What new routes and changes to existing routes have been announced by the Home Office in 2023’s first Statement of Changes?

The government has announced the latest statement of changes in the immigration rules, titled HC1160. These provisions have been made under Section 1 (4) and Section 3 (2) of the Immigration Act 1971. These are the first statement of changes to the immigration rules since 18^th October last year, and as a result are relatively substantial. Introduced are a number of new visa routes, as well as changes to existing routes. In this article we will cover some of the major changes outlined by the Home Office which will take effect from 12^th April 2023.

Keep reading to learn more about these important changes announced by the Home Office, and how they could impact you.

Introduction of the Innovator Founder route

One of the most eye-catching announcements is the introduction of the brand new Innovator Founder route, which will kick start from 13^th April 2023. While there are currently provisions in place for those wishing to come to the UK in order to set up an innovative business, namely the Innovator visa, the Innovator Founder route replaces the Innovator route entirely. The Innovator Founder route introduces:

The removal of the £50k minimum funds requirement
Removing restrictions of Innovator migrants from engaging in employment outside of the running of their business as long as it is in a skilled role (RQF Level 3 or above)
Closure of the Start-up route to new initial applications other than those issued prior to 13^th April 2023

The removal of the £50k requirement in particular gives more flexibility to innovators while retaining the requirement for an innovative business idea with sufficient funds to deliver on it. Furthermore, this removal also means that the there is no longer any need for the Start-up route as neither route will require access to £50k of funds.

Updates to employment requirements in work routes

A number of visa routes including the skilled worker/global business mobility/scale-up and seasonal worker routes are also being updated.

Perhaps unsurprisingly given the current levels of inflation, salary thresholds and going rates for individual occupations are being updated. This also means the minimum salary requirement of at least £25,600 for Skilled Worker, will be increased to £26,200 from 12th April 2023.
For work routes which require applicants to have a specific job offer, applications will be refused if the decision maker has “reasonable grounds to believe that the job does not comply with the National Minimum Wage Regulations or the Working Time regulations”.
Jury service and attending court as a witness will now be valid reasons for absence from employment in relation to consideration about continuity of employment

A minor change has been introduced to the skilled worker route which confirms the route applies to those “working in UK waters”, as per section 43 of the Nationality and Borders Act 2022.

Meanwhile, a change is being made to the Global Business Mobility route in line with commitments the UK has made in the UK-Australia Free Trade Agreement. This changes means that Australian nationals and permanent residents will not need to provide that they have worked for their overseas employer for 12 months prior to coming to the UK to open a branch or subsidiary of their Australian employer.

Changes to the EU Settlement Scheme (EUSS) and EUSS family permit

A number of changes have been made to the EUSS and EUSS Family Permit.

These are as follows:

Durable partners – A durable partner must have had another lawful basis of stay in the UK before the end of the transition period in order to rely on that residence if they were not documented as such
Key rulings such as Zambrano, Chen and Ibrahim & Teixeira are all being brought within Appendix EU of the immigration rules under the concession that relevant cases “are not excluded from eligibility by having leave to enter arising from arrival in the UK with an EUSS family permit
Cancellation – A person’s EUSS leave is to be cancelled where the relevant threshold is met relating to a person who is subject to a travel ban imposed by the UK or the UN Security Council. This is subject to right of appeal.
EUSS family permits issued from 12^th April are to be valid in all cases for six months from the date of decision. These could previously be as short as four months.
Relevant EEA or Swiss citizens will be prevented from being granted pre-settled or settled status as a result of sponsoring a EUSS family permit.

Changes to the Youth Mobility Scheme (YMS)

People from a number of places including Australia, Hong Kong and Canada are eligible for the Youth Mobility Scheme. Changes are being made to this in line with the UK’s arrangement with New Zealand. The age range for those from New Zealand will now be expanded from 18-30 to 18-35, while New Zealanders will also now be able to stay for 3 years instead of 2.

Meanwhile, the quote for the number of places available to each participating country has also been updated.

Introduction of new Appendix Adult Dependent Relative

Going forward, the rules in Appendix Adult Dependent Relative will now be aligned with suitability at settlement on all Article 8 human rights routes. The applicant may therefore be refused if they have committed certain serious crimes and are applying for entry clearance or permission to stay.

Furthermore, if an applicant fails certain suitability rounds but their removal would breach Article 8 of the European convention on Human Rights, they must complete a longer qualifying period before being able to settle in country.

