Nearly 5 years after the Grenfell Tragedy, does the Building Safety Act do enough to make residential property safer?

The Building Safety Bill has officially received Royal Assent and become law. The legislation has been a long time in the making, with the national outrage which followed the Grenfell Tower tragedy in June 2017 leading to the resurgence of a national debate about the safety of properties in the UK.

Of particular concern for many was the cladding on the outside of the Grenfell Tower that was cited as being one of the causes of the disaster. Similar instances were found on the exterior of apartment buildings across the country. While the Building Safety Act has now become law, the government have advised that the measures and second legislation will take some time to come into effect – potentially between 12 and 18 months in some cases. They will be supported by more detailed regulations and guidance which have not been published as of yet.

What is the Building Safety Act?

The intention of the Building Safety Bill was to “put in place new and enhanced regulatory regimes for building safety and construction products, and to ensure residents have a stronger voice in the system”.

Put simply, the bill was introduced to make provision about the safety of people in or around buildings, as well as reinforcing the standards of buildings. However, does the Act do what it said it would do? Keep reading to find out.

Key features of the Building Safety Act

It introduces a new Building Safety Regulator at the Health and Safety Executive to monitor compliance within the new regulations. The Building Safety Regulator will have powers of oversight which will allow them to enforce the system as well as make sanctions against those who breach the rules. This introduces a ‘waterfall’ approach for building remediation for tower blocks taller than 11 metres. Building developers will be called on to pay first, followed by freeholders. If it is judged that neither have the resources to pay, then the cost will be passed on to leaseholders – with caps of £15,000 in London and £10,000 outside London. Notably, this also means that buildings less than 11 metres aren’t covered by the act.

The Act also introduces a New Homes Ombudsman to help those experiencing difficulties with their new homes. These people will be responsible for providing dispute resolution for and determine complaints by buyers of new homes against developers. Through this scheme, developers will be required to become members of it. They will also be required to provide complaints who have a legitimate case to be offered some form of redress.

Late amendments to the Act added a clause relating to construction product liability. This means that liability will be imposed on anyone who refuses to comply with certain construction standards.

As well as this, the Act introduces a new cause of action, allowing current owners to bring a claim against the party in breach. Most notably in relation to some of the evidence which was heard during the Grenfell inquiry, there is also the potential for liability to be imposed on manufacturers who could be accused of misleading or exaggerating the suitability of their products for a certain purpose.

Finally, the Act will also retrospectively open up the pool of people who can claim against developers by increasing time limits for liability claims. For general construction projects, the time limits will commence when the building is or was completed and run for 15 years. Furthermore, the time limit increases to 30 years for cladding on building projects which were completed before the Act came into force.

Failing to protect all leaseholders from cladding costs

Many of those within the property industry have expressed their dismay that the Act fails to fully protect those who were not at fault for the cladding crisis. Leaseholders who weren’t responsible for the cladding will not have access to the Building Safety Fund, something described by the leading membership body for property agents, PropetyMark as “unfair”.

Furthermore, the £10,000 or £15,000 cap will remain unaffordable for many leaseholders who had no idea of the consequences of the cladding on their building when they bought their homes in the first place.

Other industry experts such as the Chartered Institute of Building (CIOB) have criticised amendments such as the removal of a Building Safety Manager. Director of Policy, External Affairs and Research at the CIOB, Adam Tuttle, offered his opinion that the lack of a Building Safety Manager will lead to a ‘lack of clarity over the right competencies and training for those in the ‘accountable persons’ role’ and potential inconsistency in the implementation of Building Safety management regimes.

Before being scrapped by the Government, the role of the Building Safety Manager would have been to plan, manage and monitor fire and structural safety issues – a key reason for the Grenfell fire. The reason given for the removal of this role by the Levelling Up, Housing and Communities Secretary, Michael Gove, was to avoid “unnecessary costs”. However, this undermines the government’s initial intention to have one person who could be easily identified as being responsible for the safety of high-rise residential buildings.

Our thoughts

While the Act does not protect all of those who may be affected by the costs, measures such as a Building Safety Regular, retrospective action against developers and the ‘waterfall’ system which the Act introduces are still welcome.

Nevertheless, Michael Gove’s disdain for the idea of leaseholders not having to pay for the cost of cladding removal will provide little solace for the situation many leaseholders currently find themselves in.

Furthermore, with the Act taking years for its measures to take effect it will be a long time before we will be able to assess its impact or observe any benefits which come into effect through its existence.

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!

lisaslaw@web

See Full Bio

How should an estate legally be handled in the form of probate when a relative dies?

Losing someone close to you is never easy. If a deceased loved one listed you as an executor, you may also need to be strong enough to manage their property, money, and other possessions. However, UK law requires you to apply for a probate in accordance with the rules of law in order to make this arrangement. This process is called “probate”.

This article will tell you about how to apply for probate so that you can prepare in advance.

What is probate?

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) 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.

Do I have to apply for probate?

No, many estate arrangements do not need to go through this process. However, if you are made executor in someone’s will, you may have to apply for probate. You may not need probate if the deceased:

Have joint ownership of land, property, shares or money – these will automatically pass to the surviving owners
Only have savings

Generally, you’ll want to check whether probate is required, for example, by contacting the financial organizations the deceased used (for example, their bank and mortgage company) to find out if you need probate to access their assets. Each organisation has its own rules and if you are not sure whether probate is required, please seek advice from HM Revenue and Customs (HMRC).

