Paragraph 39E of the Immigration rules and whether application for leave to remain is considered to be made ‘in-time’.

Written by Mahfuz Ahmed.

An application for a leave to remain must be made prior to the expiry of your existing leave to ensure that you are not an overstayer. Overstaying in the UK will subject you to the hostile environment, which means there will be restrictions in renting, employment, accessing medical treatment and long term consequences, such as being banned from re-entering the UK for up to 10 years.

Overstaying can also be detrimental to any new immigration application that you wish to make which may refuse you for being an overstayer.

There is a an exception to overstaying in Paragraph 39Eof the Immigration Rules allows the current period of overstaying to be disregarded. Paragraph 39Eof the Immigration Rules states:

39E. This paragraph applies where:

(1) the application was made within 14 days of the applicant’s leave expiring and the Secretary of State considers that there was a good reason beyond the control of the applicant or their representative, provided in or with the application, why the application could not be made in-time; or

(2) the application was made:

(a) following the refusal of a previous application for leave which was made in-time; and

(b) within 14 days of:

(i) the refusal of the previous application for leave; or

(ii) the expiry of any leave extended by section 3C of the Immigration Act 1971; or

(iii) the expiry of the time-limit for making an in-time application for administrative review or appeal (where applicable); or

(iv) any administrative review or appeal being concluded, withdrawn or abandoned or lapsing.

(3) the period overstaying was between 24 January and 31 August 2020; or

(4) where the applicant has, or had, permission on the Hong Kong BN(O) route, the period of overstaying was between 1 July 2020 and 31 January 2021.

The Secretary of State for the Home Department v Ali [2021] EWCA Civ 1357 (14 September 2021)

Mr Ali is a Pakistani national who entered the UK as student in 2010. He was granted a Tier 1 (Post-Study) Migrant visa on 8th March 2013 which was valid until 8^th March 2015.

Prior to the expiry of his visa, he made an application to remain as a Tier 1 (Entrepreneur) Migrant, which was refused on 8^th May 2015, and he subsequently appealed this decision. During this time, Mr Ali had Section 3C leave until the appeal was concluded as the initial application was made before the expiry of his leave.

The First-tier Tribunal refused Mr Ali’s appeal and he became appeal rights exhausted in October 2016, which resulted in Section 3C leave coming to an end and Mr Ali was an overstayer.

On 9^th November 2016, Mr Ali made a new application to remain as a Tier 1 (Entrepreneur) Migrant (made within 28 days) which was refused following administrative review on 16^th February 2017.

On 4^th March 2017, Mr Ali once again made another new application for leave as a Tier 1 (Entrepreneur) Migrant (made within 14 days following the refusal of the last application), however this time, the application was refused on the basis of paragraph 245DD(G) of the Immigration Rules which excluded those who had overstayed, unless paragraph 39E applied.

Mr Ali sought Judicial Review as he believed the exceptions in section 39E applied as he made the application ‘in-time’. The Secretary of State accepted that Mr Ali’ first application as made ‘in-time’, in relation to his second application, the period of overstaying was disregarded as it was made within 28 days of his first refusal. However, they argued that in relation to Mr Ali’s third application, he had been an overstayer for 5 months and therefore paragraph 39E did not apply.

The Upper Tribunal considered the matter and concluded that section 39E applied to Mr Ali and therefore granted Mr Ali’s application. The Secretary of State appealed the decision.

The case was before the Court of Appeal who concluded that the Upper Tribunal had erred in law in reaching the conclusion that paragraph 39E applied to Mr Ali’s case.

The Court concluded that the interpretation of “in-time” as meaning before the expiry of a period of existing leave which is also supported by the reference to section 3C in paragraph 39E(2). A person can only obtain an extension of leave under section 3C if they have made an application for leave prior to the expiry of their leave to remain. Paragraph 39E has no role to extend section 3C leave.

Our Comments

The Court has confirmed that an application is considered ‘in time’ only if it is submitted prior to the expiry of a person’s visa. The rationale behind the decision is to prevent people from relying on the grace period given in paragraph 39E twice. Paragraph 39E has no role to extend section 3C leave and its role is to simply disregard the short period of overstaying when a new application is considered which would otherwise be refused mainly on the ground of overstaying.

This decision shows the importance of ensuring that great care is taken in any application for leave to remain, subsequent administrative review or appeal, first time, as you may not be entitled to the same exemptions second time around.

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Childlessness and Short-lived Marriages are not Decisive Factors in Family Asset Division

Written by Xinlei Zhang.

When considering financial resolution in divorce, usually couples are able to agree on financial arrangements between themselves or with the help of solicitors. If this is not possible, you may seek help from family mediation or, as a last resort, seek a Court order. Let us delve into the legal principles when determining financial disputes.

Statutory Factors under Matrimonial Causes Act 1973

What are factors should be taken into account in order to adjust the financial position of the parties to a marriage by the Court? The answers is that the Court has duty to have regard to all the circumstances of the case in exercising such discretion by the virtue of the legislation. That is to say, the outcome will depend on each case’s own facts; there is no ‘guaranteed result’. It should be noted that the first consideration should be given to the welfare while a minor (not attained the age of eighteen) of any child of the family, other matters listed in the legislation are:

the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the Court be reasonable to expect a party to the marriage to take steps to acquire;
the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
the standard of living enjoyed by the family before the breakdown of the marriage;
the age of each party to the marriage and the duration of the marriage;
any physical or mental disability of either of the parties to the marriage;
the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;
the conduct of each of the parties, if that conduct is such that it would in the opinion of the Court be inequitable to disregard it;
in the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit . . . which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.

Case law principle

In the meantime, the case law makes fairness the overriding objective in financial proceeding, aiming to achieve a fair outcome between the parties. Largely, the fairness is achieved by the means of equality of division of the marital assets. In the recent case E v L [2021] EWFC 60, the judgement underlined the sharing principle.

EvL

In this case, the husband was aged 66, and the wife was aged 61, no child between them. The parties engaged in September 2016, married on 20 June 2017, and separated in 2019. The wife is a housewife, while the husband is a highly successful production manager.