Introduction of new Appendix Family Reunion (Protection) and new Appendix Child joining a Non-Parent Relative (Protection)

Changes to Appendix Family Reunion and new Appendix Child joining a Non-Parent Relative (Protection) replace existing provisions for leave to enter and remain as both a partner and child of a person with protection status in the UK. These changes are part of an attempt to simplify the immigration rules following a report by the Law Commission.

As part of these changes, a four stage decision-making process has been introduced for both. These are:

Validity
Suitability
Eligibility
Decision

These are part of a reformatting of the immigration rules, no specific policy changes have been made. Furthermore, the definitions of ‘protection status’ and ‘refugee leave’ have been added to the rules. These terms must be referred to when applying Immigration Rules to applications.

Changes to the Long Residence rules

Finally for today’s article, changes have also been made to Long Residence rules. These changes will be much-welcomed by those affected, with the previous rules bringing confusion around what constitutes lawful residence in the long residence rules.

These changes mean that any period on immigration bail will not count towards the qualifying period for long residence in any circumstances.
Time as a visitor, short term student and seasonal worker will also not count towards long residence.
Someone who has spent time on immigration bail or in the UK on temporary permission who is later granted permission on another basis will still be able to qualify for long residence settlement. However, due to these changes they will now have to wait longer to do so.

These are all of the changes announced in the first Statement of Changes in 2023 which we will be discussing today. There are further updates to Electronic Travel Authorisations (ETA), as well as Global Talent, Seasonal Worker and Temporary Work routes. We will soon post another follow-up article to explain the new changes further.

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/

Subscribe to our weekly newsletter to get our latest articles straight to your inbox.

Or, download our free app! You can launch an enquiry, scan over documents, check progress on your case and much more!

lisaslaw@web

See Full Bio

Landmark case: ‘Superior landlords’ not liable for Rent Repayment Order (RRO)

By Evveline Loh

A landmark case has just been handed down on 1st March 2023 by the Supreme Court in the case of Rakusen (Respondent) v Jepsen and others (Appellants). This has been a long awaited decision as it has now been ruled that for rent-to-rent arrangements, tenants are not allowed to seek redress from superior landlords (i.e. freeholders or leaseholders).

Summary of the case

In 2016, Martin Rakusen (“Mr Rakusen”) granted a tenancy to Kensington Property Investment Group (“KPIG”). The agreement allows KPIG to sublet individual rooms within the flat to different tenants. The rooms were subsequently rented out to three tenants namely Mikkel Jepsen, Ronan Murphy and Stuart McArthur under separate tenancy agreements. Given the number of occupants, such an arrangement required a House in Multiple Occupancy licence. Consequently, it was a breach of the Housing and Planning Act 2016 (the “Act”) without one and the sub-tenants applied for a rent repayment order (RRO) against Mr Rakusen for such failure.

The issue that arises is who the landlord would be under such an arrangement. The Act is not clear regarding whether the superior landlord, Mr Rakusen, or the immediate landlord, KPIG would be liable.

The sub-tenants in this case made an application against the superior landlord for an RRO. It entitles them to seek all rent collected over the duration of the breach up to a maximum of 12 months.

The First Tier Tribunal held that Mr Rakusen was the landlord of the flat. Hence, he was liable for such a breach. Mr Rakusen appealed against the decision and the case was heard in the Upper Tribunal. The Upper Tribunal agreed with the First Tier Tribunal’s decision. Mr Rakusen then appealed to the Court of Appeal which disagreed with the Tribunals. The court held that Mr Rakusen did not receive any rent payment from the sub-tenants. As such, it found that he should not be ordered to repay the sub-tenants.

The sub-tenants then appealed to the Supreme Court which was heard on 26 January 2023 and the judgment was released yesterday.

Judgment

The Supreme Court gave a unanimous judgment and decided that the superior landlord should not be liable, and that the immediate landlord that received the rent should instead be liable. It was held under paragraph 28:

“This straightforward interpretation links the landlord with the tenancy that generates the relevant rent. It renders it artificial and unnatural to construe the opening words of section 40(2) as referring to any landlord other than the landlord under the tenancy which generates the relevant rent, that is the rent to be repaid under section 40(2)(a) and the rent in respect of which the universal credit is paid under section 40(2)(b). It excludes a superior landlord because it is not the “landlord under” the tenancy which generates the rent.”

Our comments

This news is widely welcomed by superior landlords as it gives clarity to those who are on the rent-to-rent scheme. The clarity from this judgment would mean that rent-to-rent companies are responsible to ensure all legal requirements are met given they are the ones receiving rent. This will also prevent rogue immediate landlords from denying responsibilities.

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/

Subscribe to our weekly newsletter to get our latest articles straight to your inbox.

