Copyright Confusion! Work done in ‘personal time’ deemed to be owned by employer instead of employee.

Everyone likes to be rewarded for the work they do, and it is a well-known fact that employees who feel valued by their employers tend to be more productive and achieve a more harmonious work/life balance.

However, in some circumstances there can be friction in the work place. One such issue that has arisen in the case we will look at today is a debate over ownership rights of a particular software. Does the fact that the material was written by a single person matter when that person is under the employment of a wider firm? We will examine this the legal components of this matter and offer some potential tips that can be followed in order to avoid such confusion in the future.

Let’s look at the case: Penhallurick v MD5 Ltd

This case revolves around work completed by Mr Penhallurick, specifically a collection of literary pieces consisting of computer software. This work was done while Mr Penhallurick was employed by the company MD5 Ltd.

The trouble begins due to Mr Penhallurick’s claiming that the final product is his alone, as the sole creator. He also held the opinion that he had completed early versions of the product before he worked for MD5 Ltd, which was essential to its final form. MD5 Ltd contended that all of the software was created in the course of Mr Penhallurick’s employment, therefore the copyright was owned by them.

The issue of payment added an interesting dynamic to the case, whereby Mr Penhallurick claimed that he had simply licensed the copyright of the software to MD5 Ltd in return for the payment of royalties. This was disputed by MD5 Ltd, who claimed that any extra payments that Mr Penhallurick had earned were in the form of bonuses rather that a precursor to any royalties agreement.

What did the courts decide?

The court found that even though much of the work had been completed on Mr Penhalluricks’s personal computer, and at his own home, it was still done in the course of his employment at MD5 Ltd. The nature of the work he was doing at home was cohesive with that which he was paid to do by MD5 Ltd. This included the source code for the product, which was considered the most vital part of the material. It was found that despite choosing to work from home, the work itself was indistinguishable from his duties at MD5 Ltd.

An interesting observation from a legal point of view comes in the form of Mr Penhallurick’s perceived confusion over legal drafting surrounding his duties, in other words, his employment contract. He argued that it was not made clear that such work completed in his own time would still be considered MD5 Ltds property. However, the judge ruled that any disputes over contracts which did not go in his favour, especially having been agreed to before seeking any legal advice, did not carry much weight in circumstances such as these, especially when the evidence indicated that all of the most important aspects of the disputed product were created after Mr Penhallurick began working for MD5 Ltd, and the task of doing so was central to his regular duties.

Our thoughts

This case illustrates perfectly the importance of knowing your legal standing in any given situation, and more specifically in terms of your employment. While some may sympathise with Mr Penhallurick, we must look at this case purely from a legal point of view. Parties must be sure to seek legal advice on any contract that is put before them before they agree to it, especially if they feel vague on any of the points raised in such contract.

For example, if there was a clause in Mr Penhallurick’s contract regarding work completed at home being separate from that which he completes in the office or other locations, the court may have been more willing to take his side of the argument, or at least give him some more credit. If Mr Penhallurick knew he was going to work a lot from home with the intention of taking ownership of the outcome of that work, then this hypothetical clause should have been at the front of his mind.

While there may be room for debate in terms of an ethical or moral way to view the outcome of this case, on the evidence given here, we must agree with the decision that MD5 Ltd is entitled, legally, to the ownership of this software.

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Mother’s plan to keep child backfires! A look into child custody and supervised contact

The love and responsibility that parents feel for their children can be one of the most powerful things in the world. Often, parents will make life decisions based around what is best for their children, even when it means a harder life for themselves. However, there are times when parents can make the wrong decisions even if they believe they are acting in a way that benefits their children. This can be especially prevalent when the parents are having trouble in their relationship and the child ends up being caught in the middle of the feud.

Today’s blog examines a recent case in which a mother acted to keep her child all to herself against the father’s will, but her actions ultimately reduced the time she could spend with her child.

