Should you make a foreign will if you have assets abroad?

Countries around the world have different inheritance and tax laws. As someone who is a domicile of England and Wales, you can make a foreign will with a lawyer which covers your overseas assets. However, in some cases it would be advisable to create a separate will to cover your assets in other countries.

In this article we will take a look at ‘foreign wills’, and whether you should make a foreign will for assets that you may have abroad.

A foreign will is sometimes also referred to as an ‘overseas will’ or a ‘cross-border will’. Simply put, it refers to a will which covers assets across multiple jurisdictions.

How does a person’s domicile status affect their will?

The status of a testator’s assets abroad after their death depends on whether they are domiciled in England or outside of England. The word domicile has a different meaning to residence in England Wales compared with other jurisdictions. Factors which affect domicile include:

Your country of birth
Your father’s country of birth
Where you have lived
Where the assets are located

The domicile of a person is an important factor to consider when preparing a Will which has assets in multiple countries. The reason for this is that the person’s domicile decides:

1. Which country’s succession rules will apply

2. The country whose inheritances tax rules will apply to the estate

For example, two of the most common countries for English expats to have assets abroad, France and Spain, have different heirship rules to England. In France, the system of forced heirship means the deceased’s children are entitled to a minimum share of the estate. This is also the case in Spain, where your children are entitled to two-thirds of your estate. In contrast, English law uses testamentary freedom, meaning you can leave your assets in your Will to anyone you wish.

What is the risk of not having a will which covers your foreign assets?

If you own any type of asset abroad, such as a holiday home or a bank account, then your estate will be considered a cross border asset when you die. You therefore risk your assets being subject to the inheritance laws of the country your assets are in even if you live in the UK. For example, a property you own abroad might be inherited by someone you do not wish it to be.

You may also see a delay in administering the estate from having a single will in a worldwide estate. The reason for this is that the English will has to go through the probate process in England first, followed by the grant of probate being presented in the foreign country. Having separate wills in each foreign country you have assets in therefore allows the lawyers in each jurisdiction to proceed with the probate process following death.

Solicitor Xinlei’s thoughts

Our resident Family Law Solicitor, Xinlei Zhang, gives her thoughts on succession when it comes to foreign assets abroad.

When the client has assets, especially real properties, in another jurisdiction, like China, because the succession law is different, and we cannot give advice on the succession of foreign property, I would suggest the client consult appropriate advice from a local expert. This is because, generally, the essential validity of a will of immovables (property which can’t be moved) or of a gift of immovables, is governed by the law of the country where the immovables are situated. Therefore, it would be more effective to make a separate will as to the foreign property under the local law, at the same time, the will we drafted will be limited to the assets in England and Wales.

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Harsher penalties proposed for landlords and businesses employing illegal workers!

Presently, if you are a business employing an illegal worker (a person who does not have the status to reside in the UK), you can face a fine of up to £20,000 for each illegal worker.

If you are a landlord and have rented a property to a tenant without status, you could face a fine of up to £1,000, and £80 for renting a room to lodgers. The fines can increase to £3,000 and £500 for subsequent offences.

The above regulations have been in place for a considerable amount of time to deter migrants from coming to the UK without a visa. The UK refers to this as the hostile environment, which aims to act as a deterrent by making it very difficult for those without visas to stay and reside in the UK.

The Immigration Minister, Robert Jenrick, has announced that fines for the above will be significantly increased to prevent people from crossing the channel and entering the UK illegally.

Civil penalties for employers hiring illegal workers will increase significantly from £20,000 to £45,000. For subsequent breaches, employers will face a £60,000 fine per worker.

Landlords who rent to tenants without status in the UK face fines of up to £10,000, a huge increase from the previous £1,000. Landlords who rent a room to lodgers will face a fine of up to £5,000.

We expect the legislation to be implemented this autumn, with plans for the new stricter penalties to come into force early next year.

The Shadow Home Secretary, Yvette Cooper, has stated that penalties issued to businesses have fallen by two-thirds since 2016, while arrests have also dropped. It is evident that moving forward, the Home Department will increase its budget for enforcement, likely resulting in more visits to businesses. This crackdown will put significant pressure on businesses to ensure that all their workers have relevant documents permitting them to work in the UK.

What can you do if you are hiring an illegal worker?

Such a fine can severely impact a business. Our advice is to apply for a sponsorship license as soon as possible. A sponsor license will permit you to sponsor workers from abroad to work in the UK legally.

We assist in such applications and will advise you on the requirements and guide you throughout the process. We also offer services to help you comply with your license requirements yearly.

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Can you enforce a foreign judgement in the UK?

Today we would like to change things up and introduce you to another area of law, enforcing a foreign judgment in the UK.

