Court orders Home Office to provide asylum seeker accommodation

By Lily Dai

Refugees who come to the UK are not always eligible for asylum seeker accommodation. Section 4(2) of the Immigration and Asylum Act 1999 allows for support to be provided to refused asylum-seekers if they meet the following eligibility criteria:

They must be destitute. A person is destitute if: “… he does not have adequate accommodation or any means of obtaining it (whether or not his other essential living needs are met) or (b) he has adequate accommodation or the means of obtaining it, but cannot meet other essential needs”.
They must fall into one of the criteria in Regulation 3(2): they are taking all reasonable steps to leave the UK or facilitate their departure – reg 3(2)(a);

1. they are unable to leave the UK due to a physical impediment to travel or for some other medical reason – reg 3(2)(b).

2. that in the opinion of the Secretary of State there is no viable route of return to their country of origin – reg 3(2)(c).

3. they have been granted permission to proceed2with an application for judicial review of the decision on their asylum claim – reg 3(2)(d).

4. the provision of support is necessary to avoid breaching their human rights – reg 3(2)(e).

Keep reading to learn more about the case.

Background of the case

The full title of the case is as follows: R (on the application of Parul) v Secretary of State for the Home Department [2022] EWHC 2143 (Admin).

Shajmin Akter Parul is a Bangladeshi who arrived in the UK in 2009. She made several claims including asylum and leave to remain in 2010 and 2017, but these claims have not been successful. Subsequently, she also made further submissions in respect of her status in the UK. However, these are still being considered by the Secretary of State for the Home Department (‘SSHD’).

Unfortunately, Parul suffers from multiple chronic medical conditions. She has been receiving treatment for these medical conditions from a GP in Tower Hamlets. On 26 March 2021, Parul was moved by the SSHD to Seth Court Accommodation Hostel, which is about 75-minutes from Tower Hamlets. On 13 January 2022, a charity helped Parul make a dispersal request to the SSHD for her to be relocated to be closer to her GP and her family in Tower Hamlets.

On 27 January 2022, she sent the SSHD a PAP letter regarding the request. The SSHD confirmed that Parul’s relocation request was granted on 3 March 2022. Following on from that, Parul emailed the SSHD 3 times in March to ask if a suitable accommodation had been found. However, the SSHD replied to her on 21 April 2022 saying that there is no suitable accommodation that can be sourced. In her reply to the SSHD on 12 July 2022, Parul emphasized again on the necessity and urgency of securing a suitable accommodation.

Given the above, Parul applied for a judicial review of the failure of SSHD to provide her with suitable accommodation pursuant to section 4, Immigration and Asylum Act 1999 (Section 4). The failure by the SSHD is unlawful on 4 bases:

it breaches the Defendant’s duty to source accommodation within a reasonable period of time
it breaches the Defendant’s own guidance
it breaches the Defendant’s statutory duty to make reasonable adjustments under sections 20 and 29(7), Equality Act 2010 (“the Equality Act”); and / or
it is unreasonable

In addition, Parul submitted that on the date SSHD had accepted that Parul appeared to be destitute, the provision of accommodation was necessary to avoid an imminent prospect of a breach of Article 3.

The SSHD’s position is that, while they agree that Parul should be rehoused in suitable accommodation in Tower Hamlets, the delay in finding the accommodation has not been unreasonable because none is available. SSHD also submitted that there is no imminent prospect of a breach of Article 3 as Parul was originally accommodated in March 2021 and they have therefore fulfilled their section 4(2) duty. They claim that the subsequent failure to relocate was because of the significant shortage of properties of the nature which Parul sought in Tower Hamlets.

Judgement

Notably, SSHD had filed no evidence in support of their defence. For example, whether Parul’s case had been prioritized by SSHD, records of accommodation stock, and/or the provider’s void properties.

Steps had been taken to look beyond the contract with the provider or the dates to search for accommodation for Parul. Even if there was no breach of any section 4(2) duty because the SSHD originally arranged the accommodation for Parul, the failure to relocate her within a reasonable period would still be unlawful and unreasonable given Parul’s serious medical conditions and her specific needs.