Who can apply for probate?

Who can apply depends on whether there is a will or not. If, in the case of a will, you are named as an “executor” in a will or a will update (called an “appendix”), you are eligible to apply for probate. The deceased will usually tell you if you are the executor. In such cases, you will need to send the original will along with the application for probate (copies cannot be used). The will is kept by the Wills Registry and will become a public record.

Normally, the deceased should tell all executors where to find the original will and any updates, such as:

At their home
At a probate practitioner, such as a lawyer
National Probate Registry in Newcastle – you will need a death certificate and proof that you are the executor

If you cannot understand the will, seek help from a citizenship consulting firm or a probate practitioner (such as a lawyer). However, if you cannot find the original will, you may need to complete form PA13. If there is more than one will, only the most recent will is valid. Do not destroy copies of any earlier wills until you have obtained probate.

So, what if there’s no will?

If the parties do not leave a will, the most “entitled” heir can apply to become the administrator of the estate. This is the closest person – usually the husband, wife or civil partner (including if you are separated), then any children 18 or older (including legally adopted children, but not stepchildren).

If you don’t have a husband, wife, civil partner or children, use the estate calculator to figure out who your closest relatives are. You cannot apply if you were the person’s partner but were divorced or separated at the time of their death and are no longer their husband, wife or civil partner.

What is the probate process?

The probate process varies from case to case, as each will and assets are different. Typically, this process involves five stages:

Stage 1: Registering the Death

You will need a copy of the death certificate for every asset of the deceased (for example, every bank account, credit card, mortgage, etc.), so before you start probate, you need to register the death. In England, Wales and Northern Ireland, you usually need to do this within 5 days, and in Scotland it will take 8 days.

To do this, go to the registry where the death occurred – use Gov.uk to find it, you may need to make an appointment.

Stage 2: Investigating Heritage Values

In order to understand the assets of the deceased and make decisions about estate tax, you will need to value the estate. You can perform a valuation according to the following steps:

Step 1: List property and assets and make a valuation. List the property owned by the deceased and estimate its value. Contact all relevant banks, building societies, insurance companies and any other relevant organisations to obtain appropriate valuations for other assets. This includes stocks and shares, liabilities, and any life insurance payouts.
Step 2: List and evaluate common assets. You will need to list and value any common assets. These are assets jointly owned by the deceased and another person, such as a property purchased in the names of both persons. Estimate the sale value of these assets on the open market – then divide that value by 2.
Step 3: List Gifts and Estimate. Gifts made within the 7 years prior to a person’s death need to be considered when valuing an estate. Monetary gifts are easy to value. Gifts should be valued based on their sale value on the open market.

Stage 3: Inquiry and Payment of Inheritance Tax

Generally, estates worth more than £325,000 are 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) and need to organise the payment of estate duty using Form IHT400.

However, even if the value of the estate is below the threshold, you will still need to complete an estate tax form (IHT205 tax form) to confirm this. Then apply to the Wills Registry for a grant of representation – a document that confirms who has the legal authority to administer the estate.

Stage 4: Submitting an application for probate

Once your estate has been valued, you will need to submit an Application for Probate (PA4P), which can be done online or using a paper form.

This part of the probate process involves filling out numerous forms. If you need guidance while filling out the form, you can contact the Probate and Estate Tax Helpline and they will guide you over the phone. Alternatively, you can hire a team of Lisa Solicitors and we will assist you in this process.

Stage 5: Paying the probate fee

If the estate is worth more than £5,000, it costs £215 to apply for probate. Probate is free if the value is less than £5,000. The fee for each additional probate document ordered is £1.50. Every will and the assets owned are different from person to person, and you may also include other expenses, such as attorney fees, which also vary from business to business.

How long does probate take?

Once you have sent the necessary documents, you should receive your Probate or Letter of Administration within 8 weeks, it may take longer if you need to send more information. In the first two years, some had to wait 14 weeks or more due to delays due to the system being updated to an online format and the impact of labour shortages during the pandemic.

Our advice

The family law team of Lisa’s Law Firm has participated in the process of probate for many families. Through our past experience, we have summarized a few tips for you, which can save you energy and avoid risks:

First, understand the role of the executor in the will in advance.

It’s a good idea to know the role of the relative’s executor early on. Before starting the probate process, first you need to see who is in charge of administering the estate. If you learn that you are the named executor, you need to know the entire process ahead of time. You can also appoint a lawyer to represent you if you feel you are not capable of doing so, or decline the role by signing a waiver.

Second, make a list

For each asset in the estate, you need to confirm its value on the date of death, include it in your estate tax return, and eventually you need to sell or transfer it to the beneficiary, and all liabilities need to be recognized and paid. So, having a good list will help you keep track of your situation and make sure you’ve got everything covered.

Third, use professional help

A professional lawyer can take on the heavy lifting of managing the estate; a good real estate agent will help you with an empty house, for example, they can organise garden maintenance, watering and minor repairs; a good auctioneer will value the items , arrange clearance and sell what they can. So, if you have enough budget, when dealing with the estate of a deceased loved one, you might as well ask a professional to help you, which can help you with many worries

Fourth, keep assets safe

Remember that you are responsible for all physical assets – once you have identified them, you need to know where they are and insure them.

Well, this issue of sharing is here. While many times the executor can take on this stage on his own, we again nagging that you are better off using a lawyer, especially for some complex wills.