The case in question: A (a child) (supervised contact) (s 91(14) Children Act 1989 orders)

At the centre of this case is a seven year old child whom we will refer to as A. A’s mother, it was found, had been deliberately isolating A from the father. This meant putting distance between them, moving far away from the father and not allowing any contact. This was done in a covert fashion so that the father did not know exactly where the child and the mother were.

Along with moving away, the mother also sent various emails to A’s school, A’s doctor’s office, the police and social services which slandered the father and brought against him numerous unfounded allegations, many of which were very serious had they been true. Emails were also sent to the father directly.

Not only was the mother complaining about the father, but she also raised issues with many of the professionals involved in A’s life, such as social workers and legal officials.

Such behaviour was deemed irrational by the first instance family Court, and orders were made for A to live with her father and that any future contact between A and the mother be professionally supervised. Further orders were made to ensure that neither mother nor father could make further applications in the proceedings without permission of the court.

The mother appealed on the basis that the supervised visits coupled with the removal of her ability to freely appeal would drastically hinder her chances of progressing to unsupervised contact with A.

Decisions to be made

Within this case there were a few different aspects for the courts to take into considerations. The first was concerned with the mother’s erratic behaviour, which was ultimately decided to be out of her control and to the detriment of A. The court’s only option was to either prohibit all contact between the mother and A or have the contact be supervised. Due to the importance of familial contact, the choice was made in favour of supervised contact as opposed to none at all.

Secondly, there was the order to limit applications made from either parent. Often, such an order is put in place where parties make excessive applications to courts regarding a certain matter, often with no solid grounding in reality. In this case the harassment experienced by the father, along with complaints made to police and social services by the mother amounted to enough reason to make such an order. If such applications continue to be shrouded in unfounded allegations and devious complaints, then it was decided to be in the best interest of A that a limit be put on them.

Behaviour backfires

It is clear to use here that the mother’s behaviour played a huge role in the outcome of this case, and that had she acted in a more reasonable way, perhaps co-operating with the father more, then she may not have had her time spent with A restricted and supervised in this way.

We would say that before making any kind of rash decision in relation to your child, it is always best to seek legal advice to make sure that what you plan to do will not actually have adverse consequences for you or your child. Extreme behaviour such as what we see in this case is seldom a good idea.

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Welcome Xinru!

We are thrilled to announce Xinru Jia has joined us as a Legal Assistant, and has already shown herself to be a fantastic addition to our firm!

Xinru achieved her bachelor’s degree in law in 2020 from Zhongnan University of Economics and Law, she then graduated from UCL in 2021 with master’s degree in law.

While at university, she took up internships in both law firms and courts, which allowed her to gain practical experience. She also earned the China Legal Professional Qualification Certificate in 2019.

In addition to law, Xinru also studied psychology during university as her minor. When she is free, Xinru enjoys swimming and playing the piano. She also learning the flute.

Xinru speaks fluent Chinese and English.

Have questions? Get in touch today!

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

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Welcome Xijia!

We are so pleased to welcome Xijia Xie into our firm, joining us as a Legal Assistant. He has proven himself to be dedicated and knowledgeable, a real asset to our team!

Xijia is a qualified public service interpreter (DPSI English Law Pathway, Mandarin/English). He completed his MA in Law while studying at the University of Law in 2021 and did his first master’s degree in Translation and Interpretation at Newcastle University in 2020.

Before coming to the UK, he worked at Air New Zealand (Shanghai Base) from 2014 to 2019.

Xijia speaks English, Mandarin and Japanese.

Pleased to have you on board, Xijia!

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Why would one want to have a clean break regarding matrimonial assets in divorce?

Written by Xinlei Zhang.

The recent case of Sismey v Salandron [2021] 10 WLUK 372 illustrates the importance of having a clear break following a divorce settlement. It concerns a divorce settlement which was not effective during the parties’ lifetime, but only came into force by way of a will on one party’s death. What happened to such settlement when the relevant party died and his will which was supposed to implement the settlement had it been invalidated? Would such settlement still be able to be saved by the Court? Let’s look at this case.