Given the above reasons, a mandatory order was deemed appropriate. Consequently, suitable accommodation should be secured within 8 weeks of that order.

Conclusion

SSHD is under a duty to provide a suitable accommodation within a reasonable period of time, pursuant to Section 4 of Immigration and Asylum Act 1999. What would be considered reasonable is for the Court to determine on the facts of the case. In this case, apparently, there is an imminent need for the asylum seeker to be relocated to a more suitable accommodation. Once SSHD has accepted that the asylum seeker is destitute, the duty to actively seek a more suitable accommodation arises to avoid a breach of Article 3.

Finally, as immigration advisers, it is important to always consider the merits of each individual case instead of blindly following the immigration rules. The court tends to be more compassionate to individuals who have serious medical conditions or any other specific difficulties.

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When can deportation be considered ‘unduly harsh’ on a partner or child?

The UK Supreme Court has recently dismissed three appeals by the Secretary of State for the Home Department (Home Secretary). These appeals concerned the interpretation of provisions relating to the statutory regime of the deportation of foreign criminals.

The case involved three conjoined appeals by the Home Secretary, Priti Patel, which had arisen out of two judgements given by the Court of Appeal. The respondents had succeeded in their First-Tier Tribunal appeals but had later had their claims dismissed by the Upper Tribunal. The Court of Appeal subsequently allowed an appeal from the Upper Tribunal’s decision.

Keep reading to learn more about the outcome of the case as well as its importance.

The case background

The full case title was as follows: HA (Iraq) v Secretary of State for the Home Department; RA(Iraq) and Secretary of State for the Home Department; AA (Nigeria) and Secretary of State for the Home Department

This case’s outcome rested primarily on whether the respondents could avoid deportation by claiming that it would be ‘unduly harsh’ on their qualifying partner or child if they were to be deported. While it may seem as though deportation is a fairly black and white issue, its impact on the individual’s dependents also has to be taken into account. Another of the main concerns was whether there were ‘very compelling circumstances’ which would mean the criminals could avoid deportation.

The two respondents from Iraq (HA and RA), were ‘medium offenders’, which means that they had been sentenced to prison terms of between 12 months and 4 years. They could manage to avoid deportation if they were able to prove that their deportation would be unduly harsh on their qualifying partner or child. This is in line with section 117C of the Nationality, Immigration and Asylum Act 2002.

In contrast, the third respondent (AA), from Nigeria was classed as a ‘serious offender’ (subject to a prison sentence of at least 4 years). AA could only avoid deportation if he could show ‘very compelling circumstances’. These were of a higher threshold than the medium offenders, as outlined in the Nationality, Immigration and Asylum Act 2002.

The judgement

In deciding whether the argument made by the Home Secretary was valid, the court determined whether the unduly harsh test in KO (Nigeria) required assessing the degree of harshness in relation to a notional comparator. The argument made by the SSHD was that the judge in the Upper Tribunal case laid down a test involving the notional comparator where undue harshness goes beyond “the degree of harshness which would necessarily be involved for any child faced with the deportation of a parent”.

This argument was firmly rejected by the court, who decided that the judge in the Upper Tribunal case did not intend on laying down a test which involved the suggested notional comparator. Instead, the court decided that the best formulation of the test was in MK (Sierra Leone) vs Secretary of State for the Home Department (2015). This case stated that ‘unduly’ represented an ‘elevated threshold’ to harshness according to the court.

For the other test, which focused on ‘very compelling circumstances’, the main issues were the “relevance of and weight given to rehabilitation and the proper approach to assessing the seriousness of the offending”.

The Supreme Court has agreed that rehabilitation was relevant, however there was no agreement as to the appropriate weight which could be given to this factor. In terms of the very compelling circumstances test, the main issue of importance was the length of the sentence imposed. However, the court disagreed with the Court of Appeal that sentence length was the sole criteria for assessing seriousness. Instead, they proposed that a guilty plea as well as the nature of offending were also relevant factors in these cases.

In all of the cases, the appeals made by the Secretary of State for the Home Department were dismissed.