Or, download our free app! You can launch an enquiry, scan over documents, check progress on your case and much more!

lisaslaw@web

See Full Bio

Courts agree with the Home Office on relevance of experience and qualifications when applying for leave to remain on the basis of setting up a business

The appellant is a Turkish national that applied for leave to remain under the European Communities Association Agreement (ECAA) in order to establish himself in business (ECAA Business Visa). His proposal involved the acquisition of an existing grocery shop and its development. He was intending to buy an existing business, organic grocery store in the Highbury area of North London.

This case focuses on the question of whether the appellant had the business experience and qualifications to apply for leave to remain on the basis of setting up his own business. It therefore provides an important lesson for situations of this kind.

Background

His business plan identified the range of foods to be provided, and the sale strategy of the business was described as “straight forward”. The appellant was described as “a young, energetic and enthusiastic businessperson” who “… will be responsible for management, staffing and daily operations.

The Home Office refused the application stating that “No evidence has been provided to demonstrate that [the appellant] possesses any experience or qualifications to ensure the role can be carried out successfully”. Additional concerns were identified relating to the “young age” of the appellant, the absence of the list of potential or existing clients, and whether sufficient funds existed to cover the investment.

The Appellant submitted a pre-action protocol letter stating that there was ‘there is no legal requirement that the applicant should have any experience or qualification to invest in a business.’

The Home Office responded by saying that: “Whilst you claim there is no legal requirement to have experience or qualifications to run a grocery store business and therefore unreasonable to highlight that such experience or qualification is needed.’

The Appellant commenced Judicial Review Proceedings.

Decision – R (on the application of Agca) v Secretary of State for the Home Department [2023] EWCA Civ 56

The Court considered this case and confirmed that the difficulty for this appellant is that he provided no evidence of any relevant business experience nor of any understanding of business and financial management.

The Court held that it is not difficult to understand that such a requirement of experience is required as it relates to the finances, sales and stock of the business and of managing staff. In the absence of this the respondent’s decision was reasoned and rational.

Our comments

The findings show the importance of ensuring that the business plans are carefully produced, ensuring that any potential issues are addressed. In this case, the appellant lack experience and qualifications, and failed to provide evidence as to why the business plan would be effective without these key components.

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/

Or, download our free app! You can launch an enquiry, scan over documents, check progress on your case and much more!

iPhone version.

Android version.

lisaslaw@web

See Full Bio

Local authorities may be forced to pay out millions of pounds after homeowner wins £300k Japanese knotweed case

“Japanese knotweed”. The mere mention of this plant is enough to strike fear in the hearts of homeowners, property developers and landlords up and down the country. However, the High Court made a recent key judgment which marks a new milestone in the “Japanese knotweed debate” and may turn the tide on who bears responsibility for Japanese knotweed in property disputes.

In this case, Japanese knotweed grew on a piece of council land which was neglected all year round which resulted in it invading the property of a nearby homeowner, Marc Davies. This subsequently caused the value of the property to plummet. As a result, Davies took legal action against Bridgend County Borough Council in south Wales. The two sides battled in court for several years, with Davies eventually winning £4,900 in damages.

Although the amount of compensation is not particularly high, the local council is facing a £300,000 legal bill. Another interesting aspect of the case is that the lawyer in charge became popular overnight after winning the lawsuit. He has already acted in roughly 200 cases, and expects to take in a further 100, with claims amounting to as high as 10 million pounds.

Keep reading to learn more about the latest development in the approach towards Japanese knotweed.

Background

The origins of this story first began back in 2004, when Marc Davies bought a property in a village near Bridgend, Wales. Davies found that there was an abandoned railway next to the property, with some plants were growing on the land of the railway. However, he did not realize that these plants were the infamous “Japanese knotweed”.

The first summer after Davies moved into his new property, he noticed the still unidentified plants were growing at an alarming rate. Later, the plants also gradually moved from the railway across the clearing and from the clearing into the garden border of Mr Mark’s property.

It was not until 2017 that he identified the plant as “Japanese knotweed”. Davies said on the situation: “I felt helpless because it was the roots that had encroached under my land, and although Japanese knotweed was touching my boundary I could not physically see its presence on my land.”

In 2019, Davies raised the issue with the local council. It is understood that the local government had only been dealing with the Japanese knotweed problem since 2018.

However, due to the existence of the plant, Davies’ property value was lost, even after the plants were treated. Due to the knotweed, Davies argued he was unable to carry out landscaping works or put up a shed or building in his garden. He sold the property at a greatly reduced price from needing to declare the presence of knotweed to the new buyer. Davies then filed a lawsuit over the value of his property, seeking compensation from the local government for his losses.