Facts

The Husband purchased a property in his sole name, later married to the Wife in 1988. The Property was used as their matrimonial home during the marriage. There was a child, T, between the Husband and the Wife. The Husband formed a relationship with M in 2002, which led to the separation between the Husband and the Wife. In 2017, a Consent Order was approved by the Judge regarding their financial division, in which the Husband agreed to leave the matrimonial home (“the Property” hereinafter)e left to T on his death by way of will. Other agreed terms were the Wife would take the savings and a joint investment property; and the husband would retain his pension.

In 2019, the Husband remarried to M. He subsequently died on 8 January 2020.

Although the Husband did execute a will which reflected the divorce settlement between the couple in 2017, it was automatically revoked by his subsequent re-marriage to M, which means that the gift of the Property to T contained in the will was no longer valid. In the meantime, as the Husband did not execute another will before his death. He died intestate. As his spouse, M inherited the Husband’s estate, including the Property.

This was clearly out of T’s expectation (and the Wife). He made a claim against the Husband’s estate for the Property on the ground that there was a breach of the agreed divorce settlement. M counter claimed and argued that the divorce settlement was entered with the intention of defeating her future claim. Therefore, it is unenforceable. She also submitted that the Wife received greater value of assets than she would have achieved if they had been in divorce financial proceedings.

What did the Court decide?

The Court upheld the divorce settlement and dismissed M’s counter claim. . It was the Court’s view that the divorce agreement reflected the Party’s genuine intention. After the issuing of the consent order, the Property was simply held on trust for T by the Husband, which should not form part of this estate any longer and hence be passed to M on his death.

Comments

Although T eventually claimed back the Property, the costs of the proceedings and the delay therefrom cannot be ignored. If the legal title had been transferred to T with the Husband being a lifetime tenant or a lifetime trust regarding the Property had been set up in favour of T at the time of divorce, the subsequent litigation could have been avoided completely. This case demonstrates once again that it is advisable to obtain a clean break upon one’s divorce, because no one can foresee what might happen in the future, intended or not.

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Father takes legal action against ‘globe-trotting’ mother in order to claim child back from an unwanted nomadic lifestyle – a lesson in habitual residence.

There are many issues that can arise between parents, often related to their own children. It is true that being responsible for a young person is difficult, but it can be made even harder when the parents themselves stop seeing eye to eye on important matters, such as how and where the child lives.

In this blog we will look into a recent case in which a mother and child had been travelling around constantly for many years, against the father’s wishes. They had been living a nomadic lifestyle, making them hard to track. How far does the arm of UK law reach in this case, and what could be done to find a solution to this complex problem?

The case in question: FA v MA

The proceedings revolved around a 13 year old child, who we will refer to as ‘C’, who had been living a nomadic lifestyle with his mother, travelling around and staying in many different countries for short amounts of time. They would occasionally return to the UK and stay with friends or family, but most recently they had been living in Nepal.

C’s father did not approve of this lifestyle, and reported receiving text messages from C saying that he did not want to live in Nepal anymore and that the mother did not care about him. As a result of this, the father applied for: (i) a child arrangements order; (ii) a prohibited steps order, preventing the mother from removing A from the jurisdiction; (iii) a specific issue order requiring the mother to return A to the jurisdiction of England and Wales; and (iv) an order under the inherent jurisdiction for A’s return to England.

Issues and outcomes

Now, there is a lot to delve into in this case, and you can find the full judgement here. For the purposes of this blog we will focus on the key issue at large here.

One major aspect of this case, and an aspect that can be applied to many other cases, is where the child is deemed to habitually reside. What we mean by habitually reside, essentially, is where this child calls home. There is normally only one habitual residence where the individual usually resides and routinely returns to after visiting other places.

The mother put forward that C was habitually resident in Nepal and that he had lost his habitual residence in England soon after they had adopted a globe-trotting way of life from 2016 onwards. She denied that there had been a wrongful removal of C and she claimed that the father had agreed that she and C could leave such jurisdiction. Following this, the mother submitted that the court should not conclude that it had jurisdiction in connection with divorce or that it was appropriate to make orders based on C’s nationality.

