Divorce Financial Settlement – Frequently Asked Questions

This article is the second in a series of family law blogs focusing on questions our family law team are frequently asked. Today, we will focus on divorce financial settlement. Keep reading to learn more about some of the most frequently asked questions when it comes to divorce financial settlement.

Do I need to divide the matrimonial assets in a divorce?

Once you start your divorce, it is advisable to deal with your financial matter at the same time to avoid unexpected claims from your former spouse in the future. If you are able to reach a mutually acceptable agreement on the finance division, you may wish to apply to the Court to endorse your agreement in order to obtain a clean break. This can be achieved by applying for a Consent Order.

When filing a Consent Order, the Court requires full and frank disclosure of your assets, liabilities and income from the both of you to ensure that your agreement is fair. It is important to note that a Consent Order for divorce can only be applied once the Conditional Order is made. If you and your spouse are unable to agree on the terms, you can negotiate with the help of solicitors, attend mediation or apply for a financial order in Court. Please note that the Court will not make a binding financial order unless you or the respondent ask it to, or unless your separate financial court proceedings have reached a conclusion.

Can I just sign a divorce financial agreement with my spouse without getting a financial order from Court?

The agreement reached between the parties regarding their financial division is not legally binding and is not legally enforceable, i.e. a Court cannot enforce it if there are any issues or disputes later. When one party seeks to resile from such agreements, they can make an application to the Court for a financial order, which might or might not be made according to the terms of the original agreement. This is because, under the Laws of England and Wales, it is not possible, at the end of a Financial Agreement, to exclude the jurisdiction of the Court to make orders.

Generally, if the agreement was reached properly and fairly with competent legal advice, the agreement should be upheld by the Court, but the Court has discretion. Therefore, even if an agreement can be reached between the parties, it is advisable to obtain a Consent Order to get a clean break between them.

What does financial disclosure mean?

The process of financial disclosure in a divorce is where you will give full details of your personal financial position, resources, and future needs, e.g. value of the property, savings balance, pension valuation etc. In order for the Court to make a binding financial order regarding your financial arrangements on divorce, both you and your spouse must file a financial disclosure form with the Court and serve it on the other party. You have a duty to provide full and frank disclosure of your financial circumstances and any other relevant information.

What are the factors affecting the Court’s discretion when making an order about your financial arrangements?

It is important to note that the factors considered by the Court are not absolute and will depend on the circumstances of your case. The primary consideration of the Court is the needs and welfare of the minor children, in particular the children’s housing needs.

The Court will also consider the following factors:

1) Each party’s income, earning capacity, property and other financial resources, either available now or in the foreseeable future;

2) The financial needs of the parties, such as accommodation needs, income needs, debt repayment needs, etc;

3) The age of both parties, as age will normally affect borrowing capacity and how easy it would be for either party to retrain or re-enter work and become financially independent etc;

4) The length of the marriage, the longer the marriage the greater the degree of financial dependence on each other;

5) The standard of living prior to the breakdown of the marriage;

6) Any physical or mental disability of either party, as it will affect the earning ability;

7) Contributions made to the family and;

8) Loss of chance to acquire any benefits as a result of the divorce.

It is important to note that parties’ behaviours such as adultery, domestic violence, etc will generally be disregarded.

How much do you charge for a divorce financial settlement?

It depends on whether you and your spouse are able to reach an agreement. We charge at an hourly rate of £300+VAT. How much you would end up paying in total depends on how much time we will need to spend on your case. If you and your spouse can agree on the terms and choose to file a Consent Order, our fees will depend on the complexity of the terms and conditions, and will generally start from £2000+VAT. If you and your spouse choose to enter into a Nuptial Agreement, our fees will depend on the complexity of the terms and will start at around £1500+VAT, please note such an agreement cannot achieve a clean break.

If you and your spouse cannot agree on how to divide the assets then it becomes contentious. In this case we will charge at an hourly rate of £300+VAT. A contested financial proceeding generally involves 3 hearings. Prior to each hearing, the Court will give directions as to trial materials and we will advise you of our fees in advance of each hearing. Our fees will start at £10,000-£15,000 for contested financial proceedings. In addition, there are court fees and barrister fees, which can be in the region of £6,000-£8,000, depending on the level of experience of the barrister.

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 Zhuoqi and Charlotte!