Decision

Despite winning his initial case, Davies was denied damages as the two judges ruled that the law does not allow knotweed damages for economic loss. The Welsh Magistrates Court said Japanese knotweed had been on council land for more than 50 years and had spread on Davies’ property even before he bought it.

Davies refused to accept the decision and appealed to the court. According to his lawyer Tom Carter:

“The judge was wrong to find that diminution in value was not recoverable because although it was consequent on a nuisance, it was pure economic loss because there was no physical damage. The presence of knotweed rhizomes in the soil constitutes damage. Damages for diminution in value are consequential loss, being consequential on that damage. They are not pure economic loss.”

On appeal, the High Court judge agreed, stating that the decline in the property’s value was a consequence of the nuisance caused by the knotweed.

Once that natural hazard is present in the claimant’s land – to a non-trivial extent – the claimant’s quiet enjoyment or use of it, or putting it another way the land’s amenity value, has been diminished.

“For the purposes of the elements of the tort of nuisance, that amounts to damage and it is the result of a physical interference. If consequential residual diminution in value can be proved, damages on that basis can be recovered. They are not pure economic loss because of the physical manner in which they have been caused.”

In the end, Davies won the senior judge’s ruling. Davies has the right to claim compensation from the local government for the knotweed. He is understood to have been awarded £4,900 in compensation. In addition, the local government must pay the legal fees of roughly 300,000 pounds.

Our thoughts

This longstanding case has had many twists and turns, and the lower court and the higher court had different views. After several years, the owner eventually won compensation. This case is very representative of many situations and could affect thousands of other homeowners who have been affected by Japanese knotweed. More importantly, this case may open up similar claims against local governments and railway companies.

The Davies case also sets an important precedent, which is that the loss of the value on the house from Japanese knotweed can be recovered. We would suggest that anyone who can prove that knotweed grows on their land or on private property, and that the knotweed came from property owned by the government or a railway, can sue for damages.

What should you do if your neighbour has Japanese knotweed?

Japanese knotweed continues to be a common issue. Recently, an accountant named Jeremy Henderson sold his South London home and was left with a £200,000 court bill after Japanese knotweed was found in his garden. This highlights the danger of the presence of Japanese knotweed.

If your neighbours have Japanese knotweed on their property, they are not legally obliged to remove Japanese knotweed from their own property. However, if Japanese knotweed starts encroaching on your property, it constitutes a private nuisance and your neighbours can therefore be taken to court. Growing or causing Japanese knotweed to grow in the wild is an offense under the Wildlife and Countryside Act 1981. Owners who let Japanese knotweed spread can end up being fined £5,000 or even jailed.

Therefore, it is the property owner’s responsibility to check their homes for Japanese knotweed and, if present, to stop the spread of Japanese knotweed from your land immediately.

If you find Japanese knotweed on your neighbour’s land, we recommend:

1. First step, make sure the plants you identified are actually Japanese knotweed.

Japanese knotweed can be difficult to identify, especially since the rhizome (or root system) can develop underground. We strongly recommend that as soon as you suspect Japanese knotweed in a neighbour’s home, you have it evaluated by an expert immediately.

2. The second step, once you confirm that the plants are Japanese knotweed, notify your neighbours immediately.

Many times, your neighbours may not even know this weed is growing in their garden. If left unmanaged for long periods of time, it can cause significant damage. You can warn your neighbours of the possible hazards the knotweed may pose and their possible legal liability, giving them the opportunity to rectify the problem immediately.

We recommend that you notify them, preferably in writing, so that you can record when you discovered the problem in case you need it in the future. You can take legal action only after they become aware of the problem and fail to treat or remove Japanese knotweed.

3. Finally, take legal action as last resort. If your neighbour doesn’t take action, you can file a lawsuit in court seeking compensation.

If you think that your property is affected by Japanese knotweed in nearby properties, please contact Lisa Law Solicitors further, and we will be happy to assist you.

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/

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

lisaslaw@web

See Full Bio

High Court Refuses to Strike Out Negligence Claim Against Home Secretary

In a recent judgement, Aruchanga v Secretary of State for the Home Department [2023] EWHC 282 (KB), the High Court refused the Home Secretary’s application to strike out the claimant’s negligence claim against them.

The Claimant arrived in the UK in May 1995 from Rwanda and claimed asylum upon arrival. He was granted refugee status in December 1997. In 1999, the Claimant’s house was burgled and documentation relating to his refugee status was stolen.

The claimant made several attempts over the years to obtain replacement documentation from the Home Secretary to confirm his refugee status, however no documentation was provided.