The judgements in each of the cases were as follows:

1. The main argument put forward that a notional comparator should be used in the case of HA (Iraq) was rejected.

2. The SSHD’s appeal for RA (Iraq) was dismissed as the court found that the Court of Appeal was correct to find that in its test of ‘very compelling circumstances’, the Upper Tribunal had failed to address the issue of rehabilitation

3. The SSHD’s appeal of AA (Nigeria) was dismissed as the court found that the First-tier Tribunal had applied the relevant tests of ‘unduly harsh’ and ‘very compelling circumstances’ correctly.

Our thoughts

Altogether, the dismissal of the appeals by the Supreme Court were correct in the way that the relevant tests, ‘undue harshness’ and ‘very compelling circumstances’ were applied.

Particularly significant in this case is the application of the unduly harsh test. The court had ruled that it was not necessary for a notional comparator to be compared with the effect of deportation on a child or partner.

These appeals are characteristic of the often-fractious relationship between the recently departed Home Secretary Priti Patel, who has now resigned, and the courts. However, it is highly unlikely that this fractiousness will change with the appointment of the former Home Secretary’s replacement. The new Conservative government led by Liz Truss is highly expected to continue the previous government’s approach to immigration policy.

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Welcome Zeyu

We are delighted to welcome Zeyu Huang, who joins the Lisa’s Law immigration team as a paralegal. Zeyu has already made an excellent impression on her colleagues and displayed a great appetite for the role.

Zeyu is a recent LL.M. graduate from University College London, which she achieved a Merit for. She completed her Bachelor’s degrees of law and accounting in China. Zeyu has previous experience in China of providing legal services in a local court as well as for a law firm.

She is fluent in both English and Mandarin.

In her spare time, Zeyu loves to exercise by going hiking and playing badminton.

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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Does a takeaway shop’s proximity entitle a holiday property owner to private nuisance damages?

As summer comes to an end, the number of people who go on holiday to take a break from the hustle and bustle of their daily working lives grinds to a halt for another year. Thanks to the internet, it’s now much easier to find out extensive details about a place before we book it, making the holiday experience less stressful overall. Nevertheless, our choice of location is usually indicative of the type of break we expect to have. For instance, we might expect a stay in a town or city to be less relaxing than staying in a beachside villa.

The case in today’s article hinges on a private nuisance dispute between a holiday property owner and a hot food takeaway shop, both of which were located in the tourist friendly town of Cheltenham. The claimant, a property owner, brought a claim to the Technology and Construction Court against the property holding company, Windrush Riverside Properties Ltd, over private nuisance based on noise and odour emissions from a neighbouring business premises owned by the defendant. The trial was held in July 2022.

The main issue to be decided in this case was: is the claimant entitled to relief for private nuisance?

Keep reading to learn more about the case and the outcome of the dispute.

Background

Mrs Ray is the owner of a property in Cheltenham which she acquired in 1996 (Kevinscot). Meanwhile, Windrush, the defendant, was the owner of a property (St Kevin’s) which adjoined with Kevinscot at the rear of the premises.

Between the early 2000s and 2015, Kevinscot was used as a walled garden and shop which focused on sustainability and green issues. In 2015, it was adapted into a holiday premises which was suitable for 4 bedrooms and could also be occupied by disabled persons. Expenses were incurred for marketing the property.

At the time that Windrush acquired the property in 2006, the property was occupied by two separate tenants. This consisted of a tearoom, café, and fish and chip takeaway in one building as well as a newsagent in the other building. In 2016, Windrush obtained planning permission for the construction of a single-story extension and other alterations to the restaurant.

The newsagents was then replaced by a hot food takeaway after their departure from the premises, which understandably meant that a number of works were required. Windrush’s associated business, De La Haye Restaurant’s (DLHR) took over the running of the restaurant.

The private nuisance case

This was the catalyst for the point of contention. The works which took place in converting the newsagents to a hot food takeaway required the installation of air intake and extraction fans and flues, air conditioning units and a detached refrigeration unit at St Kevin’s (known as “the Mechanical Plant”).

