Is it wrongful dismissal if the employer issues a P45 and the employee is absent from work after being asked to return?

By Krystal Yan

This is a recent case that we have defended in which the Claimant sought circa £140,000 for unlawful and wrongful dismissal against our client, the Respondent.

Background

The Claimant started working as a kitchen helper for the Respondent from August 2015. In December 2018, the Claimant’s job title was changed to chef assistant and the Respondent started to pay the Claimant £12.20 per hour including service charge payments and tips (“S&T”), which includes £3.20 per hour of S&T.

The Respondent was closed from April 2022 to August 2022 for a major renovation and officially reopened on 1 September 2022. The director of the company messaged the Claimant three times to ask whether he was available to start work from 16 August 2022, even though the restaurant officially reopened on 1 September 2022. The Claimant did not reply saying whether he would return to work at the time requested, but rather that he was on holiday and would revert to the Respondent when he was back. There was no communication between parties until 30 September 2022.

The Claimant issued a P45 which was available for viewing online on 1 October 2022 and it was then that the Claimant realised that his employment had been terminated since 1 September 2022. The Claimant took the Respondent to Employment Tribunals on January 2023 on the grounds of wrongful and unlawful dismissal, which was heard on 30 May and 31 May 2023.

The claim was made on the below grounds:

1) failure to provide workplace pension scheme;

2) unlawful deductions from wages; and

3) whether the Respondent had dismissed the Claimant

We will analyse each of these claims in succession.

Failure to provide workplace pension scheme

In respect of the ground on the failure to provide a workplace pension scheme, the judge held that because the Claimant was enrolled on the Nest Pensions scheme by the Respondent on 1 August 2016, any claim would have been time-barred. i.e., the Claimant did not bring the action within six years of the date on which he became aware of the Respondent’s failure to make pension contributions on his behalf.

Unlawful deductions from wages

The judge also struck out the Claimant’s claim about unlawful deductions from wages. The Claimant alleged that the Respondent deducted his share of the service charge payments and tips (“S&T”).

It is worth noting that in October 2022, the Claimant and the Respondent had entered into a COT3 agreement mediated by ACAS, in which the Respondent agreed to pay and the Claimant agreed to accept a settlement sum to be paid in full and final settlement of the potential claims on unauthorised deductions from wages, breach of the working time regulations and failure to prove a written statement of terms and conditions of employment.

The Claimant argued that the term “unauthorised deductions from wages” in the COT3 agreement referred to unpaid holiday wages, which is different from the deducted S&T from his wages in this case. The Respondent’s counsel claimed that under the case Henderson v Henderson (1843) 3 Hare 100, 67 ER 313, a party is precluded to raise in subsequent proceedings matters which were not, but could and should have been raised in the earlier proceedings.

The judge took the same view and held that from the COT3 agreement, it stated clearly that the settlement sum is the “final settlement of the potential claims of unauthorised deductions from wages”, in other words, the Claimant shall be precluded from bringing any further action in respect of any dispute in connection therewith. Even if, as the Claimant argued, the two claimed wage deductions were not the same thing, he should have brought an action for the deducted S&T within one month from the date the ACAS certificate was issued. It is clear that the Claimant acted beyond the statutory period. Eventually, the Tribunal decided that it did not have jurisdiction to hear the Claimant’s complaints of unauthorised deductions from wages.

Whether the Respondent had dismissed the Claimant

Another contentious issue in this case was whether the Respondent had dismissed the Claimant. The judge found that the Claimant had stated that he was on holiday when he was repeatedly notified by the Respondent to return to work and the Claimant had never replied to the Respondent as to when he would be able to return to work, nor had he actually returned to work.

Additionally, contrary to his own account, the Claimant stated that he needed the job to earn money, however he did not return to work when asked to do so by the Respondent. As for the P45, the judge held that it was an administrative process, indicating that the Claimant left his job, which cannot be regarded as a proof for dismissal. The Claimant proceeded to accept other jobs whilst not replying to the Respondent’s notice for him to return to work. Therefore, the Tribunal believes that the Claimant was not dismissed by the Respondent. Accordingly, his claims of unfair and wrongful dismissal are not well-founded and are dismissed.