This concept of habitual residence is of great importance when determining the jurisdiction of the UK legal system. Essentially, it plays a huge part in whether the courts can act on the father’s wishes to pursue a child arrangement order, or not.

The courts knew that it was a close call between England and Nepal, in terms of where C’s habitual residence should be considered. However, the scales were tipped in favour of Nepal. While there were definite links the England, such as C’s father, some extended family and friends, it was decided that the unique lifestyle that C had lived with his mother had led to him develop roots of greater depth and consequence in Nepal. It was true that they might, eventually, be uprooted in favour of another destination and his roots in Nepal might disintegrate more rapidly than the roots of his integration in England, but that did not nullify the reality of his current integration in Nepal.

As a result of this decision, the court did not have jurisdiction over the child and therefore could not follow through with the fathers desires.

Moving forwards, the father’s applications for child arrangement orders were dismissed, however the court did believe that it had inherent jurisdiction based on C’s British citizenship on common law ground and invited the Cafcass High Court team to provide a report on whether it would be in C’s best interest for him to be brought back to the UK. The father and the mother will need to set out their respective cases on the options for C in the future.

Our thoughts

This case demonstrates that the courts may not always have the power to fix every problem, and that in fact in some situations they are powerless. This can be frustrating and can cause on-going issues when people are faced with such a dead-end.

In terms of whether we agree with the outcome of this case, the answer is hard to come to for sure. The issue of habitual residence is always fact-based. Different persons or even Courts may reach different conclusions based on the same facts; however, one point which needs to be noted is that if a parent wants the Court to order for his/her child(ren) to be brought back to the UK from another jurisdiction, he/she needs to act promptly, well before the child(ren) have integrated into the other jurisdiction.

It is one more case that demonstrates how complex and challenging it can be to make the so called ‘right’ decision.

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Acas publishes new guidance on fire and rehire practices. What do they say and how might employers and employees be affected?

When it comes to running a business there are often ups and downs; one of the more significant negatives can be sizing down on staff. Of course, sometimes there are inescapable reasons for firing an employee that would not be up for debate, such as stealing from the company, behaving in an aggressive way to co-workers or refusing outright to work.

The challenge and controversy can arise when the employers have something in mind in regards to how they want the business to run, or how they want particular employees to work, which can eventually lead to employees being fired and new people hired to replace them. However, often there may be ways to avoid sacking people and still be able to achieve the changes those at the top of the business are aiming for. This is what ACAS hopes their new guidance can help with.

What is fire and rehire?

Just to remove any doubt, the process of fire and rehire involves an employer firing or threatening to fire a worker if they do not agree to new terms within the company. It is not a one size fits all situation, and each case is different, but in many cases the changes are negative to the worker. For example, it could be a decrease in pay, reduction of allocated holiday time or removal of sick pay.

It can also be used for instances when staff are removed and then made to reapply for new roles within the same company.

What does Acas say?

Acas Chief Executive, Susan Clews, has said:

“Our new advice is clear that fire and rehire is an extreme step that can seriously damage working relations and has significant legal risks for organisations.

“Employers should thoroughly explore all other options first and make every effort to reach agreement with staff on any contract changes.

“Organisations that consult with their workforce in a genuine and meaningful way about proposed changes can help prevent conflict at work and stay within the law.”

Risks of hiring and firing

The Acas report goes on to list reasons why going down the route of firing and rehiring can often backfire on the employers themselves, and create a myriad of other issues. For example, their ex-employees may take legal action against them if they feel strongly enough, remaining staff may lose trust and begin to look elsewhere, and the firm may fall victim to reputational damage which is likely to make attracting new workers difficult.

Acas recommendations

In their guidance, Acas make a number of recommendations to employers who are thinking of making changes to employment contacts. Some of which may be helpful and can at least provide other options instead of moving straight to the fire and rehire stage.