According to Mrs Ray, during the period of operation for the food business between March 2018 and April 2020 (until its closure due to the pandemic), the noise and disruption from the Mechanical Plant was significant enough as to interfere unreasonably with the use and enjoyment of her holiday property, Kevinscot. Mrs Ray claimed that the disruption to the holiday property was so severe that she was unable to market Kevinscot as a holiday property. She subsequently removed it from the letting market. However, she was able to let it as an assured shorthold tenancy in November 2018 to a family member and godson, Mr James Tongue.

Windrush were served with an abatement notice around August 2018 under section 80 of the Environmental Protect Act 1990, requiring the “abatement of noise, amounting to a statutory nuisance, from the operation of the ““ventilation/extraction/ refrigeration system at the rear of [St Kevins] where there is a boundary with [Kevinscot]”” within 8 weeks of the notice.” This abatement notice was not appealed by Windrush.

The judgement

The court claimed that the claimant had, chiefly, failed to establish the alleged nuisance by the defendant, Windrush. Furthermore, the atmosphere of peace and tranquillity which the claimant had attempted to cultivate was not compatible with the atmosphere of the neighbourhood in question. Indeed, it was therefore not reasonable for Mrs Ray to expect that her eco retreat could exist in the location without the impact of DLHR’s commercial operations.

The claimant’s property was located in what was, for many years in fact, a busy and popular tourist destination. In addition to the tourists who stayed in Mrs Ray’s accommodation requiring food outlets during their visit, Mrs Ray’s property itself benefitted hugely from being in a popular tourist spot in Cheltenham. There were also five pre-existing hot-food takeaways in the areas, so the existence of DLHR’s restaurant was certainly not an exception. While the level of smell and noise was seen to be a matter of factual evidence by the judge, the real question was whether the level of noise or odour amounted to being a nuisance.

The court found that there was a significant level of difference of perception between the witnesses in terms of the level of noise and/or odour generated by the Mechanical Plant. Mrs Ray found that it was difficult to hold a conversation and cooking odours hung in the air while the Mechanical Plant was in operation. This was at odds with the claims made by Mr De La Haye.

While the court decided that the noise and odours which emanated from the premises would be of an annoyance to anyone staying at Kevinscot, Mrs Ray’s perception of the Mechanical Plant remained fixed despite the measures taken by Windrush to reduce the level of noise. The court also highlighted how this was illustrated by Mrs Ray’s desire to remove the Mechanical Plant despite it no longer being in operation.

Property owner was able to continue letting the holiday home

It is not clear that Windrush interfered with Mrs Ray’s level of “reasonable enjoyment” of Kevinscot, as she was able to let the property as a holiday home to tenants who were prepared to put up with a certain degree of discomfort and interference. Mr Tongue, the tenant, provided evidence that he and his family could both live and work around the noise and smell.

Mrs Ray continued to let Kevinscot under the AST following the end of the tenancy period, further indicating that her rights had not been interfered with in the period before. Furthermore, her decision and ability to let the property as an Assured Shorthold Tenancy (AST) indicates that violate Mrs Ray’s ownership rights in a manner which supports her claim.

The claim was therefore dismissed by the Technology and Construction Court.

Our thoughts

Overall, while Mrs Ray may be entitled to a degree of sympathy after owning the property for a number of years before the arrival of the restaurant, her expectations surrounding the level of noise and odour were seemingly very unrealistic.

These expectations arose primarily from Mrs Ray’s past usage of the property as an eco-friendly shop and walled garden which was designed to be a place of peace and tranquillity for visitors, which the court found to have shaped Ray’s expectations for the holiday property she converted the shop into.

The judgements mentioned previously in this article which the Technology and Construction Court came to, seem justified given the weight of evidence involved, including the property’s usage as an assured shorthold tenancy once Mrs Ray had decided it could no longer be used as a holiday property.

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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The Scale-up visa has launched – what do you need to know?

The brand-new Scale-up visa has finally come into force. Described as “the biggest visa improvement in a generation” by the Coalition for a Digital Economy, the Scale-up work visa is designed for the UK’s top high-growth businesses to attract exceptional talent, including scientists, engineers, programmers, and architects.

With the UK facing several challenges to its economy, not withstanding Brexit, the aftermath of the Covid pandemic, and the highest number of job vacancies in decades, this new Scale-up work visa comes at a critical time.