If you need help with the above, please contact Lisa Lawyers immediately, we have many years of experience in this field and will provide you with professional legal advice.

Have questions about this article? Get in touch today!

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

Email us on info@lisaslaw.co.uk.

Use the Ask Lisa function on our website. Simply enter your details and leave a message, we will get right back to you: https://lisaslaw.co.uk/ask-question/

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

lisaslaw@web

See Full Bio

Ground Rent charges set to be scrapped for new leaseholders. What does this mean?

The Department for Levelling Up, Housing and Communities has announced that the Leasehold Reform (Ground Rent) Act 2022 will come into force on 30^th June 2022. The news comes following an initial 2018 consultation by the government, meaning that the arrival of this legislation has been in progress for a long time. The government have described the policy as “part of the most significant changes to property law in a generation”.

Once the Act comes into force it will abolish ground rents for qualifying residential long leases and will apply to new residential leases. If landlords choose to charge ground rent, then the maximum amount will be reduced to “one peppercorn” – in reality this means zero ground rent for leaseholders.

There will also be further measures in 2023, when the provisions will apply to retirement homes from 1^st April 2023 – future detail will be released about this in due course. However, ground rent will also be reduced to zero in these retirement homes, ensuring that those living in retirement homes benefit from the same reforms as leaseholders. The delay in the ban on ground rent for retirement homes is due to it taking longer for retirement developers to update their systems.

Accord to the Leasehold Minister, Lord Stephen Greenhalgh: “This is an important milestone in our work to fix the leasehold system and to level up home ownership. Abolishing these unreasonable costs will make the dream of home ownership a more affordable reality for the next generation of home buyers”.

The key word in this quote is “more affordable” given the current UK crisis in housing affordability and the price of property inflation for many would-be homeowners living in expensive rented accommodation – particularly in London.

But what is ground rent?

Ground rent is a yearly charge paid by the leaseholder to the person who is ultimately the owner of the home, the freeholder. The idea of ground rent is that the leaseholder is paying an annual charge for the privilege of living on the freeholder’s land. Leasehold property holders pay an average of £319 in ground rent costs per year, totalling £447 million. Leaseholders do not own their homes outright, but instead it is a form of home ownership which gives a leaseholder the exclusive right to live in a property for a fixed number of years.

The report which informed this policy found that ground rent provides no clear services in return for the charges and can also increase on a regular basis. The removal of these charges will therefore certainly be welcomed by leaseholders who have felt a squeeze on living standards during recent times.

What types of leases does the Ground Rent Act apply to?

The Act will only apply to residential long leases (over 21 years) which have been entered into from the 30^thof June 2022 and granted for a premium. Those who are preparing to sign a new lease on a home before the act comes into force should ensure that their ground rent rate reflects the changes in the new act. In reality, many landlords have already reduced ground rents to zero prior to the 30^thof June.

Nevertheless, there will be some exceptions to the Act. These include applicable community-led housing, certain financial products as well as business leases. Further exemptions from the Act include statutory lease extensions for both houses and flats.

As well as the benefit to new leaseholders, those who own properties with companies including Aviva, Persimmon, Countryside Properties and Taylor Wimpey will see their ground rate reduced to the amount it was when they first bought the property. This follows pressure applied to the companies by the Competition and Markets Authority (CMA), which has also gained new powers in consumer law as a result of the Consumer Protection Study 2022.

Issues with current ground rent scheme

There are a number of issues with the current system which has resulted in the writing being on the wall for the ground rent scheme for a number of years.

Among these are the fact that while ground rent usually starts at a low level, it often doubles every ten years or so and can therefore end up presenting a significant cost for leaseholders. In fact, a 2018 report found that 9 in 10 leaseholders regretted buying a leasehold house, with many feeling that they had been mis-sold the property.

The market has also remained largely stagnant for these types of properties because while no lender wants to lend, nor does anyone want to buy these properties for the aforementioned reasons. Many leaseholders have also become trapped in poverty because of these types of leases and have been unable to pay the ballooning ground rent costs.

One example cited in Which? magazine saw an annual ground rent of £295 in 2008 which would end up being £9,500 in 2058 due to the insertion of clauses which saw the ground rent increase exponentially.

Our thoughts

While the Leasehold Reform (Ground Rent) Act 2022 has been in the works for a while, the announcement of a commencement date will provide good news for new leaseholders who will pay less than they would have done otherwise.

Nevertheless, the new laws will not apply to leaseholders who need to formally extend their lease. Such people will continue to see thousands of pounds in costs depending on the length of the lease. While there is talk of making the process easier and cheaper through new legislation, there is no more news about when this is set to come in at this moment in time.

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!

lisaslaw@web

See Full Bio

The end of fake reviews? New rules claim to protect consumers and boost competition

The Department of Business, Energy and Industrial Strategy has announced new rules which it claims will protect consumers and boost competition. This follows the “reforming competition and consumer policy” consultation which was launched by the government last year. The Government-sponsored Consumer Protection Study 2022 found that between April 2020 and April 2021, the equivalent to £54.2 billion had been lost to at least one problem with a product, resulting in stress, monetary loss or time wasted for UK consumers.

Consumer protection

Fake reviews

One of the main focuses of the new rules is tackling fake reviews. Most people these days, whether they are going to a restaurant, choosing a film to watch, or booking a hotel will look at reviews. As a result, it is pretty important that the reviews consumers look at are genuine. Fake reviews do nothing other than cheat consumers out of their money by misleading them about the quality of an experience. This only serves to lower confidence in such review websites.