Conclusion

There are some important lessons to learn from this case. First, for any case, especially for the Claimant, they must ensure that it is still within the statutory limitation period before issuing proceedings. Otherwise, there will be a lot of time and costs wasted.

Secondly, the nature of a P45 is merely an administrative process for employees’ departures, rather than a dismissal documents. Nevertheless, when an employer intends to dismiss an employee, it is best to follow the relevant employment legal process, such as giving notice prior to the termination of the employment or paying in lieu of notice, in order to avoid more serious consequences.

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High Court says unpublished Home Office policy on NHS debt is unlawful

By Yang Peng

Today’s article looks at a recent case involving an unpublished Home Office policy which caused individuals to be unlawfully detained over NHS debts.

Keep reading to learn why the High Court decided the policy was unlawful and our thoughts on the case.

Background

MXK and SXB are two mothers who had unpaid NHS bills while having leave to remain as parents. On separate and multiple occasions throughout 2021 and 2022, they were stopped, detained, and questioned about their NHS debts when re-entering the UK with their children.

If an applicant who applies for entry clearance, permission to enter or permission to stay has failed to pay NHS charges which are at least £500 and fall under the National Health Service (Charges to Overseas Visitors) Regulations 2015, SI 2015/238, this becomes a discretionary ground for refusal of entry clearance or leave to remain in the UK. Additionally, the debt is recorded as a “warning marker” within a database shared with government departments and public authorities for potential relevance.

Consequently, individuals who are subject to a warning markers may undergo border stops. This includes the practice of detaining and examining individuals with leave to remain in the UK regarding their NHS debt. Regrettably, the policy that permits their detention was not published and, as a result, did not undergo any scrutiny.

There was great anticipation for the decision in the case of R (oao MXK and others) v Secretary of State for the Home Department (SSHD) on 26 May 2023. This case saw the Court make a judgement as to whether the unpublished policy of the SSHD regarding the use of examination and detention powers outlined in Schedule 2 of the Immigration Act 1971 (IA 1971) was deemed lawful.

R (oao MXK and others) v Secretary of State for the Home Department (SSHD)

This case concerned the legality of numerous examples of the detention of individuals re-entering the UK due to NHS debt. During the hearing, a large number of grounds and arguments was presented before the court held that MXK, SXB and their children were held by officers without justification and that the policy was unlawful.

The court found that there was no compelling reason for non-publication of the relevant policy. The Home Secretary was in breach of her duty under section 149 of the Equality Act 2010 (EqA 2010) to have ‘due regard’ for the need to eliminate discrimination. There was a clear absence of any evidence about consideration of whether such practice could be justified, in particular, given its disproportionate impact on women.

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

the policy document failed to inform the Border Force staff that the only basis for cancelling leave in connection with an NHS debt is where the person has made false representations or failed to disclose relevant facts on a previous application for leave.
there was no evidence of any individual being asked questions relevant to whether they have made false representations or failed to disclose relevant facts in previous applications for leave.
there was no evidence that Border Force staff were aware that the only lawful purpose for examination in such cases is to determine grounds for cancellation, or that examinations were directed towards that purpose.
although the claimants were initially lawfully detained, their detention became unlawful as it was then conducted for a purpose not specified in IA 1971, Sch 2, paras 2 or 2A.
the policy was misleading as it failed to specify the sole purposes for examining and detaining a person with limited leave in relation to an NHS debt, creating the impression of broader permitted purposes.
The policy being unpublished further contributes to its unlawfulness.
there was no evidence to show that the Home Secretary or any official had ever considered the equality impacts of using examination and detention powers outlined in IA 1971, Schedule 2.

The above is a summary of the court’s judgement on some of the many grounds presented. The above means that individuals subject to a warning marker due to NHS debt may undergo a border stop but should not be detained or prevented from re-entering the UK when possessing a valid grant of leave. It is crucial to note that NHS debt alone is not a sufficient reason to prevent an individual’s re-entry to the UK.

The policy has now been withdrawn and reportedly rewritten. However, throughout the entirety of the case, the Secretary of State did not concede the policy (or any future policies) should have been published to avoid harmful and disruptive errors resulting from a lack of oversight and scrutiny.