We are delighted to continue to expand as a company by welcoming two new staff members to the firm. Both Zhuoqi and Charlotte have joined the company as legal assistants, and we are excited to see them contribute and progress with Lisa’s Law.

Welcome Zhuoqi

Firstly, are very pleased to welcome our newest legal assistant, Zhuoqi Li, to Lisa’s Law. Zhuoqi has joined the immigration department and has already made an excellent impression on her colleagues.

Despite being raised until the age of 12 in China, Zhuoqi lived in Romania for three years, eventually coming to the UK in September 2013. She speaks native Mandarin and fluent English. Zhuoqi also understands Cantonese on a very basic level as a result of meeting Cantonese speakers in the UK.

Zhuoqi obtained a LLB degree in 2019 and is due to complete her LPC course this summer. She worked as a marketing manager in her previous workplace, highlighting her diversity of knowledge. She likes to hang out with her friends after work as most of her friends are based in the UK.

In terms of her other interests, Zhuoqi loves singing and online gaming. Her dream is to be qualified within the next 5 years as a solicitor.

Welcome Charlotte

We are also delighted to welcome Charlotte Cheng, who like Zhuoqi, joins us a legal assistant in the immigration department.

Charlotte is an international business graduate and has developed proficiency in immigration law, having worked as an account executive and contract paralegal at other law firms. She also worked as a freelance digital marketer, further expanding her skillset.

Charlotte is multilingual, with fluency in a range of languages including Cantonese, Mandarin and English. This enables her to communicate with a wide variety of clients.

We look forward to seeing her progress with Lisa’s law.

Have questions about this article? Get in touch today!

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Asylum backlog at record levels – is now the time to make discretionary leave applications to the Home Office?

The number of asylum seekers waiting for a decision on their case has soared to record levels over the years with almost 75,000 claims in 2022 alone. The asylum backlog of claims has grown substantively by almost 10 times since December 2010. Clearly, dealing with the huge backlog is a priority for the Home Office, as well as the UK government at large.

Recently, the Home Office have announced that they intend to fast track asylum claims made by those that have come to the United Kingdom from Afghanistan, Eritrea, Libya, Syria and Yemen. The Home Office will be sending 10-page Home Office questionnaires and deciding claims without face-to face interviews. They hope that this will help to decrease the huge backlog of around 166,000 claims.

On 7^th March 2023, the Home Secretary announced the new proposed Illegal Migration Bill with the intention of stopping illegal entry to the UK. If passed, this will surely decrease the number of asylum claims every year and allow the Home Office to deal with the backlog.

More details about the Illegal Migration Bill can be found in our full breakdown here.

Our thoughts

With the need for the Home Office to reduce the backlog of claims, this raises the question of whether it is a good time for those in the UK without status to make an application for discretionary leave?

There are many who are residing in the UK who have children who have been living in the UK for less than 7 years. They are attending school and have fully integrated into the UK. There are also many who have been living in the UK for many years but under the 20 years requirement to make an application under article 8 – private life.

They not only suffer hardship due to immigration hostile environment, but there is also a significant cost to the taxpayer due to the Home Office’s ever-increasing workload.

Rather than using taxpayers’ money in conducting reporting events, providing NASS support, and many other costs, for those who realistically cannot be removed as they almost meet the requirements, would it not be better to grant discretionary leave, allowing many to work and contribute to UK Society earlier?

I have no doubt that this will reduce cost to the Home Office long term and will help clear the number of migrants in the UK who remain illegally. Of course, if there is an internal policy regarding this it is unlikely to be publicised however in view of the recent actions made by the Home Office perhaps it is now a wise time to make an application based on discretion.

If you are in the UK without leave, and wish to discuss options available, and in particular whether discretionary leave could be worth an attempt then please get in touch.

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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March 17, 2023
Family, Family Law, FAQs

Divorce – what are some of the questions we are frequently asked?

This article will be part of a series of Family Law blogs focusing on questions our Family law team are frequently asked. Today, we will focus on divorce procedure itself, and some of the common issues facing those seeking to apply for divorce.

Keep reading to learn more about divorce procedure.

Can I divorce in England if I married abroad (outside the UK)?

In general, in England and Wales, the Court requires the marriage to have been validly conducted in accordance with the laws of the country in which the marriage took place. If it is, it will then be largely considered a valid marriage under English law. Therefore, you can still apply for a divorce in England provided that certain criteria regarding domicile are satisfied. English courts have jurisdiction to hear a divorce application if both you and your spouse are or one of you is domiciled or habitually resident in England and Wales.