There are two key issues facing the Court in this case:

Childlessness

It was the husband’s argument that due to the fact that there had been no child from the marriage, the general rule of equal division was not applicable to this case.

Unfortunately, the Court was not persuaded on this issue. According to the judgment, ‘the sharing principle looks at the value accrued during the span of the marital relationship and, deeming the parties’ incommensurable contributions to that accrual to be of equal worth, divides that value equally. Why should the presence of a child make a difference?’ When the Court applying for the sharing principle, the key point to bear in mind is that a marriage is a marriage, it is not the Court’s position to ask why there are no children. Therefore, the judge concluded in this case that childlessness should be banished from any consideration of whether there should be a departure from the application of the equal sharing principle.

Shortness of the marriage

The husband also argued that their marriage was very shortly and only lasted for less than three years, which justified the departure from the general rule of equal division. This argument did not stand well with the Court as well.

The Court ruled that the quality of a marriage had nothing to do with its duration. A short marriage did not necessarily mean that the marriage between the parties were not good. When considering the issue of asset division, the shortness of the marriage would be reflected in the nature of things by the fact that, in a short marriage, the accrual of the family’s assets would almost inevitably be less than in a longer marriage, it is not unfair to apply the sharing principle of the marital acquest in the case. Therefore, the equal sharing principle is applicable as much to short marriages as to long marriages, and the shortness of time will inevitably affect the quantum of the result not the quality of the principle, unless there are extreme factors to be taken into account in order to achieve the fairness between the parties.

Summary

Although there is no established presumption of an equal division of assets in financial provision in the case law, we can understand that there have to be a good reason for a Court to depart from an equal division of the marital assets. The fairness must always prevail. The equality is a starting point in assessing the case, while statutory factors still play important roles in considering the appropriate outcome in each case.

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What happens in a Fraudulent Property Transfer?

Written by Evveline Loh.

The case Victus Estates (2) Ltd and others v Munroe; Benjamin v Victus Estates (1) Ltd and another [2021] EWHC 2411 (Ch) is concerned with two appeals involving two separate property transfers where fraud was involved.

The two- property transferred raised same issues:

Where property is owned legally and beneficially by A and B, B forged the signature of A and the transferee (C) knew about the forgery, will that nullify the transfer or was it an effective transfer to transfer B’s equitable interest to C?

If the transfer would not be a sham and C then charges the property to the bank, should the court as a matter of public policy, apply the law of illegality, so that B still holds the equitable interest and C does not acquire any interest and is incapable of charging any interest to the bank?

Facts

Property A was legally and beneficially owned by Mr Charles and Ms Muroe, Property B was similarly, owned by Mr Charles and Ms Benjamin. Mr Charles was then made bankrupt. He then proceeded to design a scheme with Mr Agrawal to transfer the above two properties into Mr Agrawal’s companies named V1 and V2. Mr Agrawal was aware that neither Ms Munroe nor Ms Benjamin had consented to the transfer of their respective properties and that their signatures were forged.

The company then borrowed money from Shawbrook Bank (“Shawbrook”) and OneSavings Bank plc (“OneSavings”) and charged the properties in the respective bank’s favour. Both the banks’ charges were successfully registered at HM Land Registry.

The issue here is not the legal ownership as both Ms Munroe and Ms Benjamin did not sign the TR1. The question that required clarification is whether the beneficial interest had been transferred.

The banks argued that, applying Ahmed v Kendrick [1988] 2 FLR 22, the effect of Section 63 of the Law of Property Act 1925 (“LPA 1925”) was that Mr Charles’ beneficial interest had rightfully been transferred to V1 and V2, thus although the legal charges were of no effect, the banks should have acquired the equitable charge over V1/V2’s share.

The County Court following Penn v Bristol and West Building Society [1995] 2 FLR 938 concluded that beneficial interest did not pass because this was a sham and signatures were forged.

The Banks proceeded to appeal the finding that Mr Charles’ beneficial interest did not pass to V1/V2.

Effect of Sham, Fraud, Illegality and Equitable Interest

In Penn v Bristol and West Building Society [1995] 2 FLR 938, the husband had forged his wife’s signature on the contract documents and the purchaser was also part of the fraudulent conveyance. It was held that the transfer of equity had no effect on the wife’s equitable interest in the property but the forger’s own equitable interest has been passed to the purchaser. The interest was then charged to the lender. The judge further referred to the case Grondona v Stoffel & Co [2020] UKSC 42 and Patel v Mirza [2016] UKSC 42, property rights such as equitable interest can be passed despite it being an illegal contract.

Therefore, by applying those principles, the judge concluded that the intended victim of illegality were the Banks and Ms Munroe and Ms Benjamin. Hence, the judge concluded that the Banks equitable interest were protected and that it was conferred by V1 and V2 who were fraudsters.

As the fraudster’s plan to deprive Ms Munroe and Ms Benjamin of their own equitable interest, this had not been succeeded. The court held that Ms Munroe and Ms Benjamin retained their half shares in their respective properties as explained further below.

Were the TR1 and Charges Effective?

The court held that even though the legal title had not been transferred, the beneficial interest of the property had been transferred to the purchaser pursuant to Section 63 of the LPA 1925. Doctrine of illegality was prevented since there was consideration. Therefore, the TR1s were effective and a half share in the equity of the relevant properties was transferred to V1 and V2. The banks have therefore been granted the equitable charges over the properties.

It was further concluded that Ms Munroe and Ms Benjamin’s equitable interest remains held by themselves respectively even if the transfers were with valuable consideration. Ms Munroe and Ms Benjamin were in actual occupation. The Court held that Ms Munroe and Ms Benjamin had the right to rectify the register under Schedule 4 of the Land Registration Act 2002.

