Office have now surprised us all by implementing some of these changes with immediate effect!

Understandably, overseas students in the UK may be anxious about what this will mean for them, as well as when the changes will take effect. Let’s take a look at the student visa aspect of the Statement of Changes to the immigration rules, how they might impact you, and when they come into effect.

Changes to student visa rules around dependents

The good news for those who have already brought their dependents with them on a student visa is that these changes will not impact them. Dependents already in the UK continue to be able to extend their leave.

However, students who start courses after January 2024 will now only be able to bring dependents with them if they are studying a research-based postgraduate degree, a PHD or other doctoral qualification, or if they are government sponsored. As a result, those who are due to start their courses in the autumn of 2023, as many are, will not be affected by the changes to bringing dependents.

Changes to switching from student visa to other types of visas

The other major change to the student visa comes in the form of restricting students from switching to a work visa before their studies have been completed. This change is officially in force from now, following an announcement in the latest Home Office Statement of Changes.

As of 15:00 on 17^th July 2023, students will no longer be able to switch out of the student route into work routes before their studies have been completed. However, it is worth pointing out that students on courses at degree level or above will be able to apply to switch to sponsored work routes as long as their course finishes before their employment start date. In addition to this, PHD students will be able to switch after 24 months of study.

Usually, the convention is that changes take effect 21 days after the Home Office presents new rules before Parliament, however this particular change departs from that convention. The Home Office’s justification for this is that the changes were initially announced on 23^rd May, and that sufficient notice has therefore been given.

Additionally, the Home Office does not wish for there to be a surge in applications for switching to be made in the 21 day period between the changes being presented before Parliament and when they come into effect.

These changes are bound to have a major impact on overseas students already in the UK, however their true impact will probably only be felt in the years to come in terms of whether they bring down the number of overseas students in the UK.

We will cover the remaining changes outlined in the latest Statement of Changes in a later article. For now though, if you have any questions about the changes to the Student Visa route, please do not hesitate to contact us. As previously mentioned, for those starting a course in Autumn 2023, you will still be able to bring dependents with you on a student visa. Get in touch with us today, we would be delighted to help you.

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UK Government announces huge increase in immigration fees

The UK government has announced a substantial increase in visa fees across a range of immigration and nationality routes, including the immigration health surcharge. The Prime Minister, Rishi Sunak, has framed this increase as necessary to fund a 6% rise in doctor’s wages.

Following a recommended pay rise for public sector workers of between 6% and 6.5% by independent public sector pay review bodies, the government has decided to accept these suggestions – despite previously warning that they would make inflation worse. Nevertheless, with strikes blighting his premiership since he became Britain’s third prime minister in 2022 last year, Sunak was under pressure to allow some concessions towards public sector workers.

With the next general election likely coming in just over a year, the Conservative Party are currently between a rock and a hard place when it comes to wanting to reduce record migration figures and improving a stagnating economy. This particular decision to increase immigration fees is likely an attempt to look tougher on immigration, but may risk detracting immigrants who make an invaluable contribution to the UK economy.

But what immigration fees will be affected? Keep reading to find out.

Immigration health surcharge to increase by 66%

Perhaps the headline increase is that of the immigration health surcharge. While the current fee for the immigration health surcharge is £624 per year, this is set to increase to £1,035 per year, a 66% increase.

Meanwhile, the discounted rate for students, under 18s and youth mobility visa holders will be increased from £470 to £776 per year. For someone on the 10 year settlement route, this totals £10,350 in health surcharge fees alone.

Part of the government’s justification for the rise is that it has been frozen for the past three years, “despite high inflation and wider pressures facing the economy and the system in general.” While the UK has certainly faced inflationary pressure, especially since 2022, inflation currently stands at 8.7%. Clearly there are political factors behind the increase beyond inflationary pressure.

What other immigration and nationality fees will increase?

In addition to the immigration health surcharge rise, immigration and nationality fees will also see a substantial increase.

Work and visit visas are set to rise by 15%, taking the cheapest skilled worker visa from £625 to £718.75. The cheapest standard visit visa will now be £115 for a maximum of 6 months.

Meanwhile, study visas, certificates of sponsorship, settlement, citizenship, entry clearance and leave to remain and priority visas will rise by “at least 20%” according to the economic secretary, John Glen.

This will mean that the cost of a settlement application will rise to at least £2,885 per person. Those who are in the process of settlement will find their costs have risen substantially, despite the costs being considerably lower when they began the process.