What to consider first

As an employer, before you propose an employment contract change, you should consider:

what issue you are trying to solve

if a contract change is definitely needed to solve it

It is always worth looking at the problem from multiple angles to see if there are other ways of solving it.

Examples of when employers may need to consider employment contract changes include:

to make sure contracts are up to date with new laws or regulations

to better reflect someone’s job role, if it has changed

to introduce new terms and conditions, for example contractual redundancy pay or enhanced maternity, paternity, parental or adoption leave and pay

to reflect changes to an organisation, for example if it is considering moving to a different location or changing who people report to

helping an organisation better adapt to changing customer needs

economic reasons, for example if an organisation is considering a restructure or other changes to stay competitive in a changing market

Proposing the contract changes

Employers must inform all affected employees and workers and any relevant employee representatives, communication is absolutely key.

Employers must inform them about:

what the proposed changes are

who might be affected

why the changes may be needed

the timeframe for the proposed changes

any other options that have been considered

It is also important to take note of anyone who is absent when this information is communicated, or anyone who needs the information given to them in a different language for example. You cannot leave anyone out.

Providing clear information as early as possible helps:

give enough time for everyone to consider the proposed changes and how they wish to respond

explain what other options have been considered and why they are not considered appropriate

build trust by giving employees a say and assuring them you want to hear their concerns and suggestions

everyone work together to find solutions if there’s any disagreement about the proposed changes

Where contracts cannot be agreed to

This is the tricky part, and most likely the part of the guidance that will be of most use to employers. It is worth saying that while it may seem impossible at times to successfully negotiate, it is always worth trying to the very end, as it can make things much easier going forwards.

To stay focused on keeping discussions constructive, it can help to:

share any more relevant information – being transparent about your reasons can help others understand them better and make discussions more effective

continue to ask questions and listen to answers – taking time to understand other people’s views can help you find common ground

be prepared to consider changes to your original proposal – encourage alternative solutions and be open-minded to them

try to agree one change at a time – it can help to break down complex problems into smaller ones, for example start with ‘what’ might need to change, then move on to ‘how’ and ‘when’

recognise that differences of opinion are normal and to be expected – considering different views can lead to new possibilities to explore

try to find a solution that includes something for everyone – do not assume that someone must win and someone must lose

Dismissing and rehiring

If worst comes to worst, and the only way forward is to submit to the dismissal process, Acas has some advice on how to make it go as smooth as possible.

It is important to consider that by ending the employee’s original contract of employment you will be dismissing them. So you must:

have a fair reason for dismissal

follow a fair dismissal process

provide the correct amount of notice

offer the employee the right of appeal against their dismissal

If you dismiss and offer to rehire someone and it is not a redundancy situation, you will need to show you had ‘some other substantial reason’ to dismiss if it is challenged at an employment tribunal.

For example, it might be considered ‘some other substantial reason’ if:

your business is in severe financial distress

you have made exhaustive attempts to reach agreement on contract changes

there was genuinely no other option but to dismiss and offer to rehire

Possible employment tribunals

An employment tribunal will consider factors such as:

if you had a good business reason for introducing the change

if you reasonably and genuinely consulted with employees, including making any compromises where appropriate

if the changes you made were reasonable, for example if changes did not unfairly affect the financial wellbeing of employees

the extent to which you considered alternatives to dismissal

if any recognised trade union recommended or objected to the proposed terms

how many employees accepted the change and how many rejected it

if it was reasonable for an employee to refuse the change in the circumstances

Our thoughts

As a business ourselves, we are well aware that changes can occur as firms grow, people develop new skills and employees start moving up and down the ladder. It is the nature of working life. However, it is important to accommodate changes in the correct way, and to be open and supportive of your workers.

As you can see from the above points, it can be easy to fall into bad habits which can lead to disruption in the workplace. It is so important that colleagues are treated with the respect they deserve. Even if the only option is to get rid of old staff and bring in new people, the proper processes have to be followed if an employment tribunal is to be avoided. More often than not, however, we believe that such problems can often be solved internally with the right motivation and communication from employers who use best practice.