Aruchanga v Secretary of State for the Home Department [2023] EWHC 282 (KB)

The court considered the application to strike out the claim made by the Home Secretary on the grounds that they disclosed no reasonable cause of action and/or that they amounted to an abuse of the court’s process.

The Court first considered whether it was arguable that the Secretary of State owed the claimant a common law duty of care to provide confirmation of refugee status when requested.

The Court adopted the three-stage approach set out in Caparo Industries plc v Dickman [1990] 1 All ER 568, and confirmed the following:

1. It was, arguably, reasonably foreseeable that the claimant’s immigration status could be at risk in the absence of confirmation, given the burden on him to prove that he had lawful leave to remain.

2. He could be subject to deportation or to detention pending deportation in absence of confirmation.

3. It was arguable that there was a sufficient relationship of proximity between the Secretary of State and the claimant, given that only the Secretary of State was able to confer refugee status and the document remained, apparently, the only written proof of status

Accordingly, the Court decided to not strike out the claim made by the claimant. The Court held that the merits of the Claimant’s claim was arguable.

Our comments

The findings in Aruchanga v Secretary of State for the Home Department [2023] EWHC 282 (KB) On 14th April 2022 are much welcomed. The decision may provide a reminder to the Home Secretary of their duty to ensure that maintain accurate records that are accessible. The importance of this cannot be understated, as failure to do so can cause significant barriers here in the UK.

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/

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

lisaslaw@web

See Full Bio

India Young Professionals Scheme Visa – how to apply

The India Young Professionals Scheme visa permits young people aged 18 to 30 years old to travel and live in the UK for up 2 years. This presents a fantastic opportunity for young people from India to be able to travel to the UK, and, providing that the applicant is a graduate and has enough savings, offers a risk free opportunity.

Whilst holding the visa, applicants are permitted to work in the UK without the need of sponsorship from a UK employer. This sets it apart from other schemes such as the skilled worker visa which requires sponsorship.

Considering applying for any other type of UK visa? Start your journey today by contacting us here.

How does the India young professionals scheme ballot work?

In order to apply for a visa for the India Young Professional Scheme, you must enter the ballot.

The ballot will open at 1:30pm India Standard Time on 16th July 2024, and close at 1:30pm India Standard Time on 18th July, giving applicants 48 hours to enter. Once the ballot is live, you can click here to enter.

You can only enter the ballot if you are an Indian citizen and eligible for the visa. See below for more information on eligibility.

There were 3,000 visas available in the 2024 ballot and all successful applicants are selected at random. Most places were made available in the February ballot, with the remaining places made available in the July ballot.

What information will I need to provide for the ballot?

In order to enter the India Young Professionals Scheme ballot, entrants will need to provide the following information:

Name
Date of birth
Passport details
A scan or photo of your passport
Phone number
Email address

You will need a number of documents during the process including:

A valid passport or other document that shows your identity and nationality
Evidence that you have at least £2,530 in your bank account, for example bank statements
Evidence of your qualifications
Your tuberculosis (TB) test results if you’re living in India or another listed country
A police report or clearance certificate from India – check how to apply for criminal records checks
You will also need a blank page in your passport for your visa.

Eligibility for the India Young Professionals Scheme

To be eligible to enter the ballot, you must:

Be an Indian national or citizen
Aged between 18 and 30 years old
Be at least 18 years old on the date you plan to travel to the UK
Hold qualification at a bachelor’s degree level or above,
Have £2,530 in savings.
Not have any children under the age of 18 who live with you or who you are financially responsible for

Furthermore, you cannot apply if you have already been in the UK using this scheme or the Youth Mobility Scheme visa.

You can have an equivalent overseas qualification to a UK bachelor’s degree at degree level or above. This is level 6,7 or 8 on the UK Regulated Qualifications Framework. It is worth checking with your college or university if you aren’t sure whether you are eligible.

Successful applicants

Should you be successful, you will be informed 2 weeks after the ballot closes. You will then have 90 days to submit an application for the visa. You will need to pay the following Home Office fees:

pay the application fee of £259
pay a healthcare surcharge of £940

After applying, providing your documents and proving your identity, you should expect to hear back regarding a decision within 3 weeks.

The Home Office may require more information. If this is the case, you will be contacted about your application taking longer. This may be because:

Your supporting documents need to be verified
You need to attend an interview
Of your specific personal circumstances, such as if you have a criminal conviction

If you are successful in the India young professionals scheme ballot but choose not to apply for the visa, you do not need to notify the Home Office. You can ask to cancel your application, however you will only get a refund if UK Visas and Immigration (UKVI) have not started processing your application.