While the majority of immigration and nationality fees will increase, certain administrative charges will be removed. For example, smaller charges such as: biometric enrolment, physical document amendments, transfer of conditions, as well as identical replacements of biometric resident permits which have expired will all see their fees abolished.

The £161 charge for in-country for a transfer of conditions for those with limited leave to remain is largely obsolete given that all new applicants applying in-country will now be issued with a biometric residence permit or a digital status.

Furthermore, the cost of student and priority service applications will be equalised for those outside and inside the UK. It is currently £363 to apply for a student visa from outside the UK, and £490 to extend or switch to a student visa from inside the UK. The changes would mean that while applicants can currently only be charged a maximum of £490, this will be increased to a maximum fee of £600. Combined with measures which have previously been introduced to reduce the number of student dependents, it remains to be seen what impact this will have on overall international student figures.

There has been no announcement regarding when these changes will come in, however we will be sure to update you once further details are released.

Our thoughts

Funding an increase in doctor’s wages through the huge rise in the immigration health surcharge is not one which seems justified, particularly for immigrants who are already living in the UK. For many, these new fees will be unaffordable, particularly as immigrants are among the most affected by the cost-of-living crisis. Families will be among the most impacted given that the increases will also affect under 18s.

As there has currently been no announcement regarding when the fee increases will be introduced, we would advise applicants thinking of apply to contact us as soon as possible. At Lisa’s Law, we specialise in all aspects of immigration, nationality and asylum law, from applications, appeals to judicial review claims.

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What is the threshold for ethical veganism as a protected characteristic under the Equality Act 2010?

The Equality Act 2010 affords protections against discrimination to a wide range of people based on a range of characteristics including: age, disability, gender reassignment, marriage or civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.

The word “belief” within the Equality Act is rather broad, leaving room for interpretation. There are a wide range of beliefs which have been covered under the Equality Act since the legislation was introduced, including the topic of today’s case, ethical veganism. The case we will be discussing today (Owen V Willow Tower), considered to what extent ethical veganism was sufficient to be considered a protected belief under the Equality Act 2010, and therefore offer the individual protection from discrimination.

Why is ethical veganism a protected belief under the Equality Act 2010?

In Section 10 of the Equality Act 2010, belief is defined as “any religious or philosophical belief and a reference to belief includes a reference to a lack of belief.” The leading case for establishing whether a belief amounts to a philosophical belief is Grainger plc and others v Nicholson [2010]. A belief only amounts to being a philosophical belief eligible for protection if it:

is genuinely held

is not simply an opinion or view point based on the present state of information available

concerns a weighty and substantial aspect of human life and behaviour

attains a certain level of cogency, seriousness, cohesion and importance, and

is worthy of respect in a democratic society

As a result, vegetarians or white nationalists, for example, would not qualify as having a philosophical belief protected under the Act.

There has recently been an expansion of beliefs covered under the philosophical belief characteristic, including gender critical views, climate change, and indeed even ethical veganism.

Ethical veganism meets the criteria as unlike vegetarianism, it is not simply about choice of diet. Veganism goes further than that, extending into aspects such as their clothes, hobbies, and also personal care and medicine. It is therefore a protected belief.

Background

The claimant in this case, Ms Owen, worked as bank staff in a care home where it was decided that all staff should be vaccinated. The claimant believed that she should be exempt from having to have a COVID-19 vaccine due to the fact she followed a vegan diet. This is because the vaccine may contain animal products or be tested on animals, hence why she believed she should not have to take it. Furthermore, Ms Owen was also sceptical of the vaccine, and had concerns over both its side effects and its efficacy.

After raising a grievance with her employer, she was then dismissed for failing to comply with the legal requirement for care home staff to be vaccinated. Following her dismissal, she brought claims for both unfair dismissal and discrimination on religious or belief grounds.

Ethical veganism has previously been found to be a protected philosophical belief under the Equality Act 2010, however the Employment Tribunal had to decide whether the claimant genuinely held a belief in ethical veganism. Keep reading to find out what they decided in this particular case.

What did the Employment Tribunal decide?

