How do you vary or speed up a visa application you have already made?

Making a visa application is a lengthy process, and waiting for a decision can be very frustrating, especially if you need to travel while waiting for your visa decision.

So, what options do you have? One option is to “upgrade your visa application”. Keep reading this article to find out how to vary or speed up a visa application.

Super Priority Status

If you need to travel urgently, there is a way of switching certain applications to super priority status, even if you didn’t originally do so. This can be done by simply varying the application to the one you had already applied for, but this time submitting it on Super Priority Status. This can be done for both settlement applications and also through permission to stay applications.

Super Priority service fast tracks your application, ensuring that visa decision makers give priority to your application at each stage of the process. This means that you can receive a decision within 24 hours, instead of the multiple weeks it usually takes. It will however cost you £800 per person, so could be quite expensive if you have multiple dependants. Nevertheless, you may feel this is worth it if you need a fast decision.

However, just like when you vary an application, it’s important to remember that you must also vary the applications for dependents as well. In addition to this you must pay the £800 fee per person for the Super Priority service. If your dependants do not have their applications varied, then the dependants’ applications will not be considered.

When completing your application for Super Priority service, you must ensure that you upload the same documents as in your initial application. However, you should ensure that you update any that are out of date. The application date will be your second application, not the previous one, and you must also attend a UKVCAS appointment. This will allow you to submit your biometrics such as your fingerprint and photo ID.

Once this is done, you should receive a decision on your application within 24 hours as a result of your new-found Super Priority status. Before travelling, you must ensure that you wait for your biometric residence permit (BRP) to arrive. You can find out more about the BRP in our comprehensive article here.

Varying the application

One thing you can do is vary your original application. This might seem a bit counterintuitive. Surely this would just reset the amount of time you have to wait for your application to clear?

However, in certain scenarios it may be better for you to vary your immigration application. Take note of the fact that you can only do this if you haven’t yet received a decision! If you have already received a decision on your application, then by that point it’s too late.

You will need to start a new application, however you will be asked if you have an existing application on which you haven’t received a decision. You will need to provide the unique reference number for this application, as well as pay the application fee and immediate health surcharge for the new application. However, you will receive a refund of the previous application fee if you had already paid it.

Some applications allow you to include dependants, so if this is the case then you can include them on your new application. If not, then you should make them aware that they will need to make their own application. As you will be making a new application and they are your dependants, them not making a new application could put your status in the UK at risk.

Depending on the type of visa application, this can help to speed up the process.

Contact your MP

Finally, it might sound like a rudimentary option but contacting your local MP can greatly help your chances of speeding up your application, especially if you don’t have the means of paying for the Super Priority service. As your local representative, MPs can find out more about the delay and help to speed up your application process. This can be an easy, cost-effective way of getting an update or getting a faster outcome.

You should be prepared to provide them with some basic information about your application, such as the date you submitted your application and your unique reference number.

Don’t know who your MP is? Find out here: https://members.parliament.uk/members/commons

Final thoughts

Varying your application is primarily an option for when you are in desperate need of a quicker outcome for your visa application. In other situations, it may not be worth it if you have already submitted an application.

We would advise you to seek legal advice prior to varying an application, as it can be tricky for the uninitiated. Our in-house immigration experts would be happy to assist you with this process.

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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Hussain v Parveen – when is a transnational divorce invalid in the UK?

As a London law firm which deals with clients from a variety of countries and backgrounds, we are used to facing questions about divorces filed outside of the UK. In today’s article we will take a look at an important case (Hussain v Parveen) in which the High Court clarified the validity and related requirements of transnational divorce.

Keep reading to learn more about the case and transnational divorce in general.

Background

The respondent, W, was born in Pakistan and has always been a Pakistani national. Many years ago, W met her first husband, A, in Pakistan, where they married in November 2000. At that time, A was still living in the UK, and he returned to the UK a few weeks after the marriage. Meanwhile, W continued to live in Pakistan.

In February 2008, A filed a petition for divorce in England. In accordance with Pakistan’s 1961 “Muslim Family Laws Ordinance” law, A read Talaq (Islamic way of divorce) in England and gave it in the form of a letter. The letter was converted into a divorce certificate by a mosque in Bradford on February 10, 2008. Subsequently, the mosque sent the divorce certificate to W, who then provided it to the local trade union committee. A certificate was officially issued by the local trade union committee stating that the divorce was effective from 29 May 2008.

In accordance with Pakistani law, the divorce was considered valid to determine that the marriage between A and W was completely over, allowing W to remarry.

W remarries

After the end of her first marriage, W met her second husband, referred to as “H”. On December 19, 2008, they got married in Pakistan. However, unlike W’s first marriage, the second husband brought her to the UK. On March 28, 2009, W came to the UK with H, and has been living in the UK since then. However, W’s second marriage did not go particularly well either, and the marriage broke down.

W’s second husband, H, filed divorce proceedings on April 25, 2018 and received a provisional divorce judgment (decree nisi) in September 2019. Around August 2020, H suddenly applied to revoke the interim decree and applied for annulment of the marriage on the grounds that W was still married to her ex-husband, A, on the date of her marriage to H. Since their marriage was not dissolved in the UK, W has always been married. The application was initially rejected, but W continued to appeal, and the marriage was annulled on the grounds of bigamy.