Once you have been granted a visa, this will be for a period of 24 months where you can live, work and/or study in the UK.

What if your application is unsuccessful?

Unfortunately if your application is unsuccessful you cannot appeal this, the results are final. However, you will be able to apply for future ballots. The Home Office have suggested that the next one is likely to be held in late July.

Final thoughts

The India young professionals scheme presents an excellent opportunity for young Indian citizens to live and work in the UK. Nevertheless, this is a relatively limited scheme with just 3,000 visas available.

Lisa’s Law specialises in a range of aspects of immigration law, and are able to help with visa applications, from graduates visas to skilled worker visas to high potential individual visas. These applications can sometimes be tricky, and any small mistake can be costly for your chances of living in the UK. But by contacting Lisa’s Law, you can have peace of mind.

For more articles like this, subscribe to our newsletter today.

Page last updated on 10/07/2024

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/

lisaslaw@web

See Full Bio

MEES regulations make it illegal to let ‘F’ and ‘G’ Commercial Properties from April – how to prepare for EPC changes

Commercial property landlords should be aware of an important deadline coming up in the very near future. On 1^st April, the application of minimum energy efficiency standards (MEES) for commercial properties come into effect. This will mean that landlords who own properties which are rated either ‘F’ or ‘G’ on the energy performance certificate (EPC) scale will be prohibited from continuing to lease them. Consequently, landlords in this situation will be required to make the necessary improvements, regardless of whether the property was leased out before or after MEES comes in.

MEES has already applied to the grant of new leases or the extension of existing leases since 1^st April 2018. These changes will be of interest from a range of people, including landlords, investors, developers and tenants due to the impact it will have on the property market.

Despite the freezing temperatures, energy efficiency is a hot topic at the moment due to the energy crisis and large increase in energy prices. While households and businesses alike have been financially supported following legislation brought in by the short-lived Truss government, businesses are set to lose that support by April 2023, when it will be replaced by the less comprehensive “Energy Bills Discount Scheme”.

It is important to point out that these changes to the Minimum Energy Efficiency Standards will only apply to commercial properties. Since April 2020, residential properties have already been required to be rated E or higher. This will be upgraded in 2025 to a rating of C for new residential lettings. Previously, standards for commercial properties have not been as high, but this new legislation brings commercial properties in land with the residential sector.

Keep reading to learn more about the changes and what they will mean for commercial landlords.

What is an EPC rating?

Firstly, what is an EPC rating? You might already have a fair idea of what an EPC rating is if you have ever rented or bought a property. Put simply, an EPC rating provides a useful indication of how energy efficient a property is. This is helpful information for anyone looking to lease or purchase a property, whether it is residential or commercial.

Properties are rated on a scale from A to G. As previously mentioned, since April 2020 residential properties have to be rated at least an ‘E’, with commercial properties now also required to be rated as such.

Owners of commercial properties that do not have an EPC rating of A to E will need to carry out sufficient works in order to bring the properties up to scratch, register a valid exemption, or face the consequences of a penalty. While MEES does not prohibit the sale of a property which falls into the ‘F’ or ‘G’ energy performance category, they are unlikely to be as easy to sell given that it will no longer be possible to lease properties in these categories.

What are the penalties?

Properties which do not comply with the new regulations can face a both a civil financial and publication penalty. These penalties will vary depending on a few factors including the length of the breach and the rateable value of the property. For a breach of less than three months the maximum penalty is the greater of £5000 or 10% of the rateable value of the property at the date of service of the penalty notice, up to a max of £50,000.

On the other hand, breaches of three months or more would naturally face a greater penalty. For a breach of this length of time, the maximum penalty would be £10,000 or 20% of rateable value of the property on the date the penalty notice was served, up to a max of £150,000.

In addition to a financial penalty, there is also the possibility of a publication penalty. This would mean information about the breach being on the Government’s PRS Exemptions Register. The public nature of this could therefore draw negative attention which the landlord would not want.

What exemptions are there?