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If your ex-spouse has taken your children and moved permanently to another country, can you bring them back?

Written by Angeline Teoh.

If you and your ex-spouse are separated, it is illegal for any parties to take the child(ren) abroad without the other parent’s consent, unless permission from the Court is obtained. Failing to obtain consent from the other party will make you run a risk of falling foul of the Child Abduction Act 1984 and/or the Hague Convention on Civil Aspects of International Child abduction.

If your ex-spouse has taken your children outside the United Kingdom without your consent, you may be able to apply to the Court for an order requesting for the children to be brought back; however, it is an important/vital issue that in which country the children are habitually residing on the date of the application. This means that you will need to make such application as soon as possible, as the longer you delay it, the more your children will have resided in the relevant county and the more reluctant the Court will be to make any order so to change the children’s habitual residence. Such application is far from being certain, which is illustrated by the following case.

ES v LD [2021] EWHC 2758(Fam)

In the recent case of Es v LD [2021], the two children, aged 14 ½ and 12 moved to the UK from Latvia in December 2019 with their mother after the parents were divorced. The mother stated that the father gave his consent orally and agreed to let the children remain in the UK. The father also had full knowledge since December 2019 that the children were now living in the UK and the father had contact with the children via video calls.

However, the father had not done anything to commence proceedings in Latvia during the whole 21 months when the children were living in the UK. The father only commenced proceedings in the UK, under the Hague Convention on the Civil Aspects of International Child Abduction 1980 (the 1980 Hague Convention) on 13 May 2021. At that time, the children have already habitually resided in the UK for more than 12 months.

The issue for this case is whether the father’s application, seeking the return of the children to Latvia, should be granted?

Regarding the father’s application, the mother has four defences:

The children were settled in the UK, pursuant to Article 12 of the 1980 Hague Convention

The children objected to being returned to Latvia, pursuant to Article 13

There had been consent and acquiescence under Article 13(a)

There was a grave risk of harm and intolerability under Article 13(b)

The issue for the first defence was whether the children, having resided in the UK for more than 12 months, mounted to the definition of “settled”. It was stated in the judgment that “settled” is defined as “a person had to not only physically reside in a new home as a permanent residence, but had to genuinely intend to establish that place as a new home. Both the physical constituent and mental constituent have to be proved”.

The judge submitted that it was ‘quite clear’ that the children were settled in the UK both on the date of the application and on the date of trial. For the first 11 months, the children and their mother had lived in the UK ‘quite remarkably’ and had now settled in the new environment.

In addition, for the whole 21 months when the children were living in the UK, the father was aware of their whereabouts but no request for a return was made during that one-year period. The father only commenced proceedings after 21 months, which the children had already settled in the UK.

The finding that both children were settled in the UK meant that all the elements of Article 7 of the Hague Convention 1996 were proved,

The issue for the second defence was whether the children had actually objected to a return to Latvia and whether the children had attained an age and degree of maturity at which it was appropriate to take account of their views.

It was found that the children objected to a return to Latvia and they were of an age and degree of maturity at which it was appropriate to take account of their views. The Court exercised the discretion granted to it under Article 13 of the 1980 Hague Convention against a return of the children to Latvia. The Court declined to adjudicate the mother’s further defences as it was unnecessary to do so in the circumstances where first and second defences had succeeded. The father’s application was therefore dismissed.

Our comments

This case is a good reminder to everyone to act immediately in a children custody case. The result of the father’s application might have been different if the father had commenced proceedings earlier, and not wait for 21 months period. As stated above, children’s integration into a local society increases with the elapse of time. The speediness of such proceedings is likely to affect this important factor and the judge’s discretion.

If you think your child is at risk of child abduction or has been taken abroad by the other party without your consent, please seek legal advice immediately. It is very important to act promptly in the case of child abduction. We also urge you to seek legal advice if you are unsure of what to do in such circumstances or whether you are allowed to take your child abroad.

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Persistence, preparation and persuasion is key!

Written by Mahfuz Ahmed.