How long does it take to get a divorce in England and Wales?

What stages and timeframes are involved in the divorce process?

The process is simple as long as your spouse does not dispute the proceedings. 1) To start a divorce, we (on your behalf) will need to file an application with the Court. After the Court has issued your divorce application, the Court will send the application to the respondent, where the respondent has to say whether or not they intend to dispute the divorce. 3) Applying for the Conditional Order, the application for such an order cannot be submitted to the Court unless 20 weeks have elapsed from the start of proceedings. 4) Applying for the Final Order, you will have to wait a further six weeks after the date of the conditional order to apply for the final divorce order.

The overall timeframe for divorce proceedings is around 10 to 12 months. This can vary depending on the current timescales and workload of the Court. Please note that financial and children arrangements may delay the process further.

Can I get divorced if my spouse is missing?

In short, yes, but several essential steps need to be taken to show the Court that you have tried your best to find your spouse. Firstly, when filing a divorce application with the Court, the applicant must include the address and personal details of the divorcing spouse. If you do not know where your spouse currently lives but your spouse is still in the UK, an investigator can be engaged to carry out a search before the divorce application submission.

Further, the Court is unlikely to grant a divorce unless you have proved to them that your spouse has been served with the divorce application. Therefore, after the divorce case has been issued by the Court, additional services from a process server might be necessary as the divorce documents will need to be hand-delivered to your spouse’s address. This also means that additional time and fees will be incurred.

Can I file a divorce application if my Marriage Certificate is missing?

If both of you got married in England, you will be able to order the Marriage Certificate online and get it delivered to you or us. However, if you got married in another country, you will need to contact the local Marriage Registry so that they can reissue the Marriage Certificate. It is difficult to apply for a divorce if you do not have an original copy of the Marriage Certificate. If the Marriage Registry cannot reissue the Marriage Certificate, we can file an additional application to the Court, but the Court has discretion as to whether to proceed with the divorce application without the original Marriage Certificate. This also means that additional time and fees will be incurred.

How much do you charge for a non-contentious divorce?

Normally, our legal fee for a simple divorce is £750 plus VAT, provided that both you and your spouse consent to the divorce application including all the grounds stated within, that there is no dispute on property and children arrangement and that there will be no undue delay by your spouse on this matter. You would also have to pay the court fee which is £593. The marriage certificate translation fee is £100 plus VAT (if the marriage certificate is in Chinese). Financial or children arrangements legal processes are completely separate from the divorce itself. We charge separately for financial division and child arrangement matters.

That’s it for today’s article on divorce procedure. Join us next week for part 2 of our Family Law frequently asked question series, when we will be covering matrimonial financial settlement.

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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Expansion Worker Visa granted to Australian wine company within 24 hours

By Lily Dai

We recently dealt with a private limited company which was incorporated in Australia and specialises in brewing and producing bacteria–free red wine. In 2018, our client manufactured its first batch of wine. The wine achieved many sales and had a lot of success when it first launched locally in Australia. As a result of its rapid expansion, it was eager to open up the Europe market by establishing its first presence in the UK.

To implement the expansion plan, our client instructed us to apply for an expansion worker sponsorship licence for the business and also an expansion worker visa for its authorising officer. Following on the success of obtaining an expansion sponsor licence under the Global Business Mobility – UK Expansion Worker route, we submitted the application of an expansion worker visa for its identified authorising officer who is based in China.

Expansion worker visa received quickly

The application was submitted using standard service, which according to the UK Government website will normally take around 8 weeks to get a decision. Remarkably, the authorising officer received the result of being granted expansion worker visa within 24 hours after the submission.

We are proud that our client received a successful outcome in such a quick manner. The most important reason for this is that we made sure that all the criteria were met, and that the application was completed before being submit, so that the odds of a quick and positive result are significantly improved. We are also dedicated to offer assistance to more clients who want to expand their existing overseas business in the UK via this route. We wish our client the best of luck with their wine business in the UK.

The Expansion Worker Visa presents an excellent opportunity for businesses looking to grow their business in the UK. Read more about the expansion worker visa by reading our full breakdown here.

Have questions about this article? Get in touch today!