The Employment Tribunal decided that there was insufficient evidence to suggest that the claimant held a genuine belief in ethical veganism. Despite following a vegan diet, as well as avoiding some non-vegan products, there were a number of reasons why her beliefs meant she did not qualify for protection under the Equality Act 2010:

She could not confirm when she started having a belief in ethical veganism
The claimant repeatedly stated that to her, following a vegan diet was the same as ethical veganism
She was unable to say how her life was modified or structured to follow her belief other than her vegan diet, and some products (which she failed to provide evidence for)
The claimant also accepted that she used products during her employment which were not vegan, however she claimed that she would always use gloves
She gave no examples of how her life was structured to adhere to her belief in ethical veganism
While the most significant reference to veganism was her diet, this doesn’t fulfil the criteria of ethical veganism. She did not explain how she would ensure that she was following a vegan diet or how she checked products to ensure they were vegan
Furthermore, the claimant’s main criticisms of the vaccine were her belief that it was experimental and unsafe, rather than being connected to her veganism

Our thoughts

Employers should be mindful of employees’ religious and philosophical beliefs, and ensure that these are accommodated where possible. However, while ethical veganism is a protected belief under the Equality Act 2010, if an employee claims to hold a protected belief but it is not genuinely held (as in this case), then this can naturally lead to complications.

While for some, Ms Owen’s belief in veganism would have been self-evident through her choice to observe a vegan diet, the distinction between ethical veganism and simply following a vegan diet is an important one. For it to be a philosophical belief, and therefore eligible to be a protected characteristic, the claimant would have had to demonstrate other areas where her alleged belief in ethical veganism was apparent.

Simply following a vegan diet was not enough to be found to hold a belief in ethical veganism, a principle which would be supported by the vast majority of the vegan community, most of whom apply their beliefs beyond their diet.

Where there is concern by an employer that a belief is not genuinely held, or doesn’t meet the requirements for protections under the Equality Act 2010, employers can check this against the qualifications outlined in the Grainger criteria above.

Lisa’s Law are specialists when it comes to employment law, and can assist your business with employment advice in such situations. Have a question about employment law? Get in touch with us today.

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If a couple who own UK properties got married in a foreign country, is it better to divorce there or in the UK?

The UK is a country which is home to many immigrants from across the world. Like a lot of immigrants to the UK today, the individuals in this case decided to settle after coming here to study, meeting at work and eventually getting married. However, the situation is complicated by the fact that the couple got married in China and later got divorced.

This raises the question of what happens with divorce procedure in this situation, especially given the number of assets involved. For instance, should the couple initiate divorce proceedings in the UK? Or return to China for divorce where they married? Keep reading to find out what happened.

The name of this case, “AW v AH”, refers to the unnamed husband and wife who sought to divorce each other. They first came to the UK to study and later settled there. Unfortunately, AW was subjected to domestic violence many times by her husband during their marriage.

In desperation, AW felt she had no choice but to apply for a divorce in the British court and get a financial arrangement that was beneficial to herself. However, because the British divorce court had not issued a decree nisi (provisional decree of divorce), the divorce was not properly handled. The husband, AH, obtained divorce approval in China. The English court had to revoke their divorce application, and the original financial judgment was invalidated.

Background of case

In 2003, AH came to the UK to study at the University of East Anglia. After graduation, AH successfully stayed in the UK and settled in East Anglia. In 2014, he bought a local property worth 330,000 pounds. He also started some small businesses in England.

In 2017, AW also came to the UK to study. During her studies, AW was eager to experience working life straight away, and started applying for jobs while she was still at university. She later ended up working as a part-time assistant in a company. Coincidentally, her future husband, AH also happened to work for this company. In 2017, AH asked AW to move in with him, and the two began to live together. In 2018, they returned to China to get married, and then returned to the UK. AW gave birth to a son in 2019.

It is worth bearing in mind that AH is ten years older than AW, more financially stable than her, and bore the brunt of the financial expenses during the relationship as this will be relevant later on.

During their marriage, the assets in their marriage pool increased, and the main economic contribution came from AH. In 2018, AH purchased a property in his own name and rented it out to students. They later also purchased a larger family home which they moved in to.

Domestic violence and downfall of the marriage

Sadly, their marriage does not seem to have been a happy one.

According to AW’s testimony, AH has a bad temper and often physically abused her during the relationship. The first domestic violence occurred in 2019, when AH attacked her at night. In February 2020, the domestic violence escalated and AW was beaten harder by her husband. Due to this second serious act of domestic violence, she left the family home and moved into temporary housing provided by the government. Since then, she has been living in a house provided by the housing association and does not dare to go home.

In February 2020, the two officially separated. At the same time, she also obtained a restraining order to prevent AH from approaching her. Under these circumstances, AH left the UK and returned to live in China.