The press release which accompanied the announcement claimed that the average UK household spends £900 per year as a result of online reviews. This makes tackling fake reviews especially pertinent given the cost-of-living crisis which the UK is currently experiencing.

The consultation which will be launched into this area will look at:

Making it illegal to pay someone to write a fake review
To host a fake review without checking whether it’s genuine
Offering or advertising to submit, commission or facilitate fake reviews

These measures will be welcomed by the vast majority of consumers; however, some businesses may be concerned about the potential of the second point which asks businesses to check whether a review is genuine before hosting it. Despite this, one would imagine in this case that the onus would be on review websites such as Google and Trustpilot to check whether a review is genuine.

Subscriptions

Another area where the plans aim to boost consumer protection is subscriptions. Consumer issues around subscriptions tends to arise when consumers sign up for a free trial and are lulled into paying for a product once the free trial comes to an end.

The new plans would:

Require businesses to remind consumers that their free trial is coming to an end
Require businesses to provide a reminder before a contract auto-renews onto a new term.
They would also have to ensure that consumers can exist contracts in a “straightforward, cost-effective and timely way”.

Currently, while many subscription services allow consumers to sign up on their website, they do not allow them to withdraw from the subscription in the same way. For example, a customer may be forced to phone the business directly to cancel their subscription, potentially causing issues around accessibility for customers with disabilities.

As a result, the steps taken with these new rules represent a positive change for consumers which will hopefully ensure that fewer people get caught out by charges caused by the end of a free trial. The consumer protection rules discussed in this article will apply to Great Britain, with Norther Ireland having devolved powers related to consumer protection.

Enforcement of consumer law through the CMA

The Competition and Markets Authority (CMA) will be empowered in order to directly enforce consumer law and competition law. The CMA is the official competition regular in the UK, responsible for strengthening business competition. As a result of the change, some of the powers the CMA will wield including being able to:

Fine firms up to 10% of their global turnover for mistreating their customers. This replaces the previous system, where courts were the arbiters of awarding compensation to consumers
Non-compliance with an information notice, as well as concealing evidence or providing false information. Penalties for these be worth up to 1% of a business’ annual global turnover or up to £30,000 for an individual. Additional daily penalties would be added for continued non-compliance.
Fine businesses abusing their market position with a turnover of £20 million or over. The previous threshold for this was £50 million.

Another approach taken within the new rules to reduce the influence of the courts is to improve Alternative Dispute Resolution (ADR) services in consumer markets. This would include amending the ADR Regulations 2015 to “improve the quality and oversight of ADR services” as well as require the accreditation of businesses offering consumers dispute resolution services.

The government has been keen to promote the use of ADR, partly as a consequence to a depleted legal system which has been subject to cuts over the past decade. Another recent example of an increase in focus on ADR is the introduction of no-fault divorce (see here).

While the CMA has been strengthened in some areas, it will also lose some power in a bid to “boost competition”. When it comes to mergers, the CMA will be excluded from control where both parties involved have a UK turnover of less than £10m. These measures will apply throughout the whole of the UK.

Our thoughts

These new rules are certainly welcome and will help to protect consumers from the many challenges addressed by the changes. They will also potentially alleviate the pressure on the courts and the legal system by putting more emphasis on the CMA.

As pointed out by the Chief Executive of the Chartered Trading Standards Institute, the last decade has seen cuts of 50% of capacity in some trading standards services at the local level. This directly affects customers and therefore needs to also be addressed in order to see the full benefits for people up and down the country. However, the tackling of fake reviews and misleading subscriptions in particular is an area where consumers will see a direct benefit once these laws come into effect.

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!

lisaslaw@web

See Full Bio

Past association with extremists results in naturalisation claim being refused by Home Secretary

A person can apply for naturalisation and become a British citizen if they satisfy all the requirements. Some of these requirements include suitability requirements, eligibility requirements and passing the Life in the UK test.

Schedule 1, paragraph 1(2)(a) of the British Nationality Act 1981 states that any applicant must be in the United Kingdom for a period of 5 years prior to the date of the application (the five year rule).

The aim of the five-year rule is to ensure that an applicant for citizenship has a clear, strong connection with the UK evidenced by presence in the UK.

This means that an applicant can only be absent for a certain amount of days prior to the application to be eligible.

Under the British Nationality Act 1981, it is mandatory that all applicants must satisfy the good character requirement. We have previously covered another case focused on naturalisation, click here.

R (on the application of Amin) v Secretary of State for the Home Department

In the case of R (on the application of Amin) v Secretary of State for the Home Department (SSHD), the Claimant brought judicial review proceedings against the decision of the SSHD to refuse the Claimant’s naturalisation application on ‘good character’ grounds.

The SSHD refused the Claimant’s application as the Claimant was associated with members of an extremist organisation or people with extremist views. The SSHD considered that there was nothing to suggest that the Claimant was unaware of their views or that he himself did not share those views.

The SSHD did not believe that sufficient time had passed so that previous associations could be disregarded, and no evidence was provided showing that he did not share those views. The Claimant was simply distancing himself from the individuals.

The Judicial Review was dismissed, and the Claimant appealed the decision.