The Result in Summary

To spare you the time of reading the above, to sum up, the court held under paragraph 104 of the judgment as shown below:

“104. The result of the above reasoning is:

i) The TR1s did not give the transferee the right to be registered in relation to the legal title to the respective properties;

ii) Ms Munroe and Ms Benjamin are entitled to rectification of the registered titles to the respective properties to remove V2 and V1, as the case may be, as registered proprietors;

iii) Ms Munroe and Ms Benjamin are entitled to rectification of the registered titles to the respective properties to remove the charges in favour of Shawbrook and OneSavings in relation to the registered titles to those properties;

iv) Ms Munroe’s and Ms Benjamin’s equitable interests in the respective properties were not affected by the TR1s;

v) The TR1s were effective to transfer Mr Charles’ equitable interests in the respective properties to V2, and V1 as the case may be;

vi) The equitable interests transferred to V2, and V1 as the case may be, were charged to Shawbrook, and OneSavings as the case may be.”

Comments

This is a great example of potential effect in a fraudulent transaction when the legal owner’s signature is forged. This is what we would usually call a ‘text book’ law problem which is commonly seen in law exams.

It is interesting to see how the judge had approached the case by analysing the effect of sham, fraud, illegality and equitable interest.

This serves as a reminder that illegality is not a sufficient defence in mortgage fraud cases. The reason being, this will only benefit the fraudster and allow their scheme to succeed which is not of public’s best interest. The victim, the banks and Ms Munroe and Ms Benjamin would have been left with no equitable interest or charge if principle of illegality was upheld.

Therefore, for conveyancers, please be mindful to carry out identity checks. For property transactions where it is jointly owned, always ensure that you have taken clear instructions by both parties prior to proceeding with the sale.

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Eviction notice periods to return to pre-pandemic timescale – what do landlords and tenants need to know?

The COVID-19 pandemic threw everyone into a world of uncertainty and anxiety, with people unable to work, many confined to their homes and entire industries grinding to a halt. It was a time for compassion, and one element of compassion that the government took, and one that was entirely necessary, was the ban on residential evictions and possession orders.

To be made homeless during the pandemic would have been extremely terrible, and with peoples incomes directly affected by COVID-19, the risk of evictions was higher than ever. This rule has come in various forms as the virus has become more under control as time has gone by, but it is on its way to returning to pre-pandemic status, with the earlier stages of this occurring from 1 October. This article will explore what this means for landlords and tenants.

Definition of eviction or possession order

We are sure readers will know, but here is a quick description of evictions / possession orders: essentially it is a Court order issued to remove a tenant from a property when the landlord no longer wants them to be there. This is usually for a specific reason but sometimes without one, in what is called a no-fault eviction. These reasons can be to do with rent not being paid or anti-social behaviour from the tenant etc. In the case of no-fault eviction, it normally happens when a fixed-term tenancy comes to an end (in legal terms, an assured shorthold tenancy), the landlord does not want to rent this property out at all or to one particular tenant, and instead want to take over the property themselves.

What is changing?

In the lead-up to the present day, and through the past year and a half in which coronavirus has taken a firm grip of society, allowances have been made to stop evictions from occurring or to give the people getting evicted more time to prepare. For example, a rule to give tenants at least 4 months to prepare was issued back in May 2021. Before that, the rule was held at 6 months.

Now that vaccinations have been rolling out for some time, people are going to work and the world is trying to take a more regular form, such allowances are coming to an end. This means landlords will be able to give tenants a 2 month notice period, using either Section 21 or Section 8 notices from 1 October 2021. The change is likely to be welcomed by landlords, but may leave a slightly bitter taste in the mouths of tenants.

For tenants who have had severe rent arrears, or other issues, may even face a shorter time period in which they can be evicted.

Possession Proceedings and Bailiff Enforcements

As we have mentioned in the above, the notice periods given before evictions can legally take place became shorter and shorter, especially in cases involving unpaid rent. For example, it dropped from 4 months in June 2021 to 2 months in August 2021. In more serious cases the noticed period could be as little as 4 weeks – the threshold for what constitutes ‘serious arrears’ is ‘arrears equivalent to 4 or more months’ rent.

Bailiffs were largely not permitted to operate from 17 November 2020 until 31 May 2021. From 1 June 2021, orders were legally enforceable again but only where the landlord has a valid warrant of possession. In terms of a notice period, bailiffs were obliged to provide 14 days’ notice of an eviction and were told not to carry out an eviction if they are made aware that anyone living in the property has COVID-19 symptoms or is self-isolating.

Practical consideration

Although landlords will be given green lights to evict tenants as before from 1^st October 2021, it is still our advice that they may want to exercise such power cautiously in light of current economic environment. Many tenants are yet to receive income the same level as pre-pandemic. Many others are still struggling to secure jobs. By evicting current tenants, landlords may find it difficult to find new satisfactory tenants to put in their properties. In many cases, it may achieve a win-win situation where both landlords and tenants are willing to negotiate and resolve the relevant issues, rather than resorting to eviction such a radical step.

Commercial leases?

They are not affected by the current change. The current protection for tenants continues to 25^th March 2022, which could be relief for many businesses which are still struggling.

What do we think?

Of course, there comes a time where things must start returning to normal. Speaking objectively, it must be said that tenants have been given more support during the pandemic than landlords. While it may be the fact that the tenants are often the more financially vulnerable of the two parties, this is not to say that landlords do not have their share of worries and responsibilities.

Saying that, we still would like to see evictions handled in as compassionate a way as possible, whereby tenants are given an adequate amount of time to find new accommodations. Where Isobel Thomson has said that she does not expect to see a spike in evictions once these new rules come into play, this will remain to be seen.

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Changes to family permits, relevant documents and more may work in favour of family members applying under the EU Settlement Scheme

Some readers may have seen our recent article titled UK Immigration Rules: Let’s keep up with the changes – which was a comprehensive look at the many updates and tweaks that the Home Office has made, or is going to make, to the immigration rules in the near future. Amongst the vast amounts of information within the guidance, and our article covering that guidance, is some useful details that could be of aid to joining family members within the EU Settlement Scheme.