So, how exactly does the Scale-up visa work?

When an applicant applies for this type of visa for the first time, they need to obtain sponsorship from a “qualified” employer for at least 6 months.

The Home Office pointed out that this means that the applicant needs to meet the following requirements when applying for the Scale-up first visa:

Obtain a job offer for a work contract of at least 6 months from an employer recognized by the Home Office
Hold a valid CoS (Certificate of Sponsorship) issued by a qualified sponsor (that is, an employer) , and the CoS needs to provide relevant information about the applicant’s position
The position/job content that the applicant is about to do is suitable for Scale-up application (that is, it needs to meet the RQF 6 technical level )
Applicants must have an annual salary of £33,000 and also meet the “going rate” requirements for their type of work

At the same time, when applying, the applicant also needs to meet the English B1 , financial/deposit requirements (28 days of deposit of 1,270 pounds, or have lived in the UK for 12 months, or be sponsored by the employer), and provide a tuberculosis test certificate ( For applicants in need: https://www.gov.uk/tb-test-visa/countries-where-you-need-a-tb-test-to-enter-the-uk )

Which types of workers can apply for a Scale-up visa?

The Home Office released a list of all “Scale-up” applicable types of work. Please refer to this link for the full list: https://www.gov.uk/government/publications/scale-up-going-rates-for-eligible-occupations/scale-up-going-rates-for-eligible-occupations.

Since RQF level 6 must be reached, these applicable positions are similar to those applicable to the old Tier 2 general work visa (type of work). But of course, the list of types of work may change and be updated over time, and the actual list is still subject to the above-mentioned list published by the Home Office.

Can you change employers within the first 6 months of holding a Scale-up visa?

If the parties involved need to change employers (i.e. “sponsors”) during the “first 6 months” of the “first visa”, they need to apply for a Scale-up visa again (this process is like the current Skilled Worker technical work visa. If the client changes the “sponsor/employer”, they will need to apply for a new visa). However, the Scale-up visa is more flexible, because if the person’s job role changes but they did not change employer, they do not need to apply again.

Moreover, since there is only a ” first 6-month sponsorship system “, as long as the 6 months are completed, the parties can freely change employers and jobs (the sponsored worker can even choose “self-employment”).

However, the parties need to be aware that no matter what job you change to, you should ensure that you can continue to meet the requirements for “renewal” and ” transfer to permanent residence ” in the future.

Extending the Scale-up visa

It is worth mentioning that the Scale-up visa initially has a one-time, two-year validity period. After two years, applicants can apply for “renewal” if they meet the following conditions:

The applicant has completed at least 6 months in the work described in the first signed CoS ;
If the applicant can prove that in the past two years of holding the “first visa”, at least 50% of the time, the annual salary has reached at least 33,000 pounds (the applicant needs to submit PAYE to prove it).

It should be pointed out here that the applicant can apply for renewal after holding the first Scale-up visa for two years. If the applicant has completed the Scale-up visa for 5 years (it has been renewed once in the process), wants to continue to apply “Renewal” is also possible.

This means that when the applicant wants to continue to apply for renewal after 5 years , they also need to meet the annual salary of at least 33,000 pounds for at least 50% of the time in the past 5 years (in fact, whenever renewal” is required at least half of the Scale-up visas held in the past need to meet the annual salary requirement of 33,000 pounds).

In addition, although the Scale-up worker visa allows the parties to do part-time or even self-employment in the process (you can do several jobs at the same time), when calculating the annual salary there are strict requirements:

1. During the period, only the income of “single/one” job shall be taken into account

2. Moreover, since the Home Office only accepts “PAYE” certificates, it means that the self-employment of the person concerned cannot be counted.

Supplementary explanation: For example, let’s say an applicant works two jobs at the same time between January and December: the annual salary of job A is 25,000 pounds, and the annual salary of job B is also 25,000 pounds. Then, even if the total annual salary of the two jobs adds up to £50,000, the applicant still does not meet the salary requirements of the Home Office. This is because, when calculating, the Home Office will only use “one salary” as the standard.