The British Family Court subsequently held that the marriage between the two parties was indeed invalid. The ruling was based on the fact that W’s divorce proceedings started in the UK and ended in Pakistan. This means that the divorce is an international divorce which, while recognized as valid in Pakistan, is not entitled to recognition under the Family Law Act 1986 in the UK.

According to relevant laws in the UK, if the husband declares talaq divorce in the UK alone, the divorce will not be recognized. Also, if the husband declares the talaq divorce in UK and then notifies his wife and the chairman of the trade union committee in Pakistan or Bangladesh, the divorce is also not recognized. English courts have held that an overseas divorce can only be recognized in the UK if it was initiated and obtained in the same country outside the UK.

The judge therefore ruled that under English law W was in a bigamous relationship with her second ‘husband’, H, and that the marriage was voided under section 11(b) of the Matrimonial Causes Act 1973. W was dissatisfied with this resolution and appealed the decision.

What did the High Court decide?

The point of contention between H and his counsel was that W’s previous divorce is not entitled to recognition under section 45/46 of the Family Law 1986, as the court is obliged to use this regulation to determine whether the wife and husband are legally married on the date of marriage. The court held that under British law, the wife’s previous divorce was in fact an international divorce and had no right to be recognized in the UK. However, this is inconclusive on the question of whether the wife lacks the capacity to marry her husband. The Act does not specify the impact of non-recognition on the ability to marry.

The judge believed that the validity of the wife’s previous divorce should be determined by the laws of Pakistan, under which her first marriage was validly determined. From the perspective of fairness, the court also believed that each case should be viewed on its own merits. W’s first husband lived in the UK for a long time, but W did not live in the UK. Therefore, their divorce had to take place in two places. UK law encourages Muslim Pakistani nationals residing in the UK to obtain divorces in the UK through the talaq process and by post. However, this did not apply to W, who at all relevant times was domiciled and living in Pakistan.

The court held that, according to the Family Law Act 1986, the divorce had no right to be recognized. However, this did not mean that W lacked the ability to marry, because in judging whether W’s marriage and divorce were valid, marriage took precedence over divorce. Therefore, the applicable law is that of the country where the marriage took place, in this case, Pakistan. According to the laws of Pakistan, W’s divorce was valid and her marriage was also valid. Because of this, the appeal was approved and W’s second marriage was declared valid.

Our thoughts

It is important that you know whether your foreign divorce is recognized in the UK for a number of reasons. First of all, you may want to remarry in the UK. If this is the case, then your first divorce needs to be recognized. If it is not recognised in the UK, then it is classed as bigamy and the new marriage is invalid. In addition, divorce can affect issues such as wills and inheritance, immigration, taxes, benefits, and the financial remedies you may have.

So how do I know if our divorce is valid?

Generally speaking, England and Wales recognize most overseas civil court divorces, but there are some basic criteria. Under the Family Act 1986, overseas divorces obtained judicially or otherwise will only be recognized in the UK if:

valid under the laws of the country in which it was acquired
On the relevant date (i.e. the date on which the proceedings commenced), either party was either a permanent resident or domicile or a national of the country.

The UK recognizes overseas divorces obtained by means other than litigation where:

valid under the laws of the country in which it was acquired
On the relevant date (i.e. the date the divorce was obtained), both parties were domiciled in that country, or one was domiciled in this country and the other was domiciled in a country which recognizes the divorce (in this case, the United Kingdom)
Neither party was habitually resident in the UK during the year immediately preceding that date.

This case is different from ordinary marriages. It involves the Islamic divorce rules: talaq. According to traditional Islamic law, a husband is considered divorced when he says “I divorce you” three times in a row. This declaration immediately annuls the marriage. However, the Muslim Family Law Regulations 1961 imposed new requirements: first, the husband must notify the chairman of the district trade union council in writing to declare the talaq divorced. Second, the husband must also give a copy of this notice to his wife. Next, the divorce takes effect at the end of the 90 days (or at the end of the wife’s pregnancy if she is pregnant at this time).

For this special type of divorce, British law stipulates that if the husband declares talaq divorce in the UK alone, the divorce will not be recognized. Divorce will also not be recognized if husband announces talaq divorce in UK and then notifies his wife and union committee chairperson in Pakistan or Bangladesh. That said, UK courts have held that an overseas divorce can only be recognized in the UK if it was initiated and obtained in the same country outside the UK.

Our advice

To be on the safe side, you should therefore make sure your divorce proceedings begin and end in the same country. Although the lawsuit in this case was won in the end, it offers a warning for being aware of the laws around divorce before deciding to go through with it. If W had been aware of the UK’s laws around divorce, perhaps the divorce from her second husband would have been less strenuous.

In conclusion, obtaining recognition of a foreign divorce in the UK can be very complicated and different cases may have different outcomes. We strongly recommend anyone who is unsure to contact a legal professional in the UK to ensure their overseas divorce is valid and does not create any unintended implications.

If you are divorced overseas, please contact us at Lisa’s Law Solicitors immediately. Our family law lawyers can provide you with specific analysis and professional advice based on individual cases.

Have questions? Get in touch today!