This blog will magnify these nuggets of information so that such people can learn about how they can use them to their advantage when making their applications. Namely, we will focus on changes relating to joining family members, relevant documents, and also the updated guidance surrounding family permits.

Let’s start with joining family members

One specific point which catches our attention is the fact that applicants looking to join family members in the UK under the EUSS will have the option of applying while in the UK under a visitor visa. Previously, this was not permitted. This is a temporary concession by the Home Office to allow people who are already in the UK, but unable to return to their country of origin to apply under the scheme without leaving the UK.

Such applicants will still need to match the family residence and relationship thresholds that were in place already, but this is still a positive move. While this change may seem small, in reality it will be hugely significant to a vast amount of people who have ended up compromising by returning to the UK as visitors after their plans have been disrupted by the coronavirus, for example they have been unable to travel or secure other types of visa, or a more permanent solution.

This relaxation will come to an end on 6 October 2021 – we are always here to help should any readers wish to make an application or discuss possible options for family members.

How about family permits?

An essential addition to the immigration rules surrounding family permits is the mention of absences caused by COVID-19 being overlooked by the Home Office. The Immigration Rules allow people who are holding pre-settled status to be away from the UK for up to 6 months in a year; however, if people have been away from the UK for more than 6 months a year, this could potentially affect their status, unless there is an “important reason” for them to do so.

Under the Immigration Rules, “important reason” is defined as including pregnancy, childbirth, serious illness, study, vocational training or an overseas posting. Under the amendment, this also includes absence because of COVID-19, irrespective of whether the applicant was stranded overseas or voluntarily left the UK due to Covid-19 concern.

This means that the relevant applicants will be able to retain their status if they have been away from the UK for a period between 6 and 12 months.

In addition, for those who have been granted settled status, they are allowed to be away from the UK for more than two years, if such absence is due to reasons of Covid-19.

Relevant documentation for joining family members

Another update has been issued in relation to relevant documents an applicant will have to provide to prove the immigration status of his/her sponsoring family member, so that their family relationship can be verified.

The types of document previously accepted have included:

“a family permit, registration certificate, residence card, document certifying permanent residence, permanent residence card or derivative residence card issued by the UK under the EEA Regulations on the basis of an application made under the EEA Regulations before (in the case, where the applicant is not a dependent relative, of a family permit) 1 July 2021 and otherwise before the specified date”.

Moving forwards from 6 October 21, such documents will instead be referred to in the rules as a family permit (or a letter from the Secretary of State, issued after 30 June 2021, confirming their qualification for one). From what we can tell, this is likely to be a tactical move in order to deal with all those applicants who requested a family permit prior to the ending of the Brexit transition period, yet who have not received one at present. Essentially, this letter would act as the permit itself.

What do we think?

In a world so dazed from the unprecedented pandemic that we still find ourselves dealing with, it is not surprise that rules and regulations are changing in an erratic manner. The stress of those making the rules can only be surpassed by those who must follow them in order to be with family and loved ones here in the UK.

Clearly, this is a lot to like on offer here. Those on visitor visas will continue to be able to apply for pre-settled or settled status in the UK under the EUSS. Likewise, those who were absent from the UK due to COVID-19 will have less to worry about now that such absences will be pardoned by the Home Office, and rightly so as such absences are nobody’s fault.

Unfortunately, some of such measures are coming to an end on 6 October 2021. To some people, this may still appear to be too harsh. Although the UK has lifted almost all the restriction measures, there are still serious travel ban in other parts of the world. Many people may still struggle to go back to their country of origin. There should be room for discretion to be applied to such cases in the applicant’s favour.

Further, the family permits adaptation is also more conflicting. It seems to be something born out of delay rather than a planned change on the Home Office part, and we will have to wait and see just how accepting Home Office officials are of such letters. For now we will remain positive and hope that the guidance matches the reality after 6 October 2021.

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When is Section 3C leave revived when an appeal is lodged out of time?

Written by Mahfuz Ahmed.

Section 3C of the Immigration Act 1971 explained

The Home Office can take a number of months to decide an application, which would usually result in an applicant’s leave expiring after they have made an application.

Section 3C of the Immigration Act 1971 is a very important provision, which automatically extends an applicant’s current leave until the applicant’s application is decided. This means that that any conditions attached to their previous grant of leave would continue in the interim.

Section 3C of the Immigration Act 1971 states:

3C Continuation of leave pending variation decision

(1)This section applies if—

(a)a person who has limited leave to enter or remain in the United Kingdom applies to the Secretary of State for variation of the leave,

(b)the application for variation is made before the leave expires, and

(c)the leave expires without the application for variation having been decided.

(2)The leave is extended by virtue of this section during any period when—

(a)the application for variation is neither decided nor withdrawn,

(b)an appeal under section 82(1) of the Nationality, Asylum and Immigration Act 2002 could be brought [F2, while the appellant is in the United Kingdom] against the decision on the application for variation (ignoring any possibility of an appeal out of time with permission), F3…

(c)an appeal under that section against that decision [F4, brought while the appellant is in the United Kingdom,] is pending (within the meaning of section 104 of that Act) [F5, F6…

[F7(ca)an appeal could be brought under the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 (“the 2020 Regulations”), while the appellant is in the United Kingdom, against the decision on the application for variation (ignoring any possibility of an appeal out of time with permission),

(cb)an appeal under the 2020 Regulations against that decision, brought while the appellant is in the United Kingdom, is pending (within the meaning of those Regulations), or]

(d)an administrative review of the decision on the application for variation—

(i)could be sought, or

(ii)is pending.]

(3)Leave extended by virtue of this section shall lapse if the applicant leaves the United Kingdom.

[F8(3A)Leave extended by virtue of this section may be cancelled if the applicant—

(a)has failed to comply with a condition attached to the leave, or

(b)has used or uses deception in seeking leave to remain (whether successfully or not).]

(4)A person may not make an application for variation of his leave to enter or remain in the United Kingdom while that leave is extended by virtue of this section.

(5)But subsection (4) does not prevent the variation of the application mentioned in subsection (1)(a).