Our comments

The findings in R (oao MXK and others) v SSHD shows that the Home Secretary’s unpublished policy and practice on the use of the examination and detention powers in Schedule 2 to the Immigration Act 1971 in relation to those with limited leave to remain with outstanding NHS debts is unlawful.

The judgment provides guidance on the grounds for cancelling leave in connection with an NHS debt and clarifies that any examination in relation to NHS debt must be directed towards establishing such grounds. once the claimants have shown that they were detained, it is for the Home Secretary to show that there was lawful justification for the detention.

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Another successful visitor visa application from Fujian province in China

Following on from our article in April where we discussed whether the Home Office have recently become more open to visitor visa applications made from Fujian province in China, we have been successful in another case from the region.

You can read the previous article here.

Our clients were Chinese nationals living in Fujian who wished to visit their son and grandchildren in the UK who they had not seen for several years. The husband worked as a freelance carpenter who was now retired and his wife did not work.

Our clients had savings which they received due to the demolition of their house. However, they were unable to provide evidence of where they received this money from. They were unable to write their travel plans once in the UK and needed assistance with this.

Previously, these applications were typically refused by the Home Office. The Home Office generally believed all those that apply would overstay in the UK once they are here and had no intention to comply with their visa.

How did we ensure a successful application?

Our application was successful due to us showing the following:

1. We showed that our clients were genuine visitors. Although not typical practice, we drafted the clients travel plan in English and submitted this to the Home Office.

2. The evidence proving the relationship between our clients and son.

3. We showed that our clients were receiving a pension in China and that they owned a house, and therefore giving them every reason to return to China. We provided a house certificate from the local council to evidence this.

4. We showed that our clients’ son could accommodate and financially support our clients for the full duration of the trip. We did this by provided bank statements and payslips.

5. Evidence of ties in China. We obtained a fully translated copy of their Hukou document.

The application took just three weeks to process after being submitted, and we are pleased that our clients will now be spending the UK summer months with their son and his family.

For further details on visit visas please see our useful guide which can be found here.

Should you wish to bring your family to the UK for a visit or wish to visit the UK for business purposes then please do not hesitate to contact us! We would be delighted to help you.

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Will applicants with a skilled worker visa need to wait 8 years for settlement?

A skilled worker visa allows a person to come to the UK and work for an employer. The visa also allows a skilled worker to bring their dependents to the UK with them.

A skilled worker visa can be issued for up to 5 years. After 5 years of holding a skilled worker visa, it is possible to apply for indefinite leave to remain which means that you can permanently stay in the UK without restrictions.

The Daily Mail has reported that the Home Office may be considering introducing changes to the settlement route. They have reported that the Home Office are considering changing the requirement by extending the criteria for continued residence from 5 years to 8 years before being granted indefinite leave to remain.

The Daily Mail reports that the reasons for this is to bring the UK’s settlement requirements closer to other countries.

Other purported changes include ensuring applicants applying for indefinite leave to remain must be conviction-free for 10 years, removing the exemption of over 65’s taking a Life in the UK test, and providing an English language qualification at the B1 level.

Our comments

The above has not been reported by the Home Office and therefore we believe it is a speculative article by the Daily Mail. If the Home Office were to introduce such changes, we believe it would undoubtedly lead to the UK being unattractive to many who wish to pursue a career abroad. At a time when the UK is teetering on the brink of recession, it is not in the interest of the UK government to add such restrictive measures to the skilled worker visa.

Presently, the 5-year settlement route is an attractive option for people coming from overseas. Any changes may lead to a sharp decline in applicants should the Home Office introduce such measures.

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Welcome Yang

We are delighted to welcome Yang Peng to Lisa’s Law. Yang joins the Immigration team as a legal assistant and has already impressed during her short time here.

Yang’s academic background consists of a bachelor’s degree at Wuhan University in China, and a Master’s degree in Transnational Law from King’s College London.

Prior to joining Lisa’s Law Solicitors, Yang has extensive experience in the form of internships. This includes experience working in a local court as well as two internships in law firms (East& Concord Partners, Yingke), in which she assisted in the commercial sector and liaised with government departments.

Outside of work, she has several hobbies, including photography, volunteering and making coffee. In the future, she aspires to own her own properties and have puppies and kittens!