To give another example: Let’s assume that the applicant still holds two jobs in the same year; the first job pays £ 35,000 a year and the second £20,000. In this example, the applicant’s first job has already met the £33,000 threshold through their first job. This person qualifies for the Scale-up visa.

According to the explanation of the Home Office, in the “annual salary certificate” of the year, the applicant only needs to submit the income certificate of the “first” job (the one with the higher salary). After the renewal application is successful, the applicant can obtain a one-time 3-year Scale-up visa.

After 5 years of permanent residence – apply for indefinite leave to remain

Like the Skilled Worker visa, Scale-up is also a work visa path that can be transferred to permanent residence after 5 years.

If the applicant wants to apply for indefinite leave to remain (ILR) after holding the first visa for 2 years + renewal for 3 years and “full 5 years “, they need to prove the following when applying:

The applicant is employed in a job with an annual salary of no less than £33,000 at the time of application (provided by PAYE );
The applicant has at least 24 months in the last 3 years (based on the date of “application for indefinite leave to remain”, with an annual salary of at least 33,000 pounds (also requires a PAYE certificate) ;
Applicants will also need to pass the Life in the UK exam.

In addition to the above, applicants also need to prove that they have held a qualified and valid work visa for the past 5 years and meet the requirements of “continuous residence” (5-year continuous period).

It is worth mentioning that, in addition to holding a Scale-up visa , the above-mentioned five- year continuous residence period of “full five years” can also be added by holding the following visa paths:

Skilled Worker
Global Talent
Innovator Visa
T2 Religious Work Visa Minister of Religion
International Sportsperson
Representative of an Overseas Business (old system first-generation visa and media representative visa)
Other Tier 1 immigrants (except Tier 1 Graduate Entrepreneurs)

Converting a Skilled worker visa to a Scale-up visa

Here we specifically explain the situation of holding a Skilled Worker (or the old T2 general work visa) and converting it to a new Scale-up visa.

For example, if you originally held a Skilled Worker visa, and then you want to change jobs and successfully apply for a Scale-up visa through a new employer; then when you change to permanent residence after 5 years, you need to follow the permanent residence application requirements of the Scale-up route (that is, when you want to apply for permanent residence, you are taking a Scale-up visa) .

This means that, assuming that you have already held a Skilled Worker visa (or T2 ordinary work visa) for 3 years, after you change to the new Scale-up work visa, this allows you to use the Skilled Worker visa + Scale-up visa (3 +2 years) to achieve the purpose of applying for indefinite leave to remain after 5 years.

But the premise is that you need to make sure that at that time, you can meet the (listed above) Scale-up requirements for permanent residence.

This basically means that when you want to change to permanent residence, the first 1: Your current annual salary has reached at least £33,000; 2: No matter whether you held a Skilled Worker or a Scale-up in the “last 3 years” before you transferred to permanent residence , you still need to meet – 3 years For at least 24 months, you must earn at least £33,000 a year.

At the same time, because the two types of work visas have different requirements for “type of work “, if you want to switch from the original Skilled Work visa to the Scale-up visa, you also need to confirm in advance that your own ” type of work” is appropriate.

But of course, if you can meet all the above conditions and successfully transfer from the original Skilled Worker (or T2 ordinary work visa) to the Scale-up visa, you may only be holding the Scale-up for less than 5 years time (even only one year), through the Scale-up path “successfully obtained permanent residency”.

For example, when you originally held a Skilled Worker, your annual salary has always been more than 33,000 pounds. You plan to change companies and need to apply for a new work visa. The new employer is also willing to pay you an annual salary of more than 33,000 pounds. You are also satisfied with the application. Scale-up related conditions. Then, maybe you’ll want to consider applying for a Scale-up work visa instead of continuing on a Skilled Worker work visa in exchange for greater freedom.

On the other hand, for your new employer, if they sponsor you to apply for a Scale-up visa, it will also save you an “Immigration Skills Charge”. Then perhaps, for both of you, Scale-up will be an effective ” win-win ” new option.

Our comments

Lisa’s Law recommends that if you are not very clear about your situation, or if there is something you don’t know how to calculate, you should seek professional legal advice. Moreover, not only employees, but also employers can contact Lisa Immigration Department if they have any questions . Our professional immigration team will give legal advice that best suits your business needs.