[F9(6)The Secretary of State may make regulations determining when an application is decided for the purposes of this section; and the regulations—

(a)may make provision by reference to receipt of a notice,

(b)may provide for a notice to be treated as having been received in specified circumstances,

(c)may make different provision for different purposes or circumstances,

(d)shall be made by statutory instrument, and

(e)shall be subject to annulment in pursuance of a resolution of either House of Parliament.]

[F10(7)In this section—

“administrative review” means a review conducted under the immigration rules;

the question of whether an administrative review is pending is to be determined in accordance with the immigration rules.]]

This means that section 3c provisions apply when an application is submitted prior to the expiry of the applicant’s existing leave.

Section 3c similarly extends an applicant’s leave where their application has been refused and an application for administrative review or in-country appeal has been made in-time until the case has been determined.

Without an applicant having Section 3C, they will become an overstayer following the expiry of their previous visa, which would mean that they are subject to the hostile environment and there is a break of the applicant lawful residence in the UK.

Does Section 3C leave revive when an appeal is lodged out of time?

There may be circumstances that have caused an applicant to lodge an appeal against the refusal of an immigration decision out of time, which means that not only has the applicant’s visa expired, but they no longer have the protection provided under section 3C of the Immigration Act 1971.

In the case of R (Ramshini) v Secretary of State for the Home Department dated 31 July 2019 (JR/2156/2019), it was held that an out of time appeal does fall under the provisions of section 3c(2)(C).

Following the judgement of the case, the Home Office duly changed their policy in their guidance titled ‘Leave extended by section 3C (and leave extended by section 3D in transitional cases)’ published on 18^th January 2021.

The guidance confirms that when an administrative review or appeal is lodged out of time, section 3C does revive, from the time that the decision is made to accept the out of time application/appeal.

Akinola & Anor, R. (On the Application Of) v Upper Tribunal & Anor [2021] EWCA Civ 1308 (26 August 2021)

In this case, the appellants relied on the provisions of section 3c being revived whilst they previously lodged an out of time appeal, so that there was no break in their residence. This was crucial for the applicants in their calculation of 10 years continuous lawful residence.

They argued that if the tribunal allowed an out of time appeal, then this meant that a person had section 3c leave since the expiry of their visa and that there was no gap in their continued lawful residence.

The Respondent argued, as per the policy guidance, that the correct interpretation of section 3C is that the provisions revives only from the time that the decision is made to accept the out of time application. They argued that the appellant’s interpretation could render an applicant to be on the same day both lawfully resident and unlawfully resident in the UK.

The Court of Appeal considered the matter and they held that leave under section 3C of the Immigration Act 1971 can be revived from the point at which an ‘out of time appeal’ is filed, provided that the appeal is allowed to proceed as an ‘out of time appeal.’

Our comments

This important decision provides confirmation that when an appeal is lodged out of time, the benefits of section 3c for an applicant is revived from the date where an appeal has been filed.

This means that the conditions given under previous immigration grants can continue such as employment or study etc.

In relation to the gap in an applicant’s continued residence, it appears that the applicant will need to rely on the Home Office discretion in any subsequent application.

Have questions? We are here for you!

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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Absence Of Parent Does Not Itself Make An Adoption Process Procedurally Irregular: Courts Refuse Mothers Application of Adoption Order.

It is never nice to see a family be split apart, however in certain unfortunate circumstances it is necessary, especially when the safety of children is concerned. When there is a serious issue, and parents are deemed unfit to look after their children, those children can be put up for adoption via an adoption order, in hopes that they will lead a happier life with their new guardians.

Of course, biological parents who face adoption orders often appeal against them. In this article we will look at a recent case in which three children were made the subject of adoption orders, how their biological mother responded, and what the courts finally decided.

Firstly, what is an adoption order?

An adoption order cuts the legal ties between a birth parent and the child, so that the adoptive parents become the child’s legal parents as they move forward in life. The order does not expire when the child turns 18, but rather that child remains a member of the adoptive family indefinitely.

The case in question: Re I-A (children) (revocation of adoption order); HT v A local authority and others

To give some background on this case, three young children were removed from the family home after the youngest sustained injuries from one of the parents. At the start of 2020, adoption orders were carried out on behalf of the children due to the fact that their parents were no longer seen as fit to properly care for them. The youngest child had their own adoption order while the two older children were to be adopted together. The parents opposed this action, but their appeals were dismissed.

One point of contention that the mother had was that the adoption order was granted in her absence. Initially, the hearing was due to occur on 6 April at 2pm, which the mother was notified about. She was granted permission to attend. However, this timing was changed due to complications due to coronavirus and the hearing was to be conducted online, only one hour later on the same day. The mother was again notified of this via text message and given instructions on how to attend.

The mother, however, was not in attendance and the judge made the adoption order in respect of the three children in the absence of the mother.

Points of interest in this case

One main issue that had to be dealt with in the aftermath of this case was the fact that the adoption order had been finalised in the mother’s absence. To be fair to the mother, this appears to be unreasonable and unfair.

This being true, it was not held as a strong enough ground for the adoption orders to be revoked. This is because while the mother was entitled to attend the hearing, she was not entitled to dispute what went on as part of the hearing. In other words, the mother had right to give her evidence at the hearing. She was allowed to be there as an observer. It was therefore ruled that there was no procedural irregularity in the process. The outcome would not have been different, even if she was there.

The adoption orders are issued under strict rules, as they change the children’s status and identity. Even still, such action has been given the green light to occur under a remote courtroom setting. There was not much the mother could oppose to in any meaningful way in the eyes of the law. The reality was that the mother did not have permission to oppose the adoption. There was nothing she could have done to prevent the adoption from occurring.

Could the mother have done anything more?

In this case, it appears that putting the children up for adoption is the best course of action due to the abusive nature of the parents, which the evidence points to. However, from a purely legal standpoint the mother may have had a better chance of her appeal being successful if she had acted in a swifter manner. Her best course of action would have been to file a notice of appeal seeking permission to appeal within the appropriate time limit under the inherent jurisdiction to challenge the order which refused her application for permission to appeal, instead of bringing an application at a later date to revoke the order.