She is also fluent in both English and Chinese Mandarin.

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No fault evictions to be banned – what will be the effect on tenants and landlords?

The Renters’ (Reform) Bill 2023 was introduced to parliament last year, promising comprehensive reform of the private rented sector. It will provide welcome news for renters in particular and will see England completely ban no fault evictions as part of a long-awaited package of reform of the private rental industry. The scheme will affect approximately 11 million tenants and 2 million landlords in England according to the Department of Housing.

While the policy, which was part of the Conservative’s 2019 manifesto, is still set to go ahead, it faces a rush against time to complete it prior to the next general election in 2024. Many have criticised the lack of progress since reform was promised in the Conservative Party’s 2019 election manifesto.

But what are no-fault evictions? And how will the ban will affect landlords and tenants alike? Keep reading to learn more about no fault evictions and how they could affect you.

What is a no fault eviction?

The Housing Act 1988 enacted the “Section 21 Notice” law, which allows landlords to evict tenants without giving a reason. Under the current law, landlords can terminate their Tenancy Agreement (AST) with a tenant by giving a valid “Section 21 Notice” to the tenant after a fixed tenancy ends – known as a “no-fault eviction”. This means that the landlord does not have to have any reason to evict the tenant.

Landlords can also serve a section 21 notice at any time during a periodic tenancy, one which has no fixed end date.

Landlords are required by law to give tenants a Section 21 notice at least two months in advance. Therefore, this is the minimum time required for a landlord to evict a tenant. However, if the tenant refuses to leave after this period, eviction may take longer. The “expedited” court process typically takes nine weeks to complete. But it could be longer if the court is particularly busy. Bailiffs can take another four to six weeks after the court process is complete to evict tenants.

Why has the ban on no fault evictions been introduced?

An estimated 40 families in England have been threatened with “no fault” evictions every day since the law was introduced. Last year, research by the housing charity Shelter revealed that almost 230,000 tenants in private rental housing had received no-fault eviction notices since April 2019, with almost 17,000 of those evictions occurring during the same period.

To the dismay of tenants, no fault evictions are often abused by bad “rogue landlords” who use them to intimidate tenants into keeping quiet about the state of disrepair or poor landlord practices. Some tenants revealed to the media that they have always abided by the rules of the lease and paid rent on time. However, when they found some problems with the property and raised it to the landlord, they hoped that the landlord could repair the property. Instead, they received an eviction notice. This can discourage tenants from seeking help from their landlord.

To address such issues, the Conservative Party pledged in their 2019 election manifesto that they would end the practice, hoping to ban no fault eviction notices. However, that promise has not yet been fulfilled. The government has finally released a ‘white paper’ called A Fairer Private Rented Sector, which proposes the repeal of Section 21 evictions, which will be brought to Parliament as the Renters’ Reform Bill.

On May 17, 2023, the long-promised plan to abolish was finally realized, when the Renters’ Reform Bill was introduced to Parliament on the same day. The bill would prohibit landlords from evicting tenants without fault. In addition to banning “no fault evictions,” the government issued other measures through the bill. It launched a “12-step plan”.

In its 12-step plan, the government pledged to end unreasonable rent review clauses and unreasonable rent increases, as well as allow tenants to challenge any excessive rent increases. The law will also make it illegal for landlords to refuse to rent properties to families with children or those receiving benefits. In addition, the law also gives tenants the legal right to bring pets, and landlords will not be able to “unreasonably” refuse.

Alongside this, a new ombudsman process will be introduced, which all landlords will be required to join. The aim is to provide tenants with a fair, just and binding solution to a number of issues. The idea with this is that the process will be faster, cheaper and less adversarial than the court route.

How does the new law affect tenants and landlords?

There is no question that the end of no fault evictions is good news for tenants, providing greater security and stability to their housing arrangements and reducing the risk of being caught without warning or explanation. At the same time, tenants also have more power to challenge evictions as they are able to contest the grounds used to evict them.

For landlords, the changes are mixed blessings. On the one hand, the end of no fault evictions has made it harder to evict tenants, with landlords having to think more about the grounds they use for evictions and that they have enough evidence to support their cases.