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

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January 5, 2023

As Tesco faces ongoing legal action, what exactly is fire and rehire? And can fire and rehire ever be legal?

UK supermarket giant Tesco has recently been embroiled in an ongoing saga with its employees over its fire and rehire practises, culminating in a court battle with the shopworkers union, Usdaw. While fire and rehire has been a contentious issue for several years, it reached particular prominence during the pandemic, with several high-profile cases involving major companies bringing it to the forefront of the media cycle.

Just before Christmas, the Supreme Court gave Usdaw the green light to challenge Tesco’s firing and rehiring of workers on less favourable contracts than the ones they were on previously. Prior to this, Tesco employees had a right to retained pay, which was withdrawn in January 2021. The Court of Appeal had previously overturned a decision by the High Court which banned Tesco from firing and rehiring employees on lower pay at its warehouses in Daventry and Litchfield.

Want to find out more about what fire and rehire is? Keep reading.

What is fire and rehire?

We’ve briefly touched on the concept of fire and rehire already, a practise which allows employers to dismiss their employees by employing them on terms which are better suited to the employer rather than their employees. We will now go into a bit more detail in order to expand on the concept.

Strictly speaking, fire and rehire is not illegal. However, it is certainly a controversial practise and there have been calls by some to outlaw it completely. Despite being lawful, it can cause significant issues in the workplace in terms of workplace relations, morale, and performance. ACAS, a non-departmental body which works with employers and employees produced guidance on the use of fire and rehire practises in 2021. You can read this guide here. ACAS firmly outlines in this report that it considers that fire and rehire should be an option of last resort.

As an employer, should you use fire and rehire?

We would advise that employers should attempt to avoid fire and rehire at all costs, and instead should attempt to consult employees in a genuine and meaningful way. Employers which are transparent about their plans to change their employee’s contracts are likely to face a smoother ride further down the line, such as avoiding legal action. In the case of Tesco and its withdrawal of retained pay, this was not the case. Fire and rehire, also known as dismissal and engagement, has the potential to expose employers to statutory and contractual claims such as unfair dismissal.

While there is a difference between when companies in financial trouble terminate employees’ contracts and rehire them on new terms and when companies pressure low paid workers into agreeing to inferior terms, both should be avoided where possible.

If you do decide to go ahead with fire and rehire, and it affects more than 20 people, then by law you must collectively consult them on the proposed dismissals. Also, remember that even if you plan to rehire the employee, you are still dismissing them. As a result, you must:

have a fair reason for dismissal
follow a fair dismissal process
provide the correct amount of notice
offer the employee the right of appeal against their dismissal

The government announced in March 2022 that a new statutory code would be published which will detail how businesses must hold fair, meaningful and transparent discussions with employees when it comes to proposed changes to employment terms. This came following proposals by the Labour Party to outlaw fire and rehire practises completely following the P&O ferries scandal. However, the government itself does not however plan to make the practise of fire and rehire illegal. As of yet, no date for the introduction of the code has been set.

What to do if you are considering contractual changes for employees?

Fire and rehire happens as a result of a business wishing to change its employees’ contractual changes. As a result, you should be aware of the process by which an employees contract can be changed and the risks involved.

While it might sound obvious, it is important to remember that an employment contract between an employer and an employee is a legally binding document. The terms and conditions of an employment contracts can be agreed in a couple of ways:

In writing, such as a job offer letter
Verbally, such as when you first taken a job

However, there are several methods by which contracts can be changed:

A change is proposed by you or one of your employees, which you then discuss and agree with them
A collective agreement is made with a trade union, who then agree terms and conditions on behalf of your employees and workers.
Employees or workers agree to a clause in the contract which allows you to change certain employment terms in their contract unilaterally
A change occurs over time, with everyone’s agreement implied. This is known as custom and practise.

There are several things you should also consider when it comes to making changes to employee contracts. Firstly, what it is you are actually trying to achieve. Businesses often look to make changes to contracts when they are looking to reduce business costs, however it may be possible to improve efficiencies or cut costs elsewhere. Such measures are likely to be less disruptive.

Making changes to terms of employment can be highly disruptive. If employees are not supportive of the changes, then you risk a number of consequences. These can include damaging relations with your employees, legal action, discrimination, valued employees leaving, and strikes.

Our thoughts

At Lisa’s Law, we would always advise against practising fire and rehire, at all costs. It’s a practise which even in lawful scenarios is highly controversial and often leads to problems further down the line. Like Acas, we would always advise you to consult your employees regarding changing your employees’ contracts, as not doing so can cause friction with staff or people leaving.

If you would like any advice about any issues with changing staff contracts, please do not hesitate to contact us.

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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Is someone who receives an inheritance still entitled to means-tested benefits?

Today’s article focuses on the importance of legal advice on wills, with the person in question deemed incapable of managing his own property and financial affairs. An application was later made to the Court of Protection by his father with the intention of gaining authority in order to settle his son’s inheritance upon trusts.

Keep reading to find out the background of this case and what the court ended up deciding.

Background

This case was concerned with a man (R) in his 30s who suffered from long-term severe disabilities which impacted on his capacity to manage his property and affairs. R had been left with a substantial interest in the will of a distant relative, who was aware of R’s disabilities. The relative’s will left R one third of his residuary estate, which was a sum worth between £400,00 and £600,000. However, R was also in receipt of a number of means-tested benefits which would be affected by the inheritance.