What do we think?

As we said at the start of this piece, adoption is never pleasant for families to be separated. As a law firm, however, we understand that it is often the best way of moving forward, particularly for young children. The adoption orders are an effective way of giving children a second chance and a shot at a happier life with a supportive and loving new family.

Have questions? We are here for you!

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!

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UK Immigration Rules: Let’s keep up with the changes!

The Home Office has recently published newly updated immigration rules which will dictate how people are able to enter and remain in the UK. Some of the changes you will read about here are directly related to the COVID-19 pandemic, or the situation in Afghanistan, while others will be connected to the EU Settlement Scheme and developing requirements of certain visa routes. There is plenty to sink your teeth into.

We will go through all the important updates, step by step, to give a clear reading of the new rules and what they mean for those looking to come to the UK, or to stay here. As the guidance itself is very long, we will provide a link to the full version at the bottom for those who wish to do further reading.

Changes related to COVID-19

Tier 1 Entrepreneur:

Under the coronavirus (COVID-19) concession for Tier 1 (Entrepreneur) migrants whose businesses had been negatively affected by the pandemic could extend their leave as long as they could show that they had created at least 2 full time roles within their company, without having to worry about the previous requirement that such roles had existed for at least 12 months.

However, before applying for settlement in the UK the roles created by the entrepreneur will have to have been in place for at least 12 months. This makes sense, as it demonstrates some deep professional links to the UK and shows that the business is successful and has some longevity.

EU Settlement Scheme:

On 10 June 2020 it was revealed that applicants whose continuous residence in the UK would have been negatively affected by COVID-19, due to travel restrictions etc, would not be penalised for such absence. They would still be able to successfully apply to the EUSS.

The updated guidance specifies that such a concession will cease to operate from 6 October 2021, meaning that absences will once again be a serious issue for such applicants. This is definitely an important point that many people will need to remember, it is important that those who do not wish to be penalised for their absence return to the UK before the 6^th October 2021!

Tier 2 Sportsperson Route and Skilled Worker Route:

Due to major disruption to UK Visas and Immigration (UKVI) services as a result of Coronavirus (COVID-19), concessions were put in place for those who applied as Skilled Workers (which includes applications on the predecessor route) in the UK between 24 January 2020 and 30 June 2021, allowing them to start working for their sponsor while waiting for a decision on their application. A change is being made to the settlement rules to allow those who successfully applied in the UK during this period to include the time they were waiting for a decision towards the five years required for settlement as a Skilled Worker or as a Tier 2 Sportsperson.

This is a positive move as it would be unfair to dismiss such time periods, as the time spent waiting on their decision is very much out of their control.

Launch of the new International Sportsperson route (and consequential changes), and the rebranding of the Tier 5 routes:

The new International Sportsperson route will replace the T2 and T5 Temporary Worker routes for professional sporting workers with (hopefully) simplified, dedicated visa arrangements. The new route is similar to the previous routes in that it has a dual level of assurance of an endorsement from a Sports Governing Body and requires a Certificate of Sponsorship from a club. The route is points-based to bring it in line with the points-based system and there is a requirement to demonstrate English language ability for those who apply for a stay that exceeds 12 months.

The Tier 5 Temporary Worker routes are being rebranded with the launch of new application forms and all references to the old T5 system being removed. The separation of the old T5 Creative and Sporting Worker route will deliver a Temporary Work – Creative Worker visa which aims to recognise the unique requirements of the sector.

Changes relating to the evidence of identity and nationality requirements for persons arriving in the United Kingdom or seeking entry through the Channel Tunnel:

The following people and certain family members will be able to use their EEA national identity card to enter the UK until at least the end of 2025:

a national of Switzerland with a valid entry clearance granted under Appendix Service Providers from Switzerland to the Immigration Rules.
an EEA citizen with valid indefinite or limited leave to enter or remain granted under the EUSS (in Appendix EU to the Immigration Rules), or who has made a valid application under that Appendix (other than as a joining family member of a relevant sponsor, as defined in Annex 1 to that Appendix) which has not yet been finally determined.
an EEA citizen with a valid entry clearance in the form of an EU Settlement Scheme Family Permit.
an EEA citizen with a frontier worker permit.
an EEA citizen seeking to come to the UK as an S2 Healthcare Visitor.

The above groups form the citizens’ rights cohort.

The Government announced in October 2020 that EEA citizens outside of the citizens’ rights cohort will, like other nationalities, need, from 1 October 2021, a passport to demonstrate nationality and identity at the UK border, rather than a national identity card. This is due to perceived inconsistencies in the design and security features of identity cards.

Changes to the EU Settlement Scheme regarding joining family members:

The main changes in respect of the EUSS and the EUSS family permit are as follows:

From 6 October 2021, the temporary concession allowing a joining family member to apply to the EUSS while in the UK as a visitor will no longer stand.
Some technical changes will be made to reflect the passing of the EUSS deadline, however late applications can still be made providing there is a reasonable excuse for the delay.

Changes to the Global Talent route and requirements:

The Global Talent category is for talented and promising individuals in the fields of science, digital technology and arts and culture wishing to work in the UK. ‘Talent’ applicants are those who are already field leaders, while ‘Promise’ applicants have shown potential to become leaders in their field.

The main changes being made in this area relate to the endorsement criteria for the route.

The arts and culture endorsement criteria are being amended to:

clarify letters of recommendation required by the endorsing body must specifically be from well-established ‘arts and culture’ organisations. This is to ensure that applicants do not seek to rely on letters from organisations outside of the relevant fields and ensures authors of recommendation letters are qualified to make expert recommendations on the suitability of individuals.
make it easier for applicants who are members of groups, such as internationally recognised orchestras or dance troupes, to qualify. The change specifically allows individuals to submit evidence that primarily relates to the activities of a group but also specifically names the applicant and supports their claim of exceptional talent or promise.