In May 2020, AH filed divorce proceedings in China. In the same month, AW filed for divorce in the UK. On July 21, AW issued a ‘Form A’ seeking financial relief from the court. In June 2020, AH personally went through the divorce and financial relief procedures back in China.

On July 21, 2020, AW issued an application for a financial order in relation to the UK divorce proceedings, hoping to obtain fair assets. The court decided that the first meeting would be held on November 18, 2020. However, AH failed to attend. The application had a final hearing on October 12, 2021. AH neither provided the court with his financial disclosures, nor attended.

According to the evidence provided by AW, AH sold the property they owned. These assets include properties purchased during their marriage: Property A (the family home before October 2019), Property B (the student rental property) and Property C (the family home the couple last moved into). In total, the combined selling value of the properties was £512,000.

Aftermath of the separation

Since the divorce, AW’s financial situation has been poor and she has been in receipt of credit and child benefits, as well as housing benefits.

The court held that the assets involved in this case mainly came from AH, and the two had only been married for more than 3 years. However, considering AW’s housing needs and the welfare of the children, the court decided that she should receive a one-off fee of £300,000 and the transfer of one of the properties from AH to his ex-wife, AW.

Furthermore, the Judge held that AH’s wilful abstention from the proceedings and his failure to give any financial disclosures was a contempt of court.

Complications of divorce proceedings

However, the process of going through the divorce process in the UK is a bit complicated. From applying for divorce to actually rescinding the legal relationship, there needs to be “customs clearance” in the middle. After one party files an application for divorce to the court, the court needs to issue an interim divorce order or conditional order (new marriage law after 2022).

This order serves as a formal confirmation that you have the right to a divorce. The judge can then make a binding order on the property arrangements for the divorce. However, this doesn’t really dissolve the legal relationship.

Once a temporary divorce order or conditional order has been successfully obtained, the couple must wait at least six weeks and one day before applying for a Decree Absolute or a Final Order. Before the introduction of the new marriage law in 2022, known as “no fault divorce”, the “absolute decree” was the decisive decree of divorce, which will completely dissolve the marriage of both parties. Once approved, the couple is truly divorced.

At this stage, AH and AW were stuck at the point of “temporary divorce order”. Since the court has not issued an interim divorce order for AW’s case, the financial judgment awarded by the judge to AW could not be stamped. Usually, the property court’s financial settlement plan cannot be approved until the divorce court issues an interim order.

On March 29, 2022, AH divorced AW in China. Seeing as divorce in China is relatively simple, AH got the divorce approval before the trial in the British court began. However, getting the divorce approval in China means that the British court could not announce the divorce judgment. The British Family Law Divorce Tribunal therefore directly cancelled AW’s divorce application. As a result, AW’s previous financial claims in the English court and any financial rulings made by the Property Tribunal were made invalid.

Since almost all of AH’s property is in the UK, in AH’s Chinese lawsuit, the Chinese judge suggested that after the divorce the two parties could file another lawsuit on the marital property outside China to deal with property disputes. AW felt helpless in her situation, so applied to the court for financial compensation for overseas divorce (the provisions of Part III of the Marriage and Family Litigation Act 1984).

How does divorce work in the UK courts?

Under the laws of England and Wales, if you divorce overseas, you can, in certain circumstances, make a claim for financial relief in the courts of England and Wales. In many cases, not all countries allow divorced couples to obtain a reasonable financial arrangement. Sometimes, one spouse may not receive financial compensation in a divorce, or the compensation may be entirely insufficient. As a result of this, Part III of the Matrimonial and Family Proceedings Act 1984, the legislation for financial claims after overseas divorce, was created to help remedy these situations.

Even if divorced couples obtain financial results in foreign courts, they can apply for financial orders under the Act after a foreign divorce. The courts of England and Wales will judge whether the parties are eligible to apply for economic relief in the UK and make a reasonable financial order according to the relevant rules.

On 24 May 2022, the judge granted AW’s application under Part III of the Matrimonial and Family Proceedings Act 1984 relating to “financial claims following an overseas divorce”, as the judge considered that the parties had strong ties to England and Wales , and there were currently no conflicting property judgments from Chinese courts. The court also directed that previous financial order files be linked to new cases for financial relief following overseas divorce filings. The judge also noted in bold that AH must be present at that hearing and that if he did not, the court may make a final order in his absence.