We understand that some of you may not be from the UK and would like to know whether you can enforce a judgment that you have obtained outside of the UK.

The truth is, it depends! Let’s take a look at the scenarios in which you can enforce a foreign judgement in the UK.

Hague Convention

You are able to rely on the Hague Convention if the judgment obtained is from a participating state. In short, a judgment of any sort given by participating state are enforceable in all other participating states. The common parties to this convention include the EU, Mexico, Montenegro, Denmark, UK and Singapore. Hence, if a judgment is obtained in an EU court, it will be enforceable in England under the Convention.

Article 8(3) of the Hague Convention on Choice of Court Agreements 2005 (the Hague Convention 2005) requires that the foreign judgment must still be enforceable in the jurisdiction in which it was obtained.

Administration of Justice Act 1920

The above acts allow for the registration and enforcement of money claim given in most of the Commonwealth countries, namely Cayman Islands, Cyprus, New Zealand, Nigeria, Malta and Zimbabwe. However, registration is discretionary.

Section 9(1) of the Administration of Justice Act 1920 (AJA 1920) requires that an application to register the judgment must be made within 12 months of the date of the judgment.

Foreign Judgments (Reciprocal Enforcement) Act 1933

Section 2(1) of FJA 1933 provides that an application should be made to register the judgment debt within six years of the foreign judgment or, where the judgment has been subject to appeal, from the date of the last judgment in the foreign proceedings.

It covers Australia, Canada (except Nunavut and Quebec), Guernsey, India, the Isle of Man, Israel, Jersey and Pakistan. It also covers judgments from some EU countries i.e. Austria, Belgium, France, Germany, Italy and the Netherlands.

Common law

Section 24(1) of the Limitation Act 1980 provides that an action to enforce a foreign judgment under the common law rules must be commenced within six years of the date on which the foreign judgment became enforceable.

This applies where no applicable treaty applies to the countries that enforcement is being sought. A great example would be China, Russia, Brazil and United States. As such, at common law, such foreign judgment is not directly enforceable but rather it creates a debt between parties.

Generally, any judgment obtained must be final and conclusive and have merits. An application for debt must be made by the creditor in the UK and usually, a summary judgment can then be entered.

Restrictions

There are restrictions to the above, notably if the judgment was obtained by fraud. In addition, judgment for multiple damages cannot be enforced.

How can a foreign judgement be enforced?

Once you have a foreign judgment registered here in the UK, it can be enforced in the same way as an English judgment.

There are a number of ways that this can be done:

obtaining a writ of control to allow an enforcement officer to take control of and sell the debtor’s goods;
applying for a charging order to grant the creditor a charge over land, securities or certain other property owned by the debtor;
applying for a third-party debt order compelling a third party (eg, a bank holding funds for the debtor) to pay the amounts due to the creditor; and
applying for an attachment of earnings order requiring a debtor’s employer to deduct money from the debtor’s wages and pay it directly to the creditor.
Bankruptcy petition (against an individual).
Winding up petition (against a company).

We would advise that you check whether a debtor is able to pay prior to making the above application:

Applying for an order that the judgment debtor provides information about his financial affairs.
By carrying out enquiries using an enquiry agent.
Checking the insolvency register for details of bankruptcy proceedings.
Checking information held at Companies House about companies or company directors.
Undertaking searches at HM Land Registry to find out whether the judgment debtor owns property.

As a reminder, there are different rules for the recognition and enforcement of foreign judgments. The principles may be the same but there are substantive and procedural differences between the rules we have mentioned in our previous video.

It is also important to identify which country you are applying from and the relevant procedure for recognition and enforcement.

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Thinking about coming to the UK? These are the 4 most popular UK visa routes

By Yang Peng

You may have been thinking about coming to the UK, whether it is just to visit or to settle here. The UK immigration procedure can seem complicated for those who have never travelled here before. In this article we will look at the most common UK visa routes.

Option 1 – Visiting the UK

This route is for a person who wants to visit the UK for a temporary period. This can include tourism, visiting friends or family, carrying out a business activity, or undertaking a short course of study. The earliest time you can apply for a visitor visa is usually 3 months before you planned travel date for visit visas.

A Standard Visitor may apply for a visit visa of 6 months, 2-, 5- or 10-years validity, however each stay in the UK must not exceed the permitted length of stay endorsed on the visit visa (usually 6 months).

Here are the requirements for the standard visitor visa.

Requirements:

You will leave the UK at the end of your visit.
You will not live in the UK for extended periods through frequent or successive visits or make the UK your main home.
You are able to support yourself and your dependents during your trip (or have funding from someone else to support you).
You are able to pay for your return or onward journey (or have funding from someone else to pay for the journey).
You have proof of any business or other extra activities you want to do in the UK, as allowed by the Visitor Rules.