This came to around £60,000 p/a of state benefits, with £52,000 of his benefits mean-tested, a term which means that the amount in benefits received depends on that person’s income and savings or capitals in other words. As R does not have other income (apart from the benefits he is receiving), the amount of his savings or capitals to be received will affect the amount of his state benefits. As a result, R’s benefits would be substantially affected by the receipt of the inheritance from R’s distant relative. R’s father subsequently applied to the Court of Protection in order to gain authority to settle R’s inheritance upon trusts in order for the capital to be disregarded so as not to affect R’s entitlement to means-tested benefits.

This application, was however, opposed on behalf of R’s Official Solicitor acting as his litigation friend. This was for two main reasons:

The planned scheme was unlikely to work
Placing R’s inheritance upon trust was likely to amount to an intentional deprivation of his capitals

As a result, R would be assessed as being entitled to his trust under the relevant benefits legislation. Furthermore, the Official Solicitor also argued that R’s father’s plan to place the inheritance upon trust would impose additional costs. It was also argued that compared with management through a deputyship under the Mental Capacity Act 2005, it would have other disadvantages.

Decision

The court rejected the argument made by the applicant and declined to authorise the creation of the trust. They also accepted the argument made by the Official Solicitor and found that the intention of the applicant to secure the means-tested benefits and the motivation of R’s dead relative, the testator, were two sides of the same coin.

Furthermore, the judge noted a key motivation which undermined the creation of the application in the first place. The applicant’s own statements used words of causation to link the application with the effect of preserving the means-tested benefits. As a result, the judge found that the benefits authorities would conclude that the operative purpose behind the creation of the trust was the preservation of R’s benefits.

The court did however point out that the situation would have been different if the testator had made testamentary provisions for the funds that he wished to give to R to be put into a trust.

Our thoughts

This case clearly outlines the impact which inheritance can have on those receiving means-tested benefits. It also emphasises how important it is for testators to take proper legal advice when making a will, particularly if the recipients lack capacity or receive means-tested benefits. Those preparing wills should ensure that they discuss with their client whether any of the beneficiaries receive means-tested benefits. If they are, then an appropriate trust structure should be put in place within the will itself to preserve the benefits. Leaving it until after the beneficiary has received their inheritance is unlikely to work, as in this case.

If you would like any help with the making of your will, please don’t hesitate to contact us using the methods below.

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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High Court rules that UK Government’s Rwanda plan is lawful

On 14^th April 2022, the UK government announced that they have an agreement with the Republic of Rwanda, whereby asylum seekers will be sent to the Rwanda for processing. The UK published the Memorandum of Understanding highlighting the agreement. This has come to be better known as the “Rwanda Plan” or “Rwanda Policy”.

This decision has been a cause for huge controversy and outrage. Many were eagerly awaiting the decision in AAA v Secretary of State for the Home Department (SSHD) on 19^th December 2023, where the Court made a judgement as to whether expulsion of asylum seekers to Rwanda to process their asylum claims was deemed lawful.

This case concerned the legality of the removal of 11 claimants. During the hearing a large number of grounds and arguments were presented before the court against the government plans to remove asylum seekers to Rwanda.

Decision

The court did not agree and found that Rwanda was a sufficiently safe country and the inadmissibility and removal notification process undertaken by the Home Office in identifying and removing asylum seekers to Rwanda was found to be sufficiently fair.

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

the Home Secretary had undertaken sufficient enquiries to assure herself that Rwanda would be a safe country
there was insufficient evidence to show that Rwanda did not have a procedurally safe asylum system
the legal power used to certify the claimants’ asylum claims could be used to expel asylum seekers to Rwanda
there is no legal obligation on the Secretary of State to issue more detailed guidance to explain which characteristics are likely to make a removal to Rwanda inappropriate under the Home Office policy
expulsion of asylum seekers from the UK to a safe country cannot be a ‘penalty’, which would be contrary to the Refugee Convention, even if used as a deterrent for other asylum claimants

The above is a summary of the court’s judgement on some of the many grounds presented.

This above means that when a person claims asylum, the Home Office will register an asylum claim, consider admissibility, make an inadmissibility decision obtain consent from the Rwandan authorities and then issue a removal decision and directions.

However, the Court did also set aside decision relating to eight out of the eleven claimants, stating that the Home Secretary had not properly considered their personal circumstances such as subjective fears of harm or psychological barriers.

Our comments

The findings in AAA v Secretary of State for the Home Department (SSHD) that Rwanda is a safe country, and that the admissibility process is procedurally fair will have a huge impact on asylum seekers in the future, unless those findings are successfully challenged on appeal or on the basis of fresh evidence. At this stage, it looks as though flights won’t be able to take off straight away, with further appeals against the decision by the High Court expected in the near future.

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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What will the new flexible working legislation mean for businesses and employees alike?

The government has proposed new legislation which plans to give employees the right to ask for flexible working from day one at their first job. But what are the current rules around flexible working? And what exactly would the new legislation mean for both employees and employers?