The hearing

The Claimant argued that the decision refusing the application was irrational or had involved overlooking or ignoring a relevant factor.

The Claimant argued that although a person’s past might provide a helpful indication of whether the person was currently of good character, the following should also be considered:

the passage of time since the associations had ended
his new family
an incorrect assumption that he shared the views of the people he had previously associated with.

The Court held that there was nothing to indicate any irrationality or unlawfulness in the way the Secretary of State for the Home Department had considered the Claimant’s application for naturalisation had taken place.

Home Secretary’s concerns about Claimant’s good character

The Secretary of State has concerns about the Claimant’s good character arising from his association over many years with a person who was a leader of an organisation with extreme views. No evidence was provided by the Claimant that these connections had ended.

Accordingly, the decision made to refuse the application was based on the material before her and therefore the decision for the Secretary of State for the Home department to refuse the Claimant’s application on good character grounds was not an irrational conclusion.

The Claimant’s appeal was therefore dismissed.

Our comments

The case shows the importance of ensuring that an application is well prepared and furnished with substantive evidence. If there are issues in the past, which are no longer present, evidence must be shown clearly showing the same.

In this case, the claimant failed to provide evidence that their connections with the leader of an organisation with extreme views had ended. As a result, it is perhaps not surprising that the Home Secretary refused the application.

Have questions? 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!

lisaslaw@web

See Full Bio

UK Expansion Worker Visa – what do you need to know?

Have questions or looking for help applying for a UK Expansion Worker Visa? Contact us today by emailing info@lisaslaw.co.uk or calling us on 020 7928 0276.

But first, read our article below to learn all about the new UK Expansion Worker visa which replaces the Sole Representative route for overseas companies seeking to expand in the UK.

The UK’s new Global Business Mobility routes officially opened on the 11^th April 2022, forming part of the Home Office’s new statement of changes, Immigration Rules HC 1118. The five new routes are as follows:

1. Senior or Specialist Worker, to meet specific business needs

2. Graduate Trainee, as part of a training programme

3. Secondment Worker, to UK firms in high value contracts or investments

4. Service Supplier, to the UK in line with UK trade agreements

5. UK Expansion Worker, to establish a UK presence

While there are some drawbacks for the UK Expansion Worker Visa route compared to its previous iteration, the Sole Representative of an Overseas Business Route (as we addressed here), namely that the new route does not automatically lead to settlement, there are still major benefits to the UK Expansion Worker Visa for overseas companies seeking to expand in the UK. Not least, the new route allows the possibility of sponsoring up to 5 people on your license, whereas the old route only allowed one.

Keep reading for information on how to apply and whether the UK Expansion Worker visa would be a suitable route for your business.

Key things to remember

The Expansion Worker Visa is a specific type of visa for senior managers or specialist employees overseas who are assigned to the UK to carry out work related to the expansion of a business in the UK. It has replaced the Representative of an Overseas Business route, however those already on that route do not need to switch. In contrast to the previous route, the Expansion Worker visa requires the worker to have a UK sponsor.
The Expansion Worker Visa is for businesses who intend to establish a branch or subsidiary in the UK.
The Expansion Visa can only be used when the business has not begun trading in the UK. If the business has begun trading, then a different visa like the Senior or Specialist Worker or Skilled Worker route should be used instead.
UK Expansion Workers must be paid at least £42,400 per year, or the specified going rate for the occupation (whichever is higher).
Expansion Workers can stay in the UK up to one year initially, with the option to extend this by up to two years, however two years is the maximum amount of time a person can stay on this particular route. Most people who qualify for the license will later be able to switch to a Skilled Worker visa,
Businesses are only able to sponsor the number of people they genuinely need to establish their UK business, which is up to a maximum of 5 people at any one time. However, once your business has managed to establish a presence in the UK then you can add other routes to your sponsorship license and sponsor workers on those routes.
However, businesses should note that as the expectation is that a trading presence will be established within two years. Failure to do so will mean that you will not be able to sponsor any more workers on the route, your existing sponsored workers will be unable to extend their stays, and you may also lose your license.

Who does not need to be sponsored?

You do not need to sponsor Irish citizens (who come under the UK-Ireland common travel area), EU, EEA or Swiss citizens with have been granted settled status under the EU Settlement Scheme. Nor do you need to sponsor people with indefinite leave to enter or remain in the UK (settlement).

How do you get a Global Business Mobility License?

You must hold a valid sponsor license for the relevant route, in this case the UK Expansion Worker route
Other than the Senior or Specialist Worker route, the other four GBM routes are classed as ‘temporary worker’ routes. This means organisations must pay the standard fee for a Temporary Worker sponsor license, which is £536
You must also offer employment which meet the required skill level for the route, meets the salary requirement of the route, is genuine and where relevant meets the rules on third-party working
Have a qualifying overseas business route, which in the case of the UK Expansion Worker route “You must provide credible evidence that you intend, and are able, to establish a new UK branch or wholly-owned subsidiary of an established overseas business”
Meet the additional requirements for the UK Expansion Worker route, which we will go through below

UK Footprint requirement

Unlike the other sponsored work routes, you must not be actively trading in the UK. However, you must be able to show that you have a UK footprint, which can come in the form of:

A lease agreement or documents should you’ve purchased a premises
Providing evidence that the business is registered with Companies House
If the company is a subsidiary of an overseas linked business, then you only need your Companies House reference number
If you don’t have a UK footprint, your application will be refused

Overseas trading presence requirement

The expanding business must have been able to prove they have been active and trading at least 3 years before the application is made
You must provide evidence (for example, corporate bank statements) that the overseas business has been trading throughout the 12 month period immediately prior to the application for a sponsor license

Credible expansion plan

You must also have a credible expansion plan. This means that you must intend and be able to expand to the UK and establish a UK trading presence within two years. The business will be examined to determine whether this is possible, including looking at evidence of business planning and finances.