In the Financial Relief Case After an Overseas Divorce, AW asked the court to enforce the judge’s judgment that she should receive a lump sum of £300,000. AW’s application was successful. At the hearing on 11 August 2022, AW received a one-time payment of £300,000 and ordered the sale of AH’s property to realize the payment of the arrears.

Our thoughts

This story is a case worth thinking about, even though it can be said that AW’s application was successful in the end. However, not only did the case dragged on for up to two years, but AW may have incurred high legal fees as a result.

Xinlei Zhang, a Family Law Solicitor at Lisa’s Law, points out that although the divorce procedure and the division of property are different procedures, the property court needs the divorce court to agree to the divorce judgment before it can make an effective judgment on the division of property. With AW, she became stuck when it came to the divorce step.

We suggest that once the divorce is initiated in the courts of England or Wales, if the spouse does not cooperate, evidence can be collected, such as through messaging apps or any email information. In addition to this, private investigators can be hired to go to the other party’s address to serve the court’s divorce papers. This way, you are able to come to the court to apply for exemption from the other party’s reply in order to continue the divorce process.

In addition, if you have already started divorce proceedings in the UK, once you find that your ex-partner has also applied in other countries you would be better off filing with the local court immediately. Generally, as long as you start the divorce process in one place (country), the divorce judges in other countries are in principle reluctant to intervene.

Furthermore, regarding marital property matters, it is generally recommended to file a property lawsuit with the court where the marital property is located. For example, in this case, even if the other party fails to cooperate at all, the British court can still enter the judgment in absentia and dispose of the British property. This cannot be achieved by Chinese courts. This case acts as a reminder that even if AH did not participate in the proceedings at all and refused to disclose his property, he still faced possible legal punishment from the court.

If you have similar needs, you can contact Lisa Law Firm further, and our family law lawyers will be able to provide you with advice.

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Another successful private life application after 13 years of no status in the UK

By Lorraine Hon

We are pleased to have been successful in another private life route case where our client came to the UK as a teenager after fleeing the Taliban in Afghanistan.

One of the private life route requirements is where the applicant is aged 18 or above but below 25 at the date of the application. The applicant must also have arrived before the age of 18 and must have spent at least half their life continuously resident in the UK.

The other requirement for people who do not qualify for the requirement mentioned above is that where the applicant is aged 18 or over at the date of application, the applicant must have been continuously in the UK for more than 20 years. Or, where the applicant has not been continuously resident in the UK for more than 20 years, the Home Office has to be satisfied that there would be significant obstacles to the applicant’s integration into the country where they would have to live if required to leave the UK.

The case

Our client and his brother came to the UK to flee the Taliban. He initially claimed asylum but was refused. After that, he appealed the case but it was dismissed. However, he had been living in the UK for almost 13 years.

Our client was advised by alternative solicitors to claim for asylum, however he did not wish to proceed with this as he did not remember much from his time in Afghanistan. We advised the client that he had strong grounds for a potential private life case as he came to the UK as a child. We felt that there would be significant obstacles if he were to return to Afghanistan so we applied for leave to remain for him on the basis of his private life.

Our client changed his name after he moved to the UK. He has also had two dates of birth through no fault of his own.

What did we do to ensure a successful application?

Our application was successful because we were able to show the following:

1. We proved that our client’s date of birth was changed by the Home Office due to a previous application not made by our client. It was not clear whether our client was 12 or 13 at the time of entry. If it was the former, then the client would qualify for leave. When his date of birth was recorded by the Home Office, our client accepted it as he did not understand English.

2. We showed evidence that our client received different awards and merits in school. He was committed to succeeding in school.

3. We stated that with all our client’s education being in the UK, it would be extremely difficult for him to reintegrate into Afghanistan. We provided articles about Afghan returnees facing difficulties.

4. We showed that our client has made significant contributions to British society by representing the UK in sport. We provided all the awards that he won.

5. We showed that our client has no ties to Afghanistan. The only family member that he had was his brother who came to the UK with him. It would be cruel to separate our client from his brother. Our client was also in a relationship with a British national and the relationship would not be able to continue in Afghanistan as inter-religion/nationality relationships were not permitted in Afghanistan.

We received a decision 3 weeks after submitting the application and are pleased that our client will now be able to live in the UK.

Should you wish to make a private life route application, we would be happy to help. Contact us today.

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Have questions about this article? Get in touch today!

Call us on 020 7928 0276, our phone lines are open 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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