The evidential requirements for digital technology endorsements are being amended to:

include being a board member of a product-led digital technology companies as a role that can be used to evidence an exceptional talent in this field.
reduce the number of examples required for each of the exceptional promise criteria from at least two to at least one.

Changes to the eligibility requirements for the Hong Kong British National (Overseas) route:

Following a concession made outside the Rules to allow the partner and, if applicable, child under 18 of a BN(O) status holder to join the BN(O) status holder following a grant on the BN(O) route, this concession has now been incorporated into Appendix Hong Kong British National (Overseas).

Also, a provision has been made within the Rules for parents of a child born in the UK to a BN(O) status holder or their partner, or a BN(O) household member or their partner, to regularise that child’s stay on the BN(O) route.

Changes to provide further support to Afghan Locally Employed Staff (LES):

The Home Office is enabling current and former Afghan LES and their family members who are outside Afghanistan to relocate to the United Kingdom under the Afghan relocations and assistance policy and the ex gratia scheme. The schemes were previously only available to those in Afghanistan.

The new guidance also enables LES who are approved for relocation to be granted indefinite leave to enter the UK, replacing the five years’ limited leave they are currently granted. Those already in the UK will be able to apply for indefinite leave to remain before their limited leave expires if they choose to do so.

The Home Office are also enabling LES who are approved for relocation to be granted indefinite leave to enter the UK, replacing the five years’ limited leave they are currently granted. Those already in the UK will be able to apply for indefinite leave to remain before their limited leave expires if they choose to do so.

Changes to eligibility requirements for settlement for Representatives of an Overseas Business:

The changes made here will amend the eligibility requirements for settlement in the route by requiring applicants to show they have continued to meet the requirements of the route throughout the five year period leading up to their settlement application. The change will also remove the requirement for settlement applicants to be paid the appropriate salary, since there are no specified salary requirements within the route, which we see as a logical move.

A lot to take in!

The recent changes to the Immigration Rules are plentiful and complex. The effect of COVID-19 has meant that rules have come and gone, or taken different forms even more that in usual years. It would not be unreasonable for people to feel confused, or out of depth with the ever changing rules and regulations. As we said at the start of the blog the changes listen here are key points, the full rundown of changes is available in full here.

We are here for you!

Should you require any information at all, or would like legal assistance of any kind, we are here for you. Call us on 020 7928 0276 or email info@lisaslaw.co.uk today!

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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Making a Will: All You Need to Know

Written by Xinlei Zhang.

A Will is a document containing statements by the person making it with regards to the disposition of his/her property after death. The person making the will is called the testator. You may often come across a term ‘estate’, which means all of the testator’s assets (the property you own or have a right to) and possessions whether on your own or with someone else, as well as any debts or liabilities you have. The liabilities will reduce the value of the assets to leave a ‘net estate’. If a person dies without a valid Will, the intestacy rules will apply, which is explained in the following section.

Benefits of making a Will

A professionally drafted will not only ensure that your estate will pass according to your wishes and instructions, but also you will be guided in thinking about your assets and family circumstances to ensure that all matters are appropriately dealt with.

Giving you control about your assets and make sure your assets pass to those you intended (and are not dictated by general intestacy rules) and that your estate is administered by people you choose (again, not dictated by intestacy rules)
Ensuring that the people who matter most to you are looked after if you die—this is particularly important if you have young children or if someone vulnerable is dependent on you
Allowing you to the opportunity to discuss your estate planning with your family which will significantly reduce the prospect of disputes arising after your death.

Process of making a Will

Your Instructions

Initial information will come from a questionnaire filled out by you or from a meeting with you. The information provided by you in the questionnaire will allow us to assess and confirm that there are no circumstances which would prevent the will from being valid. For example, you will be asked about your health issue that is because a will may be invalid if the testator has or is starting to develop mental capacity issues. Other information needed includes: your personal circumstances (marital status, children and dependents, previous wills etc.); your assets (property, business assets, joint assets, saving, pension, life insurance, debts or liabilities etc.); your wishes as to gifts to be made through the will etc.

Our Costs

Our fees is likely to be the following:

£150.00 plus VAT for one simple will;
£175.00 plus VAT for simple mirror wills (wills made in similar terms, for example between husband and wife);

It should be noted that our fees may increase, should there be complicated factors in you case. Complicated factors include, but not limited to, : complicated family background/expected marriage/foreign property/potentially disappointing beneficiaries etc. Should such thing happen, we will let you know beforehand.

Will Drafting

We will then prepare a draft will based on your instruction. The time for preparation will depend on the complexity of your estate and personal circumstances. The issues needed to be considered when giving the instruction are explained in the next section.

Will Finalising

Once you are happy with the draft will, it will be finalised, in other words, “engrossed” and ready for you to execute.

Will Execution

Ideally, you would sign the final version at our office to ensure that all the formalities for signing the will are met. Alternatively, it may be sent to you with specific instructions to make sure you sign it properly at home.

Will Keeping

As our extended service to you, we provide free storage service of your will. Alternatively, you may decide to store your will at home and you will be given safe storage recommendations. In either case, you should keep a copy in an accessible place, and your executors should know where to find a copy and the original.

Requirements for a valid Will

The basic requirements for a valid will are that the testator must:

have the capacity to make a will

The testator must be of sound disposing mind, memory and understanding when giving instructions for the will and when they execute the will.

have the intention to make a will and
comply with the prescribed formalities
be in writing
be signed by the testator or by some other person in their presence and by their direction
have a signature made or acknowledged by the testator in the presence of two or more witnesses present at the same time
be witnessed and each witness must attest and sign the Will or acknowledge their signature, in the presence of the testator

Issues in Will Drafting

who your executors should be

These are the people who will collect in and look after the estate, pay any inheritance tax and distribute your estate according to the terms of your will. Executors can be anyone (including a beneficiary) over 18 years of age. It is usual to have at least two executors to ensure they can deal with real property. As the executors will administer your estate, you will need to consider carefully who they should be. Sometimes professional executors may be advisable, directors of Lisa’s Law solicitors are very happy to be your executors.

who you want to appoint as guardians of your children under the age of 18

This appointment would take effect if no other person with parental responsibility survives you. It is advisable to discuss any appointment with your spouse and to consider what happens if something were to happen to the appointed guardians (eg they get divorced).

beneficiaries

These are the people who stand to benefit from your will. The general rule is that the testator is free to leave their estate as they wish.

gifts to be made through your will

Gifts in your will are known as legacies. You will need to consider what particular assets you may want to leave to certain people. For example, you may wish to leave cash amounts to certain individuals or organisations that are important to you. General speaking, there are two kinds of legacies.