The single application fee for a Scale-up visa is £715 , which includes the main applicant and the applicant’s “accompanying family members” (£715 per person). In addition to the visa application fee, applicants are also required to pay a medical surcharge (generally £624 per year).

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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Welcome Jessie

We’re very happy to announce the arrival of our newest colleague, Jessie Yang. Jessie joins us as an immigration paralegal and has made already made a great impression through her extensive legal knowledge.

Jessie studied LLB Law & International Legal Studies at the University of Southampton. During her Undergraduate Degree, she had an invaluable opportunity to participate in a Year’s Exchange Programme at the Chinese University of Hong Kong where she studied International Criminal Law. She subsequently completed her LLM in Public International Law at the Queen Mary University of London in 2020 and is currently completing her solicitor’s qualifying exam.

Prior to Lisa’s Law, she previously worked for Citizens Advice Bureau. During her studies at the universities, she completed Summer Placements at several city law firms in London, including Lisa’s Law Solicitors.

In her spare time, Jessie enjoys dancing, travelling, and writing. Impressively, she also self-published two linguistic books on Amazon last year. Jessie is fluent in Chinese Mandarin and English.

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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Does inheritance tax have to be paid before probate is granted?

Probate is a topic which we have covered in some of our family law articles in the past. In many cases, people will only be granted probate if they have paid inheritance tax. However, many people in this situation may wish to be granted probate before they pay inheritance tax in order to know what they are owed.

Lots of clients in this situation believe that they don’t need to consider paying inheritance tax until they get the inherited money, which is not the case. Quite rightly, you might say, clients will often make the argument ‘ I haven’t received any money; how can I pay inheritance tax’?. This seems to be a ‘circular’ problem. Nevertheless, this is the way the system works in England and Wales. We will go into detail about some of the ways in which you can afford the inheritance tax fee later on in the article.

What is probate?

As a reminder of what probate is – in England and Wales, probate refers to the legal and financial process involved in dealing with a person’s property, money and belongings (called assets or estate) after their death. It is a legal document and confirms who has the authority to administer the estate of the deceased.

Put simply, before you can execute the deceased family estate, you need to go through the statutory process to obtain a probate. Once you receive your probate, you will have the legal right to take the actions specified in the will to enforce the assets of a loved one who has tragically passed away.

For example, an executor can close a bank account, sell a deceased person’s property, sell stock, transfer property to a beneficiary, or close an investment account.

Inheritance tax has to be paid before probate is granted in the case of an estate which is subject to inheritance tax.

So, when is an estate subject to inheritance tax?

When it comes to inheritance tax, estates worth more than £325,000 are generally subject to estate tax. If the total value of the deceased’s estate, including gifts over the past 7 years, is more than £325,000, you will need to pay estate duty to HM Revenue and Customs (HMRC). You will also need to organise the payment of estate duty using Form IHT400. The standard inheritance tax rate is 40%, which is charged on the part of the estate that’s above the tax-free threshold of £325,000.

You may not have to pay inheritance tax if the value of the estate is below £325,000, or if you leave everything to your spouse, civil partner, a charity or a community amateur sports club. Even if the value of the estate is below the threshold, you will still need to inform the Probate Registry about the deceased’s estate value when you are applying for a grant of representation. This is a document that confirms who has the legal authority to administer the estate.

While the threshold is usually £325,000, if you give away your home to your children (including foster, adopted or step-children) or grandchildren then you might get an additional tax free threshold. This is called the residence nil rate band. For the current tax year, this additional threshold is £175,000, which brings the total threshold up to £500,000. Your threshold can also be altered if you are married or in a civil partnership and your estate is worth less than the threshold, as the unused threshold can be added to your partner’s threshold when you die. There are also certain inheritance tax exemptions and relief available, therefore professional advice may help.

Inheritance tax is paid before the application for probate

The probate process generally follows 5 steps: registering the death, identifying assets and liabilities and ascertaining estate values, inquiry and payment of inheritance tax, submitting an application for probate, and paying the probate fee. The inquiry and payment of inheritance tax generally comes before the submission of an application for probate. Read our article for more information about probate process by clicking here.