In addition to their plans to make flexible working easier, the government also plans to remove exclusivity clauses for low-income workers. You can find out more about this in our breakdown here.

What is flexible working?

Flexible working is a relatively broad term, which can have different meanings based on the a country’s laws. The lockdowns which occurred as a result of the Covid pandemic necessitated many employees (37% of working adults) working from home. This was an arrangement which for many was beneficial for businesses as it allowed them to save on rent while continuing to receive a consistent level of performance from staff.

In the UK, flexible working comes in several forms including:

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

While people often associate flexible working purely with just working from home, clearly there are many other facets to flexible working. Many of these types of flexible working will be beneficial to those who are sometimes marginalised by the standard 9-5 office culture, such as working mothers.

Current rules around flexible working

At the moment, employees have to wait for 26 weeks before asking their employer for flexible working arrangements. If the employee makes a request for flexible working, the employer is currently required to consider the request carefully. They can only refuse it for a valid business reason. This is known as making a statutory application.

How does this work?

1. The employee writes to the employer in the form of an email or a letter

2. The employer then considers the request and makes a decision within 3 months

3. If the employer agrees to the flexible working, they must change the terms and conditions of the employee’s contract

4. However, if the employer disagrees then they must write to the employee giving the business reasons for the refusal

These business reasons for rejecting the proposal can come in a variety of forms. Included in these are the following:

extra costs that will damage the business
the work cannot be reorganised among other staff
people cannot be recruited to do the work
flexible working will affect quality and performance
the business will not be able to meet customer demand
there’s a lack of work to do during the proposed working times
the business is planning changes to the workforce

There is currently no right to a statutory appeal, however employees do have the right to go to an employee tribunal in certain circumstances. They cannot, however, go to an employee tribunal just because their request was rejected.

What are the new proposals?

These new proposals would make it much easier for employees to request flexible working, in a move the government is called “making flexible working the default”. Unlike the current rules, employees will not have to wait 6 months before requesting the right to flexible working. Instead, they will be able to request it from their very first day.

Before rejecting a request for flexible working, an employer will actually have to sit down with their employee and have a discussion about it. This includes exploring the available options and perhaps offering a compromise to the employee.

Further commitments include the right of an employee to make 2 flexible working requests in any 12-month period and to require employers to respond to requests within 2 months rather than 3 months.

Proponents of flexible working have championed its credentials of a way of making the world of work more inclusive and helping businesses to attract employees.

Our thoughts

These changes seem like a common-sense approach by the government to the employment market by giving employees more flexibility over their approach to flexible working. It will subsequently be much more difficult for a business to point blank refuse to grant an employee a form of flexible working. For some businesses of course, this will be more suitable than for others. Nevertheless, for many this will benefit them greatly by resulting in happier staff, with studies showing that flexible working helps with staff retention.

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 help 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/

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Welcome Heidi

We are delighted to welcome Heidi Chua to the firm. Heidi joins us as a paralegal and has already impressed her colleagues with her enthusiasm and legal knowledge.

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

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

In her spare time, Heidi enjoys listening to crime podcasts and spending time with her dog, Toasty!

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!

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Court dismisses judicial review claim by former members of Saddam Hussain’s Ba’ath Party on grounds of “good character”

By Zeyu Huang

A husband and wife of Iraqi origin were recently refused judicial review of a decision by the Home Secretary to decline their applications for naturalisation on the grounds of good character. The Secretary of State claimed that their behaviour since arriving in the UK in 2008 and 2009 did not outweigh the fact that they had been loyal members of the Ba’ath Party under Iraqi despot, Saddam Hussein.

But what is meant by “good character”?

Generally, this means that you have followed laws and respected the country’s rights and freedoms. This includes paying your income tax and National Insurance contributions, and passing background checks, to name but a few.

Section 6(1) of the British Nationality Act 1981 (BNA) provides:

‘if, on an application for naturalisation as British citizen made by a person of full age and capacity, the Secretary of State is satisfied that the applicant fulfils the requirements of Schedule 1 for naturalisation as such a citizen under this subsection, he may, if he thinks fit, grant to him a certificate of naturalisation as such a citizen.’

Paragraph 1(1) of schedule 1 to the BNA provides:

‘subject to paragraph 2, the requirements for naturalisation as a British citizen under section 6(1) are, in the case of any person who applies for it

(b) that he is of good character

Background

The claimants are husband and wife. The wife is a stateless person born in Iraq on 15 August 1972, and the husband is an Iraqi national, born on 23 December 1961. The claimants were married in 2001, and had three children together. Both claimants have indefinite leave to remain in the UK.

The wife rose in status and responsibility from mere attendance at meetings to the giving of lectures to members. Her presence in Iraq became illegal after the fall of Saddam Hussein. She and her three children were subjected to the threats. The husband had reached the higher rank of Udw Firqa, that he would give lectures to low-ranking Ba’ath party members about the party’s aims and objectives, and that he was in charge of recruitment of new members within their local headquarters.

Persons were required to be a supporter of the Ba’th party in order to attend university and were also required to be a Ba’ath party member to work at a university, as the wife subsequently did. It was necessary for the husband to join the Ba’ath party in order to become approved as a teacher. The privileges the couple received were as a consequence of the wife’s work as a lecturer.