1. General legacies, these are not distinguished from other property in the estate. Commonly, this will be a gift of money.

2. Specific legacies, these are particular assets to certain people. For example, your black Mercedes car with number plate xxxxxxx gives to your daughter named X. It is important to note that if you no longer possesses the property at the death, the specific legacy will adeem (ie the implied revocation of the gift in a will by a subsequent act of the testator, such as selling it).

You will be asked to provide us the list of gifts you would like to make, i.e. the descriptions of the assets and the names and addresses of the intended beneficiaries.

who you want the rest of your estate to be left to

This is the amount or assets left of the estate after gifts have been made, debts settled and tax paid. This is usually the largest part of your estate. Normally, this would be left to the immediate family.

joint owned assets

Property held under a joint tenancy survives to the surviving joint tenant. One of joint tenants has no power to dispose of his interest by will. For example, X and Y owned their home as joint tenants, upon the death of X, Y will own the home absolutely. However, a joint tenancy can be severed during the lifetime of the joint tenant.

gifts to minors

Gifts to minors need careful consideration. A gift to a minor beneficiary will have to be held until they reach 18. Alternatively, the gift can be vested in the beneficiary via the minor’s parents on the testator’s death.

any dependants maintained by you

When planning your will, you should always consider any possible claims of dependants under the Inheritance (Provision for Family and Dependants) Act 1975. This provides that categories of person who have been dependent on or maintained by the deceased can apply to the court for provision from the estate if they do not believe that reasonable provision has been made for them under the deceased’s will. The explanation is necessary if you do not wish leave them the reasonable amount, in order to avoid any future disputes to the extent possible.

failure of gifts and substitution

Even where there is a carefully drafted Will, it is possible that a gift may fail or lapse (for example, where if a beneficiary dies before the testator). Generally we will include substitutes for gifts. WA 1837, s 33 automatically adds a substitutionary gift in favour of issue. For example, if the will included a gift to the testator’s children X, if X died before the testator, leaving children who survived the testator, there would be no lapse; X’s children would take X’s share.

Inheritance tax

Inheritance tax is a charge on the value of your estate at the date of your death. Inheritance tax at 40% is payable on the value of your estate which is over the nil rate band. The nil rate band is a threshold above which inheritance tax is payable and below which inheritance tax is not charged. The nil rate band is currently £325,000 but more or less than this may be available on your death depending on a number of factors, including whether you’ve made any gifts.

Structure of the Will

The usual order of clauses is:

Opening

Identify the testator by name and address. All aliases of the testator should be included.

Revocation

Express intention of it being the testator’s ‘last Will and testament’, special clause will be needed if the testator has previous wills.

Declarations

Making clear statement on the issues like a will made in expectation of marriage/mutual Will/Domicile and whether or not the Will has effect in respect of foreign property/the funeral (burial or cremation) arrangements/reasons for not including certain persons as beneficiaries

Appointment of executors and trustees

Appointment of guardians

General legacies

Specific legacies and devises

Residuary gifts

Powers of executors and trustees

Attestation

Intestacy

Dying without a valid will in place, with the result that intestacy law (ie a set of prescriptive rules) will determine who gets what from the deceased’s estate.{1}

{1} – Flowchart from Lexis Nexis.

Have questions? We are here for you!

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

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News and Insights

The Secretary of State for the Home Department v Ali [2021] EWCA Civ 1357 (14 September 2021)

Our Comments

Have questions? Get in touch today!

Statutory Factors under Matrimonial Causes Act 1973

Case law principle

EvL

Summary

Have questions? We are here for you!

Facts

Effect of Sham, Fraud, Illegality and Equitable Interest

Were the TR1 and Charges Effective?

The Result in Summary

Comments

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Definition of eviction or possession order

What is changing?

Possession Proceedings and Bailiff Enforcements

Practical consideration

Commercial leases?

What do we think?

Are you a landlord or a tenant that has questions regarding this? We are here for you!

Let’s start with joining family members

How about family permits?

Relevant documentation for joining family members

What do we think?

Have questions? We are here for you!

Section 3C of the Immigration Act 1971 explained

Does Section 3C leave revive when an appeal is lodged out of time?

Akinola & Anor, R. (On the Application Of) v Upper Tribunal & Anor [2021] EWCA Civ 1308 (26 August 2021)

Our comments

Have questions? We are here for you!

Firstly, what is an adoption order?

The case in question: Re I-A (children) (revocation of adoption order); HT v A local authority and others

Points of interest in this case

Could the mother have done anything more?

What do we think?

Have questions? We are here for you!

Changes related to COVID-19

Launch of the new International Sportsperson route (and consequential changes), and the rebranding of the Tier 5 routes:

Changes relating to the evidence of identity and nationality requirements for persons arriving in the United Kingdom or seeking entry through the Channel Tunnel:

Changes to the EU Settlement Scheme regarding joining family members:

Changes to the Global Talent route and requirements:

Changes to the eligibility requirements for the Hong Kong British National (Overseas) route:

Changes to provide further support to Afghan Locally Employed Staff (LES):

Changes to eligibility requirements for settlement for Representatives of an Overseas Business:

A lot to take in!

We are here for you!

Benefits of making a Will

Process of making a Will

Requirements for a valid Will

Issues in Will Drafting

Inheritance tax

Structure of the Will

Have questions? We are here for you!

Need legal advice? We are here for you!

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