On the other hand, these changes encourage more responsible landlords to enter the market, as the risk of renting to problem tenants, such as those with anti-social behaviour, appears to have decreased. In the long run, landlords can be more motivated to keep good tenants who pay rent on time and take good care of the property.

Overall, the changes have been welcomed by renters, as well as some landlords who value stability and security. However, it does create some challenges for most landlords, who need to adapt to the new requirements and spend more time finding evidence to support their eviction cases.

Our comments

Evveline Loh, head of the litigation team at Lisa’s Law, believes that these changes have both positive and negative aspects for landlords and tenants.

One of the main challenges for landlords is that landlords may need to rely more heavily on one of the 17 grounds for eviction to evict tenants, which can complicate their eviction process. Landlords need to find more evidence and documents to support their grounds for eviction, which can be difficult for landlords unfamiliar with the legal requirements. Additionally, landlords may need to invest more in maintaining their properties and addressing possible issues with problem tenants.

“On a positive note, these changes can help reduce risk in the rental market, strictly regulate the market, and reduce the risk of rogue landlords abusing the law to evict tenants. At the same time, the bill also helps responsible landlords, allowing these landlords to repossess their property faster, such as selling the property or moving in themselves. There will also be shorter notice periods for evictions in cases of irresponsible tenants, such as breaching the lease agreement or causing damage to the property. The reforms will also strengthen eviction resistance.”

In any case, landlords still have to keep in mind that they must abide by the law. They should not try to evict tenants without reason to avoid the risk of lawsuits. If you want to evict the tenant for legitimate reasons, you can contact a lawyer to see how to collect evidence and what kind of reasons will be more reasonable and make it easier to get the property back. For tenants, once you feel that the landlord is evicting you for unfair reasons, you can also collect further evidence to allow you to boldly fight for your interests.

If you have any questions about disrepair claims, no fault evictions, or Section 21 injunctions, please consult Lisa’s Law further. Our litigation team and real estate lawyer team have many years of experience in these areas and can provide you with professional advice.

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Welcome Lorraine

We are delighted to welcome Lorraine Hon to Lisa’s Law Solicitors. Lorraine joins the firm as a legal assistant and has made a great impression on the immigration team since arriving.

Lorraine is a LLB graduate from Durham University. She completed the legal practise course (LPC) at BPP University in August 2022. During her academic studies, Lorraine interned at a couple of law firms in Hong Kong as well as an immigration law firm in London.

Lorraine is fluent in English, Mandarin and Cantonese. She is interested in immigration and commercial law and wishes to qualify as a solicitor in 3 years.

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20 Years Long Residence – what are the visa requirements?

This guide will briefly explain the general requirements that must be met to apply for leave to remain based on 20 years residence. All requirements must be strictly met, otherwise the application will be refused.

Firstly, what is the 20 years long residence route?

The 20 years long residence route allows a foreign national to apply for permission to stay in the UK for 30 months if this person has lived in the UK for 20 years continuously, whether lawfully or unlawfully. This visa is granted under Article 8 of the Human Rights Act 1998 as the right to respect for private and family life.

What are the requirements?

In order to qualify for 20 years long residence, you must satisfy a number of requirements. These requirements are as follows:

You have lived continuously in the UK for at least 20 years, either legally or illegally.
There are no public interest (public good) reasons why it would be undesirable to grant you leave to remain in the UK.
You meet the suitability grounds which includes any period of imprisonment or time spent in prison.
You have not been absent from the UK and have not left the United Kingdom

Continuous Residence

The Definition of “continuous residence” is to show that you have been in the UK for the past 20 years without any gaps in residence. Continuous residence is considered to be broken if the applicant has:

You have been absent from the UK for a period of more than six months at any one time, or absent from the UK for a shorter period but do not have valid leave to enter the UK on your return, or valid leave to remain on their departure from the UK.
You have been removed or deported from the UK, or have left the UK following the refusal of leave to enter or remain.
You have left the UK and by doing so, showed a clear intention not to return.
You left the UK under circumstances in which you could have no real chance of returning to the UK lawfully.
You have been convicted of an offence and been given a custodial sentence, or ordered to be detained in an institution other than a prison, such as a hospital or young offenders institute, not including suspended sentences.
You have spent a total of 18 months outside the UK throughout the whole 20-year period.