Benefits:

The Visitor visa lasts for 6 months. With a Standard Visitor visa, you can visit the UK for tourism, certain business activities, short period study and other permitted activities.

Limits:

Your stay must generally be for no longer than 6 months and you have to leave the UK by the expiry date.
Once you arrive in the UK, you cannot switch to a different visa category than a visitor visa; you will need to return to your home country and apply for a different visa from there.
You cannot do paid or unpaid work for a UK company or as a self-employed person, nor can you claim public funds.

Option 2- Work in the UK

A Skilled Worker visa allows you to come to or stay in the UK to do an eligible job with an approved employer. You can apply for a visa up to 3 months before the day you are due to start work in the UK. This date is listed on your certificate of sponsorship.

Requirements:

You must have a confirmed job offer before you apply for the visa.
You must work for a UK employer that the Home Office has approved.
You must have a certificate of sponsorship given by your employer.
You must have a job listed in the eligible occupations.
You must receive the minimum salary for the job you will do.
Your English level must be at least B1.

Benefits:

A skilled worker visa can last for up to 5 years before you need to extend it. You can apply to extend your visa as many times as you like as long as you still meet the eligibility requirements.
During your stay, you can work, study in the UK.
You can bring your partner and children with you as your ‘dependants’
You may be able to apply to settle permanently in the UK (also known as ‘indefinite leave to remain’) if you’ve lived in the UK for 5 years and meet the other eligibility requirements. This gives you the right to live, work and study here for as long as you like and apply for benefits if you’re eligible.

Limits:

You cannot apply for most benefits or the State pension.
You cannot change jobs or employer unless you apply to update your visa.

Option 3 – Study in the UK

All international students who want to study in the UK must get a student visa. A student visa is only available to full-time students pursuing a degree in the UK, not short-term or language courses.

For short courses that last less than 12 months, you can apply for a visitor visa or a short-term study visa. You should apply for a student visa at least three months before the academic year begins or six months at the earliest.

Requirements:

You must be sponsored by a licensed college or university and have a confirmed place.
You have enough money to support yourself and pay for your course – the amount will vary depending on your circumstances.
can speak, read, write and understand English.
have consent from your parents if you’re 16 or 17 – you’ll need evidence of this when you apply.

Benefits:

You can study and have limited work during your stay.
You may be able to bring your partner and children. From January 2024, international students will not be permitted to bring family members with them while they study in the UK – unless they are studying in postgraduate research courses (e.g., research-based PhDs and research-based master’s programs).
You can extend your student visa and switch to other visas in the UK if you are eligible.

Limits:

You cannot apply for public funds and pensions.
You cannot work in certain jobs or be self-employed.

Option 4 – Setting up a business in the UK

The Innovator Founder Visa route is designed for experienced businesspeople who seek to start a business in the UK.

Your business idea must be innovative, viable and scalable. There is no minimum investment, however the plan must be endorsed by a relevant authority approved by the Home Office.

Requirements:

Your need to produce a business plan that evidences the following qualifications: new, innovative, viable and scalable.
Your business or business idea has been endorsed by an approved body, also known as an endorsing body.
You must be able to speak, read, write and understand English.
You are able to prove that you have enough personal savings to support yourself while you’re in the UK.

Benefits:

You can stay in the UK for 3 years and can be extended for a further three years.
During your stay, you can set up a business or several businesses.
You can bring your partner and children with you as your ‘dependants’ if they are eligible.
You can apply to settle permanently in the UK (also known as ‘indefinite leave to remain’) if you have lived in the UK for 3 years and meet the other eligibility requirements.

Limits:

You cannot work as a professional sportsperson.
You cannot apply for most benefits or the state pension.

Contact us for more information about visas.

Do you need expert advice or assistance? We at Lisa’s Law specialize in assisting with applications for different UK visa routes. We will advise and represent you throughout the process. Contact us today to start the process.

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The SNP announces independence plan for Scottish citizenship

The Scottish government has published new proposals for how someone would be able to obtain Scottish citizenship in a independent Scotland. These proposals were published in a research paper entitled ‘Citizenship in an independent Scotland’.

The report’s release comes at a time when Scottish independence currently seems to be a remote possibility. The sudden departure last year of popular SNP First Minister Nicola Sturgeon and polling indicating that the majority of Scots wish to remain as part of the UK makes the idea of Scottish independence more unlikely than it has been in recent times.