Decision

In this case, the Administrative Court dismissed the claim for judicial review of the defendant Secretary of State’s decision to refuse the claimants’ applications for naturalisation on the grounds that she had not been satisfied that the claimants, an Iraqi couple, had been of good character. By that decision, the defendant had concluded that ‘countervailing factors’ in the claimants’ personal circumstances and conduct, since entering the UK in 2008 and 2009, had not outweighed evidence that the claimants had ‘served as loyal and trusted members of the Ba’ath Party’. Among other things, the court held that:

the defendant had not been required by her own 2020 guidance, ‘Nationality: good character requirement – version 2’ (the Guidance), to consider whether the claimants’ had been responsible for, or had close associations with, war crimes or crimes against humanity;
the Guidance had specifically identified that ‘membership of a particular group may be sufficient’ to cast serious doubts on the claimants’ characters; and
the defendant had considered multiple mitigating circumstances relating to the claimants’ membership of the Ba’ath party, namely, the first claimant had belonged to the pan-Arab side of the party, membership had been obligatory for the claimants as a university lecturer and a teacher, and they had not been aware of any atrocities which had been committed by the party.

Our comments

It is for the claimant to demonstrate to the Secretary of State that they are of good character. When considering good character, it concerns but not only concerns: ‘criminality, international crimes, terrorism and other non-conducive activity, financial soundness, notoriety, deception and dishonesty, immigration-related matters and deprivation’. Previous crimes against humanity will adversely impact on naturalisation.

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My former spouse owns a business, can I get half of the business interests after divorce?

When a divorce occurs, couples need to consider many areas. Each of these comes with its own complexity, one of which concerns business interests and assets.

If some business assets are involved between a husband and wife, for example, both parties jointly hold a company or one party alone owns a business, how should these asset interests be divided? In today’s family law article, Let’s take a look at what should divorced couples do when business assets are involved in the divorce.

Are business interests considered shared assets in a divorce?

Business interests between a husband and wife can take different forms, such as shares or debentures in a limited company, shares in a partnership, or a sole proprietorship.

In England, Wales and Northern Ireland, a business interest will generally be considered a matrimonial asset by the courts, and its value will therefore need to be added to the marital estate pool. It doesn’t matter which spouse started or ran the business.

That is, if you start a business, even if your spouse has never been involved in running the business, the business interests in the business are included in the divorce settlement and need to be shared fairly between the parties. Of course, as with other assets, there are some exceptions to this rule, depending on the specific circumstances of each case.

How do courts treat business assets in financial settlements?

Generally speaking, the court must aim at a fair outcome and use its best endeavours to meet at least the basic day-to-day needs of the parties and any children.

The courts will not destroy your business while handling a divorce case. Generally, if the business is established by one spouse and then managed independently, the courts will usually try to ensure that that spouse fully retains the business. Often this is the sole or main job of an individual, so by dividing up the business or forcing them to sell it can mean depriving them of their livelihood. Courts are unlikely to view this as a sensible or fair outcome.

If this is the case, then the spouse who owns the business does not necessarily need to share that business interest with their ex. However, they may have to give up alternative assets, for example, their share in the marital property may be used as a substitute for the value of business assets, or they need to give the other party matching alimony, etc. If the value of the replacement assets is insufficient, a certain number of shares (in the case of a limited company) may need to be transferred to the other spouse.

What if it’s a family business?

Things get more complicated when both parties contribute to the business (e.g., partnership, with equal shares as directors of the company). In the event of an amicable separation, both spouses may remain as business partners, or one spouse may retain their share in the business, but not participate in the management of the business, allowing their former spouse to manage the business.

However, the two parties still retain the family business, and the way of continuing cooperative management may not be the best solution. It is easy for both parties to have quarrels due to a broken relationship, and these disputes can negatively affect business performance.

Therefore, if neither of the above solutions is desirable, one of the spouses can sell their share in the business to their former partner (husband, wife or civil partner), or to a brand-new director/business partner.

However, if a resolution cannot be reached, the divorcing couple can either sell their business and divide the assets or petition the court for a ruling.

Valuing a Business During a Divorce

Whether your business is owned solely by your ex-partner or jointly owned by both of you, you will often have a business valuation of the business during the divorce financial settlement stage. This value will be considered for property distribution when the court decides on a financial settlement.

If the business is owned by one spouse (whether directly or jointly with other business partners), then that party can arrange a valuation. If the divorced parties have common business interests, either party can arrange a valuation.

Valuing a business or business interest is a complex process as it involves:

cash reserves
Corporate Supported Living Standards
Places such as corporate offices, vehicles, etc.
The value of personal and corporate pensions
Is it possible to withdraw capital from the business
Is it possible to borrow against the business or its assets
Company ownership structure, i.e., whether it is a limited company, sole proprietorship, or partnership.

Since it is so complex, the valuation process is expensive. If you and your ex-partner can agree on business values, the process will be less expensive. However, once the divorce parties disagree on the valuation results of the business, then they will face complicated and expensive court fees. We therefore recommend that, before you begin the valuation process, it is best to obtain legal advice in advance.

What if the two parties disagree on the valuation?

As mentioned above, divorcing couples may not agree on the value of a business. Especially if the company is owned by the ex-partner alone, he or she may underestimate the value of their obligations. What if you disagree with what your partner says about the business value, or say they don’t cooperate?