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Illegal entrants to be prevented from claiming asylum under Illegal Migration Bill announced by Home Office

On 7^th March, the Home Secretary announced her plan to stop illegal migration to the UK by preventing those who enter the United Kingdom from claiming asylum. The Illegal Migration Bill proposes that all that enter the UK ‘illegally’ (often by crossing the Channel in a small boat) will be detained and then removed to their home country or another safe third country, namely Rwanda.

The Home Secretary has stated that the rationale behind the bill is as follows:

“The British people rightly expect us to solve this crisis and that’s what myself and the Prime Minister fully intend to do. We must stop the boats. It is completely unfair that people who travel through a string of safe countries then come to the UK illegally and abuse our asylum laws to avoid removal.”

“It has to stop. By bringing in new laws, I am making it absolutely clear that the only route to the UK is a safe and legal route. If you come here illegally, you won’t be able to claim asylum or build a life here. You will not be allowed to stay. You will be returned home if safe, or to a safe third country like Rwanda. It’s the only way to prevent people risking their lives and paying criminals thousands of pounds to get here.”

The arrival of this legislation follows the five key priorities outlined by the Prime Minister earlier this year. Pledge number five was to stop the small boats from crossing the channel and enter the UK. Notably, the PM’s lectern was emblazoned with the simple slogan of “Stop the Boats” at his press conference following the announcement of the new policy.

But what will the details of the plan involve?

Illegal migrants will be detained for 28 days during which they will not be able to lodge bail applications, or application for Judicial Review. Those who have exceptional circumstances and face risk will have a maximum of 45 days to remain in the UK until their appeal rights are exhausted.

Some of the other measures proposed in the Bill are:

Duty to make arrangements for removal – the Home Secretary will have a legal duty to remove people who have entered the UK illegally.
Entry, citizenship and settlement – people who come to the UK illegally will be prevented from settling in the country and will face a permanent ban from returning.
Asylum – people who come here illegally will have their asylum claims deemed inadmissible and considered in a safe third country.
Modern slavery – modern slavery referrals for those who come to the UK illegally will be disqualified under public order grounds under the terms of the international anti-trafficking treaty, ECAT.
Legal proceedings – limiting the circumstances in which legal challenges will prevent someone from being removed from the UK. Most legal challenges will be considered when someone has been successfully removed from the UK.
Expanding the list of countries that are considered safe in law – this will make it unquestionably clear when someone doesn’t need our protection because they are obviously not at risk of persecution in their home country.

Our thoughts

The Home Office believe that the above measures will prevent people from risking their lives in their dangerous routes to the UK, as well as stop criminal gangs from profiting from the asylum system. Of course, it is worth remembering that the decision by the government to introduce these measures are politically motivated. Conservative voters on the whole are much more likely to be in favour of reducing immigration, a hugely important factor in deciding policy for a party ahead of the upcoming May local elections and likely general election next year.

These proposals thus far appear to be impractical. A claim for asylum and those who are a victim of trafficking often involve complex issues that cannot be practically investigated within 28 days. We do not see how the Home Office will be able to practically conduct this plan. To date, not a single migrant is yet to be sent to Rwanda under their previous proposal which shows that such plans can be very difficult, if at all possible to be implemented.

There is also the question of whether the bill is compatible with the European Court of Human Rights. Indeed, the government looks set for a collision course with the legal body over the proposals, with the Home Secretary herself writing to Conservative MPs to say that there is “more than a 50% chance” that the legislation is not compatible with the ECHR. Time will tell whether this is the case.

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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Mortgage Application Guide – Avoiding Money Laundering Allegations

Getting the approval for a mortgage on a property is a very tough thing to do for most people, especially in the current climate we find ourselves in. Often, a long time has been spent filling out forms and going over options with lenders and other professionals. Not to mention saving up the money needed for a deposit.

What is money laundering?

To give a brief summary, money laundering is the illegal process of concealing the origins of money obtained via illegal means. This is often done by passing the funds through a complex sequence of banking transfers or commercial transactions. The overall objective of this is to “clean” the money, as the illegal cash will be mixed in with regular money. In this way, the launderer can recoup their funds with legitimate money, while disassociating themselves with the “dirty” money.

How does this tie in to mortgages?

There are quite a few ways a mortgage can be used as means of laundering money. One way is by using laundered money as a deposit. Another is to simply overpay a loan. Another option for money launderers is to target a lender to secure a buy-to-let mortgage, and then launder money through rental income.

As an honest person looking into mortgage options, however, how should you avoid being suspected of mortgage fraud, and potentially damaging your application? Read on to find out.