We were recently successful in an appeal of significant importance to our client, which shows that a client’s persistence and a well prepared appeal, can lead to a fantastic result, regardless of previous decisions.

Background

Our client is a Chinese national who came to the UK alone over 17 years ago, leaving his wife and 2 children. He was granted indefinite leave to remain a few years later.

In 2013, our client instructed solicitors to make an application for his wife and 2 children to join him in the United Kingdom. The application was refused and his appeal was dismissed, as the Judge believed that our client was no longer in a genuine relationship.

Our client instructed another firm of solicitors in 2015 to again make an application and similarly this was again refused, and appeal dismissed for the same reason.

In 2017, the client instructed new solicitors for a third time. However, on this occasion he made an application for his wife and 1 child to join him, as the other had unfortunately become an adult. The application was again refused and appeal was dismissed.

Our instruction

The client approached us and instructed us to represent himself and his family. We were his fourth solicitors that he had used. The Client placed great trust in us as at the time of the application his son was almost 18 years old and therefore should the application be refused, any future applications could not include his children.

The Appeal

As expected, the application for his wife and son to enter the United Kingdom was refused. The matter proceeded to appeal.

We had no doubt that there would be great difficulty in persuading a first-tier Judge that their relationship is genuine and persisting after all these years. We had the momentous task of dealing with the principles in Devaseelan (Second Appeals – ECHR – Extra-Territorial Effect) Sri Lanka *[2002] UKIAT 0070 which state that if there is a previous appeal on the matter, then the findings of the Judge during the previous appeal would be the starting point in the current appeal. In our case there were three negative judgements!

We prepared the appeal with great care, formulating what we believed to be key arguments that was not considered previously. The Client was robustly represented at the appeal hearing and the appeal was successful.

Our Comments

This case shows the importance of persistence. If you are in the UK, and have previously tried to make an application for family member to join you or obtain leave to remain in the UK, then any refusal should not deter you. If the matter is of great significance to you then we feel you should not concede.

It shows the importance of an appeal being well prepared and legal expertise required for such preparation. Choosing the correct legal representation is the vital first step in any legal matter.

Our view is that there is nothing more important than being together with your loved ones, especially in light of the current circumstances and therefore we are delighted that our client’s family can finally join him here in the UK.

Should you require assistance in making an application for your family member to join you or remain with you in the United Kingdom, then do get in touch.

Have questions? Get in touch today!

Call us on 020 7928 0276, phone calls are operating as usual and 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!

Links to download below:

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lisaslaw@web

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How can COVID-19 restrictions affect EUSS applicants, and what measures are in place to bypass this issue?

One of the major concerns for people applying to the EU Settlement Scheme throughout the ongoing pandemic is the fact that they have been outside the UK for longer than they had planned, meaning their continual residence may be affected. This can easily occur when travel restrictions are put in place, meaning people can be stranded, and it is not their fault. You will remember that for an extended period there were many countries on the ‘red’ and ‘amber’ lists, which meant people in those countries could not travel to the UK or could only do so under specific circumstances.

This blog will look into the guidance around EUSS applicants who have faced such hardships, and whose absence from the UK has exceed the permitted time limit to successfully apply to the scheme in regular circumstances, due to COVID-19 restrictions.

Making your situation known

The deadline to apply for the EUSS was 30 June 2021 for most people. However, you can still apply if either you have a later deadline – for example, you are joining a family member in the UK who was living in the UK by 31 December 2020 or you have ‘reasonable grounds’ for being unable to apply by 30 June 2021.

When completing your initial application to the EUSS, there will be a space available in which you can provide details regarding how COVID-19, or other significant factors, affected your situation and restricted your ability to travel back to the UK.

Each application will be assessed on a case-by-case basis, and caseworkers are said to be adopting a flexible approach and using discretion where appropriate, which we hope is true. You may be contacted for further information or evidence to support your application where the caseworker feels this is necessary.

Providing evidence

There is specific evidence that will be accepted when you explain your situation on your application.