The planned expansion must be the same type of business that you conduct overseas and must also be wholly owned or part of the same legal entity as the overseas business.

Exceptions for certain types of businesses

There are however exceptions to the rules for certain types of businesses, as seen below.

Certain Japanese businesses (they do not need to show they have been trading in Japan for 3 years if only looking to sponsor one worker)
The overseas business is listed on the Main Market or Alternative Investment Market of the London Stock Exchange
The business is listed on an international stock exchange which is considered by the Financial and Conduct Authority to have an equivalent level of regulation to UK markets.
If a government department supports and confirms the viability of the overseas business’s expansion to the UK

Appointing key personnel

Like the other Global Mobility Routes, you must have an Authorising Officer (AO), a Key Contact or at least one Level 1 User in place at the time you apply for your license.

Your Authorising officer can be:

A worker based in the UK who will be overseeing the expansion of your company in the UK
If there is no suitable person in the UK, then you can assign a senior employee of the overseas business to the UK in order to oversee the expansion
They must be the most senior person in your organisation responsible for the recruitment of migrant workers or are otherwise responsible for your activity as a licensed sponsor.
Nevertheless, it is likely that the person responsible will be based outside of the UK given the need to acquire a sponsor license in the first place

What does your Authorising Officer need to do?

If your Authorising Officer is already in the UK, (less likely due to the reasons listed above), then you will be given an A rating and a Certificate of Sponsorship (CoS) allocation of 5 licenses.

However, if your Authorising Officer is based outside of the UK, you will be given a CoS allocation of 1 license initially, as well as a Provisional License rating.

The Authorising Officer must therefore assign the CoS to themselves in order to make a successful application for entry clearance to the UK.

Once your Authorising Officer has entry clearance

Once the Authorising Officer is granted entry clearance, they must update their details on the sponsorship management system. They must also come to the UK to start their sponsored role no more than 28 days after the date recorded on their CoS or the date their entry clearances becomes effective (whichever is later).

To sponsor more workers, the AO must make a request for your license to be changed from a Provisional License to an A rating. Both measures can be taken once the AO has been granted entry clearance to the UK.

Once you have an A rating for your sponsor license you can request an increase to your CoS allocation up to a maximum of 4 via your SMS account.

What if the Authorising Officer is refused permission?

If your AO is refused entry clearance or if it is cancelled, then your sponsor license will usually be revoked. However, in exceptional circumstances you may be able to nominate another AO, Level 1 user, and key contact instead.

How long will the sponsor license be for?

If the sponsor license application is successful, then your license will be valid for a period of 4 years. However, unlike other routes, you will not be able to renew your UK Expansion Worker license at the end of the 4 years.

You will be expected to have established a full trading presence within 2 years from the date your license was granted. At the end of this period, your CoS allocation will be reduced to zero, meaning you will be unable to sponsor any new workers or extension applications from existing workers on this route.

Your license may be revoked if you are not meeting the requirements of the route, subject to the undertaking of a compliance visit.

Once you have established a UK trading presence

Once you have managed to establish a UK trading presence, you can then add other routes to your license. This includes other types of visas such as Skilled Worker, Senior or Specialist Worker etc. As a result, your already sponsored workers can then switch to other routes to negate the two-year limit on the UK Expansion Worker route.

Your UK Expansion Worker sponsor license will automatically expire after 4 years and cannot be renewed.

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!

lisaslaw@web

See Full Bio

Afghan boy entitled to damages after being unlawfully removed by the Home Office

Written by Mahfuz Ahmed

The Court of Appeal have recently handed down a judgement determining that a vulnerable 16 year old Afghan boy should be awarded damages for the infringement of his Article 8 rights under the European Convention on Human Rights (ECHR).

Article 8 of the ECHR states:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

QH (Afghanistan) v Secretary of State for the Home Department

In the case of QH (Afghanistan) v Secretary of State for the Home Department, the Appellant appealed against the Upper Tribunal’s decision that a declaration was sufficient for the breach of the Appellant’s rights under Article 8 of the ECHR.

The Appellant is an Afghan national who came to the UK via Germany in April 2016. Upon arrival, he claimed asylum on the basis that he was a minor.

The Secretary of State removed the Appellant to Germany, after Lincolnshire County Council decided that he was 19. However, shortly after being removed, Germany recognised him as a minor and a person with significant mental vulnerabilities. The Appellant was ordered to be brought back to the UK.

The Appellant bought proceedings against the Secretary of State for damages. The matter was heard by the Upper Tribunal who held that the Appellant’s removal had been a breach of his rights under article 8 of the ECHR. However, the Tribunal was not of the view that it was justified for the Appellant to be awarded damages.

The Appellant then appealed the decision to the Court of Appeal.

Court of Appeal

The sole issue that the Court had to consider is whether the Upper Tribunal erred in making the decision that the Appellant was not entitled to damages. The Upper Tribunal had already confirmed that the Appellant’s article 8 rights were breached.