The last referendum Scotland had on the subject of independence was in 2014, when the Scottish electorate voted to remain as part of the United Kingdom by 55.3% to 44.7%. While the Scottish government have attempted to hold another one, this requires the consent of the UK government in Westminster, following an November 2022 Supreme Court decision.

While independence may seem unlikely right now, it is still worth thinking about how Scottish citizenship would operate in an independent Scotland. The First Minister, Humza Yousuf, has said there would be four ways of obtaining citizenship in an independent Scotland. So what are they?

Keep reading to find out.

Ways to become a Scottish citizen

The four ways of becoming a Scottish citizen will include the following:

automatic entitlement on the day of independence
by birth after independence
by registering as a Scottish citizen, or
by applying to become a Scottish citizen

Automatic entitlement

Automatic entitlement to Scottish citizenship would occur on the day when Scotland became independent if you are already a British citizen and:

live in Scotland
were born in Scotland
you have a parent who was a British citizen born in Scotland
Or, if you previously lived in Scotland for 10 years, or 5 years if you are a child. There would also be a pro rata calculation for young adults

It would however be possible to opt out of Scottish citizenship if you did not wish to automatically become a Scottish citizen.

Birth after independence

Children who are born in Scotland after independence would automatically become Scottish citizens if at least one of their parents is:

A Scottish citizen
A British or Irish citizen
“Settled” in Scotland according to Scottish immigration law.

They would also be entitled to Scottish citizenship if they are born outside Scotland but at least one of the child’s parents is Scottish.

Registering after Scottish independence

There would also be an option to register as a Scottish citizen.

This option would be available to both British and Irish citizens living in Scotland, as well as children of any nationality who were brought up in Scotland and are currently living there.

Applying to become a Scottish citizen

Finally, there would also be an option to apply to become a Scottish citizen. Like the UK in its current form, this would be known as “naturalisation”.

A person would be able to apply for Scottish citizenship if they had lived in Scotland for five years and had been settled in Scotland for at least 12 months.

Rejoining the EU

A key feature of the Scottish government’s plan is their intention to “rejoin the EU”. They also pointed out that they want to retain the Common Travel Area between the UK and Ireland , and maintain “communication” with the UK and Ireland in the future. In other words, British and Irish nationals, even after Scotland’s independence, can continue to freely enter, leave and even live in Scotland.

In addition, Scotland will allow citizens to hold dual citizenship. In other words, a person can hold British and Scottish citizenship at the same time. The Scottish government intends to adopt the “Irish-style” nationality rules, and to make the “road to naturalization” easier for immigrants. This will open a new path for applicants whose grandparents/grandparents are Scots.

Moreover, if the Scottish passport is really implemented, it will enable people holding Scottish passports to regain the “right to move freely” on the premise of “re-entering the European Union” in the future. The Scottish passport would then seem to be more practical than the British passport! This may replicate a scenario where lots of British citizens of Irish ancestry applied for Irish passports after Brexit to enjoy the benefits of EU citizenship.

Our thoughts

These proposals by the Scottish government are a clear attempt to outmanoeuvre Westminster by offering a friendlier, more welcoming immigration policy. At a time when the UK’s Conservative government continues to tighten its immigration controls, the hope is clearly that having an open immigration policy will attract more people to Scotland.

An independent Scotland would require a vibrant, dynamic economy if it departed the UK, so it is understandable that an independent Scottish government would wish to introduce an immigration policy that would be flexible and adaptable.

Nevertheless, as mentioned previously it currently seems unlikely that Scotland will become an independent nation, particularly given Westminster’s reluctance to grant the Scottish government the power to hold a referendum. It does however signify the disparity in how the governments of the two countries view immigration and citizenship.

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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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Flexible Working Act – 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 2023.

Commonly known as the Flexible Working Act 2023, it received royal assent, making it an act, on the 20^th July 2023. 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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News and Insights

How does a person’s domicile status affect their will?

What is the risk of not having a will which covers your foreign assets?

Solicitor Xinlei’s thoughts

Hague Convention

Administration of Justice Act 1920

Foreign Judgments (Reciprocal Enforcement) Act 1933

Common law

Restrictions

How can a foreign judgement be enforced?

Option 1 – Visiting the UK

Option 2- Work in the UK

Option 3 – Study in the UK

Option 4 – Setting up a business in the UK

Ways to become a Scottish citizen

Automatic entitlement

Birth after independence

Registering after Scottish independence

Applying to become a Scottish citizen

Rejoining the EU

Our thoughts

Background

What did the judge decide?

Our thoughts

What is meant by flexible working?

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

What doesn’t change with the new legislation?

Our thoughts

Background

What is Quincecare duty?

Decision

Our thoughts

Background

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

Our comments

Who can apply for a British passport?

Our thoughts

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