Time limits on the payment of inheritance tax

Please see the below table for time limits when it comes to payment of inheritance tax before probate is granted.

In practice, after HMRC confirms the IHT is cleared, HMRC will issue the IHT receipt to the Probate Registry directly (not to the payee). Once the Probate Registry has the record of IHT receipt, it can proceed with the relevant probate application. Therefore, in order to obtain the grant, the personal representatives will have to pay any IHT due on the delivery of the IHT account.

Paying for inheritance tax

There are a few ways possible to fund for the IHT payment – these include: bank loans, loans from beneficiaries, direct payments to HMRC from the deceased’s bank account, in yearly instalments, or through trusts. It is much better to pay IHT as soon as you can, as HMRC will charge you interest if you do not pay the inheritance tax by the due date (the end of the sixth month after the person died). Life insurance policies can be used to pay for all or some of an inheritance tax bill by protecting your home or other assets which may need to be sold before probate is granted.

After inheritance tax is paid, if you then overpay on the amount that the estate owes, HMRC will refund you the excess after you have been granted probate, as well as any interest.

At Lisa’s Law, we understand that the death of a loved one like a relative can be a difficult time for everyone involved.

If you’d like help navigating the complexities of probate and the management of the estate, get in touch with Lisa’s Law today and the highly trained Family Law experts will be able to assist you in your time of need.

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Is the Home Office responsible for an asylum seeker being attacked in their accommodation?

By Xijia Xie

In today’s article, we look at a recent case, R (on the application of MG) v Secretary of State for the Home Department. In this case, the claimant is an asylum seeker who was provided with private accommodation by the Secretary of State. He was attacked by a fellow asylum seeker (A) during the stay and was seriously injured. He initiated Judicial Review proceedings against the Secretary of State on the grounds that she did not perform her obligation to sufficiently investigate after the incident.

Judicial review is, in a nutshell, a process by which an individual may bring a claim against the government for not acting lawfully.

In this case, the Claimant believes that the Secretary of State’s omission to investigate gave rise to a claim that the Claimant’s Article 3 rights under the European Convention on Human Rights had been breached. Article 3 states:

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

Was the Secretary of State obliged to carry out a separate investigation?

The submitted claim was not accusing Secretary of State of the harm but rather that adequate action was not taken after the claimant was already injured. This is possible because section 6(1) of the Human Rights Act 1998 provides that the government must act compatibly with the Convention. The Secretary of State did not carry out a separate investigation. Accordingly, the question of whether she is obliged to do so, is the key issue of the case.

The Claimant submitted that a duty is owed in this case but did not provide any case law in which asylum seekers accommodated in private housing (a hotel) triggered the duty. The Court thus had to decide on this point by assessing it as a new precedent. It mainly considered:

Were hotels accommodating asylum seekers inherently dangerous?
Were the claimant and A under exclusive control of Secretary of State?
Was the Secretary of State otherwise responsible for the health and welfare of the claimant and A?

Court not convinced that the Secretary of State breached her systematic duty

On the first point, the Court was not satisfied that accommodating asylum seekers in hotels is inherently dangerous. However, it reserves the possibility of a different outcome if one or more individuals were known to be a risk. On the second, the claimant and his fellow asylum seekers were not under detention. They were given a room, but they are not obliged to stay there. On the third, the Court held that the Secretary of State was only under a general legal obligation to look after the accommodated asylum seekers, who have the capacity and autonomy to be responsible for their own well-being.

As a result, the claimant failed to convince the Court that the Secretary of State had breached her systematic duty.

Home Secretary did not breach her operational duty

The claimant also submitted to the Court that the Secretary of State breached her operational duty during the incident on 25th June 2020. This was also refused by the Court because the hotel staff that were authorised by the Government did not have protective equipment (or were legally required to) and could not confront the attacker physically. They called the police immediately and it would not be reasonable to expect unprotected hotel staff members to do more than they already did.

As can be seen from the result, it is possible for Secretary of State to be liable for failing to carry out a positive action, but the claimant must prove that the obligation is owed. Unfortunately, in this case, neither was successful.

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