Lady Justice Laing also determined that the removal of the Appellant was “not an accident. It was a deliberate act”, contradicting the Home Office’s claims that it had been because of a clerical error.

The Court held that the Secretary of State’s actions had significant practical consequences for the Appellant. The only conclusion which would give just satisfaction to the Appellant would be an award of damages to the Appellant. Accordingly, the Appellant was successful.

Our comments

This case is a reminder to the Secretary of State of the importance of ensuring that every individual’s rights under the ECHR are protected. We welcome the decision by the Court of Appeal to award damages and hope this case will represent a reminder to the Secretary of State for the Home Department.

Have questions? Get in touch today!

Call us on 020 7928 0276, 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!

lisaslaw@web

See Full Bio

Former Scottish footballer’s IR35 tax battle offers warning for off-payroll working arrangements

Former Rangers and Scotland icon, Neil McCann, has lost a battle with the tax man over his work for Sky Sports. The ex-footballer is reported to owe HMRC £190,000 as a result of being regarded for income tax purposes as an employee.

Meanwhile, another recent high-profile case saw the tv and radio presenter, Adrian Chiles, have his appeal accepted. This article will look at both cases and see how they compare as well as why only McCann was found to have fallen foul of the rules.

While Chiles had his appeal accepted, both cases offer a warning for those who see themselves as self-employed but could be regarded by HMRC as being employed by a particular company under the off-payroll working IR35 tax rules.

But first, what is an IR35 contract?

IR35 is the name given to the UK’s anti-avoidance tax legislation designed to tax ‘disguised’ employment at a rate similar to employment, who pay income tax and make national insurance contributions. In contrast, disguised employees only pay corporate taxes. Here, “disguised employees” means workers who receive payments from a client via an intermediary, i.e., their own company, and whose relationship with their client would equate to being an employee of that client if they were only paid directly, instead of being paid via their own company.

To put it simply, an IR35 case can be launched when someone is using their own company as a barrier between themselves and a client, in order to pay less tax on their earnings paid by that client.

According to HMRC, if the rules apply, “Income Tax and employee National Insurance contributions must be deducted from fees and paid to HMRC. In addition, employer National Insurance contributions and Apprenticeship Levy, if applicable, must be paid to HMRC by the person who pays the worker’s intermediary.”

From April 2021, the rules have changed so that according to HMRC, “all public authorities and medium and large-sized clients outside the public sector are responsible for deciding if the rules apply. If a worker provides services to a small client outside the public sector, the worker’s intermediary is responsible for deciding the worker’s employment status and if the rules apply.” The obligation is therefore on the employer to decide whether the rules apply to workers who provide their services to the employer through an intermediary. However, workers should be mindful of tax avoidance schemes.

McCann Media vs HMRC

In contrast there was no evidence of McCann providing services to or being engaged by anyone other than McCann Media Limited (MML) during the tax years in issue. McCann had his Personal Services Company appeal rejected by the First-Tier Tax tribunal after HMRC concluded that the arrangement between McCann and Sky for his punditry and co-commentating services were an employment arrangement for IR35 purposes.

There were three main reasons as to why HMRC determined that McCann’s contract with Sky was one of employment:

1. The contracts between MML and Sky largely reflected the agreement between the two parties, despite the 6-week stint that McCann had as interim manager of Dundee FC.

2. Sky had final editorial control over any products that contained McCann’s contributions.
• They also had the right to determine when and where the work was done, as well as the role that McCann would perform.
• He was restricted in his use of social media and could not promote any competitor of Sky, nor be involved in the provision of services to any TV, radio or other media organisation without the written consent of Sky

3. Finally, when considering whether the hypothetical contract which determines the outcome of an IR35 case was one of employment, the First Tier Tribunal noted there was a lack of an absolute right for Sky to determine the dates on which McCann was to attend and act as a pundit. Nevertheless, this did not negate the right level of mutuality of obligations. Sky still had a level of control over McCann which meant that the hypothetical contract was indeed one of employment between Sky and McCann. They also concluded that he could not be in business on his own account under the terms of the hypothetical contract, with McCann entitled to an annual fee from Sky.

As a result of these findings, McCann’s appeal was therefore dismissed by the First-Tier Tribunal.

Basic Broadcasting vs HMRC

Let’s now take a look at a high-profile figure who managed to make a successful appeal against the IR35 rules. Adrian Chiles is a well-known sporting presenter who has presented Match of the Day 2 on the BBC, as well as World Cup coverage on ITV. It is his work for these channels which was the basis of the claim by HMRC that he owed them £1.7m.

While McCann has been forced to pay the tax man £190k, Chiles’ IR35 appeal (Basic Broadcasting vs HMRC) was allowed after HMRC had claimed £1.7m against the presenter. The appeal by Chiles was allowed on the basis that through his personal service company (PSC), Chiles was determined to be self-employed, rather than employed by BBC and ITV. Furthermore, Chiles had employed an agent, which the FTT saw as indicative of the fact that Chiles being in business on his own account and indicated self-employment.

Chiles was also found to have multiple contracts and sources of income, whereas there was no evidence of McCann providing services to or being engaged by anyone else other than McCann Media Limited during the tax years in issue.

Tax and legal experts have since commented that the outcome of the case highlights HMRC’s patchy record when it comes to case relating to IR35 legislation, having only won 7 out of 20 cases since 2010 according to Contractor Calculator, a website for freelancers.