While not common, there are certain exemptions for commercial landlords to the minimum energy efficiency standards. These main exemptions include:

‘7 year payback’ – If the improvement works made to the property does not pay for itself over a seven year period.
Devaluation – This type of exemption occurs where an independent survey from the RICS advises that measures which meet specific energy efficiency standards would reduce the market value of the property or the building it is part of by more than five per cent. This exemption generally lasts 5 years.
Consent – Another exemption may apply where the landlord has been unable to obtain necessary third-party consent such as local authority planning consent, consent from mortgage lenders or having the tenant’s consent to works.
All improvements made – Quite simply, this is where the property remains sub-standard despite all “relevant energy efficiency improvements” having been made. This exemption lasts for five years before the landlord must try to improve the EPC rating again

There are some other exceptions which do not need to be registered on the PRS Exemptions Register:

Short leases – leases not exceeding six months (this includes when there is no previous continuous period of occupation exceeding 12 months and no right to renew)
Long leases – leases of 99 years or more

Our thoughts

We welcome these measures to increase standards within the commercial property sector. With the current Energy Bill Relief Scheme expiring at the end of March 2023 and replaced by an inferior set of measures, any small improvements to improve energy efficiency must be welcomed. While landlords may feel that the MEES are a threat to them, improvements to the energy efficiency of their properties will only help to increase the value of their properties. With the demand for energy efficiency properties higher than ever, this promises to be a good opportunity for landlords, tenants and developers alike.

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/

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

lisaslaw@web

See Full Bio

Lacoste’s handling of flexible working request found to be indirect discrimination against former manager

Although flexible working has been around for a while now, it reached a new level of prominence during the Covid-19 pandemic due to the need to alter working habits. Post-pandemic, employees and employers alike are continuing to favour flexible working more and more as a way to boost staff retention, work-life balance and also productivity. Today, we are going to look at a recent indirect discrimination case relating to an application for flexible working. The case centres around a retail manager at a Lacoste store who was told that she could not work part time after returning from maternity leave. However, an appeals tribunal found that this amounted to discrimination by Lacoste after she originally lost her claim for indirect sex discrimination.

The government reportedly plans to give employees the right to request flexible working from day one at their new job. You can read more about these plans, as well as the current flexible working rules more generally by clicking here.

Keep reading this article to learn more about this case, flexible working and indirect discrimination more generally.

Background

The claimant, Melissa Glover, worked as an assistant store manager at the fashion retailer Lacoste. Prior to her maternity leave, Glover worked 39 hours per week on a flexible basis. In November 2020, while she was on maternity leave, she made a request to work three days a week. This request was rejected, and following the completion of her maternity leave in March 2021 the claimant was placed on furlough as a result of the Covid-19 pandemic.

Glover appealed the decision to reject her flexible working request that same month. The appeal was upheld, with the claimant offered part-time work on any four days of the week. This was offered on a six-month trial period, but would be problematic in terms of the claimant’s childcare. It was not accepted by the claimant and her solicitors wrote to Lacoste to ask them to reconsider her request. If this request was not accepted, Glover would resign and claim constructive dismissal.

This approach was successful, and Glover returned to work on the basis of her original flexible working request after her furlough period had ended in April 2021. Despite this, the claimant presented the employment tribunal with a claim for indirect sex discrimination on the basis of the original rejection of her flexible working request.

Decision

The claimant’s claim for indirect sex discrimination was rejected by the employment tribunal. The employment tribunal claimed that the claimant had not suffered any disadvantage due to the fact that Lacoste had reversed their decision to not allow the flexible working request. As a result, the PCP (provision, criterion or practise) did not apply to the claimant.

PCP is the application of a workplace policy or practise in relation to indirect discrimination. Under the Equality Act 2010, there are two main types of discrimination: direct and indirect. As the word suggests, indirect discrimination is usually unintentional. The provision, criteria or practise applies to everyone regardless of any of the protected characteristics defined in the Equality Act. Pregnancy and maternity were the relevant characteristics mentioned in this case, one of nine protected characteristics overall.

As a result of the rejection of Glover’s employment tribunal claim, she appealed to the Employment Appeals Tribunal (EAT). The appeal was allowed by the EAT, who found that Glover was disadvantaged at the point that Lacoste rejected her flexible working request, despite being on leave at the time.

The Employment Appeal Tribunal decided that the PCP applied when the appeal process had been completed. This applies even if the decision is reversed at a later date by the employer, as it was in this case. The employment tribunal had misinterpreted the decision made in Little v Richmond Pharmacology which was used by the EAT as justification for the rejection of Glover’s initial claim. As a result, the EAT found that the PCP did apply in this case.

The case will now return to the employment tribunal in order to determine the remaining issues including the specific nature of disadvantage suffered by the claimant. This will help to ascertain the appropriate award for general damages.

Our thoughts

Employers should be mindful of the consequences when it comes to indirect discrimination and PCP. While employees currently have limited statutory rights when it comes to making flexible working requests, it should be noted that businesses are required to consider the request carefully and only refuse it for a valid business reason. While in this case Lacoste held that managerial staff must work full-time and be fully flexible, this was found to be indirectly discriminatory on the basis that Ms Glover was unable to do so following the birth of her child.