Process

Before the application, you will need to provide your identification documents such as passport and biometric information, as well as supporting documents showing that you have actually lived in the UK for 20 continuous years.

Once you application has been submitted, you will need to book a biometric appointment so that you can attend a visa centre to submit your biometric information (fingerprints and a photo). You will not be able to submit any further documents after your biometrics have been submitted and your application will be under consideration.

Presently, the Home Office can take up to 6 months from your biometric submission date to decide an application made for the first time unless there is a delay.

There is a number of reasons why an application can be delayed, but most commonly it can be failure to provide all the required documentation, and / or the need to attend an in-person interview. Doing everything right in your application increases the chances of the approval of your application within a short waiting time.

To help avoid such potential delays, please contact us to assist with your 20 years long residence applications, ensuring that avoidable delays, and refusals are dealt with at the application stage.

20 years long residence – what happens if it is granted?

Should your application be granted you will be granted limited leave to remain for a period of 2.5 years or a period of 30 months.

You will be eligible to live in the UK within this time. You will be able work without any restrictions and study in the UK.

20 years long residence – what happens if it is refused?

Where an applicant has had 20 years continuous residence in the UK, their application may only be refused on suitability grounds (generally on grounds of public good) or if their application is not valid (for example, they did not pay the correct fee).

Extension

A person who is already in the UK on leave to remain which was previously granted for 30 months on the basis of 20 years long residence can apply for renewal of his/her leave to remain 28 days prior to the expiry of their leave to remain.

Is fast track available?

Please note that super priority service is available in which you will get a decision the next working day. For applications made within the UK, the Home Office fee is £800.

Fees

You will need to make payment of the Home Office fee, Biometric fee, and Immigration Health Surcharge when your application to the Home Office is ready to submit. Presently, the fees are as follows:

Application	Home office fee	Biometric fee	Immigration Health Surcharge
20 Years Long Residence	£1,048	£19.20	£624 per year

Please note that when applying for entry clearance, the actual fee paid may be higher due to payment being processed in the local currency.

When can you apply for Indefinite Leave to Remain (ILR)?

After you get the 20 years long residence, you will then be eligible to apply for ILR once you have accumulated a period of 120 months (i.e., 10 years) lawful residence. So, under the 20-year rule, it will be 30 years from entry to the UK before the person is eligible to apply for settlement.

At Lisa’s Law, we regularly assist in applying for 20 years long residence applications within the UK. We will advise and represent you throughout the process. Contact us today to start the process.

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Account Freezing Order involving seven figure sum successfully challenged and cleared by Lisa’s Law

By Yitong Guo

In the past 6 months, the Litigation team at Lisa’s Law successfully assisted an individual client to challenge two Account Freezing Orders (AFOs) against their personal accounts and have the full seven figure sum released.

Keep reading to learn about the case and how we got the desired outcome for our client.

Background

The background and conduct of the case was relatively straightforward. Earlier in 2022, our client’s various UK bank accounts were subject to AFO applications issued by the police: some were with notice whilst others were not. The time requested for the AFOs to be effective was 6 months with possibility to extend.

We produced evidence and challenged on the facts that the time requested by the application was disproportionate. Our argument was accepted by the court and the valid time of the AFOs were ordered to be 4 months instead of 6 months. Thereafter, we worked hard to prove that our client’s funds were indeed from legitimate sources by going through every transaction that was asked by the police. It was a tedious auditing process.

Proceeds of Crime Act (POCA) and AFO

The AFO was introduced by the Criminal Financial Act 2017. It brought into force new powers under S 303Z1 to 303Z19 of the Proceeds of Crime Act 2002 (POCA). Funds can be frozen for up to 2 years whilst authorities are allowed to investigate.

S 303Z1 provides the definition of AFO as such: (a) an account freezing order is an order that, subject to any exclusions (see section 303Z5), prohibits each person by or for whom the account to which the order applies is operated from making withdrawals or payments from the account;

(b) an account is operated by or for a person if the person is an account holder or a signatory or identified as a beneficiary in relation to the account. (See the Proceeds of Crime Act 2002 )

As suggested, AFO will prevent the accounts in question from operating. The section also provides that the authorities can apply for such an order and the Court will grant the application where there are mere reasonable grounds to suspect that money held in the accounts originates from unlawful conduct or intended for use in unlawful conduct.