First, everyone can use their own experts to assess business value. However, this action is expensive. In some cases, people spend thousands of pounds on professional accountants. However, if your ex-partner is uncooperative or offers a particularly low valuation, this may be the only option.

Second, you can ask a lawyer to look at the company’s books to see if it’s worth further investigation.

Third, you and your ex-partner agree to use what is known as a “single joint expert” to evaluate the business. This person is independent and can provide an unbiased valuation. It is important to obtain legal advice before you do this.

Fourth, talk to your ex-partner to see if you might consider using a third-party mediation agency or other dispute resolution method to help you dispute your business interests.

How to protect your business assets?

If you’re running a business or business by yourself, the pressures of running a business can be overwhelming. Now, the strength of the company has finally grown, but it has encountered a divorce. Not only do you have to be busy with work, but you also have to guard against your ex-partner. You don’t want him/her to take away the money you have worked so hard for. It is really a headache.

While you cannot exclude your business interests from a divorce settlement, there are several ways you can protect your business in a divorce:

Entering into a postnuptial agreement or separation agreement, which can protect business assets and help limit future arguments;
Separate business assets from household finances. It is necessary for the spouses to completely separate any profits of the company/business during the marriage. For example, reinvesting those profits back into the business of the company, rather than using them to pay off the mortgage on the family home, etc.;
Sacrificing other assets as part of an overall divorce settlement — known as an offset — is beneficial for spouses who want to retain control of their business or business interests.

Cases involving business assets in divorce are often complicated, and we recommend that you consult a legal expert before taking any steps. If you have the above confusion, please contact Lisa Law Firm further, our team of family law lawyers can assist you to solve the problem.

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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.

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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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How do I apply, collect, replace or change a BRP? A comprehensive guide to the Biometric Residence Permit (BRP).

A Biometric Resident Permit (BRP) is a fundamental document which is used by foreign nationals in the UK or those who have a visa or have immigration permission to work, study or live in the UK. It provides evidence of your immigration status in the UK, and can be used to confirm your:

Identity
Right to study
Right to any public services or benefits you’re entitled to.

The BRP also contains the following information:

your name, date and place of birth
your fingerprints and a photo of your face (your biometric information)
your immigration status and any conditions of your stay
whether you can access public funds, for example benefits and health services

As a result, it is an essential document for life in the UK for those from outside the UK

Do I need a BRP?

You will usually need a BRP if you have:

applied to come to the UK from outside of the UK for longer than 6 months
extended your visa to longer than 6 months
applied to settle in the UK
transferred your visa to a new passport
applied for certain Home Office travel documents

However, you won’t get a BRP if you used the UK Immigration: ID Check app to prove your identity when you applied for the visa.

While you used to be able to use it to confirm your right to rent and right to work, this is no longer the case. You can confirm your right to work and right to rent online.

The government is planning on transitioning to a digital immigration system, meaning that all BRPs are set to expire at the end of 2024. So don’t worry if your BRP says that it will expire by the end of December, this is the same for everyone with a BRP. However, for the time-being, they are completely essential, meaning that it is important to read this guide in order to find out everything you need to know about the BRP.

How do I get a BRP?

Giving your biometrics (fingerprints and photo)

To get a BRP, you must provide your fingerprints and a photo. For overseas applicants, this is generally provided at the local visa application centre. Please note that the fee for applications made in the UK is £19.20. If you apply from outside the UK is cost is included in the application.

For applications in the UK, most biometrics are provided at either:

a UK Visa and Citizenship Application Services (UKVCAS) service point
a Service and Support Centre (SSC)

If you applied from outside the UK

If you applied from abroad, then you will need to collect your BRP once you arrive in the UK. These can be collected from the Post Office, see here, and usually need to be collected before the vignette sticker in your passport expires or within 10 days of arriving in the UK. You will need to bring your passport or travel document with the vignette sticker in it.

Usually after submitting the visa application, a confirmation letter (Decision Letter) about receiving the BPR card will be returned together with the passport. The parties need to keep it properly and store it in their carry-on luggage, because this confirmation letter may be required to be shown when entering the country.

As mentioned at the beginning of the article, the person concerned needs to enter the country with a temporary visa, and the validity period of the temporary visa is only 30 days. If the parties cannot travel within 30 days after obtaining the temporary visa, they must apply for a new temporary visa.

Please note that during the visa application process you will need to select which Post Office branch you wish to collect your BRP from. If you then wish to collect it from another branch then you will need to pay a redirection fee. If you are an international student, you may be able to collect it at your university.

If you would rather collect the BRP from an Alternative Collection Location then you can also do so.

After successfully arriving in the UK, the parties must collect the BRP at the designated place within 10 days of entering the UK. It should be noted that if you forget or overdue to collect, you may face the risk of a fine of up to 1,000 pounds !

Please note that the recipient must be at least 18 years old . Those under the age of 18 must go to collect the card with their parents or legal guardians when they collect the card.

If you encounter any problems in the process of receiving the BRP card, for example, the BRP has not arrived at the designated post office, and you have lost your passport or confirmation letter (Decision Letter) before collecting the card, you need to report to the Home Office beforehand.