What can we learn from McCann’s case?

Where the person is economically dependent on a broadcaster, and where the broadcaster has the right to restrict the individual from participating in other activities, such as presenting for rival broadcasters, the presenter cannot be considered to be in charge of business on his or her own account. It’s also worth bearing in mind that McCann’s case took place prior to Adrian Chile’s IR35 case, where Chiles was found to be in business on his own account. Any worker who provides their client services through an intermediary, but would be considered an employee if contracted directly should be mindful of the IR35 rules.

Have questions? Get in touch today!

Call us on 020 7928 0276, 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!

lisaslaw@web

See Full Bio

Home Office broke the law by searching, seizing and retaining data from phones of migrants

Written by Mahfuz Ahmed

The Divisional Court has handed down a judgement determining the Home Office’s policy of searching, seizing and retaining data from the mobile phones of migrants arriving to the UK by boat as unlawful.

The court’s ruling occurs at a time when the Home Secretary, Priti Patel, is trying to push through the Nationality and Borders bill. If passed without amendments, the policy would contradict the United Nations’ 1951 Refugee Convention by only giving full benefits of the Refugee Convention to those who come to the UK through “safe and legal pathways”. The practise of seizing phones appears to fall under the umbrella of the Home Office’s “hostile environment” that has been in place for the past 10 years.

Under a secret blanket policy, the Home Office would search all migrants arriving by boat to the United Kingdom so that they could seize, retain and download all data from their phones. This policy was in operation until November 2020.

Immigration officers would often demand the migrants PIN numbers and use threats of false criminal sanctions. The policy allowed the Home Office to retain phones for a period of 3 months, however in reality the phones were retained for much longer.

The legality of these actions was considered in the case of three asylum seekers, (HM, MA, KH) v Secretary of State for the Home Department.

(HM, MA, KH) v Secretary of State for the Home Department)

In MA’s and KH’s cases all of their accessible data, including personal data such as photos and messages, was downloaded and stored on Home Office systems.

The Home Office’s starting position was that no such secret, blanket policy existed. This provided a huge contrast from their position many months later, when the Home Office made significant concessions. Most notably, they admitted that their secret policies were unlawful by virtue of being blanket and unpublished policies which consequently also breached the ECHR and the Data Protection Act 2018. Nevertheless, they did not deny that such a practise was unnecessary.

The Court accepted that the operation of a secret and blanket policy, the retention of phones for a minimum period of three months, and the complete extraction of data was unlawful under the ECHR along with numerous obligations under the DPA 2018.

The Court held that the practice requiring PINs was unlawful and the Home Office was in breach of the DPA 2018.

In relation to the seizing of phones, the Court held that in searching for a weapon or an item that could aid escape, as permitted under paragraph 25B of the Immigration Act 1971, did not mean that a mobile phone could then be seized.

In response to the outcome, a Home Office spokesperson stated:

“Channel crossings are an overt abuse of our immigration laws but they also impact on the UK taxpayer, risk lives and our ability to help refugees who come to the UK via safe and legal routes.

“It is paramount that we continue to go after those facilitating dangerous crossings. We are considering the judgment and it would be inappropriate to comment further at this stage.”

Our comments

The case shows that a migrant’s rights and freedoms under the European Convention on Human Rights and the protections in the Data Protection Act 2018 is of the utmost importance.

The Home Office made a number of concessions in the course of the proceedings, however their comments do not show any regret or remorse for the policy, merely for its lack of transparency. Following this case, should a migrant have come to the UK by boat before November 2020, and was subject to the above, then they may have a claim against the Home Office.

Have questions? Get in touch today!

Call us on 020 7928 0276, 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!

lisaslaw@web

See Full Bio

News and Insights

What is the Building Safety Act?

Key features of the Building Safety Act

Failing to protect all leaseholders from cladding costs

Our thoughts

What is probate?

Do I have to apply for probate?

Who can apply for probate?

So, what if there’s no will?

What is the probate process?

Stage 1: Registering the Death

Stage 2: Investigating Heritage Values

Stage 3: Inquiry and Payment of Inheritance Tax

Stage 4: Submitting an application for probate

Stage 5: Paying the probate fee

How long does probate take?

Our advice

But what is ground rent?

What types of leases does the Ground Rent Act apply to?

Issues with current ground rent scheme

Our thoughts

Consumer protection

Fake reviews

Subscriptions

Enforcement of consumer law through the CMA

Our thoughts

R (on the application of Amin) v Secretary of State for the Home Department

The hearing

Home Secretary’s concerns about Claimant’s good character

Our comments

Have questions? Get in touch today!

Key things to remember

Who does not need to be sponsored?

How do you get a Global Business Mobility License?

UK Footprint requirement

Overseas trading presence requirement

Credible expansion plan

Exceptions for certain types of businesses

Appointing key personnel

What does your Authorising Officer need to do?

Once your Authorising Officer has entry clearance

What if the Authorising Officer is refused permission?

How long will the sponsor license be for?

Once you have established a UK trading presence

Have questions about this article? Get in touch today!

QH (Afghanistan) v Secretary of State for the Home Department

Court of Appeal

Our comments

But first, what is an IR35 contract?

McCann Media vs HMRC

Basic Broadcasting vs HMRC

What can we learn from McCann’s case?

(HM, MA, KH) v Secretary of State for the Home Department)

Our comments

Subscribe to our newsletter