The AFO is a civil mechanism to freeze any suspicious assets. Although the application would normally be made by the relevant authorities including regional police forces, the Serious Fraud Office (SFO) and the National Crime Agency (NCA), the burden of proof for granting such orders is ‘not beyond reasonable doubt’ as in the criminal case, but more so on the probability of balance. More significantly, it works as a catch all mechanism to encompass any assets suspected of being used for unlawful conduct.

When compared to other economic restraining methods, for example, the Unexplained Wealth Order (Criminal Finances Act 2017, such order must be made to the High Court, the minimum value held must be in excess of £50,000.00); whilst Restraint Orders (section 41 of POCA, criminal investigation must be underway or there must be reasonable grounds to suspect that an individual has benefitted from criminal conduct).

AFO in comparison is relatively easy for the relevant authorities to satisfy the threshold for the court to grant the application. As a result, since it came into force, AFO became increasingly popular and it is adopted by the relevant authorities to freeze and forfeit funds in the bank accounts in the UK where criminal activity is suspected.

Satisfying Result

Given the wealth of experience that our team has, we understand the purpose of an AFO and its legal effect. We responded by assisting the client to challenge the police’s allegations against our client’s funds. We first gathered and consolidated evidence rebutting the reasonable grounds of the suspicion in relation to both the source and intended use for the funds. We managed to trace and prove the source of funds and source of wealth. Furthermore, we assisted client in replying to detailed enquiries made by the police.

In the end, the reply and evidence we have supplied were sufficient to satisfy the police’s investigation. After 4 months of investigation, the Police declared the funds to be cleared of suspicion and the full sum in all accounts were released. No forfeiture was made.

Conclusion

In recent years we have seen increasing cases involving AFO which prove to be an effective tool for the authorities. As for individuals or companies who are subject to such applications or orders, you might be asked by the relevant authorities to provide confidential documents on source of funds or be asked to have face-to-face interviews.

Despite this not being a criminal investigation, we strongly recommend that independent legal advice is sought before engaging with the relevant authorities or providing sensitive information which might be incriminating. This is especially the case among individuals who might have considerable amount of cash deposit into their account. There is a possibility that this conduct raises suspicions that the accounts were used as money exchange facility (without regulation) or money laundry, and that the deposit in effect, is likely to be seized as proceeds of crime or unlawful conduct.

The caseworker for this case Yitong Guo (Solicitor); the case is led by Evveline Loh (Litigation Supervisor).

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Most postgraduates on student visas to be banned from bringing dependents to the UK

Undergraduate students are not permitted to bring their partner and children to the UK when they come to the UK to study. However, until now, all postgraduate students have had the potential to do so.

That was the case until this week, when the Home Office announced new restrictions to the student visa route. Postgraduate students will no longer be allowed to bring family members to the United Kingdom while they study unless they are on a PHD program or postgraduate research program.

The Home Office also announced that those on a student visa would no longer be able to switch to a work visa prior to their studies being completed. You can find out more about that change is our previous article here.

Rise in dependent visas

The Home Office has announced this new restriction on family members of students in light of the substantial increase in dependent visa in the UK. The new reforms will come into effect in January 2024, however the exact date is yet to be confirmed.

In the latest immigration figures announced today by the Office for National Statistics (ONS), it was revealed that student visas were up by 22% in 2022 at 480,000. The figure for dependents was also relatively high at 136,000, overall double 2021’s figure of 55,000 and over seven times 2019’s figure of 19,000. This goes some way to explaining the government’s desire to heavily reduce these figures as part of their overall aim to cut migration.

Students with a visa have to provide documents proving their relationship to their dependents, who must pay £490 for a visa, and also contribute an annual surcharge of between £470 and £624 towards the NHS. Postgraduate students also need to show that they have sufficient money to support their family in the UK.

If you are presently a postgraduate student here in the United Kingdom and wish to bring your family to the United Kingdom, contact us now as once the new rules come in next year it will be too late.

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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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