If you applied in the UK

If you applied for a BRP card in the UK, then the process is a bit simpler. In this case the BRP will generally be sent to the address you gave in your application, which is likely you or your lawyer. On the whole, your BRP will arrive within 10 days of the Home Office giving your decision letter saying you can stay in the UK.

You will get a text and email from a delivery company telling you when your BRP will arrive as well as how to change the delivery time and date. Someone over the age of 18 will have to be there to receive the BRP, and will need to provide proof of identity such as their passport, driving licence or national identity card.

How to prove immigration status without a BRP

If you haven’t received your BRP yet, or if it has been lost or stolen, then you may be able to prove your immigration status another way.

If you need to prove your immigration status to a government department or the NHS, you should tell them that your BRP has not arrived. They will then contact the Home Office to confirm your status.

If you need to leave or re-enter the UK before your BRP arrives, then you will need to apply for a replacement BRP visa. These cost £154 and will let you re-enter the UK once only. Apply for a replacement visa here.

What to do if you find out that the BRP information is wrong?

According to the latest guidance document issued by the Home Office applicants can do the following:

If the applicant finds an error after receiving the BRP card then the applicant can notify the Home Office directly through this website: https://www.gov.uk/biometric-residence-permits/not-arrived

You should report a problem with your new BRP when it arrives within 10 days, otherwise you may have to apply and pay for a replacement. You can report a problem with your new BRP here.

When reporting, applicants generally need to provide the following information.

your BRP number
your full name, date of birth and nationality as they appear on your BRP
an email or postal address

You should usually hear a response within 5 days. If it takes longer, this is generally because you didn’t provide an email address.

Parties can ask a legal representative, a charity, employer, college or university to assist in contacting the Home Office to make changes.

My BRP has been lost or stolen, what should I do?

Although you are able to report your lost or stolen BRP from inside or outside the UK, you are only able to apply for a BRP from inside the UK.

If your BRP was valid for 3 months or more, you must report or apply for a replacement within 3 months of losing. If you do not then you risk being fined £1000 and even being removed from the UK!

You must do the following in each circumstance:

report it as lost or stolen if you do not intend to remain in the UK after its expiry date
apply for a replacement if you plan to leave and re-enter the UK within 3 months of its expiry date
apply to extend your visa if you want to stay in the UK after its expiry date – if granted, you’ll automatically get a new BRP

If you’re outside the UK, you must apply for the replacement visa mentioned previously which cost £154 and can be used once to re-enter the UK.

After the parties successfully get the BRP replacement visa and return to the UK, they must apply for a new BRP card within one month , which can also be done directly online https://visas-immigration.service.gov.uk/product/ biometric-residence-permit-replacement-service.

If you have been away from the UK for 2 years and lost your documentation which proves your right to be in the UK, you can apply for a returning resident visa: https://www.gov.uk/returning-resident-visa

How to change the personal status/information on the BRP?

If the personal status or personal information of your BRP changes, you are obliged to report to the Home Office, and usually have to apply for a new BRP.

There are different paths to change depending on the person’s visa type or immigration status. However, it is much easier to do so if you simply wish to change your address. To change your address on your BRP, you can do so here.

However, if you wish to post the form instead, then you can print it out using this link and send it to the link on this form: https://www.gov.uk/government/publications/notification-of-change-of-circumstances-form-mcc

However, if you want to change personal information on the BRP (including name, date of birth, gender, nationality and facial appearance then you will have to apply for a replacement visa online. You will need to pay a fee. See here.

For any other changes, including a criminal conviction, as well as family information such as separation from your partner or if any of your children stop living permanently with you, you must fill in the change of circumstances form and send it to the address on the form.

Remember, if you fail to apply for a new BRP card within 3 months of the change of personal status or information, you may be fined up to £1,000, and the validity of your visa may even be shortened.

How to update a BRP when it is about to expire?

How to replace an expired BRP card mainly depends on whether the person is in the UK or not, as well as his/her immigration status.

If you have indefinite leave to remain or enter, then you can use the BRP replacement service from within the UK.

If you are holding a visa with a limited period , and the visa is about to expire, it is necessary to apply for a new BRP. This must be renewed or applied for a new visa first, and a new BRP will be automatically obtained after the visa is successfully obtained. People in this case can’t use the BRP replacement service.

If you are outside the UK, then you cannot apply for a replacement visa if it expires. You will also need to apply for a replacement visa in this circumstance.

If you would like help with your BRP, or you have some questions that you would like to ask about it, then get in touch with us today and our immigration department will be happy to help.

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!

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Are business interests considered shared assets in a divorce?

How do courts treat business assets in financial settlements?

What if it’s a family business?

Valuing a Business During a Divorce

What if the two parties disagree on the valuation?

How to protect your business assets?

Have questions about this article? Get in touch today!

Do I need a BRP?

How do I get a BRP?

Giving your biometrics (fingerprints and photo)

If you applied from outside the UK

If you applied in the UK

How to prove immigration status without a BRP

What to do if you find out that the BRP information is wrong?

My BRP has been lost or stolen, what should I do?

How to change the personal status/information on the BRP?

How to update a BRP when it is about to expire?

Have questions about this article? Get in touch today!

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