Flexible working is an important equaliser when it comes to the workplace as it allows for a level playing field between different types of people who may otherwise be discriminated against. The government has announced plans to expand flexible working legislation by allowing employees to request flexible working from day one among other measures which you can read about here.

We would advise employers to proactively review their policies and rules to ensure that they are not unwillingly discriminating against their employees. As was seen in this case, failure to apply PCP has the potential to be discriminatory even when it is not deliberate. If you are unsure of your rights when it comes to request flexible working, or you would like help navigating the legal ramifications of flexible working for your business, feel free to contact us for legal advice and we will be happy to assist you.

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/

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

lisaslaw@web

See Full Bio

Court finds that Chikwamba only relevant in certain circumstances

In a recent judgement, Alam and another v Secretary of State for the Home Department [2023] EWCA Civ 30, the Court dismissed the Appellant’s appeals against the refusal of their leave to remain application.

The Appellants (SA and AT) both lived in the UK unlawfully. They wed British citizens and made an application for leave to remain in the UK. The requirements under Appendix FM meant that the Appellants should have made this application from abroad.

The Appellants inter alia relied on the judgement of Chikwamba v Secretary of State for the Home Department [2008] UKHL 40 (Chikwamba). In Chikwamba it was held that it would be disproportionate for the Appellant to have to return to their home country simply to make an application for entry clearance that would be bound to succeed. The Court went on to state that in rare cases that the Tribunal should dismiss an appeal under Article 8 solely on the ground that the Appellant could re-apply for entry clearance from their home country.

Alam and another v Secretary of State for the Home Department

The Court considered this case and considered the interpretation of the decision made in Chikwamba and whether this had any bearing on this case. The Court determined that Chikwamba is only potentially relevant on an appeal when an application for leave to remain is refused on the narrow procedural ground that the applicant must leave the United Kingdom in order to make an application for entry clearance. Even in such a case the full analysis of the article 8 claim is necessary balancing against the Public Interest Considerations.

Section 117B is headed ‘Public interest considerations applicable in all cases’. It lists five considerations:

1. The maintenance of effective immigration control is in the public interest.

2. It is in the public interest that people who ask to enter, or to stay in, the United Kingdom, are able to speak English (for two stated reasons).

3. It is in the public interest that such people are financially independent (for two similar reasons).

4. ‘Little weight should be given’ to a private life, or to a relationship with a qualifying partner, which is established when a person is in the United Kingdom unlawfully.

5. ‘Little weight should be given’ to a private life or to a relationship formed with a qualifying partner when a person’s immigration status is precarious.

The Court held in both cases in which neither appellant’s application could succeed under the Rules, to which courts must give great weight. The finding that there are no insurmountable obstacles to family life abroad is a further powerful factor militating against the article 8 claims, as is the finding that the relationships were formed when each appellant was in the United Kingdom unlawfully. The relevant tribunal in each case was obliged to take both those factors into account, entitled to decide that the public interest in immigration removal outweighed the appellants’ weak article 8 claims, and to hold that removal would therefore be proportionate.

Our comments

The findings in Alam and another v Secretary of State for the Home Department [2023] EWCA Civ 30 provide a reminder that the principles of Chikwamba cannot be simply relied on to avoid making an application for leave to enter from abroad. An applicant must have strong article 8 grounds which renders public interest in removal to be disproportionate.

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/

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

lisaslaw@web

See Full Bio

News and Insights

Introduction of the Innovator Founder route

Updates to employment requirements in work routes

Changes to the EU Settlement Scheme (EUSS) and EUSS family permit

Changes to the Youth Mobility Scheme (YMS)

Introduction of new Appendix Adult Dependent Relative

Introduction of new Appendix Family Reunion (Protection) and new Appendix Child joining a Non-Parent Relative (Protection)

Changes to the Long Residence rules

Summary of the case

Judgment

Our comments

Background

Decision – R (on the application of Agca) v Secretary of State for the Home Department [2023] EWCA Civ 56

Our comments

Background

Decision

Our thoughts

What should you do if your neighbour has Japanese knotweed?

Aruchanga v Secretary of State for the Home Department [2023] EWHC 282 (KB)

Our comments

How does the India young professionals scheme ballot work?

What information will I need to provide for the ballot?

Eligibility for the India Young Professionals Scheme

Successful applicants

What if your application is unsuccessful?

Final thoughts

What is an EPC rating?

What are the penalties?

What exemptions are there?

Our thoughts

Background

Decision

Our thoughts

Alam and another v Secretary of State for the Home Department

Our comments

Subscribe to our newsletter

Subscribe Newsletter Blog Sidebar