Gifted deposits

A gifted deposit is exactly what it sounds like, a gift from a friend or family in the form of cash towards your deposit. This is clearly a wonderful and kind gesture, but there are a few things that you must take into account.

Firstly, it is understandable that a large sum of money being transferred into your account out of the blue will look suspicious. Money lenders and solicitors will always question where these types of transfers have come from. If you fail to provide a good answer, a money laundering investigation may be launched which will affect your mortgage application.

What you have to do is provide evidence that this money has come from a legitimate source, and was given to you freely. Evidence usually comes in the form of a signed letter from the person gifting you the money, stating that it is not a loan which will need to be repaid, but rather a one off gift. It should also state that this money does not entitle the person providing it any share of the property which it is going towards paying for. Your mortgage adviser can provide you with a document template if you are unsure, as can we here at Lisa’s Law.

Credit card deposits

A huge amount of fraud takes place using credit cards, in fact it accounts for 39% of cases in the UK. Common types of credit fraud involve lost or stolen credit cards being used without the owner’s permission or knowledge, stealing credit card details and committing fraudulent applications using someone else’s identity.

This is in part why most mortgage lenders will refuse an application. They see payments via credit cards as risky, as they are essentially loans rather than outright payments. It is best to avoid using them.

Cut ties with your ex-partner

Being linked with an ex-partner means that their spending and credit record will affect how you look. This can be a big problem if they are not careful with their money, and can have a detrimental effect on your mortgage application. This is because mortgage lenders have to trust that you will be able to make your mortgage payments on time, and unpredictable spending can make you look unreliable.

If you believe you may still be linked financially to an ex-partner, contact credit reference agencies and explain the situation to them. They should be able to unlink the two of you.

Personal savings and inheritance

This is the most common way people put down a deposit and will usually be accepted by most mortgage lenders without many questions. It still needs to be verified that the money has come from a legitimate source, so make sure that you can prove your claim to the inheritance with documentation showing exactly where the money has come from, and have records of what account it has been in since it came your way.

When it comes to personal savings it is good practice to have payslips ready to be inspected, so that your income can me verified.

Also, for salaried staff, lenders sometimes carry out a background check against the employer to satisfy themselves that the employer does have the capability to pay the staff.

Register to the electoral roll

This essentially means you are registered to vote. Mortgage lenders must be able to verify your identity for purposes of anti-money laundering. If you are registered on the electoral roll, they will be able to see that you are really who you claim to be as it enables lenders to check your information, confirm your name, address and residential history.

Not being on the electoral roll is a sure fire way to have your mortgage application denied.

What if you are self-employed?

Self-employed people may have a few extra hoops to jump through when securing a mortgage because their income may vary from month to month. This makes them less reliable in the eyes of mortgage lenders. What if one month they cannot make a payment due to their business falling short? You can understand their concern.

Lenders will see you as self-employed if you own more than 20% to 25% of a business, which provides your main source of income. You could be a sole trader, company director, or contractor.

Proving your income as a self-employed person:

To prove your income when you apply for a self-employed mortgage, you will need to provide:

Two or more years’ certified accounts

SA302 forms or a tax year overview (from HMRC) for the past two or three years

Evidence of upcoming contracts (if you are a contractor)

Evidence of dividend payments or retained profits (if you are a company director)

For self-employed running business as a limited company, the lender will request for full annual accounts or CT600 or both. The lender will also look at the actual salary or dividend the applicant has drawn from the company together with the profit retained within the company.

Have questions? We are here for you!

In the meantime, we are operating as usual, and you can reach us on 020 7928 0276 or email in to info@lisaslaw.co.uk for any questions you may have on this topic.

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

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

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

Introduction of the Innovator Founder route

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

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

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

Updates to employment requirements in work routes

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

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

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

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

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

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

These are as follows:

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

Changes to the Youth Mobility Scheme (YMS)

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

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

Introduction of new Appendix Adult Dependent Relative

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

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

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

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

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

Validity
Suitability
Eligibility
Decision

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

Changes to the Long Residence rules

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

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

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

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

By Evveline Loh

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

Summary of the case

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

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

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

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

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

Judgment

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

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

Our comments

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

Have questions about this article? Get in touch today!

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

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

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

Background

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

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

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

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

The Appellant commenced Judicial Review Proceedings.

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

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

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

Our comments

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

Have questions about this article? Get in touch today!

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