Examples of acceptable evidence include (but are not limited to):

used travel tickets confirming the dates you left the UK and returned
confirmation of flight cancellations detailing the dates and times
doctor’s letter confirming you contracted coronavirus
doctor’s letter confirming you were identified as vulnerable and advised to shield
email or letter confirming you, or a person you were living with, received a positive coronavirus test result
official letter confirming you were in coronavirus quarantine
doctor’s letter confirming your family member, who you have been caring for, contracted coronavirus or was identified as vulnerable and advised to shield
email or letter confirming your family member, who you have been caring for, received a positive coronavirus test result
letter from a university advising you that, due to coronavirus, your course was moved to remote learning and you were advised or allowed to return to your home country to study remotely
letter from a university or employer advising you not to return to the UK, and to continue studying or working remotely from your home country, due to coronavirus
letter or other evidence from you accounting for your absence for another reason relating to coronavirus, for example, you left or remained outside the UK because there were fewer coronavirus restrictions elsewhere; you preferred to work or run a business from home overseas; or you would have been unemployed in the UK and preferred to rely on support from family or friends overseas

You can provide a copy of these documents, however the Home Office may ask you to send them the original documents if they need to see them.

Have not been able to renew passport?

If your situation has arisen from not being able to renew a passport or travel documentation due to coronavirus, you will need to provide some information so that your identity can be confirmed. These can be:

a document previously issued by the Home Office
an expired passport or national identity card
an official document issued by the authorities of your country of origin or of the UK which confirms your identity and nationality

Assessing your absence

There are slightly different rules depending on how long you were absence from the UK for, but largely the accepted reasons for an absence are the same across the board.

For example, absence of up to 12 months for an ‘important reason’ can be explained by the following reasons, you were:

ill with coronavirus
in quarantine, self-isolating or shielding in accordance with local public health guidance on coronavirus
caring for a family member affected by coronavirus
prevented from returning earlier to the UK due to travel disruption caused by coronavirus
advised by your university that, due to coronavirus, your course was moved to remote learning and you were advised or allowed to return to your home country to study remotely
advised by your university or employer not to return to the UK, and to continue studying or working remotely from your home country
absent from the UK for another reason relating to coronavirus, for example, you left or remained outside the UK because there were fewer coronavirus restrictions elsewhere; you preferred to work or run a business from home overseas; or you would have been unemployed in the UK and preferred to rely on support from family or friends overseas

This means you can rely on any coronavirus related reason (including where you chose to leave or remain outside the UK because of the pandemic) as being an ‘important reason’ permitting an absence of up to 12 months. In these circumstances, you will not have broken your continuous qualifying period of residence.

The above reasons can also be used to explain absence not intended to exceed 6 months and did not exceed 12 months.

Things change slightly when the absence is more than 12 months. Examples of an ‘important reason’ in this instance include (but are not limited to):

pregnancy
childbirth
serious illness
study
vocational training
an overseas posting

However, you can still rely on reasons to do with coronavirus if this is what has affected you. This includes (but is not limited to) where you can show you were:

ill with coronavirus
in quarantine, self-isolating or shielding in accordance with local public health guidance on coronavirus
caring for a family member affected by coronavirus
prevented from returning earlier to the UK due to travel disruption caused by coronavirus
advised by your university or employer not to return to the UK, and to continue studying or working remotely from your home country, due to coronavirus

Our thoughts

We believe that appropriate measures are in place to support those who missed the EUSS deadline get back on the right track. It is essential that such allowances are made for those affected by coronavirus, or indeed other important reasons which meant they were unable to return to the UK. There is no reason to punish people for being in situations outside of their own control, and we hope that discretion can be made by the Home Office and a lenient approach taken to people who otherwise would likely have returned to the UK in time.

Have questions? Get in touch today!

Call us on 020 7928 0276, phone calls are operating as usual and 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!

Links to download below:

iPhone: https://apps.apple.com/us/app/lisas-law/id1503174541?ls=1

Android: https://play.google.com/store/apps/details?id=com.lisaslaw

lisaslaw@web

See Full Bio